P.Johnson, M.A. Jose, and Mithun Dominic v. Aluva Municipality and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY ,THE 14TH DAY OF DECEMBER 2018 / 23RD AGRAHAYANA, 1940** ## **WP(C).No. 9980 of 2012** ## **PETITIONER/S:** |**1**||**P.J.JOHNSON, AGED 45,**| |---|---|---| |||**S/O P.M. JOSE,**| |||**PUTHUSSERY HOUSE,**| |||**ALUVA - PIN 683574.**| |**2**||**M.A. JOSE,**| |||**AGED 58 YEARS,**| |||**S/O M.J. AUGUSTINE,**| |||**MOOTHEDATH HOUSE,**| |||**FRIENDSHIP LANE EAST- ALUVA.**| |**3**||**MITHUN DOMINIC,**| |||**AGED 26 YEARS,**| |||**S/O DOMINIC, KOORAN HOUSE,**| |||**SHANTHI LANE, THOTTAKATTUKARA P.O, ALUVA.**| |||**BY ADVS.**| |||**SRI.VIVEK VARGHESE P.J.**| |||**SRI.VARUGHESE M. EASO**| |||**SRI.XAVIER CHERIAN**| |**ENT/S**|**:**|| |**1**||**ALUVA MUNICIPALITY,**| |||**ALUVA-683 101,**| |||**REP. BY ITS MUNICIPAL SECRETARY.**| |**2**||**STATE OF KERALA,**| |||**REP. BY SECRETARY TO GOVERNMENT,**| |||**LOCAL SELF GOVERNMENT DEPARTMENT,**| |||**GOVERNMENT SECRETARIAT,**| |||**THIRUVANANTHAPURAM-695 001.**| ## **RESPONDENT/S:** **BY ADVS. R1 BY SRI.V.M.KURIAN SRI.K.T.THOMAS SRI.MATHEW B. KURIAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.9980 of 2012 2 ## **JUDGMENT** The following are the reliefs sought for by the petitioners in this writ petition: _“i. To call for the entire records of Ext.P2 and issue a writ of certiorari or such other writ or order quashing Ext.P2 notice;_ - _ii. Award the cost of this proceedings; and_ _iii. Such other reliefs that this Hon'ble Court may deem fit and proper.”_ 2. Brief material facts for the disposal of the writ petition are as follows: 3. Petitioners are engaged in the business of Dry fish and fish trading at the Aluva Municipal market, owned by the 1[st] respondent Municipality, by bringing goods from outside the market and selling in open spaces for the past 20 years. The exclusive right to collect fees from the traders in the market is auctioned by the 1[st] respondent Municipality to the highest bidder for use of the market and for providing facilities to the traders in the market. According to the petitioners, they were paying charges to the person who is granted the exclusive right to collect the charges through auction. During April, 2011 to March 2012, the petitioners were paying rates as per Ext.P1 as 'gate collection'. Petitioners are also paying rent for occupying the premises. W.P.(C) No.9980 of 2012 3 4. While so, according to the petitioners, 1[st] respondent has arbitrarily increased the amount currently paid by the petitioners by more than 100 percent, and the right to collect the fee was auctioned at the higher rates as per Ext.P2 tender conditions dated 30.01.2012, which, according to the petitioners, is highly illegal, without any basis and without any consultation with the traders in the market. Since the petitioners are marginal traders, the increase in fees is causing severe difficulties and prejudices to the petitioners. These are the basic background facts projected by the petitioners to secure the reliefs pointed out above. 5. The 1[st] respondent has filed a counter affidavit, refuting the allegations and claims and demands raised by the petitioners. Among other contentions, it is stated that, Ext.P2 is the tender-cumauction notification issued by the Municipality for collecting various fees and other charges from the market, bus stand, comfort station etc. within the Municipal area for the year 2012-13. Pursuant to Ext.P2 notification, tenders/auction were held as scheduled, and the same has been finalized also. Tenderers/Auctioneers have commenced collection of fees etc. with effect from 01.04.2012. The writ petition was filed long after the W.P.(C) No.9980 of 2012 4 publication of tender/auction notification and finalization of tender/auctions, and on the said sole ground, the writ petition is liable to be dismissed. 6. The fees for various items are fixed by the Municipal Council in terms of the bye-laws and after following the procedure prescribed, and accordingly, fees are fixed by the Council on 28.01.2012 and Ext.P2 notification is issued thereafter. The fees collected by the Municipality for the earlier years were very negligible and not sufficient to meet the various expenses incurred by the Municipality to maintain the market. It is also pointed out that, there was no increase in the fees for the last ten years. Though the price of various goods have increased manifold, and the expenses incurred by the Municipality have also increased considerably, there was no corresponding increase in the fees. Therefore, the fees levied as per Ext.P2 notification is reasonable when compared to the cost and expense incurred by the Municipality for the maintenance and upkeep of the fish market. The amount levied is negligible when compared to the price of the goods sold by the vendors in the fish market. The Municipality is providing various services and facilities to the traders in the market and there is clear _quid pro quo_ in imposing W.P.(C) No.9980 of 2012 5 and increasing fees as per Ext.P2 notification. Other contentions are also raised by the said respondent. 7. A reply affidavit is filed by the petitioners, reiterating the stand adopted in the writ petition. 8. I have heard learned counsel for the petitioners, learned Government Pleader, and the learned Standing Counsel appearing for the 1[st] respondent Municipality. Perused the pleadings and the documents on record. 9. The prime contention advanced by learned counsel for the petitioners is that, as per the provisions of the bye-laws constituted by the Municipality in accordance with the provisions of the Kerala Municipalities Act, 1960, there is a clear procedure contemplated before finalizing the fees and charges with respect to the use of the space provided within the market. None of the procedure as is contemplated under law was followed by the respondent Municipality. Learned counsel has also invited my attention to a Division Bench judgment of this Court in ' _**Rajesh v. Aluva Municipality**_ ' [2005 KHC 219 : 2005 (1) KLT SN 52], wherein a similar question was considered with respect to the fee imposed on sale of ice blocks, therein, it is held that, the procedure is not followed, in accordance with Sec.575 of the Kerala W.P.(C) No.9980 of 2012 6 Municipality Act, 1994 [for short, 'the Act, 1994'], which stipulates that, bye-laws framed by the Municipalities be followed unless it is varied or annulled. Section 567(2) of Act, 1994, states that, Council may make bye-laws not inconsistent with the provisions of the Act and the Rules made thereunder or any other law to provide for the time and mode of collecting taxes and duties under the Act. It is not clear or evident from the counter affidavit filed by the Municipality, as to whether the Municipality has followed the procedure as is contemplated under the afore-quoted provisions and Sec.347(20)(a) and (b) of the Kerala Municipalities Act, 1960. 10. So much so, I am of the opinion, similar facts and circumstances exist in this case also, since it is quite clear and evident, the procedure prescribed under Clause 23 of the bye-laws was not followed by the Municipality. Clause 23 of the bye-laws quoted in paragraph 5 of the judgment in ' _**Rajesh'**_ ( _supra_ ) is relevant to the context, which read thus: _“23. The dealers should pay the prescribed fees and stall rent. The rates of fees and the stall rent to be levied from the different markets shall be determined by the council by resolutions from time to time, under the Kerala Municipalities Act._ W.P.(C) No.9980 of 2012 7 _Provided that the Municipal Council shall before fixing the rates of rents and fees or revising such rates publish the proposed rates for general information and the proposal will be finalised and given effect to only after fifteen days of such publication and after considering the objections or suggestions, if any, received within the said period of 15 days.”_ Even though directions were issued to produce the relevant proceedings prior to the auction conducted, it is not produced by the Secretary of the Municipality, so it is only legal and proper to draw an adverse inference against the Secretary of the Municipality, who is the custodian of the documents. Accordingly, I do so also. 11. In that view of the matter, I am of the considered opinion that, the case put forth by the petitioners is squarely covered under the proposition of law laid down by this Court in the judgment in ' _**Rajesh'**_ ( _supra_ ). Therefore, the petitioners are entitled to get the similar relief as is granted by the Division Bench of this Court in the afore-quoted judgment. Learned counsel for the petitioners has a case that, what is under attack in this writ petition is the fees fixed and not the auction notice viz., Ext.P2. However, the reliefs sought for by the petitioners clearly show that, what is under challenge is Ext.P2 auction notice dated 30.01.2012, fixing the fee for the period from 01.04.2012 to 31.03.2013, against the petitioners alone. That apart, W.P.(C) No.9980 of 2012 8 it is clear from Ext.P2, auction is being conducted every year, fixing the fees. Therefore, petitioners are not entitled to get any relief, as is contended by learned counsel for the petitioners with respect to the fees fixed and the auction conducted during the later years. It is also submitted by learned counsel that, petitioners have paid the fees in accordance with the fees prescribed under Ext.P2. 12. Therefore, the writ petition is allowed to the extent, that the fees fixed for conducting fish vending in the market so far as the petitioners are concerned, are set aside, and there will be a direction to adjust the fees paid as per Ext.P2 against any future period. ## **Sd/-** ## **SHAJI P.CHALY** ## **JUDGE** W.P.(C) No.9980 of 2012 9 ## **APPENDIX** **PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF TENDER CONDITIONS DATED 22/01/2010 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P2 TRUE COPY OF THE TENDER CONDITIONS DATED 30/01/2012 BY THE 1ST RESPONDENT.** //TRUE COPY// P.S. TO JUDGE St/-