N.J. Wadia, J.
1. This is an application in revision against a conviction of the accused by the Magistrate, First Class, Bhiwandi, under Section 1 of the Bombay Markets and Fairs Act, IV of 1862. The accused who is a resident of Bhiwandi established a cattle market on his private land within municipal limits without obtaining permission from the District Magistrate as required by Section 1 of the Bombay Markets and Fairs Act. The learned Magistrate convicted the accused and a revision application against the conviction was dismissed by the Sessions Judge of Thana. The accused has come in revision to this Court.
2. The only contention urged before us is that the provisions of the Bombay Markets and Fairs Act of 1862 conflict with the provisions of Section 139 of the Bombay District Municipal Act, III of 1901, and that the provisions of the Bombay District Municipal Act, being a later and a special Act, must override the provisions of the earlier general Act of 1862. Section 1 of the Bombay Markets and Fairs Act provides that no person shall establish a new market or fair without permission in writing from the Magistrate of the District, and that if any person attempts to establish a new market or fair without such license, he shall on conviction be subject to a certain fine. The preamble to the Act explains that it was introduced because the establishment of new markets or fairs in the neighbourhood of places where markets or fairs have been previously established leads to disputes between the owners of the lands, on which such new and previously established markets or fairs are held, and such disputes' not unfrequently occasion breaches of peace and serious inconvenience to the frequenters of such markets or fairs. Section 139 of the Bombay District Municipal Act, 1901, gives the Municipality power to direct that no place shall be used as a market for the sale of animals, meat, fish etc. excepting the public markets or such other markets as may have been licensed in writing by the Municipality, who may, at their discretion from timeto time, grant, suspend, withhold or withdraw such licenses; and Sub-section (3) of the Section provides for a penalty for any person who without the license of the Municipality sells animals or commodities within Municipal limits.
3. It is contended that there is a conflict between the two Acts since under the Markets and Fairs Act the District Magistrate is given the power to allow or refuse the opening of a market, and under the Municipal Act the same power is given to the Municipality, and the two authorities may issue, conflicting orders. Section 66 of the Bombay District Municipal Act VI of 1873 contained provisions similar to Section 139 of the Bombay District Municipal Act, III of 1901, and although the Markets and Fairs Act of 1862 has been amended three times since the passing of the Bombay District Municipal Act of 1873, there has been no amendment or repeal of the provisions of the Markets and Fairs Act so far as Municipal areas are concerned. There is nothing in the language of the Bombay Markets and Fairs Act which prevents the application of it to Municipal areas, and the presumption therefore is that the Legislature intended that the opening of markets even in Municipal areas should be governed both by the Municipal Act and also by the Bombay Markets and Fairs Act, and there may be good reasons why this should be so. The considerations on which a Municipality may grant or refuse permission to open a market within a Municipal area would not necessarily be the same as those which govern the action of the District Magistrate in granting or refusing permission for opening new markets under the Bombay Markets and Fairs Act of 1862. It may well happen that where two different municipal areas are adjacent to each other, the opening of a market in one area, though perfectly unobjectionable from the point of view of that Municipality, may nevertheless be open to serious objection from the point of view of the District Magistrate as likely to cause inconvenience to the inhabitants of the adjacent municipal area, or as likely to occasion a breach of the peace because of the new market being too near a market in the adjacent municipal area. There may thus be very good reasons for retaining the control of both authorities as regards the opening of markets even within Municipal limits. We, therefore, see no reason for interfering with the conviction of the accused.
4. It may be mentioned that the only ground on which the application has been argued before us was not urged at all either before the Sessions Judge or the trying Magistrate.
5. The rule is discharged and the application dismissed.