2023:BHC-OS:3725-DB

504.WPL11498_2023.DOC-f.doc

Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION (L) NO. 11498 OF 2023

Sayli B. Parkhi … Petitioner

Versus

State of Maharashtra & Ors. …Respondents

Mr. Mayur Khandeparkar a/w. Mr. Vikramjit Garewal, Mr. Ajinkya

Udhane, Ms. Vinali Bhaidkar i/b. Mrs. Pushpanjali Arora for the
petitioner.
Mr. Amit Shastri, AGP for respondent no. 1.
Mr. Kunal Waghmare for MCGM.
_______________________
CORAM: G. S. KULKARNI
& R.N. LADDHA, JJ.
DATED: 24 April, 2023
_______________________

ORAL ORDER (Per G.S. Kulkarni, J.)

1. Not on board. Upon mentioning, taken on board on a praecipe as

moved on behalf of the petitioner.

2. The question which falls for consideration is whether the petitioner

under the terms of a Eating House License granted to her by the

Municipal Corporation, would permit serving of “Hookah” or what is

claimed as “Herbal Hookah”.

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3. The petitioner has described herself to be an entrepreneur carrying

on business under the name and style of M/s.Parkhi Hospitalities and is

running a Restaurant/Lounge named “The Orange Mint” at 16 C, Asha

Studio, S. T. Road, Chembur, Mumbai.

4. This petition is moved praying for a relief that the impugned order

dated 18 April, 2023 passed by the Medical Officer Health, M/West

Ward, directing the petitioner that if within 7 days from the date of said

order, activity of serving Hookah/Herbal Hookah, in the service area, by

using burnt charcoal, if is found to be continued by the petitioner, the

eating house license granted to the petitioner shall be cancelled/revoked,

without any further notice.

5. The impugned order is passed on the backdrop of an earlier Writ

Petition filed by the petitioner, being Writ Petition No.501 of 2023. The

case of the Municipal Corporation is that two show-cause notices were

issued to the petitioner. First show-cause notice was issued on 20

September, 2022 and the second show-cause notice was dated 1 February,

2023. The show cause notices were in relation to the objectionable activity

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of the petitioner of serving Hookah, stated by the petitioner to be Herbal

Hookah.

6. The Municipal Corporation has taken a stand that granting of a

eating house license under section 394 of Mumbai Municipal Corporation

Act, 1888 (for short “M.M.C. Act”) would not permit the petitioner to

conduct any Hookah activity including serving of Herbal Hookah.

Accordingly, such show cause notices came to be issued, which were

subject matter of Writ Petition No.501 of 2023. A co-ordinate Bench of

this Court, after hearing the parties disposed of the said Writ Petition by

order dated 13 February, 2023 directing that the issues be decided by

passing an order on the show cause notices. The said order passed by this

Court reads thus:

ORDER

1. Rule. Rule made returnable forthwith.

2. Heard learned counsel for the parties.

3. At the outset, the learned Counsel for the Petitioner has

tendered draft amendment, seeking leave to raise challenge to the
show cause notice dated 1st February, 2023 that has been issued
during pendency of the proceedings. The amendment is granted. It
be carried out forthwith. Re-verification is dispensed with.

4. It is the case of the Petitioner that, she is proprietor of the

restaurant, which is serving Herbal Hookah. The Respondent No.7,
who claims to be a Social Activist, had filed complaint against the
Petitioner with the Municipal Corporation, pursuant to which

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restaurant of the Petitioner was inspected and further notices were

issued. One of the notices issued to the Petitioner is dated 28th
September, 2022 stating therein that license condition Nos.8 and 12
had been breached. The Petitioner filed reply to the said notice and
the Deputy Municipal Commissioner, on 21st November, 2022,
directed the concerned Officer to get a clarification in the matter
insofar as, activity of permitting Herbal Hookah was concerned. It is
thereafter that the fresh show cause notice dated 1st February, 2023
has been issued.

5. The Petitioner submits that the show cause notice has been
issued without any due authority of law and it is urged that the
provisions of Section 394 of the Mumbai Municipal Corporation
Act, 1888 are not attracted.

6. We find that the order under challenge is only a show cause

notice which has been issued to the Petitioner. If, the Petitioner raises
any permissible ground to indicate that the show cause notice is not
justified, it would be for the Municipal Corporation to consider the
same and take a decision thereon. The interest of justice would be
served by issuing the following directions:

i) The Petitioner shall, within a period of ten days from

today, submit her reply to all the show cause notices including
the show cause notice dated 1st February, 2023.

ii) The Medical Health Officer of the MCGM shall grant

an opportunity of hearing to the Petitioner and thereafter take
a decision on the said show cause notice within a period of
four weeks from grant of such hearing to the Petitioner. The
Medical Health Officer is free to consider whether the
representation of the Respondent No.7 deserves consideration
or not.

iii) The decision taken by the Medical Health Officer, be

communicated to the Petitioner accordingly. Without
prejudice to the rights and contentions of either parties, if any
adverse order is passed by the Medical Health Officer, the
same shall not be given effect to for a period of seven days
from the date of service of the order on the Petitioner.

iv. Keeping all challenges on merits open, the Writ Petition

is disposed of with the aforesaid directions. Rule accordingly.
No costs.”
(emphasis supplied)

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7. On the above backdrop, the impugned order has been passed after

hearing the petitioner, inter alia directing the petitioner to stop serving

hookah, failing which the eating house license shall be cancelled.

8. The petitioner has raised two fold contentions, firstly, that the

impugned order does not furnish reasons and secondly, the impugned

order is illegal in as much what is stated in the show cause notice was an

objection of breach of condition nos. 8 and 12, which would not pertain to

any Hookah activity.

9. We have perused the record. The record contains an inspection

report of the Public Health Department of Municipal Corporation dated

18 August, 2022. The inspection report has categorically observed that

the petitioner is serving Herbal Hookah using flame or burnt charcoal at

the service area of the petitioner’s eating house. Such inspection report

called upon the petitioner to rectify the said activity within seven days,

failing which legal action under section 394 of M.M.C. Act shall be

initiated. The relevant extract of the inspection report is required to be

noted, which reads thus:

“Infringement of license condition under section 394 of MMC

Act.

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Findings -The above mentioned trade was inspected on

18/08/2022 at 2.40 p.m. when Vishruth Ashok Sharma, Age 33
yrs., Manager, was present and found following license condition
infringed.

General condition no. 6 -License is not exhibited in the trade

premises. 8- Serving Herbal Hookah using flame or burnt charcoal
at service area.

You are therefore directed to rectify the above mentioned condi-

tions within 7 (seven) days from the date of reeipt of I.R., failing
which legal action under section 394 of MMC Act will be initiated
against you which may please note. Explained in Marthi/Hindi
Language.”

10. A second inspection was undertaken and an Inspection Report

dated 16 September, 2022 was prepared, which refers to the Hookah

activity being conducted by the petitioner. The relevant extract of the

inspection report reads thus:

“Infringement of license condition under section 394 of MMC Act

(Eating House)

Findings -The above mentioned trade, Eating House was inspected

on 16/09/2022 at 4.55 p.m. when Mr. Vishruth Ashok Sharma,
Age 33 yrs., Manager, was present and found following license
condition infringed.

General condition no. 8- Serving Herbal Hookah using flame or

burnt charcoal at service area; 12- Serving the Hookah, other than
permitted license which was issued for eating house only.

You are therefore directed to rectify the above mentioned

conditions within 7 (seven) days from the date of reeipt of I.R.,
failing which legal action under section 394 of MMC Act will be

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initiated against you which may please note. Explained in Marthi

Language.”

11. There is a third Inspection Report dated 12 January, 2023 which

categorically refers to the petitioner conducting an activity of smoking

Hookha which was not the permitted activity of an Eating House. It was

observed that the trade activity, i.e. smoking may cause fire or otherwise

endanger the public safety. The relevant extract of the said inspection

report reads thus:

“Findings -
The above mentioned trade Eating House was visited and
inspected by me on on 12/01/2023 at 4.45 p.m. when Mr.
Vishruth Ashok Sharma, Age 33 yrs., person in charge was present
and found following license condition infringed.

General condition no. 12 -License is not exhibited in the trade

premises. 8- Serving Herbal Hookah using flame or burnt charcoal
at service area.

You are therefore directed to rectify the above mentioned

conditions within 7 (seven) days from the date of receipt of I.R.,
failing which legal action under section 394 of MMC Act will be
initiated against you.”

12. It is on such backdrop, the show-cause notice dated 20 September,

2022 was issued to the petitioner calling upon the petitioner to show

cause as to why Eating House license should not be revoked/cancelled in

the event the petitioner does not stop the other service activity using

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flame/burnt charcoal in the service area. In the said show-cause notice,

there is a clear reference to the violation by the petitioner of General

Condition no. 8-Using flame/burnt charcoal other than approved in Fire

condition in service area and a reference to General Condition no. 12 of

License – Conducting the other activity (other than permitted license).

The contents of the said show-cause notice are required to be noted, which

reads thus:

“SHOW CAUSE NOTICE

“ Above Eating House M/s. Parkhi Hospitalities (Orange

Mint), License No. 887780133, situated at 16C, Asha Studio,
S.T. Road, Chembur, Mumbai – 400 071 was inspected by
concern Sanitary Inspector on Dtd. 18.08.2022 and Dt.
16.09.2022. During inspection, following violations of License
conditions were observed:

1) General condition No. 8: Using flame/burnt

charcoal other than approved in Fire condition in service
area.
2) General condition No. 12: Conducting the other
activity (other than permitted license).

In view of above, you are hereby directed to submit your

explanation within 07 days why the license should not be
revoked/cancelled and to stop the other service activity using
flame/burnt charcoal in the service area, failure of which, you will
be liable for further necessary action of revocation, cancellation of
Eating House License without any further notice which you may
please note.”
(emphasis supplied)

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13. The second show cause notice dated 1 February, 2023 was on

similar lines which alleged breach of general condition no. 8, general

condition no. 12 and general condition no. 20. The contents of the said

show cause notice is required to be noted, which reads thus:

“SHOW CAUSE NOTICE NO. 2

Above Eating House M/s. Parkhi Hospitalities

(Orange Mint), License No. 887780133, situated at16 C, Asha
Studio, S.T. Road, Chembur, Mumbai ~ 400 071. The said License
was issued only for Eating House which may please note.

The Eating House was inspected by concern

Sanitary Inspector on Dtd. 18.08.2022, Dtd. 16.09.2022 and
Dtd. 12.01.2023 and issued Inspection Reports accordingly,
during these inspections following violations of the License
condition were observed:
1) General condition No. 8: Using flame/burnt charcoal
other than approved in Fire condition in service area.
2) General condition No. 12: Conducting the other
activity in the License area (activity which is other than
permitted license).
3) General condition No. 20: Endanger to public safety.

Show Cause Notice No. 1 was issued on Dtd. 20.09.2022

to yourself which may please be refer for which this office has
given sufficient time for rectification of the General Condition
No. 8 & 12. Even then as per the Reply Letter Dtd. 19.01.2023
with respective to I.R. No. 0008186 Dtd. 12.01.2023 your said
establishment still continue to violate condition no. 8 & 12.

In view of above, you are once again hereby directed

to submit your explanation within 07 days as to why the license
should not be revoked/ cancelled, failure of which you will be
liable for further necessary action of revocation/cancellation
without further notice which you may please note.”
(emphasis supplied)

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14. It is on such backdrop, the petitioner was heard by the Designated

officer in pursuance of the order dated 13 February, 2023 passed by the

co-ordinate Bench of this Court in Writ Petition No. 501 of 2023 (supra)

and the impugned order is passed.

15. The impugned order in detail has referred to the inspection reports

dated 18 August, 2022, 16 September, 2022 and 12 January, 2023 inter

alia observing that the Eating House conducting such activity of serving

Herbal Hookah by using burnt charcoal in the service area was directly in

violation of condition nos. 8, 12 and 20 of the General License

Conditions. On hearing the petitioner, it is observed by the Designated

Officer that the Herbal Hookah activity in the Eating House premises is

seriously objectionable, as it was endangering the public safety and putting

life at risk, thereby breaching General License Condition nos. 8 & 20.

The petitioner was accordingly directed to stop such activity within 7 days

from the issuance of such order, failing which further steps to

cancel/revoke the license of the eating house will be required to be taken.

The impugned order is required to be noted, which reads thus:

Office of the Medical Officer of Health

“M/West” Ward Office building,
Room No. 208, Second floor,

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Sharadbhau Acharya Marg, Chembur,

Mumbai – 400071.
E-mail : [email protected]

To,
Smt. Sayli Bhairavnath Parkhi,
M/s. Parkhi Hospitalities (Orange Mint),
16C, Asha Studio, S.T. Road,
Chembur, Mumbai – 400 071.

Sub.:Cancellation/Revocation of the Eating House Licence

No.887780133 - M/s. Parkhi Hospitalities (Orange Mint).

Ref.: 1. Court Order dated 13/02/2023 passed in the Writ

Petition No. 501of 2023 by Hon’ble Shri Justice
Chandurkar and Hon’ble Shri Justice Chandwani.
2. Hearing for M/s. Parkhi Hospitalities (Orange Mint)
vide letter dtd. ACMW/MOH/ SR-162/Dtd. 13.03.2939

The Eating House M/s. Parkhi Hospitalities (Orange Mint),

License No. 887780133, situated at 16 C, Asha Studio, S.T Road,
Chembur, Mumbai - 400 071. The said License was issued for
Eating House.

During the inspection dtd. 18.08.2022, 16.09.2022, 12.01.2023 it

has been observed that, the said Eating House conducting the activity
of Herbal Hookah by using burnt charcoal in the service area and
thereby directly violating the condition no. 8, 12 and 20 of the General
License Conditions, the same has been notified to you, through the
Inspection Reports (IR No. 0008068, 0008083 & 0008186).

The Show Cause Notices (Dtd. 20.09.2022 & 01.02.2023) which

was issued to you by this office were challenged by you in the Hon’ble
High Court vide Writ Petition No. 501 of 2023.

As per the Court order dated 13/02/2023 passed in the Writ Petition
No. 501 of 2023 by Hon’ble Shri Justice Chandurkar and Hon’ble Shri
Justice Chandwani, the reply of the show cause notices submitted by
you on 23.02.2023 has been received by this office on dtd.
23.02.2023 vide no. ACMW/MOH/018946.

With reference to above subject matter, the Hearing has been

conducted on 20/03/2023 by this office. In view of the hearing, this
office is of the opinion that Hookah activity, i.e., Herbal Hookah
activity in the Eating House premises is strongly objectionable as it is

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endangering to public safety and putting life at risk, thereby breaching

General License Condition No. 8 & 20.

In view of this, the following decisions is passed:

1) Only Eating House activity should be carried out

under the License No. 887780133 issued to the Eating House
– M/s. Parkhi Hospitalities (Orange Mint). No other activity
other than permitted License.

2) To stop the Hookah/Herbal Hookah activity at the

above Eating House License Premises.

As per the Hon’ble High Court Orders dated 13/02/2023

passed in Writ Petition No. 501 of 2023 by Hon’ble Justice Shri
Chandurkar and Hon’ble Justice Shri Chandwani, this office has
communicated the decision taken by Medical Officer of Health
M/West Ward by this letter.

After 07 days from the date of receipt of this letter, any other
activity (i.e. serving Hookah/Herbal Hookah in service area by using
burnt charcoal) if found continued by the said Eating House under the
License No. 887780133, the said License will be cancelled/revoked
without any further notice which you may please note.”
(emphasis supplied)

16. Mr. Khandeparkar, learned counsel for the petitioner has limited

contentions in assailing the impugned order. The objections are on

technical issues, firstly, that no reasons are given by the Designated

Officer/Municipal Corporation in passing the impugned order. In our

opinion, the reasons as contained in the impugned order are more than

sufficient to bring home the petitioner’s violation of the terms and

conditions of the licence, namely, that the objected activity was the

Hookah activity, which was the entire cause of concern, being the breach

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of the license conditions. We are, therefore, not inclined to accept the

contention as urged on behalf of the petitioner that the impugned order is

not a reasoned order. In our opinion, reasons as set out in the impugned

order are sufficient to indicate that the petitioner was in breach of the

license conditions in conducting the hookah activity. In the context in

hand, it is not expected from the licencing authority that unnecessarily

verbose lengthy order be passed as expected by the petitioner. Explicitly

setting out the breach of the terms and conditions of the license on the

basis of materials was certainly sufficient.

17. The second contention as urged on behalf of the petitioner is that

Section 394 of M.M.C. Act would not take within its ambit an issue in

relation to any Hookah activity. We have perused the provisions of

Section 394 of M.M.C. Act, which provides “for certain articles or animals

not to be kept, and certain trades, processes and operations not to be

carried on, without a licence and things liable to be seized, destroyed, etc.,

to prevent danger or nuisance”.

18. Section 394 of the MMC Act needs to be noted, which reads thus:

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Section 394 - Certain articles [or animals] not to be kept, and certain
trades, processes and operations not to be carried on, without a
licence; and things liable to be seized, destroyed, etc., to prevent
danger or nuisance

(1) Except under and in accordance with the terms and

conditions of the licence granted by the Commissioner, no person
shall -

(a) keep, or suffer or allow to be kept, in or upon any premises,

(i) any article specified in Part I of Schedule M; or,

(ii) any article specified in Part II of Schedule M, in

excess of the quantity therein specified as the maximum
quantity (or where such article is kept along with any
other article or articles specified in that Schedule, such
other maximum quantity as may be notified by the
Commissioner) of such article which may at any one
time be kept in or upon the same premises wirhout a
licence;

(b) keep, or suffer or allow to be kept, in or upon any

premises, for sale or for other than domestic use, any article
specified in Part III of Schedule M;

(c) keep, or suffer or allow to be kept, in or upon any

premises, horses, cattle or other four-footed animals for sale,
for letting out on hire or for any purpose for which any
charge is made or any remuneration is received, or for the
sale of any produce thereof;

(d) keep or use, or suffer or allow to be kept or used, in or

upon any premises, any article [or animal] which, in the
opinion of the Commissioner, is dangerous to life, health or
property, or likely to create a nuisance either from its nature
or by reason of the manner in which, or the conditions under
which, the same is, or is proposed to be, kept or used or
suffered or allowed to be kept or used;

(e) carry on, or allow or suffer to be carried on, in or upon

any premises,-
(i) any of the trades specified in Part IV of Schedule M,
or any process or operation connected with any such
trade;

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(ii) any trade, process or operation, which, in the

opinion of the Commissioner, is dangerous to life,
health or property, or likely to create a nuisance either
from its nature or by reason of the manner in which, or
the conditions under which, the same is, or is proposed
to be, carried on;

(f) carry on within [Brihan Mumbai] or use or allow to be

used any premises for, the trade or operation of a carrier.

(2) The State Government may, by notification in the Official

Gazette, add to, amend or delete any item in Schedule M and
thereupon, the said Schedule shall be deemed to be amended
accordingly but without prejudice to anything done or omitted to
be done before such amendment.

(3) A person shall be deemed-

(a) to have known that keeping any article [or animal] or

carrying on a trade, process or operation is, in the opinion of
the Commissioner, dangerous or likely to create a nuisance
within the meaning of clause (d) or, as the case may be,
paragraph (ii) of clause (e), of sub-section (1), after written
notice to that effect, signed by the Commissioner, has been
served on such person or affixed to the premises to which it
relates;

(b) to keep or to suffer or allow the keeping of an article [or

animal] or to carry on or to allow to be carried on a trade,
process or operation within the meaning of clause (d) or, as
the case may be, paragraph (ii) of clause (e) of subsection (1),
if he does any act in furtherance of keeping of such article or
animal or carrying on of such trade, process or operation or is
in any way engaged or concerned therein whether as
principal, agent, clerk, master, servant, workman,
handicraftsman, watchman or otherwise.

(4) If it appears to the Commissioner that the keeping of any

article [or animal] or the carrying on of any trade, process or
operation, in or upon any premises is dangerous or likely to
create a nuisance within the meaning of clause (d), or paragraph
(ii) of clause (e), of sub-section (1), the Commissioner may, by
written notice, require the person keeping the article [or animal]
or suffering or allowing it to be kept or the person carrying on

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the trade, process or operation or allowing it to be carried on, as

the case may be, to take such measures (including discontinuance
of the use of the premises for any such purpose) as may be
specified by him in such notice in order to prevent such danger
or nuisance; and if such measures are not taken within the
specified time, the Commissioner may seize and carry away or
seal such article [or animal] or any machinery or device used in
connection with such trade, process or operations. Any article [or
animal] or machinery or device so seized and carried away or
sealed may be redeemed, within a period of one month from the
date of seizure, on payment of such sum and subject to such
conditions as to future use or disposition of such article [or
animal], machinery or device as may be fixed by the
Commissioner in that behalf:

Provided that, if any article [or animal] so seized and

carried away or sealed is of an explosive or dangerous nature, the
Commissioner may by order in writing cause the same to be
forthwise destroyed or otherwise disposed of, as he thinks fit:

Provided further that, if any article [or animal] or

machinery or device so seized and carried away or sealed is not
claimed and redeemed by the owner or person found in
possession thereof, the Commissioner may by order in writing
cause the same to be sold by auction or otherwise disposed of as
he thinks fit, forthwith if the article [or animal] is of a perishable
nature, and in any other case after the expiry of the aforesaid
period of one month.

The proceeds of the sale or other disposal (if any) shall,

after defraying therefrom the cost of the sale or such disposal, be
paid to the owner or person found in possession of the article [or
animal] or machinery or device sold or disposed of.

(5) It shall be in the discretion of the Commissioner-

(a) to grant any licence referred to in sub section (1), subject

to such restrictions or conditions (if any), as he shall think fit
to specify, or

(b) for the purposes of ensuring public safety, to withhold

any such licence:

Provided that, the Commissioner when withholding any

such licence shall record his reasons in writing for such

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withholding and furnish the person concerned a copy of his

order containing the reasons for such withholding:

Provided further that, any person aggrieved by an order

of the Commissioner under this sub-section may, within sixty
days of the date of such order, appeal to the Chief Judge of the
Small Cause Court, whose decision shall be final.

(6) Every person to whom a licence is granted by the

Commissioner under subsection (5) shall-

(a) keep such licence in or upon the premises, if any, to

which it relates;

(b) put up a board outside such premises on a conspicuous

part, indicating thereon the nature of the article [or animal]
kept or the trade, process or operation carried on, in or upon
the premises, the municipal licence number, if any, in respect
thereof and the name and local address of the owner or
occupier or person in charge of the premises;

(c) put proper label on the packing or container of every

licensable article to indicate its name, contents and
hazardous nature.

(7) The Commissioner may from time to time with the approval
of [the Standing Committee] specially exempt from the
operation of this section any mills for spinning or weaving
cotton, wool, silk or jute or any other large mill or factory.”

(emphasis supplied)

19. On a bare reading of the provisions of Section 394, it is evident that

sub-section (1)(d) categorically provides that except under and in

accordance with the terms and conditions of the licence granted by the

Commissioner, no person shall keep or use, or suffer or allowed to be kept

or used, in or upon any premises, any article or animal, which, in the

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opinion of the Commissioner, is dangerous to life, health or property, or

likely to create a nuisance either from its nature or by reason of the

manner in which, or the conditions under which, the same is, or is

proposed to be, kept or used or suffered or allowed to be kept or used.

Further sub-section (3)(a) provides that a person shall be deemed to have

known that keeping any article or animal or carrying on a trade, process or

operation is in the opinion of the Commissioner, dangerous or likely to

create a nuisance within the meaning of clause (d) or, as the case may be,

paragraph (ii) of clause (e), of sub-section (1), after written notice to that

effect, signed by the Commissioner, has been served on such person or

affixed to the premises to which it relates. Sub-section (5) clearly provides

that it shall be in the discretion of the Commissioner to grant any licence

referred to in sub section (1), subject to such restrictions or conditions (if

any), as he shall think fit to specify and for the purposes of ensuring public

safety, to withhold any such licence. Proviso below sub-section (5) ordains

a remedy to the effect that if any person is aggrieved by an order of the

Commissioner under this sub-section may, within sixty days of the date of

such order, appeal to the Chief Judge of the Small Cause Court, whose

decision shall be final.

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20. In our opinion, on a holistic reading of Section 394 of the MMC

Act, the contention of the petitioner that the eating house license granted

to her permits “hookah activities” or conducting any “hookah parlour”

under the terms and conditions of the eating home license, is totally

untenable. The canvass of Section 394 of the MMC Act, is quite broad to

take within its ambit articles, trade, operations, which are dangerous to life,

health or which are likely to create nuisance, as quite extensively described

in the provision. The intention of the legislature can be derived from the

explicit wordings of the provision, when it takes within its ambit issues

inter alia in regard to articles, trade, process or operation which in the

opinion of the Commissioner are dangerous to life, health or property or

are likely to create nuisance “either from its nature” or by reason “of the

manner” in which or the conditions under which the same are or are

proposed to be used and carried on. Thus, a narrow interpretation cannot

be attributed to Section 394. It is also clearly seen from Section 394 that

it is the discretion of the Municipal Commissioner to grant an eating

house license, hence if the discretion is exercised by the Municipal

Commissioner within the parameters of law, there is no question of any

applicant for grant of the eating house license claiming any absolute legal

right to be entitled to a license. It also cannot be conceived that an activity

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which is not specifically permitted under the terms and conditions of

license, would be deemed to be included in any license conditions. Such

reading of the license conditions would lead to an absurdity.

21. It thus cannot be countenanced that grant of a license to conduct an

eating house is deemed to include a license to conduct Hookah activities.

Such cannot be the interpretation of Section 394 of the MMC Act. The

Municipal Commissioner in granting license is certainly required to apply

his mind to such issues which are dangerous to life, health or property of

the citizens, as also, on issues which are likely to create a nuisance either

from its nature or by reason of the manner in which, or the conditions

under which, the same are interalia used, kept or suffered, as clearly

ordained by Section 394(1)(d) of the MMC Act. In our opinion, in the

present case, the Municipal Commissioner, has appropriately exercised his

discretion and authority to prevent the petitioner from conducting the

smoking/Hookah activities of the nature carried out by the petitioner.

22. This apart, if the connotation of Section 394 of the MMC Act as

canvassed on behalf of the petitioner, is accepted, it would be nothing but

doing violence to the said provision, as such interpretation would mean

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that once an eating house license is granted, it would deem to include

permission to conduct activities of a hookah parlour, or other similar

activities. Certainly such object and intention of the legislature can neither

be derived nor attributed to the provisions of Section 394 of MMC Act.

Even otherwise, it may not be possible even for the eating house to control

the ingredients of the hookha once the apparatus is in the custody of the

customers. Illustratively, in a restaurant or eating house, where children,

women and elderly visit for refreshments/eating, it cannot be expected

that hookha is one of the menus being served and more particularly of the

category as offered by the petitioner using flame or burnt charcoal. This

would amount to an absolute nuisance in so far as an eating house is

concerned. Further, if this is to be a reality, the impact it would create on

such customers at the eating house can just be imagined.

23. We are thus not persuaded to accept any of the contentions as urged

on behalf of the petitioner. By the impugned order, the petitioner has

been rightly prevented from undertaking Hookah activities.

24. Mr. Khandeparkar has drawn our attention to an order dated 15

July, 2019 passed by the co-ordinate Bench of this Court in Criminal Writ

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Petition No. 2719 of 2019 in Ali Reza Abdi vs. The State of Maharashtra

& Ors. The observations as made in paragraph 9 of the said order are

relied upon by Mr.Khandeparkar, wherein the Division Bench in the

context of the criminal proceedings it was dealing, observed that the

Municipal Commissioner has taken a stand by stating that the hookha

parlours do not fall within the ambit of eating house and therefore do not

fall within the provision of Section 394 of the MMC Act. The Division

Bench then proceeded to make an observation on which emphasis is laid

by Mr.Khandeparkar that the contention of the Municipal Commissioner

appears to be the effect that under the MMC Act, no licence is required for

the hookha bar. The Division Bench in such case was examining as to

whether the product “Soex” contains tobacco, nicotine, narcotic or any

psychotropic substance. In such context, the Court also examined the

provisions of the 2018 Amendment to the Cigarettes and Other Tobacco

Products Act,2003 (COTPA Act). This was the case in which no action as

akin to the action taken in the present petition, was taken by the

Municipal Corporation. The Court examining such issue, made such

passing observations on the stand of the Municipal Corporation. In our

considered opinion, such observations as noted above would certainly not

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assist the petitioner. The relevant observations as made by the Division

Bench in the said order read thus:-

“9. Mr. Gole, learned counsel for respondent no. 2-

Municipal Corporation place on record the communication
dated 10.01.2018 issued by the Municipal Commissioner of
the Bombay Municipal Corporation to the Additional Chief
Secretary (HOME). This communication is of Municipal
Commissioner’s response to the Additional Chief Secretary in
pursuant of the letter from Commissioner of Police regarding
Hookha Parlours in Mumbai City. The Municipal
Commissioner made his stand clear by stating that hookha
parlours do not fall under the ambit of eating house and
therefore do not fall within the provision of Section 394 of the
Mumbai Municipal Corporation Act under notified trades for
license. In short, the contention of the Municipal
Commissioner is that under MMC Act no license is required
for the hookha bar. However, the police officers are
empowered to take legal action for the infringement of the
conditions imposed under COTPA Act as well as taking action
on the hookha Parlours where drugs/narcotics are provided
and consumed which falls under the purview of Police
Department.

10. In the light of the above it is clear that the petition is

filed on a mere apprehension and as long as the petitioner
complies with the provisions of COTPA and do not serve any
prohibited substance in the hookha Parlour then no action can
be taken against them. However, it is made clear that if it is
found the petitioner is selling/using any substance prohibited
under the COTPA Act then surely the action can be taken
against him. We find that at this stage no declaration more
than what is stated above is necessary.”
(emphasis supplied)

25. The petitioner’s reliance on the said order passed in Criminal Writ

Petition No. 2719 of 2019 (supra) is totally unfounded also for the reason

that the issue, subject matter of consideration in the present case is an

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issue, on an action being taken by the Municipal Corporation against the

petitioner for breach of the licence conditions, which was not the case in

the proceedings of the said criminal writ petition. The present case is not

a case of an activity of a pure hookha parlour, as the case of the petitioner

is purely on eating house license granted to her and whether it would

include hookha activities. Also, the observation of the Division Bench as

emphasized by Mr. Khandeparkar is not on any interpretation on Section

394 of the MMC Act.

26. Before parting, we may observe that in the present case, Municipal

Commissioner taking into consideration the facts and circumstances of the

case and the overall situation has appropriately used his discretion in

taking the impugned decision, also bearing in mind the requirements of

the license conditions. It cannot be overlooked that the Municipal

Commissioner is not expected to keep a continuous vigil on the hookah

trade/activities of the petitioner including on the petitioner’s claim of its

herbal ingredients and to a further claim that they are not affecting the

“health” and/or creating a nuisance, as specified in the license conditions,

to run an eating house. Once it is clear that hookah activities are not part

of the Eating House license conditions, such activity cannot be permitted.

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If it is permitted every eating house in the city can provide “hookah”, the

nature of which the Municipal Commissioner in the normal course of his

duties cannot ascertain. This would result in a situation beyond one’s

imagination and totally uncontrolled.

27. It may also be observed that when licensing provisions are

incorporated in municipal legislations, the same are required to be

interpreted keeping in mind the object of the legislation, which would

include achieving societal welfare and public good not only from the point

of public health but avoidance of public nuisance.

28. In the light of the above discussion, we find no merit in the

petition. The petition is dismissed. No costs.

(R.N. LADDHA, J.) (G. S. KULKARNI, J.)

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