Hari Krishna Mandir Trust vs State of Maharashtra and Others

Maharashtra Regional and Town Planning Act, 1966– ss.3,4, 8, 21, 22, 51, 59-65, 68, 71-74, 91; Chapter VII- ss.125-129 – Scheme of the Act – Discussed.

Maharashtra Regional and Town Planning Act, 1966– s.91 – Held: Condition precedent for variation of a scheme u/s.91 is an error, irregularity or informality.

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

Allowing the appeal, the Court

HELD: 1.1 The High Court has apparently misconstrued Section 88, Maharashtra Regional and Town Planning Act, 1966 (‘the Regional and Town Planning Act’) reading the same in a narrow, pedantic manner in isolation from other relevant provisions of the Regional and Town Planning Act, as discussed later in the judgment.The High Court has failed to address the question of how the name of Pune Municipal Corporation could all of a sudden be shown as the owner of the internal road with effect from 4th March 1986, in complete disregard of all records. The High Court has, with the greatest of respect, failed to apply its mind to relevant facts, particularly the records of the Pune Municipal Corporation with regard to property holders, the Arbitrator’s Award dated 16.5.1972 under section 72 of the Regional and Town Planning Act and the admission of Pune Municipal Corporation that the road did not belong to it, it was never acquired and that the name of Pune Municipal Corporation had wrongly been recorded. Rather, the High Court records that the Respondent authorities have not disputed facts in their counter affidavit, but only claimed that the land had vested under Section 88 and that it was not feasible to make changes in the Scheme.The finding of the High Court that it was never the case of the petitioner that the land had not vested, is misconceived. First of all there does not appear to be any admission of vesting on the part of the Appellant Trust. In any case land can only vest in accordance with law. If the land has not vested, a mistaken admission would make no difference, for there can be no estoppel against the Constitution of India, or any statute. Significantly, the High Court has, in its judgment and order under appeal, duly recorded the submission that Pune Municipal Corporation had by its Resolution No. 611 passed on 23rd March, 2006 resolved not to claim any right in respect of Final Plot No.B4. [Paras 2730][336-F-H; 337-A-D]

1.2 The High Court failed to appreciate that the mere sanctioning of a Town Planning Scheme would not wipe out a patently erroneous recording in the scheme. The High Court did not examine how the road measuring 414.14 square meters could have been allotted to Pune Municipal Corporation. Furthermore, the High Court came to the conclusion that since any variation had to be in the light of the provisions of Section 91, the same would be applicable to the given case which would permit only a variation or modification of a minor nature. The High Court found the deletion of a public road from the Town Planning Scheme,to be a variation of a substantial nature, which could not be permitted, since it would be hit by the bar inherent in the Section.The condition precedent for variation of a scheme under Section 91 is an error, irregularity or informality. There can hardly be any doubt that the Scheme smacks of apparent error, irregularity and infirmity in so far as it records Pune Municipal Corporation as the owner of the private road. A variation of the Scheme by recording the name of the true owner cannot be a substantial variation. It is nobody’s case that the road is a public road. The finding of the High Court that the change of a public road into a private road was variation of a substantial nature, is ex facie erroneous and inconsistent with facts as recorded in the judgment and order itself. [Paras 31-33][337-E-H; 338-A-B]

1.3 In 1966 the Maharashtra State Legislature enacted the Regional and Town Planning Act to make provision for planning and development and use of land in Regions established for that purpose, and for the constitution of Regional Planning Boards therefor; to make better provision for the preparation of Development Plans with a view to ensuring that Town Planning Schemes are made in a proper manner and their execution is made effective; to provide for the creation of new towns by means of Development Authorities; to make provisions for the compulsory acquisition of land required for public purposes in respect of the plans; and for purposes connected therewith.Section 3 of the Regional and Town Planning Act, 1966 empowers the State Government to establish by notification any area in the State by defining its limits, to be region for the purposes of the said Act and to name and alter the name of any such region.Section 4 read with Section 8 of the Regional and Town Planning Act provides for the constitution of Regional Planning Boards. [Paras 34-36][338-B-E]

1.4 Section 21 provides that a development plan shall generally indicate the manner in which the use of land in the area of the Planning Authority shall be regulated and also indicate the manner in which the development of land therein shall be carried out. Section 51 of the Regional and Town Planning Act empowers the Planning Authority to revoke or modify any permission to develop as per development plan to such extent as appears to be necessary after giving the person concerned an opportunity of hearing. Section 59 of the Regional and Town Planning Act enables a Planning Authority to prepare Town Planning Schemes for the area within its jurisdiction, or any part thereof, for the purpose of implementing proposals for development. Section 59(b) of the Regional and Town Planning Act provides that a Town Planning Scheme might make provisions for the matters specified in the said Section, which includes, inter alia, proposals for allocating the use of land for residential, industrial, commercial, agricultural or recreational purposes, proposals for designation of lands for public purposes such as schools, colleges and other educational institutions, medical and public health institutions, markets, social welfare and cultural institutions, theaters and places of public entertainment, transport and communications such as roads, highways, railways, waterways, canals, airports etc. water supply, sewage etc. [Paras 37-39][339-F-H; 340-A-C]

1.5 The Town Planning Scheme might also make provisions, apart from the matters specified in Section 22, inter alia, relating to laying out or re-laying out of land, either vacant or already built upon, including areas of comprehensive development ; layout of new streets or roads, construction, diversion, extension, alteration, improvement and closing up of streets and roads etc; the construction, alteration and removal of buildings, bridges and other structures; allotment or reservation of land for open spaces, gardens, recreation grounds, schools, markets, green-belts, dairies, transport facilities and public purposes of all kinds; drainage, including sewerage, surface or sub-soil drainage and sewage disposal; lighting; water supply; preservation of objects of historical or national interest or natural beauty, and of buildings used for religious purposes or other objects. Section 61 enables the Planning Authority to make a draft scheme for an area, in respect of which a declaration is made. In case of failure to make a draft scheme within the period specified in sub-section (1) of Section 61 or within the period as extended by sub-section (3), the declaration is to lapse. However notwithstanding such lapse the Planning Authority is not debarred from making a fresh declaration. The time to make a draft scheme may on an application of the Planning Authority be extended by the State Government, subject to the limitation in Section 61(3) a first declaration. If at any time before a draft scheme is prepared and submitted to the State Government for sanction, the Planning Authority or its officers are of the opinion or on any representation made to them, that an additional area be included within the same scheme, the Planning Authority or the officer may, after informing the State Government and giving notice in the Official Gazette, and also in one or more local newspapers include such additional area in the scheme, and thereupon all the provisions of Sections 59, 60 and 61 are to apply in relation to such additional area as they apply to any original area of the scheme, and draft scheme is to be prepared for the original area and the additional areas. Section 63 of the Regional and Town Planning Act enables the State Government to require any Planning Authority to make and submit and sanction a draft scheme in respect of any land with regard to which a Town Planning Scheme may be made. If the Planning Authority fails to make the declaration of intention to make a scheme within three months from the date of direction made under sub-section (1), the State Government may by notification in the Official Gazette, appoint an officer to make and submit the draft scheme for the land to the State Government [after a notice regarding its making has been duly published as aforesaid] and thereupon the provisions of sections 60, 61 and

62 shall, as far as may be applicable, apply to the making of such a scheme. [Paras 40, 42-45][340-C-E; 342-B-H]

1.6 A draft scheme is to contain particulars of the ownership, area and tenure of each original plot; reservation, acquisition or allotment of land required under sub-clause (i) of clause (b) of section 59 with a general indication of the uses to which such land is to be put and the terms and conditions subject to which, such land is to be put to such uses; the extent to which it is proposed to alter the boundaries of the original plots by reconstitution; a full description of all the details of the scheme with respect matters referred to in clause (b) of section 59 as might be applicable.Section 65 provides that in the draft scheme, the size and shape of every reconstituted plot shall be determined, so far as may be, to render it suitable for building purposes, and where a plot is already built upon, to ensure that the buildings as far as possible comply with the provisions of the Scheme as regards open spaces. A draft scheme may contain proposals to form a final plot by reconstitution of an original plot, if necessary, by alteration of the boundaries of the original plot ; to form a final plot from an original plot by the transfer wholly or partly of the adjoining lands; to provide, with the consent of the owners, that two or more original plots each of which is held in ownership severally or in joint ownership shall with or without alteration of boundaries be held in ownership in common; to allot a final plot to any owner dispossessed of land in furtherance of the scheme and to transfer the ownership of an original plot from one person to another.[Paras 47, 49][343-F-G; 344-E-G]]

1.7 None of the provisions referred to above enable the Planning Authority or any other authority to divest an owner of his/her property. Rather, Section 64 mandates that a draft scheme is to contain particulars of ownership area and tenure of each original plot. Any transfer or any alteration of boundary, amalgamation or separation has to be with the consent of the owner in view of the express mandate of Section 65. Implicit in Section 65 is that a transfer must be for consideration.Section 68 empowers the Planning Authority of the State Government to sanction the draft scheme not later than six months. Section 71 provides that where there is disputed claim as to the ownership of any piece of land included in an area in respect of which a declaration of intention to make a Town Planning Scheme has been made, and any entry in the record of rights or mutation register relevant to such disputed claim is inaccurate or inconclusive, an inquiry may be held on an application being made by the Planning Authority or the Arbitrator at any time prior to the date on which the arbitrator draws up the final scheme under clause (xviii) of sub-section (3) of section 72 by such officer as the State Government may appoint for the purpose of deciding who shall be deemed to be owner for the purposes of this Act. Although the decision of the Arbitrator is not subject to appeal in view of sub-section (2) of the Section 71, the award is not to operate as a bar to regular suit. In case there is any decree in a Civil Suit, inconsistent with the Award, the Award is to be connected, modified or rescinded and in case the decree is passed after sanction of a final Scheme, such final scheme is to be deemed to have been suitably varied, by reason of such decree.Section

72 of the Regional and Town Planning Act enables the State Government to appoint an Arbitrator for the purposes of one or more planning schemes received by it. [Paras 50, 53-55][344-H; 345-A-B; 346-B-C, H; 347-A-D]

1.8 In this case there was a reference to the Arbitrator.The Arbitrator made an award which has assumed finality. The Award has never been questioned, either by the Planning Authority or any of the owners. The verdict of the Arbitrator cannot be undone by the Planning Authority.Chapter VII of the Regional and Town Planning Act comprising Sections 125-129 contains provisions for compulsory acquisition of land needed for the purposes of any Regional Plan, Development Plan or Town Planning Scheme. The Respondent authorities never took recourse to these proceedings to acquire any part of Plot No.473 B3, 473 B4 or any other adjacent Plot. The Appellant cannot be deprived of the subject strip of land being the private road without authority of law, as this would be a violation of Article 300-A of the Constitution of India, which prohibits deprivation of person from property without authority of law.[Paras 57, 59 and 60][347-G-H; 349-D, E]

1.9 On perusal of the documents, there can be no doubt at all that the road in question measuring 444.14 sqm. never belonged to the Pune Municipal Corporation. In the property records, there was no private road. There were three plots 473 B1, B2, B3 and 473B4 shown as vacant land held by the owners of all the three adjacent plots. The Municipal Corporation was never shown as owner of the vacant plot or of any private road. Even assuming that there was any policy decision to have an approach road to every plot, it was incumbent upon the authorities concerned to acquire the land. On the other hand, the scheme clearly records that the same was based on entries in property records, and the award of the arbitrator. [Paras 93, 94][359-C-E]

1.10 The right to property may not be a fundamental right any longer, but it is still a constitutional right under Article 300A and a human right. In view of the mandate of Article 300A of the Constitution of India, no person is to be deprived of his property save by the authority of law. The appellant trust cannot be deprived of its property save in accordance with law. Article 300A of the Constitution of India embodies the doctrine of eminent domain which comprises two parts, (i) possession of property in the public interest; and (ii) payment of reasonable compensation. It has been established beyond any iota of doubt that the private road admeasuring 414 sq. meter area had never been acquired by the Pune Municipal Corporation.The right to property includes any proprietary interest hereditary interest in the right of management of a religion endowment, as well as anything acquired by inheritance. However, laudable be the purpose, the Executive cannot deprive a person of his property without specific legal authority, which can be established in a court of law. In case of dispossession except under the authority of law, the owner might obtain restoration of possession by a proceeding for Mandamus against the Government. Admittedly, no compensation has been offered or paid to the appellant Trust. The Regional and Town Planning Act also does not contemplate deprivation of a land holder of his land, without compensation. Statutory authorities are bound to pay adequate compensation. [Paras 96-99][359-H; 360-A-C; D-G; 361-B]

Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and Others (2008) 4 SCC 649 : [ 2008] 4 SCR 1077; State of Bihar and Others v. Project Uchcha Vidya, Sikshak Sangh and Others (2006) 2 SCC 545, 574 : [2006] 1 SCR 14; Jelubhai Nanbhai Khachar and Others v. State of Gujarat and Anr. (1995) Suppl. 1 SCC

596 : [ 1994] 1 Suppl. SCR 807; Bishambhar Dayal Chandra Mohan and Ors. v. State of Uttar Pradesh and Others (1982) 1 SCC 39; [1982] 1 SCR 1137; Girnar Traders v. State of Maharashtra and Others (2007) 7 SCC 555; Wazir Chand v. State of Himachal Pradesh AIR 1954 SC 415 : [1955] SCR 408; K.T. Plantation Private Limited and Anr. v. State of Karnataka (2011) 9 SCC 1: [2011] 13 SCR 636 – relied on.

2.The High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the Government or has exercised such discretion malafide, or on irrelevant consideration.In all such cases, the High Court must issue a Writ of Mandamus and give directions to compel performance in an appropriate and lawful manner of the discretion conferred upon the Government or a public authority. In appropriate cases, in order to prevent injustice to the parties, the Court may itself pass an order or give directions which the government or the public authorities should have passed, had it properly and lawfully exercised its discretion.The Court is duty bound to issue a writ of Mandamus for enforcement of a public duty. There can be no doubt that an important requisite for issue of Mandamus is that Mandamus lies to enforce a legal duty. This duty must be shown to exist towards the applicant. A statutory duty must exist before it can be enforced through Mandamus. Unless a statutory duty or right can be read in the provision, Mandamus cannot be issued to enforce the same.The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner’s right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles.[Paras 100-104][361-B-E; 362-D-F]

Directors of Settlements, Andhra Pradesh and Others v. M.R. Apparao and Anr. (2002) 4 SCC 638: [ 2002]

2 SCR 661 – relied on.

Gunwant Kaur v. Municipal Committee, Bhatinda (1969) 3 SCC 769; State of Kerala v. M.K. Jose (2015)

9 SCC 433 : [2015] 9 SCR 17; ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd. (2004) 3 SCC 553 – referred to.

3.1 In the present case, it is not even in dispute that the private road in question did not at any point of time belong to the Pune Municipal Corporation. It is shown to be held by the holders by adjacent Plot Nos. 473 B1, 473 B2 and 473 B3. In the facts and circumstances of the instant case, in the light of admissions, on the part of the respondent authorities that the private road measuring 414 sq. was private property never acquired by the Pune Municipal Corporation or the State Government, the respondents had a public duty under Section 91 to appropriately modify the scheme and to show the private road as property of its legitimate owners, as per the property records in existence, and or in the award of the Arbitrator. The Bombay High Court erred in law in dismissing the Writ Petition with the observation that the land in question had vested under Section 88 of the Regional and Town Planning Act. Section 88 of the Regional and Town Planning Act cannot be read in isolation. It has to be read with Section 125 to 129 relating to compulsory acquisition as also Section 59, 69 and 65.[Paras 106, 107 and 109][364-G-H; 365-AC; E-F]

3.2 The High Court erred in dismissing the writ petition, misconstruing Section 88 of the Regional and Town Planning Act, by reading the same in isolation from the other provisions of the Regional and Town Planning Act, particularly Sections 65, 66,

125 and 126 thereof. Section 125 read with Section 126 enables the state/Planning authority to acquire land. On a proper construction of Section 88, when land is acquired for the purposes of a Development Scheme, the same vests in the State free from encumbrances. No third party can claim any right of easement to the land, or claim any right as an occupier, licensee, tenant, lessee, mortgagee or under any sale agreement. On the other hand, Section 65 referred to above read with Section 66 protects the interests of the owners.In the absence of any proceedings for acquisition or for purchase, no land belonging to the Appellant Trust could have vested in the State. The High Court also erred in its finding that the modification proposed involved substantial alteration by deletion of a public road and was therefore impermissible. The modification only involved deletion of the name of Pune Municipal Corporation as holder of the private road. The finding that deletion of a public road is a substantial alteration is, for the reasons already discussed above, completely baseless. The Judgment and order under appeal is set aside. [Paras 113-117][366-E-H; 367-A-C]

Laxminarayan R. Bhattad & Ors. v. State of

Maharashtra & Anr. (2003) 5 SCC 413 : [2003] 3 SCR 409;Pukhrajmal Sagarmal Lunkad (D) thru. His Legal heirs and Others v. Municipal Council, Jalgaon and Others (2017) 2 SCC 722 : [2017] 2 SCR 333– distinguished.