HARI KRISHNA MANDIR TRUST versus STATE OF MAHARASHTRA AND OTHERS
[2020] 13 S.C.R. 318, Supreme Court of India, 2020
Outcome: Appeal(s) allowed (Granted)
Segment: Body
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   [2020] 13 S.C.R. 318
HARI KRISHNA MANDIR TRUST
    v.
STATE OF MAHARASHTRA AND OTHERS
(Civil Appeal No. 6156 OF 2013)
August 07, 2020
[INDU MALHOTRA  AND INDIRA BANERJEE, JJ.]
Maharashtra Regional and Town Planning Act, 1966– ss.88,
91, 59, 65, 69 and 125-129–‘DKR’ and ‘ID’ were recorded in the
revenue records as owners of Plot No.473 in 1959 – Plot divided in
1970–Plot No.473-B1 was owned by ‘KN’, Plot No.473-B2 by ‘PM’,
and Plot No.473-B3 by ‘DKR’and ‘ID’, Plot No. 473-B4, a vacant
plot of land was shown as an Internal Private Road measuring
444.14 Sq. mtr. in the possession of ‘DKR’,‘ID’, ‘KN’ and ‘PM’–
Development Scheme proposed under the 1966 Act including Final
Plot No.473 – Arbitrator appointed, directed the area and ownership
of the plots to be as per entries in the property register–In 1979, the
Town Planning Scheme was sanctioned and came into effect– In ‘B’
Form, Final Plot No.473 was shown to have been divided into five
parts with road measuring 444.14 Sq. mtr. to be owned by Pune
Municipal Corporation (PMC) – ‘ID’executed a registered trust
deed constituting the appellant-trust and transferring Plot no.473-
B3 and the internal road to them – Appellant requested the State
Govt. to correct the wrong entry in the name of PMC–Eventually,
Urban Development Department,Govt.of Maharashtra rejected the
proposal for modification of the scheme u/s.91inter alia finding that
PMC was the owner of the land
–Appellants filed writ petition –
Dismissed –On appeal, held: High Court failed to apply its mind to
the records of PMC w.r.t property holders,the Arbitrator’s Award
which had assumed finality– Admittedly, the private road in question
did not belong to PMC, was never acquired and the name of PMC
was wronglyrecorded – In the light of admissions, respondents had
a public duty u/s.91 to appropriately modify the scheme and to show
the private road as property of its legitimate owners–High Court
erred in law in dismissing the Writ Petition with the observation that
the land in question had vested u/s.88 in PMC – s.88 cannot be
read in isolation – It has to be r/w ss.125-129 relating to compulsory
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acquisition as also ss.59, 69 and 65–Appellant cannot be deprived
of the land being the private road without authority of law in
violation of Art.300 - A prohibiting deprivation of person from
property without authority of law – Impugned judgment set aside –
Constitution of India – Arts.300-A, 142, 226.
Maharashtra Regional and Town Planning Act, 1966– ss.3,4,
8, 21, 22, 51, 59-65, 68, 71-74, 91; Chapter VII- ss.125-129 –
Scheme of the Act – Discussed.
Maharashtra Regional and Town Planning Act, 1966– s.91 –
Held: Condition precedent for variation of a scheme u/s.91 is an
error, irregularity or informality.
Constitution of India – Art.226 –Jurisdiction under – Duty of
High Courts– Discussed.
Allowing the appeal, the Court
HELD: 1.1 The High Court has apparently misconstrued
Section 88, Maharashtra Regional and Town Planning Act, 1966
(‘the Regional and Town Planning Act’) reading the same in a
narrow, pedantic manner in isolation from other relevant
provisions of the Regional and Town Planning Act, as discussed
later in the judgment.The High Court has failed to address the
question of how the name of Pune Municipal Corporation could
all of a sudden be shown as the owner of the internal road with
effect from 4th March 1986, in complete disregard of all records.
The High Court has, with the greatest of respect, failed to apply
its mind to relevant facts, particularly the records of the Pune
Municipal Corporation with regard to property holders, the
Arbitrator’s Award dated 16.5.1972 under section 72 of the
Regional and Town Planning Act and the admission of Pune
Municipal Corporation that the road did not belong to it, it was
never acquired and that the name of Pune Municipal Corporation
had wrongly been recorded. Rather, the High Court records that
the Respondent authorities have not disputed facts in their
counter affidavit, but only claimed that the land had vested under
Section 88 and that it was not feasible to make changes in the
Scheme.The finding of the High Court that it was never the case
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of the petitioner that the land had not vested, is misconceived.
First of all there does not appear to be any admission of vesting
on the part of the Appellant Trust.  In any case land can only vest
in accordance with law. If the land has not vested, a mistaken
admission would make no difference, for there can be no estoppel
against the Constitution of India, or any statute. Significantly, the
High Court has, in its judgment and order under appeal, duly
recorded the submission that Pune Municipal Corporation had
by its Resolution No. 611 passed on 23rd March, 2006 resolved
not to claim any right in respect of Final Plot No.B4. [Paras 27-
30][336-F-H; 337-A-D]
1.2 The High Court failed to appreciate that the mere
sanctioning of a Town Planning Scheme would not wipe out a
patently erroneous recording in the scheme.  The High Court
did not examine how the road measuring 414.14 square
meters could have been allotted to Pune Municipal Corporation.
Furthermore, the High Court came to the conclusion that since
any variation had to be in the light of the provisions of Section
91, the same would be applicable to the given case which would
permit only a variation or modification of a minor nature.  The
High Court found the deletion of a public road from the Town
Planning Scheme,to be a variation of a substantial nature, which
could not be permitted, since it would be hit by the bar inherent
in the Section.The condition
precedent for variation of a scheme
under Section 91 is an error, irregularity or informality. There
can hardly be any doubt that the Scheme smacks of apparent error,
irregularity and infirmity in so far as it records Pune Municipal
Corporation as the owner of the private road. A variation of the
Scheme by recording the name of the true owner cannot be a
substantial variation.  It is nobody’s case that the road is a public
road. The finding of the High Court that the change of a public
road into a private road was variation of a substantial nature, is
ex facie erroneous and inconsistent with facts as recorded in the
judgment and order itself. [Paras 31-33][337-E-H; 338-A-B]
1.3 In 1966 the Maharashtra State Legislature enacted the
Regional and Town Planning Act to make provision for planning
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and development and use of land in Regions established for that
purpose, and for the constitution of Regional Planning Boards
therefor; to make better provision for the preparation of
Development Plans with a view to ensuring that Town Planning
Schemes are made in a proper manner and their execution is
made effective; to provide for the creation of new towns by means
of Development Authorities; to make provisions for the
compulsory acquisition of land required for public purposes in
respect of the plans; and for purposes connected
therewith.Section 3 of the Regional and Town Planning Act, 1966
empowers the State Government to establish by notification any
area in the State by defining its limits, to be region for the
purposes of the said Act and to name and alter the name of any
such region.Section 4 read with Section 8 of the Regional and
Town Planning Act provides for the constitution of Regional
Planning Boards. [Paras 34-36][338-B-E]
1.4 Section 21 provides that a development plan shall
generally indicate the manner in which the use of land in the area
of the Planning Authority shall be regulated and also indicate the
manner in which the development of land therein shall be carried
out. Section 51 of the Regional and Town Planning Act empowers
the Planning Authority to revoke or modify any permission to
develop as per development plan to such extent as appears to be
necessary after giving the person concerned an opportunity of
hearing. Section 59 of
the Regional and Town Planning Act enables
a Planning Authority to prepare Town Planning Schemes for the
area within its jurisdiction, or any part thereof, for the purpose of
implementing proposals for development. Section 59(b) of the
Regional and Town Planning Act provides that a Town Planning
Scheme might make provisions for the matters specified in the
said Section, which includes, inter alia, proposals for allocating
the use of land for residential, industrial, commercial, agricultural
or recreational purposes,  proposals for designation of lands for
public purposes such as schools, colleges and other educational
institutions, medical and public health institutions, markets, social
welfare and cultural institutions, theaters and places of public
entertainment, transport and communications such as roads,
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highways, railways, waterways, canals, airports etc. water supply,
sewage etc. [Paras 37-39][339-F-H; 340-A-C]
1.5 The Town Planning Scheme might also make provisions,
apart from the matters specified in Section 22, inter alia, relating
to  laying out or re-laying out of land, either vacant or already
built upon, including areas of comprehensive development ; layout
of new streets or roads, construction, diversion, extension,
alteration, improvement and closing up of streets and roads etc;
the construction, alteration and removal of buildings, bridges and
other structures; allotment or reservation of land for open spaces,
gardens, recreation grounds, schools, markets, green-belts,
dairies, transport facilities and public purposes of all kinds;
drainage, including sewerage, surface or sub-soil drainage and
sewage disposal; lighting; water supply; preservation of objects
of historical or national interest or natural beauty, and of buildings
used for religious purposes or other objects. Section 61 enables
the Planning Authority to make a draft scheme for an area, in
respect of which a declaration is made. In case of failure to make
a draft scheme within the period specified in sub-section (1) of
Section 61 or within the period as extended by sub-section (3),
the declaration is to lapse. However notwithstanding such lapse
the Planning Authority is not debarred from making a fresh
declaration. The time to make a draft
scheme may on an
application of the Planning Authority be extended by the State
Government, subject to the limitation in Section 61(3) a first
declaration. If at any time before a draft scheme is prepared and
submitted to the State Government for sanction, the Planning
Authority or its officers are of the opinion or on any representation
made to them, that an additional area be included within the same
scheme, the Planning Authority or the officer may, after informing
the State Government and giving notice in the Official Gazette,
and also in one or more local newspapers include such additional
area in the scheme, and thereupon all the provisions of Sections
59, 60 and 61 are to apply in relation to such additional area as
they apply to any original area of the scheme, and draft scheme is
to be prepared for the original area and the additional areas.
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Section 63 of the Regional and Town Planning Act enables the
State Government to require any Planning Authority to make and
submit and sanction a draft scheme in respect of any land with
regard to which a Town Planning Scheme may be made. If the
Planning Authority fails to make the declaration of intention to
make a scheme within three months from the date of direction
made under sub-section (1), the State Government may by
notification in the Official Gazette, appoint an officer to make and
submit the draft scheme for the land to the State Government
[after a notice regarding its making has been duly published as
aforesaid] and thereupon the provisions of sections 60, 61 and
62 shall, as far as may be applicable, apply to the making of such
a scheme. [Paras 40, 42-45][340-C-E; 342-B-H]
1.6 A draft scheme is to contain particulars of the ownership,
area and tenure of each original plot; reservation, acquisition or
allotment of land required under sub-clause (i) of clause (b) of
section 59 with a general indication of the uses to which such
land is to be put and the terms and conditions subject to which,
such land is to be put to such uses; the extent to which it is
proposed to alter the boundaries of the original plots by
reconstitution; a full description of all the details of the scheme
with respect matters referred to in clause (b) of section 59 as
might be applicable.Section 65 provides that in the draft scheme,
the size and shape of every
reconstituted plot shall be determined,
so far as may be, to render it suitable for building purposes, and
where a plot is already built upon, to ensure that the buildings as
far as possible comply with the provisions of the Scheme as
regards open spaces. A draft scheme may contain proposals to
form a final plot by reconstitution of an original plot, if necessary,
by alteration of the boundaries of the original plot ; to form a final
plot from an original plot by the transfer wholly or partly of the
adjoining lands;  to provide, with the consent of the owners, that
two or more original plots each of which is held in ownership
severally or in joint ownership shall with or without alteration of
boundaries be held in ownership in common; to allot a final plot
to any owner dispossessed of land in furtherance of the scheme
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and to transfer the ownership of an original plot from one person
to another.[Paras 47, 49][343-F-G; 344-E-G]]
1.7 None of the provisions referred to above enable the
Planning Authority or any other authority to divest an owner of
his/her property. Rather, Section 64 mandates that a draft scheme
is to contain particulars of ownership area and tenure of each
original plot. Any transfer or any alteration of boundary,
amalgamation or separation has to be with the consent of the
owner in view of the express mandate of Section 65. Implicit in
Section 65 is that a transfer must be for consideration.Section 68
empowers the Planning Authority of the State Government to
sanction the draft scheme not later than six months. Section 71
provides that where there is disputed claim as to the ownership
of any  piece of land included in an area in respect of which a
declaration of intention  to make a Town Planning Scheme has
been made, and any entry in the record of rights or mutation
register relevant to such disputed claim is inaccurate or
inconclusive, an inquiry may be held on an application being made
by the Planning Authority or the Arbitrator at any time prior to
the date on which the arbitrator draws up the final scheme under
clause (xviii) of sub-section (3) of section 72 by such officer as
the State Government may appoint for the purpose of deciding
who shall be deemed to be owner for the purposes of this Act.
Although the
decision of the Arbitrator is not subject to appeal in
view of sub-section (2) of the Section 71, the award is not to
operate as a bar to regular suit. In case there is any decree in a
Civil Suit, inconsistent with the Award, the Award is to be
connected, modified or rescinded and in case the decree is passed
after sanction of a final Scheme, such final scheme is to be deemed
to have been suitably varied, by reason of such decree.Section
72 of the Regional and Town Planning Act enables the State
Government to appoint an Arbitrator for the purposes of one or
more planning schemes received by it. [Paras 50, 53-55][344-H;
345-A-B; 346-B-C, H; 347-A-D]
1.8 In this case there was a reference to the Arbitrator.The
Arbitrator made an award which has assumed finality. The Award
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has never been questioned, either by the Planning Authority or
any of the owners. The verdict of the Arbitrator cannot be undone
by the Planning Authority.Chapter VII of the Regional and Town
Planning Act comprising Sections 125-129 contains provisions
for compulsory acquisition of land needed for the purposes of
any Regional Plan, Development Plan or Town Planning Scheme.
The Respondent authorities never took recourse to these
proceedings to acquire any part of Plot No.473 B3, 473 B4 or any
other adjacent Plot. The Appellant cannot be deprived of the
subject strip of land being the private road without authority of
law, as this would be a violation of Article 300-A of the Constitution
of India, which prohibits deprivation of person from property
without authority of law.[Paras 57, 59 and 60][347-G-H; 349-D,
E]
1.9 On perusal of the documents, there can be no doubt at
all that the road in question measuring 444.14 sqm. never
belonged to the Pune Municipal Corporation.  In the property
records, there was no private road. There were three plots 473
B1, B2, B3 and 473B4 shown as vacant land held by the owners
of all the three adjacent plots. The Municipal Corporation was
never shown as owner of the vacant plot or of any private road.
Even assuming that there was any policy decision to have an
approach road to every plot, it was incumbent upon the authorities
concerned to acquire the land. On the other hand, the scheme
clearly records that the same was based
on entries in property
records, and the award of the arbitrator. [Paras 93, 94][359-C-E]
1.10 The right to property may not be a fundamental right
any longer, but it is still a constitutional right under Article 300A
and a human right. In view of the mandate of Article 300A of the
Constitution of India, no person is to be deprived of his property
save by the authority of law. The appellant trust cannot be deprived
of its property save in accordance with law. Article 300A of the
Constitution of India embodies the doctrine of eminent domain
which comprises two parts, (i) possession of property in the public
interest; and (ii) payment of reasonable compensation. It has been
established beyond any iota of doubt that the private road
admeasuring 414 sq. meter area had never been acquired by the
Pune Municipal Corporation.The right to property includes any
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proprietary interest hereditary interest in the right of management
of a religion endowment, as well as anything acquired by
inheritance. However, laudable be the purpose, the Executive
cannot deprive a person of his property without specific legal
authority, which can be established in a court of law. In case of
dispossession except under the authority of law, the owner might
obtain restoration of possession by a proceeding for Mandamus
against the Government. Admittedly, no compensation has been
offered or paid to the appellant Trust. The Regional and Town
Planning Act also does not contemplate deprivation of a land
holder of his land, without compensation. Statutory authorities
are bound to pay adequate compensation. [Paras 96-99][359-H;
360-A-C; D-G; 361-B]
Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel
and Others (2008) 4 SCC 649 : [ 2008]  4  SCR 1077;
State of Bihar and Others v. Project Uchcha Vidya,
Sikshak Sangh and Others (2006) 2 SCC 545, 574 :
[2006] 1 SCR 14; Jelubhai Nanbhai Khachar and
Others v. State of Gujarat and Anr. (1995) Suppl. 1 SCC
596 : [ 1994]  1  Suppl. SCR  807; Bishambhar Dayal
Chandra Mohan and Ors. v. State of Uttar Pradesh and
Others  (1982) 1 SCC 39;  [1982]  1 SCR 1137; Girnar
Traders v. State of Maharashtra and Others (2007) 7
SCC 555; Wazir Chand v. State of Himachal Pradesh
AIR 1954 SC 415 : [1955] SCR 408; K.T. Plantation
Private Limited and Anr. v. State of Karnataka
(2011) 9
SCC 1: [2011] 13 SCR 636 – relied on.
2.The High Courts exercising their jurisdiction under
Article 226 of the Constitution of India, not only have the power
to issue a Writ of Mandamus or in the nature of Mandamus, but
are duty bound to exercise such power, where the Government
or a public authority has failed to exercise or has wrongly
exercised discretion conferred upon it by a Statute, or a rule, or
a policy decision of the Government or has exercised such
discretion malafide, or on irrelevant consideration.In all such
cases, the High Court must issue a Writ of Mandamus and give
directions to compel performance in an appropriate and lawful
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manner of the discretion conferred upon the Government or a
public authority. In appropriate cases, in order to prevent injustice
to the parties, the Court may itself pass an order or give directions
which the government or the public authorities should have
passed, had it properly and lawfully exercised its discretion.The
Court is duty bound to issue a writ of Mandamus for enforcement
of a public duty. There can be no doubt that an important requisite
for issue of Mandamus is that Mandamus lies to enforce a legal
duty. This duty must be shown to exist towards the applicant. A
statutory duty must exist before it can be enforced through
Mandamus. Unless a statutory duty or right can be read in the
provision, Mandamus cannot be issued to enforce the same.The
High Court is not deprived of its jurisdiction to entertain a petition
under Article 226 merely because in considering the petitioner’s
right to relief questions of fact may fall to be determined. In a
petition under Article 226 the High Court has jurisdiction to try
issues both of fact and law. Exercise of the jurisdiction is, it is
true, discretionary, but the discretion must be exercised on sound
judicial principles.[Paras 100-104][361-B-E; 362-D-F]
Directors of Settlements, Andhra Pradesh and Others
v. M.R. Apparao and Anr. (2002) 4 SCC 638: [ 2002]
2 SCR  661 – relied on.
Gunwant Kaur v. Municipal Committee, Bhatinda
(1969) 3 SCC 769; State of Kerala v. M.K. Jose (2015)
9 SCC 433 : [2015] 9 SCR 17;
ABL International Ltd.
v. Export Credit Guarantee Corporation of India Ltd.
(2004) 3 SCC 553 – referred to.
3.1 In the present case, it is not even in dispute that the
private road in question did not at any point of time belong to the
Pune Municipal Corporation.  It is shown to be held by the holders
by adjacent Plot Nos. 473 B1, 473 B2 and 473 B3. In the facts
and circumstances of the instant case, in the light of admissions,
on the part of the respondent authorities that the private road
measuring 414 sq. was private property never acquired by the
Pune Municipal Corporation or the State Government, the
respondents had a public duty under Section 91 to appropriately
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modify the scheme and to show the private road as property of
its legitimate owners, as per the property records in existence,
and or in the award of the Arbitrator. The Bombay High Court
erred in law in dismissing the Writ Petition with the observation
that the land in question had vested under Section 88 of the
Regional and Town Planning Act. Section 88 of the Regional and
Town Planning Act cannot be read in isolation.  It has to be read
with Section 125 to 129 relating to compulsory acquisition as also
Section 59, 69 and 65.[Paras 106, 107 and 109][364-G-H; 365-A-
C; E-F]
3.2 The High Court erred in dismissing the writ petition,
misconstruing Section 88 of the Regional and Town Planning Act,
by reading the same in isolation from the other provisions of the
Regional and Town Planning Act, particularly Sections 65, 66,
125 and 126 thereof. Section 125 read with Section 126 enables
the state/Planning authority to acquire land. On a proper
construction of Section 88, when land is acquired for the purposes
of a Development Scheme, the same vests in the State free from
encumbrances. No third party can claim any right of easement to
the land, or claim any right as an occupier, licensee, tenant, lessee,
mortgagee or under any sale agreement. On the other hand,
Section 65 referred to above read with Section 66 protects the
interests of the owners.In the absence of any proceedings for
acquisition or for purchase, no land
belonging to the Appellant
Trust could have vested in the State. The High Court also erred
in its finding that the modification proposed involved substantial
alteration by deletion of a public road and was therefore
impermissible. The modification only involved deletion of the
name of Pune Municipal Corporation as holder of the private
road. The finding that deletion of a public road is a substantial
alteration is, for the reasons already discussed above, completely
baseless. The Judgment and order under appeal is set aside.
[Paras 113-117][366-E-H; 367-A-C]
Laxminarayan R. Bhattad & Ors. v. State of
Maharashtra & Anr. (2003) 5 SCC 413 : [2003] 3
SCR 409;Pukhrajmal Sagarmal Lunkad (D) thru. His
Legal heirs and Others v. Municipal Council, Jalgaon
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and Others (2017) 2 SCC 722 : [2017] 2  SCR 333–
distinguished.
Case  Law Reference
[2003] 3 SCR 409
distinguished
Para 72
[2017] 2 SCR 333
distinguished
Para 89
[2008] 4 SCR 1077 
relied on
Para 96
[2006] 1 SCR 14  
relied on
Para 97
[1994] 1 Suppl. SCR 807
relied on
Para 97
[1982] 1 SCR 1137 
relied on
Para 97
(2007) 7 SCC 555
relied on
Para 97
[1955] SCR 408
relied on
Para 97
[2011] 13 SCR 636  
relied on
Para 99
[2002] 2 SCR  661
relied on
Para 102
(1969) 3 SCC 769
referred to
Para 104
[2015] 9 SCR 17
referred to
Para 104
(2004) 3 SCC 553
referred to
Para 105
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6156
of 2013
From the Judgment and Order dated 15.09.2008 of the High Court
of  Judicature at Bombay in Writ Petition No. 904 of 2008.
Pallav Sisodia, Sr. Adv., Braj Kishore Mishra, Ms. Aparna Jha,
Abhishek Yadav, Ms. Kriti Sondhi, Advs. for the appellant.
Nishant Ramakantrao Katneshwarkar, Anoop Kandari, Makarand
D. Adkar, Vijay Kumar, Rajesh Kumar,  Advs. for the respondents.
The Judgment of the Court was delivered by
INDIRA BANERJEE, J.
This appeal is against a judgment and order dated 15.9.2008 passed
by a Division Bench of Bombay High Court dismissing Writ Petition
No.904 of 2008 filed by the appellant, challenging an order dated 3.5.2006,
whereby the State Government refused to sanction modification of a
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Scheme under the provisions of Section 91 of the Maharashtra Regional
and Town Planning Act, 1966, hereinafter referred to as “the Regional
and Town Planning Act”).
2. One Thorat family was the owner of Plot No. 473 in City Survey
No. 1092 at Bhamburda in Pune.  By a registered deed of conveyance
dated 21.12.1956 one Mrs. Krishnabai Gopal Rao Thorat sold the northern
part of the plot admeasuring 4910 sq.m. jointly to Swami Dilip Kumar
Roy, one of the most eminent disciples of Sri Aurobindo, and Smt. Indira
Devi, daughter disciple of Swami Dilip Kumar Roy.  The names of Swami
Dilip Kumar Roy and Smt. Indira Devi were duly recorded in the relevant
revenue records in 1959.
3. Swami Dilip Kumar Roy had moved to Pune to propagate the
philosophy of Sri Aurobindo and established the Hare Krishna Mandir
with his daughter disciple Smt. Indira Devi, on the land purchased from
Mrs. Krishnabai Gopal Rao Thorat.
4. According to the appellants, by an order dated 20.8.1970 of the
Pune Municipal Corporation, Plot No. 473 which was originally
numbered Survey No.1092, was divided.  Final plot No. 473 B was sub
divided into 4 plots being plot Nos. 473 B1 comprising an area of 1025
square meters, 473 B2 comprising an area of 603.00 square meters, 473
B3 comprising an area of 2838 square meters and 473 B4, a private
road admeasuring 414.14 square meters.
5. Plot No. 473 B1 was owned by Mrs. Kanta Nanda, Plot No.
473 B2 by Mr. Premal
Malhotra, and Plot No. 473 B3 by Swami Dilip
Kumar Roy and Smt. Indira Devi.  Plot No. 473 B4, which was a vacant
plot of land, was shown as an Internal Private Road measuring 444.14
Sq. mtr., in the possession of Swami Dilip Roy and Smt. Indira Devi and
the holders of Plot Nos. 473 B1 and 473 B2, namely, Mrs. Kanta Nanda
and Mr. Premal Malhotra.  It is not in dispute that the Pune Municipal
Corporation was not mentioned in the order dated 20.8.1970.
6. On 20.8.1970 the City Survey Officer directed issuance of
separate property cards in view of a proposed Development Scheme
under the Regional and Town Planning Act which included Final Plot
No.473, and an Arbitrator was appointed.  The Arbitrator made an Award
dated 16.5.1972 directing that the area and ownership of the plots were
to be as per entries in the property register.
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7. In 1979, the Town Planning Scheme was sanctioned and came
into effect.  In ‘B’ Form, Final Plot No.473 was shown to have been
divided into five parts with ownership as follows:-
473 B1 : Mrs Kanta Nanda
473 B2 : Mr Premal Malhotra
473 B3 : Swami Dilipkumar Roy and Sm. Indira Devi
473 B4 : Open space owned by Swami Dilipkumar Roy and Sm.
Indira Devi
Unnumbered: Road measuring 444.14 sq.mt owned by Pune
Municipal Corporation
8. The appellant contends that the Pune Municipal Corporation
by its letters dated 29.6.1996, 4.1.1997 and 18.1.1997 admitted that the
internal road had never been acquired by the Pune Municipal Corporation.
The Town and Planning Department also admitted that Pune Minicipal
Corporation had wrongly been shown to be owner of said road.
9. By a letter dated 29th June, 1996, the City Survey Officer
informed the Assistant Engineer, Land and Property of the Pune
Municipal Corporation that, as per registered document no. 1429 dated
21.12.1956, Sri Dilip Kumar Roy and Mrs. Indira Devi had purchased,
Final Plot No. 473B in Survey Plot No.1092 at Bhamburda, Pune,
admeasuring 52,892 sq.f. from Krishnabai Gopal Rai Thorat.  Accordingly
as per letter number PTI 2325/12/56 of the City Architect, separate
property card had been opened on 3.9.1959 and the names of the
purchasers recorded.
10. The said letter recorded that as per the office order of the
City Architect dated 20.8.1970, Survey Number 1092B was sub divided
as follows:-
11. The City
Survey Officer pointed out that the names of the
occupiers named above had been confirmed.  However, as per Form I
approved in Town Plan No. I, Pune, the name of Pune Municipal
HARI KRISHNA MANDIR TRUST  v. STATE OF
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Corporation had been recorded and/or entered incorrectly.  The City
Survey Officer recommended initiation of further action, as may be
deemed proper, to consider deletion of the name of the Pune Municipal
Corporation as holder of the road to enable the office of the City Architect
to take further action.
12. By a letter dated 4.1.1997 written in response to a letter dated
4.12.1995, the City Deputy Engineer, Construction Control, Pune
Municipal Corporation informed Smt. Indira Devi that the internal road
of final plot number 473B had not come into the possession of the Pune
Municipal Corporation.
13. By a letter dated 18.1.1997 of the Town Planning and Valuation
Department of the State Government at Pune, the Assistant
Commissioner (Special), Pune Municipal Corporation was informed that
the Government had finally approved Town Planning Scheme No. I,
Pune.  However, in the approved Town Planning Scheme, Plot No. 473B
has been divided into two parts and out of that final plot number, 473B
has been sub-divided into four sub-plots. A road with the width of 15
feet measuring 414.14 sqm. has been shown under the ownership of
Pune Municipal Corporation. However, on inspection, it was observed
that there was no road in existence. Final plot number 473B was divided
into three plots of land and one separate plot of land shown as open
vacant premises. A layout was prepared and approved by the City
Engineer.
14. On 12.3.1997,
Smt. Indira Devi executed a registered trust
deed constituting the appellant trust and transferred FP 473-B3 and the
internal road to the appellant trust.    The appellant trust wrote a letter to
the State Government requesting the State Government to correct the
wrong entry in the name of Pune Municipal Corporation in the B Form.
15. On 25.4.2000, an order number TPS1697/1271/CR70/ 20000/
UD-13 was passed by the Urban Development Department, Government
of Maharashtra. The said order is extracted hereinbelow for convenience:-
“Whereas, Town Planning Scheme Pune No.1 (First variation)
has been sanctioned by the State Government vide Notification,
Urban Development Department No. TPS 1879/1064/UD-7
dated 5.7.1979 and the same has come into force with effect
from 15.8.1979 (hereinafter referred to as “the said Scheme’).
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And whereas, in the said Scheme Final Plot No. 473B has
been subdivided as 473B-1, 473B-2, 473B-3 473B-4 and
internal layout road (area 444.14 sqmtr.) (hereinafter referred
to as “the said road”).
And whereas the owner of the final plot no. 473B-2 and 473B-
3 has requested Government to direct the Pune Municipal
Corporation (hereinafter referred to as “the said
Corporation”) to vary the said Scheme to delete the said road
and include the area in adjacent Final Plot No. 473B-2 to
473B-4 as per site conditions.
And whereas, the Director to Town Planning vide his letter
No. TPS No.I/FP 473B/Shivajinagar/TPV-I/10420 dated
20.3.98 also informed that as per site condition it is not feasible
for the said corporation to construct the said road;
And whereas, considering all these facts, the Government of
Mahrashtra is satisfied that it is necessary to vary the said
scheme under Section 91 of the Maharashtra Regional and
Town Planning Act, 1966 (hereinafter referred to as the “said
Act”) to delete the said road and merge the area in adjacent
plots and said variation required to be made is not of a
substantial nature;
Now, therefore, the Government of Maharashtra hereby directs
the said Corporation to undertake the variation to the said
Scheme under sub-section (2) of Section 91 of the said Act in
respect of the following:-
a)
The said Corporation in accordance with provision
contained in Section 91 of the said act shall undertake
variation to the said Scheme to
merge the said road area
in Final Plot No. 473B-2 to 473B-4 and effect
consequential changes in the area of these final plot
numbers.
b)
The said Corporation shall accordingly prepare and
publish and draft variation as per provision laid down
in sub-section (2) of Section 91 of the said Act.
By order and in the name of the Governor of Maharashtra.”
HARI KRISHNA MANDIR TRUST  v. STATE OF
MAHARASHTRA AND OTHERS [INDIRA BANERJEE, J.]
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16. By a letter dated 23.10.2002, the Additional Municipal
Corporation Commissioner, Pune Municipal Corporation informed the
Secretary, Urban Development Department, Government of Maharashtra
that the Town Planning Scheme No. I in respect of Plot number 473B
had been given effect without any change in the boundaries of the plot.
The plot had been divided into two large plots, one of which had been
further sub-divided. The area of ownership of the plot was to be as
per entries in the property register. In the said letter it has
categorically been stated that it was necessary to confirm the area of
final plot number 473B as per Town Planning Scheme No.I (first
variation), as decided by the arbitrator, for initiating action of deleting
Pune Municipal Corporation from Form B in respect of the road which
had been shown in that plot after making sub-division of the said plot,
and to give effect to the Property Card of Pune Municipal Corporation
recording the names of the holders of the final plot. The said letter dated
23.10.2002 clearly stated that as per division made during the year 1970,
there was no road. However, a road would have to be provided for
approaching the plot of Shri Nanda.
17. From the said letter dated 23.10.2002, it appears that, as per
Resolution No.117 taken at the General Body meeting of the Pune
Municipal Corporation on 21.5.2001, approval had been given for
necessary action for changes as per
Section 93 of the Regional and
Town Planning Act and notice dated 23.8.2001 to that effect published
in the Gazette of Maharashtra.
18. By a notice dated 8.9.2004, the Municipal Commissioner, Pune
Municipal Corporation invited objections against the proposal for merging
the internal road with the adjoining sub plots 473 B1, B2, B3 and B4.
There does not appear to have been any objection.
19. Thereafter, by  a Resolution No. 611 dated 23.3.2006, the
Pune Municipal Corporation adopted the following resolution:-
“Perused the letter on the subject of the Hon’ble Municipal
Commissioner and taking into consideration recommendation
of the Improvement Committee:
After cancelling internal road of Plot No. 473B at Shivaji
Nagar and after declaring the same as No-development zone
no. F.S.I. should be granted in respect of the road which has
been cancelled.  Similarly as shown in the affidavit of the
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Plot Holder Applicant in front of the plot of plot No. 473B-1,
approval is being provided to give the opinion of Municipal
Corporation for providing the road available.”
20. By a letter dated 5.4.2006, the City Engineer, Pune Municipal
Corporation informed the Municipal Commissioner that the internal road
in plot number 473B as shown in the layout measuring 444.14 sq. meters
had been merged and included in adjacent sub plot number 473 B-2 and
accordingly orders had been issued to implement the decision as per
Section 92(2) of the Regional and Town Planning Act. In pursuance of
Resolution number 117 dated 24.6.2001, sanction was being given for
making changes as per Section 91 of the Regional and Town Planning
Act.
21. Thereafter the Municipal Commissioner wrote a letter to the
State Government on 7.4.2006 submitting a proposal for approval of
variation in the Town Planning Scheme under Section 91 of the Regional
and Town Planning Act.
22. By an order dated 3.5.2006 impugned in the writ petition,  the
Urban Development Department, Government of Maharashtra rejected
the proposal for modification of the Scheme under Section 91 with the
following observations:-
1.
The proposal had been opposed by the Pune Municipal
Corporation, who is the owner in respect of the land.
2.
Non-compliance of legal requirements in connection
with the proposal.
3.
It could not be assumed that the Trust would grant
permission to the plot holders of 473B for using the
private road
of the adjacent society.
4.
It has been considered a basic necessity of the Town
Planning Scheme to have approach road for every plot.
5.
The deletion of the road would mean that the road would
not be available for new plots of land.
23. The finding that the Pune Municipal Corporation was the owner
of the land is patently contrary to official records and smacks of patent
error.  In any case the impugned order is totally vague in the absence of
any whisper of the legal requirements alleged to have not been complied
with.
HARI KRISHNA MANDIR TRUST  v. STATE OF
MAHARASHTRA AND OTHERS [INDIRA BANERJEE, J.]
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24. The observation in the impugned order, that it could not be
assumed that the appellant Trust would grant permission to other plot
holders of Plot No.473B is speculative and conjectural, overlooking the
usage of the vacant land (Plot No.473 B-4) for several decades as also
the statutory records including the Award of the Arbitrator in terms
whereof Plot 473 B4 was shown to be held by the owners of Plot Nos.
473 B1, 473 B2 and 473 B3.  In any case, none of the owners of the
adjacent plots had raised any objection to the modification.  Furthermore,
the attention of the authorities had duly been drawn to the express terms
of the will of Sm. Indira Devi giving the easementary rights to owners of
adjacent plots of access through the plot held by her.  If the Planning
Authority felt it necessary to provide approach roads, it was incumbent
upon it to acquire land in accordance with law, upon payment of
compensation to its owners or alternatively purchase the same by
negotiation.
25. By a letter dated 9.8.2007, the Appellant Trust drew the
attention of the then Chief Minister of Maharashtra to relevant facts
pertaining to the road,  and in particular,  to the fact that Smt. Indira Devi
had in her will bequeathed to the other plot owners access through the
plot.  The appellant Trust requested the Government to delete the name
of Pune Municipal Commissioner wrongly entered in the property register.
26. The appellants filed
the writ petition being Writ Petition No.904
of 2008 in the Bombay High Court challenging the said order dated
3.5.2006. The writ petition has been dismissed by the judgment and order
under appeal. The High Court found that the land in question had vested,
without any encumbrances, in the Pune Municipal Corporation at the
time of commencement of the Town Planning Scheme, by virtue of
Section 88 of the Regional and Town Planning Act.
27. The High Court has apparently misconstrued Section 88,
reading the same in a narrow, pedantic manner in isolation from other
relevant provisions of the Regional and Town Planning Act, as discussed
later in the judgment.
28. The High Court has failed to address the question of how the
name of Pune Municipal Corporation could all of a sudden be shown as
the owner of the internal road with effect from 4th March 1986, in
complete disregard of all records. The High Court has, with the greatest
of respect, failed to apply its mind to relevant facts, particularly the records
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of the Pune Municipal Corporation with regard to property holders, the
Arbitrator’s Award dated 16.5.1972 under section 72 of the Regional
and Town Planning Act and the admission of Pune Municipal Corporation
that the road did not belong to it, it was never acquired and that the name
of Pune Municipal Corporation had wrongly been recorded. Rather, the
High Court records that the Respondent authorities have not disputed
facts in their counter affidavit, but only claimed that the land had vested
under Section 88 and that it was not feasible to make changes in the
Scheme.
29. The finding of the High Court that it was never the case of the
petitioner that the land had not vested, is misconceived. First of all there
does not appear to be any admission of vesting on the part of the Appellant
Trust. In any case land can only vest in accordance with law. If the land
has not vested, a mistaken admission would make no difference, for
there can be no estoppel against the Constitution of India, or any statute.
30. Significantly, the High Court has, in its judgment and order
under appeal, duly recorded the submission that Pune Municipal
Corporation had by its Resolution No.611 passed on 23rd March, 2006
resolved not to claim any right in respect of Final Plot No.B4.
31. The High Court failed to appreciate that the mere sanctioning
of a Town Planning Scheme would not wipe out a patently erroneous
recording in the scheme. The High Court did not examine how the road
measuring 414.14 square meters could have been allotted to Pune
Municipal Corporation.
32. Furthermore,  the High Court came to the conclusion that
since any variation had to be in the light of the provisions of Section 91,
the same would be applicable to the given case which would permit only
a variation or modification of a minor nature. The High Court found the
deletion of a public road from the Town Planning Scheme, to be a variation
of a substantial nature, which could not be permitted, since it would be
hit by the bar inherent in the Section.
33. The condition precedent for variation of a scheme under
Section 91 is an error, irregularity or informality. There can hardly be
any doubt that the Scheme smacks of apparent error, irregularity and
infirmity in so far as it records Pune Municipal Corporation as the owner
of the private road.  A variation of the Scheme by recording the name of
the true owner cannot be a substantial variation. It is nobody’s case that
HARI KRISHNA MANDIR TRUST  v. STATE OF
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the road is a public road.  The finding of the High Court that the change
of a public road into a private road was variation of a substantial nature,
is ex facie erroneous and inconsistent with facts as recorded in the
judgment and order itself.
34. In 1966 the Maharashtra State Legislature enacted the
Maharashtra Regional and Town Planning Act, 1966  (hereinafter referred
to as ‘the Regional and Town Planning Act’) to make provision for
planning and development and use of land in Regions established for
that purpose, and for the constitution of Regional Planning Boards
therefor; to make better provision for the preparation of Development
Plans with a view to ensuring that Town Planning Schemes are made in
a proper manner and their execution is made effective; to provide for
the creation of new towns by means of Development Authorities; to
make provisions for the compulsory acquisition of land required
for public purposes in respect of the plans; and for purposes
connected therewith.
35. Section 3 of the Regional and Town Planning Act, 1966
empowers the State Government to establish by notification any area in
the State by defining its limits, to be region for the purposes of the said
Act and to name and alter the name of any such region.  Section 4 read
with Section 8 of the Regional and Town Planning Act provides for the
constitution of Regional Planning Boards:-
(a)
to carry out a survey of the Region, and prepare
reports on
the surveys so carried out;
(b)
to prepare an existing-land-use map and such other maps
as may be necessary, for the purpose of preparing a Regional
Plan;
(c)
to prepare a Regional Plan;
(d)
to perform any other duties or functions as are supplemental,
incidental or consequential to any of the foregoing duties,
or as may be prescribed by regulations.
36. Sections  21(1), (2) and (3) of the Regional and Town Planning
Act as it stood at the material time provided:-
“21.Development Plan:- (1) As soon as may be after the
commencement of this Act, but not later than three years after
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such commencement, and subject however to the provisions
of this Act, every Planning Authority shall carry out a survey,
prepare an existing land-use map and prepare a draft
development plan for the area within its jurisdiction, in
accordance with the provisions of a Regional plan, where
there is such a plan [publish a notice in the Official Gazette
and in such other manner as may be prescribed stating that
the draft development plan has been prepared] and submit
the plan to the State Government for sanction. The Planning
Authority shall also submit a quarterly Report to the State
Government about the progress made in carrying out the
survey and prepare the plan.
(2) Subject to the provisions of this Act, every Planning
Authority constituted after the commencement of this Act shall,
not later than three years from the date of its constitution,
[declare its intention to prepare a draft Development plan,
prepare such plan and publish a notice of such preparation
in the Official Gazette] and in such other manner as may be
prescribed] and [submit the draft development plan] to the
State Government for sanction.
[(3) On an application made by any Planning Authority, the
State Government may, having regard to the permissible period
specified in the preceding sections, from time to time, by order
in writing and for adequate reasons to be specified in such
order, extend such period.]”
37. Section 21 provides that a development plan shall generally
indicate the
manner in which the use of land in the area of the Planning
Authority shall be regulated and also indicate the manner in which the
development of land therein shall be carried out.
38. Section 51 of the Regional and Town Planning Act empowers
the Planning Authority to revoke or modify any permission to develop as
per development plan to such extent as appears to be necessary after
giving the person concerned an opportunity of hearing.
39. Section 59 of the Regional and Town Planning Act enables a
Planning Authority to prepare Town Planning Schemes for the area within
its jurisdiction, or any part thereof, for the purpose of implementing
proposals for development. Section 59(b) of the Regional and Town
HARI KRISHNA MANDIR TRUST  v. STATE OF
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Planning Act provides that a Town Planning Scheme might make
provisions for the matters specified in the said Section, which includes,
inter alia, proposals for allocating the use of land for residential, industrial,
commercial, agricultural or recreational purposes,  proposals for
designation of lands for public purposes such as schools, colleges and
other educational institutions, medical and public health institutions,
markets, social welfare and cultural institutions, theaters and places of
public entertainment, transport and communications such as roads,
highways, railways, waterways, canals, airports etc. water supply, sewage
etc.
40. The Town Planning Scheme might also make provisions, apart
from the matters specified in Section 22, inter alia, relating  to  laying
out or re-laying out of land, either vacant or already built upon, including
areas of comprehensive development ; layout of new streets or roads,
construction, diversion, extension, alteration, improvement and closing
up of streets and roads etc; the construction, alteration and removal of
buildings, bridges and other structures; allotment or reservation of land
for open spaces, gardens, recreation grounds, schools, markets, green-
belts, dairies, transport facilities and public purposes of all kinds; drainage,
including sewerage, surface or sub-soil drainage and sewage disposal;
lighting; water supply; preservation of objects of historical or
national
interest or natural beauty, and of buildings used for religious purposes or
other objects.
41. Section 59 of the Regional and Town Planning Act is
reproduced hereinbelow for convenience:
“59.Preparation and contents of town planning scheme:- [(1)]
Subject to the provisions of this Act or any other law for the
time being in force—
(a)
a Planning Authority may for the purpose of
implementing the proposals in the final Development
plan  prepare [or in respect of any land which is
likely to be in the course of development or which
is already built upon], prepare one or more town
planning schemes for the area within its jurisdiction,
or any part thereof ;
(b)
a town planning scheme may make provision for any
of the following matters, that is to say—
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(i)  any of the matters specified in section 22 ;
(ii) the laying out or re-laying out of land, either
vacant or already built upon, including areas of
comprehensivedevelopment;
[(ii-a) the filling-up or reclamation of low-lying,
swampy or unhealthy area, or levelling-up of land;
(ii-b) layout of new streets or roads, construction,
diversion, extension, alteration, improvement and
closing up of streets and roads and discontinuance
of communications;
(ii-c) the construction, alteration and removal of
buildings, bridges and other structures;
(ii-d) the allotment or reservation of land for open
spaces, gardens, recreation grounds, schools,
markets, green-belts, dairies, transport facilities and
public purposes of all kinds;
(ii-e) drainage, inclusive of sewerage, surface or
sub-soil drainage and sewage disposal;
(ii-f) lighting;
(ii-g) water supply;
(ii-h) the preservation of objects of historical or
national interest or natural beauty, and of building
actually used for religious purposes;]
(iii) the suspension, as far as may be necessary for
the
proper carrying out of the scheme, of any
rule, bye-law, regulation, notification or order
made or issued under any law for the time being in
force which the Legislature of the State is competent
to make;
(iv) such other matter not inconsistent with the object
of this Act, as may be directed by the State
Government.
[(2) In making provisions in a draft town planning scheme
for any of the matters referred to in
clause (b) of sub-section
HARI KRISHNA MANDIR TRUST  v. STATE OF
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(1), it shall be lawful for a Planning Authority with the
approval of the Director of Town Planning and subject to the
provisions of section 68 to provide for suitable amendment of
the Development plan.]
42. Section 61 enables the Planning Authority to make a draft
scheme for an area, in respect of which a declaration is made. In case
of failure to make a draft scheme within the period specified in sub-
section (1) of Section 61 or within the period as extended by sub-section
(3), the declaration is to lapse. However notwithstanding such lapse the
Planning Authority is not debarred from making a fresh declaration. The
time to make a draft scheme may on an application of the Planning
Authority be extended by the State Government, subject to the limitation
in Section 61(3) a first declaration.
43. If at any time before a draft scheme is prepared and submitted
to the State Government for sanction, the Planning Authority or its officers
are of the opinion or on any representation made to them, that an additional
area be included within the same scheme, the Planning Authority or the
officer may, after informing the State Government and giving notice in
the Official Gazette, and also in one or more local newspapers include
such additional area in the scheme, and thereupon all the provisions of
Sections 59, 60 and 61 are to apply in relation to such additional area as
they apply to any original area of the scheme, and draft
scheme is to be
prepared for the original area and the additional areas.
44. Section 63 of the Regional and Town Planning Act enables
the State Government to require any Planning Authority to make and
submit and sanction a draft scheme in respect of any land with regard to
which a Town Planning Scheme may be made.
45. If the Planning Authority fails to make the declaration of
intention to make a scheme within three months from the date of direction
made under sub-section (1), the State Government may by notification
in the Official Gazette, appoint an officer to make and submit the draft
scheme for the land to the State Government [after a notice regarding
its making has been duly published as aforesaid] and thereupon the
provisions of sections 60, 61 and 62 shall, as far as may be applicable,
apply to the making of such a scheme.
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46. Section 64 provides as follows:-
“64.Contents of draft Scheme. - A draft scheme shall contain
the following particulars so far as may be necessary, that is
to say,—
(a)
the ownership, area and tenure of each original plot ;
(b)
reservation, acquisition or allotment of land required
under sub-clause (1) of clause (b) of section 59 with
the general indication of the uses to which such land is
to be put and the terms and conditions subject to which,
such land is to be put to such uses ;
(c)
the extent to which it is proposed to alter the boundaries
of the original plots by reconstitution ;
(d)
an estimate of the total cost of the scheme and the net
cost to be borne by the Planning Authority ;
(e)
a full description of all the details of the scheme with
respect to such matters referred to in clause (b) of
section 59 as may be applicable ;
(f)
the laying out or re-laying out of land either vacant or
already built upon including areas of comprehensive
development ;
(g)
the filling up or reclamation of low lying, swamp or
unhealthy areas or levelling up of land ;
(h)
any other prescribed particulars.”
47. A draft scheme is to contain particulars of the ownership,
area and tenure of each original plot; reservation, acquisition or
allotment of land required under sub-clause (i) of clause (b) of section
59 with a general indication of the uses to which such land is to be put
and the terms and conditions subject to which, such land is to be put to
such uses; the
extent to which it is proposed to alter the boundaries of
the original plots by reconstitution; a full description of all the details of
the scheme with respect matters referred to in clause (b) of section 59
as might be applicable.
48. Section 65 provides as follows:-
“65. Reconstituted plot-  (1) In the draft scheme, the size and
shape of every reconstituted plot shall be determined, so far
HARI KRISHNA MANDIR TRUST  v. STATE OF
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as may be, to render it suitable for building purposes, and
where a plot is already built upon, to ensure that the buildings
as far as possible comply with the provisions of the scheme
as regards open spaces.
(2) For the purpose of sub-section (1), a draft scheme may
contain proposals—
(a)
to form a final plot by reconstitution of an original plot
by alteration of the boundaries of the original plot, if
necessary ;
(b)
to form a final plot from an original plot by the transfer
wholly or partly of the adjoining lands ;
(c)
to provide, with the consent of the owners, that two or
more original plots each of which is held in ownership
in severally or in joint ownership shall hereafter, with
or without alteration of boundaries be held in ownership
in common as a final plot ;
(d)
to allot a final plot to any owner dispossessed of land
in furtherance of the scheme; and
(e)
to transfer the ownership of an original plot from one
person to another.”
49. Section 65 provides that in the draft scheme, the size and
shape of every reconstituted plot shall be determined, so far as may be,
to render it suitable for building purposes, and where a plot is already
built upon, to ensure that the buildings as far as possible comply with the
provisions of the Scheme as regards open spaces. A draft scheme may
contain proposals to form a final plot by reconstitution of an original plot,
if necessary, by alteration of the boundaries of the
original plot ; to form
a final plot from an original plot by the transfer wholly or partly of the
adjoining lands;  to provide, with the consent of the owners, that two or
more original plots each of which is held in ownership severally or in
joint ownership shall with or without alteration of boundaries be held in
ownership in common; to allot a final plot to any owner dispossessed of
land in furtherance of the scheme and to transfer the ownership of an
original plot from one person to another.
50. None of the provisions referred to above enable the Planning
Authority or any other authority to divest an owner of his/her property.
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Rather, Section 64 mandates that a draft scheme is to contain particulars
of ownership area and tenure of each original plot.  Any transfer or any
alteration of boundary, amalgamation or separation has to be with the
consent of the owner in view of the express mandate of Section 65.
Implicit in Section 65 is that a transfer must be for consideration.
51. Section 66 provides :-
“66.  Compensation  for discontinuation of use - Where under
sub-clause (1) of clause (b) of section 59 the purposes to
which the buildings or areas may not be appropriated or used
in pursuance of clause (m) of section 22 have been specified,
then the building or area shall cease to be used for a purpose
other than the purposes specified in the scheme within such
time as may be specified in the final scheme, and the person
affected by this provision shall be entitled to such
compensation from the Planning Authority as may be
determined by the Arbitrator:
Provided that, in ascertaining whether compensation be paid,
the time within which the person affected was permitted to
change the user shall be taken into consideration.”
52. Section 68 provides as follows:-
“68. Power of State Government to sanction draft scheme -
(1) The Planning Authority or, as the case may be, the officer
aforesaid shall, not later than six months [from the date of
the publication of the notice, in the Official Gazette, regarding
the making of the draft scheme], submit the same with any
modifications which it
or he may have made therein together
with a copy of objections received by it or him to the State
Government, and shall at the same time apply for its sanction.
(2)  On receiving such application, after making such inquiry
as it may think fit and consulting the Director of Town
Planning, the State Government may, not later than [three
months] from the date of its submission, by notification in the
Official Gazette, [or not later than such further time as the
State Government may extend] either sanction such draft
scheme with or without modifications and subject to such
conditions as it may think fit to impose or refuse to give
sanction.
HARI KRISHNA MANDIR TRUST  v. STATE OF
MAHARASHTRA AND OTHERS [INDIRA BANERJEE, J.]
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(3) If the State Government sanctions such scheme, it shall in
such modification state at what place and time the draft scheme
shall be open to the inspection of the public [and the State
Government shall also state therein that copies of the scheme
or any extract therefrom certified to be correct shall on
application be available for sale to the public at a reasonable
price.]”
53. Section 68 empowers the Planning Authority of the State
Government to sanction the draft scheme not later than six months.
Section 71 provides:-
“71. Disputed ownership:-  (1) Where there is a disputed claim
as to the ownership of any piece of land included in an area
in respect of which a declaration of intention to make a town
planning scheme has been made and any entry in the record
of rights or mutation register relevant to such disputed claim
is inaccurate or inconclusive, an inquiry may be held on an
application being made by the Planning Authority or the
Arbitrator at any time prior to the date on which the arbitrator
draws up the final scheme under clause (xviii) of sub-section
(3) of section 72 by such officer as the State Government may
appoint for the purpose of deciding who shall be deemed to
be owner for the purposes of this Act.
(2) Such decision shall not be subject to appeal but it shall
not operate as a bar to a regular suit.
(3) Such decision shall, in the event of a civil court passing a
decree which is inconsistent
therewith, be corrected, modified
or rescinded in accordance with such decree as soon as
practicable after such decree has been brought to the notice
of the Planning Authority either by the Civil Court or by some
person affected by such decree.
(4) Where such a decree of the civil court is passed, after
final scheme has been sanctioned by the State Government
under section 86, such final scheme shall be deemed to have
been suitably varied by reason of such decree.”
54. Section 71 provides that where there is disputed claim as to
the ownership of any piece of land included in an area in respect of
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which a declaration of intention to make a Town Planning Scheme has
been made, and any entry in the record of rights or mutation register
relevant to such disputed claim is inaccurate or inconclusive, an inquiry
may be held on an application being made by the Planning Authority or
the Arbitrator at any time prior to the date on which the arbitrator draws
up the final scheme under clause (xviii) of sub-section (3) of section 72
by such officer as the State Government may appoint for the purpose of
deciding who shall be deemed to be owner for the purposes of this Act.
Although the decision of the Arbitrator is not subject to appeal in view of
sub-section (2) of the Section 71, the award is not to operate as a bar to
regular suit. In case there is any decree in a Civil Suit, inconsistent with
the Award, the Award is to be connected, modified or rescinded and in
case the decree is passed after sanction of a final Scheme, such final
scheme is to be deemed to have been suitably varied, by reason of such
decree.
55. Section 72 of the Regional and Town Planning Act enables
the State Government to appoint an Arbitrator for the purposes of one or
more planning schemes received by it. Section 73 provides:-
“73. Certain decisions of Arbitrator to be final.- Except in
matters arising out of Section 72, every decision of the
Arbitrator shall be final and conclusive and binding on all
parties including the Planning Authority.”
56. Section 74 as it stood at the material
time provided:-
74. Appeal.- (1) Any decision of the Arbitrator under clauses
(iv) to (xi) to (xi) both inclusive and clauses (xiv), (xv and
(xvi) of sub-section 3 of section 72 shall be forthwith
communicated to the party concerned including the Planning
Authority; and any party aggrieved by such decision may,
within two months from the date of communication of the
decision, apply to the Arbitrator to make a reference to the
Tribunal of Appeal for decision of the appeal.(2) The
provisions of sections 5, 12 and 14 of the Indian Limitation
Act, 1963 shall apply to appeals submitted under this section.
57. As observed above, in this case there was a reference to the
Arbitrator. The Arbitrator made an award which has assumed finality.
The Award has never been questioned, either by the Planning Authority
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or any of the owners. The verdict of the Arbitrator cannot be undone by
the Planning Authority.
58. Section 91 of the Regional and Town Planning Act provides
as follows:-
“91. Power to vary schemes on ground of error, irregularity
or informality:- (1) If after the final scheme has come into
force, the Planning Authority considers that the scheme is
defective on account of an error, irregularity or informality
or that the scheme needs the variation or modification of a
minor nature, the Planning Authority may apply in writing to
the State Government for 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, by notification in the
Official Gazette, authorise or direct the Planning Authority
to prepare 1[a draft of such variation and publish a notice in
the Official Gazette, and in such other manner as may be
prescribed stating that a draft variation has been prepared.]
(3) 2[The notice of preparation of a draft variation published]
under sub-section (2) shall state every amendment proposed
to be made in the scheme, and if any such amendment relates
to a matter specified in any of the sub-clauses (i) to (iii) of
clause (b) of section 59, 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 office of the Planning Authority during office
hours and copies of such draft variation or any, extract
therefrom certified to be correct shall be available for sale to
the public at a reasonable price.
(5) Not later than one month of the date of the publication of
the notice regarding preparation of draft variation, any
person affected thereby may communicate in writing his
objections to such variation to the State Government,and send
a copy thereof to the Planning Authority.
(6) After receiving the objections under sub-section (5), the
State Government may, after consulting the Planning Authority
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and after making such inquiry as it may think fit, by
notification in the Official Gazette,-
(a)
appoint an Arbitrator, 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 submitted
to the State Government for sanction;
(b)
sanction the variation with or without modifications;
or
(c)
refuse to sanction the variation.
(7) From the date of the notification sanctioning the variation,
with or without modifications, such variation shall take effect
as if it were incorporated in the scheme.”
59. Chapter VII of the Regional and Town Planning Act comprising
Sections 125-129 contains provisions for compulsory acquisition of land
needed for the purposes of any Regional Plan, Development Plan or
Town Planning Scheme.  The Respondent authorities never took recourse
to these proceedings to acquire any part of Plot No.473 B3, 473 B4 or
any other adjacent Plot.
60. Mr. Pallav Sisodia, learned senior counsel appearing for the
Appellant trust, assisted by Mr Braj K Mishra, argued, and in our view
rightly, that the Appellant cannot be deprived of the subject strip of land
being the private road without authority of law, as this would be a violation
of Article 300-A of the Constitution of India, which  prohibits deprivation
of person from property without authority of law.
61. Mr.  Sisodia submitted that in any case the award made by the
Arbitrator in 1972 under Section 72 of the  Regional and Town
Planning
Act stood final and binding.  Mr. Sisodia emphatically argued that the
award dated 16.5.1972 of the Arbitrator appointed under the Regional
and Town Planning Act made it clear that the area and ownership of the
plots were to be determined as per entries in the Property Register.
This award is final and binding under Section 73 of the  Regional and
Town Planning Act.  This is not disputed by the Respondents Sub-division
in the Regional and Town Planning Act, therefore, has to be as follows:-
“1092 B1
1025
Smt. Kanta Nanda
1092 B2
603
Shri Premal Malhotra
HARI KRISHNA MANDIR TRUST  v. STATE OF
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1092 B3
2838
Shri Dilip Kumar Roy
Smt. Indira Devi
1092 B4
444(Road)
Holders of Sl. No. 1 to 3"
62. However, in Form B of the Town Planning Scheme (TPS) the
said sub-division was sought to be changed as follows:-
“473 B1
1024.86
Smt. Kanta Nanda
473 B2
602.98
Shri Premal Malhotra
473 B3
2335.03
Shri Dilip Kumar Roy
Smt. Indira Devi
473 B4
502.82
Shri Dilip Kumar Roy
Smt. Indira Devi
Road
444.14
Pune Municipal Corporation “
63. Mr. Sisodia pointed that the change was not preceded or
followed by any demarcation, re-constitution, determination of
compensation or any kind of taking over of possession or acquisition by
Pune Municipal Corporation in accordance with procedure known in
law, be it under Section 64, 65 read with Section 72 or Section 126 of the
Regional and Town Planning Act. This is also not in dispute.  As argued
by Mr. Sisodia,  Pune Municipal Corporation had on the other hand clearly
admitted that they had never initiated any proceedings for acquisition or
of taking over possession of the private road.
64. Mr. Sisodia submitted that there is no other award of the
Arbitrator regarding the plot in question, except the one passed on
16.5.1972 showing the plot 1092 B4 to be a private road admeasuring
444.14 Sq. mtrs. to be in possession of the holders of plot No. 1092 B1,
1092 B2 and 1092 B3.   The Town Planning Scheme thus clearly smacks
of an error apparent in that plot 1094 B4 has been shown as a private
road of the Pune Municipal Corporation.
65. Mr. Sisodia strenuously argued, and in our view rightly, that
the respondent authorities were duty bound to correct the error in showing
plot  414 Sq. mtrs. odd in Plot 1092 B4 as private road of the Pune
Municipal Corporation. Mr. Sisodia argued that this fundamental error
was the genesis of a series of errors which followed subsequently.
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66. Mr. Sisodia submitted that although the Appellants were praying
for rectification of an error, the Pune Municipal Corporation proposed
the variation of the Town Planning Scheme by merging plot No.1092 B4
in other adjacent plots being 471 B1, B2 and B3, though there was no
such prayer by the Appellant.
67. Mr. Sisodia submitted that the Pune Municipal Corporation as
also the State had agreed to accept the simple request of correction of
land records to bring the same to conform to the award made on
16.5.1972. Mr. Sisodia submitted that a simple prayer for rectification of
records has been given the colour of variation in the Town Planning
Scheme, and made to appear as if public land of Pune Municipal
Corporation was to be released and plots re-constituted to dis-mantle
the sub-division Form B. Mr. Sisodia emphatically argued that the
documents enclosed in the paper book would clearly show that neither
the State, nor the Pune Municipal Corporation, had opposed the
rectification of the error. This is borne out by records.
68. Mr. Sisodia submitted that the High Court had erred in
proceeding on the premise that the subject strip of land had vested in
Pune Municipal Corporation and could not be released. In doing so, the
High Court had erroneously applied the deeming provision of Section
88(a) without the pre-conditions of the said Section of re-constitution,
acquisition, compensation and award in respect of the strip of land. Mr.
Sisodia argued that the
Authorities ought not to have been allowed to
illegally interfere with the subject strip of land which was full of sacred
trees and deities. Mr. Sisodia argued that on a proper reading of Section
91 of the Regional and Town Planning Act, no further exercise is needed
to  rectify an error in the present case, except to correct the land record
as per the award referred to above.The artifice of vesting, supposed
variation in Town Planning Scheme, modification of substantial character
are without basis.
69. On the other hand, Mr. Nishant R. Katneshwarkar, learned
counsel appearing on behalf of the State of Maharashtra argued that
Section 88 contemplates automatic vesting of the properties coming under
the Town Planning Scheme, with the planning authority. Even the Pune
Municipal Corporation cannot seek deletion of the roads as the same
amounts to substantial variation in the Town Planning Scheme.
70. Mr. Katneshwar argued that the High Court has rightly
interpreted Section 88 and Section 91 of the  Regional and Town Planning
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Act and dismissed the writ petition. Deletion of a road from a Town
Planning Scheme can be said to be a variation of substantial nature.
Section 91 contemplates minor variation in Town Planning Scheme by
following requisite procedure. Mr. Katneswhar argued that pragmatically
also modification of the scheme would not be expedient, as future
purchasers would have no approach road to access their properties as
would be clear from the map of the said plots.
71. Mr. Katneshwar, by insinuation, questioned the propriety of
the resolution of the Pune Municipal Corporation and emphasized that
the corporation did not support its resolution either before the State
Government or before the High Court. Mr. Katneswar argued that the
stand of the Corporation in the High Court was correct and beneficial to
the citizens. The photographs of the site would show some trees but that
cannot be a ground to stall the development as per the Town Planning
Scheme. The deities can be shifted in case they come on the approach
road. Development as per the Town Planning Scheme should be given
prime importance.
72. In conclusion Mr. Mr. R. Katneshwarkar submitted that the
Regional and Town Planning Act is a benevolent piece of legislation
meant for providing basic facilities to the people at large. The legislation
is made for the people. In support of his arguments Mr.  Katneshwarkar
cited Laxminarayan R. Bhattad & Ors. v. State of Maharashtra &
Anr.1
73. In Laxminarayan R. Bhattad (supra), this Court held that
the contents of the scheme under the Bombay Town Planning Act now
replaced by the Maharashtra Regional and Town Planning Act will prevail
over any policy decision taken by the Corporation or by the State.
Significantly, in Laxminarayan R. Bhattad (supra), the Arbitrator had
made an award dated 30.10.1987, while making the Town Planning
Scheme whereby final Plot No. 694 admeasuring 1240 square meters
and final Plot No. 173 admeasuring 2079 square meters aggregating
3319.9 square meters had been allotted in lieu of original Plot No. 433
belonging to the Appellant. Further, for acquisition of the said land as
also the structure standing thereupon, compensation of Rs.4,97,567.20/-
had been awarded.  The judgment in Laxminarayan R Bhattad (supra)
is clearly distinguishable and of no assistance to the respondents.
1. (2003) 5 SCC 413
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74. Mr. Markand D. Adkar, learned counsel appearing with Mr.
Rajesh Kumar, learned counsel submitted that the writ petition in respect
of variation of the Town Planning Scheme has been dismissed by the
High Court by a reasoned judgment, which does not require interference.
We are however, of the view that the reasons are misconceived as
discussed later in the judgment.
75. Mr. Adkar also submitted that the High Court has recorded a
finding that the suit land stood vested in the Pune Municipal Corporation
in 1979, when the Town Planning Scheme became final. This finding is
patently incorrect.
76. Mr. Adkar argued that the Appellant had itself contended that
in view of the documentary evidence, particularly the city survey records
and the award of the Arbitrator, the correction in the town planning
record can be made even de hors Section 91 of the Regional and Town
Planning Act, and accordingly invited this Court to make orders under
Article 142 of the Constitution of India.
77. Mr. Adkar submitted that during the pendency of the appeal,
the Appellants purported to bring on record certain new facts which had
been discovered, without leave of this Court. The respondents therefore
did not have occasion to respond to new facts and documents. Mr. Adkar
submitted that the award or city survey record, now referred to, did not
find reference in the decision of the High Court.The Appellant had
produced certain documents purportedly issued by certain departments
of
the Corporation for the first time. The Corporation did not have
occasion to respond to the same.
78. This Court has only proceeded on the basis of pleadings and
documents in the Special Leave Petition to which the Respondents had
ample opportunity to respond. The Award and the City Survey papers
are matters of record.  The records are in the custody of the Respondents.
79. Mr. Adkar emphasized on the fact that the High Court had
recorded specific finding regarding ownership of the Corporation as per
Town Planning Scheme, with which we are unfortunately unable to agree.
He argued that the High Court found that title had statutorily vested in
the Corporation under Section 88 of the Regional and Town Planning
Act and the only method to change or vary the Town Planning Scheme
was under Section 91 of the Regional and Town Planning Act.
HARI KRISHNA MANDIR TRUST  v. STATE OF
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80. Mr. Adkar argued that the submission of the Appellant that
the scheme could be varied de hors Section 91 of the Regional and
Town Planning Act, rendered the appeal liable to be dismissed on that
ground alone. Mr. Adkar argued that it was settled that the land in question
stood vested in the Pune Municipal Corporation by virtue of Section 88
of the Regional and Town Planning Act. Such argument is not sustainable
in law.
81. Mr. Adkar submitted that the Government had rejected the
proposal under Section 91 of Regional and Town Planning Act recording
reasons, which cannot be assailed by submissions which were not
advanced either before the Government or before the High Court.The
affidavit of the trustees made in this Court for the first time cannot be
examined.
82. Mr. Adkar submitted that Municipal Corporation had tendered
a true copy of Form I prepared under Rule 6(V) of the Rules for
consideration of this Court. The copy has been produced from the custody
of the Corporation and its authenticity has not been questioned either by
the Appellant or by the State.
83. Under the said rules, there are five forms which had to be
filled in as the Town Planning Scheme progressed, the final Form being
No.5 under Rule 13(9). The relevant documents pertaining to proceedings
of the Town Planning Scheme are in the Town Planning Department of
the Pune Municipal Corporation and the Town Planning Department of
the State Government.
Mr. Adkar submitted that the content of Form I
indicates that the suit land in question belonged to the Pune Municipal
Corporation even before the Town Planning Scheme came into existence
in 1979, and as such entry was never questioned or disputed by any of
the parties for approximately two decades, the Town Planning Scheme
ought not to be disturbed.
84. There is, however no whisper from the Respondents of any
proceedings, if any, resorted to for transfer of the private road to Pune
Municipal Corporation, and not even any specific averment by the
Respondents that the Appellant had the opportunity to controvert the
entries in the Forms in question.
85. Mr. Adkar submitted that Form I not having been questioned
for two decades, it was in the interest of justice that all relevant town
planning proceedings be examined by the competent authority, to examine
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the alleged discrepancy between town planning records, and the city
survey records, and for that purpose the matter would require
consideration de novo at the appropriate level.
86. Mr. Adkar submitted that the Town Planning Scheme has
been drawn under Section 59 of the Regional and Town Planning Act, to
give effect to the proposals in the final development plan. Mr. Adkar
submitted that Section 68(3) of the Regional and Town Planning Act
provides that the draft scheme should be available for inspection of the
public. Section 71 of the said Act makes provisions for disputed claims
and under Section 72(4), the Arbitrator while preparing preliminary
scheme has to give notice to all concerned. There are provisions for
ample opportunity to stakeholders to dispute entries in the scheme. Under
Rule 13(3) every interested person is to be given notice. Mr. Adkar
argued that in view of the aforesaid provisions and ample opportunity, no
person could be heard to contend after 20 years that he had not been put
to notice.
87. Mr. Adkar submitted that it is settled law that if the statute
prescribes a procedure, it is to be assumed that the procedure has been
followed scrupulously, unless the contrary is shown.  Further it is needless
to say in the facts of this case, the Appellant has not been able to
demonstrate that the authorities preparing Town Planning Scheme failed
to follow the procedure mandated by the statute.
88. Mr. Adkar submitted that the matter should be
remanded to
the Government for de novo adjudication to consider all relevant aspects
of the matter. The Corporation respects and reveres the great personalities
involved in the Appellant Trust, and for that reason the present litigation
is not adversarial in nature, but in the interest of justice. Proper legal
method should be followed before arriving at any conclusion one way or
the other. Mr. Adkar’s arguments are untenable, since as recorded in
the judgment and order under appeal, the facts pleaded by the Appellant
are not in dispute.  At the cost of repetition it is reiterated that the name
of Pune Municipal Corporation was incorporated without recourse to
any procedure contemplated under the Regional and Town Planning Act.
The Respondents have not produced any materials evincing compliance
with the procedure prescribed under the Regional and Town Planning
Act.  The case made out by the Appellant cannot be rejected on the
basis of assumption.  Since the parties have been litigating for over a
HARI KRISHNA MANDIR TRUST  v. STATE OF
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decade and a half we are not inclined to remit the matter back to the
authority concerned for de novo hearing and decision.
89. Mr. Adkar submitted that reliance was placed by the Appellant
on the award for the first time before this Court, on the premise that
there was no acquisition, and without acquisition or compensation, vesting
of the suit land could not have been effected. Counsel argued that the
vesting of property under the Town Planning Scheme was entirely
different in nature than acquisition of property under Land Acquisition
Act or under Section 127 of the Regional and Town Planning Act. In
support of such submission, Mr. Adkar cited Pukhrajmal Sagarmal
Lunkad (D) thru. His Legal heirs and Others v. Municipal Council,
Jalgaon and Others.2
90. In Pukhrajmal Sagarmal Lunkad (supra), the issue was
whether any land reserved, allotted or designated for any purpose
specified in any plan under the Regional and Town Planning Act but not
cleared by agreement within 10 years from the date on which the final
regional plan or final development plan came into force,  nor proceedings
under the Land Acquisition Act, 1894 commenced within such period
and if a person interested has served notice on the Planning Authority/
Developmental Authority/ Appropriate Authority as the case might be
and the land is not cleared within six months of such notice; whether the
allotment will be deemed to be released from reserve in view
of the
provisions of Section 127 of the Regional and Town Planning Act.  This
Court held :-
“11. Before further discussion, we think it just and proper to
look into the definitions of “development plan” and “town
planning scheme”. Section 2(9) of the MRTP Act defines the
term “development plan” and reads as under:
“2. (9)”Development plan” means a plan for the
development or re-development of the area within the
jurisdiction of a Planning Authority and includes revision
of a development plan and proposals of a Special Planning
Authority for development of land within its jurisdiction.”
2. (2017) 2 SCC 722
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The expression town planning scheme is not defined in the
Act but under Section 2(30) the word “scheme” is defined
as:
“2. (30)”Scheme” includes a plan relating to a town
planning scheme.”
12. According to Concise Oxford English Dictionary “scheme”
means a systematic plan or arrangement for attaining some
particular object or putting a particular idea into effect. In
the same dictionary, the term “planning” means planning and
control of the construction, growth, and development of a
town or other urban area. As such, we may say that the term
“planning scheme” means, a systematic plan with an object
of planning and control of the construction, growth and
development of a town. We also think it relevant to mention
here that development plans are dealt with under Chapter III,
and town planning schemes are dealt with under Chapter V
of the MRTP Act. Section 126 of the Act which is part of
Chapter VII, deals with plans as well as schemes, but Section
127 does not refer to town planning schemes.
13. Effect of final town planning scheme is provided in Section
88 of the MRTP Act which reads (as it existed before 2014),
as under:
“88. Effect of final scheme.—On and after the day on which
a final scheme comes into force—
(a)
all lands required by the Planning Authority shall,
unless it is otherwise determined in such scheme, vest
absolutely in the Planning Authority free from all
encumbrances;
(b)
all rights in the original plots which have been
reconstituted shall
determine, and the reconstituted
plots shall become subject to the rights settled by
arbitrator;
(c)
the Planning Authority shall hand over possession
of the final plots to the owners to whom they are
allotted in the final scheme.”
xxx
xxx
xxx
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16. In the present case the prayer is made by the appellants
in the writ petitions specifically in respect of Town Planning
Scheme III, which was finally sanctioned, as such, we find no
error in the impugned judgment passed by the High Court
dismissing the writ petitions. From the copy of special notice
dated 25-4-1980 in Form 4 issued under the Town Planning
Scheme Rules (filed as Annexure B with the additional
documents) and copy of order dated 16-5-1980 passed by
the arbitrator in the aforesaid Rules, it is clear that the
compensation was determined in respect of land in question
under town planning scheme. The decision of the arbitrator
appears to have been published in the Official Gazette dated
20-8-1980, and appeal was dismissed. In the circumstances,
we find no error in the order passed by the High Court.
17. The landowners further relied on Girnar Traders v.State
of Maharashtra [Girnar Traders v. State of Maharashtra,
(2007) 7 SCC 555] to contend that the land is deemed to
have been released after 6 months of the issue of notice under
Section 127 of the MRTP Act. The contention of the
landowners cannot be accepted for the reason that the
decision relied on by the landowners to contend that no steps
were taken relates to the “development plan” for which the
steps for acquisition had to be taken as per Section 126. In
the present case, before the scheme is implemented, the
procedure contemplated under Chapter
V is followed to
finalise the scheme. The procedure includes the sanctioning
of draft scheme, appointment of arbitrator, issuing notices to
persons affected by the scheme, determination of
compensation by the arbitrator and then the final award made
by the arbitrator. In respect of the land required under town
planning scheme except the development plan, the steps under
Section 126 may not require to be resorted to at all. It is clear
from the record that the draft town planning scheme was
published in 1976, arbitrator determined the compensation
in 1980, the appeal filed before the Tribunal was dismissed
in 1987 and the scheme was sent to the Government for
sanction in 1988 and it was finally sanctioned in 1993 by
following the procedure under Chapter V which is a self-
contained code for the implementation of the town planning
scheme.”
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91. In Pukhrajmal Sagarmal Lunkad (supra), compensation
had been determined in respect of the land in question under the Town
Planning Scheme and there was no challenge to the decision of the
Arbitrator published in the Official Gazette.It was in the backdrop of the
aforesaid facts that the High Court/Supreme Court refused to interfere.
92. From the records of the case, particularly the order dated
20.8.1970 of sub division of plot number 473B and the award of the
arbitrator, it is patently clear that the name of Pune Municipal
Commissioner was at no point of time reflected as holder of the private
road. There is no whisper as to how the road came to be shown as in
possession of Pune Municipal Commissioner nor of the procedure adopted
for effecting changes, if any, in the property records.
93. On perusal of the documents, there can be no doubt at all that
the road in question measuring 444.14 sqm. never belonged to the Pune
Municipal Corporation.  In the property records, there was no private
road. There were three plots 473 B1, B2, B3 and 473B4 shown as vacant
land held by the owners of all the three adjacent plots.
94. The Municipal Corporation was never shown as owner of the
vacant plot or of any private road. Even assuming that there was any
policy decision to have an approach road to every plot, it was incumbent
upon the authorities concerned to acquire the land. On the other hand,
the scheme clearly records that the same was based on entries in
property
records, and the award of the arbitrator.
95. As argued by Mr. Sisodia, the Award dated 16th May, 1972 of
the Arbitrator awarded under the Regional and Town Planning Act made
it clear that the area and ownership of the plots were to be determined
as per entries in the property registered. The Award is being final and
binding under Section 74 on the Planning Authority as also the owners
under Section 73 of the Regional and Town Planning Act. The sub-
division in the Scheme under the Regional and Town Planning Act is as
follows:
96. The right to property may not be a fundamental right any
longer, but it is still a constitutional right under Article 300A and a human
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right as observed by this Court in Vimlaben Ajitbhai Patel v. Vatslaben
Ashokbhai Patel and Others3. In view of the mandate of Article 300A
of the Constitution of India, no person is to be deprived of his property
save by the authority of law. The appellant trust cannot be deprived of
its property save in accordance with law.
97. Article 300A of the Constitution of India embodies the doctrine
of eminent domain which comprises two parts, (i) possession of property
in the public interest; and (ii) payment of reasonable compensation. As
held by this Court in a plethora of decisions, including State of Bihar
and Others v. Project Uchcha Vidya, Sikshak Sangh and Others4;
Jelubhai Nanbhai Khachar and Others v. State of Gujarat and Anr.5;
Bishambhar Dayal Chandra Mohan and Ors. v. State of Uttar
Pradesh and Others6, the State possesses the power to take or control
the property of the owner for the benefit of public. When, however, a
State so acts it is obliged to compensate the injury by making just
compensation as held by this Court in Girnar Traders v. State of
Maharashtra and Others7.
98. It has been established beyond any iota of doubt that the private
road admeasuring 414 sq. meter area had never been acquired by the
Pune Municipal Corporation. The right to property includes any
proprietary interest hereditary interest in the right of management of a
religion endowment, as well as anything acquired by inheritance.
However, laudable be the purpose, the Executive cannot deprive a person
of his property without specific legal authority, which can be established
in a court of law.
99. In case of dispossession except under the authority of law, the
owner might obtain restoration of possession by a proceeding for
Mandamus against the Government as held by this Court in Wazir Chand
v. State of Himachal Pradesh8.  Admittedly, no compensation has been
offered or paid to the appellant Trust. As observed by this Court in K.T.
Plantation Private Limited and Anr. v. State of Karnataka9, even
3. (2008) 4 SCC 649 (para 42)
4. (2006) 2 SCC 545, 574 (para 69)
5. (1995) Suppl. 1 SCC 596
6. (1982) 1 SCC 39
7. (2007) 7 SCC 555 (paras 55 and 56)
8. AIR 1954 SC 415
9. (2011) 9 SCC 1
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though the right to claim compensation or the obligation of the State to
pay compensation to a person who is deprived of his property is not
expressly provided in Article 300A of the Constitution, it is inbuilt in the
Article.  The State seeking to acquire private property for public purpose
cannot say that no compensation shall be paid.  The Regional and Town
Planning Act also does not contemplate deprivation of a land holder of
his land, without compensation. Statutory authorities are bound to pay
adequate compensation.
100. The High Courts exercising their jurisdiction under Article
226 of the Constitution of India, not only have the power to issue a Writ
of Mandamus or in the nature of Mandamus, but are duty bound to
exercise such power, where the Government or a public authority has
failed to exercise or has wrongly exercised discretion conferred upon it
by a Statute, or a rule, or a policy decision of the Government or has
exercised such discretion malafide, or on irrelevant consideration.
101. In all such cases, the High Court must issue a Writ of
Mandamus and give directions to compel performance in an appropriate
and lawful manner of the discretion conferred upon the Government or
a public authority.
102. In appropriate cases, in order to prevent injustice to the parties,
the Court may itself pass an order or give directions which the government
or the public authorities should have passed, had it properly and lawfully
exercised its discretion.
In Directors of Settlements, Andhra Pradesh
and Others v. M.R. Apparao and Anr.10.  Pattanaik J. observed:
“One of the conditions for exercising power under Article
226 for issuance of a mandamus is that the court must come
to the conclusion that the aggrieved person has a legal right,
which entitles him to any of the rights and that such right has
been infringed.  In other words, existence of a legal right of
a citizen and performance of any corresponding legal duty
by the State or any public authority, could be enforced by
issuance of a writ of mandamus, “Mandamus” means a
command.  It differs form the writs of prohibition or certiorari
in its demand for some activity on the part of the body or
person to whom it is addressed.  Mandamus is a command
issued to direct any person, corporation, inferior courts or
10. (2002) 4 SCC 638
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government, requiring him or them to do some particular thing
therein specified which appertains to his or their office and
is in the nature of a public duty. A mandamus is available
against any public authority including administrative and local
bodies, and it would lie to any person who is under a duty
imposed by a statute or by the common law to do a particular
act.  In order to obtain a writ or order in the nature of
mandamus, the applicant has to satisfy that he has a legal
right to the performance of a legal duty by the party against
whom the mandamus is sought and such right must be
subsisting on the date of the petition.  The duty that may be
enjoined by mandamus may be one imposed by the
Constitution, a statute, common law or by rules or orders
having the force of law.”
103. The Court is duty bound to issue a writ of Mandamus for
enforcement of a public duty. There can be no doubt that an important
requisite for issue of Mandamus is that Mandamus lies to enforce a
legal duty. This duty must be shown to exist towards the applicant. A
statutory duty must exist before it can be enforced through Mandamus.
Unless a statutory duty or right can be read in the provision, Mandamus
cannot be issued to enforce the same.
104. The High Court is not deprived of its jurisdiction to entertain
a petition under Article 226 merely because in considering the petitioner’s
right to relief questions of fact may fall to be
determined. In a petition
under Article 226 the High Court has jurisdiction to try issues both of
fact and law. Exercise of the jurisdiction is, it is true, discretionary, but
the discretion must be exercised on sound judicial principles. Reference
may be made inter alia to the judgments of this Court Gunwant Kaur v.
Municipal Committee, Bhatinda11 and State of Kerala v. M.k. Jose12.
In M.K. Jose (supra), this Court held:-
“16. Having referred to the aforesaid decisions, it is obligatory
on our part to refer to two other authorities of this Court
where it has been opined that under what circumstances a
disputed question of fact can be gone into. In Gunwant Kaur
v. Municipal Committee, Bhatinda [(1969) 3 SCC 769] , it
has been held thus: (SCC p. 774, paras 14-16)
11. (1969) 3 SCC 769
12. (2015) 9 SCC 433
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“14. The High Court observed that they will not determine
disputed question of fact in a writ petition. But what facts
were in dispute and what were admitted could only be
determined after an affidavit-in-reply was filed by the State.
The High Court, however, proceeded to dismiss the petition
in limine. The High Court is not deprived of its jurisdiction to
entertain a petition under Article 226 merely because in
considering the petitioner’s right to relief questions of fact
may fall to be determined. In a petition under Article 226 the
High Court has jurisdiction to try issues both of fact and law.
Exercise of the jurisdiction is, it is true, discretionary, but the
discretion must be exercised on sound judicial principles. When
the petition raises questions of fact of a complex nature, which
may for their determination require oral evidence to be taken,
and on that account the High Court is of the view that the
dispute may not appropriately be tried in a writ petition, the
High Court may decline to try a petition. Rejection of a petition
in limine will normally be justified, where the High Court is
of the view that the petition is frivolous or because of the
nature of the claim made dispute sought to be agitated, or
that the petition against the party against whom relief is claimed
is not maintainable or that the dispute raised thereby is such
that it would be inappropriate to try it in the writ jurisdiction,
or for analogous reasons.
15. From the
averments made in the petition filed by the
appellants it is clear that in proof of a large number of
allegations the appellants relied upon documentary evidence
and the only matter in respect of which conflict of facts may
possibly arise related to the due publication of the notification
under Section 4 by the Collector.
16. In the present case, in our judgment, the High Court was
not justified in dismissing the petition on the ground that it
will not determine disputed question of fact. The High Court
has jurisdiction to determine questions of fact, even if they
are in dispute and the present, in our judgment, is a case in
which in the interests of both the parties the High Court should
have entertained the petition and called for an affidavit-in
reply from the respondents, and should have proceeded to
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try the petition instead of relegating the appellants to a
separate suit.” (emphasis supplied)
105. In ABL International Ltd. v. Export Credit Guarantee
Corporation of India Ltd.13, this Court referring to previous judgments
of this Court including Gunwant Kaur (supra) held: -
“19. Therefore, it is clear from the above enunciation of law
that merely because one of the parties to the litigation raises
a dispute in regard to the facts of the case, the court
entertaining such petition under Article 226 of the
Constitution is not always bound to relegate the parties to a
suit. In the above case of Gunwant Kaur [(1969) 3 SCC 769]
this Court even went to the extent of holding that in a writ
petition, if the facts require, even oral evidence can be taken.
This clearly shows that in an appropriate case, the writ court
has the jurisdiction to entertain a writ petition involving
disputed questions of fact and there is no absolute bar for
entertaining a writ petition 2 even if the same arises out of a
contractual obligation and/or involves some disputed
questions of fact.
27. From the above discussion of ours, the following legal
principles emerge as to the maintainability of a writ petition:
a)
In an appropriate case, a writ petition as against a
State or an instrumentality of a State arising out of a
contractual obligation is maintainable.
b)
Merely because some disputed questions of fact arise
for consideration, same cannot
be a ground to refuse
to entertain a writ petition in all cases as a matter of
rule;
c)
A writ petition involving a consequential relief of
monetary claim is also maintainable.”
106. In the present case, it is not even in dispute that the private
road in question did not at any point of time belong to the Pune Municipal
Corporation. It is shown to be held by the holders by adjacent Plot Nos.
473 B1, 473 B2 and 473 B3.
13.(2004) 3 SCC 553
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107. In the facts and circumstances of the instant case, in the
light of admissions, on the part of the respondent authorities that the
private road measuring 414 sq. was private property never acquired by
the Pune Municipal Corporation or the State Government, the respondents
had a public duty under Section 91 to appropriately modify the scheme
and to show the private road as property of its legitimate owners, as per
the property records in existence, and or in the award of the Arbitrator.
In our considered opinion, the Bombay High Court erred in law in
dismissing the Writ Petition with the observation that the land in question
had vested under Section 88 of the Regional and Town Planning Act.
108. Section 88 of the Regional and Town Planning Act, 1966
provides:
“88. Effect of [preliminary scheme].- On and after the day
on which a [preliminary scheme] comes into force-
(a)
all lands required by the Planning Authority shall,
unless it is otherwise determined in such scheme,
vest absolutely in the Planning Authority free from
all encumbrances;
(b)
all rights in the original plots which have been
reconstituted shall determine, and the reconstituted
plots shall become subject to the rights settled by
Arbitrator;
[(c)
***]”
109. Section 88 of the Regional and Town Planning Act cannot be
read in isolation. It has to be read with Section 125 to 129 relating to
compulsory acquisition as also Section 59, 69 and 65.
110. Section 125 provides as follows:
“125.
Compulsory acquisition of land needed for purposes of
Regional Plan, Development plan or town planning scheme,
etc.- Any land required, reserved or designated in a Regional
plan, Development plan or town planning scheme for a public
purpose or purposes including plans for any area of
comprehensive development or for any new town shall be
deemed to be land needed for a public purpose [within the
meaning of the Right to Fair Compensation and Transparency
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in Land Acquisition, Rehabilitation and Resettlement Act,
2013 (30 of 2013)].
[Provided that, the procedure specified in sections 4 to 15
(both inclusive) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (30 of 2013) shall not be applicable
in respect of such lands.]
111. Section 126 stipulates the mode and manner of acquisition of
land acquired to a designate in Regional, Development and Town scheme
for a public purpose and the mode of payment of compensation.
112. Section 127 provides that any land reserved, allotted or
designated for any purpose specified in any plan under the Regional and
Town Planning Act, which is not acquired by agreement within ten years
from the date on which a final regional plan or final development plan
comes into force, is to be deemed to have lapsed and the land shall be
deemed to be released from such reservation. Of course by virtue of
sub-section (2) of Section 126 inserted by Amendment by Maharashtra
Act No.16 of 2009 on lapsing of reservation or a designation of any land
under sub-section (1), the Government shall notify the same by an order
published in the Official Gazette. Section 128 enables the Government
to acquire lands for a purpose other than the one for which it is designated
in any plan or scheme.
113. In our considered opinion, the High Court erred in dismissing
the writ petition, misconstruing Section 88
of the Regional and Town
Planning Act, by reading the same in isolation from the other provisions
of the Regional and Town Planning Act, particularly Sections 65, 66, 125
and 126 thereof.
114. Section 125 read with Section 126 enables the state/Planning
authority to acquire land. On a proper construction of Section 88, when
land is acquired for the purposes of a Development Scheme, the same
vests in the State free from encumbrances. No third party can claim any
right of easement to the land, or claim any right as an occupier, licensee,
tenant, lessee, mortgagee or under any sale agreement. On the other
hand, Section 65 referred to above read with Section 66 protects the
interests of the owners.
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115. In the absence of any proceedings for acquisition or for
purchase, no land belonging to the Appellant Trust could have vested in
the State.
116. The High Court also erred in its finding that the modification
proposed involved substantial alteration by deletion of a public road and
was therefore impermissible. The modification only involved deletion of
the name of Pune Municipal Corporation as holder of the private road.
The finding that deletion of a public road is a substantial alteration is, for
the reasons already discussed above, completely baseless.
117. The appeal is therefore allowed, and the Judgment and order
under appeal is set aside.
118. In exercise of our power under Article 142 of the Constitution
of India to do complete justice between the parties,we direct the
Respondent authorities to act in terms of the Award dated 16th May,
1972 and delete the name of the Pune Municipal Corporation as owner
of the private road in the records pertaining to the Scheme and carry out
such other consequential alterations as may be necessary  under Section
91 of the Regional and Town Planning Act. The appellant trust shall
within a fortnight from the date of this order, give an undertaking to the
Planning Authority not to obstruct access of adjacent plot owners through
the private road in question. The necessary alteration or modification
under Section 91, as directed above, shall be carried out within six weeks
from the date of furnishing of the
undertaking by the appellant, as directed
above.
HARI KRISHNA MANDIR TRUST  v. STATE OF
MAHARASHTRA AND OTHERS [INDIRA BANERJEE, J.]
Divya Pandey
Appeal allowed.