Bombay High Court
Dasharath Muktaji Budhwant vs The Municipal Corporation Of Gr. Bombay ... on 22 July, 1993
Equivalent citations: 1994(3)BOMCR88
JUDGMENT B.P. Saraf, J.
1. The writ petitioner Dasharath Muktaji Budhwant is the real brother of one Mrs. Parvatibai Mohan Joshi who died on 4th February, 1987 at Bombay. The said Parvatibai was holder of a municipal licence No. 2124 in respect of stall licence No. 3475 issued by the Bombay Municipal Corporation ("Corporation" hereinafter). The licence related to stall No. 2 situated at Belasis Road No. 3 Bombay and at the time of death of Mrs. Parvatibai, it was for conducting a tailoring shop. The petitioner, being the sole legal heir of Mrs. Parvatibai, applied to the Corporation for transfer of the above licence in his favour. He also filed necessary affidavit, indemnity bond etc. for the purpose. The petitioner, in the meantime, also applied for succession certificate/heirship certificate in the Court of Civil Judge, Senior Division, Thane in respect of the properties left by his sister Mrs. Parvatibai. In the list of the properties the above stall was specifically mentioned. The IInd Joint Civil Judge, Senior Division, Thane, by his order dated 21st January, 1988, granted succession certificate/heirship certificate in respect of the properties of Mrs. Parvatibai in the name of the petitioner. In the said certificate the municipal stall in question was shown at Sr. No. 3.
2. The application of the petitioner for transfer of the stall in his name was rejected by the Sr. Inspector of Licence, `D' ward of the Corporation on the ground that the petitioner was not " a direct legal heir of the deceased licensee". The rejection was communicated to the petitioner vide letter dated 31-8-1988. Aggrieved by the order of rejection the petitioner approached this Court by filing the present writ petition.
3. The petition is opposed by the Corporation. The stand of the Corporation is that the petitioner is not entitled to get the licence transferred in his favour in view of rule 6 of the Transfer Rules or Guidelines sanctioned by the Corporation vide Resolution No. 1106 of 14-12-1982 and called as "The Transfer of Stall Licences Rules 1980". According to the Corporation, under the said rule only son or grandson or either of the surviving spouse or unmarried daughters are entitled to claim the transfer of the licence in their name on the death of a licensee. The petitioner, being the brother of the licensee, does not fall in the above category and, as such, he is not entitled to get the licence transferred in his name.
4. I have considered the above submission. Rule 6 reads as follows :
" In case of the death of licence holder, the transfer of stall licence may be permitted in the name of any one legal heir of the deceased licence holder on production of necessary documents, showing heirship of the applicant. The following heirs of the licence holder will be recognised for the purpose of transferring the stall licence.
i) Son or Grand Son (Son's son)
ii) Either of the surviving spouse.
iii) Unmarried daughters."
From a plain reading of the above rule or guideline, it is clear that it permits transfer of a stall licence in the name of any one legal heir of the deceased licence holder on production of heirship certificate showing heirship of the applicant. The heirs specified in the latter part of the rule are only those who are recognised even without any document showing heirship. That is clear from a perusal of the categories of heirs specified therein. As such, production of any document showing heirship is not required in their case. No other heir is recognised without production of necessary documents showing heirship of the applicant. The intention evidently is to reduce the hardship by recognising in the rule itself certain relations of the deceased who are the natural heirs by not insisting on production of any evidence in support of their claim. This interpretation also seems to be the only plausible and reasonable interpretation. Any other interpretation will make the first part of the rule, which permits transfer of licence to any legal heir on production of necessary document showing heirship, redundant or otiose.
5. Thus the position that emerges on a proper interpretation of rule 6 is that the licence is permitted to be transferred in the name of any one legal heir of the deceased. For that purpose, he has to produce necessary document showing his heirship. However, in case the legal heir falls in any one of the three categories mentioned in the latter part of the rule, production of documents showing heirship is not necessary because there cannot be any dispute about the heirship of any of the relations mentioned in the said rule. In the above view of the matter, it appears that the stand of the Corporation that the licence can be transferred only to the relations mentioned in the latter part of the rule is untenable. It does not stand to reason. I am, therefore, of the clear opinion that a licence can be transferred to any legal heir on production of necessary document showing heirship.
6. The next submission of the Counsel for the Corporation is that no legal heir has a right to claim transfer of a licence of a stall because it is a personal right and not a property. I am not impressed by this submission. A licence is undoubtedly a valuable right which can be transferred subject only to the conditions and restrictions imposed by law governing the grant of licence. So far as the transfer of a licence to the legal heirs of a licensee, in the absence of anything to the contrary, is concerned, on the death of the licensee all rights and interests automatically stand vested in the legal heirs of licensee.
7. The next submission on behalf of the Corporation is that the licence was in force only upto 31-3-1987 and, as such, the petitioner is not entitled to any relief. This argument is equally unimpressive. It is an admitted position that a licence once issued is subject to renewal from year to year on payment of the requisite fees and fulfilment of other conditions, if any. In this case, the licence could not be renewed because the right of the legal heir was not recognised. On the filing of this writ petition, an interim order was passed and on the basis thereof the petitioner is occupying the stall and running his business. The Corporation is, therefore, directed to renew the licence upto the end of the current financial year and thereafter consider the claim for renewal from year to year on the basis of the existing rules and regulations. Needless to say that the petitioner shall pay the requisite fees etc. for all these years.
8. In the light of the foregoing discussion, the decision of the Senior Inspector of the Licence, `D' ward refusing to transfer the licence in the name of the petitioner on the ground that he was not a direct legal heir of the deceased licensee is set aside and quashed. The respondent is directed to transfer the licence in the name of the petitioner and to renew the same till the end of the current financial year and, thereafter, to consider the claim for renewal from year to year in accordance with law.
9. In the result, the writ petition is allowed in the above terms. No order as to costs.
10. The learned Counsel for the Corporation applies for a stay of this judgment. I do not find any justification for granting their prayer. This prayer is, therefore, rejected.