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[Cites 48, Cited by 0]

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