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Judgment
Ramaprasada Rao, J.—These three appeals were heard together as they are connected. Writ Appeal No. 505 of 1968 and Writ Appeal
No. 39 of 1969, are appeals, the former by the Kumbakonam Municipal Council and the latter by one of the stall-holders in a public market run
by the Municipality, against the order of KAILASAM J., in Writ Petition No. 1617 of 1968. Writ Appeal No. 12 of 1969, is an appeal against
the order of the same learned Judge in Writ Petition No. 1298 of 1968, preferred by another stall-holder in a public market run by the Palni
Municipality. The Municipalities in question, in exercise of their respective powers u/s 260 of the Madras District Municipalities Act, 1920, through
their Councils sought to levy fees for the use of the markets in the variegated ways denoted in it and as prescribed. It is not quite necessary to set
out in detail the scale of fees prescribed by the Municipality, as they are not relevant for purposes of these appeals. Incidentally it may be noticed
that the Kumbakonam Municipality has farmed out the fee by holding a public auction therefore and the 2nd Respondent in Writ Petition No. 1617
of 1968, is the person entitled to collect the fees from the persons using the market.
The writ Petitioner in Writ Appeal No. 39 of 1969, a wholesale and retail vegetable merchant having a stall in the public market run by the
Kumbakonam Municipality, whilst being aggrieved against the generality of the levy of fees as above by the Municipality, particularly canvassed the
right of the Municipality, to collect the prescribed fee on vehicles and pack-animals which do not enter the market precincts ; and also the right of
the Municipality to collect a fee on a head-load of vegetables admittedly taken into the market but not for sale by the person bringing them into it.
The learned Judge was of the view that the levy by the Municipality on the vehicle or pack-animal carrying goods, though parked outside is
justified. He, however, held that so far as persons who bring the vegetables for supply to the stall-holders and not for sale by them selves are
concerned, a levy cannot be imposed. As against this order, the Municipality filed Writ Appeal No. 505 of 1968 and the stall-holder Writ Appeal
No. 39 of 1969.
Writ Appeal No. 12 of 1969, is against an order of the learned Judge in Writ Petition No. 1298 of 1968, wherein under similar circumstances
he negatived the right of the Palni Municipality to collect a fee from a person carrying a head load of vegetables for supply and not for sale by him
in the market.
Earned Counsel for the writ Petitioners reiterated before us that the decision of the learned Judge in so far as it authorised the levy of the
prescribed fee on vehicles and pack-animals not entering the market, is against law. The Counsel for the respective Municipalities urged that such a
levy is sustainable. Even so, the contention of the Municipalities is that they have the power and, therefore, the right to collect the fee on persons
bringing goods for sale in the public markets respectively run by them and the direction of the learned Judge in so far as it interdicts such a right and
limits it, to be imposed only on persons getting the goods to be sold by them, is not in accordance with the provisions of Section 260 of the
Madras District Municipalities Act.
The decision in these appeals involve an interpretation of Section 260. Section 259 of the Act explains a public market as one acquired,
constructed, repaired and maintained out of the municipal fund and such market shall be open to all persons. Section 260 dealing with the powers
of a Municipality in respect of public markets provides as follows:
The Council may provide places for use as public markets.
The Council may in any public market levy any one or more of the following fees at such rates and may place the collection of such fees under
the management of such persons as may appear to it proper or may farm out such fees for any period not exceeding three years at a time and on
such terms and subject to such conditions as it may deem fit-
(a) fees for the use of or, for the right to expose goods for sale in, such markets;
(b) fees for the use of shops, stalls, pens or stands in such markets;
(c) fees on vehicles or pack-animals carrying, or on persons bringing, goods for sale in such markets;
(d) fees on animals brought for sale into, of sold in, such markets; and
(e) licence fees on brokers, commission agents weigh men and measurers practicing their calling in such markets.
(3) The council may, with the sanction of the State Government, close any public market or part thereof.
On a fair reading of the section it is clear that the fee levied being quid pro quo for services undertaken and to be rendered by the municipality, is
one which is imposed for the user of the market. Generally a public market is a place used for periodical concourse of people for the purpose of
buying and selling goods. Such goods may be brought into the market by persons bringing them into it or by vehicles or pack-animals carrying the
same for sale in the market. The primordial consideration for the fee appears to be the user of the market acquired and constructed by the
municipality concerned. The word use means an advantageous purpose for which anything can be applied. No doubt, a fee is independently
charged on the stall-holders in the market, for they have the additional advantage of occupying and also using a small, defined and sheltered portion
in the market for purposes of buying and vending goods. If, therefore, the crux of the intent of the levy u/s 260(2) of the Act is relatable to the use
of the market or any portion thereof, it is obvious that no impost is attracted if there is no such user. Thus understood the limits of Section 260(2)
can be analysed. Sub-clauses (a) and (c) overlap. If a fee is levied under one Sub-clause, it follows, no similar fee can be demanded under the
other. The reason is obvious.
The fee is linked with the user of the market. If there is no use, there is no scope for the municipality to incur expenditure, and if there is no
expenditure there can be no levy. It is on this nexus between user and expense that the very foundation of the levy rests. Sub-clause (a) of Section
260 is general in scope and Sub-clause (c) is illustrative of such user referred to in Sub-clause (a). Sub-clause (c) is couched in two distinct parts.
The first part of it refers to fees on vehicles or pack-animals carrying goods for sale in the market. We shall refer to the second part later.
Highlighting the intendment of the levy on the text of this part of the Sub-clause, it means that the fee is leviable only when the vehicle or pack-
animal while carrying the goods for sale in the market, uses it. If, therefore, the vehicle or the pack-animal stands outside the precincts of the
market, the quid pro quo element of the levy is singularly absent, as the vehicle or the animal concerned does not use the market. In the instant case
the lorry merely stands out but no doubt loaded with goods, the levy is not justified on the lorry. It may be if the goods from such a lorry are taken
inside the market by whatever process it may be, it would come under Sub-clause (a) or the latter part of Sub-clause (c) if pack-animals carry
them from the lorry, no doubt such entry of animals would attract tax independently. If persons carry them inside, even so the levy is legitimate as
prescribed. In our view, the conclusion of the learned Judge that lorries even though they do not gain entry into the market are eligible to the levy
merely because the goods loaded therein are taken in, is not supportable by the express language of Section 260(2)(c). It is only such vehicles or
pack-animals which enter the market and thereby use it that would attract the levy. In this view Writ Appeal No. 39 of 1969, is allowed. There will
be no order as to costs.
Regarding the other common question arising in writ Appeal Nos. 505 of 1968 and 12 of 1969, we are afraid we are unable to share the same
view as our earned brother Kailasam J. The argument of the Municipality is that fees is attracted under the second part of Sub-clause (c) of
Section 260(2) . This part of the Sub-clause deals with persons bringing goods for sale in the public market. The force and meaning of the
expression for sale can easily be appreciated if Sub-clause (d) of Section 260(2) is referred to in juxtaposition. In Sub-clause (d) the Legislature
makes a distinction between for sale into and sold in. Bearing in mind the principle of harmonious construction of statutes, the same meaning has to
be attributed to similar language adopted in the same section. For sale in such markets in Sub-clause (c) is, there fore, different from to sell or sold
there in. In our view, the person who brings the goods into the market has to enter it and thus use it. As the user of the market is the acid test to
attract the levy, it does not matter whether he enters the market with such goods, to sell them himself or for the sale of such goods by others. To
limit the levy and circumscribe the power, as the learned Judge did, only to cases where persons bring the goods into the market to sell by
themselves, would be to do violence to the plain language and natural intendment of the section and the purpose of the levy. We are, therefore,
with respect, unable to agree with the view of the learned Judge that:
But so far as persons who bring the vegetables for supply to the stall-holders and not for sale by themselves are concerned, a levy cannot be
imposed.
No other question was obviously argued before Kailasam J.A. hesitant reference was made in the course of arguments that the fee is in the
nature of a tax. No material was placed before our learned brother who heard the arguments in the writ proceedings, nor is there any data before
us to consider this vague submission. It appears to us that the fee levied and charged does not bear any semblance of a tax.
In the result Writ Appeal Nos. 505 of 1968 and 12 of 1969 are allowed, but without costs.