Excerpt
The Calcutta High Court on 19th February 2021, disposed of WPA No. 10088 by remarking that since the Petitioner does not possess the certificate of enlistment permitting him to carry on business, the action of the Corporation is taking steps against the Petitioner, for carrying on business, in violation of the provisions of law, cannot be faulted.
Facts of the case
The Petitioner carried a business of selling sweets under the name and style of “M/s. Sweet Corner” at premises of Chandernagore Municipal Corporation of which he claimed to be a lawful tenant.
The Petitioner was charged to be engaged in trade at the aforesaid holding for the last three years without obtaining a valid trade enlistment certificate. Thereafter, Commissioner of the Chandernagore Municipal Corporation issued a show-cause notice on 28th August 2020, to the Petitioner as to why his trade and calling shall not be shut down with immediate effect and/or appropriate action shall not be initiated under sec. 385 of the West Bengal Municipal Corporation Act, 2006, as amended.
The Petitioner submitted his show-cause on 14th September 2020 and an order has been passed by the Commissioner directing the Petitioner to shut down the trade/business in the nomenclature and style of “Sweet Corner” in the premises within seven days after service of the copy of the aforesaid order, failing which appropriate action would be taken.
The Petitioner claimed to obtain the certificate for enlistment, but the application for issuance of the certificate of enlistment was allegedly not accepted on the ground of non-payment of property tax through the Petitioner expressed his willingness to pay the apportioned property tax in respect of the portion occupied by him in the said premises but not allowed.
Petitioner’s arguments
The Petitioner contended that the Respondent authorities have illegally and arbitrarily not issued the certificate of enlistment in his favor relying upon extraneous consideration. Also, the non-assessment of the property tax of the premises in question should not be a ground for non-granting the certificate of enlistment to carry on business in the said premises. Further, it was pleaded that the Corporation took discriminatory stands in respect of the traders carrying on business in the said premises.
Thus, the Petitioner prayed for issuance of a writ of mandamus to recall, rescind, cancel and/or quash the impugned order dated 15th October 2020 and a further order restraining the Respondent authorities from taking coercive action based on the aforesaid impugned order.
Respondent’s arguments
The Respondents argued that the Petitioner was carrying on his business, for the last three years, without obtaining any certificate of enlistment from the Corporation. Further, the Petitioner not only violated the provision of Section 141 of the Act but also violated the provision of Section 282(2) of the said Act.
It was contended that the Petitioner has not made any prayer for the issuance of a certificate of enlistment in his favor for all these years knowingly that he wasn’t entitled to carry on business from the said building, construction of which was yet to be complete and completion certificate not issued by the Corporation till date and thus, the Respondents prayed for dismissal of the writ petition.
Court’s observation
The court observed that the two charges against the Petitioner were: Firstly, carrying on business without a proper and valid trade enlistment certificate from the Corporation and second, using and occupying a building under construction, in respect of which completion certificate has not been issued. In the instant case, the Petitioner doesn’t possess any place to the satisfaction of the Municipal Corporation. Moreover, no permission has been granted by the Commissioner to occupy and use the building in question to the Petitioner.
Further, regarding the submission made by the Petitioner that the Corporation has permitted others to run the business from the said premises, it is settled law that negative equality cannot be claimed as a matter of right. The court held that the Corporation is well within its right to consider the application within 30 days according to sec. 141 (2), WBMC Act, 2006.
Judgment
The Hon’ble Court held that the shop will be open for the Petitioner to apply before the Corporation for return of the said articles and if there does not impede law, then the Corporation shall permit the Petitioner to take back his articles, on the date and time fixed for the same.
Apart from the above, no further relief can be granted to the Petitioner in the instant case and the WPA No. 10088 of 2020 is disposed of accordingly, without costs.
Case: Kishor Ghosh vs The Chandernagore Municipal Corporation & Ors. [WPA No. 10088 of 2020]
Click here to view the judgment.
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