Gujarat High Court
Ognaj Park Plots Owners Association vs State Of Gujarat & 2 on 7 September, 2015
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/6752/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6752 of 2012
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OGNAJ PARK PLOTS OWNERS ASSOCIATION,
THROUGH CHAIRMAN....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR DK PUJ, ADVOCATE for Petitioner(s) No. 1
MR MANAN MEHTA, AGP for the Respondent Nos.1 & 3
MR RR MARSHALL, SR. COUNSEL, with MR ADIL R MIRZA,
ADVOCATE for Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 07/09/2015
ORAL ORDER
(1) Heard learned counsel for the respective parties.
(2) By way of this petition under Article 226 of the Constitution of India, the petitioner Association has prayed for the following reliefs:
"(A) YOUR LORDSHIP may be pleased to issue a writ of mandamus, or any other appropriate writ, order and/or direction, in the nature of mandamus, setting aside the Draft Town Planning Scheme No.236 (LilapurOgnaj) submitted by the respondent No.2 to the State Government for sanction, as being illegal, arbitrary, contrary to the facts and evidence on record, contrary to the settle provisions of law and also contrary to the provisions contained in the Gujarat town Planning & Urban Development Act, 1976 and Rules framed thereunder and also against the principles of natural justice and equality before law;
(B) YOUR LORDSHIP may be pleased to direct the respondent No.2 to submit the Revised Draft Town Planning Scheme No.236 (LilapurOgnaj) under Section 48(1) of the Act on the line of the proposals already finalized by it as per the new plan i.e. Plan No.2 produced at AnnexureG to this petition, after considering the objections and suggestions made by the petitioner pursuant to the land owners meeting and also after taking into consideration the situation as per the actual pre Page 1 of 20 HC-NIC Page 1 of 20 Created On Fri Sep 11 00:51:57 IST 2015 C/SCA/6752/2012 ORDER existing development practice in other cities under the Urban Development Department and YOUR LORDSHIP may further be pleased to restrain the respondent State Government from granting sanction under Section 48(2) of the Act to the draft Town Planning Scheme No.236 (LilapurOgnaj) submitted by the respondent No.2, in the interest of justice;
(C) Pending admission hearing and till final disposal of this petition, Your Lordships may be pleased to restrain respondent No.1State from giving any sanction to the Draft Town Planning Scheme No.236 (LilapurOgnaj);
(D) YOUR LORDSHIP may be pleased to grant such other and further reliefs as may be deemed fit, just, proper and necessary in the interest of justice."
(3) The facts of the case which emerge from the record of the petition are as under:
(4) That the petitionerAssociation claiming to be a NonTrading Corporation, registered under the provisions of the Bombay Non Trading Corporation Act, 1959 (now repealed). It is the say of the petitioner Association that its members are having lands situated at Revenue Survey Nos.120, 136, 138, 139, 140 and other adjoining lands as described in Paragraph No.3.1 of the petition and are situated in the area of Town Planning SchemeLilapurOgnaj. It is an admitted position that the scheme in question at present is submitted by respondent No.2 authority to the State Government for its sanction under Section 48(1) of the Gujarat Town Planning & Urban Development Act, 1976 (the Act), that is to say that respondent No.2 has submitted the Page 2 of 20 HC-NIC Page 2 of 20 Created On Fri Sep 11 00:51:57 IST 2015 C/SCA/6752/2012 ORDER Draft Town Planning Scheme for its sanction under Section 48(1) of the Act and at this stage the present petition is filed.
(5) Following are the relevant dates of the said scheme : (i) intention to prepare the said Draft Town Planning Scheme was declared on 07.04.2011; (ii) owners' meeting was held on 19.11.2011; AND (iii) on 21.03.2012 the said scheme is submitted to the State Government under Section 48(1) of the Act.
(6) Learned advocate for the petitioner has raised the following contentions:
i) That after declaration of intention to prepare the scheme, as provided under Section 41 of the Act, respondent No.2 authority called and held the owners' meeting, as envisaged under Rule 17 of the Gujarat Town Planning & Urban Development Rules, 1979 (the Rules);
ii) that the authority proposed the Draft Town Planning Scheme as per map (at Page 67 AnnexureE of the paper book) and that the petitionerAssociation objected to the said proposal and participated in the owners' meeting;Page 3 of 20
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iii)that on consideration of the objections the proposal qua the members of the petitionerAssociation was modified and the plan came to be published, which is annexed at Page 75AnnexureG of the paper book, as envisaged under Section 42(1) of the Act;
iv) That as the said proposal was more or less accepted, no formal objections were raised and respondent No.2 authority was communicated by the petitioner Association, through its chairman on 17.03.2012 (Pg. 76 of the paperbook);
v) that behind the back respondent No.2 passed resolution dated 12.03.2012 wherein substantial modifications have been made while submitting the scheme, as envisaged under Section 48(1) of the Act;
vi) that as per Section 47 of the Act respondent No.2 authority cannot make such modifications and such modifications are made and substantial changes have been made without giving any opportunity to the petitionerAssociation and therefore the provisions of Section 42 of the Act read Page 4 of 20 HC-NIC Page 4 of 20 Created On Fri Sep 11 00:51:57 IST 2015 C/SCA/6752/2012 ORDER with Rules 17 and 18 of the Rules would become redundant;
vii)that if the scheme is sanctioned as it is, the same would create practical difficulties at site as the N.A. permission was granted in the year 1990 and on same part of the land construction has also come up and therefore the scheme is bad and illegal;
viii) that as there are provisions of roads and other reservation / water body the petitionerAssociation can object to the scheme only at this stage, as once it is sanctioned under Section 48 of the Act by virtue of the provisions of Section 48A of the Act, the same would be as good as sanctioned scheme qua such reservation and therefore it cannot be said that petition is premature; AND
ix) Lastly it was contended that there are certain circulars of the State Government which provide that in case of individual plotholders such allocation cannot be made.
Page 5 of 20HC-NIC Page 5 of 20 Created On Fri Sep 11 00:51:57 IST 2015 C/SCA/6752/2012 ORDER (7) Per contra, learned Senior Counsel for respondent No.2 authority has contended that the petitionerAssociation has no right to challenge the whole scheme. It is contended that the entire scheme has come to a standstill and in fact Civil Application No.839 of 2013 has been filed by inhabitants of the scheme area, which is pending before this Court in this petition itself, who desire that the scheme should go forward.
Reliance is placed upon the affidavitin reply and it was contended by learned Senior Counsel for respondent No.2 authority that the petition is premature as still the said scheme is at draft stage and therefore no interference is called for by this Court. Reliance is also placed upon the judgments of Division Bench in the case of Chhaganbhai Motibhai Bhoi & Anr. Vs. Anand Area Development Authority & Anr., 1989 (2) G.L.H. 488 as well as in the case of Hoshang Ardeshar Ichchhaporia Vs. State of Gujarat in Writ Petition (PIL) No.269 of 2013 dated 23.09.2014.
Learned Senior Counsel for respondent No.2 authority further contended that as far as the extent of deduction is concerned, the Page 6 of 20 HC-NIC Page 6 of 20 Created On Fri Sep 11 00:51:57 IST 2015 C/SCA/6752/2012 ORDER same is also considered by the Apex Court in the case of Ahmedabad Municipal Corporation & Anr. Vs. Ahmedabad Green Belt Khedut Mandal & Ors., (2014) 7 S.C.C. 357 and it was contended that the petition is premature, meritless and deserves to be dismissed.
(8) Learned Assistant Government Pleader for respondent Nos.1 and 3 has adopted the arguments made by the learned Senior Counsel for No.2 authority.
No further and or other submissions are raised on behalf of learned counsel for the respective parties.
(9) Before reverting to the rival submissions made by the respective counsel, it would be appropriate to refer to the relevant provisions of the Gujarat Town Planning & Urban Development Act, 1976. ChapterV thereof deals with the Town Planning Scheme. Section 40 of the Act provides for making and contents of a town planning scheme. Section 41 of the Act gives power for making and publication of the Draft Town Planning Scheme. Other provisions, relevant for the present purpose i.e. Sections 47 and 48 of the Act, are as under:
Page 7 of 20HC-NIC Page 7 of 20 Created On Fri Sep 11 00:51:57 IST 2015 C/SCA/6752/2012 ORDER "Sec. 47 Objections to draft scheme to be considered:
If within one month from the date of publication of a draft scheme, any person affected by such scheme communicates in writing to the appropriate authority, any objections relating to such scheme, the appropriate authority shall consider such objections and may at any time before submitting the draft scheme to the State Government as hereinafter provided modify such scheme as it thinks fit.
Sec.48 Power of State Government to sanction draft scheme (1) The appropriate authority shall, within 1[Four] months from the date of the publication of the draft scheme in the Official Gazette, submit the draft scheme with any modifications that may have been made therein under section 47 together with the objections which may have been communicated to it, to the State Government for sanction.
(2) If the State Government sanctions such scheme, it shall in such may thinks fit, the State Government may, within 2[six] months from the date of its receipt, by notification, sanction such scheme with or without modifications or subject to such conditions as it may thinks fit to impose or refuse to sanction it. (3) If the State Government sanctions such scheme, it shall in such notification state at what place and time the draft scheme shall be open for the inspection of the public."
(10) Relevant Rules 16 and 17 of the Gujarat Town Planning & Urban Development Rules, 1979 are also as under:
"16. Publication of declaration under Section 41. -
(1) The declaration under subsection (1) of section 41 shall be published in the Official Gazette and shall also be published by means of an advertisement in one or more Gujarati newspapers circulating within the jurisdiction of the appropriate authority. The appropriate authority shall cause copies of such advertisement to be posted in the prominent places in or near the area included in the scheme and at the head office of the appropriate authority.
(2)Every advertisement published under subrule (1) shall contain the resolution of the appropriate authority in respect of the declaration under section 41 and shall announce that a copy of the plan of the area proposed to be included in the town planning scheme and the surrounding land is kept open for in section of the public at the head office of the appropriate authority during office hours.
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17.Meeting of owners and framing of tentative proposals.
- For the purpose of making the draft scheme under section 42 the appropriate authority shall calla meeting or meetings of the owners of the lands included in a town planning scheme by a public notice as well as by individual notice to every, owner whose address is known to the appropriate authority and explain in such meeting the tentative proposals of the draft scheme for eliciting public opinion and suggestions on the said suggestions as made and objections raised on the proposals for making the draft scheme under Section 42."
(11) As the dates are not in dispute, on bare perusal of the provisions of the Act as observed hereinabove, it clearly transpires that Section 41 of the Act is the first step, which an appropriate authority can take up by making a declaration to prepare a Town Planning Scheme. Section 42 of the Act clearly provides that after intention to make a Town Planning Scheme under Section 41 of the Act, appropriate authority shall make a Draft Scheme, the same is to be published, as provided including in the Official Gazette. Section 47 of the Act clearly provides that objections be considered for the Draft Scheme and Section 48(1) of the Act provides that after considering the objections, if any, received and after following the procedure as laid down, right from Section 41 of the Act onwards, the appropriate authority has to publish a Draft Scheme and has to forward the same to the State Government for its sanction. It may be Page 9 of 20 HC-NIC Page 9 of 20 Created On Fri Sep 11 00:51:57 IST 2015 C/SCA/6752/2012 ORDER noted that the petition is filed at this stage only.
(12) Considering the arguments made by the learned advocate for the petitioner, it appears that at the stage of Section 41 of the Act the petitioner filed their objections and have also attended the owners' meeting. It appears that thereafter the appropriate authority took a decision and published a scheme under Section 42(1) of the Act, which is at Page 75 of the paper book. It may be true that the same was more or less acceptable as per communication dated 17.03.2012. It is submitted that the appropriate authority passed resolution dated 12.03.2012, which is also forming part of the record of this petition. The fact however remains that respondent No.2 authority has submitted the scheme to the State Government for its sanction under Section 48(1) of the Act i.e. the scheme is at Draft Scheme stage and therefore the contentions raised by the learned Senior Counsel for respondent No.2 authority that the petition is premature deserves to be upheld.
(13) The contention raised by the learned advocate for the petitioner that there are Page 10 of 20 HC-NIC Page 10 of 20 Created On Fri Sep 11 00:51:57 IST 2015 C/SCA/6752/2012 ORDER some provisions in the Draft Town Planning Scheme which would effect the rights of the petitionerAssociation by virtue of Section 48A of the Act if considered at this stage no doubt assumes some significance but even considering the same the petition is premature as the same can be taken care of by the State Government while sanctioning the Draft Town Planning Scheme and before issuing any notification under Section 48(2) of the Act.
(14) The contention raised by the learned advocate for the petitionerAssociation that the authority cannot make any change after the owners' meeting and that the same is done at the back of the petitioner Association deserves to be negatived. The authority has within its jurisdiction and the authority to consider the objections and after proper examination of the proposals of the scheme take appropriate decision while publishing draft scheme under Section 48(1) of the Act.
As indicative from its name draft scheme is only tentative in nature and subject to its sanction by the State Government, as provided under Section 48(2) of the Act. The Page 11 of 20 HC-NIC Page 11 of 20 Created On Fri Sep 11 00:51:57 IST 2015 C/SCA/6752/2012 ORDER scheme of the Act and the Rules provide for right of the owner of a plot to file his/her objections at every stages. As decided by the Division Bench of this Court all the three judgments referred to above, the present petition is premature. Grant of N.A. permission to the petitionerAssociation in 1990 would not mean that no town planning scheme can be proposed and sanctioned in accordance with the provisions of the Act and the Rules and that would not render the scheme bad and illegal. On the contrary, the scheme of the Act provides that the proposal of a draft town planning scheme passes through the whole gamut of procedure and has to pass the litmus test before town planning officer and twice before the State Government.
Though the learned counsel for the petitionerAssociation has contended about some circular no such circular is on record as contended. The record of the petition clearly reveals that respondent No.2 authority has scrupulously followed the procedure as provided under the Act the and the Rules.
(15) Even Division Bench of this Court in the case of Chhaganbhai Motibhai Bhoi & Anr.
Page 12 of 20HC-NIC Page 12 of 20 Created On Fri Sep 11 00:51:57 IST 2015 C/SCA/6752/2012 ORDER (supra) has considered the whole scheme of the Act and has also considered whole procedure, which is entailed before the preliminary scheme is sanctioned.
(16) Division Bench of this Court in Hoshang Ardeshar Ichchhaporia (supra) has also considered the scheme of the Act and the relevant Rules and observed thus (at Paragraph Nos.2223):
"22. To a certain extent, we are at one with Mr.Vyas, the learned advocate appearing on behalf of the Surat Urban Development Authority that this petition should be rejected solely on the ground that it is premature. In Sultanabad Bhimpore (supra) the draft scheme had already been approved by the State Government and a stage for appointing a Town Planner Officer, under Section50 of the Act, 1976 had reached. It was at that stage that the petitioner filed a writ petition in public interest substantially on the ground that the entire village was against the proposed Town Planning Scheme. The Division Bench, explained the various provisions of the Act, including the rules as under
: &..The scheme as on today has reached upto the stage of Section 50 i.e. appointment of town planning officer.
Section 50. Appointment of Town Planning Officer. (1) Within one month from the date on which the date on which the sanction of the State Government to a draft scheme is notified in the Official Gazette, the State government shall appoint a Town Planning Officer possessing such qualifications as may be prescribed, for the purpose of such scheme and provide him with such number of officers and staff as may be considered necessary and his duties shall be as hereinafter provided.
[Provided that the State Government may, on the request made by the Appropriate Authority, appoint a Town Planning Officer within one month from the date of the publication of Draft Scheme under subsection (1) of Section 42] (2) The State Government may, if it thinks fit, at any time, remove, on the ground of incompetence or misconduct or any other good and sufficient reason a Town Planning Page 13 of 20 HC-NIC Page 13 of 20 Created On Fri Sep 11 00:51:57 IST 2015 C/SCA/6752/2012 ORDER Officer appointed under this section and shall forthwith appoint another person in his place and any proceeding pending before Town Planning Officer immediately before the date of his removal shall be continued and disposed of by the new Town Planning Officer appointed in his place.
Provided that no Town Planning Officer shall be removed under this subsection except after an inquiry in which he has been informed of the charges against him and a reasonable opportunity of being heard in respect of those charges has been given to him.
(3) Subject to the provisions of subsection(2), a Town Planning Officer appointed under subsection (1) for the purpose of any scheme shall cease to hold office with effect from the date on which the final scheme is sanctioned under section 65.
The sixth step will be drawing of a preliminary scheme by the Town Planning Officer under Section 52, Clause (1) of the Act, which reads under:
Section. 52 Contents of preliminary and final scheme.
(1) In a preliminary scheme, the Town Planning Officer shall,
(i) after giving notice I the prescribed manner and in the prescribed form to the persons affected by the scheme, define and demarcate the areas allotted to, or reserved for, any public purpose, or for a purpose of the appropriate authority and the final plots;
(ii) after giving notice as aforesaid, determine in a case in which a final plot is to be allotted to persons in ownership in common, the shares of such persons;
(iii) provide for the total or partial transfer of any right in an original plot to a final plot or provide for the transfer of any right in an original plot in accordance with provision of section 81.
(iv) determine the period within which the works provided in the scheme shall be completed by the appropriate authority.
Thereafter, the town planning officer will have to serve a notice in FormH as provided under Rule 26, Clause (1) of the Rules. Rule 26 reads as under:
Rule 26. Procedure to be followed by Town Planning Officer under section 51 and under subsection (1) of section 52. Page 14 of 20 HC-NIC Page 14 of 20 Created On Fri Sep 11 00:51:57 IST 2015 C/SCA/6752/2012 ORDER (1) For the purpose of preparing the preliminary scheme and final scheme the Town Planning officer shall given notice in form H of the date on which he will commence his duties and shall state the in the time, as provided in Rule 37 within which the owner of any property or right which is injuriously affected by the making of a Town Planning Scheme shall be entitled under section 82 to make a claim before him. Such notice shall be published under the Official Gazette and in one or more Gujarat newspapers circulating within the area of the appropriate authority and shall be pasted in prominent places at or near the areas comprised in the scheme and at the office of the Town Planning Officer.
(2) The Town Planning Officer shall after the date fixed in the notice given under subrule (1), continue to carry on his duties as far possible on working days and during working hours.
(3) The Town Planning Officer shall, before proceeding to deal with the matters specified in section 52, publish a notice in Form H in the Official Gazette and in one or more Gujarat newspaper circulating within the area of the appropriate authority. Such notice shall specify the matters which are proposed to be decided by the Town Planning Officer and State that all persons who are interested in the plots or are affected by any of the matters specified in the notice shall communicate in writing their objections to the Town Planning Officer within a period of [fifteen days in the cases provided in the proviso to subrule (2) of Rule 18 of the rules] from the publication of notice in the Official Gazette. Such notice shall also be posted at the office of the Town Planning Officer and of the appropriate authority and the substance of such notice shall be pasted at convenient places in the said locality.
(4) The Town Planning Officer shall give every person interested in any land affected by any particular of the scheme sufficient opportunity of stating their views and shall not give any decision till he has duly considered their representations if any.
(5) If during the proceedings, it appears to the Town Planning Officer that there are conflicting claims or any difference of opinion with regard to any part of the scheme, the Town Planning Officer shall record a brief minute in his own hand setting out the points at issue and the necessary particulars, and shall give a decision with the reasons therefore. All such minutes shall be appended to the scheme.
(6) The Town Planning Officer shall record and enter in the scheme every decision given by him. The calculations Page 15 of 20 HC-NIC Page 15 of 20 Created On Fri Sep 11 00:51:57 IST 2015 C/SCA/6752/2012 ORDER and estimates shall be set out and recorded in Form F, Form G and in other statements as may be prepared by the Town Planning Officer.
(7) The scheme as drawn up by the Town Planning Officer shall include particulars specified in rule 21 read with section 52.
(8) The component parts of the scheme shall be so arranged that they may be readily referred to in connection with the map and plans.
(9) The Town Planning Officer shall publish the scheme drawn up by him by notification in the Official Gazette in Form I and also by means of an advertisement in one or more local newspaper announcing that the scheme shall be open for the inspection of the public during office hours at his office and communicate forthwith the decisions taken by him in respect of each plot to the owner or person interest by the issue of the requisite extract from the scheme in Form J and Form K as the case may be. The Town Planning Officer shall also inform the State Government about the publication of final scheme.
Thereafter, a public notice would be published in a newspaper as well as in the Official Gazette in terms of the Rule 26, Clause (3).
Under Rule 26, Clause (4), the Town Planning Officer will give opportunity to the person interested in any land affected by any particular of the scheme. The Town Planning Officer thereafter shall publish the scheme under Section 52, Clause (1), read with Rule 26, Clause (9) of the Rules.
The seventh step in the process will be the submission of the preliminary scheme by the Town Planning Officer to the State Government under Section 64 of the Act.
Section 64. Submission of preliminary scheme and final scheme to Government;
The Town Planning Officer shall submit to the State Government for sanction the preliminary scheme also before the final scheme is submitted to the State Government under subsection (2) of section 52, together with a copy of his decision under section 53.
The last and the final step would be sanctioning of the scheme by the State Government under Section 65 of the Act.
Section 65. Power of Government to sanction or refuse to sanction the scheme and effect of sanction:
Page 16 of 20HC-NIC Page 16 of 20 Created On Fri Sep 11 00:51:57 IST 2015 C/SCA/6752/2012 ORDER (1) On receipt of the preliminary scheme or, as the case may be, the final scheme, the State Government may (a) in case of a preliminary scheme, within a period of two months from the date of its receipt, and (b) in the case of a final scheme, within a period of three months from the date of its receipt, by notification, sanction the preliminary scheme or the final scheme or result to give sanction, provided that in sanctioning any such scheme, the State Government may make such modifications as may, in its opinion, be necessary for the purpose of correcting an error, irregularly or informality.
(2) Where the State Government sanctions the preliminary scheme or the final scheme, it shall state in the notification
(a) a place at which the scheme shall be kept open for inspection by public, and
(b) a date (xxxx) in which all the liabilities created by the scheme shall come into force:
(xxxx) Deleted by Guj. Act No. 11 of 2002, the words (which shall not be less than one month after the date of the publication of the notification) Provided that the State Government may from time to time such date, by notification, by such period, not exceeding three months time, as it thinks fit.
(3) On and after the date fixed in such notification, the preliminary scheme or the final scheme, as the case may be, shall have effect as if it were enacted in this Act.
The purpose of giving a fair idea of the steps aforenoted which are yet to be undertaken is to indicate that at every stage an opportunity will be given to the petitioners and to other persons likely to be affected by the scheme and it would be open for such persons to lodge their objections and suggestions which the appropriate authority is otherwise obliged to consider.
Thus, we are convinced by the submission of Mr.Prashant Desai, the learned senior advocate appearing on behalf of the Corporation that the petition has been filed at a premature stage and should not be entertained.
23. However, leaving apart the position of law, we are of the view that ultimately it is for the State Government to apply its mind and take an appropriate decision. Without citing it as a precedent, we permit the petitioner, who is the Deputy Sarpanch of the Village and has filed this petition in public interest, to invite the attention of the State Government to the three major issues (1) substantial inclusion of Gamtal land, (2) inclusion of old burial Page 17 of 20 HC-NIC Page 17 of 20 Created On Fri Sep 11 00:51:57 IST 2015 C/SCA/6752/2012 ORDER ground and (3) leaving aside vast parcel of private land in the name of Green City, within a period of fortnight from today in the form of a representation. If the State Government receives such representation, then the same should be considered and dealt with appropriately in accordance with law. We make it clear that we have otherwise not gone into the merits of the objections raised by the people of the village including the reasonableness and feasibility of the proposed Town Planning Scheme. We leave it for the State Government to consider the same appropriately in accordance with law."
(17) In any event as the Draft Scheme is pending before the State Government for its sanction under Section 48 of the Act, this Court should not examine feasibility of the Draft Scheme in question and therefore the petition is premature. In similar case the Division Bench of this Court in the case of Naranbhai Lallubhai Patel Vs. B.S.Oza, 1988 (1) G.L.R. 646 has taken a similar view that the petition is premature.
Even considering the affidavitinreply filed by respondent No.2 authority and considering the scheme of the Act as such except the land which is forming part of any reservation / allocation, which is provided under Section 48(A) of the Act for rest of the land, which is forming part of the majority of the land of the petitioner Association even if the Draft Scheme is sanctioned thereafter Town Planning Officer shall be appointed, as provided under Page 18 of 20 HC-NIC Page 18 of 20 Created On Fri Sep 11 00:51:57 IST 2015 C/SCA/6752/2012 ORDER Section 50 of the Act, who shall give opportunity to the petitionerAssociation, as envisaged under the relevant Rules, more particularly Rule 26 of the Rules before even preparing the preliminary scheme.
(18) Even considering one of the contentions that there are certain circulars of the State Government, which does not permit any direction as has been given by respondent No.2 is without any basis, as no such circular has been relied upon by the learned advocate for the petitioner, however, as far as some land of the petitionerAssociation, which may be affected by the proposal of the scheme, which is at Draft Town Planning stage by virtue of Section 48A of the Act can be taken care of by giving appropriate directions to the State Government.
(19) In light of the aforesaid therefore the petition is not entertained as the same is premature. Respondent No.2 while considering the Draft Scheme, as submitted by respondent No.2 under Section 48 of the Act, State Government shall consider all objections that have been filed by the petitioner Association before respondent No.2. It would also be open to the petitioner to file Page 19 of 20 HC-NIC Page 19 of 20 Created On Fri Sep 11 00:51:57 IST 2015 C/SCA/6752/2012 ORDER further objections to the State Government at this stage. Such objections shall be filed by the petitioner latest on 30.09.2015. State Government shall consider the same in accordance with the provisions of the Act and the Rules, before giving sanction to the Draft Town Planning Scheme as submitted by respondent No.2 under Section 48(2) of the Act.
(20) In light of the aforesaid therefore the present petition is not entertained as the same is premature. NOTICE discharged. Ad interim relief granted earlier stands vacated. No costs.
Sd/ [R.M.CHHAYA, J ] *** Bhavesh [pps]* Page 20 of 20 HC-NIC Page 20 of 20 Created On Fri Sep 11 00:51:57 IST 2015