MARKET VYABARIGAL SANGAM AND ORS. Vs. THE MUNICIPAL COUNCIL

JUDGEMENT

(1.) Original Suit No. 110 of 1965 on the file of the Court of the Subordinate Judge, Coimbatore, was originally filed by Market Vyabarigal Sangam, Coimbatore, by its Principal Secretary, for the time being, but in a representative capacity. On an objection taken as regards the frame of the suit, Plaintiffs 2 and 3 were impleaded as co -Plaintiffs, and at the time when they sought themselves to be impleaded, they made it clear that they were joining in the action in a representative capacity for and on behalf of the stall -holders carrying on business in Thyagi Kumaran Market, Coimbatore and not only to further the alleged rights in themselves as such stall -holders in the said market. The suit is for a declaration that the levy of fees by the Municipal Council, Coimbatore, for the use and occupation of the stalls in the Thyagi Kumaran Market owned by it, is ultra vires, illegal and void and for a permanent injunction restraining the Municipality from collecting such fees demanded by them in view of their occupation and use of the stalls in the market. The various stalls and their position are set out in schedules A (I), B (J), C (I), and D (I). The Plaintiffs claim is that even though the stalls are situate in the same precincts, different rates of levy have been made from time to time, and such levy is not in accordance with the provisions of the District Municipalities Act or the rules framed thereunder. The Plaintiffs case is that at one stage, there was an increase in such a levy by 35 per cent of the previous fee by a resolution, dated 12th February 1964 and that rate was prevalent since 1st April, 1964, till the date of suit. The complaint, however, is that by Resolution No. 1309, dated 23rd January, 1965, the rate of fee was further increased and such enhanced levy was demanded by notices issued by the Municipality soon after the passing of the resolution as above and this is said to be cause of action for the suit in question. The Plaintiffs' case is that the Municipality has no right to make such a levy, and in any event the levy is arbitrary and. illegal besides being discriminatory. Though in the pleadings, the resolution as such is attacked on the ground that it is ultra vires the powers of the Municipality, yet, there is no prayer in the plaint seeking for the removal of the said resolution under which the impugned demand was made.

(2.) The Municipality, in its written statement says that the suit is not maintainable in law, as what was sought to be collected is in the nature of a return from the property owned by the Municipality, that it has the right to fix and levy such fees on the occupants or stall -holders in the market and that the relationship between the Municipality and the stall -holder is one of licenser and licensee the period of the license being one year. As this licensee was renewable annually under written agreements generally entered into for the purpose, the occupation of the stalls is governed by a contract between the parties, the legality or otherwise of which cannot be the subject -matter of a civil dispute. It is also claimed that the rate fixed by the Council was to augment the resources of the Council and to meet the increased cost of maintenance and upkeep of the market. For the above reason, the levy was bought to be sustained and the suit was resisted.

(3.) On the above pleadings, the following issues were framed: