ABDUL RASHID Vs. CALCUTTA MUNICIPAL CORPORATION

JUDGEMENT

(1.) -The petitioner has moved this writ application for direction upon the Calcutta Municipal Corporation to grant or renew the petitioner's trade licence for the year 1988-89 in respect of the Motor Car Repairing business at premises No. 1A, Gokul Boral Street, Calcutta-12 and also a direction upon the respondents Nos. 1 to 7 restraining them from demolishing the petitioner's bamboo and tarpaulin shed at the said premises. The petitioner's case is that one Biswanath Dey Sarkar since deceased, the father of respondents Nos. 8 and 10 and the husband of respondent No.9, was the owner of the aforesaid premises and the said Biswanath inducted the petitioner as monthly tenant in respect of two rooms, a covered shed made of bamboos with tarpaulin covering measuring 22' X 11' in September 1971 and this portion was situated to the west of the main entrance of the said premises with an open space measuring about 40' x 70' and the aforesaid area was covered by the petitioner's tenancy at a rental of Rs. 248 per month inclusive of electric charges. The premises was let out to the petitioner for starting a Motor Car Repairing Workshop. It is the further case of the petitioner that the landlord never issued any rent receipt to him, but he was regular in payment of rent since induction as tenant first to Biswanath since deceased and thereafter to respondents Nos. 8, 9 and 10 who also did not grant any rent receipt. In spite of the fact that no rent receipts were granted, the petitioner had no difficulty in getting the trade licence right from 1974 upto March 1988. But in February 1988 the respondents Nos. 8 to 10 refused to accept rent and the petitioner started depositing the same with the Rent Controller. The further case of the petitioner is that as the petitioner has been executing work orders for various reputed concerns, the refusal of the acceptance of rent by respondents Nos. 8 to 10 created difficulties for him. During petitioner's absence these respondents erased the name of the petitioner's film (Rashid Motor Works) printed on the wall and also asked him to remove the covered shed. The petitioner had no way out but to rush to the Criminal Court and to take protection under section 144(2) of the Code of Criminal Procedure. The petitioner also filed a suit for declaration of his tenancy right in the premises with the prayer of temporary injunction in the City Civil Court being Title Suit No.1088 of 1988 and the Learned Judge, 7th Bench, directed the parties to maintain status quo. It is the further case of the petitioner that the Corporation under section 199 of the Calcutta Municipal Corporation Act, 1980 is to issue a professional, trade or calling licence as mentioned in Schedule IV of the Act on payment of tax as prescribed and there is no provision that the production of rent receipt is necessary. The petitioner contends that the Corporation authorities are not entitled to withhold the grant of trade licence on the ground that the petitioner is not able to produce any rent receipt and by this illegal and arbitrary act causing damage and destroying the source of livelihood of the petitioner under the influence of the respondents Nos. 8, 9 and 10 who are bent to forcibly evict the petitioner from the said premises.

(2.) The respondents Nos. 8 and 9 by an Affidavit-in-Opposition denied the allegations of the petitioner. According to the deponent, the respondent No.8, Banibrata Dey Sarkar, his father the late Biswanath Dey Sarkar was the owner of the premises in question and used to live with family. The said Biswanath had a private car of his own and a taxi and the taxi is still there and the private car is kept in the said premises. In 1980 this respondent covered the open area with shed of shal post for the accommodation of the car and for the purpose of repairing the car and for this purpose the services of the petitioner were required who was a motor mechanic. The shal post of the covered shed had worn out and shed might collapse any day. Biswanath Dey Sarkar died in 1984 and on his death the respondent No. 8 became the owner of the property, his mother got life-estate and his sister, respondent No. 10, got no right or title in the said property. The respondent No. 8 became the owner of the taxi and the car. The petitioner used to repair the cars including the taxi of the respondent No.8 and occasionally of the close relations of this respondent but it was surprising to him that sometime in February 1988 on the front wall of the said premises the words "Rashid Motor Works" were printed for which this respondent strongly objected to. In April 1988 he received a summons under section 144(2) of the Criminal Procedure Code against himself, his mother and wife alleging that the petitioner is running motor repairing garage at the said premises since 1971 as a tenant and the private respondents are causing disturbances in running the said business of the petitioner and forcibly removed the sign board and threatened to take possession of the premises in occupation of the petitioner by force. It was also alleged in the criminal proceeding that the petitioner has got trade licence from the Municipal authority. On the basis of this disclosure the respondent No. 8 came to know about trade licence for the first time a immediately enquired from the Calcutta Municipal Corporation as to how the trade licence was issued in the name of Rashid Motor Works as the premises is a residential premises and also requested the Municipal authority not to issue any fresh trade licence to the petitioner. Thereafter in June, 1988 the petitioner instituted the Title Suit No.1088 of 1988 before the Learned 10th Judge, City Civil Court, Calcutta, for declaration that the petitioner is a monthly tenant and for permanent injunction restraining the private respondents from causing any disturbance in running his motor car repairing business in the area specified in the writ application. The petitioner thereafter obtained an interim order of status quo on 4th July 1988. After institution of this suit the petitioner moved the Hon'ble High Court for a direction upon the Municipal authority to renew the trade licence and restraining the private respondents from demolishing the bamboo shed. Another application under section 144(2) of Cr. P.C. was also moved whereon the learned Magistrate directed the police to maintain peace and to take necessary measure against the said order of the learned Magistrate. The respondents moved the Hon'ble High Court against the Magistrate's order and obtained an ex-parte interim order directing the private respondents herein to keep open the main gate of the premises between 7 a.m. to 9 p.m. this was not enough and the petitioner filed a criminal case against the respondents Nos. 8, 9 and 10 before the Judicial magistrate, 1st Court Sealdah, in October 1988 being Case No.186 of 1988 under various sections of the I.P.C. alleging that the accused (the private respondents herein) physically assaulted him on 11th October, 1988 at about 9 p.m. at 15/1, Noor Ali Lane within P.S. Beniapukur with fists and blows and damaged domestic articles on the refusal of the writ petitioner to withdraw the case moved under section 144(2) of the Cr. P.C.

(3.) It appears that the Calcutta Municipal Authorities have taken action against the writ petitioner and initiated legal proceedings. The case of the private respondents is that no motor repairing business can be carried out in the residential premises without taking a licence under section 435 read with Schedule V, Part I, Item 22(i), of the Calcutta Municipal Corporation Act and merely taking a trade licence under section 199 of the Calcutta Municipal Corporation Act, 1980 the petitioner is not absolved from taking a licence under section 435, of the Act. Further, such business can be carried on in a premises which is meant exclusively for non-residential purpose.