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2020 (8) TMI 848 - SC - Indian LawsSeeking 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.
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