1. This writ petition is heard along with C.O 4389(W) of 1986 filed by Bimal Kumar Samanta the respondent no. 4 against State of West Bengal and Others. It is stated in the present writ application that the petitioner was inducted as a tenant by the respondent no. 4 Bimal Kumar Samanta in respect of the rear portion of the premises no. 26, Khagen Chatterjee Road, Cossipore, Calcutta and since his inducation in 1978 he is running hosiery business under the name and style of “Messrs Hanuman Hosiery Tailors” having obtained necessary licences from the appropriate Licencing Authority of the Municipal Corporation, Calcutta. It is alleged that sometime in the month of July 1984 the respondent no. 4 with some ulterior motive to disposses the petitioner from the said premises started creating disturbance and the petitioner had to seek necessary police help. An application under s. 144 of the Code of Criminal Procedure was filed before the Learned Executive Magistrate, ??? and an appropriate order was made restraining the respondent no. 4 to commit acts of breach of peace and the police was directed to carry out the order. Further allegations have been made about police excess asking the petitioner to vacate the premises for which the petitioner had to move earlier writ application and the previous application was disposed of by order dated 2nd December, 1985 passed by Bhagabati Prasad Banerjee J. that there should not be disturbance to the possession of the premises in question except in accordance with law. Subsequently, the respondent no. 4 filed a writ application and the same was moved on 8th April, 1986 before ??? Kumar Mazumdar J. and the Civil Order No. 4389(W) of 1986 in pending. The petitions has further alleged that he duly made application for renewal of his licences with the prescribed fees but the Corporation authorities are not renewing the licence in view of an objection made by the respondent no. 4 Bimal Kumar Samanta. It is stated also that on earlier occasions the Municipal Corporation authorities rejected the objection of the respondent no. 4 holding inter alia that the Municipal Corporation Authority has no legal right to refuse renewal when a person is engaged in particular trade. Thereafter, the Corporation authorities are alleged to have changed the view to refuse granting of renewal of the trade licence and as a result thereof the petitioner is compelled to file present writ application praying for issuance of a writ of Mandamus commanding the Calcutta Corporation Authorities to issue licence in favour of the petitioner in terms of the Calcutta Municipal Corporation Act and specially in terms of ss. 199 and 200 of the Calcutta Municipal Corporation Act and other consequential reliefs as stated in the petition itself.
2. The learned lawyear appearing for the Calcutta Municipal Corporation appeared at the time of final hearing of the case and conceded that the Municipal Corporation authorities have no objection to grant licence as prayed by the petitioner.
3. The writ petition is however seriously opposed by the respondent no. 4 Bimal Kumar Samanta. Another writ petition filed by Bimal Kumar Samanta as indicated above being C.O No. 4389(W) of 1986 is taken up for hearing along with this case as observed earlier. It appears that Bimal Kumar Samanta has alleged that a tenancy comprising 3 (three) rooms of premises no. 26, Khagen Chatterjee Road was rented out to the petitioner for the purpose of carrying on business therein. Out of the said three rooms, two rooms are used for the purpose of carrying on the Ration Shop whereas in the other room the petitioner started a tailoring business. As per the averments made in the said petition, it is started in or about 1984, a labour trouble started affecting the hosiery and tailoring business and also taking advantage of illness of Bimal Kumar Samanta, there was trespass within the tenanted room and a business has been stated under the name and style of “Messrs Hanuman Hosiery and Tailoring”. In spite of repeated requests the trespasser did not quit and vacate, Bimal Kumar Samanta had to write to the Calcutta Municipal Corporation Authorities not to issue any licence in favour of the illegal business being carried on under the name and style of “Messrs Hanuman Hosiery and Tailoring”. Since no action was taken by the Calcutta Corporation Authorities a ??? in writing was made on 11th April, 1985 demanding justice. There are further representations and ultimately the Deputy Municipal Commissioner informed Bimal Kumar Samanta that licence issued under ss. 199 and 200 of the Act in favour of Venode Kumar Jalan and the certificate of enlistment cannot be withheld for a person engaged in any trade, profession or calling by a memo No. D.M.C(R) 401/85-86 dated 3rd February, 1986 (copy of which is annexed “E” to the writ petition) Bimal Kumar Samanta challenged the said annexure ‘E’ alleging inter alia that Venode Kumar Jalan has no vestige of right, title and interest in the room in question and he cannot apply for a licence non apply for the certificate of enlistment as prescribed by ss. 199 and 200 of the Calcutta Municipal Corporation Act stating all these allegations in detail, a prayer was made for issuance of a writ of Mandamus commanding the Calcutta Corporation authorities and their agents and officers not to give effect or further effect or acting in any manner on the basis of the said memo dated 3rd February, 1986 (Annexure ‘E’).
4. Having heard the learned lawyer for Venode Kumar Jalan, Bimal Kumar Samanta and Calcutta Municipal Corporation authorities it appears that the point of dispute is as to whether Venode Kumar Jalan is entitled to obtain a trade licence for carrying on hosiery and tailoring business in one of the disputed rooms at premises no. 26, Khagen Chatterjee Road, Calcutta and as to whether Bimal Kumar Samanta is entitled to raise objection that the Corporation authorities should not grant any licence to a trespasser to run a business in the disputed property. Undisputedly Venode Kumar Jalan is in possession of a room at no. 26, Khagen Chatterjee Road, Calcutta and carrying on business having obtained licence previously. There is prayer of renewal and the Corporation authorities have consented to grant the same. It is argued with all force on behalf of Bimal Kumar Samanta that ss. 199 and 200 of the Calcutta Municipal Corporation Act, 1980 required certain statutory functions of the Calcutta Municipal Corporation authorities and licence cannot be granted arbitrarily and whimsically Section 199 of the aforesaid Act lays down that every person engaged in any profession, trade or calling in Calcutta as mentioned in Schedule IV shall be liable to Pay to the Corporation a tax at the rate mentioned in the said Schedule provided that the payment of such tax shall not absolve such person from any liability to take out any licence under the Act or any other law for the time being in force. Under s. 200 of the Act indicates inter alia that every person liable to pay tax under s. 199 shall obtain a certificate of enlistment from the Municipal Commissioner Section 200(3) of the Act envisages that the Municipal Commissioner shall after making such enquiry as may be necessary and within 30 (thirty) days of the receipt of the application grant him such certificate if the application is in order. The application if it is not in order, shall be rejected. The attention of this Court is drawn to s. 200(3) of the Act and in particular that there is scope of holding enquiry by the Municipal Commissioner if an application is filed by a person requiring to obtain a certificate of enlistment to obtain a licence under s. 199 of the Act for payment of tax on professions, trades or callings. In the instant case there is no enquiry and the Calcutta Corporation authority cannot grant any licence to a trespasser and/or stranger who his no right to apply for licence after obtaining a certificate of enlistment. A question arises thereby as to what is the scope of enquiry as envisaged under s. 200(3) of Calcutta Municipal Corporation Act, 1980 to issue a certificate of enlistment to a person intending to take a trade licence under s. 199 of the said Act. Is the Municipal Commissioner competent to consider title to the property and find out the right of a person to occupy the property where one is carrying on the business? What will be the extent of enquiry to issue a certificate of enlistment to obtain a trade licence and what are pre-requisites? In the instant case Bimal Kumar Samanta is alleging that he has the title to the property Venod Kumar Jalan is claiming that he is in possession of the property having a colour of right and unless he is evicted in due course of law, his possession cannot be disturbed and the Corporation authorities cannot refuse the grant of trade licence. Under this background, what is the right of the Municipal Commissioner either to grant licence or to refuse the licence. The scope of the enquiry as envisaged in s. 200(3) of the Calcutta Municipal Corporation Act, 1980 does not appear to be in my opinion to enable the Calcutta Municipal Corporation authority to enter into the question of the title of property. Any occupier of a property unless evicted in due course of law is entitled to remain in the property by obtaining necessary rights of easements as that of water and light end if he intends to run a business by obtaining a trade licence provided he complies with other formalities as prescribed under this statute. The question of title to the property cannot be investigated by the Corporation authorities nor the same can be the subject matter of the enquiry within meaning s. 200(3) of the Calcutta Municipal Corporation Act. Such an enquiry will cause the overlapping of the jurisdiction. The Civil Court is the competent authority to decide the question of title. If a parson has wrongfully trespassed to any property he can obviously seek remedies before a competent Civil Court for eviction and for recovery of possession of the property in accordance with the law. He can seek other remedies before other forums so that a trespasser cannot usurp the right of the lawful owner. But the Indian jurisprudence has clearly provided that law respects possession even he is not entitled to support it. One is not permitted to take law in his own hand and to be a Judge in his own case, one cannot force a person out save and except taking steps in due process of law. As such if a person is found to be in occupation of the property and running a business, his prayer for renewal of the licence cannot be refused. Such a licence is subject to any decision of the Civil Court. Any such licence would not confer any better right in the property than the real owner can ask for. The writ petition of Venode Kumar Jalan is allowed with this observation that there will be renewal of the trade licence subject to decision of any other competent Court for determining the licence and order for vacating the property. So long Venode Kumar Jalan is in possession of the property Bimal Kumar Samanta has no right to raise any objection. Renewal of the trade licence provided the prayer for licence conforms with all prescribed rules and norms. The writ petition filed by Bimal Kumar Samanta has no merit and the same is rejected with this observation that licence renewed in favour of Venode Kumar Jalan will confer no right of title to the property in any manner whatsoever and any grant of licence and/or nature of occupation of the petitioner are subject to determination by any other competent authority in accordance with the law. Both the petitions are disposed of. There will be no order as to costs.
Petition allowed and C.O No. 4389(W) of 1986, rejected.