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Manbuval Hasanath Hamedia Madrasa School, Represented by Its Trustee, S. Muhammad Sheriff Sahib Vs. the Municipal Council, Represented by Its Commissioner - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1941Mad834(1); (1941)2MLJ347
AppellantManbuval Hasanath Hamedia Madrasa School, Represented by Its Trustee, S. Muhammad Sheriff Sahib
RespondentThe Municipal Council, Represented by Its Commissioner
Cases ReferredIn Hem Chandra Roy Chaudhury v. Krishna Chandra Saha Sardar I.L.R.
Excerpt:
- - i do not think it is a rule which is based on any equity or good conscience which compels me to adopt it.venkataramana rao, j.1. the question for decision in this appeal is whether the owner of a private market in a municipality is entitled to prevent the municipality from opening a new market. both the lower courts have decided against the plaintiff.2. two grounds are urged before me : (1) that under the provisions of the madras district municipalities act a private owner has got such a right. the sections referred to are sections 259 to 267 and mr. desikan relies very strongly on section 267-a as conferring that right by necessary implication. i am not able to see how section 267-a gives rise to such a necessary implication at all. all that the section says is that it is open to the municipal council to acquire the rights of any person to hold a private market. that does not confer any.....
Judgment:

Venkataramana Rao, J.

1. The question for decision in this appeal is whether the owner of a private market in a municipality is entitled to prevent the municipality from opening a new market. Both the lower Courts have decided against the plaintiff.

2. Two grounds are urged before me : (1) that under the provisions of the Madras District Municipalities Act a private owner has got such a right. The sections referred to are Sections 259 to 267 and Mr. Desikan relies very strongly on Section 267-A as conferring that right by necessary implication. I am not able to see how Section 267-A gives rise to such a necessary implication at all. All that the section says is that it is open to the Municipal Council to acquire the rights of any person to hold a private market. That does not confer any right on the owner of a private market to compel the municipality to acquire his right and not to open a new market.

3. The second ground is that under the common law of England the owner of a private market can prevent another market being opened within a radius of 6 2/3miles and, in the absence of any positive enactment in India, that rule ought to be followed. Such a contention was advanced in a case in Bengal and their Lordships of the Calcutta High Court were not prepared to uphold it. In Hem Chandra Roy Chaudhury v. Krishna Chandra Saha Sardar I.L.R.(1920) Cal. 1079 Richardson, J., observed that 'there appears to be no such thing as a market franchise or a right to hold a market, conferred by grant from the Crown', in Bengal. I do not think that a different principle applies to this presidency. At the same time, the question is whether I should give effect to that rule of English law. It seems to me that the rule is an artificial rule and is not countenanced even in England as being a sound one. I do not think it is a rule which is based on any equity or good conscience which compels me to adopt it.

4. The view of the lower appellate Court seems to be correct. I therefore dismiss this second appeal with costs.

5. Leave to appeal is refused.


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