Judgment:
B.N. Kirpal, C.J.
1. In this writ petition, the challenge is to the variation of the Final Town Planning Scheme No, 6 (Paldi) in so far as it relates to Plot No. 187. The petition is alleged to have been filed by way of a public interest litigation by persons, who are residents in the area surrounding the said Plot No. 187.
2. When the T. P. Scheme No. 6 (Paldi) was approved in 1963, this plot No. 187, measuring 2278 sq. yards was shown as being meant for a school. This land was owned by the Corporation.
3. It appears that another plot No. 463 as per the Town Planning Scheme No. 6 (Paldi) was allotted to one late Indravadan Mehta, predecessor-in-interest of respondents Nos. 4 and 5 herein. Late Indravadan Mehta was the owner of Plot Nos. 150/P and 15I/P, bearing Survey No. 209 and 210/P collectively and measuring 10748 sq. yards. He was also the owner of another plot of land bearing No. 144 in Survey No. 155 measuring 9075 sq. yards.Thus, he owned 19823 sq. yards before T.P. Scheme No. 6 (Paldi) came into force. As a result of T.P. Scheme No. 6 (Paldi), Final Plot No. 478, admeasuring 11868 sq. yards, and Final Plot No. 463, admeasuring 3890 sq. yards, were allotted to him.
4. It seems that the possession of Final Plot No. 463 could not be handed over to late Indravadan Mehta because slum dwellers existed on the said land. Representation were filed on behalf of Indravadan Mehta and thereafter, action was taken for amending the T.P. Scheme. A preliminary scheme was notified, vide Notification dated 22nd of March, 1991. As a result of this, what was proposed was that plot No. 187, which had been reserved for public purpose of a school, would now be allotted to Vasumatiben, mother of Mrugendra Indravadan Mehta, Shripal Indravadan Mehta, etc., who were originally allotted Final Plot No. 463 under T.P. Scheme No. 6 (Paldi). This allotment was made because the Corporation could not give physical possession of Final Plot No. 463 to them.
5. The main contention which has been raised by the petitioners was with regard to the validity of Section 71 of the Gujarat Town Planning and Urban Development Act, 1978, vide judgment dated 30th March, 1995 in Special Civil Applications Nos. 1049 of 1985 and 1876 of 1988, this Court has already upheld the validity of the said section. In that judgment, the arguments which are sought to be raised in this petition have been considered. In fact, Mr. Patel, learned counsel for the petitioners in the present case, was permitted to address argument in that case and it is only thereafter that the Court came to the conclusion that Section 71 was intra vires.
6. The other contention which has beenraised in this petition is that the procedure asprescribed by the Act has not been followed.There is no merit in this contention. A draftscheme was prepared. Sufficient publicity wasgiven, objections were invited and they wereconsidered. It is pertinent to note that thepetitioners are neither the owners of PlotNo. 187 nor are they the owners of PlotNo. 463, which are the two plots, which areaffected by the proposed Scheme. Even if it be assumed, and there may be some merit in this, that the neighbours also have a right to be heard, we do not find as to what possible objections in law the petitioners could have taken to the proposed Scheme.
7. The plot in question, viz., Plot No. 187, was owned by the Corporation. It is no doubt true that in the original scheme, it was earmarked for a school, which is a public purpose. We do not see any law which could have prohibited the Town planners, by amending the Scheme, from providing the said plot of land to be used for any other public purpose. For example, the said land could have been used for providing accommodation to the slum dwellers. Instead of providing, that directly, the same objective is sought to be achieved in an indirect manner. It is recognised and accepted by the Corporation that slum dwellers existed and huts have been constructed on Plot No. 463. Instead of dislocating those slum dwellers and asking them to shift to Plot No. 187, what the amended T.P. Scheme proposes to do is to transfer the ownership of Plot No. 187 in favour of the owners of Plot No. 463. In this way greater public purpose is being served because the area of Plot No. 463 is larger than that of Plot No. 187. Greater number of slum dwellers will be accommodated and their facilities upgraded at Plot No. 463. It is respondents Nos. 4 and 5, who appeared to have lost in the bargain because the plot of land which is now being offered to them, viz., Plot No. 187, is nearly 1200 sq. yards less than Plot No. 463. The only advantage which respondents Nos. 4 and 5 would get is that this Plot No. 187 is free from encumbrance. We do not find the proposed impugned scheme arbitrary or violative of the Act.
4th April, 1995.
8. It was sought to be contended by Mr. Patel that Rules and Regulations have not been strictly complied with in the present case. The submission was that the proposal to transfer Plot. No. 187 in favour of respondents Nos. 4 and 5 was taken after the draft scheme had been formulated and, therefore, there was no occasion to file objections.
9. As is evident from what has been stated hereinabove, the proposal of transferring Plot No. 187 in favour of respondents Nos. 4 and 5 is lieu of Plot No. 463 is with a view to upgrade the existing slums. The petitioners do not have any direct personal interest in any of the two parcels of land and when the authorities are seeking to implement a scheme, which is in the interest of general public and specially as a measure of welfare for the economically backward and poor, on the facts and in the circumstances of the present case, we do not think that this is a proper case where this Court should exercise its extraordinary and discretionary jurisdiction under Article 226 of the Constitution of India even if it be assumed that there has been a procedural lapse on the part of the authorities. Once it is conceded, as it must be in the present case, that the Corporation can exchange Plot No. 187 with Plot No. 463, whereby the Corporation gets a larger area of land and, as a result thereof, is able to upgrade the facilities of the slum dwellers, the Court would not be justified in interfering under Article 226 of the Constitution of India and setting at naught the said proposal, specially when both the Corporation as well as respondents Nos. 4 and 5, who owned Plot No. 463 and to whom Plot No. 187 is being transferred, have agreed to the said proposal. This is not to suggest that in preparing the Scheme, the provisions of the Town Planning Act should not be followed, but in the special circumstances of the present case, even if there is a lapse on the part of the authorities in not meticulously following the procedural requirements, but when substantial justice has been done, we do not think it proper to interfere in the present case.
10. Other contentions have been raised by Mr. Patel and we do not think it is necessary to deal with them except to note that Mr. Patel states that his clients would not object to the Corporation using this land for any public purpose, including the public purpose of accommodating the slum dwellers, but the land should not be transferred to respondents Nos. 4 and 5. It appears to us that this is nothing short of a 'dog in the manger' policy and the motive of filing the writ petition iscertainly not by way of public interest but appears to be some sort of a personal vendetta against respondents Nos. 4 and 5. We cannot, under any circumstances, regard this as a public interest litigation and on this ground also, this petition in liable to be dismissed.
11. For the aforesaid reasons, we find no merit in this petition. The same is accordingly dismissed. Interim relief is vacated.
12. In view of the fact that the petitioners had obtained stay during the pendency of this petition and have been successful in throttling the upgradation of the slums for the last three years, because the implementation of the Scheme was stayed, we impose costs of Rs. 3,000/-.
13. Counsel's fee Rs. 1,000/-.
14. Counsel for the petitioners requests for continuation of the stay. We do not think that this is an appropriate case for passing an order continuing stay.