TaxTMI 
TaxTMI 
2026 (10) TMI 96
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....026, 2849 of 2026, 4759 of 2026, 4912 of 2026, 4936 of 2026, 5084 of 2026, 5114 of 2026, 5192 of 2026, 5319 of 2026, 5530 of 2026, 5659 of 2026, 6103 of 2026, 6114 of 2026, 6118 of 2026, 6483 of 2026, 6767 of 2026 And 7345 of 2026 Planters Tea and Book Cafe Thru. Authorized Signatory Udit Narayan Gupta and another Versus State of U.P. Thru. Addl. Chief Secy. Deptt. Food Safety and Drug Administration Lko. and 6 others, M/s Good Luck Food and Beverages,Lko Thru. Its Manager Nishant Singh Versus State of U.P. Thru. Secy. Food and Drugs Administration Lko and 5 others, M/s J Club (a Unit of Spj) Thru. its Propriter Jais Pratap and another Versus State of U.P.Thru. Addl.Chief Secy. Deptt. of Food Safety and Drug Administration Lko. and 6 others, M/s Dana Cafe Thru. Proprietor Mohd. Irfan Khan and another Versus State of U.P. Thru. Addl. Chief Secy. Deptt.of Food Safety and Durg Administration Lko.and 6 others, M/s Cafe D Fire Oasis Thru. Proprietor Pankaj Kumar and another Versus State of U.P. Thru. Addl. Chief Secy. Deptt. Of Food Safety/Drug Administration Lko. and 6 others, M/s D Fire Oasis, Thru. Owner/Proprietor Divyansh Chaurasia and another Versus State of U.P. Addl. Chief Se....
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....ernational Private Limited Thru. Authorized Signatory Mr.Manish Raj Singh and Anr. Versus State of U.P. Thru. Addl. Chief Secy. Deptt. Of Food Safety and Drug Administration Lko. and 6, Bizcorp Hospitality Private Limited, Lko. Thru. Director Aayush Jaiswal and another Versus State of U.P. Thru. Addl. Chief Secy., Deptt. Of Food Safety and Drug Administration Lko. and Ors, Aditya Kumar C/o Atul Yadav M/s the Penthouse Cafe and Family Restaurant Thru Proprietor Aditya Kr. And Others Versus State of U.P. Thru. Secy. Food Safety and Drugs Administration, U.P. Lko. and 5 Others Hon'ble Shekhar B. Saraf And Hon'ble Abdhesh Kumar Chaudhary JJ. For the Counsel for Petitioner(s) : Aarsh Raj, Abhay Pratap Singh, Abhilasha Rastogi, Abhishek Mishra, Abhishek Singh, Adarsh Pratap Singh, Ajay Kumar Singh, Ajeet Pratap Singh, Akansha Pathak, Akhileshwar Singh, Akriti Pandey, Aman Thakur, Anand Kumar, Anand Mishra, Anand Prakash Dixit, Anubhav Awasthi, Anuj Kumar Awasthi, Anuj Kumar Gupta, Anurag Singh, Arpit Verma, Arun Kumar Yadav, Aryan Singh, Ashish Kumar, Ashutosh Mishra, Atma Ram Mishra, Chandan Verma, Deepansi, Dharmendra Kumar Verma, Dhiraj Pratap Singh, Dinesh Kumar Mishra,....
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....mong you to be scorned and held in contempt; a custom loathsome to the eye, hateful to the nose, harmful to the brain, dangerous to the lungs, and in the black stinking fume thereof nearest resembling the horrible stygian smoke of the pit that is bottomless." King James I of England in 'A Counterblast to Tobacco' SHEKHAR B. SARAF, J. : The present bunch of writ petitions have been filed under Article 226 of the Constitution of India craving indulgence of this Court for the issuance of a writ of mandamus commanding respondents to issue categorical guidelines to the effect that the petitioners in all the connected writ petitions are having a valid food service-restaurant license which also permits them to run a dedicated smoking space in accordance with the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter referred to as 'COTPA') as well as the Prohibition of Smoking in Public Place Rules, 2008 (hereinafter referred to as 'Rules') framed thereunder, where facilitation for smoking Hookah is provided to its patrons. Petitioners in furtherance pray to command the ....
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.... preventive order dated May 15, 2023 was passed by Additional Commissioner of Police (hereinafter referred to as 'respondent no. 5') under Section 133 CrPC whereby it was observed that hookah bars were being operated without any license/permission, and inter alia, observed that hookah smoking were being carried outside the petitioner's cafe that was creating public nuisance. The order further specified that hookah was being served to minors. g. Petitioner has approached this Court as he was unable to run the business of hookah bar thereby alleging violation of his fundamental right under Article 19(1)(g) of the Constitution of India in spite of allegedly following the statutory and legal requirement due to intervention of police authorities. CONTENTIONS ON BEHALF OF PETITIONERS 3. Mr. Harshit Singh, learned counsel appearing on behalf of the petitioners has made the following submissions on behalf of all the petitioners in the connected writ petitions. At the outset, the Court would like to express its gratitude for the multifarious arguments raised by the learned counsel who has used remarkable ingenuity in dealing with the objections of the respondents and answerin....
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....isdiction of authorities functioning under the Food Safety Act. This jurisdictional distinction is further reinforced by the statutory licensing scheme under Section 31 of the FSSA, which mandates licences only for "Food Business Operators," thereby limiting the competence of Food Safety Officers to food-related activities conducted within an eating establishment. Furthermore, they have also affirmed their lack of jurisdiction by way of their counter in respective petitions. d. Municipal Corporation lacks jurisdiction to regulate smoking. The smoking zone maintained within a restaurant remains an ancillary facility governed by tobacco-specific legislation rather than municipal licensing statutes. Consequently, insistence upon a separate 'hookah licence' or insisting on its prohibition on grounds of the activity being illegal, by municipal authorities lacks statutory foundation and amounts to colourable exercise of power. Furthermore, they have also affirmed their lack of jurisdiction by way of their counter in respective petitions. e. The jurisdiction of police in relation to restaurant operations and Designated Smoking Areas is strictly statutory and cannot be ex....
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....ce, Rule 4(3) was modified by amendment of 2017 to prohibit the continuous, active involvement of waiting staff once a hookah has been served, while Rule 4(3A) was implemented to discourage smoking and safeguard the younger generation from potential addiction. In order to curb such active involvement, the self-service operational model whereby hookah apparatuses are prepared externally, retrieved by patrons and independently operated without staff intervention inside the Designated Smoking Areas satisfies all essentials of Rule 4(3), thereby will seek to ensure zero 'service' rendered within the smoking area. i. The respondents have illegally weaponised themselves with an illusionary prohibition, brought forth by erroneous interpretation in the judgment of the Hon'ble Karnataka High Court in R. Bharath v. State of Karnataka [2024 SCC OnLine Kar 41]. The interpretation fails to stand in absence of a specific State Amendment banning the hookah, leaving the statute and the provision a dead-letter if allowed to be read as stated by the Respondents. The Karnataka High Court has overlooked the Self Service model of hokkah, the distinction between 'backend preparation' and 'rende....
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....er that service. COTPA itself recognises distinct legal and commercial concepts, and consciously defines 'sale' under Section 3(m) and leaves out the definition of the the expression "service" in Rule 4(3). Hence, the same cannot be expanded beyond its ordinary and contextual meaning so as to encompass every activity which merely facilitates, accompanies or is commercially connected with smoking. m. The overall transaction is a composite service. As per Section 2(30) of the CGST Act of 2017, a composite transaction comprises distinct constituent elements such as tobacco/smoking material and renting of the hookah apparatus, which are commercially bundled together for use by the patron. Furthermore, Section 8 of the CGST Act, 2017 remains relevant to explain the term "service". It provides the statutory mechanism for determining the tax treatment of composite and mixed supplies. If the overall hookah transaction is accepted as a composite supply, it is pertinent to examine its principal or dominant constituent in order to determine its proper legal character. The counsel relies on the judgment of Hon'ble Supreme Court in Union of India v. Mohit Minerals Pvt. Ltd [(2022) ....
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....la Products I.P. Ltd. & Anr. v. Union of India & Ors [(2004) 7 SCC 68, (Para 28,29,53)]; (vi) Sanjay Ramdas Patil v. Sanjay [(2021) 10 SCC 306, (Para 25 to 31)]; (vii) Padma Sundara Rao (Dead) & Ors. v. State of Tamil Nadu & Ors [(2002) 3 SCC 533, (Para 12 to 15)]; (viii) State of Jharkhand & Anr. v. Govind Singh [(2005) 10 SCC 437, (Para 18-19, 20-21)]; (ix) R. Bharath v. State of Karnataka [2024 SCC OnLine Kar 41, (Para 19 to & 27)]; (x) Anjappar Chettinad A/C Restaurant v. Jt. Commr., Office of Commissioner of GST C. Ex., Chennai South Commissionerate [2021 SCC Online Mad 16950, (Para 25&26)]; (xi) Haldiram Marketing Pvt. Ltd. v. Commissioner, CGST, Delhi East [2023 SCC OnLine CESTAT 1228, (Para 18,19,20)]; (xii) Anandcine Service Pvt. Ltd. v. Commissioner of Service [2025 SCC OnLine Mad 2282, (Para 20,22,23&29)]; (xiii) Executive Engineer, Southern Electricity Supply Company of Orissa XXI (Southco) v. Sri Seetaram Rice Mill [(2012) 2 SCC 108, (Para 48)]; (xiv) Kumar Luv Agarwal v. State of Jharkhand & Ors [2018 SCC OnLine Jhar 1896, (Para 3,5 & 9)]; (xv) Indian Hotel and restaurant Associa....
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....s the fundamental right to life guaranteed under Article 21 of the Constitution and emphasised the obligation of the State to protect non-smokers from passive smoking in public places. e. Pursuant to the constitutional mandate to protect public health and the legislative policy of regulating tobacco use, Parliament enacted the COTPA to discourage tobacco use, regulate trade and commerce in tobacco products, protect non-smokers from involuntary exposure to tobacco smoke and promote public health consistent with Article 47 of the Constitution of India. f. Section 4 of COTPA provides a general prohibition against smoking in any public place. The proviso to Section 4 creates only a limited exception whereby hotels having thirty rooms or more, restaurants having a seating capacity of thirty persons or more and airports may provide a separate smoking area or space, subject to the conditions prescribed by the Central Government through Rules. The proviso does not create an unrestricted right to provide smoking-related services or operate hookah bars; it merely permits establishment of a Designated Smoking Areas subject to strict statutory conditions. The expression "publ....
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....t within the Designated Smoking Area and are therefore inconsistent with amended Rule 4(3) and therefore, impermissible. k. The commercial meaning of the expression "service" is also consistent with the above interpretation. Notification No. 11/2017-Central Tax (Rate), dated 28 June, 2017, issued by the Ministry of Finance, defines "restaurant service" as the supply, by way of or as part of any service, of food or other articles for human consumption or drink provided by a restaurant or eating establishment. Although the said notification has been issued under the Central Goods and Services Tax Act, 2017 and not under COTPA, it illustrates the commercial understanding of the expression "service". Therefore, activities involving preparation and serving of hookah by restaurant or café staff are in the nature of services rendered by the establishment in the commercial understanding of the expression "service". l. Apart from COTPA, operation of hookah-serving establishments may attract compliance obligations under other statutory frameworks depending upon the facts of each case, including laws relating to food safety, public health, fire safety, municipal licen....
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...., only the judgments which were absolutely necessary for deciding this case have been considered and dealt with in detail so that brevity is not jeopardized. Genesis of Hookah:- 9. Since the word hookah is reverberated multiple times, therefore one must know what is a 'hookah'. 'Hookah' also called Shisha, Goza, Argileh, Narghile is an instrument or apparatus used to smoke tobacco with the aid of a water pipe. They are large table top pipes with a mouth piece attached to a flexible hose, whose bottom is filled with water and tobacco is heated with burning charcoal or embers. The smoke passes through the water pipe's water bowl and is drawn through a hose to a mouth piece and user inhales the vapour through the water. 10. Hookah originated in India in the 16th century, particularly in the regions of Rajasthan and Gujarat coinciding with the introduction of tobacco to the region but it quickly spread to Persia, Turkey and the Arab world. The invention of Hookah is attributed to Hakim Aboul futteh Ghilani, an Iranian physician in the Court of Emperor Akbar. Traditionally hookah's were made from coconut using hollow bamboo sticks as the stem. With the passage of time s....
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....n their own, therefore, it does not amount to 'service' but only facilitates smoking in Designated Smoking Area. The counsel further contends that the term facilitation of smoking and service cannot be treated as interchangeable, for the reason that, if every act, which facilitates, assists, enables or contributes to smoking were automatically treated as service, then the concept of creating a legally Designated Smoking Area would become an illusion. Such an interpretation would amount to rewriting the Rule and would render the concept of Designated Smoking Area substantially redundant and otiose. 14. Per contra, the counsel appearing on behalf of respondents vehemently rebutted the arguments placed on behalf of petitioners and contends that license for restaurants under FSSA does not give authority to petitioners to run hookah bar. Hookah is not governed by FSSA as it is not a food product. 15. The counsel for the respondents further contends that Rule 4(3) prior to amendment of 2017 prohibited 'other service' which includes food and other eateries in the Designated Smoking Area but subsequent to amendment of 2017 'service' of Hookah itself stands prohibited inside the Desig....
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....e is no reason that health of passive smokers should also be injuriously affected. In any case, there is no reason to compel non-smokers to be helpless victims of air pollution. *** 9. Realising the gravity of the situation and considering the adverse effect of smoking on smokers and passive smokers, we direct and prohibit smoking in public places and issue directions to the Union of India, State Governments as well as the Union Territories to take effective steps to ensure prohibiting smoking in public places, namely: 1. Auditoriums. 2. Hospital buildings. 3. Health institutions. 4. Educational institutions. 5. Libraries. 6. Court buildings. 7. Public offices. 8. Public conveyances, including railways." Objectives of the COTPA:- 20. The COTPA was brought by introducing the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Bill, 2001, wherein the Statement of Object are as follows: "Tobacco is universally regarded as one of the major public health hazards and is responsible directly or i....
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....d by article 47 of the Constitution; AND WHEREAS, it is expedient to prohibit the advertisement of, and to provide for regulation of trade and commerce, production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto:" (Emphasis added) 22. A perusal of the preamble to COTPA reveals that it is a legislation to deal with the following issues: ➢ regulate the advertisement of cigarette and other tobacco products; ➢ provide for the regulation of trade and commerce dealing with production supply and distribution of cigarettes and other tobacco products; ➢ deal with any matter connected with or incidental to cigarettes and other tobacco products. 23. Furthermore, perusing the reasons as specified in the Preamble, it is clear that COTPA was introduced in the background of International obligations and National obligations that need to be achieved by India. 24. International Obligations:- The Preamble states that COTPA was introduced with a view to achieve the following International Obligations of India, ratifying the resolutions passed by World Healt....
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....rettes 2. Cigars 3. Cheroots 4. Beedis 5. Cigarette tobacco, pipe tobacco and hookah tobacco 6. Chewing Tobacco 7. Snuff 8. Pan masala or any chewing material having tobacco as one of its ingredients (by whatever name called). 9. Gutka 10. Tooth powder containing tobacco. *** Section 4. Prohibition of smoking in a public place- No person shall smoke in any public place: Provided that in a hotel having thirty rooms or a restaurant having seating capacity of thirty persons or more and in the airports, a separate provision for smoking area or space may be made. *** Section 6. Prohibition on sale of cigarette or other tobacco products to a person below the age of eighteen years and in particular area.- No person shall sell, offer for sale, or permit sale of, cigarette or any other tobacco product-(a)to any person who is under eighteen years of age, and (b)in an area within a radius of one hundred yards of any educational institution. *** Section 12. Power of entry and search- (1) Any police officer, not below the rank of a sub-inspecto....
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....djudging the confiscation that the person in whose possession, power or control any such package of cigarettes or any other tobacco products is found is not responsible for the contravention of the provisions of this Act, the Court may, instead of making an order for the confiscation of such package, make such other order authorised by this Act against the person guilty of the breach of the provisions of this Act as it may think fit. *** Section 21. Punishment for smoking in certain places.- (1) Whoever contravenes the provisions of section 4 shall be punishable with fine which may extend to two hundred rupees. (2) An offence under this section shall be compoundable and shall be tried summarily in accordance with the procedure provided for summary trials in the Code of Criminal Procedure, 1973 (2 of 1974). *** Section 24. Punishment for sale of cigarettes or any other tobacco products in certain places or to persons below the age of eighteen years.- (1) Any person who contravenes the provisions of section 6 shall be guilty of an offence under this Act and shall be punishable with fine which may extend to two hundred rupees. ....
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....e; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or notification." Rules of 2008 Rule 3. Prohibition of smoking in a public place: (1) The owner, proprietor, manager, supervisor or in charge of the affairs of a public place shall ensure that: (a) No person smokes in the public place (under his jurisdiction/implied). (b) The board as specified in schedule II is displayed prominently at the entrance of the public place, in case there are more than one entrance at each such entrance and conspicuous place(s) inside. In case if there are more than one floor, at each floor including the staircase and entrance to the lift/s at each floor. *** Schedule II appended to Rule 3(b) 1. The board shall be of a minimum size of 60 cm by 30 cm of white background. 2. It shall contain a circle of no less than 15 cm outer diameter with a red perimeter of no less than 3 cm wide with a picture, in the centre, of a cigarette or beedi with black smoke and crossed by a red band. 3. The width of the red band across the cigarette sha....
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....esignated shall form a separate section in the same floor or wing, as the case may be. In case of more than one floors/wings the room shall be in one floor/wing as the case may be. (b) all such rooms shall be distinctively marked as "Smoking rooms" in English and one Indian language, as applicable. (c) the smoke from such room shall be ventilated outside and does not infiltrate/permeate into the non-smoking areas of the hotel including lobbies and corridors." 27. Section 4 of the COTPA read with Rule 3 of the Rules provides that smoking is prohibited in public places with an exception provided in a Designated Smoking Area under proviso to Section 4 of the COTPA. Rule 4 notified under the COTPA provides for regulation of dedicated smoking areas in hotels (with more than 30 rooms), restaurants (with seating capacity of 30 or more) and Airports to allow no other services but only smoking in the dedicated smoking area. The aforesaid Rule has been amended vide notification dated May 23, 2017 to explicitly prohibit 'service' in the Designated Smoking Area and provide for a display at the entrance of the smoking area or space of minimum size 60*30 cm with a white back....
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....ying into effect the provisions of the Act, thereby vesting in the executive the legislative authority to give effect to the prohibitory framework of the Act. It is under this power, read with Section 31, that the amended Rules have been notified. Methodology of Hookah:- 32. It is necessary to look into the methodology of hookah for dealing with the case at hand. The picturesque of hookah is drawn for ready reference: Picturesque of Hookah Process of preparation and operation of a Hookah Step 1 - Assembly: The hookah is assembled by connecting the stem with the water-filled base, placing the bowl and tray in their respective positions, and attaching the hose. Step 2 - Placement of Smoking Substance: The smoking substance, generally shisha or flavored tobacco, is placed in the bowl and arranged for the purpose of smoking. Step 3 - Heat Arrangement: The bowl is covered with aluminium foil with tiny holes over it so as to facilitate the transfer of heat to the smoking substance. Step 4 - Application of Heat: Burning charcoal is placed on the aluminum foil above the bowl to heat the smoking substa....
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....er to search, seize, confiscate and impose penalty upon the establishments for disobeying the mandate therein. In fact, it is to be noted that some of the raids on establishments found that hookah tobacco was being consumed in open spaces within the precincts of the establishments. Furthermore, it was found that the said hookah was being served to minors in complete disregard to section 6 of the COTPA. 36. The argument of the petitioners with regard to the objective of COTPA and the Rules framed therein, that the COTPA and the Rules are only 'regulatory' in nature but not 'prohibitory' is also not acceptable. A perusal of the Preamble to the COTPA demonstrates, inter alia, that it is a specific comprehensive legislation to provide effective protection to non-smokers from involuntary exposure of tobacco smoke and discourage the use of tobacco by imposing a progressive restriction. The Hon'ble Supreme Court in G.K. Krishnan v. State of T.N. [(1975) 1 SCC 375], has categorically held that 'regulation' includes 'prohibition'. The relevant paragraph of the judgement is quoted hereinbelow: "14. Article 301 imposes a general limitation on all legislative power in order to ....
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....eparable, do not give the transaction its essential character of trade or commerce. Laws for Government of such incidents "regulate" [ See Wynes, Legislative, Executive and Judicial Powers, p. 270] ." (Emphasis added) 37. Furthermore, the Hon'ble Supreme Court in Indian Handicrafts Emporium v. Union of India [(2003) 7 SCC 589], has reiterated the aforesaid principle with regard to 'regulation' and 'restriction'. The relevant paragraphs of the judgment are quoted hereinbelow: 38. In order to determine whether total prohibition would be reasonable, the Court has to balance the direct impact on the fundamental right of the citizens thereby against the greater public or social interest sought to be ensured. Implementation of the directive principles contained in Part IV is within the expression of restrictions in the interest of the general public. 39. In Municipal Corpn. of the City of Ahmedabad v. Jan Mohammed Usmanbhai [(1986) 3 SCC 20 : AIR 1986 SC 1205 : (1986) 2 SCR 700] this Court held: (SCC pp. 28-29 & 31-32, paras 15 & 20) "15. Before proceeding to deal with the points urged on behalf of the appellants it will be appropriate to refer to the wel....
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....not absolute, as the term "regulation" has no fixed connotation and may depend upon the nature of the activity. A restriction imposed on a fundamental right may therefore take the form of regulating the manner in which an activity is carried out or may extend to its prohibition, if the activity is inherently dangerous, noxious, injurious to public interest, health or constitutes a potential nuisance. Thus, 'prohibition' is capable of falling within the broader concept of 'regulation', provided that the restriction is reasonable and justified in the interest of the general public. 39. The counsel further argued that the objective behind the amendment to Rule 4(3) of the Rules was to control the environment of Designated Smoking Areas, to protect the non-smoking staff from exposure to smoke and for curbing the long usage of hookah. For this proposition, petitioners heavily placed reliance on the judgment of the Supreme Court in Narinder S. Chadha (supra) to contend that smoking is allowed in a smoking area as Rule 4(3) makes it clear that such places can be used for the purpose of smoking. 40. In our view, the judgment of the Supreme Court in Narinder S. Chadha (supra) is not a....
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....the Karnataka High Court in the judgment of R. Bharath (supra) without there being a specific State amendment in the State of Uttar Pradesh banning the smoking of hookah is the core argument presented by the petitioners. The petitioners argued that post the amendment of 2017 in the Rules, there is no significant change and service of hookah is permissible within the premise of the Designated Smoking Area. The arguments raised before us are pari materia to the arguments raised before the Karnataka High Court and Justice M. Nagaprasanna has with great dexterity and an eye to detail dealt with all the submissions therein. One is required to examine the judgment in detail and cull out the ratio therein. 44. This Court notices that the judgment in R. Bharath (supra) at paragraph 12 dealt with the issue of Right to Trade under Article 19(1)(g) of the Constitution of India and the restrictions imposed therein. It examined a smorgasbord of judgments of the Supreme Court that dealt with harmonising fundamental rights provided under Article 19 and 21 with the Directive Principles of State Policy (DPSP). For the sake of brevity this Court does not want to carry out the same exercise but wo....
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....uring, all of which is provided by the owners of the restaurants. The manner of service to smoke a cigarette is zero. The manner of service to smoke hookah with or without tobacco, needs rendering of services in the designated area, as it requires external human hand to place all the apparatus on the tables like food or alcohol would be served on those tables. It is, therefore, on the face of it, a service. 20. If hookah requires service that needs to be rendered, it cannot be in the corner of a designated place and apparatus to smoke through hookah cannot be carried in the pocket by the smoker who wants to go into a designated area, smoke and come out. It requires all the overtones of a service, as akin to food and alcohol. If the aforesaid activity is pitted on the amendment to the 2017 Rules, what would unmistakably emerge is the prohibition in furtherance of the amendment brought into the Rule, as no service should be allowed in any smoking area or space provided for smoking. If a designated place is provided for smoking which may include, smoking hookah - hookah tobacco, the very act of preparation to smoke hookah tobacco, cannot but be held to be a service, and if it....
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.... that post the amendement of 2017 to the Rules, there is not an iota of doubt that 'service' of hookah is absolutely impermissible in the Designated Smoking Area. The amendment on a literal and purposive interpretation leads one to the above inexorable conclusion. 47. Mr. Harshit upon having been accosted by the Court with the amended definition of service in Rule 4(3) came up with a novel argument wherein he submitted that the establishments run by the petitioners could hypothetically provide for a system of self-service to the patron. It was his contention that this model of self75 service would circumvent the interpretation in R. Bharath (supra) wherein the court had held that service of hookah intrinsically invoked the 'human hands doctrine'. The learned counsel appearing for petitioners with great ingenuity suggested that the preparatory stage of hookah including the setting up of hookah, placing of tobacco in the bowl, filling the base with water, making tiny holes in the aluminium foil, placing burnt charcoal on top of the same would all be carried out in a specific designated area outside the Designated Smoking Area, and thereafter, the patron would carry the entire hook....
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....he patron for his use during his visit, without performing any act that constitutes the rendering of a "service" in the legal or commercial sense of that expression, and that accordingly the absolute prohibition on "service" enacted by the amended Rule 4(3) does not apply to the activity of providing hookah apparatus, which falls outside the ambit of "service" altogether. In support of this sui generis argument the learned counsel for the petitioners has placed reliance upon the judgment of the Hon'ble Madras High Court in Anandcine Services Private Limited (supra) and has specifically drawn the attention of this Court to paragraphs 20, 22, 23, and 29 of the said judgment. 50. After an anxious reading of the aforesaid judgment, this Court finds that it is not applicable to the present case as the Madras High Court, while considering the applicability of Value Added Tax or Service Tax to a supplier engaged in providing cinematographic equipment on hire, examined the matter in the light of the judgment of the Supreme Court in BSNL v. Union of India [(2006) 3 SCC 1]. The Madras High Court categorically held that where there is a transfer of possession and effective control of t....
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.... and complete effective control over its operations during the contract period. Hence, such a hiring would amount to a 'rental'. In our view, juxtaposing the aforesaid instances cannot stand on its own as in case of renting a taxi without driver, one can take the taxi anywhere for the time period of its hiring whereas in case of renting hookah, the patron is not allowed to take the hookah apparatus anywhere he wishes to but has to confine its use only inside the Designated Smoking Area. In the case made out by the petitioners of 'renting' they forget that the patron does not have absolute control of the hookah apparatus, and hence, there is no absolute transfer that would bring it within the definition of 'renting'. The factum of mandatory consumption of hookah inside the Designated Smoking Area by the patron makes it abundantly clear that he is being provided a 'service' only. 52. The next argument of the petitioners is that prohibition of hookah bars would lead to reducing the statutory provision to a dead letter is a fallacious one. We agree with the petitioners that there is no specific prohibition or ban on hookah tobacco smoking. However, the encouragement of hookah smokin....
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....ookah smoking requires constant intermittent assistance from the waiting staff that includes replenishment of coal, cleaning of ashes, changing of tobacco besides other assistance. Furthermore, the factum of 'consideration' being paid to the restaurants to provide for the hookah apparatus as well the tobacco makes the hookah tobacco a 'service'. The umpteen definitions of 'service' taken from different excerpts are delineated below: (a) Section 2(42) of the Consumer Protection Act, 2019 is quoted hereinbelow: "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;" (b) "Restaurant Service" as defined in Notification No. 11/2017-Central Tax (Rate) New Delhi dated 28th June, 2017: "means supply, by way of or as part....
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....ransactional relationship for consideration and not gratuitously or as a matter of personal obligation; (iii) thirdly, to make available a facility, resource, or benefit including the supply of goods, facilities for human use and enjoyment, the deployment of personnel staff, or the making available of any resource for the use, benefit, consumption, or enjoyment of the recipient; 56. Upon examination of the aforesaid elements of 'service' it is clear that service is any purposive activity performed by one person for the benefit of another, for consideration, involving the provision of a facility, the supply of a product as part of an experience, the deployment of personnel for the making available of any resources. 'Service' is an expression of the widest possible amplitude that encompasses every commercial act performed by an establishment for its patron in the course of a trade or business. These elements such as preparing, assembling, delivering, lighting, replenishing, and maintaining a hookah for its patron for a consideration leads one to the inescapable finding that providing hookah in a restaurant amounts to "service" as per the amended Rule 4(3). CONCLUSION ....
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.... involuntary exposure to tobacco smoke in a public place, guaranteed under Article 21 of the Constitution, and the duty of the State to improve public health imposed by Article 47 of the Constitution. VIII. Food and Safety Department as well as Municipal Corporation lacks jurisdiction to issue licenses for regulating hookah bars in the State of Uttar Pradesh. However, the provisions of COTPA especially sections 12, 13, 15 clearly demonstrates the power granted to the police authorities to ensure compliance of the mandate of sections 4 as well as 6 and such compliance would include the power to search, seize, confiscate and impose penalty upon the establishments for disobeying the mandate therein. 58. Upon sifting through the aforesaid principles this Court arrives at the unambiguous conclusion that the question that these writ petitions have posed before us as to whether hookah bars may lawfully operate and render hookah service in Designated Smoking Area within public places in the State of Uttar Pradesh is answered in the negative. The right of the non-smoker to breathe clean air in a public place is a fundamental right guaranteed under Article 21 of the Constitution ....
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..... Moresoever, every packet of cigarettes carries a mandatory statutory health warning, a similar caution is required in case of hookah in order to fill a regulatory gap that demands urgent legislative attention. 63. In view of the foregoing analysis, this Court reasonably expects that the State of Uttar Pradesh would rise to the occasion keeping in mind the health and welfare of the citizens of the State and would take all necessary steps, including issuing a notification on similar lines with other abovementioned States imposing stringent punishment for service of hookah in all Designated Smoking Areas within the State. MY EXPERIENCE WITH TOBACCO SMOKING 64. From my own experience of smoking, I pen these last paragraphs in an attempt to educate the young generation of this country to not become a prey to the deleterious and indelible habit of tobacco smoking: "I entered law school pure as morning dew, Sneered at the smokers puffing by the gate, "Weak-willed," I scoffed, "I'd never join that crew" Famous last words. Reader, I was bait. It started with a 'chaii', innocent and warm, A senior offered, "Try one, just for fun." I took it like a soldier join....