MOHANLAL NANABHAI CHOKSI (DEAD) BY LRS.versusSTATE OF GUJARAT AND ORS.

                  [2010] 12 S.C.R. 499


    MOHANLAL NANABHAI CHOKSI (DEAD) BY LRS.                        A
                               V.
              STATE OF GUJARAT AND ORS.
              (Civil Appeal No. 7268 of 2004)
                    OCTOBER 04, 2010
                                                                   B
   [G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]

      Gujarat Agricultural Produce Market Act, 1963:
Acquisition proceedings initiated by State Government to
establish a vegetable market under Bombay Provincial               C
Municipal Corporations Act, 1949 - Held: The land owner is
entitled to raise the question of non-applicability of the 1949
Act, in view of a specific later legislative enactment i.e. 1963
Act - Matter remitted to High court for consideration afresh
in the light of questions formulated - Land Acquisition Act,       D
1894 - Bombay Provincial Municipal Corporations Act, 1949
- s.78.

     Constitution of ln.dia, 1950: Article 300A - Right to
property - Deprivation of property by acquisition - Held: Right    E
to property may no longer be a fundamental right, but it enjoys
the protection of Article 300A to the extent that there can be
no deprivation of property save by valid authority of law -
Land Acquisition Act, 1894 - Bombay Provincial MuniCipal
Corporations Act, 1949 - s. 78 - Gujarat Agricultural Produce
Market Act, 1963.                                                  F

     The question which arose for consideration in the
instant appeal was whether the State Government could
initiate tho acquisition proceedings to establish a
vegetable market on the basis of resolution of Surat               G
Municipal Corporation (SMC) under Section '78 of
Bombay Provincial Municipal Corporations Act, 1949 -in
view of a specific later legislative enactment i.e. the
Gujarat Agricultural Produce Market Act, 1963.     ·
                          499                   I
                                                  I                H
    500     SUPREME COURT REPORTS             [2010] 12 S.C.R.


A      Allowing the appeal and remitting the matter to High
    Court, the Court
          HELD: 1. Under Chapter IX and Section 49 of the
    Gujarat Agricultural Produce Market Act, 1963, the State
    Government is authorized to acquire any land within a
8   market area, if it is needed for the purposes of the Act,
    i.e. the 1963 Act. Such acquisition can be made under the
    provisions of the Land Acquisition Act, 1894 or any other
    corresponding law for the time being in force. Surat
    Municipal Corporation (SMC) passed the resolution
C   relying on Section 78 of the Bombay Provincial Municipal
    Corporations Act, 1949 (BPMC Act) for initiating its
    proposal of acquisition of land for the establishment of
    a vegetable market. Since the property of the appellants
    was taken away as a result of the acquisition
D   proceedings, the appellants were entitled to raise the
    question of non-applicability of the BPMC Act to initiate
    the acquisition proceedings for establishing a vegetable
    market, in view of the clear provisions of the 1963 Act,
    which is a special and a later Act. [Paras 14, 23, 30] [506-
E   F] [510-F] [512-G-H]
       2. The right of property, may no longer be a
  fundamental right, but it enjoys the protection of Article
  300A of the Constitution to the extent that there can be
  no deprivation of property save by authority of law.
F Authority of law would obviously mean valid authority of
  law. In a case of deprivation of property by acquisition,
  ultimately by Land Acquisition Act, 1894, which is a
  cfrastic and expropriatory piece of legislation, the owners
  of property, the appellants were, admittedly, entitled to
G raise all legally permissible objections to the legality of
  an acquisition proceeding. The High Court proceeded on
  an erroneous approach as it refused to examine the validity
  of the main challenge raised by the appellants on a ground
  of their lack of locus. The approach of the High Court goes
H to the root of the issue and makes its judgment very
    MOHANLAL NANABHAI CHOKSI (DEAD) BY LRS. v. 501
           '   STATE OF GUJARAT
•   vulnerable. Thus, the impugned judgment of the High            A
    Court is set aside and the matter is remitted to it for
    decision afresh on all issues but specifically on two
    questions formulated as under:

        (i) Whether the 1963 Act, a later and a special Act as     B
        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 inarkets.
                                                                   c
        (ii) Section 78 peculiarly uses the term "property
        vested in the corporation". A plain reading ofthe 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           D
        of the said expression in Section 78 of the BPMC Act
        and determine the issue of validity of the impugned
        acquisition. [Paras 31-34] [513-A-H] [514-A-B]

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.            E
    7268 of 2004.

        From the Judgment & Order dated 1.2.2002 of the Division
    Bench of High Court of Gujarat at Ahmedabad in special Civil
    Application No. 3435 of 1991.
                                                                   F
        R.F. Nariman, Shirish H. Sanjanwala, S.P. Singh, and
    Shamik Sanjanwala, (for Lawyer's Knit & Co.) for the
    Appellants.

        Prashant Desai, Hemantika Wahi, Murgendra Purohit,         G
    Rahul Satija and Sumita Hazarika for the Respondents.

        The Judgment of the Court was delivered by

        GANGULY, J. 1. The appellants are the owners of the
    lands bearing Survey Nos. 1587 to 1596, 1597-A"Part, 1599      H
    502      SUPREME COURT REPORTS              [2010] 12 S.C.R.

A to 1601 of Ward No. 4 of Taluka Choryasi of the city of Surat
  in Gujarat.

       2. On 22.08.1980, the Standing Committee of the Surat
  Municipal Corporation (hereinafter 'SMC'), passed a resolution
  with a proposal to the State Government, under Section 78 of
8
  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
C setting up of a vegetable market. The said resolution was
  approved and the proposal was sanctioned by the State
  Government on 30.07.1981.

         3. On 3.03.1986, the first Development Plan under the
D Gujarat Town .Planning & Urban Development Act, 1976
    (hereinafter the 'Development Act') was under preparation for
  . the Surat Urban Development Authority (hereinafter 'SUDA').
    During the pendency of the said plan, the State Government
    sanctioned the abovementioned proposal, and therefore the
E land in question was kept reserved for a vegetable market for
    SMC.

       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
F 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.

       5. The appellants, on 16.3.1991, filed a special civil
G application (No. 3435/1991) before the Gujarat High Court,
  challenging the notifications under Sections 4 and 6 of the Land
  Acquisition Act.

          6. In 1996-97, SUDA started revising the Development

H
     MOHANLAL NANABHAI CHOKSI (DEAD) BY LRS. v. 503
     STATE OF GUJARAT [ASOK KUMAR GANGULY, J.]
     Plan, and in its revision the land was shown as reserved for         A
     the vegetable market of SMC.

          7. On 17.05.2001, a notification was issued by the State
     Government under Section 17:oJ the Development Act,
     whereunder it was proposed to de-reserve th,e landsJhat had .
                                                                   8
     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.

       8. The Gujarat High Court by the impugned judgment
· dismissed the special civil application (No.3435/1991) on               C
 ; 1.02.2002 and allowed the acquisition of the lands of the
   appellants for setting up a vegetable market.
 /

           9. In the impugned judgment the Hon'ble High Court, inter
     alia, held as,follows:                               '
                                                                          D
          a.    A major part of the land in question was open land,
                the construction upon it was very· old and hardly 1I
                10th of the land was occupied by structures.

           b.   The fand was required for a public purpose in terms       E
                of Sections 78 of the BPMC Act, and 12 (2) (b)
                read with Section 20 of the Development Act.

           c.   The other markets, which the appellants claim as
                very closeby, were actually quite far away. SMC
                needs to provide a market close to the people so          F
                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.
                                                                          G
           d.   The notification dated 17.05.2001 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 .05.2001 was merely a               H
    504        SUPREME COURT REPORTS             [2010) 12 S.C.R.


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 Section 63(12) read with Section
                66(42) of the BPMC Act made it clear that there
B               was an obligatory duty on SMC to construct and
                maintain a public market, for which it can take
                appropriate action as required under the Act.
                Further the scheme of the Act clearly indicated that
                SMC was competent to establish a market.
c
          f.    The appellants had raised a contention that SMC
                had no right to acquire the land and at most the
                State Government could acquire land. The High
                Court dismissed the said contention holding once
D               a notification was published under Section 6 after
                complying with the provisions of the Land
                Acquisition Act, it was conclusive evidence that the
                land was required for a public purpose and the
                Court could not go behind the said notification.
E         g.    The appellants were neither agriculturalists nor
                producers of agricultural produce, nor dealers or
                office bearers of the Surat Agricultural Produce
                Market Committee, and as such they had no right
                to question the authority of SMC to initiate
F               acquisition proceedings for a vegetable market.

          h.    The 1963 Act applied only to bulk sales and not
                retail sales. The SMC was providing a market so
                that the retailers and consumers have no difficulty
G               in the sale/purchase of commodities. Retailers
                were excluded from the purview of the 1963 Act and
                Rules framed thereunder. Thus, the SMC could set
                up the vegetable market as it was doing the same
                for retailers. The 1963 Act had been enforced to
H
MOHANLAL NANABHAI CHOKSI (DEAD) BY LRS. v. 505
STATE OF GUJARAT [ASOK KUMAR GANGULY, J.]
           regulate transactions between traders and                A
           agriculturalists, in order to prevent exploitation of
           the latter by the former. Thus, a market for
           agriculturalists and traders could only be set Lip
           under the provisions of the 1963 Act, but the same
           did not and would not apply to retailers dealing in      B
           small quantities. There was nothing in the 1963 act
           to indicate that transactions between the ultimate
           consumers and the vendors was controlled or that
           the local authority was prohibited from setting up a
           vegetable market for the same.                           c
    10. The appellants on 19.3.1992 filed an SLP (No. 7559/
2002), before this Court raising, inter alia, the following main
contentions:

      a.    SMC, acting under the provisions of the BPMC Act,       D
            had no authority to establish the vegetable market
            as there was a later and special Act passed by the
            Gujarat government, namely the Gujarat Agricultural
            Produce Market Act, 1963 (hereinafter the '1963
            Act') and under 1963 Act a vegetable market could       E
            only be established by a Market Committee
            constituted under the 1963 Act.

      b.    There were markets already established within a
            radius of 1 and 1/2 kms, and thus there was no need
                                                                    F
            to establish a vegetable market. It was also
            contended that there was no mandatory duty on the
            SMC to establish the said market, and that
            establishing such a market would only lead to traffic
            problems as the area was a congested area in the
            middle of the city. The appellants also stated that     G
            the area sought to be acquired was occupied by
            many tenants with many superstructures on it.

      c.    The lands in question had been reserved in the
            Final Development Plan of SUDA. but there was a         H·
    506      SUPREME COURT REPORTS              [2010] 12 S.C.R.


A               proposal to de-reserve the said lands (by
                notification dated 17.05.2001), and thus the
                notifications under Sections 4 and 6 of the Land
                Acquisition Act would not survive.

        11. On 2.09.2004, the State Government issued a
8
  no\ification 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
  Gbvernment, due to the objections raised by SMC, did not
C accept the proposal for de-reservation of the appellants' lands.
  Thus, the reservation of the lands for a vegetable market for
  SMC was continued.

       12. On 22.04.2002, this Court in the pending SLP stayed
  further steps regarding the proposed acquisition of land and
D the interim order of stay was continued on 5.11.2004.

        13. This Court is of the view that among the contentions
  which have been raised by the appellants herein, the one
  relating to non-applicability of BPMC Act, to initiate an
E acquisition by the State forestablishment of a vegetable market
  in the context of enactment of a later and a special Act, namely,
  the 1963 Act, is of some substance.

       14. Admittedly, from the resolution of SMC, it is clear that
  it was relying on Section 78 of the BPMC Act for initiating its
F proposal of acquisition of land for the establishment of a
  vegetable market. Section 78 of the BPMC Act runs as under:

          "78. Procedure when immovable property cannot be
          acquired by agreement.-
G         (1) Whenever the Commissioner is unable under section
          77 to acquire by agreement any immovable property or
          any easement affecting any immovable property vested in
          the Corporation or whenever any immovable property or
          any easement affecting any immovable property vested in
H
MOHANLAL NANABHAI CHOKSI (DEAD) BY LRS. v. 507
STATE OF GUJARAT [ASOK KUMAR GANGULY, J.]
    the Corporation is required for the purposes of this Act,          A
    the State Government may, in its discretion, upon the
    application of the Commissioner made with the approval
    of the Standing Committee and subject to the other
    provisions of this Act, order proceedings to be taken for
    acquiring the same on behalf of the Corporation, as if such        B
    property or easement were land needed for a public
    purpose within the meaning of the Land Acquisition Act,
    1894 (1 of 1894).

    (2) Whenever an application is made under sub-section
    (1) for the acquisition of land for the purpose of providing       C
    a new street or for widening or improving an existing street
    it shall be lawful for the Commissioner to apply for the
    acquisition of such additional land immediately adjoining
    the land to be occupied by such new street or existing
    street as is required for the sites of buildings to be erected     D
    on either side of the street, and such additional land shall
    be deemed to be required for the purposes of this Act.

    (3) The amount of compensation awarded and all other
    charges incurred in the acquisition of any such property           E
    shall, subject to all other provisions of this Act, be forthwith
    paid by the Commissioner and thereupon the said property
    shall vest in the Corporation."

     15. A perusal of Sub-section(1) of Section 78 shows that
the State Government may, in its discretion, upon application
                                                                       F
of the Commissioner, order proceedings to be taken for
acquiring the land in question if the SMC needs it fo,r the
purposes of this Act. Section 63 of the BPMC Act provides for
certain categories of matters in respect of which SMC is
competent to take steps and one such step is provided under            G
Section 63(12). Under Sub-section 12 of Section 63, SMC can
take steps for:

    "63. (12) the construction or acquisition and maintenance
    of public markets and slaughter-houses and tunneries and           H
    508       SUPREME COURT REPORTS                [2010] 12 S.C.R.


A         the regulation of all markets and slaughter-houses and
          tunneries;"

         16. Section 2(33) of BPMC Act defines a 'market'. The
    said definition is very broad and is set out herein below:

B         "2. (33)                      "market" includes any place
          where persons assembly for the sale of, or for the purpose
          of exposing for sale, live-stock or food for live-stock or
          meat, fish, fruit, vegetables, animals intended for human
          food or any other articles of human food whatsoever with
C         or without the consent of the owner of such place,
          notwithstanding that there may be no common regulation
          of the concourse of buyers and sellers and whether or not
          any control is exercised over the business of or the persons
          frequenting the market by the owner of the place or any
D         other person;"

      17. Relying on these provisions of BPMC Act, it has been
  argued by the learned counsel for the appellants that a Municipal
  Commissioner is authorized to set up a market within the
E meaning of Section 2(33) of BPMC Act. Such a market is
  much wider than a vegetable market.

        18. The learned counsel for the appellants buttressed the
  argument by further reference to the 1963 Act. Referring to the
  Statement of Objects and Reasons of the 1963 Act, learned
F counsel urged that the said 1963 Act has been enacted to
  consolidate and amend the law relating to buying and selling
  of agricultural produce and the establishment of markets for
  agricultural produce in the State of Gujarat. The Statement of
  Objects and Reasons of the 1963 Act, in the Gujarat
G Government Gazette Extraordinary dated March 22, 1963 is as
  follows:

          "STATEMENT OF OBJECTS AND REASONS.

          As regards the regulation of sales and purchases of
H         agricultural produce, there is in force, in the Bombay area
 MOHANLAL NANABHAI CHOKSI (DEAD) BY LRS. v. 509
 STATE OF GUJARAT [ASOK KUMAR GANGULY, J.]

     of the State, the Bombay Agricultural Produce Markets Act,        A
     1939, and in the Saurashtra area of the State, the
     Saurashtra Agricultural Produce Markets Act, 1955. There
     is no corresponding law in force in the Kutch area of the
     State.
                                                                       B
     2. The aforesaid Bombay Act is on the statute book for
     the last 23 years and during that period it has undergone
     various changes from time to time to suit the development
     and growth of regulated agricultural produce markets.

     3. Government had appointed a Committee under the                 C
     Chairmanship of Shri Jashvantlal Shah, the then Deputy
     Minister for Co-operation, to review the entire position of
     agricultural produce markets in the light of the experience
     gained in the day-to-day working thereof and to suggest
     amendments, if any, to the existing Law. Accordingly the          D
     Committee has suggested various amendments. In
     pursuance of the policy of the State to· bring about
     uniformity in the laws in force in the State~ it is proposed
     to consolidate and amend the law relating to the regulation
     of buying and selling of agricultural produce in the whole        E
     of the State Of Gujarat. The present Bill seeks to achieve
     that object. The Bill mainly follows the Bombay Agricultural
     Produce Markets Act, 1939 (hereinafter referred to as "the
     existing Act'). Various amendments suggested by the
     Committee have also been incorporated in the Bill."               F

      19. The learned counsel for the appellants further urged
that the Act of 1963 is a later and a special law for
establishment of a market for agricultural produce in the State.
The learned counsel also referred to the definition of 'agricultural
produce' under Section 2(i) of the 1963 Act and argued that            G
vegetables definitely come within the definition of 'agricultural
produce'. He also referred to the definition of 'market' under
Section 2(xii) of the 1963 Act to mean 'a market declared or
deemed to be declared under the Act'; a~ also to the definition
of a 'market area' under Section 2(xiii), which means 'any area        H
    510      SUPREME COURT REPORTS                   [2010) 12 S.C.R.


A declared or deemed to be declared to be a market area under
  this Act.'

         20. Reference was also made to 'retail sale' under Section
    2(xviii) of the 1963 Act, whereunder 'retail sale' means:
B          "2. (xviii) "retail sale" means a sale of any agricultural
                  produce not exceeding such quantity as a market
                  committee may by bye-laws determine to be a retail
                  sale in respect of such agricultural produce;"

c       21. This Court notes that sale and purchase in the market
    area is controlled under Section 6(1) and (2). Section 6(3)
    carves out an exception in the following terms:

           "6. (3)       Nothing in sub-section (2) shall apply to the
                  purchase or sale of any such agricultural produce,
D
                  if its producer is himself its seller and the purchaser
                  purchases it for his own private consumption."

      . 22. The learned counsel for the appellants, relying on these
  provisions urged that the establishment of a vegetable market
E falls solely and squarely within the provisions of the 1963 Act.

       23. Under Chapter IX and section 49 of the 1963 Act, the
  State Government is authorized to acquire any land within a.
  market area if it is needed for the purposes of this Act, i.e. the
F 1963 Act. Such acquisition can be made under the provisions
  of the Land Acquisition Act, 1894 or any other corresponding
  law for the time being in force. Section 49 (1) and (2) are set
  out below:

          "49. (1) The State Government may acquire any land within
G         a market area, which in its opinion is needed for the
          purposes of this Act, under the provisions of the Land
          Acquisition Act, 1894 or any other corresponding law, for
          the time being in force.

H         (2) Such land shall be transferred by the State Government
MOHANLAL NANABHAI CHOKSI (DEAD) BY LRS. v. 511
STATE OF GUJARAT [ASOK KUMAR GANGULY, J.]
    to the market committee on payment by the market              A
    committee of the compensation awarded under the Land
    Acquisition Act, 1894, or any other corresponding law for
    the time being in force and of all other charges incurred
    by the State Government on account of the acquisition,
    within such period and in such manner as the State            B
    Government may, by general or special order, determine
    and on such transfer the land shall vest in the market
    committee."

    24. The learned counsel for the appellants strongly relied
on Section 63 of the 1963 Act, which excludes the application     C
of Bombay Markets and Fairs Act, 1862 or any other law for
the time being in force relating to the establishment,
maintenance and regulation of a market. Section 63 runs as
under:
         I.                                                       D
    "63. Nothing contained in the Bombay Markets and Fairs
    Act, 1862, or in any law for the time being in force relating
    to the establishment, maintenance or regulation of a ·.
    market shall apply to any market area or affect in any way
    the powers of a market committee or the rights of a holder E
    of a licence granted under this Act to set up, establish or
    continue any place for the purchase or sale of any
    agricultural produce notified under sub-section (1) of
    section 6 in such area."

     25. The main argument of the learned counsel for the         F
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     G
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.
                                                                  H
    26. The learned counsel for the respondents opposed thE!
    512      SUPREME COURT REPORTS               [2010] 12 S.C.R.


A aforesaid contentions and took us through the judgment of the
  High Court and submitted that the 1963 Act is meant for the
  cultivators and traders and is not meant for common man. The
  learned counsel also relied on various provisions of the Gujarat
  Town Planning and Urban Development Act and also urged that
B in view of sections 63(12) and 78 of the BPMC Act, the
  impugned action of SMC, which has been affirmed by the High
  Court, is valid in law and this Court may dismiss the special
  leave petition.

C        27. After considering the rival submissions of the parties,
    this court is of the opinion that the contentions raised by the
    learned counsel for the appellants deserved serious
    consideration by the High Court.

       28. However, the High Court in the impugned judgment,
D 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 are neither agriculturalists nor the purchasers of
E agricultural produces as specified in the schedule nor dealers
  in such commodities nor office bearers of Surat Agricultural
  Produce Market Committee, nor have any right to make
  grievance on behalf of Surat Agricultural Produce Market
  Committee.
F
         29. We are 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.

        30. This court is further of the opinion that since the
G 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 of the 1963 Act, which
H is a special and a later Act.
  MOHANLAL NANABHAI CHOKSI (DEAD) BY LRS. v. 513
  STATE OF GUJARAT [ASOK KUMAR GANGULY, J.]
        31. The right of property, may no longer be a fundamental        A
  right, but it enjoys the protection of Article 300A of the
  Constitution to the extent that there can be no deprivation of
  property save by authority of law. Authority of law would
  obviously mean valid authority of law. In a case of deprivation
  of property by acquisition, ultimately by Land Acquisition Act,        B
· 1894, which is a drastic and expropriatory piece of legislation,
  the owners of property, the appellants herein, are admittedly
  entitled to raise all legally permissible objections to the legality
  of an acquisition proceeding.

      32. Here as the High Court has proceeded on an
                                                                         c
 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           D
 very vulnerable.

      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        E
 of the writ petition afresh on the questions discussed above and
 are specifically formulated below.

      34. The High Court may deal with all issues but specifically
 the two following questions:
                                                                         F
        (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       G
              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         H
    514       SUPREME COURT REPORTS               [2010] 12 S.C.R.


A                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
B                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
C 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
D 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.

E        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.

    D.G.                                            Appeal allowed.