Ranjita Bala Banik vs Agartala Municipal Corporation And Ors

[1] The petitioner has challenged an order dated 12th December, 2019 under which the Municipal Commissioner of Agartala Municipal Corporation was pleased to cancel the provisional Municipal Trade license of the petitioner dated 02.12.2019.

[2] Briefly stated the facts are as under:

The husband of the petitioner, late Sri Hiralal Banik had started a business in the name and style of „M/s. Nabarupa Stores‟ situated at 40/1, Central Road, Agartala, West Tripura. Hiralal Banik expired in the year 2001 leaving behind his widow and respondent No.3, Sri Sankar Lal Banik his elder son besides other heirs. According to the petitioner after the death of her husband, pursuant to a family settlement she received the right to continue the said business of „M/s. Nabarupa Stores‟ whereas the respondent No.3 received interest in other business of the deceased which the said respondent No.3 sold out and which is now being run by the purchaser in the name of „Loknath Stores‟. On the basis of said family arrangement the respondent No.3 had given no objection to the Superintendent of Taxes, Charge-II, Agartala, Tripura(West) to his mother i.e. the present petitioner continuing to run the said business in the name of „M/s. Nabarupa Stores‟ under a letter dated 19th July, 2001. According to the petitioner, a trade licence was, therefore, issued in her favour by the Agartala Municipal Corporation (AMC) under Section 188 of the Tripura Municipal Act, 1994 in the year 2001 itself and since then she has been running the said business in the name and style of „M/s. Nabarupa Stores‟ at the above mentioned address. The trade licence was renewed by the authorities every year. The petitioner has produced the latest renewal certificate dated 02.12.2019 at annexure-2 to the petition.

[3] Suddenly, the Municipal Commissioner, AMC passed the impugned order by which as noted, he cancelled the trade licence issued in favour of the petitioner. The order reads as under:

"Sir/Madam,

This is to inform you that one Provisional Trade License was issued vide Municipal Trade License No.1/19/2018, dated 2-12-2019, by the Assistant Municipal Commissioner, Central Zone, AMC.

On scrutiny of records, it is seen that the name M/S Nabarupa Stores was given by Lt. Hiralal Banik, and hence all the survivors of Late Hiralal Banik shall have the right to use this name.

Fresh license in the name of M/S Nabarupa Stores may be issued only if either all legal survivors apply jointly or the applicant submit NOC from all legal survivors.

But in your submitted documents, you have not provided no such NOC, which has to be given by the other legal survivors, in order to have a provisional Trade License.

Hence, the provisional Municipal Trade License No..-1/19/208, dated; 2-12-2019, in the name & style, "M/S Nabarupa Stores" is hereby cancelled. Further, you are instructed to submit a fresh application with an alternative name instead of M/S Nabarupa Stores, in the event of non receiving of NOC from the other legal heirs.****"

[4] The petitioner through her advocate issued a notice dated 06.02.2020 to the Municipal Commissioner, AMC in which it was stated that the trade licence is provided by the Corporation (AMC) only for the purpose of maintaining safety and security of the locality and the Corporation has nothing to do with the name of the firm or the business. Any such issue would be within the exclusive jurisdiction of the authority under the Trade Marks Act and the dispute would lie before a Civil Court. She requested that the order dated 12th December, 2019 be cancelled and her trade licence be restored. When the authority did not act on this notice, present petition was filed.

[5] The AMC had appeared and filed reply dated 14th July, 2020 in which it was stated that the trade licence in the name and style of „M/s. Nabarupa Stores‟ was issued by the AMC on 02.12.2019 in favour of the petitioner and two others i.e. Sri Shashankar Banik and Sri Dipankar Banik, both sons of deceased Hiralal Banik after conducting physical inquiry. Subsequently, the third son of Hiralal Banik i.e. Sri Sankar Banik filed a complaint regarding the renewal on the ground that the name „Nabarupa‟ was given by Hiralal Banik and there was a family dispute regarding the use of the same. The authority, therefore, instructed the petitioner to submit a fresh application with another name. In fact in response to such communication, the petitioner also applied for a trade licence in the name and style of "Adi Nabarupa Store" which request was accepted by the AMC and she was asked to pay the licence fee which she did not.

[6] Respondent No.3, Sri Sankar Banik has also filed a reply which is dated 13th July, 2020 in which he has stated that Hiralal Banik expired leaving behind his widow, three sons and two daughters. The petitioner has not produced no objection to run the said business from the other legal heirs of the deceased. Regarding his own no objection, he stated that the same was not a valid no objection, since it was tendered on a plain paper without attesting witnesses. He has also referred two several other properties left behind by the deceased about which according to him, there are disputes amongst the family members. He has referred to a civil suit instituted by the petitioner and the other two sons of deceased Hiralal Banik before the Civil Judge, Sr. Division, Agartala for partition of the joint property of the deceased instituted in the year 2020.

[7] I have heard learned counsel for the parties. We may recall, the petitioner‟s husband expired in the year 2001 and on the basis of no objection issued by the respondent No.3 she continued the business which was started by her husband in the name and style of "M/s. Nabarupa Stores". For such purpose, she was granted trade licence by the Corporation. This licence was required to be renewed annually which was so done from time to time. Thus, for closed to 18 years the petitioner enjoyed the trade licence. The respondent No.3 in the affidavit-in-reply though has taken various grounds of validity of the said no objection dated 19.07.2001, nowhere has he disputed his signature on the said document. It would also not be possible to imagine that for all these many years he was not aware about the said business of his father being run by the other members of the family. He apparently raised objection before the AMC only recently. AMC promptly accepted the objection and without even hearing the petitioner cancelled the trade license by an ex-parte action.

[8] In my opinion, the decision of the AMC suffers from total illegality. To begin with, the trade licence which was issued in favour of the petitioner and which she enjoyed for closed to 18 years, was abruptly cancelled without even notice being issued to her. She was given no opportunity of hearing before the order of cancellation was passed. Further, the trade licence was issued in her favour after the respondent No.3 issued a letter of no objection to the municipal authorities. In the reply filed in the petition, as noted, the respondent No.3 though has raised issue about the validity of such no objection, he has not once disputed his signature on the said document. Most importantly, the ground on which the licence is sought to be cancelled is totally invalid. According to AMC, the eldest son of the deceased has raised an objection to the use of the name of „Nabarupa‟ which was already assigned to some other person. This is a dispute in the nature of a trade mark or passing off. The AMC would not be the competent authority to judge on the same. The Municipal Commissioner should have directed the parties to seek their remedies as available in the law. The respondent No.3 has not filed any suit as of now. If according to him in the process of the petitioner running the business in the name and style of „M/s. Nabarupa Stores‟, she is breaching any existing trade mark or committing the act of passing off, it is up to him to take such legal measures as advised. Certainly, cancellation of the trade licence of the petitioner is not one of them.

[9] The fact that the petitioner at one stage showed willingness to accept the trade licence in some other name would not preclude her from challenging the impugned order of the Municipal Commissioner. While I find that the order of Municipal Commissioner suffers from gross illegality, the petition cannot be dismissed since the petitioner has been extended her willingness at one stage and agreed to apply for a trade licence in some other name. There cannot be any estoppel against her pursuing her legal remedies.

[10] In the result, the impugned order dated 12th December, 2019 is set aside. The trade licence in favour of the petitioner and others in the name and style of "M/s. Nabarupa Stores" shall automatically stand renewed.

[11] The petition is disposed of accordingly. Pending application(s), if any, also stands disposed of.