(Prayer: Petition (disposed of on 2-1-1958) under Art: 226 of the Constitution of India, praying that in the circumstances stated therein and in the affidavit filed therewith, the High Court will be pleased to issue a Writ of Mandamus, directing the respondent to allow the petitioner to keep his Pallavaram Market at Pallavaram open without calling upon him to pay annual licence fee.)

ORDER

The petitioner together with his brothers purchased the property known as the Pallavaram Private Market under a sale deed dated 9th October, 1930. This property is situate within the limits of the cantonment of St. Thomas Mount. By arrangement with his brothers the petitioner has been managing this market. Year after year he has been taking out an annual licence from the Cantonment Board after paying the prescribed licence fee demanded by the Board. The last of the licences was for the period from 1st April, 1955 to 31st March, 1956 and for the issue of this licence the Cantonment Board charged a fee of Rs. 440 being eight per cent of the gross income received by the petitioner from the market. By a resolution dated 30th April, 1956, the Cantonment Board decided to increase the licence fee from eight to ten per cent of the gross income derived from the market on the ground that the expenses incurred by the Board were far in excess of the licence fee that it had been collecting. The petitioner was called upon to pay the increased licence fee but he refused to do so. As a consequence the Cantonment refused to renew his licence. The petitioner has now come to this Court for the issue of a Writ of Mandamus to direct the Cantonment Board to issue a licence to him in relation to the market.

Two points have been taken by the petitioner. The first is that the Cantonment Board is entitled to charge fees only for the opening of a market and that it has no authority or power to charge any fees for the renewal of a licence already issued for opening a market. The second is that in asking for the enhanced licence fee the Cantonment Board acted in excess of its powers and converted the licence fee into a source of revenue which it is not entitled to do. Mr. Vasudevan, the learned Advocate for the petitioner, argued only the first point. According to him Cantonment Board can charge a fee only for the opening of the market, that is, for the initial opening and it cannot charge any fees for the renew al of the licence. I think this contention of his is sound. S. 203 of the Cantonment Act 11 of 1924 empowers a Cantonment Board to charge licence fees to open a private market. So far as it is now relevant the Section runs as follows:

A Board may charge such fees as it thinks fit to impose for the grant of a licence to any person to open a private marketin the Cantonment and may grant such licence subject to such conditions, consistent with this Act and any bye-laws made thereunder as it thinks fit to impose.

It will be noticed that the Section covers only licences to open a market. It is only at that stage that the Contonment Board has been given power to charge a fee. Once the licence is granted and a market is opened S. 203 (1) ceases to apply. It will be appreciated that when a market is opened and it is continued year after year it will not be correct or appropriate to speak of the market being opened ever year. It seems to me that to do so would be a very artificial way of construing the word open occurring in S. 203 (1) of the Act. The learned Government Pleader argued that when a licence is granted for a particular term and that term expires and the licence is then renewed, it will be proper to speak of the market as being opened. I find it difficult to agree. If this view were right it will be equally proper to speak of the market being opened not merely year after year but month after month or even day after day. I am inclined to read the word open in S. 203(1) of the Act as applying only to the first or initial opening of a market.

An examination of S. 210 of the Act strengthens this view. Sub-S

. (1) of that Section enumerates the classes of persons who cannot ply their trades in a cantonment area without obtaining a licence. Sub-S. (2) then enacts that a licence granted under Sub-S

. (1) shall be valid until the end of the year for which it is issued. Sub-S. (4) entitles the Board to charge fees for the grant of licences. Reading S-210 as a whole it is clear that the Cantonment Board is entitled to charge annual fees for the licence it issues under S. 210 but I can see no such power under S. 203 (1) of the Act. The contrast is important.

I do not doubt that under S. 203 the Cantonment Board when issuing a licence can say that it will be tenable only for a particular period since under Sub-S. 1 it can impose such conditions as it thinks fit. To pre-scribe a period for which a licence will be valid would be a power falling within these words but under the guise of this power it seems to me that the Board cannot say that on the expiration of the particular period the market is being opened. It became open when the first licence was gra nted and the market began first to function. Ss. 208 and 280 of the Act empower the Board and the Central Government to make bye-laws and rules under the Act. These Sections however do not confer power on the Cantonment Board to charge fees for the renewal of a licence issued under S. 203.

It is interesting to contrast the words used in the corresponding provisions of the Madras City Municipal Act, the District Municipalities Act and the Local Boards Act. S. 304 (1) of the Madras City Municipal Act, 1919, runs as follows:

No person shall without or otherwise than in conformity with an annual licence granted by the Commissioner in this behalf continue to keep open a private market. Application for the renewal of the licence shall be made not less than 45 and not more than 90 days before the commencement of the year for which licence is sought.

Then follow provisions for the charging of fees for the issue of licences. In other words while the City Municipal Act gives specific powers for charging fees for keeping open a market no such power is conferred on the Cantonment Board in respect of keeping open a private market under the Cantonment Act.

The language of Ss. 171 and 174 of the District Boards Act is even more striking. S. 171 (1) runs thus:

No person shall in any non-panchayat area, open a new private market or continue to keep open a private market unless he obtains from the District Board a licence to do so. The words of S. 262 of the District Municipalities Act are practically the same.

The distinction, therefore, between opening a market and keeping open a market is one which is well known to the statute book. When, therefore, S. 203 of the Cantonment Act makes provision only for charging fees for the opening of a private market advantage cannot be taken of it to charge fees for keeping the market open under the guise of renewal fees because in such a case there is no opening of any fresh market.

The learned Government Pleader strongly argued that the Cantonment Board can issue a licence for a term and then at the end of that term it can charge fees again for the renewal of the licence because on the expiration of the specified term there would be the opening of the market. But as I said before, that would be a very artificial way of reading the words of the Section. A licence may be given for the running of a hotel or eating house for a period of one year and if at the end of the year the licence for the hotel or the eating house is renewed it would scarcely be right to say that a new hotel or eating house has been opened. The learned Government Pleader referred me to Ss. 204 and 205 of the Cantonment Act. In my view the provisions of these sections do not help him; on the other hand they are really against him because S. 204 (1) speaks of persons who keep open for public use any market or slaughter house in respect of which a licence is required. Similarly S. 205 which runs:

Whoever knowing that any market or slaughter house has been opened to the public without a licence having been obtained therefor when such licence is required by..

The language of these two Sections makes it plain that the framers of the Act kept in mind the distinction between the opening of a market and the keeping open of a market. In my view the objection taken by Mr. Vasudevan is sound and the Cantonment Board is not entitled to charge any fees for the renewal of the licence in this case. The Board is entitled only to charge fees for the opening of a market, that is, the initial opening of a market and not for the subsequent keeping open of a market.

The petition is allowed and the rule is made absolute. A writ will therefore issue directing the Cantonment Board to issue a licence to the petitioner without calling upon him or requiring him to pay any fee for the renewal of the licence. The petitioner will be entitled to his costs. Counsels fee Rs. 100.