IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 WP(C).No. 9486 of 2008(D) ------------------------- PETITIONER: ------------ V.L.DENCIL, S/O.LAZAR, AGED 50 YEARS, GENERAL SECRETARY, THRISSUR DISTRICT MERCHANTS ASSOCIATION, RESIDING AT VALIYAVEETTIL HOUSE, CHETTUPUZHA P.O., THRISSUR - 680 621. BY ADV. SRI.M.UNNIKRISHNA MENON SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN RESPONDENTS: ------------- 1. THE SECRETARY, THRISSUR CORPORATION, CORPORATION OFFICE, THRISSUR - 680 001. 2. THE THRISSUR CORPORATION REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, THRISSUR - 680 001. ADV. SRI.K.B.MOHANDAS,SC,THRISSUR CORPORATION, FOR R1-2 ADV. SRI.LELLULAL T.G.THUNDATHIL FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2008, ALONG WITH WPC NO. 10367 OF 2008 & WPC NO. 10438 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. --------------------------------------------------------------------- W.P.(C) Nos.9486, 10367 & 10438 of 2008 ----------------------------------------------------------------------- Dated: JUNE 16, 2008 JUDGMENT WP(C)No.9486/2008 is filed by Merchants Association . WP (c).No.10367/2008 is filed by Meat Dealers Association and WP (c).No.10438/2008 is filed by the licensee of Sakthan Thampuran market. 2. The challenge in these writ petitions is against Ext.P2. Ext.P2 is a notice issued by the respondent Corporation revising the fee payable by the traders, whom the petitioners are representing, who are occupying shop rooms in the Sakthan Thampuran Public Market, belonging to the respondent Corporation. By this notice, the traders were informed that, in the meeting of the Corporation Council held on 6.3.2008, it has been decided to revise the fee in the manner indicated in Ext.P2. It is aggrieved by this, these writ petitions have been filed. 3. One of the contentions urged is that the Sakthan Thampuran market is not a public market and therefore the respondent Corporation is denied of its powers under Section WP(C) 9486, 10367 & 10438 of 2008 2 458 of the Municipalities Act to levy fee as they have done in Ext.P2. It is also contended that, the levy of fee as now revised is not supported by any quid pro quo. Yet another contention that is raised is that, for occupying the rooms in the market and carrying on the business, licensees are paying huge licence fee to the respondent Corporation and therefore they are not liable to additionally pay the fee that is fixed in terms of Ext.P2. This contention is raised, making specific reference to Ext.P2, since fee is separately levied for bringing in vehicles, for bringing in goods and for exhibiting the goods for sale in the shop rooms. 4. The learned counsel for the Corporation, on the other hand, would submit that the market in question is a Public Market as defined in Sections 2(23) and 457 of the Municipalities Act. It is also stated that the fee has been fixed exercising the powers under Section 458 of the Municipalities Act. It is contended that, initially fee was fixed in 1995 and that it is for the first time that in 2008 the Municipality has revised the fee after 13 years. It is stated that since 1995, the Municipality has undertaken several developmental works for which huge expenditure has been incurred. It is also stated that, respondents are incurring substantial expenditure for cleaning and scavenging the market. It is on this basis, the Corporation WP(C) 9486, 10367 & 10438 of 2008 3 seeks to justify them. 5. The first question, that is canvassed is that Sakthan Thampuran market is not a public market. Counsel makes a reference to Section 457 of the Act. Section 457 provides that, “All markets which are acquired, constructed repaired or maintained out of the municipal fund shall be deemed to be public markets and such markets shall be open to all members of the public.” 6. The market is defined in Section 2(23) 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, vegetables, meat fish or other perishable articles of food or for the sale or purchase of live-stock 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 a single shop or group of shops, not being more than six in number, shall not be deemed to be a market.” 7. The public market has been defined in Section 2(34), as follows; “Public market means any market owned, WP(C) 9486, 10367 & 10438 of 2008 4 constructed, repaired or maintained by a Municipality.” 8. Admittedly, the market in question is owned, constructed and maintained by the respondent Corporation. It is also not the case of the petitioners that the number of shops are not more than six in number. If that be so, the market in question is a public market and the contention of the learned counsel for the petitioners is only to be rejected. 9. Once the market in question is held to be a public market as defined in Sections 2(33) and 457 of the Municipalities Act, the respondent Municipality is conferred with the power to levy fee for its use as provided in Section 458 of the Municipalities Act. The counsel for the petitioners contended that the market in question is not one demarcated or notified as a market. It is also contended that since they have raised a dispute as to whether the place in question is a market, the issue ought to have been referred to Government for its decision under Section 471 of the Act. 10. First of all, I have not been shown any provision in the Municipalities Act, requiring demarcation or notification of a market, to make it a public market. The admitted case of the WP(C) 9486, 10367 & 10438 of 2008 5 petitioners is that the market in question is constructed and maintained by the Municipality. If that be so, I do not think that there is anything warranting a reference to Government for its decision as provided in Section 471 of the Act. 11. Learned counsel for the petitioners proceeded to contend that the Corporation is not rendering any service to justify the levy of the fee. According to the learned counsel in the absence of sufficient quid pro quo which is essential for retaining the character of fee, the levy of fee by the respondent cannot be sustained. Elaborating this point, it is contended by the counsel for the petitioners that at the slaughter house maintained by the Corporation at Kuriachira, meat dealers are levied slaughtering fee ranging from Rs.25 - 50. Additionally they are also levied a daily fee of Rs.50/- for keeping animals in the compound of the slaughter house. It is stated that once an animal is slaughtered in the slaughter house, necessarily the licensees will have to carry the meat to the Sakthan Thampuran Market for exhibiting and selling the same. It is submitted that Ext.P2 provides that the vehicles that enter the market will have to pay fee ranging from Rs.20 – 50, depending upon the type of vehicle that is used. The licensees are also required to pay Rs.3/- per piece of the meat that is exhibited in their licensed WP(C) 9486, 10367 & 10438 of 2008 6 premises for sale. Counsel submits that these payments are made in addition to the licence fee for occupying the shop which are all cleaned and maintained by the licensees themselves. It is stated that the entire cleaning is done by the licensees only and the Corporation is not rendering any service to justify the fee levied on them. 12. On the other hand, referring to the counter affidavit filed in WP(C) 9486/08, learned counsel for the 1st respondent Corporation submits that since 1995 the Corporation has been spending huge amounts for maintaining and for cleaning and scavenging the market. It is stated that business in large volumes are being transacted in the market every day and due to the peculiar nature of the business, huge quantities of waste materials used for packing the commodities and other waste materials get accumulated in the market place. It is stated that the Corporation is spending substantial amounts for cleaning and scavenging the market places and the expenditure incurred by the Corporation for the above purpose has increased many fold due to the increase in the waste materials leading to corresponding increase in the number of vehicles and the man power required for cleaning and scavenging. It is stated that despite all these, the rate of market fee which was fixed way WP(C) 9486, 10367 & 10438 of 2008 7 back in 1995 was revised only with effect from 31.3.1998. It is submitted by the Corporation that the fee is supported by sufficient quid pro quo and therefore is not liable to be interfered by this court. 13. The imposition of fee necessarily involves the existence of quid pro quo between the fee levied and the service rendered to the licensees who are the beneficiaries. In so far as the fee is concerned, existence of quid pro quo is essential for retaining the character of fee and as such quid pro quo is not to be reckoned with any mathematical precision with reference to the quantum of fee realised and the amount spent for establishing and maintaining the markets. In this case though the Corporation has not furnished any statistics justifying the levy of fee, still the Corporation has sworn to an affidavit explaining about the waste that is generated and the cost incurred for maintaining the market and the work that is done by the Corporation for scavenging, cleaning etc. 14. In my view, these are duties which are to be discharged by the Corporation and it necessarily entitles the Corporation to levy fee to recoup the expenditure that is incurred by it. Therefore, it may not be proper for the petitioners to contend that the levy in question is not supported WP(C) 9486, 10367 & 10438 of 2008 8 by sufficient quid pro quo. Though I am inclined to hold that there is quid pro quo to justify the levy, I should not be understood as holding that the Corporation has succeeded in justifying the levy with mathematical precision. In my view, such a precise justification is not necessary to justify the levy by the Corporation and since there is sufficient correlation, the levy is liable to be upheld. Therefore I am not prepared to accept the plea of the petitioners that the levy in question is not supported by sufficient quid pro quo. 15. Lastly it was contended by the learned counsel for the petitioners that in the other markets maintained by the Corporation, they are not levying any market fee and therefore the levy in question is discriminatory. Though at the first blush the argument raised by the learned counsel for the petitioners would sound to be attractive, but then, having regard to the facts as disclosed by the Corporation in its counter affidavit filed in WP(C) 9486/08, I am not inclined to accept this contention either. It is stated that in the market in question, huge quantities of waste is generated and for the cleaning of which the Corporation has to incur heavy expenditure. If that be so, there is sufficient justification to suggest that the Sakthan Thampuran Market does not stand on the same footing as that of WP(C) 9486, 10367 & 10438 of 2008 9 the other markets referred to by the petitioners. Petitioners have also not produced any material to conclude otherwise. In my view, on the materials available, there is nothing to make out a case of discrimination to interfere with the levy of fee. Thus I am not inclined to accept the contentions raised by the learned counsel for the petitioners and the writ petitions are only to be dismissed and I do so. ANTONY DOMINIC JUDGE mt/-