Hotel Golden Tulip Kashmir & Ors vs Union Territory Of Jk & Ors
2022 Latest Caselaw 589 j&K/2

                                                           S. No. 4
                                                           Regular List
     IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
                        AT SRINAGAR
                             WP(C) 886/2021
                             CM 2789/2021
                             CM 6339/2021

Hotel Golden Tulip Kashmir & Ors.                               ...Petitioner(s)

Through: Mr S. A. Makroo, Sr. Adv. with Mr Basharat Ah Wani, Adv.

                                    Vs.
Union Territory of JK & Ors.                                   ...Respondent(s)

Through: Mr Usman Gani, GA.

CORAM:
 HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                                 ORDER

13.05.2022

1. With the consent of learned counsel for parties, petition is admitted and taken for final consideration.

2. This is a petition by three Hoteliers seeking inter alia a direction to the respondents to appoint an Arbitrator for determination of just and fair rental compensation for the use and occupation of their Hotels. It is submitted that Hotels of the petitioners situated in the District of Srinagar were taken over by the Chairman, District Disaster Management Authority (District Magistrate Srinagar) for accommodating Medical Staff of various designated Covid-19 Hospitals, purportedly in the exercise of powers conferred upon the District Authority, under section 65 of the Disaster Management Act, 2005 ("the Act of 2005").

3. It is the grievance of the petitioners that the District Authority/District Magistrate without associating them in the process, unilaterally determined the rentals per room and the rate of lodging. Reference in this regard is invited to the order of the District Authority/District Magistrate bearing No. DCS/Nar- SDRF(2022) 21/524-27 dated 06.02.2021, whereby the District Authority/District Magistrate has fixed Rs. 365/- as room rent per day and Rs. 250/- per day for lodging. The petitioners submit that the rates fixed both for boarding and lodging are unfair and far less than the market rates and, therefore, they have not accepted the same. It is pleaded by the petitioners that with a view to get their grievance redressed, the petitioners through their counsel applied to the District Authority/District Magistrate to appoint an Arbitrator in terms of Proviso to Section 66 of the Act 2005, but no decision thereon has been taken, and, this has constrained the petitioners to jointly file this petition.

4. Having heard learned counsel for the petitioners and perused the material on record, it is necessary to set out Section 65 & 66 of the Act, 2005. For facility of reference it is reproduced as under:

65. Power of requisition of resources, provisions, vehicles, etc., for rescue operations, etc.- 34 (1) If it appears to the National Executive Committee, State Executive Committee or District Authority or any officer as may be authorized by it in this behalf that-

(a) Any resources with any authority or person are needed for the purpose of prompt response;

(b) Any premises are needed or likely to be needed for the purpose of rescue operations; or

(c) Any vehicle is needed or is likely to be needed for the purposes of transport of' resources from disaster affected areas or transport of resources to the affected area or transport in connection with rescue, rehabilitation or reconstruction, such authority may, by order in writing, requisition such resources or premises or such vehicle, as the case may be, and may make such further orders as may appear to it to be necessary or expedient in connection with the requisitioning.

(2) Whenever any resource, premises or vehicle is requisitioned under sub-section (1), the period of such requisition shall not extend beyond the period for which such resource, premises or vehicle is required for any of the purposes mentioned in that sub-section. (3) In this section,-

(a) "Resources" includes men and material resources;

(b) "Services" includes facilities;

(c) "Premises" means any land, building or part of a building and includes a hut, shed or other structure or any part thereof;

(d) "Vehicle" means any vehicle used or capable of being used for the purpose of transport, whether propelled by mechanical power or otherwise.

66. Payment of compensation.-

(1) Whenever any Committee, Authority or officer referred to in sub-section (1) of section 65, in pursuance of that section requisitions any premises, there shall be paid to the persons interested compensation the amount of which shall be determined by taking into consideration the following, namely:-

(i) The rent payable in respect of the premises, or if no rent is so payable, the rent payable for similar premises in the locality;

(ii) If as consequence of the requisition of the premises the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change: Provided that where any person interested being aggrieved by the amount of compensation so determined makes an application within the thirty days to the Central Government or the State Government, as the case may be, for referring the matter to an arbitrator, the amount 35 of compensation to be paid shall be such as the arbitrator appointed in this behalf by the Central Government or the State Government, as the case may be, may determine: Provided further that where there is any dispute as to the title to receive the compensation or as to the apportionment of the amount of compensation, it shall be referred by the Central Government or the State Government, as the case may be, to an arbitrator appointed in this behalf by the Central Government or the State Government, as the case may be, for determination, and shall be determined in accordance with the decision of such arbitrator. Explanation. In this sub-section, the expression "person interested" means the person who was in actual possession of the premises requisitioned under section 65 immediately before the requisition, or where no person was in such actual possession, the owner of such premises. (2) Whenever any Committee, Authority or officer, referred to in sub-section (1) of section 65 in pursuance of that section requisitions any vehicle, there shall be paid to the owner thereof compensation the amount of which shall be determined by the Central Government or the State Government, as the case may be, on the basis of the fares or rates prevailing in the locality for the hire of such vehicle: Provided that where the owner of such vehicle being aggrieved by the amount of compensation so determined makes an application within the prescribed time to the Central Government or the State Government, as the case may be, for referring the matter to an arbitrator, the amount of compensation to be paid shall be such as the arbitrator appointed in this behalf by the Central Government or the State Government, as the case may be, may determine: Provided further that where immediately before the requisitioning the vehicle or vessel was by virtue of a hire purchase agreement in the possession of a person other than the owner, the amount determined under this sub-section as the total compensation payable in respect of the requisition shall be apportioned between that person and the owner in such manner as they may agree upon, and in default of agreement, in such manner as an arbitrator appointed by the Central Government or the State Government, as the case may be, in this behalf may decide.

5. From reading of Section 65 of the Act, 2005, it clearly transpires that if it appears to National Execution Committee, State Execution Committee or District Authority or any other officer authorized, that any premises are needed or likely to be needed for the purpose of executing operations etc, he may, by an order in writing, requisition such premises. The Section also applies to the requisition of other resources including the vehicles by transportation. It appears that the District Authority/District Magistrate in the exercise of powers vested by Section 65 of the Act 2005, requisitioned inter alia the hotels of the petitioners vide order No. DCS/PC/19/1811-23 dated 31.03.2020, with a view to accommodate the Medical Staff of various designated Covid-19 Hospitals. As is provided under Section 66, of the Act, 2005, the District Authority is conferred with the powers to pay to the persons interested compensation, the amount of which is required to be determined by taking into consideration following factors:

I. Rent payable in respect of premises, or if no rent is so payable, the rent payable for similar premises in the locality.

II. If as consequence of the requisition of the premises the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change:

6. The Proviso to the Section 66, of the Act, 2005, further provides that if any person interested is aggrieved by the amount of compensation, so determined, he is entitled to make an application within a period of 30 days to Central Government or State Government, as the case may be, for referring the matter to an Arbitrator and the amount shall be paid as per the determination made by such Arbitrator.

7. In the instant case, as is contended on behalf of the petitioners, the petitioners have not accepted the rate of boarding & lodging fixed by the District Authority/District Magistrate, in terms of order dated 06.02.2021 (supra), and accordingly, the petitioners have applied to the Chairman, District Disaster Management Authority, Srinagar to refer the matter for Arbitration.

8. It is true that in terms of Section 66 of the Act, 2005, such application is required to be moved by the person interested, within a period of 30 days to the Central Government or the State Government. And the petitioners in the instant case have filed this application beyond the period of 30 days from the date of determination of rates by the District Authority/District Magistrate. It is, however, the plea of the petitioners that since the order dated 06.02.2021 (supra) was passed by the District Authority/District Magistrate, Srinagar, without associating the petitioners, as such, they could acquire the knowledge of passing of the aforesaid order, only on 16.03.2021, when they were offered the rentals & boarding charges and somehow got the copy of the order.

9. It is submitted by the petitioners that immediately and without wasting any further time, they submitted an application to the District Authority/District Magistrate on 18.03.2021. If that be the correct position, then it was incumbent upon the District Authority/District Magistrate to forward the application to the competent authority in the Government for appointment of an Arbitrator. As is contended by the petitioners, nothing of the sort has been done, and the petitioners still await the appointment of the Arbitrator.

10. In these circumstances, and in particular having regard to the provisions of Section 65 and 66 of the Act, 2005, no adjudication of on facts or law, is required to be made by this Court in this petition.

11. This petition is, accordingly, disposed of by providing as under:

i. That, if the petitioners have not received the compensation in terms of order dated 06.02.2021, or have received same under protest, their case for reference of the dispute with regard to the determination of the compensation shall be taken up with the competent authority in the Government, within a period of four weeks form the date a copy of this judgment along with copy of the petition is served upon the District Authority/District Magistrate, Srinagar.

ii. Since apparently, the petitioners have not been associated in the process of determination of compensation by the District Authority/District Magistrate,, nor the copy of order appears to have been served, as such, it shall not be available to the respondents to reject the request of petitioners for appointment of arbitrator on the ground of limitation.

12. Disposed of as above.

(SANJEEV KUMAR) JUDGE SRINAGAR 13.05.2022 Hilal Ahmad