Karnataka High Court
Eleven & Co vs State Of Karnataka on 14 March, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 9476 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.9476 OF 2017 (LB-BMP)
BETWEEN:
ELEVEN & CO
NO.284, 4TH FLOOR
100 FT. RING ROAD
4TH PHASE, 7TH BLOCK
BANASHANKARI 3RD STAGE
BENGALURU-560085
REPRESENTED BY ITS MANAGING DIRECTOR
MR SURAJ KUMAR S
...PETITIONER
(BY SRI. BASAVANAGOUDA PATIL., ADVOCATE)
AND:
1. STATE OF KARNATAKA
THROUGH ITS SECRETARY
HOME DEPARTMENT
Digitally signed VIDHANA SOUDHA
by
NARAYANAPPA BENGALURU-560001
LAKSHMAMMA
Location: HIGH 2. THE COMMISSIONER OF POLICE
COURT OF BENGALURU CITY, INFANTRY ROAD
KARNATAKA
BENGALURU-560001
3. ASSISTANT COMMISSIONER OF POLICE
1ST FLOOR, 9TH MAIN ROAD
T R NAGAR, BSK II STAGE
BENGALURU-560070
4. THE STATION HOUSE OFFICER
17TH MAIN, 27TH CROSS
BSK II STAGE
BENGALURU-560070
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WP No. 9476 of 2017
5. THE BRUHAT BENGALURU MAHANAGARA PALIKE
REPRESENTED BY ITS COMMISSIONER
J C ROAD
BANGALORE-560002
...RESPONDENTS
(BY SRI. SANTOSH KUMAR M.B., HCGP FOR R1 TO R4;
SRI. N.R. JAGADEESHWARA, ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
MANDAMUS OR ANY ORDERS DIRECTING THE RESPONDENTS NOT
TO INTERFERE IN THE BUSINESS OF THE PETITIONER, INCLUDING
SERVING OF HOOKAH TO ITS CUSTOMERS IN THE DESIGNATED
SMOKING ZONE OF THE SCHEDULE PROPERTY AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the following reliefs:
a. Issue a Writ of Mandamus or any Orders directing the respondents not to interfere in the business of the petitioner, including serving of Hookah to its customers in the designated smoking zone of the schedule property.
b. Further direct the respondents not to insist upon the Petitioner to obtain a separate license for serving Hookah in the schedule property.
c. To award costs of this petition.
d. Pass any other order or direction as this Hon'ble Court deems fit in view of the facts and circumstances of the case, in the interest of justice and equity.-3- WP No. 9476 of 2017
2. The contention of the petitioner is that the petitioner is running the business of the restaurant wherein hookah services would also be provided. A trade licence having been issued, the respondents are seeking to interfere with the said business. It is stated that the hookah being a tobacco product, the same is covered by Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply & Distribution) Act, 2003 (for short, 'COPTA), which deals with smoking in public places. The public place being defined under sub-Clause (l) of Section 3 of COTPA Act, smoking is permitted in a designated area in a restaurant.
3. Insofar as providing of hookah in the present matter is concerned, it is contended that the said hookah is made available in a designated place and as such, there is compliance with the COTPA. In that background the above said reliefs are sought for. -4- WP No. 9476 of 2017
4. Having taken into consideration the applicability of COTPA and the field insofar as tobacco is concerned being governed by the COTPA, the Municipal Corporation would not have any jurisdiction over the matter more so when smoking is permitted under the COTPA in designated places. Considering that the petitioner has complied with the requirement under the COTPA, the Corporation cannot seek to stop smoking in the restaurant by the customers of a restaurant in the designated smoking zone, of course the restaurant/Petitioner would be under an obligation to ensure that smoking is not permitted otherwise than in the designated area. As such, I pass the following:
ORDER i. The Writ Petition is allowed.
ii. A mandamus is issued directing the respondents not to interfere with the business of the -5- WP No. 9476 of 2017 petitioner including serving of hookah to its customers in the designated smoking zone.
iii. It is also further clarified that there is no separate licence for serving hookah which is required by the petitioner.
Sd/-
JUDGE PRS List No.: 2 Sl No.: 6