The Begum Bazar Fish Market Association v. The Municipal Corporation Of Hyderabad And Others

1. This is an appeal preferred against the order of our learned brother P.A. choudary J., by the petitioner in W.P. No. 937 of 1981. By which the writ petition was dismissed.

2. The relevant facts that resulted in the filing of the writ petition are these the petitioner is the Begum Bazar Fish Marchants association. All the members of the Association are fishmongers. They have their shops in the Begum Bazar market. They have been granted licences by the commissioner of the Municipal corporation of hyderabad to sell fish in the stalls in the Municipal market the municipal market at Begum Bazar has 39 stalls the market belongs to the hyderabad Municipal corporation and the market is meant exclusively for the sale of wet fish. The Municipal corporation of Hyderabad, maintains some other markets for the sale of wet fish. They are located in secunderabad Nizam shahi Road Nimboli adda panja Gutta etc.

3. The Hyderabad Municipal corporation levies different rates of stallages, rents and fees in municipal markets and slaughter-houses for the use and occupation of a stall or open space in a municipal market and for the right to expose fish for sale at the rates fixed the stallages and rents and the rights to expose wet fish for sale in all the markets except the one at Begum Bazar but the right to collect charges imposed by the corporation in so far as the Begum Bazar market is concerned. Is sold by public auction.

The commissioner issued a Notification on 10-2-1981 bringing it to the notice of the intending bidders that the right to collect fees on the sale of wet fish at Begum Bazar market will be sold in the public auction on 27-2-1981. Aggrieved against the said Notification the petitioner-Association has filed this writ petition questioning the right of the Hyderabad Municipal corporation to auction the right to collect fees on the sale or the right to expose goods for sale. It is also contended in the writ petition that hte fees chargeable under S. 534, Hyderabad Municipal corporation Act, 1955 (hereinafter referred to as the Act) is a licence fee for the right conferred to sell and theat once a licence is granted after collecting the fees, the authority cannot collect any fees the authority cannot collect any fees for each transaction of sale and impose a fee each time the goods are brought into the market. It is further submitted that the power exercised by the corporation in auctioning only the right to collect fees on the sale in the Begum Bazar market and not in respect of the other markets which are also maintained for the same purpose is discriminatory and violative of art. 14 of the Constitution.

4. The writ petition is resisted by Municipal corporation contending that the Municipal corporation has got the power under S. 534 of the Act to sell the right to collect the fee by conducting public auction and that the contractor who acquires such right as the highest bidder at the auction will collect at the rates fixed by the corporation and that there is no express bar in S. 534 of the Act which disables the Municipal Corporation from putting public auction of its right to collect fees for the right of the members to sell or expose goods for sale in the municipal market. It is also pleaded that the petitioners are in no way affected by the auction and no injury or loss in caused to the petitioner-association or any other vendors and that the writ petition is therfore not maintainable. The writ it is submitted has become infructuous since the auction in pursuance of the impugned notification for the year 1981-82 has been held and fresh auction was again held for 1982-83 also on 8-4-1982.

5. The learned single Judge dismissed the writ petition holding that as an owner of the Municipal market the corporation has undoubted authority under S. 534 of the Act to charge rent and fee for use and occupation of the stalls open space etc., and that as a proprietor of the property it can employ the agency of a contractor to collect these charges. The learned Judge also held that the fee collected for the righ to expose wet fish for sale is not a "Tax" he also negatived the contention that there is practice of discrimination against the petitioner-Association in auctioning the right to sell fish in the Begum Bazar market while no such auction is held for the right to expose for sale the wet fish in the other markets. Consequently the writ petition was dismissed. In this writ petition was dismissed. In this writ appeal all the three questions that were raised and repelled by the learned single Judge are reiterated before us.

6. The first question relates to the power of th Municipal corporation of Hyderabad to auction the right to collect fees on the sale or the right to expose goods for sale under S. 534 of the Act section 534 of the Act reads as follows:-

"Section 534 Levy of stallages, rents and fees in municipal market or slaughter houses:-

The commissioner may-

(A) Charge for the occupation or use of any stall shop standing shed or pen in a municipal market or slaughter house and for the right to expose goods for sale in a municipal market and for weighing and measuring goods sold in any such market and for the right to slaughter animals in any municipal slaughter-house such stallages, rents and fees as shall from time to time be fixed by him. With the approval of the standing committee. In this behalf or.

"But the true legal position as stated by Mukherjee J., in the commr. Hindu Religious Endowments, Madras v. Shri Lakshmindra Thirtha swamiar of shri shiruru Mutt, is that "it is absolutely necessary that the levy of fees should on the face of legislative provisions be correlated to the expenses incurred by Government in rendering the services". In the total absence of any data showing such a correlationship the levy of permission fee has to fail".

16. In this case already the menbers of the petitioner-Association have taken trade licences paying the fee therefore, and they are paying stallage charges. It is stated in the counteraffidavit that the corporation. As the owner of the market maintains the market. Therefore it is entitled to collect the licence fee for the maintenance of the market. It is also entitled to collect rents for the stalls constructed by it Beyond this. If it charges anything more for the sale of fish from these licenced fishmongers, it can be challenged for its incompetency as the charge is not 'fee' but 'tax' This view of ours gets support from the decision of the Madhya pradesh High Court in RamKripal sheoprasad v. Municipal committee Bilaspur , the Madhya pradesh High Court ruled that the impost of fees on the sale of cattle is a tax and not a fee and was, therefore beyond the powers of a Municipal committee. In that case the municipal committee has imposed fees on the sale of cattle at the rate of three pies per rupee on the sale price of such cattle. The right to realise these fees was sold by auction and one Ramkripal sheoprasad became the highest bidder in the public auction. The contract was duly reduced into writing between Ramkripal sheoprasad and the Municipality. Ramkripal and a part of the bid amount at the time of the auction. But he committed default in payment of the balance of the amount. Then the Municipality terminated the contract and filed a suit for realisation of the balance of the amount and however realised the amount as a result of the resale for the rest of the year. The trial Court held that the impost of fees itself was illegal. But, however since Ramkripal had enjoyed the rights and derived profits under it he was estopped from challenging its legality. On appeal the High Court held that imposition of fee on the sale of cattle is a tax and not a fee.

17. Lastly. It was urged that the procedure adopted by the respondent in auctioning the right to collect fees on the sale or the right to expose wet fish for sale in the Begum Bazar market while in other markets the right is not auctioned is discriminatory and offends art. 14 of the Constitution but it is clear from the counter-affidavit that except the Begum Bazar Fish Market the other markets are selling various commodities and not exclusively fish. It is thus clear that the Begum Bazar market is not similarly placed in all relevant factors as the other markets in the city. Therefore it is not possible to uphold the plea of discrimination.

18. To sum up our conclusions:-

1. The commissioner has power under sec 534 of the Act to put up for public auction the right to collect fees on the sale or the right to expose goods for sale in the municipal market.