This application, under Article 226(3) of the Constitution of India, has been preferred by the applicant (original respondent No.3 - Himmatnagar Municipality) for vacation of the exparte ad-interim stay order passed by this Court on 11.04.2012 in Special Civil Application No.4551 of 2012.
On 11.04.2012, this Court, after hearing Mr.Mihir H.Joshi, learned Senior Advocate with Mr.Ashish H.Shah, learned advocate for opponent No.1 (original petitioner), passed an order granting ad-interim relief in terms of Paragraph-13(C) of the petition, till the next date of hearing.
The gist of the submissions, as contained in the above-mentioned order is that according to opponent No.1 (original petitioner), the Draft Town Planning Scheme No.3 (Himmatnagar), which was accorded sanction by the State Government vide impugned Notification dated 02.11.2011, is seriously flawed and requires drastic improvements on a large scale. According to the petitioner, several examples of extensive defects contained in the Draft Scheme have been highlighted in the opinion of the Chief Town Planner, viz. some Final Plots have no access to roads, some Final Plots are substantially constructed upon, the water supply and drainage network has not been laid down in accordance with the Rules and is unworkable, etc. In the opinion of the Chief Town Planner, the Draft Scheme has been prepared by a private consultant who does not appear to have the basic knowledge to do so. A recommendation has been made to blacklist the said private consultant so that such seriously flawed and unworkable Schemes are not prepared in future. It is the case of the original petitioner that none of the flaws and/or defects pointed out by the Chief Town Planner, who is an expert in the matter, have been rectified before sanctioning the Scheme. Further, the Schedule to the Notification confers powers upon the Town Planning Officer that are far beyond those conferred upon him under Sections 50 to 52 of the Gujarat Town Planning and Urban Development Act, 1976 ("the Act" for short).
In the above background, Mr.Asim Pandya, learned advocate for the applicant, has contended that the impugned Notification dated 02.11.2011, is in the nature of a public order, having been passed in exercise of statutory power. It is submitted that public orders are to be considered in the light of the language used in them and cannot be supplemented or supported by subsequent affidavits. That the Court has to consider the legality of the Notification as it is. In support of the above submission, reliance has been placed upon a judgment in Commissioner of Police v. Gordhandas Bhanji reported in AIR(39) 1952 SC 16. It is contended that even though it is Himmatnagar Municipality that has filed the present application and not the State Government, no further reasons could have been granted by the State Government in support of the Notification, in view of the settled legal position.
The learned advocate for the applicant further submits that it is not as though the Draft Scheme has been sanctioned by the State Government without modifications, but has been sanctioned with various modifications as specified in the Schedule from Sr.Nos.1 to 18. That, even the Chief Town Planner, in his opinion dated 17.08.2011, has recommended that the Scheme be sanctioned with modifications, such as approaches be made available to individual plots, etc. That, it has been recommended that the private consultant and the Town Planning Officer should jointly consider and rectify the flaws while sanctioning the Scheme.
The learned advocate for the applicant has further submitted that the defects that have been noted by the Chief Town Planner have not been ignored by the State Government while sanctioning the Scheme, and as the Scheme has been finalized subject to certain modifications, opponent No.1 is not remediless. Referring to Sections 50 to 52 of the Act, and Rule 26 and 27 of the Gujarat Town Planning and Urban Development Rules, 1979, it is submitted that Section 48 of the Act does not contain any prohibition restraining the Town Planning Officer from modifying the Scheme after sanction has been granted by the State Government.
It is further submitted by Mr.Pandya that the contention raised by opponent No.1 in the petition, as recorded in order dated 11.04.2012, that the Scheme has been sanctioned without application of mind is not correct, as all aspects have been taken into consideration while according sanction with modifications.
It is contended that the proviso to Section 52(3)(xi) confers power upon the Town Planning Officer to make variations from the Draft Scheme and if the variation is of a substantial nature, it can only be made after obtaining previous sanction of the State Government and hearing the appropriate authority and owners who may have raised objections, therefore, opponent No.1 has a remedy for redressal of his grievance even at that stage.
Lastly, it is contended by the learned advocate for the applicant that opponent No.1 has not raised objections within the statutory time limit, but has raised them only at a belated stage, by way of the petition.
It is, therefore, prayed that the ad-interim relief, granted by order dated 11.04.2012 may be vacated or modified to the extent that it operates only qua the petitioner.
Mr.Mihir H.Joshi, learned Senior Advocate with Mr.Ashish H.Shah, learned advocate for opponent No.1 (original petitioner), has submitted that the present application for vacation and/or modification of the ad-interim relief granted by order dated 11.04.2012 has been preferred by respondent No.3 - Himmatnagar Municipality, which is the implementing agency and not the author of the impugned Notification dated 02.11.2011.
It is submitted that Section 48 of the Act empowers the State Government to sanction the Draft Scheme with, or without, modifications. If the Draft Scheme is to be modified, the modifications would first have to be made and only then the Scheme would be accorded sanction, and not vice-e-versa. The said provision of law does not contemplate modification post sanction and neither does it contemplate conditional sanction subject to modifications, as contemplated from the impugned Notification.
Referring to the modifications enlisted in the Schedule to the Notification at Sr.Nos.1 to 18, it is submitted by the learned Senior Advocate that some of these modifications clearly go to show that the power to effect such modifications is to be exercised before sanction is accorded to the Scheme. For example, at Sr.No.1 of the Schedule, the Town Planning Officer has been conferred with power to allot Final Plots in their Original Plots or in the near vicinity as far as possible considering existing construction and use, non-agricultural permission, etc., which amounts to reconstitution of plots, as per Section 45 of the Act. This power is to be exercised before the Draft Scheme is submitted for sanction and not post-sanction. Several other examples such as at Sr.Nos.2, 6, 9, 14 and 15 of the Schedule have been pointed out by the learned Senior Advocate in support of the submission that these tasks were to be completed before final sanction is accorded and not afterwards.
It is further submitted that the nature of the modifications, as contemplated by the schedule, is so vast that it almost amounts to reframing the entire Scheme, therefore, such a seriously flawed Scheme containing modifications of vast dimensions could not have been sanctioned without rectifying the flaws in the Scheme that have rendered it unworkable.
Mr.Neeraj Soni, learned Assistant Government Pleader for respondents Nos.2, 3 and 4, submits that as per Section 48 of the Act, it is within the power of the State Government to sanction the Scheme, which has been done by way of the impugned Notification. Further, the Scheme has been sanctioned along with the modifications as recommended by the Chief Town Planner in his opinion.
Having heard the learned counsel for the respective parties and from perusal of the material on record as well as the statutory provisions, the question that emerges is whether the power conferred by Section 48 of the Act is conditional, or not, meaning thereby, whether the sanction to the Draft Scheme can be finalised first and then modified, or whether the Scheme would have to first be modified and then sanctioned. This question can only be answered at the stage of final decision of the petition, after hearing the learned counsel for the respective parties, and no opinion can be expressed at this preliminary stage.
Ad-interim relief was granted by order dated 11.04.2012 after hearing the learned Senior Advocate for respondent No.1 (original petitioner). The material on record prima-facie discloses that the modifications to the Draft Town Planning Scheme that are vast in nature, have not been carried out but the Scheme has been sanctioned before such modifications have been made. The impugned Notification suggests that the Scheme would be subject to the modifications, meaning thereby, that the sanction has been accorded first and the modifications would have to be carried out later.
The implementing agency, i.e. the Himmatnagar Municipality, has preferred the present application as, according to it, the Scheme cannot be implemented due to the ad-interim relief granted by this Court. It is not the case of the applicant that it would first like to carry out the modifications before implementing the Scheme, which rather lends credence to the submissions made by the learned advocate for opponent No.1. Prima-facie, it appears that the nature of the flaws contained in the Scheme would be enough to persuade the State Government to take a second look. However, it does not appear that the State Government, that is, the author of the Notification that has been stayed, is aggrieved by the ad-interim relief granted by this Court, as neither has any application for vacation of the stay nor an affidavit-in-reply has been filed by it.
The manner in which power conferred by Section 48 of the Act has been exercised is at issue in the petition. The said power has been exercised by the State Government and not by the applicant, who has moved the present application.
The submissions made by the learned advocate for the applicant to the effect that public orders cannot be supplemented by reasons do not appear to be relevant to the point in issue. The Notification is not a public order, but an expression of a decision that has already been taken by the State Government. While the principles of law enunciated in the case of Commissioner of Police v. Gordhandas Bhanji (supra), are not disputed, they are not applicable to the facts and circumstances of the present case, at this stage.
The issue regarding whether the opponent No.1 has filed objections earlier, or not, can be taken into consideration at the stage of final decision of the petition, and would not be relevant at this stage.
Deeper legal issues have been raised in the petition regarding exercise of power under Section 48 of the Act, and the extent of the powers of the Town Planning Officer vis-a-vis Sections 50 to 52 and those conferred upon him by the impugned Notification. These are the prima-facie considerations that have weighed with the Court while passing the order dated 11.04.2012.
Himmatnagar Municipality, merely being the implementing agency, is not in a position to answer the legal issues raised in the petition regarding the impugned Notification issued by the State Government, in absence of any stand taken by the State Government, in this regard.
For the aforestated reasons, this Court finds no compelling or justifiable reason to grant the prayers made in the application.
The application is, therefore, rejected. The ad-interim relief granted by order dated 11.04.2012 shall operate as interim relief till the final decision of the petition.
Be it clarified that nothing contained in the present order be taken to be an expression of final opinion on the merits of the case.
(Smt.Abhilasha Kumari, J.) (sunil) Top