Krishnarao Gopalrao Naik v. Secretary Of State

1. This it a suit under Section 23(3) of the Central Provinces Local Self Government Act of 1920 for the cancellation of a Notification under sub.-s. (1). Other reliefs are also claimed in the alternative but primarily the suit is for the cancellation of this Notification. Under S. 23(1), the Local Government is given power to order by Notification that the right of levying fees and tolls and of controlling any market shall vest in the District Council and independent Local Board. Niyogi A.J.C holds, and I respectfully agree with him, that this applies to any market which corresponds to the definition of market given in S. 2(2) of the Act whatever it may happen to be called. As soon as this is done, the market then becomes a public market within the meaning of the Act: see S. 2(3). The consequences of this are explained by Stone C.J in ILR (1937) Nag 246.1 The exclusive right to levy tolls and fees and to control the market vests in the District Council.

2. Section 23(3) of the Act gives to certain persons, not specified there, the right to avoid these consequences by instituting a suit within six months for the cancellation of the Notification. Exactly who may institute such a suit is not indicated nor yet the grounds on which it can be founded.

3. But under the general law of the land, no suit can be brought except by a person whose rights have been prejudicially affected in some way. I take it then that such persons are entitled to sue, and from that I deduce that the Notification must be cancelled if the prejudice is established. It follows that the rights of Government to issue such a Notification are not absolute. Government cannot prejudicially affect another's vested interests by such a Notification under thief Section if that other chooses to sue within the time allowed. If he does not, then, of, course, as Niyogi A.J.C, points out, his right of protest goes and he loses whatever rights he might once have had in this respect. But, if he does sue, then the intention of the Legislature is that the Courts should intervene and protect him by cancelling or amending the Notification. The question therefore narrows itself down to this. Have the plaintiffs any rights which have been prejudicially affected by the consequences which this Notification invokes? That cannot be answered until we know what the plaintiffs' rights are and to what extent they are affected by the Notification. As regards the first point, I dealt with this matter in ILR (1937) Nag 148.2 Quoting from Halsbury's Laws of England, Vol. 20 p. 20, I said:

The owner of a market or fair has as a rule the right to remove it, whenever he thinks fit, to a new place, provided he observes certain limitations… in the absence of a statute the right to hold a market or fair is an incident of the ownership of the land.

4. Also in general, the owner has a right to levy fees and tolls which are usually known as stallage, piccage, pennage, and rent and no one can erect a stall on any portion of the land or otherwise claim exclusive occupation of it without a license from the owner. But—and this point I had no occasion to touch before—these rights can be curtailed in various ways one of which is custom. In the present case these limitations are to be found in the village wazib-ul-arz (Ex. P. 1). It says “nobody has right to make collection from the bazar.” Therefore in so far as the Notification directs that “the right of levying fees and tolls” in this market shall vest in the District Council it does not infringe any of the plaintiffs' rights, for, as we have seen they have none. Apart from this the matter is res judicata. The question was expressly raised and decided in a previous suit between the same parties. Ex. 2 D. 1 is the judgment in the case and it was upheld on appeal and second appeal.

5. It is argued that if the plaintiffs have no such rights then nobody else has any either and that to that extent the Notification is ultra vires. But that is not the point for consideration here. As I have said, unless the plaintiffs can show that their rights have been infringed, this suit cannot lie. The plaintiffs have not pleaded that any fees or tolls are to be levied from them, and so it is clear that they are not affected. Whether others are affected or not is no concern of theirs. They have their remedies and if they are content not to pursue them the plaintiffs cannot do so on their behalf. The matter was also placed in another way. It was argued that if fees and tolls are now levied, it may prevent vendors from coming to the market and so will prejudicially affect the plaintiffs' revenues from other sources, for, the crowds which assemble at the market gather produce from their jungle and take water from their tanks and wells for all of which they charge. Therefore it is argued that although this income is not directly derived from the market, it flows indirectly from it and any diminution in the extent of the crowds which gather there will react on the plaintiffs' general income. It is enough to state that these facts have not been pleaded nor have they been adverted to in the lower Courts. In the absence of investigation, it is impossible to determine whether there is any reasonable foundation for this fear and whether the injury apprehended is not too remote. I cannot allow this question to be raised now especially as it was not even raised in the grounds of appeal before me.

6. The only other matter the Notification deals with is the control of the market it vests this in the District Council also. Does this infringe any of the plaintiffs' vested rights? The answer naturally depends upon the meaning of the word ‘control’ and the various rights it involves. As I see it, control as used in this connotation can only mean to manage or to regulate. In the abstract one form of control will of course involve the right to decide who may enter the market and who may not: the right in other words inherent in the owner of the soil to issue licences to those who want to occupy his land, but in the case of markets these rights are very considerably curtailed. The law is stated in these words in Halsbury's Laws of England, Vol. 20, page 6:

At all times when a market ought lawfully to be held, every member of the public has, of common right, the liberty to enter and frequent the market place for the purpose of bringing thither and there exposing for sale and selling, or of buying, such commodities as are vendable in the market.

7. Therefore it is clear that the only right which the owner has left to him is to levy fees and tolls and if that is taken away by custom or statute or other means his right of control in this sense vanishes, and we are left with the general right to decide which of two or more persons shall occupy a particular site when there is a dispute between them. It can mean no more than that for the only remaining rights of control would be a right to police the place and that of course is a Sovereign right vested in the State alone: 39 Cal 6153 at p. 661. As regards this the right to decide such disputes between two rival vendors about the plot of ground they are to occupy is vested in the village mukaddam under the wazib-ul-arz (Ex. P. 1). It says, “The village mukaddam settles disputes of the baithaki bazars, etc.”. There has been no allegation throughout the case that the plaintiffs' rights qua mukaddam have been infringed; there is not even an allegation that he is the mukaddam; also I doubt whether such a suit would lie. But I need not enter into that now as the question has not been raised.

8. The last point is about the plaintiffs' right to levy fees for nistar. They argue that the Notification infringes such rights. I was not able to pin the plaintiffs' learned counsel down to any exact enumeration of these rights. All I could gather was that they related to the jungle, to a tank and to certain wells. The jungle and the tank lie outside the boundaries of the market and so the Notification does not affect any right the plaintiffs may have there. I gather the wells are also outside but it makes no difference. The Notification only touches the rights to levy fees and tolls in connexion with this market. The wazib-ul-arz says the plaintiffs have no such right. If these collections form a fee or a toll in connexion with markets, then the plaintiffs have been acting illegally; if however they do not form part of such fees or tolls then they are not touched by the Notification and all I have to decide here is whether the plaintiffs' vested rights are affected by this Notification. I find they are not. It follows, no suit for cancellation of the Notification can lie. The decision of the lower Courts is right, I dismiss the appeal with costs.

S.C/R.K

9. Appeal dismissed.