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2009 DIGILAW 694 (JK)

Imtiyaz Ahmad Mir v. State Of J&K

2009-12-30

MUZAFFAR HUSSAIN ATTAR, Virender Singh

body2009
1. The Certificate of Registration of travel agent was issued in favour of the appellant by the Prescribed Authority in terms of-Jammu and Kashmir Registration of Tourist Trade Act, 1978 (for Short Act of 1978) to carry the business of travel agent in the Jammu and Kashmir State. The said certificate was issued on July 16, 2006 and name of the agency, as recorded in the said certificate, was M/S New Mazda Tour and Travels. The registration certificate was valid upto March 31, 2007. The appellant entered into partnership with one Shri Nazir Ahmad Mir for running a travel agency under the name and style of M/S Mazda Tours and Travels situated at Boulevard, Srinagar. The said Nazir Ahmad Mir was admitted as partner of the said business with effect from June 1, 2007 on the terms and conditions mentioned in the said partnership deed, which was registered by the Sub Registrar concerned on July 14, 2007. The partnership firm was registered under the name and style of M/S Mazda Tours and Travels, Boulevard, Srinagar by Registrar of Firms vide certificate No 8848 of 2007 issued on November 12, 2007. The appellant applied to the Prescribed Authority under the Act of 1978 and requested for change of particulars in the Certificate of Registration of travel agent issued on July 16, 2006. 2. When no action was taken, a notice was sent to the Deputy Director, Tourism (Registration) by the appellant through his Advocate wherein requested was made to the said Authority to make necessary changes in accordance with mandate of Section 39 of the Act of 1978 in the Register maintained by the said Authority. The notice was issued on December 31, 2007. The Prescribed Authority, vide its communication no. Reg/ 1542/DT dated February 7, 2008, responded to the notice of the learned Advocate of the appellant and informed that the unit, namely, Mazda Tours and Travels is already registered in the department in the name of private respondent, as such, registration certificate cannot be issued under same name and style. 3. The appellant instituted civil original suit, which was transferred to the court of Chief judicial Magistrate, Sub Judge, Srinagar. 3. The appellant instituted civil original suit, which was transferred to the court of Chief judicial Magistrate, Sub Judge, Srinagar. The appellant prayed for issuance of a decree of Mandatory Injunction against the defendants directing defendant No. 2 to effect change in the appellant’s firm from New Mazda Tours and Travels to Mazda Tours and Travels in terms of Section 39 of the Act of 1978. The civil sub-ordinate court passed an interim order on March 26, 2008 in which the respondents were directed to consider the case of the appellant for change in the name of the business after taking into consideration the material relied upon by him. The suit was instituted on March 12, 2008. The Prescribed Authority, vide communication no. Reg/1783-85/DT dated May 12, 2008 informed the appellant that change in business name cannot be allowed for the reasons recorded in the said communication and, accordingly, the request of the appellant was turned down. 4. The appellant, thereafter, filed writ petition, OWP No. 665/2008, on August 21, 2008 praying therein for issuance of writ of Mandamus to direct the respondents, more particularly, Deputy Director Tourism (Registration), to effect the change in the trade name of appellant’s business from M/S New Mazda Tours and Travels to M/S Mazda Tours and Travels in Certificate of Registration and also in the relevant registers in accordance with the mandate of Section 39 of the Act of 1978. A further prayer was made that, by issuance of appropriate writ, order or direction, respondents be directed to formulate policy in regard to seeking participation of the persons who are engaged in the tourist trade in the State of Jammu and Kashmir, in tourist trade fairs, which are held in different parts of the Country. 5. On notice, respondents filed objections. On the application filed by private respondent, the Writ Court ordered for his impleadment as party respondent in the writ petition. The private respondent also filed objections/reply affidavit seeking dismissal of the writ petition on the grounds stated in the objections. 6. Alongwith objections, the official respondents placed on writ record order dated January 21, 2009 issued by Director, Tourism Kashmir, wherein and under the claim of the appellant for seeking participation in travel and tourism fairs was considered and rejected. 7. 6. Alongwith objections, the official respondents placed on writ record order dated January 21, 2009 issued by Director, Tourism Kashmir, wherein and under the claim of the appellant for seeking participation in travel and tourism fairs was considered and rejected. 7. The learned Writ Court, after hearing learned counsel for the parties, dismissed the writ petition vide judgment dated November 10, 2009 on the ground that efficacious, alternate statutory remedy of appeal under Section 26 of the Act of 1978 being available to the appellant, the writ petition is not maintainable. It was further held that respondents having formulated a just and proper procedure to nominate various bodies/associations concerned with tourist trade for participation in different trade fairs, no interference is warranted. 8. The appellants, being aggrieved of the judgment, has called in question the same in this letters patent appeal. 9. We have heard learned counsel for the appellant at length as also Mr. Manzoor Ahmad Dar, learned counsel for Caveator, and Mr. M.A. Thakur appearing on behalf of the respondents. 10. The whole thrust of the argument of learned counsel for the appellant is on Section 39 of the Act of 1978. Section 39 is reproduced as under: "Notification of changes. (1) Whenever a business for which certificate of registration is held by a person devolves by inheritance or otherwise upon any other person or undergoes a change in respect of any particulars entered in the register under this Act, such person shall, within sixty days of the date of such devolution or change, notify in writing the fact to the prescribed authority. (2) The prescribed authority shall make necessary changes in the register nominated for the purpose and in the certificate of registration. (3) Notwithstanding anything contained in sub-section(2) the prescribed authority may remove from the register the name of the person in whose favour the certificate was issued and cancel the certificate of registration if the successor is not qualified to be registered under this Act." 11. The learned counsel placed whole hog reliance on sub-section (2) of Section 39 of the Act of 1978 and submitted that, in order to effect the change in the particulars which are entered in the Certificate of Registration, it is mandatory on the Prescribed Authority to make these changes in the register maintained for the purpose and in the Certificate of Registration. The learned counsel further submitted that as and when the change in the particulars is notified by a certificate holder, the Prescribed Authority has no option but to make such changes in the register maintained for the purpose and in the Certificate of Registration. He further submitted that the word `shall’ used in sub-section (2) of Section 39 of the Act of 1978 casts an obligation on the Prescribed Authority to make such changes. Learned counsel further submitted that no appeal can be filed against the order of Prescribed Authority, as provided under Section 26 of the Act of 1978, in the facts of this case. Learned counsel further submitted that as the Prescribed Authority, in terms of sub-section (2) of Section 39 of the Act of 1978, was duty bound to carry out the necessary changes in the register maintained for the purpose and in the Certificate of Registration, it, having failed to perform its statutory obligation, the appellant had no option but to approach this Court by invoking its extraordinary writ jurisdiction. 12. Mr. M.A. Dar, learned counsel appearing for the Caveator submitted that the Prescribed Authority cannot register two agencies under one and the same "name and style" as that would be violative of the well established business practice and norms which are recognized by law. Learned counsel further submitted that the Prescribed Authority has, no valid legal grounds, rejected the request of the appellant. He further submitted that the civil suit filed by the appellant seeking like reliefs is still pending before the civil subordinate court and the writ petition filed by the appellant was not, thus, maintainable. 13. The writ petition filed by the appellant was not maintainable and would merit dismissal for the following reasons: (a) The appellant has filed civil original suit seeking same relief, which is principal relief sought in the writ petition. The civil suit is pending; parallel proceedings cannot be permitted to continue in law. The civil suit having been filed, the writ petition seeking like reliefs is not maintainable, as allowing parallel proceedings to continue would be against the public policy and is not countenanced in law. (b) Application was filed by the appellant before the Prescribed Authority seeking to make change in the particulars recorded by the Prescribed Authority in the Certificate-of Registration. The prayer was rejected by the Prescribed Authority. (b) Application was filed by the appellant before the Prescribed Authority seeking to make change in the particulars recorded by the Prescribed Authority in the Certificate-of Registration. The prayer was rejected by the Prescribed Authority. The appellant instituted civil original suit but did not challenge the said rejection order of the Prescribed Authority. An interim direction was issued by the civil subordinate court directing the respondents to consider the claim of the petitioner for effecting change in the particulars recorded in the Certificate of Registration. The Prescribed Authority, after considering the matter again, rejected the claim of the appellant. After rejection of the claim of the appellant, the writ petition was filed. In the writ petition, none of the orders of the Prescribed Authority rejecting the claim of the appellant have been challenged. In absence of the challenge to the said orders, no direction could be issued by the writ court. The appellant was duty bound to challenge the said order if he was aggrieved of the same, and the Writ Court, if would have been satisfied in accordance with the provisions of law that any illegality has been committed, necessary directions could be issued. The appellant, being satisfied with the rejection orders, was precluded from seeking direction to the respondents to effect change in the particulars mentioned in the Certificate of Registration. The writ petition was not maintainable on the day first for the aforesaid reason. (c) During the pendency of the writ petition, an interim order was passed in the writ petition. The Director, Tourism considered the claim of the petitioner for allowing him to participate in the tourism trade fair in view of the interim orders passed by the Court and rejected the claim of the petitioner. The said order was not also challenged by way of either amending writ petition or by filling a fresh writ petition. (d) Part IV of the Act of 1978 relates to travel agent. Section 18 relates to registration and provides that no person shall carry on the business of travel agent in a tourist area unless he is registered in accordance with the provisions of the Act. A person interested in working as travel agent is required to file application for registration to the Prescribed Authority in the prescribed manner. Section 18 relates to registration and provides that no person shall carry on the business of travel agent in a tourist area unless he is registered in accordance with the provisions of the Act. A person interested in working as travel agent is required to file application for registration to the Prescribed Authority in the prescribed manner. Section 19 of the Act of 1978 relates to Certificate of Registration and provides that Prescribed Authority shall, unless registration is refused under Section 20, direct that the name and particulars of the travel agent etc. be entered in the register maintained for the purpose and issue a Certificate of Registration to the travel agent etc. Section 20 of the Act of 1978 provides contingencies in which the Prescribed Authority can refuse to register a person as a travel agent. Form III appended to Registration of Tourist Trade Rules, 1979 (for short Rules of 1979), is the statutory application form for seeking registration as travel agent. The particulars required for the purpose for seeking registration as travel agent, inter alia, includes the name of the firm and its registered address. The Prescribed Authority has issued Certificate of Registration of travel agent in favour of the appellant and name of the agency, as reflected in the said certificate, is "M/s New Mazda Tours and Travels". The appellant had entered into partnership business with one Nazir Ahmad Mir and the said partnership business is constituted in respect of travel agency which is being run under the name and style of "M/s Mazda Tours and Travels". The appellant, in terms of the partnership deed has, thus, become partner of M/s Mazda Tours and Travels which is also registered by the Registrar of Firms. A new business concern is created by the appellant alongwith Shri Nazir Ahmad Mir and the travel agency created is given name and style as "M/s Mazda Tours and Travels". In terms of the provisions of the Act of 1978, as contained in Part IV read with Form III appended to Rules of 1979, the partners of the firm, if they wanted to conduct the business of travel agent, were required to file the application in terms of the above referred provision and the Prescribed Authority could either issue Certificate of Registration or refuse the same. The application filed by the appellant, seeking change in particulars in the Certificate of Registration issued to him, is not permissible and authorized on the strength of Section 39 of the Act of 1978. Section 39 of the Act of 1978 falls in Part VII under the heading `miscellaneous’ and refers to `notification of changes’ which provides that whenever a business for which certificate of registration is held by a person devolves by inheritance or otherwise upon any other person or undergoes a change in respect of any particulars entered in the register under this Act, such person shall, within sixty days of the date of such devolution or change, notify in writing the fact to the prescribed authority. Sub-section (2) of Section 39 provides that Prescribed Authority shall make necessary changes in the register maintained for the purpose and in the certificate of registration. Sub-section (3) of Section 39 provides that notwithstanding anything contained in subsection (2) the prescribed authority may remove from the register the name of the person in whose favour the certificate was issued and cancel the certificate of registration if the successor is not qualified to be registered under this Act. In the facts and circumstances of this case, Section 39 of the Act of 1978 could not be invoked by the appellant as none of the circumstances described therein were attracted in the case, inasmuch as no change was required to be effected on account of inheritance or otherwise. As already stated, a new business concern was constituted and the business was to be carried under the name and style of M/s Mazda Tours and Travels and, accordingly, no change had taken place in the existing business of the appellant which would warrant invocation of Section 39 of the Act of 1978. The writ petition on this count also was not maintainable. Admittedly, the application has not been filed by the partners of the business nor the writ petition or the civil suit has been filed by the partners of the business concern. The application was not filed in accordance with the mandate of the provisions of the Act of 1978. The writ petition on this count also was not maintainable. Admittedly, the application has not been filed by the partners of the business nor the writ petition or the civil suit has been filed by the partners of the business concern. The application was not filed in accordance with the mandate of the provisions of the Act of 1978. (e) Learned counsel for the appellant placed whole hog reliance on sub-section (2) of Section 39 of the Act of 1978 to canvass that, in view of the expression `shall’ used in subsection (2) of Section 39 of the Act of 1978, the Prescribed Authority was not left with any discretion to refuse to effect the change in the register maintained and in the Certificate of Registration. The argument of learned counsel for the appellant falls flat for the reason that if the interpretation sought to be placed on word `shall’, as appearing in sub-section (2) of Section 39, is accepted to be mandatory, sub-section (3) of Section 39 would become otiose and redundant. Sub-section (3) confer powers on the Prescribed Authority to remove from the register the name of the person in whose favour the certificate was issued and cancel the certificate of registration if the successor is not qualified to be registered under this Act. If the interpretation placed by the learned counsel for the appellant on subsection (2) would be accepted, then the Prescribed Authority would be deprived of the power as conferred on him by sub-section (3) of Section 39. The purpose and intendment of the Legislature is clear that the expression `shall’, as appearing in subsection (2), is directory and not mandatory in nature. The contention raised by learned counsel for the appellant, being bereft of any reason, requires to be rejected. (f) Learned counsel for the appellant argued that neither any scheme nor any procedure is formulated by the respondents in respect of allowing participation in the tourist trade fairs. The procedure, which is being followed, has been delineated in the objection and in the consideration order of the Direction, Tourism, which procedure appears to be fair and reasonable. Otherwise also, the consideration order passed by the Director, Tourism during the pendency of the writ petition having not been challenged, appellant could not register any grievance about the same. 14. This appeal, being meritless, is accordingly dismissed.