IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 25TH FEBRUARY 2008 / 6TH PHALGUNA 1929 WP(C).No. 9970 of 2007(J) ------------------------------------- PETITIONER: ------------------- SHAJU GEORGE, S/O P.M.GEORGE, H/NO.VI/561, KUNNUKARA PANCHAYATH, PARAVUR TALUK, KUNNUKARA VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.M.P.RAMNATH, ADV. SRI. S.UNNIKRISHNAN. RESPONDENTS: ------------------------ 1. ALUVA MUNICIPALITY REPRESENTED BY ITS SECRETARY, ALUVA, ERNAKULAM DISTRICT. *ADDL.R2. SRI. K.S. SEBASTIAN, KOIKARA HOUSE, NEERICODE.P.O., ALUVA. *IS IMPLEADED SUO MOTU AS ADDITIONAL RESPONDENT NO.2 AS PER ORDER DTD. 09/04/07. BY ADV. SRI.V.M.KURIAN, S.C, ALUVA MUNICIPALITY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.9970/2007-J: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE JUDGMENT DTD. 23/01/2001 IN C.R.P. NO. 2160/2001 AS REPORTED FULL TEXT IN THE DECISION ALUVA MUNICIPALITY VS. BENNY & OTHERS 2001 (1) KLJ 680. EXT.P.2: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT 07/10/2004 IN W.P.(C). NO. 24156/2004. EXT.P.3: COPY OF THE FULL TEXT OF JUDGMENT IN W.A.24156/2004 AS REPORTED IN 2005 (1)KLJ 118. EXT.P.4: COPY OF THE JUDGMENT DTD. 30/03/2005 IN CMA. 42/2004 OF THE ADDL. DISTRICT COURT, NORTH PARAVUR. EXT.P.5: COPY OF THE TENDER/AUCTION WINDOW ADVERTISEMENT OF THE RESPONDENT IN MALAYALA MANORAMA DAILY DTD. 14/03/2007. EXT.P.6: COPY OF THE DETAILED AUCTION NOTIFICATION DTD. 12/03/2007 BEARING NO. R5.232/2000 OF THE RESPONDENT. EXT.P.7: COPY OF THE TENDER NOTICE DTD. 11/01/05 PUBLISHED BY THE ALUVA MUNICIPALITY. EXT.P.8: COPY OF THE RESPONDENTS BUDGET FOR THE YEAR 2007-08. RESPONDENT'S EXHIBITS: EXT.R1.A: COPY OF THE COUNCIL RESOLUTION DTD. 25/04/2004. EXT.R1.B: COPY OF THE NOTICE DTD. 29/12/2004. EXT.R1.C: COPY OF THE PAPER PUBLICATION ON 04/01/2005. EXT.R1.D: COPY OF THE COUNCIL RESOLUTION DTD. 03/02/2005. EXT.R1.E: COPY OF THE JUDGMENT DTD. 05/01/2007. //TRUE COPY// prv. PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No. 9970 OF 2007 ----------------------------------------------- Dated this the 25th day of February, 2008 J U D G M E N T In this writ petition under Article 226 the petitioner, an ice vendor in the Municipal Market run by the first respondent, Alwaye Municipality challenges the decision of the Municipality fixing Rs.5/- as fee for sale of one block of ice in the market and seeks an order quashing item No.16 in Ext. P6 auction notice pertaining to sale of Ice blocks. According to the petitioner till date no fee used to be collected for sale of ice from casual vendors like him in the market and the Municipality has now decided to farm out the right of collecting fees from ice vendors in order to favour large scale ice vendors who have always been trying to stall sale of ice by small time vendors like the petitioner. The petitioner claims that in Ext.P1 judgment this court held that ordinary vendors like the petitioner cannot be prevented from bringing ice blocks to the market for sale pointing out that ice unlike the articles like fish, meat etc. does not cause any health hazards. The petitioner alleges that it was to get over the declaration of law by this court under Ext.P1 and to illegally and unjustly keep away small time vendors of ice blocks like him that the Municipality notified the proposal to invite tenders in respect of auction for collection of fees WP(C)N0.9970/07 -2- inter alia for storage and sale of ice. Challenging the auction certain small time ice vendors approached this court and this court passed Ext.P2 judgment. The petitioner claims that this court held in that case that on making a comparative analysis the rate of fees fixed on ice blocks is very exorbitant and disproportionate. Though this court did not interfere with the auction fixing fees payable for ice block at Rs.5/- this court held that at least in future there should be a considered order so as to avoid disparity. Petitioner also relies on Ext.P3 judgment whereby Division Bench of this court in appeal over Ext.P2 set aside the decision of the Municipality holding that the Municipality had not followed the procedure in the matter of inviting tenders for farming out the right to collect fees from vendors including ice vendors. Petitioner also points out that though certain similarly aggrieved vendors had moved the civil court, the same was not pursued and therefore the civil court did not have an opportunity to decide the issue on merits. Petitioners have produced Ext.P5 public notice issued in Malayala Manorama newspaper announcing the proposed auction for various items including monopoly/right to collect fees for sale of ice in the Municipal Market. On seeing Ext.P5 notification petitioner went to the Municipality office and collected WP(C)N0.9970/07 -3- Ext.P6 detailed auction notification. Going by Exts.P5 and P6 the auction is proposed to be conducted for sale of right to collect fees from ice vendors in the market at the rate of Rs.5/- per block. In this writ petition the petitioner challenges Ext.P6 auction notice on various grounds and seeks the relief already indicated. The Municipality has filed a statement followed by a detailed counter affidavit justifying its action. The petitioner has filed Ext.P8 copy of the Municipality budget for the year 2007-08 to support the petitioner's contention that the fees collected is far in excess of the expenses incurred by the Municipality for rendering service to the petitioner and to vendors who sell ice. The petitioner has filed a reply affidavit reiterating the grounds and refuting the contentions raised by the Municipality. Along with the reply affidavit the petitioner has submitted a comparative table which shows that the licence fee fixed by the Municipality for one block of ice in terms of percentage of the value of the commodity is far higher than the relative percentage of fees fixed for other commodities like egg, gooseberry, bananas, fish, coconut, arecanut etc. It is highlighted that in the case of raw fish, sale of which will necessitate much more expenses than pure ice to maintain the sale area clean, the percentage of licence fee collected is 0.0015. It is also highlighted WP(C)N0.9970/07 -4- that in the case of vegetables, the percentage of licence fee fixed by the Municipality is 0.001 while in the case of ice the percentage of fees is 0.16% of the value of the commodity sold. Maximum fees in terms of percentage has been fixed by the Municipality for ice which is nothing other than pure water in a different form. 2. I have heard the submissions of Sri.M.P. Ramnath, learned counsel for the petitioner and Sri.V.M.Kurian, learned counsel for the Municipality. Sri.M.P.Ramnath would make his submissions on the basis of the averments of the petitioner and the documents particularly, paragraphs 3, 4, 8 and 9 of Ext.P1 judgment, paragraphs 6 and 7 of Ext.P2 judgment (wherein M.Ramachandran, J. observes that there is arbitrariness per se in the matter of fixation of fees for ice at a much higher rate than the fees fixed for other commodities) and the 5th paragraph of Ext.P3 judgment of the Division Bench (wherein their Lordships observe that there is element of quid pro quo between the persons who pays the fee and the public authority which imposes the fees). Per contra Sri.V.M.Kurian would submit that it has been clarified by the Division Bench in Ext.P3 that any benefit derived out of that judgment will be available only to Sri.Rajesh P.S. the party in that case. Learned counsel also submitted that the civil suit which had been WP(C)N0.9970/07 -5- filed by two persons viz., Benny and Johnson espousing the same cause was also not prosecuted by the plaintiffs therein. Counsel also pointed out that pursuant to the directions in Ext.P3 judgment following the procedure envisaged under the proviso to rule 23 of the Byelaws framed by the Municipality under section 347 of the amended Municipalities Act, the Municipality issued newspaper notification Ext.P5, which was published in the notice board of the Municipality as well as public offices like the Village Office. In spite of such public notices the petitioner who claims to be attending the market frequently did not file any objections at all. Such a person is not entitled to challenge the fee fixation by the Municipality at a later point of time. In reply Mr.Ramnath would reiterate that even if it may be correct to say that the petitioner cannot claim the benefit of observations in Exts.P2 and P3 judgments, as a citizen who aspires to do business of sale of ice in the public market in exercise of his fundamental rights guaranteed under Article 19, the petitioner has got every right to point out to this court that the Municipality, authority has fixed the rate arbitrarily and in a wholly unreasonable manner. There is no quid pro quo regarding the rate now fixed and the expenses incurred by the Municipality for giving service to the traders who are selling ice in the WP(C)N0.9970/07 -6- market. Learned counsel would highlight in this context that expenditure of the Municipality for maintaining the entire market is only Rs.1,15,000/- while the gain of the person who purchases in auction the monopoly to vend ice in the market will be Rs.60 lakhs. Sri.Kurian would analyse Ext.P8 and submit that the figure 1,15,000 does not stand for the expenses actually incurred by the Municipality for maintaining the market. The expenditure will be many times more. 3. Having anxiously considered the submissions addressed at the Bar it will be observed that the submission of Mr. Kurian that the petitioner is not entitled to rely on Exts.P2 and P3 judgments, especially, since he did not respond to Ext.P5 notice is not without force. At the same time I am of the view that the rate of fees fixed by the Municipality for sale of ice at the rate of Rs.5 per one block is on a high side and disproportionate and hence such fixation is tainted with arbitrariness to a certain extent. Taking into account this aspect of the matter and on hearing both sides elaborately I had passed a detailed interim order dated 9-4-07 directing the auction purchaser to collect fees from the petitioner for vending ice in the Municipal market at the rate of Rs.2.5 per ice block subject to the petitioner's filing of an affidavit to the effect that the entire deficit will be paid by him if the WP(C)N0.9970/07 -7- writ petition is ultimately decided against him. I feel that during the ongoing financial year as well as in the next financial year, i.e., 2008- 09 the above rate should be followed by the Municipality as regards ice. To that extent the writ petition succeeds. But for years to succeed 2008-09, the petitioner is permitted to submit a comprehensive representation raising all his grounds and voicing all his genuine grievances before the Municipality. The representation will be submitted by the petitioner before 30th June 2008 and once the same is received the Municipality will hear the petitioner and take a decision as to what should be the rate applicable for the year 2009-10. If any other party on coming to know about this judgment applies to the Municipality for a hearing during the hearing of the representation to be submitted by the petitioner pursuant to this judgment the Municipality will afford opportunity to that party also. Writ petition is disposed of as above. (PIUS C.KURIAKOSE, JUDGE) ksv/26208