Mohammad Ishaq Khanday vs Ut Of Jk And Ors
2022 Latest Caselaw 1167 j&K/2

                                                            S. No. 10
                                                            Regular
    IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
                       AT SRINAGAR

                          WP(C) No. 2249/2021

                                   Reserved on:             26.07.2022
                                   Pronounced on:           02.08.2022

Mohammad Ishaq Khanday                                          ...Petitioner(s)

Through: Mr. M.Y.Bhat, Sr. Adv, with Mr. Faizan Majid Bhat, Adv.

                                     Vs.

UT of JK and Ors.                                              ...Respondent(s)

Through: Mr. Ilyas Laway, GA.

CORAM:

HON'BLE MR JUSTICE SANJEEV KUMAR, JUDGE

JUDG MENT

01. The petitioner is aggrieved of and has assailed the order of Director

Tourism, Kashmir, bearing No. Reg/1373/398/DTK dated 28th

October, 2021, ['impugned order'], whereby the renewal of

registration certificate of Guest House "Zoon Dabb" granted in

favour of the petitioner has been withdrawn ab-initio.

02. Briefly, stated the facts as projected by the petitioner in this petition

are that petitioner purchased a piece of land measuring 02 Kanals

falling under Khasra No. 711 min situate at Humhama Budgam vide

Sale Deed dated 5th November, 2115. Pursuant to the building

permission granted by the Srinagar Municipal Corporation, the

petitioner raised the construction of a Guest House in the year 2016.

On 4th December, 2017, one, Jameela Aziz, purchased the adjacent

piece of land measuring 03 Kanals and 06 Marlas. For almost three

years there was no objection by Jameela Aziz with regard to the

running of the Guest House, but in the year 2020, the husband of

WP(C) No. 2249/2021

Jameela Aziz, started harassing the petitioner by involving him in

uncalled-for litigation.

03. The civil suit was filed on 18th August, 2020 in the civil court at

Budgam. The petitioner has already caused his appearance and filed

written statement to the said suit, which is still pending adjudication.

While the civil suit was pending, the husband of Jameela Aziz,

namely, Aijaz Ahmad Wawa, filed WP(C) No. 1619/2020 in this

Court and prayed for quashing of the order issued by the

Superintending Engineer sanctioning power and permission for

creation of 100 KV transformer in favour of the petitioner.

04. The petitioner claims that he has appeared in the writ petition and

filed objections. However. Mr. Aijaz Ahmad Wawa, the husband of

Jameela Aziz withdrew the said writ petition on 10 th March, 2021

without seeking any permission to file fresh petition. The petitioner

submits that he had completed all the formalities required under law

for registration of the Guest House when it was initially registered up

to 31st of March, 2020 and thereafter the registration was extended up

to 31st March, 2021. The petitioner, however, did not get any response

for further renewal of his registration though he had applied online

well within time. The petitioner filed representations before the

respondents to grant him renewal of the registration certificate for

another one year. The petitioner was, however, given to understand

that due to some complaint against him pending before the Anti-

Corruption Bureau [ACB], Kashmir, it was not possible for the

prescribed Authority to renew the registration certificate of the

petitioner for running the Guest House by the name of "Zoon Dabb"

WP(C) No. 2249/2021

at Humhama Budgam. The petitioner has been handed over the

impugned order withdrawing his renewal of registration certificate

granted up to 31st March, 2022.

05. The order impugned is assailed by the petitioner, inter alia, on the

ground that the order impugned, whereby the right of the petitioner to

run the Guest House has been taken away by withdrawing the

registration, is illegal, arbitrary and in violation of Jammu and

Kashmir Registration of Tourist Trade Act, 1978 ['the Act'] and the

Rules framed thereunder. The impugned order is also assailed on the

ground that before issuing the order impugned, the petitioner was not

provided any opportunity of being heard and, therefore, the impugned

order is not sustainable.

06. Mr. M.Y.Bhat, learned senior counsel, appearing for the petitioner,

also argued that mere lodging of complaint before the ACB, Kashmir,

and ACB taking up preliminary verification is no ground to deny

registration of the Guest House of the petitioner.

07. On being put on notice, the respondents have filed their objections.

It is submitted that Guest House of the petitioner was registered with

the Department of Tourism under Registration No.

Reg/1373/1400/DTK/L8/P57, which was initially renewed up to 31 st

March, 2021. The petitioner filed an application for renewal of his

registration, but before the same could be considered, the respondents

received a communication from ACB, Kashmir dated 3rd April, 2021,

intimating the respondents that there is some dispute viz-a-viz the

Guest House pending investigation before the ACB, Kashmir. It is

further submitted by the respondents that notwithstanding some

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preliminary verification registered with ACB, Kashmir, the

certificate of the registration of the petitioner was renewed, but the

same was subsequently reviewed on the same day and the renewal

withdrawn until the final outcome of the enquiry being conducted by

the ACB, Kashmir.

08. Having heard learned counsel for the parties and perused the material

on record, I am of the view that the prescribed Authority of the

respondents i.e., Director Tourism, Kashmir, is not competent in law

to refuse registration simply on the ground that verification No.

16/2021-2190 is registered with ACB, Kashmir. The registration of a

person dealing with tourist trade is governed and regulated by the Act.

Part III of the Act deals with the registration of hotels. The term

"Hotel" defined in Section 2 (e) of the Act includes a Guest House

also. From reading of Section 9 to Section 17 contained in Part III of

the Act, one would not find any mention of the period for which

registration of a Hotel/Guest House could be granted by the

prescribed Authority nor does it specifically deal with annual renewal

of the registration. However, the Registration of Tourist Trade Rules,

1979, ['the Rules'] do contain a provision in the shape of Rule 3 with

regard to annual renewal of the registered tourist unit. The removal

of the name from the register and consequent cancellation of the

certificate of registration is regulated by Section 12 of the Act read

with Rules 8 to 10 of the Rules. Section 14 of the Act specifically

prescribes that before removing the name of hotel from register under

Section 12 of the Act, the prescribed Authority shall give a notice to

hotel keeper of the grounds or ground on which it is proposed to take

WP(C) No. 2249/2021

action and hold an inquiry in the presence of hotel keeper giving him

reasonable opportunity of showing cause against it. For facility of

reference Section 12 and Section 14 of the Act are reproduced as

under: -

"...Section 12, Removal of the name from the register. (1) The prescribed authority may by an order in writing, remove the name of a hotel from the register and cancel its certificate of registration on any of the following grounds namely: -

(a) if the hotel-keeper ceases to operate the hotel in the tourist area for which it is registered;

(b) if the hotel-keeper is convicted of any offence under Chapters XIII and XVII of the Ranbir Penal Code, or under any of the provisions of this Act or of any offence punishable under any law providing for the prevention of hoarding, smuggling or profiteering or adulteration of food or drugs or corruption;

(c) if the hotel-keeper is declared an insolvent by a Court of competent jurisdiction and has not been discharged;

(d) if any complaint of malpractice is received and proved against a hotel-keeper;

(e) if the hotel is black-listed under section 13.

Section 14, Notice of removal and black-listing of hotel. Before removing the name of a hotel from the register under Section 12 or black -listing it under Section 13, the prescribed authority shall give a notice to the hotel- keeper of the ground or grounds on which it is proposed to take action and hold an inquiry in the presence of the hotel-keeper giving him a reasonable opportunity of showing cause against it..."

WP(C) No. 2249/2021

09. To the similar effect is a provision i.e., Rule 8 of the Rules, providing

for issuance of show cause notice before removing the name of hotel-

keeper from the register made in respect of registration of

Hotels/Guest Houses etc. That apart, the certificate of registration

once issued, is required to be renewed on annual basis only and this

renewal would be subject only to the performance of the Hotel/Guest

House to the satisfaction of prescribed Authority. The name of hotel-

keeper from the register can be removed only on the grounds

mentioned in Clause (a) to Clause (e) of Sub Section (1) of Section

12. It is only where a hotel-keeper is convicted of any offence under

Chapter-XIII and Chapter-XVII of the Ranbir Penal Code or under

any provision of the Act or of any offence punishable under any law

providing for the prevention of hoarding, smuggling or profiteering

or adulteration of food or drugs or corruption. In the instant case, none

of the contingencies mentioned in Section 12 exist and, therefore,

mere registration of preliminary verification with ACB, Kashmir,

cannot be a ground with the respondents to deny renewal of certificate

of registration of Hotel/Guest House of the petitioner.

10. Viewed thus, I find merit in this petition and the same is, accordingly,

allowed. The impugned order dated 28th October, 2021, is quashed.

The Director, Tourism, (Prescribed Authority), is directed to consider

and renew the registration certificate granted in favour of the

petitioner for Hotel/Guest House "Zoon Dabb" Humhama, Budgam,

without being influenced by the communication of ACB, Kashmir,

with regard to registration of some preliminary verification against

the petitioner and others. Let a decision on the request of petitioner

WP(C) No. 2249/2021

for renewal of his registration be made within a period of four weeks

from the date a copy of this order is served on him.

(SANJEEV KUMAR) JUDGE SRINAGAR 02.08. 2022 "Shamim Dar"

Whether the Judgment is speaking? Yes/No Whether the Judgment is reportable? Yes/No. zxcv