K MOHD YOUSUF Vs. COMMISSIONER KADIRI MUNICIPAL ANANTAPUR

JUDGEMENT

(1.) Invoking the jurisdiction of this Court under Article 226 of the Constitution of India, the petitioners filed the writ petition assailing the action of the respondent-Kadiri Municipality in collecting fee of Rs.30/- and Rs.60/- for each mini van and lorry, engaged by them for transporting fruits to their shops from outside the municipal market, as illegal, arbitrary and contrary to the provisions of the A.P. Municipalities Act, 1965.

(2.) The petitioners claim to be doing business in fruits in the shops taken by them on lease from the Mosque located on College Road, Kadiri. In the course of their business, the petitioners state that they engage vehicles for transporting fruits to their shops from destinations located outside the municipal area. It is their case that earlier the officials of the respondent used to collect Rs.5/- for each vehicle engaged by the petitioners for transporting the fruits to their shops from outside the municipal area. While so, it is the case of the petitioners that persons authorized by the respondent to collect fee, all of a sudden started collecting Rs.30/- for mini van and Rs.60/- for lorry, engaged by the petitioners for transporting the fruits to their shops from outside the municipal area. The petitioners state that on enquiry they came to know that the respondent had auctioned the leasehold rights for collecting fee in the market yard. It is the case of the petitioners that even though the shops taken by them on lease belong to a private person (mosque) and not the municipality, and even though mosque, in which the shops are housed, is located outside the market yard on the main road and not within the market yard owned by the respondent, yet the respondent is collecting the enhanced fee in respect of the vehicles transporting fruits to their shops at the rate of Rs.30/- and Rs.60/- for mini van and lorry respectively, which is illegal and arbitrary. The petitioners state that under Section 277 of the A.P. Municipalities Act, 1965 (for short 'the Municipalities Act') the respondent is entitled to collect or levy fee only in respect of the vehicles which come to public markets, as defined under Section 276 of the Municipalities Act, namely if they had been either acquired, constructed, repaired or maintained by the respondent from out of the municipal funds, and not to the shops belonging to private persons, and as such, the collection or levy of enhanced fee by the respondent from the petitioners in respect of the vehicles engaged by them for transporting fruits to their shop from outside the municipal limits, is not in consonance with the provisions of the Municipalities Act. Hence, the petitioners filed the present writ petition.

(3.) On behalf of the respondent, the Commissioner filed counter stating that markets in the municipality are categorized into two categories, namely public markets and private markets. For running business in a private market, the person intending to do business therein has to obtain a licence from the municipality under Section 279 of the Municipalities Act. When once licence under Section 279 of the Municipalities Act, is granted to a person to do business in a private market, the municipality is entitled to collect fee as specified in sub-section (2) of Section 277 of the Municipalities Act, and therefore, the persons who are running private markets or doing business in private markets, including the petitioners, are liable to pay the fee as specified therein. Under Section 289 of the Municipalities Act, the respondent is empowered to prohibit or regulate the sale of articles on public streets. Though the respondent had been collecting fee from the petitioners in respect of the vehicles, which transport fruits to their shops from out of the municipal area, they have at no point of time objected to such collection, and in fact, paid the fee without any protest.