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2021 DIGILAW 989 (JHR)

Rohtas Munda v. Ranchi Municipal Corporation

2021-12-03

RAJESH SHANKAR

body2021
JUDGMENT : RAJESH SHANKAR, J. 1. The case is taken up through Video Conferencing. 2. Learned counsel for the petitioner has confined the prayers made in the present writ petition only to the extent of quashing the order dated 26.06.2021 (Annexure-4 to the writ petition) passed by the respondent No. 2 whereby the direction has been given to seal the marriage hall/banquet hall known as ‘Celebration’ alleging that the same is being used without obtaining licence under Jharkhand Urban Area Dharmashala, Marriage Hall/Banquet Hall, Lodge and Hostel Construction and Licence Rules, 2013 (hereinafter referred to as ‘the Rules, 2013’) as well as in violation of the Jharkhand Municipal Corporation Act, 2011 (hereinafter referred to as ‘the Act, 2011’). 3. The factual background of the case as emerging from different pleadings of the parties is that the petitioner along with six others including the intervener-Anand Kumar entered into a partnership agreement dated 24.02.2012 and constituted a partnership firm in the name and style of ‘M/s Samridhi Lifestyle’ to build and operate a banquet hall under the brand name of Celebration. The petitioner and his two brothers, namely, Sardar Veer Singh Munda and Mohan Munda were the owners of the landed property located at Village-Hatma, being M.S. Plot Nos. 707(Part), 710(Part), 713, 714, 715(Part), 717 under Khata Nos. 99, 192 and 195 whereas the cost of the development and construction over the said land was to be borne by the intervener-Anand Kumar and three others, namely, Rakesh Prasad, Cactus Milli Sinku and Chandra Shekhar Patra. The partnership firm was reconstituted vide agreement dated 01.04.2014 as Cactus Milly and Chandra Shekhar Patra chose to retire and Smt. Kumkum Srivastava joined the business as a new partner. Further, one of the partners, namely, Rakesh Prasad died on 06.09.2020 due to Covid-19 and thereafter his wife (intervener-Sangita Prasad) claimed to be inducted as a partner in place of her demised husband being entitled in terms of Clause 16 of the said partnership agreement. However, other partners did not act in terms with the aforesaid clause of partnership agreement and no share or profit was transferred to the intervener-Sangita Prasad. One partner, namely, Kumkum Srivastava relinquished her share in favour of the intervener-Anand Kumar after receiving valuable consideration. However, other partners did not act in terms with the aforesaid clause of partnership agreement and no share or profit was transferred to the intervener-Sangita Prasad. One partner, namely, Kumkum Srivastava relinquished her share in favour of the intervener-Anand Kumar after receiving valuable consideration. It was provided in the partnership agreement that the petitioner and his two brothers being three partners of the said agreement would make the land admeasuring approximately two acres available to the firm for development of banquet hall/marriage hall at the site and the cost of construction development would be borne by other four partners. The said land would remain the sole property of the firm for the specified business. 4. Learned counsel for the petitioner submits that by reasons of understanding made in the said agreement, the tribal land has in fact been transferred to the partnership firm and thus the same is against the provisions of the Chota Nagpur Tenancy Act, 1908 (hereinafter referred to as ‘the Act, 1908’) and therefore the entire partnership deed/agreement being in contravention of law, is a nullity. Thus, the three partners i.e. the petitioner and his two brothers, out of existing five partners, decided to dissolve the partnership agreement with a view that all the partners would get their respective shares in accordance with law. It is further submitted that there is no ill-will on the part of the petitioner and his two brothers while dissolving the partnership agreement/deed as they have sufficiently taken note of the interest of all the partners in terms with the partnership deed. The petitioner has already been given municipal trade licence by the respondent No. 2 and as such the respondent-Corporation cannot seal the premises. It can merely issue direction that the said premises cannot be used for the purposes coming under the purview of the Rules, 2013. The sealing of the premises in question by the Ranchi Municipal Corporation has deprived the petitioner of carrying out any other trade which is not regulated by the Rules, 2013. Pursuant to the order dated 17.01.2018 passed by this Court in W.P. (C) No. 7274 of 2017 and as per further direction of the respondent No. 1 issued vide order dated 20.07.2018, the updated building plan submitted by the petitioner on 01.01.2019 has already been sanctioned on 12.02.2019 and as such it is upon the respondent authorities to issue licence under the Rules, 2013. 5. I.A. No. 3577 of 2021 has been filed by the intervener-Anand Kumar whereas I.A. No. 3592 of 2021 has been filed by the intervener-Sangita Devi challenging the locus of the petitioner in filing the present writ petition. 6. The contention of the interveners-applicants as put forth by Mr. Anil Kumar Sinha, learned Sr. Advocate and Mr. Prashant Pallav, Advocate, that the petitioner has approached this Court in an individual capacity with specific pleading that partnership has got dissolved and has tried to project his case on the basis of the fact that M/s Samridhi Lifestyle is only being run by the petitioner and his two brothers. In fact, the partnership firm has not been dissolved and the right of the partners continues. It is further submitted that the present writ petition is not maintainable as the petitioner cannot file the present case in his individual capacity. It is further submitted that recognizing the right of the petitioner in his individual capacity will dilute the right of other partners which will be against the interest of the partnership firm. The petitioner and his two brothers being the owners of the land in question have mischievously tried to divert the issue on the ground of the land coming under the provisions of the Act, 1908. As per Clause 3 of the said Partnership Deed, duration of the partnership business is for minimum period of 20 (twenty) years, however, the partners are at liberty to retire from co-partnership, subject to giving one month's notice to the remaining partners. The partnership deed cannot be said to be a mere internal arrangement. The terms of the partnership deeds expressly mention that by virtue of the said deed, a new partnership, namely, M/s Samridhi Lifestyle was constituted/ re-constituted. The intervener-Anand Kumar along with the other three partners made huge investments for construction of the said banquet hall/marriage hall over the land made available by the petitioner and his two brothers, which was to be run on the basis of a profit loss sharing model. It is further submitted that the trade license has been obtained behind the back of the interveners by making false representation before the Ranchi Municipal Corporation. It is further submitted that the trade license has been obtained behind the back of the interveners by making false representation before the Ranchi Municipal Corporation. On perusal of the said license, it would appear that the name of the firm i.e. M/s Samridhi Lifestyle has not been mentioned, rather the name of the entity 'Celebration' has been shown which is a unit of M/s Samridhi Lifestyle. The intervener-Anand Kumar raised an objection vide letter dated 26.07.2021 before the respondent No. 1 opposing the claim of the petitioner for getting trade licence in his name to run the banquet/marriage hall in the name of ‘Celebration’. Moreover, the trade licence issued on 15.02.2021 has been cancelled by the competent authority on 14.07.2021. The constitution of the partnership firm and running business of the banquet hall/marriage hall within the framework of the partnership deed cannot be said to be in contravention of the statutory provisions. The principle of estoppel bars the petitioner from denying the right of the interveners and other partners. It is further submitted that the principle of equity tilts in favour of the interveners and the petitioner cannot be allowed to have unlawful enrichment and deprive the interveners of enjoying a right under a valid legal document i.e. a partnership deed. The petitioner’s contention that he along with his two brothers have decided to dissolve the partnership, cannot survive in the eyes of law as the Partnership Act, 1932 is a self-contained code for the purpose of determining the rights and liabilities of the parties. It is a settled principle of law that an act has to be done in the manner prescribed or it ought not to have been done at all. It is also submitted that the partnership deeds dated 24th of February, 2012 and 1st of April, 2014 are not the “Partnerships at Will” and therefore the same cannot be dissolved unilaterally. 7. Learned counsel for the respondent-Ranchi Municipal Corporation submits that the present writ petition is not maintainable in view of availability of alternative/efficacious/ statutory remedy to the petitioner under Rule 14 of the Rules, 2013. 7. Learned counsel for the respondent-Ranchi Municipal Corporation submits that the present writ petition is not maintainable in view of availability of alternative/efficacious/ statutory remedy to the petitioner under Rule 14 of the Rules, 2013. The petitioner was issued notice No. 2694 dated 03.12.2017 by the office of the Ranchi Municipal Corporation directing him that the licence for running the marriage hall/banquet hall in the name of ‘Celebration’ would be cancelled, unless he produced the sanctioned building plan of the said banquet hall and made provision for decentralized composting which was a prerequisite mandated under the Rules, 2013. The petitioner preferred a writ petition being W.P. (C) No. 7274 of 2017 before this Court which was disposed of vide order dated 17.01.2018 directing the petitioner to submit an updated building plan of the marriage hall before the competent authority of the Ranchi Municipal Corporation with further direction to the Corporation to take appropriate decision with regard to sanction of the building plan. The petitioner failed to present the application with updated building plan as directed by this Court vide order dated 17.01.2018 and hence a show cause notice was issued to the petitioner vide letter No. 518 dated 08.03.2018 asking him as to why the banquet hall, namely ‘Celebration’ be not declared as an illegal construction and be not proceeded with in accordance with law. Vide letter No. 917 dated 05.04.2018, the petitioner was again asked to submit the building plan application for the said banquet hall, namely ‘Celebration’ as per the direction of this Court and on failure of the petitioner in submitting the same, an order dated 20.07.2018 was passed by the respondent No. 1 whereby the banquet hall ‘Celebration’ was restrained from taking any booking for the same. The said banquet hall was also directed to pay a fine of Rs. 5,000/- for each booking done by it after 28.02.2018 i.e. the cut-off date fixed after calculating six weeks’ time from the order dated 17.01.2018 of this Court. Subsequent to the order dated 20.07.2018 issued by the respondent No. 1, a fine of Rs. 1,65,000/- was paid by the petitioner and he made an application on 01.01.2019 for sanction of the building plan of the said banquet hall which was sanctioned on 12.02.2019. The building plan application was made for construction of a new building over M.S. Plot Nos. 1,65,000/- was paid by the petitioner and he made an application on 01.01.2019 for sanction of the building plan of the said banquet hall which was sanctioned on 12.02.2019. The building plan application was made for construction of a new building over M.S. Plot Nos. 707(Part), 710(Part), 713, 714 and 715(Part), 717, Khata Nos. 99, 192 and 195, Village-Hatma, District-Ranchi. Since at the time of submitting the building plan application, the old structure of the banquet hall ‘Celebration’ was already existing over the said land, the petitioner swore an affidavit that the existing structure of the said banquet hall would be demolished and after demolition of the existing structure, a new building as per the said building plan, would be constructed over the abovementioned plots. However, the old structure of the banquet hall which was functioning in the name of ‘Celebration’ was not demolished as per the affidavit sworn by the petitioner and the condition laid down in the sanctioned plan, rather the petitioner continued to operate the banquet hall in the same old structure which was admittedly an unauthorized construction for which there was no sanctioned building plan. The existing structure which has been sealed, is actually an unauthorized construction for which there is no sanctioned building plan. It is further submitted that on 15.02.2021, municipal trade license was applied by Rohtas Munda (the petitioner), Rakesh Prasad, Kumkum Srivastava and Anand Kumar on behalf of M/s Samridhi Lifestyle which is a partnership firm of the said persons. However, one of the partners, namely, Rakesh Prasad had already died on 06.09.2020 and his name was fraudulently used as an applicant to obtain a trade licence. An application for issuance of trade licence in the name of a dead person is itself a nullity and void ab-initio. One of the partners, namely, Anand Kumar made representation before the Ranchi Municipal Corporation stating the said facts and also requesting that his consent was also not obtained while making the application for issuance of the trade licence, rather the same was submitted behind his back and without his knowledge and therefore it was liable to be cancelled. After due consideration of the said fact, the trade licence issued on 15.02.2021 was cancelled by the Ranchi Municipal Corporation on 14.07.2021 and as such no trade licence is existing for running the said banquet hall/marriage hall. After due consideration of the said fact, the trade licence issued on 15.02.2021 was cancelled by the Ranchi Municipal Corporation on 14.07.2021 and as such no trade licence is existing for running the said banquet hall/marriage hall. It is also submitted that Section 455 of the Act, 2011 provides for grant of trade licence which is a general licence for practicing any trade in the municipal area and this general provision cannot substitute special provisions provided under the Rules, 2013 framed by exercising the powers conferred under Section 155(1) and Section 590 of the Act, 2011. 8. Heard learned counsel for the parties and perused the relevant materials available on record. At the outset, the intervener-applicants have challenged the maintainability of the present writ petition stating that the marriage hall/banquet hall known as ‘Celebration’ is the property of the partnership firm, namely, M/s Samridhi Lifestyle, however, the petitioner, who is merely one of the partners of the said firm, has filed the present writ petition claiming ownership of the premises along with his two brothers, who are also the partners of the said firm. No authorization/consent has been taken by the petitioner or his two brothers from the interveners/applicants, who are also the partners of the said firm. 9. Learned counsel for the petitioner while countering the said objection of the interveners, submits that the petitioner being the owner of the marriage hall in question has right to file the present writ petition. It is further submitted that the partnership firm was formed in contravention of the Act, 1908 as by virtue of the partnership deed, the property of the persons belonging to tribal community was shared by the non-tribals and as such the partnership firm was dissolved and the said dissolution was also informed to the interveners-applicants and thus they cannot raise claim over the property in question. 10. The fact that the marriage hall/banquet hall known as ‘Celebration’ was constructed by M/s Samridhi Lifestyle, a partnership firm, has not been disputed by the petitioner. The impugned notice of sealing has been issued in the name of the said marriage hall/banquet hall and not in the name of the petitioner. It would be further evident that the trade licence for the said marriage hall/banquet hall was also issued in the name of M/s Samridhi Lifestyle. 11. The impugned notice of sealing has been issued in the name of the said marriage hall/banquet hall and not in the name of the petitioner. It would be further evident that the trade licence for the said marriage hall/banquet hall was also issued in the name of M/s Samridhi Lifestyle. 11. The petitioner’s own stand is that there is a proposal in the deed of dissolution to distribute the income and share of the partnership firm among the partners. It has however not been clarified as to whether the said exercise has been completed. Under the said circumstance, the argument of learned counsel for the petitioner that the petitioner and his two brothers are the sole owners of the said marriage hall, cannot be accepted. 12. The claim of the petitioner is that since the partnership deed was the partnership at will, the same was dissolved by the petitioner and his brothers for the reasons mentioned in the deed of dissolution and the same cannot be questioned by the interveners. On the other hand, the interveners have claimed that as per Clause 3 of the partnership deed dated 24th of February, 2012, the partnership business commenced from the 24th day of February, 2012 and will continue for minimum period of 20 years i.e. till 2032 which may further be continued on the mutual consent of the parties or under other stipulations made in the deed. 13. Learned counsel for the interveners put reliance on a judgment of the Hon’ble Supreme Court rendered in the case of M.O.H. Uduman vs. M.O.H. Aslum, (1991) 1 SCC 412 wherein it has been held that if duration of partnership has been provided in the deed, it cannot be said to be a “Partnership at Will.” 14. This Court is of the view that the question as to whether the concerned partnership deed is a “Partnership at Will” has to be examined by a fact finding Court after going through the contents of the partnership deed as well as the intention of the parties. The petitioner has invoked writ jurisdiction of the Court against the order of sealing of the banquet hall Celebration. The locus of the petitioner to file the present writ petition has been challenged by the interveners, who are the partners of the partnership firm, namely, M/s Samridhi Lifestyle. The petitioner has invoked writ jurisdiction of the Court against the order of sealing of the banquet hall Celebration. The locus of the petitioner to file the present writ petition has been challenged by the interveners, who are the partners of the partnership firm, namely, M/s Samridhi Lifestyle. Since M/s Samridhi Lifestyle is the owner of the said banquet hall and the interveners are objecting the petitioner’s exclusive claim over the same, it would not be appropriate for this Court to entertain the present writ petition until the dispute between the petitioner and the other partners is resolved. A writ petition is filed seeking public law remedy and the power of judicial review cannot be exercised under writ jurisdiction to resolve private dispute of the partners. 15. In view of the aforesaid discussions, in my view, the present writ petition is not maintainable at the instance of the writ petitioner-Rohtas Munda as he has no locus-standi to file the same representing the banquet hall/marriage hall in question. Hence, there is no need to enter into the merit of the other issues raised by the parties before this Court. 16. The present writ petition filed at the instance of the petitioner is accordingly dismissed as not maintainable. 17. Consequently, I.A. Nos. 3577/2021, 3592/2021, 4434/2021 and 6054/2021 also stand disposed of.