Restaurants not entitled to serve hookah/ herbal hookah in their premises: Bombay High Court

Restaurants and eateries are not entitled to serve hookah including herbal hookah and doing so would amount to nuisance since a restaurant is a place where children, women and elderly also visit, the Bombay High Court recently said [Sayli B Parkhi vs State of Maharashtra]..Hence, a division bench of Justice Girish Kulkarni and RN Laddha denied permission to a restaurant in the eastern suburbs of Mumbai that sought to serve herbal hookah.The Court said that it may not be possible even for the eating house to control the ingredients of the hookah 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 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," the bench said. Further, it said that the impact of such material on the customers at the eating house can just not be imagined."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..The bench was hearing a plea filed by one Sayli Parkhi challenging the show cause notice issued to it by the M-West ward of the Municipal Corporation of Greater Mumbai (MCGM) asking her as to why the 'eating house licence' issued to her should not be terminated as her restaurant 'The Orange Mint' was thrice found serving herbal hookah to its customers. The civic body contended that the same was in the breach of General Licence Conditions, which barred an eatery from serving hookah. The civic body found it seriously objectionable as it was endangering the public safety and putting life at risk and breaching General License Condition.The Court said that it cannot be conceived 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. Such reading of the license conditions would lead to an absurdity, the bench opined. .The bench was of the view that the Municipal Commissioner cannot be 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 such hookah does not affect the “health” and/or create nuisance."Once it is clear that hookah activities are not part of the Eating House license conditions, such activity cannot be permitted. It cannot be countenanced that grant of a license to conduct an eating house is deemed to include a license to conduct Hookah activities," the bench underscored.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, the bench underscored."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 or hookah activities of the nature carried out by the petitioner," the Court held. .Advocate Mayur Khandeparkar along with advocates Vikramjit Garewal, Ajinkya Udhane, Vinali Bhaidkar and Pushpanjali Arora appeared for the Petitioner.Assistant Government Pleader Amit Shastri represented the State.Advocate Kunal Waghmare represented the MCGM..[Read Judgment]