( 1 ) THE question arising in this petition lies in a very narrow compass and turns on a true interpretation of Rule 21 clause (4) of the Bombay Town Planning Rules 1955 The fourth respondent is the owner of a plot of land bearing Survey No. 662 situate in Asarva within the limits of the Municipal Corporation of Ahmedabad. There is a superstructure on this plot of land which also belongs to the fourth respondent. A part of this plot of land together with the superstructure was let out by the fourth respondent to the petitioner about 40 years ago and since that date the petitioner is in possession of the same as a tenant. The superstructure in the possession of the petitioner consists of shops bearing Municipal Census Nos. 1202/2 1202 and 1202/4. The Borough Municipality by a resolution dated 31st October 1941 declared its intention to make a Town Planning Scheme namely Town Planning Scheme No. VIII and after the declaration of intention was sanctioned by the Government of Bombay a draft scheme was prepared and published by the Borough Municipality and sanctioned by the Government of Bombay on 16th September 1952. The plot of land belonging to the fourth respondent was given original plot No. 109 and it was substantially left untouched in the draft scheme. The petitioner who was in possession of a part of the plot of land as a tenant was therefore not affected by the proposals in the draft scheme and he did not take any steps to appear before the Arbitrator appointed by the Government of Bombay to discharge functions under sec. 30 of the Bombay Town Planning Act 1915 Whilst the proceedings were pending before the Arbitrator the Bombay Town Planning Act 1915 was repealed by the Bombay Town Planning Act 1954 but by reason of the saving provision enacted in the new Act the proceedings before the Arbitrator continued as if the Arbitrator were a Town Planning Officer appointed under the new Act. The Town Planning Officer without giving any notice to the petitioner and affording him an opportunity of being heard made a variation in the draft scheme by amalgamating a substantial part of original plot No. 109 with a public road and this decision was given by him on 27th August 1964. The final scheme was thereafter drawn up by the Town Planning Officer in accordance with the decisions given by him and also in conformity with the decisions given by the Board of Appeal and it was sanctioned by the State Government on 15th January 1966 and it came into force from 1st March 1966. The result of the coming into force of the final scheme was that a substantial part of original plot No. 109 vested in the Municipal Corporation for a public road and the petitioner ceased to be entitled to occupy the same. The petitioner however continued to occupy this period of original plot No. 109 and the Municipal Corporation therefore served on the petitioner on 16th June 1967 a notice under sec. 54 read with Rule 27 of the Bombay Town Planning Rules 1955 requiring the petitioner to hand over vacant possession of this portion of original plot No. 109 after removing the superstructure within seven days from the receipt of the notice. The petitioner thereupon filed the present petition challenging the validity of the final scheme in so far as it related to original plot No. 109.

( 2 ) THE main ground of challenge advanced on behalf of the petitioner was that the variation made by the Town Planning Officer in the draft scheme by shifting the location of the public road in such a manner that a substantial part of original plot No. 109 was included in the public road was invalid and ineffective since it was in contravention of the mandatory requirement of the second proviso to sec. 32 sub-sec. (1) or at any rate in breach of Rule 21 clauses (3) and (4) of the Bombay Town Planning Rules 1955 To appreciate this ground of challenge it is necessary to examine briefly the scheme of the new Act but we have already had occasion to do so in