1. These three petitions are filed with similar facts and for similar reliefs pertaining to particular town planning road of sanctioned Town Planning Scheme No.34 covering village Magob of Surat. The reliefs prayed for are also identical in nature for shifting 24 meters road line to avoid demolition of the residential houses of the petitioners in each of these three petitions. Considering the commonality of subject matter and the requests made on behalf of both the sides, these three petitions are taken up for joint hearing and dismissal. The facts are recorded from the lead matter being Special Civil Application No.8537 of 2019.

2. The petitions are filed seeking relief of quashing and setting aside the notice dated 28.03.2019 issued by the respondent No.3 being Executive Engineer of Surat Municipal Corporation and seeking further direction to shift 24 meter town planning road so as to avoid demolition of the residential houses of the petitioners. It is also prayed that if the width of the town planning road is reduced to 18 meter then the demolition of the residential houses of the petitioners would be prevented. The petitioners have also made prayer for setting aside the notification dated 03.07.2013 by which town planning scheme No.34 was sanctioned. The reliefs prayed qua the block No.106 of village Magob and to reconstitute the final plot covering block No.106.

2.1. The petitions also have prayed for variation in the town planning scheme No.34 qua block No.106 in exercise of powers under Section 70 of the Gujarat Town Planning and Urban Development Act, 1976 (for short “the Act”). The petitioners 19 in numbers are the residents of Vivekanand Society, situated at village Magob, which was later on included in the area of Surat Municipal Corporation. It is submitted that the residents of the Vivekanand Society belong to poor strata of society and were located on old survey No.56 which was thereafter, given block Nos.104, 105 and 106 which were divided in several residential plots now occupied by the respective residents and so far as the petitioners are concerned, the plot of land concerned is original block No.106 allotted final plot No.28 which has been sub-divided in 420 residential plots.

2.2. It is the case of the petitioners that original owner of the land being survey No.56 of village Magob was one Naranbhai Ranchhodbhai which was later on divided into three blocks being Nos.104, 105 and 106 and it was the original owner who had sought for development permission from the then village Panchayat which had granted development permission way back in the year 1975 and accordingly, construction of 420 residential units came up. It is submitted that after following due procedure only, according to sanctioned layout plan by the Gram Panchayat, the original owner had given the possession of such plots to the individual persons like the petitioners by executing the possession receipts based on which the allotted persons started putting up their small construction for residential units.

2.3. Learned advocate has drawn attention of this Court to the documents at Annexure E to indicate documentation which had taken place in the form of possession receipt by way of illustration and the documents of Surat Municipal Corporation like assessment as a residential house and the tax bills which the petitioners have been paying regularly. Learned advocate has also drawn attention to the electricity bills so as to support his case that the petitioners were indeed occupiers of the said premises since long period. It is submitted that as the petitioners belong to lower strata of the society and were uninterruptedly using the premises for their residential purpose, they were quite aware of the procedure undertaken under the Act when the notices were issued to the owners of the plots of land. It is submitted that as the petitioners were occupying the land only on the basis of possession receipt, there was no transfer in the revenue record and therefore, the name of original owner continued to be reflected in the revenue record however, the petitioners never received any notice individually before the Town Planning Officer under took the procedure of allotting final plot as per the scheme. Learned advocate for the petitioners submit that the petitioners being the occupiers ought to have been given opportunity of hearing as apart from the revenue record there were other documents as referred to above to establish their occupancy and the fact that they were to be affected by framing of the town planning scheme and therefore, were required to be heard.

2.4. Learned advocate for the petitioners in support of his argument that the town planning scheme No.34 requires to be relooked particularly from the point of unequal redistribution of the final plots, submitted that the original survey number was divided into three blocks being block No.106 which was admeasuring 32375 sq.mtr., 105+ admeasuring 30150 sq.mtr and 104+ admeasuring 8094 sq.mtr. All the blocks were given original plot No.17 and thereafter, divided into three final plots namely final plot No. 26 admeasuring 10700 sq.mtrs, final plot No. 27 admeasuring 39950 sq,mtr and Final Plot No.28 admeasuring 5370 sq,mtrs indicating that the measurement of the final plot allotted was increased for final plot Nos.26 and 27 from 8094 sq.mtrs to 10700 sq.mtrs and from 30150 sq.mtrs to 39950 sq,mtrs, whereas for block No.106, it is reduced from 32375 sq.mtrs to final plot No.28 admeasuring 5370 sq.mtrs. This clearly is an absurdity and therefore, it is a fit case to invoke Section 70 of the Act.

2.5. It is submitted that in the draft plan of the town planning scheme wide road of 36 meters width was proposed from the middle of block No.106 however, without justification another 24 meters road is created from north-west side block No.106 which is a natural Nala (water creek), Khadi on which proposed 24 meters road is being constructed and would directly interfere with the residential units of the petitioners which will have to be demolished. Learned advocate for the petitioners has argued that while framing the town planning scheme qua 24 meter road, covering adjacent Nala (watercreek), there is complete non-application of mind and there is no subjective satisfaction of the State Government while sanctioning the preliminary town planning scheme. In the entire town planning scheme, there appears to be no reference to the existing construction on block No.106 and the authorities have proceeded to plan the 24 meters town planning road over the water-creek as if there is complete vacant and open land adjacent to such water-creek. It is submitted that had the residents taken the visit of the site in question, they would not have ever permitted such scheme as it is the basic of the Act to preserve the existing construction. It is submitted that on the other side of the creek, there is an open land which could have been utilized for the purpose of existing road with the width of 24 meters.

2.6. Learned advocate has drawn attention of this Court to the photographs of the site including ariel view to indicate that on the opposite of the creek, the portion of the land is still vacant and to the knowledge of the petitioners such vacant land is created by filling in the water-creek and is to be allotted to some private individuals. Learned advocate for the petitioners submitted that this vital aspect of the Act to save construction and to include for the purpose of road and amenities an open land has been completely missed. It is submitted that when the respondent-corporation is going to undertake an exercise to render the petitioners homeless, it is incumbent on the corporation to make an alternative arrangement and/or to pay compensation for the loss of rights of the petitioners. It is submitted that the corporation is not expected to shirk its responsibilities by submitting that the original owner whose name is reflected in the revenue record qua him provisions of Act of the opportunity of hearing etc., has been complied with. Lastly, learned advocate has raised the contention by invoking Article 21 of the Constitution of India to protect the rights of the petitioners to exit in a civilized and decent manner. It is submitted that the entire plan laying down a town planning road over the adjacent to water-creek is fallacious plan, as according to the respondent-corporation to prevent the water way from being blocked a different technology is adopted to cover the “Nala” by concrete blocks and thereby allowing water flow and in doing so, the center of such concrete town planning road is lying just adjacent to the construction of the petitioners and therefore, one side of 12 meters out of 24 meters road will be covering the entire residential premises of the petitioners. In the meantime, the petitioners of Special Civil Application No.9725 of 2019 which is by the Gurjar Kshatriya Khadiya Samaj Trust to protect the community hall which is also affected, the part of its has been demolished.

3. Learned Advocate General Shri Kamal Trivedi with learned advocate Mr. Dhawal Nanavati with Mr.vinay Bairaga appearing for respondent Nos.2 and 3 submitted that the petitioners have not applied for the development permission under Sections 253 and 254 of the Bombay Provincial Municipal Corporation Act, 1949 from the authority and also appears from the record that the authority has not considered and deliberated on the application seeking development permission and not approved and not sanctioned any such application under Sections 29(1)(i), 29(1)(ii), 34, 49(1)(b) of the Act and under Sections 253 and 254 of the Bombay Provincial Municipal Corporation Act, 1949 in fact which is on record that the petitioners have never applied for development permission.

3.1. It is submitted that the town planning scheme No.34 (MagobDhumbal) was framed exactly in accordance with law and by following all the necessary provisions of the Act and at no stage, have the petitioners, though aware of the town planning scheme, raised any objection till the issuance of the impugned notices and therefore, as a matter of fact after the sanctioning of the town planning scheme by the UDHD Department of the State of Gujarat, the plots of the land falling in the town planning road would vest with the corporation. It is for the execution of the town planning scheme and it is in execution of the town planning scheme now which is the part of the Act that the impugned notices have been issued by the respondent-corporation.

3.2. The corporation has acted in exercise of powers vested under Sections 48A, 67 and 68 of the Act for the purpose of construction of 24 meters town planning road over the water canal. It is submitted that the execution of the scheme by laying down of this town planning road has progressed substantially and on the verge of completion except for the portion which is claimed by the petitioners in these three petitions. It is submitted that 24 meters road is not restricted to only these three final plots, but is running into several kilometers consisting 24 meters town planning road being already been constructed by the Surat Municipal Corporation and technically it is not possible for deviating the town planning scheme for this small portion of the road which is passing from the aforesaid final plot where houses of the petitioners are located. It is submitted that the petitioners have not placed anything on record.

3.3. Any application seeking Development permission from the Authority under section 253 and 254 of the Gujarat Provincial Municipal Corporation Act, 1949 nor any Development Permission Granted by the Authority under Section 29 , 34 and 49 of the Gujarat Town Planning and Urban Development Act, 1976 in favour of the petitioners after the commencement of the Gujarat Town Planning and Urban Development Act, 1976 on February 01 1978. Even the petitioners have never applied for the commencement certificate under section 263 of the Gujarat Provincial Municipal Corporation Act, 1949 nor any commencement certificate was issued by the Authority under provisions of Chapter 7 of the General Development Control Regulations in favour of the petitioners and therefore, the structure mentioned by the petitioners, which the petitioners desire to protect is construction put up by the petitioners are illegal unauthorized construction.

4. It is also submitted that petitioners have not placed correct facts in the memo of Petition as well as the Civil Application preferred thereunder, the petitioners have deliberately not mentioned the fact that the petitioners have occupied the structure situated on Revenue Survey No.104+105+106 of Town Planning Scheme No.34 by way of simple unregistered Kabja Receipt, which itself suggest the motive of the petitioners behind filling this present litigation to play fraud with this Court and that too by suppressing the truth. The production and making payment of the electricity bills or issuance of the property tax bills and making payments thereunder will not create much less constitute title or the ownership on the land in question.

4.1. It is submitted that after according sanction to the draft scheme submitted by the authority on 15.09.1999, which ultimately sanctioned on 21.12.1999 vide its Gazette dated 19.11.2019 appointed a Town Planning Officer, T.P.Scheme No.34, as a Town Planning Officer under Section 50(1) of the Act to finalise the draft scheme No.34 (Magob-Dumbhal).

4.2. It is submitted that the Town Planning Officer so appointed published a notice as required under rule 26(1) and 26(3) of the Gujarat Town Planning and Urban Development Rules - 1979 in Government Gazette Part—Il and also in the Gujarati Daily as well. The said notice was also published at the prominent places in and around the scheme area and also posted a copy of the said public notice to the notice board of the concern offices. By the said notice the Town Planning Officer has invited owners, interested persons to lodge their suggestion/ objection for the proposal of the draft scheme before the Town Planning Officer, whereby suggestions and objections were called for from the public including from petitioners, at this stage it is very pertinent to note here that upon verification of records it appears and established the admitted fact that the petitioners have not filed any objections before the Corporation to the proposed Draft Scheme No. 34 (Magob—Dumbhal) and thus have waived her right to object the proposed Draft Scheme and also of filling any objections to the Draft Scheme No. 34 (Magob-Dumbhal) after considering the suggestions and objections so received from the public at large, owners, interested persons, and after providing opportunity of hearing to the all concerned including the petitioners (who have chosen not to participate in the hearing much less filed any objections to the proposed preliminary town planning scheme), the Town Planning Officer thereafter made a tentative re-constitution proposal and informed the concerned owners/interested persons, including the petitioners about the tentative proposal to raise their objection/suggestions against the tentative proposal, if any.

5. Upon verification of records it appears that the petitioners have not filed any objections before the Corporation to the proposed Draft Town Planning Scheme N0.34 (MagobDumbhal) SMC much less questioned the proposal of Draft Scheme, after considering the suggestions and objections so received from the public at large, owners, interested persons, and after providing opportunity of hearing to the all concerned including the writ petitioners as well as erstwhile owners (who has chosen not to participate in the hearing much less filed any objections to the proposed preliminary town planning scheme), the Town Planning Officer thereafter made a tentative re-constitution proposal and informed the concerned owners/interested persons, including the erstwhile owners about the tentative proposal to raise their objection/suggestions against the tentative proposal.

5.1. It is submitted that the Town Planning Officer after considering the objection/suggestions against the tentative proposal. The Town Planning Officer, after considering the objections against tentative proposals, had declared his decision under Sub-Section (1) of Section 52 of the Act announced and declared the preliminary town planning scheme No.34 (Magob-Dumbhal) and published the same in the daily newspaper. The same was also published in Government Gazette Part-II. The Town Planning Officer has submitted the said scheme to the Government of Gujarat on November 11, 2007 for according its due sanction under subSection 2 of Section 52 and Section 64 of the Act. The Urban Development and Urban Housing Department, Government of Gujarat, in exercise of power vested under Sub-Section 2 of Section 52 and Section 64 of the act accorded its sanction to the preliminary town planning scheme vide its notification bearing No.GH/V/50 of 2009/TPS/1407/6226 dated 08.06.2009 issued by the Urban Development and Urban Housing Department of the State Government and given effect. Revenue Survey Nos. 104+105+106 which were covered and included in the Town Planning Scheme No. 34 (Magob-Dumbhal) by the Town Planning Officer at the time of preparing, finalizing and declaring the Preliminary Town Planning Scheme No. 34 (Magob-Dumbhal) and said Revenue Survey Nos. 104+105+106 were given and allotted Original Plot No. 17 (admeasuring 70,619 Sq. Mts.). The said Original Plot No.17 subsequently given and allotted Final Plots No. 27 and 28 (admeasuring 56,020 Sq. Mts.) by the Town Planning Officer at the time of preparing, finalizing and declaring the Preliminary Town Planning Scheme No. 34 (Magob-Dumbhal) to the land owners, while settling their rights while preparing and finalizing Redistribution Statement. The SMC being the implementing authority, to implement the preliminary town planning scheme No.34 (Magob-Dumbhal), the authority vide notice bearing No.EZ/TD/5233 dated 28.09.2018 and No.EZ/TD/5275, dated 01.10.2018 & No.EZ/TD/8697 to 8704, 8708 to 8712, 8714, 8723, 8731, dated 28.03.2019 and No.EZ/TD/8795, dated 29.03.2019 issued a notice under Sections 48A, 67 and 68 of the Act read with Rule 33 of the Gujarat Town Planning and Urban Development Rules, 1979 to all the occupiers/owners/ including interested petitioners requesting them to hand over the possession to the second and third respondents in view of the sanction of the Town Planning Scheme No. 34 for Implementation.

5.2. Learned Advocate General has relied upon an unreported CAV judgment in case of Sukeshi Vijaybhai Bhatt v/s. State of Gujarat and others, in Special Civil Application No.9466 of 2019, which was confirmed by the Division Bench in Letters Patent Appeal No.929 of 2021 in support of his contention that even if the deduction of the land exceeds the standard formula will not itself be a ground for invoking Section 70 of the Act for variation in the scheme. Learned Advocate General has relied upon the reported judgment in the case of Kanjibhai Dahyabhai Malsattar v/s. State of Gujarat, reported in 2005 (2) GLH 515 to substantiate his case that once the town planning scheme has become final, occupants have no right to continue on the land in question and therefore, in absence of any challenge to the town planning scheme itself, a notification under Section 68 of the Act cannot be interfered.

5.3. Learned Advocate General has lastly submitted that keeping in view the existence of the residential units of the petitioners and in consultation with the technical experts involved in the laying down of 24 meter wide road which is a special project in itself so as to lay down a motorable road over the existing natural water flow in the water-creek, the entire road is to be constructed what is called as box type concrete hollow road which will maintain the flow of the water in the water-creek below the road. Despite the technical requirement, it is stated that the width of the road at the relevant portion covering the residential premises of the petitioners would be reduced to 21 meters from 24 meters so that technicality of the road is also protected and the interest of the petitioners is also protected.

6. Heard learned advocates for the rival parties and perused the documents placed on record. The respondent-corporation has moved a separate Civil Application in each of these petitions with a prayer to recall the order dated 17.11.2021, wherein this Court had directed that till the next date of hearing, houses belonging to the petitioners shall not be disturbed in view of the fact that the main petitions are now taken up for hearing alongwith the Civil Applications. The main issue raised by the petitioners is for the purpose of varying the scheme in so far as the block No.106 being allotted final plot No.28 requires to be interfered with under Section 70 of the Act by considering the unequal distribution of the measurement of land of the final plots and another issue which is the main issue is to protect the residential units of the petitioners on the final plots which are likely to be demolished on account of laying down of 24 meter wide road.

7. In terms of Section 41(1) of the Act, the authority vide Resolution No.31/97, in consultation with the Chief Town Planner, declared its intention of making a Town Planning Scheme No.34 (Magob-Dhumbal). In terms of Section 41(2) of the Act, the authority published its declaration of intention in the Official Gazette. In terms of requirement of Sub-Sections (2) and (3) of Section 41 of the Act, the authority published the aforesaid declaration of its intention in local daily newspapers viz. “Sandesh” and “Gujarat Times”, while interalia, declared that the plan prepared in that behalf shall be open to the inspection of the public during the office hours at the office of the authority.

7.1. The authority issued public notice in the local newspaper for convening meeting of the stakeholders as required by Section 42 of the Act read with Rule 17 of the Rules, 1979. Apropos the aforesaid public notice, a public meeting of the stakeholders came to be convened by the authority. In terms of Section 42(1) of the Act, the authority made a draft town planning scheme comprising of the erstwhile block Nos.104, 405 and 106 and published the same in the official gazette. Simultaneously, the said draft town planning scheme was put for inspection for general public in the office of the authority. In terms of Section 48(1) of the Act, the authority submitted the draft town planning scheme alognwith the objections received by the authority under Section 47 of the Act, to the Government for sanction. In terms of Section 50 of the Act, the State Government appointed Town Planning Officer for the finalization of the said draft scheme. Thereafter, in terms of Section 48(2) of the Act, the Government sanctioned the draft town planning scheme No.34. In terms of Section 51 of the Act, the Town Planning Officer prepared the part plan in respect of preliminary town planning scheme and thereafter, issued notices under Rules 26(1) and 26(3) of the Rules to all the stakeholders as well as published the same in official gazetted and newspapers. 

7.2. Thereafter, the Town Planning Officer issued notice in terms of Section 52(1) of the Act, inviting the objections followed by declaration of tentative resolution and publication thereof in Government Gazette and daily newspapers with information thereof to the original land owners under Form-J. Thereafter, the Town Planning Officer in exercise of powers under Section 52(2) and 64 of the Act, submitted the preliminary town planning scheme No.34 to the Government for according its sanction. Thereafter, in terms of Section 65 of the Act, the Government sanctioned the preliminary town planning scheme No.34, without modifications. Further, in exercise of powers conferred under Section 65 of the Act, the State Government sanctioned the final town planning scheme No.34.

8. From the record, it appears that the Authority, being an implementing authority, in exercise of powers conferred under Section 48-A, 67 and 68 of the Act read with Rule 33 of the Rules, issued statutory notices to the original owners/petitions, for eviction. Being aggrieved by the aforesaid notice dated 28.03.2019, the present petition came to be filed by 19 petitioners.

8.1. This Court issued notice and by way of ad-interim relief, directed the respondents not to disturb the houses belonging to the petitioners. This Court passed an order permitting the petitioners to make an application under Section 70 and 71 of the Act, invoking the discretionary power of the authority to vary the scheme, within a period of 10 days and simultaneously, permitting the authority to decide the said application in accordance with law. The petitioners made the said application for variation to the authority, which was eventually received by the authority on 29.01.2021. In response to the said variation application, the authority granted an opportunity of being heard to the petitioners by granting personal hearing. Thereafter, upon considering all relevant aspects, the authority passed a detailed reasoned order, inter alia, rejecting the said proposal of variation. A proposed draft amendment came to be filed by the petitioners, challenging the aforesaid order dated 03.03.2021 passed by the authority in the petition.

9. The main purpose of the petitioners is to save the residential units as against laying down of 24 meter road covering the water-creek which is popularly known as Koyali creek under the project of Smart City Mission for Surat. The Municipal Corporation had undertaken the project for re-modify or reconstruct for the said Koyali Scheme for the twin purpose for a road on the top and the uninterrupted flow below it. For this purpose, the Court though it fit to understand the technical points so as to struck a balance between the development and the interest of the petitioners. Accordingly, on 24.05.2022, Maulik M. Rao, Deputy Engineer, Surat Municipal Corporation and Devesh B. Mistry, Deputy Chief Engineer, WAPCOS, Government Undertaking of Ministry of Jal Shakti, Government of India, who act as consultant to the entire project have explained as under:-

“1. Koyali Creek is a natural water course passing through City of Surat which divides and bifurcate 2 major town planning schemes of its own importance viz. Karanj Town Planning Scheme No.3 and Magob Dumbhal town planning scheme no0.34 and the water course (creek) is passing between 2 town planning schemes and the construction of houses of petitioners in question seems like it hasbeen put up on natural creek by filling up the creek area.

3. The project comprise of constructing diaphragm wall, retaining wall, girder and slabs, which finally will come out as box type structure over creek and the top surface of the box type structure will act as transportation and mobility.

4. The Koyli creek is on the conjunction of final town planning scheme No.3 (Karanj) and final town planning scheme n0.34 (MAGOBDUMBHAL).

5. The box type structure will allow the natural water course to flow under the top surface of box and for this hydrological calculations have been made by the consultant and this will carry 113 cumecs of water, as submitted in their DPR, which has also been approved by Central Design Organisation of Government of Gujarat.

6. The clear cross section of the box type structure is based on hydrological calculation to .cater the flow throughout the year and hence, the same cannot be reduced, considering possibility of water afflux and flooding in low Iying area adjacent to upstream creek. Therefore, to save houses hydrological calculations cannot be technically altered and/or disturbed.

7. As mentioned above, the top surface of the box type structure will act as a road on a continuous bridge, the same 7. As mentioned above, the top surface of the box type structure will act as a road on a continuous bridge, the same

8. This box type structure is divided in 2 equal parts by constructing 3 walls of equidistance 7.5 metre so in totality the box type structure will be having dimensions of 2x7.5 metre + 3x.0.6 metre = 16.8 metre in width.

9. Beyond 16.8 metre, working space, underground utilities and maintenance area width required is 3 metre on either side of the box which again will have total utilisation of 22.80 metre out of 24 metre town planning scheme "road. Despite the abovementioned requirement, it will be tried to execute the same construction activity within 21 metre as per the suggestions and therefore with so much constraint the specifications will be put in service for remaining 0.45 kilo metres and for which if any mishap takes place then neither the consultant nor the authority i.e. Surat Municipal Corporation will held responsible.

11. The said box type structure is 1.5 kilo metre long out of that 1.05 kilo metre work is completed with the same specification which have been approved by the technical consultant and now, it is impossible considering the technical parameters to shift and/or reduce the technical dimension of the questioned portion of 0.45 kilo metre. “

10. In view of the aforesaid, the Court is of the view that the project is as essential in public interest and that there is no infirmity or illegality committed in so far as framing of the town planning scheme is concerned as is recorded in the preceding paras. The chronology indicates that no lapse can be found in the procedural aspect of sanctioning of the town planning scheme and now the stage is at the execution of the said scheme. As is stated by learned Advocate General, the entire water-creek which is being covered with 24 meter wide town planning road, the work of the project as proceeded to a large extent.

11. In so far as submission of learned advocate for the petitioners for varying the scheme under Section 70 of the Act on the ground of uneven allotment of measurement of the final plots, in the opinion of the Court, considering the object of the petitioners from the relief clause prayed for, ultimately is against the laying down of 24 meter wide town planning road disturbing the occupation of residential premises by the petitioners, the allotment of the measurement of the respective final plots will be of no consequence. Meaning thereby, though the contention of the petitioners to the extent that the original survey No.56 was at same point of time given three separate block being block No.104 admeasuring 8094 sq.mtrs made part of O.P.No.17 which was given final plot No.26 admeasuring 10700 sq.mtrs. Similarly, block No.105 plus admeasuring 30150 sq,.mtrs is also made part of O.P.No.17 was given final plot No.27 admeasuring 39950 sq.mtrs and the block No.106 which is the subject matter of this petition admeasuring 32375 sq.mtrs also made part of O.P.No.17 was given final plot No.28 admeasuring 5370 sq.mtrs which will go on to indicate that instead of standard deductions for block No.104 and 105 plus there is increase in the measurements when these block numbers were allotted final plots, whereas there has been a gross deduction in block No.106 when it was allotted final plot No.28. This dichotomy is on the record however, as held by this Court in the CAV judgment in case of Sukeshi Vijaybhai Bhatt (Supra), in para-32 and 33 this Court has held as under:-

“32. With regard to the contention raised by the petitioners of deduction of land more than 50% is concerned, in the facts of the case, the petitioners and the predecessor in tile were originally allotted Final Plot No.64 admeasuring 14591 sq.mtrs which was sought to vary by the Varied Town Planning Scheme which is already sanctioned and out of that plot no.64, four plots were partitioned and plot no.64/4 admeasuring 7316 sq.mtrs was reserved for post and telegraph and slum clearance. The entire exercise was completed and the varied twon planning scheme was sanctioned way back on 31.3.1975 by the State Government and now the petitioners after more than 40 years pray to quash and set aside the Town Planning Scheme qua the Plot No.64/4. Such a prayer of the petitioners cannot be granted more particularly, when the provisions of the Act, 1976 were not in force when varied Draft Town Planning Scheme was sanctioned in the year 1975. The petitioners or their predecessors have not raised any objection at the relevant point of time and only when possession of the land in question was sought to be taken, it was resisted by the original owners in the year 2008 and thereafter by the father of the petitioners in the year 2012 but inspite of rejection of the representation made by them, the petitioners continued to be in posession of the land in question which was ultimately taken over by the Municipal Corporation in the year 2017 as averred in the affidavit in reply.

33. In view of above facts emerging from the record, the petitoners cannot be granted any benefit of either compensation or restoration of land in question vis-a-vis the use of land to be made for the public purpose by the respondent corporation. It is also not in dispute that the land has continued to be vested for the public purpose as per Form-F which is part of the sanctioned varied TP Scheme No.24. The petitioners have never applied for variation of such varied Town Planning Scheme which has become part of the statute. In such circumstances, the prayers made by the petitioners to quash and set aside the varied Town Planning Scheme qua Final Plot No.64/4 cannot be acceded to.”

12. The aforesaid judgment came to be confirmed by the Division Bench in its oral judgment dated 03.03.2022.

13. In view of the aforesaid and particularly in view of the fact that the petitioners want to examine this dichotomy situation only with reference to the laying down of 24 meter town planning road, the Court does not deem it fit to treat this as case for variation in the town planning scheme under Section 70 of the Act, on this ground alone.

13.1. One more important aspect in this line is also required to be considered as even if the re-distribution of the land amongst the aforesaid three final plots is made to bring it in conformity with the standard deductions, still the ultimate purpose of the petitioners is to object to the laying down of 24 meter wide town planning road. Therefore, even after redistribution, the laying down of the town planning road will not be affected with the change in re-distribution.

14. In so far as submission of learned advocate for the petitioners regarding open land available on the other side of the creek, the Court observes that from the record the other side of the creek falls within a separate town planning scheme altogether and that as is understood by this Court from the technical aspect of the project, the gradient laid down for 24 meter town planning road covering the water-creek, any interference for shifting the alignment would require major technical upheaval even for the project work which has undertaken so far. This Court therefore does not propose to interfere with the ongoing technical project.

15. From the chronology of events, the town planning scheme was sanctioned by notification dated 03.07.2013 and now the petitioners seek to challenge the town planning scheme itself on the ground raised in the petition. However, in view of the observation made by this Court in case of Varahi Cooperative Housing Society Limited v/s. State of Gujarat and others, reported in 2019 (2) GLR 1088, which holds that delay of four years in filing a petition challenging the notification of the town planning scheme is fatal.

16. However, accepting the statement made by the respondentcorporation in its statement dated 19.04.2022, which reads as under:-

“For the patch with a length of 450 meters alongside the houses and wadi of the writ petitioners, Surat Municipal Corporation shall use width of 21 meters only from sanctioned Town Planning Road having width of 24 meters, beyond the said patch of 450 meters on its both the sides, entire width of 24 meters of sanctioned Town Planning Road will be used. This arrangment will be effected as a special case, but, without forming any precedent.”

17. In the opinion of the Court, the above statement made would protect the interest of the occupiers of the residential premises of the petitioners to the great extent and therefore, at this stage, the Court is not inclined to interfere with the impugned notice dated 28.03.2019 and Notification dated 03.07.2013 with a expectation that the respondentcorporation will adhere to the statement made and recorded hereinabove.

18. The corporation which claims to have undertaken exercise of issuing notices and given an opportunity of hearing to an individual whose name is reflected in the revenue record, is nothing but an empty formality to get a procedure over with without any sanction to comply with the provisions in letter and spirit. It has come on record of the Court that the original owner himself has got development permission sanctioned form the then local authority way back in the year 1975. He has made monetary profits by creating sub-plots as per the development permission by handing over the occupation/possession of such plots for residential purpose to the petitioners and others, of course for consideration, will definitely lose any interest whatsoever if any town planning scheme is framed involving such plot of land. Therefore, action of the respondent-corporation particularly of giving notices to such original owner whose name may reflect in the revenue record, but has lost all the interested in the plot of land is nothing but an empty formality not in connivance with the requirement of the Act. In view of the aforesaid, the Court deems it fit to observe that the petitioners who are to lose their residential premises altogether or even substantial, the respondent corporation is obliged to make an alternative arrangement for rehabilitating such petitioners in an alternative residential scheme/project undertaken by the respondent-corporation from time to time by treating such petitioners to be affected and eligible for allotment of rehabilitation scheme. For this purpose, such petitioners who have lost their residence entirely or substantially is open to make an application in this regard and the respondentcorporation is directed to consider the same expeditiously.

19. With the aforesaid observation, the petition stands disposed of.

20. In view of the order passed in the main matters, no separate orders are required to be passed in the Civil Applications and hence, stand disposed of accordingly.

21. At this stage, learned Advocate for the petitioners prays for suspension of this order in view so as to enable the petitioners to approach the Higher Forum and make specific request that as translation will have to be given along with the Appeal that would be preferred at-least for a reasonable period, present order may be placed under suspension, considering the fact that originally the stay was granted by this Court.

22. Considering the request made by learned Advocate for the petitioners and considering importance of the project, which already has been stalled, further considering the fact that the grant-sanctioned for the project is to lapse, the Court is not inclined to suspend the present judgment.