Dec 14, 2020

Development of town or any regional area is the prime object of any Municipal Corporation in any state. Considering the need of time, the legislators in Maharashtra had created the Maharashtra Regional and Town Planning Act, 1966 (the Act) with the object of making provisions of development and use of land for that purpose. Several procedures laid down under the Act, which ought to have been complied by Municipal Corporation and State Government before making Town Planning Scheme (T.P.S.). Hari Krishna Mandir Trust vs State of Maharashtra and others, the Supreme Court (S.C.S.C.) on 07.08.2020 has delivered a judgment consisting of clarification of not only vital provisions of the Act but also of Writ Jurisdiction under Article 226 of the Constitution of India. The core dispute arose about Section 91 of the Act.

The dispute was regarding the plot no.473B, which was divided by Pune Municipal Corporation(P.M.C.) into four sub-plots. The Appellants possessed the third part viz 473 B-3; whereas the fourth part, which was a private road had all holders of Plot No. 473B as per order dated 20.08.1970. The appointed arbitrator made the award on 16.05.1972 directing area and ownership of plots as mentioned in the property register. The award was final and binding to all parties u/s 72 of the Act. In 1972, the sanction T.P.S. divided the plot no.473B into five parts and the private road mentioned in the name of P.M.C. With several letters, the P.M.C. and Town & Planning Department admitted that the plot never acquired an erroneous insertion of P.M.C. as an owner of said road, respectively. Request made by the Appellant to the State Government for rectification of wrong entry on 12.03.1997. After numerous procedures for deletion of Corporation's name, on 03.05.2006, the Urban Development Department rejected the proposal of modification u/s 91 with the finding that the P.M.C. was the owner of the land. Aggrieved by the said order, the Appellant filed a writ before Bombay High Court. The High Court found that the land had vested on P.M.C. without any burden at the time of commencement of Town Planning Scheme, under section 88 of the Act.

The Learned Counsel for Appellant contended, the arbitration award of ownership as per entries in the property register u/s 72 of the Act, which is binding and final. He further contended that the P.M.C. never initiated proceedings of acquisition or taking over possession u/s 64, 65 or 126 of the Act; and in respect of prayer for rectification of error on 12.03.1997; the P.M.C. and State agreed to rectify the error, proposed a varied T.P.S. and never opposed to that rectification. Besides, he contended that section 91 is sufficient to rectify the error in the present case. On the other hand, Learned Counsel for State argued that section 88 laid down automatic vesting of land coming under T.P.S. and section 91 contemplates the minor rectifications. Another Counsel, Mr Adkar, submitted that various references have been made before the S.C.S.C. for the first time. In the interest of justice, all the T.P.S. proceedings should be examined by the competent authority. He also contended the vesting of property under the T.P.S. is entirely different from land acquisition under the Land Acquisition Act.

The SC has delivered clarification on the invocation of Article 300-A, as two requirements of the Article, i.e. (i) possession of the property in the public interest; and (ii) payment of reasonable compensation, was not fulfilled in the present case. Relying on several cases, S.C.S.C. interpreted that the State must possess the power to take or control the property only for the public benefit and must compensate for the injury. Based on K.T.K.T. Plantation Private Limited and Anr. v. State of Karnataka, SC observed that right to claim compensation, though not mentioned in Article, is inbuilt in it. Further, the S.C.S.C., relying on Directors of Settlements, Andhra Pradesh and Others v. M.R. Apparao and Anr, reminded that the High Court has power and duty to exercise writ of mandamus public authority failed to perform its statutory duty. Also, the court relied on Gunwant Kaur v. Municipal Committee, Bhatinda and State of Kerala v. M.k. Jose and A.B.L. International Ltd. v. Export Credit Guarantee Corporation of India Ltd held that merely because of the disputed question of facts arising, High Court should not refrain from entertaining the writ petition.  

In its final verdict, S.C.S.C. referring to extensive documentary evidence held that the private road does not belong to P.M.C. and it is the duty of P.M.C. or State Government to modify the T.P.S. u/s 91 of the Act; showing the private land belongs to its legitimate owners as per the award of an arbitrator. Further, in respect of section 88, S.C.S.C. held, it must read with section 125 to 129 of the Act. In the absence of acquisition of land u/s 125 and 126, the land could not have vested in the State. Reversing the High Court's findings of modification involved substantial alteration, S.C.S.C. held that, modification only involved the deletion of the name of P.M.C.. Therefore, it is not considered as a substantial alteration. Allowing the appeal the S.C.S.C. has directed the respondent authorities to delete the name of P.M.C. as the owner of a private road and directed to Appellant to give an undertaking for not obstructing the access of adjacent owners through the private road.