Boban Thomas vs Kottayam Municipality

Antony Dominic, J.—Petitioners are merchants engaged in the buniness 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 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.

''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 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 u/s 458 of the Act.

In this case, Exts.P1, P2 and P6 shows that the area from Chanthakadavu to Kodimatha ha been set apart by the Municipality and therefore, this area is qualified to be a market as defined in Section 2(23) of the Act. The further question is whether the said market is a public market. In paragraph 7 of 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 businesses 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.