JUDGMENT : 1. Heard learned Senior Advocate Mr. Sudhir Nanavati for learned advocate Mr. Anuja Nanavati for the petitioners, learned Assistant Government Pleader Mr. Kanva Antani for respondent-State and learned Senior Advocate Mr. Prashant Desai assisted by learned advocate Mr. Deep Vyas for the respondent no.3 through video conference. 2. By this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs : “A. Your Lordships may be pleased to issue a writ of Mandamus or any other writ, order or direction in the nature of Mandamus quashing and setting aside the impugned order dated 15.10.2015 by Respondent no.3 at Annexure “A” to the petition; and B. Your Lordships may be pleased to issue a writ of Mandamus or any other writ, order or direction in the nature of Mandamus staying the operation, implementation and execution of Town Planning scheme no.28 (Nava Vadej)(First Varied) which is sanctioned by State Government vide order no. V/112 OF 1998/ TPS – 1198-1460-L dated 13.08.1998, till appropriate benefit as statutorily permitted are given to the petitioners; C. Your Lordship may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus directing the Respondents herein not to issue any further notice for the recovery of possession of land bearing Survey no. 457/1 & 457/2 situated at Nava-Vadaj, District Ahmedabad forming part of Town Planning Scheme no. 28 (Nava-Vadaj) till appropriate benefit as statutorily permitted are given to the Petitioners; D. Pending hearing, admission and final disposal of this petition, this Hon’ble Court may be pleased to stay operation, implementation and execution of the notice / order dated 15.10.2015 at Annexure- “A” and to restrain the Respondents or their representatives from implementing or enforcing in any manner the Town Planning Scheme no.28 (Nava-Vadaj)(First Varied) which is sanctioned by State Government vide order no. V/112 OF 1998/TPS – 1198-1460- L dated 13.08.1998 and further be pleased to grant Status-quo qua land bearing survey no.457/1 &457/2 situated at Village: Vadaj; Taluka: Sabarmati; District: Ahmedabad; E. Ex-parte/Ad-interim relief in terms of para 10 (D) above be granted to the petitioner; F. Any other and further reliefs as this Hon’ble Court may deem fit and proper in the circumstances of the case.” 3. Brief facts of the case are as under : (3.1) Petitioner no.1 is a cooperative society and petitioner no.2 is the Chairman/Secretary of the petitioner no.1- cooperative society. (3.2) It is the case of the petitioners that the then State of Bombay passed a Resolution dated 07.05.1956 whereby it was resolved by the Development Department to implement a Scheme for organization of Cooperative Societies for co-operative cattle breeding and forming society for the improvement of nomadic professional cattle breeders, specially for economical and social betterment of cattle breeders, particularly Rabaris and Bharvads of Kadi, Ahmedabad and Mehsana Regions. Pursuant to such scheme, the petitioner No.1 Society came to be constituted and registered. It is the case of the petitioners that the copy of such registration certificate is lost due to heavy rain and therefore the petitioner no.1 Society has applied for obtaining duplicate certificate. (3.3) It is the case of the petitioners that under the said Scheme, the petitioners were allotted land bearing Survey Nos.457/1 and 457/2 at Village Vadaj, Taluka Sabarmati, District Ahmedabad. (3.4) It is the case of the petitioners that since the allotment, the land bearing Survey Nos.457/1 and 457/2 admeasuring 15,479 Sq. mtrs. is in the possession of the petitioner-society and its Members and they are doing their traditional business of cattle breeding and all the Members as on today are having their electricity connections at the said premises. The members of the petitioner society also have valid residential proofs bearing the address of the present premises and Municipal Tax is also paid qua this land. (3.5) It is the case of the petitioners that in the year 1971, the land bearing Survey Nos.457/1 and 457/2 was included in Town Planning Scheme No.28 (Nava-Vadaj) whereby the land bearing Survey Nos. 457/1 and 457/2 were given original Plot No.101 and the said plot was reconstituted and allotted Final Plot No.330 i.e. against the original land of Survey Nos. 457/1 and 2, the petitioner-society was allotted Final Plot No.330. The said Town Planning Scheme NO.28 (Nava Vadaj) was sanctioned on 12.12.1980 and order for implementation was passed on 27.01.1981. (3.6) The Preliminary Town Planning Scheme No. 28 (Nava Vadaj) was sanctioned on 10.12.1980 and thereafter, the Final Town Planning Scheme was sanctioned on 5.4.1982 which came into force on 25.5.1982. The said Town Planning Scheme NO.28 (Nava Vadaj) was sanctioned on 12.12.1980 and order for implementation was passed on 27.01.1981. (3.6) The Preliminary Town Planning Scheme No. 28 (Nava Vadaj) was sanctioned on 10.12.1980 and thereafter, the Final Town Planning Scheme was sanctioned on 5.4.1982 which came into force on 25.5.1982. (3.7) The Town Planning Committee of the respondent Corporation passed resolution on 17.1.1985 proposing to vary the scheme under section 71 of the Gujarat Town Planning & Urban Development Act, 1976 (here-in-after referred to as “the Act, 1976”) and thereafter, resolution was passed under section 41(1) of the Act, 1976 declaring its intention to vary the Town Planning Scheme No. 28 (Nava Vadaj) in respect of the land in question. The resolution for variation was published on 16.2.1985 in the extra-ordinary Official Gazette as per Rule 16 of the Gujarat Town Planning and Urban Development Rules, 1979 (here-in-after referred to as “the Rules, 1979”). (3.8) The said notification was also published in daily newspaper “Jai Hind” and personal notice of the said intention was given under Rule 17 of the Rules, 1979 to the petitioner-society on 11.3.1986 to remain present before the Town Planning Committee of the Corporation but no one from the petitioner-society remained present. (3.9) Thereafter, notice under section 41 was published on 27.7.1986 in the local daily newspaper “Times of India” and notice was also published in extra-ordinary Official Gazette of Government of Gujarat on 25.7.1986 along with the draft scheme inviting the objections. However, no objection was taken by the petitioners. Thereafter, the State Government sanctioned the Draft Scheme (First Varied) on 26.3.1987 under section 48(2) of the Act, 1976 and Town Planning Officer was appointed in the year 1988 and the procedure was completed under Rules 26(2) and 26(3) of the Rules, 1979. The Town Planning Officer also issued personal notice to the petitioners on 19.11.1992 calling upon the petitioner-society to provide necessary documents and representation with regard to the proposal made in the Town Planning Scheme. As the said notice could not be served, the same was affixed at the site with the signature of two persons. However, the petitioner-society did not make any representation or file any objection. A notice was published in Official Gazette under Rule 26(9) of the Rules, 1979 on 15.11.1994 as Town Planning Officer declared the award on the said date. As the said notice could not be served, the same was affixed at the site with the signature of two persons. However, the petitioner-society did not make any representation or file any objection. A notice was published in Official Gazette under Rule 26(9) of the Rules, 1979 on 15.11.1994 as Town Planning Officer declared the award on the said date. (3.10) Thereafter, Preliminary Town Planning Scheme (First Varied) was sanctioned on 25.1.1996 which came into force with effect from 26.2.1996 and thereafter, Final Town Planning Scheme was sanctioned on 13.8.1998. After the Final Town Planning Scheme was sanctioned in the year 1998, the petitioners were served with notice under section 68 of the Act,1976 read with Rule 33 of the Rules, 1979 to hand over the possession of the land in question. The petitioner-society being aggrieved filed Regular Civil Suit No.901/1998 before the City Civil Court, Ahmedabad which was withdrawn on 29.12.2005. (3.11) Thereafter, in the year 2015, the petitioners received the impugned notice dated 15.10.2015 to vacate the land bearing Survey No.457/1,457/2 i.e. Final Plot No. 330 and handover the possession to respondent no.3-Corporation. (3.12) Being aggrieved by the said notice, the petitioners have preferred this petition. 4. Learned Senior Advocate Mr. Sudhir Nanavati appearing for the petitioners submitted that the respondents by framing and finalising the TP Scheme No.28 (Nava-Vadaj) did not follow statutory procedure prescribed under the Act, 1976 as well as Rules,1979, more particularly, Rule 26 of the Rules, 1979. It was submitted that Sub-rule (1) of Rule 26 specifically provides that the owner of any property whose right is injuriously affected by framing of Town Planning Scheme would be entitled to make a claim for compensation under section 82 of the Act, 1976 and such notice is required to be published in the official gazette or in one or more Gujarati newspaper circulating within the area and such notice is required to be pasted at prominent places at or near the area comprised in the Scheme. Reference was also made to Sub-rule(3) and Sub-rule(9) of Rule 26 of the Rules, 1979 and submitted that these mandatory rules are not followed by the respondent no.2 as there was no communication given by the Town Planning Officer at the time of preparing Preliminary Scheme and/or Final T.P. Scheme No. 28 (Nava-Vadaj) and therefore, there is violation of Sub-rules (1), (3) and (4) of Rule 26 of the Rules, 1979. (4.1) It was submitted that the Town Planning Officer has also not communicated any decision taken by him in respect of each plot owner/person interested by issuing requisite extract from the Scheme in Form Nos. J and K as provided in Rule 26(9) of the Rules 1979. It was therefore, submitted that there is a clear violation and non compliance of the statutory and mandatory Rules and hence, the impugned notice dated 15.10.2015 issued by respondent no.3 deserves to be quashed and set aside. (4.2) Learned Senior Advocate Mr. Nanavati further submitted that the land in question situated at Survey No. 457/1 and 457/2 which was identified for slum up-gradation and rehabilitation under Slum Policy, 2013 which was introduced by the State Government, could not have been the subject matter of variation as at the relevant time in the year 1985 when the T.P. Scheme was sanctioned, there was no policy for slum up-gradation and therefore, under the guise of Slum Up-gradation Policy, members of the petitioner-society cannot be forcibly evicted by taking the possession of the land bearing Revenue Survey No.457/1 and 457/2 from them. (4.3) Learned Senior Advocate Mr. Nanavati further submitted that as per the proposal of the Draft Town Planning Scheme No. 28 (Nava Vadaj)(First Varied), no Final Plot was allotted to the petitioners against the land occupied by the members of the petitioner-society and in lieu of non-allotment of Final Plot, the respondents have estimated compensation of Rs. 1,75,425/- which was never paid to the petitioner-society or any of its members. (4.4) Learned Senior Advocate Mr. 1,75,425/- which was never paid to the petitioner-society or any of its members. (4.4) Learned Senior Advocate Mr. Nanavati further submitted that under section 70 of the Act, 1976 if after the Preliminary Scheme or the Final Scheme has come into force and if the appropriate authority considers that the Scheme is defective on account of an error, irregularity or informality, the appropriate authority may apply in writing to the State Government for the variation of the Scheme and thereafter, the State Government can vary the Preliminary Scheme or Final T.P. Scheme. But Final T.P. Scheme No. 28 (Nava-Vadaj) was varied by the respondents only under the guise of implementation of Slum Policy which did not exist at the relevant time and such policy came into force only in the year 2013. (4.5) It was submitted that it is not the case of any of the respondents that Preliminary Scheme or Final T.P. Scheme was defective on account of an error, irregularity or informality and hence the State Government has no power and/or authority to vary the Town Planning Scheme on any other ground or under any other circumstances, save and except, as provided under section 70(1) of the Act, 1976. (4.6) Learned Senior Advocate Mr. Nanavati thereafter referred to Rule 35 of the Rules, 1979 which provides that the appropriate authority making an application for the variation of the Town Planning Scheme shall state in such application all the particulars in respect of the variation to be made. Reference was made to Sub-rule (3) of Rule 35 of the Rules, 1979 which provides that the publication of the Draft Variation T.P Scheme under sub-section (2) of section 70 of the Act, 1976 shall be made by means of a notification published in the Official Gazette and in one or more Gujarati Newspapers circulating within the jurisdiction of the appropriate authority, inviting objections to such variation. It was submitted that the respondents did not follow the mandatory procedure prescribed in Rule 35 of the Rules, 1979 and as such, there is a clear violation of the statutory provisions of the Act and the Rules which are mandatory in nature and therefore, the impugned action of the respondents is in clear breach and violation of the statutory provisions. (4.7) Learned Senior Advocate Mr. (4.7) Learned Senior Advocate Mr. Nanavati thereafter, submitted that the respondents did not give any opportunity of hearing to the petitioners at the time of framing of Town Planning Scheme No.28 (Nava-Vadaj) or at the time of making variation in the said T.P. Scheme. (4.8) Reliance was placed on the decision of Supreme Court in case of Municipal Corporation v. Chelaram & Sons and another reported in (1996) 11 Supreme Court Cases 127, wherein it is held that under section 54 of the Bombay Town Planning Act, 1955 read with Rule 27 of the Bombay Town Planning Rules, 1955 when any occupant is sought to be evicted in the light of the sanctioned Scheme, principles of natural justice have to be observed and after hearing the occupant concerned, a speaking order has to be passed. (4.9) Reference was made to following observation in paragraph no. 8 of the decision in case of M/s. Babubhai & Co. and another v. State of Gujarat and others reported in (1985) 2 Supreme Court Cases 732 : “the power conferred upon the local Authority is a quasi-judicial power which implies that the same has to be exercised after observing the principles of natural justice, and that too by passing a speaking order which implies giving of reasons and that ensures the application of mind to only germane or relevant material on the record eschewing extraneous and irrelevant , Moreover any order of summary eviction based on any extraneous , non-germane , irrelevant or malafide considerations would be subject to the writ jurisdiction of Court.” (4.10) Reliance was also placed on the decision in case of Kishanbhai Hargovandas Patel & Anr. v. State of Gujarat & Ors. reported in 2010(4) GLR 2867 , wherein this Court observed that section 65(1) of the Act, 1976 confers power upon the State Government to sanction the Preliminary Town Planning Scheme submitted by the Town Planning Officer with such modification as may, in its opinion, be necessary for the purpose of correcting an error, irregularity or informality and therefore, if the opportunity would have been given to the persons/landowners likely to be affected by such modification of the Preliminary Town Planning Scheme then the affected person may point out that there is no necessity to modify the Scheme. It was therefore, submitted that the requirement of principles of natural justice if not read into at the stage when the State Government proposes to sanction the Preliminary Town Planning Scheme, a grave prejudice shall be caused to the affected persons. (4.11) Thereafter, reliance was placed on the decision in case of Keshavji Devji Patel Through P.O.A. Mohanlal Keshavji & Ors. v. State of Gujarat & Ors. reported in 2007(1) GLR 297 , wherein it is held that the principles of natural justice are required to be observed while exercising power of summary eviction under sections 68 and 69 of the Act, 1976 and the Rules framed there under. (4.12) Learned Senior Advocate Mr. Nanavati relying upon above decision submitted that the powers of the local authority are held as that of quasi- judicial powers and while exercising such powers, the Apex Court has read the implied application of the principles of natural justice and therefore, until the respondent Corporation which is implementing agency of Town Planning Scheme considers the matter after considering the objections raised by the petitioners, action of summary eviction is not sustainable in eye of law. It was therefore, submitted that in view of violation of principles of natural justice, as no opportunity of hearing is given to the members of the petitioner-society, impugned show cause notice deserves to be quashed and set aside. (4.13) Lastly, it was submitted by learned Senior Advocate Mr. Nanavati that there is lacuna in the impugned notice as no final plot is allotted against the land of Survey No.457/1 and 457/2 i.e. against Original Plot and, therefore, the members of the petitioner-society did not give peaceful and vacant possession of Final Plot No.330 and continued to occupy the land bearing Survey No. 457/1 and 457/2 by residing on the said land and therefore, as such in the impugned notice dated 15.10.2015, respondent no.3 has wrongly and erroneously stated Final Plot No.330 as OP No. 330. 5. On the other hand, learned Senior Advocate Mr. Prashant Desai assisted by learned advocate Mr. Deep Vyas for respondent no.3- Corporation submitted that the procedure as prescribed under the Act, 1976 and Rules 1979 have been followed by the respondents. 5. On the other hand, learned Senior Advocate Mr. Prashant Desai assisted by learned advocate Mr. Deep Vyas for respondent no.3- Corporation submitted that the procedure as prescribed under the Act, 1976 and Rules 1979 have been followed by the respondents. (5.1) It was submitted that the petitioner-society was served with the notice at each stage but no objection was filed at any point of time and, therefore, the decision rendered in case of Babulal Badri Prasad v. State of Gujarat reported in 2008(3) GLH 137 , wherein the Apex Court has observed that if the objector has not filed any objection with regard to the Draft Scheme and if he has not participated in the proceedings then the principle of waiver would be applicable for claiming equitable relief in the facts of the case. (5.2) It was submitted that the facts are not in dispute and ignorance of not issuing notice or put to knowledge of the petitioners is not borne out from the record. Attention was invited to chronology of events to point out that though no personal notice or special notice is required to be served, the Town Planning Officer has served the notices upon the petitioners for raising objection and also personal hearing was granted on 11.3.1986. It was also pointed out that personal notices to the petitioners were also served on 19.11.1992 by the Town Planning Officer before declaring the award on 15.11.1994 as per Rule 26(9) of the Rules 1979. As the said notice remained unserved, notice was affixed at the site with the signatures of two witnesses namely, Shri Rajendra A. Parmar and Shri Pramod K.B. It was therefore, submitted by the learned Senior Advocate Mr. Desai that all the required procedures were followed. (5.3) Learned Senior Advocate Mr. Desai relied upon the following averments made in the affidavit in reply filed on behalf of the respondent no.3: “7.It is respectfully submitted that State Government in exercise of powers under Town Planning Act( referred as “Act”) sanctioned Final scheme by notification dated 5.04.1982. That, in final scheme with respect to land bearing S.No.457/1 & 457/2, against Original Plot No.101, the Same was allotted as Final Plot No.330. The copies of part plans and redistribution details are annexed hereto and marked as ANNEXURE R/1 8. That, in final scheme with respect to land bearing S.No.457/1 & 457/2, against Original Plot No.101, the Same was allotted as Final Plot No.330. The copies of part plans and redistribution details are annexed hereto and marked as ANNEXURE R/1 8. It is submitted that the land had been encroached and occupied and in view of development of the city, there was requirement to develop subject land in scheme for public purpose. That the intention of 1st varied scheme was declared on 29.01.1985 and the same was published 11.02.1985.That upon following prescribed procedure under the Act, the state Government sanctioned draft by notification dated 26.03.1987. The town planning officer came to be appointed u/ s. 50, who upon following requisite procedure submitted preliminary scheme before the State Government who upon verification have sanctioned the preliminary scheme by notification of 25.01.1996. That, the 1st varied final scheme was thereafter sanctioned by notification of 13.06.1998. The copy of notification sanctioning 1st varied final scheme is annexed hereto and marked as ANNEXURE R/2. 9. It is submitted that under the 1st varied scheme aforesaid subject land with other areas were reserved/allocated for public purpose i.e development and regulating of slums. The copy of part plans and redistribution and valuation details settled by the State Government are annexed hereto and marked as ANNEXURE/3. It is submitted that in proposal of 8th varied scheme,the land was proposed and shown for the same purpose, however the same was refused by the State Government by notification dated 26.02.2014. The copy of the notification of refusal is annexed hereto and marked as ANNEXURE R/4. 10. It is submitted that on sanctioning of 1st varied final scheme, all rights settled in respect of the final plot have become final and binding to all the parties and the land has vested with respondent authority free from all encumbrances u/s.67 of the Act. The aforesaid land has thereby vested with the Corporation free from all encumbrances i.e. the land vests with the implementing authority and cease to be a private property and the aforesaid scheme has become part of the act. 11. That, under the circumstances, petition filed would not be permissible and the implementation cannot be stayed. Pertinently, despite of the area of original plot admeasures 15,479 sq. 11. That, under the circumstances, petition filed would not be permissible and the implementation cannot be stayed. Pertinently, despite of the area of original plot admeasures 15,479 sq. mtrs., petition filed would surprisingly show list of 39 members for the society without valid and authentic details and of the petitioners as well, moreso where land have has encroached absence of legal and valid permissions. 12. It is submitted that in view of aims and objects, it would be incumbent to implement the scheme for public purpose. That, in the year 2011, biometric survey was carried out at behest of Corporation, which identified around 7715 units over areas which is known and identified as “Ramapir Na Tekra” 13. It is submitted that the areas are unhygienic and in insanity and also cramped and unregulated, without proper and basic amenities, sourcing danger. That, with aim to upgrade and rehabilitate the notified slum areas, sourcing danger of health, safety as also conditions of people living unhygenic and insanity slum policy 2013 was introduced and implemented by the Corporation, so as to provide healthy, hygienic and constructed dwelling units with all basic amenities including of drainage, water, electricity, parking etc. 14. The policy further aims to rehabilitate and upgrade the areas and the living conditions of the inhabitants by constructing new unit and handing over the same, free of cost at the same and further mandates providing transitional accommodation, till beneficiaries are relocated on constructed units. 15. That, prescribed authority had thereupon commenced for undertaking rehabilitation and redevelopment of the slum for the aforesaid areas. That, the State Government, Urban Development and Urban Housing Department, by notification of 17.12.2015, declared subject land along with other mentioned abutting each other within jurisdiction of Corporation limits to be Slum Area. The copy of the notification is annexed hereto and marked as ANNEXURE R/5. 16. It is submitted that since area was large, the same was divided in 6 sectors, wherein subject land comprises in sector-1.That, in furtherance of policy, finally public tenders were invited by advertisement in Sandesh newspaper on 13.05.2016 and the entire process was carried out by (n)-procure. The tender of sector-1, thereafter came to be granted to the lowest bidder i.e. Cube Construction Engineering Ltd., which came to be sanctioned by Slum Rehabilitation Committee on 7.06.2016. The copy of the public advertisement along with resolution is annexed hereto and marked as ANNEXURE R/6. The tender of sector-1, thereafter came to be granted to the lowest bidder i.e. Cube Construction Engineering Ltd., which came to be sanctioned by Slum Rehabilitation Committee on 7.06.2016. The copy of the public advertisement along with resolution is annexed hereto and marked as ANNEXURE R/6. 17. That, LOI was thereafter executed on 8.06.2016 and the work order came to be issued on 22.06.2016. The copy of same is annexed hereto and marked as ANNEXURE R/7. It is submitted that pursuant thereto, survey is being carried out by the developers, who is identifying details and collecting documentary evidence of possession and so far around 1200 huts/units have been identified and documents of around 374 beneficiaries have been collected. That, it further appears that around 127 beneficiaries have already received cheques for transit accommodation for an amount of approx. Rs.1 Lac each. 18. It is submitted that no construction has been hindered and survey and collection of evidence is being carried out and only for the persons who have received cheques the process of vacating and removing construction is done. It is submitted without prejudice, that under the circumstances it would be preposterous and beyond reasonable comprehensive for the petitioners to content that the said 39 persons, should be protected and the scheme may not be implemented. 19. That, it would be noteworthy to mention that under the slum policy no person eligible would be evicted or dispossessed, without providing transitional facilities, till he has been rehabilitated in the newly constructed premises. That, under the circumstances in view of public interest and there being imperative needs, it would be incumbent to implement the town planning scheme, as sanctioned under 1st varied final scheme. 20. It is submitted that even otherwise, the tenure of the petitioner challenging the actions while implementing the scheme would not be maintainable and the same as such would be barred by principles of delay, latches and acquiescence. 21. It is submitted the aforesaid as such is a policy decision and the same has already been implemented and any deviation therefrom would not help meet ends of justice. That even otherwise the actions taken are just, legal, proper and in the interest of administration and therefore also the petition does not deserve to be entertained.” (5.4) Learned Senior Advocate Mr. That even otherwise the actions taken are just, legal, proper and in the interest of administration and therefore also the petition does not deserve to be entertained.” (5.4) Learned Senior Advocate Mr. Desai after referring to the above averments also relied upon the averments made in the further affidavit in reply filed on behalf of respondents no. 2 and 3 to point out that the Town Planning Scheme was decided to be varied in the year 1985 and the State Government sanctioned the Draft Town Planning Scheme (First Varied) on 26.3.1987 and as the petitioner-society was holding Final Plot No.330, said plot was given OP No.330 along with Final Plot No. 331 and 713 in the original Scheme and all these three plots were reserved for the slum up-gradation and varied Town Planning Scheme (Final) was sanctioned on 15.9.1998. (5.5) Learned Senior Advocate Mr. Desai therefore, submitted that when the variation is to be done in the Town Planning Scheme, the Town Planning Officer only verifies the Town Planning Scheme record as sanctioned and in the said Town Planning Scheme, Final Plot No.330 of the petitioner-society and other plots were placed in reservation in the varied town planning scheme and therefore, Final Plot No.330 becomes OP No.330 in the varied Town Planning Scheme and the said plot is also reserved against which no final plot was allotted to the petitioner-society and to the owners of Final Plot No. 331 and 713. It was therefore, submitted that there is no contradictory Government record and all procedure was followed as prescribed in the Act and the Rules. (5.6) Learned Senior Advocate Mr. Desai also pointed out from Form-F that compensation to be paid to the petitioner-society is already determined. However, the petitioner-society did not claim the same though the Corporation is ready and willing to deposit the amount of compensation even before this Court. (5.7) Learned Senior Advocate Mr. Desai submitted that the petitioner-society was not allotted any Final Plot in the varied Town Planning Scheme which was sanctioned by the State Government and which has become the part of the Act, as it is not obligatory on part of the authority to allot the Final Plot to the persons who are affected due to Town Planning Scheme as per sections 44 and 45(2) of the Act, 1976. It was therefore submitted that the provision is also made for the situation where the owner of the original plot is not provided with the Final Plot, as per section 84 the net amount of loss is required to be paid to him by the Appropriate Authority. (5.8) Reliance was placed on decision in case of Prakash Amichand Shah v. State of Gujarat reported in (1981) 3 Supreme Court Cases 508 wherein the Apex Court has discussed the entire scheme of the Act, 1976 referring to section 71 of the Bombay Town Planning Act which is pari-materia to section 84 of the Act, 1976 and reference was made to paragraph no. 21 of the said decision to point out the applicability of section 84 in the facts of the case. (5.9) Reliance was placed on the decision of the Apex Court in case of State of Gujarat v. Shantilal Mangaldas reported in AIR 1969 Supreme Court 634 to submit that for granting of any land to the person while framing of the Town Planning Scheme, the person who loses the land must be compensated as per the provisions of the Act as per the principle of determination of compensation which cannot be said to be irrelevant. (5.10) Reliance was placed on the decision of Division Bench of this Court in Special Civil Application No.1608/1979 dated 20-22.4.1992, wherein it is held that in view of amendments in Rule 21(3) and (4) of the Bombay Town Planning Rules, no personal notice or special notice is required to be served upon the petitioners. It was pointed out that Rule 21(3) and (4) of the Bombay Town Planning Rules are pari-materia with Rule 26(3) and (4) of the Rules, 1979. (5.11) Reference was made to the decision in case of Shilpa Park Co.Op Housing Society Ltd. v. Surat Urban Development Authority & ors. reported in 1996(2) GLR 707 , wherein also this Court has held that no personal notice is required to be served to any of the persons affected by the Town Planning Scheme and the Letters Patent Appeal was also dismissed against the said judgment and the Supreme Court also dismissed the Special Leave Petition. reported in 1996(2) GLR 707 , wherein also this Court has held that no personal notice is required to be served to any of the persons affected by the Town Planning Scheme and the Letters Patent Appeal was also dismissed against the said judgment and the Supreme Court also dismissed the Special Leave Petition. (5.12) It was submitted that in case of Kashiben v. Surat Municipal Corporation reported in 1989(2) GLH 246 , this Court held that once the Town Planning Scheme has become part of the Act, it cannot be challenged under Article 226 of the Constitution of India on the ground of procedural irregularities. (5.13) lastly, it was submitted that in the various judgments of this Court as well as the Apex Court, it is observed that no personal notice is required to be given and only where the objection is filed, the hearing is required to be given. As in the facts of the case, no objections were filed by the petitioner-society and the petitioner- society has approached this Court only at the stage of implementation of the Town Planning Scheme, such objection cannot be sustained as the petition itself is not maintainable and the same is required to be dismissed. 6. Having heard the learned advocates for the respective parties and having perused the material on record, it emerges that facts of the case are not in dispute. Land admeasuring 15,479 sq mtrs. situated at survey no. 457/1 and 457/2 at village Vadaj, Taluka-Sabarmati, District-Ahmedabad was part of Town Planning Scheme No. 28 (Nava Vadaj) and Original Plot No.101 was allotted. In the year 1982, TP Scheme no.28 was sanctioned by the State Government and in lieu of Original Plot No. 101, Final Plot No. 330 admeasuring 7017 sq. mtrs. was allotted to the petitioner-society. 7. It further emerges from the facts on record that in the year 1985, a resolution was passed by Ahmedabad Municipal Corporation for variation in the Town Planning Scheme no.28 under section 71 of the Act, 1976. Accordingly, the procedure as prescribed under sections 40 to 65 of the Act, 1976 read with Rules 16 to 26 of the Rules, 1979 was followed by the respondent-Corporation as per the facts stated here-in-above and thereafter, the Town Planning Scheme No. 28(Nava Vadaj-Varied) was finally sanctioned by the State Government on 13.8.1998. 8. Accordingly, the procedure as prescribed under sections 40 to 65 of the Act, 1976 read with Rules 16 to 26 of the Rules, 1979 was followed by the respondent-Corporation as per the facts stated here-in-above and thereafter, the Town Planning Scheme No. 28(Nava Vadaj-Varied) was finally sanctioned by the State Government on 13.8.1998. 8. From the above facts which are not in dispute, it can be seen that necessary public notices were issued in the newspaper at the relevant time as prescribed under the Rules, 1979 as well as personal notice was also issued to the petitioner-society inviting the objections for variation in the Town Planning Scheme and the respondents took about 13 years for final sanction of the varied Town Planning Scheme. The petitioner-society and its members at no point of time have handed over the possession of the land in question to the respondent-Corporation either as per the sanctioned Town Planning Scheme or as per the varied Town Planning Scheme. 9. The objection raised on behalf of the petitioner-society with regard to not giving opportunity of hearing by the respondent Corporation or the Town Planning Officer is also without any basis as it is available on record that notices were issued in daily newspaper “Jai Hind” by the Town Planning Committee after the Varied Scheme was published in the Official Gazette in the year 1985. Personal notices of the intention to vary the scheme was also given to the petitioner-society on 11.3.1986 as prescribed under Rule 17 of the Rules, 1979 calling upon the petitioner-society to submit objections, if any, to the proposed variation. The Draft Varied Town Planning Scheme was also published as required under section 42 of the Act, 1976 in the Official Gazette as well as Gujarati daily newspaper and copies of such advertisement was posted at the head office of the appropriate authority and other prominent places in or near the areas included in the Draft scheme. Notice as required under section 41 of the Act, 1976 was also published in the local daily newspaper “Times of India” on 27.7.1986. The Town Planning Officer had also issued personal notice to the petitioners on 19.11.1992 for submission of the objections, if any, to the proposed Varied Town Planning Scheme No.28 and as the said notice was unserved, the notice was affixed at the site with signatures of two witnesses. 10. The Town Planning Officer had also issued personal notice to the petitioners on 19.11.1992 for submission of the objections, if any, to the proposed Varied Town Planning Scheme No.28 and as the said notice was unserved, the notice was affixed at the site with signatures of two witnesses. 10. Thereafter, the Town Planning Officer published notice in the daily newspaper on 15.11.1994 as prescribed under Rule 26(9)of the Rules,1979 on declaration of award by the Town Planning Officer after completion of the procedure prescribed in Rule 26(2) & (3) of the Rules 1979. 11. From the above narration of the details of issuance of notices by the respondent- Corporation, it cannot be said that no opportunity of hearing was given to the petitioner-society and only the impugned notice dated 15.10.2015 was issued by the respondent-Corporation for taking the possession of the land in question under section 68 of the Act, 1976. 12. In view of the above facts, the submissions made on behalf of the petitioners of not granting opportunity of hearing are not tenable and therefore, reliance placed by the petitioners on the decisions of this Court and Apex Court in relation to violation of principles of natural justice for not granting opportunity of hearing are also not applicable in the facts of the case. 13. As against the above submission of the petitioners, even other-wise as held by the Division Bench of this Court in Special Civil Application No.1608/1979 decided on 20- 22.4.1992 in view of amendments in Rule 21(3) and (4) of the Bombay Town Planning Rules which are pari-materia to rule 26(3) and 23(4) of the Rules, 1979, no personal hearing or special notice is required to be served upon the petitioners. Even in case of Shilpa Park Co.Op Housing Society Ltd. v. Surat Urban Development Authority & ors.(supra) it is held as under by this Court that no personal notice is required to be served to any of the persons affected by the Town Planning Scheme: “10. So far as the contention of the learned Advocate for the respondent that the decision referred to by the Supreme Court in JASWANTSINGH's case has been distinguished by the Division Bench of this Court is concerned, it may be stated that it relates to the first question only. So far as the contention of the learned Advocate for the respondent that the decision referred to by the Supreme Court in JASWANTSINGH's case has been distinguished by the Division Bench of this Court is concerned, it may be stated that it relates to the first question only. The question before the Division Bench in Special Civil Application No.1608/79 was whether before finalisation of the Town Planning Scheme under the Bombay Town Planning Act, 1954, the Town Planning Officer was required to be issued special notice under sub-rule (3) of Rule 21 of the Bombay Town Planning Rules, 1955 to the person who claims to be tenant of some portion of the land. The petitioner in that case relied on the decision in the case of JASWANTSINGH's case, reported in 1992 (Supple.)(1) SCC 5 and in another case MANSUKHLAL JADAVJI's case (supra), reported in 1992 (1) SCC 394 . It was pointed out that the ratio laid down in the case of JASWANTSINGH's case by the Supreme Court would not be applicable as Rule 21 (3) of the Bombay Town Planning Rules, 1955 was substituted by Notification dated 30.5.1974 and as per the said substituted rule, a special notice is not required to be given to the interested person in any plot. In view of the amendment, the Division Bench of this Court held that after the amendment of sub-rule (3), notice to each and every interested person is not required to be issued. The notices as provided under the substituted rule are required to be published in newspapers, official gazette, at the office of the Town Planning Officer and of the local authority. The substance of the notice is required to be posted at the convenient place in that locality. The Court, therefore, held that non-issuance of notice would not vitiate proceedings of the Town Planning Officer.” 14. The contention raised on behalf of the petitioners that no Final Plot is stated to be allotted to the petitioners in the impugned notice for handing over the possession or in the sanctioned Varied Town Planning Scheme is concerned, it would be relevant to refer to Form-F for redistribution and assessment of the value as per Rules 21 and 35 of the Rules, 1979, wherein it is stated that land admeasuring 7017 sq. mtrs of Original Plot No.330 which was allotted to the petitioner-society along with plot no.331 and 713/1 are reserved for Slum Up-gradation project. As per Form-F no land was allotted as against reservation of the OP no. 330 (FP no.330 in sanctioned Final TP Scheme No.28) and for which compensation of Rs. 1,75,425/- is assessed. It appears from the record that on and from 1981, the petitioner-society became the owner of Plot No.330 in lieu of original plot no. 101 comprising of Survey no. 457/1 and 457/2 and therefore, as per section 67(2) of the Act, 1976 right of the petitioner-society was settled by the Town Planning Officer on the TP Scheme no.28 which was sanctioned by the State Government in the year 1981-1982 and therefore, the petitioner-society was holding Final Plot no. 330 when variation was proposed and hence, in Varied Draft Scheme, Final Plot no.330 was considered as original Plot so far as variation scheme is concerned and therefore, Final Plot No. 330 in TP Scheme no.28 was given OP No.330 in the original scheme and all three plots were reserved for slum up-gradation when the Varied Town Planning Scheme (Final) was sanctioned on 15.9.1998 by the State Government. 15. In view of the above factual matrix, it cannot be said that the petitioner-society was not allotted any Final Plot for reserving the Original Plot no. 330 as no Final Plot was allotted to the petitioner-society in the Varied Town Planning Scheme (Final) and only the compensation was determined as per section 84 of the Act, 1976 amounting to Rs. 1,75,425/-. Therefore, the submission made on behalf of the petitioners with regard to non allotment of any land as against the reservation on the land of Final Plot or Original Plot no. 330 is not tenable. 16. The contention raised on behalf of the petitioners that Rule 26 of the Rules, 1979 is not followed is also without any basis as it emerges from the record that all relevant rules are strictly followed and complied with and the petitioners therefore, cannot raise any grievance when impugned notice dated 15.10.2015 is issued for handing over the possession of the land in question pursuant to the Varied Town Planning Scheme (Final) which was sanctioned in the year 1998. 17. It is trite law that once the Town Planning Scheme has been sanctioned, it becomes part of the Act. 17. It is trite law that once the Town Planning Scheme has been sanctioned, it becomes part of the Act. The petitioners have not challenged the Varied Town Planning Scheme but they have challenged the notice issued by the respondent-Corporation for implementation of sanctioned Varied Town Planning Scheme. 18. Therefore, reliance placed on behalf of the respondent on the decision of Division Bench in case of Kashiben v. Surat Municipal Corporation (Supra) would be squarely applicable in facts of the case, wherein Division Bench has relied upon the following observation of the Full Bench decision in case of Dungarlal v. State reported in 17 GLR 1152 as under: "So far as the validity of such legislative measure is concerned, the validity can be gone into even in writ jurisdiction only to the limited extent whether there is any transgression of jurisdiction of the authorities concerned and whether the scheme as finally emerged is totally inconsistent with the Act. It is only the fundamental breaches, that is, where minimum statutory essentials are not complied with, which result in a total lack of jurisdiction and not other procedural errors or defects that would render a scheme, which had become a legislative measure and a part of the Act, liable to attack or challenge in a court on the ground that it is null and void." Proceeding further, the Full Bench held: "xxx it was open to a person affected to waive individual special notice specified in sub-rule (3), which was only as an additional safeguard for the individual concerned. Therefore, that could never constitute the minimum essential of the scheme or such a basic requirement that its non-compliance would have any nullifying consequence." The Full Bench further held: "The provisions of R. 21 (1) lay down the minimum essentials for protecting public interest after the Town Planning Officer commences his work. That sub-rule is introduced in accordance with the principles of 'audi alteram partem'. That sub-rule is introduced in accordance with the principles of 'audi alteram partem'. Special individual notices under old sub-rule (3) cannot, therefore, be regarded as an essential minimum safeguard as in the case of sub-rule (1) so as to have the consequence of nullifying the final scheme." Finally, the Full Bench held: "S. 51(3) which gives effect to the final scheme as if enacted in the Act made it an Act of the Legislature so as to make it immune from the challenge on the ground of procedural defects, which did not amount to exceeding the limit of jurisdiction under the Act to frame a Town Planning Scheme under the Act but were only in the nature of the breach of additional procedural safeguards, and which were not in the nature of essential minimum requirements, will not render the scheme null and void so as to entitle the party to challenge it under Article 226 or in any Court after it becomes a part of the Act under Section 51(3)."” 19. Referring to the aforesaid decision, Division Bench held that if the Scheme is not inconsistent with the Act nor any fundamental breaches have been committed by the authority in sanctioning the Scheme, nor any limited statutory essentials have been violated which would result in total lack of jurisdiction and therefore, the Scheme cannot be a subject matter of writ proceeding unless otherwise it comes within the parameter mentioned in the Full Bench decision. Division Bench further relied upon another Full Bench decision in case of Saiyed Mohammad v. Ahmedabad Municipal Corporation reported in 18 GLR 549 dealing with notice of eviction as under : "In view of S. 53, once property has vested absolutely in the local authority and all rights of these persons occupying the same have come to an end, the eviction power would be merely an administrative power of eviction. Such eviction would be of the same nature as of the persons who are evicted under the provisions of the Land Acquisition Act after the acquired land has vested in the State and the matter is only of taking possession." In this decision, the Full Bench has observed, that, once the land vests with the authority concerned as per the Scheme, the Scheme has become a legislative measure under which the rights of the parties have totally ceased to occupy the property and the power of eviction in such a context would be in the nature of an administrative power and, therefore, when the parties admittedly have no right under the final scheme to continue their occupation, they could never invoke any prejudice or consideration of the principle of fair play and justice so as to have these impugned notices invalidated.” 20. In view of the above decisions and the fact that Varied Town Planning Scheme No.28 has already been sanctioned as early as in 1998 which has become part of the Act, 1976, same cannot be questioned at any time , more so as late as in year 2015. 21. With regard to the contention raised on behalf of the petitioners that no variation in the sanctioned Town Planning Scheme could have been done under section 70 of the Act, 1976 but in facts of the case, it appears that variation is done under section 71 of the Act, 1976 and therefore, for ready reference provisions of section 70 and 71 are reproduced as under : “70. Power to vary scheme on ground of error, irregularity or informality (1) If after the preliminary scheme or the final scheme has come into force, the appropriate authority considers that the scheme is defective on account of an error, irregularity or informality, the appropriate authority may apply in writing to the State Government for the variation of the scheme. (2) If on receiving such application or otherwise, the State Government is satisfied that the variation required is not substantial, the State Government shall publish a draft of such variation in the prescribed manner. (2) If on receiving such application or otherwise, the State Government is satisfied that the variation required is not substantial, the State Government shall publish a draft of such variation in the prescribed manner. (3) The draft variation published under sub-section (2) shall state every variation proposed to be made in the scheme and if any such variation relates to a matter specified in any of the clauses (a) to (h) of sub-section (3) of section 40, the draft variation shall also contain such other particulars as may be prescribed. (4) The draft variation shall be open to the inspection of the public at the head office of the appropriate authority during office hours. (5) Within one month of the date of publication of the draft variation, any person affected thereby may communicate in writing his objections to such variation to the State Government through the Collector and send a copy thereof to the appropriate authority. (6) After receiving the objections under sub-section (5), the State Government may, after consulting the appropriate authority and after making such inquiry as it may think fit, by notification- (a) appoint a Town Planning Officer and thereupon the provisions of this Chapter shall, so far as may be, apply to such draft variation as if it were a draft scheme sanctioned by the State Government, or (b) make the variation with or without modification, or (c) refuse to make the variation. (7) From the date of the notification making the variation, with or without modification, such variation shall take effect as it were incorporated in the scheme. 71. Variation of town planning scheme by another scheme Notwithstanding anything contained in section 70, a town planning scheme may at any time be varied by a subsequent scheme made, published and sanctioned in accordance with the provisions of this Act.” 22. On perusal of the above provisions, it is clear that varied Town Planning Scheme no. 28 which is sanctioned by the State Government in the year 1998 is for reservation of slum-up-gradation and therefore, the same cannot be considered as variation under section 70 which is only for the purpose of correcting any error, irregularity or informality. On perusal of the above provisions, it is clear that varied Town Planning Scheme no. 28 which is sanctioned by the State Government in the year 1998 is for reservation of slum-up-gradation and therefore, the same cannot be considered as variation under section 70 which is only for the purpose of correcting any error, irregularity or informality. In view of such undisputed facts, it cannot be said that the Scheme which is already varied and sanctioned by the State Government in the year 1998 is contrary to the provisions of law at this belated stage when the varied scheme has already become the statute pursuant to the provisions of section 65(3) of the Act, 1976. 23. For the foregoing discussions and reasons, the petition being devoid of any merit is accordingly dismissed. 24. Rule is discharged. Interim relief granted if any, stands vacated forthwith. No order as to cost. 25. In view of above, Civil Applications do not survive and are accordingly disposed of.