Allowed

Ajit Singh v. Stat of Hp and Others

Himachal Pradesh HC4 Apr 2024CWP/982/2023

Case brief

AI extract

What is this about?

In a writ petition under Article 226, the High Court of Himachal Pradesh quashed an order calling upon a hotel owner to obtain a No Objection Certificate from ferry leaseholders before granting a private ferry permit. The Court held that no such rule exists and private non-hire boats are exempt from distance restrictions.

What did the court decide?

Communication dated 09.01.2023 calling for NOC was quashed. Direction issued to authority to consider the prayer for private ferry without insisting on NOC from leaseholders.

Ajit Singh Vs Stat of Hp and Others — Service and Employment | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP No.982 of 2023

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Date of Decision: 4.04.2024

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____________ ___________________________________________ Ajit Singh …….Petitioner Versus State of H.P. and others … Respondents

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Coram:

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Hon’ble Mr. Justice Sandeep Sharma, Judge.

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Whether approved for reporting?¹ Yes.

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For the Petitioner: Mr. Onkar Jairath, Advocate.

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For the Respondents :Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.Verma, Additional Advocate Generals with Mr. Ravi Chauhan, Deputy Advocate General.

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Sandeep Sharma, Judge (oral):

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Being aggrieved and dissatisfied with issuance of communication dated 9.01.2023 (Annexure P-7), issued under the signatures of Assistant Commissioner to Deputy Commissioner, Chamba, District Chamba, Himachal Pradesh, whereby an application dated 26.12.2022, submitted by the petitioner herein, seeking therein direction to the respondents to permit him to ply private ferry in Chamera lake to bring guests to the hotel, situate on the bank of aforesaid lake i.e. village Dugh, came to be rejected for want of ‘NOC’ of the existing leaseholders, petitioner has approached this Court in

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

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the instant proceedings filed under Article 226 of the Constitution of India, praying therein for following main

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reliefs:-

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“a) That the writ of certiorari or any other appropriate writ order or directions may kindly be issued quashing the impugned communication dated 09.01.2023, whereby the petitioner has been called upon to seek NOC from some private persons/third parties against the requirement of the statute.

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b) That a writ in the nature of mandamus or any other appropriate writ order or directions may kindly be issued, directing the respondents to grant permission to the petitioner for grant of to and fro private boat/ferry permit on the route of village Dugh to Taleru for meeting out to the persons requirements of the hotel.”

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Precisely, the facts of the case, as emerge from the

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record are that the petitioner herein, after having obtained all

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necessary approvals/permissions from the Special Area Development Authority, Chamera, District Chamba, Himachal Pradesh, developed and constructed Hotel known as “Panchtatva Hotel” on the land comprised in Khasra Nos. 801/438 and 802/438, situate at Village Dugh, P.O. Dradha, Tehsil and District Chamba, H.P. On 8.6.2022, aforesaid hotel

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came to be registered under the Himachal Pradesh Tourism Development and Registration Act, 2002 and since then, it is being run on the location, as detailed hereinabove, without there being any complaint.

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Since hotel, named hereinabove, is situate on the bank of Chamera lake and there is no proper road available for commuting customers and transport other essential items, petitioner herein, vide application dated 9.11.2022 (Annexure P-5) , requested Deputy Commissioner, Chamba to grant him permission for operating private boat in Chamera lake in terms of the provisions contained under Sections 13 and 19 of Himachal Pradesh Ferries Act, 1956. However, the fact remains that the aforesaid request made by the petitioner was not considered for a long time and as such, petitioner was compelled to send reminders dated 22.11.2022 and 26.12.2022 ( Annexure P-6 colly). Vide communication dated 9.01.2023, (Annexure P-7,) Assistant Commissioner to Deputy Commissioner, Chamba, called upon the petitioner to obtain “NOC” from the existing leaseholders. Vide communication dated 11.01.2023, petitioner, while replying to aforesaid communication dated 9.01.2023, apprised the authority concerned that no “NOC” is required for granting him

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permission to ply his ferry for private purpose. Besides above, petitioner also apprised authority concerned that private ferry is required for transportation of customers of hotel and essential items like vegetables, LPG, grocery items and most importantly medical emergency of guests, if any. However, the facts remains that neither request made by the petitioner for grant of licence/ permission to ply private ferry was accepted nor it ever came to be replied on behalf of the Deputy Commissioner, Chamba that under what provision of law, petitioner was called upon to obtain “NOC” from the other leaseholders and as such, petitioner approached this court in the instant proceedings, praying therein for the reliefs, as have been reproduced hereinabove.

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Pursuant to the notices issued in the instant proceedings, respondents have filed reply under the affidavit of Deputy Commissioner, Chamba, wherein facts, as have been noticed hereinabove, have not been disputed, rather stand admitted. An Attempt has been made to refute the claim put forth by the petitioner on the ground that alternate road to reach the hotel of the petitioner is already available and as such, there is no requirement of private ferry. It has been further stated in the reply that though under the Rules, there

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is no provision to furnish “NOC”, if any, from the existing leaseholders, but such condition has been imposed to ensure that no dispute subsequently arises interse leaseholders, who have been already granted licence/ permits to ply their ferries for commercial purposes. Apart from above, it has been further stated by the respondents, in their reply, that permission for operating boat for carrying tourists to the hotel cannot be clearly classified as “private boat”, which does not ply for hire. 5. On one hand, respondents have claimed in the reply that there is no necessity for plying ferry on account of availability of road, but on the other hand, it has been further averred that there is shortest public ferry route i.e. Khi( Chakloo) to Seru available to hotel. It is further apparent from the reply filed by the respondents that already number of persons are plying their ferries in the Chamera River, may be on commercial basis. Since, it could not be elucidated from the reply that, under what provision of law, Deputy Commissioner, Chamba called upon the petitioner to obtain “NOC” from the existing leaseholders, this Court vide order dated 03.07.2023, specifically called upon the learned Additional Advocate General to place on record Rules, if any, framed with regard to plying of private boats/ferries under the

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Himachal Pradesh Ferries Act, 1956 and to explain how, in the absence of provision, if any, contained under the said Rules for obtaining “NOC” from existing leaseholders, petitioner could be compelled to obtain the same. 6. Pursuant to aforesaid directions passed by this Court, learned Additional Advocate General, during the proceedings of the case, made available communication dated 21-03-2024, issued under the signatures of Deputy Commissioner, Chamba, District Chamba, Himachal Pradesh, which has been taken on record, perusal whereof clearly reveals that no Rules, if any, with regard to plying private boats/ferries under Himachal Pradesh Ferries Act, 1956 have been framed till date. It has been further averred, in so many words, in the aforesaid instructions submitted by the Deputy Commissioner, Chamba that there is no provision, under which petitioner could be compelled to seek “NOC” from the existing lease holders, but such procedure was followed just to ensure safety of the passengers/obviate possibility of dispute with existing lease holders.

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Though, Mr. Rajan Kahol, learned Additional Advocate General, while referring to aforesaid instructions, has attempted to justify the action of the Deputy Commissioner,

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Chamba inasmuch as he called upon the petitioner to obtain “NOC” from the existing lease holders, but perusal of aforesaid communication, itself reveals that office of learned Advocate General in a legal opinion (Annexure R-6) rendered on 28.11.2023, specifically called upon the respondents to permit petitioner to ply ferry from Village Dugh to Taleru boating point, pursuant to order dated 25.08.2023, but with the condition that same should be used only to meet personal/ private requirements of the hotel. Office of learned Advocate General also advised Department concerned to frame Rules regarding use of private ferries as per section 19 of Chapter -III of the Himachal Pradesh Ferries Act, 1956. However, the fact remains that till date, no Rules have been framed and as such, action of Deputy Commissioner, Chamba, which has been challenged in the instant proceedings, thereby calling upon the petitioner to obtain “NOC” from existing lease holders is not sustainable and deserves to be rectified in accordance with law.

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At this stage, it would be apt to take note of Section

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13 of Himachal Pradesh Ferries Act, which reads as under:-

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“13. Private ferry not to ply within two miles of public ferry without sanction:-

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Except with the sanction of the Deputy Commissioner of the District or of such other officer as the State Government may, from time to time, appoint in this behalf, by name or in virtue of his office, no person shall establish, maintain or work a ferry to or from any point within a distance of two miles from the limits of a public ferry:

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Provided that in the case of any specified public ferry, the State Government may, by notification in the Official Gazette, reduce or increase the said distance of two miles to such extent as it thinks fit:

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Provided also that nothing hereinbefore contained shall prevent persons from plying between two places, one of which is without, and one within, the said limits, when the distance between such two places is not less than three miles, or apply to boats which do not ply for hire, or which the State Government expressly exempts from the operation of this section”

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Careful perusal of aforesaid provision clearly reveals that there is no restriction to ply private ferry, rather same can be plied, but not within two miles of public ferry already granted permission. Deputy Commissioner of District or such other Officer as authorized by the State Government may supervise the work of ferry from one point to other point, so that restriction of not plying ferry within the distance of two miles from the limits of public ferry is not violated. Second provision to Section 13 clearly lays down that nothing hereinbefore contained shall prevent persons from plying

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between two places, one of which is without, and one within, the said limits, when the distance between such two places is not less than three miles. Most importantly, proviso clearly states that restriction, as imposed under Section 13 would not apply to boats, which do not ply for hire or which the State Government expressly exempts from the operation of this Section.

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Admittedly, as per the reply filed by the respondents, petitioner proposes to ply private ferry within two miles of public ferry, but, as has been observed hereinabove, second proviso to Section 13 of the Act, clearly mandates that provision contained under aforesaid Section, which specifically deals with the distance, shall not apply to boats, which do not ply for hire.

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If the application made by the petitioner, is perused in its entirety, he has nowhere made request to grant him permission to ply ferry for hire, rather he has categorically stated that he requires licence/permission to run private ferry to commute his guests from one boating point to another and to bring essential commodities to the Hotel.

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Though, at this stage, Mr. Rajan Kahol, learned Additional Advocate General, attempted to argue that

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commutation of guests from one boating point to hotel would amount to plying ferry for hire, but such plea cannot be accepted for the reason that at present, there is no Rule, which specifically provides categories or activities, which can be held to have been done by permit holders on hire basis. It has been categorically stated on behalf of the petitioner that no amount shall be charged from the guests of the hotel for using ferry for the commuting them to hotel.

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While referring to the instructions as well as photographs available on record, Mr. Kahol, learned Additional Advocate General further attempted to argue that prayer made on behalf of the petitioner for plying ferry on account of nonavailability of road has been rightly not considered for the reason that jeepable road is existing, which connects the hotel to main road and as such, there is no requirement for the petitioner to ply ferry for commutation of guests of the hotel.

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Though, having perused the photographs available on record, this Court finds that one kaccha road leads to the hotel of the petitioner, but that may not be an impediment for the petitioner to apply for permission to ply ferry, especially when there is no provision under the Act, which disentitles the petitioner from applying for ferry, on account of availability of

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road. Otherwise also, there can be various modes to reach a destination. Where apart from road, there is a possibility to connect hotel or residents through ferry, prayer made on behalf of the petitioner or other similarly situate person for plying ferry, cannot be rejected on the ground that road is available.

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Consequently, in view of the detailed discussion made hereinabove, this Court finds merit in the present petition and accordingly, same is allowed. Communication dated 09.01.2023 (Annexure P-7), issued by the Assistant Commissioner to the Deputy Commissioner, Chamba, thereby calling upon the petitioner to furnish “NOC” from the existing lease holders, is quashed and set-aside and aforesaid authority is directed to consider the prayer made on behalf of the petitioner for plying private ferry, strictly in accordance with Rules, but without insisting for “NOC” from the existing leaseholders.

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Since petitioner has been fighting for his rightful claim for quite long, this Court hopes and trusts that the needful in terms of the directions contained in the instant judgment/order shall be done expeditiously, preferably within a period of four weeks from today. Till then, interim order

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dated 18.04.2023 shall remain in force. Pending applications,

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if any, also stands disposed of.

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(Sandeep Sharma), Judge April 04, 2024 (shankar)

Ajit Singh v. Stat of Hp and Others

Case brief

What is this about?

What did the court decide?

Ajit Singh v. Stat of Hp and Others

Case brief

What is this about?

What did the court decide?

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