ASSOCIATED INDUSTRIAL TRADERS Vs. UTTARPARA KOTRUNG MUNICIPALITY

JUDGEMENT

(1.) - The petitioners moved the writ court against the Memo dated 28th August, 1987 issued by the Vice-Chairman of the Uttarpara-Kotrung Municipality. The petitioner No. 1 is a registered partnership firm and the petitioners Nos. 2 and 3 are the partners having 40% and 60% of shares, respectively. The registered partnership firm was established in January 1965 but the petitioners Nos. 1 and 2 are carrying on the business of manufacturing various goods since 1964 on obtaining the trade licence from the Uttarpara-Kotrung Municipality. The office of the petitioners is located at 225, Dwarik Jungle Road, Uttarpara, and the factory is situated at 53, Dwarik Jungle Road (previously Holding No. 108) in Kotrung. The said Holding No. 53, Dwarik Jungle Road was purchased with the money of the petitioners Nos. 2 and 3 by a registered Conveyance, dated 22nd April, 1966 but the name of the respondent No. 5, Sanjiblal Bose (who is the full brother of petitioners Nos. 2 and 3) was included in the said Conveyance as one of the purchasers on the insistence of their mother, since deceased. The petitioners' case is that the said respondent No. 5 has no right, title and interest in the said business carried on by petitioners Nos. 2 and 3 and he never raised any objection of any kind since the factory premises was constructed on the basis of the plan duly signed by respondent No. 5 and sanctioned by the Municipality in 1966. But after the death of the mother the respondent No. 5 started mischief. When sometime in June 1987 the petitioner No. 2 went to deposit the fee f6r the renewal of the trade licence for 1987-88 with the Municipality the same was refused and the respondent No. 3 issued two Memos of different dates in June 1987 directing the petitioners to meet him and finalise the matter regarding taxation of the said Holding. Thereafter by a Memo dated 17th August, 1987 the petitioners were asked by the Vice-Chairman of the Municipality to attend the office on 28th August, 1987 to settle the dispute about trade licence of the business and finally came the order dated 28th August, 1947 under challenge wherein the Vice-Chairman asked the petitioners to apportion the Holding and shift the factory to the portion of the petitioners and till then the trade licence would remain suspended the contention of the petitioners is that in view of the provisions of the Bengal Municipal Act, 1932 and Rules thereunder the respondents Nos. 1 to 4 have no jurisdiction to stop the petitioners from taking out trade licence in respect of the factory business and the further contention is that the dispute raised by the respondent No. 5 relating to right, title and interest in the property is purely of civil nature and outside the purview of the Municipality to decide.

(2.) The respondent No. 5, Sanjiblal Bose, filed an application for vacating the interim order of 16th September, 1987 by which the Hon'ble High Court restrained the respondents from giving effect to and/or further effect to the impugned order of 28th August, 1987. In the said application the respondent No. 5 stated that the property in question has not yet been partitioned and the owners have not been separately recorded. The said respondent further stated that he never applied for the sanction of any plan for any factory or for any other purpose to the Municipality along with his other two brothers. He further stated that he filed several applications before the Municipality for apportionment of the Holding in question and for separate taxation as well as fear removal of factory from his land and cancellation of the Municipal trade licence. It is contended that the petitioners axe possessing and enjoying the land fraudulently by starting a factory thereon and obtained an order from the Hon'ble High Court causing loss and injury to this respondent. The petitioners in an objection the said application for vacating the interim order reiterated their case as stated in the writ petition. The petitioners' whole case is that at the insistence of their deceased mother the respondent No. 5 was dragged into the property as one of the purchasers and his signature was obtained on the plan submitted for sanction. They denied the computation of fraud as alleged in the application for vacating the interim order as absolutely incorrect. And further that they are unaware of the contents of the representation made to the Municipality.

(3.) Mr. Basu, the learned Advocate appearing for the petitioners, contended that the licence was issued under section 182 of the Bengal Municipal Act, 1932 since 1964 without any obstruction. He further submitted that the Municipality derives power to impose taxes on trades, professions and callings under section 123 (1)(c) of the Bengal Municipal Act as specified in Schedule IV. He further submitted that the State Government has power to make Rules relating to taxation under section 215(f) of the Act. He submitted that he is not carrying any offensive and dangerous trade which comes under the mischief of section 370 of the Act. The Municipality can, of course, suspend or revoke the licence only under section of the Act. Mr. Basu cited the case of In re: Venode Kumar Jalan v. Calcutta Municipal Corporation and others reported in 1987(II) CHN 219=Cal. L.T. 1987(I) H.C. 333 wherein Mr. Justice Susanta Chatterji referring to the scope of inquiry as envisaged in section 200(3) of the Calcutta Municipal Corporation Act, 1986 held that the Corporation could not enter into the question of title of property As such the learned Advocate submitted that the impugned order of the Municipality is bad in law and beyond its authority and liable to be set aside.