Delhi High Court
A.N. Shervani And Anr. vs Lt. Governor And Ors. on 19 May, 1989
Equivalent citations: 38(1989)DLT357, 1989RLR296
JUDGMENT S.B. Wad, J.
(1) These Writ Petitions challenge the validity of the Regulations issued by the Commissioner of Police, Delhi, under Delhi Police Act to regulate Guest Houses through licensing. The petitioners are mostly owners of the Guest Houses in Delhi and they have also challenged the licensing policy of the Commissioner of Police as being arbitrary and discriminatory.
(2) The places of public accommodation and entertainment have undergone a sea change in the last hundred years. The changes are dictated by the new set of economic relations, fast means of communication, and individual needs of better living amenities and at times the luxuries. On the one hand the laws and public regulations of such places were found necessary for the protection, safety and hygiene of the travellers/dwellers. On the other hand, it was also necessary to regulate the social and public aspect of these new institutions infringing public peace and order.
(3) The first regulatory enactment so far as applicable to Delhi in this area is Sarais Act, 1867. Sarai as defined by the Act means any building used for the shelter and accommodation of travellers, and includes, a purao. Purao has been described as a halting place, a camp, encampment, a camping ground, an assembly, a stage (the standard Urdu-English Dictionary by Abdul Haq. 175). Under the Act only the registered Sarais were permitted to entertain travellers. The duties of the keepers of sarais includes maintaining the sarais clean with proper drains and by cleaning wells and tanks. The sarai owner was also under a duty to keep the gates and fencing in good Condition with watchman so as to protect the person and property of the travellers. In 1867 when the Sarais Act was passed the economy was mainly the rural and agricultural. The means of communications were horses and camels and bullock-carts. The travel was mainly restricted to traders and pilgrims who required night shelter only as journey could be done during day time. There was social and religious restrictions of eating food outside and. therefore, the traveling people used to carry their own food. The city of Delhi was still a small place mostly restricted to the walled city. Calcutta was the Capital city then and had, therefore, earliest police enactments regulating and controlling places of public entertainment. Calcutta Police Act was passed in 1866. The places of public entertainment under the Act included lodging houses, boarding houses, hotels, restaurants etc. The Act prescribed the penalty of imprisonment arid fine for running a place of public entertainment without license or in violation of the terms of license. We have recently Bombay Police Act, 1951, Karnataka Police Act, 1963, Hyderabad Police Act making elaborate provisions of control and regulations of places of public entertainment. Bombay Police Act was made applicable to Delhi by an ordinance under the Delhi Laws Act in 1978 and was then converted into an Act. The Delhi Police Act empowers the Commissioner of Police to issue Regulations for regulation and control of places of public entertainment similar to the Bombay Police Act. We have now in Delhi, as in all big cities in India, the restaurants, lodging houses, hotels including five star hotels and the hotels run by the Government. This growth of the places of public entertainment is the need of the society which passing through industrialisation urbanisation. fast means of communication like railways and aeroplanes, lesser taboos of eating outside food and a class of travellers such as business-men, executives and the higher governmental officials, not only expecting better living places in their travel but also expecting means of amusement and luxury. Simultaneously, of course, there are Sarais and Dharamshalas catering mostly to the needs of rural and economically humble sections of the society. With the increase in population more and more villages are being added to Delhi's urbanised areas. The population of Delhi is at the various stages of urbanisation and hence the need for continuation of the Sarais Act, although a more comprehensive legislation like Delhi Police Act (and Regulations) is now enacted. This socio-economic background has to be kept in mind while appreciating the arguments for the petitioners.
(4) Mr. Madan Bhatia, appearing for some petitioners, has submitted that the Sarais Act being a special enactment governing the running of sarais and the Delhi Police Act and Regulations are in the nature of General Act, Sarais Act should prevail. In other words, the submission is that more stringent provisions of the Delhi Police Act and Regulations in regard to licensing and penal provisions of punishment are not applicable in case of sarai which is only required to be registered under the Sarais Act. Under the Sarais Act the maximum penalty for breach is Rs. 20.00 and the registration is cancelled if there are three successive breaches. In a different form the argument is that since Sarais Act and the Delhi Police Act and the Regulations operate in the same field, on the principle of implied repugnancy, the Sarais Act should prevail. The argument further stresses the point that Sarais Act is a complete code by itself prescribing its own provisions in the Act and the rule making power given under the Act. The Delhi Police Act and the Regulations, in so far as they seek to include Sarais under the "places of public entertainment", are bad in law and void. It is then submitted that the Delhi Police Act and the Regulations, being penal statutes, should be strictly and narrowly construed so as to exclude Sarais from the "places of public entertainment" under the Delhi Police Act. It is then submitted that the sarais are akin to inns in English Law. Inns in England are not included in the restaurant, and guest houses under the Licensing Act, 1964 and they are separately regulated by the Inn Keepers Act, 1878. It is further argued that Entry 31 of List Ii is in regard to "Inns" and "Inn Keepers" while Entry 33 provides inter aha for ''entertainments" and "amusement". According to the counsel for the petitioners, the Constitution recognises by providing separate entries for inns and inns keeping and entertainments and amusements that they are two distinct matters and, therefore. places of entertainments and amusements cannot include inns. The Commissioner of Police, the argument proceeds, has no power to frame regulations to govern sarais as this will amount to nullifying the Sarais Act when in fact it has been sought to be preserved by Section 146 of the Delhi Police Act.
(5) It may be noted that except Mr. Bhatia, speaking for some alleged sarais, no other counsel has argued that Sarais Act should prevail over the Delhi Police Act. Such cases of sarai are not more than three, while the rest of the writ petitions pertain to guest houses properly so-called. In fact, most of them mushroomed in 1981-82 at the time of A said Games. In the year 1981, 400 applications were made for licenses while in 1982, 167 similar applications were received. Some of the guest houses are quite luxurious and are indeed put up by four-star or five-star hotels in Delhi and outside. A said Games created an unprecedented emergency for housing large number of sportsmen and spectators, so much so, that number of places which were registered as sarais under the Sarais Act were almost automatically granted licenses by the Commissioner of Police under Delhi Police Act. This rush for licenses under the Delhi Police Act and the Regulations abundantly shows that the guest houses did not treat them as sarais simplicitor but as places of public entertainment requiring licenses under the Delhi Police Act and the Regulations. The word "Sarai" by itself is not decisive of the matter. A proper guest house may even take the name of a sarai. The institution of sarai although akin to the inns in England is an institution sui generis and has its roots in historical past. Section 146 of the Delhi Police Act empowers the Commissioner of Police to administer the provisions of Sarais Act also. The Police Act has not repealed the Sarais Act although it is a subsequent legislation. It must be presumed that while passing the Delhi Police Act the Parliament was aware of the existence of Sarais Act. It is thus clear from the legislative history that a "sarai" and a "place of public entertainment" under the Delhi Police Act. are conceptually different. Considering the fact that vast rural areas are being regularly brought under urbanisation in Delhi, it is useful to have Sarais and puraos, the simple and humble places-for the travellers who need night shelter. Whether a Sarai is Sarai proper or not will depend on number of factors, such as the smallness of accommodation. The location of a sarai (whether it is located in the posh colonies of Delhi or in the rural areas or the walled city of Delhi) whether besides shelter in the night, modern amenities of food, entertainment or amusement are provided, what is the strata of society staying in the sarai, whether it is in the crowded area and obstructing or inconveniencing traffic by parking of large number of vehicles of the clients. In all such cases whether the purported sarais is a sarai proper or not is a question of fact to be decided in each case. Since the same authority, namely, the Commissioner of Police is in charge of the registration under the Sarais Act and licencing under the Delhi Police Act. the Authority can be presumed to develop special knowledge and experience to separate the two link milk and water. A sarai properly so-called will not require licensing under the Delhi Police Act and mere registration under the Sarais Act should suffice.
(6) The argument, that there is repugnancy between the provisions of the Sarais Act and the Delhi Police Act and the predominance of Sarais Act over the Delhi Police Act. is misleading. Both the enactments in question are central enactments. Both, the places of public entertainment and sarais would fall under the State List, that is, List Ii and the Parliament is competent to legislate for both of them, Delhi being a Union Territory. Even assuming that Sarais fall under the category of inns, the regulatory powers of maintaining public order can be legally exercised by the Parliament, in cases of inns falling under the category of "places of public entertainment". The provisions of Sarais Act are mainly concerned with the internal administration such as hygiene and safety of the travellers, while Delhi Police Act and the Regulation look to the external aspects of the matter arising out of the social and public impact in the form of obstruction, annoyance or inconvenience caused by the place and the activities in or around such a place. The concept of repugnancy as understood in Indian Constitution relates only to the field of the Concurrent List of the Constitution, that is, List Iii, where a Legislation by Parliament and a Legislation by the State apparently conflict. In Hocehst Pharmaceuticals Ltd. v. State of Bihar, the Supreme Court has laid down the test of repugnancy as follows: "THE question of repugnancy under Art. 254(1) between a law made by Parliament and a law made by the State Legislature arises only in case both the legislations occupy the same field with respect to one of the matters enumerated in Concurrent List and there is "direct conflict between the two laws. It is only when both these requirements are fulfillled that the State law will to the extent of repugnancy become void".
The Supreme Court has further stated the reason for this interpretation, namely, Article 254(1) has no application to cases of repugnancy due to overlapping found between List Ii on the one hand and List I and List Ii on the other. If such over-lapping exists in any particular case, the State law would be ultra vires because of the non-obstante clause in Article 246(1) read with the opening words "subject to" in Art. 246(3). In such a case the State Law will fail not because of repugnancy to Union Law but due to want of legislative competence. Reiterating this principle the Supreme Court in Krishan District Coop. v. N. V. Purnuchandra Rao, 1987 (4) Scr p. 99, held that in absence of repugnancy, expressed or implied, between the State Act and the Central Act the former cannot prevail over the letter. It further held that repugnancy between the two acts cannot be presumed in case of conflict between the special provisions of an earlier Act and the general provisions of later law. Mr. Bhatia has cited this judgment in support of his submission of repugnancy and prevalence of the special law over the genera. law. But it does not help him. The doctrine of repugnancy is not invoked where the legislations are in the same list like Central List or State List. The principal of repugnancy can be invoked only in relation to the specific matter in the Concurrent List and not where it falls under the State List or the Central List. In case at hand the Sarais and the Delhi Police Act being in the same list, that is. List II. Implied repugnancy cannot be presumed. Moreover, object of Sarais Act and that of Delhi Police Act and the Regulations are quite different, the provisions are different and the consequences of the violation of law are different. According to the petitioners themselves Sarai Act would fall under the Entry "Inn" and "Inn Keepers" while the Delhi Police Act the Regulations fall under two entries "public order" and "entertainment and amusement". Therefore, there is no conflict or repugnancy, even assuming that a principle similar to the principle of repugnancy can be invoked in regard to the two statutes falling within the same List. The very argument of the petitioners that Sarai Act being a special Act would prevail over the Delhi Police Act itself pre-supposes that both the enactments operate on different fields. The Parliament was aware or the specific provisions of the Sarais Act when it passed Delhi Police Act because the said provisions regarding internal administration of the Sarais were not sufficient to deal with the problems of public safety and peace. There is thus no conflict between the special law and the general law. The two enactment in question are similar to Section 161, Ipc, and the Prevention of Corruption Act, both purportedly dealing with corruption by public servants and both passed by the Parliament. It is not correct to say that Delhi Police Act is a penal statute while Sarais Act is not and that the Delhi Police Act should be narrowly interpreted so as to exclude Sara is from the operation of the Act. Both Sarais Act and Delhi Police Act contain provisions which are normally not found in any penal statute and both provide for punishment for breach of the provisions of the Act. We have already held that due to the provisions of Section 146 of the Act it will have to be assumed that Sarais Act is not repealed. If the Sarais Act and the Delhi Police Act are read harmoniously, it will have to be held that the Sarais properly so-called are not covered by the Delhi Police Act. The challenge to the validity of Delhi Police Act, as asserted by the counsel for the petitioners, therefore, fails. It is further clarified that where the place is a sarai proper and the activities carried in and around do not infringe upon the public peace, safety and order, such place would be governed by the Sarais Act.
(7) The second set of writ petitions admittedly are in regard to the Guest Houses and not in regard to any Sarai. Many of these guest houses are in South Delhi and other posh localities of Delhi, catering not only to the need of overnight stays, as in case of Sarais, but furnishing cosy and luxurious modern amenities. Some of them are established by big established hotels in Delhi and outside. The petitions on behalf of these guest houses were mainly argued by Mrs. Shyamala Pappu and Mr. Keshav Dayal.
(8) The first ground of challenge is that the Police Regulations in question have no legal force as they are not published in accordance with Sub-Section 3 of Section 28. The said Section requires, previous publication in the official gazette and, in addition, publication by proclamation in the area or by publishing it in the newspapers. It is stated by the counsel for the petitioners that the Regulations in question were neither published in the official gazette nor were proclaimed in the locality where the guest houses are situated. But it is noted that Section 28 has a proviso to dispence with these modes of publication if the Commissioner of Police is satisfied that the circumstances exist which render it necessary that such a Regulation should be brought into force at once.
(9) The Police Regulations were framed in 1980 and were brought into force on 19.12.1980. The preparation for the Asian Games was then started in Delhi and the question of providing accommodation to large number of sportsmen and spectators was attracting the minds of the administrators. A judicial notice can be taken of the said public event of holding the Asian Games and the urgent need, therefore, of providing additional places of accommodation, including boarding houses, lodging houses, guest houses, etc. The fact that the Regulations were widely published in the newspapers is admitted and is clearly borne out by the fact that in the year 1981, i.e. immediately after bringing the Regulations in force, 400 applications were received by the Commissioner for license. So also in the year 1982, 167 similar applications were received. This clearly shows that everyone who is interested in license for a boarding house or a lodging house or a guest house had full knowledge and they availed of the opportunity by filing suitable applications. In this background the argument that the Regulations were not published in the official gazette or proclaimed by beat of drum in the localities loses all significance. The object of any publication is that no prejudicial action should be taken against the citizens unless they are put on notice and are given sufficient time to act in accordance with the regulatory measures. We would, therefore, hold that there is substantial compliance of Section 28(3) of the said Regulations.
(10) Apart from this Section 134 of the Delhi Police Act provides that the Rules, Regulations or orders issued under the provisions of the Act or in substantial conformity with the same shall not be deemed to be illegal, void or invalid by reasons of any defect of form or any irregularity of procedure. This provision is peculiar to the Police Act and suggests that the provisions of Sub-Section 3 of Section 28 in regard to publications in the official gazette are not mandatory. The submission of the petitioners is therefore, rejected.
(11) The next submission is that power to regulate the activities and places of public entertainment cannot be so utilised as to place blanket prohibition of grant of licenses to run lodging houses. A statement in the counter-affidavit has been referred to in that regard. It is stated in the counter-affidavit: "NO license has been granted to any lodging house under the present regulations. Only those lodging houses which existed prior to Delhi Police Act, 1978 and the Police Regulations, 1980 and they were registered under the Sarais Act are running their lodging houses but no new license has been granted".
The further submission is that the authorities have made up their mind not to give licenses to any lodging houses and has thus mechanically rejected all the applications. The result of the action of the authorities is to create monopoly in favor of the existing licensees.
(12) It is well established principle of constitutional law that power to regulate also includes inter alia power to prohibit a particular activity. However, there is no evidence furnished by the petitioner to show that the authorities are pre-determined not to give licenses to anyone and, therefore, have mechanically rejected the applications. The statements from the counter-affidavit referred to above only speak for the statement of fact and do not refer to any policy decision pre-meditated or otherwise in not granting licenses. Due to urgent need for the Asian Games the Commissioner of Police gave licenses to those lodging houses which were already registered under the Sarais Act. It does not, however, mean that only those places of public entertainment registered under the Sarais Act will alone be entitled to a license under the regulations. The lodging houses may have been registered initially under the Sarais Act when Delhi Police Act and the Police Regulations had not been enacted. The Commissioner of Police can still examine whether a particular lodging house registered under the Sarais Act should obtain a license under the Police Regulations as it falls under the category of a lodging house, guest house covered by the Regulations. The fear that the alleged action of the authorities would result into monopoly in favor of existing licenses is without any foundation as the process of recognising lodging houses as places of public entertainment and giving them licenses is an on going process and is not frozen as on the date when the Police Regulations came into force. The contention of the petitioner is, therefore, rejected.
(13) The counsel for the petitioner then submits that since Section 28(4) expressly subjects the Police Regulations to the lodge such as Sarais Act, 1867 and rules and by laws such as the Byelaws of Delhi Municipal Corporation (Building), 1959 and the D.DA. Regulations, the provisions of the said laws, rules and byelaws should over ride the Police Regulations. In other words it means that if an establishment is registered under the Sarais Act. 1867 it should not require any license under the Police Regulations. So also if the Master Plan permits use of premises in residential areas for the purposes of lodging, houses hostels or boarding houses without a special appeal or sanction of any authority then the Commissioner of Police cannot prohibit such activities which are permissible under the Master Plan. It is also submitted that the Dda Regulations in regard to Boarding Houses/ Guest Houses and Hotels (Regulation 4) Loading Houses (Regulation 5) cannot derogate from the provisions of the Master Plan and it would not be right for the Commissioner of Police to prohibit running of guest houses/ lodging houses purportedly under the D.D.A. Regulation, 1959 over-riding the provisions of the Master Plan. For this and the other submissions following it will require familiarisation with the substantive provisions of the Police Regulations, 1980. Section 2(1) of the Delhi Police Act, 1978 defines places of "public entertainment" as a lodging house, boarding and lodging house or residential hostel and includes and eating house or other place in which any kind of liquor or intoxicating drug is supplied (such as a tavern or a shop where beer, sprit, arrac, toddi, ganja, bhang or opium is supplied) to the public for consumption in or near such place. In contradistinction to the place of public entertainment the Act provides for the regulation of "eating houses" and places of "public amusement", the places of public amusement and public entertainment require a license and an "eating house" requires only registration. Section 28 empowers the Commissioner of Police to make Regulations for regulating traffic and for preservation of order in public places, for licensing and controlling a place of public amusement or public entertainment and also for prohibiting the keeping of places of public amusement or public entertainment or assembly (in order to prevent obstruction, inconvenience, annoyance, risk, danger or damage to the residents or passengers in the vicinity) and to regulate the means of entrance and exit at places of public amusement or public entertainment or assembly and for providing for maintenance of public order and prevention of disturbance or threat. The section further empowers the Commissioner to prescribe procedure in accordance with which any license or permission sought to be obtained or required under the Police Act. The provisions of Section 28(3) in regard to publication and section 28(4) in regard to the subjection of the Regulations to enactments, lodge rules and byelaws in relation to public health, convenience or safety to the locality have already been noted. Section 122 of the Act provides for the penalties for the violation of Regulations either by fine or imprisonment or both. It also empowers Magistrates to pass order for closing such places of public entertainment or amusement, the disobedience of which results into imprisonment or fine and involves closer of the establishments by such force as is necessary. In most of the petitions which were admitted by the court the petitioners bad sought stay of the prosecutions under these Regulations and by obtaining the stay orders have virtually foreclosed the Magistrates from either punishing the violators of the Regulation or closing such places run contrary to the provisions of Regulations. The net result of these orders is that large number of guest houses are running their establishments for over five years without any license and in breach of the Regulations requiring the licenses.
(14) By virtue of the powers conferred by sub-section (1) of Section 481 of Delhi Municipal Corporation Act 1957 (66 of 57), Delhi Municipal Corporation has framed building byelaws in 1959 and were superseded' in 1983 by the building byelaws for the Union Territory of Delhi, 1983. These building byelaws are certified by the D.D.A. as not contravening any of the provisions of the Master Plan of Delhi and the Zonal Development Plans. The building byelaws, (for the purposes of the specifications for construction), has in byelaw 2.54, classified buildings into residential buildings, educational buildings, institutional buildings, assembly buildings, business buildings etc. The residential buildings include any building in which sleeping accommodation is provided for normal residential purposes with or without cooking or dining or both facilities. It includes one or two or multi family dwellings, lodging or rooming houses, dormitories, apartment houses and flats and hotels.
(15) The counsel for the petitioner has referred to the provisions of Master Plan permitting inter alia construction of lodging houses in residential areas, the classification for the Master Plan and Zonal Plan being broadly into residential areas and commercial areas. The Master Plan further provides for places where the small scale, medium and large scale industries can be located. On the strength of the provisions of the Master Plan it is argued that running of lodging houses/guest houses is the residential activity as staying of the people in guest houses is residence and running of a lodging house is giving of a place for residential purposes. The counsel for the petitioner has relied onthe decision of this court in R. Ramanujam v. Ajit Singh(AIR 1979 Delhi 286) followed in Bawa Holiday Home and Am. v. DDA.(1981(2) Slt (SN) 59). The judgment in Bawa Holiday Home has been expressly over ruled by the Supreme Court by its judgment on 18.4.1986 This Court in J.K. Katyal v.Lt. Governor, decided on 27.7.1989 has held that running of a guest house is carrying of a commercial activity.
(16) The D.C.A. Regulations known as the Hotels, Boarding Houses, Guest Houses, Hotels, Lodging Houses and Motels (Building Standards) Regulations 1977 came into force on 15.1.1977. immediately preceding the passing of the Delhi Police Act. Section 2(6) defines guest house to mean a building for housing the staff of Government, semi Government,the staff of public undertakings and private companies for short durations. The lodging houses Regulation 2(9) means a house in a residential area used for the lodging of less than 15 persons. Regulations provides for the location of the hotels according to Master Plan and Zonal Development Plans in the general business or commercial areas and further provides for the height, floor area ratio, parking standards etc. Regulation 4 is in regard to boarding houses/guest houses and hostels. They can be located in the areas shown for business and commercial purposes in the Master Plan or Zonal Plan and requirements in relation to height, floor area ratio, parking etc. are mentioned. In regard to boarding houses, guest houses and hostels in the residential areas shown in the Master Plan or the Zonal Plan with most stringent requirements in regard to the floor area ratio, sit backs, parking etc. The lodging houses are different from guest houses under the said Regulations and provisions for the some are made in Regulation 5. The said Regulations state that lodging houses are permitted on plots within the area shown for residential houses after a special appeal. It then states that the plots over which the lodging houses are located should not be less than 400 squareyard and must be located on the minimum of 60 ft. wide road.
(17) The provisions of the Master Plan/Zonal Plan are of a very general nature of broad planning into residential, commercial and industrial areas of totality of area or territory known as the Union Territory of Delhi. The Master Plan is prepared approximately for a period of twenty years, taking into consideration the residential, commercial and industrial requirement for the said period The object of the Master Plan for planned development of Delhi (in permitting a particular activity in a particular area) is not to be confused with the purpose of specification for building construction under the byelaws of Municipal Corporation or the Building Regulations of the D.D.A. So also the object of regulation and control of public order and peace in enacting Delhi Police Regulations of 1980, is entirely different from the object of Master Plan and the two building byelaws stated above. Therefore, a certain activity or establishment permissible for one purpose cannot be automatically held to be permissible for different purposes under different enactment.
(18) We may dispose of one more argument in relation to the hardship caused in complying with the requirements of the several enactments and satisfying the plurality of authorities in Delhi. There is no doubt that multiplicity of Authorities not only creates hardship but confusion to the citizens. This is so because Delhi is not a State and there are several administrative agencies governing Delhi in different parts or for different purposes. However, this does not mean, as the petitioners contend, that plurality of Authorities their restrictions are unreasonable restrictions violating Article 19(1)(g) of the petitioners. The difficulties created by multiplicity of Authorities is a general or common problem for all citizens and for all activities and is not peculiar to running of guest houses/lodging houses in Delhi. But apart from the peculiar problem of Delhi it is not unusual that the same activity requires compliance with different enactments and satisfaction of different Authorities. Take for example the running of an industry. A license is required under the relevant enactment for running an industry at a particular place and of a particular order, such place must be in conformity with the Master Plan/Zonal Plan and in the conforming area. Then the industries are required to follow the whole set of industrial/ labour laws and taxation laws. There is thus no substance in the contentions of the petitioners that the plurality of the enactments or Authorities render Police Regulations bad for violation of Art. 19(1)(g).
(19) From the above discussion, it is clear that the object of the Police Regulation. 1980 being entirely different that is, establishing public order and peace, the Commissioner of Police can frame such Regulations For the said purpose irrespective of the requirements and provisions of either the Master Plan. the Building Regulations of M.C.D. or D.D.A. or similar enactments. Subjection to such enactments as mentioned in section 28(4) only means that so far as the Police Regulations is concerned, any restriction of the activity imposed by the Master Plan and Building Regulations, would also be restrictions for enforcement of the Police Regulations. In other words, the Police Regulations cannot lift the restrictions and prohibitions imposed by the Master Plan or building byelaws. For the purposes of establishing law and order, public order and tranquility it can add to the restrictions and control but cannot substract. The question in regard to Sarais Act is already answered by stating that if a Sarai is not a Sarai properly so-called but is a place of public entertainment, the license would be necessary under Delhi Police Regulations and mere registration under Sarais Act would not be sufficient. It must also be noted that Sarai/ Guest Houses/Lodging Houses are merely labels. They cannot be treated as such unless in substance their activities and nature of establishment are truly discovered. It is then submitted that the police Regulations in question are ultra vires the Delhi Police Act, 1978 in so far as it confers much wider powers on the police authorities in the matter of licensing of the guest houses/lodging houses and imposing conditions on such establishments. As an off spring of the same argument, it is submitted that the powers conferred by the Regulations are unfettered and un-canalised powers and that the delegation of the powers under the Regulation to Additional Commissioner or Deputy Commissioner will result into more abuse and oppression at the lower level. These submissions are mis-conceived and are based on incorrect reading of the Delhi Police Act. Section 28 which empowers delegation of power to the Commissioner for framing the Regulations makes the object of the Regulations very clear. The object is the preservation of order in public places and regulating traffic. The other object is to prevent obstruction, inconvenience, annoyance, risks, danger or damage to the residents or passengers. These are sufficiently specific and detailed guidelines in the principal Act itself and, therefore, it cannot be said that the Regulations are ultra vires the provisions of the Delhi Police Act or that they confer unfettered and unchannelised powers on the Police officials. There is also no merit in the submission that exercise of the powers under the Regulations by Additional or Deputy Commissioner will result into abuse or oppression. Under the Police Act the Commissioner is charged with multifarious duties. He has also the political responsibilities and accountability to the Central Government in regard to law and order and public peace in Delhi. The delegation of powers to the Additional and Deputy Commissioners, therefore. is a practical necessity as it would be impossible for the Commissioner to discharge each and every function himself. There is also provision for appeal to the Lt. Governor against the order of the Assistant/Deputy Commissioner which is a special guarantee against the suspected abuse or oppression by the lower police officials. These submissions are, therefore, rejected.
(20) As regards the provision of appeal to the Lt. Governor under Section 39 of the Act is concerned, it is submitted in some writ petitions that the provision regarding appeal is futile since the Lt. Governor is overall in charge of the Administration in Delhi and the Commissioner of Police is directly subordinated to him, and who is bound by the opinion expressed by the Lt. Governor. On this basis, the submission is that appeal to Lt. Governor is an appeal from Caesar to Caesar. These arguments are raised in some writ petitions which were filed earlier and where this court had directed the petitioner to exhaust the statutory remedy of appeal before coming to court. Even after the dismissal of the writ petitions on this ground, some of the petitioners did not file the statutory appeals and rushed to this court again. It appears that the other reason for raising this argument is an elaborate order passed by the then Lt. Governor Sbri Jagmohan in dismissing some appeals with convincing speaking orders which are difficult to be faulted. Another set of petitioners have perhaps cleverly, tried to show this court that they have filed the statutory appeals. What, in fact. has been done is that the Lt. Governor was requested to keep the appeals in abeyance and filed writ petitions and secured stay of prosecutions. We find that the remedy of statutory appeal under Section 39 is a salutary provision in the Act in order to check any likelihood of abuse of powers at the lower levels. It is well established practice in law to confer an appellate or a revisional power on the Government, although the entire Administration is directly functioning under such Government or Authority.. Examples can be cited from several Central statutes where the Central Government exercises revisional powers If the argument of the petitioners is to be accepted, all statutory appeals will have to be abolished and then orders of the lower Authorities can always be challenged as arbitrary. The statutory appeals is a well recognised principle of ensuring fairness in the Administration and is an important component of the principle of natural justice. Some of the orders of Shri Jagmohan, the then Lt. Governor (which are the subject matter of some petitions) are followed by the lower police authorities not only because they come from the Lt. Governor but because they have intrinsic merit of a vast experience of Delhi Administration. We have independently held that where the petitioners bad requested the Lt. Governor to keep the appeals in abeyance and have filed writ petitions and secured stay of prosecution, they are guilty of abuse of process of law. The submissions of the petitioners in this regard are, therefore, rejected.
(21) The next submission is that neither the Act nor the Regulations define what is "lodging house" or ''boarding house". Lodging houses are not places of public entertainment unless they serve food or drinks. No license is, therefore, necessary for running of guest houses/lodging houses the argument goes. The Act defines the "place of public entertainment" to mean lodging house, boarding or residential hostel and includes any eating house or other place in which any kind of liquor or intoxicating drug is supplied to the public for consumption in and near such place. The definition of the place of public entertainment is also an inclusive definition. Eating houses are separately defined under Section 2 of the Act. But where such eating houses also serve liquor or intoxication drugs for public consumption in or near such places the eating houses fall under the description of a "place of public entertainment", A simple eating house does not need a license while the place of public entertainment needs a license. The lodging house or boarding house falls within the normal meaning of the place of public entertainment and are not brought in by inclusive definition. It is, therefore, wrong to say that unless liquor or intoxicating drugs are served in a lodging house it would not be a place of public entertainment, and, therefore, no license should be required. The words "lodging house" and "boarding house" has a well understood meaning in common parlance and therefore, does not require any definition. On the other hand,"place of public entertainment" is a new category of place created by the Police Act for the purposes of the Act and was. therefore, required to be defined. Besides, lodging houses or boarding houses being treated as places of public entertainment. has legislative history and supportive judicial decisions. The Calcutta Police Act of 1866 by virtue of Section 2 defined what was a place of "public entertainment". By way of inclusive definition it included a lading house in the said definition. The said definition also recognised "eating house" as a separate category. Section 39 of the Act required a license to be taken, which was to be granted on consideration of the suitability of a person or the suitability of a place. There was also provision for an appeal to the State Government against the order of the Commissioner of Police. Similarly, Section 2(10) of the Bombay Police Act, 1951 includes lodging houses & boarding houses in a place of public entertainment. Before Delhi Police Act was passed, the Bombay Police Act. 1951 was applicable in Delhi, although no Regulations similar to the impugned Regulations, were framed at that time. But all provisions regarding definitions, requirement of licenses, the powers of the Police Officers and provisions regarding appeal and punishment almost are borrowed from the Bombay Act. Xxxxx . Similar pattern was followed in Mysore Police Act, 1963 where Section 2(15) defines place of public entertainment in the same manner. A Division Bench of the Bombay High Court in Rao Khan Ayubkhan v. State of Bombay, (57 Bombay Law Reporter, 51) had an occasion to consider as to whether a lodging house' falls within the definition of 'place of public entertainment' if no food or drink is supplied for consumption in the lodging house. In an elaborate judgment the said High Court has held that non-supply of food or drinks for consumption does not take a lodging house out of the definition of a place of public entertainment. The Bench held that the act of furnishing accommodation is itself a form of entertainment. So also, it held that a lodging house where no food or drinks are served can also be a venue of anti social or undesirable activities and question of maintenance of public order is same in case of such a lodging house as in case of other places of public entertainment. We respectfully agree with the said decision of the Bombay High Court. The petitioners' guest houses/lodging houses, whether they serve food and liquor or not are places of public entertainment requiring a license to be obtained under the Act. Shri Mad an Bhatia, whose principal contention was that the impugned Regulations were not applicable to Sarais, has submitted that although the words lodging houses are included in the definition of place of public entertainment, the words lodging houses should be strictly construed because the Police Regulations are penal in nature and have a propensity to deprive the liberty of a citizen by prosecution. He has pointed out that some of the Sarais for which he was arguing are merely places for over-night stay without serving any food or other entertainment. In our view the said D.B. judgment of the Bombay High Court is a complete answer to the argument of Mr. Bhatia. It is immaterial whether food or drinks are served in a lodging house or not. The very act of staying and for that purpose making the accommodation available is itself entertainment. Therefore, even on narrow and strict construction the said lodging houses which are on the borderline being described as Sarais would still fall under the definition of a place of public entertainment. The petitioner's submission is, therefore, devoid of any force and is rejected.
(22) The counsels for the petitioners have then submitted that the suitability of a place or accommodation, as envisaged by Regulation 8, is not adequately defined or described thereby leaving a very wide discretion, in the hands of police authorities to deny licenses. This can be illustrated by few concrete cases, la some over-crowded and commercial places like Sadar Bazar the locality has been found to be non-suitable for running a guest house. Shri Jagmohan in some of his appellate orders has in general terms held that in residential localities guest houses cannot be permitted as it puts excessive load on the civic amenities and conveniences of the locality. In some cases the size of the rooms, the availability of air and light, absence of escape routes have been made as important considerations for denying licenses in regard to a particular place.
(23) In the nature of things words suitable place or suitable locality cannot be defined with any provision. Whether the place or the locality is suitable or not will depend on facts of each case. Normally, in a commercial area a guest house can be permitted similar to any shop. So also normally the peace and privacy of residential localities should be maintained and should not be burdened with the commercial activities, such as running the guest house. But there is no hard and fast rules. It may be most ill-advised, considering the hazards in a commercial area, to subject the occupants of the guest house or lodging house to any risk. We expect that the senior Police Officers such as an Asst. Commissioner or Deputy Commissioner will discharge their functions with certain amount of responsibility. Any error or mischief by such an officer can be corrected by the Lt. Governor in his appellate powers. But simply because the lodging house or a suitable place or locality are not defined in the Regulations, it cannot be described as arbitrary provision or that the provisions are violative of Article 14 or Article 19(1)(g) of the Constitution.
(24) During the course of argument we have seen that some difficulties in matters of obtaining licenses arise because of the fact that there is multiplicity of authorities and the Regulations under which the clearance is required before a license is granted. So also the prospective applicants do not know which place or which locality would be treated as unsuitable for granting licenses. We therefore, are giving some illustrative guidelines. They are, of course, not exhaustive.
(25) For the reasons stated above, there are no merits in any of the submissions challenging the validity and legality of any provisions of the Delhi Police Regulations. 1980, and they are, therefore, rejected. The provisions are valid and constitutional, (26) The detailed orders in regard to the the contentions on merits raised in each of the petitions are dealt with separately and separate orders are passed for that purpose in each of the writ petitions.
(27) In this particular writ petition, being CWP. 2431 of 1983, the petitioner applied for a license to run a guest house consisting of 13 rooms with 21 beds under the name and style of Shervani Fort View at premises No. 11, Sunder Nagar, New Delhi, on 20.8.1982. Before rejecting this application the Commissioner of Police (Licensing), Delhi, gave the petitioner an opportunity to show cause and personal hearing. He sent a reply but did not avail of the opportunity of personal hearing. The Commissioner thereafter by a reasoned order rejected the application. After rejection of the application by Deputy Commissioner of Police (Licensing) on 6.8.1983, the petitioner filed an appeal under Regulation 39 to the Lt. Governor. The same was rejected by the Lt. Governor on 21.9.1983. The appellate. order is a detailed order passed by Shri Jagmohan, Lt. Governor of Delhi It may be noted that Shri Jagmohan had a very long association with Delhi Administration, Delhi Development Authority and Works and Housing Department of Delhi. He was closely associated with the Master Plan and its implementation. These facts are stated only because the reasoned order passed by him in the appeal is baked up by expertise and long experience of administration in Delhi The reasons for rejection of the application for registration of a guest house given in this appellate order are also repeated with minor variations in different writ petitions. The arguments against the said appellate order are also the same. It is therefore proposed to deal with the appellate order in detail so that it can be followed in other petitions where the appeals are dismissed.
(28) The first reason for rejecting the permission was that the guest house was started on a lease-hold property from L & D.O. meant for residential purposes only The petitioner had conceded that he had not obtained permission from L. & D.O. to run a guest house, which, obviously, is not a residential purpose. We may quote further findings in appellate order so that they can be dealt with on the basis of arguments advanced against it : "THE counsel has, however, argued that the terms and conditions of the lease have no relevance as such to the present proceedings. To my mind, this plea is not tenable. The terms and conditions of lease and the provisions of building bye-laws have certain retionale, behind them. They are framed in accordance with the land use prescribed for the leased property under the Master Plan. Every citizen is entitled to his share of open space, proper light, air and safeguards against fire and health hazards. The quantum of facilities like power, water, parking etc. are made available to a particular locality keeping in view the population density in that locality which in turn is related to the land use prescribed under the Master Plan. A building meant for one or two family units, when used for the purposes of a lodging house, will necessary result in congestion and over-crowding in that locality thereby placing extra burden on a public utility with the result that the residents of the entire locality would be deprived of their share of fresh air, water, electricity and parking space etc. Therefore, in order to ensure decent living for all, it is necessary that conditions of lease and provisions of building bye laws are strictly adhered to. Moreover, if a guest house is permitted in a building meant for residential purposes in a residential locality, it is bound to cause considerable annoyance and inconvenience to the residents in its vicinity due to the frequent arrival and departure of guests and visitors at odd hours of day and night, particularly past mid-night or in early morning hours. Besides, it will cause obstruction to the smooth flow of traffic,"
(29) The reasoning in the appellate order that the conditions under which the original lease is granted and also the requirements of the bye-laws should be adhered to is to our mind absolutely correct. We do not find any valid argument raised against the said considerations stated in the appellate order. The Lt. Governor is also quite right in his reasoning that the building meant for residential purposes in a residential locality is bound to cause annoyance and inconvenience to the residents particularly at odd hours of the day. It will also cause obstruction to the smooth flow of traffic.
(30) Admittedly, the guest house is in the well known crowded prestigious residential colony of Delhi. The District Police did not recommend the case as the place and locality was not fit for the proposed activity. They also pointed out that there was no parking space. The D.D.A. also took objection that fifteen or more beds cannot be allowed since the premises are in residential area.
(31) The submission of the counsel for the petitioner is that there was sufficiency parking space. However, the Traffic Police are in a better position to see whether the parking area is sufficient in that locality for not creating public obstruction or inconvenience. The other guest houses already running in the area are the guest houses which were originally registered as sarais. At the time of A said (for the immediate necessity of accommodating the sportsmen and sports lovers who had thronged Delhi), similar to some other guest houses, a license under the Delhi Police Regulation was issued to these two guest houses. Since the said guest houses are now being permanently run after the A said, the Commissioner of Police should re-examine as to whether the said guest houses satisfy all the requirements of the Police Regulation at the time of the renewal of the licenses, since the license is granted for one year at a time. The petitioners cannot avail of the fact that the licenses were granted to the said two guest houses under peculiar and urgent circumstances of A said. The appeal was rightly rejected by the Lt. Governor and the petitioner cannot make any grievance. The petition is, therefore, dismissed. The rule is discharged. There will be no order as to costs. Stay is vacated.