ORDER :

1. Both these petitions have been preferred by the petitioners for the same cause of action and, therefore were heard and decided together.

2. For the purpose of convenience, the facts of SCA No.7974 of 2020 shall be referred to.

3. The petitioners have prayed for quashing and setting aside the impugned notification dated 2.11.2011 issued by the Urban Development and Urban Housing Department, Sachivalaya, Gandhinagar. The grievance of the petitioners is that the 18 meter road is being shifted towards the Final Plots which is without authority of law, unconstitutional and violative under Articles 14 and 300A of the Constitution of India.

4. The facts in brief are as under:

It is the case of the petitioners that the respondent especially the Himmatnagar Nagar Palika is shifting the alignment of 18 meter wide T.P. / D.P. road towards their Final Plots under the guise of notification under Section 48(2) of the Town Planning Act. It is the case of the petitioners that nine years after the notification was issued, the respondent No.3, Himmatnagar Nagarpalika has issued notice dated 9.6.2020 by wrongly assuming powers under Section 68 of the Gujarat Town Planning and Urban Development Act, 1976 (for short, hereinafter referred to as `the Act’) read with Rule 33 of the Gujarat Town Planning & Urban Development Rules, 1976 (for short, hereinafter referred to as `the Rules’) at the stage of draft Town Planning Scheme.

It is the case of the petitioners that a notice was issued by the petitioners through their advocate on 10.6.2020 pointing out that the construction permission and the development is being undertaken in accordance with the permissions granted and drainage lines and electricity poles have already been installed. NA order has been issued in September, 2012 and construction permission is issued on 30.3.2016.

It is the case of the petitioners that after the Draft Development Scheme was sanctioned on 2.11.2011, the learned District Collector, Himmatnagar by his order dated 10.4.2012 granted NA permission for residential purpose. Construction permission was granted on 1.12.2012 which was revised on 30.6.2016. The petitioners have completed construction on the majority part of the area.

5. Mr. N.V. Gandhi, learned counsel for the petitioners would submit that the impugned notice under Section 68 of the Act read with Rule 33 of the Rules is without jurisdiction as Section 48(A) would not apply in the facts of the case. He would submit that the judgment of the Hon’ble Supreme Court in the case of Babubhai and Company v. State of Gujarat reported in AIR 1985 SC 613 categorically provided that on examination of the scheme, in accordance with the decision in the case of Babubhai (Supra), summary eviction cannot be ordered and before passing an order, persons should be afforded opportunity of hearing. The owner / occupier should be heard. Reliance was also placed on the decision in the case of Municipal Corporation of City of Ahmedabad v. Janakkumar G. Vyas reported in 2000 (1) GLH 399.

Mr. Gandhi would further submit that shifting the said 18 meter wide T.P. road towards their Final Plots is contrary to the provisions of Section 45(1) of the Act. It has caused serious hardship to the petitioners as their construction will be demolished. Reliance is also placed on Rule 33 and what is prayed is that the principle of promissory estoppel will apply.

Mr. Gandhi, learned counsel for the petitioners has also relied on the following decisions:

- Keshaji Devji Patel through PoA Mohanlal Keshavji v. State of Gujarat reported in 2007 (1) GLR, 297,

- Bhatti Subhas Premji v. Secretary, Urban Development and Urban reported in 2012 GLHEL HC 228153 &

- Pareshbhai P. Raghvani v. State of Gujarat reported in 2016 (0) AIJEL-HC 235803.

6. Mr. Nikhilesh J. Shah, learned counsel appearing for the respondent – Nagarpalika would submit based on the affidavit-in-reply that the prayer of the petitioners for setting aside of notification dated 2.11.2011 is misconce