ORDER 1. Fight between petitioner, a bhumidbar within meaning of section 18 of U.P. Zamindari Abolition Act 1 of 1951, to continue to hold cattle market on Tuesday and Wednesday of every week the days on which his ancestors had been organising the market since 1925, before abolition of Zamindari and opposite parties 4 and 5 whose land is undisputedly situated within 3 Kms. of petitioner's land for grant of licence to hold cattle fair on same days as petitioner has not been adjudicated upon merits even though parties have been twice to Supreme Court and a number of times to this court. 2. Prior to abolition of Zamindari in the State the right to hold cattle market belonged usually, rather exclusively, to Zamindars. In 1952 when Zamindari Abolition Act 1 of 1951 was enforced all estates vested in the State. The consequence of this was that right to hold market etc. by an intermediary came to an end under section 6 of the Act except if it was held on land to which cls. (a) to (c) of sub-section (1) of section 18 applied. Since land on 'which' petitioner held the cattle market was sir and grove, the land covered by the sub-clause mentioned above, his right to organise and hold cattle market was not affected. He continued to hold it except that after enforcement of U.P. Kshetra Samiti and Zila Parishad Adhiniyam (U.P. Act XXXIII of 1961) and framing of bye-laws he is doing it under licence issued by the Parishad. In 1980 Bhagwati Prasad, opposite party No. 5, applied to the Sub Divisional Magistrate for grant of a licence to hold cattle market on same days on his Bhumidhari land. It was rejected as his land was situated within 3 Kms. of petitioner's land and there was likelihood of breach of peace. He then appears to have approached the Parishad which also rejected the application. He made second attempt before Sub Divisional Magistrate who allowed the application in November 1981 and directed Parishad to grant licence in favour of petitioner. None of these orders have been filed or produced by any of the parties. In 1982, however, the District Magistrate gassed orders on reference made for grant of permission to opposite party. He made second attempt before Sub Divisional Magistrate who allowed the application in November 1981 and directed Parishad to grant licence in favour of petitioner. None of these orders have been filed or produced by any of the parties. In 1982, however, the District Magistrate gassed orders on reference made for grant of permission to opposite party. It is not clear if the reference was made by Parishad due to order of the Sub Divisional Magistrate or it was at instance of opposite party or petitioner. The District Magistrate decided the reference on 12th April 1982. It was held that the two orders of Sub Divisional Magistrate by which he first rejected application of opposite party and then granted it were without jurisdiction as the right to grant licence vested exclusively in Parishad. It was further held that right of a person to hold cattle market on his Bhumidhari land could not be disputed. But it could be regulated under bye-laws framed by the Parishad which provided that normally second licence should not be issued for holding the fair if the sites were situated within 3 Kms. It was found that both parties were fighting amongst themselves on issue of holding cattle market on same days which resulted in regular tension. Therefore, the District Magistrate did not find sufficient reason to disagree with Parishad and held that it would not be proper to permit opposite party to hold cattle market on Tuesdays and Wednesdays. It was left open to opposite party to obtain licence for holding the market on days other than Tuesdays and Wednesdays. Against this order Bhagwati Prasad filed Civil Misc. Writ No. 6897 of 1982 and obtained an interim order, staying operation of order passed by the District Magistrate. Although the interim order could not operate as direction to the Parishad to grant licence as it was probably a reference against order of Parishad passed in June 1986 and not against order of Sub Divisional Magistrate, directing Parishad to issue licence to Bhagwati Prasad, yet due to it Bhagwati Prasad succeeded in his efforts which till then were fruitless and obtained a licence from the Parishad. Once purpose was achieved and his licence was renewed in next year as well, as the petition was pending, he made an application before this court for dismissal of writ petition as not pressed, which was accepted on 18th October 1984. Once purpose was achieved and his licence was renewed in next year as well, as the petition was pending, he made an application before this court for dismissal of writ petition as not pressed, which was accepted on 18th October 1984. In the meantime dispute arose between petitioner and Parishad for payment of 1 % on sale price of each cattle. And petitioner approached this court by way of writ petition No. 3992 of 1984 in which cancellation of petitioner's licence for non-payment of 1% on sale price was stayed. In September 1984 the Parishad framed new bye-laws. It fixed licence fee of Rs. 2000/- and payment of 5% to 10% on income of cattle market. In March 1985 Lalta Prasad, opposite party No. 4, another Bhumidhar, whose land, also, is within 3 Kms. of petitioner's land applied for licence to hold cattle market. It appears, the Parishad decided to settle the right by auction. This was stayed by this court on 29th Mar. 1985. Allegations have been made against officials of Parishad of disobeying orders of this court by settling the right in favour of Lalta Prasad despite interim order and declining to renew in favour of petitioner as arrears were outstanding against him. It is claimed licence was granted to Bhagwati Prasad as well. He was permitted to hold market on Monday and Tuesday and Lalta Prasad was permitted to hold on Wednesday and Thursday. That is both the days on which petitioner and his ancestor held market were overlapped by allotment of same days to others. Against these orders of the Parishad petitioner filed appeal before District Magistrate who directed that since validity of settling rights by auction was sub judice before this court it would not be proper to. decide the appeal. But he directed Parishad authority to obtain necessary guidance from this court. Against this order petitioner filed this petition. A stay order was granted in his favour. The opposite parties were directed to renew licence for 1985-86 without requiring compliance of para 9-Ka of the Bye-laws published on 29th Sept. 1984. As regards opposite parties 4 and 5 the Board was permitted to renew the licence in such manner that it did not overlap Tuesday and Wednesday the days on which petitioner held the market. The opposite parties were directed to renew licence for 1985-86 without requiring compliance of para 9-Ka of the Bye-laws published on 29th Sept. 1984. As regards opposite parties 4 and 5 the Board was permitted to renew the licence in such manner that it did not overlap Tuesday and Wednesday the days on which petitioner held the market. This interim order was modified in Special Leave Petition No. 8592 of 1985 by the Supreme Court of India on 16th Oct. 1985. It restored the position as it was. The opposite parties were permitted to hold cattle market on days for which they had licence. And the District Magistrate was directed to decide the appeal within three months. In pursuance of this order the District Magistrate passed the order on 16-1-1986. He did not record any finding on any issue but directed renewal of licence as directed by the Supreme Court. Copy of this order has also been filed, and challenged. 3. From what has been narrated above it is apparent that decision of Parishad not to grant any licence in favour of opposite parties modified by District Magistrate in reference in 1982 leaving it open to opposite parties to apply for permission to hold market on days other than petitioners as the site of the opposite parties was situated within 3 Kms. and there was likelihood of breach of peace has not been modified or set aside. Licence was granted in favour of opposite parties because of interim order, granted by this Court staying operation of order of District Magistrate passed on reference in 1982. Since petition was pending licence for next year was renewed. It was being done not because it could be done or apprehension of breach of peace came to an end but in due deference to interim order passed by this Court. The opposite party took full advantage of it. Once licence was renewed he quietly got the petition dismissed as not pressed. Effect of dismissal of the petition was that parties were restored to their original position. That is the order of District Magistrate passed in 1982 revived. No licence could have been granted in favour of opposite parties to hold cattle market on Tuesdays and Wednesdays. Licencing period is no doubt one year. But the construction of cl. Effect of dismissal of the petition was that parties were restored to their original position. That is the order of District Magistrate passed in 1982 revived. No licence could have been granted in favour of opposite parties to hold cattle market on Tuesdays and Wednesdays. Licencing period is no doubt one year. But the construction of cl. 28(3) of bye-laws by the District Magistrate became operative after dismissal of writ petition, therefore, the Parishad could not have permitted opposite, parties to hold market on Tuesdays and Wednesdays. It applied not only in 1981 or 1982 but even for subsequent years. The grant of permission, therefore, by the Parishad after dismissal of writ petition was improper. It was contrary to its own decision and order of District Magistrate which became final. Renewal in 1985-86 was made obviously because opposite parties were permitted to run the market in earlier years. That was patently erroneous. The District Magistrate committed an error apparent in not deciding the appeal as matter was pending in this Court forgetting that scope of the writ petition filed by petitioner was legality of the Parishad to settle licence by auction and declining permission to petitioner as he was in arrears. The hearing of appeal in this regard could be deferred. But the appeal directed against order granting permission to opposite parties to hold the market on same days as petitioner should have been decided. That was not pending in this court. Earlier petition filed by opposite parties had been dismissed. And the petition filed by petitioner was not concerned with it. The order of District Magistrate, therefore, deferring hearing of appeal was not in accordance with law. It became worse when the appeal was not decided on merits even after direction of Supreme Court. 4. Sub-clause (3) of cl. 28 of bye-laws enforced since 1984 debars the licensing authority from granting new licence for holding cattle market if it was within 3 Kms. of the market which was coming from before and was old. Power of relaxation, however, has been conferred if local conditions were conducive. For this he had been empowered to obtain police report or get inquiry done. Similar provision existed in earlier bye-laws. Rationality of the maintain peace (Sic). Grant of licence within 3 Kms. of the market which was coming from before and was old. Power of relaxation, however, has been conferred if local conditions were conducive. For this he had been empowered to obtain police report or get inquiry done. Similar provision existed in earlier bye-laws. Rationality of the maintain peace (Sic). Grant of licence within 3 Kms. of old mela or market has been prohibited both to safeguard interest of a person who has been exercising this right from before and may have acquired reputation and goodwill and public welfare by avoiding tension and likelihood of breach of peace. Relaxation is contemplated rarely. Viewed in this light the order of District Magistrate of 1982 who of course is the best and most eminently suited to decide breach of peace, declining to grant second licence was in accordance with law. The observation in order to permit opposite party to hold its market on other days was sound exercise of discretion and in conformity with the bye-laws. Neither the finding has been set aside nor any material was placed before licensing authority which could furnish foundation for grant of second or third licence within 3 Kms. of a place where market is being held by petitioner since 1925. And yet licence stood granted in favour of opposite party because of interim order granted by this High Court. Stay order granted against District Magistrate's orders passed on reference could not have been construed as direction by this court to grant licence to Bhagwati Prasad. The Parishad under misapprehension or under threat of contempt of this court may have granted licence. But that could not be considered as grant of licence dispensing with requirement of bye- laws 28(3). It was at the most a temporary arrangement. Unfortunately the grant of that licence and then its renewal has been taken as creation of some right in favour of opposite parties. Renewal of licence in absence of exercise of discretion under cl. 28(3), prevented of course because of interim orders of the courts, cannot be considered to be in accordance with law. The argument of learned counsel for opposite parties, therefore, based on renewal of licences and holding of market cannot be accepted as rendering this petition infructuous or decision academic. 5. 28(3), prevented of course because of interim orders of the courts, cannot be considered to be in accordance with law. The argument of learned counsel for opposite parties, therefore, based on renewal of licences and holding of market cannot be accepted as rendering this petition infructuous or decision academic. 5. Although constitutionality of bye-laws and the rates were also challenged but no adjudication is called for as that can be effectively decided in other petition challenging settling of rights by auction. 6. In the result the petition succeeds and is allowed. The orders of the District Magistrate so far they relate to grant of permission to opposite parties to hold cattle market, are quashed. It shall remain open to opposite parties to approach the authorities to grant them permission to hold cattle market. If the application is made it shall be decided in accordance with procedure provided under clause 28 of bye-laws. While taking decision the permission granted in earlier years in favour of opposite parties shall be ignored as it was due to interim orders passed by the courts. Parties shall bear their own costs.