RAVI R. TRIPATHI, J.

( 1 ) IN both these matters, on 7th November, 2001, Rule was issued with notice as to interim relief, making it returnable on 26th November, 2001. On 26th November, 2001, matters were adjourned to 27th November, 2001 and again on 27th November, 2001, the matters came to be adjourned to 5th December, 2001. Thereafter, both these matters are listed before the Court today.

( 2 ) THE controversy raised in both these petitions is as to whether the impugned order dated 25th July, 2001 refusing the development permission is arbitrary, illegal, null and void and therefore, respondent-Corporation be directed to grant development permission to the petitioners, as prayed for vide applications dated 18th January, 2001 and 16th April, 2001. At the time of hearing of these petitions, Mr. Y. N. Oza, learned Counsel appearing for the petitioners, submitted that he be permitted to restrict his relief to the extent that, "the development permission to the petitioners be not refused on the ground stated in clause 20 of the said order". Clause 20 of the order states that, "as Surat Municipal Corporation has lodged its objections against the modifications made by the Government at the time of sanctioning of T. P.-14 (Rander - Adajan) Preliminary Scheme, development permission as sought for cannot be granted. "

( 3 ) THE learned Advocates appearing for the parties agreed that both the matters have identical facts and the question involved in both these petitions is the same. The only distinguishing feature in these two petitions is that the property involved in Special Civil Application No. 8863 of 2001 was under reservation, even in the `draft Development Plan, while the other was not, except this, both the matters have identical facts.

( 4 ) MR. Y. N. OZA, learned Counsel appearing for the petitioners, strenuously urged that in view of the provisions of Sub. Section 3 of Section 65, once the preliminary scheme is accorded sanction, it is deemed to have been incorporated in the Act i. e Gujarat Town Planning and Urban Development Act itself and, and the respondent-Corporation cannot refuse development permission on the ground stated in clause 20 of the impugned order. For ready perusal, Section 65 in extenso is reproduced hereinbelow:section 65. Power of Government to sanction or refuse to sanction the scheme and effect of sanction.-- (1) On receipt of the preliminary scheme or, as the case may be, the final scheme, the State Government may -- (A) in the 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 refuse 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, irregularity or informality. (2) Where the State Government sanctions the preliminary scheme or the final scheme, it shall state in the notification - (A) the place at which the scheme shall be kept open for inspection by the public, and (B) a date (which shall not be earlier than one month after the date of the publication of the notification) in which all the liabilities created by the scheme shall come into force :provided that the State government may from time to time extend such date, by notification, by such period, not exceeding three months at a 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. "

( 5 ) THE learned counsel submitted that validity of this provision was challenged and the same was upheld by this Court. Therefore, this case stands on sound footing and the Surat Municipal Corporation be directed by issuing a writ of mandamus to delete Clause 20 from the impugned orde

Click Here to Read the rest of this document