Jabalpur Development Authority vs V.V. Shrivastava & Anr

Jabalpur Development Authority ........ Appellant

Versus

V.V. Shrivastava and another ........ Respondents

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

non-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 2

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

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 dated

31.10.1983 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 Section

50(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 4

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 5

acquired within three years of the publication of notification under Section

50(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. 6

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 on

7.12.2001, the respondents filed detailed counter affidavit dated 17.3.2002

along 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 dated

21.9.2002 was filed by respondent No.1 to which supplementary affidavit

dated 27.10.2002 was filed on behalf of the appellant. The respondents then 7

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 on

10.11.1993 (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 8

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 Section

50(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 dated

29.4.1983. 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 dated

4.7.1980, P7 dated 19.6.1981 and P2 dated 29.4.1983 makes it clear that the 9

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.