# NARINDER S. CHADHA & ORS v. MUNICIPAL CORPORATION OF GREATER MUMBAI & ORS - **Citation:** [2014] 12 S.C.R. 817 - **Court:** Supreme Court of India - **Decided:** 2014-12-08 - **Case number:** Civil Appeal No. 10836 of 2014 - **Bench:** RANJAN GOGOi, R.F. Nariman - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/narinder-s-chadha-ors-v-municipal-corporation-of-greater-mumbai-ors-29602 - **Pages:** 28 ## Headnote A B Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, C Production, Supply and Distribution) Act, 2003: s. 6 rlw the Rules framed under the Act - Circular dated 04.07.2011 - Issued by Municipal Corporation - Adding conditions in General Conditions of licence issued uls. 394 0 of Mumbai Municipal Corporation Act - Validity of the conditions - Held: s.6 of the Act lays down the condition prohibiting sale of cigarettes - Any condition which prohibits sale of cigarettes/tobacco products in the premises licenced by Municipal Corporation would amount to adding another E exception, which is not permissible in law - The condition No.35(C) would be ultra vires the Act and the Rules framed thereunder - However, sub-clauses (DJ and (E) of condition No. 35 are valid - Prohibition of smoking in Public Places Rules, 2008 - rr.4(3) and 3(1)(c) - Mumbai Municipal F Corporation Act, 1888 - s.394. s.3(m) - 'Sale' - Definition of- Interpretation - Held: The definition being exhaustive, would not include 'service' within its ambit. s. 6 rlw the Rules framed under the Act - Notice dated 5th July, 2011 -Issued under s.44 of Tamil Nadu Public Health Act, 1939 - Preventing hotel/restaurant owner from providing tobacco to persons (not minors) and prohibiting Hookah Bars G 817 H 818 SUPREME COURT REPORTS [2014] 12 S.C.R. ,.....__ A within a radius of 300 ft. of an educational institution "- Validity· of - Held: The notice is ultra vires the Act and the Rules - Prohibition of Smoking in Public Places Rules, 2008 - Tamil Nadu Public Health Act, 1939 - s.44. B s. 6 rlw. the Rules framed under the Act - Order dated 14. 07.2011 - Issued u/s. 33 of Bombay Police Act rlw. s. 144 Cr.P.C - Prohibiting hookah bars - Validity of - Held: The word 'regulate' under the Police Act would not include the . . power to prohibit - Power u/s. 144 Cr.P.C. is for passing c temporary orders which cannot last beyond 2 months - Hence the order is not valid - Bombay Police Act, 1951 - s.33 - Code of Criminal Procedure, 1973 - s.144 - Prohibition of Smoking in Public Places Rules, 2008. Prohibition of Smoking in Public Places Rules, 2008 - D rr. 3 and 4- Applicability of - Discussed. Equity - Applicability of - 'Equity follows the law' - If the law is clear, no notions of equity can substitute the same. E Words and Phrases - 'Sale' and 'Service' - Meaning of, in the context of Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. Allowing the appeals, the Court F HELD: 1.1. Section 6 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply. and Distribution) Act, 2003 permits the sale of cigarettes G 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 H NARINDER S. CHADHA v. MUNICIPAL CORPORATION 819 OF GREATER MUMBAI Municipal Corporation would amount to adding another A exception which would be impermissible in law. [Para 12] [836-C-D] 1.2. It is not correct to say that the sale of tobacco or tobacco related products would amount to a service. It 8 is difficult conceptually to say that "sale" and "service" are interchangeable items. "Sale" is defined under the Act as meaning a transfer of property in goods for consideration. It is obvious that "sale" has to be understood in this sense, and properly so understood would not include "service" which would refer not to C transfer of property in goods but to "service" as is understood in its ordinary sense. [Paras 12 and 13] [836E-G] . Northern India Caterers (India) Ltd. v. Lt. Governor of D Delhi 1979 (1) SCR 557 - relied on. 1.3. In the present case, the well established distinction ## Text _Characters 0–39,942 of 48,698. This is a partial read: ask again with offset=39942 for what follows._ [2014] 12 S.C.R. 817 NARINDER S. CHADHA & ORS. v. MUNICIPAL CORPORATION OF GREATER MUMBAI & ORS. (Civil Appeal No. 10836 of 2014 Etc.) DECEMBER 08, 2014 [RANJAN GOGOi AND R.F. NARIMAN, JJ.] A B Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, C Production, Supply and Distribution) Act, 2003: s. 6 rlw the Rules framed under the Act - Circular dated 04.07.2011 - Issued by Municipal Corporation - Adding conditions in General Conditions of licence issued uls. 394 0 of Mumbai Municipal Corporation Act - Validity of the conditions - Held: s.6 of the Act lays down the condition prohibiting sale of cigarettes - Any condition which prohibits sale of cigarettes/tobacco products in the premises licenced by Municipal Corporation would amount to adding another E exception, which is not permissible in law - The condition No.35(C) would be ultra vires the Act and the Rules framed thereunder - However, sub-clauses (DJ and (E) of condition No. 35 are valid - Prohibition of smoking in Public Places Rules, 2008 - rr.4(3) and 3(1)(c) - Mumbai Municipal F Corporation Act, 1888 - s.394. s.3(m) - 'Sale' - Definition of- Interpretation - Held: The definition being exhaustive, would not include 'service' within its ambit. s. 6 rlw the Rules framed under the Act - Notice dated 5th July, 2011 -Issued under s.44 of Tamil Nadu Public Health Act, 1939 - Preventing hotel/restaurant owner from providing tobacco to persons (not minors) and prohibiting Hookah Bars G 817 H 818 SUPREME COURT REPORTS [2014] 12 S.C.R. ,.....__ A within a radius of 300 ft. of an educational institution "- Validity· of - Held: The notice is ultra vires the Act and the Rules - Prohibition of Smoking in Public Places Rules, 2008 - Tamil Nadu Public Health Act, 1939 - s.44. B s. 6 rlw. the Rules framed under the Act - Order dated 14. 07.2011 - Issued u/s. 33 of Bombay Police Act rlw. s. 144 Cr.P.C - Prohibiting hookah bars - Validity of - Held: The word 'regulate' under the Police Act would not include the . . power to prohibit - Power u/s. 144 Cr.P.C. is for passing c temporary orders which cannot last beyond 2 months - Hence the order is not valid - Bombay Police Act, 1951 - s.33 - Code of Criminal Procedure, 1973 - s.144 - Prohibition of Smoking in Public Places Rules, 2008. Prohibition of Smoking in Public Places Rules, 2008 - D rr. 3 and 4- Applicability of - Discussed. Equity - Applicability of - 'Equity follows the law' - If the law is clear, no notions of equity can substitute the same. E Words and Phrases - 'Sale' and 'Service' - Meaning of, in the context of Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. Allowing the appeals, the Court F HELD: 1.1. Section 6 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply. and Distribution) Act, 2003 permits the sale of cigarettes G 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 H NARINDER S. CHADHA v. MUNICIPAL CORPORATION 819 OF GREATER MUMBAI Municipal Corporation would amount to adding another A exception which would be impermissible in law. [Para 12] [836-C-D] 1.2. It is not correct to say that the sale of tobacco or tobacco related products would amount to a service. It 8 is difficult conceptually to say that "sale" and "service" are interchangeable items. "Sale" is defined under the Act as meaning a transfer of property in goods for consideration. It is obvious that "sale" has to be understood in this sense, and properly so understood would not include "service" which would refer not to C transfer of property in goods but to "service" as is understood in its ordinary sense. [Paras 12 and 13] [836E-G] . Northern India Caterers (India) Ltd. v. Lt. Governor of D Delhi 1979 (1) SCR 557 - relied on. 1.3. 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) of the Cigarettes Act. The definition is a "means" and "includes" one. Such definition is an exhaustive definition. There is thus, no scope to include "service" in such a definition. [Para 13] [839-E-G] · E P. Kasilingam and others v. P. S. G. College of F Technology and others 1995 (2) SCR 1061: 1995 Supp (2) sec 348 - relied on. 1.4. Even if it is accepted that 'sale' would amount to 'service', Rule 4(3) of Prohibition of Smoking in Public G Places Rules, 2008 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 H 820 SUPREME COURT REPORTS (2014] 12 S.C.R. A Section 6. It is, thus, clear that this condition would be ultra vires the Cigarettes Act and the Rules properly .so read. [Para 13] [839-G-H] 1.5 Condition No. 35(C) of the impugned circular B essentially reproduces Rule 4(3) of the Rules and then adds the words "or any apparatus designed to facilitate smoking". The effec~ of the added words is that a Ho.okah cannot be provided by the hotel, restaurant or airport being an apparatus designed to facilitate smoking. It C cannot be said thatthe Hookah would be "other things" designed to facilitate smoking which would be prohibited under Rule 3(1)(c). 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 D prohibition of smoking in all public places. On the other hand, where smoking is allowed in a smoking area or space, sub-rule (3) of Rule 4 ma.kes it clear that such place can be used for the purpose of "smoking". Under Rule 2(f) words and expressions not defined in these E Rules but defined in the Act shall have the meanings, respectively, assigned to them in the Act. The definition of "smoking" contained in Section 3(n) o"i the Act includes smoking of tobacco in any form with the aid of a pipe, wrapper, or any other instrument, which would F obviously include a Hookatt, That being the case, "smoking" with a Hookah would be permissible under Rule 4(3) and the expression ... no other service shall be allowed" obviously refers to services other than the providing ofa Hookah. It is, thus, evident that the added G words in clause (C) of Condition No.35 are clearly ultra vires the Act and the Rules. 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). [Paras 14, 15, 16, 17, 18 and 19] [840-A-H; H 841-A-B] F NARINDER S. CHADHA v. MUNICIPAL CORPORATION 821 OF GREATER MUMBAI 1.6. Sub-clauses (D) and (E) of Condition No. 35 are A regulations relatable to buildings which is a purely municipal function within the Municipal Corporation's ken. There is no challenge to the dimensions of the smoking area set out in these sub-clauses. So far as these conditions are concerned, the dimensions set out B in (D) and (E)' will have to be followed in all cases. [Para 20] [841-C, D] 2. The notice dated 5th July, 2011 is ultra vires the Cigarettes Act and the Rules made thereunder as it prevents the owner of the hotel/restaurant from providing C tobacco to persons who are not minors and asking such persons affirmatively 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 D impugned notice. [Para 23] [841-G, H; 842-A] 3. Order dated 14th July, 2011, purportedly made under Section 33 of the Bombay Police Act read with Section 144 Cr.P;C. prohibited hotels and restaurants from providing the facility of hookah and prohibited E hookah bars. The Division Bench of High Court · concluded 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". The word "regulate" would not include the F power to prohibit. Further, Section 144 Cr.P.C provides a power to grant only temporary orders which cannot last beyond 2 months from the making thereof. If Section 144 is to be invoked, the order dated 14th July, 2011 would have expired 2 months thereafter. The High Court stated G that while administering the law, it is to be tempered with equity. One of the maxims of equity is that ·equity follows the law'. If the law is clear, no notions of equity can substitute the same. [Paras 24, 25 and 26] [842-B-C; 843B-C; 844-D, E] H 824 SUPREME COURT REPORTS [2014] 12 S.C.R. A Himat Lal K. Shah v. Commissioner of Police, Ahmedabad 1973 (2) SCR 266: ,1973 (1) SCC 227 - relied on. Godawat Pan Masala Products l.P. ·Ltd. & Anr. v. Union B of India & Ors. 2004 (3) Suppl. SCR 239: (2004) 7 SCC 68; Bajinath Kedia v. State of Bihar & Ors. 1970'(2) SCR 100: 1969 (3) sec 838; 1989 (2) SCR 92:, 1989 (2) sec 541 - cited. Case L:.aw Reference: c 2004 (3) Suppl. SCR 239 cited Para 3 1970 (2) SCR 100 cited Para 3 1989 (2) SCR 92 cited Para 3 D 1979 (1) SCR 557 relied on Para 13 1995 (2) SCR 1061 relied on Para 13 1973 (2) SCR 266 relied on Para 24 E CIVIL APPELLATE JURISDICTION : Civil 'Appeal No. F G H 10836 of 2014. From the Judgment and Order dated 11-08-2011 of the High Court of Judicature at Bombay in Writ Petition {Lodging) No. 1540 of 2011. WITH Civil Appeal Nos. 10837-10839, 10840, 10841-10843, 1084410845 and 10846 of 2014 · Pinky Anand, ASG, Chander Uday Singh, R.P. Bhatt, R.S. Suri, Sajan Poovayya, Rohan Thawani, Hardeep Singh Anand, Anand Daga, Vandana Sehgal, Shikha Sachdev, Navin Chawla, Arpit Maheshwari, Ketan Paul, Nakul Dewan, Mrigank Prabhakar, Faraz Maqbool, Ejaz Maqbool, Pradhuman, Gohil, NARINDER S. CHADHA v. MUNICIPf.L CORPORATION 823 OF GREATER MUMBAI Vikash Singh, Ms. Taruna Singh Gohil, Jaikriti S .. Jadeja, A Sunder Khatri, Shital Khatri, Rajesh Goyal, J.J. Xavier, Bhargava V. Desai, VishaLChaudhary, Shailender Saini, Ms. Sadhana Sandhu, D.S. Mahra, Sushma Suri, Rahul Malhotra, Simar Suri, G. Suri, Chanchal Kumar Ganguli, Ajay Aggarwal, Kanika Gamber, Ruchika, Sumit Attri, Priyadarshi Banerjee, B Prabal Mehrotra, Rajan Narain, M. Yogesh Kanna, Santha Kumaran, J. Janani, Lalit Bhasin, Nina Gupta, Mudit Sharma, Parvez A. Khan, Shirin Khajuria for the appearing parties. The Judgment of the Court was delivered by R.F. NARIMAN, J. 1. Leave granted, 2. In this batch of matters, we are concerned with the Municipal Corporations of various cities implementing the c Cigarettes and other Tobacco Products D {Prohibition of Advertisement and Regul~tion of Trade and Commerce, Production, Supply & Distribution) Act, 2003. In the first case before us, namely, civil appeal arising out of SLP{C) No.30832 of 2011 - Narinder S. Chadha and others v. Municipal Corporation of Greater Mumbai and others, a E judgment of the Bombay High Court dated 11th August, 2011 disposed of a writ petition in which several wide ranging contentions were urged, and ultimately decided that the impugned circular dated 4th July, 2011 only implemented the Cigarettes and other Tobacco Products (Prohibition of F Advertisement and Regulation of Trade and Commerce, Production, Supply & Distribution) Act, 2003 (hereinafter referred to as the "Cigarettes Act") and the Prohibition of Smoking in Public Places Rules, 2008 {hereinafter referred to as the "Rules") and dismissed the challenge to the said circular. Similarly, in cases arising from Chennai and Ahmedabad, G similar circulars/notices were under challenge and in both the impugned judgments in SLP(C) Nos.19247-19248 of 2012 (Temperature etc. v. Deputy Police Commissioner, Zone-1 Ahmedabad and Others) and SLP(C) No.8143 of 2014 H 824 SUPREME COURT REPORTS [2014] 12 S.C.R. A (Robustaa (Hyglow Cafe) v. The Commissioner Corporation of Chennai and others), the Gujarat and Madras High Courts followed the Bombay High Court judgment dated 11th August, 2011 ·and, consequently, dismissed the writ petitions filed before them. It is from these three judgments that appeals have B been preferred. · 3. Mr. C.U. Singh, learned senior advocate appearing on ·behalf of the appellants in the civil appeal arising out of SLP(C) No.30832 of 2011 . made wide ranging arguments on the genesis of the .Cigarettes Act and the fact that it was legislation C made under Entry 52 List I read with Entry 33 List Ill of the 7th Schedule to the Constitution of India. He cited Godawat Pan Masala Products l.P. Ltd. & Anr. v. Union of India & Ors., (2004) 7 sec 68, particularly the concluding paragraph 77 (6) stating that the Cigarettes Act is a special Act dealing only with D 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 E 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 F statutory rules. Ultimately, however, he contenqed that there were three features of the impugned circular which required to be struck down being ultra vires the Cigarettes Act and ihe Rules made therein. 4. The first condition did not allow a licensee of a G restaurant to keep or sell or provide any tobacco or tobacco H · related products in any form in the licenced premises. This, according to him, was contrary to Section 6 of the Cigarettes Act and the Rules made thereunder. Further, smoking areas which are to be used only for the purpose of smoking cannot NARINDER S. CHADHA v. MUNICIPAL CORPORATION 825 OF GREATER MUMBAI [R.F. NARIMAN, J.) have any apparatus designed to facilitate smoking. This in hisA respectful submission puts a bar on Hookah smoking and is also outsid.e the scope of the Cigarettes Act read with the Rules. Further, smoking area dimensions laid down in paragraphs (D) and (E) of Condition No.35 were also conditions which one did not find either in the Cigarettes Act B or in the Rules made thereunder and, hence, were ultra vires. Other learned counsel appearing for other appellants and interveners adopted the arguments of Shri Singh. 5. Mr. R.P. Bhatt, learned senior counsel appearing for the C Municipal Corporation of Greater Mumbai argued before us that on a true reading of the Cigarettes Act and the Rules made thereunder, all that the added conditions did was to implement the Cigarettes Act and the Rules and on a true construction of the Act and Rules nothing was really added to what is already . there. Miss Pinky Anand, learned Additional Solicitor General D appearing on behalf of the Union, broadly supported Mr. Bhatt's stand. 6. In view of the rival contentions, the point that needs to be decided in this case is in a narrow compass. We have E basically to see whether the impugned circular dated 4th July, 2011 travels outside the Cigarettes Act and the Rules or merely seeks to implement the said Act and the Rules as they stand. 7. For a determination of this case, it will be necessary to set out the relevant statutory provisions. First, the Cigarettes Act- "Section 3- Definitions. - In this Act, unless the context otherwise requires,- (k) "production", with its grammatical variations and cognate expressions, includes the making of cigarettes, cigars, cheroots, beedis, cigarette tobacco, pipe tobacco, hookah tobacco, chewing tobacco, pan masala or any F G H 826 SUPREME COURT REPORTS (2014] 12 S.C.R. A chewing material having tobacco as one of its ingredients (by whatever name called) or snuff and shall includeB c D E F G H ... (i) Packing, labeling or re-labelling, of containers; (ii) Re-packing from bulk packages to retail packages; and (iii) The adoption of any other method to render the tobacco product marketable; · (I) "public place" means any place to which the public have access, whether as of right or not, and includes auditorium, hospital buildings, railway waiting room, amusement centres, restaurants, publicl 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." 1. Cigarettes 2. Cigars 3. Cheroots "THE SCHEDULE [See Section 3(p)] NARINDER S. CHADHA v. MUNICIPAL CORPORATION 827 OF GREATER MUMBAI [R.F. NARIMAN, J,] 4. Beedis 5. Cigarette tobacco, pipe tobacco and hookah tobacco 6. Chewing Tobacco 7.Snuff 8. Pan masala or any chewing material hailing 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: A B c Provided that in a hotel having thirty -rooms or a D restaurant having seating capacity of thirty persons or more and in the airports, a separate provision for smoking area or space may be made. Section 6. Prohibition on sale of cigarettes or other E tobacco products to a person below the age of eighteen years and in particular areas.- 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. F Section 21. Punishment for smoking in certain G places.- (1) Whoever contravenes the provisions of section 4 shall be punishable with fine which may extend to two hundred rupees. H A B c D E F G H 82.8 SUPREME COURT REPORTS [2014) 12 S.C.R. (2) An offence under this section shall be compoundable and shall be tried summarily in accordance with the procedure provided for summary trials in the Code of Criminal Procedure, 1973 (2 of 1974). Section 24. Punishment for sale of cigarette or any other tobacco products in certain places or to persons below the age of eighteen years.- (1) Any person who contravenes the provisions of section 6 shall be guilty of an offence under this Act and shall be punishable with fine which may extend to two hundred rupees. (2) All offences under this section shall be compoundable and shall be tried summarily in accordance with the procedure provided for summary trials in the Code of Criminal Procedure, 1973 (2 of 1974). Section 31. Power of the Central Government to make rules.- (1) The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act. (2) Without prejudice to the generality of the foregoing power, such rules may.provide for all or any of the following matters, namely: - (a) specify the form and manner in which warning shall be given in respect of cigarettes or other tobacco products under clause ( o) of section 3; (b) specify the maximum permissible nicotine and tar contents in cigarettes or other tobacco products under the proviso to sub-section ~5) of section 7; (c) specify the manner in which the specified warning shall be inscribed on each package of cigarettes or other tobacco products or its label under sub-section (2) of NARINDER S. CHADHA v. MUNICIPAL CORPORATION 829 OF GREATER MUMBAI [R.F. NARIMAN, J.] section 8; (d) specify the height of the letter or figure or both to be used in specified warning or to indicate the nicotine and tar contents in cigarettes or other tobacco prod_ucts under section 10; • (e) provide for the manner in which entry into and search A B 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 C 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. o (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 E 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 F notification shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or notification." G The Prohibition of Smoking in Public Places Rules, 2008 are also relevant. H 830 SUPREME COURT.REPORTS [2014] 12 S.C.R. A "2. Definitions.-lri these rules, unless the context otherwise requires,- B. (d} "public place" defined in Section 3(1} of the Act shall also include work places, shopping malls, and cinema halls. (e} "smoking area or space" mentioned in the proviso to Section 4 of the Act shall mean a separately ventilated smoking room !hate (i) is physically separated and surrounded by full height walls on all .four sides; (ii) has an entrance with an automatically closing door normally kept in close position; D (iii) has an air flow system, as specified in schedule I, (iv) has negative air pressure in comparison with the E F G H remainder of the building. ' · (f) Words and expressions used herein and not defined in these rules but defined in the Act shall have the meanings, respectively, assigned to them in the Act. 3. Prohibition of smoking in a public place.~ (1) The owner, proprietor, manager, supervisor or in charge of the affairs of a public plaee shall ensure that: (a) No person smokes in' the public place (under his jurisdiction/implied). · · (b) The board as specified in schedule JI is displayed prominently at the entrance of the public place, in case there are more than one entrance at each such entrance and conspicuous place(s) inside. In case if there are more than one floor, at each floor including the staircase and entrance to the lift/s at each floor. NARINDER S. CHADHA v. MUNICIPAL CORPORATION 831 OF GREATER MUMBAI [R.F. NARIMAN, J.] (c) No ashtrays, matches, lighters or other things designed A to facilitate smoking are provided in the public place. (2) The owner, proprietor, manager, supervisor or incharge of the affairs of a public place shall notify and cause to be displayed prominently the name of the person(s) to whom 8 a complaint may be made by a person(s) who observes any person violating the provision of these Rules. (3) If the owner, proprietor, manager, supervisor or the authorized officer of a public place fails to act on report of such violation, the owner, proprietor, manager, supervisor C or the authorized officer shall be liable to pay fine. equivalent to the number of individual offences. 4. Hotels, Restaurants and Airports. - (1) The owner, proprietor, manager, supervisor or in-charge of the affairs 0 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 E 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 F purpose of smoking and no other service(s) shall be allowed. (4) The owner, proprietor, manager, supervisor or incharge of the affairs of a hotel having thirty or more rooms G 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 H 832 SUPREME COURT REPORTS [2014] 12 S.C.R. • A shall be in one floor/wing as the case may be. B (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-smoking areas of the hotel including lobbies and the corridors." c 8. The Cigarettes Act was really in implementation of World Health Assembly Resolutions and was enacted to put a total ban on advertising of tobacco products and to prevent the sale of tobacco products to minors. It is also legislation which seeks to implement Article 47 of the Constitution which reads 0 as under:- E F "47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.-· The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption,· except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health." 9. It all began vide an order dated 5th May, 2011 in a Public Interest Litigation which is No.111 of 2011 in which the Bombay High Court asked the Municipal Corporation to incorporate terms and conditions while issuing licences under G Section 479 of the Mumbai Municipal Corporation· Act so as to comply with the provisions of the Cigarettes Act and the Rules made thereunder. This was directed to be done within a period of six weeks. It is as a result of this direction that the impugned circular dated 4th July, 2011 was issued in which H NARINDER S. CHADHA v. MUNICIPAL CORPORATION 833 OF GREATER MUMBAI [R.F. NARIMAN, J.) Conditions 35 to 37 in general conditions of licence issued A under Section 394 of the Mumbai Municipal Corporation Act were to be added. These conditions read as under: "Condition No. 35: The· licensee shall not keep or allow to keep or sell or provide any tobacco or tobacco 8 related products in any form whether in the form of cigarette, cigar. bidis or otherwise with the aid of a pipe, wrapper or any other instrument in the licensed premises. The Commissioner may permit smoking area as per Section 4 of Cigarette and other Tobacco Products C (Prohibition of Advertisement and Regulation of Trade and Commerce Production Supply and Distribution) Act, 2003 (COTPA) in an eating house having seating capacity of. thirty persons or more. A) The smoking area shall mean separately ventilated smoking room that: i. is physically separated and surrounded by full height walls on all four sides. ii. has an entrance with an automatically closing doors normally kept in close position. iii. has an air flow system that a. is exhausted directly to the ou.tside and not mixed back into the supply air for the other parts of the building. .. D E F b. is fitted with a non-recirculation exhaust ventilation system or an air cleaning system, or by G a combination of the two, to ensure that the air discharges only in a manner that does not recirculate or transfer it from a smoking area or space to non-smoking areas. H A B c D E F G H 834 SUPREME COURT REPORTS [2014] 12 S.C.R. iv. has negative air pressure in comparison with the remainder of the building. B) The smoi