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2001 DIGILAW 126 (KER)

Aluva Municiapality v. Benni

2001-02-23

M.R.HARIHARAN NAIR

body2001
ORDER M.R. Hariharan Nair, J. 1. The revision petitioner is the Aluva Municipality, who was the 1st respondent in I.A. No. 687/2000 in O.S.No.66/2000 of the Additional Sub Court, North Paravur. The Municipality contends that the injunction granted by the said court and confirmed by the Addl. District Court, North Paravur in C.M.A.No.34/2000 restraining the Municipality from interfering with the petitioners' right to do business in ice blocks in the place provided for casual vendors in the Municipal Market, Aluva is unjustified. 2. The facts of the case are not in dispute. Pursuant to Ext.Bl tender notice and pursuant to Ext.B2 tender form presented by one Manoj K. Jose, he was granted licence to vend ice in the Municipal Market for the period 1999-2000. It is the contention of the Municipality that by virtue of Ext.B3 licence no other person can sell ice in the market and therefore the contention of the petitioner plaintiff has to fail. 3. The contention of the respondents 1 and 2, who are the plaintiffs, is that Municipality has no right to interfere with the fundamental right of the plaintiffs guaranteed under Art.19(1)(g) of the Constitution for access to the market and to have a business therein and that the Municipality cannot insist that only a bidder of the right to use the stall provided by the Municipality can do business in ice. According to them, there is difference between 'storing of ice and sales in the stall' as notified in Clause.4 of Ext.B1 and the 'vending of ice' in blocks without use of any stall or separate storage in the market. 4. Section 457 of the Kerala Municipalities Act (hereinafter called 'the Act') provides, inter alia, that 'all markets shall be open to all members of the public'. S.2(23) of the Act defines 'market' as a place set apart for the assembling of persons for the sale or purchase of various items like grains, fruits etc. or any other articles or commodity necessary for the convenience of life or of any agricultural or industrial produce or any raw or manufactured products provided that a single shop or a group of shops, not being more than six in number, shall not be deemed to be a market. S.458 of the Act provides as follows:- "458. Powers in respect of public markets. (1) A Municipality may provide places for use as public markets. S.458 of the Act provides as follows:- "458. Powers in respect of public markets. (1) A Municipality may provide places for use as public markets. (2) The Municipality may, in any public market, levy any one or more of the following fees at such rates and may place the collection of such fees under the management of such persons as may appear to it proper or may farm out collection of such fees for any period not exceeding three years at a time and on such terms and subject to such conditions as it may deem fit (a) fees for the use of or for the right to expose goods for sale in such markets." xx xx xx xx 5. Section 459 of the Act provides that no person shall, without the permission of the Secretary or, if the collection of fees have been farmed out, of the farmer, sell or expose for sale any animal or article within any public market. 6. The contention of the Municipality is that by virtue of S.459, the Secretary of the Municipality gets a right of control over the market and by virtue thereof he can insist that ice blocks can be sold only within the stall which has already been auctioned out in favour of the 3rd respondent and not in any other place or space within the market. On the other hand, the contention of the plaintiffs is that while it is open to the Municipality to charge fees for the use of or for the right to expose ice blocks for sale in the market as contemplated in S.458(2) (a) of the Act, it cannot interfere with the fundamental right under Art.19(1)(g) or the right under S.457 of the Municipalities Act which enables anyone to offer for sale products of any kind within the market. 7. In the impugned order, the learned District Judge has heavily relied on the decision in Thomas George v. The Pazhavangadikara Panchayat (1957 K.L.T. 342) to conclude that the Municipality has no right to deny right of using the market for sale of ice blocks. 7. In the impugned order, the learned District Judge has heavily relied on the decision in Thomas George v. The Pazhavangadikara Panchayat (1957 K.L.T. 342) to conclude that the Municipality has no right to deny right of using the market for sale of ice blocks. The aforesaid decision by a Bench of this Court was rendered in a case where the question that arose was whether the petitioner therein could vend beef in the market when the right to vend beef in the stall concerned had already been auctioned out by the Panchayat in favour of others. This Court took note of the provision in S.69 of the Travancore Cochin Panchayats Act, 1950 which was applicable then and which enabled the. Panchayat to levy fees for the use of or for the right to expose goods for sale in such market as also to provision in R.6 of the Travancore Cochin Panchayat Market Rules, 1954 which provided that the Executive Authority of the Panchayat could arrange for parcelling out a suitable portion of the market area and lease out the same to the highest bidder for a specific period and on specific conditions and also providing that after excluding the area so parcelled out, the remaining area shall be made available for use by the casual vendors and by the public resorting to the market. This Court found that what was done in the auction concerned was not the farming out of the rents and fees; but a sale to the highest bidder of the right to vend beef and such a procedure cannot be considered as within the ambit of the said Section. It was also observed that the only right of the Panchayat was to collect the prescribed fees, if any, and not to auction the right to vend beef. Accordingly, the O.P. was allowed. The provision in S.70 of the Travancore Cochin Panchayat Act, 1950 that no person shall, without the permission of the Executive Authority, or, if the rents and fees have been farmed out, of the farmer, sell or expose for sale any animal or article within any public market was found to be beyond the scope of the section itself and hence declared inoperative to that extent. 8. 8. During hearing today, it was made clear that the right made available to the additional 3rd respondent is to use the only storage area for ice available in the market and to have the sale of ice therein. It is also made clear that apart from the said single storage space, there is no other provision in the market where an ordinary vendor could bring ice blocks for sale; that is, without utilising the benefit of storage space made available by the Municipality. Ice, unlike articles like fish, meat, etc. does not cause any health hazards. No specific reason has been pointed out, during hearing, as to why sale of ice cannot be held along with other articles in the ordinary area where sale of different articles take place. Of course, it is open to the Municipality to provide storage space for ice; but that does not mean that other persons cannot bring ice blocks for sale in a limited quantity and in such a way that it does not require any special storage space. Such a right is inherent in S.457 of the Kerala Municipalities Act. 9. Viewed from this perspective, I do not find any reason to interfere with the injunction already granted by the two courts below. Of Course, the plaintiffs will be liable to pay whatever fees that other vendors also are liable to pay to the Municipality; but merely because there is one specific storage space for ice provided in the market, the plaintiffs cannot be flushed out from the market altogether with regard to their sale of ice in blocks in the open. May be, the Municipality can insist that the plaintiffs have to take precautions to ensure that possible water pollution is checked and to ensure that no nuisance is caused to other users of the market in consequence of sale of ice cubes. 10. In these circumstances, the impugned order does not warrant any interference except to clarify that nothing contained in those orders or in the order of this Court should stand in the way of an independent consideration of all questions arising in the suit based on the prospective evidence that might be adduced by the parties. The C.R.P. is disposed of as above.