Karnataka High Court
Kashinath S/O Basanna Metri vs State Of Karnataka And Ors on 3 November, 2023
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2023:KHC-K:8406
WP No. 203241 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO. 203241 OF 2022 (GM-RES)
BETWEEN:
KASHINATH
S/O BASANNA METRI,
AGED ABOUT 43 YEARS,
OCC: AGRICULTURE, SDMC,
PRESIDENT HPS GOVT. SCHOOL,
R/O GOLASAR, TQ: INDI,
DIST: VIJAYAPUR-586 217.
...PETITIONER
(BY SRI. SUDHIRSINGH R. VIJAPUR, ADVOCATE)
AND:
Digitally signed by
GAVRIBIDANUR 1. STATE OF KARNATAKA,
SUBRAMANYA
GUPTA SREENATH THE DIRECTOR,
Location: HIGH
COURT OF
STATE TOBACCO CONTROL CELL
KARNATAKA
AND HEALTH AND SOCIAL WELFARE
SERVICE DIRECTORATES OFFICE,
ANANAD RAO CIRCLE, BENGALURU,
BENGALURU-560 009.
2. THE PRESIDENT DISTRICT TOBACCO
CONTROL CELL AND DEPUTY COMMISSIONER,
VIJAYAPUR DISTRICT, VIJAYAPUR-586 101.
3. ASSISTANT COMMISSIONER,
INDI DIVISION, INDI,
DIST: VIJAYAPUR-586 211.
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NC: 2023:KHC-K:8406
WP No. 203241 of 2022
4. TAHASILDAR,
INDI TALUK, INDI,
DIST: VIJAYAPUR-586 211.
...RESPONDENTS
(BY SRI. G. B. YADAV, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN
THE NATURE OF MANDAMUS THEREBY DIRECTING THE
RESPONDENTS TO CONSIDER THE REPRESENTATIONS DATED
28.04.2022 AND 03.12.2021 GIVEN BY THE PETITIONER IN
ANNEXURE-B AND ANNEXURE-D RESPECTIVELY TO WRIT
PETITION IN THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING-B GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard learned counsel - Sri Sudhirsingh R. Vijapur for the petitioner and the learned High Court Government Pleader - Sri G.B. Yadav for the respondents/State.
2. This petition is filed by the petitioner seeking a writ of mandamus for a direction to the respondents consider the representations dated 3.12.2021 and 28.4.2022 vide Annexures - D and B respectively.
3. It is the case of the petitioner, who is the President of HPS Government School, Golasar village, Indi Taluk, Vijayapur -3- NC: 2023:KHC-K:8406 WP No. 203241 of 2022 district that nearly 400 students are studying in said school and Rupees 20 to 30 lakhs amount was sanctioned by the Zilla Panchayat, Taluka Panchayat and Grama Panchayat for developmental works to the school and some unwanted persons in the village are interfering with the developmental work in the school, due to which he gave detailed representation dated 3.3.2022 as per Annexure-A to the 3rd respondent to take suitable action with regard to stopping development work in the school. The petitioner also stated in his representation to act under Sections 4 and 6(b) of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 ('COTPA Act' for short) and rules prescribed under the Act. The petitioner also submitted necessary documents before the respondents.
3.1 It is further case of the petitioner that he gave another representation dated 28.4.2022 vide Annexure-B to the 2nd respondent stating that some unwanted persons nearby the school premises are creating nuisance to students by selling wine and tobacco products nearby school, which is a Tobacco free educational zone. After lapse of statutory period, the -4- NC: 2023:KHC-K:8406 WP No. 203241 of 2022 petitioner gave another representation to Respondent No.1 for Tobacco free educational zone on 11.8.2022 as per Annexure-C. 3.2 It is also case of the petitioner that some unwanted persons in the village encroached the school property and obstructed construction of the school compound and in this regard, he gave detailed representation dated 3.12.2021 as per Annexure-D before the 4th respondent alongwith necessary documents.
4. Despite these representations made by the petitioner, no action was taken by the respondents and the tobacco and other products prohibited under the COTPA Act are freely sold and distributed in the vicinity of the premises of the school, which is a tobacco free zone as per the COTPA Act. Left with no other alternative, the petitioner is perforced to file this petition seeking a writ of mandamus for a direction to the respondents to consider the representations dated 3.12.2021 and 28.4.2022 vide Annexures - D and B respectively.
5. At this stage, it is relevant to refer to Sections 4, 5 and 6 of the COTPA Act, which read as under:
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NC: 2023:KHC-K:8406 WP No. 203241 of 2022
4. Prohibition of smoking in a public place- No person shall smoke in any public place:
Provided that in a hotel having thirty rooms or a restaurant having seating capacity of thirty persons or more and in the airports, a separate provision for smoking area or space may be made.
5. Prohibition of advertisement of cigarettes and other tobacco products- (1) No person engaged in, or purported to be engaged in, the production, supply or distribution of cigarettes or any other tobacco products shall advertise and no person having control over a medium shall cause to be advertised cigarettes or any other tobacco products through that medium and no person shall take part in any advertisement which directly or indirectly suggests or promotes the use or consumption of cigarettes or any other tobacco products.
(2) No person, for any direct or indirect pecuniary benefit, shall-
(a) display, cause to display, or permit or authorise to display any advertisement of cigarettes or any other tobacco product; or
(b) sell or cause to sell, or permit or authorise to sell a film or video tape containing advertisement of cigarettes or any other tobacco product; or
(c) distribute, cause to distribute, or permit or authorise to distribute to the public any leaflet, hand-bill or document which is or which contains an advertisement of cigarettes or any other tobacco product; or
(d) erect, exhibit, fix or retain upon or over any land, building, wall, hoarding, frame, post or structure or upon or in any vehicle or shall display in any manner whatsoever in any place any advertisement of cigarettes or any other tobacco product:
Provided that this sub-section shall not apply in relation to-
(A) an advertisement of cigarettes or any other tobacco product in or on a package containing cigarettes or any other tobacco product;
(B) advertisement of cigarettes or any other tobacco product which is displayed at the entrance or inside a -6- NC: 2023:KHC-K:8406 WP No. 203241 of 2022 warehouse or a shop where cigarettes and any other tobacco products are offered for distribution or sale.
(3) No person, shall, under a contract or otherwise promote or agree to promote the use or consumption of-
(a) cigarettes or any other tobacco product; or
(b) any trade mark or brand name of cigarettes or any other tobacco product in exchange for a sponsorship, gift, prize or scholarship given or agreed to be given by another person.
6. Prohibition on sale of cigarette or other tobacco products to a person below the age of eighteen years and in particular area-No person shall sell, offer for sale, or permit sale of, cigarette or any other tobacco product-
(a) to any person who is under eighteen years of age, and
(b) in an area within a radius of one hundred yards of any educational institution.
6. Section 4 of the COTPA Act deals with prohibition of smoking in a public place; Section 5 deals with prohibition of advertisement of cigarettes and other tobacco products; and Section 6 deals with prohibition on sale of cigarettes or other tobacco products to a person below the age of eighteen years and in particular area.
7. The object of the COTPA Act is prohibition of sale of tobacco products, more particularly near schools and educational institutions. The Act has also provided punishment -7- NC: 2023:KHC-K:8406 WP No. 203241 of 2022 for contravention of Sections 4 & 5 of the COTPA Act by way of imprisonment. This being the state of affairs and representations having not been considered, it is incumbent upon the respondent/statutory authorities to act immediately and consider representations and pass suitable orders without any further delay, otherwise it would hamper and destroy the career and life of the students studying in the nearby schools.
8. Learned High Court Government Pleader representing the State agrees with the intent and object of the COTPA Act and submits that the representations would be considered within a reasonable time and pass suitable orders.
9. Placing the submission of learned High Court Government Pleader on record and having found that the representations of the petitioner were not considered and no action has been take in the light of the object of the COTPA Act, I deem it appropriate to pass the following:
ORDE R A Writ of Mandamus is issued directing the respondents to consider the representations dated 3.12.2021 and 28.4.2022 -8- NC: 2023:KHC-K:8406 WP No. 203241 of 2022 vide Annexures - 'D' and 'B' respectively and pass suitable orders in accordance with law within an outer limit of four weeks from the date of receipt of certified copy of the order.
Accordingly, the writ petition is disposed of.
Sd/-
JUDGE GSS List No.: 1 Sl No.: 54