Aluva Municipality vs Kunju Mohammed

M.M. Pareed Pillay, C.J.—Alwaye Municipality is the Appellant. The Respondent who has taken Stall No. 128 has challenged Ext. P-7 notice. As per Ext. P-7 Respondent was informed that he had not paid fee as provided u/s 295(2) of the Kerala Municipalities Act and hence the application for allotment of Stall No. 128 for the year commencing from 1st April 1993 cannot be allowed. Respondent''s contention is that he is not liable to pay additional fee as demanded by the Appellant u/s 295(2) of the Act as he was all along paying rent for the stall.

In the counter-affidavit filed by the Appellant it is stated that the Respondent was paying rent from month to month at the rate of Rs. 68 during 1992-93, that the licence was not renewed for 1993-94, that Respondent''s request for exempting his stall from payment of fee was not acceded to by the Appellant and that his request for continuance of his occupation of the stall beyond 31st March 1993 was declined as he had not paid the fee demanded u/s 295(2) of the Act.

Contention of the Respondent is that he is not liable to pay any additional fee u/s 295(2) and hence refusal to renew the licence on that ground is illegal. Admittedly the Respondent was the licensee of Stall No. 128 till 31st March 1993. Respondent''s application for renewal was rejected and Ext. P-7 order was passed on the ground that he refused to pay fee u/s 295(2). His contention is that he being already in occupation of the stall as a licensee under the Appellant is not bound to pay any additional fee as demanded u/s 295(2). Respondent''s counsel submitted that as the Respondent is already in possession of the stall and he is legally entitled to sell fowls in the stall and as the agreement does not enable the Appellant to charge any fee for conducting trade in the stall the latter cannot claim any fee u/s 295(2).

The question that arises for consideration is whether the occupant of a stall of the Municipality is exempted from payment of the fee as provided u/s 295(2). Section 295(1) enables the Municipal Council to provide places for use as public markets. Under Sub-section (2) Municipal Council can levy fees for the use of, or for the right to expose goods for sale in such markets and also levy fees on animals brought for sale into, or sold in, such markets.

Respondent''s contention is that he has been paying Rs. 68 per month as licence fees for conducting business in Stall No. 128 and as bringing fowls to the premises forms part of his business Appellant cannot levy any more amount from him under the guise of fees u/s 295(2) especially when he has no contractual obligation to do so. Merely because licence fee was collected from the Respondent for Stall No. 128, it would not be open to him to contend that he is not liable to pay fee as provided u/s 295(2) of the Act. As Respondent agreed to pay Rs. 68 per month for being allowed to be in occupation of Stall No. 128, he cannot contend that he is not liable to pay separate licence fee. In other words, it cannot be held that occupants of the Municipal stalls in public market are not liable to pay the fee prescribed u/s 295(2). Municipal Council''s power u/s 295(2) is entirely different from the collection of monthly rent from the occupants of its stalls in a public market. Merely on the ground that the agreement between the Municipal Council and the person in occupation of the stall does not mention anything about occupant''s liability to pay the fee contemplated u/s 295(2) it cannot be said that the occupant has no liability to pay the fee as per the statute. Municipal Council can certainly impose fee for the use of or for the right to expose goods for sale in public market. Receipt of rent for the stalls is entirely different from the fee contemplated u/s 295(2). As the Municipal Council tan impose fees on animals brought for sale into or sold in such markets, contention of the Respondent that he being in occupation of the Municipal stall has no liability to pay the fee imposed by the Municipal Council u/s 295(2) is not tenable.

Respondent''s contention that the demand by the Appellant would result in double payment in respect of the same shop room is equally untenable. What is demanded by the Appellant u/s 295(2) cannot amount to double payment as he is statutorily bound to pay the fee which has nothing to do with the licence fee for occupying the Stall 128. Any person who brings articles for sale in public market is bound to pay fee to the Municipality. That is the position with regard to animals brought for sale into or sold in a public market.

Clause 8(a) in Ext. R-1 (a) states that with regard to articles brought to the stalls facing the road no fee will be levied and that it is only necessary that the invoice, bill, etc., are shown to the contractor who is entrusted with the collection of fees by the Municipality. In category terms it is stated that this exemption will not be available to other stalls. With respect to other stalls and with respect to articles kept in the open space in the market the traders have to pay the fee.

As the Respondent refused to pay additional fee u/s 295(2), Appellant was justified in issuing Ext. P-7 order.

However, we observe that if the Respondent is still in occupation of the stall allotted to him he may make a representation to the Municipality expressing his readiness and willingness to pay the amount of fee claimed and the fee payable in future as a condition precedent for renewal of licence within two weeks from today and if such a representation is received the authority concerned may consider the request for renewal on merits in accordance with law as early as possible.

For the foregoing reasons, we sustain Ext. P-7 order. The judgment of the learned Single Judge is set aside. Original Petition stands dismissed. Writ appeal stands allowed.