BABUBHAI KHANDUBHAI DESAI Vs. AMRELI MUNICIPALITY

JUDGEMENT

(1.) There are 40petitioners in this Special Civil Application and they contend that all of them are carrying on business at the New Vegetable Market in Amreli Town of Amreli District. The Respondent is the Amreli Municipality constituted under the Gujarat Municipalities Act 1913 (hereinafter referred to an the Act). According to the petitioners they are businessmen doing different types of businesses. They carry on their respective business in cabins or stalls owned by the petitioners and situated on the land purchased by the Municipality from the State Government Formerly on this plot of land there were Police Head quarters but tubsequently the land was purchased by the Municipality for the purpose of putting up the market. In the case of some of the petitioners they carry on businesses for which licences are required to be obtained from the Municipality and each of such petitioners has obtained the necessary licence from the respondent Municipality to carry on his trade or business for the use of the ground on which the cabins or stalls are put up. The RespondentMunicipality charges rent on a daily basis and the same is being paid by different petitioners. According to the petitioners the Municipality had purchased the land on which the old Police Head quarters at Amreli were situated and after purchasing the land the Municipality prepared a scheme for constructing on a part of the said land stalls for vegetables fruits etc. and in the remaining portion of that land the scheme of the Municipality was to put up shops for the sale of different articles of daily use. It is the contention of the petitioners that this scheme was prepared with the ostensible object of providing shops with guaranteed possession to middleclass businessmen who had no places of business at less and reasonable cost and on reasonable rent. For a long time after purchasing the land from the Government the Municipality could not put up any construction on the land and according to the petitioners the Municipality had not got sufficient fund with it for investing in a large scale construction of stalls and shops. On April 30 1972 the respondent Municipality passed a Resolution to the effect that 81 stalls for the sale of vegetables etc. should be allotted to the vegetable vendors without charging any cost of construction but in respect of the other shops on the ground floor the Municipality would charge cost of construction as determined by the Consulting Engineer according to the classification of shops made by him. Depending upon the size of the shop and the situation of the shop the municipality proposed to charge cost of construction from Rs. 2000/to Rs. 20 0 per shop; and in this manner about 160 shops are proposed to be constructed. Under the Resolution it was provided that the shops would be given on lease of 10 years with an option to the lessee to extend the lease for a further period of 10 years; and in that connection if necessary the sanction of the State Government would be obtained. The Resolution of April 30 1972 further provides that notwithstanding that the municipality would charge the cost of construction the ownership of the shop would remain in the municipality and over and above taking the sum for the cost of construction monthly rent in respect of the said shops at eight annas per Sq. foot would be charged. Under the Resolution if during the term of the lease the lessee wants the shop to be transferred to another person such transfer would be made on the payment of fee equal to 25% of the fee charged at the time of allotment. Under the Resolution even after the expiry of the period of 10 years or 20 years the tenant would be continuing he would have no right to sub-let the shop or to get the shop transferred to another person. Under the Resolution it was provided that in addition to the rent the tenant would be required to pay water tax house tax education cess electricity consumption charges etc. At the meeting objections were raised that the construction charges which were proposed to be taken from the allottees or from the proposed tenants was excessive and illegal and could not be charged under the law. According to the petitioners this Resolution of April 30 1472 a copy of which has. been annexed to the petition as Annexure A is contrary to the provisions of the Act.

(2.) The main contention of the petitioners is that under sec. 208 of the Act it is open to the Municipality to charge stallage or other rentsor fees for the use by any person of any public market but it is not competent to the Municipality to take not only stallage or other rents or fees but also construction charges for the shops. It was further contended by the petitioners that it is competent to the Municipality from time to time sell by public auction or otherwise the privilege of occupying any stall or space but it is not competent to the Municipality to provide for charging construction cost in respect of any stall or shop in a municipal market as proposed to be done by the impugned Resolution. The main argument which was urged before me at the time of hearing was based on sec. 208(1) of the Act. The petitioners have therefore filed this petition challenging the impugned Resolution of April 30 1972 and they have prayed that this Resolution should be quashed and the Municipality should be permanently restrained from implementing or acting upon the said Resolution and from incurring any expenditure in that connection.

(3.) A translation of the Resolution of the Municipality is Annexure A to the petition and the Resolution in terms says that the Municipality has no fund to undertake such a large construction from its own funds and hence the Municipality lays down the terms to lease the stalls and the shops for vegetables and the upper portion. Depending upon the size of the shops and the situation of the shops the construction cost proposed to be charged from the intending lessees varies from Rs. 2000/to Rs. 20 0 and it is found that ultimately the Municipality would realize Rs. 20 86 0 from the different shop keepers towards construction cost in accordance with the scheme set out in the Resolution.