Madgavkar, J - (1.)This is an appeal by the Government of Bombay against the acquittal of Vadilal who was charged under Section 61 (f) of the Bombay District Police Act, IV of 1890.
(2.)The facts are short and simple. In the city of Ahmedabad, there is a public street and a highway along which, on the south, Vadilal and other dealers in brass and copper utensils have their shops. On the first five days of the new year at Divali it has been customary for him and for other shopkeepers there to bring out their wares on to the public road, and we are informed by the learned counsel for Vadilal, that it is considered auspicious by Hindus to purchase new vessels on these days. The result is a crowd which caused detriment to the traffic on the southern side of the street. There had been general notices by the District Magistrate; Ahmedabad, against the user of streets for fairs and such purposes. Years ago, the Municipality instituted prosecutions similar to the present but subsequently withdrew them. In the present case the evidence of the Sub- Inspector is that he warned the shopkeepers and others that if they followed the usual custom on these days they would render themselves liable to prosecution, and actually for the first two days they did not use the road. But on the last three days they followed the old custom, and the present prosecutions are the result.
(3.)The judgment of the learned Magistrate is largely based on what he supposes the English common law to be in respect of markets and fairs. The judgment also contains a reference to Bombay Act IV of 1862. The general reasoning appears to be that the shopkeepers in this locality have acquired a prescriptive right to use the road on these days in this manner and the exercise of it is not illegal. In this Court the judgment of the learned Magistrate is supported on grounds, firstly, that there was no obstruction inasmuch as the northern side of the road was still free and open to traffic. Secondly, on the analogy of English decisions such as Goldsmid V/s. Great Eastern Railway Company (1882) 25 Ch D, 511, on appeal (1884) 9 App. Cas. 927 and Attorney General V/s. Horner (1884) 14 Q.B.D. 245, on appeal (1885) 11 App. Cas. 66, Section 61(f) and Section 39(g) of the Bombay District Police Act, IV of 1890, should be construed without prejudice to such customary right of user on these particular days as the ones now in question. The Bombay Market and Fairs Act, IV of 1862, has no application inasmuch as it merely renders permission by the Magistrate necessary before any new markets or fairs are opened.