Soumendra Kristo Dutt & Anr vs The Kolkata Municipal ...
2021 Latest Caselaw 204 Cal/2

                  IN THE HIGH COURT AT CALCUTTA
                    Constitutional Writ Jurisdiction
                             Original Side

Present :-   Hon'ble Justice Amrita Sinha


                           WPO No. 48 of 2021

                     Soumendra Kristo Dutt & Anr.

                                    Vs.
                The Kolkata Municipal Corporation & Ors.


For the writ petitioners       :-    Mr. Abhrajit Mitra, Sr. Adv.
                                     Mr. Dipendra Nath Chunder, Adv.
                                     Mr. S. Mitra, Adv.

For KMC                        :-    Mr. Barin Banerjee, Adv.
                                     Mrs. Sima Chakraborty, Adv.

For the respondent No. 4       :-    Mr. Jagabandhu Roy, Adv.

Mrs. Manasi Roy, Adv.

Ms. Madhurima Sarkar, Adv.

For the State                  :-    Mrs. Sipra Majumdar, Adv.
                                     Mr. Sougata Mitra, Adv.

Heard on                       :-    15-02-2021

Judgment on                    :-    24-02-2021


Amrita Sinha, J.:-

By consent of the parties the matter is taken up for consideration

at the "court application" stage and is being disposed of in the manner

appearing herein below.

The petitioner prays for revocation/cancellation/withdrawal of the

Certificate of Enlistment issued in favour of the private respondent.

According to the petitioners the said Certificate of Enlistment was

initially issued and subsequently renewed contrary to the guidelines

mentioned in Section 199 of the Kolkata Municipal Corporation Act,

1980.

The petitioner claims to be the owner and landlord of the premises

where the private respondent is carrying on his business. He submits

that it was obligatory for the private respondent to obtain his consent

prior to applying for issuance of the Certificate of Enlistment in his

favour. According to the petitioner, without the consent letter of the

landlord the Certificate of Enlistment could not have been issued in

favour of the private respondent, who is a rank trespasser in the said

premises.

The petitioner contends that the application for issuance of

Certificate of Enlistment could be considered only if the same was made

in accordance with the prescribed format as indicated in the guidelines.

The petitioner relies up an unreported order dated 4th October,

2012 passed by an Hon'ble Division Bench of this Court in AST 216 of

2020 with ASTA 131 of 2012 with MAT 1238 of 2012 with CAN 7441 of

2012 with WP 20159 (W) of 2010 with CPAN 1099 of 2012 wherein the

Court held that for the purpose of having a Certificate of Enlistment it

requires disclosure of different particulars as mentioned in the form. In

absence of such application, following rule, the Municipality had no

scope to consider the same.

The petitioner further relies upon the judgment delivered by this

Court in the matter of All Bengal Rickshaw Union & Ors. -vs- State

of West Bengal & Ors. reported in (2018) 1 CHN 44 wherein the Court

held that the Municipal Commissioner can refuse issuance of a

Certificate of Enlistment if the application for the same is not in order.

The application for renewal has to be considered in terms of Section 199

of the KMC Act, 1980 and in accordance with the terms of statute and

consideration thereof cannot be on any extraneous grounds.

The petitioner also relies upon the judgment delivered by this

Court in the matter of Harvinder Singh -vs- Kolkata Municipal

Corporation & Ors. reported in (2017) 4 CHN 504 in support of his

aforesaid stand.

Reliance has been placed upon the judgment delivered by the

Hon'ble Supreme Court in the matter of P. Kasilingam & Ors. -vs-

P.S.G. College of Technology & Ors. reported in 1995 Supp (2) SCC

348 para 20 wherein the Court held that the Act and the Rules form

part of a composite scheme. Many provisions of the Act can be put into

operation only after relevant provision or form is prescribed in the rules.

In the absence of the rules the Act cannot be enforced.

The learned advocate representing the private respondent

submits, upon instructions, that he is carrying on business in the said

premises for more than thirty years on the basis of the Certificate of

Enlistment issued by the Kolkata Municipal Corporation. It has been

submitted that he is a bona fide tenant in the said premises and is

depositing rent regularly, month by month, before the Rent Controller.

The learned advocate appearing on behalf of the Kolkata

Municipal Corporation submits that the Certificate of Enlistment has

been issued in favour of the private respondent strictly following the

provisions of law. The dispute, if any, in between the parties is

absolutely private and civil in nature. The alleged dispute in between the

parties ought not to stand in the way of the Corporation from either

issuing or renewing a Certificate of Enlistment.

The learned Advocate for the Corporation rely on the decision

delivered by this Court in the matter of Venode Kumar Jalan -vs-

Calcutta Municipal Corporation & Ors. reported in 1987(II) CHN

219 wherein the Court held that any occupier of a property, unless

evicted in due course of law, is entitled to remain in the property by

obtaining necessary rights or easement and if he intends to run a

business by obtaining a trade license, provided he complies with other

formalities as prescribed under the statute. So long as a person is in

possession of the property one cannot raise any objection with regard to

renewal of his license, as a license would not confer any title of the

property.

I have heard the submissions made on behalf of both the parties.

The primary contention of the petitioner is that the Kolkata

Municipal Corporation ought not to have issued and thereafter renewed

the Certificate of Enlistment in favour of the private respondent as the

private respondent is a rank trespasser and the petitioner being the

owner of the said premises did not issue any consent letter permitting

him to run the business from the said premises.

The petitioner relies upon Section 199(1) of the Kolkata Municipal

Corporation Act, 1980 which mentions that every person engaged or

intending to be engaged in any profession, trade or calling as mentioned

in Schedule-IV shall obtain a Certificate of Enlistment upon

presentation of an application together with such application fee, as

specified in the guidelines. According to the petitioner the guidelines are

available in the official website of the Kolkata Municipal Corporation

wherein the procedure for obtaining the trade license has been

mentioned in a simplified manner.

The procedure for obtaining the trade license as available in the

official website of the Kolkata Municipal Corporation mention that in

proof of the place of business an applicant, if a tenant, is required to

produce the rent bill. The official website also mentions that if a

relative/person is granted rent free accommodation by the premises

owner, then the consent letter is to be produced. If the person is granted

rent free accommodation by any bona fide tenant, consent letter along

with current Certificate of Enlistment of the tenant to be produced. If a

sub-tenant, then consent of the premises owner will also be produced

along with documents namely rent bill, current Certificate of Enlistment

of the original tenant.

The petitioner has relied upon a couple of decisions of this Court

in support of his submission that the Corporation is bound to abide by

the guidelines as mentioned in Section 199(1) of the said Act. The

petitioner has also relied upon the judgment of the Hon'ble Supreme

Court in the matter of P. Kasilingam (supra) in support of his

submission that the Act and the Rules form part of a composite scheme.

According to the petitioner the guidelines as mentioned in the Act

are extremely vital for the purpose of making the application for

obtaining the Certificate of Enlistment and also for renewal of the same.

The petitioner however has not been able to produce any guidelines

framed by the Kolkata Municipal Corporation in terms of the aforesaid

Section. Reliance has only been placed on the information that is

available in the portal of the Kolkata Municipal Corporation which

mentions about the consent letter from the owner to be produced at the

time of making application only in certain cases.

The private respondent claims to be a bona fide tenant of the said

premises and claims to deposit rent before the Rent Controller.

According to the procedure prescribed in the website of the Corporation,

a tenant is required to produce only the rent bill at the time of making

application for obtaining the Certificate of Enlistment. There is no

requirement of producing the consent letter of the landlord. The challan

showing deposit of rent in favour of the landlord before the Rent

Controller can be treated as a rent bill for this purpose.

The learned advocate for the private respondent has submitted

that he is carrying on business in the said premises for more than three

decades. The private respondent possesses a valid Certificate of

Enlistment issued in his favour by the Kolkata Municipal Corporation.

The Court in the matter of Venode Kumar Jalan (supra) held that

any occupier of a property, unless evicted in due course of law, is

entitled to remain in the property by obtaining necessary rights of

easement as that of water and light and if he intends to run a business

by obtaining a trade license, provided he complies with other formalities

as prescribed under the statute. Any license would not confer a better

right in the property than the real owner can ask for, and the question

of title to the property cannot be investigated by the Corporation and the

same cannot be the subject matter of enquiry.

The Court in Harvinder Singh (supra) held that if a person wants

to be engaged in any trade as mentioned in the Act he has to obtain a

Certificate of Enlistment and to have the same renewed from time to

time. The Certificate is obtainable upon submission of an application in

a proper form. The section conceptualises enlistment of a trader and not

the particular place from which such trade may be carried out.

In All Bengal Rickshaw Union & Ors. (supra) the Court was of the

opinion that the scope of scrutiny of an application for issuance of a

Certificate of Enlistment or its renewal is very limited. It can be refused

if the application is not in order. If it is in order, grant is the rule. It

further held that consideration thereof cannot be on any extraneous

grounds

In the instant case, the private respondent claims to be running

his business for a considerable period of time from the said premises on

the basis of the Certificate of Enlistment issued by the Kolkata

Municipal Corporation. The petitioner has failed to show any provision

of law which permits the Kolkata Municipal Corporation to

cancel/revoke the Certificate of Enlistment. The guidelines as referred to

in Section 199, relied upon by the petitioner, have also not been placed

in Court.

It appears that Section 199 of the KMC Act, 1980 stood amended

with effect from 17th August, 2017 and by virtue of the said amendment

the provision which required the Municipal Commissioner to make

enquiry within 30 days of the receipt of the application, has been done

away with. The same implies that a Certificate of Enlistment may be

obtained from the Kolkata Municipal Corporation upon presentation of

an application together with application fee.

Section 199(2) mentions that the manner of issuance of

Provisional and Permanent Certificate of Enlistment shall be such as

may be determined by the State Government in the guidelines

mentioned in the sub-Section. No such guidelines have been produced

or referred to by the parties at the time of hearing of the writ petition. In

the absence of a prescribed guideline which mandates production of

consent letter from the owner prior to issuance of the Certificate of

Enlistment, the Kolkata Municipal Corporation will be bound to issue

the Certificate of Enlistment and not reject the same on the ground of

non-production of the same. The Corporation relied upon the challan

showing deposit of rent by the private respondent before the Rent

Controller and issued the Certificate of Enlistment in his favour. In fact,

there was no scope on the part of the Corporation to make any enquiry

prior to the issuance of the Certificate as the Act does not provide for the

same. The action of the Corporation cannot be faulted. Accordingly, the

prayer of the petitioner for cancellation/revocation of the Certificate of

Enlistment issued in favour of the private respondent does not have any

merit. No relief can be granted to the petitioner in the instant case.

WPO 48 of 2021 is dismissed.

No costs.

Urgent certified photocopy of this judgment, if applied for, be

supplied to the parties or their advocates on record expeditiously, on

compliance of usual legal formalities.

(Amrita Sinha, J.)