Mohanlal vs State on 5 April, 2011

[Cites 55, Cited by 0]

Gujarat High Court

Mohanlal vs State on 5 April, 2011

1. 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 Sec.78 of the BPMC Act (Bombay Provincial Municipal Corporations Act and Sec.12 (2) (b) read with Sec.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 (12) read with Sec.66 (42) of the BPMC Act made it clear that there was an obligatory duty on SMC to construct and maintain a public market for which it can take appropriation action as required under the Act. Further, the scheme of the Act clearly indicated that Surat Municipal Corporation was competent to establish a market;

(f) The appellants had raised a contention that SMC had no right to acquire the land and at the most the State Government could acquire the land.

The High Court dismissed the said contention holding that once 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.

(g) The appellants were neither agriculturalists nor purchasers 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 acquisition proceedings for a vegetable market.

(h) The 1963 Act applied only to bulk sales and not retail sales. SMC was providing a market so that the retailers and consumers have no difficulty in the sale/purchase of commodities. Retailers were excluded from the purview of the 1963 Act and Rules framed thereunder. Thus, SMC could set up the vegetable market as it was doing the same for retailers. The 1963 Act has been enforced to regulate transactions between traders and agriculturalists, in order to prevent exploitation of the latter by the former. Thus, a market for agriculturalists and traders could only be set up under the provisions of the 1963 Act, but the same did not and would not apply to retailers dealing in 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. "

1.2 The contentions agitated before the Apex Court, resulting into remand of the matter, were:

(I) SMC, acting under the provisions of the BPMC Act, had no authority to establish the vegetable market as there was a special and later Act, namely, the Gujarat Agricultural Produce Market Act, 1963 ("the APMC Act" for short ) under which the market could only be established by the APMC constituted under the Act;

(ii) That there were markets already established within a radius of 1.5 kms.

and the area sought to be acquired was occupied by many tenants with many superstructures on it; and

(iii) That the lands in question had been reserved in the final development plan of SUDA (Surat Urban Development Authority), but there was no proposal to de-reserve the land and hence notifications under sections 4 and 6 of the L.A. Act could not survive.

2. It would appear from the above record that, in substance, the petitioners have challenged the acquisition of their lands mainly on the basis that the lands could not be acquired for the purpose of establishing a vegetable market by Surat Municipal Corporation ("SMC" for short). According to the petition, the petitioners claimed to be owners of various parcels of land situate in Ward No.4 of City of Surat, in all admeasuring 7168.09 sq. mtrs., in the area known as Chauryasi Taluka. It was averred that the lands in question were fully constructed and occupied by many tenants. The petitioners have alleged mala fide on the part of SMC in deciding to acquire the constructed and populated properties of the petitioners while de-notifying or releasing many other properties from acquisition. It is contended that a vegetable market was to be constructed by Agricultural Produce Market Committee, Surat ("APMC" for short) and there are other vegetable markets nearby. In spite of that, notification dated 07.12.1989 was issued under section 4 of the LA Act; and the petitioners have filed their objections thereto on 12.3.1990. It is alleged that in spite of objections and without giving proper opportunity to the petitioners to represent their case, notification dated 08.02.1991 has been issued under section 6 of the LA Act and hence they have invoked the supervisory jurisdiction of this Court.

2.1 By amending the petition in march 1998, the petitioners have also averred that a new market known as "Sardar Market" is already constructed nearby by the APMC and 258 new licences would be issued for retail as well as wholesale dealers, and hence there was no need to acquire the petitioners' land. It is contended that APMC, Surat has constructed a big market yard covering 1,08,000 sq. mtrs. In Block No.33 to 43 and hence SMC was not required to provide a vegetable market wherein purchase and sale of agricultural produce would be illegal. It is submitted that from the date on which the area is declared as "market area" under the APMC Act, no place in the whole area could be used for purchase or sale of any agricultural produce. Even if the market were to be established by SMC, provisions of the APMC Act would apply and everything, including acquisition of land, has to be done by the authorities under the APMC Act. It is contended that the later and special Act would have an overriding effect over the general and older Act, i.e. the BPMC Act.

3. By filing an affidavit-in-reply of the Town Planner of SMC, it is averred that the land in question is placed under reservation for vegetable market in the development plan prepared by Surat Urban Development Authority ("SUDA" for short) under the provisions of the Gujarat Town Planning and Urban Development Act, 1976 ("T.P.Act" for short), which has become final. Then the land has to be acquired under the provisions of the T.P.Act. The land which is reserved for public purpose has to be acquired under the LA Act and "Sardar Market" is not within the purview of SMC. It is denied that proper opportunity was not give to the petitioners to make their representation under section 5-A of the LA Act. It is averred that most of the lands in question is open land and the existing structures are very old. All the constructions on the land are uauthorized and made without obtaining any permission from the SMC. It is denied that acquisition of land is mala fide or in colourable exercise of power, as alleged. It is submitted that Sardar Market is a wholesale market situated on a ring road and it is very far from the lands in question which are located in the internal area. SMC has decided to acquire the land for a retail vegetable market to be run by it as per the need of the public. It is denied that there are numerous tenants in the land in question.

4. With the above background of broad facts and contentions, it was submitted by learned senior advocate Mr.S.H.Sanjanwalla, appearing for the petitioners, that the APMC Act is a special and later Act and since it is a self-contained Code with non-obstante clause in Sec.63 thereof, the acquisition of land initiated by the Surat Municipal Corporation under the BPMC Act was illegal. It was further submitted that the alleged public purpose of establishment of a vegetable market was patently bad and illegal insofar as it was not permissible for any local authority to operate any market within the area which is declared to be a "market area" as defined in Sec.2

(xiii) of the APMC Act. He submitted that the whole of Chauryasi Taluka was declared as a "market area" and all the vegetable produce had to be regulated under the APMC Act. He relied upon judgment of learned single Judge of this Court in Agricultural Produce Market Committee v. Borsad Municipality [2006 (2) GCD 1701], wherein the municipality was granting licence on a daily basis to vendors who were selling fruits and vegetables as unauthorized occupants on the land of municipality. The municipality did not deny the legal position that regulated items of fruits and vegetables as per the notification issued by the APMC could not be sold by operating a market within the market area, except by persons who had obtained a licence from the APMC. In that context, the Court observed that, as far as the provisions of the APMC Act were concerned, they had an overriding effect by virtue of Sec.63 thereof. That there is no over-lapping or conflict in the respective spheres of jurisdiction and the powers conferred by the two Statutes, i.e. the APMC Act and the Municipalities Act, even though they operate within the same area. Therefore, the stand of the respondent Municipality that they were not issuing licences but were only charging "fees" or "penalty" under Section 118, for unauthorised occupation, was held to be not tenable, since the provisions of the APMC Act applied within the "market area" which included the land owned by the Municipality. The Court also observed that as far as the APMC and the Municipality were concerned, there was no conflict in any of the provisions of the Statutes governing either of them . Ultimately, the Court restrained the Municipality from permitting the unauthorised vendors of fruits and vegetables from selling on its land the regulated items of fruits and vegetables after purchasing them from the market yard or sub-market yard, without the requisite licence for doing so from the APAMC.

The above decision of learned single Judge of this Court, read in the context of its facts, does not directly support the contention of the petitioner.

4.1 Learned counsel also relied upon judgment of the Apex Court in Talcher Municipality v. Talcher Regulated Market Committee and Anr. [(2004) 6 SCC 178], wherein the Municipality had constructed a market in exercise of its power under section 295 of the Orissa Municipal Act, 1950, and the Market Committee had sent a requisition stating that as agricultural produces were being bought and sold in that market, municipality was liable to transfer the market to the Market Committee. The Apex Court made following pertinent observations:

"17. A market may be belonging to a Municipality or Gram Panchayat but once a market area has been declared the provisions of the said Act will bring within its sweep even such markets. Sub-section (4) of Section 4 clearly mandates that even the market of a Municipality or a Gram Panchayat falling within the market area will have to be transferred if requisitioned therefor......

"18. It is true that the appellant Municipality is a local authority. It is furthermore true that in terms of Sec.295 of the Orissa Municipal Act the appellant was entitled to provide places for use as public markets, the control of which , as noticed hereinbefore, is to be exercised by the Municipal Council.

"19. .... ....

"20. .... ....

"21. The contention of Mr.Misra to the effect that in the market in question apart from agricultural produces, non-agricultural produces are also bought and sold and, thus, it was obligatory on the part of the authorities concerned to find out the dominant object of the Municipality in establishing the said market cannot be gone into by this Court for the first time as such a contention has not been raised before the High Court."

4.2 Learned counsel heavily relied upon the judgment of learned single Judge of the Bombay High Court in The Municipal Corporation of the City of Solapur v. The Solapur Agricultural Produce Market Committee [AIR 1978 Bom. 184] and particularly the following observations made therein:

"11. There is no merit in the contention having regard to the special enactment contained in Section 4 (2) (b) of the Bombay Agricultural Produce Market Act, 1939, and the Notifications referred to above. The relevant sub-section reads as follows:

"

On and after the date of the declaration of the market area under sub-sec. (1), no Municipality or other local authority, notwithstanding anything contained in the enactment relating to such Municipality or authority, shall be competent to establish, authorise or allow to be established any place in the said area for the purchase and sale of any agricultural produce specified in the notification issued under sub-section (1)."

"12. It is, therefore, patent that this provision in the Bombay Agricultural Produce Market Act, 1939, overrides all other powers given to the Municipal Corporation under the Bombay Municipal Boroughs Act, 1925, bye-laws made thereunder and the provisions of the Bombay Provincial Municipal Corporation Act, 1949".

4.3 It was further submitted for the petitioners that there was no question of harmonious construction of the provisions of the APMC Act and the BPMC Act in view of the non-obstante clause contained in Sec.63 of the APMC Act. It was submitted that there are no distinct and separate spheres and the APMC Act deals with both wholesale and retail markets and that SMC cannot run retail market in the "market area". He submitted that duties are cast upon the APMC under section 26 of the APMC Act to maintain and manage the market and enforce the provisions of the Act, including the conditions of licences granted under the Act. Such duties cannot be delegated to Surat Municipal Corporation or it cannot be allowed to perform those duties of the Market Committee , according to the submission. Heavily relying upon the non-obstante clause in Sec.63 of the APMC Act, it was submitted that the exclusive right to set up, establish or continue any place for the purpose of sale of any agricultural produce was vested in the Market Committee and, therefore, it was illegal for SMC to initiate acquisition of land for the purpose of establishing a vegetable market. He submitted that the provisions of BPMC Act have to give way to the provisions of APMC Act, which was a special and later legislation. He relied upon the statutory provisions, quoted and referred hereinafter, as well as several judgments in support of the aforesaid submissions. He emphasized that the provisions of the APMC Act covered both retail and wholesale sale or purchase of agricultural produce, which included vegetables.

4.4 It was also argued for the petitioners that the acquisition proceedings were initiated on account of colourable exercise of power and SMC cannot take shelter of Sec.20 of the T.P. Act, as Sec.20 of the T.P. Act could be invoked only after 02.9.2004 when final development plan was sanctioned. He submitted that provisions of Sections 77 and 78 of the BPMC act were not fully complied and there was no proposal for establishment of the market under section 49 of the APMC Act.

5. As against the above contentions and submissions for the petitioners, it was argued for Surat Municipal Corporation (SMC) by learned senior advocate Mr.P.G.Desai, that as early as on 03.03.1986, the first development plan of Surat Urban Development Authority (SUDA), which included the City of Surat, was prepared under the T.P.Act and was sanctioned by the State Government, wherein the land in question was sought to be reserved for the purpose of a vegetable market for SMC. The petitioners had not taken any objection in their representation under section 5-A of the L.A.Act in respect of the power of SMC to acquire the land. Since the petitioners were granted interim relief, further proceedings for acquisition were stayed and upon expiry of ten years in 1996 of the development plan, reservation was continued even in the revised plan. Thus, while issuing the revised final development plan on 02.09.2004, reservation for vegetable market for SMC is continued.

5.1 Mr.Desai submitted that neither the provisions of Sec.6 nor Sec.63 of the APMC Act prohibit any other authority from setting up a market. The only restriction is that no place in the "market area" could be used for purchase or sale of any agricultural produce specified in the notification, except in accordance with the provisions of APMC Act and the powers of the Market Committee are not curtailed by any other law in establishment or regulation of the market. He submitted that none of the provisions of APMC Act prohibited construction of a market by any other authority, except the APMC. He submitted that SMC only proposed to construct the market and provide space for vegetable vendors, subject to the restrictions and provisions of APMC Act. Even APMC, Surat has given no-objection certificate in respect of construction of the market, subject to the condition that licences will have to be taken by the persons who may occupy the market. He submitted that the provisions of BPMC Act cast a duty upon the Municipal Corporation to construct markets, including vegetable market, for general public. The provisions of APMC Act regulate buying and selling of agricultural produce while BPMC Act is an Act for establishing markets and for discharging other duties of the institution of local self-government. Co-relating the provisions of both the enactments, the Municipal Corporation could legally construct and establish a vegetable market wherein the persons doing business or holding a shop may be required to take necessary licence from the APMC and abide by the conditions thereof, according to the submission.

5.2 He submitted that once the State Government approved resolution of the SMC to acquire land for vegetable market, the land is deemed to be needed for public purpose. Reservation of land under the provisions of the T.P.Act confirmed that the land was needed for the public purpose. Relying upon decision of the Apex Court in Kanaiyalal Maneklal Chinai and Anr. v. State of Gujarat and Ors. [AIR 1970 SC 1188], he submitted that it was not obligatory for SMC to comply with Sec.77 before passing the resolution under Sec.78 of BPC Act. He submitted that factually "Sardar Market"

is far away from the land in question and it is not a retail market for ordinary consumers. The object of establishing a vegetable market is different from the object of establishing a "market yard".

He relied upon decision of the Apex Court in Dahyabhai Ranchhodbhai Dhobi v. State of Gujarat [ 2010 (7) SCALE 232] for the following proposition:

"18. Learned senior counsel for the appellants submitted that inasmuch as the respondents, by a notification, has changed the classification of the land in question and designated as "residential use"

at this moment, they are not permitted to set up a school in the land in question. In the counter affidavit filed by the Director of Planning, Surat Municipal Corporation has highlighted that the land in question has been reserved for school purpose in the development plan sanctioned by the State Government under the provisions of Gujarat Town Planning and Urban Development Act, 1976. As per section 20 of the said Act, the acquiring body, namely, Surat Municipal Corporation is required to acquire the land under the Land Acquisition Act as the impugned land is reserved for school purpose. Further, inasmuch as the land in question is kept under reservation for school in the sanctioned development plan for the State Government under Section 17 of the Gujarat Town Planning & Urban Development Act, it is the duty of the Corporation to acquire the land for implementing the provisions of the same. In view of the same, this contention is also liable to be rejected."

6. In order to analyse the statutory schemes relevant for the present purpose, it would be necessary to refer to the following relevant provisions of the BPMC Act, the APMC Act, and the T.P.Act.

"BOMBAY PROVINCIAL MUNICIPAL CORPORATIONS ACT, 1949 Whereas it is expedient to provide for the establishment of municipal corporations in the City of Ahmedabad and certain other cities with a view to ensure a better municipal government of the said cities, it is hereby enacted as follows:-

S.2. Definitions:

In this Act, unless there be something repugnant in the subject or context-

(33) "market"

includes any place where persons assemble 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 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 other person;

(36) "municipal market" means a market vested in or managed by the Corporation;

Duties and Powers of the Municipal Authorities and officers Obligatory and discretionary duties of the Corporation S.63 (1) Matters to be provided for by the Corporation: It shall be incumbent on the Corporation to make reasonable and adequate provision, by any means or measures which it is lawfully competent to it to use or to take, for each of the following matters, namely:-

(1) to (11) ..... ..... .....

(12) The construction or acquisition and maintenance of public markets and slaughter houses and tanneries and the regulation of all markets and slaughter houses and tanneries;

(2) .... .... ....

S.77 Acquisition of immovable property:

(1) Whenever it is provided by this Act that the Commissioner may acquire or whenever it is necessary or expedient for any purpose of this Act that the Commissioner shall acquire, any immovable property, such property may be acquired by the Commissioner on behalf of the Corporation by agreement on such terms and at such rates or prices or at rates or prices not exceeding such maxima as shall be approved by the Standing Committee either generally for any class of cases or specially in any particular case.

(2) ......

...... .....

(3) The Commissioner may on behalf of the Corporation acquire by agreement any easement affecting any immovable property vested in the Corporation, and the provisions of sub-sections (1) and (2) shall apply to such acquisition.

S.78 Procedure when immovable property cannot be acquired by agreement.

(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 the Corporation is required for the purposes of this Act, 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 property or easement were land needed for a public purpose within the meaning of the Land acquisition Act, 1894.

(2) .... .... ....

(3) The amount of compensation awarded and all other charges incurred in the acquisition of any such property 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."

"THE BOMBAY AGRICULTURAL PRODUCE MARKETS ACT, 1939 An Act to provide for the better regulation of buying and selling of agricultural produce and the establishment of markets for agricultural produce in the Province of Bombay.

S.2 (1) Definitions -

In this Act, unless there is anything repugnant in the subject or context-

(v) "Market"

means a market established for the purposes of this Act;

(vi) "Market Area"

means any area declared to be a market area under section 4.

(ixa) "Retail sale"

means a sale of any agricultural produce not exceeding such quantity as a market committee may by bye-laws made under section 27 determine to be a retail sale in respect of such agricultural produce.

S.4 Declaration of market area:

(1) ..... ..... .....

(2) ..... ..... .....

(2B) On and after the date on which any area is declared to be a market area under sub-section (1), no municipality or any other local authority , notwithstanding anything contained in any enactment relating to such municipality or authority, shall be competent to establish, authorise or allow to be established any place in the said area for the purchase or sale of any agricultural produce specified in the notification issued under sub-section (1)."

"THE GUJARAT AGRICULTURAL PRODUCE MARKETS ACT, 1963 An Act to consolidate and amend the law relating to the regulation of buying and selling of agricultural produce and the establishment of markets for agricultural produce in the State of Gujarat.

S.2 Definitions:

(i) "agricultural produce" means all produce, whether processed or not, of agriculture and animal husbandry, specified in the Schedule;

(ix) "licence"

means a licence granted under section 6 or, as the case may be, a general or special licence granted under section 27;

(xi) "local authority" means-

(a) a corporation constituted under the Bombay provincial Municipal Corporation Ltd, 1949

(b) ..... ..... .....

(xii) "market"

means a market declared or deemed to be declared under this Act.

(xiii) "market area"

means any area declared or deemed to be declared to be a market area under this Act.

(xv) ''market proper"

means any area declared or deemed to be declared to be a market proper under this Act.

(xvii)"principal market yard" means an enclosure, building or locality declared or deemed to be declared to be a principal market yard under this Act.

(xviii)''retail sale" means a sale of any agricultural produce not exceeding such quantity as a market committee may be by by-laws determine to be a retail sale in respect of such agricultural produce.

(xxi) "sub-market yard" means an enclosure, building or locality declared or deemed to be declared to be a sub-market yard under this Act.

S.5 Declaration of intention of regulating purchase and sale of agricultural produce in specified area:

(1) The Director may, by notification in the Official Gazette, declare his intention of regulating the purchase and sale of such agricultural produce and in such area, as may be specified therein. Such notification shall also be published in Gujarati in a newspaper having circulation in the area and in such other manner as may be prescribed.

(2) .... .... ....

(3) .... .... ....

S.6 Declaration of market areas:

(1) After the expiry of the period specified in the notification issued under section 5 (hereinafter referred to in this section as "the said notification"), and after considering the objections and suggestions received before its expiry and holding such inquiry as may be necessary, the Director may, by notification in the Official Gazette, declare the area specified in the said notification or any portion thereof to be a market area for the purposes of this Act in respect of all or any of the kinds of agricultural produce specified in the said notification. A notification under this sub-section shall also be published in Gujarati in a newspaper having circulation in the said area and in such other manner, as may be prescribed.

(2) Notwithstanding anything contained in any law for the time being in force, from the date on which any area is declared to be a market area under sub-section (1), no place in the said area shall be used for the purchase or sale of any agricultural produce specified in the notification except in accordance with the provisions of the Act.

Provided that ....... ......

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

(4)				......		.....	.....
 


(5)				......		.....	.....
 


	
 


S.7	Declaration

of market, market yard and market proper:

(1) For each market area, there shall be a market which shall consist of-

(i) one principal market yard,

(ii) sub-market yards, if any and

(iii) all markets proper;

notified under sub-sections (2) and (3).

(2) The Director may, by notification in the Official Gazette, declare any enclosure, building or locality in any market area to be a principal market yard and any other enclosure, building or locality to be a sub-market yard.

(3) Whenever the director declares for any market area, the principal market yard or a sub-market yard, he shall simultaneously declare, by notification in the Official Gazette, an area within such distance of the principal market yard or sub-market yard, as the case may be, as he thinks fit, to be a market proper, and thereupon all industrial concerns in the said area with their compounds, godowns and warehouses, where agricultural produce is stored shall stand included in the market proper.

(4) For the purposes of this Act, a market shall be deemed to have been established for any market area with effect from the date on which the principal market yard and a market proper are declared for that area.

S.8 Operation in market under Licence:

No person shall operate in the market area or any part thereof except under and in accordance with the conditions of a licence granted under this Act.

S.26 Duties of market committees.

It shall be the duty of every market committee to maintain and manage the market, to take all possible steps to prevent adulteration and to promote grading and standardisation of the agricultural produce as may be prescribed, to provide such facilities in the market as the Director may from time to time direct and to enforce in the market area the provisions of this Act, the rules, bye-laws and the conditions of licences granted under the Act in connection with the purchase and sale of the agricultural produce with which it is concerned. It shall also be the duty of every market committee to collect and maintain such information relating to market intelligence as may be prescribed and to supply the same to Government whenever so required.

S.27 Licences, their issue, renewal, suspension, or cancellation etc. and appeals against refusal, suspension etc. of licence.

(1) On establishment of a market, the market committee may, subject to rules made in that behalf, grant or renew a general licence or a special licence for the purpose of any specific transaction or transactions to a trader, general commission agent, broker, weighman, surveyor, warehouseman or any person to operate in the market area or part thereof, or after recording its reasons therefor, refuse to grant or renew any such licence.

(2) Licences may be granted under sub-section (1) in such forms, for such periods, on such terms and conditions and restrictions (including any provision for prohibiting brokers and commission agents from acting in any transaction both as buyer and seller, or on behalf of both the buyer and seller, and provision for regulating advances, if any, to be made to agriculturists by brokers, commission agents or traders and any provision for prescribing the manner in which and the places at which auctions of agricultural produce shall be conducted and the bids made and accepted and places at which weighment and delivery of agricultural produce shall be made in any market area) as may be prescribed or determined by the bye-laws and on payment of fees determined by the market committee within such maxima as may be prescribed.

(3) ..... .....

(4) ..... .....

(5) ..... .....

(6)

S.28 Power to levy fees.

The market committee shall, subject to the provisions of the rules and the maxima and minima from time to time prescribe levy and collect fees on the agricultural produce bought or sold in the market area.

S.33 Purpose for which the fund shall be expended.

Subject to the provisions of section 32, the Market Committee Fund shall be expended for the following purposes, namely-

(1) the acquisition of a site or sites for the market;

(2) the maintenance and improvement of the market;

(3) the construction and repair of buildings necessary for the purposes of such market and for the health, convenience and safety of the persons using it;

(4) to (12) ..... .....

S.35 No trade allowance permissible except as prescribed.

No person shall make or recover any trade allowance, other than an allowance prescribed by rules or bye-laws made under this Act, in any market area in any transaction in respect of agricultural produce specified in respect of the market area under the foregoing provisions of this Act, and no civil court shall, in any suit or proceeding arising out of any such transaction, take into consideration or recognize any trade allowance not so prescribed.

Explanation:

Every deduction other than a deduction on account of deviation from sample when the purchase is made by sample, or on account of a deviation from standard when the purchase is made by reference to a known standard, or on account of a difference between the actual weight of the container and the standard weight, shall be regarded as a trade allowance for the purposes of this section.

S.36 Penalty for contravention of section 6 or 8.

(1) Whoever without holding a licence uses any place in a market area for the purchase or sale of any agricultural produce or operates in a market area or any part thereof and thereby contravenes the provisions of section 6 or 8, on conviction, be punished-

(i) for a first offence, with fine which may extend to five hundred rupees.

(ii) for a second offence of the same nature, with fine which may extend to one thousand rupees, and

(iii) for any subsequent offence of the same nature, with imprisonment which may extend to one month and fine which may extend to one thousand rupees;

Provided that in absence of special and adequate reasons to the contrary mentioned in the judgment of the Court the fine for the first offence shall not be less than one hundred rupees and for the second or any subsequent offence shall not be less than five hundred rupees.

(2) If the holder of a licence contravenes any condition of the licence, he shall, on conviction, be punished with fine which may extend to five hundred rupees.

Provided that in the absence of special and adequate reasons to the contrary mentioned in the judgment of the Court, the fine shall not be less than one hundred rupees.

S.49 Acquisition of land for purposes of this Act.

(1) The State Government may acquire any land within 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.

(2) Such land shall be transferred by the State Government to the market committee on payment by the market 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 Government may, by general or special order, determine and on such transfer the land shall vest in the market committee.

S.63 Provisions of certain laws not to apply.

Nothing contained in the Markets and Fairs Act, 1862 (Bom.IV of 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 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.

S.64 Repeal and savings.

(1) The Bombay Agricultural Produce Markets Act, 1939 (Bom. XXII of 1939) and the Saurashtra Agricultural Produce Markets Act, 1955 (Sau. Act III of 1955), are hereby repealed.

(2) Notwithstanding the repeal of the said Acts-

(i) every market area, market, principal market yard, sub-market yard and market proper declared under any of the Acts so repealed and existing immediately before the commencement of this Act shall be deemed to be declared as such under this Act and the provisions of this Act shall apply thereto;

(ii) .... ....

(iii) any other thing done or action taken (including any appointment, order, notification, rule bye-law made, licence issued, or fee imposed) under any of the Acts so repealed shall be deemed to have been done or taken, under the corresponding provisions of this Act and shall continue in force until it is superseded by anything done or action taken under this Act. "

"GUJARAT AGRICULTURAL PRDOUCE MARKETS RULES, 1965 R.54 Place of sales of agricultural produce in the market:

(1) All agricultural produce arriving into the market shall be brought into the principal market yard or sub-market yard in the first instance and shall not be bought or sold at any place outside such yards:

Provided that ginned cotton, husked paddy, and tobacco, groundnut seeds, split pulses may be sold anywhere in the market area in accordance with the provisions of bye-laws.

(2) Details of all agricultural produce resold in wholesale in the market area shall be reported to the market committee.

(3) Any person who contravenes the provisions of this rule shall, on conviction be punishable with fine which may extend to Rs.500.

R.56 Licensed traders and general commission agents.

(1) Any person desiring to obtain a licence to do business as a trader or a general commission agent in agricultural produce in any market area or part thereof shall make a written application in such form as the market committee may determine to the market committee and shall pay such fees as may be determined by the market committee subject to a maximum of Rs.200.

Provided that ..... ......

(2) ..... .....

(3) ..... .....

(4) ..... .....

(5) ..... ....

(6) No person shall be entitled to do business other than that for which he holds a licence.

R.57 Business in market area prohibited except under licence.

(1) Any person desiring to hold licence as a broker, weighman, measurer, warehouseman, hamal, carting agent, clearing agent, or surveyor or desiring to operate in any other matter in any market area or part thereof shall make a written application in such form as the market committee may determine for licence to the market committee and shall pay such fees as may be determined by the market committee subject to the following maxima namely:-

(2) ..... .....

(3) ..... ...."

"GUJARAT TOWN PLANNING AND URBAN DEVELOPMENT ACT, 1976 An Act to consolidate and amend the law relating to the making and execution of development plans and town planning schemes in the State of Gujarat.

S.12 Contents of draft development plan.

(1) A draft development plan shall generally indicate the manner in which the use of land in the area covered by it shall be regulated and also indicate the manner in which the development therein shall be carried out.

(2) In particular, it shall provide, so far as may be necessary, for all or any of the following matters, namely-

(a) ..... ..... .....

(b) proposals for the reservation of land for public purposes, such as schools, colleges and other educational institutions, medical and public health institutions, markets, social welfare and cultural institutions, theatres and places for public entertainment, public assembly, museums, art galleries, religious buildings, playground, stadiums, open spaces, dairies and for such other purposes as may, from time to time, be specified by the State Government.

(c) to

(j) .... .... ....

(k) proposals for the reservation of land for the purpose of Union, any State, local authority or any other authority or body established by or under any law for the time being in force.

(l) to (o) .... ..... ....

S.17 Power of State Government to sanction draft development plan.

	(1)				.....	.....	.....
 

	(2)				.....	.....	.....
 


 


 


(3)	A

final development plan which has come into force shall, subject to the provisions of this Act, be binding on the area development authority concerned and on all other authorities situated in the area of the development plan.

S.20 Acquisition of land.

(1) The area development authority or any other authority for whose purpose land is designated in the final development plan for any purpose specified in clause (b), clause (d), clause (f), clause (k), clause

(n), clause (o) of sub-section (2) of section 12, may acquire the land either by agreement or under the provisions of the Land Acquisition Act, 1894.

(2) If the land referred to in sub-section (1) is not acquired by agreement within a period of ten years from the date of the coming into force of the final development plan or if proceedings under the Land acquisition At, 1894 are not commenced within such period, the owner or any person interested in the land may serve a notice on the authority concerned requiring it to acquire the land and if within six months from the date of service of such notice the land is not acquired or no steps are commenced for its acquisition, the designation of the land as aforesaid shall be deemed to have lapsed.

S.26 Restriction on development after publication of draft development plan.

On or after the date on which a draft development plan is published in the official Gazette under section 13 in respect of any development area, no person shall carry on any development in any building or in or over any land, within the limits of the said area without the permission in writing of the appropriate authority and without obtaining certificate from the appropriate authority to the effect that development charge and scrutiny fees as leviable under this Act has been paid or that no such charge and scrutiny fees is leviable.

S.107 Compulsory acquisition of land needed for purpose of town planing scheme or development plan.

Land needed for the purposes of a town planning scheme or development plan shall be deemed to be land needed for a public purpose within the meaning of the Land Acquisition Act, 1894.

7. It is fairly clear from bare reading of the above statutory provisions that the Gujarat Agricultural Produce Markets Act, 1963 is a marked improvement upon the old Bombay Agricultural Produce Markets Act, 1939; and while incorporating many amendments, the Gujarat APMC Act of 1963 did not incorporate Sec.4 (2B) of the Bombay APMC Act, 1939. Instead, conjoint reading of Sec.6(2) and Sec.8 of the Gujarat APMC Act makes it clear that restriction on the use of any place for sale or purchase of any notified agricultural produce and restriction upon any person against operating in the market area are imposed by making both the activities subject to regulation under the Act. The provisions of Sec.6 (2) and Sec.8 do not impose a blanket ban on the use of any place for purchase or sale of the agricultural produce or upon any person operating in the market area. The other important provision can be found in Rule 54 of the Gujarat APMC Rules, whereby it is ensured that all agricultural produce arriving into the market shall be brought into the principal market yard or sub-market yard in the first instance and shall not be bought or sold at any place outside such yards. Reading of that Rule in conjunction with the provisions of Sec.6 (2) and Sec.28 makes it clear that while fees is leviable on buying and selling of agricultural produce, anywhere in the market area, all agricultural produce shall have to be brought into the principal market yard in the first instance and details of all agricultural produce resold in wholesale in the market area have to be reported to the Market Committee. Even as all persons operating in the market area are required to obtain a licence and abide by its conditions and trading of all agricultural produce is sought to be regulated by prescribing the place at which all agricultural produce shall be brought in the first instant, there are exceptions as regards items which may be sold anywhere in the market area in accordance with the provisions of bye-laws and in respect of purchase or sale of any agricultural produce between producer and direct consumer. The overall scheme of the Act and the Rules which emerges from composite reading of these provisions is that, while purchase and sale of all notified agricultural produce is sought to be regulated and fees could be levied on all such transactions, necessary licence may be granted to any eligible person to operate in the whole market area or any part thereof. "Market area"

being a much larger area than "market" and resale of agricultural produce in wholesale having been clearly envisaged by the Rules, it cannot be said that the activity of purchase or sale of any agricultural produce could be confined only within a "market"

which consists of principal market yard, sub-market yards and markets proper. On the other hand, although the term "retail sale" is defined in APMC Act of 1963, no provision appears to have been made either in the Act or in the Rules to directly exclude such sale from the operation of the Act. As discussed by Constitution Bench of the Supreme Court, in a different context, in Jan Mohammad Noor Mohamad Bagban v. State of Gujarat [AIR 1966 SC 385]:

"12. .....

There was an express provision made in the Bombay Act 22 of 1939 which excluded from the operation of Sub-s. (2) sale of agricultural produce by way of retail sale. Under the Gujarat Act no such exclusion is expressly prescribed. But, apart from the generality of the provisions made in the Gujarat Act and the omission of retail sales from the scheme of exclusion, the Act and the rules clearly indicate the retail sales are not sought to be regulated by the provisions of the Act. It may be noticed that the State of Gujarat has not framed any new Rules: the Rules framed under the Bombay Act 22 of 1939 remain in operation by virtue of S. 64 and the rules framed under the Bombay Act 22 of 1939 have been framed on the footing that no retail sale is sought to be regulated thereby......"

7.1 As for retail sale of agricultural produce, there seems to have been some provisions in the bye-laws of APMC Surat; and a reference thereto was made by Division Bench in para 35 of the judgment dated 01.02.2002 herein, which reads as under:

"35. Before us, the learned Counsel for the petitioners produced a copy of the bye-laws made by the Market Committee which is known as `Agricultural Produce Market Committee Sub-Rules (upavidhano)". Condition No. 18 refers to shop-keepers, lariwalas or hawkers pertaining to D-Grade. It specifically states that such vendors, hawkers or lariwalas shall purchase from the main market the commodities which are covered under the notification and they shall not sell to any one other than the consumers. It further provides that such vendors, lariwalas or hawkers will not be permitted to sell on one licence at several places at the same time. Thus, even as per the contention raised by the petitioners, which is based on the aforesaid rules, it is clear that the restriction applies only in case when there is transaction between the producer and the trader, but it does not apply to sale where the vendors, lariwalas or hawkers are supplying the commodities to the direct consumers. Restriction is only with regard to sale at one place only. This will apply only to the commodities which are the subject matter of the notification to be dealt with by the Market Committee and not all the commodities mentioned in the Schedule. Reading of the provisions of the Act together with the Rules does not purport to place any restriction upon retail transaction. At the most, it can be said that the retail trader may require to have a licence. But, in absence of the bye laws and the notifications indicating the agricultural produces are covered by the notifications, we find no merit in the contention raised by the petitioner."

The petitioners have not cared to place on record a copy of the bye-laws of APMC, Surat before this Court.

8. Out of the two questions framed by the Apex Court which have to be dealt with by this Court, the second question may be dealt with first, as the answer to that second question may obviate the necessity of dealing with the first. The second question relates to the scope and extent of Sec.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 Sec.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 Sec.78 of the BPMC Act.

9. The first and vexed issue referred to by the Apex Court relates to the perceived or projected conflict between the relevant provisions of the BPMC Act and the APMC Act as far as establishment of market and acquisition of land therefor is concerned. This Court is called upon to examine whether harmonious construction of the relevant provisions of both the enactments is possible. It would be necessary for that purpose to examine and analyse the overall objects and the scheme of the relevant provisions of both the enactments. Taking the older and general BPMC Act first, it is, by its very preamble, intended to provide for establishment of municipal corporations with a view to ensure a better municipal government; and S.63 thereof enumerates obligatory duties of the municipal corporation, as distinguished from discretionary duties enlisted in S.66 of the Act. The construction or acquisition and maintenance of public markets being an obligatory duty of Surat Municipal Corporation under section 63 (1) (12), it has to acquire land or other immovable property for that public purpose. As against that, the later and special APMC Act seeks to consolidate and amend the law relating to regulation of buying and selling of agricultural produce and establishment of markets therefor.

9.1 The concept of "market" in these two legislations appears to be basically and totally different, if the difference in the definitions of "market" and the scheme of relevant provisions in both the enactments are closely examined. The definition of the word "market" in Sec.2 (33) of the BPMC Act is inclusive and includes any place where persons assemble for sale, or exposing for sale, live-stock , food, meat, fish, fruit, vegetables or animals intended for human food. Thus, the definition of "market" is very wide and could take within its fold any premises, building, public place or even an open area, but certainly relates to the physical location of a place where people assemble for purchase and sale of articles of human food. On the other hand, the definition of "market" in Sec.2 (xii) of the APMC Act restricts its connotation to "market which is declared or deemed to be declared as a market under the APMC Act. According to Sec.7 (4) of the APMC Act, "market" shall be deemed to have been established for any market area with effect from the date on which the principal market yard and a market proper are declared for that area. And as for establishing a market under Sec. 7(1), the Director may declare any enclosure, building or locality to be a "principal market yard" or "sub-market yard"

and simultaneously declare an area as "market proper".

Thus, the concept of "market" for the purposes of the APMC Act is restricted to one principal market yard, sub-market yards, if any, and the area to be notified as "market proper". By the respective definitions, "principal market yard"

means an enclosure, building or locality declared or deemed to be declared as such. Similar are the definitions of "sub-market yard" and "market proper". Since the phrases of 'principal market yard" and "sub-market yard"

refer to enclosure or building and Sec.10 of the APMC Act provides for incorporation of "market committee" having perpetual succession and competence to acquire, hold, lease, sell or otherwise transfer property, provision is also made in Sec.49 for acquisition of land needed for the purposes of the APMC Act. These provisions of the APMC Act nowhere envisage establishment of market as defined in the BPMC Act.

9.2 However, confusion is created on account of the wider concept of "market area" as defined in Sec.2 (xiii) of the APMC Act and the other restrictive provisions based thereon. Any area may be declared by the Director to be a "market area" for the purposes of the APMC Act, in respect of all or any of the kinds of agricultural produce, by virtue of Secs.5 and 6 of the APMC Act. Thereafter, notwithstanding anything contained in any law for the time being in force, no place in that area could be used for purchase or sale of any agricultural produce specified in the notification, except in accordance with the provisions of the APMC Act. Sec.8 imposes further restriction for any one operating in the market area by stipulating that no person shall operate in the market area except under and in accordance with the conditions of a licence granted under the Act. A composite reading of all the relevant provisions of the APMC Act, including sections 26, 27, 33 and 36, would clearly show that physical structure of a market under the APMC Act is any enclosure, building or an area declared to be the "principal market yard", the "sub-market yard", and the "market proper", within the "market area"

which is a larger area in which purchase or sale of any specified agricultural produce is regulated and restricted, but not barred under the provisions of the APMC Act. Sec. 28 provides for levy and collection of prescribed fees on the agricultural produce bought or sold in the "market area"; and not particularly sold in the "principal market yard", "sub-market yards", if any, or "markets proper". On the other hand, Rule 49 of the Gujarat Agricultural Produce Markets Rules, 1965 (for short, "the Rules") clearly states that the fees on agricultural produce shall be payable as soon as it is brought into the principal market yard or sub-market yard or market proper or market area, from the purchaser, as may be specified in the bye-laws. Thus, purchase and sale of agricultural produce in the whole of market area, outside the principal market yard, sub-market yard or market proper, subject to obtaining, and abiding by the conditions of, licence and payment of prescribed fees is clearly envisaged in the scheme of the APMC Act and that does not come in conflict with the discharge of obligatory duties of municipal corporation by establishing a "market", in its wider sense, for public convenience.

9.3 The provisions of Sec.63 of the APMC Act may now be examined in light of the above analysis of the scheme of both the enactments. Sec.63 of the APMC Act, in substance, stipulates that nothing contained in any law for the time being in force "relating to the establishment, maintenance or regulation of a market shall apply to a market area or affect in any way the powers of a market committee or the rights of a holder of licence" to set up, establish or continue any place for purchase or sale of any notified agricultural produce in such area. Such non-obstante clause in Sec.63 does not contain a carte blanche so as to exclude from the market area the operation of all the provisions of all other laws. Only the effect of the provisions of Markets and Fairs Act, 1962 or any law relating to establishment, maintenance or regulation of market is sought to be nullified for the market area. For proper application of the so-called non-obstane clause, two conditions have to be fulfilled, viz: (i) the other law must be relating to establishment, maintenance or regulation of market; and (ii) such "market" must be a "market"

within the meaning and definition of APMC Act.

9.4 As seen earlier, the word "market" has a special and distinct meaning for the purpose of APMC Act and it essentially consists of one 'principal market yard', 'sub-market yards', if any, and all the 'markets proper' - all to be declared as such by the Director under section 7. Therefore, the pertinent question would be: "Is BPMC Act a law relating to establishment, maintenance or regulation of any kind of marketing yard, or declaration and regulation of any market proper?" The answer would be in the negative, although a municipal corporation may provide a structure, building, place or area for "market" within the definition of BPMC Act; and may even indirectly regulate or restrict the commerce therein by charging fees and issuing licences for occupation of premises, or hawking in the area comprised in the larger "market area". All such Acts of establilshing a market and charging of fees or issuance of licences in the discharge of its statutory functions by municipal corporation, however, cannot legally override or affect the powers of Market Committee or the rights of a holder of a licence under APMC Act, to set up, establish or continue any place for sale or purchase of any notified agricultural produce within the market area.

9.5 Thus, the relevant provisions of both BPMC Act and APMC Act regulating the markets of notified agricultural produce are complimentary to each other rather than in conflict of each other. Authorities, both under BPMC Act and APMC Act, are legally permitted to earmark physical places, buildings, or structures for a "market" according to its meaning in the respective enactment; and the persons operating in such markets may be required to obtain licences as may be required under either or both legislations, although the purchase and sale involved may be of the same notified agricultural produce in the same market area. Similarly, acquisition of land for the purpose of sub-serving the relevant provisions of BPMC Act, i.e. establishment of a "market" (within the meaning of BPMC Act) and acquisition of land for the purpose of APMC Act, i.e. establishment of a "market" (within the meaning of APMC Act), or for other purposes of the same Act, can legally stand together, without the one amounting to illegal encroachment on the other.

10. Therefore, the first question posed by the Apex Court in its remand order is answered with the proposition that, 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.

11. On the basis of above analysis 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 Sec.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 Sec.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.

12. In the facts and for the reasons discussed hereinabove, the petition is dismissed. Rule is discharged and the interim relief granted herein earlier is vacated.

Sd/-

( D.H.Waghela, J.) Sd/-

( K.A.Puj, J.) Upon pronouncement of the judgment today, learned senior advocate, Mr.S.H.Sanjanwala requested for extending the interim relief granted herein for a further period of eight weeks. There being no justification for granting such prayer, the request is rejected.

Sd/-

( D.H.Waghela, J.) Sd/-

( K.A.Puj, J.) (KMG Thilake) Top

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