Gujarat High Court
Hiteshbhai Gordhanbhai Goti vs State Of Gujarat on 11 October, 2022
C/SCA/10019/2021 CAV JUDGMENT DATED: 11/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10019 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HITESHBHAI GORDHANBHAI GOTI
Versus
STATE OF GUJARAT
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Appearance:
MR VIRAL K SALOT(3500) for the Petitioner(s) No. 1,2
MS.JYOTI BHATT AGP ADVANCE COPY SERVED TO GOVERNMENT
PLEADER/PP for the Respondent(s) No. 1
MR DHAVAL G NANAVATI(2578) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 11/10/2022
CAV JUDGMENT
[1] By way of the present petition filed under Article 226 of the Constitution of India, the petitioners Page 1 of 26 Downloaded on : Tue Oct 11 21:30:47 IST 2022 C/SCA/10019/2021 CAV JUDGMENT DATED: 11/10/2022 have prayed to quash and set aside the resolution passed by the Standing Committee dated 22.01.2021 and consequent thereto Notice dated 15.07.2021 issued under Section 213 of the Gujarat Provincial Municipal Corporation Act.
[2] The brief facts leading to the present petition are that the petitioner is the owner and occupier of the land bearing Survey No.1051/2/B of Village Variyav, Taluka, Adjan Dist.Surat. In the year 2004, Surat Municipal Corporation had declared its intention to frame the Town Planning Scheme No.37(Variyav) and notification of intention was published on 10.02.2004 and thereafter Corporation has prepared the Draft Scheme. The State Government sanctioned Draft Town Planning Scheme and appointed Town Planning Officer on 09.10.2006. In the revised Development Plan 90 Mtrs. road was proposed passing through the original Survey No.1051/2/B in the Town Planning Scheme, therefore, Town Planning Officer revised the 60 Mts. road to 90 Mts. road in the final Town Planning Scheme. Thus, the Survey No.1051/2/B/p demarcated as O.P.No.26 admeasuring 8175 sq. Mts came to be reconstituted as Page 2 of 26 Downloaded on : Tue Oct 11 21:30:47 IST 2022 C/SCA/10019/2021 CAV JUDGMENT DATED: 11/10/2022 Final Plot No.33 admeasuring 5340 sq.Mts. On 26.09.2012, the State Government sanctioned preliminary scheme and thereafter Final Town Planning Scheme came to be sanctioned on 29.07.2017. In the meantime, the proposals of the Scheme are also implemented by the Corporation and the Petitioners have also surrendered the land earmarked by the Corporation and possession of final plot No.33 admeasuring 5340 Sq.Mts. came to be retained by the present petitioners. On 06.02.2020, the petitioner made an application before the the Corporation for development of land and getting plot validation certificate. At that point of time, the Officer of respondent No.2 informed orally the petitioners that there is further reduction in the plot measurement. However, no written document was provided to the petitioner. On 12.02.2020, a public notice came to be published, wherein it is stated that the Corporation is proposed to prescribe a road line. On 20.02.2020, in furtherance to the notice dated 12.02.2020, the petitioners have filed their objection. Recently, the Corporation has visited the site of the petitioners and called upon to surrender further land. However, no notice has been issued to the present petitioners. Hence, the present Page 3 of 26 Downloaded on : Tue Oct 11 21:30:47 IST 2022 C/SCA/10019/2021 CAV JUDGMENT DATED: 11/10/2022 petition.
[3] Heard Mr.Percy Kavina, learned Senior Counsel appearing with Mr.Viral Salot, learned counsel for the petitioners, Mr.Dhaval Nanavati, learned counsel for respondent No.2 and Ms.Jyoti Bhatt, learned AGP for the respondent - State.
[4] Mr.Percy Kavina, learned Senior Counsel has submitted that the issuance of Notice conferred the power under Section 213 of the Gujarat Provincial Municipal Corporation Act by the Respondent Authority is illegal and non application of mind as the preliminary scheme has now become final and there is 90 Mts. road is already existing, if there is error or infirmity in the Scheme or rectify that powers under Section 213 of the GPMC Act cannot be restored. He further submitted that Section 77 of the GPMC Act is for requisite of immovable property, who are also neighbor of the present petitioners have handed over the possession or permitted for implementation of the Notice does not give any right to the Respondents Corporation to take any such illegal action against the present petitioners. He has further Page 4 of 26 Downloaded on : Tue Oct 11 21:30:47 IST 2022 C/SCA/10019/2021 CAV JUDGMENT DATED: 11/10/2022 submitted that the malic in law is came into play as the decision is taken in the Standing Committee and thereafter issuance of Notice is without application of mind and there is some malice involved in the process. In support of his submissions, Mr.Kavina, learned Senior Counsel relied upon the judgment reported in 2005(6) SCC 778, wherein this Court has observed in para 40 & 41, which reads as under:] "40. Furthermore, there cannot be any doubt whatsoever that even if an order is found to be not vitiated by reason of malice on fact but still can be held to be invalid if the same has been passed for unauthorized purposes, as it would amount to malice in law.
41. In Smt. S.R. Venkataraman Vs. Union of India, [AIR 1979 SC 49 : (1979) 2 SCC 491] this Court observed:
"It is not therefore the case of the appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order of her premature retirement so as to amount to malice in fact. Malice in law is however, quite different. Viscount Haldane described it as follows in Shearer v. Shields:
"A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently."
Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause."
Page 5 of 26 Downloaded on : Tue Oct 11 21:30:47 IST 2022 C/SCA/10019/2021 CAV JUDGMENT DATED: 11/10/2022 He has further submitted that the collateral consideration is taken up while issuance of notice, which is not permissible under the law. He has submitted that the Draft Development Plan it is relied by the Corporation is not part and cannot be considered as a part of the Act in view of the provisions of Section 65(3) of the Town Planning Scheme. He has further submitted that it is an important to refer Section 17 Sub-section (3) and Section 20 of the Town Planning Act to consider the legality and validity of the action of the Corporation. Therefore, he prays that the impugned action of the Corporation is required to be quashed and set aside and it is not in consonance with the provisions of law and no land can be played or precisely required under Section 213 of the GPMC Act without comply with the provisions of Sections 77 & 78 of the Gujarat Provincial Municipal Corporation Act.
He has further submitted that the resolution passed by the Standing Committee based on wrong fact that 90 Mts road is not available. As a matter of fact, there is 90 Mts. road is already existing, which is statutorily prescribed under the provisions of Gujarat Town Planning and Urban Development Act, and therefore, the Page 6 of 26 Downloaded on : Tue Oct 11 21:30:47 IST 2022 C/SCA/10019/2021 CAV JUDGMENT DATED: 11/10/2022 said resolution dated 22.01.2021 is illegal, arbitrary and non application of mind, therefore issuance of Notice under Section 213, is illegal and result of non application of mind and the same is required to be quashed and set aside.
He has further submitted that the land of the petitioners is last plot forming part of the town planning scheme and the adjoining land mentioned in the said notice is fall under the Non Town Planning Scheme Area when the petitioners have approached the Corporation, at that time, the officer of the Corporation had visited the site of the petitioners and called upon to surrender further land. Hence, both the resolution as well as Notice is required to be quashed and set aside. [5] Per contra, Mr.Dhaval Nanavati, learned counsel for respondent No.2 has submitted that some dates are relevant for not consideration of the present petition. He has submitted that on 12.04.2006, the Urban Development and Urban Housing Department, Government of Gujarat in exercise of powers conferred under Sub-section 2 of Section 48 of the Gujarat Town Planning Act, sanctioned the Draft Town Planning Page 7 of 26 Downloaded on : Tue Oct 11 21:30:47 IST 2022 C/SCA/10019/2021 CAV JUDGMENT DATED: 11/10/2022 Scheme No.37(variyav). On 26.09.2012, the State Government in exercise of powers conferred by Sub- section (3) of Section 65 of the Gujarat Town Planning and Urban Development Act sanctioned the Draft Town Plannign Scheme No.37 (Variyav) and 60 meters road was proposed without any resistance from erstwhile land owners. Thereafter, petitioners have purchased the land on 30.30.2017 as well as 18.02.2020 as per the copy of the index of the writ petitioner i.e. after Town Planning Scheme become the part of the Act. He has further submitted that on 29.07.2017, the Urban Development and Urban Housing Department Government of Gujarat has sanctioned Draft Town Planning Scheme No.37(Variyav). He has further submitted that the public notice is published on 12.02.2020 came to be published by the Municipal Commissioner, City of Surat in exercise of powers conferred by clause (a) of Sub-section (1) of Section 210 of the Gujarat Provincial Municipal Corporation Act in two daily newspapers proposing and prescribing 90 Mts. street line on northern side of the Final Town Planning Scheme No.37 and Draft Town Planning Scheme No.83 passing through outer Ring Road as per the description mentioned in public notice. He Page 8 of 26 Downloaded on : Tue Oct 11 21:30:47 IST 2022 C/SCA/10019/2021 CAV JUDGMENT DATED: 11/10/2022 further submitted that on 20.02.2020, 24.02.2020 & 29.02.2020, petitioners was responded in pursuance of the public notice dated 12.02.2020, and filed objections before the appropriate authority. On 22.09.2020 proposal sent by the Municipal Commissioner, City of Surat to the Standing Committee of Surat Municipal Corporation. On 08.10.2020, proposal of prescribing or proposing 90 Mts. Outer Ring Road Development Plan Road in Revised Development Plan-2035 of Surat Urban Development Authority was proposed and not opposed or objected by the writ petitioners at any point of time inclusive of under Section 13 of the Gujarat Town Planning and Urban Development Act and allowed the Urban Development and Urban Housing Department, Government of Gujarat to sanction the Revised Development Plan-2004 in exercise of powers conferred by sub clause (i) of sub Section (1) of Section 17 of the Act. The said Development Plan 2035 came into force in exercise of powers conferred by sub-section (3) of Section 17 of the Act, 1976. He has further submitted that on 24.12.2020, the Standing Committee of the Surat Municipal Corporation in its meeting examined and considered the proposal dated 22.09.2020 submitted by Page 9 of 26 Downloaded on : Tue Oct 11 21:30:47 IST 2022 C/SCA/10019/2021 CAV JUDGMENT DATED: 11/10/2022 the Municipal Commissioner, City of Surat and after due consideration and deliberation, the Standing Committee of the Surat Municipal Corporation has resolved to sanction prescribe 90 Mts. width Road line in exercise of powers conferred by clause (b) of Sub-section (1) of Section 210 of the Act. Considering all the aspects involved and the subject matter, and more particularly, considering the public interest at large over a private interest, the Standing Committee has resolved to prescribe Road line. Thereafter, on 04.03.2021 order came to be published by the Municipal Commissioner, Surat in exercise of powers conferred by clause (b) of Section (1) of Section 210 of the Gujarat Provincial Municipal Corporation Act in two daily local newspapers i.e. Sandesh & Gujarat Gurdian prescribing 90 Mts Street Line on northern side of the Final town Planning Scheme No.37 and Draft Town Planning Scheme No.83 passing through Outer Ring Road as per the description mentioned in the order. He further submits that on 15.07.2021, Notice in exercise of powers conferred by Section 213 of the Act came to be issued by the competent authority of the Surat Municipal Corporation in terms of Resolution bearing No.171/202.
Mr.Nananvaty, learned advocate appearing on behalf Page 10 of 26 Downloaded on : Tue Oct 11 21:30:47 IST 2022 C/SCA/10019/2021 CAV JUDGMENT DATED: 11/10/2022 of the Corporation has also filed detailed Affidavit. He further submitted that considering the averments made in the Reply, whereas the powers which are exercised by the Municipal Commissioner of Municipal Corporation of Surat City is exercised under the Gujarat Provincial Municipal Corporation Act, and in fact, it is an independent power from the power of the Gujarat Town Planning and Urban Development Act, 1976. He further submitted that the prescription of Regular Line of Street under Section 2(59) and under Section 2(63) of the Gujarat Provincial Municipal Corporation Act, 1949 is well within the powers of the Municipal Commissioner, City of Surat. Thus, there is no procedural impropriety and decision taken thereunder is eventually applicable to all. The "Regular Line of Street" is prescribed in order to maintain and to secure informality and secure synchronization of appearance of 90 Mts. width Development Plan Road as sanctioned as "Outer Ring Road" draw a line on the southern side of the 90 Mts width Development Plan Road and northern side of Final Plot No.33 of Scheme No.37. The power of the Authority is recognized by the Legislation under Section 210 of the Act, and prescribing a "line" is a distinct independent Page 11 of 26 Downloaded on : Tue Oct 11 21:30:47 IST 2022 C/SCA/10019/2021 CAV JUDGMENT DATED: 11/10/2022 statutory power of the Municipal Commissioner, City of Surat under the Act and significant to notice that while there is a provision of drawing "regular line" or a "street line" under the Act, 1949, there is no such provisions under the Gujarat Town Planning and Urban Development Act, 1976. Therefore, there is no conflict of powers under Section 210 of the Act, 1849 and provisions of sanctioned Town Planning Scheme under the Act, 1976. He has further submitted that he is disputing aspect of maintainability of the writ petition. He has submitted that the Public Notice dated 20.02.2022 was fully complied and attended the finality. In fact, the writ petitioner has responded and participated in all the manner at each and every stage in proceedings initiated under the Act, 1949. The Authority has followed all the procedure and there is no procedural laps can be found by writ petitioner, and in absence of such, writ petition is not maintainable. He has further submitted that the objections are also filed by the present petitioners, which is examined and considered by the meeting of the Standing Committee of the Surat Municipal Corporation and after consideration and due deliberation, the, Standing Committee has Page 12 of 26 Downloaded on : Tue Oct 11 21:30:47 IST 2022 C/SCA/10019/2021 CAV JUDGMENT DATED: 11/10/2022 resolved to prescribe 'Street Line'. In view of the ratio laid down in the judgment in the case of of Surat Textile Market Cooperative Shops and Warehouses Society Limited Vs. Commissioner of Surat reported in (2002) 1 GLR 633 , wherein it is observed that there is no conflict between the provisions of Gujarat Provincial Municipal Corporation Act, 1949, and the provisions of Gujarat Town Planning and Urban Development Act, 1976. He has further relied upon ratio laid down in the judgments in the case of Bharat Hair Dressers Vs. Surat Municipal Corporation reported in 1987 (2) GLH (UH) 21, in the case of Surat Garage Company Ltd. Vs. State of Gujarat reported in (2007) 2 GLH 355 and in the case of Pramjibhai D. Karane Vs. Ahmedabad Municipal Corporation reported in (1996) 2 GLH 230, wherein clearly clarify that objects of Gujarat Provincial Municipal Corporation Act, 1949 and objects of Gujarat Town Planning and Urban Development Act, 1976 are different and their provisions operate in different fields, therefore, there are no conflict between two Acts.
He has further submitted that 90 mts road are more required and necessary in the public interest rather than the private individual interest. Therefore, in view of Page 13 of 26 Downloaded on : Tue Oct 11 21:30:47 IST 2022 C/SCA/10019/2021 CAV JUDGMENT DATED: 11/10/2022 the judgment passed by this Court in Special Civil Application No.16256 of 2021, wherein this Court has observed that "public interest will always have precedence over a private interest of the parties." In support of his contentions, he has further relied the ratio laid down in the case of Ramniklal Bhutta & Anr. Vs State of Maharashtra & Ors reported in AIR (1997)SCC 1236, wherein the Hon'ble Apex Court has observed that the "the Courts have to weigh the public interest vis-a- vis the private interest while exercising the power under Article 226 indeed any of their discretionary powers." Hence, considering all the aforesaid aspects of judgments as referred above, and aspect of 90 Mits road Town Planning Scheme is also laid down for the public benefit at large and therefore, this Court while exercising the powers of granting any relief may keep larger public interest in mind.
He has lastly submitted that there are no procedural lapse committed by the Authority in prescribing the Road alignment and Street Line under
Section 210(1)(B) of the Act, 1949 and view of the order passed in Letters Patent Appeal No.2449 of 2010 and Appeal from Order No.39 of 2011 as well as considering Page 14 of 26 Downloaded on : Tue Oct 11 21:30:47 IST 2022 C/SCA/10019/2021 CAV JUDGMENT DATED: 11/10/2022 all the aspects, the present petition devoids of any merit and deserves to be dismissed.
[6] Having heard learned advocate for the respective parties and having considered the rival
contentions submitted by learned advocate for the parties as well as averments made in the petition, more particularly, the authorities have not applied its mind as there is already 90 Mts road existing in Town Planning Scheme which is finalized much earlier and therefore, there is no need to provide street light. It is submitted by learned advocate for the petitioner about the legal malice, therefore now, considering this aspects, it is not in dispute that the Municipal Corporation has exercised the power conferred under Section 210 of the Gujarat Provincial Municipal Corporation Act. Considering the materials available on record, it is not in dispute that when the Town Planning Scheme is finalized, initially, there is provision and drafted Town Planning Scheme about 60 Mts Road, thereafter, which is revised 90 Mts. road, and accordingly preliminary scheme is also finalized and finally scheme is also finalized. Therefore, there is a provision of 90 Mts. road and to provide street light. It Page 15 of 26 Downloaded on : Tue Oct 11 21:30:47 IST 2022 C/SCA/10019/2021 CAV JUDGMENT DATED: 11/10/2022 is also open for the Municipal Corporation to exercise the powers under Section 210 of the Gujarat Provincial Municipal Corporation Act and Section 213 of the GPMC Act for this purpose. It is fruitful to consider the judgment passed by this Court in the case of Surat Textile Market Cooperative Shops and Warehouses Society Limited Vs. Commissioner, City of Surat reported in 2002 (1) GLR 633, wherein this Court has observed in paras 3, 5, 6, 7 & 8 which are reproduced hereinunder :
"3. In response to the notice issued by this Court, affidavit-in-reply has been filed by the Town Planner of the respondent-Corporation. It is submitted that the Municipal Commissioner is empowered to exercise his powers under Sections 210 and 213 of the B.P.M.C. Act without fettered by any provisions of the Town Planning Act. It is further submitted that by order No. 3443 dated 3-8-1999, the Municipal Commissioner has passed the order under Section 210(1)
(a) for prescribing the alignment on the Ring Road for the first time under the B.P.M.C. Act. Hence, there was no need for any approval or resolution of me Standing Committee since the power is not exercised under Section 210(1)(b).
On facts, it is pointed out that in the interest of public at large, the Coiporation is required to widen the Ring Road. In view of the increase in the number of vehicles and population, the Corporation has to resort to the exercise of widening the road. Further, it is pointed out in Para 6 of the reply-affidavit that pursuant to the notice, the office bearers of the petitioner-Society met the Municipal Commissioner. They made a representation that in view of the number of business persons running their business in the textile market and also a number of persons visiting the market daily for business purposes, they required a reasonable margin. Ultimately, they requested the Municipal Commissioner to keep 15 ft. margin. In response to the said request, me Municipal Commissioner agreed that there will be 15 ft. margin in front of the front line shops for demarcation of the road line.
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5. The learned Counsel for the parties have made their submissions on the basis of the pleadings already referred to above. Mr. Prashant Desai, learned Counsel appearing for the respondent- Corporation adds mat the road line has also been demarcated on the site in such a manner that there is 15 ft. margin line in front of the front line shops. Mr. Desai further points out that as clearly stated in the Municipal Commissioner's order dated 3-8-1999, under the Town Planning Scheme sanctioned by the State Government on 31-1-1996, the Ring Road had width of 60 mtrs. and the road line has now been demarcated for the first time under Section 210(1)(a) of the B.P.M.C. Act.
6. As far as the first two contentions are concerned, the decision of this Court in Premjibhai D. Karane v. Ahmedabad Municipal Corporation, 1996 (2) GLH 230 is a complete answer. After examining the scheme of the Town Planning Act as well as the B.P.M.C. Act, this Court has held that while there is a provision of drawing a street line or a regular line under the B.P.M.C. Act, there is no such provision in the Town Planning Act and that in its wisdom the Legislature has conferred power of drawing a road line on the Municipal Commissioner as there is no conflict between the provisions of the B.P.M.C. Act and the Town Planning Act.
7. Even as far as the third contention is concerned, in the aforesaid decision, this Court has held that when the Municipal Commissioner prescribes a road line under the B.P.M.C. Act for the first time, the procedure prescribed by Section 210(1)(b) is not applicable at all. The statutory provision is applicable only when an existing road line already prescribed under the B.P.M.C. Act is sought to be altered or substituted under Section 210(1)(b) of the B.P.M.C. Act. It is required to be noted that Section 210(1)(a) itself contemplates that until a street line is prescribed by the Municipal Commissioner under the said clause, a regular line of a public street operative under any other law for the time in force in any part of the city shall be deemed to be a street line for the purposes of the B.P.M.C. Act. Accordingly, the outer lines of the public road demarcated in a Town Planning Scheme would operate as a regular line of a public street until the Municipal Commissioner prescribes the street line for the first time under Section 210(1)(a) of the B.P.M.C. Act.
In view of the above statutory provisions, as interpreted by this Court in the aforesaid decision, it is clear that the street line of the Ring Road as prescribed under the Town Planning scheme operated as a regular line for the Ring Road until the Municipal Commissioner for the first time prescribed the street line of 200 ft. Page 17 of 26 Downloaded on : Tue Oct 11 21:30:47 IST 2022 C/SCA/10019/2021 CAV JUDGMENT DATED: 11/10/2022 on 3-8-1999 vide order No. 3443. Hence, on and from 3-8-1999, the regular street line or road line prescribed for the first time under Section 210(1)(a) was the one prescribed by the Municipal Commissioner as per the aforesaid order dated 3-8-1999. Since this was for the first time that a road line was prescribed under the B.P.M.C. Act, there was no question of following any procedure under Section 210(1)(b) of the B.P.M.C. Act. In view of the above, the third contention is also required to be rejected.
8. As far as the last contention based on the factual aspects is concerned, the Municipal Commissioner is the best authority to decide as to how the road line is to be prescribed. In any view of the matter, the Municipal Commissioner after giving a hearing to the office-bearers of the petitioner-Society, acceded to their request for keeping a margin of 15 ft. in front of the petitioner-Society's shops in the front line. It appears to the Court that originally the Municipal Commissioner intended to take 10 ft. out of the margin land of 22 ft. in front of the petitioner-Society which would have increased the width of the road from 190 ft. to 200 ft. However, in due deference to the request made by the office bearers of the petitioner-Society, the Municipal Commissioner has agreed to keep a margin of 15 ft. Hence, the Corporation is required to draw only the line beyond 15 ft. from the front line shops of the petitioner- Society.
It is also stated in the reply-affidavit filed on behalf of the respondent that except the petitioner-Society and the property holders of Final Plot No. 136, the lands have been acquired from all other properties so as to widen the road and the others have already handed over possession of their respective parcels of land to the respondents to carry out the implementation of the project of widening of the Ring Road.
[7] From this very judgment, it is clearly coming on record and accordingly observations of that judgment it clarifies that the legal position pursuant to the powers of Section 210(1)(b) of the GPMC Act. In the present case, since this was first time road line was prescribed under the GPMC Act and therefore Municipal Page 18 of 26 Downloaded on : Tue Oct 11 21:30:47 IST 2022 C/SCA/10019/2021 CAV JUDGMENT DATED: 11/10/2022 Corporation is the best authority to decide as to how the road line decide and prescribed. In view of the matter, the Municipal Corporation after considering the materials available on record, such Notice is issued under Section 210 of the Act. Therefore, it cannot be held that since the Town Planning Scheme where 90 Mts. Road is provided and road line now be as demarcated in the first time under Section 210(1)(b) of the Act. Therefore, there is no conflict between the provisions of Gujarat Provincial Municipal Corporation Act, 1949 and the provisions of Gujarat Town Planning and Urban Development Act, 1976 and the same view is earlier also taken in the judgment reported in Pramjibhai D. Karane (supra). It is also important to refer and relied upon the judgment reported in 2007(2) GLH 335, wherein this Court has observed in para 5 which is as under:
"5. Having heard the learned counsel for both the sides and looking to the facts and circumstances of the case, I see no reason to interfere with the notice issued by the respondent Corporation for the following facts and reasons:
(I) It appears from the facts of the present case that Municipal Commissioner of Municipal Corporation of the City of Surat has exercised power under clause (1) of Sub-
section(1) of Section 210 of the Act of 1949. For the ready reference, Section 210 of the Act reads as under:
"210. Power to prescribe street lines.
(1) The Commissioner may, Page 19 of 26 Downloaded on : Tue Oct 11 21:30:47 IST 2022 C/SCA/10019/2021 CAV JUDGMENT DATED: 11/10/2022
(a) prescribe a line on one or both sides of any public street:
Provided that every regular line of a public street operative under any law for the first time being in force in any part of the City on the day immediately preceding the appointed day shall be deemed to be a street line for the purposes of this Act until a street line is prescribed by the Commissioner under this Clause ;
(b) from time to time, but subject in each case to the previous approval of the Standing Committee, prescribe a fresh line in substitution for any line so prescribed or for any part thereof:
Provided that such approval shall not be accorded unless, at least one month before the meeting of the Standing Committee at which the matter is decided, public notice of the proposal has been given by the Commissioner by advertisement in the local newspapers and special notice thereof, signed by the Commissioner, has also been put up in the street or part of the street for which such fresh line is proposed to be prescribed and until the Standing Committee has considered all objections to the said proposal made in writing an delivered at the office of the Municipal Secretary not less than three clear days before the day of such meeting.
From the facts, it is clear that the Standing Committee of the respondent Corporation has passed a resolution bearing No. 1002 of 2006 dated 5.7.2006 to implement the work of road widening. The decision was taken by the Municipal Commissioner that Surat Navsari road should have a width of 60 Mtrs. and certain revenue survey numbers are going to be affected by this road line and, therefore, necessary notice under Section 212 of the Act of 1949 ought to be given so that the concerned owners of the superstructure can remove their structures, failing which, Surat Municipal Corporation can demolish the same. The power exercised by Municipal Commissioner for prescribing the street line under Section 210(1)(a) of the Act of 1949 and regular street line is fixed by the Commissioner for the first time. It is not a re-prescription of the said line. Whenever Commissioner is fixing for the first time, the street line, it shall be under Section 210(1)(a) of the Act of 1949. The contention raised by the learned Counsel for the petitioner that the procedure required under Clause (b) of Sub-section (1) of Section 210 of the Act of 1949 is not followed, is not accepted by this Court mainly for the reason that the power Page 20 of 26 Downloaded on : Tue Oct 11 21:30:47 IST 2022 C/SCA/10019/2021 CAV JUDGMENT DATED: 11/10/2022 exercised by the Commissioner is for prescribing a street line for the first time. If there is re-prescription or revision in a street line, then only Section 210(1)(b) of the Act of 1949 will be made applicable. It is an admitted fact that Municipal Commissioner of the Municipal Corporation of the city of Surat has prescribed regular line of street for the first time. 'The fixation' is not 'a revision' of already fixed street line. In such a situation, there is no need to follow the procedure as envisaged under Section 210(1)(b) of the Act of 1949.
(ii) Looking to the fact of the present case, it appears that the prescription of regular line of street by Municipal Commissioner is in consonance with the Draft Revised Development Plan, 1996. The width of the road has been kept intact and as it is. What is prescribed under the Draft Revised Development Plan, 1996 especially width of Surat Navsari road situated on western side of survey No. 49 has not been changed by the Municipal Commissioner.
Therefore, the contention raised by the learned Counsel for the petitioner that the decision taken by the Municipal Commissioner is not in consonance with the Draft Revised Development Plan, 1996 is not accepted by this Court. On the contrary, it is otherwise. The Commissioner has fixed regular line of street, absolutely in consonance with the Draft Revised Development Plan. Looking to the provisions of the Act of 1976, the Draft Revised Development Plan is a Macro town planning. As per Section 12 of the Act of 1976, various factors are to be kept in mind while finalising the draft development plan and the road is one of them. Section 12(2)(d) of the Act of 1976 reads as under:
Section 12. Contents of draft development plan.
(1) xxx xxx xxx (2) In particular, it shall provide, so far as may be necessary, for all or any of the following matters, namely:
(a) xxx xxx
(b) xxx xxx
(c) xxx xxx
(d) transport and communications, such as roads, highways, parkways, railways, waterways, canals and airport, including their extension and development.
(e) ...
From the aforesaid section, it is clear that the town planning authority, while prescribing the draft Page 21 of 26 Downloaded on : Tue Oct 11 21:30:47 IST 2022 C/SCA/10019/2021 CAV JUDGMENT DATED: 11/10/2022 development plan ought to prescribe accurately, the road and not measurements like Final plot measurements, Final plot nos. etc. Measurements accurately will be done later on looking to further provisions of the Act of 1976. The position of the road, highways, parkways, railways, waterways, canals, airport, drainage, water supply, public utilities amenities etc. should be made accurately. Looking to this provision of Section 12 of the Act of 1976, the width of the road was prescribed as 60 mtrs. for Surat Navsari road lying on the western side of survey No.
49. This width has been kept intact and as it is by the Commissioner of Municipal Corporation of the city of Surat, but, there was no existing street line. For the first time, the same is prescribed under Section 210(1)
(a) of the Act of 1949. Looking to the map as shown by the learned Counsel for the respondent Corporation, this regular line of street affects several survey numbers and not only the petitioner. Neither width of the road can be reduced nor any unnecessary curvatures can be given. Looking to the facts of the case, the Municipal Commissioner of the Municipal Corporation of the city of Surat has absolutely followed the Draft Revised Development Plan,1996 and, therefore, the contention raised by the learned Counsel for the petitioner that Surat Navsari road can be slightly shifted on western side, especially towards final plot nos.23 and 24 is not accepted by this Court. Such type of random shifting of the road makes a bad town planning. As far as possible, the roads must be straight, without any unnecessary curves. Length of the road as per the learned Counsel for the respondent is approximately 7 kms. Rest of the superstructures have been demolished either on their own or by Surat Municipal Corporation which are coming within regular line of street of Surat Navsari road. As the petition is pending, the respondent Corporation has not demolished the property of the petitioner.
(iii) Looking to the facts of the case, it appears that no illegality has ever been committed by the respondent Corporation in drawing regular line of street and in giving notice under Section 212 of the Act of 1949.
(iv) The power exercised by the Commissioner of Municipal Corporation of the city of Surat is under the Act of 1949. It is an independent power from the power of Gujarat Town Planning and Urban Development Act, Page 22 of 26 Downloaded on : Tue Oct 11 21:30:47 IST 2022 C/SCA/10019/2021 CAV JUDGMENT DATED: 11/10/2022 1976. The prescription of regular line of street is well within the powers of Municipal Commissioner. As stated hereinabove, there is no procedural impropriety. The decision taken is evenly applicable to all as per the judgment rendered by this Court in the case of Premjibhai D. Kaarane alias Babubhai v. Ahmedabad Municipal Corporation reported in 1996(2) GLH, 230, especially as per para-7 thereof which reads as under:
"7. The concept of prescribing a line or a regular line or a street line is not new. A civil body in order to secure uniformity of appearance, draw a line on the sides of the road, and projection of building or part thereof beyond the 'line' is not allowed. It may have some relevance with the width of the road, but it does not necessarily or solely depends on the width alone. There are number of factors which are required to be considered by the authority in prescribing the street line. This power of a Civic body has been recognized by the Legislation under Section 210 of the BPMC Act. Prescribing a 'line' is a distinct independent statutory power of the Commissioner under the BPMC Act. It is an obligatory power in public interest. It is significant to notice that while there is a provision of drawing a street line or a regular line under the BPMC Act, there is no such provisions in the Town Planning Act. Under the Act, the Town Planning Scheme requires various items to be prescribed which includes 'road' but not the 'regular line'. The Legislature in its wisdom has not provided any provisions with respect of regular line or street line in the Town Planning Act and has conferred this power on one of the most important executive authority of the scheme i.e. Municipal Corporation. Thus, there is no conflict in powers under Section 210 of the BPMC Act and sanctioned scheme under the Act and as such the question of altering or variation of the scheme does not arise, whether it is a case of width of the road or shortening the size of the final plot. Viewing from another angle also, a Regular line or street line brings all the buildings on the road in line. It being a larger public interest, any individual building or part thereof even on the final plot under the sanctioned scheme must give way to the line prescribed under the Act.
Thus, it has been decided by this Court that prescribing a street line is a distinct and independent statutory power of the Commissioner under the Act of 1949. It is Page 23 of 26 Downloaded on : Tue Oct 11 21:30:47 IST 2022 C/SCA/10019/2021 CAV JUDGMENT DATED: 11/10/2022 an obligation in the interest of public at large. It has also been decided by this Court that when Commissioner is prescribing for the first time a street line, he has not to follow procedure as envisaged under Section 210(1)(b) of the Act of 1949. Thus, in view of the aforesaid facts, it is clear that the power exercised by the Commissioner is absolutely true, correct, legal and in consonance with the provisions of the Act of 1949. The judgment in the case of Girdharlal Ganpatram v. The Ahmedabad Municipal Corporation reported in 1960 GLR, 223 cited by the learned Counsel for the petitioner, looking to the facts of the present case, is not applicable, to the facts of the present case. Here, Municipal Commissioner has scrupulously followed a Revised Draft Development Plan,1996. The width of Surat Navsari road has been kept as it is 60 mtrs. and for the first time, the Commissioner is prescribing street line. These facts make the case of the petitioner different from the facts referred to in the aforesaid judgment reported in 1960 GLR, 223 and therefore, the said judgment is not helpful to the petitioner.
[8] Considering the aforesaid judgment which is squarely applicable in the facts of the present case, this Court has come into conclusion that while Surat Municipal Commissioner passing such resolution has not committed any illegality or irregularity in issuance of notice under Section 213 of the Act. It is also relevant to consider the judgment reported in AIR (1997) SCC 1236 and also judgment passed by this Court in the case of Dharmendra Ravi Pratap Rajak Vs. State of Gujarat in Special Civil Application No.16256 of 2021, wherein this Court has observed that "public interest will always have precedence over a private interest of the parties" and Page 24 of 26 Downloaded on : Tue Oct 11 21:30:47 IST 2022 C/SCA/10019/2021 CAV JUDGMENT DATED: 11/10/2022 also observed that that the "Courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 indeed any of their discretionary powers." Therefore, it cannot be attributed any legal malice to the impugned action of the authority and therefore, the contention raised by Mr.Kavina, learned senior counsel about legal malice is not acceptable in the facts of the present case. Hence, this Court found that there are no procedural laps committed by the Authority, which is in consonance with the provisions of Section 210(1)(b) of the Act, 1949 and the impugned action of issuance of Notice or passing resolution by the Standing Committee which is subject matter of the present petitioner cannot be considered as illegal arbitrary or improper. Hence, this Court is of the the considered view that there is no reason to interfere the impugned resolution or notice passed by the Municipal Commissioner and the present petition deserves to be dismissed. Accordingly, the present petition is dismissed. No order as to costs. Interim relief granted earlier stands vacated.
(SANDEEP N. BHATT,J) Page 25 of 26 Downloaded on : Tue Oct 11 21:30:47 IST 2022 C/SCA/10019/2021 CAV JUDGMENT DATED: 11/10/2022 FURTHER ORDER Today, when the matter is pronounced for judgment, learned Senior Counsel Mr.Percy Kavina appearing on behalf of the petitioners prays to extend the interim relief with a view to approach higher forum as interim relief, granted earlier, is operating till today.
On the other side, Mr.Dhaval Nanavati, learned counsel appearing on behalf of the respondent -
Corporation has strongly objected to extend the interim relief.
Considering the overall circumstances of the matter as interim relief, granted earlier, is already vacated by the order passed in the present petition and Mr.Kavina, learned Senior Counsel has prayed to extend interim relief with a view to approach the higher forum, this Court deems it fit to extend interim relief for a further period of four weeks.
(SANDEEP N. BHATT,J) Manoj Page 26 of 26 Downloaded on : Tue Oct 11 21:30:47 IST 2022