Hotel Palace vs State of Jammu & Kashmir and Others

The instant appeal is a classical example of the age old principle known as damnum sine injuria. In other words, when a party set up a rival

business enterprise then the one already engaged in that business cannot make a complaint that his rights have been infringed by the rival business

enterprise as he would face stiff competition. The aforesaid phrase would mean that there is damage but without causing any actionable injury (See

Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Others, . The appeal has been preferred by Hotel Palace, Aabi-Karpora, Dal

Lake Srinagar, against the judgment dated 12.03.2010 rendered by learned Single Judge. There is a rival group of hotelier known as Hotel

International, Sonawar Bagh, Srinagar which is run by Shri Gh. Nabi Aali Kadli, who is the first cousin of Manzoor Ahmad Aali Kadli of Hotel

Palace. Shri Manzoor Ahmad Aali Kadli raised objection to the additions of rooms and Halls to Hotel International, bringing its capacity to 101

rooms, 11 Halls and one dining hall. He also complained that it would adversely affect his business. Thereafter, an order was passed by Deputy

Director Tourism (Registration), whereby registration has been accorded to the additional block of Hotel International. The aforesaid order was

challenged by the appellant-Hotel Palace before the Jammu and Kashmir Special Tribunal by filing revision petition u/s 27 of the J&K Registration

of Tourist Trade Act, 1978 ( for brevity the Act). The Tribunal, vide order dated 21.08.2006, set aside the registration of the new block of Hotel

International by holding as under:-

Now the question remains whether the registration could be granted to the additional block of international Hotel or not. The facts speak very

clearly that there was series of litigation in respect of the offending building. The permission had not been granted by the BOCA and even

demolition notice had been issued against it. The matter has even gone to the Hon'ble High Court where contempt petitions are still reported to be

under process.

In this backdrop prudence demanded that the registration, if granted, should not have been granted until the legality of the building is decided by

the Civil Court and also by this Special Tribunal. Granting registration in such a set of circumstances amounts to a grave error of law.

Accordingly, I have no option but to set aside the registration if granted to the new block of the international hotel. In case the same has not been

issued so far, then it shall be presumed to have been kept in abeyance till the Civil Court and Hon'ble High Court finally decide the cases pertaining

to the offending building and also till such time the appeal against the demolition notice pending before this Tribunal is formally decided. Any

correction made by the Tourism Department in the concerned register in this connection shall also stand automatically cancelled and declared

illegal, unwarranted and bad in law. Send down the record along with copy of this order. File of this Tribunal be consigned to the records after due

completion. Stay order if issued shall stand vacated.

Aggrieved by the aforesaid order of the Tribunal, Gh. Nabi Aali Kadli of Hotel International filed OWP no. 738/2006 relatable to this appeal,

which has been allowed by the impugned judgment dated 12.03.2010, holding that once the Hotel of the writ petitioner-respondent stands

registered u/s 10 of the Act, then the only obligation cast by Section 39 of the Act on a hotelier is that in case of any change it must be notified to

the concerned authority and the prescribed authority is in turn obliged to make necessary changes in the register maintained for the purpose and the

certificate of registration. The learned Single Judge noticed Section 39 and found that the writ petitioner-respondent fulfil all the necessary

conditions for registration.

In so far as the question of un-authorised construction alleged to have been raised by the writ petitioner-respondent is concerned, the matter is

pending before the Civil Court and has to be decided separately. The writ petitioner- respondent has taken the stand in the Civil Court that

according to the statutes if sanction of the building site plan has not been accorded within specified period then it is deemed to be sanctioned. All

the aforesaid arguments sought to be raised by the counsel for the appellant have been rejected.

We have heard Mr. Makhdoomi, learned counsel for the appellant at a considerable length and are of the view that the instant appeal is devoid

of merit.

There is in fact a doubt whether the appellant has any locus standi because if he has a right to set up his business, respondent no.6 would also be

equally entitled. It may result into stiff competition and loss of business of the appellant but damages so suffered would not arm the appellant with a

cause of action because, legally speaking, no injury has been caused. Thus damnum sine injuria would apply. Of course, if there is no illegality

committed in raising construction by respondent no.6 then the matter has to be considered by the appropriate authority. It has already come on

record that the matter concerning un-authorised construction is pending before the Civil Court and the learned Single Judge has rightly left that

issue open for decision by the appropriate forum. The appeal thus does not merit admission and the same is, accordingly, dismissed. However, we

make it clear that any observation made in this order shall not be considered as an expression of opinion on the merit of the litigation pending

before Civil Court or at any other forum.