The main legal point established in the judgment is that the Corporation had the authority to prescribe the road line under Section 210 of the Act and that the decision was in public interest.

JUDGMENT :

1. By way of the present petition filed under Article 226 of the Constitution of India, the petitioners have prayed to quash and set aside the resolution passed by the Standing Committee dated 22.01.2021 and consequent thereto Notice dated 15.07.2021 issued under Section 213 of the Gujarat Provincial Municipal Corporation Act.

2. The brief facts leading to the present petition are that the petitioner is the owner and occupier of the land bearing Survey No.1051/2/B of Village Variyav, Taluka, Adjan Dist.Surat. In the year 2004, Surat Municipal Corporation had declared its intention to frame the Town Planning Scheme No.37(Variyav) and notification of intention was published on 10.02.2004 and thereafter Corporation has prepared the Draft Scheme. The State Government sanctioned Draft Town Planning Scheme and appointed Town Planning Officer on 09.10.2006. In the revised Development Plan 90 Mtrs. road was proposed passing through the original Survey No.1051/2/B in the Town Planning Scheme, therefore, Town Planning Officer revised the 60 Mts. road to 90 Mts. road in the final Town Planning Scheme. Thus, the Survey No.1051/2/B/p demarcated as O.P.No.26 admeasuring 8175 sq. Mts came to be reconstituted as Final Plot No.33 admeasuring 5340 sq.Mts. On 26.09.2012, the State Government sanctioned preliminary scheme and thereafter Final Town Planning Scheme came to be sanctioned on 29.07.2017. In the meantime, the proposals of the Scheme are also implemented by the Corporation and the Petitioners have also surrendered the land earmarked by the Corporation and possession of final plot No.33 admeasuring 5340 Sq.Mts. came to be retained by the present petitioners. On 06.02.2020, the petitioner made an application before the the Corporation for development of land and getting plot validation certificate. At that point of time, the Officer of respondent No.2 informed orally the petitioners that there is further reduction in the plot measurement. However, no written document was provided to the petitioner. On 12.02.2020, a public notice came to be published, wherein it is stated that the Corporation is proposed to prescribe a road line. On 20.02.2020, in furtherance to the notice dated 12.02.2020, the petitioners have filed their objection. Recently, the Corporation has visited the site of the petitioners and called upon to surrender further land. However, no notice has been issued to the present petitioners. Hence, the present petition.

3. Heard Mr.Percy Kavina, learned Senior Counsel appearing with Mr.Viral Salot, learned counsel for the petitioners, Mr.Dhaval Nanavati, learned counsel for respondent No.2 and Ms.Jyoti Bhatt, learned AGP for the respondent – State.

4. Mr.Percy Kavina, learned Senior Counsel has submitted that the issuance of Notice conferred the power under Section 213 of the Gujarat Provincial Municipal Corporation Act by the Respondent Authority is illegal and non application of mind as the preliminary scheme has now become final and there is 90 Mts. road is already existing, if there is error or infirmity in the Scheme or rectify that powers under Section 213 of the GPMC Act cannot be restored. He further submitted that Section 77 of the GPMC Act is for requisite of immovable property, who are also neighbor of the present petitioners have handed over the possession or permitted for implementation of the Notice does not give any right to the Respondents Corporation to take any such illegal action against the present petitioners. He has further submitted that the malic in law is came into play as the decision is taken in the Standing Committee and thereafter issuance of Notice is without application of mind and there is some malice involved in the process. In support of his submissions, Mr.Kavina, learned Senior Counsel relied upon the judgment reported in 2005(6) SCC 778, wherein this Court has observed in para 40 & 41, which reads as under:]

“40. Furthermore, there cannot be any doubt whatsoever that even if an ord