1 HIGH COURT OF MADHYA PRADESH BENCH AT INDORE (SB: HON. SHRI JUSTICE PRAKASH SHRIVASTAVA) W.P. No.11765/2010 M/s Neminath Developers, Having its office at 33/3, Dhanwantri Marg, Freeganj, Ujjain Through-Partner, Narendra Jain S/o Chandmal Jain, Age - 48 years, Occ.- Business, R/o - 33/3, Dhanwantri Marg, Freeganj, Ujjain (M.P.) .... Appellant Vs. 1/ State of M.P and 5 others. .... Respondents ------------------------------------------------------------------------------------ Shri A.M. Mathur, learned senior Advocate with Shri Vivek Dalal and Shri Abhinav Dhanodkar Adv., for the appellant. Mrs. Jyoti Tiwari, learned G.A. for respondents no.1 to 3. Shri A.K. Sethi, learned senior Advocate with Shri Harish Joshi Adv., for the respondent no.4. None for respondents no.5 and 6. ------------------------------------------------------------------------------------ Whether approved for reporting : ORDER (Passed on 7.9.2011) 1/ Aggrieved with the minutes of the meeting dated 31/7/2010 (Annexure P/2) and the resolution dated 4.8.2010 (Annexure P/1) passed by the respondent-Ujjain Development Authority (for short “UDA”) deciding to act upon the Scheme No.P-11/98 J.C. Mill, the petitioner has filed the present writ 2 petition, since the case of the petitioner is that the scheme has already lapsed. 2/ The land in question originally belonged to the J.C. Mills Ltd. In Company Petition No.4/97 winding up of the J.C. Mill, in liquidation, was ordered. When the said proceedings were pending, the steps were taken by the concerned respondent for preparation of the Town Development Scheme No.P-11/98 J.C. Mill Yojna under Section 50 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (for short “the Act”). The declaration under Section 50(2) and draft scheme under Section 50(3) were published and thereafter on completion of necessary formalities, the final scheme was published by the notification dated 16.4.1999 under section 50(7) of the Act. As per the notification, the scheme no.P-11/98 came into operation with effect from the date of publication of the notification. In the winding up proceedings before the Company Judge the Government of M.P. had raised objection against the sale notice of the property in question. The petitioner was unanimously declared as highest bidder for purchase of the property in question for consideration of Rs.21,76,00,000/- and the Company Judge, High Court of M.P. Bench at Gwalior, vide order dated 24.1.2007, had confirmed the sale in favour of the petitioner. The petitioner had paid the entire sale consideration between the period 23.2.2007 to 26.2.2007. The possession of the property was given to the petitioner on 19.3.2007 and the sale deed was executed on 25.9.2007. The order of mutation was passed by the Tehsildar Ujjain in favour of the petitioner on 18.2.2008. Thus the 3 petitioner has the undisputed title over the land in question. The scheme No.P-11/98 framed by the UDA was in respect of the entire land of the petitioner. 3/ A meeting of the UDA had taken place on 31.7.2010, vide Annexure P/2, in respect of the incomplete projects in which a recommendation was made for acquiring the land of the petitioner for implementation of the scheme no.P-11/98 and the said recommendation was accepted by the Board of Directors of the respondent-UDA on 4.8.2010, vide Annexure P/1, therefore, the petitioner has approached this Court as according to the petitioner since the respondent-UDA did not implement the scheme no.P-11/98 within the stipulated time, therefore, the said scheme had lapsed under Section 54 of the Act. 4/ The respondent no.4/UDA has filed the reply admitting that the final scheme under Section 50(7) of the Act was published on 16.4.1999 and that in the auction proceedings in the Company Petition, the present petitioner was declared highest bidder and the sale deed was executed in the petitioner's favour, by virtue of which the petitioner has become the owner of the land but they have denied that the scheme no.P-11/98 has lapsed. Their further stand is that the respondent no.4/UDA tried its level best to commence the implementation of the scheme but on account of the pending litigation, the respondent no.4 could not commence the implementation of the scheme, therefore, it can not be said that the respondent no.4/UDA failed to commence the scheme. The other respondents have also supported the stand taken by the 4 respondent no.4/UDA. 5/ Learned counsel appearing for the petitioner submitted that since the respondent no.4/UDA failed to commence the implementation of the scheme and complete the same within the stipulated period, therefore, the scheme has lapsed under Section 54 of the Act, hence the impugned decision contained in Annexure P/1 & P/2 to take further action in pursuance to the scheme, can not be sustained. He has placed reliance upon the Full Bench judgment of this Court in the matter of Indore Development Authority Vs. M/s Shri Ram Builders and others reported in 2009(4) MPLJ 236. He has also raised the plea of res judicata, mala fides and violation of Article 300A of the Constitution. 6/ Learned counsel appearing for the respondent no.4/ UDA submitted that due to the pending litigation and circumstances beyond control, the respondent/UDA could not commence the implementation of the scheme, therefore, it can not be said that there was failure to commence the implementation of the scheme and that the scheme has not lapsed under Section 54 of the Act. He has also opposed the other grounds raised by the petitioner. 7/ I have heard the learned counsel for the parties and perused the record. 8/ It is not in dispute that the petitioner is the owner of the land in question and that the scheme no.P-11/98 is only in respect of the entire land of the petitioner. It is also not in dispute that the final scheme no.P-11/98 under Section 50(7) of the Act was notified on 16.4.1999 and as per the notification, 5 the said scheme had come into operation on the date of publication of the gazette notification. 9/ Section 54 of the Act provides for lapse of scheme and 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 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.” 10/ A bare perusal of the section 54 of the Act indicates that the scheme lapses in following eventualities-(1) If the authority fails to commence implementation of the scheme within a period of two years from the date of notification of the final scheme under Section 50, (2) if 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 of the Act. So far as the proviso to Section 54 of the Act is concerned, in the present case the scheme in question was not under challenge in the earlier litigation and undisputedly no period is required to be excluded under the proviso while calculating the period contained in Section 54 of the Act. 6 11/ The Full Bench of this Court in the matter of Indore Development Authority (supra) after quoting section 54 of the Act has held that :- “33. We have referred to the same as it has been pressed into service to highlight by the learned counsel for the respondents that the scheme is not a scheme in perpetuity. (The legislative intendment is quite clear that the scheme, if it does not commence implementation within two years and complete within five years from the date of the notification of the final scheme, would be treated to have been lapsed. Since the provision was made to avoid hardship to the land owners, therefore, it is to be construed that the proviso added to section 50(4) is in furtherance of the scheme of the Act.” 12/ The Full Bench finally held :- “53. In view of our foregoing analysis, we proceed to enumerate the conclusions in seriatim : i. ********************************* ii. ********************************* iii. ********************************* iv. In the scheme of the Act, inclusive of section 54, there is conception of lapsing of the scheme and, therefore, the scheme cannot be in prepetuity and it can lapse if the action is not completed as provided in the proviso. v. ********************************* vi. ********************************* vii. ********************************* viii.********************************* ix. ********************************* x. ********************************* 13/ The final scheme under Section 50(7) of the Act was published in the gazette on 16.4.1999, therefore, in terms of Section 54 of the Act, its implementation was to be commenced within two years i.e. on or before 15.4.2001. The reply of the respondent no.4/UDA before this Court itself indicates that till the filing of the reply on 25.3.2011 before this 7 Court, no action was taken by the respondent no.4 for the implementation of the scheme. Admittedly the implementation of the scheme had not commenced within a period of two years. More than 12 years have passed after the final publication under Section 50(7) of the Act but its implementation has not commenced, which also leads to the necessary inference of non completion of scheme within five years from the date of final publication of the notification under section 50(7) of the Act. 14/ Counsel for the respondent no.4/UDA has laid emphasis on the word “fails” and submitted that since the litigation relating to the land in question was pending, therefore, the implementation of the scheme did not commence and in such a situation it can not be said that the authority failed to commence the implementation of the scheme. Such a submission is devoid of any merit. Since the respondent-UDA had not taken any steps for the implementation of the scheme within the stipulated period, therefore, there was failure on the part of the UDA to commence the implementation of the scheme. Even otherwise, the objection of the State Government claiming title on the land in question was rejected by the Company Judge, vide order dated 5.11.2004 passed in Company Petition No.4/97. The said order was not challenged further and even thereafter the stipulated period, as contained in Section 54 of the Act, has expired but no steps have been taken to implement the scheme. 15/ In view of the above analysis, it is held that the scheme no.P-11/98 has lapsed under Section 54 of the Act 8 because the respondent-UDA failed to commence its implementation within a period of two years from the date of notification of the final scheme under Section 50 (7) of the Act. Since this court has taken a view that the scheme itself has lapsed, therefore, the other grounds raised by the petitioner need not be examined and are kept open for any future challenge. 16/ The writ petition is accordingly allowed. The impugned proceedings, as contained in Annexure P/1 & P/2 so far as they relate to the impugned scheme no.P-11/98, are set aside. No cost. (PRAKASH SHRIVASTAVA) J u d g e Trilok.