' MAMOON KAZI, J.---By this common judgment we propose to dispose of Constitutional Petitions Nos. D-75/86, D-77/86, D-78/86, D1125/86, D-1330/86, D-1331/86, D-1332/86, D-1333/86 and D- 897/89 as common questions of law are involved therein.
2. The petitioners, who are owners of restaurants or tea shops etc., are aggrieved by the action taken by the respondents under section 5 of the Pakistan Hotels and Restaurants Act, 1976 (Act LXXXI of 1976) read with section 22 of the said Act. It may be pointed out that the said Act which came into force in 1976 provides for measures for controlling and regulating the standard of service and amenities for tourists in hotels and restaurants and all matters ancillary thereto or connected therewith. Section 5 of the said Act provides as follows:-- "5. Registration of hotels and restaurants.--(1) The owner of every hotel and retaurant shall, within a period of two months from the commencement of this Act, or from the opening of the hotel or restaurant, or from the date on which this Act becomes applicable to such hotel or restaurant, whichever is later, apply to the Controller for registration of his hotel or restaurant and for determination of fair rates in relation thereto and in the case of a hotel, also for its classification, on payment of such fee as may be prescribed.
(2) No hotel or restaurant shall be registered, unless--
(a) it conforms to the prescribed standard of health, hygienic and comfort, provided that the Controller may allow provisional registration subject to such conditions as he may deem fit and, for good and sufficient reasons, modify, alter or withdraw any such condition at any time;
(b) it furnishes at its expense certificates of medical fitness from a Medical Officer of the civil hospital of the area in respect of its staff in such form as may be prescribed;
(c) its building is structurally safe and adequately protected against fire or an accident arising out of electricity or gas and safety of the tourists is ensured.
(3) The Controller, or an officer authorised by him in this behalf, or a member of the committee may, at any time, inspect the premises of a hotel or restaurant, call for any information, plan or date in respect of any matter concerning such hotel or restaurant or, at the cost of the-owner, carry out, or require the owner to carry out, test of any articles or appliances or foodstuff."
' The term 'hotel' and 'restaurant' have also been defined by section 2 of the said Act and their definitions are as follows:-- "(g) 'hotel' means a lodging, or boarding and lodging, establishment with a minimum of ten lettable bed-rooms, provided for tourists on monetary consideration, which conforms to any of the prescribed minimum criteria, but does not include--
(i) a home or hostel which is exclusively or mainly used for the aged or invalid persons or students and is run by or under the control of a charitable or educational institution; or
(ii) any rest house, hostel or circuit house exclusively meant for visiting Government officials or officials of other organisations, though run on a commercial basis;"
(1) 'restaurant' means a public eating house providing standard and variety of cuisines on monetary consideration to tourists which conforms to the minimum prescribed criteria;"
' Section 22 of the said Act provides for penalties in respect of offences which might be committed by an owner of a restaurant etc. Section 29 refers to the rule-making power of the Federal Government which may by a notification in the official Gazette make rules for carrying out the purpose of this Act, Without prejudice to the generality of the said powers of the Federal Government, the matters in respect of which rules may be made are enumerated in subsection (2) of section 29.
3. A perusal of section 5 would show that it makes it obligatory on every owner of a hotel or a restaurant to apply to the Controller for registration of his hotel or restaurant and for determination of fair rates in relation thereto and also for classification of the same on payment of such fee as may be prescribed. Subsection (2) of section 5, however, bars the registration of such hotel or restraint as referred to in subsection (1) unless it conforms to the prescribed standard of health, hygiene and comfort. The standards of health, hygiene and comfort are enumerated in the Second Schedule to the Rules namely, Pakistan Hotel and Restaurant Rules, 1977, which have been framed under the said rule-making power of the Federal Government vide S.R.O. No, 1150(1)/77 dated 6-12- 1977. Reference may also be made to rule 6 of the said rules sub-rule (2) whereof states that "every restaurant applying for registration shall conform to the standard of health, hygiene and comfort set out in Schedule IL" It is pertinent to point out that in Schedule II, ten different standards of health, hygiene and comfort for registration of a restaurant etc. Are enumerated as the said Schedule provides as follows:-- "(1) The restaurant shall be suitably located in good and clean environment.
(2) It shall have seating capacity for at least ten persons at a time at a minimum of three tables.
(3) A wash basin with soap and clean towel and a toilet for customers in clean and working condition with modern sanitary fittings shall be provided at all times.
(4) Kitchen shall be separate from the dining room.
(5) Heating and cooling arrangements shall be available according to local conditions and weather.
(6) Serving staff shall wear clean uniforms while on duty.
(7) The manager shall be professionally trained and have a working knowledge of English language.
(8) There shall be good quality crockery, cutlery, glassware, tableware and linen in the restaurant.
(9) Kitchen shall be properly equipped, hygienically clean and well-maintained with clean cooking utensils.
(10) The restaurant shall be anti-fly and anti-mosquito proofed.
4. It would thus be seen that according to section 5, it is not obligatory for each and every "restaurant" or a "hotel" etc. To get itself registered under the said Act unless it falls within the purview of the definitions of the said terms given in section 2. The case of the petitioners in all these petitions is that although they own a restaurant or a tea shop but the same does not conform to the said definition of "restaurant". However, they received a show-cause notice from the Deputy Controller, Tourist Department calling upon them to show cause as to why penalties may not be imposed upon them under the provisions of the said Act for their failure to apply for registration under section 5(1) of the said Act. Although the petitioner made representation against the said show-cause notices but nevertheless different penalties were imposed upon the petitioners. In some cases the petitioners filed appeals before the learned Controller of Tourism but the appeals were dismissed without any cogent reasons. We find that according to the general scheme of the Act and the Rules made thereunder every hotel or a restaurant, in order to be made liable for registration under section 5(1) of the said Act, must fall within the purview of the said definition of "hotel" or "restaurant". No doubt, it is for the authority concerned to determine whether a particular restaurant or hotel conforms to the requirements of the said definitions but the matter cannot be decided ex parte by the concerned authority without providing an opportunity of hearing to the owners or taking into consideration the view-point of the owners of the restaurants or hotels which are affected by the provisions of the said Act. The order imposing penalty against the said persons for contravening the provisions of the said Act must also be a speaking order as must state reasons for taking of action against such persons. The action which has been taken in the present case against the petitioners although, appears to be based on the fact that the restaurants or tea shops owned by the petitioners were liable for registration under section 5(1) of the said Act but no reasons appear to have been given by the respondents for the same. It further appears that in certain cases when the appeals filed by the petitioners wen pending a penalty was imposed against them during the pendency of the said appeals. Such action is not warranted under the law.
5. In the result, we accept these petitions and remand the case to the respondent No, 1 for taking fresh action in the matter and if he is of the opinion that the petitioners' tea shops or restaurants are liable for registration under section 5(1) of the said Act for which adequate reasons must also be given and the petitioners' view-point if any, may also be taken into consideration, he may then proceed against the petitioners in case any one of them fails to apply for registration as required by section 5(1) of the said Act. Under the circumstances, the impugned orders are quashed and the cases are remanded as just observed by us. The parties are left to bear their own costs.