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2018 DIGILAW 268 (CAL)

Zubaida Hamid v. State of West Bengal

2018-02-16

SHEKHAR B.SARAF

body2018
JUDGMENT : In Re : CAN 6228 of 2015 1. I am first taking up the application being CAN 6228 of 2015 for addition of party filed by one Rashida Hamid. 2. Learned counsel on behalf of the applicant being Rashida Hamid (Ahmed) submits that she is the owner of the premises no.168A, Tiljala Road, P.S. Karaya, Kolkata 700 046 by way of a gift Deed date April 10, 1975 wherein Rashida Hamid (Ahmed), a minor represented by her mother, Johara Hamid was gifted a portion of land in premises no.168A, Tiljala Road to the extent measuring 1 Bigha, 2 Cottahs, 9 Chittacks and 2 Sq. Ft. 3. The present writ petition has been filed by Zubaida Hamid, one of the daughters of the original donor with respect to premises no. B/168A/H/1, Tiljala Road, P.S. Karaya, Kolkata-700 046. 4. Counsel on behalf of the applicant for addition of party submits that he has taken the recourse to the Civil Court for establishing the right of his client. 5. The writ petitioner submits that Rashida Hamid has no claim or title over the impugned premises being B/168/A/H/1,Tiljala Road and is owner of a different portion of the original land of 4 (four) Bighas gifted to her. Counsel on behalf of the petitioner sought direction for affidavits. 6. In my view, as there are diametrically opposite statements made by the writ petitioner and the applicant, this matter needs to be decided only after exchange of affidavits. Accordingly, I direct the writ petitioner herein to file an affidavit within a period of four weeks from date, reply, if any, be filed within one week thereafter and this application to be listed five weeks from date. W.P.11374 (W) of 2015 7. In relation to the main writ petition, counsel appearing on behalf of the Kolkata Municipal Corporation (hereinafter referred to as ‘K.M.C.’) submits that they have complied with the order passed by this Court on January 24, 2018 and are filing a report after having carried out an inspection in the form of an affidavit today before this Court. 8. The following facts emerge from the said affidavit as follows : (A). As on date there is no premises bearing number 168A, Tiljala Road. The erstwhile single premises bearing no.168A, Tiljala Road has been mutated in the name of different owners with part numbers. 8. The following facts emerge from the said affidavit as follows : (A). As on date there is no premises bearing number 168A, Tiljala Road. The erstwhile single premises bearing no.168A, Tiljala Road has been mutated in the name of different owners with part numbers. One of the said premises belonging to the writ petitioner is premises no.B/168A/H/1, Tiljala Road. (A). The certificate of enlistment for carrying business at premises no.B/168A/H/1, Tiljala Road had been obtained by one Ramlal for carrying business of non-food items/ finished leather. The above license had been obtained prior to 20082009 and has not been renewed after the year 2009-2010. Subsequently, Ramlal had obtained no certificate of enlistment. (A). Mr. Sunil Shaw and Suresh Shaw carrying on business under the style of “Project Impex India Private Limited” had obtained a certificate of enlistment for the premises no.168A Tiljala Road for the year 2017-2018 after the filing of this writ petition for carrying on business for “Office-leather/ leather goods supply” (A). On inspection of the above premises being B/168A/H/1 Tiljala Road, it has been found that M/s. Sunil Shaw and Suresh Shaw are carrying on business outside of the scope of the certificate of enlistment. Paragraph 4 (four) of the affidavit filed by the Corporation is categorical and states that apart from the office in the premises in question certain business activities are being carried out beyond the scope of the license. The affidavit contains a report dated February 13, 2018 of the Deputy License Officer (HQ.), License Department, K.M.C. The relevant paragraph of the report is set out below : “Accordingly, I being the Deputy License Officer along with the concerned inspector visited the premises no. B/168/H/1, Tiuljala Road, Kolkata –700 046 for inspection on 02.02.2018 about 130 p.m. and found existence of one office room. It was also found that certain persons workers were engaged in softening the dry leather by operating the machine and also cutting and packaging of the said softened leather. In order to carry on such activities the dry leathers were found lying stored in the said premises in large quantities. The activities as found on inspection did not appear to be permissible under the Certificate of Enlistment as obtained. In order to carry on such activities the dry leathers were found lying stored in the said premises in large quantities. The activities as found on inspection did not appear to be permissible under the Certificate of Enlistment as obtained. Since the licensees should run the office of leather and leather goods supplier under the business name Protect Impex India Limited, the name board of the business was nowhere found at the time of inspection. The business activities that are carried on apart from running of the office for the said purpose is not permissible under the Certificate of Enlistment.” (E). A notice dated February 12, 2018 has been issued by the Kolkata Municipal Corporation, Deputy Licence Officer (H.Q.) to Project Impex India Primate Limited (Attn: Sri Sunil Shaw and Sursh Shaw and others) asking them to stop the business for which Certificate of Enlistment has not been obtained. The relevant portion of the notice is set out below : - “It is observed that you had obtained a Certificate of Enlistment for office of leather and Leather Goods Supplier. I being the Deputy Licence Officer along with the concerned Inspector visited your business premises at Tiljala Road, Kolkata-700 046 for inspection on 19/01/18 & 02/02/18 and found existence of one office room. It was also found that certain workers were engaged in softening the dry leather by operating the machine and also cutting & packaging of the said soften leather. In order to carry on such activities the dry leather were found lying stored in the said premises in large quantities. The activities as found on inspection did not appear to be permissible under the Certificate of Enlistment as obtained. Since the Licencee should run office of Leather and Leather Goods Supplier under the business name M/s. Protect Impex India Private Limited, the name board of business was nowhere found at the time of inspection. The business activities that are carried on apart from running of the office for the said purpose is not permissible under the Certificate of Enlistment. You are therefore directed to take into consideration the above aspect failing which we may proceed in terms of law.” 9. The business activities that are carried on apart from running of the office for the said purpose is not permissible under the Certificate of Enlistment. You are therefore directed to take into consideration the above aspect failing which we may proceed in terms of law.” 9. Counsel appearing on behalf of the writ petitioner submits that the business continues in violation of the notice of the K.M.C. and in violation of the Hon’ble Apex Court judgment in (M.C. Mehta (Calcutta Tanneries’ Matters) -Versus- Union of India & Others, reported in (1997) 2 Supreme Court Cases 411) wherein the Hon’ble Supreme Court had clearly stated at paragraph 20 that all tanneries operating in the Tiljala, Topsia and Pagla Danga areas should discontinue their work and shift to the new leather complex set up by the West Bengal Government. The relevant paragraphs are set out below :- “20. We, therefore, order and direct as under : 01. The Calcutta tanneries operating in Tangra, Tiljala, Topsia and Pagla Danga areas in the eastern fringe of the city of Calcutta (about 550 in number) shall relocate themselves from their present location and shift to the new leather complex set up by the West Bengal Government. The tanneries, which decline to relocate, shall not be permitted to function at the present sites. 2. *********************** 3. *********************** 4. *********************** 5. *********************** 6. *********************** 7. *********************** 8. *********************** 9. *********************** 10. *********************** 11. The tanneries which are not closed on 15.04.1997 must relocate and shift to the new leather complex on or before 30.09.1997. 12. All the Calcutta tanneries shall stop functioning at the present sites on 30.09.1997. The closure order with effect from 30.09.1997 shall be unconditional. Even if the relocation of tanneries is not complete they shall stop functioning at the present sites with effect from 30.09.1997. 13. We direct the Deputy Commissioner/ Superintendent of Police of the area concerned to close all the tanneries operating in Tangra, Tiljala, Topsia and Pagla Danga areas of the city of Calcutta by 30.09.1997. No tannery shall function or operate in these areas after 30.09.1997.” 10. In view of the above and after hearing learned counsel appearing on behalf of the respective parties including the private respondent and the Kolkate Municipal Corporation, and upon perusing the affidavit filed by the K.M.C. it is crystal clear that the tannery business is being continued on the said premises bearing no. In view of the above and after hearing learned counsel appearing on behalf of the respective parties including the private respondent and the Kolkate Municipal Corporation, and upon perusing the affidavit filed by the K.M.C. it is crystal clear that the tannery business is being continued on the said premises bearing no. B/168A/H/1, Tiuljala Road. The notice issued by the K.M.C. dated 12th February, 2018 has gone unheeded and the petitioner submits that the work continues unfettered. 11. The above business cannot be allowed to continue. The apathy of the K.M.C. in allowing the same to continue for over a decade is unfathomable and unless this Court orders immediate closure of the same, the Supreme Court mandate and directions would continue to be flouted unabashedly. This Court directs the Deputy Licence Officer (H.Q.), Licence Department, K.M.C. to take assistance of the respondent no.4 being the Officer-in-Charge, Karya Police Station, Kolkata to stop the business being carried out at the impugned premises being no. B/168A/H/1 and to seal the said premises. The said Officer-in-Charge, is directed to go with adequate force to carry out the task in an adequate manner. The Officer-in-charge shall prepare an inventory of all the goods lying in the said premises and specify the approximate amount of leather (in kilograms) and the number of machines lying in the said premises. The Officer-in-Charge, shall be guided by the Deputy Licence Officer, (H.Q.), Licence Department, K.M.C. 12. The respondent no. 4 shall take note that the impugned premises has been wrongly numbered as 168A, Tiljala Road (this was pointed out by the Corporation in its earlier report). 13. The respondent no.4 is directed to file a compliance report in the form of an affidavit containing the details of the above task carried out before this Court on 5th March, 2018. 14. All the parties are directed to act on the basis of the communication of the server copy of the order passed by this Court.