TaxTMI 
TaxTMI 
2020 (8) TMI 848
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....shnabai 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. 3. 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. 4. According to the Appellants, by an order dated 20.8.1970 of the Pune Municipal Corporation, Plot No. 473 which was originally numbered Survey No. 1092, was divided. Final plot No. 473 B was sub-divided into 4 plots being plot Nos. 473 B1 comprising an area of 1025 square meters, 473 B2 comprising an area of 603.00 square meters, 473 B3 comprising an area of 2838 square meters and 473 B4, a private road admeasuring 414.14 square meters. 5. Plot No. 473 B1 was owned by Mrs. Kanta Nanda, Plot No. 473 B2 by Mr. Premal Malhotra, and Plot No. 473 B3 by Swami Dilip Kumar Roy and Smt. Indira Devi. Plot N....
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.... B/1 1025.00 Smt. Kanta Nanda 2. 1092 B/2 603.00 Sri Premal Malhotra 3. 1092 B/3 2838.00 Shri Dilip Kumar Roy Smt. Indira Devi 4. 1092 B/4 444.00 (Road) Occupiers of Sr. Nos. 1 to 3 11. 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. 12. By a letter dated 4.1.1997 written in response to a letter dated 4.12.1995, the City Deputy Engineer, Construction Control, Pune Municipal Corporation informed Smt. Indira Devi that the internal road of final plot number 473 B had not come into the possession of the Pune Municipal Corporation. 13. By a letter dated 18.1.1997 of the Town Planning and Valuation Department of the State Go....
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.... And whereas, considering all these facts, the Government of Maharashtra 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. 473 B-2 to 473 B-4 and effect consequential changes in the area of these final plot numbers. b) The said Corporation shall accordingly prepare and publish and draft variation as per provision laid down in Sub-section (2) of Section 91 of the said Act. By order and in the name of the Governor of Maharashtra. 16. By a letter dated 23.10.2002, the Additional....
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....roval is being provided to give the opinion of Municipal Corporation for providing the road available. 20. By a letter dated 5.4.2006, the City Engineer, Pune Municipal Corporation informed the Municipal Commissioner that the internal road in plot number 473 B 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. 21. Thereafter the Municipal Commissioner wrote a letter to the State Government on 7.4.2006 submitting a proposal for approval of variation in the Town Planning Scheme Under Section 91 of the Regional and Town Planning Act. 22. By an order dated 3.5.2006 impugned in the writ petition, the Urban Development Department, Government of Maharashtra rejected the proposal for modification of the Scheme Under Section 91 with the following observations: 1. The proposal had been opposed by the Pune Municipal Corporation, ....
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....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. 27. 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. 28. 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 Municipal C....
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....order itself. 34. 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 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. 35. Section 3 of the Regional and Town Planning Act, 1966 empowers the State Government to establish by notification any area in the State by defining its limits, to be region for the purposes of the said Act and to name and alter the name of any such region. Section 4 read with Section 8 of the Regional and Town Planning Act provides for the constitution of Regional Planning Boards: (a) to carry out a....
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....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. 39. 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. 40. The Town Planning Scheme might ....
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.... (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.] 42. Section 61 enables the Planning Authority to make a draft scheme for an area, in respect of which a declaration is made. In ....
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....d 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; (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. 47. 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 propo....
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....to another. 50. 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. 51. 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 whic....
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.... (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. 54. 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 dra....
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.... 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 [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) [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 Sub-clauses (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....
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....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 62. However, in Form B of the Town Planning Scheme (TPS) the said sub-division was sought to be changed as follows: 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 63. 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 ....
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....ng provision of Section 88(a) without the pre-conditions of the said Section of re-constitution, 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. 69. 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 the same amounts to substantial variation in the Town Planning Scheme. 70. Mr. Katneshwar argued that the High Court has rightly interpreted Section 88 and Section 9....
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..... 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. 75. 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. 76. 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. 77. Mr. Adkar submitted that during the pendency of the appeal, the Appellants purported to bring on record certain new facts which had been discovered, without leave of this Court. The Respondents therefore d....
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....ents 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 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. 84. 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. 85. 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 consideratio....
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....remit the matter back to the authority concerned for de novo hearing and decision. 89. 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 Pukhrajmal Sagarmal Lunkad (D) thru. His Legal heirs and Ors. v. Municipal Council, Jalgaon and Ors. (2017) 2 SCC 722. 90. 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 Plannin....
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....stituted 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 16. 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 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. 17. The landowners further relied on Girnar Traders v. St....
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....ds, there was no private road. There were three plots 473 B1, B2, B3 and 473 B4 shown as vacant land held by the owners of all the three adjacent plots. 94. The Municipal Corporation was never shown as owner of the vacant plot or of any private road. Even assuming that there was any policy decision to have an approach road to every plot, it was incumbent upon the authorities concerned to acquire the land. On the other hand, the scheme clearly records that the same was based on entries in property records, and the award of the arbitrator. 95. 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 (Sq.mt.) Name of the Occupier 1 1092 B/1 1025.00 Smt. Kanta Nanda 2. 1092....
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....offered or paid to the Appellant Trust. As observed by this Court in K.T. Plantation Private Limited and Anr. v. State of Karnataka (2011) 9 SCC 1, 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. 100. The High Courts exercising their jurisdiction Under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the Government or has exercised such discretion malafide, or on irrelevant consideration. 101. In all such cases, the High....
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.... Mandamus. Unless a statutory duty or right can be read in the provision, Mandamus cannot be issued to enforce the same. 104. 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 (1969) 3 SCC 769 and State of Kerala v. M.K. Jose (2015) 9 SCC 433. In M.K. Jose (supra), this Court held: 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 d....
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....onal Ltd. v. Export Credit Guarantee Corporation of India Ltd. (2004) 3 SCC 553, 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. 27. From the above discussion of ours, the following legal principles emerge as to the maintainability of a writ petition: a) In an appropriate case, a writ petition as against a St....
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....anning 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.] 111. 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. 112. 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 co....