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

LegalCrystal Citation
Subjectcivil
CourtChennai
Decided On
Reported inAIR1941Mad834
AppellantManbuval Hasanath Hamedia Madrasa School, by Its Trustee, S. Muhammad Sheriff Sahib
RespondentMunicipal Council
Cases ReferredHem Chandra v. Kristo Chandra
Excerpt:
- - i do not think it is a rule which is based on any equity or good conscience, which compels me to adopt it......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.2. 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 6-2/3 miles, 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 47 cal 1079 : air 1920 cal 255 : 58 ic 879 : 47 cal 1079 : 24 cwn 800 hem chandra v. kristo chandra, eichardson j,, observed that 'there appears to be.....
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. 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 267A as conferring that right by necessary (implication. I am not able to see how Section J267A gives rise to such a necessary implication tit 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.

2. 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 6-2/3 miles, 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 47 Cal 1079 : AIR 1920 Cal 255 : 58 IC 879 : 47 Cal 1079 : 24 CWN 800 Hem Chandra v. Kristo Chandra, Eichardson 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. The view of a lower appellate Court seems to me correct. I therefore dismiss this second appeal with costs. Leave to appeal is refused.


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