SHARDABEN MANGALBHAI THAKOR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The instant appeal is directed against the judgment and order dtd. 27/3/2024 passed by the learned Single Judge in dismissing the writ petition seeking to challenge the creation of Town Planning road in T.P. Scheme No. 103 over a portion of Survey No.276 / 2 (Final Plot No. 74). It may be noted that the draft T.P. Scheme was finalized on 11/12/2003 and no objection was submitted by the petitioners at that stage. The contention in the writ petition is that the lands of the petitioners covering Plot Nos. 5, 6, 7 of Survey No. 276 / 2 and village Nikol was included in the draft T.P. Scheme No. 103 - Nikol and has been taken away for the alleged purpose under Sec. 40 (3) of the Gujarat Town Planning and Urban Development Act, 1976 (for short as the Act 1976), applying extension of road towards the land of the petitioners, on account of which, the residential premises and accommodations on the spot are adversely affected.

(2.) It is further stated that no deduction has been made from the opposite side of Survey No. 276 / 2, over which certain unauthorized and illegal constructions are existing. Further assertion in the writ petition is that the land bearing Survey No. 276 was co-owned by the grand father of the petitioners and the said lands was divided in four parts amongst the co-owners in the year 1976 executing the deed of division. By virtue thereof, the land admeasuring Survey No. 23 Gunthas 12783 sq.yards had fallen in the share of the father of the petitioners, which was later inherited by the petitioners. The petitioners had constructed three houses over some portion of the respective lands. It is submitted that the total area of the respective plots is 1987.72 sq.ft. wherein, in an area of 774.02 sq. ft., there exist residential house. Out of the aforesaid total area, an area of 1213.7 sq. ft. is sought to be taken away under the T.P. Scheme, which comes to more than 61 % of the area of each respective plots, and because of such huge deduction, no open space remains for the residential structures existing on the spot. The family members of the petitioner are residing in their respective houses over Plot Nos. 5, 6 and 7 having individual electricity connection, house number and are paying taxes individually.

(3.) It is, thus, contended that because of the exorbitant deductions of the land from Survey No. 276 / 2 including from Plot Nos. 5, 6 and 7, the petitioners have been discriminated from other similarly situated tenure holders. The further contention in the writ petition is that the notices had also been issued to the occupiers / owners of Survey No 276 / 1, which shows that the initial proposal was to use the land in Survey No. 276 / 1 for construction of the road under Sec. 40 (3) under the draft T.P. Scheme, but later no deduction has been made from the land in Survey No. 276 / 1, wherein illegal and unauthorized constructions have been raised.