Mohanlal Nanabhai Choksi (D) By Lrs vs State Of Gujarat & Ors

2. On 22.08.1980, the Standing Committee of the Surat Municipal Corporation 1 (hereinafter `SMC'), passed a resolution with a proposal to the State Government, under Section 78 of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter `BPMC Act'), for initiating land acquisition proceedings under the Land Acquisition Act, 1894, for acquiring the abovementioned land of the appellants. The said land, admeasuring 7168.09 sq. mts., was to be acquired for the setting up of a vegetable market. The said resolution was approved and the proposal was sanctioned by the State Government on 30.07.1981.

4. On 9.2.1990, a notification was issued under Section 4 of the Land Acquisition Act, 1894 for acquiring the lands of the appellants. The appellants, on 14.3.1990, filed their objections under Section 5A of the Land Acquisition Act. However the objections were overruled and then followed a notification under Section 6 of the said Act on 8.02.1991.

7. On 17.05.2001, a notification was issued by the State Government under Section 17 of the Development Act, whereunder it was proposed to de-reserve the lands that had been reserved for the establishment of a vegetable market by SMC and place them in the residential zone. SMC objected to the said proposal of de-reservation on 13.07.2001.

11. On 2.09.2004, the State Government issued a notification under Section 17(1)(c) of the Development Act sanctioning the revised Development Plan (called the revised Final Development Plan). In the said plan, the State Government, due to the objections raised by SMC, did not accept the proposal for de-reservation of the appellants' lands. Thus, the reservation of the lands for a vegetable market for SMC was continued.

30. This court is further of the opinion that since the property of the appellants is taken away as a result of the aforesaid acquisition proceedings, the appellants are entitled to raise the question of non-applicability of the BPMC Act to initiate an acquisition proceedings for establishing a vegetable market, in view of the clear provisions 20 of the 1963 Act, which is a special and a later Act.

33. 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 are specifically formulated below.

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 23 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 300A 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.

37. No order as to costs.