Bombay High Court Allows Writ Petition Against Unauthorised Parallel Cattle Bazar; Directs District Magistrate to Invoke Preventive Provisions of CrPC. Unlicensed Weekly Market Held in Contravention of Section 205, Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, and CEO Lacked Power to Prohibit, Hence District Magistrate Must Act Under Criminal Procedure Code, 1973, After Considering Distance Rule Under Markets and Fairs Act, 1862.

Writ petition under Article 226 of the Constitution of India seeking prohibition of an illegal parallel cattle bazar

Petitioner sought directions to the respondents to prohibit holding of cattle bazar at Lyahari/Walki phata on every Thursday without a license from Zilla Parishad, and to the Collector to invoke preventive powers under the Code of Criminal Procedure, 1973

An unlicensed cattle bazar was being conducted on private land, adversely affecting the interests of the petitioner panchayat which holds a licensed bazar for over a century; administrative actions of imposing fine under Section 213 of the 1961 Act were insufficient to stop the illegality

No prior judicial order; earlier administrative actions included imposition of Rs.100 fine under Section 213, proposal forwarded to Collector for CrPC action, and correspondence between authorities, but no effective preventive measures were taken

Whether the holding of a parallel cattle bazar without a license from the Zilla Parishad is illegal under the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 and the Bombay Village Panchayats Act, 1958 Whether the Chief Executive Officer, Zilla Parishad has the power to prohibit such an unlicensed market, or whether the District Collector/District Magistrate must act under the Code of Criminal Procedure, 1973 What is the relevance of the distance rule under Section 5B of the Markets and Fairs Act, 1862, and the obligation of the Zilla Parishad to consider it while deciding a license application

Petitioner argued that Section 205 of the 1961 Act mandates a license for private markets; the disputed bazar lacked such license and was therefore illegal. The Act only provides for a fine of Rs.100 under Section 213, and the CEO has no statutory power to prohibit the market. Thus the Collector must invoke preventive provisions of the CrPC. Reference to the Markets and Fairs Act, 1862 showed that establishing a market within five miles of an existing one is impermissible. Chief Executive Officer, Zilla Parishad submitted that he had imposed the penalty under Section 213 and forwarded the matter to the Collector for further action; his powers were limited and he had not failed in his statutory duties. The proper authority to prevent the illegal bazar was the District Magistrate. Sarpanch of Lyahari Panchayat contended that a resolution was passed to apply for a license and a proposal was pending with the Collector; the panchayat was not conducting the bazar as it was held on private land by an individual.

Where a statute provides only for a monetary penalty for an unlicensed private market and does not confer any power on the administrative authority (CEO) to prohibit such market, the District Collector/Magistrate must step in and invoke the preventive jurisdiction under the Criminal Procedure Code to stop the illegal activity. A new market cannot be established without a license under Section 205, Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, and the distance rule under Section 5B, Markets and Fairs Act, 1862 must be considered by the Zilla Parishad while examining a license application.

It is also not a matter of dispute that the cattle bazar at Lyahari/Walki phata is being conducted without obtaining a license, as required by Section 205 of the Act of 1961. (Para 10) The Act of 1961 does not provide for a provision authorising the Chief Executive Officer to take steps for prohibiting holding of illegal bazar. (Para 11) It would be for the Chief Executive Officer, Zilla Parishad, to take into consideration provisions of the Act of 1862 while considering the application tendered by Lyahari village Panchayat, seeking permission to conduct cattle bazar. (Para 13) The Collector and District Magistrate, Nanded, in observance of the procedure prescribed under Criminal Procedure Code, 1973, shall take appropriate action and prevent continuance of illegalities in holding of weekly cattle bazar at disputed location. (Para 14)

Writ Petition No.8166/2013 was filed before the High Court of Judicature of Bombay, Bench at Aurangabad. The court issued Rule, which was made returnable forthwith, and with consent of parties the matter was heard finally. No prior judicial proceedings were recorded; earlier administrative steps included an inquiry by the Block Development Officer, imposition of penalty under Section 213, and proposals between the CEO and Collector, but no effective preventive order was passed.

• Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961: 203, 205, 210, 213
• Bombay Village Panchayats Act, 1958: 45, Schedule I Item 70
• Markets and Fairs Act, 1862: 5B
• Code of Criminal Procedure, 1973: