Allowed

Gurdev Singh v. State of Hp

Himachal Pradesh HC18 Sept 2017CWP/4434/2015

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh considered petitions challenging the cancellation of a Home Stay registration. The Court held that running a Home Stay is not a commercial activity and does not violate the Himachal Pradesh Tenancy Act. Consequently, it quashed an executive order restricting such usage.

What did the court decide?

Quashed the show cause notice dated 29.07.2015 and the order cancelling the registration certificate dated 04.09.2015.

Gurdev Singh Vs State of Hp — Property and Title | Himachal Pradesh HC (2017)

¶1

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

¶2

CWP Nos. 4217, 4218, 4224, 4225 and 4434 of 2015 Reserved On:22.06.2017

¶3

Date of Decision: September 18 , 2017

¶4

CWP No.4217 of 2015

¶5

Brig Harmesh Sethi (Retd) …Petitioner. Versus State of Himachal Pradesh & others …Respondents. 2. CWP No.4218 of 2015 Jasbir Singh Bakshi …Petitioner. Versus State of Himachal Pradesh & others …Respondents. 3. CWP No. 4224 of 2015 Mrs. Preeti Gill …Petitioner. Versus State of Himachal Pradesh & others …Respondents. 4. CWP No. 4225 of 2015 Manjeet Singh Chhatwal …Petitioner. Versus State of Himachal Pradesh & others …Respondents. 5. CWP No.4434 of 2015 Gurdev Singh …Petitioner. Versus State of Himachal Pradesh & others …Respondents. Coram:

¶6

The Hon’ble Mr. Justice Sanjay Karol, Acting Chief Justice. The Hon’ble Mr. Justice Sandeep Sharma, Judge.

¶7

¶8

Whether approved for reporting?¹ Yes. For the Petitioner: Mr. R.L.Sood, Sr.Advocate with Mr.Arjun Lal, Advocate, for the petitioner(s). For the Respondents: Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan, Additional Advocate General, for the State, in all the petitions. Mr.Ashok Sharma, Assistant Solicitor General of India with Mr.Ajay Chauhan, Advocate, for the respondent-Union of India, in all the petitions.

¶9

Sanjay Karol, Acting Chief Justice.

¶10

In all these petitions following questions arise for consideration: (a) as to whether the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (hereinafter referred to as the Act) prohibits use of property purchased pursuant to permission accorded under Section 118, for the purpose of “Home Stay”; (b) whether in the absence of any condition imposed by the Government in the permission so accorded under the Act is it not permissible for the owner of a residential house to use the property as a “Home Stay”; (c) as to whether by way of an executive order can the State impose any prohibition in the lawful use and enjoyment of a property by an individual. Is such action not violative of human

¶11

1 Whether reporters of the local papers may be allowed to see the judgment?

¶12

¶13

and constitutional right; and (d) as to whether providing of accommodation to a tourist as a “Home Stay”, can be said to be an activity commercial in nature, in every aspect of the word.

¶14

Since, common question of law and fact are involved in the present petitions, they are being heard and disposed of by a common judgment. However, as agreed, for the sake of convenience, facts of only CWP No.4217 of 2015, are being noticed.

¶15

After having served the nation as Brigadier in the Indian Army, petitioner decided to settle down in the pristine atmosphere of lower Himalayas.

¶16

In order to promote tourism, more so in the rural areas, Government of India, introduced a Scheme by the name of “Incredible India Bed and Breakfast / Homestay Establishments”, encouraging owners of houses to allow tourist to reside with them. Apparently the idea was for inclusive understanding of the lifestyle, culture and Indian Heritage.

¶17

Pursuant thereto, on 15.07.2008, Government of Himachal Pradesh notified a Scheme known as ‘Himachal Pradesh Home Stay Scheme-2008’ (hereinafter

¶18

¶19

referred to as the Scheme). Clearly the object being to provide comfortable Home Stay with facilities and services to the tourists, both domestic and foreign, as also to supplement availability of accommodation in rural destinations. In the Scheme, the term “Home Stay” is defined as under:-

¶20

“Any private house located in rural areas of the State in good condition and easily accessible in the country-side i.e. within the Farm House, Orchards, Tea-Gardens etc. will primarily qualify under the Scheme. The house shall fulfill the minimum requirement of having one of more room’s to cover under the scheme with attached toilet facility which will be made available to the tourists as Home Stay accommodation. The promoters are at liberty to submit fresh proposals for approval for setting up Home Stay in the country-side under the “Himachal Pradesh Home Stay Scheme, 2008”.

¶21

(Emphasis supplied)

¶22

In order to popularize and promote such

¶23

object, the Scheme also provided for certain incentives and exemptions in the nature of taxes and fees, as specified in Clause-7.

¶24

The petitioner as owner of residential accommodation at Kasauli, decided to promote the cause of the Government and as such registered his

¶25

¶26

accommodation as a Home Stay, so defined under Clause-4 of the Scheme, in the name of ‘Guns and Roses Home Stay’. This was so done on 07.04.2011.

¶27

All was well till the time petitioner received a notice dated 29.07.2015 (Annexure PF, Page-53) from the Department of Tourism & Civil Aviation, Government of Himachal Pradesh, asking him to immediately stop the “commercial activity” for the reason that it was violative of Clause(dd) or clause (h) of sub-section (1) of Section 118 of the Act. Vide various communications (Annexure PG), while refuting such allegation, petitioner explained as to how the activity carried out by him was totally legal and within the four corners of law.

¶28

Not finding favour with the same, District Tourism Development Officer (H.P.), passed an order dated 04.09.2015 (Annexure PJ, Page-60), cancelling the registration certificate so issued in favour of the petitioner.

¶29

This is the backdrop, which led the petitioner assailing the show cause notice dated 29.07.2015 (Annexure PF, Page-53) and order of cancelling registration certificate dated 04.09.2015 (Annexure PJ,

¶30

¶31

Page-60). By way of interim protection, implementation of the orders were stayed by this Court.

¶32

From the response filed by the Commissioner,

¶33

Tourism, as on 12.04.2017, number of Home Stays registered within the State of Himachal Pradesh, are as

¶34

under:-

¶35

Sr.No.	District	No.of Home Stay Registered
1.	Kangra	111
2.	Una	06
3.	Hamirpur	02
4.	Mandi	63
5.	Bilaspur	07
6.	Chamba	46
7.	Solan	61
8.	Sirmour	21
9.	Shimla	200
10.	Kullu	233
11.	Lahaul and Spiti	50
12.	Kinnaur	07

¶36

In the response, so filed by respondents No.1

¶37

to 5, issuance of Scheme and it being still in operation is

¶38

not disputed. In fact, State admits that any proprietor/owner of a private house located in the rural

¶39

¶40

area of the State can apply in a prescribed proforma to the District Tourism, H.P., under whose jurisdiction the area falls for approval/registration of the Home Stay unit under the Scheme. The only reason for taking action against the petitioner is the clarification dated 15.11.2014, so issued by the State Government inter alia to the effect that “the land purchased by a nonagriculturist under clause(dd) of clause(h) of sub section(1) of section 118 of the Act ibid shall not be utilized for any other purpose without the permission of the State Government. The provision of Section 118 of the said Act has overriding effect on anything to the contrary contained in any law, contract, agreement, custom or usage for the time being in force, as such, the Tourism Department cannot register the unit without the permission of competent authority”.

¶41

Now, there is nothing on record to establish that petitioner violated anyone of the terms of the Scheme, be that the one floated by the Central Government or the State Government. Presumably, petitioner is a law abiding person. Significantly, no action under the Act stands initiated by the State, for violation

¶42

¶43

of anyone of the provisions of the Act or conditions of sanction accorded in purchasing the property. Department of Tourism did not amend the Scheme prohibiting its applicability to the properties purchased by the owners, pursuant to permissions accorded under the Act. Till and so long, the Scheme is in vogue, allowing such use, it was not open for the Additional Director, Tourism & Civil Aviation to have withdrawn the certificate of registration.

¶44

Now what needs to be considered is as to whether providing facility of Home Stay is really a commercial activity. We have minutely examined the Scheme. The Scheme itself clarifies that it is applicable to a “private house”. It applies only to residential and not commercial properties. The whole object and purpose of the Scheme is: (a) to Broaden the Stake holder’s base for tourism in the State; (b) Take tourism to rural and interior areas of the State; (c) Decongest Urban areas, which cannot support any further tourism load; (d) Provide employment and economic avenues in the interior areas; and (e) The activity to be ecologically sustainable.

¶45

¶46

It was introduced to supplement availability of accommodation in the rural tourist destinations in the backdrop of the policy framed by the Ministry of Tourism, Government of India under the “Incredible India Bed & Breakfast Scheme”. The basic idea is to provide a clean and affordable place for foreigners and domestic tourists, enabling them to experience Himachali customs and traditions and relish authentic Indian/Himachali cuisine. Tourists are required to live in a “homely environment”. The purpose also being to easily make accessible areas of country-side, within the “Farm House; Orchards; TeaGardens etc.” All that is required is minimum accommodation of 1 to 3 rooms with a toilet facility which has to be in the house. The owners of Home Stay are also not required to pay taxes and fee. They are totally exempted from the same. All that is expected of the owners is to “maintain minimum standards of the cleanliness, sanitation and quality of food”. Of course, the Scheme provides for monitoring of these Home Stays by the Department. Well, that is about all.

¶47

Thus, the object and purpose, as also activity carried out by the owner, by no stretch of imagination,

¶48

¶49

can be said to be commercial in nature. A guest comes and stays in the house as a member of the family, intermingles, enjoys his stay, relishes the food, and leaves for next destination. The whole object and purpose being to make the society and culture inclusive and not commercialize it in any manner. There is no commercial activity at all. In this process, all stand to gain. The Government has no accommodation in rural, remote and far flung areas. It wants to open up its destinations to tourists, who are welcome as guests with the moto “Atithi Devo Bhava”. In this process, there is exchange of ideas and views with the local populace, also giving them avenues and opportunities of interacting, moving out and exploring the world, thus broadening their horizon in every aspect of the matter.

¶50

In the instant case, property is situate in Kasauli, where also the Scheme is applicable. It is not the Government’s decision to exclude township of Kasauli from the Scheme, but then definitely if a person residing in his own private house at Kasauli, chooses to make available part of his residential accommodation, up to three rooms for stay of a guest as a tourist, then there is

¶51

¶52

nothing illegal or commercial about it. After all, he also needs company and opportunity to interact and exchange views with others, enhancing the quality of life making him happy. He lives an enjoyable life.

¶53

Let us examine the matter from another angle. Does the Act really prohibit such an activity? From the show cause notice, it is not clear as to whether violation is that of Clause (dd) or clause (h) of sub-section (1) of Section 118 of the Act. In any event, for the purposes of proper appreciation, relevant clauses thereof are reproduced as under:-

¶54

“(dd) a person who, on commencement of this Act, worked and continues to work for gain in a estate situated in Himachal Pradesh; for the construction of a dwelling house, shop or commercial establishment in a municipal area, subject to the condition that the land to be transferred does not exceed—

¶55

(i) In case of a dwelling house—500 square meters; and ‘

¶56

(ii) In the case of a shop or commercial establishment—300 square meters:

¶57

Provided that such person does not own any vacant land or a dwelling house in a municipal area in the State.

¶58

(h) a non-agriculturist with the permission of the State Government for the purposes that may be prescribed:

¶59

¶60

Provided that a person who is non-agriculturist but purchase land either under clause (dd) or clause (g) or with the permission granted under clause (h)

¶61

of this sub-section shall, irrespective of such purchase of land, continue to be a non-agriculturist for the purpose of the Act:

¶62

Provided further that a non-agriculturist who purchases land under clause (dd) or in whose case permission to purchase land is granted under clause (h) of this sub-section, shall put the land to such use for which the permission has been granted within a period of two years or a further such period not exceeding one year, as may be allowed by the State Government for the reasons to be recorded in writing to be counted from the day on which the sale deed of land is registered and if he fails to do so or diverts, without the permission of the State Government, the said user for any purpose or transfer by way sale, gift or otherwise, the land so purchased by him shall, in the prescribed manner, vest in the State Government free from all encumbrances.”

¶63

Now bare reading of the Section does not indicate there being any prohibition in the use of property for the purpose of home stay. It is a residential property put to use as such and registered as a home stay under the Scheme, where such properties are opened up for use of guests with the avowed purpose of making the society inclusive and promote international brotherhood.

¶64

¶65

Significantly there is no statutory embargo for using the property as ‘Home Stay’. By way of an executive fiat such condition cannot be imposed, more so, without any reasonable justification. Order, executive in nature, is ultra vires the Act, apart from being unreasonable and illegal.

¶66

Right to property has now been held to be not only a constitutional or statutory right, but also a human right.[Tukaram Kana Joshi and others vs. Maharashtra Industrial Development Corporation and others, (2013) 1 SCC 353; Chairman, Indore Vikas Paradhikaran vs. Pure Industrial Coke & Chemicals Ltd. and others, (2007) 8 SCC 705; & Lachhman Dass vs. Jagat Ram and others, (2007) 10 SCC 448]

¶67

A Constitution Bench (Five Judges) of the Apex Court in K.T. Planatation Private Limited and another vs. State of Karnataka, (2011) 9 SCC 1, has held that no person can be deprived of his right to enjoy the property, save by an authority of law.

¶68

In Jilubhai Nanbhai Kachar and others vs. State of Gujarat and another, 1995 Supp (1) SCC 596, the Apex Court has also held that “deprivation of the property can

¶69

¶70

be only by authority of law, be it an act of Parliament or State legislation, hut not by an executive fiat or an order”.

¶71

Thus when neither the Act, nor the Scheme prohibited use of the house as a “Home Stay’, by way of a clarification-an executive order-State could not have imposed such an embargo.

¶72

Mr. Anup Rattan, invites our attention to the decision rendered by the Apex Court in Union Territory of Lashdweep and others vs. Sea Shells Beach Resort and others, (2012) 6 SCC 136. The decision, in our considered view, is distinguishable and inapplicable to the given facts. There the Hon’ble Supreme Court was dealing with the establishment of a Home Stay, which was being run in violation of Coastal Regulation Zone Act, 1991 (in short CRZ) and in a totally prohibited area, which is not the position here.

¶73

Hence, for all the aforesaid reasons, we allow the present petition and quash the impugned notice dated 29.07.2015 (Annexure PF), passed by respondent No.4 and the impugned order dated 04.09.2015 (Annexure PJ).

¶74

¶75

With the aforesaid observations, present

¶76

petition stands disposed of, so also pending

¶77

applications(s), if any.

¶78

(Sanjay Karol), Acting Chief Justice.

¶79

September 18 , 2017 (Purohit)

¶80