V.S. Kotwal, J.
1. Since this bunch of matters contain the sphere of controversy on identical pattern, all the four petitions can be conveniently disposed of by this common judgment which is acceptable to both the sides.
2. All the petitions raise a common question about the construction of the provisions of section 407 of the Bombay Municipal corporation Act (the Act) in the context of the factual structure as to whether the Commissioner of the Corporation or for that matter even the Standing Committee is entitled to revise the stallage charges in respect of the various stalls which have been taken in public auction by these petitioners long back in the year 1969. The facts are very few and would fall in a further narrower field. In Writ Petition No. 1020 of 1983, the petitioners claim to be the highest bidders in the public auction that was held sometime in the year 1970 qua the stalls located in Dr. D.H. Kharude Market at Prabhadevi area in this metropolis and since they have been occupying the said stalls for the purpose of sale of vegetables and other articles and they have been regularly paying the stallage charges to the Corporation. The Commissioner that is the respondent No. 2 has made a proposal for revising the stallage charges as also for revising rentals in respect of such stalls located in different markets in this metropolis and the said proposal after some amendment came to be sanctioned by the Corporation and the Standing Committee under which certain enhancement was ultimately sanctioned depending on the gradation of the market. In the instant case, increase on 1.2/3rd tax of the present standard charges was to be levied and it is this order that is placed under challenge. In Writ Petition No. 1510 of 1983, the petitioners are similarly situated though they are associated with a different market viz. Municipal Market at Dadar and that they were the highest bidders in respect of certain stalls in public auction which was held in 1964 and since then they are in occupation of their respective stalls paying the charges regularly. In their case also by a circular that is issued in 1983, the charges are sought to be enhanced by 2.1/4th times of the present rate because those stalls are in 'A' category. In Writ Petition No. 1643 of 1983, similar facts follow though in that case it relates to Mahatma Jyotiba Phule Market and they had taken different stalls in public auction sometime in 1963, 1964 and those are placed in 'A' category. By the proposed revised rates, the increase, suggested is 2.1/4th time of the present rate. In Writ Petition No. 1376 of 1983, it also relates to the same market Mahatma Jyotiba Phule Market and the public auction was also held round about the same time and those stalls also fall in 'A' category with the proposed increase to the tune of 2.1/4th of the present rate. All these proposed increases is reflected in the circular of the year 1983. It is under these circumstances that the said circular and the proposed act of the Corporation to enhance or increase the stallage charges is placed under challenge under Article 226 of the Constitution of India by all these petitioners in this group of four companion petitions and which for the reasons already stated are being disposed of conveniently by a common order.
3. Apart from all other questions, the main ground of attack as adopted by Shri Sathe, the learned Counsel for the petitioners, in all the petitions relates to the construction of section 407 of the Act. According to him his case is covered only by sub-clause (a) because it relates to public auction and if that be so, then according to him there is no jurisdiction or authority in any of the Respondents or even the Standing Committed of the Corporation to increase the stallage charges vis-a-vis the stall which are taken in public auction whereas such a increase is permissible only under sub-clauses (a) and (b) which are outside the mode of allotting the stalls being not by public auction or private sale. Consequently, the learned Counsel submits that once the stallage charges are fixed may be in the year 1964 or 1969 or 1970, still those cannot be increased on any premise and for any reason whatsoever because of the restrictions as contained in this provision of section 407 of the Act and especially by reason of the fact that these stalls are taken in public auction but are not allotted by the Corporation through any other mode. Incidental contention which is the outcome of the main contention is that not even the Standing Committee would get any jurisdiction to sanction any such proposal atleast in respect of the acts falling in sub clause (c). The entire brunt of attack reflects around this feature. This has been counted by Shri Singhvi, the learned Counsel for the Respondents, on two counts. The main plank of the argument however is based on the provisions contained in section 401 of the said Act along with the terms of the licence that had been issued in favour of the petitioners for running the said stalls and therefore the contention is to the effect that the stallage charges are payable either every month of at the most in a every quarter and it is the Corporation or the Commissioner who ultimately retains in its control the reins or imposing the amount of charges that would be leviable every month or every quarterly, as the case may be, and which would be a condition of the licence itself and therefore if the person is not satisfied with the proposed levy then he has an option to leave the stall but he cannot dictate the terms suggesting that the stallage charges cannot be increased. A distinction is sought to be made between the concept of property and the licence. The other ground relied upon by Shri Singhvi, though incidental, suggests that if section 407 is read in proper context then it would indicate that sub clause (a) serves as a preamble which would govern both the other two clauses and under this sub-clause (a) the Commissioner has every power and authority to levy charges and which authority contains in its fold the further authority even to increase the said charges, whereas sub-clause (c) merely projects the mode of allotment of the stall such as by public auction or private sale and then stops at that point. So far as the stallage charges are concerned, even sub-clause (c) will have to fall back on the main provision of sub-clause (a) therefore the stallage charges even in respect of the stalls which are taken in public auction under sub-clause (c).
4. For this reason the contentions raised by Shri Sathe the learned Counsel which are too specious and which obviously tend to lead to the most irrational results can hardly be accepted. The interpretation sought to be suggested by Shri Singhvi completely fits in with the object of the Act as also the plain reading of the relevant provisions and there does not appear to be any escape from the same.
5. Section 407 is sub-divided into three clauses (a), (b) and (c). Clause (c) embraces the situation where the stall is taken on public auction in a Municipal market on particular terms and conditions as being imposed by the Commissioner. Admittedly, all the petitioners have taken their respective stalls in public auction accepting certain conditions though it is accepted position that no formal agreements have been executed in that behalf with the Corporation and which by itself creates a formidable deficiency as rightly contended by Shri Singhvi, the learned Counsel, regarding the validity of these transactions themselves. However, this apart, the fact remains that these stalls are taken in public auction which is an accepted position; that all these stalls were duly constructed because in respect of some stalls it is contemplated that those related to open spaces earmarketed for certain stalls but the construction of the stalls is to be effected by the persons who obtains the said stall, which is not the case at hand.
6. It would be better if section 407 in its entirety can be reproduced to understand the thrust of the controversy. Section 407 reads as under :
'407. 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 (b), with the approval of the standing committee, form the stallages, rents and fees leviable as aforesaid or any portion thereof, for any period not exceeding one year at a time; or (c) put up to public auction, or, with the approval of the standing committee, dispose of, by private sale, the privilege of occupying or using any stall, shop, standing shed or pen, in a municipal market or slaughter-house for such term and on such conditions as he shall think fit.'
7. As stated, sub-clause (c) relates to public auction with which we are concerned in these proceedings. Under clause (a) the Commissioner can charge for the occupation of the stall and for its user for the purpose of sale of certain articles and can fix stallage rates and fees as shall be so fixed from time to time with the approval of the standing committee. The concept of rent and stallage may be different but the underlined principle about the Commissioner's power under this provision is identical. Under sub-clause (b) a slight modification is embodied relating to the tenure of a particular term as deemed proper for which purpose certain conditions can be imposed by the Commissioner. Under, sub-clause (c) though it is by public auction, and if it is by private sale, then it is under the approval of the standing committee, then he can fix the charges for such term and also impose certain conditions.
8. In the wake of this controversy, provision of section 401 play an important part and which read as :
'401. (1) No person shall, without a licence from the Commissioner, sell or expose for sale any animal or article in any municipal market.
(2) Any person contravening this section may be summarily removed by the Commissioner or by any municipal office or servant.'
9. This provision cast an embargo on the part of the occupier of the stall being required to be armed with a licence for the user of the said stall for the sale of any article in the municipal market and if there is any breach of these provisions including the breach of any the conditions annexed to such a licence, then the Commissioner gets power to summarily remove the said person from the said stall. This provision along with the one under section 407 falls in a separate chapter which deals with maintenance and regulations markets beginning from section 398.
10. The other provision in this chapter relate to the Commissioner's power to impose certain conditions to regulate the user of the stall and also to regulate the sale transaction of certain articles and also to take steps if there is any contravention. The combined reading of these provisions would support the contention canvassed by Shri singhvi, the learned Counsel, to the effect that the user and sale of the articles of the stall must be in consonance with the licence, the contravention of which entails into the consequences of his removal from the said stall. In the instant case, the licence that is issued in favour of the these petitioners contain various conditions. This is preceded by the conditions annexed to the auction of stall in the Municipal markets. Under Condition No. 4, a successful bidder has to sign an agreement and has to pay immediately on the spot stallage charges and standing deposit equal to two months stallages if the stall is to be given on monthly basis and equal to one quarters stallages if the stall is to be given on quarterly basis and he is also enjoined to pay the licence fees in default of which the auction is to be treated as cancelled and the stall can be reauctioned. Read in the end of the context of these conditions of auction are the conditions imposed to the licence which are styled as restriction and conditions subject to which the licence is granted. The licensee has to pay in advance the amount payable to each quarter within the first fifteen days of the quarter the licence has been issued for a period of one year. Admittedly, the licence fees has been made payable per month and not quarterly. If that be so, then the plain reading of these provisions make it clear that it is within the jurisdiction and authority of the Commissioner to impose and levy the said licence fees every month. There is corresponding obligation on the part of the licensee to pay the fees so fixed by the Commissioner. This does not preclude or prohibit the Commissioner from revising the said fees which are essentially for the user of the stall for the purpose of sale of articles in the municipal markets. If it is not acceptable to the licensee then he can certainly vacate the stall which can then be reauctioned. This however does not entitle the licencee to claim that the said stallage charges can never be revised once the auction is held in his favour meaning thereby the same stallages charges which had commenced on the very first month of the auction are to remain in force all throughout for years together till the stall is vacated at the sweet will of the licensee. This in my opinion would be the most irrational construction of these provisions as sought to be placed by Shri Sathe the learned Counsel. The harmonious interpretation is the one as suggested by Singhvi the learned counsel and therefore on the short premise the challenge to the impugned order in these petitions would fail.
11. The other blank canvassed by Shri Singhvi the learned Counsel also cannot be said to be without any substance though it is canvassed incidentelly. If one reads the three clauses of section 407, then it stands to reason more to construe the said provision in its entirety in consonance with the legislative intent and object that sub-clause (c) merely suggests the mode of alloting the stallages and which mode is restricted to public auction or for a private sale. This does not preclude by itself the Commissioner from levying any charges or stallages and also from increasing the said stallages from time to time. Even under this sub-clause, the Commissioner had power to fix the terms and conditions in respect of the said public auction for the purpose of the levying of the charges or stallages. I have already indicated that the conditions annexed to the auction by themselves accept the power of the Commissioner to impose such stallages payable every month and in case of default the consequences to follow and this is to be read in the context of the licence fee and the conditions imposed while granting the licence. If once it is accepted that there is an obligation to pay the said stallages every month which are imposed by the Commissioner, then the authority to revise the said charges must follow. It also does appear from the scheme of section 407 that sub-clause (a) which is the main provision relates to the fixing of the charges such as stallages, rent and fees whereas sub-clause (b) modifies and stipulates a situation where the stall is given for a particular term, whereas sub-clause (c) merely gives out the mode of alloting the stall by public auction or private sale. This however does not mean that sub-clause (c) is completely divorced from sub- clause (a) but really speaking the main provisions under sub-clause (a) will also govern the provisions of sub-clause (c) vis-a-vis the levy of any of the said charges. Looked at from this angle therefore the second plank will also be available to the respondents to repel the contentions canvassed on behalf of the petitioners which has been rightly adopted by Shri Singhvi the learned counsel.
12. Viewed from any angle therefore the challenge to the impugned action and order of the Commissioner, respondent No. 2 to revise the stallages in the municipal markets can hardly be upheld. It is really rather surprising that no revision was made right from the year 1964 and the Commissioner who is incharge in 1983 realised the repercussions of this inaction and therefore promptly moved for a proposal to revise the charges. It is very difficult to subscribe to the view that once the charges are fixed right in the year 1964 or 1969 at the time of the auction, then it has to remain as permanent feature all throughout till the stall is vacated by the petitioner which they would obviously not do because at that time the stall has been allotted to them even by public auction and even they being highest bidders almost for a sons in the context of the prices that would have fetched at present if public auctions were held. The Commissioner in his proposal has rightly indicated that during the last twenty years the establishment and maintenance costs of the municipal markets have increased tremendously and really speaking the prices in every field have phenomenally increased and which necessitates the increase in the stallage charges. He has no doubt restricted his proposal to the markets constructed prior to 1974 and different gradations have been made for the increase and it is not as if that a uniform rate has been suggested and even there after the proposal was amended and the proposed rates were scaled down to some extent. All this would indicate that there is proper application of mind by every authority including the Commissioner and the Standing Committee and it is only thereafter that the proposed action was sanctioned. As stated it would be most irrational to accept that the stallages which are charged in the year 1964 should be allowed to continue almost life-long though the persons who take the stalls even after 1975 would have paid much more amounts. The result of accepting the contention raised by Shri Sathe therefore would lead to an obvious irrationality and which could never have been intended by the legislature. The provisions of the statute will have to be construed harmoniously though not being oblivious of the limitation and the settled principles while construing the taxing and charging provisions. Applying any test therefore, the petitions must fail.
13. Rule discharged in all the petitions with no order as to costs.