Mr. D. Mukhopadhyay, Adv.
Mr. Niladri Khanra, Adv.
1. The writ application has been preferred praying for direction upon the
No.306332003052 (Permanent) concerning M/s. Super Guest House run
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No.004251036236 concerning M/s. Super Fried Chicken (The Bhoj) run
Enlistment No.005801036234 concerning M/s. The Bhoj Company
(Permanent) concerning M/s. Super Guest House run from 30A, Mirza
September, 2015 passed by the respondent no.3 and other related reliefs.
2. The petitioner's case is that she is the widow of late Rajib Deb, since
deceased. The petitioner is also the executrix of the last Will and
testament of late Rajib Deb executed on 14th August, 2014. Rajib Deb
breathed his last on 26th June, 2015. Late Rajib Deb, during his life time
Apartment, Baguihati, Kolkata. Late Rajib Deb had also started a
residential hotel business under the name and style of "M/s. Super
Street, Kolkata- 700 016. Late Rajib Deb, for the purpose of running the
certificate of enlistment in requisite form. Late Rajib Deb, during his life-
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premises no. 30A, Mirza Ghalib Street, Kolkata- 700 016. Since 2012,
Sri Monotosh Saha started managing the business of M/s. Super Guest
House in partnership with Rajib Deb. During the early part of 2015,
Rajib Deb fell seriously ill and was hospitalized. Ultimately, he died on
3. The petitioner has filed an application for grant of probate of the last Will
registered as PLA/68/2016. The respondent no.4 is contesting the said
proceeding and the said proceeding is pending before this Hon'ble Court.
4. It is stated by the petitioner that subsequent to the demise of Late Rajib
therefrom without disclosing any information to the petitioner. The
the partnership business. By an order dated 5 th November, 2020, this
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of accounts maintained in the partnership business. On 17th
5. On enquiry the petitioner got the information that:-
iii) The Certificate of Enlistment issued in favour of Oyendrilla
Deb and Manisha Deb shows that the said business of New
Super Guest House has been closed on 30th September
2019.
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iv) Another Certificate of Enlistment being No.009201036232 has
been issued by the KMC in respect of the business of M/s. New
Super Guest House run from Premises No.30A, Mirza Ghalib
Street, Kolkata in favour of Manisha Deb, the respondent No.9.
Such business is shown to have commenced on 1 st October 2019.
In the process, the business of Rajib Deb run under the name
and style of M/s. Super Guest House has been transferred to
M/s. New Super Guest House, its constitution and area
changed.
v) The Certificate of Enlistment in favour of Rajib Deb and Monotosh
Saha concerning M/s. Super Fried Chicken (The Bhoj) issued on
16th May 2012 was closed on 11th September 2015 with the
remark "Closure due to change of Partnership" as per order of
DLO (HQ) dated 10th September, 2015. The aforesaid Certificate of
Enlistment records that the area of business premises was 400
sq. ft.
vi) On 16th September 2015, a fresh Certificate of Enlistment being
No.00681036236 appears to have been issued concerning M/s.
Super Fried Chicken (The Bhoj) run from 30A, Mirza Ghalib
Street, Kolkata. The names of certificate holders are Kaushik
Saha and Oyendrilla Deb. Interestingly, the area in the new
Certificate of Enlistment appears to have been drastically
reduced from 400 square feet to 100 sq. ft.
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vii) Another Certificate of Enlistment No.005801036234 has been
issued in the name of "The Bhoj Company" Restaurant run from
30A, Mirza Ghalib Street, Kolkata. Certificate-holders are
Kingshuk Saha and Alo Saha. The area shown is 975 sq. ft.
viii) Although, in reality, two businesses of M/s. Super Fried Chicken
(The Bhoj) and M/s. Super Guest House are being run from 30A,
Mirza Ghalib Street, Kolkata, yet, to defraud the petitioner and
the municipal authority and to overreach the orders passed
by the Hon'ble High Court in P.L.A. 68 of 2016, multiple
entities have been created and/or new entities have been
introduced to take over the existing business of M/s. Super
Fried Chicken (The Bhoj) and M/s. Super Guest House so as
to shelve the same from the orders passed by the Hon'ble
High Court.
6. In the circumstances, the petitioner, by a letter dated 2 nd December
2020, made a representation to the KMC to restore the certificate of
enlistment in respect of the partnership business of M/s. Super Guest
House in the name of Estate of Rajib Deb and/or to cancel the illegal
issuance of certificate of enlistment. Despite receipt of the
representation, the KMC did not take any step.
7. The petitioner then preferred a writ application being WPO/453/2020.
The writ application was disposed of 29th January, 2021, directing the
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KMC to hear the parties and arrive at a decision in respect of only 50% of
the share of the deceased Rajib Deb.
8. The respondent No.3 heard the matter, considered the written versions of
the parties, and by an order dated 16th August 2021, passed the
following orders:-
"After meticulous examination and thorough scrutiny of the
documents as submitted by both the parties and contentions
as made herein as well as pros and cons of the entire scenario
of the matters, the undersigned is of the view that
➤ The respondent Oyendrilla Deb is the daughter of Rajib
Deb (since deceased) is entitled to get the share of the
deceased father in respect of premises in question i.e. 30A,
Mirza Ghalib Street, Kolkata 700016 and she has been
occupying the premises since long with her respective
share without any interference.
➤ The respondent Oyendrilla Deb has fulfilled all the
conditions so as to get the Certificate of Enlistment from
K.M.C. Authority, as per section 199 of the Kolkata Municipal
Corporation Act, 1980.
➤ The Kolkata Municipal Corporation is not the
appropriate authority to determine the valid share of
the petitioner and the respondent Oyendrilla Deb in
respect of the questioned premises and also the
relationship of the petitioner with the deceased Rajib
Deb.
So in difference to above, undersigned is of the opinion that there is
hardly any scope to allow the prayer and/or representation of the
applicant/petitioner for cancellation of Certificate of Enlistment so
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issued in favour of the respondents. Thus, the hearing is disposed of in
compliance with the solemn order of Hon'ble High Court at Calcutta
dated 29.01.2021 in WPO No.453 of 2020."
9. The petitioner's claim is that as per the terms and conditions of the
partnership business, the petitioner is entitled to get at least 25% share
in case the legal representatives of the deceased partner are having equal
share in a given situation where the probate is not granted by this
Hon'ble Court. In case the probate is granted, the petitioner is entitled to
50% share of profit in the partnership business along with the other
immovable properties left by Rajib Deb as per the his last Will and
testament.
10. The petitioner states and submits that it is apparent on the face of
record that taking advantage of the ill health and demise of Sri Rajib
Deb, the private respondent nos.4 to 9 connived and changed the
nature of ownership of the business behind the back of the
petitioner and thus depriving the petitioner.
11. Admittedly, late Rajib Deb was suffering from ill health prior to his
death on 26th June, 2015. It is to be noted that the Will in this case was
executed on 14th August, 2014 less than a year prior to his death. The
writ application by the petitioner, has been filed as the wife (second) of
the deceased Rajib Deb.
12. The respondent no.4, Oyendrilla Deb is admittedly the daughter of
late Rajib Deb from his first wife.
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13. Affidavits have been exchanged by the parties including the KMC.
14. The respondent/Kolkata Municipal Corporation in its opposition
has stated that the certificate of enlistment no.006281036236, after the
death of Rajib Deb, amended in the name of Monotosh Saha and
Oyendrilla Deb on 30th July, 2015 was carried on by the KMC authorities
on the basis of the documents, being the death certificate of Rajib Deb,
affidavits etc.
15. The specific contention of the respondent no.7, Kingshuk Saha is
that the said writ petition is not maintainable before the original
jurisdiction of the Hon'ble Court inasmuch as the administrator
pendente lite, being the respondent no.10, is resident outside the
jurisdiction of the Hon'ble Court. This Hon'ble Court, by way of an order
dated 9th August, 2018 passed in GA No.2418 of 2016 in connection with
PLA No.68 of 2016 (In the goods of: Rajib Deb) has already appointed the
respondent no.10 (Mr. Subhashis Sengupta, Advocate) over and in
respect of the estate of late Rajib Deb. The administrator pendente lite
has the rights and powers vested of a general administrator. Therefore,
in such circumstances, the alleged cause of action even assumed but not
admitted to be there can only be ventilated by the administrator
pendente lite. Therefore, the petitioner does not have any locus standi to
maintain this writ petition. The petitioner cannot inherit the certificate
of enlistment issued under Section 199 of the Kolkata Municipal
Corporation Act, 1980.
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16. The contention of the respondent no.4, Oyendrilla Deb is that she
is the only daughter and legal heir of Rajib Deb, since deceased, a Hindu
governed by the Dayabagha School of Hindu Law, died on 26 th June,
2015. Rajib Deb had died intestate, leaving behind her, his daughter, as
his only legal heir. Her mother Mitali Deb predeceased the late Rajib Deb
on 15th July, 1996. The applicant, namely Soma Banerjee is wrongly
claiming herself to be the legally married wife of late Rajib Deb which is
not correct and false and frivolous and same has been made with forged
and fabricated marriage certificate.
17. It is further stated that the petitioner herein taking advantage of
late Rajib Deb's vegetative state, got a Will executed to mis-appropriate
all his properties. The probate case is being contested by the said
respondent no.4, his daughter.
18. It also appears from the documents annexed to the opposition that
the petitioner has been married to some other person namely, Utsav Roy
Mishra with whom she had a child named Aparajita Roy Mishra in the
year 1977. In the year 2010, when the petitioner had filled up a
declaration form for election, she mentioned herself as daughter of Tarit
Krishna Banerjee but till date she has failed to produce any documents
pertaining to her dissolution of marriage with the said Utsav Roy Mishra.
It is thus submitted that marriage, if any, with Rajib Deb is not valid.
19. In reply the petitioner has denied the contention of the respondent.
20. Parties have filed their written notes.
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21. The respondent no.7 has relied upon the judgment of the Supreme
Court in Mahamaya Dassi vs. Commissioner of Income Tax, West
Bengal-III, reported in 1978 SCC OnLine Cal 465; para 23, in support of
their contentions that the writ is not maintainable being filed by the
petitioner, as there is an administrator appointed in respect of the Estate
of late Rajib Deb. Para 23 is as follows:-
"23. Therefore, in England it is apparent that apart from the
residuary estate, an administrator is authorized to distribute the
estate left by the deceased; he carries out the execution of the Will
except distributing the residual estate. In India, under Section
247 of the Indian Succession Act, 1925, such an administrator
pendente lite has no power to distribute any part of the estate in
Pruck's Indian Succession Act, 6th Edition, P.506, it has been
noted that the word, "as such" used in Section 211 of the Indian
Succession Act indicated that the executor or administrator was
not be absolute owner of the property. In the sense of being the
beneficial owner thereof. The property only vested for the purpose
of representation and administration. But, under Section 247,
such an administrator as we have noted by virtue of the Section,
has no power to distribute or carry on the distribution. Indeed, in
case of Kali Kumar Chatterji v. Rash Vehari Banerji, ILR 1947 (2)
Cal 195, at page 202, S.R. Das, J., as his Lordship then was,
observed that even with the consent of the parties interested in
the estate, the Court could not make an order for distribution
otherwise forbidden by the statute."
22. The petitioner has countered the said argument by stating
that as the nature and character of the property in dispute has
been changed, they are not subject matter of the probate and as
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such, the administrator has no authority to file the writ
application.
23. From the materials on record it appears that:-
a. Admittedly, the respondent no.4 is the daughter of late Rajib Deb.
b. The probate case in respect of the Will allegedly executed by the
late Rajib Deb wherein the petitioner is named executrix is pending
adjudication.
c. It appears from the documents on record that the partnership
business of the late Rajib Deb closed down before his death and
one of them in which his daughter is a partner was functional
during the lifetime of the said Rajib Deb.
24. As such the right of the petitioner in respect of the properties in
the Will have to be decided in the probate case.
25. As to the petitioner's right/share by way of inheritance in
respect of the properties in this case, the same is to be decided by way
of an independent civil suit, because of the fact that the properties
which are claimed to be in the name of late Rajib Deb are no more in
existence.
26. As there are new businesses being run by the respondents
herein, in the places which are claimed by the petitioner, the only way
to decide such dispute is by way of a civil suit.
27. Regarding the certificate of Certificate of Enlistment, the KMC
has issued them in respect of the businesses in this case, prima facie,
on the basis of valid/relevant documents.
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28. Considering the said facts, the writ petition having no merit
is dismissed.
29. Connected applications, if any, also stands disposed of.
30. Interim order, if any, stands vacated.
31. Urgent certified website copy of this judgment, if applied for, be
supplied expeditiously after complying with all, necessary legal
formalities.
(SHAMPA DUTT (PAUL), J.)
A.Sadhukhan
