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 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 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 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 ap