JUDGMENT : Narasimham, C.J. - This is an application under Article 226 of the Constitution by the ex-Ingmar of village Malipur in the district of Koraput. In that village there used to be a private market and a private cart-stand, maintained by the Applicant's father during his lifetime and subsequently by the Applicant, after obtaining the necessary certificate u/s 172 of the Madras Local Boards Act, 1920 (as applied to the district of Koraput, and also after obtaining a license under Sections 171 and 187 of that Act, The inam rights of the Applicant in that village were acquired by the State of Orissa by Notification No. 2586-XV. EA-8/54 dated the 1st July 1954 of the Revenue Department, issued u/s 3 of the Orissa Estates Abolition Act (Act I of 1952). The revenue authorities thought that with the acquisition of the village the Applicants rights in the said market and cart-stand were also extinguished. They therefore caned upon him to desist from making any collections in the market and cart-stand in future and also to remit to the State Government the collections made after the date of the aforesaid notification. The Applicant thereupon applied to this Court for the issue of an appropriate writ against the State of Orissa on the ground that his rights in the market and cart-stand were distinct from his rights in the inam village' and that though the Inam village vested in the State Government on the issue of the aforesaid notification u/s S of the Estates Abolition Act, his rights In the market and cart-stand continued to exist. 2. It will be useful to summaries the legislative history dealing with control over private markets in the district of Koraput. In the old Presidency of Madras private markets remained unregulated till 1900 when, by Madras Act VI of 1900, Sections 117 -A to 117. J were Inserted in the Madras Local Boards Act 1884 (Act V of 188), and adequate provisions were made conferring power on Taluk Boards to regulate the establishment of private markets by issuing licenses. In the old Presidency of Madras private markets remained unregulated till 1900 when, by Madras Act VI of 1900, Sections 117 -A to 117. J were Inserted in the Madras Local Boards Act 1884 (Act V of 188), and adequate provisions were made conferring power on Taluk Boards to regulate the establishment of private markets by issuing licenses. Section 117E(3) of that Act provided that "the Taluk Board, as regards the private markets lawfully established at the coming Into operation of this Act shall, and as regards all other private markets may, at its discretion, grant any license applied for under this Section." As that Section was brought into force only in 1900 it was clear that as regards private markets lawfully established prior to that year the Taluk Board was bound to grant a license and had no discretion to grant or refuse the same. As regards private markets established after that year some discretion was conferred on the Taluk Board. This Act with its amendment was applied to Koraput district (which was formerly part of Vizagapatam Agency, sometime in 1905. In 1920 the Madras Local Boards Act, 1884, was repealed and re-enacted as the Madras Local Boards Act, 1920 (Act XIV of 1920). Therein detailed provisions were made for regulating public and private markets. This Act also was applied to Koraput district in due course and though the Act was subsequently amended in 1930 in its application to Ganjam plains, it continues to remain in force in its unamended form In Koraput district. The relevant Sections of that Act are, Sections 170, 171, 172 and 180. Section 171 prohibited a person from continuing to keep upon a private market lawfully established at the commencement of that Act, unless he annually obtained a license from the District Board. Elaborate provisions were made for regulating the grant of licenses which need not be discussed here. Section 112 which Is an important Section for our purpose, may be quoted in full: 172(1) Any person claiming to levy in a private; market lawfully established prior to the coming into force of the Madras Local Boards Act, 1884, fees of the nature specified In Section 168, shall apply to the president of the district board for a certificate recognising his right In this behalf. (2) Such president shall serve a notice of the application on the district board, and In deciding whether the Applicant is entitled to levy such fees the district board shall take Into consideration any representations which the district board may make, and shall thereafter grant or refuse the certificate. (3) The person who has obtained a certificate under this Section shall present It to the district board and the district board shall, in granting him license u/s 171, allow him to levy the fees mentioned in such certificate. Thus, a person who claimed to have lawfully established a private market in Koraput district prior to 1900 was required (1) to obtain a certificate from the District Board recognising his right and (2) then to obtain a licence to keep open that private market. Section 176 conferred power on the District Board to require an owner, occupier, or farmer of any private market, to provide adequately for sanitary arrangements and other conveniences for the people who may frequent the market. Sections 177, 178 and 179 are consequential provisions intended to confer power on the District Board to implement an order u/s 176. Section 180 may be quoted in full: 180 (1) A district board may acquire the rights of any person to hold a private market in any place and to levy fees therein. The acquisition shall be made under the Land Acquisition Act, 1894, and such rights shall be deemed to be land for the purpose of that Act. (2) On payment by the District Board of the compensation awarded under the said Act in respect of such property and other charges incurred in acquiring it, the rights of such person to hold a private market and to levy fees therein shall vest in the District Board. This Section makes it absolutely clear that, for the purpose of acquisition under the land Acquisition Act the rights of an owner of a private market "shall be deemed to be land" as defined in that Act. 3. The Applicants case was that the market and car-stand were first established by his father as a business enterprise in that village sometime In 1900 and that the license and the certificate under the Madras Local Boards Act were obtained by them in due course. 3. The Applicants case was that the market and car-stand were first established by his father as a business enterprise in that village sometime In 1900 and that the license and the certificate under the Madras Local Boards Act were obtained by them in due course. They used to collect fees from the persons who brought their goods to the market for sale in accordance with the scale of fees laid down by the District Board. Though, On behalf of the State of Orissa, the applicanrs statement to the effect that the market Was established for the first time In 1900 was challenged, it was admitted that the market was in existence in the village even prior to 1896. It was also not challenged that the Applicant used to obtain the certificate and the license from the District Board under Sections 172 and 171 of the Madras Local Boards Act, 1920, and realise appreciable Income from the fees collected In the market. 4. On this admitted position the main question for consideration is whether the right of the Applicant in the market was included In his rights in the Inam village and whether, with the extinguishment of his rights in the market also disappeared. 5. The relevant provisions of the Orissa Estates Abolition Act dealing with the acquisition of rights of market may now be summarised. Section 5(a) of that Act says that on the issue of a notification u/s 3(1) of that Act, taking over an estate (Including an inam village, the entire estate including 'hats and bazars' shall vest absolutely in the State Government, free from all encumbrances, and the intermediary (here the lnamdar) shall cease to have any interest in such estate other than the interest expressly saved by or under the provisions of that Act. Section 6(1) of that Act, however, saves to the intermediary those buildings or structures together with the land on which they stand, which were in his possession at the commencement of the Act and used as Golas, factories, or mills for the purpose of trade, manufacture, or commerce. Section 26 describes in detail the various items which make up the gross assets of an estate for the purpose of computing the compensation payable. Section 26(2)(b)(iv) reads as follows: Gross income of the previous agricultural year from fisheries, trees, jakars, ferries, hats and bazars. Section 26 describes in detail the various items which make up the gross assets of an estate for the purpose of computing the compensation payable. Section 26(2)(b)(iv) reads as follows: Gross income of the previous agricultural year from fisheries, trees, jakars, ferries, hats and bazars. Thus the income of the intermediary from "hats and bazars" situated within his estate, was taken into account in computing the gross assets and in subsequently estimating the compensation payable. 6. The Advocate General, on behalf of the State of Orissa, therefore contended that whatever might be the nature of the right of the Applicant in his market, that right was expressly extinguished by Section 5(a) of the Orissa Estates Abolition Act, and compensation was provided for such acquisition by including the income from such markets in calculating the gross assets of the Applicant. 7. On behalf of the Applicant however Mr. Das Gupta urged that the legal right of a person in a market in India may consist of two varieties. It maybe an incident of ownership on the land on which the market is held and the variety of right would necessarily be extinguished when the land It self is acquired. According to Mr. Das Gupta it was this variety of right in a market which Was referred to in Sections 5(a), and 26(2)(b)(iv) of the Orissa Estates Abolition Act. There was also another variety of right in a market which was in the nature of incorporeal property not connected with the land in any way, and that was not affected by the provisions of the Orissa Estates Abolition Act. Mr. Das Gupta's arguments may be summed up as follows: (1) Whatever might have been the historical origin of the applicanrs rights in the market he acquired a new incorporeal right in the same when the certificate was granted to him and to his father by the District Board u/s 172(1) of the Madras Local Boards Act, 1920. (2) Though, for the purpose of the Land Acquisition Act, 1894, that right also should be "deemed to be land" in view of the express provisions of Section 180(1) of that Act, it will not be "land" or 'interest in land' for the purpose of the Estates Abolition Act. (2) Though, for the purpose of the Land Acquisition Act, 1894, that right also should be "deemed to be land" in view of the express provisions of Section 180(1) of that Act, it will not be "land" or 'interest in land' for the purpose of the Estates Abolition Act. (3) In any case in view of the decision of the Supreme Court in Ganpat Singhji v. The State of Ajmer AIR 1955 S.C. 188 , It must be held that the holding of a market was an "occupation;' or "business" of the Applicant on his own land and that consequently the sheds and structures erected by him for carrying on that business, including the land on which they stand, were all saved from acquisition by Section 6(1) of the Estates Abolition Act. 8. It is now well-settled by innumerable decisions that the right in a market in India is not the same as It in England. In England the right to hold a markers a franchise either granted by the Crown as part of the Royal prerogative, or by an Act of Parliament. In India however, it has always been held to be an incident of ownership of land-See Rakhal Das Addy v. Durga Sunduri Dassi ILR Cal. 458, which has been followed in Hem Chandra v. Kristo Chandra AIR 1920 Cal. 255, Province of Bengal v. Hingul Kumari AIR 1946 Cal. 217, P.P. Kutti Keya and Others Vs. The State of Madras and Others, and Kandiyil Vania Pudukudi Ramunni Kurup and Others Vs. Panchayat Board, Badagara and Others. But on the question as to whether it is a "benefit arising out of land" so as to be regarded as "immovable property" as defined in Section 3(25) of the General Clauses Act, there seems to be some difference of opinion. In Surendra Narain Singh v. Bhai Lall Thakur ILR Cal. 752, it was held that a hat is a benefit arising out of land and is therefore "immovable property" for the purpose of the Transfer of Property Act and the Registration Act. A similar view was taken in Sikandar v. Bahadur ILR AU. 462. In Surendra Narain Singh v. Bhai Lall Thakur ILR Cal. 752, it was held that a hat is a benefit arising out of land and is therefore "immovable property" for the purpose of the Transfer of Property Act and the Registration Act. A similar view was taken in Sikandar v. Bahadur ILR AU. 462. On the other hand there are some Calcutta and Patna decisions to the effect that, for the purpose of Section 6 of the Bengal Cess Act, 1880, the income which a landlord derived from a hat situated within his zamindari was neither rent from land, nor annual net profit from immovable property- Sourendra Mohan Sinha and Another Vs. Secy. of State, and Province of Bengal v. Hingul Kumari AIR 1946 Cal. 217. Justice Das, (as he then was) has discussed the English and Indian law regarding markets and distinguished between two classes of income derived from markets: (i) income derived from sellers who exclusively occupy a specific portion of the soil for the purpose of exposing their goods for sale and make payments to the owner of the market or to his Ijadar. Such payments correspond to 'stallage', 'pickage', 'peonage', or 'renr as understood in English law, and should be regarded as being in the nature of rent and as such are "benefits arising out of land". (ii) Income derived from fees paid by vendors and hawkers who, having no right to occupy any specific portion of the land on which the market is held, make such payments for the privilege of attending the market and selling their merchandise. Such payments are in the nature of market, tolls, as understood in English law, and would not be either rent or any other benefit arising out of land. Apparently, Mr. Justice Das's view seems to be that the right of the owner of the market in respect of this class of income is in the nature of incorporeal property. Mr. Das Gupta contended that the income derived from Malipur market by the Applicant came under this class inasmuch as no specific portion of the market was allotted to the sellers, but those sheds were erected inside which a11 hawkers and buyer; could collect and expose their goods for sale on payment of fee to the owner of the market. 9. Doubtless there is considerable force in the contention of Mr. 9. Doubtless there is considerable force in the contention of Mr. Das Gupta that the expression "market" or "hat" may be used in two senses. Firstly, it may refer to those markets where specific portions of the plot are allotted for the exclusive use of the vendor or hawker, either for a day or for a fixed number of hours, on payment of some sort of fee to the owner of the market. Such payments may be-in the nature of rent and the market may be immovable property being a "benefit arising out of land". There may also be another class of markets in which no specific portion is allotted to a particular hawker or vendor, but sheds are constructed to protect them from sun and rain, and an the hawkers and vendors collect inside the shed or outside it and expose their goods for sale. The fees paid by them to the owner of the market may not amount to a "benefit arising out of land" and the right of the owner in such a market may be in the nature of incorporeal property. 10. But these considerations may not strictly apply in South Orissa where the Madras Local Boards Act 1920, has made statutory provisions for recognising ownership in a market and extinguishing the rights of the Owner. I have already referred to Section 172 of that Act by which even the owner ofa private market was required to obtain a certificate from the District Board recognising his right, and it was only after the grant of such a certificate that he was efttitled to a license u/s 171 of that Act. It is true that the grant of a certificate did not by itself confer a right, but it was only by way of recognition of an existing right. Section 180(1) of the Act provides for the acquisition of that right and expressly says that such right "shall be deemed to be land for the purpose of the Land Acquisition Act". The definitions of "land" given In Section 3(a) of the Land Acquisition Act 1894, and of "Immovable property" In Section 5(25) of the General Clauses Act are, for all practical purposes, Identical. Section 3(a) of the Land Acquisition Act says that "land Includes benefits to arise out of land and things attached to the earth". The definitions of "land" given In Section 3(a) of the Land Acquisition Act 1894, and of "Immovable property" In Section 5(25) of the General Clauses Act are, for all practical purposes, Identical. Section 3(a) of the Land Acquisition Act says that "land Includes benefits to arise out of land and things attached to the earth". Section 3(25) of the General Clauses Act defines "immovable property" as follows: ('Immovable property shall Include land) benefits arising out of land, things attached to the earth or permanently fastened to anything attached to the earth." Hence, by virtue of Section 180(1) of the Madras Local Boards Act 1920 it must be he1d that the right of the owner in a private market is "immovable property" being in the nature of a "benefit arising out of land." Mr. Das Gupta, however con tended that such a construction would apply only if the market is acquired under the provisions of the Land Acquisition Act, 1894, and that there was no justification to adopt that construction when it was acquired under the provisions of any other Act like the Orissa Estates Abolition Act. This argument, however, does not appeal to me. It is true that Section 180(1) of the Madras Local Boards Act 1920, says that "for the purpose of the Land Acquisition Act." the right of the owner of a private market "shall be deemed to be land", but it should be remembered that when that Act was enacted in 1920, the only law dealing with acquisition of and was the Land Acquisition Act, 1894 and hence that Act alone was referred to in Section 180(1). In recent years, however, other Acts for acquisition of different classes of interests in land have been rassed by the appropriate Legislatures, including the Orissa Estates Abolition Act, and in the absence of any express provision to t contrary in those Acts it should be held that the principle of Section 180(1) of the Madras Local Boards Act, 1920, would apply also to other laws death with acquisition of land. It is true that the use of the phrase "shall be deemed to be land" in Section 180(1) haws that the Legislature was aware that the rights in some classes of markets may not amount to" immovable property" and hence thought it necessary to insert that deeming provision. It is true that the use of the phrase "shall be deemed to be land" in Section 180(1) haws that the Legislature was aware that the rights in some classes of markets may not amount to" immovable property" and hence thought it necessary to insert that deeming provision. But once such a deeming provision was made in Section 180(1) of that Act, it will be idle to contend that the right of the owner of a market is not "immovable property" at any rate so long as the right in that market remains with the owner of the land. 11. This was the view taken by the Madras High Court in a recent decision Kandiyil Vania Pudukudi Ramunni Kurup and Others Vs. Panchayat Board, Badagara and Others where Venkatarama Ayyar J. (as he then was) observed as follows (at page 758): Thus it will be seen that the decisions and legislation have all proceeded on the footing that the right to hold a market is an incident of the 'Ownership of the property on which it is held, that it is capable of being acquired under the Land Acquisition Act and is itself-at any rate in the hands of the owner-immovable property. The whole question may wear a different aspect if the ownership of the market 'had been severed from the ownership of the land and was vested in some other person. Though a market might be an incident of ownership of land in its origin, there is no legal bar to the owner of the land conferring the right to hold the market on some other person, without granting him any interest in the land. In the hands of the latter person it may amount to some sort of incorporeal property. But these questions are academic in the present case inasmuch as the Applicant was admittedly the owner not only of the market but also of the land on which the market used to be held. The two rights had not been severed by him before the date of acquisition. In his hands, therefore, the ownership of the market must be held to be immovable property being a benefit arising out of his ownership of the land itself. The two rights had not been severed by him before the date of acquisition. In his hands, therefore, the ownership of the market must be held to be immovable property being a benefit arising out of his ownership of the land itself. Once the right of the Applicant in the market is held to be a "benefit arising out of that land" it must be deemed to have passed to the State when the land was acquired under the Estate Abolition scheme. This position has been made clear by the Supreme Court in a very recent decision, Anand Behera v. The State of Orissa (1956) C.L.T. 101 (S.C.), where they held that a benefit arising out of land (in that case it was fishery right, passed to the State with the acquisition of the estate. 12. Even if it be held that the deeming provisions of Section 180(1) of the Madras Local Boards Act, 1920, would not be applicable when the market is acquired under the provisions of the Orissa Estates Abolition Act, that would not help the Applicant. The utmost that can be said on his behalf is that his right in the market is some sort of incorporeal property which, though originally springing from his ownership of the land on which the market was held, subsequently assumed a different legal character. But it is always open to the Legislature in any scheme for abolition of estates, to make supplementary provisions for the extinguishment of subordinate rights that might have accrued within the estate, after providing for payment of compensation for the acquisition of these subordinate rights also. This is what the Orissa Legislature has done in the Estates Abolition Act. It pas expressly extinguished the rights of the intermediary in "hats and bazars" by Section 5(a) and provided for estimating the income from such hats and bazars (vide sections 26 and 27) for the purpose of calculating the amount of compensation payable. Where rights in a market within an estate are held by the owner of the estate and have not been lawfully transferred to some other person the Legislature may reasonably consider that such rights are "ancillary" to his main rights in the estate and that in any comprehensive scheme for acquisition of an estate such ancillary rights also should be acquired, after making provision for payment of compensation for the same. Such a legislative provision would be an integral part of the Estate Abolition scheme, and the inadequacy or otherwise of the amount of compensation fixed for the acquisition of the ancillary right will not be justiciable being protected by Article 31(A) of the Constitution. I may, in this connection, refer to the decision of the Supreme Court, Gaiapati Narayan Deo v. The State of Orissa 20 (1954) C.L.T. 1 (S.C.), which dealt with the acquisition of buildings within an estate which were used exclusively for the management of that estate. Mr. Das Gnpta, however, attempted to distinguish that case by pointing out that though the rights in the buildings used primarily for the administration of the to may be held to be ancillary rights in the estate and as such the acquisition of both the rights may from an integral part of the Estate Abolition scheme, such an argument would not be available for the acquisition of markets which have nothing to do with the administration of the estate. I do not think this subtle distinction makes any difference in principle. The right in the market must be held to be ancillary or subordinate to the right in the land specially when both the rights are held by the same person. It is open to the Legislature to acquire the subordinate or ancillary right also as part of the Estate Abolition Scheme because, otherwise, it may be difficult for the State to enjoy full ownership over the land that is acquired under that Scheme. The principles laid down by the Supreme Court in the case reported in Gaiapati Narayan Deo v. The State of Orissa 20 (1954) C.L.T. 1 (S.C.), are, I think, equally applicable to a case where a Subordinate or ancillary right, like the right in a market within an estate, is also acquired as an integral part of the Estate Abolition scheme. 13. Mr. Das Gupta then contended that by virtue of Section 6(1) of the Orissa Estates Abolition Act the structures and sheds constructed by the Applicant on the market, including the land on which they stand, should be "deemed to be settled with him" by the Government for the purpose of carrying on his "business" of holding a market. 13. Mr. Das Gupta then contended that by virtue of Section 6(1) of the Orissa Estates Abolition Act the structures and sheds constructed by the Applicant on the market, including the land on which they stand, should be "deemed to be settled with him" by the Government for the purpose of carrying on his "business" of holding a market. It is true that in a recent decision of the Supreme Court, Galtpat Singhji v. The State of Ajmer AIR 1955 S.C. 188 , it was held that the holding of an annual fair by an owner on his own land is an "occupation" or "business" within the meaning of Article 19(1)(g) of the Constitution. But in Kandiyil Vania Pudukudi Ramunni Kurup and Others Vs. Panchayat Board, Badagara and Others Venktarama Ayyar J. (as he then was) made the follolng observations (at page 759): If the right to hold a market is an incident of ownership of land and is in the nature of a right to lease the same it can only be considered as a mode of its enjoyment and not as business. It is possible that when that right is transferred, apart from and independently of the land on which it is to be exercised, it might be regarded as business in the hands of the transferee and in that view the impugned provision and the notification would be hit by Article 19(1)(g). Venkatarama Ayyar J., was also a party to the Supreme Court decision reported in Ganpat Singhji v. The State of Ajmer AIR 1955 S.C. 188 , though in that decision the relief was sought under Article 19(1)(g) of the Constitution by the owner of the land and not by the transferee, but this distinction was not fully discussed and that decision dealt with another question altogether. Hence, in view of the learned Judge's observations in Kandiyil Vania Pudukudi Ramunni Kurup and Others Vs. Panchayat Board, Badagara and Others, I have grave doubts as to whether, when the owner of the market is also the were of the land he can be said to be carrying on a business by collecting fees from people who come to the market to expose their goods for sale. Such collection is only a mode of enjoyment of his ownership of the land. Such collection is only a mode of enjoyment of his ownership of the land. Whatever that may be, the Applicant cannot claim any benefit u/s 6(1) of the Orissa Estates Abolition Act. The material portions of that Section are as follows: 6(1). With effect from the date of vesting...such buildings or structures together with the lands on which they stand, as were in the possession of an intermediary at the commencement of This Act and used as galas factories or mills for the purpose of trade, manufacture or commerce, or used for storing grains or keeping cattle or implements for the purpose of agriculture and constructed or established and used for the aforesaid purposes before the 1st day January, 1946, shall be deemed to be settled by the State Government with such intermediary who shall be entitled to retain possession of such buildings or structures together with the lands on which they stand. Mr. Das Gupta urged that the expression "business" used In Article 19(1)(g) of the Constitution as construed by the Supreme Court in Ganpat Singhji v. The State of Ajmer AIR 1955 S.C. 188 had the same meaning as the expression "trade" or "commerce" used in Section 6(1) of the Orissa Estates Abolition Act and that, consequently, it should be held that the structures erected on the market were used for the purpose of "trade" or "commerce". I am, however, unable to accept this argument. The Supreme Court have not said, in Kandiyil Vania Pudukudi Ramunni Kurup and Others Vs. Panchayat Board, Badagara and Others that the holding of a fair is a "trade" within the meaning of Article 19(1)(g). On the other hand that ciao me of the Article uses three expressions, "occupation", "trade" or "business" in juxta-position which would indicate that the expression "trade" was intended to convey an idea different from "business". "Trade" ordinarily denotes being and selling for profit and the expression "commerce" is used where an element of transport or movement of goods is Involved In trade. The buildings or structures saved by Section 6(1) of the Orissa Estates Abolition Act are those buildings or structures used as "Golas, factories or mills for the purpose of trade, manufacture or commerce". "Trade" ordinarily denotes being and selling for profit and the expression "commerce" is used where an element of transport or movement of goods is Involved In trade. The buildings or structures saved by Section 6(1) of the Orissa Estates Abolition Act are those buildings or structures used as "Golas, factories or mills for the purpose of trade, manufacture or commerce". The sheds and structures which the Applicant had erected In the market cannot, by any stretch of Imagination, be held to be "used as Golas, factories or mills for the purpose of trade, manufacture or commerce" and consequently he cannot claim to be entitled to possession of them by virtue of that sub-section. 14. The applicanrs claim to the cart-stand is weaker still. Section 187 of the Madras Local Boards Act 1920 requites a person who wants to keep a private cart-stand to obtain a license from the competent authority. There is no provision corresponding to Section 172 for the issue of a certificate by the District Board; recognlsing his right to keep open a private cart-stand. It is not recognised as a separate right, but is Included in his right of ownership of the land on which the cart-stand is kept. Hence, when the applicanrs right on the land is completely extinguished by the Estates Abolition Act, he cannot claim any residuary right to keep the cart-stand on the land. 15. This application must, therefore, fail and is dismissed, but In the circumstances of this we direct that both parties should bear their own costs. Das, J. 16. I agree. 17. Petition dismissed. Final Result : Dismissed