GOPALAN Vs. CHAMIYAR

JUDGEMENT

(1.) The defendant appellant aspires to establish a private market in a plot of land - the B schedule property - belonging to him within the area of jurisdiction of the Perumatty Panchayat. He made an application to the Panchayat for the requisite licence under the Kerala Panchayats Act and the Kerala Panchayats (Public and Private Markets) Rules, 1964 The Panchayat had published Ext. A23 notification dated 17-2-1978 inviting objections and the application for licence is pending. It is at that stage that the plaintiff who is running a private market in the A schedule property under a licence issued by the adjoining Pattancheri Panchayat filed the suit for a declaration that the defendant has no right to run a market in, his B schedule property or in any other place within 3 kilometres of the plaintiff's market so long as be holds a licence to run a private market, and also for an injunction to restrain the defendant from establishing a private market in his B schedule property. The plaintiff has filed objections in response to Ext. A23 notification. According to the plaintiff the B schedule property of the defendant situated within the area of jurisdiction of the adjoining Perumatty Panchayat is only 10 feet away from the A schedule property of the plaintiff where he is running a private market under licence issued by the Pattanchery Panchayat. The plaintiff relies on R.26 of the Kerala Panchayats (Public and Private Markets) Rules, 1964 (hereinafter referred to as the Rules) in support of his contention that no new private market can be opened within a distance of 3 kilometres from his private market in the A schedule property.

(2.) The defendant in his written statement questioned the plaintiff's right to maintain the suit and contended that he proposes to establish a private market in his B schedule property only after obtaining a licence from the Perumatty Panchayat and in accordance with the terms and conditions thereof. His application for licence is pending before the Perumatty Panchayat and the question of issue of a licence to him will be decided by the Panchayat only after considering the objections submitted by the plaintiff in pursuance to the notification Ext. A23.

(3.) Neither of the Panchayats is a party to the suit and the plaintiff seeks relief against the defendant only. Both the courts below have held that the suit as framed is maintainable. The Trial Court granted a decree as prayed for. The decretal portion of the judgment of the Trial Court is extracted below: