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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
DEVASHIS BARUAH, J.
M/S. SHAMBHU ELECTRICALS AND ANR. - Appellant
Vs.
THE GAUHATI MUNICIPAL CORPORATION AND ORS REP. BY ITS COMMISSIONER, PANBAZAR, GUWAHATI - Respondent
WP(C) No. 7940 of 2019
Decided On : 05-04-2022
Parties cannot be the subject matter of the writ petition and the said aspect of the matter can be decided in a proceedings pending before the appropriate forum.
Finding of the Court:
Respondent/GMC Authorities cannot refuse to accept the application for issuance of trade license. It was directed that if the petitioners submit application seeking issuance of trade license, the same ought to be considered by the authorities in accordance with law and dispose off by issuing a reasoned order - there is no dispute that there is a suit pending between the Respondent No.4 and the Petitioner No.2, wherein the question as to whether the Petitioner No.2 is a tenant, is pending adjudication. It is also an admitted fact as could be seen from paragraph No.17 of the Plaint that the Respondent No.4 had duly admitted that the Petitioner No.2 have illegally and unauthorisedly had been depositing rent in terms with Section 5(4) of the Act of 1972. These facts are enough to show that the petitioners have legal occupancy insofar issuance of trade License is concerned and the collection of revenue in terms with Section 180 of the GMC Act of 1971 - If any other interpretation is given, it would result in the GMC authorities usurping the jurisdiction of competent Court under the Act of 1972 inasmuch as if any other meaning is given then it may lead to a situation where a landlord may instead of filing a suit for eviction and bypassing the protection afforded under the Act of 1972, compel the tenant to vacate the tenanted premises for not having a trade license for want of a Lease Deed/Rent Agreement/Legal Occupancy Certificate.
Result: If any other interpretation is given, it would result in the GMC authorities usurping the jurisdiction of competent Court under the Act of 1972.
JUDGEMENT :
Heard Mr. S. P. Roy, the learned counsel for the Petitioners. Mr. S. Bora, the learned counsel appears on behalf of the Respondent Nos. 1, 2 & 3 and Mr. R. Dubey, the learned counsel appears on behalf of the Respondent No. 4.
2. From a perusal of the writ petition, it appears that the Respondent No. 3 had vide an order dated 01/10/2019 rejected the application filed by the Petitioner No. 2 dated 28/8/2019 for issuance of trade license. A perusal of the said order reflects that the said rejection has been done on the basis that the Petitioners have not submitted the required documents for issuance of fresh trade license as per the Rules.
3. At this juncture, it may be relevant herein to mention that the issue pertaining to the issuance of trade license to the Petitioners also came up for consideration before this Court in W.P.(C) No. 5815/2019, whereby this Court disposed off the said writ petition observing that a landlord tenant dispute, if any, between the parties cannot be the subject matter of the writ petition and the said aspect of the matter can be decided in a proceedings pending before the appropriate forum. It was further observed that the Respondent/GMC Authorities cannot refuse to accept the application for issuance of trade license. It was directed that if the petitioners submit application seeking issuance of trade license, the same ought to be considered by the authorities in accordance with law and dispose off by issuing a reasoned order.
4. The petitioners herein, who were the petitioners also in the said proceedings were permitted to file an application within a week of the said order for issuance of trade license and the Respondent Nos. 1 and 2 were directed to deal with the same in accordance with law. It is on the basis of the said order passed by this Court that the petitioners have filed an application seeking issuance of trade license and vide the impugned order dated 01.10.2019, the said application was rejected on the ground of absence of required documents. It may not be out of place to mention herein that the Respondent No. 3 while passing the impugned order, did not indicate what are the required documents which the petitioners did not file.
5. Be that as it may, the Respondent Nos. 1, 2 & 3 have filed a joint affidavit amplifying the specific reason for which the petitioners’ application was rejected i.e. on the ground that required documents were not filed. It would be relevant to take note of Paragraph No. 13 of the said affidavit, wherein, it has been mentioned that as per the Notification dated 30.05.2017 issued by the Guwahati Development Department the following documents are required to be submitted with the application for trade license. They are-
(ii) Lease Deed/Rent Agreement/Legal Occupancy(any one)
(iii) PAN/VAT/TIN/GSTN.
It has been mentioned in the said affidavit in opposition that the petitioner No. 2 had failed to fulfill the requirement in terms with the Notification dated 30.05.2017 and it was under such circumstances that the impugned order was passed.
6. At this stage, it may also be relevant herein to take note of that there are various other grounds being taken in the affidavit in opposition supporting the impugned order passed. Taking into consideration the judgment of the Supreme Court in the case of Mohinder Singh Gill Vs. Election Commissioner of India, New Delhi reported in (1978) 1 SCC 405 and more particularly Paragraph No. 8, this Court is of the opinion that such reasons which have been assigned to support the impugned order cannot be taken into consideration by this Court. Paragraph 8 of the said judgment is quoted herein below :-
Point of Law : In the instant order is in relation to the entitlement of the petitioners for issuance of trade license vis-a-vis Section 180 of the GMC Act of 1971.
The appeal upheld that expired leave and license agreements do not confer tenant rights; occupancy post-expiration was considered trespassing.
Initial burden to establish basic allegations made in plaint constituting foundational facts, undoubtedly lies upon plaintiff whether such assertion is couched in affirmative or negative.
A licensee whose license has expired cannot claim protected tenant status under Section 15A of the Bombay Rent Act, and tenants are estopped from questioning the landlord's title during eviction proc....
The distinction between a license and a lease is determined by the intention of the parties, as reflected in the deed, rather than merely the possession of the property.
The judgment emphasizes the distinction between lease and license, the interpretation of 'due process of law' in the context of eviction of a licensee, and the importance of a judicial determination ....
Ownership issues cannot be determined in eviction suits, and certified copies of public documents are admissible in evidence.
Ownership issues cannot be adjudicated in eviction suits; certified copies of public documents are admissible as evidence.
To claim protection under the Bombay Rent Act, a defendant must prove a subsisting license agreement before the cut-off date of 01/02/1973; mere occupation does not confer tenancy rights.
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