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Judgment
Jayant Patel, J.—Rule. With the consent of learned counsel for the parties matter is finally heard today.
The petitioner has preferred this petition challenging the order, dated 10.3.04 passed by the State Govt. and also the order, dated 10.10.03 passed by the Dist. Collector whereby the permission granted by the Municipality for construction as per the resolution No. 344, dated 5.12.1998 was set aside and it was ordered to remove the construction.
Heard Mr. Soni for the petitioner, Ms. Pandit, Ld. AGP for respondent Nos 1 and 2 and Mr.Munshaw for respondent Nos. 3 and 4.
Upon hearing the learned counsel appearing for the parties it appears that initially the Dist. Collector as per order, dated 10.10.03 on various grounds set aside the order of the Town Planning Committee of the Municipality. However, in the appeal before the State Govt. as per order dated 10.3.04 the other aspects are held in favour of the petitioners, but as the construction was falling within 50 Ft DP Road, it was recorded that until the revised development plans are sanctioned same would continue and therefore permission can be said to be illegal, and therefore, consequently the appeal was not allowed and it is under these circumstances, the petitioner has approached this court.
The Chief Officer of the respondent No. 4-Municipality has filed the affidavit in reply whereby at para 2 it has been stated as under:
"The respondent No. 4 states that however the said shops are yet not removed and meanwhile the Government of Gujarat through Urban Development and Housing Department has sanctioned revised development plan of Palanpur Area Development Authority through notification dated 23.7.04 and as per the revised development plan the said proposed road is cancelled and therefore no road is to be constructed."
Therefore, it appears that there is no dispute now that as per the revised development plan which is sanctioned on 23.7.04 the DP road is not to be constructed, but as a consequence thereof, as the construction is uptil now not removed and in view of subsequent development in the matter, I find that it would be just and proper to direct the State Govt. to reconsider the matter in the light of subsequent sanction of the development plan whereby the DP Road is not to be continued. If on account of subsequent sanction of the development plan, the construction can be maintained, then no useful purpose would be served in allowing the cancellation order passed by the Dist. Collector which may consequently result into removal of construction and therefore until such exercise is undertaken I find it would be just and proper to continue the ad interim relief granted earlier.
In view of the above, petition is partly allowed to the extent that the order dated 10.3.04 passed by the State Govt. in Appeal No. 7/3 so far as it relates to dismissing of appeal on the ground that the construction is over 50 Ft DP road, is set aside with further direction to the State Govt. to reconsider the appeal in the light of subsequent sanction of the area development plan, dated 23.7.04 whereby the said DP road is cancelled and to decide the matter after affording opportunity of hearing to the petitioner in accordance with law as early as possible preferably within a period of three months from the date of receipt of writ of this court.
Until the appeal is finally decided and the order is communicated the ad interim relief granted earlier shall continue to remain in operation.
Petition is partly allowed to the aforesaid extent. Rule is made absolute accordingly. Considering the facts and circumstances, there shall be no costs.