- (1.) The Court : In this application the petitioners have prayed for fire following reliefs : "(a) A writ of or in the nature of Mandamus do issue commanding the Respondents and each one of them, their men and agents to forthwith grant to the petitioner No. 1 Certificate of Enlistment as envisaged under section 200 of the Calcutta Municipal Corporation Act, 1980 to enable the petitioners to pay tax on profession, trade and calling as envisaged under section 199 of the said Act; (b) Order directing the Respondents to forthwith certify and transmit to this Hon'ble Court all records pertaining to the petitioners case for doing conscionable justice by quashing any order refusing to grant the Certificate of Enlistment to the petitioners; (c) Rule be issue in terms of prayers (a) and (b) above; (d) Rule be made absolute upon hearing; (e) Injunction restraining the Respondents and each one of them from taking any action or proceeding against your petitioner or from preventing the petitioners to carry on their business and trade from premises No. 237, Karnani Mansion, 25A, Park Street, Calcutta-16 till the disposal of the petition; (f) Ad-interim order in terms of prayer (d) above ; (g) Cost of, and incidental to, this petition ; (h) Such other or further order or orders as to Your Lordships may deem fit and proper."
(2.) The facts of the matter are as follows : One Mrs. Denise Sethna is said to be the petitioners' Immediate landlord. The petitioners filed an application for grant of certificate of enlistment before the Calcutta Municipal Corporation. The said prayer of the petitioners was refused, inter alia, on the ground that as the petitioners have not obtained the consent of their landlord and furthermore as the premises is said to be meant for residential purposes and not for commercial purposes, no licence can be granted to the petitioners. The petitioners have, inter alia, contended that in the building in question the petitioner No. 1 is a tenant, there are a large number of commercial establishments having obtained Certificate of Enlistment and the names of the few of such commercial establishments have been stated in paragraph 25 of the writ application. Further Contention of the petitioners is that upon a bare perusal of the provisions contained in section 199 and 200 of the Calcutta Municipal Corporation Act (hereinafter referred to as the said Act), it would be evident that it is not necessary for a tenant to obtain consent of the landlord. The learned Counsel appearing for the petitioners in support of this aforementioned contention has relied on a decision of this Court in the case of Abdul Rashid v. Calcutta Municipal Corporation & Ors. reported in AIR 1991 Cal 234 : CAL LT 1990(1) HC 127 : 93 CWN 799.
(3.) The learned Counsel appearing on behalf of the Calcutta Municipal Corporation, however, placing reliance on the aforementioned provisions as also the provisions contained in sections 103, 193, 232 and 416 of the said Act, submitted that in a case of this nature the consent of the landlord is a must. It was further submitted that in terms of the provisions of the said Act a consolidated rate may have been fixed which will be first charge on the property and thus in case of default on the part of the petitioners, the landlord will suffer and in that view of the matter the consent of the Landlord is a must. The learned Counsel distinguished Abdul Rashid's case (supra) and submitted that in that case the business was going on and taking into consideration the said fact the aforementioned decision had been rendered.;