Smt. Rupa Saha & Another vs The State Of West Bengal & Ors
2022 Latest Caselaw 2051 Cal

19.04.2022
 Item No.11
Court No.6.
    S. De
                                M.A.T. 373 of 2022
                             I.A. No. CAN 1 of 2022

                          Smt. Rupa Saha & Another.
                                       Vs
                         The State of West Bengal & Ors.

                    Mr. Billwadal Bhattacharyya,
                    Mr. Saumya Ray,
                                      ...for the appellants.

                    Mr. Alak Kumar Ghosh, Ld. Sr. Adv.
                    Mr. Swapan Kumar Debnath,
                                     ...for the K.M.C.
                    Mr. Amit Halder
                               ...for the respondent no.8.

Mr. Ranjan Kali, Ms. Nabanita Dutta, ...for the respondent no.10.

Mr. Raja Saha, Mr. Biswabrata Basu Mullick, ...for the State.

By consent of the parties, the appeal and the

connected application are taken up together for

hearing.

This appeal is directed against a judgment and

order dated December 10, 2021 whereby W.P.A.14155

of 2021 was disposed of.

One Sumitra Saha, since deceased, was the

proprietress of a saree business which was run under

the name and style of 'Indian Silk Museum'. The

appellants and the private respondents are the son

and three daughters of the said Sumitra Saha.

It appears that one of the children of Sumitra

Saha, namely Jui Bhattacharjee had filed a suit for

partition and declaration in the Alipore Court. The

suit was dismissed. An appeal was carried to a

Division Bench of this Court. A compromise was

arrived at by and between the parties. By an order

dated December 12, 2014 the said appeal being F.A.

64 of 2012 was disposed of in terms of the agreement

dated November 21, 2014 arrived at between the

parties. Thus, the Division Bench passed a decree in

accordance with the terms of settlement.

Sumitra Saha passed away on April 20, 2016.

Thereafter, the present appellants made an application

before the corporation authorities and obtained a

Certificate of Enlistment in their names for the

purpose of carrying on the said saree business. The

private respondents herein, having come to know of

the same, approached this Court by way of a writ

petition being W.P.A. 21017(W) of 2018 for an order

directing the corporation authorities to cancel the

Certificate of Enlistment which was issued in the

names of the appellants herein. The writ petition is

still pending.

The private respondents herein thereafter made

a fresh complaint to the License Department of

Kolkata Municipal Corporation contending that they

were also legal heirs of Sumitra Saha and their names

should also be included in the aforesaid Certificate of

Enlistment.

It appears that the matter was referred to the

Chief Municipal Law Officer of Kolkata Municipal

Corporation by the competent authority for a decision

as to whether the contention of the complainants

therein (private respondents herein) should be

accepted.

The Chief Municipal Law Officer heard all the

concerned parties, perused relevant documents

submitted by them and passed an order on March 11,

2021, the operative portion whereof reads as follows:

"We may agree by taking recourse to the provision enunciated in Section 199 of K.M.C. Act, 1980 to issue Certificate of Enlistment showing names of Nanda Das and Jui Bhattacharjee as Certificate of Enlistment Holder in addition to already existing Certificate of Enlistment Holders."

Pursuant to such order of the Chief Municipal

Law Officer, it appears that the Certificate of

Enlistment was amended and the names of the private

respondents being Nanda Das and Jui Bhattacharjee

were included therein.

Being aggrieved by the order of the Chief

Municipal Law Officer, the present appellants

approached the learned Single Judge challenging the

said order and actions taken pursuant thereto. The

learned Single Judge held that issuance of the

Certificate of Enlistment in the names of all the

surviving heirs of the deceased proprietress of 'Indian

Silk Museum' is not causing any prejudice to the

business of the writ petitioners and such license is not

a document of title or ownership of the business. The

learned Single Judge further held that incorporation of

the names of the other heirs of the deceased

proprietress in the Certificate of Enlistment, shall

abide by the decision of the Civil Court. Parties shall

not claim any equity on the basis of the same. The

Certificate of Enlistment issued by the Corporation

shall not be used to claim possession or title by either

of the parties. The business of the writ petitioners

(appellants before us) shall not be disturbed in any

way. With those observations the learned Single

Judge disposed of the writ petition.

Being aggrieved, the writ petitioners are before

us by way of this appeal.

We have heard learned counsel for the parties at

length including Mr. Ghosh, learned senior counsel

appearing for the Kolkata Municipal Corporation.

We are of the view that ideally, before the

Certificate of Enlistment was amended by

incorporating the names of the other legal heirs of the

original proprietress of the business, the writ

petitioners should have been heard once by the

competent authority who appears to be the Municipal

Commissioner. However, we have ourselves gone into

the material facts of the case. We find from the decree

that was passed by a Co-ordinate Bench of this Court

referred to hereinabove, that the same provided that

the writ petitioners and the private respondents shall

jointly run the business of 'Indian Silk Museum'. We

also find that an affidavit was affirmed by the writ

petitioners before the learned Judicial Magistrate at

Alipore wherein it was stated that the writ petitioners,

namely Ms. Rupa Saha and Sri Debasish Saha are the

only legal heirs of Sumitra Saha who was the sole

proprietress of the business in question. Let a copy of

the said affidavit be kept with the records. This

affidavit was submitted to the licensing authorities for

obtaining a Certificate of Enlistment exclusively in the

names of Rupa Saha and Debasish Saha. This

document was suppressed by the writ petitioners

before the Learned Single Judge as also before us. It

has been brought to light by Learned Advocate for the

private respondents. In our opinion, this was sharp

practice amounting to fraud. The writ petitioners have

not approached this Court with clean hands and do

not deserve any relief from a Court of equity. In any

event, we do not find that any prejudice has been

caused to the writ petitioners by incorporation of the

names of the other admitted legal heirs of the original

proprietress in the Certificate of Enlistment. The

learned Single Judge has given sufficient protection to

the writ petitioners as we have recorded above. We do

not think that in the facts and circumstances of the

case, we should remand the matter back to the

Municipal Commissioner. The order passed by the

Chief Municipal Law Officer and the action taken on

the basis thereof appear to be just and fair.

It was urged on behalf of the appellants that

there is a subsisting order of injunction passed by the

Civil Court restraining the private respondents herein

from interfering with the peaceful running of the

business of "Indian Silk Museum". We do not see how

such order could stand in the way of amendment of

the Certificate of Enlistment. The learned Single

Judge has already clarified that the business which is

being run by the writ petitioners will in no way be

interfered with by the private respondents herein.

On an overall consideration of the facts and

circumstances of the case, we are of the view that no

interference is warranted with the order of the learned

Single Judge.

M.A.T. 373 of 2022 is, accordingly, dismissed

along with the application being I.A. No. CAN/1/2022.

Urgent certified photostat copy of this order, if

applied for, shall be given to the parties as

expeditiously as possible on compliance with all the

necessary formalities.

(Kausik Chanda, J.) (Arijit Banerjee, J.)