Rohtas Munda vs Ranchi Municipal Corporation
2021 Latest Caselaw 4593 Jhar

                                                     1



                   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                 W.P.(C) No. 2599 of 2021
            Rohtas Munda                                               ..... Petitioner
                                          Versus
            1. Ranchi Municipal Corporation, through the Municipal Commissioner, Ranchi
            2. The Deputy Municipal Commissioner, Ranchi               ..... Respondents
                                           -----

CORAM HON'BLE MR. JUSTICE RAJESH SHANKAR

-----

            For the Petitioner:       Mr. Rajendra Krishna, Advocate
            For the Respondents:      Mr. Prashant Kumar Singh, Advocate
            For the Intervener        Mr. A. K. Sinha, Sr. Adv.
            (I.A. No. 3577/2021)      Mr. Prashant Pallav, Advocate
            For the Intervener        Mr. Rahul Kumar, Advocate
            (I.A. No. 3592/2021)
                                            -----


04/03.12.2021      The case is taken up through Video Conferencing.

2. Learned counsel for the petitioner has confined the prayers made in the

present writ petition only to the extent of quashing the order dated 26.06.2021

(Annexure-4 to the writ petition) passed by the respondent No.2 whereby the

direction has been given to seal the marriage hall/banquet hall known as

'Celebration' alleging that the same is being used without obtaining licence

under Jharkhand Urban Area Dharmashala, Marriage Hall/Banquet Hall, Lodge

and Hostel Construction and Licence Rules, 2013 (hereinafter referred to as 'the

Rules, 2013') as well as in violation of the Jharkhand Municipal Corporation Act,

2011 (hereinafter referred to as 'the Act, 2011').

3. The factual background of the case as emerging from different pleadings

of the parties is that the petitioner along with six others including the

intervener-Anand Kumar entered into a partnership agreement dated

24.02.2012 and constituted a partnership firm in the name and style of 'M/s

Samridhi Lifestyle' to build and operate a banquet hall under the brand name of

'Celebration'. The petitioner and his two brothers, namely, Sardar Veer Singh

Munda and Mohan Munda were the owners of the landed property located at

Village-Hatma, being M.S Plot Nos. 707(Part), 710(Part), 713, 714, 715(Part),

717 under Khata Nos. 99, 192 & 195 whereas the cost of the development and

construction over the said land was to be borne by the intervener-Anand Kumar

and three others, namely, Rakesh Prasad, Cactus Milli Sinku and Chandra

Shekhar Patra. The partnership firm was reconstituted vide agreement dated

01.04.2014 as Cactus Milly and Chandra Shekhar Patra chose to retire and Smt.

Kumkum Srivastava joined the business as a new partner. Further, one of the

partners, namely, Rakesh Prasad died on 06.09.2020 due to Covid-19 and

thereafter his wife (intervener-Sangita Prasad) claimed to be inducted as a

partner in place of her demised husband being entitled in terms of Clause 16 of

the said partnership agreement. However, other partners did not act in terms

with the aforesaid clause of partnership agreement and no share or profit was

transferred to the intervener-Sangita Prasad. One partner, namely, Kumkum

Srivastava relinquished her share in favour of the intervener-Anand Kumar after

receiving valuable consideration. It was provided in the partnership agreement

that the petitioner and his two brothers being three partners of the said

agreement would make the land admeasuring approximately two acres available

to the firm for development of banquet hall/marriage hall at the site and the

cost of construction development would be borne by other four partners. The

said land would remain the sole property of the firm for the specified business.

4. Learned counsel for the petitioner submits that by reasons of

understanding made in the said agreement, the tribal land has in fact been

transferred to the partnership firm and thus the same is against the provisions

of the Chota Nagpur Tenancy Act, 1908 (hereinafter referred to as 'the Act,

1908') and therefore the entire partnership deed/agreement being in

contravention of law, is a nullity. Thus, the three partners i.e. the petitioner and

his two brothers, out of existing five partners, decided to dissolve the

partnership agreement with a view that all the partners would get their

respective shares in accordance with law. It is further submitted that there is no

ill-will on the part of the petitioner and his two brothers while dissolving the

partnership agreement/deed as they have sufficiently taken note of the interest

of all the partners in terms with the partnership deed. The petitioner has already

been given municipal trade licence by the respondent No.2 and as such the

respondent-Corporation cannot seal the premises. It can merely issue direction

that the said premises cannot be used for the purposes coming under the

purview of the Rules, 2013. The sealing of the premises in question by the

Ranchi Municipal Corporation has deprived the petitioner of carrying out any

other trade which is not regulated by the Rules, 2013. Pursuant to the order

dated 17.01.2018 passed by this Court in W.P.(C) No. 7274 of 2017 and as per

further direction of the respondent No.1 issued vide order dated 20.07.2018, the

updated building plan submitted by the petitioner on 01.01.2019 has already

been sanctioned on 12.02.2019 and as such it is upon the respondent

authorities to issue licence under the Rules, 2013.

5. I.A. No. 3577 of 2021 has been filed by the intervener-Anand Kumar

whereas I.A. No. 3592 of 2021 has been filed by the intervener-Sangita Devi

challenging the locus of the petitioner in filing the present writ petition.

6. The contention of the interveners-applicants as put forth by Mr. Anil

Kumar Sinha, learned Sr. Advocate and Mr. Prashant Pallav, Advocate, that the

petitioner has approached this Court in an individual capacity with specific

pleading that partnership has got dissolved and has tried to project his case on

the basis of the fact that M/s Samridhi Lifestyle is only being run by the

petitioner and his two brothers. In fact, the partnership firm has not been

dissolved and the right of the partners continues. It is further submitted that the

present writ petition is not maintainable as the petitioner cannot file the present

case in his individual capacity. It is further submitted that recognizing the right

of the petitioner in his individual capacity will dilute the right of other partners

which will be against the interest of the partnership firm. The petitioner and his

two brothers being the owners of the land in question have mischievously tried

to divert the issue on the ground of the land coming under the provisions of the

Act, 1908. As per Clause 3 of the said Partnership Deed, duration of the

partnership business is for minimum period of 20 (twenty) years, however, the

partners are at liberty to retire from co-partnership, subject to giving one

month's notice to the remaining partners. The partnership deed cannot be said

to be a mere internal arrangement. The terms of the partnership

deed(s) expressly mention that by virtue of the said deed, a new partnership,

namely, M/s Samridhi Lifestyle was constituted/re-constituted. The intervener-

Anand Kumar along with the other three partners made huge investments for

construction of the said banquet hall/marriage hall over the land made available

by the petitioner and his two brothers, which was to be run on the basis of

a profit loss sharing model. It is further submitted that the trade license has

been obtained behind the back of the interveners by making false

representation before the Ranchi Municipal Corporation. On perusal of the said

license, it would appear that the name of the firm i.e. M/s Samridhi Lifestyle has

not been mentioned, rather the name of the entity 'Celebration' has been shown

which is a unit of M/s Samridhi Lifestyle. The intervener-Anand Kumar raised an

objection vide letter dated 26.07.2021 before the respondent No.1 opposing the

claim of the petitioner for getting trade licence in his name to run the

banquet/marriage hall in the name of 'Celebration'. Moreover, the trade licence

issued on 15.02.2021 has been cancelled by the competent authority on

14.07.2021. The constitution of the partnership firm and running business of the

banquet hall/marriage hall within the framework of the partnership deed cannot

be said to be in contravention of the statutory provisions. The principle of

estoppel bars the petitioner from denying the right of the interveners and other

partners. It is further submitted that the principle of equity tilts in favour of the

interveners and the petitioner cannot be allowed to have unlawful enrichment

and deprive the interveners of enjoying a right under a valid legal document i.e.

a partnership deed. The petitioner's contention that he along with his two

brothers have decided to dissolve the partnership, cannot survive in the eyes of

law as the Partnership Act, 1932 is a self-contained code for the purpose of

determining the rights and liabilities of the parties. It is a settled principle of law

that an act has to be done in the manner prescribed or it ought not to have

been done at all. It is also submitted that the partnership deeds dated 24th

of February, 2012 and 1st of April, 2014 are not the 'Partnerships at Will' and

therefore the same cannot be dissolved unilaterally.

7. Learned counsel for the respondent-Ranchi Municipal Corporation submits

that the present writ petition is not maintainable in view of availability of

alternative/efficacious/statutory remedy to the petitioner under Rule 14 of the

Rules, 2013. The petitioner was issued notice No. 2694 dated 03.12.2017 by the

office of the Ranchi Municipal Corporation directing him that the licence for

running the marriage hall/banquet hall in the name of 'Celebration' would be

cancelled, unless he produced the sanctioned building plan of the said banquet

hall and made provision for decentralized composting which was a prerequisite

mandated under the Rules, 2013. The petitioner preferred a writ petition being

W.P.(C) No. 7274 of 2017 before this Court which was disposed of vide order

dated 17.01.2018 directing the petitioner to submit an updated building plan of

the marriage hall before the competent authority of the Ranchi Municipal

Corporation with further direction to the Corporation to take appropriate

decision with regard to sanction of the building plan. The petitioner failed to

present the application with updated building plan as directed by this Court vide

order dated 17.01.2018 and hence a show cause notice was issued to the

petitioner vide letter No. 518 dated 08.03.2018 asking him as to why the

banquet hall, namely, 'Celebration' be not declared as an illegal construction and

be not proceeded with in accordance with law. Vide letter No. 917 dated

05.04.2018, the petitioner was again asked to submit the building plan

application for the said banquet hall, namely 'Celebration' as per the direction of

this Court and on failure of the petitioner in submitting the same, an order

dated 20.07.2018 was passed by the respondent No.1 whereby the banquet hall

'Celebration' was restrained from taking any booking for the same. The said

banquet hall was also directed to pay a fine of Rs.5,000/- for each booking done

by it after 28.02.2018 i.e. the cut-off date fixed after calculating six weeks' time

from the order dated 17.01.2018 of this Court. Subsequent to the order dated

20.07.2018 issued by the respondent No.1, a fine of Rs.1,65,000/- was paid by

the petitioner and he made an application on 01.01.2019 for sanction of the

building plan of the said banquet hall which was sanctioned on 12.02.2019. The

building plan application was made for construction of a new building over M.S

Plot Nos. 707(Part), 710(Part), 713, 714 & 715(Part), 717, Khata Nos. 99, 192 &

195, Village-Hatma, District-Ranchi. Since at the time of submitting the building

plan application, the old structure of the banquet hall 'Celebration' was already

existing over the said land, the petitioner swore an affidavit that the existing

structure of the said banquet hall would be demolished and after demolition of

the existing structure, a new building as per the said building plan, would be

constructed over the abovementioned plots. However, the old structure of the

banquet hall which was functioning in the name of 'Celebration' was not

demolished as per the affidavit sworn by the petitioner and the condition laid

down in the sanctioned plan, rather the petitioner continued to operate the

banquet hall in the same old structure which was admittedly an unauthorized

construction for which there was no sanctioned building plan. The existing

structure which has been sealed, is actually an unauthorized construction for

which there is no sanctioned building plan. It is further submitted that on

15.02.2021, municipal trade license was applied by Rohtas Munda (the

petitioner), Rakesh Prasad, Kumkum Srivastava and Anand Kumar on behalf of

M/s Samridhi Lifestyle which is a partnership firm of the said persons. However,

one of the partners, namely, Rakesh Prasad had already died on 06.09.2020

and his name was fraudulently used as an applicant to obtain a trade licence. An

application for issuance of trade licence in the name of a dead person is itself a

nullity and void ab-initio. One of the partners, namely, Anand Kumar made

representation before the Ranchi Municipal Corporation stating the said facts

and also requesting that his consent was also not obtained while making the

application for issuance of the trade licence, rather the same was submitted

behind his back and without his knowledge and therefore it was liable to be

cancelled. After due consideration of the said fact, the trade licence issued on

15.02.2021 was cancelled by the Ranchi Municipal Corporation on 14.07.2021

and as such no trade licence is existing for running the said banquet

hall/marriage hall. It is also submitted that Section 455 of the Act, 2011

provides for grant of trade licence which is a general licence for practicing any

trade in the municipal area and this general provision cannot substitute special

provisions provided under the Rules, 2013 framed by exercising the powers

conferred under Section 155(1) and Section 590 of the Act, 2011.

8. Heard learned counsel for the parties and perused the relevant materials

available on record. At the outset, the intervener-applicants have challenged the

maintainability of the present writ petition stating that the marriage

hall/banquet hall known as 'Celebration' is the property of the partnership firm,

namely, M/s Samridhi Lifestyle, however, the petitioner, who is merely one of

the partners of the said firm, has filed the present writ petition claiming

ownership of the premises along with his two brothers, who are also the

partners of the said firm. No authorization/consent has been taken by the

petitioner or his two brothers from the interveners/applicants, who are also the

partners of the said firm.

9. Learned counsel for the petitioner while countering the said objection of

the interveners, submits that the petitioner being the owner of the marriage hall

in question has right to file the present writ petition. It is further submitted that

the partnership firm was formed in contravention of the Act, 1908 as by virtue

of the partnership deed, the property of the persons belonging to tribal

community was shared by the non-tribals and as such the partnership firm was

dissolved and the said dissolution was also informed to the interveners-

applicants and thus they cannot raise claim over the property in question.

10. The fact that the marriage hall/banquet hall known as 'Celebration' was

constructed by M/s Samridhi Lifestyle, a partnership firm, has not been disputed

by the petitioner. The impugned notice of sealing has been issued in the name

of the said marriage hall/banquet hall and not in the name of the petitioner. It

would be further evident that the trade licence for the said marriage

hall/banquet hall was also issued in the name of M/s Samridhi Lifestyle.

11. The petitioner's own stand is that there is a proposal in the deed of

dissolution to distribute the income and share of the partnership firm among the

partners. It has however not been clarified as to whether the said exercise has

been completed. Under the said circumstance, the argument of learned counsel

for the petitioner that the petitioner and his two brothers are the sole owners of

the said marriage hall, cannot be accepted.

12. The claim of the petitioner is that since the partnership deed was the

partnership at will, the same was dissolved by the petitioner and his brothers for

the reasons mentioned in the deed of dissolution and the same cannot be

questioned by the interveners. On the other hand, the interveners have claimed

that as per Clause 3 of the partnership deed dated 24th of February, 2012, the

partnership business commenced from the 24th day of February, 2012 and will

continue for minimum period of 20 years i.e. till 2032 which may further be

continued on the mutual consent of the parties or under other stipulations made

in the deed.

13. Learned counsel for the interveners put reliance on a judgment of the

Hon'ble Supreme Court rendered in the case of M.O.H. Uduman Vs. M.O.H.

Aslum reported in (1991) 1 SCC 412 wherein it has been held that if duration

of partnership has been provided in the deed, it cannot be said to be a

"Partnership at Will".

14. This Court is of the view that the question as to whether the concerned

partnership deed is a "Partnership at Will", has to be examined by a fact finding

Court after going through the contents of the partnership deed as well as the

intention of the parties. The petitioner has invoked writ jurisdiction of the Court

against the order of sealing of the banquet hall 'Celebration'. The locus of the

petitioner to file the present writ petition has been challenged by the

interveners, who are the partners of the partnership firm, namely, M/s Samridhi

Lifestyle. Since M/s Samridhi Lifestyle is the owner of the said banquet hall and

the interveners are objecting the petitioner's exclusive claim over the same, it

would not be appropriate for this Court to entertain the present writ petition

until the dispute between the petitioner and the other partners is resolved. A

writ petition is filed seeking public law remedy and the power of judicial review

cannot be exercised under writ jurisdiction to resolve private dispute of the

partners.

15. In view of the aforesaid discussions, in my view, the present writ petition

is not maintainable at the instance of the writ petitioner-Rohtas Munda as he

has no locus standi to file the same representing the banquet hall/marriage hall

in question. Hence, there is no need to enter into the merit of the other issues

raised by the parties before this Court.

16. The present writ petition filed at the instance of the petitioner is

accordingly dismissed as not maintainable.

17. Consequently, I.A. Nos. 3577/2021, 3592/2021, 4434/2021 & 6054/2021

also stand disposed of.

Satish/A.F.R                                                          (RAJESH SHANKAR, J)