Right to Property still a Legal Right if not a Fundamental Right

Isha Sawant | Government Law College | 17th August 2020

Hari Krishna Mandir Trust v. State of Maharashtra (SC)

Facts:

One Thorat family owned plot no-473 in City Survey no. 1092 at Bamburda in Pune. One Mrs. Krishnabai Gopal Rao Thorat sold northern part of the plot measuring 4910 sqmt. Jointly to Swami Dilip Kumar Roy and his Daughter Smt. Indira Devi, disciples of Sri Aurobindo, by a registered deed of conveyance dated 21-12-1956, both of their names were added to the relevant revenue records in 1959, on the land they established a Hare Krishna Mandir. The appellant stated that by an order of the Pune Municipal Corporation (PMC) dated 20-08-1970, plot 473 originally numbered 1092 was divided, plot 473 B was further subdivided into 4 plots like- 473 B1 measuring 1025 sqmt. owned by Mrs. Kanta Nanda, 473 B2 measuring 603 sqmt. owned by Mr. Premal Malhotra, 473 B3 measuring 2838 sqmt. owned by Swami Dilipkumar Roy and Smt. Indira Devi, 473 B4 measuring 441.14 sqmt. vacant plot of land shown as Internal Private Road in possessions of holders of 473 B; it is not disputed that the PMC was not mentioned in the order. On 20-08-1970, the City Survey Officer in view of a proposed Development Scheme under Maharashtra Regional Town Planning (RTP) Act, 1966 directed the issuance of separate property cards which include plot no. 473, an Arbitrator was appointed who made an award dated 16-05-1972 directing that the area and ownership of the plots to be as per entries in the property register. In 1979 when the Town Planning Scheme came into effect, in ‘B’ Form, final plot no. 473 was shown to be divided into five parts with ownership as:

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

The appellant contended that the PMC by its letters dated 29-06-1996, 04-01-1997 and 18-01-1997admitted that the PMC never acquired the internal road. The town planning also admitted that the [MC has wrongly shown as the road’s owner. The City Survey Officer recommended initiation of action to consider deletion of PMC as the owner of the said road. On 12-03-1997, Smt. Indira Devi transferred FP 473 B3 and the internal road by a registered trust deed to the appellant Hari Krishna Mandir Trust. The appellant had approached the government of Maharashtra to direct the PMC to make changes in the approved Urban Town Planning Scheme to remove the said road from its plan and to include it in the adjacent final plot in their ownership. Resolution no 117 dated 24-06-2001 sanctioned making changes in the section 91 of the Regional and Town Planning Act, however, Urban Development Department, Government of Maharashtra by an order dated 03-05-2006, rejected the proposal. The appellant filed a writ petition before the Bombay High Court challenging the order of the Urban Development Department, however the court, found PMC to be the owner of the said road as per section 88 of the Regional and Town Planning Act. The appellant thus approached the apex court to seek relief against the order of the Bombay High Court.

Issues:

1. Whether the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as the RTP Act) is competent to give ownership of the said land to the government bodies.
2. If any change can be made in section 91 of the Regional and Town Planning Act, 1966 to accommodate the appellants request for deletion of PMC as the owner of the said road.

Legal Issues:

• Sections 91 and 88 of the Maharashtra Regional and Town Planning Act, 1966
• Constitution of India, Article 300 A- right to property.

Appellant’s Contention:

The appellant argued that they were being deprived of the said road without lawful authority which is in violation of Article 300A of the Indian Constitution. They said that as per section 73 of the RTP Act, the award of the Arbitrator in 1972 under section 72 of the same act would be final and binding, however, the change made in Form ‘B’ of the Town Planning Scheme goes against this award. It was further contended that the PMC had not attempted to provide compensation or initiate acquisition proceedings  for the said road as per the procedure of law under sections 64, 65 read with sections 72 and 126 of the RTP Act, this was not disputed by the respondents with the PMC admitting the same. The appellant argued that it was the duty of PMC to rectify the mistake, they stated that both the PMC and the stated accepted the request of rectification of records, this was supported by records. They argued that the High Court had wrongly applied section 88 of the RTP act with considering the pre-conditions of acquisition, compensation and Arbitrators award in respect of vesting the ownership of the said road with the PMC. They claimed that since the land housed deities and sacred trees, the authorities should not illegally interfere with it, they contended that a proper reading and application of section 91 of the RTP Act will help in rectifying the error and correcting the order. 

Respondent’s Contention:

The respondents contended that section 88 of the RTP Act automatically contemplates vesting of land that falls under the Town Planning Scheme, and that the PMC  cannot seek deletion of its ownership of the said road as it would amount to making changes in the Town Planning Scheme. They stated that the Bombay High Court had properly considered sections 88 and 91 of the RTP Act and dismissed the appeal. They stated that by making the change in ownership under section 91 would not be convenient as it would raise problems for future buyers in accessing the approach road to their plots. On the point of deities and sacred trees in the said land, it was argued that the trees were scarce and that the deities can be shifted if they come on the approach road, the respondents relied on the case of Laxminarayan R. Bhattad and Ors v. State of Maharashtra and Anr, whereby the court held that the provisions of the Bombay Town Planning Act now Maharashtra Regional and Town Planning Act will prevail over any policy decision taken by the Corporation or the State.

Observations of the Court:

The appeal was heard by the Supreme Court bench of Indu Malhotra and Indira Banerjee, JJ. The court observing the facts of the case sated that the award of the arbitrator dated 20-08-1970 on sub-division of plot 473 B, it was clear that the PMC was never an owner of the said road measuring 414.14 sqmt. And there was no record in the property register of how it was mentioned as an owner. The court found merit the appellant’s contention that under the RTP Act, ownership of plots was per entries in the property register or the Arbitrators award which is binding and final as per sections 72 and 73 of the same act.

The court stated that the right to property though not a fundamental right is still a constitutional right as per Article 300A and a human right as observed in the case of Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and Others (2008); further article 300A mandates that no person can be deprived of his property save by the authority of law. The State of Bihar and Others v. Project Uchcha Vidya, Sikshak Sangh and Others (2006); Jelubhai Nanbhai Khachar and Others v. State of Gujarat and Anr. (1995); Bishambhar Dayal Chandra Mohan and Ors. v. State of Uttar Pradesh and Others (1982) where it was laid down that the state for the people’s benefit possess the power to take control of the property of the owner, it also mentioned the Girnar Traders v. State of Maharashtra case where it was held that when the state takes such possession it is obliged to justly compensate the injury.

The court stated that the PMC never acquired the said road and that whatever be the purpose for acquiring private property the executive without lawful authority cannot deprive a person of his property. It was observed that no compensation was offered or paid to the appellant. The court mentioned the observation made in K.T. Plantation Private Limited and Anr. v. State of Karnataka (2011) that the right to claim compensation and the obligation of the state to compensate is inbuilt in Article 300A, and the state cannot refuse to pay such compensation while acquiring private property.

The court further stated that in appropriate cases it is duty-bound to issue writ of mandamus for enforcing legal duty, it relied on the observation made in Directors of Settlements, Andhra Pradesh and Others v. M.R. Apparao and Anr. (2002) which stated that writ of mandamus can enforce a person’s legal right or the performance of a legal duty by the state or any public authority. The court also held that the High Court could exercise its writ jurisdiction under Article 226 for trying issues of laws as well as facts. The court held that on the basis of facts, circumstances and admissions by the respondents that the said road was never acquired by the PMC or the state government, it had a public duty under section 91of the RTP Act to modify the scheme and rectify the error by making the said road property of its legitimate owners as per the property register and the Arbitrator’s award. It observed that the Bombay High Court erred in dismissing the writ petition and misinterpreting section 88 by reading it in isolation from the provisions of the sections 65, 66, 125 and 126 of the RTP Act. It also held that the High Court wrongly held that deleting the name of PMC as owner of private road would alter the Town Planning Scheme, which the apex court held baseless.

Judgement:

The court allowed the appeal, setting aside of the judgement of the Bombay High Court. The court asked the respondent authorities to delete the name of PMC as owner of the private road and rectify the errors as per provisions of section 91 of the RTP Act. The appellant trust was directed to submit an undertaking within a fortnight that it will not obstruct the adjacent plot-owners from accessing the private road, the necessary modifications under sec-91 ordered to be carried out within six weeks of the appellant handing in the said undertaking.