Himachal Pradesh High Court
Secretary vs Sh. Anil Mahajan on 22 March, 2017
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 09 of 2009
.
Reserved on : 17.03.2017
Date of decision: 22.03.2017
Secretary, Tourism and Civil Aviation
and another .... Petitioners.
-Versus-
Sh. Anil Mahajan
of
......Respondent.
Coram :
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 No.
____________________________________________________________________
rt
For the petitioners: Mr. V.S. Chauhan, Additional
Advocate General, with Mr. Vikram
Thakur, Deputy Advocate General.
For the respondent: Mr. Naresh K. Gupta, Advocate.
Ajay Mohan Goel, Judge:
By way of this revision petition, the petitioners herein have challenged the judgment passed by the Court of learned Sessions Judge, Chamba in Criminal Appeal No. 19 of 2007 and Criminal Appeal No. 23 of 2007, dated 30.06.2008, vide which learned appellate Court while partly allowing the appeal filed by the present respondent, modified the judgment of conviction passed against the present respondent by the Court of learned Chief Judicial Magistrate, Chamba in Criminal Case No. 35-III of 2003/02, dated 1 Whether reporters of Local Papers may be allowed to see the judgment? .
::: Downloaded on - 15/04/2017 22:03:12 :::HCHP 211.07.2007, to the effect that the fine imposed upon the respondent-
accused by the learned trial Court to the tune of Rs.3,00,000/- stood .
modified to Rs.90,000/- and dismissed the appeal filed by State for enhancement of sentence imposed.
2. Before proceeding further, it is relevant to take note of the fact that the judgment of conviction passed by the learned trial Court was assailed both by the State as well as the accused.
of State assailed the judgment praying for enhancement of the sentence imposed, whereas the accused had prayed for setting aside rt conviction and sentence imposed. Learned appellate Court dismissed the appeal filed by the State for enhancement of conviction and sentence imposed, whereas it partly allowed the appeal so filed by the respondent-accused.
3. Against the said judgment passed by the learned appellate Court also, two revision petitions were filed before this Court, one by the accused, i.e. Criminal Revision No. 166 of 2008 and the other by the State and the department, i.e. the present revision petition. As far as Criminal Revision No. 166 of 2008 is concerned, the same stands dismissed by the coordinate Bench of this Court vide judgment dated 29.04.2016, copy of which has been placed on record of this petition.
4. Brief facts necessary for the adjudication of this case are that a complaint was filed through Assistant Tourism ::: Downloaded on - 15/04/2017 22:03:12 :::HCHP 3 Development Officer, Chamba by the Department of Tourism & Civil Aviation under Section 49 read with Section 42 of the Himachal .
Pradesh Registration of Tourist Trade Act, 1988 against the respondent-accused for the alleged violation of Section 10 of the above Act. As per the complainant, accused was owner of Hotel Aroma Palace, Chamba and was running the same without getting it registered under the provisions of the said Act, which amounted to of contravention of provisions of Section 10 of the Act. As per the complainant, the factum of running a hotel without getting the same rt registered under the provisions of Section 10 of the Act with the department concerned was a continuing offence and despite repeated notices and instructions issued to the respondent-accused under the relevant Act and Rules, accused had failed to produce the proof that building/structure of the hotel was in fact built in accordance with building bye laws as provided under the Himachal Pradesh Town and Country Planning Act, 1977 as well as as per the provisions of Himachal Pradesh Municipal Act, 1994 nor he had furnished any completion certificate as required under Section 12(g) of the Himachal Pradesh Registration of Tourist Trade Act, 1988.
5. On the basis of the said complaint, notices were issued to the accused and after consideration of the complaint, as a prima facie case was found against the accused, accordingly notice of acquisition was put to him under Section 42 of the Himachal ::: Downloaded on - 15/04/2017 22:03:12 :::HCHP 4 Pradesh Registration of Tourist Trade Act, 1988, to which he pleaded not guilty and claimed trial.
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6. Learned trial Court on the basis of evidence led by the prosecution, both ocular as well as documentary, concluded that it stood established on record that the accused was running a hotel since the year 1999 in the name and style of 'Hotel Aroma Palace', which was not registered as per the registration of Himachal Pradesh of Tourist Trade Act, 1988 till date, which amounted to violation of the provisions of the said Act. On these grounds, learned trial Court held rt accused guilty of the violation of the provisions of the Act and convicted him under Section 42 of the Act. Learned trial Court further sentenced the accused to pay a fine of `3,00,000/-, failing which, he was to undergo simple imprisonment for four months.
7. As I have already mentioned above, the judgment so passed by the learned appellate Court was assailed both by the prosecution as well as by the accused. Learned appellate Court while dismissing the appeal so filed by the department, partly allowed the appeal filed by the accused and modified the fine imposed upon the accused from `3,00,000/- to `90,000/-. While arriving at the said conclusion, it was held by the learned appellate Court that it stood proved that accused in fact was running a hotel continuously in violation of the provisions of 1988 Act, especially as its application for registration of the hotel stood rejected by the authority vide its ::: Downloaded on - 15/04/2017 22:03:12 :::HCHP 5 order dated 25.02.2002. Learned appellate Court also held that no fresh application was filed by the accused for registration of hotel .
and complaint was filed on 08.10.2002. Learned appellate Court further held that after applying legal principles as were contained in the Act and the Rules, it was of the considered view that the amount imposed upon by the learned trial Court did not fit to the facts and circumstances of the case and the same was liable to be modified.
of On these bases, learned appellate Court modified the fine so imposed upon the accused by holding that as the application of the accused rt was rejected on 25.02.2002 and thereafter the accused was still running the hotel without getting the same registered with the department, therefore he was liable to pay a fine @ `400/- per day from 26.02.2002 to 08.10.2002, i.e. the date on which the complaint was filed, which came to `90,000/-. On these bases, learned appellate Court modified the fine imposed by the learned trial Court upon the accused.
8. Against said judgment, two revision petitions were filed. As I have already mentioned above, revision so filed by the accused stood dismissed by the coordinate Bench of this Court. As far as the present revision petition is concerned, it has been contended on behalf of the petitioner-department that learned appellate Court has erred in reducing the fine imposed by the learned trial Court as there is no cogent justification borne out from ::: Downloaded on - 15/04/2017 22:03:12 :::HCHP 6 the findings returned by the learned appellate Court for reducing the fine so imposed.
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9. Learned Additional Advocate General also argued that the fine upon the petitioner should have been imposed from the date he started running the hotel rather than from the date his application was rejected, because it cannot be assumed or presumed that as from the date since when the accused started running his of hotel without proper registration, the same was illegal till the rejection of the application. Learned Additional Advocate General rt further argued that the learned appellate Court has erred in dismissing the appeal filed by the State by not enhancing the sentence imposed upon the accused as was prayer of the Department.
10. I have heard the learned counsel for the parties and have also gone through the records of the case as well as the judgments passed by both the learned Courts below. I have also gone through the judgment passed by the coordinate Bench ( by Hon'ble Mr. Justice Sandeep Sharma, J.).
11. The coordinate Bench of this Court while dismissing the revision petition filed by the present respondent has returned findings that there was no illegality or infirmity in the judgment passed by the learned appellate Court. It was further observed by the coordinate Bench that in fact learned appellate ::: Downloaded on - 15/04/2017 22:03:12 :::HCHP 7 Court had taken a very lenient view while reducing the fine which was imposed upon the present respondent by the learned trial Court, .
especially in view of the fact that accused had been running hotel since the year 1999 without any registration certificate.
12. A perusal of the judgment passed by the coordinate Bench also demonstrates that the findings returned by the learned appellate Court which includes modification of fine of amount already stand upheld in the said judgment. In other words, the coordinate Bench has also impliedly upheld the modification rt which was made by learned appellate Court in the fine which was imposed upon the accused by the learned trial Court. Therefore, in these circumstances, judicial discipline demands that in the present case, the findings so returned by the learned appellate Court which have been upheld in totality by the coordinate Bench should not be disturbed. The conclusion of the judgment passed by the coordinate is quoted hereinbelow, which demonstrates that the learned coordinate Bench found no reason to interfere with the judgments passed by the learned Courts below including learned appellate Court.
"In view of the aforesaid discussion, this Court sees no reason to interfere with the judgment passed by learned Courts below as the same appears to be based on correct appreciation of evidence on record as ::: Downloaded on - 15/04/2017 22:03:12 :::HCHP 8 well as rule in vogue. Hence the present revision petition fails and dismissed accordingly. Pending application(s), if any, .
also stands disposed of."
13. Besides this, there is also another infirmity with the present revision petition and the same is that against dismissal of two appeals, though by way of a common judgment passed by the of learned appellate Court, State has preferred only one revision petition, which in my considered view, is not maintainable. As the State was aggrieved by the rejection of the appeal filed by the rt Department as well as by the judgment passed by the learned appellate Court whereby sentence imposed upon the accused was modified, it ought to have had filed two independent revision petitions against the said two judgments, which has not been done and therefore, this revision petition is otherwise also not maintainable in the present form.
In this view of the matter, as there is no merit in the present revision petition, the same is dismissed.
(Ajay Mohan Goel)
March 22, 2017 Judge
(bhupender)
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