Calcutta High Court (Appellete Side)
Asok Debnath vs The Principal Director on 31 January, 2023
W.P.A. 34388 of 2014
29. 31.01.2023
bd. Ct.15
Asok Debnath
-vs-
The Principal Director, Defence Estate, Eastern
Command (MOD) & Ors.
Mr. Dhananjay Banerjee
Ms. Oindrila Ghosh
... for the petitioner.
Mr. Indrajit Dasgupta
Ms. Puspita Bhowmick
Ms. Rima Biswas
... for the respondents.
The writ petition is preferred, inter alia,
challenging the order dated 17th July, 2014 issued
by the Chief Executive Officer, Cantonment Board,
Barrackpore, whereby the application of the
petitioner for issuance of trade licence was spurned
on the score that No objection certificate from the
house owner/tax payer was not submitted along
with application form for issuance of trade licence.
It has also been contended on behalf of the
petitioner that petitioner's mother was having trade
licence and who has died which led the petitioner to
make an application for issuance of trade licence
afresh. It has also been submitted on behalf of the
petitioner that on the ground of failure by the
applicant to submit No objection certificate from
house owner issuance of trade licence cannot be
denied by the authority concerned denying right of
the petitioner to run lawful business in the
premises so long the applicant is having valid
tenancy agreement. In support of such contention
reliance has been placed on the judgement of the
Apex Court reported in (2016) 14 SCC 263
(Sudhakaran -vs- Corporation of Trivandrum and
Anr.). Paragraph 9 of the said judgment runs infra:
"After due consideration of the issues
involved, we find merit in the
submission made on behalf of the
appellant. The statutory provision
already quoted above shows that the
requirement of the consent of the
landlord is applicable only when a
person intends to obtain a licence for
the first time. Renewal or subsequent
application for obtaining licence on
expiry of the period of the existing
licence, during the currency of the
tenancy, is not applicable for
obtaining licence. Even in the case of
application for obtaining licence for
the first time, the tenant cannot be
deprived of running lawful business
merely because the landlord withheld
the consent. Valid tenancy itself has
implied authority of the landlord for
legitimate use of the premises by the
tenant."
Though Mr. Dasgupta, learned advocate,
representing the Cantonment Board, Barrackpore,
has made an attempt to defend the decision of the
Chief Executive Officer in denying claim of the
petitioner to issue trade licence but in consideration
of the law laid down by the Apex Court in the case
of Sudhakaran (supra) this Court finds substance
in the contention made on behalf of the petitioner.
On perusal of the impugned order dated 17th
July, 2014 issued by the Chief Executive Officer it
appears that on the sole ground of non-supply of
No-objection certificate from the house owner claim
of the petitioner for issuing trade licence that too
after the death of petitioner's mother who was
having valid trade licence, can not be denied.
In view of the aforesaid scenario and in
consideration of the law laid down by the Hon'ble
Supreme Court in the case of Sudhakaran (supra)
the impugned order dated 17th July, 2014 issued by
the Chief Executive Officer stands set aside.
This Court directs the Chief Executive Officer
being the respondent no.3 to issue trade licence
infavour of the petitioner, if it is found that
petitioner is enjoying the premises in question
based on valid tenancy agreement. Before issuance
of trade licence in favour of the petitioner the
respondent no. 3 shall be at liberty to ask for
tenancy agreement from the petitioner. However,
the process of issuing trade licence in favour of the
petitioner shall be concluded within a period of
eight weeks from the date of communication of this
order.
With the aforesaid direction, the writ petition
stands disposed of. However, there shall be no order
as to costs.
Urgent photostat certified copy of the order, if
applied for, be given to the parties, upon usual
undertakings.
(Saugata Bhattacharyya, J.)
