Pullar Chettiar And Others vs The Commissioner, Connoor ... on 25 June, 1993
We get some idea how the problem of this kind can be approached from the minority judgment of the Full Bench in the case of Coimbatore Municipality v. Subbiah, , wherein it is said --'The proper way to understand the scope of the power would be to construe the provision, not in isolation, but in association with the other provisions and in the context of the general scheme of the enactment.' In this one can pose a question. Is the Municipality only a property owning authority or is a responsible local authority which has also to
take into account its obligations towards the people who have created it ? If this aspect is not taken into account, and it is left entirely at the discretion of the Municipality to demand any amount of fee in the sense that it should go by the highest bid and to the person who gives the highest offer, then it will cease to be a service for the benefit of the residents and shall become a short of a trading activity of the local authority and unguided and unabridged this power under Sec. 260(2)(a)(b) of the Act will be violative of Article 14 of the Constitution. In the majority judgment also it is indicated that difference in the rates of levy of fee should not be on the basis of class of trade since it would prima facie violate Article 14 of the Constitution and it is said in that decision that the Municipality once it chooses to let out its stalls in a public market to enable the seller therein to bring together the persons interested in the articles vended by him for purposes of purchase etc. cannot make further inroads into the absolute right of the occupant to adopt an avocation or trade of his choice. The majority judgment of the Full Bench has also pointed out that may be the turnover of a commission agent is more than that of a retailer but that would not enter into the computation of the licence fee because it is an irrelevant consideration. The majority has said -- 'We are of the opinion that though the nature of the trade carried on in the stalls may be taken as a basis for fixing the fee having regard to the extent of the stalls, the extent of the trade carried on in the stall cannot be held to be a rational basis for fixing the fee.' Thus, what I have been able to gather thus for it is indeed necessary for the Municipality in fixing rates for stall-holders to have a definite and clear basis for the determination and fixation of the fee meaning there should always be a rationale behind the fixation of the fee otherwise it will be arbitrary and discriminatory. It is possible to take into account the location of the stall and the size and look of the stall, but it cannot be a just fee if it is realised from the traders to recompensate the cost of construction of the building. Since I have taken the above view, I have no hesitation in interfering with the proceedings of the Council and to direct the respondents to redetermine the rate of fee keeping in view the rational and after affording an opportunity of being heard to the petitioners so as to comply with the requirements of the principles of natural justice. In the result, the Writ Petitions are allowed and the impugned proceedings Nos. Na.Ka.A.4/ 7214/81 dated 2-1-1984 are quashed. The respondents are directed to issue notice to the petitioners calling upon them to show cause why the rate of fee, which the respondents propose, should not be realised from them and thereafter to decide as to what may be the reasonable and proper rate of fee that should be realised from the petitioners as well as the other merchants in the stalls of the public market.