DHARMADEV INFRASTRUCTURE PVT LTD Vs. DHARMENDRAKUMAR DAHYABHAI PATEL

JUDGEMENT

(1.) THE judgment and order dated 15/3/2011 delivered by the Ld. Single Judge in Special Civil Application No. 2054/2010 is under challenge in this appeal, which is filed in the month of February 2012. Initially notice was issued and thereafter, till date matter has been dragged on admission stage only. In between, parties have complied with the provisions of Chapter 4 Rule 53 of the High Court Rules, which was not complied with at the time of filing of the appeal.

(2.) CONSIDERING the above fact, though the matter is listed for admission, Ld. Counsel appearing for the parties have requested to take up the matter for final hearing and to decide it finally. Hence, appeal is admitted. Ld. Counsel Mr. Kaushal D Pandya waives service of notice of admission for respondent no. 1 and Mr. Adil R Mirza, Ld. Counsel waives service of notice of admission for respondent no. 2.

(3.) BY impugned judgment and order, the Ld. Single Judge has allowed the writ petition in favour of the present respondent no. 1 and thereby quashed and set aside the development permission dated 1/7/2009 under section 29 of The Gujarat Town Planning and Urban Development Act, 1976 [hereinafter referred to as 'the Town Planning Act'] issued by the respondent no. 2 herein in favour of present appellant, mainly on the ground that pending the Draft Town Planning Scheme and/or in anticipation of sanction of Draft T.P. Scheme by the State Government, the concerned authority should not grant the development permission in favour of the proposed allottees, as their rights are yet to be crystalized and the proposed allottees do not become absolute owners of the land till the Town Planning Scheme is sanctioned by the Government under the provisions of the Town Planning Act. Considering such settled legal position; for which the Ld. Single Judge has relied upon the decision of this Court in the case of Modinagar Cooperative Housing Society Ltd. v/s. State of Gujarat reported in 2006 [3] GLR 2020, held that the development permission granted by present respondent no. 2 in favour of present appellant pending the Draft Town Planning Scheme is absolutely illegal and against the provisions of the Town Planning Act. In Modinagar Cooperative Housing Society Ltd. [supra] it was categorically held that "when the Draft Town Planning Scheme was not sanctioned and it is pending before the State Government and when there is objection regarding some plot, the developer cannot be permitted to put up the construction. In such reported case, therefore, prayer of the applicant society to continue with their construction was dismissed. It is certain that the respondent no. 2 being party to such litigation is bound to follow such decision.