2020 (8) TMI 848 - SC - Indian Laws

Seeking sanction of modification of a Scheme under the provisions of Section 91 of the Maharashtra Regional and Town Planning Act, 1966 - HELD THAT - From the records of the case, particularly the order dated 20.8.1970 of sub division of plot number 473 B and the award of the arbitrator, it is patently clear that the name of Pune Municipal Commissioner was at no point of time reflected as holder of the private road. There is no whisper as to how the road came to be shown as in possession of Pune Municipal Commissioner nor of the procedure adopted for effecting changes, if any, in the property records - 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 473 B4 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. 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. 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 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. Appeal allowed.

Summary

Issues Involved:
1. Ownership of the internal road in Plot No. 473 B.
2. Legality of the entries in the property records.
3. Compliance with the Maharashtra Regional and Town Planning Act, 1966.
4. Validity of the High Court's interpretation of Section 88 and Section 91 of the Act.
5. Entitlement to compensation under Article 300A of the Constitution of India.

Detailed Analysis:

1. Ownership of the Internal Road in Plot No. 473 B:
The central issue was the ownership of an internal road measuring 444.14 sq. meters in Plot No. 473 B. The Appellant contended that the Pune Municipal Corporation (PMC) was wrongly shown as the owner of the internal road. The records and an Arbitrator's Award dated 16.5.1972 indicated that the road was owned by the holders of Plot Nos. 473 B1, 473 B2, and 473 B3, not the PMC.

2. Legality of the Entries in the Property Records:
The Appellant argued that the entries showing PMC as the owner were erroneous and not based on any acquisition or compensation process. Letters from PMC and the City Survey Officer confirmed that the internal road had never been acquired by PMC and that the name of PMC had been wrongly recorded.

3. Compliance with the Maharashtra Regional and Town Planning Act, 1966:
The Court examined various sections of the Maharashtra Regional and Town Planning Act, 1966, including Sections 59, 64, 65, 88, 91, 125, and 126. The Appellant argued that the Act did not allow for the divestment of property without due process, including compensation. The Arbitrator's Award, which was final and binding under Section 73, indicated that the internal road was a private road owned by the plot holders.

4. Validity of the High Court's Interpretation of Section 88 and Section 91 of the Act:
The High Court had dismissed the writ petition, finding that the land had vested in PMC under Section 88. The Supreme Court found this interpretation to be narrow and erroneous. Section 88 had to be read in conjunction with Sections 65 and 126, which protect the interests of the owners and mandate compensation for any acquisition. The Supreme Court held that the mere sanctioning of a Town Planning Scheme did not justify erroneous entries in property records.

5. Entitlement to Compensation under Article 300A of the Constitution of India:
The Appellant argued that any deprivation of property without compensation would violate Article 300A of the Constitution, which protects the right to property. The Supreme Court agreed, stating that the Appellant could not be deprived of its property without authority of law and due compensation.

Conclusion:
The Supreme Court allowed the appeal, setting aside the High Court's judgment. It directed the Respondent authorities to act in terms of the Arbitrator's Award dated 16th May 1972 and delete the name of the PMC as the owner of the private road. The Appellant was directed to give an undertaking not to obstruct access of adjacent plot owners through the private road. The necessary alterations were to be carried out within six weeks from the date of the undertaking.