- (1.) S. K. Dhaon and Palok Basu, J. J. An order purporting to have been passed under Section 9 of the Sarais and Puraos Act XXII of 1967 (hereinafter referred to as the Act), whereby the registration of a certain hotel h is been cancelled and the closure thereof has been ordered, is being impugned in the present writ petition.
(2.) BY a letter dated 6th November, 1988, the Senior Superintendent of Police, Varanasi, informed the District Magistrate, Varanasi, that on 26th October, 1988, the bearer, the Chowkidar, the owner (petitioner), son of the petitioner and one Moti Lal raped a certain lady and in respect of the said occurrence a case Crime No. 403/88 under Section 376 read with Section 109 of the Indian Penal Code had been-registered. On the same date the impugned order was passed by the Additional District Magistrate stating therein the con tents of the communication of the Senior Superintendent of Police and also the fact that the general reputation of the. said hotel was bad. The reason given for taking the action was maintenance of public tranquility and the safeguard of public interest. In the forefront the submission is that the provisions of Section IX of the Act have no application and the impugned order is without jurisdiction. It may be necessary to may briefly, refer to the provisions of the Act. The Preamble states that the Act had been brought in for the regulation of public Sarais and Puraos. Sarai is defined to mean any building used for the shelter and accommodation of travelers, and includes, in any case in which only part of a building is used as a Sarai, the part so used of such building. Keeper of a Sarai includes the owner and any person having or acting in the care or management thereof. Section IV of the Act, as is relevant provides that the Magistrate of the District shall keep a register in which the names and residence of the keepers of all Sarais and the situation of every such Sarai shall. be entered. The substance of Section V is that no person shall either receive any lodger or allow any person to halt in a particular Sarai until the Sarai and the name and residence of the keeper thereof has been registered under the provisions of the Act. Section VII enumerates that duties of the Keepers of Sarais. These, in brief, are : immediate notice has to be given to the nearest police station when any person in a Sarai is suffering from any infectious or contagious disease or dies of such disease the District Magistrate or any other Magistrate authorised by him would be given free access to the Sarai and shall also be permitted to inspect the same or any portion thereof, to thoroughly cleans rooms and verandas and drains of the Sarai and the wells, tanks or other sources from which water is obtained for the persons or animals using it, to remove all noxious vegetation on of near the Sarai, and all trees and branches of trees capable of affording to thieves means of entering or leaving the Sarai, to keep the gates, walls, fences, roofs and drains of the Sarai in repair, to provide such number of watchmen as may, in the opinion of the Magistrate of the District be necessary for the safety and protection of persons and animals or vehicles lodging in, halting at or placed in the Sarai and to exhibit a list of charges for the use of the Sarai. Section X empowers the District Magistrate to order the pulling down or the repairing of Sarai are in ruinous state. Section XIII empowers the local Government to make Regulations for the working of the provisions of the Act. Section XIV provides for the penalty for the infringement of the provisions of the Act and the Regula tions framed thereunder. Section XV provides that if a keeper of a Sarai is convicted for the third time for an offence under the Act, he shall not be permit ted to act as a keeper without his obtaining a licence from the District Magistrate. Now, we may read Section IX. The marginal note to this provision is: Power to shut up, secure, clear and clean deserted Sarai. The Section reads : If any Sarai by reason of abandonment or of disputed ownership shall remain untenanted, and thereby become a resort of idle and dis orderly persons, or become in a filthy or unwholesome state, or be complained of by any two or more of the neighbours as a nuisance, the Magistrate of the District, after due enquiry, may cause notice in writing to be given to the owner, or to the person claiming to be the owner, if he be known and resident within the District, and may also cause such notice to be put on some conspicuous part of the Sarai, requiring the persons concerned therein, whoever they may be, to secure, enclose, clean or clear the same and if such requisition shall not be complied with within eight days, the Magistrate of the District may cause the necessary work to be executed, and all expenses thereby incurred shall be paid by the owner of the Sarai, and shall be recoverable like penalties under this Act, or, in case of abandonment or disputed ownership of the Sarai, by the sale of any material found therein. '.
(3.) WE have read and reread this provisions. It cannot by any stretch of imagination be said that under this provision any power has been conferred to cancel the registration of a Sarai. The question still is whether the order closing down the hotel can be sustained under Section IX. For arriving at such a conclusion conveying that intendment of the Legislature has to be picked up in the. vision under consideration. The words to secure, enclose, clean or clear have been placed in juxtaposition. The only word which may some relevance if enclose. No doubt, some of the dictionary meanings of the said word are, to shut in or close on all sides, fn our opinion even the dictionary meaning does not convey the legislative intendment that the District Magistrate can order that a particular building should not be used as a Sarai at all. In other words, Section IX does not empower the District Magistrate to order the keeper of a Sarai to stop his business activity of giving shelter etc. to the travelers. The four words which are placed near each other are those which are generally used. Even if these words are wide and comprehensive in their literal sense, they must be con strued as being limited to the actual object of the Act and in particular in the context and setting of Section IX. The Scheme of Section IX is that whenever art action has to be taken under it the District Magistrate, after due inquiry has to give notice in writing to the owner or the person claiming to be the owner of a Sarai requiring him amongst others to enclose the Sarai and if this direction is not complied with within 8 days, the District Magistrate may get the necessary work done any all expenses incurred in that connection shall be paid by the owner of the Sarai and if not paid shall be recoverable as a penalty. No more will be required to be escorted if an order is passed directing the closing down of a Sarai for the purpose of running a commercial activity therein. This is indicative of the fact that the word enclosed had not been used by the Legislature in the sense of forbidding the travelers etc. from staying in a Sarai. Our view is fortified by reading the earlier part of the provisions as contained in Section IX wherein the situations under which the District Magistrate has been empowered to issue previous notice in writing have been enumerated. The first is where a Sarai has become a resort of idle and disorderly persons on account of the fact that it is vacant or not occupied by anyone, the second is where a Sarai is in filthy or is in unwholesome state and the last is where two or more neighbours complain that the Sarai has become a nuisance. So far as the order closing down a Sarai is concerned, it may have some rational connection with the nuisance in it. The remedy for giving relief to the neighbours as against nuisance has been provided for by the Legislature by directing its enclosure to as to minimise the disturbance of the inhabitants in the neighbourhood of a particular Sarai. The underlying idea of the conferment of power of directing the enclosure of a Sarai is that so far as possible it will be kept out of public gaze. Some argument has been raised up as used in the marginal note should be taken into account while considering the import of the word enclose in the enacting provision. We have already indicated that one of the meanings given in the dictionary to the word enclose is shut up. Therefore, there can be no difficulty in taking the view that both these words have been used in the same sense. However, marginal notes in Indian statute, as in an enactment of Parliament, cannot be referred to for the purpose of construing the statute. See Commissioner of Income tax, Bombay v. Ahmedbhai Umarbhai and Co. , AIR 1950 SC 134. In Nandini Satpathy v. P. L. Dani and another, AIr 1978 SC 1025 para 33 it has been held that a marginal note clears the ambiguity. It does not control the meaning. We have taken the view that in the context and setting of Section IX the word ''enclose is not ambiguous. Learned standing Counsel has urged that, by the impugned order, the Additional District Magistrate merely cancelled the registration of the hotel as a Sarai under the Act. He did not intend to direct its closure. According to him, the Additional District Magistrate merely mentioned the consequence of the cancellation of the registration of the hotel, that is, the closing down of the business which is being carried on in it. The impugned order does not convey this idea. It clearly says that while canceling the registration of the hotel its closing down is being ordered with immediate effect. The Standing Counsel has urged that having regard to the purpose and scheme of the Act, power to cancel the registration is implied and once registration is cancelled the user of the hotel as a Sarai within the meaning of the Act cannot be permitted and such an activity has got to be stopped. We have already indicated that there is a clear provision in the Act that a building has got to be registered as a Sarai, therefore, there can be no escape from the conclusion that if a particular building is not registered under the Act it cannot be used for the purpose of accommodating or allowing the travelers etc. to rest therein. Let us, therefore, find out if the power to cancel the Act, registration of the hotel as a Sarai is implied in the Act. We have already referred to the provisions of Sections IV, V and VI, though briefly. Section IV is important in this connection. It may be extracted : The Magistrate of the District shall keep a register in which shall be entered by such Magistrate or such other person as he shall appoint in this behalf, the names and residences of the keepers of all Sarais within his jurisdiction, and the situation of every such Sarai. No charge shall be made for making any such entry. Therefore, so far as the Sarais are concerned, the only requirement is that its existence should be noted in the register. It is thus clear that no specific order has to be passed by any authority for registering a Sarai. Section V merely says that no lodgers etc. shall be received in the Sarai until the Sarai is registered. Section VI imposes some restriction upon the registration of Reaper of a Sarai, namely, he has to produce a certificate of character etc. Therefore, for the purpose of regulating the public. Sarais and Puraos, the then Legislature consi dered that the mere existence of a particular Sarai had to be noted down in a register which was to be maintained by the District Magistrate. The Statement of Objects and Reasons for bringing the Act recites that the primary object is to provide for the regulation of Sarais or buildings used in Muffins for the shelter and accommodation of travelers. It is thus apparent that the registra nt of a particular building for being used as a Sarai requires no formalities ill and the provisions of the Act envisage the registration of such a building on a mere asking. The question of a power of the cancellation of the registration being implied hardly arises. Section 21 of the General Clauses Act does not advance the cause of the respondents as it only embodies a rule of construc tion. We are clear that this provision cannot be invoked by the District Magistrate for canceling the registration of a building as a Sarai. 10. In, Bidi Leaves and Tobacco Merchants' Association and others v. State of Bombay, AIR 1962 SC 486 the Supreme Court observes in paragraph 20 that the doctrine of implies powers can be legitimately invoked where it is found that a duty had been imposed or a power conferred on an authority by a statute and it is further found that the duty cannot be discharged or the power cannot be exercised at all unless some auxiliary or incidental power is assumed to exist. In such a case, in the absence of an implied power the statute itself would become impossible of compliance. The impossibility in question must be of a general nature so that the performance of duty or the exercise of power is rendered impossible in all cases. It really means that the statutory provision would become a dead letter and cannot be enforced unless a subsidiary power is implied. It cannot be said even for a moment that the provisions of the Act will become unworkable if the power of canceling the registration of a building for being used as a Sarai is not spelled out. It follows that the Additional District Magistrate had no implied power to cancel the registration of the hotel in question. Mis order, therefore. is not sustainable under any provision of the Act. 11. Learned Standing Counsel next urged that even though the Additional District Magistrate has relied upon Section IX of the Act as the source of his power, he having taken into account public tranquility and public interest, the order can be sustained under section 144 of the Code of Criminal Procedure. He argues that a mere mention of a wrong provision of law in the order will not invalidate it if the exercise of the power can be justified under some other provision. No exception can be taken to the proposition put forward by the Standing Counsel. We are not expressing any opinion on the question as to whether an order of the type contained in the impugned order can or cannot be passed under Section 144 of the Code. We make it clear that it will be open to the District Magistrate to pass any appropriate order in accordance with law. However, we are not prepared to sustain the impugned order on the arguments advanced by the learned Standing Counsel. We are satisfied that the Additional District Magistrate consciously and bonafide purported -to exercise power under Section IX of the Act. He may have been ill-advised in doing so. We arc also satisfied that while passing the impugned order he did not keep in mind any other provision of law. For passing an order even under section 144 of the Code of Criminal Procedure there has to be an application of mind and the relevant provisions contained therein have to be kept in view. 12. The Act is an archaic piece of legislation. At the moment there is no comprehensive legislation to regulate the activities of hotels and motels. The need for such a legislation exists. It is high time that a fresh legislation should be brought in to replace the existing legislation. 1. Though this petition has not been formally admitted, yet affidavits have been exchanged and with the consent of learned counsel for parties we are procee ding to dispose of the same finally. 14. This petition succeeds and is allowed. The order dated 6th November, 1988 passed by the Additional District Magistrate (Protocol), Varanasi, is quashed. The parties shall bear their own costs. Petition allowed. .;