A municipality cannot establish a market within three miles of an existing market established under the Agricultural Produce Market Act, 1935, and the shifting of a market can only be done by framing suitable byelaws and not by a mere resolution.

( 1 ) THIS order governs the disposal of Miscellaneous Petition No. 274 of 1960 also.

( 2 ) THIS petition under Article 226 of the Constitution is directed against the municipal Committee, Piparia, the Collector, Hoshangabad, and the Sub-Divisional officer, Sohagpur. The connected petition is directed against the Municipal committee, Piparia, only.

( 3 ) THE petitioners in these two petitions are dealers in grain and they also do the business of commission agents in the town of Piparia. 'the Municipal Committee, piparia, resolved on 15-9-1960 to close the existing market and shift it to another site with effect from 15-10-1960 (An-nexures t and II ). The Municipal Committee intimated the petitioners that they can carry on the business of selling and purchasing grain and practise as commission agents only within the limits of the new market and threatened to cancel their licenses to practise as brokers or adhtiyas if they continue to carry on business in the old market. The petitioners have challenged the resolution of the Municipal Committee as ultra vires and ineffective inasmuch as the present grain market was established under the central Provinces and Berar Agricultural Produce Market Act, 1935 (No XXIX of 1935) (hereinafter referred to as the 'act of 1935') and the Municipality is not, according to the provisions of that Act, entitled to establish any market within three miles of the existing market. It has also been pleaded that the municipality has not yet acquired the site on which the new market is proposed to be shifted and the facilities for carrying on the marketing business on the new site are not reasonable within the meaning of Section 50 of the C. P. and Berar Municipalities act, 1922, (hereinafter referred to as the 'municipalities Act' ). In addition to these pleas, Shri R. K. Pandey, learned counsel for the petitioners, in Misc. Petition No. 274 of 1960 raises an additional point that the establishment of a new market or the shifting of the old market could be done only by framing suitable byelaws and not by a resolution.

( 4 ) IT is not disputsd by Shri A. P. Sen for the respondent, Municipal Committee, that the present market was established under the Act of 1935 by a notification issued under that Act on 14-3-1942. The respondents have further stated that the municipality has power to establish a market independently of the establishment of markets under the Act of 1935. In addition, Shri Sen has raised some preliminary objections to the tenability of the petitions. He contends that as the petitioners have given notices to the Municipality and the State Government for filing a civil suit to obtain a declaration that they have a customary right to use the market site, they cannot maintain the present petitions for the same relief. It is further stated that the matter has been taken to the Collector, Hoshangabad, under Section 53 of the Municipalities Act for quashing the resolution of the municipality and the same matter cannot, therefore be agitated in these petitions. The third preliminary objection is that the market is being shifted to the new site at the instance of the petitioners and they are estopped from raising this point.

( 5 ) WE shall first consider the preliminary objections. So far as the alternative remedy of filing a civil suit for a declaration to establish the customary right of the petitioners is concerned, it is pertinent to observe that in the petitions before us, we are not called upon to adjudge such a right in favour of the petitioners. The scope of the petitions is restricted to determining whether the resolution of the municipality directing shifting of the market is in conflict with the notification establishing the market under the Act of 1935 and whether the municipality could alter the "site of the market by a mere resolution. Both these matters are independent of the customary right mentioned in the notices. Accordingly, we do not agree that relief should be