Restaurants can’t serve hookah under eating house licenses: HC

Bombay high court has ruled that restaurants cannot run hookah parlours within their licensed premises, and hookah cannot be served from service areas of the establishments. The court rejected a petition filed by an entrepreneur who owns a restaurant in Chembur, which challenged an order from a health officer of the Brihanmumbai Municipal Corporation directing the establishment to stop serving hookah in the service area of the restaurant. The court said that the eating house license does not allow such activity.

MUMBAI: The Bombay high court last week held that restaurants cannot run hookah parlours within their licensed premises. It also said that hookah — herbal or otherwise — cannot be served from service areas of the establishments, as the eating house license does not allow such an activity.

Mumbai, India - May 02, 2023: The Orange Mint restaurant inside Asha Studios Compound, at Chembur, in Mumbai, India, on Tuesday, May 02, 2023. (Photo by Anshuman Poyrekar/ Hindustan Times) (Anshuman Poyrekar/HT PHOTO)

“It cannot be countenanced that grant of a license to conduct an eating house is deemed to include a license to conduct hookah activities,” said the division bench of justice Girish Kulkarni and justice RN Laddha while rejecting a petition filed by Sayli Parkhi, an entrepreneur who owns M/s. Parkhi Hospitalities and runs The Orange Mint restaurant in Chembur.

She had moved the high court after a health officer of M/West ward of the Brihanmumbai Municipal Corporation (BMC) on April 18, 2023, passed an order directing the establishment to stop serving hookah in the service area of the restaurant in seven days, failing which, the eating house license granted to them would be revoked.

The restaurant owner primarily contended that Section 394 of the Mumbai Municipal Corporation Act, 1888, which regulates license conditions, would not take within its ambit the issue of hookah activity in a restaurant.

The BMC, on the other hand, maintained that granting of an eating house license under section 394 of the MMC Act would not permit the petitioner to conduct any hookah activity, including serving of herbal hookah, inside the license establishment.

The high court accepted BMC’s contention and rejected the restaurant owner’s argument that the eating house license granted to her permitted “hookah activities” or serving hookah in the licensed premises. The bench said the contention of the owner was “totally untenable.”

“The canvass of Section 394 of the MMC Act, is quite broad to take within its ambit articles, trade, operations, which are dangerous to life, health or which are likely to create nuisance, as quite extensively described in the provision,” said the bench. “Thus, a narrow interpretation cannot be attributed to Section 394.”

“If the connotation of Section 394 of the MMC Act as canvassed on behalf of the petitioner, is accepted, it would be nothing but doing violence to the said provision, as such interpretation would mean that once an eating house license is granted, it would deem to include permission to conduct activities of a hookah parlour, or other similar activities,” the court said.

About serving “herbal” hookah, the court said forget the civic authorities, it may not be possible even for the eating house to control the ingredients of the hookah once the apparatus is in the custody of the customers.

The judges said in a restaurant or an eating house, where children, women and elderly visit for refreshments/eating, it cannot be expected that hookah is one of the menu items. “This would amount to an absolute nuisance in so far as an eating house is concerned,” the court added.

The court also rejected the petitioner’s contention that the order was not reasoned one, observing that the civic order explicitly set out the breach of license conditions based on material available with it. The court also noted that the order was passed after the civic authorities inspected the establishment twice and issued show cause notices to the owners.