Nilima Karmakar vs State Of Assam And 3 Ors

Devashis Baruah, J

Heard Ms. R. Saha, the learned counsel appearing on behalf of the petitioner. Mr. S.C. Biswas, the learned Standing Counsel appears on behalf of the Bongaigaon Municipal Board.

The petitioner, who is a widow aged about 70 years as on date is earning her livelihood by running a shop for retail sale of spectacles and other optical equipment. The Petitioner has approached this Court seeking a direction upon the Bongaigaon Municipal Board to issue a trade license in her favour.

The brief facts which led to the filing of the present writ petition are that the petitioner s husband, late Arun Kr. Karmakar (since deceased), was a tenant under one Shri Harekrishna Das (since deceased) and after his death Shri Hemen Das, the present land-lord. The petitioner s husband had established a shop for retail sale of spectacles and other optical equipment under the name and style of Nisa Optics . The husband of the petitioner was issued a trade license by the Bongaigaon Municipality (now the Bongaigaon Municipal Board), on a yearly basis. Unfortunately, the petitioner s husband expired on 30.08.2023. Thereupon, the petitioner, in order to earn her livelihood has been running the said shop.

However, on account of landlord-tenant dispute between the petitioner and Shri Hemen Das and there being a Civil Suit being Title Suit No. 131/2023 pending before the learned Court of the Civil Judge (Senior Division), Bongaigaon, the landlord has not issued a No Objection Certificate. Resultantly, the Bongaigaon Municipal Board is not inclined to issue a trade license in the name of the petitioner, though the trade license issued earlier had been renewed in the name of the petitioner s husband, who expired in the year 2023. It is under such circumstances, the present writ petition was filed.

Ms. R. Saha, the learned counsel appearing on behalf of the petitioner submitted that like electricity, which is an essential service, the petitioner cannot continue her business without a trade license, as it is the requirement of law. The learned counsel further submitted that the petitioner is a tenant and presently on account of the eviction proceedings initiated by the landlord, there is no likelihood that her landlord would provide a No Objection Certificate. The insistence for the No Objection Certificate from the landlord by the Bongaigaon Municipal Board to issue the trade license renders in the present facts, their actions arbitrary and unreasonable. In that regard, the learned counsel referred to the judgment of the Supreme Court in the case of Dilip (Dead) Through Lrs. Vs. Satish & Others reported in 2022 SCC OnLine SC 810 as well as the judgment passed by the learned Coordinate Bench of this Court in the case of Mohit Kumar Deb Roy vs. Gaurangalal Roy reported in 1986 (1) GLR 442.

Mr. S.C. Biswas, the learned counsel appearing on behalf of the Bongaigaon Municipal Board submitted that a trade license is granted to a tenant only upon submission of a No Objection Certificate from the landlord, and that being the mandate followed by the Bongaigaon Municipal Board in respect to all applicants, the said action of the Bongaigaon Municipal Board cannot be said to be arbitrary or unreasonable.

This Court has given anxious consideration to the respective submissions and has also perused the judgments referred to by the learned counsel for the petitioner.

A trade license is issued by the Municipal Board for the purpose of collecting tax or fees. This power is traceable to Entry 60 and Entry 66 of List II of the Seventh Schedule to the Constitution of India. The issuance of trade license by the Municipal Board being solely for the purpose of collecting tax/fees for the Municipal Board. On the other hand, the Municipal Board have not been endowed any powers for regulation of the tenancy. Under such circumstances, it is the opinion of this Court that insistence for the No Objection Certificate from the landlord for issuance of a trade license to the tenant amounts to regulating the tenancy between a landlord and tenant which is beyond the jurisdiction of the Municipal Board.

It is also relevant to note that the landlord tenant relationship in an urban area in the State of Assam in respect to a premises is regulated by the Assam Urban Areas Rent Control Act, 1972. The said Act of 1972 provides the grounds of eviction.

In the backdrop of the above, the material facts would show that the petitioner cannot carry out any trade/business without a trade license. The insistence by the Bongaigaon Municipal Board for a No Objection Certificate from the landlord for the petitioner to obtain a trade license that too when there is an ongoing dispute between the petitioner and her landlord not only is without authority of law but also is arbitrary and unreasonable.

It is pertinent to observe that when there is a landlord-tenant dispute pending before a Civil Court, it is not expected that the landlord would grant the No Objection Certificate, and if such a course of action of insistence for a No Objection Certificate from the landlord is allowed to be perpetuated for grant of a trade license, it would amount to eviction of the petitioner other than on the grounds mentioned in the Assam Urban Areas Rent Control Act, 1972.

Consequently, this Court disposes of the instant writ petition with the following observations and directions:

(i) The Bongaigaon Municipal Board is directed to forthwith issue a trade license in favour of the petitioner, subject to the petitioner complying with all other requirements mandated by the Bongaigaon Municipal Board, however, without insisting upon a No Objection Certificate from the landlord.

(ii) The said exercise shall be carried out within a period of 15 (fifteen) days from the date a certified copy of the present judgment is served upon the Executive Officer of the Bongaigaon Municipal Board.

(iii) This Court further observes that the present judgment shall not in any manner, affect or prejudice the rights of any of the parties in Title Suit No. 131/2023 presently pending before the learned Court of the Civil Judge (Senior Division), Bongaigaon.