M.S. Menon, J.
1. This petition challenges the validity of an auction conducted by the Pazhavangadikara Panchayat on 22-3-1956 in respect of the public market at Ittiyapara within the area of the said Panchayat. There was a similar auction in March 1955 and the petitioner himself was the successful bidder at that auction.
2. Paragraph 3 of the affidavit filed by the executive officer, of the Panchayat (1st respondent) makes it clear that what was sold at the auction in March 1955 was 'the right to vend beef for the period of one year from 1-4-1955' and para. 6 of the affidavit says:
'The period of the permission to the petitioner being due to expire on 31-3-1956 the right to vend beef in the said market for another year was sold in public auction on 22-3-1956 after giving duo notice of the same. That auction has been confirmed in the name of the second respondent for an amount of Rs. 2,806.'
3. According to the petitioner the auctioning of the right to vend beef in the market is not warranted by Section 69 of the Travancore-Cochin Panchayats Act, 1950, and any rule or bye-law, if it does authorise such an auction, should be considered as beyond tho powers conferred by that section. Section 69 (omitting Sub-section (3) (c), (d) and (e) ) reads as follows:-
'(1) All public markets within a Panchayat area shall be under the control and management of the Panchayat.
(2) The Panchayat may with the sanction of Government provide places for use as public markets and may with like sanction close any such market or part thereof.
(3) Subject to such rules as may be prescribed the Panchayat may levy any one or more of the following fees in any public market at such rates not exceeding the maxima as may be prescribed,
(a) fees for the use of or for the right to expose goods for sale in such market;
(b) fees for the use of shops, pens or stands in such market'
and it is clear from Sub-section (3) (a) and (b) that what the section contemplates is the prescribing of fees and the collection thereof and not the auctioning of the right to use the market or to expose goods for sale in the market or to 'use the shops, stalls, pens or stands' therein.
4. Rule 6 of the Travancore-Cochin Panchayat Market Rules, 1954, reads as follows:--
''Subject to the subsisting Kuthagapattom or other rights, it shall be competent to the Executive Authority to arrange for parcelling Out a suitable portion of the market area and to lease such parcels by auction or otherwise to the highest bidder for a period not exceeding one year subject to such conditions as he may deem fit to impose, provided that ordinarily not more than one stall or space for one stall should be given to any one person. Excluding the area so parcelled out and the area, if any, set apart as a cart-stand, the remaining area shall be made available for use by casual vendors and by the public resorting to the market' and Bye-law No. 3 of the Market Bye-laws (Travancorc-Cochin Government Gazzette, dated 28-12-1954) is:
'The Panchayat may farm the market as a whole or in parts for a period not exceeding one year to the highest bidder subject to the following conditions:--
(a) The stalls shall be leased or let out by auction to the highest bidder for a period not exceeding one year as the Panchayat may from time to lime resolve upon, by the Executive Authority or any one authorised by him in this behalf,
(b) The Executive Authority or the officer authorised by him may also lease or let for trade sites or standings within the market premises by auction to the highest bidder.
(c) Open space will be left for the sale of petty articles to the extent the ground would permit.
(d) The rent or fee due shall be payable in advance for the whole term and when let on the monthly payment system one months rent shall always be deposited in advance as earnest money and the rent for every month shall be paid in the Panchayat Office before the 15th of that month, in default of which the licence and the original deposit shall be liable to be forfeited and the stalls, sites or standings shall be re-sold and the licencee shall be held responsible for any loss which may be sustained by the re-sale by public auction or by private contract. The licensee shall also be liable to be evicted. All amounts due from the licensee shall be recoverable under the provisions of the Revenue Recovery Act.'
According to counsel for the respondents the above-mentioned rule and bye-law sustain the auction held on 22-3-1956.
5. In the light of what we have stated in para. 3 above we must hold that the only right of the Panchayat is to collect the prescribed fees, if any, and not to auction 'the right to vend beef' and that the auction held on 22-3-56 and so much of Rule 6 and bye-law 3 as authorised such an auction are beyond(the powers conferred by Section 69 of the TravancoreCochin Panchayats Act, 1950.
6. Our attention was drawn to Section 70 of the Travancore-Cochin Panchayats Act, 1950:--
'No person shall without the permission of the Executive Authority, or, if the rents and fees have been farmed out, of the farmer, sell or expose for sale any animal or article within any public market.'
What was done at the auction on 22-3-1956 was not the fanning out of the rents- and fees but a sale to the highest bidder of the right to vend beef and such a procedure cannot be considered as within the ambit of the said section.
7. Learned counsel for the respondent submitted that in view of the fact that the petitioner was the successful bidder in March 1955 and enjoyed the benefits of that auction for a period of one year from 1-4-1955 he should, not be permitted to question, as he is doing, the validity of the auction held on 22-3-1956. We cannot agree. There is nothing on record to show that the petitioner was one of the bidders at the auction on 22-34956, that he acquiesced in the proceedings or that he did anything in respect of the said auction which will estop him from filing this petition under Article 226 of the Constitution.
8. The petition is allowed in the manner andto the extent indicated above though in the circumstances of the case without any order as to costs.