LexNARINDER S. CHADHA & ORS. versus MUNICIPAL CORPORATION OF GREATER MUMBAI & ORS.
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[2014] 12 S.C.R. 817 NARINDER S. CHADHA & ORS. v. MUNICIPAL CORPORATION OF GREATER MUMBAI & ORS. (Civil Appeal No. 10836 of 2014 Etc.) DECEMBER 08, 2014 [RANJAN GOGOi AND R.F. NARIMAN, JJ.] A B Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, C Production, Supply and Distribution) Act, 2003: s. 6 rlw the Rules framed under the Act - Circular dated 04.07.2011 - Issued by Municipal Corporation - Adding conditions in General Conditions of licence issued uls. 394 0 of Mumbai Municipal Corporation Act - Validity of the conditions - Held: s.6 of the Act lays down the condition prohibiting sale of cigarettes - Any condition which prohibits sale of cigarettes/tobacco products in the premises licenced by Municipal Corporation would amount to adding another E exception, which is not permissible in law - The condition No.35(C) would be ultra vires the Act and the Rules framed thereunder - However, sub-clauses (DJ and (E) of condition No. 35 are valid - Prohibition of smoking in Public Places Rules, 2008 - rr.4(3) and 3(1)(c) - Mumbai Municipal F Corporation Act, 1888 - s.394. s.3(m) - 'Sale' - Definition of- Interpretation - Held: The definition being exhaustive, would not include 'service' within its ambit. s. 6 rlw the Rules framed under the Act - Notice dated 5th July, 2011 -Issued under s.44 of Tamil Nadu Public Health Act, 1939 - Preventing hotel/restaurant owner from providing tobacco to persons (not minors) and prohibiting Hookah Bars G 817 H 818 SUPREME COURT REPORTS [2014] 12 S.C.R. ,.....__ A within a radius of 300 ft. of an educational institution "- Validity· of - Held: The notice is ultra vires the Act and the Rules - Prohibition of Smoking in Public Places Rules, 2008 - Tamil Nadu Public Health Act, 1939 - s.44. B s. 6 rlw. the Rules framed under the Act - Order dated 14. 07.2011 - Issued u/s. 33 of Bombay Police Act rlw. s. 144 Cr.P.C - Prohibiting hookah bars - Validity of - Held: The word 'regulate' under the Police Act would not include the . . power to prohibit - Power u/s. 144 Cr.P.C. is for passing c temporary orders which cannot last beyond 2 months - Hence the order is not valid - Bombay Police Act, 1951 - s.33 - Code of Criminal Procedure, 1973 - s.144 - Prohibition of Smoking in Public Places Rules, 2008. Prohibition of Smoking in Public Places Rules, 2008 - D rr. 3 and 4- Applicability of - Discussed. Equity - Applicability of - 'Equity follows the law' - If the law is clear, no notions of equity can substitute the same. E Words and Phrases - 'Sale' and 'Service' - Meaning of, in the context of Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. Allowing the appeals, the Court F HELD: 1.1. Section 6 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply. and Distribution) Act, 2003 permits the sale of cigarettes G and any other tobacco products, except to persons under 18 years of age and in an area within a radius of 100 yards of any educational institution. It is clear that any condition which prohibits the sale of cigarettes or any other tobacco products in premises licenced by the H NARINDER S. CHADHA v. MUNICIPAL CORPORATION 819 OF GREATER MUMBAI Municipal Corporation would amount to adding another A exception which would be impermissible in law. [Para 12] [836-C-D] 1.2. It is not correct to say that the sale of tobacco or tobacco related products would amount to a service. It 8 is difficult conceptually to say that "sale" and "service" are interchangeable items. "Sale" is defined under the Act as meaning a transfer of property in goods for consideration. It is obvious that "sale" has to be understood in this sense, and properly so understood would not include "service" which would refer not to C transfer of property in goods but to "service" as is understood in its ordinary sense. [Paras 12 and 13] [836- E-G] . Northern India Caterers (India) Ltd. v. Lt. Governor of D Delhi 1979 (1) SCR 557 - relied on. 1.3. In the present case, the well established distinction between "sale" and "service" would continue to apply in view of the definition of "sale" contained in Section 3(m) of the Cigarettes Act. The definition is a "means" and "includes" one. Such definition is a
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