K P RAMANNA Vs. CITY MUNICIPAL COUNCIL SHIMOGA

JUDGEMENT

(1.) In this petition the point to be considered is whether Bye-law No. 10 of the Karnataka Municipalities Regulation and Inspection of Public Markets and Slaughter Houses Bye-laws, 1966, is valid in the absence of any specific provisions in the Karnataka Municipalities Act, 1964 (hereinafter referred to as the Act) empowering the authorities concerned to collect fee on entry of articles to the market or otherwise.

(2.) The petitioner is a vegetable vendor carrying on his business within the limits of the City Municipal Council, Shimoga. He has got Stall No. 65 in the market known as "Shivappa Naik Market" which he obtained on lease from the Municipality on a monthly rent of Rs. 40/- since 15 years. The petitioner is paying the rent under Section 244 of the Act read with Bye-law No. 9 of the Bye-laws and the Municipality accepts the payment of rent. Bye-law No. 9 classifies stalls as permanent and daily stalls and prescribes that all stall holders shall pay stall fee or stallage at the rates fixed fron time to time by the Municipal Council. The petitioner has no grievance in respect of Bye-law No. 9. His grievance is in respect of Bye-law No. 10 which reads as follows: "No goods shall be brought into the market except such as are intended for sale and except on payment of such entrance fee as may be fixed by the Municipal Council in this behalf." (emphasis supplied) According to the learned counsel for the petitioner, till November, 1981 the municipality was not collecting any fee on the entry of goods into the market. The Municipality made an attempt to collect the same by issuing the notification at Annexure A. According to him, the petitioner being a vegetable vendor is getting supply of vegetables from various persons who bring the articles on their heads and under Bye-law No. 10 such persons shall have to pay fee on the entry of vegetables into the market. Challenging the same the petitioner filed this writ petition on the following grounds, viz., (i) Bye-law No. 10 of the Bye-laws is ultra vires to the Act; (ii) Annexure A is without the authority of law; and (iii) If Bye-law No. 10 is given effect to, it amounts to collecting fee on the same article for two times i.e., (a) at the time of supply of vegetables to the stalls of the petitioner and of others and (b) the stall holders like the petitioner have to pay the rent of stallage to the Municipality for the same.

(3.) Sri T.S. Amar Kumar, learned counsel for the petitioner, submits that Bye-law No. 10 of the Bye-laws and Annexure are to be held ultra vires and illegal respectively. In support of his contention, he relied on 2 decisions. The first decision on which he placed reliance was rendered by the Supreme Court in Bimal Chandra Banerjee v State of Madhya Pradesh, AIR 1971 SC 517 and the second decision relied upon by the learned counsel was by this Court in Bombay Saw Mills v State of Mysore and Another, 1972(1) Mys. LJ. 164.