2010 Supreme(Guj) 338

2011 (1) GCD 251 (SC)
Hon’ble Mr. Justice G.S. Singhvi
Hon’ble Mr. Justice Asok Kumar Ganguly
Mohanlal Nanabhai Choksi (Dead) by L.Rs.
Versus
State of Gujarat & Others
Civil Appeal No. 7268 of 2004—Decided on 04/10/2010

Point in Issue :
Whether provisions of Bombay Provincial Municipal Corporation Act are available to State to initiate acquisition of lands proceeding to set up vegetable market.

Headnote:Head Note :

       Bombay Provincial Municipal Corporations Act, 1949 — Sections 78, 63(12) read with Section 66(42) — Land Acquisition Act, 1894 — Sections 4, 5-A and 6 — Gujarat Town Planning and Urban Development Act, 1976 — Sections 17, 12(2)(b) read with Sections 20 and 17(1)(c) — Gujarat Agricultural Produce Market Act, 1963 — Acquisition of Lands — Setting up a Vegetable market — Resolution for passed by Surat Municipal Corporation — Propriety of — Finding as to — Appellants raised contention that provisions of Bombay Provincial Municipal Corporation Act are not available to initiate an acquisition by the State for establishment of a vegetable market because of Special Act of 1963 — A vegetable market could only be established by Market Committee constituted under the Act of 1963 — The High Court in it’s judgment proceeded on various issues but has not at all touched the said contention raised by appellants — High Court was clearly in error in refusing to deal with the aforesaid question and deciding the matter merely on a ground of appellants lack of locus — For the reasons Court set aside the impugned judgment of High Court and remitted the matter to High Court for decision afresh specially on two questions formulated by Court and given it’s judgment

       Held :

       The main argument of the Learned Counsel for the appellants on the basis of the aforesaid statutory framework is that if the State Government wants to acquire any land for the establishment of a vegetable market, the State Government must take steps under the later and the special Act, which is the 1963 Act. In other words, the State Government cannot, in view of specific later legislative enactment, i.e. the 1963 Act and Section 63 thereof, initiate acquisition proceedings to establish a vegetable market on the basis of resolution of SMC under Section 78 of BPMC Act. [Para 25]

       However, the High Court in the impugned judgment, with great respect, proceeded on various issues but has not at all touched the questions discussed above. In fact in Paragraph 18 of the impugned judgment, the High Court refused to answer this question, inter alia, on the ground that the appellants is neither agriculturalists nor the purchasers of agricultural produces as specified in the schedule nor dealers in such commodities nor office bearers of Surat Agricultural Produce Market Committee, nor has any right to make grievance on behalf of Surat Agricultural Produce Market Committee. [Para 28]

       Court is of the considered view that the High Court was clearly in error in refusing to deal with the aforesaid question on the grounds mentioned in Paragraph 18. [Para 29]

       Here as the High Court has proceeded on an erroneous approach, its judgment cannot be sustained in as much as the High Court refused to examine the validity of the main challenge raised by the appellants on a ground of their lack of locus. This approach of the High Court, with great respect, goes to the root of the issue and makes its judgment very vulnerable. [Para 32]

       For the reasons aforesaid, this Court cannot sustain the impugned judgment of the High Court, which is accordingly set aside. The matter is remitted to the High Court for decision of the writ petition afresh on the questions discussed above and is specifically formulated below. [Para 33]

       The High Court may deal with all issues but specifically the two following questions:

       (i) Whether the 1963 Act, a later and a special Act as compared to the 1949 Act would prevail over the 1949 Act or whether a harmonious construction is possible between the 1963 Act and the 1949 Act on the footing that they seem to govern two distinct and separate spheres of markets.

       (ii) The impugned acquisition proceeds under Section 78 of the BPMC Act. Section 78 peculiarly uses the term “property vested in the corporation”. A plain reading of the term seem to prima facie imply that the SMC can only acquire property vested in it and not private property. Thus, High Court may decide the scope and extent of the said expression in Section 78 of the BPMC Act and determine issue of validity of the impugned acquisition. [Para 34]

       Law Laid Down :

       Where Court in it’s judgment has refused to examine the validity of the main challenge raised by party, same can not be sustained.