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2011 (2) GCD 1208 (Guj) (DB)
Hon’ble Mr. Justice D.H. Waghela &
Hon’ble Mr. Justice K.A. Puj
Mohanlal Nanabhai Choksy & Ors.
Versus
State of Gujarat & Ors.
Special Civil Application No. 3435 of 1991—Decided on 05/04/2011
(a) Bombay Provincial Municipal Corporation Act, 1949 — Section 63 — Gujarat Agricultural Produce Market Act, 1963 — Gujarat Town Planning and Urban Development Act, 1976 — Sections 17 and 107 — Acquisition of land — By Surat Municipal Corporation — Purpose of establishing vegetable market — Challenged alleging mala fide and within jurisdiction of Agricultural Market Committee and because there were other vegetable markets nearby — Sustainability — Finding of.
Held :
On the basis of the relevant legal provisions and the scheme of BPMC Act and APMC Act, the contention of the petitioners that SMC could not legally acquire land for a vegetable market has to be negatived for being grounded in non-extant conflict between the provisions of the two State legislations operating in the same area with different purposes. The other legal contentions of the petitioners based on proximity of the land in question to the other market declared under APMC Act and the land in question being occupied raise questions of disputed facts and the petitioners have not canvassed them further after their averments being denied on oath by the Town Planner of SMC. It could not be gainsaid by the petitioners that during pendency of the petition, the land in question was reserved and has continued to be reserved for the public purpose of constructing a vegetable market by the SMC even under the final development plan which is binding on all the authorities situated in the area of the development plan in terms of Section 17 of the Gujarat Town Planning & Urban Development Act, 1976. And, the land needed for the purpose of Town Planning Scheme or Development Plan has to be deemed to be land needed for a public purpose within the meaning of L.A. Act in terms of Section 107 of the T.P. Act. It appears that the legal controversy raised by the petitioners could have been made far less complicated, if the APMC, Surat were joined as a party-respondent and were allowed it to take its own stand on the legal issues raised by the petitioners. Unfortunately, the petitioners appear to have successfully stalled for decades the acquisition of land for a legitimate public purpose and essential public facility.
[Para 11]
Head Note :
(b) Gujarat Agricultural Produce Market Act, 1963 — Bombay Provincial Municipal Corporation Act, 1949 — Two Acts — Act of 1963 later in time and Special Act — Whether it prevails over Act of 1949 or harmonious construction is possible — Finding of.
Held :
As far as establishment, maintenance or regulation of markets for agricultural produce is concerned and acquisition of land for that purpose is concerned, the provisions of both BPMC Act and APMC Act can be harmoniously construed and could legally stand together, provided the municipal corporation does not take over or impinge upon the powers of the Market Committee and rights of the holders of licence under APMC Act. Any application of any provision of BPMC Act which impinges upon the powers of the Market Committee under APMC Act or impinges upon the rights of holders of licence under APMC Act shall, to that extent, be illegal by virtue of the provisions of APMC act, which has an overriding effect to that extent on account of it being the later and special legislation. [Para 10]
Head Note :
(c) Bombay Provincial Municipal Corporation Act, 1949 — Section 78 — Expression ‘Property vested in Corporation’ — Scope of expression — Whether excludes private property as under acquisition in the present case.
Held :
The question relates to the scope and extent of Section 78 of BPMC Act insofar as it uses the term “property vested in the Corporation”. However, reading that phrase in the context of the scheme of Section 78 of the BPMC Act, it clearly appears that the provisions are intended to empower the Commissioner to initiate acquisition of any immovable property or any easement affecting any immovable property vested in the Corporation as if such property or easement were land needed for a public purpose within the meaning of the L.A.Act. Thus, provisions are made for not only acquiring, by agreement or acquisition, any immovable property but also any easement affecting any immovable property vested in the Corporation. In other words, an immovable property is equated with any easement affecting any immovable property vested in the Corporation, for the purpose of acquisition. Accordingly, acquisition of land in question, in the facts of the present case, is not in any way barred or excluded by the provisions of Section 78 of the BPMC Act. [Para 8]
Law Laid Down :
Surat Municipal Corporation can legally acquire land for vegetable market.
D.H. Waghela, J.—The petitioners, four in number, have invoked Articles 14, 19, 300-A and 226 of the Constitution for quashing of notifications under Sections 4 and 6 of the Land acquisition Act, 1894 (for short, “the LA Act”) and declaration to the effect that acquisition by the respondents of the lands of petitioners for the purpose of establishing vegetable market is per se bad and illegal. After filing of the petition in May 1991 and enjoyment of interim relief for so many years, the petitioners had dragged their feet in proceeding with the hearing of the petition, according to the record. Ultimately, the petition was finally heard and dismissed with cost of Rs. 10,000/- by a Division Bench of this Court on 01.02.2002 by an elaborate judgment. That judgment was carried in appeal to the Supreme Court and that Civil Appeal No. 7268 of 2004 is partly allowed and disposed on 04.10.2010 with the following direction:
“34. 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.
“35. Since considerable time has elapsed, the High Court is requested to take steps to hear out the writ petition in light of the observations made above, as early as possible, but definitely within a period of 6 months from the date of the production of this order before the High Court. However, the High Court is free to decide the questions without being in any way inhibited by any observation made in this judgment, save and except its finding on two issues. They are (I) the 1963 Act is a later and special statute dealing with agricultural produce and agricultural market, and (ii) the appellants have, in view of the provisions of Article 300-A and the drastic provision of Land Acquisition Act, the locus to challenge the acquisition proceeding.
“36. It is, however made clear that it is open to the parties to raise all legally permissible contentions before the High Court. The appeal is allowed to the extent indicated above.”
1.1 Hon’ble Supreme Court has, in its judgment, culled out the following propositions from the judgment of this Court:
“9. In the impugned judgment, the Hon’ble High Court, inter alia, held as follows:
(a) A major part of the land in question was open land, the construction upon it was very old and hardly 1/10th of the land was occupied by structures;
(b) The land was required for a public purpose in terms of Section 78 of the BPMC Act (Bombay Provincial Municipal Corporations Act and Section 12 (2) (b) read with Section 20 of the Development Act.
(c) The other markets which the appellants claim as very close by, were actually quite far away. SMC (Surat Municipal Corporation) needs to provide a market close to the people so that they do not have to move far to purchase their daily necessities. A vegetable market is required to be near the people, especially in India as in India people buy their fresh vegetables daily.
(d) The Notification dated 17.5.2001 made it clear that it was a draft development plan and suggestions and objections were invited from persons for modification of the said plan. Therefore, the notification dated 17.5.2001 was merely a proposal to modify the draft development plan and did not reflect a decision to de-reserve the lands of the appellants.
(e) A reading of Sc. 63
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