IN THE HIGH COURT OF HIMACHAL PRADESH

SHIMLA

CWP Nos. 4217, 4218, 4224, 4225 and

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4434 of 2015
Reserved On:22.06.2017

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Date of Decision: September 18 , 2017

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1. CWP No.4217 of 2015

Brig Harmesh Sethi (Retd) …Petitioner.

Versus

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State of Himachal Pradesh & others …Respondents.
2. CWP No.4218 of 2015
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Jasbir Singh Bakshi
Versus
…Petitioner.
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State of Himachal Pradesh & others …Respondents.
3. CWP No. 4224 of 2015
Mrs. Preeti Gill …Petitioner.
Versus
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State of Himachal Pradesh & others …Respondents.

4. CWP No. 4225 of 2015
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Manjeet Singh Chhatwal …Petitioner.

Versus
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State of Himachal Pradesh & others …Respondents.

5. CWP No.4434 of 2015
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Gurdev Singh …Petitioner.

Versus
State of Himachal Pradesh & others …Respondents.
Coram:
The Hon’ble Mr. Justice Sanjay Karol, Acting Chief Justice.
The Hon’ble Mr. Justice Sandeep Sharma, Judge.

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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

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General, with Mr. Anup Rattan,

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Additional Advocate General, for the
State, in all the petitions.
Mr.Ashok Sharma, Assistant

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Solicitor General of India with
Mr.Ajay Chauhan, Advocate, for the
respondent-Union of India, in all the
petitions.

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Sanjay Karol, Acting Chief Justice.

In all these petitions following questions arise

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for consideration: (a) as to whether the Himachal Pradesh
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Tenancy and Land Reforms Act, 1972 (hereinafter

referred to as the Act) prohibits use of property

purchased pursuant to permission accorded under

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Section 118, for the purpose of “Home Stay”; (b) whether

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in the absence of any condition imposed by the

Government in the permission so accorded under the Act

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is it not permissible for the owner of a residential house

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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

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

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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

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aspect of the word.

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2. Since, common question of law and fact are

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involved in the present petitions, they are being heard

and disposed of by a common judgment. However, as

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agreed, for the sake of convenience, facts of only CWP

No.4217 of 2015, are being noticed.

3. After having served the nation as Brigadier in

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the Indian Army, petitioner decided to settle down in the
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pristine atmosphere of lower Himalayas.

4. In order to promote tourism, more so in the

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rural areas, Government of India, introduced a Scheme

by the name of “Incredible India Bed and Breakfast /

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Homestay Establishments”, encouraging owners of

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houses to allow tourist to reside with them. Apparently

the idea was for inclusive understanding of the lifestyle,

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culture and Indian Heritage.

5. Pursuant thereto, on 15.07.2008, Government

of Himachal Pradesh notified a Scheme known as

‘Himachal Pradesh Home Stay Scheme-2008’ (hereinafter

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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

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also to supplement availability of accommodation in rural

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destinations. In the Scheme, the term “Home Stay” is

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defined as under:-

“Any private house located in rural areas of the

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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
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Scheme. The house shall fulfill
requirement of having one of more room’s to cover
the minimum
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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
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Home Stay in the country-side under the “Himachal

Pradesh Home Stay Scheme, 2008”.
(Emphasis supplied)
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6. In order to popularize and promote such

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object, the Scheme also provided for certain incentives

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and exemptions in the nature of taxes and fees, as

specified in Clause-7.

7. The petitioner as owner of residential

accommodation at Kasauli, decided to promote the cause

of the Government and as such registered his

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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.

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8. All was well till the time petitioner received a

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notice dated 29.07.2015 (Annexure PF, Page-53) from the

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Department of Tourism & Civil Aviation, Government of

Himachal Pradesh, asking him to immediately stop the

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“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

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PG), while refuting such allegation, petitioner explained
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as to how the activity carried out by him was totally legal

and within the four corners of law.

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9. Not finding favour with the same, District

Tourism Development Officer (H.P.), passed an order

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dated 04.09.2015 (Annexure PJ, Page-60), cancelling the

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registration certificate so issued in favour of the

petitioner.
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10. 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,

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Page-60). By way of interim protection, implementation

of the orders were stayed by this Court.

11. From the response filed by the Commissioner,

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Tourism, as on 12.04.2017, number of Home Stays

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registered within the State of Himachal Pradesh, are as

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under:-

Sr.No. District No.of Home Stay Unit

Registered

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1. Kangra 111

2. Una 06

3. Hamirpur
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4. Mandi 63
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5. Bilaspur 07

6. Chamba 46

7. Solan 61
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8. Sirmour 21

9. Shimla 200
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10. Kullu 233

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11. Lahaul and Spiti 50

12. Kinnaur 07
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12. In the response, so filed by respondents No.1

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

not disputed. In fact, State admits that any

proprietor/owner of a private house located in the rural

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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

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under the Scheme. The only reason for taking action

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against the petitioner is the clarification dated

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15.11.2014, so issued by the State Government inter alia

to the effect that “the land purchased by a non-

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agriculturist 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

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the State Government. The provision of Section 118 of
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the said Act has overriding effect on anything to the

contrary contained in any law, contract, agreement,

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custom or usage for the time being in force, as such, the

Tourism Department cannot register the unit without the

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permission of competent authority”.

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13. Now, there is nothing on record to establish

that petitioner violated anyone of the terms of the

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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

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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

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prohibiting its applicability to the properties purchased by

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the owners, pursuant to permissions accorded under the

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Act. Till and so long, the Scheme is in vogue, allowing

such use, it was not open for the Additional Director,

of
Tourism & Civil Aviation to have withdrawn the certificate

of registration.

14. Now what needs to be considered is as to

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whether providing facility of Home Stay is really a
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commercial activity. We have minutely examined the

Scheme. The Scheme itself clarifies that it is applicable to

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a “private house”. It applies only to residential and not

commercial properties. The whole object and purpose of

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the Scheme is: (a) to Broaden the Stake holder’s base for
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tourism in the State; (b) Take tourism to rural and interior

areas of the State; (c) Decongest Urban areas, which

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cannot support any further tourism load; (d) Provide

employment and economic avenues in the interior areas;

and (e) The activity to be ecologically sustainable.

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15. 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,

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Government of India under the “Incredible India Bed &

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Breakfast Scheme”. The basic idea is to provide a clean

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and affordable place for foreigners and domestic tourists,

enabling them to experience Himachali customs and

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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

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of country-side, within the “Farm House; Orchards; Tea-
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Gardens etc.” All that is required is minimum

accommodation of 1 to 3 rooms with a toilet facility which

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has to be in the house. The owners of Home Stay are

also not required to pay taxes and fee. They are totally
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exempted from the same. All that is expected of the

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owners is to “maintain minimum standards of the

cleanliness, sanitation and quality of food”. Of course, the

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Scheme provides for monitoring of these Home Stays by

the Department. Well, that is about all.

16. Thus, the object and purpose, as also activity

carried out by the owner, by no stretch of imagination,

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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

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leaves for next destination. The whole object and purpose

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being to make the society and culture inclusive and not

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commercialize it in any manner. There is no commercial

activity at all. In this process, all stand to gain. The

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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

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Devo Bhava”. In this process, there is exchange of ideas
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and views with the local populace, also giving them

avenues and opportunities of interacting, moving out and

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exploring the world, thus broadening their horizon in

every aspect of the matter.

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17. In the instant case, property is situate in

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Kasauli, where also the Scheme is applicable. It is not

the Government’s decision to exclude township of Kasauli

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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

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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

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making him happy. He lives an enjoyable life.

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18. Let us examine the matter from another

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angle. Does the Act really prohibit such an activity? From

the show cause notice, it is not clear as to whether

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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

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are reproduced as under:-
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“(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
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a dwelling house, shop or commercial establishment

in a municipal area, subject to the condition that the
land to be transferred does not exceed—
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(i) In case of a dwelling house—500 square

meters; and ‘
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(ii) In the case of a shop or commercial

establishment—300 square meters:
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Provided that such person does not own any

vacant land or a dwelling house in a municipal
area in the State.
………
(h) a non-agriculturist with the permission of the
State Government for the purposes that may
be prescribed:

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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)
of this sub-section shall, irrespective of such

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purchase of land, continue to be a non-agriculturist

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for the purpose of the Act:
Provided further that a non-agriculturist who
purchases land under clause (dd) or in whose case

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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

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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
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writing to be counted from the day on which the
sale deed of land is registered and if he fails to do so
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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,
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vest in the State Government free from all

encumbrances.”
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19. Now bare reading of the Section does not

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indicate there being any prohibition in the use of property

for the purpose of home stay. It is a residential property

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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.

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20. 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

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so, without any reasonable justification. Order, executive

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in nature, is ultra vires the Act, apart from being

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unreasonable and illegal.

21. Right to property has now been held to be not

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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

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SCC 353; Chairman, Indore Vikas Paradhikaran vs. Pure
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Industrial Coke & Chemicals Ltd. and others, (2007) 8

SCC 705; & Lachhman Dass vs. Jagat Ram and others,
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(2007) 10 SCC 448]

22. A Constitution Bench (Five Judges) of the Apex

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Court in K.T. Planatation Private Limited and another vs.

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State of Karnataka, (2011) 9 SCC 1, has held that no

person can be deprived of his right to enjoy the property,

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save by an authority of law.

23. 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

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be only by authority of law, be it an act of Parliament or

State legislation, hut not by an executive fiat or an

order”.

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24. Thus when neither the Act, nor the Scheme

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prohibited use of the house as a “Home Stay’, by way of

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a clarification-an executive order-State could not have

imposed such an embargo.

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25. 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

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others, (2012) 6 SCC 136. The decision, in our considered
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view, is distinguishable and inapplicable to the given

facts. There the Hon’ble Supreme Court was dealing with

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the establishment of a Home Stay, which was being run

in violation of Coastal Regulation Zone Act, 1991 (in short

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CRZ) and in a totally prohibited area, which is not the

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position here.

26. Hence, for all the aforesaid reasons, we allow

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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).

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With the aforesaid observations, present

petition stands disposed of, so also pending

applications(s), if any.

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(Sanjay Karol),
Acting Chief Justice.

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September 18 , 2017 (Sandeep Sharma),
(Purohit) Judge.

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