NARINDER S. CHADHA & ORS.versusMUNICIPAL CORPORATION OF GREATER MUMBAI & ORS.

                    [2014] 12 S.C.R. 817


             NARINDER S. CHADHA & ORS.                             A
                              v.
 MUNICIPAL CORPORATION OF GREATER MUMBAI &
                        ORS.
        (Civil Appeal No. 10836 of 2014 Etc.)
                                                                   B
                   DECEMBER 08, 2014
       [RANJAN GOGOi AND R.F. NARIMAN, JJ.]

    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.
                                                                   G
     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
                             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.

                    s. 6 rlw. the Rules framed under the Act - Order dated
           B
               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
               temporary orders which cannot last beyond 2 months - Hence
           c   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.

                  Words and Phrases - 'Sale' and 'Service' - Meaning of,
           E 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
             and any other tobacco products, except to persons under
           G 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
                                                                 E
Section 3(m) of the Cigarettes Act. The definition is a
"means" and "includes" one. Such definition is an
exhaustive definition. There is thus, no scope to include
"service" in such a definition. [Para 13] [839-E-G]     ·

    P. Kasilingam and others v. P. S. G. College of              F
Technology and others 1995 (2) SCR 1061: 1995 Supp (2)
sec 348 - relied on.
    1.4. Even if it is accepted that 'sale' would amount to
'service', Rule 4(3) of Prohibition of Smoking in Public G
Places Rules, 2008 would become ultra vires Section 6
of the Act inasmuch as it would prohibit the sale of
cigarettes and other tobacco products in a smoking area
in hotels, restaurants and airports, thus, adding one more
exception to the two exceptions already contained in
                                                            H
   820     SUPREME COURT REPORTS           (2014] 12 S.C.R.


A Section 6. It is, thus, clear that this condition would be
  ultra vires the Cigarettes Act and the Rules properly .so
  read. [Para 13] [839-G-H]

       1.5 Condition No. 35(C) of the impugned circular
B essentially reproduces Rule 4(3) of the Rules and then
  adds the words "or any apparatus designed to facilitate
  smoking". The effec~ of the added words is that a Ho.okah
  cannot be provided by the hotel, restaurant or airport
  being an apparatus designed to facilitate smoking. It
C cannot be said thatthe Hookah would be "other things"
  designed to facilitate smoking which would be prohibited
  under Rule 3(1)(c). 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 would only apply where there is a total
D prohibition of smoking in all public places. On the other
  hand, where smoking is allowed in a smoking area or
  space, sub-rule (3) of Rule 4 ma.kes it clear that such
  place can be used for the purpose of "smoking". Under
  Rule 2(f) words and expressions not defined in these
E Rules but defined in the Act shall have the meanings,
  respectively, assigned to them in the Act. The definition
  of "smoking" contained in Section 3(n) o"i the Act
  includes smoking of tobacco in any form with the aid of
  a pipe, wrapper, or any other instrument, which would
F obviously include a Hookatt, That being the case,
  "smoking" with a Hookah would be permissible under
  Rule 4(3) and the expression ... no other service shall be
  allowed" obviously refers to services other than the
  providing ofa Hookah. It is, thus, evident that the added
G words in clause (C) of Condition No.35 are clearly ultra
  vires the Act and the Rules. Rule 3(1)(c) ·and Rule 4(3)
  have to be. harmoniously construed. What is expressly
  allowed by Rule 4(3) cannot be said to be taken away by
  Rule 3(1){c). [Paras 14, 15, 16, 17, 18 and 19] [840-A-H;
H 841-A-B]
      NARINDER S. CHADHA v. MUNICIPAL CORPORATION 821
                   OF GREATER MUMBAI
         1.6. Sub-clauses (D) and (E) of Condition No. 35 are       A
    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, the dimensions set out          B
    in (D) and (E)' will have to be followed in all cases. [Para
    20] [841-C, D]
         2. The notice dated 5th July, 2011 is ultra vires the
     Cigarettes Act and the Rules made thereunder as it
     prevents the owner of the hotel/restaurant from providing      C
     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
     prohibited within a radius of 100 yards of an educational
     establishment and not 300 feet as is stated in the             D
     impugned notice. [Para 23] [841-G, H; 842-A]
           3. Order dated 14th July, 2011, purportedly made
      under Section 33 of the Bombay Police Act read with
      Section 144 Cr.P;C. prohibited hotels and restaurants
      from providing the facility of hookah and prohibited          E
      hookah bars. The Division Bench of High Court
    · concluded that Section 33 of the Bombay Police Act
      would include the power to prohibit, stating that the word
      "regulate" would include "restriction" and even
      "prohibition". The word "regulate" would not include the      F
      power to prohibit. Further, Section 144 Cr.P.C provides
      a power to grant only temporary orders which cannot last
      beyond 2 months from the making thereof. If Section 144
      is to be invoked, the order dated 14th July, 2011 would
      have expired 2 months thereafter. The High Court stated       G
      that while administering the law, it is to be tempered with
      equity. One of the maxims of equity is that ·equity follows
      the law'. If the law is clear, no notions of equity can
      substitute the same. [Paras 24, 25 and 26] [842-B-C; 843-
      B-C; 844-D, E]                                                H


F
    824      SUPREME COURT REPORTS              [2014] 12 S.C.R.


A       Himat Lal K. Shah v. Commissioner of Police,
    Ahmedabad 1973 (2) SCR 266: ,1973 (1) SCC 227 - relied
    on.

       Godawat Pan Masala Products l.P. ·Ltd. & Anr. v. Union
B of India & Ors. 2004 (3) Suppl. SCR 239: (2004) 7 SCC 68;
  Bajinath Kedia v. State of Bihar & Ors. 1970'(2) SCR 100:
    1969 (3) sec 838;
                 1989 (2) SCR 92:, 1989 (2) sec 541 - cited.
                        Case L:.aw Reference:
c         2004 (3) Suppl. SCR 239 cited               Para 3
          1970 (2) SCR 100          cited             Para 3
          1989 (2) SCR 92           cited             Para 3
D         1979 (1) SCR 557          relied on         Para 13
          1995 (2) SCR 1061         relied on         Para 13
          1973 (2) SCR 266          relied on         Para 24
E       CIVIL APPELLATE JURISDICTION : Civil 'Appeal No.
    10836 of 2014.

        From the Judgment and Order dated 11-08-2011 of the
    High Court of Judicature at Bombay in Writ Petition {Lodging)
    No. 1540 of 2011.
F
                                  WITH

    Civil Appeal Nos. 10837-10839, 10840, 10841-10843, 10844-
    10845 and 10846 of 2014
G      · Pinky Anand, ASG, Chander Uday Singh, R.P. Bhatt, R.S.
    Suri, Sajan Poovayya, Rohan Thawani, Hardeep Singh Anand,
    Anand Daga, Vandana Sehgal, Shikha Sachdev, Navin
    Chawla, Arpit Maheshwari, Ketan Paul, Nakul Dewan, Mrigank
    Prabhakar, Faraz Maqbool, Ejaz Maqbool, Pradhuman, Gohil,
H
 NARINDER S. CHADHA v. MUNICIPf.L CORPORATION               823
              OF GREATER MUMBAI
Vikash Singh, Ms. Taruna Singh Gohil, Jaikriti S ..Jadeja,          A
Sunder Khatri, Shital Khatri, Rajesh Goyal, J.J. Xavier,
Bhargava V. Desai, VishaLChaudhary, Shailender Saini, Ms.
Sadhana Sandhu, D.S. Mahra, Sushma Suri, Rahul Malhotra,
Simar Suri, G. Suri, Chanchal Kumar Ganguli, Ajay Aggarwal,
Kanika Gamber, Ruchika, Sumit Attri, Priyadarshi Banerjee,          B
Prabal Mehrotra, Rajan Narain, M. Yogesh Kanna, Santha
Kumaran, J. Janani, Lalit Bhasin, Nina Gupta, Mudit Sharma,
Parvez A. Khan, Shirin Khajuria for the appearing parties.

    The Judgment of the Court was delivered by
                                                                    c
    R.F. NARIMAN, J. 1. Leave granted,

      2. In this batch of matters, we are concerned with the
Municipal Corporations of various cities implementing the
Cigarettes and other Tobacco Products                               D
{Prohibition of Advertisement and Regul~tion of Trade and
Commerce, Production, Supply & Distribution) Act, 2003. In the
first case before us, namely, civil appeal arising out of SLP{C)
No.30832 of 2011 - Narinder S. Chadha and others v.
Municipal Corporation of Greater Mumbai and others, a               E
judgment of the Bombay High Court dated 11th August, 2011
disposed of a writ petition in which several wide ranging
contentions were urged, and ultimately decided that the
impugned circular dated 4th July, 2011 only implemented the
Cigarettes and other Tobacco Products (Prohibition of               F
Advertisement and Regulation of Trade and Commerce,
Production, Supply & Distribution) Act, 2003 (hereinafter
referred to as the "Cigarettes Act") and the Prohibition of
Smoking in Public Places Rules, 2008 {hereinafter referred to
as the "Rules") and dismissed the challenge to the said circular.
Similarly, in cases arising from Chennai and Ahmedabad,             G
similar circulars/notices were under challenge and in both the
impugned judgments in SLP(C) Nos.19247-19248 of 2012
(Temperature etc. v. Deputy Police Commissioner, Zone-1
Ahmedabad and Others) and SLP(C) No.8143 of 2014
                                                                    H
    824      SUPREME COURT REPORTS                [2014] 12 S.C.R.

A (Robustaa (Hyglow Cafe) v. The Commissioner Corporation of
  Chennai and others), the Gujarat and Madras High Courts
  followed the Bombay High Court judgment dated 11th August,
  2011 ·and, consequently, dismissed the writ petitions filed
  before them. It is from these three judgments that appeals have
B been preferred.                      ·

         3. Mr. C.U. Singh, learned senior advocate appearing on
  ·behalf of the appellants in the civil appeal arising out of SLP(C)
   No.30832 of 2011 . made wide ranging arguments on the
   genesis of the .Cigarettes Act and the fact that it was legislation
C made under Entry 52 List I read with Entry 33 List Ill of the 7th
   Schedule to the Constitution of India. He cited Godawat Pan
   Masala Products l.P. Ltd. & Anr. v. Union of India & Ors.,
   (2004) 7 sec 68, particularly the concluding paragraph 77 (6)
   stating that the Cigarettes Act is a special Act dealing only with
D tobacco and tobacco products, while the Prevention of Food
   Adulteration Act, 1954 is general and must therefore yield to
   the Cigarettes Act. He also cited Bajinath Kedia v. State of
   Bihar & Ors., (1969) 3 SCC 838 for the proposition that once
   the requisite declaration under Section 2 of the Cigarettes Act
E is made; the State Government is denuded of any power to
   legislate in the field occupied by the Cigarettes Act. He also
   cited Paluru Ramakrishnaiah & Ors. v. Union of India &
   Anr., (1989) 2 SCC 541 for the proposition that executive
   instructions and conditions cannot be contrary to statute or
F statutory rules. Ultimately, however, he contenqed that there
   were three features of the impugned circular which required to
   be struck down being ultra vires the Cigarettes Act and ihe
   Rules made therein.

        4. The first condition did not allow a licensee of a
G restaurant to keep or sell or provide any tobacco or tobacco
 · related products in any form in the licenced premises. This,
   according to him, was contrary to Section 6 of the Cigarettes
   Act and the Rules made thereunder. Further, smoking areas
   which are to be used only for the purpose of smoking cannot
H
  NARINDER S. CHADHA v. MUNICIPAL CORPORATION                 825
       OF GREATER MUMBAI [R.F. NARIMAN, J.)

 have any apparatus designed to facilitate smoking. This in his-     A
 respectful submission puts a bar on Hookah smoking and is
 also outsid.e the scope of the Cigarettes Act read with the
 Rules. Further, smoking area dimensions laid down in
 paragraphs (D) and (E) of Condition No.35 were also
 conditions which one did not find either in the Cigarettes Act      B
 or in the Rules made thereunder and, hence, were ultra vires.
 Other learned counsel appearing for other appellants and
 interveners adopted the arguments of Shri Singh.

       5. Mr. R.P. Bhatt, learned senior counsel appearing for the   C
  Municipal Corporation of Greater Mumbai argued before us that
  on a true reading of the Cigarettes Act and the Rules made
  thereunder, all that the added conditions did was to implement
  the Cigarettes Act and the Rules and on a true construction of
  the Act and Rules nothing was really added to what is already
. there. Miss Pinky Anand, learned Additional Solicitor General      D
  appearing on behalf of the Union, broadly supported Mr. Bhatt's
  stand.

      6. In view of the rival contentions, the point that needs to
 be decided in this case is in a narrow compass. We have             E
 basically to see whether the impugned circular dated 4th July,
 2011 travels outside the Cigarettes Act and the Rules or merely
 seeks to implement the said Act and the Rules as they stand.

      7. For a determination of this case, it will be necessary to
                                                                     F
 set out the relevant statutory provisions. First, the Cigarettes
 Act-

           "Section 3- Definitions. - In this Act, unless the
      context otherwise requires,-
                                                                     G
      (k) "production", with its grammatical variations and
      cognate expressions, includes the making of cigarettes,
      cigars, cheroots, beedis, cigarette tobacco, pipe tobacco,
      hookah tobacco, chewing tobacco, pan masala or any
                                                                     H
      826       SUPREME COURT REPORTS                 (2014] 12 S.C.R.


A           chewing material having tobacco as one of its ingredients
            (by whatever name called) or snuff and shall include-

            (i) Packing, labeling or re-labelling, of containers;

            (ii) Re-packing from bulk packages to retail packages; and
 B
            (iii) The adoption of any other method to render the tobacco
            product marketable;              ·

            (I) "public place" means any place to which the public have
            access, whether as of right or not, and includes auditorium,
c
            hospital buildings, railway waiting room, amusement
            centres, restaurants, publicl offices, court buildings,
            educational institutions, libraries, public conveyances and
            the like which are visited by general public but does not
            include any open space;
 D
            (m) "sale", with its grammatical variations and cognate
            expressions, means any transfer of property in goods by
            one person to another, whether for cash or on credit, or
            by way of exchange, and whether wholesale or retail, and
 E          includes an agreement for sale, and offer for sale and
            exposure for sale;

            (n) "smoking", means smoking of tobacco in any form
            whether in the form of cigarette, cigar, beedis or otherwise
            with the aid of a pipe. wrapper or any other instruments;
 F
            (p) "tobacco products" means the products specified in the -
            Schedule."
                                "THE SCHEDULE
                                [See Section 3(p)]
 G
            1. Cigarettes

            2. Cigars

            3. Cheroots
H


...
 NARINDER S. CHADHA v. MUNICIPAL CORPORATION                  827
      OF GREATER MUMBAI [R.F. NARIMAN, J,]

    4. Beedis                                                         A

    5. Cigarette tobacco, pipe tobacco and hookah tobacco
    6. Chewing Tobacco
    7.Snuff                                                           B

    8. Pan masala or any chewing material hailing tobacco as
one of its ingredients (by whatever name called).

    9. Gutka
                                                                      c
    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          D
    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 cigarettes or other             E
    tobacco products to a person below the age of
    eighteen years and in particular areas.- 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         F

    (b) in an area within a radius of one hundred yards of any
    educational institution.

    Section 21. Punishment for smoking in certain                     G
    places.- (1) Whoever contravenes the provisions of section
    4 shall be punishable with fine which may extend to two
    hundred rupees.


                                                                      H
    82.8       SUPREME COURT REPORTS                [2014) 12 S.C.R.

A          (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 cigarette or any
B
           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
c          rupees.

           (2) All offences under this section shall be compoundable
           and shall be tried summarily in accordance with the
           procedure provided for summary trials in the Code of
D          Criminal Procedure, 1973 (2 of 1974).

           Section 31. Power of the Central Government to
           make rules.- (1) The Central Government may, by
           notification in the Official Gazette, make rules to carry out
           the provisions of this Act.
E
           (2) Without prejudice to the generality of the foregoing
           power, such rules may.provide for all or any of the following
           matters, namely: -

F          (a) specify the form and manner in which warning shall be
           given in respect of cigarettes or other tobacco products
           under clause (o) of section 3;

           (b) specify the maximum permissible nicotine and tar
           contents in cigarettes or other tobacco products under the
G          proviso to sub-section ~5) of section 7;

           (c) specify the manner in which the specified warning shall
           be inscribed on each package of cigarettes or other
           tobacco products or its label under sub-section (2) of
H
 NARINDER S. CHADHA v. MUNICIPAL CORPORATION 829
      OF GREATER MUMBAI [R.F. NARIMAN, J.]

   section 8;                                                         A

   (d) specify the height of the letter or figure or both to be
   used in specified warning or to indicate the nicotine and
   tar contents in cigarettes or other tobacco prod_ucts under
   section 10;                                                        B
                  •
   (e) provide for the manner in which entry into and search
   of any premises is to be conducted and the manner in
   which the seizure of any package of cigarettes or other
   tobacco products shall be made and the manner in which
   seizure list shall be prepared and delivered to the person         C
   from whose custody any package of cigarettes or other
   tobacco products has .been seized;

    (f) provide for any other matter which is required to be, or
    may be, prescribed.                                               o
    (3) Every rule made under this Act and every notification
    made under section 30 shall be laid, as soon as may be
    after it is made, before each House of Parliament while it
    is in session, for a total period of thirty days which may
    be comprised in one session or in two or more successive          E
    sessions, and if, before the expiry of the session
    immediately following the session or the successive
    session aforesaid, both Houses agree in making any
    modification in the rule or notification or both Houses agree
    that the rule or notification should not be made, the rule or     F
    notification shall thereafter have effect only in such modified
    form or be of no effect, as the case may be; so, however,
    that any such modification or annulment shall be without
    prejudice to the validity of anything previously done under
    that rule or notification."                                       G

     The Prohibition of Smoking in Public Places Rules, 2008
are also relevant.


                                                                      H
     830       SUPREME COURT.REPORTS                  [2014] 12 S.C.R.


A          "2. Definitions.-lri these rules, unless the context otherwise
           requires,-

           (d} "public place" defined in Section 3(1} of the Act shall
           also include work places, shopping malls, and cinema
B.         halls.

           (e} "smoking area or space" mentioned in the proviso to
           Section 4 of the Act shall mean a separately ventilated
           smoking room !hat-

e          (i) is physically separated and surrounded by full height
           walls on all .four sides;

           (ii) has an entrance with an automatically closing door
           normally kept in close position;

D          (iii) has an air flow system, as specified in schedule I,

           (iv) has negative air pressure in comparison with the
           remainder of the building. '                        ·

           (f) Words and expressions used herein and not defined in
E          these rules but defined in the Act shall have the meanings,
           respectively, assigned to them in the Act.

           3. Prohibition of smoking in a public place.~ (1) The
           owner, proprietor, manager, supervisor or in charge of the
F          affairs of a public plaee shall ensure that:

           (a) No person smokes in' the public place (under his
           jurisdiction/implied).          ·   ·

           (b) The board as specified in schedule JI is displayed
G          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.
H
NARINDER S. CHADHA v. MUNICIPAL CORPORATION               831
     OF GREATER MUMBAI [R.F. NARIMAN, J.]
  (c) No ashtrays, matches, lighters or other things designed     A
  to facilitate smoking are provided in the public place.

  (2) The owner, proprietor, manager, supervisor or incharge
  of the affairs of a public place shall notify and cause to be
  displayed prominently the name of the person(s) to whom
                                                                  8
  a complaint may be made by a person(s) who observes
  any person violating the provision of these Rules.

  (3) If the owner, proprietor, manager, supervisor or the
  authorized officer of a public place fails to act on report of
  such violation, the owner, proprietor, manager, supervisor C
  or the authorized officer shall be liable to pay fine.
  equivalent to the number of individual offences.

   4. Hotels, Restaurants and Airports. - (1) The owner,
   proprietor, manager, supervisor or in-charge of the affairs    0
   of a .hotel having thirty or more rooms or restaurant having
   seating capacity of thirty persons or more and the
 · manager of the airport may provide for a smoking area or
   space as defined in rule 2(e).

  (2) Smoking area or space shall not be established at the       E
  entrance or exit of the hotel, restaurant and the airport and
  shall be distinctively marked as "Smoking Area" in English
  and one Indian language, as applicable.

  (3) A smoking area or space shall be used only for the          F
  purpose of smoking and no other service(s) shall be
  allowed.

  (4) The owner, proprietor, manager, supervisor or in-
  charge of the affairs of a hotel having thirty or more rooms    G
  may designate separate smoking rooms in the manner
  prescribed as under:

    (a)   all the rooms so designated 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    H
    832          SUPREME COURT REPORTS            [2014] 12 S.C.R.
                      •
A                 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.                 ·
B          (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 the corridors."

c       8. The Cigarettes Act was really in implementation of
  World Health Assembly Resolutions and was enacted to put a
  total ban on advertising of tobacco products and to prevent the
  sale of tobacco products to minors. It is also legislation which
  seeks to implement Article 47 of the Constitution which reads
0 as under:-
          "47. Duty of the State to raise the level of nutrition and
          the standard of living and to improve public health.-·
          The State shall regard the raising of the level of nutrition
          and the standard of living of its people and the
E         improvement of public health as among its primary duties
          and, in particular, the State shall endeavour to bring about
          prohibition of the consumption,· except for medicinal
          purposes of intoxicating drinks and of drugs which are
          injurious to health."
F
       9. It all began vide an order dated 5th May, 2011 in a
  Public Interest Litigation which is No.111 of 2011 in which the
  Bombay High Court asked the Municipal Corporation to
  incorporate terms and conditions while issuing licences under
G Section 479 of the Mumbai Municipal Corporation· Act so as
  to comply with the provisions of the Cigarettes Act and the
  Rules made thereunder. This was directed to be done within a
  period of six weeks. It is as a result of this direction that the
  impugned circular dated 4th July, 2011 was issued in which
H
 NARINDER S. CHADHA v. MUNICIPAL CORPORATION                833
      OF GREATER MUMBAI [R.F. NARIMAN, J.)
Conditions 35 to 37 in general conditions of licence issued         A
under Section 394 of the Mumbai Municipal Corporation Act
were to be added. These conditions read as under:

          "Condition No. 35: The· licensee shall not keep or
    allow to keep or sell or provide any tobacco or tobacco         8
    related products in any form whether in the form of
    cigarette, cigar. bidis or otherwise with the aid of a pipe,
    wrapper or any other instrument in the licensed premises.

           The Commissioner may permit smoking area as per
    Section 4 of Cigarette and other Tobacco Products C
    (Prohibition of Advertisement and Regulation of Trade and
    Commerce Production Supply and Distribution) Act, 2003
    (COTPA) in an eating house having seating capacity of.
    thirty persons or more.
                                                              D
    A) The smoking area shall mean separately ventilated
    smoking room that:

    i. is physically separated and surrounded by full height
    walls on all four sides.
                                                                    E
    ii. has an entrance with an automatically closing doors
    normally kept in close position.

    iii. has an air flow system that

           a. is exhausted directly to the ou.tside and not mixed   F
           back into the supply air for the other parts of the
           building. ..

           b. is fitted with a non-recirculation exhaust
           ventilation system or an air cleaning system, or by      G
           a combination of the two, to ensure that the air
           discharges only in a manner that does not re-
           circulate or transfer it from a smoking area or
           space to non-smoking areas.
                                                                    H
    834       SUPREME COURT REPORTS                [2014] 12 S.C.R.


A                iv. has negative air pressure in comparison with the
                 remainder of the building.

                 B) The smoi<ing area shall not be established at the
                 Entrance or Exit of the. eating house and shall be
                 distinctively marked as "Smoking Area" in English
B
                 & in Marathi as per the COTPA.-

                 C) The Smoking area shall be used only for the ·
                 purpose of smoking and no other service(s) or any
                 apparatus designed to facilitate smoking shall be
c                provided.

                 D) The smoking area shall not be less than 100 sq.
                 ft. with each side of the room shall not be less than
                 8 ft. and height of the room shall not be less than 9
D                ft The smoking area shall be included in the
                 licensed area of the eating house.

                 E) The total area of the smoking room shall not be
                 more than 30% of the total licensed service area
                 of the eating house.
E
          .Condition No.36: No person below the age of 18 years
           shall be permitted in the smoking area.

          Condition No.37: The owner, proprietor, manager,
          supervisor in charge of the eating house shall notify and
F
          caused to be displayed prominently the name of the
          person(s) to whom .a complawt may be made by a
          person(s) who observes any person violating the provisions
          of COTPA.

G               The Licensee shall comply with the aforesaid
          conditions and breach of any of the condition shall entail
          cancellations/ suspensions/ revocations of License.

               The proposal regarding inclusion of the smoking
H
  NARINDER S. CHADHA v. MUNICIPAL CORPORATION                835
       OF GREATER MUMBAI [RF. NARIMAN, J.]
     area in the licensed area of Eating House shall be              A
     approved by the concerned DEHO.

           All concerned officers of Health Department &
     Licence Department are hereby instructed to stringently
     enforce the above mentioned condition nos. 35 to 37 of          8
     the general conditions of Licences under Section 394 of
     MMC Act. These conditions should be incorporated in all
     existing as well new Eating House Licenses.

           A notice may be issued to all the existing Eating
     Houses Licensees that condition nos. 35 to 37 shall be          C
     deemed to be incorporated in the existing licenses and
     any breach of the same shall entail suspension/revocation
     of the said License.

          All the concerned Officers of the Health Department        D
     are directed to take special drive against those eating
     houses against whom complaints of serving hukkah are
     received and take stringent action by following due
     procedure."

       10. Mr. Bhatt appearing for the Municipal Corporation         E
· urged that this circular would be valid being issued under
  Section 394 (1)(d) of the Mumbai Municipal Corporation Act
  which reads as under:-

     "394. Certain articles or animals not to be kept and certain    F
     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.

     (1) Except under and in accordance with the terms and
     conditions of the licence granted by the Commissioner, no       G
     person shall-

     (d) keep or use, or suffer or allow to be kept or used, in or
     upon any premises, any article or animal which, in the
                                                                     H
      836       SUPREME COURT REPORTS               [2014) 12 S.C.R.


. A         opinion of the Commissioner, .is dangerous to life, health
            or property, or likely to create a nuisance either from its
            nature or by reason of the manner in which, or the
            conditions under which, the same is, or is proposed to be,
            kept or used or suffered or allowed to be kept or used;"
  B
           11. According to Mr. C.U. Singh, the very first paragraph
      of Condition No.35 is bad inasmuch as it does not allow the
      licensee to keep or sell or provide any tobacco or tobacco
      related products in the licenced premises. We find
      considerable force in this submission.
 c
         12. It will be noticed that Section 6 of the Cigarettes Act
    permits the sale of cigarettes 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
  D that any condition which prohibits the sale of cigarettes or any
    other tobacco products in premises licenced by the Municipal
    Corporation would amount to adding another exception which
    would be impermissible in law. Mr. Bhatt sought to uphold this
    condition with a reference to Rule 4(3) as, in his submission,
  E in a smoking area "no other service shall be allowed".
    According to him, the sale of .tobacco or. tobacco related
    products would amount to a service that cannot be so allowed.

           13. We cannot accept this contention for more than one
  F reason. First and foremost, it 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 transfer of property
  G in goods but to "service" as is understood in its ordinary sense.
      In Northern India Caterers (India) Ltd. v. Lt. Governor of
      Delhi [1979] 1 S.C.R. 557, a distinction wcis made between
    · sale of food and the provision of services in hotels and
      restaurants. The Court held:-
  H
NARINDER S. CHADHA v. MUNICIPAL CORPORATION              837
     OF GREATER MUMBAI [R.F. NARIMAN, J.)
  "Like the hotelier, a restaurateur provides many services A
  in addition to the supply of food. He provides furniture and
  furnishings, linen, crockery and cutlery, and. in the eating
  places of today he may add music and a specially provided
  area for floor dancing and in some cases a floor show. The
  view taken by the Englii;h law found acceptance on B
  American soil, and after some desultory dissent initially in
  certain states it very soon became firmly established as
  the general view of the law. The first addition of American
  Jurisprudence [ Vol. 46, p. 207, para 13) sets forth the
   statement of the law in that regard, but we may go to the c
   case itself, Electa 8. Merrill v. James W. Hodson [1915
   B LRA 481) from which the statement has been derived.
   Holding that the supply of food or drink to customers did
   not partake of the character of a sale of goods the Court
   commented:
                                                                  D
         'The essence of it is not an agreement for the
         transfer of the general property of the food or drink
         placed at the command of the customer for the
         satisfaction of his desires, or actually appropriated
         by him in the process of appeasing his appetite or       E
         thirst. The customer does not become the owner of
          the food set before him, or of that portion which is
          carved for his use, or of that which finds a place
          upon his plate, or in side dishes set about it. No
          designated portion becomes his. He is privileged        F
          to eat, and that is all. The uneaten food is not his.
          He cannot do what he pleases with it. That which
          is set before him or placed at his command is
          provided to enable him to satisfy his immediate
          wants, and for no other purpose. He may satisfy         G
          those wants; but there he must stop. He may not
          turn over unconsumed portions to others at his
           pleasure, or carry away such portions. The true
          essence of the transaction is service in the
                                                                  H
      838       SUPREME COURT REPORTS                [2014] 12 S.C.R.

'IA                satisfaction of a human need or desire,- ministry
                   to a bodily want. A necessary incident of this
                   service or ministry is the consumption of the food
                   required. This consumption involves destruction,
                   and nothing remains of what is consumed to which
 B                 the right of property .can be said to attach. Before
                   consumption title does not pass; after consumption
                   there remains nothing to become the subject of title.
                   What the customer pays for is a right to satisfy his
                   appetite by the process of destruction. What he thus
 c                 pays for includes more than the price of the food
                  ·as such. It includes all that enters into the
                   conception of service, and with it no small factor of
                   direct personal service. It does not contemplate the
                   transfer of the general property in the food applied
                   as a factor in the service rendered."
 D
           This led to the Constitution 46th Amendment Act by which
      Article 366 (29A) was inserted. Article 366 (29A) reads as
      follows:-

.E          "Article 366 (29-A) "tax on the sale or purchase of goods"
            includes-

            (a) a tax on the transfer, otherwise than in pursuance of a
            contract, of property in any goods for cash, deferred
            payment or other valuable consideration;
 F
            (b) a tax on the transfer of property in goods (whether as
            goods or in some other form) involved in the execution of
            a works contract;

 G          (c) a tax on the delivery of goods on hire-purchase or any
            system· of payment by installments;

            (d) a tax on the transfer of the right to use any goods for
            any purpose (whether or not for a specified period) for
            cash, deferred payment or other valuable consideration;
 H
 NARINDER S. CHADHA v. MUNICIPAL CORPORATION                 839
      OF GREATER MUMBAI [RF. NARIMAN, J.]
     (e) a tax on the supply of goods by any unincorporated         A
     association or body of persons to a member thereof for
     cash, deferred payment or other valuable consideration;

     (f) a·tax on the supply, by way of or as part of any service
     or in any other manner whatsoever, of goods, being food        8
     or any other article for human consumption or any drink
     (whether or not intoxicating), where such supply or service
     is for cash, deferred payment or other valuable
     consideration,

     and such transfer, delivery or supply of any goods shall be    C
     deemed to be a sale of those goods by the person making
     the transfer, delivery or supply and a purchase of those
     goods by the person to whom such transfer, delivery or
     supply is made;".
                                                                     D
        It will be seen ·that the definition of tax on the sale or
 purchase of goods has been artificially expanded more
  particularly by sub-clause (f), with which we are concerned,
  where the distinction between "sale" and "service" has been
  done away with. In the present case, the well established · E
  distinction between "sale" and "service" would continue to apply
  in view of the definition of "sale" contained in Section 3(m). It
  will be noticed that the definition is a "means" and "includes"
  one. It is well settled that such definition is an exhaustive
  definition (see: P. Kasilingam and others v. P.S.G. College
  of Technology and others 1995 Supp (2) SCC 348 at para . F
  19). There is thus, no scope to include "service' in such a
  definition. Further, even if we were to accept Mr. Bhatt's
  contention, Rule 4(3) would become ultra vires Section 6 of the
  Act inasmuch as it would prohibit the sale of cigarettes and
  other tobacco products in a smoking area in hotels, restaurants G
   and airports, thus, adding one more exception to the two
· exceptions already contained in Section 6. It is, thus, clear that
   this condition would be ultra vires the Cigarettes Act and the
   Rules properly so read.
                                                                      H
    840      SUPREME COURT REPORTS                 (2014] 12 S.C.R.

A      14. It will be seen that Condition No. 35(C) of the impugned
  circular essentially reproduces Rule 4(3) of the said Rules and
  then adds the words "or any apparatus designed to facilitate
  smoking". The effect of the added words is that a Hookah
  cannot be provided by the hotel, restaurant or airport being an
B apparatus designed to facilitate smoking.                       ·

       15, Mr. Bhatt sought to derive power for the added words
  from Rule 3(1 )(c) and argued that the Hookah would be "other
  things" designed to facilitate smoking which would be prohibited
C under Rule 3(1)(c).

         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 hfbited 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                  841
      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'           8
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 C
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 D
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   E
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       F
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      G
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              H
     842     SUPREME COURT REPORTS              (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
8
  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:

E        "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
F        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
G
         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
H
 NARINDER S. CHADHA v. MUNICIPAL CORPORATION             843
      OF GREATER MUMBAI [R.F. NARIMAN, J.]

    holding of meetings but only prescribe that permission      A
    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
                                                                8
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   C
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 E
    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 G
    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   H
    844       SUPREME COURT REPORTS                   (2014] 12 S.C.R.


A          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
B          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.