Judgment :- Ramaprasada Rao, J.:— 1. O.S. No. 110 of 1965 on the file of the Court of the Subordinate Judge, Coimbatore, was originally filed by Market Vyabarigal Sangam, Coimbatore, by its principal Secretary, for the time being, but in a representative capacity. On an objection taken as regards the frame of the suit, plaintiffs 2 and 3 were impleaded as co-plaintiffs, and at the time when they sought themselves to be impleaded, they made it clear that they were joining in the action in a representative capacity for and on behalf of the stallholders carrying on business in Thyagi Kumaran Market, Coimbatore, and not only to further the alleged rights in themselves as such stall-holders in the said market. The suit is for a declaration that the levy of fees by the Municipal Council, Coimbatore, for the use and occupation of the stalls in the Thyagi Kumaran market owned by it, is ultra vires, illegal and void and for a permanent injunction restraining the Municipality from collecting such fees demanded by them in view of their occupation and use of the stalls in the market. The various stalls and their position are set out in Schedules A (1), B(1), C(1) and D(1). The plaintiffs claim is that even though the stalls are situate in the same precincts, different rates of levy have been made from time to time, and such levy is not in accordance with the provisions of the District Municipalities Act or the rules framed thereunder. The plaintiffs case is that at one stage, there was an increase in such a levy by 25 per cent of the previous fee by a resolution dated 12th February, 1964 and that rate was prevalent since 1st April, 1964, till the date of suit. The complaint, however, is that by Resolution No. 1309 dated 23rd January, 1965 the rate of fee was further increased, and such enhanced levy was demanded by notice issued by the Municipality soon after the passing of the resolution as above, and this is said to be the cause of action for the suit in question. The plaintiffs case is that the Municipality has no right to make such a levy, and in any event, the levy is arbitrary and illegal besides being discriminatory. The plaintiffs case is that the Municipality has no right to make such a levy, and in any event, the levy is arbitrary and illegal besides being discriminatory. Though in the pleadings, the resolution as such is attacked on the ground that it is ultra vires the powers of the Municipality, yet, there is no prayer in the plaint seeking for the removal of the said resolution under which the impugned demand was made. 2. The Municipality, in its written statement, says that the suit is not maintainable in law, as what was sought to be collected is in the nature of a return from the property owned by the Municipality, that it has the right to fix and levy such fees on the occupants or stall-holders in the market, and that the relationship between the Municipality and the stall-holder is one of licensor and licensee, the period of the licence being one year. As this licence was renewable annually under written agreements generally entered into for the purpose, the occupation of the stalls is governed by a contract between the parties, the legality or otherwise of which cannot be the subject matter of a civil dispute. It is also claimed that the rate fixed by the Council was to augment the resources of the Council and to meet the increased cost of maintenance and upkeep of the market. For the above reasons, the levy was sought to be sustained and the suit was resisted. 3. On the above pleadings, the following issues were framed: 1. Whether the levy in pursuance of resolution No. 1309 dated 13th January 1965 is illegal, void and arbitrary? 2. Whether the levy is ultra vires the powers of the defendant under the Madras District Municipalities Act? 3. Whether the suit as framed is not maintainable in Law? 4. Whether the suit is barred by the principles of res judicata? 5. Whether the plaintiff has no cause of action to file the suit? 6. Whether the plaintiff is entitled to the declaration and permanent injunction prayed for? 7. To what relief is the plaintiff entitled? 4. The learned Subordinate Judge dismissed the suit and held that the levy was legal, not void and is not arbitrary and that it was well within the powers of the defendant Municipality under the provisions of the Tamil Nadu District Municipalities Act. 7. To what relief is the plaintiff entitled? 4. The learned Subordinate Judge dismissed the suit and held that the levy was legal, not void and is not arbitrary and that it was well within the powers of the defendant Municipality under the provisions of the Tamil Nadu District Municipalities Act. On the issue whether the suit was barred by res judicata, he held against the defendant, but on the primary issues raised, the judgment was against the plaintiff. It is as against this the present appeal has been filed. 5. Mr. Sundaram Iyer, the learned Counsel for the appellant, hesitantly urged before us that the levy is beyond the powers of the Municipality, and that the fee claimed by it under the resolution of 1965 savours of discrimination as an element of arbitrariness is writ large in it. We have said that the argument is hesistant, for the reason that Mr. Sundaram Iyer was aware of the decisions of this Court rendered under similar circumstances, wherein similar questions were raised about the power of the Municipality to levy such a fee and collect it from the stall-holders in the market owned and maintained by them. The other question posed before us was, whether the levy, even if it is intra tires of the powers of the Municipality ought to be removed, since in the light of the evidence let in, it is arbitrary and savours of discrimination. 6. Mr. Alagiriswami, the learned counsel for the Municipality, relying upon the decisions of our Court, which we shall presently refer to, urges that the Court below has rightly appreciated the position, though for different reasons rendered by it, and urged that as a uniform yardstick was adopted by the Muncipality in evolving a formula for the levy of fee in question, no question of discrimination or arbitrariness is apparent in the levy or in the record. 7. We would have, but for the decisions of this Court, rendered under similar circumstances, entered into a fuller discussion into the legal aspect which this case poses. 7. We would have, but for the decisions of this Court, rendered under similar circumstances, entered into a fuller discussion into the legal aspect which this case poses. Unfortunately, however, the decisions rendered by this Court have not been reported, and it has, therefore, become necessary for us to quote in in extenso the observation made by this Court earlier, in a case which arose before it and in which also the question was whether the levy was intra vires or ultra vires of the powers of a Municipality functioning under the Tamil Nadu District Municipalities Act. 8. In Writ Appeal No. 218 of 1972, etc. ( Arumugha Kone v. The Palayamkottai Municipal Council and others), before a Division Bench, to which one of us was a party, a similar question came up for consideration. In those proceedings, writs of mandamus were asked for directing the Palayamkottai Municipality to forbear from levying and collecting as well the fees at the enhanced rates as per the resolution of the Municipal Council made in 1972 in relation to the permanent stalls in the Mahatma Gandhi Market, Palayamkottai. Before the Writ Appeals came up for consideration before the Division Bench, consisting Of Ismail and Natarajan, JJ., I had occasion to deal with almost a similar question, and con sidered the legality of the levy and observed: “In conclusion I have to hold that impost in the instant case is not a tax, but certainly, it is not a fee which is governed by the doctrine of quid pro quo , but is a compulsory exaction sanctioned by statute and being annexed with the right of ownership of property, the owner of the public market has the right to vary it by increasing or diminishing it after notice and after such fixation, recover the same from the stall-holder”. The Judgment of mine so rendered to A. Subbiah Nadar v. Tirunelveli Municipality and another W.P. No. 981 of 1971 was appealed against In A. Subbiah Naddr v. Tirunelveli Municipality and another W.A. No. 102 of 1971, a Division Bench of this Court, consisting of the learned Chief Justice and Raghavan, J,, while dismissing the Appeal at the admission stage, observed: “we do not think it is necessary to decide in this case whether the nature of the levy is a fee or a tax or some kind of statutory collection, as Ramaprasada Rao, J, is inclined to think.” The learned Chief Justice said: “Once it (the Municipality) has the power to license the markets for fees to be collected in any manner stipulated in the Section 260 2), it includes also the power, in our view, to license a single market among others to the highest bidder.” The learned Chief Justice also expressed the view that even so, the Municipality is entitled to a return for the use of the market, and for such use, it is entitled to levy a fee. Ismail J., in Arumugha Kone v. The Palayamkottai Municipal Council, W.A. No. 218 of 1972 inclined to consider the main question as to the propriety and legality of the levy in full, as the counsel desired for such an opinion from the Bench. As this judgment, which, in our view, is an important one, has not yet been reported, it has become necessary for us to quote excerpts from it in extenso, so as to answer the contentions of Mr. Sundaram Iyer raised in this case. The learned judges in the above appeal said: “.. the fees contemplated by clauses (a) & (b) of sub section (2) of section 260 of the Act can include an element of return to the Municipal Council on the investment which it has made in acquiring or constructing the market in question. Once this has been conceded, we are clearly of the opinion, that there is absolutely nothing in the statute to put a limit on the said element of return. Once this has been conceded, we are clearly of the opinion, that there is absolutely nothing in the statute to put a limit on the said element of return. What should be the proper rent payable in respect of the lease of the stalls in the market or the fees payable in respect of a licence granted by the Municipal Council for the use of the stalls will have necessarily to be variable and flexible depending upon the demand for such place in the particular locality at a particular time, and therefore, there cannot be any hard and fast rule as to what should be the said return. .. “From the very nature of the case it should be a subject matter of bargain between the owner of the property and the person who is permitted to occupy and no person will be willing to occupy a stall unless be thinks that it is worthwhile for him to do so. .. It is not open to them to contend that they will continue to occupy or make use of the Municipal councils, markets on their own terms and not on the terms offered by the owner. So long as there is no statute controlling or regulating the letting of and the rents recoverable from a property, the owner of the property has the liberty to put his, property to the best use possible and obtain the best return. Taking into account that any benefit or advantage the Municipal Council derives in such process ultimately goes to the public, the buildings, belonging to such Municipal Councils have been placed out of the operation of the Madras Buildings (Lease and Rent Control) Act. .. .. In this case there can be no dispute that the appellant and the petitioners are only in the position of licensees as contemplated by the Easements Act. ” The learned Judges referring to a decision of our Court rendered in The Corporation of Madras v. S.A.Khan and others observed (1947) 2 M.L.J. 120 . .. .. In this case there can be no dispute that the appellant and the petitioners are only in the position of licensees as contemplated by the Easements Act. ” The learned Judges referring to a decision of our Court rendered in The Corporation of Madras v. S.A.Khan and others observed (1947) 2 M.L.J. 120 . “The Bench held that whether the agreement between the stall-holders and the Corporation amounted to a lease or tenancy, or was for the payment of a fee by the licensee mattered not, and the rights given by the agreement to the stall-holder were to continue until the agreement was determined, and during its subsistence he was under an obligation only to pay the amount which it specified. The learned Judges further observed: “If so, whether the fees were actually utilised for the maintenance of the market or not, is totally irrelevant, for the reasons we have already indicated, namely, that the right to recover such fees flows from the very ownership of the market being vested in the municipal corporation concerned. .. the expression “fees” in the Act has been used to denote also payments in the nature of rents or charges collected from citizens for the benefit or the amenity that the municipal council itself provides at its own cost. .. “We are also of the view that the writ petitions are liable to be dismissed on the simple ground that by the enhancement of the fees in question, no right of the petitioners has been affected We have already held that the position of the petitioners was that of a licensee. S. 52(c) of the Easements Act itself provides that a license is deemed to be revoked where it has been granted for a limited period and the period expires”. We should confess that we are unable to quote more from the Judgment of the Division Bench of this court for the simple reason that it is very elaborate, and we have quoted only such of those excerpts therein which would clinch the issue that arises for consideration in this appeal. We should confess that we are unable to quote more from the Judgment of the Division Bench of this court for the simple reason that it is very elaborate, and we have quoted only such of those excerpts therein which would clinch the issue that arises for consideration in this appeal. It therefore, the view of this court is now settled that the levy made by the Municipality is in exercise of their right as owner of the Market and is in pursuance of a licence issued by them annually to the stall-holders occupying the stalls, then we are unable to accede to the contention of Mr. Sundaram Iyer that the fee in question should be understood in the sense of fee demanded or collected in lieu of certain services rendered by the Municipality. As already explained, the fee or the levy or the impost made under S. 266 of the Tamil Nadu District Municipalities Act has a peculiar characteristic, in that it is a collection made by virtue of the powers in a statute, and incidentally it is a necessary power annexed to ownership of properties vested in the owners. If this conclusion is reached, viz., that the Municipality has the right to levy such a fee, then the licence being yearly one, it has also the incidental right to enhance the fee in view of the circumstances stated in the written statement, to wit, to augment the resources of the council and to meet the increased cost of the maintenance and upkeep of the market. Such a levy is not only unassailable, but is certainly within the powers of the Municipality to levy and increase the same whenever occasion demands it. The next contention of Mr. Sundaram-Iyer is that the levy is arbitrary and discriminatory. Reliance is placed upon the judgment of this court, to which one of us, was a party, in A.S. Sivalingam v. TirunelveliMunicipalityand another W.P. Nos. 913 of 1970. There the fee varied in accordance with the nature of avocation or trade indulged in by the stall-holder. In fact, the turnover of the business conducted by the stall-holder was made the basis for the variance in the levy. In those circumstances, it was contended that the invidious distinction made as between the stall-holder and stall-holder, based on the nature of the business done by him in the stalls was discriminatory. In fact, the turnover of the business conducted by the stall-holder was made the basis for the variance in the levy. In those circumstances, it was contended that the invidious distinction made as between the stall-holder and stall-holder, based on the nature of the business done by him in the stalls was discriminatory. I was inclined to accept this contention as in that case there was no dispute that such was the hypothesis on which the differentiation in the levy was thought of by the municipality. But the question is whether such a basis is the real foundation for the difference in the levy as between stall-holder and stall-holder in the market of the Municipality in question. 10. Learned Counsel for the appellant referred to the evidence of D.W. 1. In his cross-examination he says: “I do not know if the turnover of business of P.W. 6 is about Rs. 60,000/- to Rs. 70,000/- per year. I do not know if the turnover of the business of P.W. 9 is Rs. 40,000/- to Rs. 50.000/- It is not true to say that we have not taken into consideration the turnover of business in the stalls”. On this testimony, the argument is built up that the basis of the levy is referable to the turnover of business of the stall-holder in the markets. We are afriad that this is far-fetched contention. In order to make out discrimination, as also the incidental contention of arbitrariness in the levy, more clinching evidence is required for us to feel satisfied than the testimony brought before us that when the Muncipality made a different levy over the different stalls situate within the market, the only consideration which weighed with them was the turnover of the trade carried on in the stalls. On the other hand, in the written statement, the Muncipality stated that the Council, when it fixed the fees uniformly, took into consideration the nature, location and the business conducted in the stalls. This is also the evidence of D.W. 1, but it was torn out of context to support the contention that the levy is discriminatory or arbitrary. Apparently, the Council took into consideration all the relevant material, such as the nature of the stall, the location of the stall and the business conducted in the stall for the purpose of enhancing the levy. Apparently, the Council took into consideration all the relevant material, such as the nature of the stall, the location of the stall and the business conducted in the stall for the purpose of enhancing the levy. This was uniformly adopted, and no discrimination was made as between one stall-holder and the other. There is no evidence let in to show that the levy was increased as per the resolution on such or similar date-Learned Counsel for the Muncipality rightly contends that every conceivable aspect, which would enter into the computation was in the mind of the Council when the enhancement was thought of. In any event, as our court has held in the Writ Appeals above referred to that the fee is in the nature of a return from the property owned by the Municipality, and the owner has the prerogative right to increase the same from time to time and it is for the occupant to choose to occupy it on the terms of the owner, and not for him to dictate his terms to the owner as to what ought to be the rent or the fee, this question does, not now loom large for further consideration. 11. The learned Subordinate Judge, though no doubt, for different reasons, came to the right conclusion that the plaintiff cannot have any redressable grievance against the levy as made and demanded by the Muncipality and this conclusion is well supported by the views expressed by this court which we have already referred to. 12. The appeal, therefore, fails and is dismissed with costs.