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2013 Supreme(Cal) 846
IN THE HIGH COURT OF CALCUTTA
Asim Kumar Mondal, J.
Smt. Susmita Basu & Anr. - Petitioners
Versus
Kolkata Municipal Corporation & Ors. - Opposite Parties
W.P. No. 17019 (W) of 2003
Decided On : 17-12-2013
For the Petitioners:Jiban Ratan Chatterjee and Hiranmoy Bhattacharyya, Advocates.
For the Opposite Parties :Aloke Kumar Ghosh, Achinta Kumar Banerjee and Era Ghosh, Advocates.
A local authority or State or a statutory body interfering with the possession, in assertion of its property rights and dispossess a person of his possession in which he has no right to be in possession under the law, even without any of the process of the court of law, such a person is not entitled to any relief under Article 226 of the Constitution of India to be put in possession.
Headnote:
PETROLEUM DEALERSHIP - CERTIFICATE OF ENLISTMENT - RENEWAL - MUNICIPAL CORPORATION - OWNERSHIP OF PREMISES - TRESPASSERS - WRIT JURISDICTION - ARTICLE 226 OF THE CONSTITUTION OF INDIA: 1. Mere grant of trade licence does not ipso facto authorise or entitle a person to carry on business at premises which do not belong to them. 2. A local authority or State or a statutory body interfering with the possession, in assertion of its property rights and dispossess a person of his possession in which he has no right to be in possession under the law, even without any of the process of the court of law, such a person is not entitled to any relief under Article 226 of the Constitution of India to be put in possession. 3. The nature and manner of the relief as sought for by the writ petitioners in the present writ application simply appears civil in nature. The Writ court cannot grant any relief as sought for under Article 226 of the Constitution of India where the question of right, title and/or interest and possession of the parties are involved.
Fact of the Case:
The petitioners, who were running a petroleum dealership business on premises No. 136, Hazra Road, Kolkata, challenged the legality and propriety of the purported order dated September 29th, 2003 passed by the Deputy Municipal Commissioner (Licence) of Kolkata Municipal Corporation, which refused to renew their certificate of enlistment. The petitioners claimed that they were in possession of the property and carrying on the business since after the demise of their predecessor-in-interest, and that the Municipal Corporation had not produced any document showing that the corporation was the owner of the site in question.
Finding of the Court:
The court found that the petitioners were not in physical possession of the business premises and were practically restrained from doing their business at the premises in question for the last few years. The court also found that the Municipal Corporation had admitted one Inder Singh Bajowa as lessee till 1958, but had failed to produce any documents in connection with the pendency of the eviction suit filed against him, claiming that the record was not traceable.
Issues: 1. Whether the respondent municipal authorities are justified in rejecting the prayer of the writ petitioners for renewal of certificate of enlistment on the ground which is beyond the scope of enquiry under Section 199 of the Kolkata Municipal Corporation Act? 2. Whether the order dated September 29th, 2003 passed by the hearing officer is valid and legal? 3. Whether the respondent Municipal Authorities are justified in preventing the writ petitioners from carrying on business from the premises in question or not?
Ratio Decidendi: 1. The Municipal authority has raised the question of right, title and/or interest of the Caltex (India) Limited on the terms in question, but admittedly no document supporting the claim of lease or rent of the suit premises in question is coming before this Court. 2. The nature and manner of the relief as sought for by the writ petitioners in the present writ application simply appears civil in nature. The Writ court cannot grant any relief as sought for under Article 226 of the Constitution of India where the question of right, title and/or interest and possession of the parties are involved.
Final Decision: The writ application under Article 226 of the Constitution of India is dismissed without costs.
Asim Kumar Mondal, J.
This is an application under Article 226 of the Constitution of India directed against the illegal blocking of the access to the business place of petitioners being premises No. 136, Hazra Road, Kolkata-700026 by the Kolkata Municipal corporation and thereby preventing the petitioners from carrying on its business therein.
2. The petitioners have also challenged the legality and propriety of the purported order dated September 29th, 2003 passed by the Deputy Municipal Commissioner (Licence) of Kolkata Municipal Corporation.
3. The case of the petitioners is that Sree Prasanna Basu, since deceased, husband of petitioner No. 1 entered in a dealership agreement with Caltex (India) Limited on October 1st, 1975. The undertaking of Caltex (India) Limited stood transferred and vested in Hindustan Petroleum Corporation Limited. That Kolkata Municipal Corporation issued trade licence till 1977. On March 29th, 1979 the Deputy Licence Officer refused to issue trade licence in favour of Sree Prasanna Basu for the year 1978-1979. Sree Basu against the said order of refusal moved before the Hon'ble Court and obtain rule in his favour. Sree Basu again moved before Hon'ble Court for issuing the rule against the refusal of the concerned authority to issue licence for the year 1979-1980. The High Court directed to maintain status-quo. On June 1st, 1993 Sree Basu died. After the death of Sree Basu petitioner No. 1 being the wife and petitioner No. 2 being the daughter of Sree Basu came into the picture and they were carrying on the dealership business. The petitioners thereafter applied for renewal of trade licence for the year 1994-1995, 1995-1996 and also applied for renewal of certificate of enlistment for 1996-1997. The petitioners moved before the Hon'ble Court challenging the refusal on the part of the respondents for renewal of certificate of establishment for the years aforesaid. Hon'ble court passed an order of status-quo. The authority concerned thereafter issued licence for the years 1996-1997, 1997-1998 and 1998-1999. The petitioners applied for renewal of certificate of enlistment for the year 1999-2000 which was also refused by the authority concerned. Petitioner moved again before the Hon'ble Court. Hon'ble Court was pleased to direct the respondents to consider the representation of petitioners and pass order and also directed to maintain status-quo till the decision of concerned authority.
4. In pursuance to the directions of the Hon'ble Court petitioner attended the hearing on different dates as fixed by the concerned authority. Petitioners were not properly intimated about the decisions of the concerned authorities and as such on May 24th, 2002 petitioners by a letter requested the respondents to intimate the order passed by them. On September 19th, 2002 the petitioners submitted a representation but in vain. The petitioners again applied for renewal of certificate of enlistment for the year 2003-2004 and in view of the notice issued by the concerned authority attended the hearing on September 29th, 2003. On the said date of hearing i.e. on September 29th, 2003 the concerned authority refused to renew the certificate of enlistment. Hence, the present writ application seeking relief in the nature of Mandamus, Prohibition and Certiorari and/or any other appropriate writs or direction or directions upon the concerned authority.
5. The opposite parties No. 1 to 6 appeared in the case and filed affidavit-in-opposition. Their positive case is that the premises No. 136, Hazra Road, P.S.-Bhawanipur belongs to Kolkata Municipal Corporation. The Kolkata Municipal Corporation sanctioned transfer of land in the name of Inder Singh Bajowa in place of Sri Satish Chmkakar for a period of three years from September 26th, 1941. The said lease was expired on September 25th, 1944. Thereafter said lease was extended time to time and ultimately said Sri Bajowa was served notice to quit and vacate the premises in question
