Badri Narayan Yadav vs State of West Bengal & Ors.

RAJA BASU CHOWDHURY, J.:

Two writ petitions have been filed, one by the father and other by the son both challenging the order dated 17^th February, 2026 passed by the Licence Department of the Howrah Municipal Corporation whereby the petitioner’s, namely, Badri Narayan Yadav’s certificate of enlistment in a respect of 34, Dharmatala Lane, Howrah has been blocked.

These matters have a chequered history. Previously the private respondent no. 9, Ranjit Kumar Ghosh (hereinafter referred to as ‘R.K.G.’) had approached this Court by filing a writ petition being WPA 29304 of 2025 in effect seeking an order so as to restrain municipal authorities from raising any objection and/or insisting for any sanctioned plan for construction of boundary wall at premises no. 34, Dharmatala Lane, P.O. & P.S. – Shibpur, Howrah – 711102 in Ward No. 32, Borough V. When the writ petition came up for consideration the same was opposed by Badri Narayan Yadav one of the present writ petitioners by filing an application for addition of party being CAN 1 of 2026. It was contended by Badri Narayan Yadav, then as intervenor that the intervenor is a thika tenant in respect of premises no. 34 and 34/1, Dharmatala Lane, Howrah and in support thereof, T.R. forms had been disclosed. The intervenor further contended that the intervenor is at present carrying on a parking business under the name and style of ‘M/s. Joy Maa Kali Parking’ and the Howrah Municipal Corporation has authorized the aforesaid business by issuing a certificate of enlistment for the year 2025-26. It was, however, represented on behalf of the said R.K.G. that the intervenor had not been able to establish thika tenancy in an appropriate proceeding under Section 5(3) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 (hereinafter referred to as ‘Thika Tenancy Act’). Having heard the learned advocates for the respective parties, this Court at that stage felt that there was no scope to allow the said writ petition since the certificate of enlistment interfered with the rights of R.K.G. to construct on the property in question. It was, however, made clear that the said order shall not stand in the way of said R.K.G. to take recourse against the aforesaid certificate of enlistment in accordance with law, if so advised. On the issue of cancellation of certificate of enlistment by an application filed by R.K.G. which was pending consideration before the municipality was brought about by filing a writ petition which was registered as WPA 778 of 2026, this Court was of the view that the municipality should take a decision in the matter upon hearing the parties. Pursuant to the aforesaid direction, municipal authorities have heard the parties in accordance with law. In course of hearing the parties had placed relevant documents in support of their contention and ultimately by an order dated 17^th February, 2026 the OSD, Licence Department, Howrah Municipal Corporation had blocked the concerned certificate of enlistment and further noted that the online process for granting of certificate of enlistment in respect of premises no. 34, 34/1 and 34/2, Dharmatala Lane shall remain locked, and in case of issue of renewal of any the licence from the holdings in future, the applicants have to apply in offline mode for such an application.

Being aggrieved with the blocking of the certificate of enlistment not only Badri Narayan Yadav but also his son Biki Yadav has also approached this Court by filing two separate writ petitions as noted hereinabove. When the matter initially came up for consideration, this Court by an order dated 30^th July, 2026 upon hearing the parties and also noting that the municipality has already produced the original records had permitted the parties to rely on additional documents provided advanced copies thereof are circulated. The objection raised on behalf of R.K.G. as regards maintainability of the writ petition by Biki Yadav was kept open to be finally decided.

Pursuant to the aforesaid direction, the respective parties have filed their additional documents which are taken on record.

Mr. Banerjee, learned advocate appearing for Badri Narayan Yadav and Biki Yadav (hereinafter referred to as ‘Yadavs’) has placed before this Court the order passed by the municipal authorities and would submit that it is an admitted position that during the inspection by the Licence Department all the three holding numbers were not found demarcated nor partitioned and the area of the petitioners’ garage was found to be 7258 square feet approximately.

According to him, having regard to the guidelines framed by the Government of West Bengal dated 30^th June, 2021 in terms of the Clause 4 thereof, to obtain a certificate of enlistment for establishing occupancy several documents have been identified. Electricity bill is one of such document. By drawing attention of this Court to the electricity bill issued in the name of Badri Narayan Yadav in respect of premises no. 34, Dharmatala Lane, he would submit since the Yadavs have been able to establish that an electricity bill has been issued in its favour, the same would constitute proof of occupancy and no further document is necessary. Though the above bill was disclosed, the same has been disregarded by the municipality. In support of his contention that amongst several documents to prove the occupancy, one of the proof of occupancy is sufficient and that the municipal authorities are bound to act on the basis thereof, he has placed reliance on the judgment delivered in the case of Ram Koley vs. The State of West Bengal & Ors. having neutral citation 2025:CHC-AS:1268.

He has also placed reliance on the IB copy issued by the municipal authorities for the assessment year 1939-40 to demonstrate that premises no. 34, Dharmatala Lane stood recorded in the name of Ram Das Goala and Lachman Goala who happens to be the predecessor-in-interest of the Yadavs. According to him, if the municipal authorities have subsequently issued fresh IB copy and have altered the status of the owners in the 1B copy, the same cannot interfere with the rights of the Yadavs. Independent of the above he has also placed reliance on the LR records of rights to demonstrate that the names of the Yadavs stand recorded as occupier in respect of the aforesaid holding numbers.

In the peculiar facts noted hereinabove he submits that the order passed by the municipal authorities is perverse. In any event, the same seeks to interfere with the rights of the Yadavs as guaranteed under Article 19(1)g) of the Constitution of India and accordingly, the impugned order should be set aside which would have the effect of consequentially, restoring the certificate of enlistment issued in favour of the Yadavs.

Mr. Mukherjee, learned senior advocate appearing for R.K.G., the respondent no. 9 herein would, however, submit that premises no. 34, Dharmatala Lane, Howrah originally comprised of 17 kathas 1 chittaks and 13 square feet which formed the subject matter of a title suit being TS 271 of 1979. According to him, the predecessors-in-interest of the R.K.G. had filed the title suit and sought for a decree for declaration that the plaintiffs have right, title and interest in respect of A and B schedule property and the principal defendant has no right to interfere with the plaintiffs peaceful possession of schedule A property on the footing that the principal defendant has no right, title and interest in respect of schedule A and schedule B property. According to Mr. Mukherjee, the predecessor-in-interest of the Yadavs has contested the suit by filing written statement. The suit was decreed on contest by a judgment and decree dated 24^th February, 1993, whereunder it was established that the plaintiff had been able to prove its right in respect of schedule A property and the defendants were restrained from interfering while in respect of Schedule B property no decree was passed. The said judgment and decree passed on 24^th February, 1993 was affirmed on appeal by the learned Court of the Civil Judge, Senior Division, Howrah in Title Appeal No. 66 of 1993 by a judgment and decree dated 30^th April, 1999. According to him, the Yadavs by making incorrect disclosure have obtained the certificate of enlistment online. In any event by drawing attention of this Court to an order passed by the Office of Thika Controller on 6^th May, 2025 he submits that the Yadavs can at best assert their right in respect of 2 kathas and 5 kathas respectively that is 7 kathas in premises no. 34/2, Dharmatala Lane which has been prima facie found to be a thika tenanted property though a final decision in this regard under Section 5(3) of the said Thika Tenancy Act is yet to be rendered. He submits that the Yadavs had made a disclosure that they were having an electricity bill in respect of holding no. 34, Dharmatala Lane though no right was established by the Yadavs in respect of such premises. This apart on physical inspection it was found that the Yadavs were enjoying a space of 7258 square feet which is far more than the area which stands recorded in the name of the Yadavs in the IB records maintained by the municipality. That as per the IB records of premises no. 34/2, Dharmatala Lane the names of Yadavs are recorded as occupiers. It is in the peculiar facts that the authorities having raised serious doubts as regards the title of the Yadavs in respect of the property had blocked the same for the Yadavs to make an appropriate disclosure before the authorities by filing an offline application.

In the facts as stated hereinabove it is submitted that order passed by the municipality does not call for intereference. The Yadavs have failed to establish perversity. The judgment relied upon by Mr. Banerjee does not assist the Yadavs. Further Biki Yadav was never a certificate of enlistment holder. He has no right to challenge the order.

Mr. Sureka, learned advocate appears on behalf of the municipality. He would submit that the authorities have carried out the direction passed by this Court in accordance with law. There is no irregularity in the action taken by the authorities. This apart he submits that admittedly, there has been misrepresentation on the part of the Yadavs while obtaining the certificate of enlistment and accordingly the consequential steps have been taken. He submits that the Yadavs are at liberty to approach the authorities in an offline mode and if such application is filed, the application shall be considered in accordance with law.

Having heard the learned advocates appearing for the respective parties and having considered the materials on record, I find that admittedly in respect of holding no. 34, Dharmatala Lane, Howrah, a title suit was filed by the predecessor-in-interest of the R.K.G. In the said title suit the predecessor-in-interest of the R.K.G. had, inter alia, made the following claim.

To more fully appreciate the extent of the schedule of the aforesaid title suit being T.S. No. 271 of 1979, the same is also extracted hereinbelow :-

Upon going through the disclosure made by the parties, I find though Mr. Banerjee would submit that the Yadavs do not trace their title from the principal defendant in the aforesaid title suit, however, a perusal of the written statement filed by the contesting defendant no.1 would demonstrate that the defendant no. 1 in paragraph 17 thereof has specifically stated that the “answering defendant’s father Lachman @ Ahir Goala @ Yadav is a recorded owner and occupier of the entire suit property that is (Schedule A and B). Since the time of his predecessor-in-interest is possessing the entire property as right, peacefully, uninterruptedly and adversely by exercising all overt acts of ownership and possession thereto as also by making structure and substantial improvement on it”.

The suit, however, came to be decreed in favour of the plaintiffs insofar as Schedule A is concerned. Though, an appeal was filed by the defendant no. 1, the learned appeal Court by placing reliance on the exhibit 4 series being the R.s. record of rights of R.S. Plot No. 406 bearing Khatian as 227 and R.S. Plot no. 333 bearing Khatian No. 233 which is a schedule A property comprised of holding no. 34 declared that the same stands in the name of the predecessor-in-interest of the plaintiffs, and also by noting that there has been no challenge to the same and, thus, by accepting the entries made therein which are presumed to be true and correct held that as per the same the Schedule A property that is premises no. 34, Dharmatala Lane stands recorded in the name of plaintiff’s predecessor-in-interest and another co-sharer. Insofar as Schedule B property that is holding no. 34/1, Dharmatala Lane the same stands recorded in the name of predecessor-in-interest of the appellant as would corroborate from the exhibit 6 and 6A series, and the defendants were restrained from interfering with the plaintiff’s interest in the said suit schedule A property.

Though subsequently the Yadavs had approached the Thika Controller and prima facie has been able to make out a case that the petitioner’s interest is in respect of 7 kathas of land as would corroborate from the order dated 6^th June, 2005 (expartee proceedings), I find that a final decision in this regard under Section 5(3) of the Thika Tenancy Act is still awaited. However, there is no denial of the fact one of the Yadavs that is Badri Narayan Yadav had a subsisting licence and was carrying out business from a portion of the locale. Though, Mr. Banerjee by relying on the judgments delivered by this Hon’ble Court especially the case of Ram Koley (supra) has insisted that once, the petitioner had disclosed on one of the documents as identified in the government circular dated 30^th June, 2021, the petitioners’ onus to establish occupancy for obtaining trade licence/certificate of enlistment stands discharged, however, in the peculiar facts where there is a subsisting decree passed by a Civil Court which was affirmed by the appellate decree especially in respect of premises no. 34 Dharmatala Lane, I am unable to accede to the contention of Mr. Banerjee.

Having regard to the nature of disputes involved, in my view, a simplicitor disclosure of electricity bill or for that matter a subsequent record of right may not establish a right of occupancy in favour of the Yadavs, the petitioners, as the same would run counter to the decree passed by a competent Civil Court which stood affirmed in appeal. Be that as it may, the fact that the petitioners have been able to establish a prima facie case in respect of 7 kathas of land before the controller, cannot be ignored though such decision is yet to reach a finality. In the light thereof, noting that the municipal authorities had already identified that holding no. 34/2 Dharmatala Lane stands recorded in the name of the Yadavs, the petitioners as occupiers in the assessment demand registrar of the Howrah Municipal Corporation which has a corresponding area of 7 kathas, in my view at this stage to balance the equities it shall be appropriate as and by way of an interim measure, to direct the municipal authorities to grant certificate of enlistment in favour of Badrinarayan Yadav, subject to the final decision to be taken in a proceeding under Section 5(3) of the Thika Tenancy Act.

The judgment delivered in the case of Swapan Kumar Khaskel vs. Kolkata Municipal Corporation and Others, reported in 2023 SCC online Cal 5039 as referred by Mr. Banerjee was obviously delivered in a different set of facts. In the said case, the municipal authorities had outrightly refused to accept the electricity bill as proof of occupancy. No decree by a competent civil court was subsisting. Such is not the case here. Insofar as the judgment delivered in the case of Raghunathpur Municipality and Others vs. Sabita Chowdhury and Anr. reported in 2019 SCC online Cal 5947 is concerned, the issue that fell for consideration is whether the municipality is competent to investigate the question of title of the land. I am afraid the above judgment also does not assist the petitioners for simple reason that a competent civil Court has already passed a decree in favour of the predecessors-in-interest of R.K.G., as such there is no scope for adjudication on title. For identical reasons, the judgment delivered by this Court in the case of Bhagawatdas Jaiswal (neutral citation : 2026:CHC-OS:280), also does not come in aid of the petitioners.

In view of the above no other issue survives.

After this order was passed, Mr. Sureka, learned advocate appearing for the municipality would insist that unless Badri Narayan Yadav makes formal application, the municipality cannot decide on his eligibility. I am of the view, having regard to the peculiar facts the municipality is not competent to adjudicate upon the rights of the parties especially when the same is pending consideration before an appropriate forum, the direction to grant certificate of enlistment has been issued as and by way of a stop gap measure and to ensure that the right of the Yadavs to do business stands protected; the certificate of enlistment, however, would be coterminous with the decision to be rendered by the appropriate authority under the Thika Tenancy Act. Thus, once such decision is rendered all consequences shall follow and in such a case, the municipal authorities may insist upon the concerned person to apply afresh.

For the purpose of records an ordinary application by Badri Narayan Yadav for obtaining certificate of enlistment may be insisted upon by the municipality.

Peculiar factual scenario requires peculiar orders to be passed. Taking into consideration the above, the aforesaid direction has been passed.

Accordingly, both the writ petitions stands disposed of with the above direction. The order passed by the municipal authorities stands modified accordingly.

All parties shall act on the basis of server copy of this order duly downloaded from this Court’s official website.