HARI KRISHNA MANDIR TRUST versus STATE OF MAHARASHTRA AND OTHERS

[2020] 13 S.C.R.

AHARI KRISHNA MANDIR TRUST

STATE OF MAHARASHTRA AND OTHERS

(Civil Appeal No. 6156 OF 2013)

BAugust 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 therevenue records as owners of Plot No.473 in 1959 – Plot divided inC1970–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, vacantplot of land was shown as an Internal Private Road measuring444.14 Sq. mtr. in the possession of ‘DKR’,‘ID’, ‘KN’ and ‘PM’–Development Scheme proposed under the 1966 Act including FinalDPlot No.473 – Arbitrator appointed, directed the area and ownershipof the plots to be as per entries in the property register–In 1979, theTown Planning Scheme was sanctioned and came into effect– In ‘B’Form, Final Plot No.473 was shown to have been divided into fiveparts with road measuring 444.14 Sq. mtr. to be owned by PuneMunicipal Corporation (PMC) – ‘ID’executed registered trustEdeed constituting the appellant-trust and transferring Plot no.473-B3 and the internal road to them – Appellant requested the StateGovt. to correct the wrong entry in the name of PMC–Eventually,Urban Development Department,Govt.of Maharashtra rejected theproposal for modification of the scheme u/s.91inter alia finding thatFPMC was the owner of the land –Appellants filed writ petition –Dismissed –On appeal, held: High Court failed to apply its mind tothe records of PMC w.r.t property holders,the Arbitrator’s Awardwhich had assumed finality– Admittedly, the private road in questiondid not belong to PMC, was never acquired and the name of PMCwas wronglyrecorded – In the light of admissions, respondents hadGa public duty u/s.91 to appropriately modify the scheme and to showthe private road as property of its legitimate owners–High Courterred in law in dismissing the Writ Petition with the observation thatthe land in question had vested u/s.88 in PMC – s.88 cannot beread in isolation – It has to be r/w ss.125-129 relating to compulsoryH

acquisition as also ss.59, 69 and 65–Appellant cannot be deprivedof the land being the private road without authority of law inviolation of Art.300 - prohibiting deprivation of person fromproperty 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 scheme u/s.91 is anerror, irregularity or informality.

Constitution of India – Art.226 –Jurisdiction under – Duty ofHigh Courts– Discussed.

Allowing the appeal, the Court

HELD: 1.1 The High Court has apparently misconstruedSection 88, Maharashtra Regional and Town Planning Act, 1966(‘the Regional and Town Planning Act’) reading the same in anarrow, pedantic manner in isolation from other relevantprovisions of the Regional and Town Planning Act, as discussedlater in the judgment.The High Court has failed to address thequestion of how the name of Pune Municipal Corporation couldall of sudden be shown as the owner of the internal road witheffect from 4th March 1986, in complete disregard of all records.The High Court has, with the greatest of respect, failed to applyits mind to relevant facts, particularly the records of the PuneMunicipal Corporation with regard to property holders, theArbitrator’s Award dated 16.5.1972 under section 72 of theRegional and Town Planning Act and the admission of PuneMunicipal Corporation that the road did not belong to it, it wasnever acquired and that the name of Pune Municipal Corporationhad wrongly been recorded. Rather, the High Court records thatthe Respondent authorities have not disputed facts in theircounter affidavit, but only claimed that the land had vested underSection 88 and that it was not feasible to make changes in theScheme.The finding of the High Court that it was never the case

Aof the petitioner that the land had not vested, is misconceived.First of all there does not appear to be any admission of vestingon the part of the Appellant Trust. In any case land can only vestin accordance with law. If the land has not vested, mistakenadmission would make no difference, for there can be no estoppelagainst the Constitution of India, or any statute. Significantly, theBHigh Court has, in its judgment and order under appeal, dulyrecorded the submission that Pune Municipal Corporation hadby its Resolution No. 611 passed on 23rd March, 2006 resolvednot to claim any right in respect of Final Plot No.B4. [Paras 27-30][336-F-H; 337-A-D]C1.2 The High Court failed to appreciate that the meresanctioning of Town Planning Scheme would not wipe out apatently erroneous recording in the scheme. The High Courtdid not examine how the road measuring 414.14 squaremeters could have been allotted to Pune Municipal Corporation.DFurthermore, the High Court came to the conclusion that sinceany variation had to be in the light of the provisions of Section91, the same would be applicable to the given case which wouldpermit only variation or modification of minor nature. TheHigh Court found the deletion of public road from the TownPlanning Scheme,to be variation of substantial nature, whichEcould not be permitted, since it would be hit by the bar inherentin the Section.The condition precedent for variation of schemeunder Section 91 is an error, irregularity or informality. Therecan hardly be any doubt that the Scheme smacks of apparent error,irregularity and infirmity in so far as it records Pune MunicipalFCorporation as the owner of the private road. variation of theScheme by recording the name of the true owner cannot be asubstantial variation. It is nobody’s case that the road is publicroad. The finding of the High Court that the change of publicroad into private road was variation of substantial nature, isex facie erroneous and inconsistent with facts as recorded in theGjudgment and order itself. [Paras 31-33][337-E-H; 338-A-B]

1.3 In 1966 the Maharashtra State Legislature enacted theRegional and Town Planning Act to make provision for planning

and development and use of land in Regions established for thatpurpose, and for the constitution of Regional Planning Boardstherefor; to make better provision for the preparation ofDevelopment Plans with view to ensuring that Town PlanningSchemes are made in proper manner and their execution ismade effective; to provide for the creation of new towns by meansof Development Authorities; to make provisions for thecompulsory acquisition of land required for public purposes inrespect of the plans; and for purposes connectedtherewith.Section 3 of the Regional and Town Planning Act, 1966empowers the State Government to establish by notification anyarea in the State by defining its limits, to be region for thepurposes of the said Act and to name and alter the name of anysuch region.Section 4 read with Section 8 of the Regional andTown Planning Act provides for the constitution of RegionalPlanning Boards. [Paras 34-36][338-B-E]

1.4 Section 21 provides that development plan shallgenerally indicate the manner in which the use of land in the areaof the Planning Authority shall be regulated and also indicate themanner in which the development of land therein shall be carriedout. Section 51 of the Regional and Town Planning Act empowersthe Planning Authority to revoke or modify any permission todevelop as per development plan to such extent as appears to benecessary after giving the person concerned an opportunity ofhearing. Section 59 of the Regional and Town Planning Act enablesa Planning Authority to prepare Town Planning Schemes for thearea within its jurisdiction, or any part thereof, for the purpose ofimplementing proposals for development. Section 59(b) of theRegional and Town Planning Act provides that Town PlanningScheme might make provisions for the matters specified in thesaid Section, which includes, inter alia, proposals for allocatingthe use of land for residential, industrial, commercial, agriculturalor recreational purposes, proposals for designation of lands forpublic purposes such as schools, colleges and other educationalinstitutions, medical and public health institutions, markets, socialwelfare and cultural institutions, theaters and places of publicentertainment, transport and communications such as roads,

Ahighways, 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, relatingto laying out or re-laying out of land, either vacant or alreadyBbuilt upon, including areas of comprehensive development ; layoutof 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 andother structures; allotment or reservation of land for open spaces,gardens, recreation grounds, schools, markets, green-belts,Cdairies, transport facilities and public purposes of all kinds;drainage, including sewerage, surface or sub-soil drainage andsewage disposal; lighting; water supply; preservation of objectsof historical or national interest or natural beauty, and of buildingsused for religious purposes or other objects. Section 61 enablesDthe Planning Authority to make draft scheme for an area, inrespect of which declaration is made. In case of failure to makea draft scheme within the period specified in sub-section (1) ofSection 61 or within the period as extended by sub-section (3),the declaration is to lapse. However notwithstanding such lapsethe Planning Authority is not debarred from making freshEdeclaration. The time to make draft scheme may on anapplication of the Planning Authority be extended by the StateGovernment, subject to the limitation in Section 61(3) firstdeclaration. If at any time before draft scheme is prepared andsubmitted to the State Government for sanction, the PlanningFAuthority or its officers are of the opinion or on any representationmade to them, that an additional area be included within the samescheme, the Planning Authority or the officer may, after informingthe 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 SectionsG59, 60 and 61 are to apply in relation to such additional area asthey apply to any original area of the scheme, and draft scheme isto be prepared for the original area and the additional areas.

Section 63 of the Regional and Town Planning Act enables theState Government to require any Planning Authority to make andsubmit and sanction draft scheme in respect of any land withregard to which Town Planning Scheme may be made. If thePlanning Authority fails to make the declaration of intention tomake scheme within three months from the date of directionmade under sub-section (1), the State Government may bynotification in the Official Gazette, appoint an officer to make andsubmit the draft scheme for the land to the State Government[after notice regarding its making has been duly published asaforesaid] and thereupon the provisions of sections 60, 61 and62 shall, as far as may be applicable, apply to the making of sucha scheme. [Paras 40, 42-45][340-C-E; 342-B-H]1.6 draft scheme is to contain particulars of the ownership,area and tenure of each original plot; reservation, acquisition orallotment of land required under sub-clause (i) of clause (b) ofsection 59 with general indication of the uses to which suchland 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 isproposed to alter the boundaries of the original plots byreconstitution; full description of all the details of the schemewith respect matters referred to in clause (b) of section 59 asmight 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, andwhere plot is already built upon, to ensure that the buildings asfar as possible comply with the provisions of the Scheme asregards open spaces. draft scheme may contain proposals toform final plot by reconstitution of an original plot, if necessary,by alteration of the boundaries of the original plot ; to form finalplot from an original plot by the transfer wholly or partly of theadjoining lands; to provide, with the consent of the owners, thattwo or more original plots each of which is held in ownershipseverally or in joint ownership shall with or without alteration ofboundaries be held in ownership in common; to allot final plotto any owner dispossessed of land in furtherance of the scheme

Aand to transfer the ownership of an original plot from one personto another.[Paras 47, 49][343-F-G; 344-E-G]]

1.7 None of the provisions referred to above enable thePlanning Authority or any other authority to divest an owner ofhis/her property. Rather, Section 64 mandates that draft schemeBis to contain particulars of ownership area and tenure of eachoriginal plot. Any transfer or any alteration of boundary,amalgamation or separation has to be with the consent of theowner in view of the express mandate of Section 65. Implicit inSection 65 is that transfer must be for consideration.Section 68empowers the Planning Authority of the State Government toCsanction the draft scheme not later than six months. Section 71provides that where there is disputed claim as to the ownershipof any piece of land included in an area in respect of which adeclaration of intention to make Town Planning Scheme hasbeen made, and any entry in the record of rights or mutationDregister relevant to such disputed claim is inaccurate orinconclusive, an inquiry may be held on an application being madeby the Planning Authority or the Arbitrator at any time prior tothe date on which the arbitrator draws up the final scheme underclause (xviii) of sub-section (3) of section 72 by such officer asthe State Government may appoint for the purpose of decidingEwho shall be deemed to be owner for the purposes of this Act.Although the decision of the Arbitrator is not subject to appeal inview of sub-section (2) of the Section 71, the award is not tooperate as bar to regular suit. In case there is any decree in aCivil Suit, inconsistent with the Award, the Award is to be

Fconnected, modified or rescinded and in case the decree is passedafter sanction of final Scheme, such final scheme is to be deemedto have been suitably varied, by reason of such decree.Section72 of the Regional and Town Planning Act enables the StateGovernment to appoint an Arbitrator for the purposes of one ormore planning schemes received by it. [Paras 50, 53-55][344-H;G345-A-B; 346-B-C, H; 347-A-D]

1.8 In this case there was reference to the Arbitrator.TheArbitrator made an award which has assumed finality. The Award

has never been questioned, either by the Planning Authority orany of the owners. The verdict of the Arbitrator cannot be undoneby the Planning Authority.Chapter VII of the Regional and TownPlanning Act comprising Sections 125-129 contains provisionsfor compulsory acquisition of land needed for the purposes ofany Regional Plan, Development Plan or Town Planning Scheme.The Respondent authorities never took recourse to theseproceedings to acquire any part of Plot No.473 B3, 473 B4 or anyother adjacent Plot. The Appellant cannot be deprived of thesubject strip of land being the private road without authority oflaw, as this would be violation of Article 300-A of the Constitutionof India, which prohibits deprivation of person from propertywithout 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 atall that the road in question measuring 444.14 sqm. neverbelonged to the Pune Municipal Corporation. In the propertyrecords, there was no private road. There were three plots 473B1, B2, B3 and 473B4 shown as vacant land held by the ownersof all the three adjacent plots. The Municipal Corporation wasnever shown as owner of the vacant plot or of any private road.Even assuming that there was any policy decision to have anapproach road to every plot, it was incumbent upon the authoritiesconcerned to acquire the land. On the other hand, the schemeclearly records that the same was based on entries in propertyrecords, and the award of the arbitrator. [Paras 93, 94][359-C-E]

1.10 The right to property may not be fundamental rightany longer, but it is still constitutional right under Article 300Aand human right. In view of the mandate of Article 300A of theConstitution of India, no person is to be deprived of his propertysave by the authority of law. The appellant trust cannot be deprivedof its property save in accordance with law. Article 300A of theConstitution of India embodies the doctrine of eminent domainwhich comprises two parts, (i) possession of property in the publicinterest; and (ii) payment of reasonable compensation. It has beenestablished beyond any iota of doubt that the private roadadmeasuring 414 sq. meter area had never been acquired by thePune Municipal Corporation.The right to property includes any

Aproprietary interest hereditary interest in the right of managementof religion endowment, as well as anything acquired byinheritance. However, laudable be the purpose, the Executivecannot deprive person of his property without specific legalauthority, which can be established in court of law. In case ofdispossession except under the authority of law, the owner mightBobtain restoration of possession by proceeding for Mandamusagainst the Government. Admittedly, no compensation has beenoffered or paid to the appellant Trust. The Regional and TownPlanning Act also does not contemplate deprivation of landholder of his land, without compensation. Statutory authoritiesCare bound to pay adequate compensation. [Paras 96-99][359-H;360-A-C; D-G; 361-B]

Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Pateland Others (2008) 4 SCC 649 : [ 2008] 4 SCR 1077;State of Bihar and Others v. Project Uchcha Vidya,DSikshak Sangh and Others (2006) 2 SCC 545, 574 :[2006] 1 SCR 14; Jelubhai Nanbhai Khachar andOthers v. State of Gujarat and Anr. (1995) Suppl. 1 SCC596 : [ 1994] 1 Suppl. SCR 807; Bishambhar DayalChandra Mohan and Ors. v. State of Uttar Pradesh andOthers (1982) 1 SCC 39; [1982] 1 SCR 1137; GirnarETraders v. State of Maharashtra and Others (2007) 7SCC 555; Wazir Chand v. State of Himachal PradeshAIR 1954 SC 415 : [1955] SCR 408; K.T. PlantationPrivate Limited and Anr. v. State of Karnataka (2011) 9SCC 1: [2011] 13 SCR 636 – relied on.F2.The High Courts exercising their jurisdiction underArticle 226 of the Constitution of India, not only have the powerto issue Writ of Mandamus or in the nature of Mandamus, butare duty bound to exercise such power, where the Governmentor public authority has failed to exercise or has wronglyGexercised discretion conferred upon it by Statute, or rule, ora policy decision of the Government or has exercised suchdiscretion malafide, or on irrelevant consideration.In all suchcases, the High Court must issue Writ of Mandamus and givedirections to compel performance in an appropriate and lawful

manner of the discretion conferred upon the Government or apublic authority. In appropriate cases, in order to prevent injusticeto the parties, the Court may itself pass an order or give directionswhich the government or the public authorities should havepassed, had it properly and lawfully exercised its discretion.TheCourt is duty bound to issue writ of Mandamus for enforcementof public duty. There can be no doubt that an important requisitefor issue of Mandamus is that Mandamus lies to enforce legalduty. This duty must be shown to exist towards the applicant. Astatutory duty must exist before it can be enforced throughMandamus. Unless statutory duty or right can be read in theprovision, Mandamus cannot be issued to enforce the same.TheHigh Court is not deprived of its jurisdiction to entertain petitionunder Article 226 merely because in considering the petitioner’sright to relief questions of fact may fall to be determined. In apetition under Article 226 the High Court has jurisdiction to tryissues both of fact and law. Exercise of the jurisdiction is, it istrue, discretionary, but the discretion must be exercised on soundjudicial principles.[Paras 100-104][361-B-E; 362-D-F]

Directors of Settlements, Andhra Pradesh and Othersv. 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 theprivate road in question did not at any point of time belong to thePune Municipal Corporation. It is shown to be held by the holdersby adjacent Plot Nos. 473 B1, 473 B2 and 473 B3. In the factsand circumstances of the instant case, in the light of admissions,on the part of the respondent authorities that the private roadmeasuring 414 sq. was private property never acquired by thePune Municipal Corporation or the State Government, therespondents had public duty under Section 91 to appropriately

Amodify the scheme and to show the private road as property ofits legitimate owners, as per the property records in existence,and or in the award of the Arbitrator. The Bombay High Courterred in law in dismissing the Writ Petition with the observationthat the land in question had vested under Section 88 of theRegional and Town Planning Act. Section 88 of the Regional andBTown Planning Act cannot be read in isolation. It has to be readwith Section 125 to 129 relating to compulsory acquisition as alsoSection 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,Cmisconstruing Section 88 of the Regional and Town Planning Act,by reading the same in isolation from the other provisions of theRegional and Town Planning Act, particularly Sections 65, 66,125 and 126 thereof. Section 125 read with Section 126 enablesthe state/Planning authority to acquire land. On properDconstruction of Section 88, when land is acquired for the purposesof Development Scheme, the same vests in the State free fromencumbrances. No third party can claim any right of easement tothe 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 theEinterests of the owners.In the absence of any proceedings foracquisition or for purchase, no land belonging to the AppellantTrust could have vested in the State. The High Court also erredin its finding that the modification proposed involved substantialalteration by deletion of public road and was thereforeFimpermissible. The modification only involved deletion of thename of Pune Municipal Corporation as holder of the privateroad. The finding that deletion of public road is substantialalteration is, for the reasons already discussed above, completelybaseless. The Judgment and order under appeal is set aside.[Paras 113-117][366-E-H; 367-A-C]G

Laxminarayan R. Bhattad & Ors. v. State ofMaharashtra & Anr. (2003) 5 SCC 413 : [2003] 3SCR 409;Pukhrajmal Sagarmal Lunkad (D) thru. HisLegal heirs and Others v. Municipal Council, Jalgaon

HARI KRISHNA MANDIR TRUST v. STATE OFMAHARASHTRA AND OTHERS

and Others (2017) 2 SCC 722 : [2017] 2 SCR 333–distinguished.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6156of 2013

From the Judgment and Order dated 15.09.2008 of the High Courtof 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, MakarandD. Adkar, Vijay Kumar, Rajesh Kumar, Advs. for the respondents.

The Judgment of the Court was delivered by

INDIRA BANERJEE, J.

This appeal is against judgment and order dated 15.9.2008 passedby Division Bench of Bombay High Court dismissing Writ PetitionNo.904 of 2008 filed by the appellant, challenging an order dated 3.5.2006,whereby the State Government refused to sanction modification of

AScheme under the provisions of Section 91 of the Maharashtra Regionaland Town Planning Act, 1966, hereinafter referred to as “the Regionaland Town Planning Act”).

2. One Thorat family was the owner of Plot No. 473 in City SurveyNo. 1092 at Bhamburda in Pune. By registered deed of conveyanceBdated 21.12.1956 one Mrs. Krishnabai Gopal Rao Thorat sold the northernpart of the plot admeasuring 4910 sq.m. jointly to Swami Dilip KumarRoy, one of the most eminent disciples of Sri Aurobindo, and Smt. IndiraDevi, daughter disciple of Swami Dilip Kumar Roy. The names of SwamiDilip Kumar Roy and Smt. Indira Devi were duly recorded in the relevantCrevenue records in 1959.

3. Swami Dilip Kumar Roy had moved to Pune to propagate thephilosophy of Sri Aurobindo and established the Hare Krishna Mandirwith his daughter disciple Smt. Indira Devi, on the land purchased fromDMrs. Krishnabai Gopal Rao Thorat.

4. According to the appellants, by an order dated 20.8.1970 of thePune Municipal Corporation, Plot No. 473 which was originallynumbered Survey No.1092, was divided. Final plot No. 473 was subdivided into 4 plots being plot Nos. 473 B1 comprising an area of 1025square meters, 473 B2 comprising an area of 603.00 square meters, 473EB3 comprising an area of 2838 square meters and 473 B4, privateroad 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 DilipFKumar Roy and Smt. Indira Devi. Plot No. 473 B4, which was vacantplot of land, was shown as an Internal Private Road measuring 444.14Sq. mtr., in the possession of Swami Dilip Roy and Smt. Indira Devi andthe holders of Plot Nos. 473 B1 and 473 B2, namely, Mrs. Kanta Nandaand Mr. Premal Malhotra. It is not in dispute that the Pune MunicipalCorporation was not mentioned in the order dated 20.8.1970.G

6. On 20.8.1970 the City Survey Officer directed issuance ofseparate property cards in view of proposed Development Schemeunder the Regional and Town Planning Act which included Final PlotNo.473, and an Arbitrator was appointed. The Arbitrator made an Awarddated 16.5.1972 directing that the area and ownership of the plots wereHto be as per entries in the property register.

7. In 1979, the Town Planning Scheme was sanctioned and cameinto effect. In ‘B’ Form, Final Plot No.473 was shown to have beendivided 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 PuneMunicipal Corporation

8. The appellant contends that the Pune Municipal Corporationby its letters dated 29.6.1996, 4.1.1997 and 18.1.1997 admitted that theinternal road had never been acquired by the Pune Municipal Corporation.The Town and Planning Department also admitted that Pune MinicipalCorporation had wrongly been shown to be owner of said road.

9. By letter dated 29th June, 1996, the City Survey Officerinformed the Assistant Engineer, Land and Property of the PuneMunicipal Corporation that, as per registered document no. 1429 dated21.12.1956, 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. Accordinglyas per letter number PTI 2325/12/56 of the City Architect, separateproperty card had been opened on 3.9.1959 and the names of thepurchasers recorded.

10. The said letter recorded that as per the office order of theCity Architect dated 20.8.1970, Survey Number 1092B was sub dividedas follows:-

11. The City Survey Officer pointed out that the names of theoccupiers named above had been confirmed. However, as per Form Iapproved in Town Plan No. I, Pune, the name of Pune Municipal

ACorporation had been recorded and/or entered incorrectly. The CitySurvey Officer recommended initiation of further action, as may bedeemed proper, to consider deletion of the name of the Pune MunicipalCorporation as holder of the road to enable the office of the City Architectto take further action.

B12. By letter dated 4.1.1997 written in response to letter dated4.12.1995, the City Deputy Engineer, Construction Control, PuneMunicipal Corporation informed Smt. Indira Devi that the internal roadof final plot number 473B had not come into the possession of the PuneMunicipal Corporation.

C13. By letter dated 18.1.1997 of the Town Planning and ValuationDepartment of the State Government at Pune, the AssistantCommissioner (Special), Pune Municipal Corporation was informed thatthe Government had finally approved Town Planning Scheme No. I,Pune. However, in the approved Town Planning Scheme, Plot No. 473Bhas been divided into two parts and out of that final plot number, 473BDhas been sub-divided into four sub-plots. road with the width of 15feet measuring 414.14 sqm. has been shown under the ownership ofPune Municipal Corporation. However, on inspection, it was observedthat there was no road in existence. Final plot number 473B was dividedinto three plots of land and one separate plot of land shown as openEvacant premises. layout was prepared and approved by the CityEngineer.

14. On 12.3.1997, Smt. Indira Devi executed registered trustdeed constituting the appellant trust and transferred FP 473-B3 and theinternal road to the appellant trust. The appellant trust wrote letter toFthe State Government requesting the State Government to correct thewrong entry in the name of Pune Municipal Corporation in the Form.

15. On 25.4.2000, an order number TPS1697/1271/CR70/ 20000/UD-13 was passed by the Urban Development Department, Governmentof Maharashtra. The said order is extracted hereinbelow for convenience:-G“

“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-7dated 5.7.1979 and the same has come into force with effectfrom 15.8.1979 (hereinafter referred to as “the said Scheme’).

And whereas, in the said Scheme Final Plot No. 473B hasbeen subdivided as 473B-1, 473B-2, 473B-3 473B-4 andinternal layout road (area 444.14 sqmtr.) (hereinafter referredto 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 MunicipalCorporation (hereinafter referred to as “the saidCorporation”) to vary the said Scheme to delete the said roadand include the area in adjacent Final Plot No. 473B-2 to473B-4 as per site conditions.

And whereas, the Director to Town Planning vide his letterNo. TPS No.I/FP 473B/Shivajinagar/TPV-I/10420 dated20.3.98 also informed that as per site condition it is not feasiblefor the said corporation to construct the said road;

And whereas, considering all these facts, the Government ofMahrashtra is satisfied that it is necessary to vary the saidscheme under Section 91 of the Maharashtra Regional andTown Planning Act, 1966 (hereinafter referred to as the “saidAct”) to delete the said road and merge the area in adjacentplots and said variation required to be made is not of asubstantial nature;

Now, therefore, the Government of Maharashtra hereby directsthe said Corporation to undertake the variation to the saidScheme under sub-section (2) of Section 91 of the said Act inrespect of the following:-

a)The said Corporation in accordance with provisioncontained in Section 91 of the said act shall undertakevariation to the said Scheme to merge the said road areain Final Plot No. 473B-2 to 473B-4 and effectconsequential changes in the area of these final plotnumbers.

b)The said Corporation shall accordingly prepare andpublish and draft variation as per provision laid downin sub-section (2) of Section 91 of the said Act.

By order and in the name of the Governor of Maharashtra.”

A16. By letter dated 23.10.2002, the Additional MunicipalCorporation Commissioner, Pune Municipal Corporation informed theSecretary, Urban Development Department, Government of Maharashtrathat the Town Planning Scheme No. I in respect of Plot number 473Bhad 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 beenBfurther sub-divided. The area of ownership of the plot was to be asper entries in the property register. In the said letter it hascategorically been stated that it was necessary to confirm the area offinal plot number 473B as per Town Planning Scheme No.I (firstvariation), as decided by the arbitrator, for initiating action of deletingCPune Municipal Corporation from Form in respect of the road whichhad been shown in that plot after making sub-division of the said plot,and to give effect to the Property Card of Pune Municipal Corporationrecording the names of the holders of the final plot. The said letter dated23.10.2002 clearly stated that as per division made during the year 1970,there was no road. However, road would have to be provided forDapproaching the plot of Shri Nanda.

17. From the said letter dated 23.10.2002, it appears that, as perResolution No.117 taken at the General Body meeting of the PuneMunicipal Corporation on 21.5.2001, approval had been given fornecessary action for changes as per Section 93 of the Regional andETown Planning Act and notice dated 23.8.2001 to that effect publishedin the Gazette of Maharashtra.

18. By notice dated 8.9.2004, the Municipal Commissioner, PuneMunicipal Corporation invited objections against the proposal for mergingthe internal road with the adjoining sub plots 473 B1, B2, B3 and B4.FThere does not appear to have been any objection.

19. Thereafter, by Resolution No. 611 dated 23.3.2006, thePune Municipal Corporation adopted the following resolution:-

“Perused the letter on the subject of the Hon’ble MunicipalGCommissioner and taking into consideration recommendationof the Improvement Committee:

After cancelling internal road of Plot No. 473B at ShivajiNagar and after declaring the same as No-development zoneno. F.S.I. should be granted in respect of the road which hasbeen cancelled. Similarly as shown in the affidavit of theH

Plot Holder Applicant in front of the plot of plot No. 473B-1,approval is being provided to give the opinion of MunicipalCorporation for providing the road available.”

20. By letter dated 5.4.2006, the City Engineer, Pune MunicipalCorporation informed the Municipal Commissioner that the internal roadin plot number 473B as shown in the layout measuring 444.14 sq. metershad been merged and included in adjacent sub plot number 473 B-2 andaccordingly orders had been issued to implement the decision as perSection 92(2) of the Regional and Town Planning Act. In pursuance ofResolution number 117 dated 24.6.2001, sanction was being given formaking changes as per Section 91 of the Regional and Town PlanningAct.

21. Thereafter the Municipal Commissioner wrote letter to theState Government on 7.4.2006 submitting proposal for approval ofvariation in the Town Planning Scheme under Section 91 of the Regionaland Town Planning Act.

22. By an order dated 3.5.2006 impugned in the writ petition, theUrban Development Department, Government of Maharashtra rejectedthe proposal for modification of the Scheme under Section 91 with thefollowing observations:-

1.The proposal had been opposed by the Pune MunicipalCorporation, who is the owner in respect of the land.

2.Non-compliance of legal requirements in connectionwith the proposal.

3.It could not be assumed that the Trust would grantpermission to the plot holders of 473B for using theFprivate road of the adjacent society.

4.It has been considered basic necessity of the TownPlanning Scheme to have approach road for every plot.

5.The deletion of the road would mean that the road wouldGnot be available for new plots of land.

23. The finding that the Pune Municipal Corporation was the ownerof the land is patently contrary to official records and smacks of patenterror. In any case the impugned order is totally vague in the absence ofany whisper of the legal requirements alleged to have not been compliedwith.

A24. The observation in the impugned order, that it could not beassumed that the appellant Trust would grant permission to other plotholders of Plot No.473B is speculative and conjectural, overlooking theusage of the vacant land (Plot No.473 B-4) for several decades as alsothe statutory records including the Award of the Arbitrator in termswhereof Plot 473 B4 was shown to be held by the owners of Plot Nos.B473 B1, 473 B2 and 473 B3. In any case, none of the owners of theadjacent plots had raised any objection to the modification. Furthermore,the attention of the authorities had duly been drawn to the express termsof the will of Sm. Indira Devi giving the easementary rights to owners ofadjacent plots of access through the plot held by her. If the PlanningCAuthority felt it necessary to provide approach roads, it was incumbentupon it to acquire land in accordance with law, upon payment ofcompensation to its owners or alternatively purchase the same bynegotiation.

25. By letter dated 9.8.2007, the Appellant Trust drew theDattention of the then Chief Minister of Maharashtra to relevant factspertaining to the road, and in particular, to the fact that Smt. Indira Devihad in her will bequeathed to the other plot owners access through theplot. The appellant Trust requested the Government to delete the nameof Pune Municipal Commissioner wrongly entered in the property register.

E26. The appellants filed the writ petition being Writ Petition No.904of 2008 in the Bombay High Court challenging the said order dated3.5.2006. The writ petition has been dismissed by the judgment and orderunder appeal. The High Court found that the land in question had vested,without any encumbrances, in the Pune Municipal Corporation at thetime of commencement of the Town Planning Scheme, by virtue ofFSection 88 of the Regional and Town Planning Act.

27. The High Court has apparently misconstrued Section 88,reading the same in narrow, pedantic manner in isolation from otherrelevant provisions of the Regional and Town Planning Act, as discussedlater in the judgment.G

28. The High Court has failed to address the question of how thename of Pune Municipal Corporation could all of sudden be shown asthe owner of the internal road with effect from 4th March 1986, incomplete disregard of all records. The High Court has, with the greatestof respect, failed to apply its mind to relevant facts, particularly the recordsH

of the Pune Municipal Corporation with regard to property holders, theArbitrator’s Award dated 16.5.1972 under section 72 of the Regionaland Town Planning Act and the admission of Pune Municipal Corporationthat the road did not belong to it, it was never acquired and that the nameof Pune Municipal Corporation had wrongly been recorded. Rather, theHigh Court records that the Respondent authorities have not disputedfacts in their counter affidavit, but only claimed that the land had vestedunder Section 88 and that it was not feasible to make changes in theScheme.

29. The finding of the High Court that it was never the case of thepetitioner that the land had not vested, is misconceived. First of all theredoes not appear to be any admission of vesting on the part of the AppellantTrust. In any case land can only vest in accordance with law. If the landhas not vested, mistaken admission would make no difference, forthere can be no estoppel against the Constitution of India, or any statute.

30. Significantly, the High Court has, in its judgment and orderunder appeal, duly recorded the submission that Pune MunicipalCorporation had by its Resolution No.611 passed on 23[rd] March, 2006resolved not to claim any right in respect of Final Plot No.B4.

31. The High Court failed to appreciate that the mere sanctioningof Town Planning Scheme would not wipe out patently erroneousrecording in the scheme. The High Court did not examine how the roadmeasuring 414.14 square meters could have been allotted to PuneMunicipal Corporation.

32. Furthermore, the High Court came to the conclusion thatsince 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 onlya variation or modification of minor nature. The High Court found thedeletion of public road from the Town Planning Scheme, to be variationof substantial nature, which could not be permitted, since it would behit by the bar inherent in the Section.

33. The condition precedent for variation of scheme underSection 91 is an error, irregularity or informality. There can hardly beany doubt that the Scheme smacks of apparent error, irregularity andinfirmity in so far as it records Pune Municipal Corporation as the ownerof the private road. variation of the Scheme by recording the name ofthe true owner cannot be substantial variation. It is nobody’s case that

Athe road is public road. The finding of the High Court that the changeof public road into private road was variation of substantial nature,is ex facie erroneous and inconsistent with facts as recorded in thejudgment and order itself.

34. In 1966 the Maharashtra State Legislature enacted theBMaharashtra Regional and Town Planning Act, 1966 (hereinafter referredto as ‘the Regional and Town Planning Act’) to make provision forplanning and development and use of land in Regions established forthat purpose, and for the constitution of Regional Planning Boardstherefor; to make better provision for the preparation of DevelopmentPlans with view to ensuring that Town Planning Schemes are made inCa proper manner and their execution is made effective; to provide forthe creation of new towns by means of Development Authorities; tomake provisions for the compulsory acquisition of land requiredfor public purposes in respect of the plans; and for purposesconnected therewith.

35. Section 3 of the Regional and Town Planning Act, 1966empowers the State Government to establish by notification any area inthe State by defining its limits, to be region for the purposes of the saidAct and to name and alter the name of any such region. Section 4 readwith Section 8 of the Regional and Town Planning Act provides for theEconstitution of Regional Planning Boards:-

(a)to carry out survey of the Region, and prepare reports onthe surveys so carried out;

(b)to prepare an existing-land-use map and such other mapsas may be necessary, for the purpose of preparing RegionalPlan;

(c)to prepare 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 PlanningAct as it stood at the material time provided:-

“21.Development Plan:- (1) As soon as may be after thecommencement of this Act, but not later than three years after

such commencement, and subject however to the provisionsof this Act, every Planning Authority shall carry out survey,prepare an existing land-use map and prepare draftdevelopment plan for the area within its jurisdiction, inaccordance with the provisions of Regional plan, wherethere is such plan [publish notice in the Official Gazetteand in such other manner as may be prescribed stating thatthe draft development plan has been prepared] and submitthe plan to the State Government for sanction. The PlanningAuthority shall also submit quarterly Report to the StateGovernment about the progress made in carrying out thesurvey and prepare the plan.

(2) Subject to the provisions of this Act, every PlanningAuthority constituted after the commencement of this Act shall,not later than three years from the date of its constitution,[declare its intention to prepare draft Development plan,prepare such plan and publish notice of such preparationin the Official Gazette] and in such other manner as may beprescribed] and [submit the draft development plan] to theState Government for sanction.

[(3) On an application made by any Planning Authority, theState Government may, having regard to the permissible periodspecified in the preceding sections, from time to time, by orderin writing and for adequate reasons to be specified in suchorder, extend such period.]”

37. Section 21 provides that development plan shall generallyindicate the manner in which the use of land in the area of the PlanningAuthority shall be regulated and also indicate the manner in which thedevelopment of land therein shall be carried out.

38. Section 51 of the Regional and Town Planning Act empowersthe Planning Authority to revoke or modify any permission to develop asper development plan to such extent as appears to be necessary aftergiving the person concerned an opportunity of hearing.

39. Section 59 of the Regional and Town Planning Act enables aPlanning Authority to prepare Town Planning Schemes for the area withinits jurisdiction, or any part thereof, for the purpose of implementingproposals for development. Section 59(b) of the Regional and Town

APlanning Act provides that Town Planning Scheme might makeprovisions 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 fordesignation of lands for public purposes such as schools, colleges andother educational institutions, medical and public health institutions,Bmarkets, social welfare and cultural institutions, theaters and places ofpublic entertainment, transport and communications such as roads,highways, railways, waterways, canals, airports etc. water supply, sewageetc.40. The Town Planning Scheme might also make provisions, apartCfrom the matters specified in Section 22, inter alia, relating to layingout or re-laying out of land, either vacant or already built upon, includingareas of comprehensive development ; layout of new streets or roads,construction, diversion, extension, alteration, improvement and closingup of streets and roads etc; the construction, alteration and removal ofDbuildings, bridges and other structures; allotment or reservation of landfor 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 nationalinterest or natural beauty, and of buildings used for religious purposes orEother objects.41. Section 59 of the Regional and Town Planning Act isreproduced hereinbelow for convenience:

“59.Preparation and contents of town planning scheme:- [(1)]FSubject to the provisions of this Act or any other law for thetime being in force—

(a)a Planning Authority may for the purpose ofimplementing the proposals in the final Developmentplan prepare [or in respect of any land which isGlikely to be in the course of development or whichis already built upon], prepare one or more townplanning schemes for the area within its jurisdiction,or any part thereof ;

(b)a town planning scheme may make provision for anyof the following matters, that is to say—H

(i) any of the matters specified in section 22 ;

(ii) the laying out or re-laying out of land, eithervacant or already built upon, including areas ofcomprehensivedevelopment;

[(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 andclosing up of streets and roads and discontinuanceof communications;

(ii-c) the construction, alteration and removal ofbuildings, bridges and other structures;

(ii-d) the allotment or reservation of land for openspaces, gardens, recreation grounds, schools,markets, green-belts, dairies, transport facilities andpublic purposes of all kinds;

(ii-e) drainage, inclusive of sewerage, surface orsub-soil drainage and sewage disposal;

(ii-f) lighting;

(ii-g) water supply;

(ii-h) the preservation of objects of historical ornational interest or natural beauty, and of buildingactually used for religious purposes;]

(iii) the suspension, as far as may be necessary fortheproper carrying out of the scheme, of anyrule, bye-law, regulation, notification or ordermade or issued under any law for the time being inforce which the Legislature of the State is competentto make;

(iv) such other matter not inconsistent with the objectof this Act, as may be directed by the StateGovernment.

[(2) In making provisions in draft town planning schemefor any of the matters referred to in clause (b) of sub-section

342SUPREME COURT REPORTS

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A(1), it shall be lawful for Planning Authority with theapproval of the Director of Town Planning and subject to theprovisions of section 68 to provide for suitable amendment ofthe Development plan.]

42. Section 61 enables the Planning Authority to make draftBscheme for an area, in respect of which declaration is made. In caseof failure to make 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 thePlanning Authority is not debarred from making fresh declaration. Thetime to make draft scheme may on an application of the PlanningCAuthority be extended by the State Government, subject to the limitationin Section 61(3) first declaration.43. If at any time before draft scheme is prepared and submittedto the State Government for sanction, the Planning Authority or its officersare of the opinion or on any representation made to them, that an additionalDarea be included within the same scheme, the Planning Authority or theofficer may, after informing the State Government and giving notice inthe Official Gazette, and also in one or more local newspapers includesuch additional area in the scheme, and thereupon all the provisions ofSections 59, 60 and 61 are to apply in relation to such additional area asEthey apply to any original area of the scheme, and draft scheme is to beprepared for the original area and the additional areas.

44. Section 63 of the Regional and Town Planning Act enablesthe State Government to require any Planning Authority to make andsubmit and sanction draft scheme in respect of any land with regard toFwhich Town Planning Scheme may be made.

45. If the Planning Authority fails to make the declaration ofintention to make scheme within three months from the date of directionmade under sub-section (1), the State Government may by notificationin the Official Gazette, appoint an officer to make and submit the draftGscheme for the land to the State Government [after notice regardingits making has been duly published as aforesaid] and thereupon theprovisions of sections 60, 61 and 62 shall, as far as may be applicable,apply to the making of such scheme.

46. Section 64 provides as follows:-

“64.Contents of draft Scheme. - draft scheme shall containthe following particulars so far as may be necessary, that isto say,—

(a)the ownership, area and tenure of each original plot ;

(b)reservation, acquisition or allotment of land requiredunder sub-clause (1) of clause (b) of section 59 withthe general indication of the uses to which such land isto 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 boundariesof the original plots by reconstitution ;

(d)an estimate of the total cost of the scheme and the netcost to be borne by the Planning Authority ;

(e)a full description of all the details of the scheme withrespect to such matters referred to in clause (b) ofsection 59 as may be applicable ;

(f)the laying out or re-laying out of land either vacant oralready built upon including areas of comprehensivedevelopment ;

(g)the filling up or reclamation of low lying, swamp orunhealthy areas or levelling up of land ;

(h)any other prescribed particulars.”

47. draft scheme is to contain particulars of the ownership,

area and tenure of each original plot; reservation, acquisition orallotment of land required under sub-clause (i) of clause (b) of section59 with general indication of the uses to which such land is to be putand the terms and conditions subject to which, such land is to be put tosuch uses; the extent to which it is proposed to alter the boundaries ofthe original plots by reconstitution; full description of all the details ofthe scheme with respect matters referred to in clause (b) of section 59as might be applicable.

48. Section 65 provides as follows:-

“65. Reconstituted plot- (1) In the draft scheme, the size andshape of every reconstituted plot shall be determined, so far

Aas may be, to render it suitable for building purposes, andwhere plot is already built upon, to ensure that the buildingsas far as possible comply with the provisions of the schemeas regards open spaces.

(2) For the purpose of sub-section (1), draft scheme mayBcontain proposals—

(a)to form final plot by reconstitution of an original plotby alteration of the boundaries of the original plot, ifnecessary ;

(b)to form final plot from an original plot by the transferCwholly or partly of the adjoining lands ;

(c)to provide, with the consent of the owners, that two ormore original plots each of which is held in ownershipin severally or in joint ownership shall hereafter, withor without alteration of boundaries be held in ownershipDin common as final plot ;

(d)to allot final plot to any owner dispossessed of landin furtherance of the scheme; and

(e)to transfer the ownership of an original plot from oneperson to another.”E

49. Section 65 provides that in the draft scheme, the size andshape of every reconstituted plot shall be determined, so far as may be,to render it suitable for building purposes, and where plot is alreadybuilt upon, to ensure that the buildings as far as possible comply with theprovisions of the Scheme as regards open spaces. draft scheme mayFcontain proposals to form final plot by reconstitution of an original plot,

if necessary, by alteration of the boundaries of the original plot ; to forma final plot from an original plot by the transfer wholly or partly of theadjoining lands; to provide, with the consent of the owners, that two ormore original plots each of which is held in ownership severally or inGjoint ownership shall with or without alteration of boundaries be held inownership in common; to allot final plot to any owner dispossessed ofland in furtherance of the scheme and to transfer the ownership of anoriginal plot from one person to another.

50. None of the provisions referred to above enable the PlanningHAuthority or any other authority to divest an owner of his/her property.

Rather, Section 64 mandates that draft scheme is to contain particularsof ownership area and tenure of each original plot. Any transfer or anyalteration of boundary, amalgamation or separation has to be with theconsent of the owner in view of the express mandate of Section 65.Implicit in Section 65 is that transfer must be for consideration.

51. Section 66 provides :-

“66. Compensation for discontinuation of use - Where undersub-clause (1) of clause (b) of section 59 the purposes towhich the buildings or areas may not be appropriated or usedin pursuance of clause (m) of section 22 have been specified,then the building or area shall cease to be used for purposeother than the purposes specified in the scheme within suchtime as may be specified in the final scheme, and the personaffected by this provision shall be entitled to suchcompensation from the Planning Authority as may bedetermined by the Arbitrator:

Provided that, in ascertaining whether compensation be paid,the time within which the person affected was permitted tochange 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 officeraforesaid shall, not later than six months [from the date ofthe publication of the notice, in the Official Gazette, regardingthe making of the draft scheme], submit the same with anymodifications which it or he may have made therein togetherwith copy of objections received by it or him to the StateGovernment, and shall at the same time apply for its sanction.

(2) On receiving such application, after making such inquiryas it may think fit and consulting the Director of TownPlanning, the State Government may, not later than [threemonths] from the date of its submission, by notification in theOfficial Gazette, [or not later than such further time as theState Government may extend] either sanction such draftscheme with or without modifications and subject to suchconditions as it may think fit to impose or refuse to givesanction.

A(3) If the State Government sanctions such scheme, it shall insuch modification state at what place and time the draft schemeshall be open to the inspection of the public [and the StateGovernment shall also state therein that copies of the schemeor any extract therefrom certified to be correct shall onapplication be available for sale to the public at reasonableBprice.]”

53. Section 68 empowers the Planning Authority of the StateGovernment to sanction the draft scheme not later than six months.Section 71 provides:-C“71. Disputed ownership:- (1) Where there is disputed claimas to the ownership of any piece of land included in an areain respect of which declaration of intention to make townplanning scheme has been made and any entry in the recordof rights or mutation register relevant to such disputed claimis inaccurate or inconclusive, an inquiry may be held on anDapplication being made by the Planning Authority or theArbitrator at any time prior to the date on which the arbitratordraws up the final scheme under clause (xviii) of sub-section(3) of section 72 by such officer as the State Government mayappoint for the purpose of deciding who shall be deemed toEbe owner for the purposes of this Act.(2) Such decision shall not be subject to appeal but it shallnot operate as bar to regular suit.

(3) Such decision shall, in the event of civil court passing adecree which is inconsistent therewith, be corrected, modifiedFor rescinded in accordance with such decree as soon aspracticable after such decree has been brought to the noticeof the Planning Authority either by the Civil Court or by someperson affected by such decree.

(4) Where such decree of the civil court is passed, afterGfinal scheme has been sanctioned by the State Governmentunder section 86, such final scheme shall be deemed to havebeen suitably varied by reason of such decree.”

54. Section 71 provides that where there is disputed claim as tothe ownership of any piece of land included in an area in respect ofH

which declaration of intention to make Town Planning Scheme hasbeen made, and any entry in the record of rights or mutation registerrelevant to such disputed claim is inaccurate or inconclusive, an inquirymay be held on an application being made by the Planning Authority orthe Arbitrator at any time prior to the date on which the arbitrator drawsup the final scheme under clause (xviii) of sub-section (3) of section 72by such officer as the State Government may appoint for the purpose ofdeciding 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 ofsub-section (2) of the Section 71, the award is not to operate as bar toregular suit. In case there is any decree in Civil Suit, inconsistent withthe Award, the Award is to be connected, modified or rescinded and incase the decree is passed after sanction of final Scheme, such finalscheme is to be deemed to have been suitably varied, by reason of suchdecree.

55. Section 72 of the Regional and Town Planning Act enablesthe State Government to appoint an Arbitrator for the purposes of one ormore planning schemes received by it. Section 73 provides:-

“73. Certain decisions of Arbitrator to be final.- Except inmatters arising out of Section 72, every decision of theArbitrator shall be final and conclusive and binding on allparties 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 forthwithcommunicated to the party concerned including the PlanningAuthority; and any party aggrieved by such decision may,within two months from the date of communication of thedecision, apply to the Arbitrator to make reference to theTribunal of Appeal for decision of the appeal.(2) Theprovisions of sections 5, 12 and 14 of the Indian LimitationAct, 1963 shall apply to appeals submitted under this section.

57. As observed above, in this case there was reference to theArbitrator. The Arbitrator made an award which has assumed finality.The Award has never been questioned, either by the Planning Authority

[2020] 13 S.C.R.

Aor any of the owners. The verdict of the Arbitrator cannot be undone bythe Planning Authority.

58. Section 91 of the Regional and Town Planning Act providesas follows:-

“91. Power to vary schemes on ground of error, irregularityBor informality:- (1) If after the final scheme has come intoforce, the Planning Authority considers that the scheme isdefective on account of an error, irregularity or informalityor that the scheme needs the variation or modification of aminor nature, the Planning Authority may apply in writing toCthe State Government for variation of the scheme.

(2) If, on receiving such application or otherwise, the StateGovernment is satisfied that the variation required is notsubstantial, the State Government shall, by notification in theOfficial Gazette, authorise or direct the Planning AuthorityDto prepare 1[a draft of such variation and publish notice inthe Official Gazette, and in such other manner as may beprescribed stating that draft variation has been prepared.]

(3) 2[The notice of preparation of draft variation published]under sub-section (2) shall state every amendment proposedEto be made in the scheme, and if any such amendment relatesto matter specified in any of the sub-clauses (i) to (iii) ofclause (b) of section 59, the draft variation shall also containsuch other particulars as may be prescribed.

(4) The draft variation shall be open to the inspection of theFpublic at the office of the Planning Authority during officehours and copies of such draft variation or any, extracttherefrom certified to be correct shall be available for sale tothe public at reasonable price.

(5) Not later than one month of the date of the publication ofthe notice regarding preparation of draft variation, anyGperson affected thereby may communicate in writing hisobjections to such variation to the State Government,and senda copy thereof to the Planning Authority.

(6) After receiving the objections under sub-section (5), theState Government may, after consulting the Planning Authority

and after making such inquiry as it may think fit, byAnotification in the Official Gazette,-

(a)appoint an Arbitrator, and thereupon the provisionsof this Chapter shall so far as may be, apply to suchdraft variation, as if it were draft scheme submittedto 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 effectas if it were incorporated in the scheme.”

59. Chapter VII of the Regional and Town Planning Act comprisingSections 125-129 contains provisions for compulsory acquisition of landneeded for the purposes of any Regional Plan, Development Plan orTown Planning Scheme. The Respondent authorities never took recourseto these proceedings to acquire any part of Plot No.473 B3, 473 B4 orany other adjacent Plot.

60. Mr. Pallav Sisodia, learned senior counsel appearing for theAppellant trust, assisted by Mr Braj K Mishra, argued, and in our viewrightly, that the Appellant cannot be deprived of the subject strip of landbeing the private road without authority of law, as this would be violationof Article 300-A of the Constitution of India, which prohibits deprivationof person from property without authority of law.

61. Mr. Sisodia submitted that in any case the award made by theArbitrator in 1972 under Section 72 of the Regional and Town PlanningAct stood final and binding. Mr. Sisodia emphatically argued that theaward dated 16.5.1972 of the Arbitrator appointed under the Regionaland Town Planning Act made it clear that the area and ownership of theplots were to be determined as per entries in the Property Register.This award is final and binding under Section 73 of the Regional andTown Planning Act. This is not disputed by the Respondents Sub-divisionin the Regional and Town Planning Act, therefore, has to be as follows:-

“1092 B11025Smt. Kanta Nanda1092 B2603Shri Premal Malhotra

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63. Mr. Sisodia pointed that the change was not preceded orfollowed by any demarcation, re-constitution, determination ofcompensation or any kind of taking over of possession or acquisition byPune Municipal Corporation in accordance with procedure known inlaw, be it under Section 64, 65 read with Section 72 or Section 126 of theERegional and Town Planning Act. This is also not in dispute. As arguedby Mr. Sisodia, Pune Municipal Corporation had on the other hand clearlyadmitted that they had never initiated any proceedings for acquisition orof taking over possession of the private road.

64. Mr. Sisodia submitted that there is no other award of theFArbitrator regarding the plot in question, except the one passed on16.5.1972 showing the plot 1092 B4 to be private road admeasuring444.14 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 smacksof an error apparent in that plot 1094 B4 has been shown as privateroad of the Pune Municipal Corporation.

65. Mr. Sisodia strenuously argued, and in our view rightly, thatthe respondent authorities were duty bound to correct the error in showingplot 414 Sq. mtrs. odd in Plot 1092 B4 as private road of the PuneMunicipal Corporation. Mr. Sisodia argued that this fundamental errorwas the genesis of series of errors which followed subsequently.

66. Mr. Sisodia submitted that although the Appellants were prayingfor rectification of an error, the Pune Municipal Corporation proposedthe variation of the Town Planning Scheme by merging plot No.1092 B4in other adjacent plots being 471 B1, B2 and B3, though there was nosuch prayer by the Appellant.

67. Mr. Sisodia submitted that the Pune Municipal Corporation asalso the State had agreed to accept the simple request of correction ofland records to bring the same to conform to the award made on16.5.1972. Mr. Sisodia submitted that simple prayer for rectification ofrecords has been given the colour of variation in the Town PlanningScheme, and made to appear as if public land of Pune MunicipalCorporation was to be released and plots re-constituted to dis-mantlethe sub-division Form B. Mr. Sisodia emphatically argued that thedocuments enclosed in the paper book would clearly show that neitherthe State, nor the Pune Municipal Corporation, had opposed therectification of the error. This is borne out by records.

68. Mr. Sisodia submitted that the High Court had erred inproceeding on the premise that the subject strip of land had vested inPune Municipal Corporation and could not be released. In doing so, theHigh Court had erroneously applied the deeming provision of Section88(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 toillegally interfere with the subject strip of land which was full of sacredtrees and deities. Mr. Sisodia argued that on proper reading of Section91 of the Regional and Town Planning Act, no further exercise is neededto rectify an error in the present case, except to correct the land recordas per the award referred to above.The artifice of vesting, supposedvariation in Town Planning Scheme, modification of substantial characterare without basis.

69. On the other hand, Mr. Nishant R. Katneshwarkar, learnedcounsel appearing on behalf of the State of Maharashtra argued thatSection 88 contemplates automatic vesting of the properties coming underthe Town Planning Scheme, with the planning authority. Even the PuneMunicipal Corporation cannot seek deletion of the roads as the sameamounts to substantial variation in the Town Planning Scheme.

70. Mr. Katneshwar argued that the High Court has rightlyinterpreted Section 88 and Section 91 of the Regional and Town Planning

AAct and dismissed the writ petition. Deletion of road from TownPlanning Scheme can be said to be variation of substantial nature.Section 91 contemplates minor variation in Town Planning Scheme byfollowing requisite procedure. Mr. Katneswhar argued that pragmaticallyalso modification of the scheme would not be expedient, as futurepurchasers would have no approach road to access their properties asBwould be clear from the map of the said plots.

71. Mr. Katneshwar, by insinuation, questioned the propriety ofthe resolution of the Pune Municipal Corporation and emphasized thatthe corporation did not support its resolution either before the StateGovernment or before the High Court. Mr. Katneswar argued that theCstand of the Corporation in the High Court was correct and beneficial tothe citizens. The photographs of the site would show some trees but thatcannot be ground to stall the development as per the Town PlanningScheme. The deities can be shifted in case they come on the approachroad. Development as per the Town Planning Scheme should be givenDprime importance.

72. In conclusion Mr. Mr. R. Katneshwarkar submitted that theRegional and Town Planning Act is benevolent piece of legislationmeant for providing basic facilities to the people at large. The legislationis made for the people. In support of his arguments Mr. KatneshwarkarEcited Laxminarayan R. Bhattad & Ors. v. State of Maharashtra &Anr.[1]

73. In Laxminarayan R. Bhattad (supra), this Court held thatthe contents of the scheme under the Bombay Town Planning Act nowreplaced by the Maharashtra Regional and Town Planning Act will prevailFover any policy decision taken by the Corporation or by the State.Significantly, in Laxminarayan R. Bhattad (supra), the Arbitrator hadmade an award dated 30.10.1987, while making the Town PlanningScheme whereby final Plot No. 694 admeasuring 1240 square metersand final Plot No. 173 admeasuring 2079 square meters aggregating3319.9 square meters had been allotted in lieu of original Plot No. 433Gbelonging to the Appellant. Further, for acquisition of the said land asalso 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 respectof variation of the Town Planning Scheme has been dismissed by theHigh Court by reasoned judgment, which does not require interference.We are however, of the view that the reasons are misconceived asdiscussed later in the judgment.

75. Mr. Adkar also submitted that the High Court has recorded afinding that the suit land stood vested in the Pune Municipal Corporationin 1979, when the Town Planning Scheme became final. This finding ispatently incorrect.

76. Mr. Adkar argued that the Appellant had itself contended thatin view of the documentary evidence, particularly the city survey recordsand the award of the Arbitrator, the correction in the town planningrecord can be made even de hors Section 91 of the Regional and TownPlanning Act, and accordingly invited this Court to make orders underArticle 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 hadbeen discovered, without leave of this Court. The respondents thereforedid not have occasion to respond to new facts and documents. Mr. Adkarsubmitted that the award or city survey record, now referred to, did notfind reference in the decision of the High Court.The Appellant hadproduced certain documents purportedly issued by certain departmentsof the Corporation for the first time. The Corporation did not haveoccasion to respond to the same.

78. This Court has only proceeded on the basis of pleadings anddocuments in the Special Leave Petition to which the Respondents hadample opportunity to respond. The Award and the City Survey papersare matters of record. The records are in the custody of the Respondents.

79. Mr. Adkar emphasized on the fact that the High Court hadrecorded specific finding regarding ownership of the Corporation as perTown Planning Scheme, with which we are unfortunately unable to agree.He argued that the High Court found that title had statutorily vested inthe Corporation under Section 88 of the Regional and Town PlanningAct and the only method to change or vary the Town Planning Schemewas under Section 91 of the Regional and Town Planning Act.

A80. Mr. Adkar argued that the submission of the Appellant thatthe scheme could be varied de hors Section 91 of the Regional andTown Planning Act, rendered the appeal liable to be dismissed on thatground alone. Mr. Adkar argued that it was settled that the land in questionstood vested in the Pune Municipal Corporation by virtue of Section 88of the Regional and Town Planning Act. Such argument is not sustainableBin law.

81. Mr. Adkar submitted that the Government had rejected theproposal under Section 91 of Regional and Town Planning Act recordingreasons, which cannot be assailed by submissions which were notadvanced either before the Government or before the High Court.TheCaffidavit of the trustees made in this Court for the first time cannot be

examined.

82. Mr. Adkar submitted that Municipal Corporation had tendereda true copy of Form I prepared under Rule 6(V) of the Rules forconsideration of this Court. The copy has been produced from the custodyDof the Corporation and its authenticity has not been questioned either bythe Appellant or by the State.

83. Under the said rules, there are five forms which had to befilled in as the Town Planning Scheme progressed, the final Form beingNo.5 under Rule 13(9). The relevant documents pertaining to proceedingsEof the Town Planning Scheme are in the Town Planning Department ofthe Pune Municipal Corporation and the Town Planning Department ofthe State Government. Mr. Adkar submitted that the content of Form Iindicates that the suit land in question belonged to the Pune MunicipalCorporation even before the Town Planning Scheme came into existenceFin 1979, and as such entry was never questioned or disputed by any ofthe parties for approximately two decades, the Town Planning Schemeought not to be disturbed.

84. There is, however no whisper from the Respondents of anyproceedings, if any, resorted to for transfer of the private road to PuneGMunicipal Corporation, and not even any specific averment by theRespondents that the Appellant had the opportunity to controvert theentries in the Forms in question.

85. Mr. Adkar submitted that Form I not having been questionedfor two decades, it was in the interest of justice that all relevant townplanning proceedings be examined by the competent authority, to examineH

the alleged discrepancy between town planning records, and the citysurvey records, and for that purpose the matter would requireconsideration de novo at the appropriate level.

86. Mr. Adkar submitted that the Town Planning Scheme hasbeen drawn under Section 59 of the Regional and Town Planning Act, togive effect to the proposals in the final development plan. Mr. Adkarsubmitted that Section 68(3) of the Regional and Town Planning Actprovides that the draft scheme should be available for inspection of thepublic. Section 71 of the said Act makes provisions for disputed claimsand under Section 72(4), the Arbitrator while preparing preliminaryscheme has to give notice to all concerned. There are provisions forample opportunity to stakeholders to dispute entries in the scheme. UnderRule 13(3) every interested person is to be given notice. Mr. Adkarargued that in view of the aforesaid provisions and ample opportunity, noperson could be heard to contend after 20 years that he had not been putto notice.

87. Mr. Adkar submitted that it is settled law that if the statuteprescribes procedure, it is to be assumed that the procedure has beenfollowed scrupulously, unless the contrary is shown. Further it is needlessto say in the facts of this case, the Appellant has not been able todemonstrate that the authorities preparing Town Planning Scheme failedto follow the procedure mandated by the statute.

88. Mr. Adkar submitted that the matter should be remanded tothe Government for de novo adjudication to consider all relevant aspectsof the matter. The Corporation respects and reveres the great personalitiesinvolved in the Appellant Trust, and for that reason the present litigationis not adversarial in nature, but in the interest of justice. Proper legalmethod should be followed before arriving at any conclusion one way orthe other. Mr. Adkar’s arguments are untenable, since as recorded inthe judgment and order under appeal, the facts pleaded by the Appellantare not in dispute. At the cost of repetition it is reiterated that the nameof Pune Municipal Corporation was incorporated without recourse toany procedure contemplated under the Regional and Town Planning Act.The Respondents have not produced any materials evincing compliancewith the procedure prescribed under the Regional and Town PlanningAct. The case made out by the Appellant cannot be rejected on thebasis of assumption. Since the parties have been litigating for over

Adecade and half we are not inclined to remit the matter back to theauthority concerned for de novo hearing and decision.

89. Mr. Adkar submitted that reliance was placed by the Appellanton the award for the first time before this Court, on the premise thatthere was no acquisition, and without acquisition or compensation, vestingBof the suit land could not have been effected. Counsel argued that thevesting of property under the Town Planning Scheme was entirelydifferent in nature than acquisition of property under Land AcquisitionAct or under Section 127 of the Regional and Town Planning Act. Insupport of such submission, Mr. Adkar cited Pukhrajmal SagarmalLunkad (D) thru. His Legal heirs and Others v. Municipal Council,CJalgaon and Others.[2]

90. In Pukhrajmal Sagarmal Lunkad (supra), the issue waswhether any land reserved, allotted or designated for any purposespecified in any plan under the Regional and Town Planning Act but notcleared by agreement within 10 years from the date on which the finalDregional plan or final development plan came into force, nor proceedingsunder the Land Acquisition Act, 1894 commenced within such periodand if person interested has served notice on the Planning Authority/Developmental Authority/ Appropriate Authority as the case might beand the land is not cleared within six months of such notice; whether theEallotment will be deemed to be released from reserve in view of theprovisions of Section 127 of the Regional and Town Planning Act. ThisCourt held :-

“11. Before further discussion, we think it just and proper tolook into the definitions of “development plan” and “townFplanning scheme”. Section 2(9) of the MRTP Act defines theterm “development plan” and reads as under:

“2. (9)”Development plan” means plan for thedevelopment or re-development of the area within thejurisdiction of Planning Authority and includes revisionGof development plan and proposals of Special PlanningAuthority for development of land within its jurisdiction.”

The expression town planning scheme is not defined in theAct but under Section 2(30) the word “scheme” is definedas:

“2. (30)”Scheme” includes plan relating to townplanning scheme.”

12. According to Concise Oxford English Dictionary “scheme”means systematic plan or arrangement for attaining someparticular object or putting particular idea into effect. Inthe same dictionary, the term “planning” means planning andcontrol of the construction, growth, and development of atown or other urban area. As such, we may say that the term“planning scheme” means, systematic plan with an objectof planning and control of the construction, growth anddevelopment of town. We also think it relevant to mentionhere that development plans are dealt with under Chapter III,and town planning schemes are dealt with under Chapter Vof the MRTP Act. Section 126 of the Act which is part ofChapter VII, deals with plans as well as schemes, but Section127 does not refer to town planning schemes.

13. Effect of final town planning scheme is provided in Section88 of the MRTP Act which reads (as it existed before 2014),as under:

“88. Effect of final scheme.—On and after the day on whicha final scheme comes into force—

(a)all lands required by the Planning Authority shall,unless it is otherwise determined in such scheme, vestabsolutely in the Planning Authority free from allFencumbrances;

(b)all rights in the original plots which have beenreconstituted shall determine, and the reconstitutedplots shall become subject to the rights settled byarbitrator;

(c)the Planning Authority shall hand over possessionof the final plots to the owners to whom they areallotted in the final scheme.”

xxxxxx

16. In the present case the prayer is made by the appellantsin the writ petitions specifically in respect of Town PlanningScheme III, which was finally sanctioned, as such, we find noerror in the impugned judgment passed by the High Courtdismissing the writ petitions. From the copy of special noticedated 25-4-1980 in Form 4 issued under the Town PlanningScheme Rules (filed as Annexure with the additionaldocuments) and copy of order dated 16-5-1980 passed bythe arbitrator in the aforesaid Rules, it is clear that thecompensation was determined in respect of land in questionunder town planning scheme. The decision of the arbitratorappears to have been published in the Official Gazette dated20-8-1980, 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.Stateof Maharashtra [Girnar Traders v. State of Maharashtra,(2007) 7 SCC 555] to contend that the land is deemed tohave been released after 6 months of the issue of notice underSection 127 of the MRTP Act. The contention of thelandowners cannot be accepted for the reason that thedecision relied on by the landowners to contend that no stepswere taken relates to the “development plan” for which thesteps for acquisition had to be taken as per Section 126. Inthe present case, before the scheme is implemented, theprocedure contemplated under Chapter V is followed tofinalise the scheme. The procedure includes the sanctioningof draft scheme, appointment of arbitrator, issuing notices topersons affected by the scheme, determination ofcompensation by the arbitrator and then the final award madeby the arbitrator. In respect of the land required under townplanning scheme except the development plan, the steps underSection 126 may not require to be resorted to at all. It is clearfrom the record that the draft town planning scheme waspublished in 1976, arbitrator determined the compensationin 1980, the appeal filed before the Tribunal was dismissedin 1987 and the scheme was sent to the Government forsanction in 1988 and it was finally sanctioned in 1993 byfollowing the procedure under Chapter V which is self-contained code for the implementation of the town planningscheme.”

91. In Pukhrajmal Sagarmal Lunkad (supra), compensationhad been determined in respect of the land in question under the TownPlanning Scheme and there was no challenge to the decision of theArbitrator published in the Official Gazette.It was in the backdrop of theaforesaid facts that the High Court/Supreme Court refused to interfere.

92. From the records of the case, particularly the order dated20.8.1970 of sub division of plot number 473B and the award of thearbitrator, it is patently clear that the name of Pune MunicipalCommissioner was at no point of time reflected as holder of the privateroad. There is no whisper as to how the road came to be shown as inpossession of Pune Municipal Commissioner nor of the procedure adoptedfor effecting changes, if any, in the property records.

93. On perusal of the documents, there can be no doubt at all thatthe road in question measuring 444.14 sqm. never belonged to the PuneMunicipal Corporation. In the property records, there was no privateroad. There were three plots 473 B1, B2, B3 and 473B4 shown as vacantland held by the owners of all the three adjacent plots.

94. The Municipal Corporation was never shown as owner of thevacant plot or of any private road. Even assuming that there was anypolicy decision to have an approach road to every plot, it was incumbentupon the authorities concerned to acquire the land. On the other hand,the scheme clearly records that the same was based on entries in propertyrecords, and the award of the arbitrator.

95. As argued by Mr. Sisodia, the Award dated 16th May, 1972 ofthe Arbitrator awarded under the Regional and Town Planning Act madeit clear that the area and ownership of the plots were to be determinedas per entries in the property registered. The Award is being final andbinding under Section 74 on the Planning Authority as also the ownersunder Section 73 of the Regional and Town Planning Act. The sub-division in the Scheme under the Regional and Town Planning Act is asfollows:

96. The right to property may not be fundamental right anylonger, but it is still constitutional right under Article 300A and human

Aright as observed by this Court in Vimlaben Ajitbhai Patel v. VatslabenAshokbhai Patel and Others[3]. In view of the mandate of Article 300Aof the Constitution of India, no person is to be deprived of his propertysave by the authority of law. The appellant trust cannot be deprived ofits property save in accordance with law.

B97. Article 300A of the Constitution of India embodies the doctrineof eminent domain which comprises two parts, (i) possession of propertyin the public interest; and (ii) payment of reasonable compensation. Asheld by this Court in plethora of decisions, including State of Biharand Others v. Project Uchcha Vidya, Sikshak Sangh and Others[4];Jelubhai Nanbhai Khachar and Others v. State of Gujarat and Anr.[5];CBishambhar Dayal Chandra Mohan and Ors. v. State of UttarPradesh and Others[6], the State possesses the power to take or controlthe property of the owner for the benefit of public. When, however, aState so acts it is obliged to compensate the injury by making justcompensation as held by this Court in Girnar Traders v. State ofDMaharashtra and Others[7].

98. It has been established beyond any iota of doubt that the privateroad admeasuring 414 sq. meter area had never been acquired by thePune Municipal Corporation. The right to property includes anyproprietary interest hereditary interest in the right of management of aEreligion endowment, as well as anything acquired by inheritance.However, laudable be the purpose, the Executive cannot deprive personof his property without specific legal authority, which can be establishedin court of law.

99. In case of dispossession except under the authority of law, theFowner might obtain restoration of possession by proceeding forMandamus against the Government as held by this Court in Wazir Chandv. State of Himachal Pradesh[8]. Admittedly, no compensation has beenoffered or paid to the appellant Trust. As observed by this Court in K.T.Plantation Private Limited and Anr. v. State of Karnataka[9], even

G3. (2008) 4 SCC 649 (para 42)4. (2006) 2 SCC 545, 574 (para 69)5. (1995) Suppl. 1 SCC 5966. (1982) 1 SCC 397. (2007) 7 SCC 555 (paras 55 and 56)8. AIR 1954 SC 415H9. (2011) 9 SCC 1

though the right to claim compensation or the obligation of the State topay compensation to person who is deprived of his property is notexpressly provided in Article 300A of the Constitution, it is inbuilt in theArticle. The State seeking to acquire private property for public purposecannot say that no compensation shall be paid. The Regional and TownPlanning Act also does not contemplate deprivation of land holder ofhis land, without compensation. Statutory authorities are bound to payadequate compensation.

100. The High Courts exercising their jurisdiction under Article226 of the Constitution of India, not only have the power to issue Writof Mandamus or in the nature of Mandamus, but are duty bound toexercise such power, where the Government or public authority hasfailed to exercise or has wrongly exercised discretion conferred upon itby Statute, or rule, or policy decision of the Government or hasexercised such discretion malafide, or on irrelevant consideration.

101. In all such cases, the High Court must issue Writ ofMandamus and give directions to compel performance in an appropriateand lawful manner of the discretion conferred upon the Government ora 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 governmentor the public authorities should have passed, had it properly and lawfullyexercised its discretion. In Directors of Settlements, Andhra Pradeshand Others v. M.R. Apparao and Anr.[10]. Pattanaik J. observed:

“One of the conditions for exercising power under Article226 for issuance of mandamus is that the court must cometo the conclusion that the aggrieved person has legal right,which entitles him to any of the rights and that such right hasbeen infringed. In other words, existence of legal right ofa citizen and performance of any corresponding legal dutyby the State or any public authority, could be enforced byissuance of writ of mandamus, “Mandamus” means acommand. It differs form the writs of prohibition or certiorariin its demand for some activity on the part of the body orperson to whom it is addressed. Mandamus is commandissued to direct any person, corporation, inferior courts or

Agovernment, requiring him or them to do some particular thingtherein specified which appertains to his or their office andis in the nature of public duty. mandamus is availableagainst any public authority including administrative and localbodies, and it would lie to any person who is under dutyimposed by statute or by the common law to do particularBact. In order to obtain writ or order in the nature ofmandamus, the applicant has to satisfy that he has legalright to the performance of legal duty by the party againstwhom the mandamus is sought and such right must besubsisting on the date of the petition. The duty that may beCenjoined by mandamus may be one imposed by theConstitution, statute, common law or by rules or ordershaving the force of law.”

103. The Court is duty bound to issue writ of Mandamus forenforcement of public duty. There can be no doubt that an importantDrequisite for issue of Mandamus is that Mandamus lies to enforce alegal duty. This duty must be shown to exist towards the applicant. Astatutory duty must exist before it can be enforced through Mandamus.Unless statutory duty or right can be read in the provision, Mandamuscannot be issued to enforce the same.

E104. The High Court is not deprived of its jurisdiction to entertaina petition under Article 226 merely because in considering the petitioner’sright to relief questions of fact may fall to be determined. In petitionunder Article 226 the High Court has jurisdiction to try issues both offact and law. Exercise of the jurisdiction is, it is true, discretionary, butthe discretion must be exercised on sound judicial principles. ReferenceFmay be made inter alia to the judgments of this Court Gunwant Kaur v.Municipal Committee, Bhatinda[11] and State of Kerala v. M.k. Jose[12].In M.K. Jose (supra), this Court held:-

“16. Having referred to the aforesaid decisions, it is obligatoryon our part to refer to two other authorities of this CourtGwhere it has been opined that under what circumstances adisputed question of fact can be gone into. In Gunwant Kaurv. Municipal Committee, Bhatinda [(1969) 3 SCC 769] , ithas been held thus: (SCC p. 774, paras 14-16)

11. (1969) 3 SCC 769H12. (2015) 9 SCC 433

“14. The High Court observed that they will not determinedisputed question of fact in writ petition. But what factswere in dispute and what were admitted could only bedetermined after an affidavit-in-reply was filed by the State.The High Court, however, proceeded to dismiss the petitionin limine. The High Court is not deprived of its jurisdiction toentertain petition under Article 226 merely because inconsidering the petitioner’s right to relief questions of factmay fall to be determined. In petition under Article 226 theHigh Court has jurisdiction to try issues both of fact and law.Exercise of the jurisdiction is, it is true, discretionary, but thediscretion must be exercised on sound judicial principles. Whenthe petition raises questions of fact of complex nature, whichmay for their determination require oral evidence to be taken,and on that account the High Court is of the view that thedispute may not appropriately be tried in writ petition, theHigh Court may decline to try petition. Rejection of petitionin limine will normally be justified, where the High Court isof the view that the petition is frivolous or because of thenature of the claim made dispute sought to be agitated, orthat the petition against the party against whom relief is claimedis not maintainable or that the dispute raised thereby is suchthat 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 theappellants it is clear that in proof of large number ofallegations the appellants relied upon documentary evidenceand the only matter in respect of which conflict of facts maypossibly arise related to the due publication of the notificationunder Section 4 by the Collector.

16. In the present case, in our judgment, the High Court wasnot justified in dismissing the petition on the ground that itwill not determine disputed question of fact. The High Courthas jurisdiction to determine questions of fact, even if theyare in dispute and the present, in our judgment, is case inwhich in the interests of both the parties the High Court shouldhave entertained the petition and called for an affidavit-inreply from the respondents, and should have proceeded to

ABC

DEF

Atry the petition instead of relegating the appellants to aseparate suit.” (emphasis supplied)

105. In ABL International Ltd. v. Export Credit GuaranteeCorporation of India Ltd.[13], this Court referring to previous judgmentsof this Court including Gunwant Kaur (supra) held: -

“19. Therefore, it is clear from the above enunciation of lawthat merely because one of the parties to the litigation raisesa dispute in regard to the facts of the case, the courtentertaining such petition under Article 226 of theConstitution is not always bound to relegate the parties to aCsuit. In the above case of Gunwant Kaur [(1969) 3 SCC 769]this Court even went to the extent of holding that in writpetition, if the facts require, even oral evidence can be taken.This clearly shows that in an appropriate case, the writ courthas the jurisdiction to entertain writ petition involvingdisputed questions of fact and there is no absolute bar forDentertaining writ petition 2 even if the same arises out of acontractual obligation and/or involves some disputedquestions of fact.

27. From the above discussion of ours, the following legalprinciples emerge as to the maintainability of writ petition:

a)In an appropriate case, writ petition as against aState or an instrumentality of State arising out of acontractual obligation is maintainable.

b)Merely because some disputed questions of fact ariseFfor consideration, same cannot be ground to refuseto entertain writ petition in all cases as matter ofrule;

c)A writ petition involving consequential relief ofmonetary claim is also maintainable.”

G106. In the present case, it is not even in dispute that the privateroad in question did not at any point of time belong to the Pune MunicipalCorporation. 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 thelight of admissions, on the part of the respondent authorities that theprivate road measuring 414 sq. was private property never acquired bythe Pune Municipal Corporation or the State Government, the respondentshad public duty under Section 91 to appropriately modify the schemeand to show the private road as property of its legitimate owners, as perthe property records in existence, and or in the award of the Arbitrator.In our considered opinion, the Bombay High Court erred in law indismissing the Writ Petition with the observation that the land in questionhad vested under Section 88 of the Regional and Town Planning Act.

108. Section 88 of the Regional and Town Planning Act, 1966provides:

“88. Effect of [preliminary scheme].- On and after the dayon which [preliminary scheme] comes into force-

(a)all lands required by the Planning Authority shall,unless it is otherwise determined in such scheme,Dvest absolutely in the Planning Authority free fromall encumbrances;

(b)all rights in the original plots which have beenreconstituted shall determine, and the reconstitutedplots shall become subject to the rights settled byArbitrator;

[(c)***]”

109. Section 88 of the Regional and Town Planning Act cannot beread in isolation. It has to be read with Section 125 to 129 relating tocompulsory acquisition as also Section 59, 69 and 65.

110. Section 125 provides as follows:

“125. Compulsory acquisition of land needed for purposes ofRegional Plan, Development plan or town planning scheme,etc.- Any land required, reserved or designated in Regionalplan, Development plan or town planning scheme for publicpurpose or purposes including plans for any area ofcomprehensive development or for any new town shall bedeemed to be land needed for public purpose [within themeaning of the Right to Fair Compensation and Transparency

Ain 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 andTransparency in Land Acquisition, Rehabilitation andBResettlement Act, 2013 (30 of 2013) shall not be applicablein respect of such lands.]

111. Section 126 stipulates the mode and manner of acquisition ofland acquired to designate in Regional, Development and Town schemefor public purpose and the mode of payment of compensation.

112. Section 127 provides that any land reserved, allotted ordesignated for any purpose specified in any plan under the Regional andTown Planning Act, which is not acquired by agreement within ten yearsfrom the date on which final regional plan or final development plancomes into force, is to be deemed to have lapsed and the land shall beDdeemed to be released from such reservation. Of course by virtue ofsub-section (2) of Section 126 inserted by Amendment by MaharashtraAct No.16 of 2009 on lapsing of reservation or designation of any landunder sub-section (1), the Government shall notify the same by an orderpublished in the Official Gazette. Section 128 enables the Governmentto acquire lands for purpose other than the one for which it is designatedEin any plan or scheme.113. In our considered opinion, the High Court erred in dismissingthe writ petition, misconstruing Section 88 of the Regional and TownPlanning Act, by reading the same in isolation from the other provisionsof the Regional and Town Planning Act, particularly Sections 65, 66, 125Fand 126 thereof.

114. Section 125 read with Section 126 enables the state/Planningauthority to acquire land. On proper construction of Section 88, whenland is acquired for the purposes of Development Scheme, the samevests in the State free from encumbrances. No third party can claim anyGright of easement to the land, or claim any right as an occupier, licensee,tenant, lessee, mortgagee or under any sale agreement. On the otherhand, Section 65 referred to above read with Section 66 protects theinterests of the owners.

115. In the absence of any proceedings for acquisition or forpurchase, no land belonging to the Appellant Trust could have vested inthe State.

116. The High Court also erred in its finding that the modificationproposed involved substantial alteration by deletion of public road andwas therefore impermissible. The modification only involved deletion ofthe name of Pune Municipal Corporation as holder of the private road.The finding that deletion of public road is substantial alteration is, forthe reasons already discussed above, completely baseless.

117. The appeal is therefore allowed, and the Judgment and orderunder appeal is set aside.

118. In exercise of our power under Article 142 of the Constitutionof India to do complete justice between the parties,we direct theRespondent authorities to act in terms of the Award dated 16th May,1972 and delete the name of the Pune Municipal Corporation as ownerof the private road in the records pertaining to the Scheme and carry outsuch other consequential alterations as may be necessary under Section91 of the Regional and Town Planning Act. The appellant trust shallwithin fortnight from the date of this order, give an undertaking to thePlanning Authority not to obstruct access of adjacent plot owners throughthe private road in question. The necessary alteration or modificationunder Section 91, as directed above, shall be carried out within six weeksfrom the date of furnishing of the undertaking by the appellant, as directedabove.

Divya Pandey

Appeal allowed.