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2. The petitioners have preferred this petition under Article 226 of the Constitution challenging the notice dated 2.8.2010 issued by respondent No.3-Deputy Commissioner under the provisions of Bombay Provincial Municipal Corporation Act, 1949 ("the BPMC Act" for short). The petitioners reside in their houses situated at Dabholi gamtal of Surat city bearing Survey Nos.253,256,246 to 259, 703 to 705 of Panch Falia street of Dabholi.

3. It is the say of the petitioners that Surat Urban Development Authority ("SUDA" for short) introduced development plan in respect of the entire area in the year 1986, excluding the area of gamtal of Dabholi. On completion of 10 years, development plan was revised and the State Government sanctioned the said revised HC-NIC Page 3 of 67 Created On Thu Oct 22 02:30:17 IST 2015 development plan in the year 2004. While framing the Town Planning Scheme, the Town Planning Authority prepared the draft town planning scheme No.51(Dabholi) in such a manner that the houses of the petitioners were brought in a road line. While preparing a development plan and revised development plan, the authority was conscious and planned appropriately so as to exclude gamtal area in the development plan and thereby saved the legitimate construction of the petitioners.

49. The learned Single Judge in wake of these details did not choose to interfere in the decision of the Standing Committee which decided after considering objections raised by the petitioners.

50. This Court had called for the original files and perused them to understand the controversy thoroughly.

It could be noticed on perusal of the original files that the note of Assistant Town Planner dated 5.3.2009 specifies that as per sanctioned development plan, Dabholi gamtal is partly affected, whereas as per the Town Planning Scheme No.51, Dabholi gamtal is affected in a major way. It further says that in Survey nos.249 to 257, old households are situated whereas in City Survey Nos.703,704 and 705, the land is open. Therefore, necessary procedure was proposed to be undertaken for opening an approach road. Further noting also indicates clearly that in Town Planning Scheme No.51, Dabholi gamtal is not included. However, HC-NIC Page 49 of 67 Created On Thu Oct 22 02:30:17 IST 2015 on 80 feet road connecting Dabholi and Jahangirpura constructed houses of gamtal gets affected, and therefore, there would be a need to exercise the powers under section 210 for making street line. All owners were called for negotiation on 20.6.2009 under section 77 of the BPMC Act as per the noting of 18.6.2009. After the owners were called in person, it was decided to visit the land concerned on 22.6.2009. There was a requirement of exchanging the land for 380.14 sq.meters. It was proposed that in finalized Town Planning Scheme No.51(Dabholi) reservation R- 16(local commercial) is already possessed by the Corporation, and therefore, the same can be handed over in exchange. In other words, in lieu of City Survey Nos.249 to 257 and 246, Dabholi land of 380.14 sq.meters, the R-16(local commercial) was to be allocated. Request was made to consider as to in what manner existing constructed properties were to be handled. The Corporation also worked out the valuation of the land after taking the sale instances of the nearby area. Jantri price was Rs.3500/- to Rs.4500/- per sq.meter. The valuation committee had evaluated the same at Rs.4700/- per sq.meters. Eventually, Rs.900 per sq.meters was considered to be the HC-NIC Page 50 of 67 Created On Thu Oct 22 02:30:17 IST 2015 valuation for the land to be acquired and the one being proposed for allocation. It was proposed that from the owners, the consent be obtained for getting the exchange. Four of the owners, Ishwarbhai Somabhai Patel, Jaswantbhai Somabhai Patel, Bharatbhai Somabhai Patel and Naniben Somabhai Patel, vide their letter dated 9.10.2009 had objected and urged that change be made in the proposed road because the land offered in exchange was near Harijanvas and Bhangivas etc. The land offered was a local commercial land, and therefore, they did not find the same suitable for the residence. What had been mainly objected to by the owners is that their houses are 150 years old and as per town planning scheme, according to the owners, there was no road which passed through gamtal land in the final development plan and yet, the road has been made through this gamtal land with a view to save the land of a particular Survey Number. It is also their objection that as per town planning scheme, the road has not been constructed. SUDA also has permitted the construction, and therefore, on such road number of constructions came up. It is further their say that the houses of the appellants are situated not on the proposed road of the town planning Scheme, and HC-NIC Page 51 of 67 Created On Thu Oct 22 02:30:17 IST 2015 therefore, there was no question of vacating the appellants. The situation of the road is requested to be changed so that no deduction is made eventually.

53. Undoubtedly, original finalized draft plan contained 36 meters of road. Considering the development and on account of ever increasing number of vehicles and commuters, the requirement of wider road would be always felt. Long ago, when the draft plan was sanctioned, 36 meters wide road had been planned whereas, afterwards the same has been reduced and constricted to nearly 24 meters which is an intriguing step. Justification given by the Authority, of course, is that this was to ensure that less number of people are affected by such construction which could barely be a criteria, when requirement of the same is for larger public interest. The authority shall have to regard public interest, vis-a-vis the private interest on strict compliance of the existing law. It is more particularly required to be regarded by the authority which finalized the scheme. It can be also noticed that some of the Survey Numbers which include Survey Nos.135 were being affected if the 36 meters road continued. However, the reduction from 36 meters to 24 meters has helped some of those residents HC-NIC Page 53 of 67 Created On Thu Oct 22 02:30:17 IST 2015 and one of them appeared to be of Survey No.135. But that does not, in any manner, justify the stand of the appellants petitioners that had the road continued to be of 36 meters, their houses could have been saved. The original map consistently shows the portion of gamtal land being covered by this 36 meters of road. In other words, even if the original 36 meters of road would have continued, houses of gamtal were going to be affected. It is not that at the cost of those persons, the others are saved. It is possible that if Survey No.135, as alleged, is containing unauthorised construction work, it is for the Corporation to initiate appropriate actions in accordance with law to deal with such a situation. But, that ipso facto cannot be held to be a ground to uphold the appellants' challenge. It is obvious from the record that this change of road from the width of 36 meters to 24 meters has been finalized while finalizing the Town Planning Scheme No.51(Dabholi). Once the town planning scheme is finalized, it becomes an integral part of the statue. However, the present challenge, which has been made to the action of the respondent authority of such reduction only at the time when it initiated the proceedings as prescribed under the BPMC HC-NIC Page 54 of 67 Created On Thu Oct 22 02:30:17 IST 2015 Act for constructing the approach road, may not be possible to be sustained. As could be noticed from the pleadings as well as from the record, the town planning scheme came to be finalized after following the due procedure. The change made from the final sanctioned plan in the town planning scheme were all incorporated after following due procedure. Restricted challenge that deserves consideration is of exercise of powers under sections 210 and 212 of the BPMC Act by the Commissioner while prescribing the road line.