Gujarat High Court
Ladhabhai Gopaldas Patel vs Ahmedabad
Author: R.M.Chhaya
Bench: R.M.Chhaya
LADHABHAI GOPALDAS PATEL....Petitioner(s)V/SAHMEDABAD MUNICIPAL CORPORATIO C/SCA/2575/2012 CAV COMMON JUDGEMNT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO.2575 of 2012 WITH SPECIAL CIVIL APPLICATION NO.2738 of 2012 WITH SPECIAL CIVIL APPLICATION NO.3081 of 2012 For Approval and Signature: HONOURABLE MR.JUSTICE R.M.CHHAYA Sd/- ===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO =================================================== LADHABHAI GOPALDAS PATEL ... Petitioner(s) Versus AHMEDABAD MUNICIPAL CORPORATION & 1 ... Respondent(s) ===================================================== Appearance: IN SPECIAL CIVIL APPLICATION NO.2575 of 2012 MR SHAILN MEHTA, SENIOR COUNSEL, WITH MR MAULIN G PANDYA, ADVOCATE for the Petitioner IN SPECIAL CIVIL APPLICATION NO.2738 of 2012 MR MAHESH BHATT, SENIOR COUNSEL, WITH MR VIKRAM THAKORE, ADVOCATE for Petitioner(s) No.1-33 IN SPECIAL CIVIL APPLICATION NO.3081 of 2012 MR PH BUCH, ADVOCATE for the Petitioner MR PRASHANT G DESAI, SENIOR COUNSEL, with MR DHAVAL G NANAVATI, ADVOCATE for Respondent Nos.1-2 ( in all the three matters) ===================================================== CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 25/02/2013 CAV (COMMON) JUDGMENT Since these three petitions, under Article 226 of the Constitution of India, raise identical and common issues, they are taken up together and are being disposed of by this common judgment. RULE. Mr.Dhaval G. Nanavati, learned advocate, appears and waives service of rule on behalf of the respondent authorities in all matters. With consent of the parties, the petitions are taken up for final hearing. Heard learned Counsel appearing for the respective parties. Facts relating to SCA No.2575/2012: By way of this petition, the petitioner has challenged the notice dated 24.01.2012 issued by respondent No.2 under Section 212(2) of the Bombay Provincial Municipal Corporations Act, 1949 (the Act) (at Annexure-G to the petition) whereby the respondent-Corporation has rejected the objections filed by the petitioner in response to the earlier notice dated 26.08.2011 issued under Section 212(1)(a) of the Act and thereby informed the petitioner that the respondent-Corporation shall proceed further as per the prescribed road-line under Sections 212(3) and 212(4) of the Act. As per the impugned notice an area of admeasuring 105.16 sq. mtrs. of the petitioner is affected by the proposed road-line. The facts stated in the petition are as under: it is the say of the petitioner that the petitioner is occupier of the property/shop viz. M/s. Ladhabhai Gopaldas Patel, situated at Old Survey No.00017/10/1 + 17/10/2, Final Plot No.17/A, Town Planning Scheme No.1, Jamalpur, Kankaria Ward, Ahmedabad. That the respondent-Corporation initiated proceedings for prescription of road-line and the Municipal Commissioner prescribed the road-line accordingly and the petitioner and the other affected persons were issued similar notices under Section 212(2) of the Act intimating that the objections filed by them were received and that the standing committee by Resolution No.954 dated 19.01.2012 gave permission to demolish the structure in the question, in case the same is not demolished within a prescribed period of 35 days, the Municipal Commissioner will take action under Section 212(3) of the Act and take over the possession of the said premises under Section 212(4) of the Act. That the said notice came to be challenged by the petitioner and the other similarly situated persons by way of instituting Civil Suit No.6217 of 1995 before City Civil Court, Ahmedabad, inter alia, challenging the legality and validity of the aforesaid notices and action of the respondent-Corporation. During pendency of the said suit the prescribed road-line came to be implemented whereby the petitioner lost 74.85 sq. mtrs. of land in the year 2001. That the respondent-Corporation thereafter undertook the task of inspection of the property belonging to the petitioner and the other adjoining properties and as the petitioner was under apprehension that his property would be demolished, Civil Suit being 708 of 2004 was instituted by the petitioner before City Civil Court, Ahmedabad for permanent injunction restraining the respondent authorities from demolishing/removing the construction of the premise belonging to the petitioner, without issuing prior notice and without following proper proceeding prescribed under law. That initially injunction was granted in favour of the petitioner and notices were issued to the respondent authorities, however, ultimately the said Civil Suit No.708 of 2004 came to be dismissed for want of prosecution vide order dated 29.12.2011. That in the meantime respondent No.2 issued notice dated 26.08.2011 to the petitioner under Section 212(1)(a) of the Act whereby the petitioner and the other similarly situated persons came to be informed about the extent of area which comes within the prescribed road-line. As far as the property of the petitioner is concerned, area of 105.16 sq. mtrs. is affected by the proposed prescription of road-line, to which various objections were filed by the petitioner. That the said objections were placed before the Standing Committee of the respondent-Corporation, and the Standing Committee, without providing opportunity of hearing and without appreciating the submissions of the petitioner, passed Resolution No.1994/2011-12 dated 19.01.2012 declaring that the Municipal Commissioner is permitted to proceed for acquisition of the land situated at South Zone within the area of Shah-E-Alam Toll Naka to Geeta Mandir for the purpose of expansion of 30.48 mtrs. wide road. That the said impugned notice is under challenge in the present petition. It is averred in the petition that the petitioner is carrying on business of trading in timber and wood at Geeta Mandir Lati Bazaar, Geeta Mandir Road, Ahmedabad and is the occupier of the said property/shop in question since last more than 60 years. That the petitioner was originally occupying an area of 200.25 sq. mtrs. of land, including construction, however, he lost area of 74.85 sq. mtrs. in the earlier prescription of road-line and as of today he is in possession of 125.40 sq. mtrs., including construction and if the impugned notice is implemented the petitioner would be left with an area comprising of 4 sq. mtrs. only. It is specifically pointed out that there is sufficient space available considering the Bus Rapid Transit System (BRTS) route. That curvature has been provided on the road which affects the property of the petitioner and if the curvature is not provided the property of the petitioner would not be affected otherwise the property of the petitioner would not be sustained. That if slight deviation is taken on the right side then the property of the petitioner as well as the other adjoining shop owners would remain unaffected. Moreover, it is averred that if such deviation is made no other property situated on the other side would be affected. This Court (Coram: Abhilasha Kumari, J) on 24.02.2012, inter alia, passed the following order (in SCA No.2757/12): Heard Mr.Shalin N. Mehta, learned advocate for Mr.Maulin G. Pandya, learned advocate for the petitioner. He has made the following submissions : (i) That the petitioner was the original owner of 200.25 sq.mtrs. of land, including the construction. In the year 2001, he lost 74.85 sq.mtrs. of land due to road expansion and now the petitioner is in possession of 125.40 sq.mtrs. of land, including the construction. The petitioner has been issued a notice dated 26.08.2011 under Section-212(1)(a) of the Gujarat Provincial Municipal Corporations Act, 1949 ( GPMC Act , for short), to remove the construction that is falling within the revised road-line, that has been prescribed for B.R.T.S. Route. (ii) That the resultant situation would be that the petitioner would be left with only 4.00 feet of land, if the said notice is implemented. The petitioner has submitted his objections within the stipulated period of time, on 08.09.2011, stating all the relevant factual aspects therein. However, without considering the objections of the petitioner in proper perspective, the impugned notice under Section-212(2) of the GPMC Act dated 24.01.2012 has been issued to the petitioner, calling upon him to remove the construction, within a period of 35 days from the date of the notice. (iii) That Section-212 empowers the Commissioner to order setting back of buildings to the regular line of the street. As per Section-212(1)(a), the owner of the building is required to show cause within the stipulated period of time why such building or any part thereof, shall not be pulled down or the land acquired by the Commissioner. Section-212(1)(b) requires the owner to be called upon on a particular date at a time and place indicated to attend personally or by an agent duly authorized by him in that behalf to show cause in this regard. As per sub-section(2) of Section-212, if such owner fails to show sufficient cause to the satisfaction of the Commissioner why such building or any part thereof, which is within the regular line of the street, shall not be pulled down and the land within the said line acquired, the Commissioner may, with the approval of the Standing Committee, require the owner by a written notice to pull down the building. That though the section envisages an opportunity to show cause, it does not provide for a situation where the petitioner or owner of the building has shown sufficient cause. In case the Commissioner is of the view that the petitioner has shown sufficient cause, there is no bar in the said section to call the petitioner for personal hearing as in a case such as the present one, when the petitioner has submitted valid objections, mere paper hearing is not sufficient and an opportunity of personal hearing must be given. That this Court in Killol V. Shelat Vs. Municipal Corporation of City of Ahmedabad and another reported in (2009) 1 GLH 13 has stated that though the right to property may not be a fundamental right, it continues to be a constitutional right, which has now been recognized as a human right. A citizen cannot be deprived of this human right without, at least, a minimum right of hearing. In a given case a citizen may be able to point out to the authority that the proposed prescription of the street line is either arbitrary or unjust or wholly malafide. (v) That in view of the principle laid down by the Division Bench in the above-quoted judgment, the Commissioner ought to have afforded the petitioner an opportunity of personal hearing, on the facts and in the circumstances of the case, especially when the petitioner had specifically requested for personal hearing in the objections submitted by him. That the objections of the petitioner have been summarily rejected by a one-line order, stating that they are not satisfactory and baseless, without giving a single cogent reason in support of the rejection. Such summary dismissal of objections, without valid or cogent reasons militates against the principles of natural justice and fairness in action. Issue Notice returnable on 22.03.2012. Ad-interim relief in terms of paragraph-8(B) is granted, till then. Upon notice having been issued, on behalf of respondent No.1 affidavit-in-reply dated 23.07.2012 has been tendered whereby the respondent authorities have vehemently contested the petition. It is, inter alia, contended that : the Municipal Commissioner is entitled to prescribe regular line of public street as provided under Section 210 of the Act and after following the necessary formalities the regular line of public street has been prescribed by the Municipal Commissioner. That in pursuance of such prescription of the road-line as the premises of the petitioner comes within the regular line, the petitioner was issued a show cause notice dated 24.08.2011 as provided under Section 212(1)(b) of the Act calling upon the petitioner to show cause why the superstructure lying within the regular line of street be not removed and the land thereunder be acquired under the provisions of the Act for the purpose of street. That the objections filed by the petitioner dated 08.09.2011 were considered and rejected and the same were placed before the Standing Committee of the respondent-Corporation and the said Committee vide Resolution No.1994 dated 19.01.2012 approved the prescription of road-line and thereafter the impugned notice has been issued. That notices dated 02.09.2011 were issued to all the affected persons, who were the owners and occupiers, whose premises were situated between Shah-E-Alam Toll Naka to Geeta Mandir Char Rasta Petrol Pump Via Geeta Mandir S.T. Stand, Astodia Darwaja under Section 210(1)(b) of the Act on the basis of the revised development plan. That the existing 80 ft. T.P. road is required to be converted into the 100 ft. road as per the revised development plan. That in order to implement the project of BRTS, it is necessary to develop the alignment of the said road and, therefore, it is necessary to remove the construction on the said road in question and accordingly the Standing Committee of the respondent-Corporation has passed resolution on 12.05.2011 in order to meet with the requirements of BRTS project. It is further contended that because of such public interest widening of the road is necessary and the construction of commercial premises are required to be demolished. That the said road is required to be widened as per the revised development plan from the existing 80 ft. into 100 ft. in public interest, in order to overcome the problem of traffic congestion. That to implement the same, the competent authority had initiated all the necessary actions to put the revised development plan in order, by widening the existing 80 ft. T.P. Road to 100 ft. as per the revised development plan. It is also pointed out that the Municipal Commissioner has declared his intention to prescribe a fresh road line in substitution for any line prescribed and accordingly gave advertisements in Gujarati dailies Jan Satta and Sandesh and such notice came to be published on 24.03.2011 (at Annexure-III to the affidavit-in-reply). That as the petitioner or similarly situated persons did not put forward any objections, final notice dated 28.08.2011 came to be issued as provided under Section 212(1) of the Act. That thereafter procedure has been followed and the Standing Committee vide Resolution No.269 dated 12.05.2011 has granted permission to the Municipal Commissioner to take necessary action under Section 212(1) of the Act. That during the time limit so prescribed in the advertisements as no objections were raised to the proposed road-line, the Municipal Commissioner submitted a proposal on 07.05.2011 to the Standing Committee proposing the prescribed fresh road-line as provided under Section 210(1)(b) of the Act, which came to be approved vide Resolution No.269 dated 12.05.2011 of the Standing Committee of the respondent-Corporation. That after approval and authorization from the Standing Committee, the Municipal Commissioner has issued necessary statutory order as provided under Section 210(1)(b) of the Act on 23.05.2011 and thus, prescribed the fresh road-line between Shah-E-Alam to Geeta Mandir Char Rasta Petrol Pump Via Geeta Mandir S.T. Stand-Astodia Darwaja as regular road-line. That necessary statutory show cause notices as provided under Section 212(1) of the Act came to be issued to all the owners and the occupiers affected by the fresh road-line asking them to file objections/ written submissions, if any, on or before 09.09.2011, to which the petitioner filed objections on 08.09.2011 which were placed before the Standing Committee on 11.01.2012 and after having considered the same the Standing Committee vide Resolution No.1994 dated 19.01.2012 rejected the said objections. That even in the year 1995 such procedure was undertaken by the respondent-Corporation and vide letter dated 07.04.1995 reply was given to the petitioner wherein a chance was given for explanation and it was stated therein that failing which the respondent-Corporation would take legal actions as per the said notice. Similarly vide letter dated 02.09.2011 the respondent-Corporation gave a chance to the petitioner asking his explanation. It is further contended that the shop belonging to the petitioner falls on the said road which is required to be widened in public interest. That the respondent-Corporation has denied the grounds raised by the petitioner and it is contended that widening of the road is required, more particularly looking to the traffic congestion in the city of Ahmedabad which is increased beyond the vision of the planning at the time of finalization of the Town Planning Scheme and, therefore, it is contended that widening of the road is eminently necessary at the earliest for the public interest and public at large. Further the respondent-Corporation has denied the contentions raised by the petitioner and has also denied the fact that the measurement of regular line of street is not provided to the petitioner. That the petitioner has been given enough opportunity to ventilate his grievance and file objections, if any, to the notices under Section 212(1) of the Act. That the respondent-Corporation has completed all formalities to put the prescribed road-line under the provisions of the Act after giving all necessary statutory notices as required under the Act in public interest in order to see that the revised development plan is implemented at the earliest. That all the owners of the shops are entitled to compensation under Section 216 of the Act. Lastly, it is also contended that the petition is false, frivolous, illegal and concocted. In rejoinder, the petitioner reiterated the grounds stated in the petition, more particularly it is submitted that an opportunity of personal hearing ought to have been provided to the petitioner and principles of natural justice ought to have been followed. Reliance was also placed upon the provisions of Section 212 of the Act whereby it was submitted that a bare perusal of the said section clarifies that the powers to issue notice under Sections 212(1) and 212(2) of the Act rests only with the Municipal Commissioner and not any other officer, who is subordinate to him. It is also submitted that there is no enabling provision which would enable the Municipal Commissioner to delegate the said power to any of his subordinate officer, in absence of which notice under the aforesaid sections, if any issue by an officer other than the Municipal Commissioner would be illegal. However, it is contended in the present case such notices were issued by the Estate Officer, who is not authorized as per the provisions of the Act and, therefore, such notices are violative of the statutory mandate and the same are required to be struck down. It may be noted that this Court during course of hearing on 23.08.2012 passed the following order (in SCA No.2757/12): 1. Mr. P.G. Desai, ld. Senior Advocate appearing with Mr. Dhaval Nanavati appearing for the respondent corporation shall file additional affidavit clarifying the following two factual positions. 2. Firstly, whether there is any delegation in favour of the authority, who has issued the impugned notices and secondly as regards the procedure that is followed under Section 210(B) of the Bombay Provincial Municipal Corporations Act, 1949. 3. Such an affidavit shall be filed on or before 27.08.2012. The matter is adjourned to 05.09.2012. Status quo to be continue till then. Pursuant to the aforesaid order the respondent-Corporation has filed a further common affidavit (in SCA Nos.2575/12 and 2738/12) wherein it has been contended that the respondent-Corporation has prescribed regular line of a public street by Resolution dated 12.05.2011 in exercise of powers conferred under Section 210(1)(b) of the Act. It is further submitted that the Municipal Commissioner made proposal to the Standing Committee and a public notice has been issued by way of advertisements in two local newspapers and a notice was also published on the website of the respondent-Corporation showing fresh line proposed to be prescribed, as indicated in a separate map. It is further contended that no objections have been filed by any of the affected persons, including the present petitioners of the aforesaid petitions, and, therefore, the line so prescribed is called as a regular line of the public street. It is further contended that notice under Section 212(1)(c) of the Act was issued by the respondent-Corporation, through the Deputy Estate Officer, Estate Department, South Zone, in view of the delegation of powers vide Office Order No.3599 Order dated 14.10.2003. It was also contended that before placing the proceedings before the Standing Committee the file was placed before the Assistant Municipal Commissioner, Deputy Municipal Commissioner and the Municipal Commissioner of the respondent-Corporation and after getting approval in respect to the letter of the Municipal Commissioner to be placed before the Standing Committee, reference to the notice given under Section 212(1)(c) of the Act was also made, note of which was also taken by the Commissioner, including the objections filed by the affected persons and decision taken by the department are also taken by the Municipal Commissioner, and after considering such objections the Commissioner has approved the same and thereafter the matter was placed before the Standing Committee. It is also contended that the respondent-Corporation followed all procedure to provide regular line of street as provided under the Act. That the respondent-Corporation vehemently denied that proper notice has not published as provided under the Act and it is contended that in response to the notice issued by the respondent-Corporation as no objections have been raised by any of the petitioners, the petitioners have waived their right to object for the prescribed road-line and, therefore, the petitioners are now estopped from contending that the procedure is not followed by the respondent-Corporation. That the respondent-Corporation has also denied the allegation of mala fide intention. It is contended that prescription of road-line of 30.50 sq. mtrs. width is as per the notice under Section 210(1(b) of the Act. It was also contended that provision of the Act does not contemplate any personal hearing. It may be noted that during course of hearing learned counsel for the petitioner has tendered affidavit of draft amendment whereby the contentions, as such which are taken in cognate matter (being Special Civil Application No.2738 of 2012) are sought to be brought on record with a specific prayer that the impugned notice in the petition dated 24.03.2011 issued by the respondent authorities under Section 210(1)(b) of the Act as well as notice dated 26.08.2011 issued under Section 212(1)(a) of the Act be also set aside and with a further prayer to hold and declare that the proceedings of acquiring the land of the petitioner is illegal, arbitrary, discriminatory, mala fide and unconstitutional. Facts relating to SCA No.2738/2012: This petition is filed by 33 petitioners, who are also affected by the prescribed road-line and have challenged the public notices issued under Section 210(1)(b), 212(1)(a) and 212(2) of the Act (at Annexure-E, F and H respectively to the petition). The case of the petitioners in the petition is that the petitioners are the owners and occupiers of the part of Final Plot No.68 of Jamalpur Town Planning Scheme No.1. Out of which the petitioners named in Annexure-A to the petition are the owners and the persons named in Annexure-C to the petition are the occupiers / tenants of the properties, which are affected by the prescribed road-line. As the factual background of the present petition is similar to the facts narrated hereinabove of SCA No.2575 of 2012, the same are not repeated here. The petitioners have contended that the impugned public notice dated 24.03.2011 (at Annexure-E to the petition) under Section 210(1)(b) of the Act is vague and the same does not provide any particulars regarding proposed new street line and merely indicates the road on which the new street line is proposed to be extended. It is contended that the object of the provisions is to provide reasonable opportunity to the property holder to raise objections and make representation. It is further contended that principles of natural justice are incorporated in the statute only with an object that there would be participation of people in the decision making process. It is contended that no effective opportunity of hearing is given to the petitioners to raise any objections or to make representation since none of the petitioners could understand from the notice that the proposed new street line is likely to adversely affect their properties. It is also contended that it is impossible to note from the said notice the extent of area, which is affected by the prescribed road-line. It is alleged that issuance of notice is merely an empty formality and eye-wash and there was no genuine intention on the part of the respondent authorities to give reasonable opportunity to the petitioners to raise their objections against the proposed widening of the public street. It is also alleged that there is also breach of Proviso to Section 210(1)(b) of the Act and, therefore, it is averred that all further proceedings are vitiated, void, inoperative even in pursuance to Resolution No.269 of the Standing Committee dated 12.05.2011. It is contended that under the provisions of the Act the objections filed by the petitioners pursuant to the notice under Section 212(1)(a) of the Act, which came to be issued in September 2011, are required to be considered by the Standing Committee. However, it is alleged that the same have not been considered by the Standing Committee and only an empty formality is followed by the respondent authorities. It is further contended that the original width of the road/street is 24.30 mtrs. and now it is proposed to make it 30.48 mtrs, the petitioners also objected to the said proposed increase and contended before the authority that the proposed increased width of the road should be divided on both sides of the road, however, such an important objection has not been taken into consideration by the respondent authorities. It is further contented that it is mandatory under Section 212(b) of the Act to give personal hearing and even though the petitioners had requested, personal hearing was not provided, though the same is integral part of the principles of natural justice, which is incorporated in the statute. It is therefore contended that non-compliance of principles of natural justice has ultimately resulted in miscarriage of justice. It is contended that if the hearing would have been provided to the petitioners, they could have been effectively represented and probably convinced the authorities about extension of width on both the sides of the road. It is further contended that the status of the Town Planning Scheme on its sanction becomes a part of the law and, therefore, it cannot be modified or amended in exercise of the powers under the Act. It is also contended that the respondent-Corporation is not competent to deprive the petitioners of their own properties, without authority of law and without following the procedure prescribed by law as embodied under Article 300A of the Constitution of India. It is contended that provisions of Section 209 of the Act is not followed in the present case and the extension of road-line is provided only one side at a particular place where the petitioners properties are situated. It is further stated that Final Plot No.101 is situated just opposite direction of F.P. Nos.68 and 71 and according to the information of the petitioners all the persons who made construction on F.P. No.101 are compelled to leave a margin land of 10 ft. from the road and if the width of the street is extended to that side, no buildings/construction would be required to be demolished. It was contended that on previous occasion also substantially part of F.P. Nos.68 and 71 were deducted and acquired for laying public street and for expanding public street and, therefore, such action is mala fide on the part of the respondent-Corporation and the same is done only in order to see that the properties of the opposite side of Final Plot Nos.58 and 70 are protected and the petitioners are deprived of their valuable properties by losing their properties to the extent of entire expanded width of the public street. On 29.02.2012 this Court (Coram: Abhilasha Kumari, J) issued notice in this petition. In response to the notice, the respondent-Corporation have filed affidavit-in-reply reiterating the same facts as were mentioned in the affidavit-in-reply filed in SCA No.2575/12. As the are elaborately dealt with in the earlier part of this judgment, the same are not repeated here. The petitioners have also filed affidavit-in-rejoinder and have reiterated the contentions raised in the petition. Further, in reply to the common additional affidavit filed by the respondent-Corporation dated 27.08.2012, the petitioner has also filed further rejoinder. Facts relating to SCA No.3081/2012: The present petition is filed by one of the occupiers of the land bearing Revenue Survey No.3170, Final Plot No.75, T.P. Scheme No.1, admeasuring about 4.38 sq. mtrs. and 9.39 sq. mtrs., which is affected by the road-line and the petitioner has challenged the impugned notice issued by the respondent authorities, served upon the petitioner on 01.02.2012. It may be noted that the petitioner has also amended the petition and has raised contentions that are raised in Special Civil Application Nos.2575/12 and 2738/12. The petitioner has raised identical contentions which are raised in SCA No.2738/12 and it is found that in Paragraph No.22 in fact the petitioner has relied upon the same. It is contended that a temple (Ghar Mandir) of Goddess Bahuchara Mata is there since more than 60 years and there is a school named Shakti Vidhyala. The respondent-Corporation have filed similar affidavit-in-reply, which is filed in the other two connected writ petitions. As the contents thereof are elaborately dealt with in the earlier part of this judgment, the same are not repeated here. The petitioner has also filed affidavit-in-rejoinder on the similar line as filed in those two writ petitions and, therefore, the same are not dealt with separately here. It may be noted that during course of hearing learned counsel for the petitioner has tendered two draft amendments (dated 09.10.2012 and 14.03.2012) whereby the contentions as such which are taken in cognate matter (being Special Civil Application No.2575 of 2012) are sought to be brought on record challenging the notice and resolution. It may be further noted that over and above the contentions raised in the petition the petitioners of Special Civil Application Nos.2575/12 and 2738/12 have tendered brief note / written submissions. By means of written submissions filed before this Court Mr.Mr.Shalin N. Mehta, learned Senior Counsel for the petitioner (in Special Civil Application No.2575 of 2012), inter alia, contended as follows: That a special notice under Section 210(1) of the Act is mandatory. It is also contended that provisions of sub-section (1) of Section 210 of the Act clearly provides for giving special notice in addition to the public notice and there is nothing on record to show that the respondent-Corporation has issued any such special notice as contemplated under the Proviso to Section 210(1) of the Act and, therefore, the impugned notice dated 24.01.2012 is incompetent and improbable. It is further contended that special notice under Section 210(1) of the Act is mandatory and non-compliance of the mandatory provisions render the action void. It is contended that non-compliance of Section 210(1) of the Act renders all subsequent action redundant. It is further contended that in view of the ratio laid down by this Court in the case of Killol V. Shelat Vs. Municipal Corporation of City of Ahmedabad & Anr., (2009) 1 G.L.H. 13, personal hearing is must before taking action under Section 212 of the Act. It is contended that the impugned notice dated 24.01.2012 is therefore violative of principles of natural justice. It is also contended that manner of dealing with written objections of the petitioner to the show cause notice issued under Section 212 of the Act smacks of arbitrariness and unreasonableness. It is further contended that every administrative order must be supported by reasons. Relying upon the decision of the Apex Court in the case of Union of India Vs. Ibrahim Uddin & Anr., (2012) 3 S.C.C. 148, it is also contended that oral/personal hearing ought to have been accorded by the standing committee of the respondent-Corporation. It is also contended that if the ultimate decision of the commissioner to act on the impugned notice dated 24.01.2012 is based on the Standing Committee s Resolution No.1994 dated 19.01.2012, hearing should be offered by the authority that takes the ultimate decision. It is therefore contended that as the ultimate decision maker is the standing committee because the commissioner has no power to deviate from the Standing Committee s view. However, in this case, no oral/personal hearing has been accorded by the standing committee to the petitioner and, therefore, the impugned notice dated 24.01.2012 is violative of principles of natural justice and the same requires to be quashed. It is also contended that the impugned notice is violative of Articles 19(1)(g) and 300A of the Constitution of India as the petitioner has constitutional right to do business. It is also contended that the petitioner has constitutional right to the property and even though it may not be a fundamental right it is at least a human right. It is therefore submitted that the State can deprive a citizen of that right only where there is compelling interest and by choosing restriction alternative. It was therefore contended that slight deviation in the proposed BRTS route can save the petitioner s property without imposing a huge burden upon the respondent-Corporation. It is contended that the petitioner s objections were rejected by the respondent authorities in one-line without recording the reasons. Over and above the aforesaid contentions raised in SCA 2575/12, the petitioners of SCA No.2738 of 2012 have also filed written submissions and have more or less reiterated the same contentions which are raised in SCA No.2575/12. Reliance was also placed upon the decisions of the Apex Court in the case of Khub Chand & Ors., Vs. State of Rajasthan & Ors., AIR 1967 S.C. 1074, Narinderjit Singh v. State of Uttar Pradesh, A.I.R. 1973 S.C. 552, as well as J & K Housing Board & Ors., Vs. Kunwar Sanjay Krishna & Ors., (2011) 10 S.C.C. 714. It is contended that the impugned notice is absolutely vague, only an eye-wash and an empty formality. It was contended that the petitioners came to know about the location of the proposed widening of the road for the first time when they received notice dated 27.09.2011 and, therefore, this was the first opportunity for the petitioners to raise objections and they have raised serious objections against the said notice, however, the same have been mechanically rejected and the standing committee has also granted approval without application of mind. It is further contended that the delegation of powers under Section 69(2) of the Act in favour of the commissioner or subordinate officer is without any authority, unfair and without jurisdiction. It is also contended that the breadth of the road prescribed under the Final Taluka Panchayat Scheme cannot be altered or modified by the commissioner under the Act. It was contended that The Gujarat Town Planning & Urban Development Act, 1976 (is a special Act in respect to T.P. while provisions regarding widening of the street in the Bombay Provincial Municipal Corporations Act, 1949 is an incidental provisions and, therefore, the T.P. Act would prevail. It is also contended that the Commissioner cannot deduct the land only on one side only for the expansion of road and the same would amount to modifying the Town Planning Scheme, which has become part of the BPMC Act as provided under Section 65 of the T.P. Act. It is therefore contended that such action is taken only with mala fide intention and with a view to favour the property holders on the Eastern side. Mr.P.G.Desai, learned Senior Counsel appearing for the respondent authorities, has relied upon the affidavits that are filed in each matter and has also submitted written submissions in these group of petitions. It is contended that under Section 210 of the Act the Municipal Commissioner is entitled to prescribe road-line of public street. It is contented that under Section 210(1)(a) of the Act the Commissioner is entitled to prescribe the line on one or both sides of any public street and under Section 210(1)(b) of the Act the Commissioner is empowered to prescribe a fresh line in substitution of any line so prescribed or for any part thereof after taking the previous approval of the Standing Committee. It is contended that Section 210(1)(b) of the Act provides that public notice of the proposal is to be given by the commissioner by way of publishing an advertisement in local newspaper and a special notice thereof signed by the commissioner or special notice thereof should be put up in the street or part of the street inviting objections and suggestions to the said proposal which should be made in writing and deliver at the office of Municipal Secretary not less than 03 (three) clear days before the day of such meeting. That after considering the objections the line is prescribed, which should be regular line of the public street. It is also contended that the word public street is defined under Section 2(52) of the Act and the word street is defined in Section 2(63) of the Act. It is further contended that after the regular line and public street is prescribed, the commissioner is empowered to give notice for setting back of the building to regular line of the public street or taking possession of the open plot under Section 213 of the Act. Relying upon the ratio laid down by this Court in the case of Premjibhai D. Karane alias Babuahi Vs. Ahmedabad Municipal Corporation, 1996 (2) G.L.H. 230 it is contended that the public street vests in the Corporation and there is statutory obligation on the commissioner to prescribe a line on both sides of the public street or road. It is also further contended that the provisions further give additional power to the commissioner to order demolition of building or part of the building, if in his opinion, it is outside the regular line of the public street. It is further contended that the public notices were issued in the newspaper on 24.03.2011 wherein it is provided that the Corporation intends to substitute regular line of public street under Section 210(1)(b) of the Act from Shah-E-Alam Toll Naka to Geeta Mandir S.T. Road, which goes up to Astodia Darwaja and the plans for that purpose is already in the office of Estate/Town Development Department, Central Zone, for inspection and if any person has any objection they can file their objections within one month from the date of issuance of notice i.e. 24.03.2011. It is contended that as no objection is received/filed by any of the petitioner or any other persons the regular line of public street was prescribed and the resolution was passed on 12.05.2011 the regular line of the public street was prescribed by the Commissioner on 24.08.2011. In response to the contentions raised by the petitioners it is, inter alia contended by the respondents that : neither the petitioners nor any persons have raised any objections in respect of the said regular line of public street prescribed by the Corporation at the time of issuance of public notice; Section 210(1)(b) of the Act only states that the public notice and the proposal should be known to the public by way of advertisement for raising the objections and the public notice so issued, as stated hereinabove, after inviting the public at large the regular line of public street is prescribed in respect of the road in question and if any person wants to inspect the map they can so inspect. As regards the contention about affixing the notice in the street or a part of the street, it is submitted that the same was already issued on the website of the Corporation which is widely circulated and which can be available for the knowledge of several persons and sufficient knowledge about the regular line of public street is already given to the public at large and the map was also kept open for inspection. It is further contended that the notice was published on the website and also in the newspaper which is sufficient compliance of Proviso to clause (b) of sub-section (1) of Section 210 of the Act. That the petitioners have filed their objections to the notice dated 24.08.2011 issued under Section 212(1)(b) of the Act and have contended that they are doing business since last 10 years and earlier also the Corporation has taken some property for widening the road. That the petitioners have further submitted in the said objections that in view of the road-line there will be a deduction from their properties and the Corporation should re-consider for not taking the properties of the petitioners for widening the road. However, the petitioners have neither objected to the issuance of the private notice under Section 210(1)(b) of the Act nor they have objected about the procedure under Section 210(1)(b) of the Act and, therefore, the petitioners have waived their right for filing objections under Section 210(1)(b) of the Act since they have never objected to the same earlier when the public notice was issued under Section 210(1)(b) of the Act was issued by the respondent-Corporation and relying upon the decision of the Apex Court in the case of Babulal Badri Prasad Vs. Surat Municipal Corporation, 2008 (3) G.L.H. 137, it is submitted that now the petitioners cannot raise such a contention. It is also contended that the total road-line which was prescribed by the commissioner under Section 210(1)(b) of the Act is of 2.5 kms. in length starting from Shah-E-Alam Toll Naka to Geeta Mandir Char Rasta and out of the same substantial portion is already utilized for widening of road and only 700 sq. mtrs. approx. is remaining which is of the petitioners. Elucidating further details it is contended that the petitioner of Special Civil Application No.2575 of 2012 is having 105.16 sq. mtrs., whereas the petitioners of Special Civil Application No.2738 of 2012 are having area of 553.81 sq. mtrs. and the petitioner of Special Civil Application No.3081 of 2012 is having area of 104.27 sq. mtrs. It is also contended that out of 230 small construction affected by the road-line, only 50 remain and the others have already been removed as the road-line is already laid down. It is further contended that all 50 remaining structures are having commercial business. It is therefore contended that major portion of the land is already taken away for widening the road and the road is already widened substantially. Reliance is also placed upon the map as well as photographs to substantiate the case that the road widening process has already taken place in rest of the area. In reply to the contention raised by the petitioners that the Deputy Estate Officer, who has issued notice under Section 212(1)(a) of the Act is not empowered to issue such notice, it is contended that the Deputy Estate Officer, Estate Department, South Zone, was delegated with the powers vide Office Order No.3599 dated 14.10.2003 whereby the Municipal Commissioner has already delegated the powers in view of Resolution of the Standing Committee dated 18.09.2003 for issuance of notices under Sections 212, 213, 214, 215 and 216 of the Act. After notice was issued the objections were received and files were placed before the Assistant Municipal Commissioner, Deputy Municipal Commissioner and then before the Municipal Commissioner and thereafter it was placed before the Standing Committee and a decision was taken by the Standing Committee after taking into consideration the opinion of the Commissioner, who has approved the noting made by the department before file was placed before the Standing Committee and after considering everything the Standing Committee passed the resolution. It is therefore contended that the Deputy Estate Officer has issued notice under the delegated powers, whereas the decision was taken as required under Section 212 of the Act and thereafter final notice was issued. It is thereafter contended that there is no procedural lapse as contended by the petitioners. It is further contended by the respondent-Corporation that the road in question is very important road going from Shah-E-Alam Toll Naka to Geeta Mandir Road, which is having S.T. Bus Stand and the respondent-Corporation has already started construction of BRTS as the same is required to be constructed facilitating the public at large for going from Shah-E-Alam Toll Naka to S.T. Bus Stand where they can take S.T. to go outside Ahmedabad and for having proper transportation. It is contended that the road-line in question is prescribed in the public interest and the petitioners will be compensated under Section 216 and Sections 389 and 390 of the Act. It is contended that in view of the fact that major part of the road is already constructed and only small portion is left, the present petitions are required to be rejected, since all formalities as per law are completed by the respondent-Corporation for prescription of the road-line and taking possession of the properties which are coming in the regular line. Reliance was placed on behalf of the learned Senior Counsel appearing for the respondent-Corporation on the following decisions: Kirtibhai Nandvadan Bhatt & Ors. Vs. Ahmedabad Municipal Corpn., 1996 (1) G.L.H. 905; AND Sonika Industries Vs. Municipal Corporation of Rajkot, 1988 (1) G.L.H. 423; Before considering the submissions made by learned Counsel appearing for the respective parties, it would be necessary to refer the following relevant provisions of the Act: 2(52) "public street" means any street-- (a) heretofore levelled, paved, metalled, channelled, sewered or repaired out of municipal or other public fund, or (b) which under the provisions of section 224 is declared to be, or under any other provision of this Act becomes, a public street; 2(63) "street" includes any highway and any causeway, bridge, arch road, lane, footway, sub-way, court, alley or riding path or passage, whether a thoroughfare or not, over which the public have a right of passage or access or have passed and had access uninterruptedly for a period of twenty years, and, when there is a footway as well as a carriage way in any street, the said term includes both; 210:Power to prescribe street lines. -(1) The Commissioner may, (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 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, atleast 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, and delivered at the office of the Municipal Secretary not less than three clear days before the day of such meeting. The line for the time being prescribed shall be called "the regular line of the street". (3) A register with plans attached shall be kept by the Commissioner showing all public streets in respect of which a regular line of the street has been prescribed and such register shall contain such particulars as to the Commissioner may appear to be necessary and shall be open to inspection by any person upon payment of such fee as may from time to time be prescribed by the Standing Committee. (4)(a) Subject to the provisions of sub-section (5) no person shall construct or reconstruct any portion of any building on land within the regular line of the street except with the written permission of the Commissioner and in accordance with the conditions imposed, therein and the Commissioner shall in every case in which he gives such permission, at the game time, report his reasons in writing to the Standing Committee. (b) No person shall construct or reconstruct any boundary wall or a portion of a boundary wall within the regular line of the street except with the written permission of the Commissioner: Provided that if, within sixty days after the receipt of an application from any person for permission to construct or reconstruct a boundary wall or a portion thereof, the Commissioner fails to acquire the land within the regular line of the street under section 213 the said person may, subject to any other provisions of this Act or the rules or by-laws, proceed with the work of construction or reconstruction of such boundary wall or a portion thereof, as the case may be. (5)(a) When the Commissioner grants permission under clause (a) of subsection (4) for the construction or reconstruction of any building on land within the regular line of the street he may require the owner of the building to execute an agreement binding himself and his successors in title not to claim compensation in the event of the Commissioner at any time thereafter calling upon him or any of his successors by written notice to remove any work carried out in pursuance of such permission or any portion thereof and to pay the expenses of such removal if, in default, such removal is carried out by the Commissioner. (b) The Commissioner may before granting such permission require the owner to deposit in the municipal office an amount sufficient in his opinion to cover the cost of removal and such compensation, if any, as may be payable to any successor in title or transferee of such building. 211: Setting back buildings to the regular line of the street. - (1) If any building or any part of a building abutting on a public street is within the regular line of the street, the Commissioner may, whenever it is proposed-- (a) to rebuild such building or to take down such building to an extent exceeding one-half thereof above the ground level, such half to be measured in cubic feet; or (b) to remove, reconstruct or make any addition to or structural alteration in any portion of such building which is within the regular line of the street, in any order which he issues concerning the rebuilding, alteration or repair of such building, require such building to be set back to the regular line of the street. (2) When any building or any part thereof within the regular line of the street falls down or is burnt down or is taken down, whether under the provisions of this Act or otherwise, the Commissioner may at once take possession on behalf of the Corporation of the portion of land within the regular line of the street theretofore occupied by the said building and, if necessary, clear the same. (3) Land acquired under this section shall thenceforward be deemed a part of the public street and shall vest, as such, in the Corporation. 212: Additional power of Commissioner to order setting back of buildings to regular line of street.- (1) If any building or any part thereof is within the regular line of a public street and if, in the opinion of the Commissioner, it is necessary to set back the building to the regular line of street he may, if the provisions of section 211 do not apply, by written notice-- (a) require the owner of such building to show cause within such period as is specified in such notice by a statement in writing subscribed by him or by an agent duly authorised by him in that behalf and addressed to the Commissioner, why such building or any part thereof which is within the regular line of the street shall not be pulled down and the land within the said line acquired by the Commissioner; or (b) require the said owner on such day and at such time and place as shall be specified in such notice to attend personally or by an agent duly authorised by him in that behalf and show cause why such building or any part thereof which is within the regular line of the street shall not be pulled down and the land within the said line acquired by the Commissioner. If such owner fails to show sufficient cause to the satisfaction of the Commissioner why such building or any part thereof, which is within the regular line of the street shall not be pulled down and the land within the said line acquired as aforesaid the Commissioner may, with the approval of Standing Committee, require the owner by a written notice to pull down the building or the part thereof which is within the regular line of the street 1[and where a part of building is required to be pulled down, to also enclose the remaining part by putting up a protecting frontage wall] within such period as is prescribed in the notice. (3) If within such period the owner of such building fails to pull down such building or any part thereof coming within the said line, the Commissioner may pull down the same 2[and where a part of a building is pulled down may also enclose, the remaining part by putting up a protecting frontage wall] and all the expenses incurred in so doing shall be paid by the owner. (4) The Commissioner shall at once take possession on behalf of the Corporation of the portion of the land within the said line theretofore occupied by the said building, and such land shall thenceforward be deemed a part of the public street and shall vest as such in the Corporation. (5) Nothing in this section shall be deemed to apply to buildings vesting in the [Government]. 213:Acquisition of open land or of land occupied by platforms, etc. within regular line of street. - If any land not vesting in the Corporation, whether open or enclosed lies within the regular line of a public street and is not occupied by a building, or if a platform, verandah, step, compound wall, hedge or fence or some other structure external to a building, abutting on a public street or a portion of a platform, verandah, step, compound wall, hedge or fence or other such structure, is within the regular line of such street, Commissioner may, after giving to the owner of the land or building not less than seven clear days' written notice of his intention to do so, take possession on behalf of the Corporation of the said land with its enclosing wall, hedge or fence, if any, or of the said platform, verandah, step or other such structure as aforesaid or of the portion of the said platform, verandah, step or other such structure as aforesaid, which is within the regular line of the street and, if necessary clear the same and the land so acquired, shall thence-forward be deemed a part of the public street: Provided that when the land or building is vested in the [Government] possession shall not be taken as aforesaid, without the previous sanction of the Government concerned and, when the land or building is vested in any Corporation constituted by any law for the time being in force, possession shall not be taken as aforesaid, without the previous sanction of the [State] Government. 214:Acquisition of the remaining part of building and land after their portions within a regular line of the street are acquired. -(1) If a building or land is partly within the regular line of a public street and if the Commissioner is satisfied that the land remaining after the excision of the portion within the said line will not be suitable or fit for any beneficial use, he may, at the request of the owner, acquire such land in addition to the land within the said line and such surplus land shall be deemed to be a part of the public street vesting in the Corporation. (2) Such surplus land may thereafter be utilised for the purpose of setting forward of buildings under section 215. 215:Setting forward of buildings to the line of the street.- (1) If any building which abuts on a public street is in rear of the regular line of such street, the Commissioner, may whenever it is proposed-- (a) to rebuild such building, or (b) to alter or repair such building in any manner that will involve the removal or re-erection of such building, or of the portion thereof which abuts on the said street to an extent exceeding one-half of such building or portion thereof above the ground level, such half to be measured in cubic feet, in any order which he issues concerning the rebuilding, alteration or repair of such building, permit or, with the approval of the Standing Committee, require such building to be set forward to the regular line of the street. (2) For the purpose of this section, a wall separating any premises from a public street shall be deemed to be a building; and it shall be deemed to be a sufficient compliance with a permission or requisition to set forward a building to the regular line of a street if a wall of such materials and dimensions as are approved by the Commissioner, is erected along the said line. 216:Compensation to be paid and betterment charges to be levied.- (1) Compensation shall be paid by the Commissioner to the owner of any building or land required for a public street under section 211, 212, 213 or 214 for any loss which such owner may sustain in consequence of his building or land being so acquired and for any expense incurred by such owner in consequence of the order made by the Commissioner: Provided that-- (i) any increase or decrease in the value of the remainder of the property of which the building or land so acquired formed part likely to accrue from the set-back to the regular line of the street shall be taken into consideration and allowed for in determining the amount of such compensation; (ii) if any such increase in value exceeds the amount of loss sustained or expenses incurred by the said owner, the Commissioner may recover from such owner half the amount of such excess as a betterment charge. (2) If, in consequence of an order to set forward a building made by the Commissioner under section 215, the owner of such building sustains any loss or damage, compensation shall be paid to him by the Commissioner for such loss or damage after taking into account any increase in value likely to accrue from the set-forward. (3) If the additional land which will be included in the premises of any person required or permitted under section 215 to set forward a building belongs to the Corporation, the order or permission of the Commissioner to set forward the building shall be sufficient conveyance to the said owner of the said land; and the price to be paid to the Corporation by the said owner for such additional land and the other terms and conditions of the conveyance shall be set forth in the said order or permission. (4) If, when the Commissioner requires a building to be set forward, the owner of the building is dissatisfied with the price fixed to be paid to the Corporation or any of the other terms or conditions of the conveyance, the Commissioner shall, upon the application of the said owner at any time within fifteen days after the said terms and conditions are communicated to him, refer the case for the determination of the Judge. In order to appreciate the contentions raised by both sides, it would be appropriate to refer to the ratio laid down in the following judgments: Girdharilal Ganpatram Gandhi Vs. Municipal Corporation of Ahmedabad, 1967 G.L.R. 500 ; 1. This is a group of twenty-three writ petitions each of which is filed by a landholder in the city of Ahmedabad challenging in each the validity on the ground that a few sections of the Bombay Provincial Municipal Corporations Act, 1949 Bombay Act No. 59 of 1949 (hereafter called the Corporations Act) are ultra vires of a notice or notices issued by the Commissioner the Municipal Corporation of the City of Ahmedabad (hereafter called the Municipal Commissioner) under sec. 212 of the Corporations Act requiring each property-holder to show cause why his building or buildings or a part or parts thereof which were within the regular line of a public street should not be pulled down and the land within the said line acquired by him. The facts giving rise to these petitions are the same in a majority of cases and are similar in others and a majority of the questions of law raised in each of the petitions is the same and the other questions of law are similar. Therefore all the twenty-three petitions were called and heard together with the consent of the learned advocates appearing on both sides and we are delivering this common judgement to dispose of all the petitions. 6. Then comes a group of sections which are relevant for the present petitions on the provisions of which a number of submissions are based and the validity of some of which has been challenged in the petitions These sections are secs. 209 to 214 and 216. At the present stage we shall only indicate the broad provisions of these sections and we shall indicate the details if necessary at a later stage and at a proper place in this judgment. Sec. 209 confers power upon the Commissioner (1) to acquire any land required for the purpose of opening widening extending diverting or otherwise improving any public street; (2) to acquire in addition to the said land and the buildings if any standing thereon all such land with the buildings if any standing thereon as it shall seem expedient for the Corporation to acquire outside the regular line or of the intended regular line of such street. Sec. 210 confers power upon the Commissioner (a) to prescribe a line on one or both sides of any public street and (b) from time to time but subject in each case to the previous approval of the Standing Committee to prescribe a fresh line in substitution for any line so prescribed or for any part thereof. The proviso to sub-sec. (1) prescribes a procedure which is to be undergone for prescribing a fresh line under clause (b). The proviso says that the Standing Committee shall not accord approval to the fresh line unless at least one month before the meeting of the Standing Committee at which the matter is to be decided notice of the proposal has been given by the Commissioner by advertisement in the manner laid down in the proviso and until the Standing Committee has considered all objections to the said proposal made in writing and delivered in the way mentioned in the proviso. Sub-sec. (2) calls the line so prescribed as the regular line of the street. Sub-sec. (4) prohibits all persons from constructing or reconstructing any portion of any building on land within the regular road line except with the written permission of the Commissioner and in accordance with the conditions imposed therein. It requires the Commissioner to report the grounds of such permission with his reasons in writing to the Standing Committee. Sec. 211 confers power on the Commissioner to require and enforce the setting back of buildings to the regular road line. It says that if any building or any part of a building abutting on a public street is within the regular road line the Commissioner may whenever it is proposed (1) to rebuild such building or to take down such building to an extent exceeding one-half thereof above the ground level or (b) to remove reconstruct or make any addition to or structural alteration in any portion of such building which is within the regular road line in any order which he issues concerning the rebuilding alteration or repair of such building require such building to be set back to the regular road line. Sub-sec (2) of sec. 211 says that when any building or any part thereof within the regular road line falls down or is burnt down or is taken down the Commissioner may at once take possession on behalf of the Corporation of the portion of the land within the regular road line theretofore occupied by the said building and if necessary clear the same. Sub-sec. (3) of sec. 211 enacts that the land acquired under sec. 211 shall thence forward be deemed a part of the public street and shall vest as such in the Corporation. Sub-sec. (1) of sec. 212 confers some additional powers on the Commissioner to order a set back to the regular road line. It says that if any building or any part thereof is within the regular road line the Commissioner may by written notice require certain things to be done if in his opinion it is necessary to set back the building to the regular road line if the provisions of sec 211 do not apply. The things which the Commissioner is required to do by written notice are to require the owner of the building concerned to show cause within a specified period why such building or any part thereof which is within the road line shall not be pulled down and the land within the said line acquired by the Commissioner or to require such owner to appear before him personally or by a duly authorised agent to show cause why the same action should not be taken in regard to the building concerned. Sub-sec. (2) of sec. 212 provides that if the owner concerned fails to show sufficient cause the Commissioner may with the approval of the Standing Committee require the owner by a written notice to pull down the building or the part thereof which is within the regular road line. Sub-sec. (3) of sec.212 provides that if the owner fails to pull down such building or any part thereof the Commissioner may pull down the same. Sub-sec. (4) of sec. 212 commands the Commissioner to take possession on behalf of the Corporation of the portion of the land within the road line which was theretofore occupied by the building concerned and such land shall thence forward be deemed a part of the public street and shall vest as such in the Corporation. Sec. 212 applies to open land or to land occupied by such in-substantial things as a platform verandah etc. within the regular road line. In regard to such open land sec 213 confers power upon Commissioner after giving notice to the owner of the land or the building concerned to take possession on behalf of the Corporation of such land and if necessary to clear the same and says that the land so acquired shall thenceforward be deemed a part of the public street. Sec. 214 gives liberty to Commissioner to acquire at the request of the owner the balance of the land outside the road line if he is satisfied that such land will not be fit or suitable for any beneficial use and says that such surplus land shall be deemed to be a part of the public street vesting in the Corporation. Sec. 216 provides for the payment of compensation for the land acquired under the foregoing secs. 211 212 213 or 216. It casts a duty upon the Commissioner to ply compensation to the owner of any building or land required for a public street under any of the above sections for any loss which such owner may sustain in consequence of such acquisition. There are two provisos to sec. 216 both of which play an important role in the arguments of petitioners. The first proviso says that the Commissioner shall take into consideration any increase or decrease in the value of the balance of the property left after the building or land is acquired which increase or decrease is likely to accrue from the set back to the regular road line. It further requires the Commissioner to allow such increase or decrease in determining the amount of compensation. The second proviso says that if any such increase in the value exceeds the amount of loss sustained or expenses incurred by the owner the Commissioner may recover from such owner half the amount of such excess as a betterment charge. Secs. 389 to 391 occur in Chapter XXIV under the heading Compensation. Sec. 389 commands the Commissioner or his delegate in discharging his functions under the Act to do as little damage as possible. It further commands the Commissioner to pay compensation assessed in the manner prescribed by or under this Act for any damage sustained in consequence of the exercise among others of the power of acquiring any building or land required for a public street Sec. 390 requires the Commissioner or his authorised subordinate subject to the provisions of the Act to determine the amount of compensation to be paid under sec. 389 after holding such enquiry as he thinks fit. Sec. 391 confers a right of appeal upon any person aggrieved by the decision of the Commissioner or his subordinate recorded under sec. 390 to the Judge in accordance with the provisions of Chapter XXVI. Chapter XXVI however does not prescribe any particular procedure for preferring an appeal from an order determining the amount of compensation by the Commissioner. Sec. 434 makes save as expressly provided by Chapter XXVI the provisions of the Code of Civil Procedure relating to appeals from original decrees applicable to appeals to the Judge from the orders of the Commissioner. Mahomed Kasam Abubakar Bhavnagani Vs. Municipal Commissioner, Ahmedabad, AIR 1974 (Guj.) 160; 3. It is an admitted fact that a road line as contemplated by Section 210 of the Act is prescribed by the Commissioner on both sides of the street on which this property is situated. As a result of this road line, the whole of the neighbouring property bearing S. No. 4463 and a part of the neighbouring survey No. 4465 are acquired by the Commissioner as they fall within the limits of the road line. It is an admitted fact that even the disputed meda, which is of the ownership of the plaintiff-trust, is within the road line. As the entrance to the pole, in which this meda is situated is found to be very narrow on account of the existence of this meda, and as the properties adjoining to this meda on both the sides have been acquired for the purpose, of laying down a regular road line, the Municipality now proposes that this meda should be removed. For this purpose, the Municipality has issued a notice contemplated by clause (b) of Section 212(1) on 2-4-58. By this notice the Commissioner has called upon the plaintiff-trust to show cause why the meda, which is situated within the regular line of the said street, should not be pulled down. The plaintiff trust objected to this notice and after considering these objections, the Commissioner, with the approval of the standing committee, has served the plaintiff with another notice dated 14-4-59 under Sub-Section (2) of Section 212 of the Act requiring that the structure of the meda should be pulled down. Being aggrieved by this notice, the plaintiff trust has filed the present suit with a view to obtain a declaration that the Municipality is not entitled to require the trust to pull down the suit meda under Section 212 of the Act, because the said section applies to the cases where both the land as well as the structure of the building in question belonged to a citizen. The contention of the plaintiff-trust is that the whole purpose of Section 212 is to acquire the land on which the structure of a building is constructed and since in this case the land admittedly belongs to the Municipality, Section 212 has no application. 4. The trial Court has rejected this contention of the plaintiff-trust and has dismissed the suit with the result that the plaintiff-trust has preferred this appeal. Shri Mehta, who appeared on behalf of the plaintiff-trust contended that Section 212 of the Act gives summary power to the Commissioner to pull down a building and acquire the land underneath which falls within the regular line of a street solely with a view that the land which is so opened can become a part of public street and can vest in the Municipality as such. According to Shri Mehta, therefore, where only the structure of a building belongs to a citizen and the land over which the said structure is standing belongs to Municipality, Section 212 of the Act has no application, because, the land which is of the ownership of the Corporation itself cannot be acquired by it. In this connection Shri Mehta has drawn my attention to Sections 210 to 214 of the Act and has tried to show that all these five sections are enacted by the Legislature solely with a view to acquire the land on which a building is constructed and, therefore, if the land on which a building is constructed belongs to the Municipality, the proper remedy for the Municipality is to act under Section 209 which empowers the Municipal Commissioner to acquire the buildings standing on a particular piece of land. 6. In order to appreciate the contentions raised by Shri Mehta it would first be necessary to make a short reference to Sections 210 to 214 of the Act. Section 210 empowers the Municipal Corporation to prescribe a line on one or both sides of a public street. Section 211 says that if any building or a part thereof is abutting on a public street and is found within the regular line of the street, the Commissioner may require such building to be set back to the regular line of the street whenever it is proposed to rebuild such building or to remove, reconstruct or make any addition or alterations in any portion thereof, which is within the regular line of the street. Then comes Section 212 with which we are concerned in this appeal. It gives additional powers to the Collector to set back the buildings to regular line of street. It is in the following terms : "212. (1) If any building or any part thereof is within the regular line of a public street and if, in the opinion of the Commissioner, it is necessary to set back the building to the regular line of the street he may, if the provisions of Section 211 do not apply, by written notice - (a) require the owner of such building to show cause within such period as is specified in such notice by a statement in writing subscribed by him or by an agent duly authorised by him in that behalf and addressed to the Commissioner, why such building or any part thereof which is within the regular line of the street shall not be pulled down and the land within the said line acquired by the Commissioner : or (b) required the said owner on such day at such time and place as shall be specified in such notice to attend personally or by an agent duly authorised by him in that behalf and show cause why such building or any part thereof which is within the regular line of the street shall not be pulled down and the land within the said line acquired by the Commissioner. (2) If such owner fails to show sufficient cause to the satisfaction of the Commissioner why such building or any part thereof, which is within the regular line of the street shall not be pulled down and the land within the said line acquired as aforesaid the Commissioner may, with the approval of the Standing Committee, require the owner by a written notice, to pull down the building or the part thereof which is within the regular line of the street and where a part of a building is required to be pulled down, to also enclose the remaining part by putting up a protecting frontage wall within such period as is prescribed in the notice. If within such period the owner of such building fails to pull down such building or any part thereof coming within the said line, the Commissioner may pull down the same and where a part of a building is pulled down, may also enclose, the remaining part by putting up a protecting frontage wall and all the expenses incurred in so doing shall be paid by the owner. The Commissioner shall at once take possession on behalf of the Corporation of the portion of the land within the said line theretofore occupied by the said building, and such land shall thenceforward be deemed a part of the public street and shall vest as such in the Corporation. (5) Nothing in this section shall be deemed to apply to buildings vesting in the Government." Section 213 which follows is with regard to the acquisition of open land or of land occupied by platforms, etc. within the regular line of the street, and Section 214 provides for the acquisition of the remaining part of building and land after their portions within the regular lines of street are acquired. 9. In fact it is wrong to presume that the primary object of Sections 210 to 214 is acquisition. The primary object of these sections is to preserve road lines in such a manner that all municipal functions regarding the maintenance of a public street can be suitably performed. Removal of structure and acquisition of land are merely incidental to this primary Object. Therefore, the exercise of power under these sections cannot be limited only to the purpose of the acquisition of the land. If the proposition canvassed by the appellant is accepted, I find that many absurd results might follow. Take for instance a house which is built over a piece of municipal land but which falls within the road line and obstructs, the flow of traffic, or there is an emerging projection over the street which obstructs the passage of say a double deck bus passing on that street. If the contention of the appellant is accepted. Section 212 of the Act would be rendered useless in such cases. However, the magnitude of the power which the Legislature has vested in the Commissioner is wide enough to cover such cases...... This will be evident from the wordings of Sub-Section (1) which advisably speaks of "any building or any part thereof" to be set back to the regular line of a street. The disputed meda is obviously a building which falls within the regular lines of street in which it is situated and can, therefore, be removed under this section. Navinchandra M. Randeria & Ors., Vs. State of Gujarat & Ors., 1989(1) G.L.H. 604; 15. The Bombay Provincial Municipal Corporations Act, 1949 authorises the Commissioner to prescribe street-lines. Section 210(1) reads as follows: The Commissioner may, (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 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 and delivered at the office of the Municipal Secretary not less than three clear days before the day of such meeting. Section 210(2) reads as follows; "The line for the time being prescribed shall be called 'the regular line of the street'," Section 210(3) reads as follows: "A register with plans attached shall be kept by the Commissioner showing all public streets in respect of which a regular line of the street has been prescribed and such register shall contain such particulars as to the Commissioner may appear to be necessary and shall be open to inspection by any person upon payment of such fee as may from time to time be prescribed by the Standing Committee." Section 211 deals with the power of the Commissioner to set back the buildings to the regular line of street. Section 212 deals with the additional power of the Commissioner to order setting back of the buildings to regular line of street. Section 213 deals with acquisition of open land or of land occupied by platform, etc. within regular line of streets. Section 214 deals with the acquisition of the remaining part of building and land after the portions within a regular line of street are acquired. Section 215 deals with the power of the Commissioner to set forward the buildings to the line of street. Section 216 deals with compensation to be paid and betterment charges to be levied, and reads as follows : "216. (1) Compensation shall be paid by the Commissioner to the owner of any building or land required for a public street under Section 211, 212, 213 or 214 for any loss which such owner may sustain in consequence of his building or land being so acquired and for any expense incurred by such owner in consequence of the order made by the Commissioner: Provided that- (1) any increase or decrease in the value of the remainder of the property of which the building or land so acquired formed part likely to accrue from the set-back to the regular line of the street shall be taken into consideration and allowed for in determining the amount of such compensation; (ii) if any such increase in value exceeds the amount of loss sustained or expenses incurred by the said owner, the Commissioner may recover from such owner half the amount of such excess as a betterment charge. (2) If, in consequence of an order to set forward a building made by the Commissioner under Section 215, the owner of such building sustains any loss or damage, compensation shall be paid to him by the Commissioner for such loss or damage after taking into account any increase in value likely to accrue from the set-forward. (3) If the additional land which will be included in the premises of any person required or permitted under Section 215 to set forward a building belongs to the Corporation, the order or permission of the Commissioner to set forward the building shall be sufficient conveyance to the said owner of the said land ; and the price to be paid to the Corporation by the said owner for such additional land and the other terms and conditions of the conveyance shall be set forth in the said order or permission. (4) If, when the Commissioner requires a building to be set forward, the owner of the building is dissatisfied with the price fixed to be paid to the Corporation or any of the other terms or conditions of the conveyance, the Commissioner shall, upon the application of the said owner at any time within fifteen days after the said terms and conditions are communicated to him, refer the case for the determination of the Judge." 27. Mrs. K. A. Mehta, learned counsel appearing for the petitioners finally pleaded that the persons whose properties are being acquired should be provided with alternate accommodation. For this argument, Mr. G. N. Desai, learned counsel appearing for the Surat Municipal Corporation vehemently opposed stating that this was neither pleaded nor particulars given by the petitioners so as to meet the said argument. To substantiate her submission Mrs. Mehta cited the decision and observation made in the case of State of U. P. v. Pista Devi reported in AIR 1986 SC 2025. This decision deals with the acquisition of land in the city of Meerut where the State Government sought to acquire lands for planned development of urban area on which there were some buildings here and there. This acquisition of land is for the development of urban area of Meerut Urban Development Authority. The High Court in that case quashed the notification issued under Section 4(1) of the Act. The State Government took the matter by way of an appeal to the Supreme Court, The Supreme Court allowed the appeal by dismissing the writ petitions filed by the respondents. While dismissing the appeal the Supreme Court, referring to the provisions in Section 21(2) of the Delhi Development Act (61 of 1957) observed : "Although the said Section is not, in terms applicable to the present acquisition proceedings, we are of the view that the above provision in the Delhi Development Act contains a wholesome principle which should be followed by all Development Authorities throughout the country when they acquire large tracts of land for the purpose of land development in urban areas." There is no such analogous provision in the present Act we have discussed. Further, the present case is not a case where the authority concerned were acquiring large tract of land for the purpose of land development in urban area. This is a case of widening the road and for that purpose lands and property situated thereon are acquired by invoking the provisions of the Land Acquisition Act. Even the Supreme Court decision referred above does not mention that all the persons from whom lands are acquired for urban development, should be provided with a house site or shop site. But it only states that as far as practicable the authority concerned should provide the house site or shop site of reasonable size on reasonable terms to each of the expropriated persons who have no houses or shop buildings in the urban area in question. We also recommend that as far as practicable and possible the Municipal Corporation will provide house site or shop site of reasonable size on reasonable terms to those persons whose property have been acquired under Land Acquisition Act. This is only a recommendation and not a direction. Premjibhai D. Karane alias Babuahi Vs. Ahmedabad Municipal Corporation, 1996 (2) G.L.H. 230; 8. It is next contended by Mr. Shailesh Brahmbhatt, learned Advocate that the impugned order prescribing "Line" is illegal for another reason `that the Commissioner has not followed the procedures provided under Section 210(b), i.e. the approval of the Standing Committee has not been obtained. He also submits that the Commissioner could not have exercised the powers under Section 210(a) as the powers under the said provision can be exercised only when a line is to be prescribed for the first time. He submits that the question of prescribing a line for the first time in the year 1994 does not arise for the simple reason that the road has been in existence since long and the line must have been prescribed by the Commissioner when the road was first constructed by the Corporation on the C. G. Road. The first contention, i.e. following of provisions provided under Section 210(b) is not sustainable as the Commissioner has exercised the powers under Section 210 (a). Taking the second limb of contention, the categorical case of the respondent-Corporation is that by the impugned order the "Line" was prescribed for the first time. Therefore, no inference can be drawn that the line must have been prescribed when the C. G. Road was first constructed. A supplementary affidavit has been filed by Mr. P. K. Ruwala, Estate Officer of the Ahmedabad Municipal Corporation. He has stated that the road which has been provided in the Town Planning Scheme No. 3 is now known as C. G. Road. The width of the road was 80 ft. With respect to laying down of the line, Mr. Ruwala, in para 3 of the affidavit dated 27-6-1996, has stated as follows : "I submit that for the first time after the said Town Planning Road, the Municipal Commissioner prescribed road line under Section 210(1)(a) of the BPMC Act. I submit that the road was provided in the Town Planning Scheme by the State Government which has become part of the Act vested in the Corporation free from all incumbrance as per the provisions of the Town Planning Act, thereafter under Corporation Act, for the first time, the line was prescribed on both the sides of the public street, there was no regular line of street which was prescribed under any law on the day immediately preceding the appointed day under Municipality Act, or BPMC Act. " He has further stated in para 4 as under : "I submit that in number of cases roads provided under the Town Planning Scheme were widened for the first time by putting road line under the provisions of Section 210(1)(a) of the BPMC Act, by the Municipal Commissioner." Thus, on facts there is no substance in the contention raised by the learned Advocate for the petitioner. Mr. Brahmbhatt has still argued that filing of the affidavit alone is not sufficient and the respondent be directed to produce the record of the time when the C. G. Road was constructed and that will show that it must have provided two edges on the width of the road, and that should be presumed to be a "Line" prescribed, which is the deemed line under the provisions of sub-clause (a) of Section 210. The prayer cannot be accepted. At the first instance there is no reason to disbelieve the affidavit filed by an officer of the Corporation. Secondly, even if the affidavit is excluded from consideration simply because the road has been constructed by the Municipal Corporation and it has two edges, it cannot be said that a regular line must have been prescribed by the Municipal Corporation. Prescribing a line or a regular line or street line is a positive act of the authority under any law in force at the relevant time and it is not a matter of assumption. There is no material on record to show that prior to 1994, the line was prescribed either under the BPMC Act or under the Bombay Town Planning Act. It is not in dispute that either under the Bombay Town Planning Act or under the new Act there is no provision of prescribing the line, and as such the question prescribing the "line" does not arise. Learned Advocate has referred to a Division Bench judgment of this Court in the case of Girdharlal Ganpatram v. The Ahmedabad, Municipal Corpoation reported in 1 GLR 223. It was a case of change or substitution or the existing street line and in that context, the Court held that the provisions of Section 210(1)(b) was to be followed. In this case, as I have already held that the line was prescribed by the Municipal Commissioner in the year 1994 for the first time, and therefore, obviously the provisions of Section 210(1)(b) are not attracted and the procedure provided therein are not requited to be followed. In view of this, the second contention raised by the learned Advocate for the petitioner also fails. The third contention of the learned Advocate is that the portion of the petitioner's shop was sought to be demolished and the land was required for the purpose of widening the road, but in fact, it is sought to be utilised for the purpose of parking. Therefore, the contention is that the notice given under Section 212 of the BPMC Act is bad in law for the reason that the purpose for which it was sought to be acquired has been changed. It is further submitted that the petitioner has also not been heard on the question that the land is sought to be acquired for the purpose of parking. He further submits that powers under Section 212 can be acquired only for the purpose of widening the road and not for the purpose of parking. There is no substance in any of the submissions. The plain and simple case of the respondent is that as part of the shop of the petitioner is projected beyond the "Prescribed Line", that part is required to be removed. Since I have upheld the act of prescribing "Line", the purpose for which the land is sought to be acquired becomes irrelevant. Even otherwise, it is not well settled that the land sought to be acquired for the purpose may be used for other purposes. Reference may be given to a decision of the Apex Court in the case of State of Tamil Nadu v. L. Krishnan & Ors., reported in JT 1996 (1) SC 660 and in the case of Union of India & Ors. v. Jaswant Rai Kochhar & Ors., reported in JT 96 (3) SC 671. Surat Textile Market Co-operative Shops & Warehouses Society Vs. Commissioner, 2002 (1) G.L.R. 633, (at Paragraph Nos.6-8); 6. As far as the first two contentions are concerned, the decision of this Court in Premjibhai D. Karane vs. Ahmedabad Municipal Corporation, 1996(2) GLH 230 is a complete answer. After examining the scheme of the Town Planning Act as well as the BPMC Act, this Court has held that while there is a provision of drawing a street line or a regular line under the BPMC 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 BPMC 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 BPMC Act for the first time, the procedure prescribed by Sec. 210(1)(b) is not applicable at all. The statutory provision is applicable only when an existing road line already prescribed under the BPMC Act is sought to be altered or substituted under Section 210(1)(b) of the BPMC 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 BPMC 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 Sec. 210(1)(a) of the BPMC Act. In view of the above statuary 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. 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 BPMC Act, there was no question of following any procedure under Section 210(1)(b) of the BPMC 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. Ahmedabad Municipal Corporation Vs. Social Co-operative Bank Ltd. Anr., 2006 (3) G.L.R. 1951 (at Paragraph No.5); 5. As stated above, the short question, which has arisen in the Special Civil Application is whether when the portion of the land is under road-widening u/s. 210 and Sec. 212 of the BPMC Act, and award is declared by the Commissioner u/s. 390 of the BPMC Act and compensation is paid under the said Act whether the claimant and/or the person whose land is acquired is entitled to interest and solatium or not. An identical question came to be considered by the Division Bench of this Court in the case of Revaben, Wd/o. Chimanlal Gopaldas & Ors. (supra), where the provisions contained in Part-III of Appendix-I to the BPMC Act were challenged as unconstitutional and ultra vires as there is no express provision with regard to grant of solatium in case of land acquired under BPMC Act where provision is so made u/s. 23 (2) of the Land Acquisition Act and whether any discriminatory treatment is given to a landowner whose land is acquired under the BPMC Act or not, while dealing with that question after considering the judgments of the Hon ble Supreme Court and the scheme of the BPMC Act more particularly the provisions relating to award of compensation under the BPMC Act, the Division Bench has held that the claimants are not entitled to solatium, and that the provisions contained in Part-III of Appendix-I to the BPMC Act are not unconstitutional and/or ultra vires and are not violative of Art. 14 of the Constitution of India. Even otherwise, as held by the Hon ble Supreme Court in the case of The Municipal Corporation of the City of Ahmedabad and Others (supra), Sec. 216 read with Sec. 389 of the BPMC Act are complete code for -acquisition of land and compensation for road widening under the BPMC Act cannot be equated with the acquisition of land under the Land Acquisition Act. While acquiring the land under the BPMC Act for road widening, only small portion of the road might be required for acquisition and it might happen that because of that, the position of the property might be changed to the advantage of the original-landowner, and under the BPMC Act on that count the amount of compensation may be required to be paid to the Municipal Corporation. Under the circumstances, while declaring the award u/s. 390 of the BPMC Act, for the land acquired under the BPMC Act u/s. 210 read with Sec. 212 for road-widening, the claimant is not entitled to solatium and interest as per provisions of the Land Acquisition Act as the provisions of the Land Acquisition Act would not be applicable at all and the award providing compensation if any should be made considering the scheme and provisions of the BPMC Act. Under the circumstances, the learned Trial Court has materially erred in awarding solatium and interest on the amount of compensation, i.e., Rs. 1,74,000.00 and therefore the same is required to be quashed and set aside. So far as determination of amount of compensation at Rs. 1,74,000.00 is concerned, Shri Desai, learned advocate appearing on behalf of the petitioner has failed to show any illegality and/or satisfy this Court as to how the said determination is bad in law. Under the circumstances, the order passed by the learned Trial Court determining compensation at Rs. 1,74,000.00 is required to be confirmed and is hereby confirmed. Surat Garage Company, Through Partner Padmaben J. Naik Vs. Municipal Corporation of the City of Surat & Ors., 2007 (2) G.L.H. 335 (at Paragraph No.5): 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 (a) 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, (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 and delivered at the office of the Municipal Secretary not less than three clear days before the day of such meeting." (Emphasis supplied) 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 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. 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: "Sec.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) ...." (Emphasis supplied.) From the aforesaid section, it is clear that the town planning authority, while prescribing the draft 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, 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." (Emphasis supplied.) 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 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. Killol V. Shelat Vs. Municipal Corporation of City of Ahmedabad & Anr., 2009 (1) G.L.H. 13; 26. We are also unable to uphold that Section 210(1)(a) of the BPMC Act vests arbitrary powers on the Commissioner. Powers under clause(a) of Sub-section(1) of Section 210 of the BPMC Act is for prescription of street lines referred to as a regular line of street. Such powers are vested in the highest executive authority of the Corporation and are required to be exercised bona fide in public interest. With rapid pace of urbanization, ever expanding cities and unprecedented increase in the vehicular traffic, it is necessary that Corporation would have adequate powers for maintaining the public streets and for affecting road widening, when necessary, to de-congest the streets which experience heavy vehicular traffic. Predominantly, power under Section 210(1)(a) is meant for prescribing regular line of the street and incidental road widening is a fall out in a given case. In the case of Municipal Corporation of the City of Ahmedabad v. State of Gujarat, AIR 1972 SC 1730 (supra), the Apex Court observed that with the enormous increase in traffic in the more congested parts of growing city, Municipal Authorities are constantly under pressure to widen the streets and one of the several methods prescribed in Chapter XIV is contained in section 212. One thing however, cannot be lost sight of namely that under clause(a) of Sub-section (1) of Section 210 of the BPMC Act, it is also open for the Commissioner to provide for a street line in such a manner that the existing width of the street gets extended. In such a case citizens are liable to lose their immovable properties namely land with or without construction standing thereon. Once the Commissioner prescribes such a line under clause(a) of Sub-section(1) of Section 210 of the BPMC Act, adverse consequence thereof to the affected land owner or occupier would follow. Once such a street line is prescribed by the Commissioner, the person adversely affected would have no right whatsoever to question such prescription. Provisions contained in subsequent sections namely Sections 211 to 216 only pertain to eviction of the owner or occupant and removal of construction of such land falling within the extended street line and for payment of compensation for damage suffered. No right however, is available to a citizen to oppose the prescription of street line. For example under Section 211 or 213, the owner or occupant of the land/building would only have a right to oppose eviction. His right however, would be limited to pointing out that despite the prescription of the street line by the Commissioner under clause(a) of Sub-section(1) of Section 210, his land or building covered under the eviction notice is not liable to be acquired since it does not fall within such street line or some such similar reason. It is entirely different from suggesting that property owner can oppose such prescription of a street line. Under Section 216 of the BPMC Act, the owner may have some say in computation of the compensation payable, but not to oppose acquisition of his property. 28. It can thus be seen that outside of Clause(a) of Sub-section(1) of Section 210, persons likely to be affected by prescription of street line by the Commissioner have no right of hearing. In case of Lala Shri Bhagwan and another v. Ram Chand and another reported in AIR 1965 Supreme Court 1767, the Apex Court observed that power to determine the questions affecting the rights of citizens would impose the limitation that power should be exercised in conformity with the principles of natural justice. In case of Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others reported in 1991 Supp (1) Supreme Court Cases 600, the Apex Court observed that it is now well settled that 'audi alteram partem' rule which in essence, enforces the equality clause in Article 14 of the Constitution is applicable not only to quasi judicial orders but to administrative orders affecting prejudicially the party-in-question unless the application of the rule has been expressly excluded by the Act or Regulation or Rule. It goes without saying that a citizen who is being deprived of his valuable right to property which though may not be fundamental right continuous to be a Constitutional right and which, is by now recognized as a human right has at-least the minimum right of hearing before such a result is brought about. In a given case, he may be able to point out to the authority that proposed prescription of the street line is either arbitrary or unjust or wholly mala fide. Depriving the citizen of his right to property without even the minimum right of hearing cannot be countenanced. In case of P.T. Munichikkanna Reddy and others v. Revamma and others reported in (2007) 6 Supreme Court Cases 59, the Apex Court observed that the right of property is now considered to be not only a Constitutional or statutory right but also a human right. Similar observations were also made in case of Lachhman Dass v. Jagar Ram and others reported in (2007) 10 Supreme Court Cases 448. It is by now sell settled that without affording opportunity of being heard, no order adverse to a person can be passed. Principles of natural justice require that before taking action against the citizen, he must have a right to be heard. Such requirement of principles of natural justice can be abridged or even totally shut out. However, same can be done only by specific statutory provisions or by necessary implications. In other words, when the statute is silent, principles of natural justice can be read into it and unless a statutory provision specifically or by necessary implications dispenses with the principles of natural justice, hearing must be given before passing any adverse orders. In case of State Govt. Houseless Harijan Employees' Association v. State of Karnataka and others reported in (2001) 1 Supreme Court Cases 610, the Apex Court observed that the requirements of natural justice will be read into statutory provisions unless excluded expressly or by necessary implication. 31. Nothing in Clause(a) of Sub-section(1) of section 210 would suggest that such a requirement of hearing was meant to be shut out or even curtailed by the legislation. By very nature of power that the Commissioner exercises under the said clause, requirement of natural justice are inherent and therefore, must be read into clause(a) of Sub-section(1) of Section 210 of the BPMC Act. 32. We therefore, find that though clause(a) of Sub-section(1) of Section 210 of the BPMC Act is not Constitutionally invalid, principles of natural justice are inbuilt and inherent in the said provision and before the Commissioner can prescribe a street line which is likely to adversely affect any citizen i.e. land owner or occupier with or without building thereon, the Commissioner must give a fair hearing to such persons. In the instant case as is evident from the facts that the respondent-Corporation has resorted to the provisions of Section 210 of the Act for prescribing regular line of a public street. It may be noted at this stage that the Municipal Commissioner declared his intention to prescribe road line in substitution for line prescribed and gave advertisements in two Gujarati dailies Jan Satta and Sandesh and such notice came to be published on 24.03.2011. The said notice indicates that the same is purported to have been given under Section 210(1)(b) of the Act. It is further stated in the said notice that on the area situated in South Zone i.e. from Shah-E-Alam Toll Naka to Geeta Mandir S.T. Stand Char Rasta Via Astodia Darwaja as well as from Geeta Mandir Char Rasta to Petrol Pump there is existing road and now it is decided to propose a road-line. It is further stated that the maps of existing and the proposed road-line are placed for inspection at the office of Head Draftsman of Estate, Estate Drawing Department and in the Office of Estate/TDO Department (Central Zone) and the concerned persons can inspect the same. It is further stated in the notice that if any person has objections for the same, such objections shall be filed within a period of one month from the date of publication of the said notice to the Estate Officer or to the Deputy Estate Officer, whose addresses were mentioned in the notice. It is also mentioned in the said notice that the notice is also placed on the website of the Ahmedabad Municipal Corporation being www.egovamc.com. It appears that thus, such public notice came to be published and the respondent-Corporation invited objections from the concerned/affected persons. It further transpires from the record and as pleaded on behalf of the respondent-Corporation, no objections were received from any person. It further appears from the record of the petitions that thereafter the commissioner made a proposal to place the said proceedings before the standing committee and accordingly the committee in its meeting held on 12.05.2011 authorized the Municipal Commissioner to undertake all proceedings and ancillary procedure for prescription of road-line as per the map placed along with letter of the Commissioner dated 07.05.2011 under Section 210(1)(b) of the Act. It further appears that by an order dated 23.05.2011 the commissioner prescribed a fresh road-line under Section 210(1)(b) of the Act and it has been provided in the order that the said line being called as regular line of the street. It also reveals from the record that as recorded hereinabove, the petitioners and other similarly situated persons were given notices under Sections 212(1)(a) and 212(2) of the Act, to which objections were filed and after considering the same, were directed to be placed before the Standing Committee of the respondent-Corporation. That the proceedings were placed for approval of the Standing Committee in its meeting held on 19.01.2012 and the Standing Committee vide Resolution No.1994 dated 19.01.2012 approved the same, after consideration of the same and such action undertaken by the respondent-Corporation is challenged by the petitioners in these petitions. From the aforesaid set of facts, it is clear that a public notice came to be given by the respondent-Corporation under Section 210(1)(b) of the Act, to which no objections were filed. It may be noted that as no objections were filed by any of the affected persons, the question of giving hearing to the affected persons, including the present petitioners, as such does not arise in the present petitions. The contention raised by the petitioners that the public notice dated 24.03.2011 was vague and does not provide any particular regarding proposed new street line and merely indicates the road on which the new street line is proposed to be extended if examined, it transpires that the respondent-Corporation had clearly mentioned in the public notice dated 24.03.2011 that the maps of the existing and the proposed road-line are placed for inspection at the office of Head Draftsman of Estate, Estate Drawing Department and in the Office of Estate/TDO Department (Central Zone) and the concerned persons can inspect the same. Proviso to Section 210(1)(b) of the Act stipulates that before previous approval of the Standing Committee is obtained, it is the commissioner who is duty bound to give a public notice of a proposal by advertisement in the local newspaper and a special notice thereof has to be put up in the street or part of the street in which such fresh line is proposed. As recorded hereinabove, the commissioner has given public notices in two Gujarati daily newspapers, which have wide circulation in the city of Ahmedabad and over and above such notice has also been placed on the website of the respondent-Corporation. No individual notice is contemplated under Section 210(b) of the Act. In these set of facts therefore it is found that the respondent-Corporation has duly complied with the requirement of the Proviso to Section 210(b) of the Act before the same was placed before the Standing Committee as envisaged under Section 210(b) of the Act and, therefore, the contention raised by the petitioners that issuance of notice is merely an empty formality and eye-wash and that there was no genuine intention on the part of the respondent-Corporation to give reasonable opportunity to the petitioners to raise objections against the proposed widening of the public street and that no effective opportunity of hearing was given to the petitioners to file objections or to make representation is not well-founded. It further appears that the petitioners did not respond to the said notice as per Proviso to Section 210(1)(b) of the Act. As noted hereinabove, by the said public notice one month s time was given by the respondent-Corporation to file objections to the concerned persons, which means the dead line was 24.04.2011 and as no objections were received, the commissioner sent the proceedings for previous approval of the standing committee as envisaged under Section 210(1)(b) of the Act on 07.05.2011, which has been considered by the Standing Committee in its meeting dated 12.05.2011. It is further contended that as noted above the petitioners filed objections pursuant to the notice issued by the respondent-Corporation under Section 212(1)(a) of the Act, which was issued in the month of September, 2011 and that the same have not been considered by the Standing Committee. It is specifically contended by the petitioners that the objections raised by the petitioners to the effect that the road should be widened on both sides is not at all considered and even though the petitioners have contended that it is mandatory for the respondent-Corporation to give personal hearing as envisaged under Section 212(b) of the Act, over and above the other contentions raised in the objections and have relied upon the ratio laid down by the Division Bench of this Court in the case of Killol V. Shelat (supra) and the judgment of the Apex Court in the case of Union of India Vs. Ibrahim Uddin & Anr. (supra). It is further contended that the decision-maker is the standing committee and as no hearing has been accorded by the standing committee, the impugned notice is violative of principles of natural justice. It reveals from the record that the show cause notices as provided under Section 212(1)(a) of the Act were issued to the petitioners and all other affected persons calling upon them to submit their objections, if any, by 09.09.2011. It is specifically the case of the respondent-Corporation that the Corporation by communication dated 02.09.2011 called upon them to file objections, if any, and the Corporation considered the same and placed the same before the standing committee and the committee, after consideration of the same, rejected such objections filed by the petitioners, other tenants and owners, by Resolution No.1994 dated 19.01.2012. It may be noted that stage of Section 212 of the Act is after regular street line as prescribed under Section 210 of the Act. In the instant case the same came to be provided under Section 210(b) of the Act and, therefore, the contention raised by the petitioners that their objections were not considered is contrary to the record of the Corporation, which is placed on record of these petitions. Division Bench of this Court in the case of Killol V. Shelat (supra) has held that hearing has to be given before prescription of the road line under Section 210(1)(a) of the Act. However, in the instant case the road-line was prescribed under Section 210(1)(b) of the Act and as provided under the Proviso to Section 210(1)(b) of the Act public notices were issued and the same was published in the website of the respondent-Corporation, however, no objections were filed by the affected persons, including the present petitioners. As such the prescription of the road-line as envisaged under Sections 210 to 216 of the Act provide for mode of acquisition of land, which comes within the prescribed road-line of road, therefore, the ratio laid down by the Division Bench of this Court in the case of Killol V. Shelat (supra) would not be applicable to the proceedings at the stage of Section 211 of the Act. It appears from the record that the Standing Committee after considering all material before it, including the objections granted approval. The Standing Committee is not the final decision-maker as contended by the petitioners and no hearing is envisaged under Section 212 of the Act before the Standing Committee. The petitioners have specifically contended that in view of the fact that Town Planning Scheme has already been sanctioned and it has become part of the Act, the respondent-Corporation cannot make any change or modify the final Town Planning Scheme, to which the respondent-Corporation has categorically stated in the affidavit-in-reply that as per the Town Planning Scheme, the Town Planning road is 80 ft. whereas in the revised development plan, the width of the development plan road is 100 ft. It may be noted at this stage that the provisions of the Gujarat Town Planning & Urban Development Act, 1976 and the provisions of Sections 210 to 216 the Bombay Provincial Municipal Corporations Act, 1949 operate in two different spheres and the powers which are exercised by the BPMC Act is for prescription of road-line and the same cannot be termed as modification in the Town Planning Scheme. On the contrary as rightly averred by the respondent-Corporation the prescription of regular line of street by the Municipal Commissioner is in consonance with the Revised Development Plan. The decision thus taken by the Municipal Commissioner is proper and well within his powers as decided by this Court in the case of Surat Garage Company, Through Partner Padmaben J. Naik (supra). It is also rightly contended by the respondent-Corporation that the decision taken by the respondent-Corporation is in larger public interest to meet with the ever increasing traffic congestion problem. It may be noted here that as contended by the respondent-Corporation after prescription of road-line majority of the road-line is within the possession of the Corporation and only the present petitioners, which are 50 in number, are left and, therefore, weighing the public interest with the private interest, the decision taken by the respondent-Corporation to prescribe the road-line and widen it from 80 ft. to 100 ft. cannot be termed as mala fide decision on the part of the respondent-Corporation, as tried to be canvassed by the petitioners. Division of the Apex Court in the case of Babulal Badriprasad Varma Vs. Surat Municipal Corporation & Ors., 2008 (3) G.L.H. 137, has held as under: 22. A person interested in continuing to keep possession over a property and/ or a part of the amount of compensation must lay his claim before the appropriate authority at the appropriate stage. If in absence of any such claim filed by the appellant, the authorities have proceeded to finalise allotment of final plot in favour of the respondent Nos. 3 and 4 herein, it is too late in the day to contend that the entire scheme should be re-opened. We would consider the effect of Sub-section (3) of Section 65 of the Act a little later, but, we may at this juncture notice that the respondent No. 3 in whose favour plot No. 165 has been allotted which includes 200 sq. m. of land purported to be in possession of the appellant had nothing to do with the dispute between the appellant and his landlord the respondent no. 4. Respondent No. 4 was in possession of a contiguous plot. Respondent No. 4 was owner of both plot Nos. 17/7 and 17/8. He was, therefore, in his own right entitled to final allotment of some plot. Even this Court in the case of Jethabhai Mepabhai Makwana Vs. State of Gujarat, 2004(3) G.L.H. 675 has held as under: 35. So far as the argument with regard to the violation of the doctrine of proportionality is concerned, in my opinion, the said argument is also without any substance. The authority has to strike a balance between interest of an individual and the cause with which the scheme is prepared and planning is made. If, in the process of town planning, so as to widen the road or so as to reserve some land for a public purpose, if an individual has to lose his land, it cannot be said that the doctrine of proportionality has not been taken care of. In the instant case around 40 plot holders had to suffer, or perhaps some more, who might not have approached this Court, but all of them will be duly compensated in terms of money or by allotment of other plots. The doctrine of proportionality itself provides that in the process of striking the balance, for betterment of the society at large, if a person has to suffer, it cannot be said that the said doctrine has been violated. It is pertinent to note that even those residents, who would be getting compensation in terms of money for loss suffered by them, would be surely benefited like other residents by having better environment, better roads, better public utility services, etc. Not even the present residents, but even future generations would be benefited by having gardens, more educational institutions, more hospitals, wider roads, etc. Looking to the benefits which all the residents are to get, it cannot be said that the doctrine of proportionality has been violated, as alleged by the petitioner, because the loss is suffered only by a few of the residents, and that too when they are to be compensated in terms of money. The said doctrine can be said to be violated only when for benefit of someone or some persons, the alleged action causes harm to the society and the extent or degree of harm is much more than the benefit given to some or someone. The Court has to examine whether the adverse effects of the action impugned are more than the overall benefits to the society at large and if the Court comes to the conclusion, after having an overall view of the matter, that the adverse effects are more, then the Court should set aside the impugned action in view of the doctrine of proportionality. In view of the above facts, by no stretch of imagination it can be said that more harm has been caused to the society due to making of the scheme, and therefore in my opinion, there is no violation of the doctrine of proportionality. The petitioners have raised one more contention as regards the authority of the Deputy Estate Officer to issue notice under Section 212(1)(a) of the Act on the ground that the said officer has no authority under the provisions of the Act to issue such notice and it is only the Municipal Commissioner who can issue such notice. By order dated 23.08.2012 this Court directed the respondent-Corporation to file additional affidavit on the aspect whether there is any delegation of powers in favour of the authority, who has issued the impugned notice and also as regards the procedure that has been followed under Section 210(b) of the Act. The respondent-Corporation has filed an affidavit stating that in exercise of powers vested under sub-section (1) of Section 69 of the Act and with approval of the Standing Committee given by its Resolution dated 18.09.2003 as provided under Section 69(2) of the Act the Municipal Commissioner of the respondent-Corporation delegated powers under Sections 212, 213, 214, 215 and 216 of the Act to Dy. TDO/Dy. Estate Officer working in the zones. The respondent-Corporation has also produced on record of these petitions an Office Order No.3599 dated 14.10.2003 and on reading the said order it appears that the Municipal Commissioner was within its authority and power to delegate the powers under Sections 212 to 216 of the Act to Dy. TDO/Dy. Estate Officer working in the zones and, therefore, it cannot be gainsaid that the Deputy Estate Officer, South Zone, who has issued the impugned notices under Section 212(1)(a) as well as under Section 212(2) of the Act are without authority. It may noted that it is mentioned in the impugned notices that the Deputy Estate Officer, Estate Department, South Zone of the respondent-Corporation, has issued notice in light of the aforesaid Office Order. Considering the aforesaid submissions made by the learned Counsel appearing for the respective parties and also considering the ratio of the aforesaid decisions lead to the conclusion that the respondent-Corporation has followed the all necessary procedure as prescribed under the provisions of Section 210(b) of the Act and Proviso thereto by issuance of a public notice, as observed in this judgment, in two Gujarati daily newspapers and as the petitioners or any of the affected persons did not file objections raised before the Standing Committee and on approval of the same the Municipal Commissioner prescribed the regular line of the street and has thereafter issued notices under Section 212 of the Act and after considering the objections filed by the petitioners as the same were placed before the Standing Committee, who has on consideration of the same, rejected such objections. As noted hereinabove, the respondent-Corporation has complied with essential requirements of Proviso to Section 210(b) of the Act by issuing public notices as prescribed under the said provisions and in the event when no objections were filed pursuant to the said public notices, the petitioners cannot now contend that opportunity of hearing was not given and Section 212 of the Act does not contemplate any personal hearing before the Standing Committee as canvassed by the petitioners. Provisions of Sections 210-216 of the Act is a complete code by itself and from the record of these petitions the respondent-Corporation has followed the same before issuance of the impugned notices. The allegations of mala fides made by the petitioners on the facts of this case does not hold good. The another contention raised by the petitioners that the road-line which is so prescribed by the Commissioner has to be without any curvature has to be viewed from the planning aspect and considering such a paramount public interest the said would out weigh the private interest. As can be from the record of these petitions it is not that the present petitioners are not only the affected classes and as brought on record by the respondent-Corporation major part of the road-line prescribed by the Commissioner is already implemented. It therefore transpires that the respondent-Corporation has followed all necessary procedure and considering the public interest involved in it, has rightly issued the impugned notices. Taking into consideration the fact that the petitioners shall have to part with possession of the land/property, which is in their possession, which is now forming part of the prescribed road-line, the respondent-Corporation shall determine the compensation as envisaged under Section 216 of the Act and inform the petitioners and/or the persons entitled to such compensation accordingly, before implementing the impugned notices. In view of the foregoing, the petitions fail and are hereby dismissed. RULE discharged. Interim relief stands vacated. There shall be no order as to costs. Registry to place a copy of this order in connected matters. Sd/- [R.M.CHHAYA, J ] FURTHER ORDER
After pronouncement of the aforesaid judgment, Mr.Mahesh Bhatt, ld. Sr. Counsel for the petitioners of SCA No.2738 of 2012, prays for extension of stay granted at the time of issuance of notice, to enable the petitioners to approach the higher forum.
Mr.P.G.Desai, learned Sr. Counsel appearing for the respondent authorities, states that in view of the direction given by this Court, more particularly as regards determination of compensation the same would entail some time and hence, the stay may not be extended.
Considering the facts and circumstances arising out of the present petitions and in view of the fact that the petitioners were granted protection, the stay granted by this Court shall continue for a period of two weeks from today.
Sd/-
[R.M.CHHAYA, J ] *** Bhavesh* Page 86 of 86