Mountain Inn Hotel Pvt. Ltd. & Anr vs The State Of West Bengal & Ors
2021 Latest Caselaw 180 Cal

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14.01.2021.
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                IN THE HIGH COURT AT CALCUTTA
               CONSTITUTIONAL WRIT JURISDICTION
                        APPELLATE SIDE

                    W.P.A. No. 20279 of 2018
                               With
                     IA No.: C.A.N. 2 of 2020
                   (Old No. C.A.N. 239 of 2020)

              Mountain Inn Hotel Pvt. Ltd. & Anr.
                             Vs.
               The State of West Bengal & Ors.


              Mr. Billwadal Bhattacharyya,
              Mr. Rajdeep Majumdar,
              Mr. Moyukh Mukherjee
                               ... for the petitioners

              Mr. Tapan Kumar Mukherjee,
              Mr. Somnath Naskar
                             ...for the respondent-authorities.

The petitioners' grievance is three-fold:

i) The District Magistrate and Collector,

Darjeeling, vide order dated May 04, 2018,

held that the petitioner was in violation of

Section 4C of the West Bengal Land

Reforms Act, 1955 and, subsequently, the

SDL & LRO, Darjeeling, was to take over

the possession of the vested land and lodge

FIR against the Management of Pine Tree

Hotel, under Section 52 of the West Bengal

Land Reforms Act, 1955 for illegal

occupation of Government vested land and

for violation of Section 4C of the said Act.

The Collector further directed the

management of the hotel to restore the

character of the vested land to its original

within two weeks after receipt of such

order. It was indicated that Darjeeling,

being vulnerable to high seismic zone

activity and in view of its past history of

such seismic occurrence, the conversion

would pose a threat to the lives of people.

The Chairman, Darjeeling Municipality,

was directed to ensure, under Section 218

of the West Bengal Municipality Act, 1993,

to demolish the portion of the illegal

structure violating the vertical and lateral

permissible sanctioned limit of the said

building. Certain ancillary directions were

also given.

ii) Pursuant to the aforesaid order, vide order

dated September 24, 2018, the resort of the

petitioners, namely, M/s Pine Tree SPA

Resort, was sealed with effect from 11.00

a.m of September 28, 2018.

iii) Subsequently, vide order dated October 11,

2018, the "Sarai Licence", purportedly

issued to M/s. Pine Tree Resort by the

authorities vide order No. 69/JM, dated

September 22, 2015, was cancelled and

revoked.

Learned counsel for the petitioners argues that the

portion of the Collector's order, whereby violation of the

municipal law was alleged, was challenged in a writ

petition and a learned Single Judge set aside the order of

demolition passed by the Collector.

As far as the rest of the order of the Collector was

concerned, the petitioners approached this Court, but

were relegated to the concerned Tribunal, subsequently

having preferred an appeal before the Land Reforms and

Tenancy Tribunal on that score.

Such appeal is still pending, but no interim order

has been passed in connection therewith.

It is argued that, since the matter is sub judice

before the Tribunal and partially set aside by a co-

ordinate Bench of this Court, the respondent-authorities

acted without jurisdiction in sealing the petitioners'

resort and in cancelling the 'sarai licence' given to the

petitioners.

Learned counsel for the petitioners argues that, in

the event the petitioners were to be evicted from the plot-

in-question, the authorities can at best resort to the

West Bengal Public Land (Eviction of Unauthorised

Occupants) Act, 1962, upon due compliance of all

formalities as mentioned in the said Act.

It is further submitted that the power of the

authorities regarding shutting up or taking down 'sarais'

under the Sarais Act, 1867 Act is confined to Sections 9

and 10 of the said Act, which only confers such power to

the authorities in the event the 'sarais' are either

deserted or in a ruinous condition.

As such, learned counsel submits that the orders

of closure of the resort of the petitioners as well

cancellation of licence ought to be set aside.

Learned counsel places reliance on the judgment

reported at AIR 1989 SC 997 (State of U.P. & Ors. Vs.

Maharaja Dharmander Prasad Singh), for arguing the

scope of interference by this Court in judicial review, by

application of the Wednesbury principle. Learned

counsel also places reliance on a judgment reported at

2019(3) CHN (Cal) 1 (Sanjoy Saha vs. State of West

Bengal) .

In reply, learned senior counsel appearing for the

respondent-authorities argues that the closure of the

petitioners' resort as well as the subsequent cancellation

of license were in execution of the order of the Collector,

which still subsists.

Learned senior counsel places reliance on Sections

4C and (5)(a), read with Section 57, of the West Bengal

Land Reforms Act, 1955 in support of the proposition

that the Collector under the said Act has ample power to

do so.

Learned counsel also submits that the guilty resort

also contravened the municipal law as well as several

other legal norms, such as carrying an invalid no-

objection certificate from the fire authorities, which

justified the action impugned in the present writ petition.

A perusal of the Sarais Act. 1867 discloses that

"sarais" have been defined in Section 2 thereof as any

building or part of building used for the shelter and

accommodation of travellers.

Section 3 of the said Act merely stipulates that the

notice of the Act itself shall be given by the Magistrate to

the keeper of the 'sarai'. Such notice was also intended

to require the keeper to register the 'sarai', as provided

by the Act.

Section 4 provides for registration, which merely

pertains to the Magistrate of the District keeping a

register in which shall be entered by such Magistrate or

persons authorized by him, the names and residences of

the keepers of all 'sarais' within his jurisdiction and the

situation of every such 'sarai'. It has also been

stipulated that no charge shall be imposed for making

any such entry.

Section 5 indicates that, from one month after

giving such notice to register, the keeper of any 'sarai' or

any other person shall not receive any lodger or allow

any person etc. to halt or to be placed in such 'sarai'

until the same and the name and residence of the keeper

thereof shall have been registered, as provided in the Act.

In the present case, no allegation has been raised

by the respondents regarding the resort-in-question

having not been registered under Section 4 at the

relevant juncture.

The entire Act of 1867 does not contain any

provision for grant of licence for the purpose of running a

'sarai'. The provisions, as indicated above, merely state

the nature of a 'sarai', being a building or part thereof

used for the shelter or accommodation of travellers, not

restricting such accommodation only to commercially-

run businesses but also to all other such

shelters/accommodations, including charitable

institutions.

The requirement to maintain register under the

Act, by itself, cannot indicate the necessity of any licence

to run a Sarai as such, since the register, envisaged

under Section 4 of the Act, merely requires the

Magistrate to record the names and residences of the

keepers and the situation of the 'sarai', which existed

prior to such recording but need not run subject to

issuance of any permission by the Magistrate.

Hence, the "sarais licence" issued to the

petitioners, in the first place, was de hors the law. As

such, there is no scope for cancellation of such licence,

which is itself a fiction. The entire concept of a 'sarai

licence' as evidenced from this case, is based of thin air

and has no legal basis.

However, needless to say, the petitioners must

have appropriate licences for running a hotel business

from the resort, as otherwise provided by law, although

not under the Act of 1867. There is no scope of going

into such laws in the present writ petition.

As regards the order of the Collector holding that

the petitioners violated Section 4C of the Act of 1955,

such finding is still in force, subject to result of the

appeal before the Tribunal. In the absence of any order

of stay of operation of such order by the Tribunal, it

cannot be argued that the said order of the Collector

dated May 4, 2018 cannot be implemented. Clause 5(c)

of Section 4C empowers the Collector to take action for

restoring the original character of a plot of land in the

event the concerned raiyat or lessee failing to comply

with the order of the Magistrate, as passed under Clause

5(a) thereof. Section 57(f) of the 1955 Act, on the other

hand, provides that any officer, in dealing with

proceedings under the 1955 Act, shall exercise the

powers of a Civil Court under the Code of Civil

Procedure, inter alia, for the purpose of enforcing or

executing orders including an order for restoration of

possession as if such orders were decrees of a civil court.

In such view of the matter, the action taken by the

respondent-authorities in closing/sealing the resort-in-

question was in consonance with the order of the

Collector dated May 4, 2018 and cannot be faulted. Such

action comes within the purview of implementation of the

order dated May 04, 2018 regarding restoration of the

character of the occupied land.

However, the subsequent action of cancelling the

licence of the petitioners is bad in law; first, because

such licence has no force of law at all, thereby rendering

such cancellation retrospectively void and meaningless;

secondly, the Act of 1867 does not contemplate any such

cancellation of licence or other penal action by way of

shutting up or taking down a "sarai", unless deserted or

in ruinous condition, as contemplated in Sections 9 and

10 of the 1867 Act.

Such condition having not been fulfilled, the order

of the Additional District Magistrate (G), Darjeeling, being

No. 166/JM dated October 11, 2018 (connected with

Memo No. 390/JM of even date), cancelling the 'sarai

licence' of the petitioners, is set aside.

As far as the impugned order of sealing the resort,

dated September 24, 2018 (at page 149 of the writ

petition) is concerned, the same shall be remain in force,

subject to the result of the appeal preferred by the

petitioners before the Land Reforms and Tenancy

Tribunal.

There is no scope for interference with the order

dated May 04, 2018 passed by the Collector in exercise

of powers under the 1955 Act since the matter is sub

judice before the competent Tribunal. It may be added, in

fine, that the argument of the writ petition not being

maintainable at the behest of the petitioner company, is

not acceptable, since it has been adequately pleaded in

the writ petition that it is the petitioner no. 1 company

which runs the management of the concerned resort,

that is, M/s. Pine Tree SPA Resort. Such view is further

bolstered by the language of the Collector himself in the

order dated May 04, 2018, where all directions have been

issued to the "management" of the said resort and not to

the hotel itself.

W.P.A. No. 20279 of 2018 along with C.A.N. 2 of

2020 (old No. 239 of 2020) are disposed of in the light of

the aforesaid observations.

There will be no order as to costs.

Urgent photostat certified copies of this order, if

applied for, be made available to the parties upon

compliance of all necessary formalities.

(Sabyasachi Bhattacharyya, J.)