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.
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).
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.
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.
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.
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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"The impugned circular of the Municipal Corporation was issued to prohibit a restaurant having licence of an eating house under the MMC Act, 1888 from providing any services in the smoking area of a restaurant and to prohibit any apparatus like hookah being provided in the smoking area of a restaurant. As already held by us in our order dated 13 July, 2011, Hookah is more than a device which facilitates smoking because it is a gadget or apparatus though which a person smokes. Providing an apparatus like hookah to young boys and girls with impressionable mind, even if they are above 18 years of age, is not merely giving them a facility to smoke, but luring them to smoke tobacco lying in the hookah to get addicted to smoking tobacco.
In PIL 118 of 2010, our attention was invited by the PIL petitioner and by the police authorities that a large number of young college students and even children below 18 years of age are getting addicted to smoking tobacco through hookah. The circular of the Municipal Corporation, thus, merely seeks to implement the provisions of COTPA, 2003. The provisions of section 394(1)(b) and (1)(e) of the MMC Act, 1888 empower the Commissioner to impose conditions subject to which the restaurant owner can carry on the trade or keep any article which, in the opinion of the Commissioner, is dangerous to life, health or property."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
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.