Calcutta High Court
Tripuresh Mukherjee vs State Of West Bengal & Ors on 15 March, 2011
Author: Indira Banerjee
Bench: Indira Banerjee, Subrata Mukherjee
WP NO. 271 of 2011
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
TRIPURESH MUKHERJEE
Versus
STATE OF WEST BENGAL & ORS
BEFORE:
THE HON'BLE JUSTICE
INDIRA BANERJEE
DATED, THE 15th MARCH, 2011 Appearance:
Mr. Barin Banerjee, Adv.
Mr. Subrata Mukherjee, Adv.
Md. Shafiul Alam. Adv.
Mr. Tapan Banerjee, Adv.
The Court: The entire disputes relate to the running of a sweetmeat shop under
the name and style of S.N. Mukherjee Food Corner at premises No.50, S. N. Banerjee
Road, Police Station - Taltala, Kolkata - 700014.
The petitioner claims that his predecessors-in-interest, as tenants, carried on the
business of running a sawmill on a part of the said premises.
After the proforma respondents became owners of the premises, they decided to
develop the said premises by demolition of existing structures including the sawmill of the petitioner.
The petitioner claims to have instituted Title Suit No.842 of 2002 in the City Civil Court at Kolkata against the predecessor-in-interest of the proforma respondents. On December 16, 2004 the suit was decreed of in terms of the Solenama(settlement) filed in Court. The terms and conditions agreed upon by the petitioner and the predecessor-in- interest of the private respondents, inter alia, provided as follows:
"(c) The plaintiff's now occupying a total carpet area, measuring about 3300.9 sq. Ft. be the same a little more or less by actual measurement under the present tenancy shall be allotted lesser space in the newly constructed building. That out of the total covered ground floor sanctioned area of 2657.5 sq.ft. including the area shown as `Garage' existing tenants (1) "B" Lal Singh & Subedar Singh son of Tasil Singh & Son of Late Surdveo Singh of Shop No. 109, (2) "C", Banshi Badan, Santi Ranjan & Kanti Ranjan Sadhukhan, son of Late Tustu Charan Sadukhan of Shop No. 113, (3) "D" Anurupa Auddy, wife of Late Jugal Kishore 2 Auddya of Shop No. 108. (4) "E" Sabir Hossain & Murtaja Hossain, son of Late Gulam Rosul, Shop No. 112 and (5) "F" Sabir Hossain & Murtaja Hossain, son of Late Gulam Rosul of wall shop no. 4 shall be allotted as gift to each of the tenants of areas more or less measuring 65 sq. ft. (Marked "B"), 323 swq. Ft.
(Marked "C") 85 sq. ft. (Marked "D") and 39 swq. Ft. (Marked "E") with wall shop of 11 sq. ft. (Marked "F") respectively totalling area of 523 sq. ft. The remaining 2134.5 sq. ft. of constructed Ground floor space 208.0 sq. Ft. more or less shall be utilised for stair case, lift etc. The plaintiffs shall have the balance constructed area of 1926.5 sq. Ft. be a more or less against the existing carpet area of about 3309 sq. ft. including the inside covered space showing garages marked as "A" of sketch, in sanctioned plan on the ground floor. As such to compensate the plaintiffs for losses accrued due to lesser space, the defendants No. 1, 2, 3 and 4 have agreed to determine and or terminate the plaintiffs' tenancy right relating to the suit property ad to transfer the constructed covered area measuring about 1926.5 sq. ft. more or less on the ground floor together with Mezzanine area measuring about 467 sq. ft. as sanctioned by the Kolkata Municipal Corporation ad further together with proportionate share in land comprised in the dsaid premiseds no. 50 S.N. Banerjee Road, Kolkata 700 014 described in the schedule "A" by way of absolute Gift. This terms as such shall be constructed as the lawful agreement by and between the plaintiffs and the defendants o.1, 2, 3 and 4 for Gift of 1926.5 sq. Ft. covered area with Bath privy in ground floor and the mezzanine area measuring about 467 sq. ft. completed and together with proportionate share in land comprised in the dsaid premises No. 50 S.N.Banerjee Road, Kolkata 700 014 and also together with common right in other common amenities benefits rights of user privileges and easements including the right of entry to the said mezzanine area through the main entrance and landing area of the newly constructed building, more fully described in the schedule hereunder written and shown in red, in the annexed plan of marked "A" with bath, privy, completed with door, widows along with collapsible gate to all the gates and all the entries of ground floor. The plaintiffs will be absolute owners of the property in question, as Marked "A" schedule areas.
(d) The Defendants No. 1, 2,3 and 4 shall complete the construction of the plaintiffs portion in the new building within 12 (twelve) months of starting of the construction work at the said premises and the defendants no. 1, 2, 3 and 4 shall hand over possession of the plaintiffs portion as Schedule "A" hereunder soon after completion of said portion within the period stipulated above by executing and registering a Deed of Gift by the Defendants o. 1, 2, 3 and 4 in favour of the said Plaintiffs. The Plaintiffs shall pay Municipal Tax, Commercial surcharge and other taxes to concerned authorities and maintenance in respect of their space in ownership to the owners according to law on and from the date of registration after Building completion certificate. Accordingly, for enjoying water (filter ) drainage proportionately but excluding of other maintenance charges, such as lift, lighting arrangement etc."
3In terms of the settlement, the defendant in the suit being the predecessor-in- interest of the private respondents agreed to gift a portion of the newly constructed building and particularly the ground floor to the plaintiffs. The settlement, inter alia, provided as follows:
(i) "That the new premises as handed over by the Defendant Nos. 1, 2, 3 and 4 to the plaintiffs the plaintiffs shall carry on their preset lawful business as well as any other kinds of lawful business together with association hazards i.e. sound or machineres etc. some portion of the newly constructed building shall also be used for commercial exploits. The inhabitants of the residential areas shall not be entitled to object to any happening associated with the commercial activities in the area earmarked for commercial purposes, so log no immoral business was carried on therein."
It is stated that on or about 6th September, 2009 the proforma respondent delivered possession of the areas earmarked for the petitioner and the legal heirs of his deceased brother.
Disputes have now arisen with regard to the running of a sweetmeat shop under the name and style of S.N. Mukherjee Food Corner. It appears that the sweetmeat shop has been started on or about April 12, 2010. The private respondents objected, and some of the owners approached this Court, whereupon a Single Bench directed the Municipal Commissioner or any competent officer authorised by him to dispose of the representation of the private respondents by passing a reasoned order.
In pursuance of the aforesaid order, the Joint Municipal Commissioner (General & Development) passed an order, inter alia, observing as follows:-
"Observation of KMC:- Officials preset in the hearing on the part of License Dept. were of the view that though necessary application was submitted by Mr. Mukherjee, but no action had been taken by License Dept. to issue Certificate of Enlistment because of mass complaint coupled with observation of Health Dept. KMC that stack of wooden logs heaped near the cooking space of Mr. Mukherjee might cause devastating fire at any moment. Executive Health Officer, Borough- VI also wrote a letter to Director, West Bengal Fire and Emergency Services on 21.5.2010 to that effect. Officials of Health Dept., KMC present in the hearing also admitted the same. Law Dept. was represented by Asst. Manager, Law, who contended that since the business attracted the provision of section 421 of KMC Act, 1980 and since no permission was given by KMC in that regard, so running of the business had no legal force".
The petitioner has no licence to run up sweetmeat shop.
4Section 421 of the KMC Act expressly provides that no person shall, without written permission of the Municipal Commissioner or otherwise than in conformity with the conditions, if any, of such permission, use, or permit to be used, any premises for the purpose of establishing or running any eating house, tea shop, coffee house, café, snack shop, sweet meat shop etc. There can be no doubt that the petitioner had no right to commence the business of running a sweetmeat shop without permission of the Municipal Commissioner as required under Section 421 of the Municipal Corporation Act, 1980. Furthermore, before grant of any licence, the Corporation Authorities are duty bound to ensure that requisite steps and/or safety measures to prevent fire and other hazards are taken.
In the instant case, officials were of the view that the stacks of wooden logs heaped near the cooking place of the petitioner might cause devastating fire at any time. Factual disputes as to whether the cooking place of the petitioner is safe or not, cannot be decided by the Writ Court. It is reiterated, at the cost of repetition, that no person can run sweetmeat shop without requisite permission under Section 421. This Court cannot pass any mandatory order directing the municipal corporation to issue licence and more so, in view of the observations in the report of the Joint Municipal Commissioner (General and Development).
It, however, appears that the Joint Municipal Commissioner has proceeded on the basis that the premises comprises a multi flat residential building. This finding is perhaps not correct, as is evident from the photocopy of the building plan submitted. It appears that certain rooms were earmarked as shops. Moreover, the consent decree of the City Civil Court in Title Suit No.842 of 2002 also shows that the building to be constructed was to be partly residential and partly commercial.
Mr. Mukherjee appearing on behalf of the private respondents submits that Mr. Mukherjee's clients were not party to the aforesaid suit. If the predecessors in interest of the private respondents submitted to the decree, the decree may be binding. However, it is really for the Kolkata Municipal Corporation to look into the issue of whether the building was meant to be partly commercial and partly residential as contended by the petitioner. Obviously, if the building was sanctioned for commercial purposes as well, as contended by the petitioner, the petitioner cannot be prevented from carrying on 5 legitimate commercial activities in accordance with law. There can be no question of carrying on any activity in disregard of law, in disregard of fire safety norms and without licence.
There can be no question of any decree by consent or otherwise which is contrary to any express provision of law. Requirement of permission to run a sweetmeat shop, should such sweetmeat shop be run, is an implied term of the decree that may have been passed by the City Civil Court.
On the basis of the report impugned, this Court cannot even direct the Kolkata Municipal Corporation to consider the grant of licence or trade licence. However, if the petitioner applies for a fresh licence after removing the shortcomings/fire hazards, the application may be considered in accordance with law. If the application for licence is declined, it would be incumbent upon the concerned authority to disclose the reasons for refusal of the application for licence.
The writ application is disposed of with the above directions and observations. Urgent certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(INDIRA BANERJEE, J.) C. Sinha & K.Banerjee Assistant Registrars (C.R.)