Eating House License Doesn’t Automatically Include License To Serve Hookah: Bombay High Court

The Bombay High Court has held that an Eating House Licence granted to a restaurateur doesn’t deem to include a permit to serve ‘Hookah’ or ‘Herbal Hookah’ under section 394 of the Mumbai Municipal Corporation Act.

Holding otherwise would lead to “absolute nuisance” especially since neither an eating house nor the civic body can control the ingredients of hookah once it is served to the customer, a division bench of Justice GS Kulkarni and RN Laddha said.

“In a restaurant or eating house, where children, women and elderly visit for refreshments/eating, it cannot be expected that hookah 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,” the bench observed.

The court thus dismissed the plea filed by Sayli B. Parkhi running “The Orange Mint” in Chembur, Mumbai, that serves herbal hookah. She had challenged an order passed by the Medical Officer Health, M/West Municipal Ward of Mumbai on April 18, 2023, directing her to stop serving any form of Hookah by using burnt charcoal within seven days, otherwise the eating house license would be revoked.

The Municipal Corporation’s stand was that granting of an eating house license under section 394 of Mumbai Municipal Corporation Act, 1888 (MMC) would not permit any hookah activity including serving of herbal hookah. Therefore, show cause notices were issued earlier.

The petitioner’s contentions were two-fold: first that the order wasn’t reasoned and second that the show cause notices from 2022 cited breach of conditions 8 (using flame/burnt charcoal other than approved in Fire condition in service area) and 12 (conducting the other than license activity), which didn’t pertain to hookah activity.

The court observed that licensing authority’s orders need not be “unnecessarily verbose”. “Explicitly setting out the breach of the terms and conditions of the license on the basis of materials was certainly sufficient,” the court said.

The second contention of the petitioner was that section 394 of MMC Act wouldn’t include an issue pertaining to hookah. The court, however, rejected this argument.

It said that section 394 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.”

The court further observed that the ambit of section 394 of the MMC Act is very broad and takes into account all 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 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.”

It is inconceivable that an activity which is not specifically permitted under the terms and conditions of license, would be deemed to be included in any license conditions, the court said.

The High Court observed 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. 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,” the court said.

Finally, the court stated 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.

Citation: 2023 LiveLaw (Bom) 226