B. L. Loomba, J. - (1.) THIS writ petition under Article 226 of the Constitution of India is directed against the order dated 29-5-1985 contained in Annexure 8 whereby the District Magistrate, Hardoi permitted opposite parties nos. 3 to 5 to hold cattle market on their Bhumidhari plot no. 295 situate in village Kakrari, Tahsil Sandila District Hardoi every year during the period from 1st to 15th in the month of Asarh. Opposite parties 3 to 5 were further permitted to obtain and use receipt book for recording transactions of sale and purchase of the cattle at the cattle market in Form 54 prescribed under the Police Regulations. The permission was granted subject to the observance of conditions provided in Paragraph 183 of the Police Regulations.
(2.) PETITIONER's father had obtained permission from the District Magistrate, Hardoi by order dated 4-5-1981, contained in Annexure 1, for holding cattle market on 11 Bhumidhari plots of his own for the period Aghan Sadi 10 to Poos Badi 9 during winter and for the period Jeth Sudi 10 to Asarh Badi 9 every year. He was likewise permitted to get issued and use receipt book in Form 54 under the Police Regulations. It appears that after the death of his father, the petitioner made an application dated 8-1-1985 before the District Magistrate, Hardoi seeking change of the period during summer and through order dated 14-2-1985 contained in Annexure 2, the petitioner was permitted to hold cattle market for the period from 1st to 15th of Asarh in the Krishna Paksh. The petitioner's case is that opposite parties nos. 3 to 5 had obtained the impugned order dated 29-5-1985 contained in Annexure 8 by exercising political pressure on the District Magistrate and under the law no permission could be granted by the District Magistrate for holding cattle market on an area situate at a distance upto 5 Kilometers from the plots on which similar permission had earlier been granted. According to the petitioner the plot over which permission has been granted to opposite parties to hold cattle market on the same date for which the permission had been granted in favour of the petitioner lies at a distance shorter than 5 Kilometers. It is pleaded that opposite parties nos. 3 to 5 had never before been holding cattle market on plot no. 295 specified in the impugned order with the permission of the District Magistrate nor the receipts recording transaction of sale and purchase of cattle were issued in the Form No. 54 as prescribed in the Police Regulations. On behalf of the District Magistrate opposite party no. 1, learned Standing Counsel has put in appearance but no counter affidavit was filed. Opposite party no. 2 Smt. Kudsia Begum, M.L.A. who is said to have exercised influence in obtaining permission contained in Annexure 8 for opposite parties 3 to 5, has not put in appearance to contest the writ petition. On behalf of opposite parties 3 to 5 counter affidavit was filed and the matter of interim stay order was hotly contested in regard to the cattle fair held in the year 1985 as well as in 1986. However, at the stage of hearing of the writ petition, there was no one present on behalf of opposite parties nos. 3 to 5. We have heard the learned counsel for the petitioner and the learned Standing Counsel appearing on behalf of opposite party no. 1. In so far as the facts are concerned the parties do not appear to be at variance. So far as the petitioner and, for that purpose his late father are concerned, it was for the first time in the year 1981 that permission to hold cattle market was applied for and was granted. Initially, the permission was granted for one month during winter and for one month during summer but the period for which the permission was granted was from 10th of Jeth to Asarh Badi 9. This period during summer did not clash with the period for which permission was granted in favour of opposite parties nos. 3 to 5 by the impugned order. This period, however, clashed with the period for which sanction was modified under order dated 14-2-1985 contained in Annexure 2. Accordingly, is was for the first time in the year 1985 that permission was granted in favour of the petitioner to hold market during the month of Asarh for 15 days from 1st to 15th in the Krishna Paksh. It further appears that opposite parties nos. 3 to 5 never applied for and were granted permission to hold the cattle fair during this period prior to the year 1985 when permission to do so was granted under the impugned order. This is also uncontroverted that the area on which the two rival parties were granted permission, the petitioner under order dated 14-2-1985 Annexure 2 and opposite parties 3 to 5 by order dated 29-5-1985 Annexure 8, lies within a radius less than 5 Kilometres. The petitioner came with the allegations that opposite parties had never before held their cattle fair during the relevant period prior to 1985 but there is sufficient material on record to show that the predecessors of opposite parties 3 to 5 and thereafter the opposite parties have been holding the cattle market on plot no. 295 for the last over 85 years though this was done without obtaining any formal permission from the District Magistrate and receipts recording the transactions of sale in the cattle market were issued on the private receipt book and not on the receipt book prescribed in Form No. 54 under the Police Regulations. For arriving at this conclusion, we have taken into consideration the counter-affidavit of one Abdul Rab filed on behalf of opposite parties 3 to 5 alongwith its Annexures 1 to 15. No rejoinder affidavit has been filed against this counter-affidavit. Even in the impugned order Annexure 8, there is mention of the fact that opposite parties 3 to 5 are holding their Mela for the last about 85-90 years.
(3.) THE factual position being clear, the only point arising for consideration is whether the petitioner's claim of his having obtained the permission for holding the Mela on his Bhumidhari plots earlier in the year 1985 will confer on him any preferential legal right against opposite parties 3 to 5. In support of bis contention learned counsel for the petitioner has placed reliance on paragraph 183 of the Police Regulations which also provides for issue of receipt books in Police Form no. 54 for registering the sale of cattle at the cattle markets. A perusal of opening lines of paragraph 183 would clearly indicate that the provision contained in this paragraph deals with the voluntary registration of sales of cattle at cattle markets outside Municipal and Cantonment limits at police station and in outlying tracts distant from a police station. Nowhere it is laid down in this paragraph that it is essential for a Bhumidhar who holds a cattle fair at his Bhumidhari land to obtain receipt book in Police Form No. 54. Accordingly, legally speaking it would be open to such a Bhumidhar to issue receipts about the sale and purchase of cattle otherwise than the receipts in Police Form No. 54 though in practice a person holding a cattle fair would prefer to secure the receipt book in Police Form No. 54 in order to provide sanctity and dependable proof in relation to the transactions of sale and purchase of a cattle. As regards obligation to obtain permission from the District Magistrate concerned for holding a cattle market, learned counsel for the petitioner was unable to refer to any of the provisions of the Police Regulations or of any other law and as such he was unable to support his contention that a cattle market held by a Bhumidhar on his land shall be illegal without obtaining permission from the District Magistrate. In paragraph 19 of the petition a reference has been made to a decision of the Allahabad High Court in Ram Ballabh Tiwari v. Sunder Singh (C. M. Writ No. 4678 of 1978) and the S.L.P. (Civil No. 5072 of 1980) having been filed against that judgment. An observation from the judgment of the Hon'ble Supreme Court has been quoted in this paragraph, which is as under : "We do not think that the respondent no. 1 (Sunder Singh) can be absolutely prevented from holding cattle market in his Bhumidhari plot. The Licensing authority, however, in order to avoid any breach of peace while granting the licence may take into consideration as to whether he should grant a licence to hold the cattle market on the same days on which the petitioner is holding cattle market on his plot. As far as possible such a thing should be avoided in order to avoid various types of complications." ;