Case: HARI KRISHNA MANDIR TRUST Vs. STATE OF MAHARASHTRA &amp; ORS.

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.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 Nanda473 B2: Mr Premal Malhotra473 B3: Swami Dilipkumar Roy and Sm. Indira Devi473 B4: Open space owned by Swami Dilipkumar Roy and Sm. Indira DeviUnnumbered: Road measuring 444.14 sq.mt owned by Pune Municipal Corporation2. 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.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 Nanda473 B2: Mr Premal Malhotra473 B3: Swami Dilipkumar Roy and Sm. Indira Devi473 B4: Open space owned by Swami Dilipkumar Roy and Sm. Indira DeviUnnumbered: Road measuring 444.14 sq.mt owned by Pune Municipal Corporation9. By a letter dated 29 th 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 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).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.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.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 Honble 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 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.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.

Court's reasoning:
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.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.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 4 th 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 Arbitrators 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 23 rd 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 nobodys 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.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 or any of the owners. The verdict of the Arbitrator cannot be undone by the Planning Authority.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.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.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.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.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.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. Adkars 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 decade and a half we are not inclined to remit the matter back to the authority concerned for de novo hearing and decision.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 16 th 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.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 right as observed by this Court in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and Others (2008) 4 SCC 649  (  para 42) . 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 Others (2006) 2 SCC 545 , 574  (para 69) ; Jelubhai Nanbhai Khachar and Others v. State of Gujarat and Anr. (1995) Suppl. 1 SCC 596   ; Bishambhar Dayal Chandra Mohan and Ors. v. State of Uttar Pradesh and Others (1982) 1 SCC 39   , 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 Others (2007) 7 SCC 555 (paras 55 and 56).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 Pradesh AIR 1954 SC 415   . 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 Karnataka (2011) 9 SCC 1   , even 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.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 petitioners 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.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 B3.107. 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.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 65.113. 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.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.50. 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.