Himachal Pradesh High Court
Anil Mahajan vs Department Of Tourism & Civil Aviation ... on 29 April, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No.166 of 2008.
Judgment reserved on 23.4.2016
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Date of Decision: 29 .4.2016.
______________________________ _________________________
[
Anil Mahajan .........Petitioner.
Versus
Department of Tourism & Civil Aviation and Anr.
of
..........Respondents.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
rt
Whether approved for reporting1? Yes
For the petitioner: Mr. Naresh K. Gupta, Advocate.
For the respondents: Mr. Rupinder Singh Thakur,
Additional Advocate General, with
Mr. Pankaj Negi, Deputy Advocate
General.
_________________________________________________________
Sandeep Sharma, J.
By way of present criminal revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, the petitioner has assailed the judgment dated 30.6.2008 passed by learned Sessions Judge, Chamba, District Chamba, H.P., in Criminal Appeal No. 19 of 2007, whereby the judgment dated 11.7.2007 passed by learned Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:13:10 :::HCHP -2-Chief Judicial Magistrate, Chamba, District Chamba, H.P., in Criminal Case No. 35-III of 2003/02 has been modified to the .
extent that amount to the tune of Rs. 3,00,000/- as awarded by learned Chief Judicial Magistrate Chamba, has been reduced to Rs. 90,000/-.
2. Briefly stated facts of the case are that of respondent No.1 herein (hereinafter referred to as the complainant) i.e. Department of Tourism and Civil Aviation rt filed a complaint Ext.PW1/A against the present petitioner-
Anil Mahajan under Section 49 read with Section 42 of H.P. Registration of Tourism Trade Act, 1988 (amended upto date), (hereinafter referred to as Act) for the violation of offence under Section-10 of the Act in the court of learned Chief Judicial Magistrate, Chamba, H.P. Perusal of Ext.PW1/A shows that it was alleged in the complaint that present petitioner-accused is running hotel under the name of Hotel Aroma Palace at Mohalla Bangotoo, Chamba since 1999 as a business for monetary consideration. It is specifically alleged in the complaint that aforesaid hotel has not got its registration done with the complainant-
::: Downloaded on - 15/04/2017 20:13:10 :::HCHP -3-department, which is a sheer violation of Section-10 of the Act. It is further mentioned in the complaint that the present .
petitioner-accused is still continuing the offence by running his business despite several repeated remainders/notices. The petitioner-accused failed to get itself registered with the complainant-department. It was specifically alleged in the of complaint that petitioner herein-accused failed to produce any proof that building/structure of the hotel has been built rt up in accordance with building by-laws prescribed under the provisions of the H.P. Town and Country Planning Act, 1977 and H.P Municipal Act, 1994 and till date, no completion certificate as required under Section 12 (g) of the H.P Registration of Tourism Trade Act, 1998, has been furnished.
The complainant alleged that the petitioner herein-accused has violated the Act and as such, he has rendered himself liable to be penalized in accordance with the Section-42 of the Act.
3. The above mentioned complaint was filed by the Assistant Tourism Development Officer, Chamba, being a public servant serving in the complainant department.
::: Downloaded on - 15/04/2017 20:13:10 :::HCHP -4-4. Pursuant to the aforesaid complaint, the court of learned Chief Judicial Magistrate took cognizance and .
summoned the accused. Thereafter, learned trial court below after hearing the parties found a prima-facie case under Section 42 of the Act and notice of accusation was issued to the accused to which he pleaded not guilty and of claimed to be tried. In order to prove its case, prosecution examined as many as three prosecution witnesses and rt tendered documents.
5. The court of learned Chief Judicial Magistrate, Chamba, after hearing the parties and evaluating the record of the case, convicted the petitioner herein-accused under the Act, and sentenced him to pay fine of Rs.
3,00,000/-, failing which, to undergo simple imprisonment of four months.
6. Feeling aggrieved and dissatisfied with the judgment dated 11.7.2007, passed by learned Chief Judicial Magistrate, Chamba, District Chamba, H.P., the present petitioner-accused as well as the respondent filed appeal under Section 374 (3) of the Code of Criminal Procedure ::: Downloaded on - 15/04/2017 20:13:10 :::HCHP -5- against the judgment in Case No. 35-III of 2003/2002 in the Court of learned Sessions Judge. The learned Sessions Judge, .
Chamba vide judgment dated 30.6.2008 disposed of two connected criminal appeals i.e. 19 of 2007 and 23/08/07 filed by the petitioner herein-accused and the complainant-
respondent respectively.
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7. The learned Sessions Judge though rejected the appeal preferred by the respondent -department but partly rt allowed the appeal preferred by the petitioner herein-
accused. The court of learned Sessions Judge by way of the judgment dated 30.6.2008 modified the impugned judgment dated 12.7.2007 to the extent that fine imposed by court of learned Chief Judicial Magistrate to the tune of Rs. 3 lakhs was reduced to Rs. 90,000/-
8. That the petitioner herein-accused by way of present criminal revision petition, has challenged the judgment dated 30.6.2008 passed by learned Sessions Judge, Chamba, H.P. in Criminal Appeal No. 19 of 2007. At this stage, it may be pointed out that learned counsel representing the state in the present case has not brought to ::: Downloaded on - 15/04/2017 20:13:10 :::HCHP -6- the notice of this court that whether the State has also filed any appeal against the judgment dated 30.6.2008 passed by .
learned Sessions Judge in Criminal Appeal No.23 of 2007 whereby the appeal preferred by the respondent was dismissed.
9. Shri Naresh Gupta, learned counsel for the of petitioner-accused vehemently argued that the judgment passed by the court of learned Sessions Judge is based on rt wrong appreciation of facts and as such it deserves to be quashed and set-aside. He vehemently argued that both the courts below have erred in appreciating the photo copies of documents tendered in evidence by the complainant. He also contended that since the application for registration remained pending with the complainant department, there was no fault on the part of the present petitioner in getting the hotel in question registered with the department. He also stated that since the application of the petitioner remained pending with the complainant department for more than a period of three months, it would be deemed to have been accepted for registration in terms of Section 10 (3) of the Act ::: Downloaded on - 15/04/2017 20:13:10 :::HCHP -7- in question. On the other hand, Mr. R. S. Thakur, Additional Advocate General, assisted by Mr. Pankaj Negi, Deputy .
Advocate General, supported the judgment passed by learned Sessions Judge, Chamba. According to Mr. Thakur, court of learned Sessions Judge has already taken lenient approach while passing the judgment dated 30.6. 2008 of whereby he has reduced the penalty from Rs. 3 lakhs to Rs.
Rs. 90,000/-. He vehemently argued that there is ample rt evidence on record to suggest that despite sufficient opportunities, present petitioner failed to get its hotel registered under the H.P. Registration of Tourism Trade Act, 1988, which was mandatory. He also argued that despite number of notices, the petitioner continued with his business and failed to place on record the required/apposite documents as were called for time and again and he prayed for dismissal of the present case.
10. In the present case, prosecution with a view to prove its case, examined as many as three witnesses.
11. PW-1, Kishori Lal Mastana, Assistant Tourism Development Officer, Chamba, who had actually filed the ::: Downloaded on - 15/04/2017 20:13:10 :::HCHP -8- complaint in the court of learned Chief Judicial Magistrate, appeared as PW-1. Perusal of the statement given by PW-1 .
portrays that he reiterated all averments which actually were made in the complaint. During his statement, he also proved Ext.PW1/A i.e. complaint duly supported by an affidavit, Ext.PW1/B. He also proved the photo copy of the Act which of was made available on record i.e. Ext.PW1/C, notification Ext.PW1/D, photo copy of the application moved by the accused rt to the Tourism Department Ext.PW1/E duly supported by an affidavit Ext.PW1/F, letter moved to the complainant by the Executive Officer, Municipal Council Chamba to the Tourism Development Officer Chamba Ext.PW1/G, Inspection report of Hotel Ext.PW1/H. He also proved the summon issued to the petitioner herein-accused i.e. Ext.PW1/J to Ext.PW1/L. Letter written to the Assistant Tourism Development Officer, Chamba, H.P. by Shri Neel Kanth the proprietor of Hotel Aroma Palace, Chamba Ext.PW/M was also placed on record. During his cross-
examination, he stated that the accused had applied for registration of his hotel with the complainant department in ::: Downloaded on - 15/04/2017 20:13:10 :::HCHP -9- the year, 1999 and his application is still pending on the ground that till date, he has not been able to supply the .
approved map of building from the Municipal Council. He also admitted that registration fee was also deposited by the petitioner herein-accused with the complainant-department.
12. PW-2 Shri Tarsem who was posted as Executive of Officer in the year, 1999, proved letter Ext.PW1/G which was addressed to District Tourism Officer, Chamba.
13. rt PW-3 Shri Tilak Raj, Junior Assistant, Excise and Taxation Department stated that Hotel Aroma Palace stands duly registered with Excise and Taxation department and the tax in this regard is being deposited by the Hotel since 31.3.2001. Statement of the present petitioner-accused was also recorded under Section 313 Cr.PC wherein he denied all the evidence adduced by the prosecution against him and pleaded innocence and stated that he has been falsely implicated
14. Though, this court has limited scope of re-
appreciating the evidence while exercising its jurisdiction in criminal revision petition. But solely with a view to reach just ::: Downloaded on - 15/04/2017 20:13:10 :::HCHP
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and fair conclusion, exercise was undertaken during arguments to analyze the entire evidence on record. After .
perusal of the record of both the courts below, it can be safely concluded that courts below have very carefully gone through the statements made by all the prosecution witnesses as well as documents tendered in evidence.
of However, with a view to arrive at just and fair conclusion, this court again critically analyzed the statements of all the rt prosecution witnesses as well as documents tendered in its support.
15. Admittedly, in the present case, complaint has been filed by the complainant-respondent under Section 49 read with Section 42 of the Act for the violation offence under Section 10 of the Act. Section 10 of the Act reads as under:-
10 (1). Every person intending to operate a hotel in a tourist area shall, before operating the hotel, apply of registration to the prescribed authority in the prescribed manner.
(2). Notwithstanding anything contained in sub section (1), any person already operating a hotel in a tourist area on the date of notification ::: Downloaded on - 15/04/2017 20:13:10 :::HCHP
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under clause (q) of the Section 3 is issued shall apply for registration within three months from the aforesaid date.
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(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 of registration.
(4). No person shall operate a hotel in a tourist area unless it is registered in accordance with rt the provisions of this Act.
16. A careful perusal of the Section 10 of the Act shows that, whosoever intends to set up a hotel in a tourist area, he/she is required to apply for registration to the prescribed authority in a prescribed manner. It is also true that application made under Section 10(1) is also required to be disposed of within three months from the date of the receipt of the application, failing which, it would be deemed to have been registered.
17. As per the statement of PW-1 present petitioner-
Anil Mahajan had applied with the department for the registration of his Hotel Aroma Palace situated at Mohalla ::: Downloaded on - 15/04/2017 20:13:10 :::HCHP
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Bangotoo, Chamba in the year, 1999, which remained pending with the department for want of certain documents .
from the side of the present petitioner. PW-1 categorically stated in his complaint Ext.PW1/A that since 1999, petitioner, Anil Mahajan, has been operating a hotel under the name and style of Hotel Aroma Palace in Mohalla Bangotoo, of Chamba without getting the hotel in question registered with the department. Aforesaid act of the petitioner-accused is rt clear violation of the Section 10(3) of the Act in question. He further stated that he is continuing with his business despite notices served upon him. PW-1 also stated that though registration fee as required for registration, has been duly deposited by the petitioner-accused with the department but accused has failed to prove that building structure of the hotel has been duly approved by the concerned authorities as envisaged under the provisions of H.P. Town and Country Planning Act, 1977 and H.P. Municipal Act, 1994. He also tendered letter Ext.PW1/G purportedly written by the Executive Officer, Municipal Committee informing therein that the accused-Anil Mahajan has not constructed the ::: Downloaded on - 15/04/2017 20:13:10 :::HCHP
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building as per sanction granted to him and he has deviated the sanction plan by constructing additional stories. Letter .
Ext.PW1/G also communicates that guest house building is still illegal and un-authorized and as such, the Executive Officer, Municipal council, Chamba is unable to issue/provide Non- Objection Certificate (N.O.C.). Aforesaid of letter was duly proved by PW-2 Shri Tarsem who was posted as Executive Officer in the Municipal Committee, Chamba, H.P. rt
18. PW-3, Shri Tilak Raj deposed that Hotel Aroma Palace stands duly registered with Excise and Taxation Department and the petitioner-accused has been depositing taxes since 31.8.2001, which suggests that the petitioner herein-accused had been continuing with the hotel business without there being any registration certificate from the Tourism Department.
19. Perusal of the statement given by the prosecution witnesses as well as material made available on record, it is not disputed that the petitioner-accused had applied to the prescribed authority for registration of his hotel ::: Downloaded on - 15/04/2017 20:13:10 :::HCHP
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in the Year, 1999. But careful reading of the statements as well the documents suggest that application preferred .
hereinabove was not complete and as such could not be considered by the department for registration because as per Rule 3 of H.P. Registration of Tourist Trade Rules, 1995, he was required to submit to the prescribed authority in a proper of form along with all requisite documents as prescribed under the Rules for registration. Rule 3 reads as under:-
rt
3. Application for registration-An application or registration by a person intending to carry on business as a dealer or to operate a hotel or to work as a travel/ excursion agent, outdoor photographer or guide as the case may be, under the prescribed authority in the appropriate form, along with all requisite documents, as prescribed under these rules with a registration fee as prescribed in rule 4.
20. Undisputedly, PW-1 complainant has stated that registration fee was deposited by the petitioner-accused along with application but he has categorically stated that despite several reminder/notices, the petitioner failed to place on record the document showing that construction ::: Downloaded on - 15/04/2017 20:13:10 :::HCHP
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plan of hotel building was actually passed under the H.P. Town and Country Planning Act, 1977 and H.P Municipal Act, .
1994. Section 12 (G) of the H.P. Registration of Tourist Trade Act, 1988 Ext.PW1/C specifically provides for furnishing of completion certificate. Admittedly, in the extant case, accused Anil Mahajan while making the application in terms of of Section 10 of the Act had actually failed to comply with Rule-3 of the H.P. Registration of Tourist Trade Rules, 1995 rt which makes it incumbent upon the applicant to apply for registration in an appropriate form annexing therewith all requisite documents required for the registration.
21. Mr. Naresh Gupta, learned counsel representing the petitioner stated that since application for registration remained pending with the department since 1993 and the department failed to decide the same within a period of three months as was required to be done under section 10(3) of the Act. He further argued that since the complainant-
department failed to decide the same within time, application shall be deemed to have been accepted in terms of the Section 10 (3) of the Act. I do not find any force ::: Downloaded on - 15/04/2017 20:13:10 :::HCHP
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in the contention of Mr. Gupta, simply for the reason that application filed by the petitioner was incomplete and as .
such the department had no occasion to deal with the same.
22. Perusal of the documents made available on record reveals that the respondent-complainant issued of various notices to the respondent-complainant for submitting the documents Ext.PW1/J Ext.Pw1/K and Ext.PW1/L. Perusal rt of the aforesaid documents clearly suggests that though matter remained pending with the department but during this period, communications were sent to the petitioner-
accused pointing out therein irregularities but the petitioner did not pay any heed and continued with the business.
Rather, perusal of Ext.PW1/M i.e. letter written by the petitioner-accused to the department demonstrates that there was some dispute of the petitioner-accused with the Municipal Council, Chamba, regarding building plan, which was pending in the court of law. By way of said letter, the petitioner-accused had requested the complainant department that necessary certificate will be procured and ::: Downloaded on - 15/04/2017 20:13:10 :::HCHP
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filed immediately after settlement of the issue with the Municipal council, Chamba. It clearly suggests that .
petitioner-accused was aware of the fact that his case pending with the respondent-department for registration could not be decided by the department for want of necessary completion certificate. Rather, in letter Ext.PW1/M, of the accused petitioner has acknowledged that hotel building has not been issued completion certificate being rt unauthorized. The petitioner-accused himself admitted during his statement under Section 313 Cr.PC that Hotel in question is being run by him since, 1999, which was admittedly in violation of Section 10(3) of the Act and as such the accused rightly rendered himself liable to be prosecuted under Section 42 of the Registration of Tourism Trade Act, 1998. Though, the present respondent department had also filed separate appeal under Section 377 of the Cr.PC for enhancement of the sentence of the accused on the ground that it is clearly established on record that accused had been running hotel since 1999 till without there being any registration and as such he is liable to be ::: Downloaded on - 15/04/2017 20:13:10 :::HCHP
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punished with imprisonment for a term not exceeding six months as envisaged under the Act. However, same was .
dismissed by the court of learned Sessions Judge, Chamba, and as has been stated above, counsel representing the State in this regard has not been able to point out whether state has filed appeal against the judgment passed by of learned Sessions Judge in Criminal No. 23 of 2007 dated 30.6.2008 or not.
23. rt Mr. Naresh Gupta, vehemently argued that since documents tendered in evidence were merely photocopies, they could not be relied in evidence. But in the present case, perusal of the record suggests that the documents have been exhibited and stand duly proved by the prosecution witnesses and its further scrutiny reveals that those were never objected to be taken on record being photocopies by the petitioner-accused and as such, argument advanced by Mr. Gupta, deserves to be rejected outrightly.
24. After careful and incisive reading of the judgments passed by the trial Court below as well as ::: Downloaded on - 15/04/2017 20:13:10 :::HCHP
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statements made by the prosecution witnesses as well as accused himself and documents made available on record, .
I have no hesitation to hold that there is no illegality and infirmity in the judgments passed by the courts below and as such no indulgence/interference of this Court is warranted in the present case. Rather, this court is of the view that court of of learned Sessions Judge by partly allowing the criminal appeal No.19/07, has taken very lenient view while reducing rt the fine imposed by the court of learned Chief Judicial Magistrate Chamba from Rs.3,00,000/- to Rs.90,000/-
because Section 42 of the Act itself provides that any person found carrying business of hotel without proper registration, is required to be punished with imprisonment for a term not exceeding six months or with fine not exceeding more than Rs.10,000 or both and in continuance breach, the minimum fine of Rs. 100 per day or maximum of Rs. 1000/- per day.
Admittedly in the present case, the petitioner herein-
accused has been running hotel without there being any registration certificate since 1999 and admittedly, till 25.2.2002, when the application for registration was ::: Downloaded on - 15/04/2017 20:13:10 :::HCHP
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rejected/declined and no registration certificate was granted in his favour.
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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 well as rule in of vogue. Hence the present revision petition fails and dismissed accordingly. Pending application(s), if any, also rt stands disposed of.
April 29, 2016 (Sandeep Sharma),
manjit Judge.
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