Calcutta High Court (Appellete Side)
Smt. Susmita Basu & Anr vs Kolkata Municipal Corporation & Ors on 17 December, 2013
Author: Asim Kumar Mondal
Bench: Asim Kumar Mondal
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W. P. No. 17019 (W) OF 2003.
THE MATTER OF:
Smt. Susmita Basu & Anr.
...Petitioners.
Vs.
Kolkata Municipal Corporation & Ors
...Opposite Parties.
Mr. Jiban Ratan Chatterjee
Mr. Hiranmoy Bhattacharyya
...for the petitioners.
Mr. Aloke Kumar Ghosh
Mr. Achinta Kumar Banerjee
Ms. Era Ghosh
... for the respondents
Heard On: 08.07.2013, 11.07.2013, 30.08.2013, 04.09.2013, 06.09.2013 & 01.10.2013 Judgement On: 17.12.2013 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.
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.
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.
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.
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 palce 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. In 1961a suit for eviction was filed being T.S. No. 397 of 1961 which appears to be still pending. Admittedly Bajowa after obtaining the said lease on short term basis started business of petroleum dealership under Caltex (India) Limited. There is or was not privity of contract between the corporation and Caltex (India) Limited. It is the further case of the respondents that at no material point of time the land was ever given on lease, rent on otherwise to the petitioners herein or their predecessor-in-interest. It is further stated that mere grant of trade licence does not ipso facto authorised or entitled the petitioner to carry on business at a premises which does not belonged to them. They were not the authorised occupants of the land in question. The claim of the petitioners to renew certificate of enlistment is not tenable either in law or in facts of the case.
It is the further case of the opposite parties that the petitioners have been carrying on the alleged business without the certificate of enlistment for years together at the premises belonged to the Corporation without having any legal right or basis. The very motive of the petitioners is to prolong the continuance of their possession of the said public property. Petitioners in every occasion moved writ applications for getting the licence and in terms of the order of the Hon'ble Court the process of hearing was commended but the concerned year stood expired before finally disposal of the matter. The authorities having due regard to the earlier orders of the Hon'ble Court again called the petitioners to appear at the hearing in connection with grant of certificate of enlistment. The authorised representative of the petitioners duly attended the hearing. The authorised representative duly put his signature as a token of correctness of everything in his knowledge.
In the circumstances it cannot be allowed that there was no reflection of the submission made in writing the matter was considered on the basis of question whether the petitioners acquired any right to continue to run their business from and at the public property. The grievances of the petitioners were fully attended by fixing a date of hearing for consideration of the application for the grant of certificate of enlistment and ultimately an order was passed with reasons which rise to a fresh cause of action. Accordingly the petitioners have filed the instant writ application in this Hon'ble Court. The corporation cannot be divested with the property in question merely because the petitioners trespassed into the premises on certain alleged pleas untenable in law. The purported contentions of the petitioners suggested that they are the owners of the premises in question and the corporation should oblige them with the grant of certificate of enlistment. In the suit being No. T.S. 397 of 1961 which appears to be still pending, Sri Bajowa claimed to be a monthly tenant in his written statement. Thus, it appears that the respondents have rightly rejected the prayer of the petitioners for renewal of certificate of enlistment and preventing the petitioners from carrying on business in the said premises by putting fencing surrounding the said premises. The Municipal authority upon taking recourse to the law of the land considered the matter and passed the appropriate order in respect of purported claim of the petitioners and any allegations to the contrary is denied.
The petitioners filed affidavit-in-opposition denying the averments made in affidavit-in-reply by the opposite parties and heard at length the submissions of learned Counsels appearing on behalf of the parties. I have also perused the photocopies of the annexures placed before me by the learned counsel on behalf of the petitioners.
Mr. Jiban Ratan Chatterjee with Mr. Hiranmoy Bhattacharyya appearing on behalf of the petitioners submits that the petitioners are in possession of the property in question and carrying on the business since after demise of the predecessor-in-interest. The opposite party Kolkata Municipal Corporation authorities have not produced any document showing that the corporation is the owner of the site in question. It is also submitted by Mr. Chatterjee that the Title Suit being No. 397 of 1961 which was filed by the Kolkata Municipal Corporation for eviction of Inder Singh Bajowa has already been dismissed on August 2nd, 2002 and the said fact has already been admitted by the Municipal Authorities in their order dated September 29th, 2003. There was an agreement in between Sree Basu and the Caltex (India) Limited on 1st October, 1975 for the dealership of petroleum products and carrying on business thereto. Mr. Chatterjee submits that admittedly the petitioners filed writ applications time to time and got favourable orders. The Municipal Corporation issued trade licence accordingly in pursuance to the direction of Hon'ble Court. Mr. Chatterjee drawing my attention to the annexure P/18 which is an order passed by Hon'ble Justice Basudev Panigrahi as His Lordship then was submits that there is a clear observation of this Hon'ble Court. "It is always open to the owner to take adequate legal remedy for recovery of the property, if it is illegally or unlawfully occupied by any person. But that shall not prevent a person from carrying on trade on the land. I find from the record that several writ petitions have been filed by the petitioner claiming trade licence from the Kolkata Municipal Corporation and the corporation authorities have been granted licence till today. In this background I hereby direct the corporation to consider the application vide annexure P/18 to the writ petitioners in accordance with the provisions of Section 199 and also for taking into consideration of the previous judgement passed by this court till such representation is disposed of. Present status-quo shall continue."
Mr. Chatterjee further draws my attention to annexure P/28 which is an order passed by this court being No. W.P. 384 (W) of 2003 and submits that there is an interim order granted on January 13th, 2003 and same was extended until further orders of the court. So, the interim order passed by the High court is still subsisting. Under such circumstances the opposite parties cannot deny to issue trade licence in favour of the petitioners. Mr. Chatterjee submits that the petitioners are always ready and willing to comply with all statutory formalities for the purpose of running the business and also for the purpose of granting and/or renewal of the certificate of enlistment with regard to the allegations regarding demand raised for water charges, drainage charges etc. It is further submitted that assuming though not admitting that the writ petitioners are in unlawful possession of the said premises even then the Municipal Authorities cannot evict the writ petitioners without due process of law. The Municipal Authorities by rejecting the prayer of the writ petitioners praying for renewal of certificate of enlistment is treating to create pressure upon the writ petitioners to abandon their claims and/or right over the property in question.
Mr. Aloke Kumar Ghosh, Mrs. Era Ghosh appears on behalf of the opposite parties. Mr. Ghosh submits that at no material point of time the land in question was ever given on lease or with the rent or otherwise to the writ petitioners herein or their predecessor-in-interest. Mr. Ghosh further submitted that mere grant of trade licence does not ipso facto authorise or entitle the writ petitioners to carry on business at a premises which does not belong to them. The suit filed being No. 397 of 1961 appeared to be still pending. There was no privity of contract between the Corporation and Caltex (India) Limited. Mr. Ghosh further submits that it is a very strange situation that the writ petitioners in one hand has been purportedly attempting to continue to remain in unauthorised possession on the other hand writ petitioners demanding of grant of certificate of enlistment and renewal thereto. Mr. Ghosh further submits that the order as passed by this Hon'ble Court (Hon'ble Justice Pranab Kumar Chattopadhyay) was in respect of the matter of consideration to grant certificate of enlistment in respect of the particular year in question which expired prior to passing the order of hearing. Writ petitioners had no legal right to remain in possession of the public property but since petitioners continued to their business from and at the premises in question without having such right therein absolved from the liabilities to pay the requisite charged as provided under the law. Mr. Ghosh further submits that writ petitioners have been making application for the grant of certificate of enlistment by moving before the Hon'ble Court almost in every year. The authorities having due regard to the earlier orders of the Hon'ble Court again called the writ petitioners to appear at the hearing in connection with the grant of certificate of enlistment. Mr. Ghosh referred the provisions under Section 199, 239, 419, 425, 435, 301 and 307 of the Kolkata Municipal Corporation Act, 1980 in support of his argument, that the land in question belonged to Kolkata Municipal Corporation and there is no iota of document to show or establish any right, title and interest whatsoever of the writ petitioners in the said land. Under Such circumstances Municipal authorities cannot allow the writ petitioenrs being the unauthorised occupants of the land to do the business and to response their prayer for issuance of certificate of enlistment. Mr. Ghosh also referred one decision of Hon'ble High Court at Calcutta reported in AIR 1973 Calcutta 506 (The Corporation of Calcutta & Ors. Vs. Dhirendra Nath Sen & Ors.) and 2011 AIR SCW 990 (Jaipal Singh & Ors. Vs. State of Punjab & Ors. ). The present writ application as it appears from the record has a chequered history.
The admitted facts of this case by the parties may be summarised as follows.
It is not denied that the predecessor-in-interest of the present petitioners started business of petroleum products after entering into an agreement for dealership with the then Caltex (India) Limited. It has also admitted position that the Kolkata Municipal Corporation issued trade licence / certificate of enlistment in favour of the said concern namely M/s. Auto Fuel Enterprise at Premises No. 136, Hazra road, Kolkata - 700026. It is the admitted fact that neither the Kolkata Municipal Corporation not the petitioners have produced any documents in support of ownership of the land in question or tenancy of the land in question by Caltex (India) Limited. It is also a fact that Kolkata Municipal Corporation time to time realise / received licence fees including water charges and other relevant charges on demand in pursuance to the order of Hon'ble Court. The fact is that Municipal Authority admitted one Inder Singh Bajowa as lessee till 1958. Municipal Corporation authority filed one suit for eviction being Title Suit No. 397 of 1961 against the said Mr. Bajowa claiming that the said suit is still pending. The municipal authorities have failed to produce any documents in connection with pendency of the said suit on the pleas that the record is not traceable. On the contrary, during the hearing and passing order by the Municipal authority dated 29th September, 2003 it has been recorded that the said suit has been dismissed on August 2nd, 2002. There is nothing on record to file or placed by the municipal authority to show that treating the petitioner as unauthorised occupant any recourse of law has been taken by them against the writ petitioners for eviction. It appears from the submission of learned counsel for the parties as well as from the records that municipal authorities erected fencing in the premises in question with intent to blocking the egress and ingress of the same and force the petitioners out of the property. There is an observation of one of the Co- ordinate Bench of this court in W.P. No. 18230 (W) of 1999 to the effect "even that a person cannot be prevented from carrying on trade on the land unlawfully occupied unless and until he is evicted in due process of law."
Finally on careful perusal of the case record it appears to me from the anenxure P/28 i.e. copy of W.P. No. 384 (W) of 2003 that this Hon'ble Court granted an interim order on January 13th, 2003 and that was extended until further order. There is nothing to show by either of the parties that the said writ application has been finally disposed of.
In view of the facts on record as stated above now let me deal with the points for consideration in the present writ application has raised in the revisional application by the writ petitioners.
Firstly, 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.
Secondly, whether the order dated September 29th, 2003 passed by the hearing officer is valid and legal ?
Thirdly, whether the respondent Municipal Authorities are justified in preventing the writ petitioners from carrying on business from the premises in question or not ?
On careful perusal of the order passed by the municipal authorities dated September 29th, 2003 (Annexure P/33) it appears to me that in the said meeting one Mr. S. Hariprasad, Area Sales Manager, HPCL, one Mr. Surya Prasanna Basu on behalf of Smt. Soma and Susmita Basu and one Mr. J. K. Dutta, Chief Valuer and Surveyer, K.M.C. and one Mr. S. Mullick, Licence Officer Outleting K.M.C. and also one Mr. Pranab Kumar Maity, D.M.C. (Licence) and one Mr. M.J. Iqbal, D.M.C. (EM) of Kolkata Municipal authorities were present. The minutes of the said meeting recorded as follows : -
"According to Sri Hari Prasad, Caltex (India) Limited, in 1975 took the premises on monthly rent from Sri Inder Singh Bajowa. The monthly rent being Rs. 1500/- per month which they are still paying to one Mrs. Harinder Matai of 113/5A, Hazra Road, Kolkata - 700026, as she is the daughter of Inder Singh Bajowa and only the legal heirs. But no papers regarding tenancy was shown. Caltex (now HPCL) granted dealership to one S.P. Basu as a licensee in 1975 itself.
Be it mentioend here that as per public insertion in 'Ajkal' dated May 21st, 2002 it is mentioned that Inder Singh Bajowa has died and his legal heirs are not traceable. This was a public notice as because of a suit (T.S. No. 397 of 1961) for recovery of possession of the K.M.C. property. The suit is stated to be dismissed on August 2nd, 2002. So, it is clear now, that HPCL is illegally and unlawfully occupying the property which belongs to K.M.C. HPCL's title in respect of the property is bad. So, automatically the dealership given to the Auto Fuel Enterprises is bad in the eyes of law. The property belonged to K.M.C. and how can K.M.C. grant licence to a trespasser. So, the application for certificate of enlistment to M/s. Auto Fuel Enterprises at 136, Hazra Road, Kolkata - 700026 is refused by the licence department."
The written submission of Sri Basu and written submission of Sri Hari Prasad are enclosed.
From the order impugned dated September 29th, 2003 it is clear that the Municipal authority has raised the question of right, title and/or interest of the Caltex (India) Limited on the terms in question admittedly no document supporting the claim of lease or rent of the suit premises in question is coming before this Court.
Now let us consider the reliefs as prayed for by the writ petitioners in the present writ application. In the writ application the writ petitioners prays the relief, inter alia, a writ in the nature of Mandamus commending the respondent Municipal authorities to set aside and cancel the order dated September 29th, 2003 passed by the Deputy Municipal Commissioner (Licence) being Annexure P/33 further a writ in the nature of mandamus commending the respondent Municipal authorities to remove the financing illegally erected by the Municipal authorities surrounding the business premises of writ petitioners and to remove the locks put in by the municipal authorities over the locks of the petitioners on the door of office room, store room, staff room as well as on the delivery pipeline of the underground tank storing petrol and diesel. Further a writ in the nature of Mandamus commending the respondents to restore the water supply and sewerage to its original position and finally an order of injunction restraining the respondent municipal authorities from demolishing and/or destroying the business premises and removing the plain machinery, furniture, fixture and other assets."
In view of the prayer for relief sought for by the writ petitioners, it is clear that the writ petitioners are not in physical possession of the business premises. They are practically restrained from doing their business at the premises 136, Hazra Road, Kolkata - 700026 for last few years. The Municipal authorities having denied that they have resisted the writ petitioners by erecting the fencing surrounding the business places.
Mr. Ghosh appearing on behalf of the Municipal Authorities relied upon a decision of Calcutta High court reported in AIR 1973 at page 506 and submits that where the State or the local authorities by executive fiat without the sanction of the law or the authority of any judicial authority interferes with the right or possession of a person, such interference will be prevented by appropriate order under Article 226 of the Constitution of India but where a local authority or State or a statutory body interferes 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.
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. Such nature of disputes should be adjudicated by a competent civil court.
In the above facts and circumstances, any direction upon the municipal authorities to issue or renew the certificate of enlistment in favour of the petitioners or passing an order of injunction restraining the respondent municipal authorities from demolishing and/or destroying the business premises has become infractuous being not legal.
Thus, in view of the aforesaid discussion and findings the present writ application appears not to be maintainable. Hence, the writ application under Article 226 of the Constitution of India is dismissed without costs.
Urgent Photostat Certified Copy of this order if applied for be given to the parties on priority basis.
(Asim Kumar Mondal, J.)