TMI Blog2020 (8) TMI 848X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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 includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... named above had been confirmed. However, as per Form I approved in Town Plan No. I, Pune, the name of Pune Municipal 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 473 B 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. 473 B has been divided into two parts and out of that final plot number, 473 B has been sub-divided into four subplots. A road with the width of 15 feet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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. 473 B-2 to 473 B-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. 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 473 B 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. 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 473 B 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 29. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide 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. 35. 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: (a) to carry out a survey of the Region, and prepare reports on the surveys so carried out; (b) to prepare an existing-land-use map and such other maps as may be necessary, for the purpose of preparing a Regional Plan; (c) to prepare a 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 Planning Act as it stood at the material time provided: 21. Development Plan: (1) As soon as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, 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. 40. 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 sewerag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matters referred to in Clause (b) of Sub-section (1), it shall be lawful for a Planning Authority with the approval of the Director of Town Planning and subject to the provisions of Section 68 to provide for suitable amendment of the Development plan.] 42. 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. 43. 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 Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eservation, 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. 48. Section 65 provides as follows: 65. Reconstituted plot- (1) 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. (2) For the purpose of Sub-section (1), a draft scheme may contain proposals-- (a) to form a final plot by reconstitution of an original plot by alteration of the boundaries of the original plot, if necessary; (b) to form a final plot from an original plot by the transfer wholly or partly of the adjoining lands; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be entitled to such compensation from the Planning Authority as may be determined by the Arbitrator: Provided that, in ascertaining whether compensation be paid, the time within which the person affected was permitted to change 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 officer aforesaid shall, not later than six months [from the date of the publication of the notice, in the Official Gazette, regarding the making of the draft scheme], submit the same with any modifications which it or he may have made therein together with a copy of objections received by it or him to the State Government, and shall at the same time apply for its sanction. (2) On receiving such application, after making such inquiry as it may think fit and consulting the Director of Town Planning, the State Government may, not later than [three months] from the date of its submission, by notification in the Official Gazette, [or not later than such further time as the State Government may extend] either sanction such draft scheme with or without modif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 55. 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. Section 73 provides: 73. Certain decisions of Arbitrator to be final.- Except in matters arising out of Section 72, every decision of the Arbitrator shall be final and conclusive and binding on all parties including the Planning Authority. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... variation or any, extract therefrom certified to be correct shall be available for sale to the public at a reasonable price. (5) Not later than one month of the date of the publication of the notice regarding preparation of draft variation, any person affected thereby may communicate in writing his objections to such variation to the State Government, and send a copy thereof to the Planning Authority. (6) After receiving the objections Under Sub-section (5), the State Government may, after consulting the Planning Authority and after making such inquiry as it may think fit, by notification in the Official Gazette,- (a) appoint an Arbitrator, and thereupon the provisions of this Chapter shall so far as may be, apply to such draft variation, as if it were a draft scheme submitted to 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 effect as if it were incorporated in the scheme. 59. Chapter VII of the Regional and Town Planning Act comprising Sections 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that the change was not preceded or followed by any demarcation, re-constitution, determination of compensation or any kind of taking over of possession or acquisition by Pune Municipal Corporation in accordance with procedure known in law, be it Under Section 64, 65 read with Section 72 or Section 126 of the Regional and Town Planning Act. This is also not in dispute. As argued by Mr. Sisodia, Pune Municipal Corporation had on the other hand clearly admitted that they had never initiated any proceedings for acquisition or of taking over possession of the private road. 64. Mr. Sisodia submitted that there is no other award of the Arbitrator regarding the plot in question, except the one passed on 16.5.1972 showing the plot 1092 B4 to be a private road admeasuring 444.14 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 smacks of an error apparent in that plot 1094 B4 has been shown as a private road of the Pune Municipal Corporation. 65. Mr. Sisodia strenuously argued, and in our view rightly, that the Respondent authorities were duty bound to correct the error in showing plot 414 Sq. mtrs. odd in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , with the planning authority. Even the Pune Municipal Corporation cannot seek deletion of the roads as the same amounts to substantial variation in the Town Planning Scheme. 70. Mr. Katneshwar argued that the High Court has rightly interpreted Section 88 and Section 91 of the Regional and Town Planning Act and dismissed the writ petition. Deletion of a road from a Town Planning Scheme can be said to be a variation of substantial nature. Section 91 contemplates minor variation in Town Planning Scheme by following requisite procedure. Mr. Katneshwar argued that pragmatically also modification of the scheme would not be expedient, as future purchasers would have no approach road to access their properties as would be clear from the map of the said plots. 71. Mr. Katneshwar, by insinuation, questioned the propriety of the resolution of the Pune Municipal Corporation and emphasized that the corporation did not support its resolution either before the State Government or before the High Court. Mr. Katneshwar argued that the stand of the Corporation in the High Court was correct and beneficial to the citizens. The photographs of the site would show some trees but that cannot be a g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to make orders Under Article 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 had been discovered, without leave of this Court. The Respondents therefore did not have occasion to respond to new facts and documents. Mr. Adkar submitted that the award or city survey record, now referred to, did not find reference in the decision of the High Court. The Appellant had produced certain documents purportedly issued by certain departments of the Corporation for the first time. The Corporation did not have occasion to respond to the same. 78. This Court has only proceeded on the basis of pleadings and documents in the Special Leave Petition to which the Respondents had ample opportunity to respond. The Award and the City Survey papers are matters of record. The records are in the custody of the Respondents. 79. Mr. Adkar emphasized on the fact that the High Court had recorded specific finding regarding ownership of the Corporation as per Town Planning Scheme, with which we are unfortunately unable to agree. He argued that the High Court found that title had statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des, it was in the interest of justice that all relevant town planning proceedings be examined by the competent authority, to examine the alleged discrepancy between town planning records, and the city survey records, and for that purpose the matter would require consideration de novo at the appropriate level. 86. Mr. Adkar submitted that the Town Planning Scheme has been drawn Under Section 59 of the Regional and Town Planning Act, to give effect to the proposals in the final development plan. Mr. Adkar submitted that Section 68(3) of the Regional and Town Planning Act provides that the draft scheme should be available for inspection of the public. Section 71 of the said Act makes provisions for disputed claims and Under Section 72(4), the Arbitrator while preparing preliminary scheme has to give notice to all concerned. There are provisions for ample opportunity to stakeholders to dispute entries in the scheme. Under Rule 13(3) every interested person is to be given notice. Mr. Adkar argued that in view of the aforesaid provisions and ample opportunity, no person could be heard to contend after 20 years that he had not been put to notice. 87. Mr. Adkar submitted that it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but not cleared by agreement within 10 years from the date on which the final regional plan or final development plan came into force, nor proceedings under the Land Acquisition Act, 1894 commenced within such period and if a person interested has served notice on the Planning Authority/Developmental Authority/Appropriate Authority as the case might be and the land is not cleared within six months of such notice; whether the allotment will be deemed to be released from reserve in view of the provisions of Section 127 of the Regional and Town Planning Act. This Court held: 11. Before further discussion, we think it just and proper to look into the definitions of development plan and town planning scheme . Section 2(9) of the MRTP Act defines the term development plan and reads as under: 2. (9) Development plan means a plan for the development or re-development of the area within the jurisdiction of a Planning Authority and includes revision of a development plan and proposals of a Special Planning Authority for development of land within its jurisdiction. The expression town planning scheme is not defined in the Act but Under Section 2(30) the word scheme is defi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, we find no error in the order passed by the High Court. 17. The landowners further relied on Girnar Traders v. State of Maharashtra [Girnar Traders v. State of Maharashtra, (2007) 7 SCC 555] to contend that the land is deemed to have been released after 6 months of the issue of notice Under Section 127 of the MRTP Act. The contention of the landowners cannot be accepted for the reason that the decision relied on by the landowners to contend that no steps were taken relates to the development plan for which the steps for acquisition had to be taken as per Section 126. In the present case, before the scheme is implemented, the procedure contemplated under Chapter V is followed to finalise the scheme. The procedure includes the sanctioning of draft scheme, appointment of arbitrator, issuing notices to persons affected by the scheme, determination of compensation by the arbitrator and then the final award made by the arbitrator. In respect of the land required under town planning scheme except the development plan, the steps Under Section 126 may not require to be resorted to at all. It is clear from the record that the draft town planning scheme was published in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.S. No. Area (Sq.mt.) Name of the Occupier 1 1092 B/1 1025.00 Smt. Kanta Nanda 2. 1092 B/2 603.00 Sri Premal Malhotra 3. 1092 B/3 2838.00 Shri Dilip Kumar Roy Smt. Indira Devi 4. 1092 B/4 444.00 (Road) Occupiers of Sr. Nos. 1 to 3 (Road) 96. 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 as observed by this Court in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and Ors. (2008) 4 SCC 649 (para 42). 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. 97. Article 300A of the Constitution of India embodies the doctrine of eminent domain which comprises t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture 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. 101. 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. 102. 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. In Directors of Settlements, Andhra Pradesh and Ors. v. M.R. Apparao and Anr. (2002) 4 SCC 638. Pattanaik J. observed: One of the conditions for exercising power Under Article 226 for issuance of a mandamus is that the court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. In other words, existence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt to refer to two other authorities of this Court where it has been opined that under what circumstances a disputed question of fact can be gone into. In Gunwant Kaur v. Municipal Committee, Bhatinda [(1969) 3 SCC 769], it has been held thus: (SCC p. 774, paras 14-16) 14. The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit-in-reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine. 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. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contractual obligation and/or involves some disputed questions of fact. 27. From the above discussion of ours, the following legal principles emerge as to the maintainability of a writ petition: a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable. b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule; c) A writ petition involving a consequential relief of monetary claim is also maintainable. 106. 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. 107. 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 approp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich a final regional plan or final development plan comes into force, is to be deemed to have lapsed and the land shall be deemed to be released from such reservation. of course by virtue of Sub-section (2) of Section 126 inserted by Amendment by Maharashtra Act No. 16 of 2009 on lapsing of reservation or a designation of any land Under Sub-section (1), the Government shall notify the same by an order published in the Official Gazette. Section 128 enables the Government to acquire lands for a purpose other than the one for which it is designated in any plan or scheme. 113. In our considered opinion, 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. 114. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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