(ii) Commanding respondent No.4 to issue the renewed
Certificate of Registration under the Jammu and
Kashmir Registration of Tourist Trade Act, 1978, in
favour of Hotel Natraj International Karlah, Patnitop,
w.e.f 01.01.2023
Factual matrix:
2 The petitioners are partners of Hotez Natraj International,
situated at Karlah, opposite Nag Temple, Patnitop. They have assumed
control and management of the said Hotel by virtue of a Reconstitution Deed
dated 30.03.2015, registered before the Sub-Registrar, Chenani. A copy of the
deed is annexed with the writ petition. Since 2016, the said Hotel has been
functioning smoothly. However, on 04.12.2020, respondent No.2 issued a
show cause notice under the J&K Control of Building Operations Act. The
petitioners duly submitted a detailed reply to the said notice. Subsequently,
they were directed to demolish certain alleged violations. Aggrieved, the
petitioners filed a statutory appeal before the J&K Special Tribunal, which
was dismissed vide order dated 30.11.2021.
3 Challenging the said dismissal, the petitioners filed WP(C)
No. 1125/2022, wherein a Division Bench of this Court passed an interim
order dated 25.05.2022, restraining demolition regarding the alleged
violations. It is also relevant to mention that PIL No. 22/2018 is pending
before this Court. However, no direction has been passed in that PIL
restraining the renewal of registration certificates under the Tourist Trade Act.
It is stated that the pendency of the said PIL cannot be used as a ground to
deny the petitioners the renewal of registration. The matter was entrusted to
CBI, which registered an FIR and, as submitted, is in the process of filing a
chargesheet. The petitioners have not been convicted by any Court of law.
Due to the inaction of respondents No. 2 to 4, the petitioners are constrained
to approach this Court for a direction facilitating the renewal of the
registration certificate for a further period of five years. The petitioners had
submitted their application for renewal well before the expiry of the previous
registration on 31.12.2022. However, the respondents have arbitrarily
withheld the renewal on baseless and unjustified grounds. As a result of this
official inaction, the Hotel is presently operating without a valid registration.
4 A reply has been filed on behalf of the Patnitop Development
Authority (respondent No.2), wherein it is stated that the petitioners have
neither approached nor applied to the Authority for a No Objection
Certificate. Furthermore, respondents No. 3 and 4 have not communicated
any request for issuance of NOC. It is further submitted that under the Jammu
and Kashmir Registration of Tourism Trade Act, 1978, the Patnitop
Development Authority is not authorized to issue any NOC for registration or
renewal. As per SRO 460 dated 13.12.2010, the Director of Tourism, Jammu
is the competent authority for such matters.
5 The Tourism Department has also filed a reply, stating that the
petitioners, in their representation dated 23.12.2022 to the Director of
Tourism, contended that their renewal was denied since 2019 on the pretext
of requiring an NOC from the Patnitop Development Authority. Prior to July
2021, the Authority for registration/renewal in Udhampur District was with
the Tourist Office, Batote. Despite requests, the Patnitop Development
Authority did not issue the NOC. The Director of Tourism has since
forwarded the petitioner's representation to the Administrative Department
for further directions.
6 I have heard learned counsel for the parties and have perused the
material on record.
7 The grievance of the petitioner is that the renewal of registration
for the Hotel of the petitioners has unnecessarily been withheld on the ground
of non-availability of a No Objection Certificate from the Patnitop
Development Authority, though the law does not envisage such a
requirement. Learned counsel for the petitioner has submitted that the
petitioners are a lawful registrant under the Act and has been operating a
Hotel at Patnitop for several years. The renewal of registration was sought as
per the provisions of the Act, but the respondents failed to act on the request,
citing absence of NOC from the Patnitop Development Authority. It is
submitted by learned counsel for the Patnitop Development Authority- Mr.
Rajnesh Raina that neither the Jammu and Kashmir Registration of Tourist
Trade Act, 1978 nor any rules framed thereunder provide for obtaining NOC
from Patnitop Development Authority as a pre-requisite for renewal. SRO
460 (supra) clearly delegates power to the Director of Tourism as the
competent authority for issuance and renewal of registration under the Act.
8 The controversy in the present case revolves around the legality
of the requirement of an NOC from the Patnitop Development Authority for
processing renewal under the Act.
9 The Jammu and Kashmir Registration of Tourist Trade Act, 1978
is a self-contained code that regulates the registration and regulation of tourist
trade in the UT of Jammu and Kashmir. Section 3 of the Act mandates
registration for persons carrying on business as a hotel-keepers, and Section 4
lays out the procedure for registration and renewal. There is no provision
under the Act or the rules framed thereunder that requires an NOC from the
Patnitop Development Authority or any other body apart from the Tourism
Department. SRO 460 designates the Director of Tourism, Jammu/Kashmir as
the competent authority for granting or renewing registration under the Act.
10 There is no provision either in the Act or in the rules framed
thereunder which mandates production of an NOC from any local or
development authority including the Patnitop Development Authority for
registration or renewal. Sections 3 and 4 of the Act is relevant to the context
and are reproduced as under:
3. Registration.
(1) Every person intending to carry on business of a dealer
under this Act shall, before he commences such business,
apply for registration to the prescribed authority in the
prescribed manner. (2) Notwithstanding anything contained
in sub-section (1) any person already carrying on business of
selling any notified article in a tourist area on the date such
article is notified under clause (j) of section 2 shall apply for
registration under this Act within three months from the
aforesaid date:
[Provided that where, before the commencement of the
Jammu and Kashmir Registration of tourist Trade
(Amendment) Act, 1982, any person as aforesaid could not
apply registration within the time specified above, he shall so
apply for registration within six months after such
commencement:
Provided further that where any person as aforesaid has
applied for registration within the period of three months
from the date of issue of the first notification under clause (j)
of section 2 and certificate of registration has been issued to
him, such certificate of registration shall continue to be valid
notwithstanding the rescission of the said notification but
subject to other provisions of section 6 of this Act.]
(3) Every application made under sub-section (1) shall be
disposed of within a period of three months from the date of
receipt of the application failing which the application shall
be deemed to have been accepted for registration.
4. Certificate of registration.
The prescribed authority shall, unless registration is refused
under section 5, direct that the name and the particulars of
the dealer be entered in the register maintained for purpose
and shall issue a certificate of registration to the dealer in the
prescribed form within a period of three months from the date
of receipt of the application.
11 SRO 460 of 2010 dated 13.12.2010 is also reproduced hereunder:
"In exercise of the powers conferred by clause(m) of Section 2 of
Jammu and Kashmir Registration of Tourist Trade Act, 1978 and in
supersession of notification SRO 341, the Government hereby notify the
authorities shown in column (2) of the subjoined schedule to be prescribed
authorities for purpose of the provisions of the said Act as indicated in
column(3) against each authority for purpose of the tourist areas shown in
column (4) thereof:
S.No. Name of officer Section of Act Tourist Areas
1 Director Tourism Jammu All Sections of Act All Tourist Areas of
except Sections Jammu Division
30,32 and 33
2 Deputy Director Tourism Jammu 3 to 21,28,29,31 and All Tourist Areas of
34 to 44 Jammu District
3 Assistant Director Tourism 3 to21,28,29,31 and All Tourist Areas in
National Highway 34 to 44 Ramban Doda and
Kishtwar Districts.
4 Assistant Director Tourism Katra 3to21,28,29,31 and All Tourist Areas in
34 to 44 Reasi District.
5 Assistant Director Tourism Rajouri 3 to 21,28,29,31 and All Tourist Areas in
34 to 44 Rajouri and Poonch
Districts.
6 Tourist Officer Samba 3 to 21,28,29,31 and All Tourist Areas in
34 to 44 Kathua and Samba
Districts.
7 Tourist Officer Udhampur 3 to 21,28,29,31 and All Tourist Areas in
34 to 44 Udhampur Districts.
12 In State of Bihar v. Project Uchcha Vidya, Sikhsha Parishad,
AIR 2006 SC 693, the Supreme Court has held that where a statute prescribes
a specific authority for a function, no other authority can usurp or interfere
with that function by administrative instructions. Similarly, in Bimal Nand
Lal v. State of J&K, (2011) 3 JKJ 123, this Court has held that an executive
or administrative instruction cannot override or substitute the procedure laid
down by a statute unless such delegation is expressly provided therein.
13 In view of the above analysis, this Court is of the considered
view that the insistence of an NOC from Patnitop Development Authority is
without any statutory backing. Such a requirement, not being part of the Act
or the rules, cannot be imposed by executive fiat. Consequently, the writ
petition is allowed, and the following directions are issued:
(i). The Director of Tourism, Jammu (respondent No.3), is
directed to consider and decide the petitioners' application for
renewal of registration under the Act, strictly in accordance with
law, within a period of four weeks from the date of receipt of a
certified copy of this judgment.
(ii). If the petitioners are found eligible under the Act and the
rules, the renewal shall be granted with retrospective effect from
01.01.2023, in continuity with the previous registration.
(iii). Respondent No.3 is restrained from insisting on the
production of any NOC from the Patnitop Development
Authority unless such a requirement is introduced through a valid
amendment to the Act or the rules framed thereunder.
(MOKSHA KHAJURIA KAZMI)
JUDGE
Jammu
26.05.2025
Sanjeev
Whether approved for judgment: Yes/No
