IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 WP(C).No. 8078 of 2009(D) ------------------------- PETITIONER(S): --------------- 1. BOBAN THOMAS,S/O.JOSEPH THOMAS, AGED 52 YEARS,KOYIPPILLIL & CO. DRY FISH MERCHANT, M.L. ROAD,KOTTAYM. 2. K.M.ANTONY,S/O.CHACKO MATHEW, AGED 65 YEARS,KODUPPUNNA POLACKAL, PUZHAVATHUR, CHEGANASSERY. BY ADV. SRI.M.UNNIKRISHNA MENON SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN SMT.SARASWATHI PALEREKEEZHIL RESPONDENT(S): --------------- 1. KOTTAYAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, KOTTAYAM. 2. THE SECRETARY, KOTTAYAM MUNICIPALITY, KOTTAYAM. 3. SRI.M.A.NAZAR,MALIYEKKALPARAMBIL HOUSE, KOTTAYAM. ADV. SRI.SIBY MATHEW FOR R1-2 SRI.PHILIP J.VETTICKATTU FOR R1-2 SRI.B.PREMNATH (E) FOR R1-2 SRI.MOHAN JACOB GEORGE FOR R3 SMT.P.V.PARVATHI FOR R3 SMT.REENA THOMAS FOR R3 SRI.RAMMOHAN L. FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Ext.P1. True copy of the auction notice issued by the Ist respondent. Ext.P2. True copy of the auction notice issued by the Ist respondent. Ext.P3. True copy of the notice dated 28.2.2008 sent by the Ist respondent to the petitioners. Ext.P4. True copy of the representation filed by the petitioner to the Ist respondent. Ext.P5. True copy of the receipt issued to the petitioner by the Ist respondent. // true copy // P.S to Judge. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.8078 OF 2009 (D) -------------------------------------------------- Dated this the 22nd day of February, 2010 J U D G M E N T Petitioners are merchants engaged in the business of dry fish, having their shops in building Nos.929 and 930 of Ward No.XII of Kottayam Municipality. In this writ petition, the main prayer sought by the petitioners is for a declaration that the building of the petitioners situated in Kottayam Municipality is not a `market' as defined in the Kerala Municipality Act, 1994 and that therefore, Municipality is not entitled to levy any fee as mentioned in Exts.P1 to P3 auction notices. Exts.P1 and P2 are auction notices published by the Municipality, for the year 2008-09. In so far as it is relevant, Exts.P1 and P2 provides for levy of fee, on those bringing dry fish into the Market area , viz the area from Chanthakavala to Kodimatha, at rates specified therein. Petitioners objected to the levy and the objections were rejected by the Municipality by Ext.P3. It was thereupon that the writ petition was filed. During the pendency of the writ petition, auction for the year 2009-2010 was held WPC.No. 8078/09 :2 : pursuant to Ext.P6 auction notice and the period is to expire on 31st March, 2010. It is while so, the writ petition is brought up for final hearing. The contention raised by the learned counsel for the petitioners is that they are operating their business from buildings owned by themselves and that such buildings do not answer the requirements of a `public market' as defined in section 2(33) and Section 457 of the Kerala Municipality Act, 1994 and therefore levy of fee as provided in Section 458 of the Act is impermissible and illegal. On the other hand Municipality contends that it is not the building which constitutes a market. According to the Municipality, in view of the definition of Market as per Section 2(23) of the Act, it is the place which constitutes market. It is stated that if a `market' as defined in Section 2(23) is owned acquired, constructed, repaired or maintained by the Municipality, then it answers the description of a public market as defined in Section 2(33) of the Act and if so, the Municipality is entitled to levy fee as provided in Section 458 which it has done by Exts.P1, P2 and P6. WPC.No. 8078/09 :3 : `Market' has been defined in Section 2(23) of the Act as follows; “Market means any place set apart or ordinarily or periodically used for the assembling of persons for the sale or purchase of grain, fruit, vegetables, meat, fish or other perishable articles of food or for the sale or purchase of livestock or poultry, or of any agricultural or industrial produce or any raw or manufactured products or any other articles or commodity necessary for the convenience of life, provided that single shop or group of shops not being more than six number shall not be deemed to be a Market.” Similarly, `public market' has been defined in Section 2(33) of the Act as any market owned, constructed, repaired or maintained by the Municipality. Again Section 457 of the Act provides that, all markets which are acquired, constructed, repaired or maintained out of the Municipal funds shall be deemed to be public markets and such markets shall be open to all members of the public. Section 458 dealing with the powers of the Municipality in respect of public markets, authorize Municipality to levy fee, in terms of sub Section (2) there of. From the aforesaid statutory provisions, it can be seen that market is a place set apart or ordinarily or periodically used where WPC.No. 8078/09 :4 : persons assemble for sale or purchase of the items mentioned in Section 2(23) of the Act. Section 458 of the Act authorises the Municipality to levy fee on a public market. “ Public Market” has been defined in Section 2 (33) and Section 457 of the Act, as any market, acquired, owned, constructed, repaired and maintained by the Municipality. Therefore, to answer the question what is a public market, one has to go back to Section 2(23) of the Act, which defines market. This definition shows that emphasis is on the place set apart where persons assemble for sale or purchase of articles mentioned in the Section. If such a place is owned, acquired, constructed repaired by the Municipality, that place will be a public market as defined in the Act and any person carrying on business at such a place, irrespective of whether he is occupying his own building or not, is liable to pay fee levied under Section 458 of the Act. In this case, Exts.P1, P2 and P6 shows that the area from Chandakadavu to Kodimatha ha been set apart by the Municipality and therefore, this area is qualifies to be a market as defined in Section 2(23) of the Act. The further question is whether the said WPC.No. 8078/09 :5 : market is a public market. In paragraph 7of the counter affidavit, the Municipality has explained that it is maintaining the market expending huge amounts from its own funds. The petitioners have no case that the market in question is not open to the members of the public. Such being the fact, the irresistible conclusion is that the place notified in Exts.P1, P2 and P6, where the petitioners are carrying on their dry fish business is a public market as defined in Section 2(33) of the Act and therefore the Municipality is fully competent to levy the impugned fee. Writ Petition is only to be dismissed and I do so. (ANTONY DOMINIC) JUDGE vi/