Jammu & Kashmir High Court - Srinagar Bench
Kashmir Motor Boat Association vs State Of J&K And Ors on 21 July, 2011
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR OWP No. 166 of 2011 Kashmir Motor Boat Association Petitioners State of J&K and ors Respondents !Mr. B. A. Bashir, Advocate ^M/s M. A. Thakur, Advocate A. M. Dar, Advocate B. A. Dar, Advocate Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 21/07/2011 :J U D G M E N T:
J&K Registration of Tourist Trade Act, 1978 (for short Act of 1978) came into force on 9th May, 1978. In the preamble of the Act of 1978, it is stated that same has been promulgated to provide for the registration of persons dealing with tourists and for matters connected therewith. Vide notification SRO 384 dated 10.07.1979, rules were notified which are called J&K Registration of Tourist Trade Rules, 1979, (for short Rules of 1979). Section 2(b) of the Act of 1979 defines boat to mean house-boat, doonga boat, shikara, motor boar, motor launch, paddle boat, sailing boat, canoc and bathing boat. Section 2 (c) defines certificate of registration to mean certificate issued under this act. Section 2(n) defines tourist area to mean any area notified by the Government in the Government Gazette to be tourist area for purposes of this Act. Part II of the Act of 1978 deals with the registration of dealers. Section 45 of Act of 1978 provides for fixation of rates for other services which includes boat as well. Rule 24 of the Rules of 1979 which is relevant for this case is reproduced as under:
24. (1) Every person whoever carries on in a tourist area the business of putting or plying for hire boats, taxi shikara boats, bathing boats, Tongas, Dandies, Ponies, Sledges, Motor Launches, Surf Rides, water skiing, Camping equipment including (Rain Coat, Warm Coats, umbrellas and shoes) tent and tented equipment and Tourist Guiding/Coolie shall have to get himself registered for conducting such business.
(2). An application for registration shall be submitted to the Prescribed Authority in Form XIV, with a fee as prescribed hereunder accompanying such application. The registration will be subject to renewal every year.
(1) Hire boat Rs. 2/-
(2) Taxi Shikara boat Rs. 5/-
(3) Bathing boat Rs. 20/-
(4) Dandy Rs. 10/-
(5) Pony Rs. 5/-
(6) Sledge Rs. 5/-
(7)Motor Launch Rs.15/-
(8)Tents and tent equipment dealer Rs. 10/-
(9) Camping Agency Rs. 10/-
(10) Tourist Guide/Coolie Rs.10/-
The above said rule provides that every person whoever carries on in a tourist area the business of putting or plying for hire boats, taxi shikara boats, bathing boats, Tongas, Dandies, Ponies, Sledges, Motor Launches, Surf Rides, Water Skiing, etc. shall have to get himself registered for conducting such business. Sub Rule 2 of the said rule provides that an application for registration shall be submitted to the prescribed authority in Form XIV with a fee as prescribed in the said sub Rule.
Members of petitioner association claim to be providing the motor boat/motor launch service to the tourist/people and also claim to provide the facilities of surf riding and water skiing. The claim of the petitioner-association is that they have been undertaking these activities for years together and these services are being provided at Ghat Nehru Park.
Claim of the members of the respondent no. 6 association is that they are providing bathing boat facilities as also surf riding and water skiing to the tourists etc. Claim of the respondent no. 6-association is that initially they were providing this service at Ghat Nehru Park from years together but in view of the decision taken by the official respondents on 2nd March, 2006, they have shifted their activities to open area in the Dal Lake which has been notified as aquatic sports area and ever-since they are carrying these activities and providing these services in the said area.
The controversy arose in the year 2006, when the notification dated 2nd March, 2006 was issued. The said notification was challenged by the petitioner in OWP No. 450/2006 which writ petition was decided by the Court vide its judgment and order dated 25.02.2008. Operative part of the judgment is reproduced as under:
3. Accordingly, with agreement of appearing counsel, the matter is disposed of by referring the whole issue to the Director of Tourism Department with following directions:
a) That he shall enter upon the whole issue and after hearing all the parties concerned provide suitable spaces alongwith the launching pads to all the contending groups without any overlapping in between taking care of the rights available to all of them under the certificates of their registration in so far as the question of water sports like water rafting/skiing is concerned. The space for taking up such sports be also specifically provided without any overlapping from here or there.
b) The Director would settle the matter at his own level without reference to any other authority/ies otherwise than as required by or under the Act. In any case, the matter be settled before April 2008, the tentative start of tourist season. The Deputy Director, Tourism Registration issued an order on 3.04.2008 which was purportedly issued in compliance to the orders of the Court passed in the aforementioned writ petition. Petitioner challenged the said order in OWP 340/2008 and respondent no. 6 also filed writ petitioner seeking implementation of the said order.
Court vide judgement and order dated 10.04.2009, heard both the two petitions together and passed the order, operative part of the said order is reproduced as under:
On this count alone, I find the order impugned can not stand. It will be just and proper and in the interest of the parties if the matter is re-examined by the Director himself. Keeping in view the nature and urgency, let the Director Tourism, Kashmir himself consider the matter expeditiously. The exercise done by the Dy. Director Tourism, while arriving at the conclusion drawn in order dated 03-04-2008, may be placed before the Director, who will examine the same and will also re-hear the parties and if required visit the spot and take a decision in the matter in terms of the directions of the court dated 25-02-2008. Let the matter be examined and appropriate orders passed within one week from the date this order is served on the Director. The Director, Tourism Kashmir-respondent no. 2 passed order no. 05-DDTR 2009 dated 1st May, 2009. Petitioner being aggrieved of the said order challenged the same in OWP No. 445/09 which writ petition was dismissed by the court vide its order and judgment dated 4.08.2009. Petitioner feeling aggrieved of the said judgment challenged the same in LPA no. 193/09. The Letters Patent Bench of the court disposed of the said appeal vide its judgment and order dated 08.10.2009. Operative part of the said order is reproduced as under:
.We, accordingly, interfere in the matter and set aside the judgment and order passed under appeal as well as the order of the Director dated May 1, 2009. The Director, Tourism is, once again, directed to discharge his obligations in terms of the order of this Court dated February 25, 2008.
We add that the Director shall maintain appropriate records of sending notice to all the parties concerned, service thereof as well as minutes of the proceedings/meetings to be held by him and shall preserve the same so that those may be called for and looked at by this Court, if and when occasion thereof arises. In the order to be passed ultimately by the Director, he must indicate the exact location wherefrom the appellant and respondent no. 4 may be permitted to carry on water sports activities, the extent of the area in which they shall confine their such activities, the nature of facilities available there, including launching pad, changing rooms, staircase, etc. and when they were completed. It will be appropriate to have these areas indicates in a map which shall form part of such order.
It goes without saying that the arrangement as was continuing until before the order of the Director dated May 1, 2009 was passed, shall continue, but the same will not entitled an unlicensed operator to operate.
The appeal is disposed of accordingly.
Caveat stands discharged Respondent no. 6 challenged the judgment and order of the LPA Bench before the Honble Supreme Court. SLP, however, was dismissed by the Honble Supreme Court vide its order dated 08.03.2010. While dismissing the appeal of the respondent no. 6, Honble Supreme Court directed the respondent no. 2 to comply with the direction of the High Court within a period of four weeks from the date the order was passed by Honble Supreme Court. Respondent no. 2 passed order no. 24-DDT(Reg) dated 5.02.2011, and in terms of the said order petitioner was found to be ineligible to undertake sports activities like water skiing and surf riding etc. Respondent no. 6 was found entitled to undertake sports activities like water skiing and surf riding etc. on the basis of the records which the respondent no. 2 had purportedly examined. The members of the petitioner association, however, were not found entitled to undertake the aforementioned water sports activities and they were also ordered to shift their activities to identified site near Ziariat Syed Sahib Sharief at Boulevard Road, Srinagar. Petitioner feeling aggrieved of the said order has challenged the same in this writ petition.
Court on 21.02.2011, after hearing the learned counsel for the petitioner and Mr. A. M. Dar, learned counsel for respondent no. 6 who was on caveat, passed the following orders:
Caveat discharged.
Heard.
Rule Nisi.
Notice to show cause why Rule is not made absolute.
List in week following the next. Meanwhile, reply affidavit. Mr. A. M. Dar, appeared and submitted that he is under instructions to accept notice on behalf of respondent no. 6.CMP no. 241/2011
Notice. In the meanwhile, it is provided that only those of the members of petitioner and respondent no. 6, associations will conduct their business/affairs, who have been issued licenses for such activities in accordance with mandate of Jammu and Kashmir Registration of Tourist Trade 1978 and Registration of Tourist Trade Rules.CMP no. 242/2011
Notice. Registry to inform Director, Toursim Kashmir, respondent no. 2 to cause production of record pertaining to the case by next date of hearing. The Court, in view of the circumstances of the case, passed the following order on 24.03.2011:
In terms of court order dated 23.03.2011, Deputy Director Registration is present. Certificates of registration of four persons namely Ab. Gani Kulo 2. Nazir Ahmad Sheikh 3, Moha mmad Ramzan Banara and 4. Noor Mohammad Pukhtoon have been handed over to him in open court by ld counsel for private respondents. The Dy. Director Registration after considering the original record if finds that there is some insertion or tempering in the certificates of Registration then he will immediately take action in accordance with law and after affording an opportunity of hearing to the aforementioned persons pass appropriate orders. The aforementioned persons through their counsel are directed to appear before the Dy. Director Registration on 25th of March 2011 and the concerned authority will point out to them any insertion or discrepancy if same is found between the original record and the certificates of registration and after affording opportunity of hearing will pass orders thereafter within four days. The Dy. Director Registration will submit report to this court as to what action he has taken in the matter and what have been his conclusion.
List on 31st of March 2011. In the meanwhile it should be ensured that court orders are implemented in letter and spirit. Vide order dated 03.03.2011, respondent no. 6 was restrained till further orders from carrying on water sports activities viz. surf riding and water skiing.
Deputy Director, Registration-respondent no. 3 in view of the submission made at the bar by Mr. B. A. Bashir learned counsel appearing for petitioner was directed to appear in person before the Court. The said officer was asked to appear in the court as serious allegations were leveled in the writ petition as also in verbal submissions by learned counsel for the petitioner when he stated that the certificates of registration held by the members of respondent no. 6 association have been forged and tampered with and the words surf riding and water skiing have been inserted in them. As per the submission of the learned counsel for the petitioner as a matter of fact, certificate of registration was issued only in respect of bathing boat and not in respect of aforementioned sports activities. Respondent no. 3 was handed over some of the original registration certificates in the open court and was directed to examine the same. The said officer framed tentative opinion and stated that the words surf riding and water skiing have been inserted in the certificate of registration. Court directed him to proceed in the matter in accordance with the law. The said respondent issued notices to the members of the respondent no. 6 association asking them to show cause as to why they shall not be black listed for having allegedly forged the certificates of registration. Reports were filed by the said authority. The said authority, however, filed final report wherein he stated that because of the reason that the entire record of the Directorate of Tourism Department was gutted in a devastating fire in 2005, so he cannot come to a definite conclusion as to whether certificates of registration have been allegedly forged or not.
The parties have filed pleadings and documents to substantiate their respective claims and have made efforts to show that stand taken by either of them is not correct.
Learned counsel for the parties made joint request for hearing of the case for its final disposal and it is for this reason that the case was finally heard.
Mr. Bashir, learned counsel appearing for the petitioner-association argued at great length and invited the attention of the Court to the judgments of the court passed in earlier round of litigations as also the orders passed by the authorities from time to time. Learned counsel was at pains to explain that both the members of petitioner- association and respondent no. 6-association were undertaking water sports activities viz. water skiing and surf riding. Learned counsel submitted that authorities have bungled whole issue inasmuch as in order to confer illegal benefits on members of respondent no. 6-association false statement has been made and members of petitioner-associations right to undertake sports activities viz. water skiing and Surf Riding has been illegally taken away in terms of the impugned order. Learned counsel referred to scores of documents which include judgments, affidavits, orders and certificates to indicate that there is sufficient evidence on record to show and suggest that members of respondent no. 6- association have allegedly forged the certificates of registration. Learned counsel invited the attention of the Court to the copies of certificate of registration which have been obtained from Jammu and Kashmir Bank and also invited attention of the Court to the copies of certificate of registration which have been placed on record by respondent no. 6 alongwith reply affidavit/objection. Perusal of these two sets of registration certificates pertaining to same person do show that they are materially different. Learned counsel submitted that in order to maintain purity and transparency in the echelons of administration and in order to meet out justice to the members of petitioner-association, it becomes necessary to direct for launching of criminal prosecution against respondent no. 2, 3 and 6. Learned counsel also submitted that respondent no. 2 and 3 have also allegedly committed the contempt of this court inasmuch as they have made false statement on affidavit and have thus tried to interfere with the process of administration of justice. Learned counsel accordingly prayed for allowing the writ petition, in the manner, the reliefs are sought for in this petition.
Mr. Thakur, learned GA appearing for official respondents submitted that the respondent no. 2 in faithful compliance of the orders of the Court passed the order which is impugned in this petition. Learned counsel also submitted that in order to protect the Ghat Nehru Park a conscious decision was taken way back in the year 2006 to shift the aquatic sports activities from the said place to open area in the Dal Lake. Learned counsel submitted that the impugned order has been passed on the basis of material available in the tourism department. Learned counsel submitted that respondent no. 3 could not conclude the proceedings in pursuance of the Court orders for the reason that original record was destroyed in the fire which took place in the office of Directorate of Tourism in the year 2005. Learned counsel further submitted that in terms of Act of 1978 and Rules of 1979, members of petitioner-association as well as respondent no. 6-association are required to have separate certificates of registration for the individual sports activities. Learned counsel while explaining his submissions stated that for surf riding a person must have a separate certificate of registration and for water skiing he must have a separate certificate of registration. Learned counsel submitted that both the members of petitioner-association and respondent no. 6 association are not possessed of requisite certificates of registration for undertaking such activities.
M/S A.M.Dar, and B.A. Dar learned counsel appearing for respondent no. 6 argued at great length. Mr. A.M. Dar submitted that members of the respondent no. 6 association at no point of time forged the certificates of registration as is alleged. Learned counsel vehemently denied the allegation that the words surf riding and water skiing have been inserted by his clients in their respective certificates of registration. Leaned counsel also submitted members of respondent no. 6-association have been undertaking the aforementioned sports activities for years together. Learned counsel also submitted that members of the respondent no. 6-association have four bathing boats stationed in the notified area of Dal Lake and four bathing boats in Nageen lake. Learned counsel submitted that huge amount has been invested by his clients in procuring the paraphernalia and for raising necessary infrastructure required for the aforementioned sports activities. Leaned counsel also submitted that because of the interim order passed by the Court his clients have been prevented from conducting their business and earning their livelihood. Learned counsel submitted that respondent no. 2 after considering the entire issue in light of judgment passed by the Court and after considering the record available with him passed order, which is impugned in this petition. Learned counsel submitted that no fault can be found with the impugned order and writ petition deserves to be dismissed.
After hearing learned counsel for the parties, it was observed by the Court that in terms of the judgment of the Court passed in OWP no. 450/2006, the space alongwith launching pads was to be provided to the contending groups without any overlapping in between, taking care of the rights available to all of them under certificates of their registration, in so far the question of water sports like water skiing and surf riding is concerned. Their attention was also invited to the LP Judgment dated 8th October, 2009 in which while disposing of the appeal, it was provided that arrangement as was continuing until before the order of the Director dated May 1, 2009 was passed shall continue, but the same will not entitle an unlicensed operator to operate. It was also observed at hearing of this case that the provisions of Act of 1978 and more particularly rule 24 of Rules of 1979 would authorize only a person to undertake water sport activities viz. surf riding and water skiing who has been authorized by the competent authority by issuance of certificate of registration. The Court observed that neither members of petitioner-association nor members of respondent no. 6-association are possessed of certificates of registration for undertaking aforementioned sports activities. It was also observed that law would require a person to seek certificate of registration for each individual sports activity viz. water skiing and surf riding. Learned counsel appearing for the both sides in their fairness admitted the aforementioned legal position. Learned counsel did admit that none of the competing parties is possessed of requisite certificate of registration for undertaking sports activities viz. surf riding and water skiing.
In the face of legal situation as arose in this case and in view of the earlier judgments of the Court and provisions of Act of 1978 and Rules of 1979, both the parties cannot be permitted to undertake water sports activities viz. surf riding and water skiing in breach of mandate contained in Act of 1978 and Rules of 1979 as also in defiance of the aforementioned judgments of the Court. The appropriate orders will be passed so as to enable the parties to undertake the water sports activities viz. water skiing and surf riding in accordance with law.
The important issue for consideration of the Court has been raised in this case, inasmuch as, copies of the certificate of registration have been placed on the record of this petition by all the parties, but these certificates do not tally with each other. It is settled position of law that any forged document placed on record of the court supported by an affidavit tantamounts to interfering with the process of administration of justice. Any effort made by any party to secure benefit on the basis of forged documents is a matter of serious concern and requires to be dealt with in a manner which would ensure that no person shall pluck-up courage to pollute the stream of justice. This issue would require to be settled in an appropriate manner.
In order to arrive at just conclusion on this issue, it will be appropriate to direct learned Chief Judicial Magistrate, Srinagar to enquire into the matter. Learned counsel for the parties in fact appreciated course to be adopted by the Court. Learned counsel for parties exhibited positive inclination to settle all the controversies, and also agreed that if certificates of registration have been forged and fabricated the delinquent(s), must suffer consequence as provided by law which would, inter alia, include registration of criminal case, black listing of persons, and initiation of contempt proceedings.
The perusal of impugned order shows that respondent no. 2 has not given details about the record which he has considered and examined, and even has not been fully convinced about the issues raised inasmuch as he has stated in the impugned order that in all probabilities respondent no. 6s right to carry on water sports activities is recognized. Respondent no. 2 appears to have rushed through the whole matter and on the basis of the material available in this case it is held that he has not applied his mind to the issues involved. The judgments of the Court have not been thus complied with. The order is rendered illegal and arbitrary and cannot be sustained in law.
The impugned order is also rendered illegal for yet another important reason, viz. the respondent no. 2 has permitted members of respondent no. 6-association to undertake water sports activities of surf riding and water skiing, when admittedly they are not possessed of certificates of registration for undertaking said activities. The impugned order is not only illegal but is non-est as it is issued in cruel disregard to Court judgments which provide that unlicensed operators cannot operate, and offends the legislative mandate contained in the Act of 1978 and rule 24 of Rules of 1979.
Rule is made absolute.
For the above stated reasons this petition is disposed of in the following manner:
1. By issuance of writ of Certiorari, impugned order no. 24. of DDT (Reg) dated 05.02.2011 passed by respondent no. 2 is quashed.
2. Learned Chief Judicial Magistrate, Srinagar is directed to conduct enquiry into the matter in light of observation made in this judgment/order. Learned CJM to issue notice to the parties of this writ petition and give them opportunity of hearing and also give them opportunity to produce material/evidence whatever they may choose to produce before him. In order to facilitate enquiry, Registrar Judicial is directed to provide the copies of the pleadings and documents of this petition to learned CJM within weeks time. Learned CJM in order to arrive at just and lawful conclusion in accordance with the principles of fairness, will conduct the enquiry in most reasonable manner. In the event if learned CJM after conducting enquiry as provided herein above comes to a conclusion that no forgery, tampering or fabrication of the documents has been done by anybody, then he shall record findings, accordingly. In the event, however, it is found by the learned CJM that documents viz. certificates of registration have been allegedly forged, tampered with and fabricated then he will pass orders in accordance with law for registration of criminal case against involved persons which may include even the official of the tourism department.
3. In order to enable the members of the petitioner-association & respondent no. 6-association to undertake the sports activities of water skiing and surf riding the competent authority respondent no. 3-Deputy Director, Registration is directed to issue appropriate application forms in favour of the members of the petitioner-association and respondent no. 6-association and in the event the forms are submitted complete in all respects he will consider the same and pass appropriate orders in accordance with the J&K Registration of Tourist Trade Act, 1978 and the J&K Registration of Tourist Trade Rules, 1979 for issuance of certificates of registration in favour of those persons who would satisfy statutory requirements. This process be initiated and concluded within a period of fifteen days from the date copy of this order is served on the said authority.
4. Respondent no. 2 will reconsider the whole issue in the light of judgment of Division Bench passed in LPA no. 193 of 2009 dated 08.10.2009 and judgment passed in OWP no. 450/06 dated 25.02.2008 after certificates of registration are issued by respondent no. 3.
5. The issuance of certificate of registration in accordance with the law in favour of the parties would remain subject to outcome of the enquiry to be conducted by leaned CJM and in the event it is found that anyone has forged and fabricated earlier certificates of registration then competent authority will proceed against such person and pass appropriate order in accordance with law.
6. In case enquiry prima facie shows that records have been fabricated, forged and tampered with, then learned CJM will submit report to the Registrar Judicial of this Court who will list the same along with record of this petition before the Court for taking appropriate action in accordance with law which may include initiation of contempt proceedings against delinquent(s).
7. Official respondents are directed to provide original record and all other material which would be required by the learned CJM for conducting enquiry.
(Muzaffar Hussain Attar) Judge 20-07-2011 Srinagar