Khairunnessa Alias Khairunnisa vs The State Of West Bengal And Ors
2022 Latest Caselaw 377 Cal/2

OD- 2
                                APO/47/2021
                                    With
                                WPO/367/2019

                               IA No.GA/1/2021

                      IN THE HIGH COURT AT CALCUTTA
                          Civil Appellate Jurisdiction
                                ORIGINAL SIDE

                    KHAIRUNNESSA ALIAS KHAIRUNNISA
                                  -VS-
                   THE STATE OF WEST BENGAL AND ORS.

  BEFORE:
  The Hon'ble JUSTICE ARIJIT BANERJEE

  The Hon'ble JUSTICE KAUSIK CHANDA
  Date :8th February, 2022.
                                                                       Appearance:
                                                          Mr. Ataur Rahman, Adv.
                                                                 .for the appellant

                                                        Mr. Debjit Mukherjee, Adv.
                                                      Ms. Susmita Chatterjee, Adv.
                                                                     ..for the State

                                                          Mr. Alok Kr. Ghosh, Adv.
                                                     Mr. Gopal Chandra Das, Adv.
                                                    Mr. Shubhrangshu Panda, Adv.
                                                                         ..for KMC

                                                         Mr. Debasish Kundu, Adv.
                                                      Mr. Souma Subhra Ray, Adv.
                                                       ..for respondent nos.9 to 12

The Court : This is an appeal against an order dated February 4, 2021

whereby WPO/367/2019 along with the connected application was

dismissed.

The writ petitioner approached the learned Single Judge with the

grievance that although she had surrendered her trade licence long back, the

Kolkata Municipal Corporation (in short, KMC) has issued a fresh trade

licence/certificate of enlistment in favour of one of her erstwhile workers in

respect of the premises from where she used to earlier carry on restaurant

business. Her case before the learned Judge was that the concerned

erstwhile worker forcibly entered into possession of the premises in question

after breaking the padlock put by the writ petitioner and is carrying on

restaurant business therefrom with his associates on the strength of the

certificate of enlistment that KMC issued in favour of the said erstwhile

worker. Her contention is that she is the legal tenant in respect of the

concerned premises and the persons who are carrying on restaurant

business from the concerned premises have no right to occupy such

premises.

The learned Judge observed that the dispute between the writ petitioner

and the private respondents is civil in nature inasmuch as the disputes

relate to possession/occupation of the concerned premises. The learned

Judge granted liberty to the writ petitioner to approach the appropriate

forum for necessary relief and dismissed the writ petition.

Before us, the writ petitioner/appellant argued that even the fire licence

has been granted in favour of the private respondents and they are merrily

carrying on with the restaurant business when they do not have even an iota

of right to be in occupation of the concerned premises.

Learned advocate for the private respondents submits that the appellant

has already instituted a suit against the private respondents for declaration

and injunction being TS/18/2022 in the City Civil Court at Calcutta. The

private respondents, who are defendants in the suit, are taking steps to

contest the suit.

We had called for a report in the form of an affidavit from the KMC as to

on what basis KMC issued the certificate of enlistment in favour of the

private respondents. Such report has been filed. From the report, we find

that all necessary documents were submitted by the private respondents to

the KMC in support of the application for certificate of enlistment. Even the

arrear licence fees in respect of the licence that had been granted in favour

of the appellant, were paid by them. It is trite law that while processing or

granting an application for trade licence, the KMC is not required to enquire

into whether or not the applicant has any right, title or interest in respect of

the premises wherefrom the applicant proposes to carry on business. In

support of this proposition, learned counsel for KMC refers to a Division

Bench judgment of this Court in the case of Abdul Rashid v. Calcutta

Municipal Corporation and ors. reported in AIR 1991 Calcutta 234.

We find no infirmity in the order impugned before us. We are not for a

moment suggesting that the private respondents have legal right, title or

interest in respect of the concerned premises. We have not gone into that

issue at all as that is an issue which is to be agitated before the appropriate

civil court.

As noted above, the appellant has already initiated a civil suit against the

private respondents. Let such suit be carried to its logical conclusion.

Nothing in this order shall have any bearing on the hearing of the said suit.

The appeal and the connected application are accordingly disposed of.

(ARIJIT BANERJEE, J.)

(KAUSIK CHANDA, J.)

bp.