MALUK MOHAMMED SAINUDIN Vs. MUNICIPAL COMMISSIONER ATTINGAL

JUDGEMENT

(1.) 4th defendant is the revision petitioner. He is the licensee of an evening market within the Mudakkal Panchayat in Chirayinkil taluk. The suit was filed by the Attingal Municipal Council to restrain the revision petitioner and others from conducting the market on the ground that the evening market is within the prohibited distance from the Avanavancherry public market conducted under licence issued by the Municipal Council. An interim injunction prayed for was granted by the Munsiff which has been confirmed in appeal by the Subordinate Judge of Attingal.

(2.) The point taken before this Court is that the courts below have gone in excess of their jurisdiction in granting the prayer for injunction to restrain the functioning of a market under licence validity granted by the Panchayat. Counsel argues that the power of the Panchayat to grant licence for market within the Panchayat limits is absolute and cannot be fettered by the existence of another public or private market outside the limits of the Panchayat. In other words, the contention is that the inhibition regarding distance can apply only to another market within a Panchayat and that cannot apply to a market established by licence issued by the Municipality. The expression "an existing public or private market" in R.26 of the Public and Private Market Rules cannot, according to the learned counsel, relate to a public or private market established under the Municipalities Act, but can apply only to a public or private market established under the Panchayats Act. An existing public or private market, learned counsel went on, must be understood as a public or private market owned, constructed, repaired or maintained by the Panchayat. The learned counsel for the respondents, on the other hand, would maintain that the Panchayats Act and the Municipalities Act should be construed as statutes in pari materia and should be read and understood as laying down rules to carry out the same purpose or in relation to the same subject matter. In this context, therefore, the expression "public or private market" found in R.26 should be understood as a public or private market already in existence, whether under the Panchayats Act or under the Kerala Municipalities Act. Viewed in this perspective the evening market sanctioned in favour of the revision petitioner should be held to be in violation of the rules relating to distance. Under R.26 a Panchayat shall not except with the prior sanction of the Director of Panchayats, open a new public market nor issue licence for a private market if the site for such market is within the distance of 3 Km. from an existing public or private market. The Avanavancherry public market was already functioning under the Municipality while the licence was granted by the Panchayat to the revision petitioner to start the impugned evening market within the limits of the Mudakkal Panchayat. It has come in the evidence that the distance between the Avanavancherry Municipal Market place, and the evening market is 1.51 Km. and the distance from the limits of the Municipal market to the evening market is 1.4 Km. Instead of the Municipal market now under consideration, if the market that was already in existence was one established under licence issued by the Panchayat it would certainly have been hit by the rule and the Panchayat authorities would not have issued the licence. The principle underlying the restriction regarding distance between the two markets is to avoid unhealthy competition and the evil consequences that normally flow from such a situation. If that is the purpose, the evil sought to be avoided is there, even if the existing market is one established under the Municipalities Act. The expression used, as stated earlier, is "an existing public or private market" and not a public or private market already existing or functioning under the Panchayats Act. The Avanavancherry Public Market run under orders of the Municipality is thus an existing public market. The ban in R.26 must, therefore, apply.

(3.) Maxwell on Interpretation of Statutes, 9th edition page 35-36 observes: