Madhya Pradesh High Court
M/S Gsb Construction Pvt.Ltd. vs Jabalpur Devlopment Authy on 9 April, 2013
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Writ Petition No.4430/2008
M/s. GSB Construction Pvt. Ltd..............................................................Petitioner
Versus
Jabalpur Development Authority and another..................................Respondents
For the petitioner: Shri A. S. Jha, Senior Advocate, with Shri Dinesh
Upadhyay, Advocate.
For respondent : Shri Sanjay K. Agrawal with Shri Amit Seth, Advocates.
no.1
For respondent : Shri Rahul Jain, Deputy Advocate General.
No.2
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Present: HONOURABLE SHRI JUSTICE AJIT SINGH
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ORDER
(9.4.2013) The following order of the Court was delivered by :
Ajit Singh, J. As the name suggests, the petitioner is involved in construction business whereas respondent no.1 is the Jabalpur Development Authority (in short, "the Authority") established under section 38 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (in short, "the Adhiniyam"). By virtue of section 39 the Authority is a body corporate and has perpetual succession and a common seal, with power to acquire and hold property both moveable and immovable.
2. The Authority prepared a Town Development Scheme popularly known as "Scheme No.14" for the area 104.215 hectares of land. The Scheme was finally published vide notification dated 29.4.1983 as required under section 50(4) of the Adhiniyam. From the date of notification, the Authority is in possession of 52.117 hectares whereas rest of the land has been in possession of the owners. On 10.11.1993 the Authority resolved to 2 retain 52.117 hectares and to acquire 300 square feet of land each near Regional Bus Stand and Main Road.
3. The petitioner purchased 26,192 square feet of land bearing Khasra nos.201/1 and 204/8 by a registered sale deed dated 13.4.2007 from its owners. The land was part of 104.215 hectares notified for Scheme No.14 but it was never in possession of the Authority. On 4.8.2007 the petitioner applied for No Objection Certificate (NOC) for using the land. The Authority vide communication dated 6.9.2007, Annexure P7, declined to grant NOC on the ground that the land falls under the Scheme. This communication of the Authority is based on letter dated 25.7.2007, Annexure P9, of the State Government informing the Authority that the Scheme cannot be treated as lapsed even if it is not implemented within the stipulated period and, therefore, NOC for using the land be not granted. It is in this background, the petitioner has prayed for quashing of communication dated 6.9.2007, Annexure P7, and letter dated 25.7.2007, Annexure P9.
4. It is argued on behalf of the petitioner that section 54 of the Adhiniyam clearly provides that when the Authority fails to complete the implementation of the Scheme within a period of five years from the date of notification of the final Scheme under section 50, it on the expiration of the said period, lapses and, therefore, the communication dated 6.9.2007, Annexure P7, and letter dated 25.7.2007, Annexure P9, cannot be sustained. The learned counsel for the Authority, on the other hand, has argued that since part of the Scheme has been implemented, the Scheme has not lapsed. On this argument, he has defended the action of the Authority declining to grant NOC to the petitioner.
5. Section 54 of the Adhiniyam reads as under:
54. Lapse of scheme.- If the Town and Country Development Authority fails to commence implementation of the town development scheme within a period of two years or complete its implementation within a period of five years from the date of notification of the final scheme under Section 50, it shall, on expiration of the said period of two years or five years, as the case may be, lapse :
Provided that, if a dispute between the authority and parties, if any, aggrieved by such scheme, is brought before a 3 Court or Tribunal of competent jurisdiction, for consideration, the period for which such dispute pending before such Court or Tribunal shall not be reckoned for determination of the lapse of the scheme.
6. A bare reading of the above quoted section 54 clearly states that if the Authority fails to commence implementation of the Town Development Scheme within a period of two years or complete its implementation within a period of five years from the date of notification of the final Scheme under section 50 it shall, on expiration of the said period of two years or five years as the case may be, lapse which is automatic. The submission of the Authority that since part of the Scheme has been implemented, it has not lapsed cannot be accepted because section 54 does not contemplate that if part of the Scheme has been implemented, the part which has not been implemented within the statutory period will not lapse. The Scheme should stand lapsed to the extent it has not been implemented. It is further clear that the Scheme which has lapsed relates primarily to private land which cannot also be acquired now because of the bar under section 56 of the Adhiniyam which provides that the Authority will not proceed to acquire by agreement the land after three years from the date of final publication of the Scheme. Since the Scheme has lapsed, no NOC is required and the petitioner is free to use the land in accordance with law. In the result, communication dated 6.9.2007, Annexure P7, and letter dated 25.7.2007, Annexure P9, are quashed.
7. The petition is allowed with costs of Rs.2,000/-.
JUDGE ps