TMI Blog2014 (12) TMI 1303X X X X Extracts X X X X X X X X Extracts X X X X ..... ificially expanded more particularly by sub-clause (f), with which we are concerned, where the distinction between "sale" and "service" has been done away with. In the present case, the well established distinction between "sale" and "service" would continue to apply in view of the definition of "sale" contained in Section 3(m). It will be noticed that the definition is a "means" and "includes" one. It is well settled that such definition is an exhaustive definition. There is thus, no scope to include "service' in such a definition - even if we were to accept Mr. Bhatt's contention, Rule 4(3) would become ultra vires Section 6 of the Act inasmuch as it would prohibit the sale of cigarettes and other tobacco products in a smoking area in hotels, restaurants and airports, thus, adding one more exception to the two exceptions already contained in Section 6. It is, thus, clear that this condition would be ultra vires the Cigarettes Act and the Rules properly so read. Rule 3(1)(c) and Rule 4(3) have to be harmoniously construed - What is expressly allowed by Rule 4(3) cannot be said to be taken away by Rule 3(1)(c). Appeal allowed - decided in favor of appellant. - Civil Appeal N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of India Ors., (2004) 7 SCC 68, particularly the concluding paragraph 77 (6) stating that the Cigarettes Act is a special Act dealing only with tobacco and tobacco products, while the Prevention of Food Adulteration Act, 1954 is general and must therefore yield to the Cigarettes Act. He also cited Bajinath Kedia v. State of Bihar Ors., (1969) 3 SCC 838 for the proposition that once the requisite declaration under Section 2 of the Cigarettes Act is made, the State Government is denuded of any power to legislate in the field occupied by the Cigarettes Act. He also cited Paluru Ramakrishnaiah Ors. v. Union of India Anr., (1989) 2 SCC 541 for the proposition that executive instructions and conditions cannot be contrary to statute or statutory rules. Ultimately, however, he contended that there were three features of the impugned circular which required to be struck down being ultra vires the Cigarettes Act and the Rules made therein. 4. The first condition did not allow a licensee of a restaurant to keep or sell or provide any tobacco or tobacco related products in any form in the licenced premises. This, according to him, was contrary to Section 6 of the Cigarettes Act a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublic offices, court buildings, educational institutions, libraries, public conveyances and the like which are visited by general public but does not include any open space; (m) sale , with its grammatical variations and cognate expressions, means any transfer of property in goods by one person to another, whether for cash or on credit, or by way of exchange, and whether wholesale or retail, and includes an agreement for sale, and offer for sale and exposure for sale; (n) smoking , means smoking of tobacco in any form whether in the form of cigarette, cigar, beedis or otherwise with the aid of a pipe, wrapper or any other instruments; (p) tobacco products means the products specified in the Schedule. THE SCHEDULE [See Section 3(p)] 1. Cigarettes 2. Cigars 3. Cheroots 4. Beedis 5. Cigarette tobacco, pipe tobacco and hookah tobacco 6. Chewing Tobacco 7. Snuff 8. Pan masala or any chewing material having tobacco as one of its ingredients (by whatever name called). 9. Gutka 10. Tooth powder containing tobacco. Section 4. Prohibition of smoking in a public place.-No person shall smoke in any public place: Provided that in a hotel h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tar contents in cigarettes or other tobacco products under section 10; (e) provide for the manner in which entry into and search of any premises is to be conducted and the manner in which the seizure of any package of cigarettes or other tobacco products shall be made and the manner in which seizure list shall be prepared and delivered to the person from whose custody any package of cigarettes or other tobacco products has been seized; (f) provide for any other matter which is required to be, or may be, prescribed. (3) Every rule made under this Act and every notification made under section 30 shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive session aforesaid, both Houses agree in making any modification in the rule or notification or both Houses agree that the rule or notification should not be made, the rule or notification shall thereafter have effect only in such modified form or be of no effect, as the case m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or in-charge of the affairs of a hotel having thirty or more rooms or restaurant having seating capacity of thirty persons or more and the manager of the airport may provide for a smoking area or space as defined in rule 2(e). (2) Smoking area or space shall not be established at the entrance or exit of the hotel, restaurant and the airport and shall be distinctively marked as Smoking Area in English and one Indian language, as applicable. (3) A smoking area or space shall be used only for the purpose of smoking and no other service(s) shall be allowed. (4) The owner, proprietor, manager, supervisor or in-charge of the affairs of a hotel having thirty or more rooms may designate separate smoking rooms in the manner prescribed as under: (a) all the rooms so designated shall form a separate section in the same floor or wing, as the case may be. In case of more than one floors/ wings the room shall be in one floor/wing as the case may be. (b) all such rooms shall be distinctively marked as Smoking rooms in English and one Indian language, as applicable. (c) the smoke from such room shall be ventilated outside and does not infiltrate/permeate into the non-smokin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat is exhausted directly to the outside and not mixed back into the supply air for the other parts of the building. is fitted with a non-recirculation exhaust ventilation system or an air cleaning system, or by a combination of the two, to ensure that the air discharges only in a manner that does not re-circulate or transfer it from a smoking area or space to non-smoking areas. iv. has negative air pressure in comparison with the remainder of the building. B) The smoking area shall not be established at the Entrance or Exit of the eating house and shall be distinctively marked as Smoking Area in English in Marathi as per the COTPA. C) The Smoking area shall be used only for the purpose of smoking and no other service(s) or any apparatus designed to facilitate smoking shall be provided. D) The smoking area shall not be less than 100 sq. ft. with each side of the room shall not be less than 8 ft. and height of the room shall not be less than 9 ft. The smoking area shall be included in the licensed area of the eating house. E) The total area of the smoking room shall not be more than 30% of the total licensed service area of the eating house. Condition No.36: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. C.U. Singh, the very first paragraph of Condition No.35 is bad inasmuch as it does not allow the licensee to keep or sell or provide any tobacco or tobacco related products in the licenced premises. We find considerable force in this submission. 12. It will be noticed that Section 6 of the Cigarettes Act permits the sale of cigarettes and any other tobacco products, except to persons under 18 years of age and in an area within a radius of 100 yards of any educational institution. It is clear that any condition which prohibits the sale of cigarettes or any other tobacco products in premises licenced by the Municipal Corporation would amount to adding another exception which would be impermissible in law. Mr. Bhatt sought to uphold this condition with a reference to Rule 4(3) as, in his submission, in a smoking area no other service shall be allowed . According to him, the sale of tobacco or tobacco related products would amount to a service that cannot be so allowed. 13. We cannot accept this contention for more than one reason. First and foremost, it is difficult conceptually to say that sale and service are interchangeable items. Sale is defined under the Act as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of this service or ministry is the consumption of the food required. This consumption involves destruction, and nothing remains of what is consumed to which the right of property can be said to attach. Before consumption title does not pass; after consumption there remains nothing to become the subject of title. What the customer pays for is a right to satisfy his appetite by the process of destruction. What he thus pays for includes more than the price of the food as such. It includes all that enters into the conception of service, and with it no small factor of direct personal service. It does not contemplate the transfer of the general property in the food applied as a factor in the service rendered. This led to the Constitution 46th Amendment Act by which Article 366 (29A) was inserted. Article 366 (29A) reads as follows:- Article 366 (29-A) tax on the sale or purchase of goods includes- (a) a tax on the transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration; (b) a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the added words is that a Hookah cannot be provided by the hotel, restaurant or airport being an apparatus designed to facilitate smoking. 15. Mr. Bhatt sought to derive power for the added words from Rule 3(1)(c) and argued that the Hookah would be other things designed to facilitate smoking which would be prohibited under Rule 3(1)(c). 16. We find it difficult to accept this contention because, if carefully read, Rule 3 deals with the prohibition of smoking in public places, which is referable to Section 4 (main part) whereas Rule 4 is referable to the proviso to Section 4. Rule 3 would only apply where there is a total prohibition of smoking in all public places as is clear from Rule 3(1)(a) which makes it is incumbent on the owner, proprietor, etc. of a public place to ensure that no person smokes in that place. It is in that context that ashtrays, matches, lighters and other things designed to facilitate smoking are not to be provided in public places where smoking is prohibited altogether. 17. On the other hand, where smoking is allowed in a smoking area or space, sub-rule (3) of Rule 4 makes it clear that such place can be used for the purpose of smoking . U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely to stop people from sucking and swallowing tobacco. Further, sale of tobacco can only be prohibited within a radius of 100 yards of an educational establishment and not 300 feet as is stated in the impugned notice. This judgment also deserves to be set aside. 24. In the Gujarat High Court case, an order dated 14th July, 2011, purportedly made under Section 33 of the Bombay Police Act read with Section 144 of the Code of Criminal Procedure prohibited hotels and restaurants from providing the facility of hookah and prohibited hookah bars. In the course of a lengthy judgment, the Division Bench referred to the evil effects of smoking and generally of tobacco products and ultimately came to the conclusion that Section 33 of the Bombay Police Act would include the power to prohibit, stating that the word regulate would include restriction and even prohibition . Several authorities were stated for this proposition, but the one authority binding on the High Court was missed. In Himat Lal K. Shah v. Commissioner of Police, Ahmedabad, (1973) 1 SCC 227, the Supreme Court had to construe the word regulate under the very Act i.e. Section 33 of the Bombay Police Act. The Court hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h such an emergent situation prevailing in the city and as it was very difficult to keep constant vigilant and monitoring as regards compliance of the condition which was added in the licence, the Police Commissioner thought fit to invoke Section 144 of the Code. Assuming for a moment that the action of the Police Commissioner of the city of Ahmedabad in issuing the notification in purported exercise of powers under Section 144 of the Code is not tenable in law by itself would not be sufficient to grant the relief as prayed for by the petitioners. Though we do not find error in the same but assuming for a moment that it is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it in public interest. It is a settled principle of law that the remedy under Article 226 of the Constitution of India is discretionary in nature and in a given case even if such action or order challenged in the petition is found to be improper and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it. 26. We are at a loss to understand the aforesaid reasoning. If Section 144 is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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