Back
1987 Supreme(Cal) 261
High Court Of Calcutta
SUSANTA CHATTERJI
VENODE KUMAR JALAN - Appellant
Versus
CALCUTTA MUNICIPAL CORPORATION - Respondent
C. O. 4389 Of 1986
Decided On : 07/24/1987
A.K.Ghosh, D.Chakravarty, MONISHA MUKHERJI, S.Ghosh
The Municipal Commissioner is not competent to consider the title to property or the right to occupy the property when issuing a certificate of enlistment for a trade license under Section 200 (3) of the Calcutta Municipal Corporation Act, 1980.
Headnote:
CALCUTTA MUNICIPAL CORPORATION ACT, 1980 - SECTIONS 199 AND 200 - SCOPE OF ENQUIRY BY MUNICIPAL COMMISSIONER TO ISSUE A CERTIFICATE OF ENLISTMENT FOR A TRADE LICENCE - MUNICIPAL COMMISSIONER NOT COMPETENT TO CONSIDER TITLE TO PROPERTY OR RIGHT TO OCCUPY - OCCUPIER OF PROPERTY ENTITLED TO REMAIN IN PROPERTY AND OBTAIN TRADE LICENCE UNLESS EVICTED IN DUE COURSE OF LAW.
Fact of the Case:
Venode Kumar Jalan, the petitioner, was inducted as a tenant by Bimal Kumar Samanta, the respondent, in respect of the rear portion of premises No. 26, Khagen Chatterjee Road, Cossipore, Calcutta. Jalan was running a hosiery business under the name and style of "messrs. Hanuman Hosiery Tailors" with the necessary licenses from the Municipal Corporation, Calcutta. Samanta, with ulterior motives, started creating disturbance and Jalan had to seek police help. An application under Section 144 of the Code of Criminal Procedure was filed before the Learned Executive Magistrate, Sealdah, and an order was made restraining Samanta from committing acts of breach of peace. Jalan duly made an application for renewal of his licenses with the prescribed fees, but the Corporation authorities refused to renew the license due to an objection raised by Samanta.
Finding of the Court:
The Municipal Commissioner is not competent to consider the title to property or the right to occupy the property for the purpose of issuing a certificate of enlistment for a trade license under Section 200 (3) of the Calcutta Municipal Corporation Act, 1980. The scope of the enquiry under Section 200 (3) is limited to determining whether the application is in order and whether the applicant has complied with the prescribed formalities. The question of title to the property cannot be investigated by the Corporation authorities and is not a subject matter of the enquiry under Section 200 (3).
Issues: 1. Whether the Municipal Commissioner can consider the title to property or the right to occupy the property when issuing a certificate of enlistment for a trade license under Section 200 (3) of the Calcutta Municipal Corporation Act, 1980? 2. Whether an occupier of a property is entitled to remain in the property and obtain a trade license unless evicted in due course of law?
Ratio Decidendi: 1. The scope of the enquiry under Section 200 (3) of the Calcutta Municipal Corporation Act, 1980 is limited to determining whether the application is in order and whether the applicant has complied with the prescribed formalities. The question of title to the property cannot be investigated by the Corporation authorities and is not a subject matter of the enquiry under Section 200 (3). 2. An occupier of a property is entitled to remain in the property and obtain a trade license unless evicted in due course of law.
Final Decision: The writ petition filed by Venode Kumar Jalan is allowed, and the trade license is renewed subject to the decision of any other competent Court. The writ petition filed by Bimal Kumar Samanta is rejected.
( 1 ) - This writ petition is heard along with C. O. 4389 (W) of 1986 filed by Bimal Kumar Samanta the respondent No. 4 against State of West Bengal and Others. It is stated in the present writ application that the petitioner was inducted as a tenant by the respondent No. 4 Bimal Kumar Samanta in respect of the rear portion of the premises No. 26, Khagen Chatterjee Road, Cossipore, Calcutta and since his induction in 1978 be is running hosiery business under the name and style of "messrs. Hanuman Hosiery Tailors" having obtained necessary licenses from the appropriate Licencing Authority of the Municipal Corporation, Calcutta. It is alleged that sometime in the month of July 1984 the respondent No. 4 with some ulterior motive to dispossess the petitioner from the said premises started creating disturbance and the petitioner bad to seek necessary police help. An application under Section 144 of the Code of Criminal Procedure was filed before the Learned Executive Magistrate, Sealdah and an appropriate order was made restraining the respondent No. 4 to commit acts of breach of peace and the police was directed to carry out the order. Further allegations have been made about police excess asking the petitioner to vacate the premises for which the petitioner had to move earlier writ application and the previous application was disposed of by order, dated 2nd December, 1985 passed by Bhagabati Prasad Banerjee J. that there should not be disturbance to the possession of the premises in question except in accordance with law. Subsequently, the respondent No. 4 filed a writ application and the same was moved on 8th April, 1986 before Prabir Kumar Mazumdar J. and the Civil Order No. 4389 (W) of 1986 is pending. The petitioner has further alleged that he duly made application for renewal of his licences with the prescribed fees but the Corporation authorities are not renewing the licence in view of an objection made by the respondent No. 4 Bimal Kumar Samanta. It is stated also that on earlier occasions the Municipal Corporation Authorities rejected the objection of the respondent No. 4 holding inter alia that the Municipal Corporation Authority has no legal right to refuse renewal when a person is engaged in particular trade. Thereafter, the Corporation Authorities are alleged to have changed the view to refuse granting of renewal of the trade licence and as a result thereof the petitioner is compelled to file a present writ application praying for issuance of a writ of Mandamus commanding the Calcutta Corporation Authorities to issue licence in favour of the petitioner in terms of the Calcutta Municipal Corporation Act and specially in terms of Sections 199 and 200 of the Calcutta Municipal Corporation Act and other consequential relief's as stated in the petition itself.
( 2 ) THE learned lawyer appearing for the Calcutta Municipal Corporation appeared at the time of final hearing of the case and conceded that the Municipal Corporation authorities have no objection to grant licence as prayed by the petitioner.
( 3 ) THE writ petition is, however, seriously opposed by the respondent No. 4 Bimal Kumar Samanta. Another writ petition filed by Bimal Kumar Samanta as indicated above being C. O. No. 4389 (W) of 1986 is taken up for bearing along with this case as observed earlier. It appears that Bimal Kumar Samanta has alleged that a tenancy comprising 3 (three) rooms of premises No. 26, Khagen Chatterjee Road was rented out to the petitioner for the purpose of carrying on business therein. Out of the said three rooms, two rooms are used for the purpose of carrying on the Ration Shop whereas in the other room, the petitioner started a tailoring business. As per the averments made in the said petition, it is stated in or about 1984, a labour trouble started affecting the hosiery and tailoring business and also taking advance of illness of Bimal Kumar Samanta, there was trespass within the tenanted room and a busine
