Paragraph numbers below are the court’s original numbering, recovered from the source text.
16. We find it difficult to accept this contention because, if carefully read, 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 D would only apply where there is a total prohibition of smoking in all public places as is clear from Rule 3(1)(a) which makes it is incumbent on the owner, proprietor, etc. of a public place to ensure that no person smokes in that place. It is in that context that ashtrays, matches, lighters and other things E designed to facilitate smoking are not to be provided in public places where smoking is pro hf bited altogether.
17. On the other hand, where smoking is allowed in a smoking area or space, sub-rule (3) of Rule 4 makes .it clear that such place can be used for the purpose of "smoking". F . Under Rule 2(f) words and expressions not defined in th.ese Rules but defined in the Act shall have the meanings, respectively, assigned to them in the Act.
18. This takes us to the definition of •smoking" contained G in Section 3(n) of the Act which has been set out hereinabove. A perusal ofthis definition shows that it includes smoking of tobacco in any form with the aid of a pipe, wrapper, or any other instrument, which would obviously include a Hookah. That being the case, "smoking" with a Hookah would be permissible under H Rule 4(3) and the expression "no other service shall be allowed" NARINDER S. CHADHA v. MUNICIPAL CORPORATION OF GREATER MUMBAI [R.F. NARIMAN, J.] obviously refers to services other than the providing of a . A Hookah. It is, thus, evident that the added words in clause (C) of Condition No.35 are clearly ultra vires the Act and the Rules.
19. Looked at from another angle, Rule 3(1)(c) and Rule 4(3) have to be harmoniously construed. If the respondents' contention has to be accepted, Rule 4(3) would be rendered nugatory. What.is expressly allowed by Rule 4(3) cannot be said to be taken away by Rule 3(1)(c). For this reason also, Mr. Bhatt's contention will have to be turned down.
20. Sub-clauses (D) and (E) of Condition No. 35 were stated by Mr. Bhatt to be 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, we agree with Mr. Bhatt and the dimensions setout in (D) and (E) will have to be followed in all cases.
21. Since we are deciding this case only on the narrow ground that the High Court is incorrect when it holds that all that the Municipal Corporation did in the present case was to follow the Cigarettes Act and the Rules made thereunder, we need not delve on other aspects that were urged before us.
22. We, therefore, set aside the Bombay High Court judgment and delete the first paragraph of Condition No.35 .and the added words in (C) of Condition No.35. The appeal succeeds to that extent.
23. In the Madras High Court judgment a notice dated 5th July, 2011 was upheld by the High Court. The notice is obviously ultra vires the Cigarettes Act and the Rules made thereunder as it prevents the owner of the hotel/restaurant from providing 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 (2014] 12 S.C.R. A prohibited within a radius of 100 yards of an educational · establishment and not 300 feet as is stated in the impugned notice. This judgment a.Isa deserves to be set aside.
24. In the Gujarat High Court case, an order dated 14th July, 2011, purportedly made under Section 33 of the Bombay Police Act read with Section 144 of the Code of Criminal Procedure prohibited hotels and restaurants from providing the facility of hookah and prohibited hookah bars. In the course of a lengthy judgment, the Division Bench referred to the evil effects of smoking and generally of tobacco products and C ultimately came to the conclusion that Section 33 of the Bombay Police Act would include the power to prohibit, stating that the word "regulate" would include "restriction" arid even "prohibition". Several authorities were stated for this proposition, but the one authority binding on the High Court was D missed. In Hi mat ·Lal K. Shah v. Commissioner of Police, Ahmedabad, (1973) 1 SCC 227, the Supreme Court had to construe the word "regulate" under the very Act i.e. Section 33 of the Bombay Police Act. The Court held: "15. Coming to the first point raised by the learned counsel, it seems to us that the word "regulating" in Section 33(o) would include the power to prescribe that permission in writing should be taken a few days before the holding of a meeting on a public street. Under Section 33(o) no rule could be prescribed prohibiting all .meetings or processions. The section proceeds on the basis that the public has 'a right to hold assemblies and processions on and along streets though it is necessary to regulate the conduct and behaviour or action of oersons constituting such assemblies or processions in order to safeguard the rights of citizens and in order to preserve public order. The word "regulate''. according to Shorter Oxford Dictionary, means, "to control, govern, or direct by rule or regulation; to subject to guidance or restrictions". The impugned Rules do not prohibit the NARINDER S. CHADHA v. MUNICIPAL CORPORATION OF GREATER MUMBAI [R.F. NARIMAN, J.] holding of meetings but only prescribe that permission should be taken although it is not stated on what grounds permission could be refused. We shall deaf with this aspect a little later."
25. From a reading of Himat Lal's case, it is clear that the word "regulate" would not include the power to prohibit. Further, Section f44 of the Code of Criminal Procedure provides a power to grant only temporary orders which cannot last beyond 2 months from the making thereof (see Section 144(6) of the Code of Criminal Procedure). Despite this being pointed out to the High Court, the High Court held: "There is nb dispute as regards the position of law and we accept the contentions on behalf of the petitioners so far as Section 144 of the Code is concerned. However, solely on this ground alone the entire action on the part D of the Police Commissioner cannot be said to· be unlawful or beyond his jurisdiction. Prima facie, we are convinced that the notification invoked under Section 144 of the Code was issued with a definite idea and the idea was to immediately give true effect to the addition of the condition in respect of licences of persons running eating house/restaurant. It appears that the authorities felt that it would be difficult to stop the activity of providing hookah at eating house/restaurant by solely adding one of the conditions not to provide hookah at a eating house/ F restaurant. It appears from the affidavit-in-reply filed by the Police Commissioner that with a view to meet with such an emergent situation prevailing in the city and as it was very difficult to keep constant vigilant and monitoring as regards compliance of the condition which was added in the licence, the Police Commissioner thought fit to invoke Section 144 of the Code. Assuming for a moment that the action of the Police Commissioner of the city of Ahmadabad in issuing the notification in purported exercise of powers (2014] 12 S.C.R. under Section 144 of the Code is not tenable in law by ·itself would not be sufficient to grant the relief as prayed for by the petitioners. Though we do not find error in the same but assuming for a moment that it is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it in public interest. It is a settled principle of law that the remedy under Article 226 of the Constitution of India is discretionary in nature and in a given case even if such. action or order challenged in the petition is found to be c improper and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it.,,
26. We are at a loss to understand the aforesaid reasoning. If Section 144 is to be invoked, the order dated 14th July, 2011 · D would have expired 2 months thereafter. The High Court went on to state that while administering the law it is to be tempered . with equity and if an equitable situation demands, the High Court would fail in its duty if it does not mould relief accordingly. It must never be forgotten that one of the maxims of equity is E that 'equity follows the law'. If the law is clear, no notions of equity can substitute the same. We are clearly of the view that the Gujarat High Court judgment dated 2nd December, 2011 deserves to be set aside not only for following the Bombay High Court judgment impugned in the appeals before us but for the F reasons stated hereinabove.
27. All the appeals are allowed in the aforesaid terms. There will be no order as to costs. G Kalpana K. Tlipathy Appeals allowed.