Jabalpur Development
Authority Vs V.V. Shrivastava and another ........
JUDGMENT
G.S. Singhvi, J.
1. Whether Town Planning
Scheme No. 14 (hereinafter described as `the Scheme') framed by appellant -
Jabalpur Development Authority could not be implemented in respect of the land
of the respondents due to the alleged on-compliance of Sections 50 and 56 of
the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (for short, `the
Act') is the question which arises for consideration in this appeal filed
against order dated 17.8.2001 by which learned Single Judge of the Madhya
Pradesh High Court dismissed in limine the second appeal preferred by the
appellant against judgment and decree dated 21.4.1999 passed by IX Additional
District Judge, Jabalpur(hereinafter referred to as, `the lower appellate
Court') in Civil Appeal No.36-A of 1998 whereby the decree passed by 15th Civil
Judge Grade II, Jabalpur (hereinafter referred to as, `the trial Court') in a
suit for declaration and injunction was upheld.
2. The appellant is a
body corporate constituted under Section 38 of the Act. In May 1980, the
appellant decided to prepare the Scheme covering an area of 104.25 hectares
including the land of the respondents comprised in khasra No. 164/2 for
construction of Bus Terminus, Major Road No.4,Housing Scheme and Sites for
offices of the State, Central Governments and Public Corporations. As a follow
up, notification dated 4.7.1980 was issued under Section 50(2) of the Act
whereby the appellant declared its intention to prepare the Scheme. The draft
scheme was published in the Madhya Pradesh Gazette dated 19.6.1981 issued under
Section 50(3) and objections and suggestions were invited from the public. The
Scheme was approved by the appellant on 14.9.1982 and notification dated
29.4.1983 (Ex.D1) was published under Section 50(7).
3. As a sequel to
publication of the Scheme, the appellant issued notice dated 26.8.1983 to
respondent No.1 and called upon him to submit claim for compensation in lieu of
acquisition of khasra No.164/2. Another letter dated31.10.1983 was sent to
respondent No.1 and he was asked to submit some documents necessary for
determination of the amount of compensation. Similar notices were issued to
other land owners, majority of whom agreed to accept the amount of compensation
offered by the appellant. It is not in dispute that after acquiring the major
portion of the land by agreement several multistoried buildings have been
constructed and a housing colony has also been developed.
4. Since the respondents
did not reply to either of the communications sent by the appellant, the State
Government was requested to acquire the land under the Land Acquisition Act,
1894.
5. After almost 9 years
of the publication of notification under Section50(7) of the Act, the
respondents filed suit for declaration and permanent injunction by alleging
that the predecessor of the defendant (appellant herein), namely, Town
Improvement Trust, Jabalpur had made an attempt to acquire their land in 1977
by issuing notification under Section 48 of the Madhya Pradesh Town Improvement
Trust Act, 1960 but after filing of objections, no further action was taken;
that the Scheme has not been framed/published in accordance with the provisions
of the Act; that there was no legal basis or justification to acquire their
land and the same will be deemed to have lapsed because the land was not
acquired within three years from the date of publication of notification Ex.D1.
6. The trial Court vide
its judgment dated 17.11.1997 decreed the suit primarily on the ground that the
defendant (appellant herein) has failed to prove that the draft scheme was
published under Section 50(3) and was approved under Section 50(4).The trial
Court took cognizance of notification - Ex.D1 and observed that even if
compliance of various sub-sections of Section 50 is presumed, the Scheme will
be deemed to have lapsed because the same was not implemented within three
years from the date of its final publication.
7. The appeal preferred
by the appellant was dismissed by the lower appellate Court which expressed its
agreement with the trial Court that the Scheme had not been published as per
the mandate of Section 50 and, in any case, the same will be deemed to have
lapsed because the land was not acquired within three years of the publication
of notification under Section50(7).
8. The appellant
challenged the judgment of the lower appellate Court by filing an appeal under
Section 100 of the Code of Civil Procedure (CPC). It also filed an application
under Order 41 Rule 27 CPC for placing on record documents marked `A' to `H' to
show that the Scheme has already been implemented. A reading of the impugned
order shows that the learned Single Judge took cognizance of the statement made
by the counsel appearing on behalf of the appellant that land of the
respondents has not been acquired in accordance with law and held that the
Courts below had rightly restrained the appellant from interfering with their possession
without following due process of law. The learned Single Judge further held
that Ex.D1 cannot be treated as publication of final Scheme as per the
requirement of Section 50(7) of the Act. The learned Single Judge also observed
that the documents produced along with the application filed under Order 41
Rule 27 CPC do not prove publication of notifications under Section 50(2) and
50(7) of the Act, which are mandatory in character.
9. Along with the
special leave petition out of which the present appeal arises, the appellant
filed I.A. No.2/2001 for placing on record copies of notification dated
4.7.1980 (Annexure-P6) issued under Section 50(2),notification dated 19.6.1981
(Annexure-P7) by which the draft scheme was published under Section 50(3), notice
dated 26.8.1983 (Annexure-P8) by which respondent No.1 was asked to submit his
claim for compensation and letter dated 31.10.1983 (Annexure-P9) by which he
was called upon to submit true copy of sale deed, khasra panchshal duly
certified by Tehsildar, diversion certificate etc., partition deed and khasra
plan of the land.
10. We have heard learned
counsel for the parties and perused the record.
11. In response to the
notice of the special leave petition issued on7.12.2001, the respondents filed
detailed counter affidavit dated 17.3.2002along with copy of the plaint and
statement of DW-1 Kedar Prasad Sharma,who was then working as Section In-Charge
in the establishment of the appellant. The appellant filed rejoinder affidavit
dated 10.4.2002 along with copy of the written statement. An additional counter
affidavit dated21.9.2002 was filed by respondent No.1 to which supplementary affidavit
dated 27.10.2002 was filed on behalf of the appellant. The respondents then filed
application dated 15.1.2003 for placing on record additional documents to which
counter affidavit was filed by the appellant on 14.2.2003. After grant of
leave, the respondents filed application dated 12.6.2009 for placing on record
copies of minutes of the meeting of the appellant held on10.11.1993
(Annexure-R7), letter dated 16.5.2005 (Annexure-R8) sent by Joint Director,
Nagar Tatha Gram Nivesh, Jabalpur to the Chief Executive Officer of the
appellant, letter dated 16.12.2005 (Annexure-R9) sent by the Land Acquisition
Officer to Shri Brij Bihari Nagaria, general power of attorney holder for Shri
Najuk Jain, Shri Jambo Jain and Shri Jagat Jain,letter dated 26.12.1994 sent by
the State Government to Commissioner, Jabalpur Division and Chairman of the
appellant and details of the Scheme framed under the Act (Annexure-R9). Lastly,
I.A. No. 11/2009 was filed on behalf of the appellant for filing additional
affidavit of Shri G.N. Singh, Land Acquisition Collector along with letter
dated 25.7.2007 sent by the State Government to the Chief Executive Officer of
the appellant.
12. We have made a
mention of these pleadings and documents to show that after the judgment of the
trial Court, the lower appellate Court and the High Court, the parties have
exchanged correspondence and apparently conflicting communications have been
issued by the functionaries of the Government and the appellant. However, it is
not necessary to consider additional pleadings and documents because we are
convicted that the High Court committed an error by not entertaining the
application filed by the appellant under Order 41 Rule 27 CPC for producing
additional evidence to show that the possession of the major portion of the
land covered by the Scheme was taken after paying compensation to the land
owners and the Scheme has been implemented.
13. We are also of the
view that the Courts below have gravely erred in holding that Ex.D1 dated
29.4.1983 is a notification issued under Section50(4) and the final Scheme was
not published as per the requirement of Section 50(7). A perusal of Ex.D1, copy
of which has been placed on the record of this appeal as Annexure-P2 shows that
this is the notification by which the final scheme was published in Madhya
Pradesh Gazette dated29.4.1983. Reference to Section 50(4) has been made in
this notification to signify that the Scheme was approved by the appellant. All
the Courts have misinterpreted this notification as a notification issued under
Section 50(4).That apart, a conjoint reading of the notifications -
Annexures-P6 dated4.7.1980, P7 dated 19.6.1981 and P2 dated 29.4.1983 makes it
clear that the Scheme was finalized after complying with the mandate of various
sub-sections of Section 50 of the Act.
14. In the result, the
appeal is allowed. The impugned order is set aside and the matter is remitted
to the High Court with the direction that the second appeal filed by the
appellant be decided afresh after giving opportunity of hearing to the parties.
The parties may, if so advised, file applications under Order 41 Rule 27 CPC
for permission to adduce additional evidence. The High Court shall first
dispose of the application already filed by the appellant along with the second
appeal and the applications which may be filed hereafter by either party.
Thereafter, the High Court shall frame substantial questions of law as per the
mandate of Section 100 CPC and decide the appeal with reference to those
questions of law.
.............................J.
[G.S. Singhvi]
..............................J.
[Asok Kumar Ganguly]
New
Delhi,
October
19, 2010.
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