TOBACCO CONTROL LAWS

Berrys Hotel (MOCHA), et al. v. Municipal Corporation of Greater Mumbai, et al.

Owners of restaurants filed a petition to challenge the legality of a circular issued by the Municipal Corporation of Mumbai, which imposed conditions for "eating house" licenses. These conditions prohibited the sale of tobacco or tobacco-related products in any form and the presence of any device designed to facilitate smoking in smoking areas. The restaurant owners argued that the government did not have the right to impose such restrictions as they amounted to a total ban on the sale of tobacco products, exceeding the power provided by India's tobacco control law. The petitioners further claimed that providing hookahs did not fall within the restrictions and that hookah smoking is not dangerous or injurious to public health. The Court affirmed that the respondents had the power to impose conditions consistent with India's tobacco control law.  The Court dismissed the petitions and upheld the circular, finding no merit to the contention that the Mumbai cannot impose conditions in the licenses issued to eating houses which have the effect of enforcing provisions of India's tobacco control law.

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Berrys Hotel (MOCHA), et al. v. Municipal Corporation of Greater Mumbai, et al., N° wp-L-1531-2011, High Court of Judicature at Bombay Ordinary Original Civil Jurisdiction (2011).

  • India
  • Aug 11, 2011
  • High Court of Judicature at Bombay
View Case History

Parties

Plaintiff

  • Berry's Hotel Pvt.Ltd. (MOCHA)
  • Devendra Mahendra Sanghvi
  • Harshad Sanjay Shah
  • Maestro Entertainment & Hospitality Pvt.Ltd. (MOCHA)
  • Munib Abdul Hamid Birya of Mumbai
  • Narinder S. Chadha
  • Pankaj Harisingh Rathod
  • Suneet S. Chadha

Defendant

  • Crusade Against Tobacco (A Branch of Neil Charitable Trust), through its Chairman Mr. Vincent Nazareth
  • The Commissioner of Police
  • The Commissioner, Food & Drug Administration
  • The Executive Health Officer
  • The Medical Officer of Health
  • The Municipal Commissioner of Greater Mumbai
  • The Municipal Corporation of Greater Mumbai
  • The State of Maharashtra
  • Union of India, through the Secretary, Ministry of Health & Family Welfare

Legislation Cited

Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003

Ministry of Health and Family Welfare Notification G.S.R. 417(E), May 30, 2008

International/Regional Instruments Cited

Resolution of the 39th World Health Assembly on 15 May 1986 (WHA39.14)

Related Documents

None

Type of Litigation

Challenge to Government Policies Relating to Tobacco Control/Public Health
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.

Tobacco Control Topics

Smoke Free Measures
Measures to reduce or eliminate exposure to tobacco smoke. (See FCTC Art. 8)

Substantive Issues

Right to Health
A violation of the right to the enjoyment of the highest attainable standard of health. Public health advocates may claim the public’s right to health is violated by weak tobacco control measures, industry tactics, or an organization’s or smokers’ actions.
Right to Commerce
A violation of the right to carry on trade, business, or profession of a person’s choice. This right may also be called the right to free enterprise or economic freedom. The industry may argue that a business should be able to conduct its business without government regulation, including whether or not to be smoke free.
Tobacco Control Law Violation
A claim of a violation of a tobacco control law or statute.
Ultra Vires Regulation
Subsequent regulations exceed the scope of the originating law.

Type of Tobacco Product

Hookah, shisha, and water pipes
A single or multi-stemmed instrument for vaporizing and smoking flavored tobacco (shisha or sheesha) or other products in which the vapor or smoke is passed through a water basin ‒ often glass-based ‒ before inhalation. Water pipes are known by a variety of names such as hookah, huqqah, nargilah, nargile, arghila, and qalyan.
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