VYAPARI VYAVASAYI EKOPANA SAMITHY Vs. ADOOR MUNICIPALITY
HIGH COURT OF KERALA
VYAPARI VYAVASAYI EKOPANA SAMITHY
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(1.) The first petitioner is the Vyapari Vyavasayi Ekopana Samithy, Adoor unit. Petitioners 2 and 3 are members of that samithi. This Original Petition is filed by them mainly challenging Ext. P3 notification issued by the 1st respondent Municipality under S.447 of the Kerala Municipality Act. Ext. P3 is a notification issued by the Secretary of the Municipality fixing the rates applicable for grant of licence for carrying on certain trades within the Municipal area. Ext. P1 was the initial notification issued by the Secretary on 21.1. 1997 superseding the earlier notification of 1990. That was challenged before this Court by filing O.P. No. 3881/98. Subsequently, the Municipality decided to keep in abeyance Ext. P1 and taking into account the objections raised to the rates prescribed in Ext. P1, Ext. P3 notification was issued on 14.10.1998, which was to take effect from 1.4.1999. The petitioners attack Ext. P3 on the following grounds:-
01.The rates prescribed in Ext. P3 do not correlate with the special service rendered in terms of S.492(5) of the Kerala Municipality Act.
02. There may be a person dealing in several items provided in Ext. P3. He will have to pay licence fee in relation to each every item.
03. Para.8 of Ext. P1 confers unbridled and arbitrary power on the Secretary of the Municipality to impose any condition while granting licence.
04. The rates fixed under Ext. P3 will reveal total non application of mind. Item 219 deals with manufacturing of goods which may produce unpleasant and offensive smell and fumes. The licence fee for carrying on the said business is only Rs. 100/- whereas item 213 prescribes a fee of Rs. 500/- for conducting gold loan business. Normally, it must be presumed that the Municipality has to expend more or strain more in relation to an industry which generates dangerous and offensive smell and fumes when compared to a business established for providing gold loans.
05. Ext. P3 notification was published in the Gazette dated 16.3.1999 and it was intended to take effect from 1.4.1999. Therefore, the item limit of 60 days provided in the proviso to S.447(1) is not there between the date of notification and its date of effect.
(2.) The 1st respondent has filed a counter affidavit resisting the prayers in the Original Petition and also stating that the Original Petition is not maintainable. The first petitioner is an unregistered association and it cannot maintain a writ application challenging the fixation of fee made by the Municipality. The affected persons have to challenge it, it is contended. Regarding the various grounds urged by the petitioners, the 1st respondent submits as follows:-
01. The concept of quid pro quo has undertaken a sea change and the benefit derived by the payer of the fee need not have mathematical equivalence to the fee collected. Some benefits enjoyed by the payer of the fee will be sufficient to sustain the rate of fee prescribed.
02. In Para.9 of the counter affidavit, it is submitted that fee will be levied only in relation to the major items traded.
03. Paragraph 6 of Ext. P3 is justified relying on the provisions contained in S.447(3A).
04. The non application of mind alleged against the Secretary is countered by saying that there need not always be mathematical correlation with the service liable to be rendered by the Municipality with the rate prescribed.
05. The time limit of 60 days will apply only if the fee is introduced for the first time. Here what is done is only a revision and therefore, this ground urged by the petitioners is unsustainable.
(3.) . I heard the learned Counsel on both sides.;
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