# HARI KRISHNA MANDIR TRUST v. STATE OF MAHARASHTRA AND OTHERS

- **Citation:** [2020] 13 S.C.R. 318
- **Court:** Supreme Court of India
- **Decided:** 2020-08-07
- **Case number:** Civil Appeal No. 6156 OF 2013
- **Bench:** Indu Malhotra, Indira Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hari-krishna-mandir-trust-v-state-of-maharashtra-and-others-34560
- **Pages:** 50

## Headnote

Maharashtra Regional and Town Planning Act, 1966- ss.88,
91, 59, 65, 69 and 125-129-'DKR' and 'ID' were recorded in the
revenue records as owners of Plot No.473 in 1959 - Plot divided in
1970-Plot No.473-B1 was owned by 'KN', Plot No.473-B2 by 'PM',
and Plot No.473-B3 by 'DKR'and 'ID', Plot No. 473-B4, a vacant
plot of land was shown as an Internal Private Road measuring
444.14 Sq. mtr. in the possession of 'DKR','ID', 'KN' and 'PM'-
Development Scheme proposed under the 1966 Act including Final
Plot No.473 - Arbitrator appointed, directed the area and ownership
of the plots to be as per entries in the property register-In 1979, the
Town Planning Scheme was sanctioned and came into effect- In 'B'
Form, Final Plot No.473 was shown to have been divided into five
parts with road measuring 444.14 Sq. mtr. to be owned by Pune
Municipal Corporation (PMC) - 'ID'executed a registered trust
deed constituting the appellant-trust and transferring Plot no.473B3 and the internal road to them - Appellant requested the State
Govt. to correct the wrong entry in the name of PMC-Eventually,
Urban Development Department,Govt.of Maharashtra rejected the
proposal for modification of the scheme u/s.91inter alia finding that
PMC was the owner of the land -Appellants filed writ petition -
Dismissed -On appeal, held: High Court failed to apply its mind to
the records of PMC w.r.t property holders,the Arbitrator's Award
which had assumed finality- Admittedly, the private road in question
did not belong to PMC, was never acquired and the name of PMC
was wronglyrecorded - In the light of admissions, respondents had
a public duty u/s.91 to appropriately modify the scheme and to show
the private road as property of its legitimate owners-High Court
erred in law in dismissing the Writ Petition with the observation that
the land in question had vested u/s.88 in PMC - s.88 cannot be
read in isolation - It has to be r/w ss.125-129 relating to compulsory
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acquisition as also ss.59, 69 and 65-Appellant cannot be deprived
of the land being the private road without authority of law in
violation of Art.300 - A prohibiting deprivation of person from
property without authority of law - Impugned judgment set aside -
Constitution of India - Arts.300-A, 142, 226.
Maharashtra Regional and Town Planning Act, 1966- ss.3,4,
8, 21, 22, 51, 59-65, 68, 71-74, 91; Chapter VII- ss.125-129 -
Scheme of the Act - Discussed.
Maharashtra Regional and Town Planning Act, 1966- s.91 -
Held: Condition precedent for variation of a scheme u/s.91 is an
error, irregularity or informality.
Constitution of India - Art.226 -Jurisdiction under - Duty of
High Courts- Discussed.
Allowing the appeal, the Court
HELD: 1.1 The High Court has apparently misconstrued
Section 88, Maharashtra Regional and Town Planning Act, 1966
('the Regional and Town Planning Act') reading the same in a
narrow, pedantic manner in isolation from other relevant
provisions of the Regional and Town Planning Act, as discussed
later in the judgment.The High Court has failed to address the
question of how the name of Pune Municipal Corporation could
all of a sudden be shown as the owner of the internal road with
effect from 4th March 1986, in complete disregard of all records.
The High Court has, with the greatest of respect, failed to apply
its mind to relevant facts, particularly the records of the Pune
Municipal Corporation with regard to property holders, the
Arbitrator's Award dated 16.5.1972 under section 72 of the
Regional and Town Planning Act and the admission of Pune
Municipal Corporation that the road did not belong to it, it was
never acquired and that the name of Pune Municipal Corporation
had wrongly been recorded. Rather, the High Court records that
the Respondent authorities have not disputed facts in their
counter affidavit, but only claimed that the land had vested under
Section 88 and that it was not feasible to make changes in the
Scheme.The finding of the High Court that it was never

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 [2020] 13 S.C.R. 318
HARI KRISHNA MANDIR TRUST
 v.
STATE OF MAHARASHTRA AND OTHERS
(Civil Appeal No. 6156 OF 2013)
August 07, 2020
[INDU MALHOTRA AND INDIRA BANERJEE, JJ.]
Maharashtra Regional and Town Planning Act, 1966- ss.88,
91, 59, 65, 69 and 125-129-'DKR' and 'ID' were recorded in the
revenue records as owners of Plot No.473 in 1959 - Plot divided in
1970-Plot No.473-B1 was owned by 'KN', Plot No.473-B2 by 'PM',
and Plot No.473-B3 by 'DKR'and 'ID', Plot No. 473-B4, a vacant
plot of land was shown as an Internal Private Road measuring
444.14 Sq. mtr. in the possession of 'DKR','ID', 'KN' and 'PM'-
Development Scheme proposed under the 1966 Act including Final
Plot No.473 - Arbitrator appointed, directed the area and ownership
of the plots to be as per entries in the property register-In 1979, the
Town Planning Scheme was sanctioned and came into effect- In 'B'
Form, Final Plot No.473 was shown to have been divided into five
parts with road measuring 444.14 Sq. mtr. to be owned by Pune
Municipal Corporation (PMC) - 'ID'executed a registered trust
deed constituting the appellant-trust and transferring Plot no.473B3 and the internal road to them - Appellant requested the State
Govt. to correct the wrong entry in the name of PMC-Eventually,
Urban Development Department,Govt.of Maharashtra rejected the
proposal for modification of the scheme u/s.91inter alia finding that
PMC was the owner of the land -Appellants filed writ petition -
Dismissed -On appeal, held: High Court failed to apply its mind to
the records of PMC w.r.t property holders,the Arbitrator's Award
which had assumed finality- Admittedly, the private road in question
did not belong to PMC, was never acquired and the name of PMC
was wronglyrecorded - In the light of admissions, respondents had
a public duty u/s.91 to appropriately modify the scheme and to show
the private road as property of its legitimate owners-High Court
erred in law in dismissing the Writ Petition with the observation that
the land in question had vested u/s.88 in PMC - s.88 cannot be
read in isolation - It has to be r/w ss.125-129 relating to compulsory
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acquisition as also ss.59, 69 and 65-Appellant cannot be deprived
of the land being the private road without authority of law in
violation of Art.300 - A prohibiting deprivation of person from
property without authority of law - Impugned judgment set aside -
Constitution of India - Arts.300-A, 142, 226.
Maharashtra Regional and Town Planning Act, 1966- ss.3,4,
8, 21, 22, 51, 59-65, 68, 71-74, 91; Chapter VII- ss.125-129 -
Scheme of the Act - Discussed.
Maharashtra Regional and Town Planning Act, 1966- s.91 -
Held: Condition precedent for variation of a scheme u/s.91 is an
error, irregularity or informality.
Constitution of India - Art.226 -Jurisdiction under - Duty of
High Courts- Discussed.
Allowing the appeal, the Court
HELD: 1.1 The High Court has apparently misconstrued
Section 88, Maharashtra Regional and Town Planning Act, 1966
('the Regional and Town Planning Act') reading the same in a
narrow, pedantic manner in isolation from other relevant
provisions of the Regional and Town Planning Act, as discussed
later in the judgment.The High Court has failed to address the
question of how the name of Pune Municipal Corporation could
all of a sudden be shown as the owner of the internal road with
effect from 4th March 1986, in complete disregard of all records.
The High Court has, with the greatest of respect, failed to apply
its mind to relevant facts, particularly the records of the Pune
Municipal Corporation with regard to property holders, the
Arbitrator's Award dated 16.5.1972 under section 72 of the
Regional and Town Planning Act and the admission of Pune
Municipal Corporation that the road did not belong to it, it was
never acquired and that the name of Pune Municipal Corporation
had wrongly been recorded. Rather, the High Court records that
the Respondent authorities have not disputed facts in their
counter affidavit, but only claimed that the land had vested under
Section 88 and that it was not feasible to make changes in the
Scheme.The finding of the High Court that it was never the case
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of the petitioner that the land had not vested, is misconceived.
First of all there does not appear to be any admission of vesting
on the part of the Appellant Trust. In any case land can only vest
in accordance with law. If the land has not vested, a mistaken
admission would make no difference, for there can be no estoppel
against the Constitution of India, or any statute. Significantly, the
High Court has, in its judgment and order under appeal, duly
recorded the submission that Pune Municipal Corporation had
by its Resolution No. 611 passed on 23rd March, 2006 resolved
not to claim any right in respect of Final Plot No.B4. [Paras 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
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and development and use of land in Regions established for that
purpose, and for the constitution of Regional Planning Boards
therefor; to make better provision for the preparation of
Development Plans with a view to ensuring that Town Planning
Schemes are made in a proper manner and their execution is
made effective; to provide for the creation of new towns by means
of Development Authorities; to make provisions for the
compulsory acquisition of land required for public purposes in
respect of the plans; and for purposes connected
therewith.Section 3 of the Regional and Town Planning Act, 1966
empowers the State Government to establish by notification any
area in the State by defining its limits, to be region for the
purposes of the said Act and to name and alter the name of any
such region.Section 4 read with Section 8 of the Regional and
Town Planning Act provides for the constitution of Regional
Planning Boards. [Paras 34-36][338-B-E]
1.4 Section 21 provides that a development plan shall
generally indicate the manner in which the use of land in the area
of the Planning Authority shall be regulated and also indicate the
manner in which the development of land therein shall be carried
out. Section 51 of the Regional and Town Planning Act empowers
the Planning Authority to revoke or modify any permission to
develop as per development plan to such extent as appears to be
necessary after giving the person concerned an opportunity of
hearing. Section 59 of the Regional and Town Planning Act enables
a Planning Authority to prepare Town Planning Schemes for the
area within its jurisdiction, or any part thereof, for the purpose of
implementing proposals for development. Section 59(b) of the
Regional and Town Planning Act provides that a Town Planning
Scheme might make provisions for the matters specified in the
said Section, which includes, inter alia, proposals for allocating
the use of land for residential, industrial, commercial, agricultural
or recreational purposes, proposals for designation of lands for
public purposes such as schools, colleges and other educational
institutions, medical and public health institutions, markets, social
welfare and cultural institutions, theaters and places of public
entertainment, transport and communications such as roads,
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highways, railways, waterways, canals, airports etc. water supply,
sewage etc. [Paras 37-39][339-F-H; 340-A-C]
1.5 The Town Planning Scheme might also make provisions,
apart from the matters specified in Section 22, inter alia, relating
to laying out or re-laying out of land, either vacant or already
built upon, including areas of comprehensive development ; layout
of new streets or roads, construction, diversion, extension,
alteration, improvement and closing up of streets and roads etc;
the construction, alteration and removal of buildings, bridges and
other structures; allotment or reservation of land for open spaces,
gardens, recreation grounds, schools, markets, green-belts,
dairies, transport facilities and public purposes of all kinds;
drainage, including sewerage, surface or sub-soil drainage and
sewage disposal; lighting; water supply; preservation of objects
of historical or national interest or natural beauty, and of buildings
used for religious purposes or other objects. Section 61 enables
the Planning Authority to make a draft scheme for an area, in
respect of which a declaration is made. In case of failure to make
a draft scheme within the period specified in sub-section (1) of
Section 61 or within the period as extended by sub-section (3),
the declaration is to lapse. However notwithstanding such lapse
the Planning Authority is not debarred from making a fresh
declaration. The time to make a draft scheme may on an
application of the Planning Authority be extended by the State
Government, subject to the limitation in Section 61(3) a first
declaration. If at any time before a draft scheme is prepared and
submitted to the State Government for sanction, the Planning
Authority or its officers are of the opinion or on any representation
made to them, that an additional area be included within the same
scheme, the Planning Authority or the officer may, after informing
the State Government and giving notice in the Official Gazette,
and also in one or more local newspapers include such additional
area in the scheme, and thereupon all the provisions of Sections
59, 60 and 61 are to apply in relation to such additional area as
they apply to any original area of the scheme, and draft scheme is
to be prepared for the original area and the additional areas.
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Section 63 of the Regional and Town Planning Act enables the
State Government to require any Planning Authority to make and
submit and sanction a draft scheme in respect of any land with
regard to which a Town Planning Scheme may be made. If the
Planning Authority fails to make the declaration of intention to
make a scheme within three months from the date of direction
made under sub-section (1), the State Government may by
notification in the Official Gazette, appoint an officer to make and
submit the draft scheme for the land to the State Government
[after a notice regarding its making has been duly published as
aforesaid] and thereupon the provisions of sections 60, 61 and
62 shall, as far as may be applicable, apply to the making of such
a scheme. [Paras 40, 42-45][340-C-E; 342-B-H]
1.6 A draft scheme is to contain particulars of the ownership,
area and tenure of each original plot; reservation, acquisition or
allotment of land required under sub-clause (i) of clause (b) of
section 59 with a general indication of the uses to which such
land is to be put and the terms and conditions subject to which,
such land is to be put to such uses; the extent to which it is
proposed to alter the boundaries of the original plots by
reconstitution; a full description of all the details of the scheme
with respect matters referred to in clause (b) of section 59 as
might be applicable.Section 65 provides that in the draft scheme,
the size and shape of every reconstituted plot shall be determined,
so far as may be, to render it suitable for building purposes, and
where a plot is already built upon, to ensure that the buildings as
far as possible comply with the provisions of the Scheme as
regards open spaces. A draft scheme may contain proposals to
form a final plot by reconstitution of an original plot, if necessary,
by alteration of the boundaries of the original plot ; to form a final
plot from an original plot by the transfer wholly or partly of the
adjoining lands; to provide, with the consent of the owners, that
two or more original plots each of which is held in ownership
severally or in joint ownership shall with or without alteration of
boundaries be held in ownership in common; to allot a final plot
to any owner dispossessed of land in furtherance of the scheme
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and to transfer the ownership of an original plot from one person
to another.[Paras 47, 49][343-F-G; 344-E-G]]
1.7 None of the provisions referred to above enable the
Planning Authority or any other authority to divest an owner of
his/her property. Rather, Section 64 mandates that a draft scheme
is to contain particulars of ownership area and tenure of each
original plot. Any transfer or any alteration of boundary,
amalgamation or separation has to be with the consent of the
owner in view of the express mandate of Section 65. Implicit in
Section 65 is that a transfer must be for consideration.Section 68
empowers the Planning Authority of the State Government to
sanction the draft scheme not later than six months. Section 71
provides that where there is disputed claim as to the ownership
of any piece of land included in an area in respect of which a
declaration of intention to make a Town Planning Scheme has
been made, and any entry in the record of rights or mutation
register relevant to such disputed claim is inaccurate or
inconclusive, an inquiry may be held on an application being made
by the Planning Authority or the Arbitrator at any time prior to
the date on which the arbitrator draws up the final scheme under
clause (xviii) of sub-section (3) of section 72 by such officer as
the State Government may appoint for the purpose of deciding
who shall be deemed to be owner for the purposes of this Act.
Although the decision of the Arbitrator is not subject to appeal in
view of sub-section (2) of the Section 71, the award is not to
operate as a bar to regular suit. In case there is any decree in a
Civil Suit, inconsistent with the Award, the Award is to be
connected, modified or rescinded and in case the decree is passed
after sanction of a final Scheme, such final scheme is to be deemed
to have been suitably varied, by reason of such decree.Section
72 of the Regional and Town Planning Act enables the State
Government to appoint an Arbitrator for the purposes of one or
more planning schemes received by it. [Paras 50, 53-55][344-H;
345-A-B; 346-B-C, H; 347-A-D]
1.8 In this case there was a reference to the Arbitrator.The
Arbitrator made an award which has assumed finality. The Award
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has never been questioned, either by the Planning Authority or
any of the owners. The verdict of the Arbitrator cannot be undone
by the Planning Authority.Chapter VII of the Regional and Town
Planning Act comprising Sections 125-129 contains provisions
for compulsory acquisition of land needed for the purposes of
any Regional Plan, Development Plan or Town Planning Scheme.
The Respondent authorities never took recourse to these
proceedings to acquire any part of Plot No.473 B3, 473 B4 or any
other adjacent Plot. The Appellant cannot be deprived of the
subject strip of land being the private road without authority of
law, as this would be a violation of Article 300-A of the Constitution
of India, which prohibits deprivation of person from property
without authority of law.[Paras 57, 59 and 60][347-G-H; 349-D,
E]
1.9 On perusal of the documents, there can be no doubt at
all that the road in question measuring 444.14 sqm. never
belonged to the Pune Municipal Corporation. In the property
records, there was no private road. There were three plots 473
B1, B2, B3 and 473B4 shown as vacant land held by the owners
of all the three adjacent plots. The Municipal Corporation was
never shown as owner of the vacant plot or of any private road.
Even assuming that there was any policy decision to have an
approach road to every plot, it was incumbent upon the authorities
concerned to acquire the land. On the other hand, the scheme
clearly records that the same was based on entries in property
records, and the award of the arbitrator. [Paras 93, 94][359-C-E]
1.10 The right to property may not be a fundamental right
any longer, but it is still a constitutional right under Article 300A
and a human right. In view of the mandate of Article 300A of the
Constitution of India, no person is to be deprived of his property
save by the authority of law. The appellant trust cannot be deprived
of its property save in accordance with law. Article 300A of the
Constitution of India embodies the doctrine of eminent domain
which comprises two parts, (i) possession of property in the public
interest; and (ii) payment of reasonable compensation. It has been
established beyond any iota of doubt that the private road
admeasuring 414 sq. meter area had never been acquired by the
Pune Municipal Corporation.The right to property includes any
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proprietary interest hereditary interest in the right of management
of a religion endowment, as well as anything acquired by
inheritance. However, laudable be the purpose, the Executive
cannot deprive a person of his property without specific legal
authority, which can be established in a court of law. In case of
dispossession except under the authority of law, the owner might
obtain restoration of possession by a proceeding for Mandamus
against the Government. Admittedly, no compensation has been
offered or paid to the appellant Trust. The Regional and Town
Planning Act also does not contemplate deprivation of a land
holder of his land, without compensation. Statutory authorities
are bound to pay adequate compensation. [Paras 96-99][359-H;
360-A-C; D-G; 361-B]
Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel
and Others (2008) 4 SCC 649 : [ 2008] 4 SCR 1077;
State of Bihar and Others v. Project Uchcha Vidya,
Sikshak Sangh and Others (2006) 2 SCC 545, 574 :
[2006] 1 SCR 14; Jelubhai Nanbhai Khachar and
Others v. State of Gujarat and Anr. (1995) Suppl. 1 SCC
596 : [ 1994] 1 Suppl. SCR 807; Bishambhar Dayal
Chandra Mohan and Ors. v. State of Uttar Pradesh and
Others (1982) 1 SCC 39; [1982] 1 SCR 1137; Girnar
Traders v. State of Maharashtra and Others (2007) 7
SCC 555; Wazir Chand v. State of Himachal Pradesh
AIR 1954 SC 415 : [1955] SCR 408; K.T. Plantation
Private Limited and Anr. v. State of Karnataka (2011) 9
SCC 1: [2011] 13 SCR 636 - relied on.
2.The High Courts exercising their jurisdiction under
Article 226 of the Constitution of India, not only have the power
to issue a Writ of Mandamus or in the nature of Mandamus, but
are duty bound to exercise such power, where the Government
or a public authority has failed to exercise or has wrongly
exercised discretion conferred upon it by a Statute, or a rule, or
a policy decision of the Government or has exercised such
discretion malafide, or on irrelevant consideration.In all such
cases, the High Court must issue a Writ of Mandamus and give
directions to compel performance in an appropriate and lawful
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manner of the discretion conferred upon the Government or a
public authority. In appropriate cases, in order to prevent injustice
to the parties, the Court may itself pass an order or give directions
which the government or the public authorities should have
passed, had it properly and lawfully exercised its discretion.The
Court is duty bound to issue a writ of Mandamus for enforcement
of a public duty. There can be no doubt that an important requisite
for issue of Mandamus is that Mandamus lies to enforce a legal
duty. This duty must be shown to exist towards the applicant. A
statutory duty must exist before it can be enforced through
Mandamus. Unless a statutory duty or right can be read in the
provision, Mandamus cannot be issued to enforce the same.The
High Court is not deprived of its jurisdiction to entertain a petition
under Article 226 merely because in considering the petitioner's
right to relief questions of fact may fall to be determined. In a
petition under Article 226 the High Court has jurisdiction to try
issues both of fact and law. Exercise of the jurisdiction is, it is
true, discretionary, but the discretion must be exercised on sound
judicial principles.[Paras 100-104][361-B-E; 362-D-F]
Directors of Settlements, Andhra Pradesh and Others
v. M.R. Apparao and Anr. (2002) 4 SCC 638: [ 2002]
2 SCR 661 - relied on.
Gunwant Kaur v. Municipal Committee, Bhatinda
(1969) 3 SCC 769; State of Kerala v. M.K. Jose (2015)
9 SCC 433 : [2015] 9 SCR 17; ABL International Ltd.
v. Export Credit Guarantee Corporation of India Ltd.
(2004) 3 SCC 553 - referred to.
3.1 In the present case, it is not even in dispute that the
private road in question did not at any point of time belong to the
Pune Municipal Corporation. It is shown to be held by the holders
by adjacent Plot Nos. 473 B1, 473 B2 and 473 B3. In the facts
and circumstances of the instant case, in the light of admissions,
on the part of the respondent authorities that the private road
measuring 414 sq. was private property never acquired by the
Pune Municipal Corporation or the State Government, the
respondents had a public duty under Section 91 to appropriately
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modify the scheme and to show the private road as property of
its legitimate owners, as per the property records in existence,
and or in the award of the Arbitrator. The Bombay High Court
erred in law in dismissing the Writ Petition with the observation
that the land in question had vested under Section 88 of the
Regional and Town Planning Act. Section 88 of the Regional and
Town Planning Act cannot be read in isolation. It has to be read
with Section 125 to 129 relating to compulsory acquisition as also
Section 59, 69 and 65.[Paras 106, 107 and 109][364-G-H; 365-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
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and Others (2017) 2 SCC 722 : [2017] 2 SCR 333distinguished.
Case Law Reference
[2003] 3 SCR 409
distinguished
Para 72
[2017] 2 SCR 333
distinguished
Para 89
[2008] 4 SCR 1077
relied on
Para 96
[2006] 1 SCR 14
relied on
Para 97
[1994] 1 Suppl. SCR 807
relied on
Para 97
[1982] 1 SCR 1137
relied on
Para 97
(2007) 7 SCC 555
relied on
Para 97
[1955] SCR 408
relied on
Para 97
[2011] 13 SCR 636
relied on
Para 99
[2002] 2 SCR 661
relied on
Para 102
(1969) 3 SCC 769
referred to
Para 104
[2015] 9 SCR 17
referred to
Para 104
(2004) 3 SCC 553
referred to
Para 105
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6156
of 2013
From the Judgment and Order dated 15.09.2008 of the High Court
of Judicature at Bombay in Writ Petition No. 904 of 2008.
Pallav Sisodia, Sr. Adv., Braj Kishore Mishra, Ms. Aparna Jha,
Abhishek Yadav, Ms. Kriti Sondhi, Advs. for the appellant.
Nishant Ramakantrao Katneshwarkar, Anoop Kandari, Makarand
D. Adkar, Vijay Kumar, Rajesh Kumar, Advs. for the respondents.
The Judgment of the Court was delivered by
INDIRA BANERJEE, J.
This appeal is against a judgment and order dated 15.9.2008 passed
by a Division Bench of Bombay High Court dismissing Writ Petition
No.904 of 2008 filed by the appellant, challenging an order dated 3.5.2006,
whereby the State Government refused to sanction modification of a
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Scheme under the provisions of Section 91 of the Maharashtra Regional
and Town Planning Act, 1966, hereinafter referred to as "the Regional
and Town Planning Act").
2. One Thorat family was the owner of Plot No. 473 in City Survey
No. 1092 at Bhamburda in Pune. By a registered deed of conveyance
dated 21.12.1956 one Mrs. Krishnabai Gopal Rao Thorat sold the northern
part of the plot admeasuring 4910 sq.m. jointly to Swami Dilip Kumar
Roy, one of the most eminent disciples of Sri Aurobindo, and Smt. Indira
Devi, daughter disciple of Swami Dilip Kumar Roy. The names of Swami
Dilip Kumar Roy and Smt. Indira Devi were duly recorded in the relevant
revenue records in 1959.
3. Swami Dilip Kumar Roy had moved to Pune to propagate the
philosophy of Sri Aurobindo and established the Hare Krishna Mandir
with his daughter disciple Smt. Indira Devi, on the land purchased from
Mrs. Krishnabai Gopal Rao Thorat.
4. According to the appellants, by an order dated 20.8.1970 of the
Pune Municipal Corporation, Plot No. 473 which was originally
numbered Survey No.1092, was divided. Final plot No. 473 B was sub
divided into 4 plots being plot Nos. 473 B1 comprising an area of 1025
square meters, 473 B2 comprising an area of 603.00 square meters, 473
B3 comprising an area of 2838 square meters and 473 B4, a private
road admeasuring 414.14 square meters.
5. Plot No. 473 B1 was owned by Mrs. Kanta Nanda, Plot No.
473 B2 by Mr. Premal Malhotra, and Plot No. 473 B3 by Swami Dilip
Kumar Roy and Smt. Indira Devi. Plot No. 473 B4, which was a vacant
plot of land, was shown as an Internal Private Road measuring 444.14
Sq. mtr., in the possession of Swami Dilip Roy and Smt. Indira Devi and
the holders of Plot Nos. 473 B1 and 473 B2, namely, Mrs. Kanta Nanda
and Mr. Premal Malhotra. It is not in dispute that the Pune Municipal
Corporation was not mentioned in the order dated 20.8.1970.
6. On 20.8.1970 the City Survey Officer directed issuance of
separate property cards in view of a proposed Development Scheme
under the Regional and Town Planning Act which included Final Plot
No.473, and an Arbitrator was appointed. The Arbitrator made an Award
dated 16.5.1972 directing that the area and ownership of the plots were
to be as per entries in the property register.
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7. In 1979, the Town Planning Scheme was sanctioned and came
into effect. In 'B' Form, Final Plot No.473 was shown to have been
divided into five parts with ownership as follows:-
473 B1 : Mrs Kanta Nanda
473 B2 : Mr Premal Malhotra
473 B3 : Swami Dilipkumar Roy and Sm. Indira Devi
473 B4 : Open space owned by Swami Dilipkumar Roy and Sm.
Indira Devi
Unnumbered: Road measuring 444.14 sq.mt owned by Pune
Municipal Corporation
8. The appellant contends that the Pune Municipal Corporation
by its letters dated 29.6.1996, 4.1.1997 and 18.1.1997 admitted that the
internal road had never been acquired by the Pune Municipal Corporation.
The Town and Planning Department also admitted that Pune Minicipal
Corporation had wrongly been shown to be owner of said road.
9. By a letter dated 29th June, 1996, the City Survey Officer
informed the Assistant Engineer, Land and Property of the Pune
Municipal Corporation that, as per registered document no. 1429 dated
21.12.1956, Sri Dilip Kumar Roy and Mrs. Indira Devi had purchased,
Final Plot No. 473B in Survey Plot No.1092 at Bhamburda, Pune,
admeasuring 52,892 sq.f. from Krishnabai Gopal Rai Thorat. Accordingly
as per letter number PTI 2325/12/56 of the City Architect, separate
property card had been opened on 3.9.1959 and the names of the
purchasers recorded.
10. The said letter recorded that as per the office order of the
City Architect dated 20.8.1970, Survey Number 1092B was sub divided
as follows:-
11. The City Survey Officer pointed out that the names of the
occupiers named above had been confirmed. However, as per Form I
approved in Town Plan No. I, Pune, the name of Pune Municipal
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Corporation had been recorded and/or entered incorrectly. The City
Survey Officer recommended initiation of further action, as may be
deemed proper, to consider deletion of the name of the Pune Municipal
Corporation as holder of the road to enable the office of the City Architect
to take further action.
12. By a letter dated 4.1.1997 written in response to a letter dated
4.12.1995, the City Deputy Engineer, Construction Control, Pune
Municipal Corporation informed Smt. Indira Devi that the internal road
of final plot number 473B had not come into the possession of the Pune
Municipal Corporation.
13. By a letter dated 18.1.1997 of the Town Planning and Valuation
Department of the State Government at Pune, the Assistant
Commissioner (Special), Pune Municipal Corporation was informed that
the Government had finally approved Town Planning Scheme No. I,
Pune. However, in the approved Town Planning Scheme, Plot No. 473B
has been divided into two parts and out of that final plot number, 473B
has been sub-divided into four sub-plots. A road with the width of 15
feet measuring 414.14 sqm. has been shown under the ownership of
Pune Municipal Corporation. However, on inspection, it was observed
that there was no road in existence. Final plot number 473B was divided
into three plots of land and one separate plot of land shown as open
vacant premises. A layout was prepared and approved by the City
Engineer.
14. On 12.3.1997, Smt. Indira Devi executed a registered trust
deed constituting the appellant trust and transferred FP 473-B3 and the
internal road to the appellant trust. The appellant trust wrote a letter to
the State Government requesting the State Government to correct the
wrong entry in the name of Pune Municipal Corporation in the B Form.
15. On 25.4.2000, an order number TPS1697/1271/CR70/ 20000/
UD-13 was passed by the Urban Development Department, Government
of Maharashtra. The said order is extracted hereinbelow for convenience:-
"Whereas, Town Planning Scheme Pune No.1 (First variation)
has been sanctioned by the State Government vide Notification,
Urban Development Department No. TPS 1879/1064/UD-7
dated 5.7.1979 and the same has come into force with effect
from 15.8.1979 (hereinafter referred to as "the said Scheme').
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And whereas, in the said Scheme Final Plot No. 473B has
been subdivided as 473B-1, 473B-2, 473B-3 473B-4 and
internal layout road (area 444.14 sqmtr.) (hereinafter referred
to as "the said road").
And whereas the owner of the final plot no. 473B-2 and 473B3 has requested Government to direct the Pune Municipal
Corporation (hereinafter referred to as "the said
Corporation") to vary the said Scheme to delete the said road
and include the area in adjacent Final Plot No. 473B-2 to
473B-4 as per site conditions.
And whereas, the Director to Town Planning vide his letter
No. TPS No.I/FP 473B/Shivajinagar/TPV-I/10420 dated
20.3.98 also informed that as per site condition it is not feasible
for the said corporation to construct the said road;
And whereas, considering all these facts, the Government of
Mahrashtra is satisfied that it is necessary to vary the said
scheme under Section 91 of the Maharashtra Regional and
Town Planning Act, 1966 (hereinafter referred to as the "said
Act") to delete the said road and merge the area in adjacent
plots and said variation required to be made is not of a
substantial nature;
Now, therefore, the Government of Maharashtra hereby directs
the said Corporation to undertake the variation to the said
Scheme under sub-section (2) of Section 91 of the said Act in
respect of the following:-
a)
The said Corporation in accordance with provision
contained in Section 91 of the said act shall undertake
variation to the said Scheme to merge the said road area
in Final Plot No. 473B-2 to 473B-4 and effect
consequential changes in the area of these final plot
numbers.
b)
The said Corporation shall accordingly prepare and
publish and draft variation as per provision laid down
in sub-section (2) of Section 91 of the said Act.
By order and in the name of the Governor of Maharashtra."
HARI KRISHNA MANDIR TRUST v. STATE OF
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16. By a letter dated 23.10.2002, the Additional Municipal
Corporation Commissioner, Pune Municipal Corporation informed the
Secretary, Urban Development Department, Government of Maharashtra
that the Town Planning Scheme No. I in respect of Plot number 473B
had been given effect without any change in the boundaries of the plot.
The plot had been divided into two large plots, one of which had been
further sub-divided. The area of ownership of the plot was to be as
per entries in the property register. In the said letter it has
categorically been stated that it was necessary to confirm the area of
final plot number 473B as per Town Planning Scheme No.I (first
variation), as decided by the arbitrator, for initiating action of deleting
Pune Municipal Corporation from Form B in respect of the road which
had been shown in that plot after making sub-division of the said plot,
and to give effect to the Property Card of Pune Municipal Corporation
recording the names of the holders of the final plot. The said letter dated
23.10.2002 clearly stated that as per division made during the year 1970,
there was no road. However, a road would have to be provided for
approaching the plot of Shri Nanda.
17. From the said letter dated 23.10.2002, it appears that, as per
Resolution No.117 taken at the General Body meeting of the Pune
Municipal Corporation on 21.5.2001, approval had been given for
necessary action for changes as per Section 93 of the Regional and
Town Planning Act and notice dated 23.8.2001 to that effect published
in the Gazette of Maharashtra.
18. By a notice dated 8.9.2004, the Municipal Commissioner, Pune
Municipal Corporation invited objections against the proposal for merging
the internal road with the adjoining sub plots 473 B1, B2, B3 and B4.
There does not appear to have been any objection.
19. Thereafter, by a Resolution No. 611 dated 23.3.2006, the
Pune Municipal Corporation adopted the following resolution:-
"Perused the letter on the subject of the Hon'ble Municipal
Commissioner and taking into consideration recommendation
of the Improvement Committee:
After cancelling internal road of Plot No. 473B at Shivaji
Nagar and after declaring the same as No-development zone
no. F.S.I. should be granted in respect of the road which has
been cancelled. Similarly as shown in the affidavit of the
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Plot Holder Applicant in front of the plot of plot No. 473B-1,
approval is being provided to give the opinion of Municipal
Corporation for providing the road available."
20. By a letter dated 5.4.2006, the City Engineer, Pune Municipal
Corporation informed the Municipal Commissioner that the internal road
in plot number 473B as shown in the layout measuring 444.14 sq. meters
had been merged and included in adjacent sub plot number 473 B-2 and
accordingly orders had been issued to implement the decision as per
Section 92(2) of the Regional and Town Planning Act. In pursuance of
Resolution number 117 dated 24.6.2001, sanction was being given for
making changes as per Section 91 of the Regional and Town Planning
Act.
21. Thereafter the Municipal Commissioner wrote a letter to the
State Government on 7.4.2006 submitting a proposal for approval of
variation in the Town Planning Scheme under Section 91 of the Regional
and Town Planning Act.
22. By an order dated 3.5.2006 impugned in the writ petition, the
Urban Development Department, Government of Maharashtra rejected
the proposal for modification of the Scheme under Section 91 with the
following observations:-
1.
The proposal had been opposed by the Pune Municipal
Corporation, who is the owner in respect of the land.
2.
Non-compliance of legal requirements in connection
with the proposal.
3.
It could not be assumed that the Trust would grant
permission to the plot holders of 473B for using the
private road of the adjacent society.
4.
It has been considered a basic necessity of the Town
Planning Scheme to have approach road for every plot.
5.
The deletion of the road would mean that the road would
not be available for new plots of land.
23. The finding that the Pune Municipal Corporation was the owner
of the land is patently contrary to official records and smacks of patent
error. In any case the impugned order is totally vague in the absence of
any whisper of the legal requirements alleged to have not been complied
with.
HARI KRISHNA MANDIR TRUST v. STATE OF
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24. The observation in the impugned order, that it could not be
assumed that the appellant Trust would grant permission to other plot
holders of Plot No.473B is speculative and conjectural, overlooking the
usage of the vacant land (Plot No.473 B-4) for several decades as also
the statutory records including the Award of the Arbitrator in terms
whereof Plot 473 B4 was shown to be held by the owners of Plot Nos.
473 B1, 473 B2 and 473 B3. In any case, none of the owners of the
adjacent plots had raised any objection to the modification.