Refused to sanction modification of a Scheme under the provisions of Section 91 of the Maharashtra Regional and Town Planning Act, 1966,

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6156 OF 2013
HARI KRISHNA MANDIR TRUST ….Appellant (s)
versus
STATE OF MAHARASHTRA AND OTHERS …..Respondent (s)
J U D G M E N T
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 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”).
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  1. 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.
  2. 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.
  3. 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.
  4. 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
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    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.
  5. 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.
  6. 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
    4
  7. 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 Corpotation had wrongly been shown
    to be owner of said road.
  8. 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.
  9. 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:-
    S.No. C.S. No. Area (Sq.mtr.) Name of the Occupier
    1 1092 B/1 1025.00 Smt. Kanta Nanda
  10. 1092 B/2 603.00 Sri Premal Malhotra
  11. 1092 B/3 2838.00 Shri Dilip Kumar Roy
    Smt. Indira Devi
  12. 1092 B/4 444.00 (Road) Occupiers of Sr. Nos. 1 to 3
    5
  13. 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
    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.
  14. 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.
  15. 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 subplots. A road with the width of 15 feet measuring 414.14 sqm. has
    been shown under the ownership of Pune Municipal Corporation.
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    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.
  16. 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.
  17. 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’).
    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 473B-3 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
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    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 subsection (2) of Section 91 of the said Act.
    By order and in the name of the Governor of Maharashtra.”
  18. 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
    8
    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.
  19. 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.
  20. 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.
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  21. 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 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.”
  22. 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.
  23. 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.
    10
  24. 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:-
  25. The proposal had been opposed by the Pune Municipal
    Corporation, who is the owner in respect of the land.
  26. Non-compliance of legal requirements in connection
    with the proposal.
  27. 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.
  28. It has been considered a basic necessity of the Town
    Planning Scheme to have approach road for every plot.
  29. The deletion of the road would mean that the road
    would not be available for new plots of land.
  30. 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.
  31. The observation in the impugned order, that it could not be
    assumed that the appellant Trust would grant permission to other
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    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. Furthermore, the attention of the authorities had
    duly been drawn to the express terms of the will of Sm. Indira Devi
    giving the easementary rights to owners of adjacent plots of access
    through the plot held by her. If the Planning Authority felt it
    necessary to provide approach roads, it was incumbent upon it to
    acquire land in accordance with law, upon payment of compensation
    to its owners or alternatively purchase the same by negotiation.
  32. By a letter dated 9.8.2007, the Appellant Trust drew the
    attention of the then Chief Minister of Maharashtra to relevant facts
    pertaining to the road, and in particular, to the fact that Smt. Indira
    Devi had in her will bequeathed to the other plot owners access
    through the plot. The appellant Trust requested the Government to
    delete the name of Pune Municipal Commissioner wrongly entered in
    the property register.
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  33. The appellants filed the writ petition being Writ Petition
    No.904 of 2008 in the Bombay High Court challenging the said order
    dated 3.5.2006. The writ petition has been dismissed by the
    judgment and order under appeal. The High Court found that the
    land in question had vested, without any encumbrances, in the Pune
    Municipal Corporation at the time of commencement of the Town
    Planning Scheme, by virtue of Section 88 of the Regional and Town
    Planning Act.
  34. The High Court has apparently misconstrued Section 88,
    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.
  35. 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
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    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.
  36. 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. 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.
  37. 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.
  38. 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.
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  39. 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.
  40. 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.
  41. In 1966 the Maharashtra State Legislature enacted the
    Maharashtra Regional and Town Planning Act, 1966 (hereinafter
    referred to as ‘the Regional and Town Planning Act’) to make
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    provision for planning 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.
  42. 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.
    16
  43. 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 may be after the
    commencement of this Act, but not later than three years
    after such commencement, and subject however to the
    provisions of this Act, every Planning Authority shall carry
    out a survey, prepare an existing land-use map and prepare
    a draft development plan for the area within its jurisdiction,
    in accordance with the provisions of a Regional plan, where
    there is such a plan [publish a notice in the Official Gazette
    and in such other manner as may be prescribed stating that
    the draft development plan has been prepared] and submit
    the plan to the State Government for sanction. The Planning
    Authority shall also submit a quarterly Report to the State
    Government about the progress made in carrying out the
    survey and prepare the plan.
    (2) Subject to the provisions of this Act, every Planning
    Authority constituted after the commencement of this Act
    shall, not later than three years from the date of its
    constitution, [declare its intention to prepare a draft
    Development plan, prepare such plan and publish a notice
    of such preparation in the Official Gazette] and in such other
    manner as may be prescribed] and [submit the draft
    development plan] to the State Government for sanction.
    [(3) On an application made by any Planning Authority, the
    State Government may, having regard to the permissible
    period specified in the preceding sections, from time to
    time, by order in writing and for adequate reasons to be
    specified in such order, extend such period.]”
  44. 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.
    17
  45. 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.
  46. 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,
    highways, railways, waterways, canals, airports etc. water supply,
    sewage etc.
  47. The Town Planning Scheme might also make provisions, apart
    from the matters specified in Section 22, inter alia, relating to
    18
    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.
  48. Section 59 of the Regional and Town Planning Act is
    reproduced hereinbelow for convenience:
    “59. Preparation and contents of town planning
    scheme:- [(1)] Subject to the provisions of this Act or any
    other law for the time being in force—
    (a) a Planning Authority may for the purpose of
    implementing the proposals in the final
    Development plan prepare [or in respect of any
    land which is likely to be in the course of
    development or which is already built upon],
    prepare one or more town planning schemes for
    the area within its jurisdiction, or any part thereof ;
    (b) a town planning scheme may make provision for
    any of the following matters, that is to say—
    (i) any of the matters specified in section 22 ;
    19
    (ii) the laying out or re-laying out of land, either
    vacant or already built upon, including areas of
    comprehensive development;
    [(ii-a) the filling-up or reclamation of low-lying, swampy
    or unhealthy area, or levelling-up of land;
    (ii-b) layout of new streets or roads, construction,
    diversion, extension, alteration, improvement and
    closing up of streets and roads and discontinuance of
    communications;
    (ii-c) the construction, alteration and removal of
    buildings, bridges and other structures;
    (ii-d) the allotment or reservation of land for open
    spaces, gardens, recreation grounds, schools, markets,
    green-belts, dairies, transport facilities and public
    purposes of all kinds;
    (ii-e) drainage, inclusive of sewerage, surface or sub-soil
    drainage and sewage disposal;
    (ii-f) lighting;
    (ii-g) water supply;
    (ii-h) the preservation of objects of historical or national
    interest or natural beauty, and of building actually used
    for religious purposes;]
    (iii) the suspension, as far as may be necessary for the
    proper carrying out of the scheme, of any rule, bye-law,
    regulation, notification or order made or issued under
    any law for the time being in force which the Legislature
    of the State is competent to make;
    (iv) such other matter not inconsistent with the object of
    this Act, as may be directed by the State Government.
    [(2) In making provisions in a draft town planning scheme for
    any of the 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.]
    20
  49. 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.
  50. 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.
    21
  51. 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.
  52. 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.
  53. Section 64 provides as follows:-
    “64. Contents of draft Scheme. – A draft scheme shall
    contain the following particulars so far as may be necessary,
    that is to say,—
    (a) the ownership, area and tenure of each original plot ;
    (b) reservation, acquisition or allotment of land required under
    sub-clause (1) of clause (b) of section 59 with the 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 ;
    (c) the extent to which it is proposed to alter the boundaries
    of the original plots by reconstitution ;
    (d) an estimate of the total cost of the scheme and the net
    cost to be borne by the Planning Authority ;
    22
    (e) a full description of all the details of the scheme with
    respect to such matters referred to in clause (b) of section 59
    as may be applicable ;
    (f) the laying out or re-laying out of land either vacant or
    already built upon including areas of comprehensive
    development ;
    (g) the filling up or reclamation of low lying, swamp or
    unhealthy areas or levelling up of land ;
    (h) any other prescribed particulars.”
  54. 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.
  55. 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.
    23
    (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 ;
    (c) to provide, with the consent of the owners, that two or
    more original plots each of which is held in ownership
    in severally or in joint ownership shall hereafter, with
    or without alteration of boundaries be held in
    ownership in common as a final plot ;
    (d) to allot a final plot to any owner dispossessed of land
    in furtherance of the scheme; and
    (e) to transfer the ownership of an original plot from one
    person to another.”
  56. 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
    24
    ownership in common; to allot a final plot to any owner
    dispossessed of land in furtherance of the scheme and to transfer
    the ownership of an original plot from one person to another.
  57. 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.
  58. Section 66 provides :-
    “66. Compensation for discontinuation of use –
    Where under sub-clause (1) of clause (b) of section 59 the
    purposes to which the buildings or areas may not be
    appropriated or used in pursuance of clause (m) of section
    22 have been specified, then the building or area shall
    cease to be used for a purpose other than the purposes
    specified in the scheme within such time as may be
    specified in the final scheme, and the person affected by
    this provision shall 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.”
    25
  59. 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 modifications and subject to
    such conditions as it may think fit to impose or refuse to
    give sanction.
    (3) If the State Government sanctions such scheme, it
    shall in such modification state at what place and time the
    draft scheme shall be open to the inspection of the public
    [and the State Government shall also state therein that
    copies of the scheme or any extract therefrom certified to be
    correct shall on application be available for sale to the public
    at a reasonable price.]”
  60. Section 68 empowers the Planning Authority of the State
    Government to sanction the draft scheme not later than six months.
    Section 71 provides:-
    “71. Disputed ownership:- (1) Where there is a 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
    26
    who shall be deemed to be owner for the purposes of this
    Act.
    (2) Such decision shall not be subject to appeal but it shall
    not operate as a bar to a regular suit.
    (3) Such decision shall, in the event of a civil court passing a
    decree which is inconsistent therewith, be corrected,
    modified or rescinded in accordance with such decree as
    soon as practicable after such decree has been brought to
    the notice of the Planning Authority either by the Civil Court
    or by some person affected by such decree.
    (4) Where such a decree of the civil court is passed, after
    final scheme has been sanctioned by the State Government
    under section 86, such final scheme shall be deemed to
    have been suitably varied by reason of such decree.”
  61. 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 subsection (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
    27
    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.
  62. 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.”
  63. Section 74 as it stood at the material time provided:-
  64. Appeal.- (1) Any decision of the Arbitrator under
    clauses (iv) to (xi) to (xi) both inclusive and clauses (xiv), (xv
    and (xvi) of sub-section 3 of section 72 shall be forthwith
    communicated to the party concerned including the Planning
    Authority; and any party aggrieved by such decision may,
    within two months from the date of communication of the
    decision, apply to the Arbitrator to make a reference to the
    Tribunal of Appeal for decision of the appeal. (2) The
    provisions of sections 5, 12 and 14 of the Indian Limitation
    Act, 1963 shall apply to appeals submitted under this
    section.
  65. As observed above, in this case there was a reference to the
    Arbitrator. The Arbitrator made an award which has assumed
    finality. The Award 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.
    28
  66. Section 91 of the Regional and Town Planning Act provides as
    follows:-
    “91. Power to vary schemes on ground of error,
    irregularity or informality:- (1) If after the final scheme
    has come into force, the Planning Authority considers that
    the scheme is defective on account of an error, irregularity
    or informality or that the scheme needs the variation or
    modification of a minor nature, the Planning Authority may
    apply in writing to the State Government for variation of the
    scheme.
    (2) If, on receiving such application or otherwise, the State
    Government is satisfied that the variation required is not
    substantial, the State Government shall, by notification in
    the Official Gazette, authorise or direct the Planning
    Authority to prepare 1[a draft of such variation and publish a
    notice in the Official Gazette, and in such other manner as
    may be prescribed stating that a draft variation has been
    prepared.]
    (3) 2[The notice of preparation of a draft variation published]
    under sub-section (2) shall state every amendment
    proposed to be made in the scheme, and if any such
    amendment relates to a matter specified in any of the subclauses (i) to (iii) of clause (b) of section 59, the draft
    variation shall also contain such other particulars as may be
    prescribed.
    (4) The draft variation shall be open to the inspection of the
    public at the office of the Planning Authority during office
    hours and copies of such draft variation or any, extract
    therefrom certified to be correct shall be available for sale to
    the public at a reasonable price.
    29
    (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.”
  67. 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.
    30
  68. Mr. Pallav Sisodia, learned senior counsel appearing for the
    Appellant trust, assisted by Mr Braj K Mishra, argued, and in our
    view rightly, that 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.
  69. Mr. Sisodia submitted that in any case the award made by the
    Arbitrator in 1972 under Section 72 of the Regional and Town
    Planning Act stood final and binding. Mr. Sisodia emphatically
    argued that the award dated 16.5.1972 of the Arbitrator appointed
    under the Regional and Town Planning Act made it clear that the
    area and ownership of the plots were to be determined as per
    entries in the Property Register. This award is final and binding
    under Section 73 of the Regional and Town Planning Act. This is not
    disputed by the Respondents Sub-division in the Regional and Town
    Planning Act, therefore, has to be as follows:-
    “1092 B1 1025 Smt. Kanta Nanda
    1092 B2 603 Shri Premal Malhotra
    1092 B3 2838 Shri Dilip Kumar Roy
    Smt. Indira Devi
    1092 B4 444(Road) Holders of Sl. No. 1 to 3”
  70. However, in Form B of the Town Planning Scheme (TPS) the
    said sub-division was sought to be changed as follows:-
    31
    “473 B1 1024.86 Smt. Kanta Nanda
    473 B2 602.98 Shri Premal Malhotra
    473 B3 2335.03 Shri Dilip Kumar Roy
    Smt. Indira Devi
    473 B4 502.82 Shri Dilip Kumar Roy
    Smt. Indira Devi
    Road 444.14 Pune Municipal Corporation ”
  71. Mr. Sisodia pointed 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.
  72. 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.
    32
  73. 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 Plot 1092 B4 as private road of
    the Pune Municipal Corporation. Mr. Sisodia argued that this
    fundamental error was the genesis of a series of errors which
    followed subsequently.
  74. Mr. Sisodia submitted that although the Appellants were
    praying for rectification of an error, the Pune Municipal Corporation
    proposed the variation of the Town Planning Scheme by merging
    plot No.1092 B4 in other adjacent plots being 471 B1, B2 and B3,
    though there was no such prayer by the Appellant.
  75. Mr. Sisodia submitted that the Pune Municipal Corporation as
    also the State had agreed to accept the simple request of correction
    of land records to bring the same to conform to the award made on
    16.5.1972. Mr. Sisodia submitted that a simple prayer for
    rectification of records has been given the colour of variation in the
    Town Planning Scheme, and made to appear as if public land of Pune
    Municipal Corporation was to be released and plots re-constituted to
    dis-mantle the sub-division Form B. Mr. Sisodia emphatically argued
    that the documents enclosed in the paper book would clearly show
    33
    that neither the State, nor the Pune Municipal Corporation, had
    opposed the rectification of the error. This is borne out by records.
  76. Mr. Sisodia submitted that the High Court had erred in
    proceeding on the premise that the subject strip of land had vested
    in Pune Municipal Corporation and could not be released. In doing
    so, the High Court had erroneously applied the deeming provision of
    Section 88(a) without the pre-conditions of the said Section of reconstitution, acquisition, compensation and award in respect of the
    strip of land. Mr. Sisodia argued that the Authorities ought not to
    have been allowed to illegally interfere with the subject strip of land
    which was full of sacred trees and deities. Mr. Sisodia argued that
    on a proper reading of Section 91 of the Regional and Town Planning
    Act, no further exercise is needed to rectify an error in the present
    case, except to correct the land record as per the award referred to
    above. The artifice of vesting, supposed variation in Town Planning
    Scheme, modification of substantial character are without basis.
  77. On the other hand, Mr. Nishant R. Katneshwarkar, learned
    counsel appearing on behalf of the State of Maharashtra argued that
    Section 88 contemplates automatic vesting of the properties coming
    under the Town Planning Scheme, with the planning authority. Even
    the Pune Municipal Corporation cannot seek deletion of the roads as
    34
    the same amounts to substantial variation in the Town Planning
    Scheme.
  78. 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. Katneswhar
    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.
  79. 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. Katneswar 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 ground to stall the development as
    per the Town Planning Scheme. The deities can be shifted in case
    they come on the approach road. Development as per the Town
    Planning Scheme should be given prime importance.
    35
  80. In conclusion Mr. Mr. R. Katneshwarkar submitted that the
    Regional and Town Planning Act is a benevolent piece of legislation
    meant for providing basic facilities to the people at large. The
    legislation is made for the people. In support of his arguments Mr.
    Katneshwarkar cited Laxminarayan R. Bhattad & Ors. v. State
    of Maharashtra & Anr.
    1
  81. In Laxminarayan R. Bhattad (supra), this Court held that
    the contents of the scheme under the Bombay Town Planning Act
    now replaced by the Maharashtra Regional and Town Planning Act
    will prevail over any policy decision taken by the Corporation or by
    the State. Significantly, in Laxminarayan R. Bhattad (supra),
    the Arbitrator had made an award dated 30.10.1987, while making
    the Town Planning Scheme whereby final Plot No. 694 admeasuring
    1240 square meters and final Plot No. 173 admeasuring 2079
    square meters aggregating 3319.9 square meters had been allotted
    in lieu of original Plot No. 433 belonging to the Appellant. Further,
    for acquisition of the said land as also the structure standing
    thereupon, compensation of Rs.4,97,567.20/- had been awarded.
    The judgment in Laxminarayan R Bhattad (supra) is clearly
    distinguishable and of no assistance to the respondents.
    1 (2003) 5 SCC 413
    36
  82. Mr. Markand D. Adkar, learned counsel appearing with Mr.
    Rajesh Kumar, learned counsel submitted that the writ petition in
    respect of variation of the Town Planning Scheme has been
    dismissed by the High Court by a reasoned judgment, which does
    not require interference. We are however, of the view that the
    reasons are misconceived as discussed later in the judgment.
  83. Mr. Adkar also submitted that the High Court has recorded a
    finding that the suit land stood vested in the Pune Municipal
    Corporation in 1979, when the Town Planning Scheme became final.
    This finding is patently incorrect.
  84. Mr. Adkar argued that the Appellant had itself contended that
    in view of the documentary evidence, particularly the city survey
    records and the award of the Arbitrator, the correction in the town
    planning record can be made even de hors Section 91 of the
    Regional and Town Planning Act, and accordingly invited this Court
    to make orders under Article 142 of the Constitution of India.
  85. 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
    37
    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.
  86. 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.
  87. 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
    statutorily vested in the Corporation under Section 88 of the
    Regional and Town Planning Act and the only method to change or
    vary the Town Planning Scheme was under Section 91 of the
    Regional and Town Planning Act.
  88. Mr. Adkar argued that the submission of the Appellant that the
    scheme could be varied de hors Section 91 of the Regional and Town
    Planning Act, rendered the appeal liable to be dismissed on that
    38
    ground alone. Mr. Adkar argued that it was settled that the land in
    question stood vested in the Pune Municipal Corporation by virtue of
    Section 88 of the Regional and Town Planning Act. Such argument is
    not sustainable in law.
  89. Mr. Adkar submitted that the Government had rejected the
    proposal under Section 91 of Regional and Town Planning Act
    recording reasons, which cannot be assailed by submissions which
    were not advanced either before the Government or before the High
    Court. The affidavit of the trustees made in this Court for the first
    time cannot be examined.
  90. Mr. Adkar submitted that Municipal Corporation had tendered
    a true copy of Form I prepared under Rule 6(V) of the Rules for
    consideration of this Court. The copy has been produced from the
    custody of the Corporation and its authenticity has not been
    questioned either by the Appellant or by the State.
  91. Under the said rules, there are five forms which had to be
    filled in as the Town Planning Scheme progressed, the final Form
    being No.5 under Rule 13(9). The relevant documents pertaining to
    proceedings of the Town Planning Scheme are in the Town Planning
    Department of the Pune Municipal Corporation and the Town
    Planning Department of the State Government. Mr. Adkar submitted
    39
    that the content of Form I indicates that the suit land in question
    belonged to the Pune Municipal Corporation even before the Town
    Planning Scheme came into existence in 1979, and as such entry
    was never questioned or disputed by any of the parties for
    approximately two decades, the Town Planning Scheme ought not to
    be disturbed.
  92. There is, however no whisper from the Respondents of any
    proceedings, if any, resorted to for transfer of the private road to
    Pune Municipal Corporation, and not even any specific averment by
    the Respondents that the Appellant had the opportunity to
    controvert the entries in the Forms in question.
  93. Mr. Adkar submitted that Form I not having been questioned
    for two decades, 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.
  94. 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.
    40
    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.
  95. Mr. Adkar submitted that it is settled law that if the statute
    prescribes a procedure, it is to be assumed that the procedure has
    been followed scrupulously, unless the contrary is shown. Further it
    is needless to say in the facts of this case, the Appellant has not
    been able to demonstrate that the authorities preparing Town
    Planning Scheme failed to follow the procedure mandated by the
    statute.
  96. Mr. Adkar submitted that the matter should be remanded to
    the Government for de novo adjudication to consider all relevant
    aspects of the matter. The Corporation respects and reveres the
    great personalities involved in the Appellant Trust, and for that
    reason the present litigation is not adversarial in nature, but in the
    41
    interest of justice. Proper legal method should be followed before
    arriving at any conclusion one way or the other. Mr. Adkar’s
    arguments are untenable, since as recorded in the judgment and
    order under appeal, the facts pleaded by the Appellant are not in
    dispute. At the cost of repetition it is reiterated that the name of
    Pune Municipal Corporation was incorporated without recourse to
    any procedure contemplated under the Regional and Town Planning
    Act. The Respondents have not produced any materials evincing
    compliance with the procedure prescribed under the Regional and
    Town Planning Act. The case made out by the Appellant cannot be
    rejected on the basis of assumption. Since the parties have been
    litigating for over a decade and a half we are not inclined to remit
    the matter back to the authority concerned for de novo hearing and
    decision.
  97. Mr. Adkar submitted that reliance was placed by the Appellant
    on the award for the first time before this Court, on the premise that
    there was no acquisition, and without acquisition or compensation,
    vesting of the suit land could not have been effected. Counsel
    argued that the vesting of property under the Town Planning
    Scheme was entirely different in nature than acquisition of property
    under Land Acquisition Act or under Section 127 of the Regional and
    Town Planning Act. In support of such submission, Mr. Adkar cited
    42
    Pukhrajmal Sagarmal Lunkad (D) thru. His Legal heirs and
    Others v. Municipal Council, Jalgaon and Others.
    2
  98. In Pukhrajmal Sagarmal Lunkad (supra), the issue was
    whether any land reserved, allotted or designated for any purpose
    specified in any plan under the Regional and Town Planning Act 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
    defined as:
    “2. (30)“Scheme” includes a plan relating to a town
    planning scheme.”
  99. (2017) 2 SCC 722
    43
    12.According toConcise Oxford English Dictionary
    “scheme” means a systematic plan or arrangement for
    attaining some particular object or putting a particular
    idea into effect. In the same dictionary, the term
    “planning” means planning and control of the
    construction, growth, and development of a town or
    other urban area. As such, we may say that the term
    “planning scheme” means, a systematic plan with an
    object of planning and control of the construction,
    growth and development of a town. We also think it
    relevant to mention here that development plans are
    dealt with under Chapter III, and town planning
    schemes are dealt with under Chapter V of the MRTP
    Act. Section 126 of the Act which is part of Chapter VII,
    deals with plans as well as schemes, but Section 127
    does not refer to town planning schemes.
  100. Effect of final town planning scheme is provided in
    Section 88 of the MRTP Act which reads (as it existed
    before 2014), as under:
    “88. Effect of final scheme.—On and after the day on
    which a final scheme comes into force—
    (a) all lands required by the Planning Authority shall,
    unless it is otherwise determined in such scheme,
    vest absolutely in the Planning Authority free from all
    encumbrances;
    (b) all rights in the original plots which have been
    reconstituted shall determine, and the reconstituted
    plots shall become subject to the rights settled by
    arbitrator;
    (c) the Planning Authority shall hand over possession
    of the final plots to the owners to whom they are
    allotted in the final scheme.”
    xxx xxx xxx
  101. In the present case the prayer is made by the
    appellants in the writ petitions specifically in respect of
    Town Planning Scheme III, which was finally sanctioned,
    as such, we find no error in the impugned judgment
    passed by the High Court dismissing the writ petitions.
    From the copy of special notice dated 25-4-1980 in
    Form 4 issued under the Town Planning Scheme Rules
    (filed as Annexure B with the additional documents) and
    copy of order dated 16-5-1980 passed by the arbitrator
    44
    in the aforesaid Rules, it is clear that the compensation
    was determined in respect of land in question under
    town planning scheme. The decision of the arbitrator
    appears to have been published in the Official Gazette
    dated 20-8-1980, and appeal was dismissed. In the
    circumstances, we find no error in the order passed by
    the High Court.
  102. 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 1976, arbitrator determined the
    compensation in 1980, the appeal filed before the
    Tribunal was dismissed in 1987 and the scheme was
    sent to the Government for sanction in 1988 and it was
    finally sanctioned in 1993 by following the procedure
    under Chapter V which is a self-contained code for the
    implementation of the town planning scheme.”
  103. In Pukhrajmal Sagarmal Lunkad (supra), compensation
    had been determined in respect of the land in question under the
    Town Planning Scheme and there was no challenge to the decision
    of the Arbitrator published in the Official Gazette. It was in the
    45
    backdrop of the aforesaid facts that the High Court/Supreme Court
    refused to interfere.
  104. From the records of the case, particularly the order dated
    20.8.1970 of sub division of plot number 473B 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.
  105. 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.
  106. 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
    46
    the other hand, the scheme clearly records that the same was based
    on entries in property records, and the award of the arbitrator.
  107. As argued by Mr. Sisodia, the Award dated 16th May, 1972 of
    the Arbitrator awarded under the Regional and Town Planning Act
    made it clear that the area and ownership of the plots were to be
    determined as per entries in the property registered. The Award is
    being final and binding under Section 74 on the Planning Authority
    as also the owners under Section 73 of the Regional and Town
    Planning Act. The sub-division in the Scheme under the Regional
    and Town Planning Act is as follows:
    S.No. C.S. No. Area (Sqmt.) Name of the Occupier
    1 1092 B/1 1025.00 Smt. Kanta Nanda
  108. 1092 B/2 603.00 Sri Premal Malhotra
  109. 1092 B/3 2838.00 Shri Dilip Kumar Roy
    Smt. Indira Devi
  110. 1092 B/4 444.00 (Road) Occupiers of Sr. Nos. 1 to
    3 (Road)
  111. 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 Others
    3
    . 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
  112. (2008) 4 SCC 649 (para 42)
    47
    appellant trust cannot be deprived of its property save in
    accordance with law.
  113. 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. As held by this Court in a plethora of decisions,
    including State of Bihar and Others v. Project Uchcha Vidya,
    Sikshak Sangh and Others
    4
    ; Jelubhai Nanbhai Khachar and
    Others v. State of Gujarat and Anr.
    5
    ; Bishambhar Dayal
    Chandra Mohan and Ors. v. State of Uttar Pradesh and
    Others
    6
    , the State possesses the power to take or control the
    property of the owner for the benefit of public. When, however, a
    State so acts it is obliged to compensate the injury by making just
    compensation as held by this Court in Girnar Traders v. State of
    Maharashtra and Others
    7
    .
  114. 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 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
  115. (2006) 2 SCC 545, 574 (para 69)
  116. (1995) Suppl. 1 SCC 596
  117. (1982) 1 SCC 39
  118. (2007) 7 SCC 555 (paras 55 and 56)
    48
    cannot deprive a person of his property without specific legal
    authority, which can be established in a court of law.
  119. 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 as held by this Court in Wazir
    Chand v. State of Himachal Pradesh
    8
    . Admittedly, no
    compensation has been offered or paid to the appellant Trust. As
    observed by this Court in K.T. Plantation Private Limited and
    Anr. v. State of Karnataka9
    , even though the right to claim
    compensation or the obligation of the State to pay compensation to
    a person who is deprived of his property is not expressly provided in
    Article 300A of the Constitution, it is inbuilt in the Article. The State
    seeking to acquire private property for public purpose cannot say
    that no compensation shall be paid. 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.
  120. 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
  121. AIR 1954 SC 415
  122. (2011) 9 SCC 1
    49
    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.
  123. 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.
  124. 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 Others v. M.R. Apparao
    and Anr.
    10
    . 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 of a legal right
    of a citizen and performance of any corresponding legal duty
    by the State or any public authority, could be enforced by
    issuance of a writ of mandamus, “Mandamus” means a
    command. It differs form the writs of prohibition or certiorari
    in its demand for some activity on the part of the body or
    person to whom it is addressed. Mandamus is a command
    issued to direct any person, corporation, inferior courts or
    government, requiring him or them to do some particular
    thing therein specified which appertains to his or their office
    and is in the nature of a public duty. A mandamus is
    available against any public authority including
    administrative and local bodies, and it would lie to any
  125. (2002) 4 SCC 638
    50
    person who is under a duty imposed by a statute or by the
    common law to do a particular act. In order to obtain a writ
    or order in the nature of mandamus, the applicant has to
    satisfy that he has a legal right to the performance of a legal
    duty by the party against whom the mandamus is sought
    and such right must be subsisting on the date of the
    petition. The duty that may be enjoined by mandamus may
    be one imposed by the Constitution, a statute, common law
    or by rules or orders having the force of law.”
  126. 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.
  127. 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. Reference may be made inter
    alia to the judgments of this Court Gunwant Kaur v. Municipal
    Committee, Bhatinda
    11
    and State of Kerala v. M.k. Jose
    12
    . In
    M.K. Jose (supra), this Court held:-
    11 (1969) 3 SCC 769
    12 (2015) 9 SCC 433
    51
    “16. Having referred to the aforesaid decisions, it is
    obligatory on our part 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 the dispute may not appropriately be tried
    in a writ petition, the High Court may decline to try a
    petition. Rejection of a petition in limine will normally be
    justified, where the High Court is of the view that the
    petition is frivolous or because of the nature of the
    claim made dispute sought to be agitated, or that the
    petition against the party against whom relief is claimed
    is not maintainable or that the dispute raised thereby is
    such that it would be inappropriate to try it in the writ
    jurisdiction, or for analogous reasons.
  128. From the averments made in the petition filed by
    the appellants it is clear that in proof of a large number
    of allegations the appellants relied upon documentary
    evidence and the only matter in respect of which
    conflict of facts may possibly arise related to the due
    52
    publication of the notification under Section 4 by the
    Collector.
  129. In the present case, in our judgment, the High
    Court was not justified in dismissing the petition
    on the ground that it will not determine disputed
    question of fact. The High Court has jurisdiction
    to determine questions of fact, even if they are in
    dispute and the present, in our judgment, is a
    case in which in the interests of both the parties
    the High Court should have entertained the
    petition and called for an affidavit-in reply from
    the respondents, and should have proceeded to
    try the petition instead of relegating the
    appellants to a separate suit.” (emphasis supplied)
  130. In ABL International Ltd. v. Export Credit Guarantee
    Corporation of India Ltd.
    13
    , this Court referring to previous
    judgments of this Court including Gunwant Kaur (supra) held: –
    “19. Therefore, it is clear from the above enunciation of law
    that merely because one of the parties to the litigation
    raises a dispute in regard to the facts of the case, the court
    entertaining such petition under Article 226 of the
    Constitution is not always bound to relegate the parties to a
    suit. In the above case of Gunwant Kaur [(1969) 3 SCC 769]
    this Court even went to the extent of holding that in a writ
    petition, if the facts require, even oral evidence can be
    taken. This clearly shows that in an appropriate case, the
    writ court has the jurisdiction to entertain a writ petition
    involving disputed questions of fact and there is no absolute
    bar for entertaining a writ petition 2 even if the same arises
    out of a contractual obligation and/or involves some
    disputed questions of fact.
  131. From the above discussion of ours, the following legal
    principles emerge as to the maintainability of a writ petition:
    13 (2004) 3 SCC 553
    53
    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.”
  132. 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.
  133. 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. In our considered opinion, 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.
    54
  134. Section 88 of the Regional and Town Planning Act, 1966
    provides:
    “88. Effect of [preliminary scheme].- On and after the
    day on which a [preliminary scheme] comes into force-
    (a) all lands required by the Planning Authority shall,
    unless it is otherwise determined in such scheme, vest
    absolutely in the Planning Authority free from all
    encumbrances;
    (b) all rights in the original plots which have been
    reconstituted shall determine, and the reconstituted
    plots shall become subject to the rights settled by
    Arbitrator;
    [(c) ***]”
  135. 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.
  136. Section 125 provides as follows:
    “125. Compulsory acquisition of land needed for
    purposes of Regional Plan, Development plan or town
    planning scheme, etc.- Any land required, reserved or
    designated in a Regional plan, Development plan or town
    planning scheme for a public purpose or purposes including
    plans for any area of comprehensive development or for any
    new town shall be deemed to be land needed for a public
    purpose [within the meaning of the Right to Fair
    Compensation and Transparency in Land Acquisition,
    Rehabilitation and Resettlement Act, 2013 (30 of 2013)].
    [Provided that, the procedure specified in
    sections 4 to 15 (both inclusive) of the Right to
    Fair Compensation and Transparency in Land
    Acquisition, Rehabilitation and Resettlement Act,
    2013 (30 of 2013) shall not be applicable in
    respect of such lands.]
    55
  137. Section 126 stipulates the mode and manner of acquisition of
    land acquired to a designate in Regional, Development and Town
    scheme for a public purpose and the mode of payment of
    compensation.
  138. Section 127 provides that any land reserved, allotted or
    designated for any purpose specified in any plan under the Regional
    and Town Planning Act, which is not acquired by agreement within
    ten years from the date on which 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.
  139. 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.
    56
  140. 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.
  141. In the absence of any proceedings for acquisition or for
    purchase, no land belonging to the Appellant Trust could have
    vested in the State.
  142. 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.
  143. The appeal is therefore allowed, and the Judgment and order
    under appeal is set aside.
  144. In exercise of our power under Article 142 of the Constitution
    of India to do complete justice between the parties, we direct the
    57
    Respondent authorities to act in terms of the Award dated 16th May,
    1972 and delete the name of the Pune Municipal Corporation as
    owner of the private road in the records pertaining to the Scheme
    and carry out such other consequential alterations as may be
    necessary under Section 91 of the Regional and Town Planning Act.
    The appellant trust shall within a fortnight from the date of this
    order, give an undertaking to the Planning Authority not to obstruct
    access of adjacent plot owners through the private road in question.
    The necessary alteration or modification under Section 91, as
    directed above, shall be carried out within six weeks from the date
    of furnishing of the undertaking by the appellant, as directed above.
    ……………………………..J
    [ INDU MALHOTRA ]
    ……………………………..J
    [ INDIRA BANERJEE ]
    AUGUST 07, 2020
    NEW DELHI