PRABHAKARAN Vs. METHALA PANCHAYAT

JUDGEMENT

(1.) Petitioners 1 to 4 are merchants carrying on business in Kottappuram within the Methala Panchayat area. The 5th petitioner is the Cannanore Merchants' Association represented by its Secretary. The 1st respondent, the Methala Panchayat, as per Ext. R1 notification dated 9-12-1966 had fixed the boundaries of the Kottappuram market area as a public market belonging to the Panchayat. A plan of the area submitted by learned counsel for the Panchayat for my perusal clearly shows that within the area notified there is a public road on the sides of which there are buildings. There is no dispute that these buildings are privately owned by several persons including the landlords of petitioners 1 to 4. The road is called "Kottappuram - Kodungallur road". Counsel on both sides agree that the Kottappuram - Kodungallur road is a P.W.D. road vested in the Government of Kerala. The area notified as a public market as per Ext. R1 takes in the P.W.D. road as well as the lands on which the buildings where the petitioners 1 to 4 are carrying on trade are situated. The 1st respondent Panchayat had as per Ext. P1 published a notification for farming out the right to collect market fee from the Kottappuram market notified as per Ext. R1. Ext. P1 gives the rate of fees to be collected from persons bringing in the various articles for trade in the market. The notification contains certain conditions referred to as tee \n_Ô\IÄ Condition No.3 is that vehicles brought within the market area for bringing in articles for trade and parked on the PWD. road shall be deemed to have been brought into the market. Condition No. 4 excludes articles of trade brought by licensed shop keepers within the market area provided those goods are supported by invoices and bills to show that the goods are brought by merchants carrying on business in licensed premises within the market area. There is no dispute that petitioners 1 to 4 are traders having licences for such trade issued by the Panchayat. The notification Ext. P1 relates to the period 1-4-1982 to 31-3-1983. In the auction held by the Panchayat for farming out the right to collect licence fee from the public market, the 3rd respondent was the highest bidder and the right to collect fee for the goods brought to the market bad been conferred on him by the 1st respondent Panchayat. It is the case of the petitioners that even though they are carrying on trade in buildings not owned by the Panchayat, the 3rd respondent as agent of the 1st respondent Panchayat had been demanding and collecting fees for the goods brought for trade in their respective shops. The Executive Officer of the Panchayat impleaded as the 2nd respondent in this original petition has filed a counter affidavit on behalf of the Panchayat. There is also a counter affidavit filed by the 3rd respondent who is also appearing through counsel before this court. The case put forward by the respondents in their respective counter affidavits is that as per Ext. R1 dated 9-12-1966 the area of the public market belonging to the Panchayat had been notified and any goods brought into the said area are liable to be charged with fee at the rates mentioned in Ext. P1. Even though the period for which the privilege to collect the fee conferred by the 1st respondent Panchayat on the 3rd respondent has expired, it is submitted by counsel for the Panchayat that there had been a similar auction of the right to collect the fee for the subsequent period and some other person as the highest bidder at the auction held by the Panchayat has been conferred the privilege The question before me is as to whether the 1st respondent Panchayat is entitled to collect fees on the goods brought for trade in the petitioners' premises. As earlier stated the Panchayat does not own the shop buildings, where the petitioners are carrying on trade. The Panchayat does not also own the PWD. road on the sides of which the petitioners have their places of business in shop buildings owned by private individuals. The rates of fee for the goods brought to the public market is fixed as per the schedule in R.7 of the Kerala Panchayats (Public and Private Markets) Rules, 1964. Sub-s.(1) of S.85 of the Kerala Panchayats Act is extracted below:

(2.) Prayer (A) in the original petition is for the issue of a writ of mandamus directing the respondents to forebear from collecting any fee or vandipetta in respect of goods brought by the petitioners in lorries or other types of vehicles and unloaded in their shop rooms and the shop rooms of members of the Merchants' Association. Prayer (B) is for the issue of a writ of mandamus directing the respondents to refund the vandipetta collected from the date of Ext. P2 notice issued by the Merchants' Association to the Panchayat. There is no data about the collections of vandipetta for the goods brought to the petitioners' shops made by the Panchayat or its agents. In terms of prayer (A) in the original petition there will be a direction to respondents 1 and 2 to forebear from collecting vandipetta in respect of goods brought in vehicles to the petitioners' shops which are not owned, constructed, repaired or maintained by the Panchayat. It is open to the petitioners to claim refund of the vandipetta if any paid in other appropriate proceedings if so advised.