KULASEKHARAPURAM PANCHAYAT Vs. STATE OF KERALA

JUDGEMENT

(1.) IN this Original Petition Kulasekharapuram Pan-cheyat in Quilon District challenges the order of the Government, Ext P-5 dated 9th January, 1973, allowing a revision petition filed by the Thazhava Panchayat against the order of the Director of Pen-chayats sanctioning the opening of a new public market by the petitioner-Pancha-yat. Thazhava Panchayat is running a public market at a distance of about 300 metres away from the site proposed to be used by the kulasekharapuram Panchayat for running a new public markets A tarred road connects the two places. The public market run by the Thazhava Panchayat is in existence since 1950 if not earlier. The objection of the Thazhava Panchayat to the opening of a new market so close to its market is stated to be based on rule 26 of the Kerala Panchayat (Public and Private Market), Rules, 1964. That rule is in the following terms:-

(2.) SECTION 85 of the Kerala Panchayat Act (Act 32 of 1960) empowers a panchayat to provide with the sanction of the Director a place for use as a public market. All public markets within a Panchayat area shall be under the control and management of the Panchayat. Rules framed under the Act provide for the procedure to be followed to open a public or a private market within a panchayat 'public market' is denned in the Act and the Rules to mean any market owned, constructed, repaired or maintained by the Panchayat. Rule 3 provides that before taking a decision the Panchayat should publish a notice in the notice board of the Panchayat in any prominent place in each ward of the panchayat, and in any daily newspaper having wide circulation in the Panchayat area inviting objections, if any, to the opening of a new public market. If any objection is received the Panchayat must consider it before passing a resolution to open a new market and then seek the sanction of the Director as required by section 85 (1) of the Act. This procedure indicates that the inhabitants within the Panchayat area can, for diverse reasons, object to the opening of a new market. The objection of the residents of the neighbouring Panchayat or of the neighbouring Panchayat itself is not contemplated by the procedure prescribed for opening a new market. Each Panchayat, is, subject to the provisions of the act, an autonomous unit. It is for the Panchayat to decide what amenities are to be provided for the inhabitants and where that amenity should be. The panchayat derives income from a public market or a private market. In the former case it gets income by way of rental of the various stalls in the market. In the latter case it receives licence fee for permitting a private market to continue. This is one of the sources of income to the Panchayat. In tapping such a source the interests of the Panchayat alone matters. It may be that the functioning of two markets very close to each other situate in two adjoining panchayats may not fetch that income as may otherwise be derived by the existence of one market alone in a particular place. If the market is situate in one Panchayat area alone even if it affects the income of a market in a neighbouring Panchayat, there is no provision for any apportionment of the income of the Panchayat from the market between the two neighbouring panchayats. If the existing market is situate within the area of two or more panchayats, then alone provision is made in Rules 24 and 25 to apportion the income between the two Panchayats. Thus the rules framed do not in any way provide for considering the interests of any adjoining Panchayat when a public market is proposed to be opened in any Panchayat. In this set up of the rules we have to understand the scope of Rule 26. Rule 26 only mentions that no new market shall be opened within a radius of three kilometres of an existing market, whether public or private. But by the very definition of a 'public market' namely, a market owned, constructed or re-paired or maintained by the panchayat that existing public market must be in the same Panchayat. With respect, this aspect has been overlooked in the deci-sion reported in Sainuddin v. Municipal Commr. , Attingal, 1972 Ker LT 300 = (AIR 1973 Ker 12 ). The facts in that case are as follows. There was an existing public market within the attingal Municipal area. An evening market was started in the neighbouring mudakkal Panchayat. The distance of the evening market place was less than 1. 5 kilometres from the Municipal market place. The licensee of the evening market was sought to be restrained by the Attingal Municipality from conducting the mar- ket on the ground that the evening mar ket is within the prohibited distance mentioned in the Rule 26 from the pub lic market conducted by the Municipality. No sanction of the Director of Panchayat is required to start a private market or an evening market in a Panchayat. The sanction of the director had not been ob tained by the Mudakkal Panchayat be fore granting licence to the evening mar ket. According to the licensee of the evening market the sanction of the Di rector should be obtained only if the ex isting market, whether public or private or evening, is in the same Panchayat as the newly opened market. Since the pub lic market conducted by the Attingal Municipality is outside the Mudakkal Panchayat area the Municipality has no right, according to the licensee, to object to the opening of a market by the Mudak kal panchayat. On these facts this court observed:

(3.) FROM this it follows that the Government was not right in interfering with the sanction granted by the Director to open a new public market by the petitionern-Panchayat on the ground that the existing market managed by the tha-zhava Panchayat is within a distance of 300 metres only. The decision of the Government is therefore unsustainable.