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3. Heard learned advocate Mr. Dipak Dave for the petitioners and learned Additional Government Pleader Mr. Sahil Trivedi for respondent Nos. 1, 2 and 10 and learned advocate Mr. Kaushal Pandya for respondent No. 3 and learned advocate Mr. Rutvij Bhatt for respondent Nos. 4 to 9.

4. Learned advocate Mr. Dipak Dave for the petitioners submitted that the petitioner No. 1 herein is a Society and petitioner Nos. 2 and 3 are residents of said Society. The Society was formed in the year 1992 by converting the land situated at Revenue 485/1 having Final Plot No. 72/A & 72/B admeasuring about 8205 sq. mtrs. and 72/C admeasuring about 8086 sq. mtrs, respectively (herein after referred as 'land in question') in to non-agricultural use. Vide order dated 13.04.1992 (Annexure-B, Page No. 81), the office of Collector, NEUTRAL CITATION C/SCA/26594/2022 JUDGMENT DATED: 04/09/2025 undefined Valsad gave permission to convert the plot situated at Revenue Survey No. 485/1, Final Plot No. 72/B admeasuring about 7104 sq. mtrs. as non-agricultural land. The sanction given vide order dated 13.04.1992 was for 'A' type and 'B' type plots. The 'A' type plots were having area of 1493 sq. mtrs. and 'B' type plots were having are of 759 sq. mtrs. In these plots, common plot was provided of 830.80 sq. mtrs. Thus, the permission for non-agricultural use was granted with a common plot of 830.80 sq. mtrs. Accordingly, members of the Society got together and basis the development permission, plotting was done and sold to private individuals.

4.1 Learned advocate for the petitioners submitted that thereafter, construction was done in the form of residential house that too after getting necessary development permission from respondent No. 3 - Bilimora Nagarpalika. Thus, undisputedly, the construction was done as per the permission granted by respondent No. 3 - Nagarpalika by keeping 830.80 sq. mtrs. open area in the form of common open plot. The said common open plot is used by all the residents of the Society for their common use and this is the only common plot available to the petitioner No. 1 - Society. The issue herein is the common open plot forming part of T.P.Scheme No.1- (Bilimora-Desra).

NEUTRAL CITATION C/SCA/26594/2022 JUDGMENT DATED: 04/09/2025 undefined 4.7 Learned advocate for the petitioners submitted that the order dated 02.12.2022 and 09.01.2024 are unjust and illegal because though directed by this Court vide orders dated 05.05.2022 in SCA 2973 of 2022 and order dated 10.10.2022 in SCA 17315 of 2022, the orders dated 02.12.2022 by the TPO and order dated 09.01.2024 by Billimora Nagarpalika were passed without taking in to consideration the objections of the petitioners. Both the orders, despite directions of this Court are unreasoned and therefore the same may be quashed and set aside. Moreover, no reasons are assigned as to why the variation is not possible. Merely, the scheme being sanctioned by Notification dated 27.05.2019, the petitioners right of variation under Section 70 of the TP Act, 1976 may not be extinguished. Moreover, the allegations made of malafide are also not considered. Even if the orders dated 02.12.2022 and 09.01.2024 are perused, the reasons given are the same. The reasons given are not appropriate to reject the application seeking variation. It is true that this is third round of litigation however, considering the procedure not followed, this Court vide order dated 20.11.2023 has granted interim relief in favour of the petitioners. The submissions made that the respondents have not followed the procedure was accepted. The respondents have done the same with a malafide intention to favour the private respondents to allot the common plot of the Society in the Town Planning Scheme. As per the guidelines of the State Government issued for framing the Town Planning Scheme, consideration of common plot of the Society shall have to be avoided. Despite that ignoring the guidelines, the Town Planning Scheme was sanctioned taking away the common plot of the Society. Moreover, the majority NEUTRAL CITATION C/SCA/26594/2022 JUDGMENT DATED: 04/09/2025 undefined residents of the Society are senior citizen and this is the only common plot available for their leisure. Further, proportionate deduction was not considered. If the proportionate deduction was considered then some of the portion of the common plot of the Society might have saved.

11. One more aspect which requires consideration is, during pendency of petition an order dated 27.10.2023 was passed directing to carry out measurement of the common plot of the petitioners' society and accordingly Rojkam dated 03.11.2023. was prepared (page 640) along with map. From the map it is evident that some portion of common plot is available to the petitioners. Thus, the contention of respondent- Nagarpalika that the T.P. Scheme was prepared keeping in mind the best interest of the residents of the Society merit acceptance.