2020 Supreme(SC) 477

SUPREME COURT OF INDIA
INDU MALHOTRA, INDIRA BANERJEE, JJ.
Hari Krishna Mandir Trust – Appellant
Versus
State of Maharashtra And Others – Respondents
Civil Appeal No. 6156 of 2013
Decided On : 07-08-2020

IMPORTANT POINTS
(1) State seeking to acquire private property for public purpose cannot say that no compensation shall be paid.
(2) Court is duty bound to issue a writ of Mandamus for enforcement of a public duty.
(3) Even though right to claim compensation or obligation of State to pay compensation to a person who is deprived of his property is not expressly provided in Article 300A of Constitution, it is inbuilt in Article 300A.

Headnote:

(A) Constitution of India – Article 300A – Right to property – Right to property may not be a fundamental right any longer, but it is still a constitutional right under Article 300A and a human right – In view of mandate of Article 300A of Constitution of India, no person is to be deprived of his property save by authority of law – Article 300A of Constitution of India embodies doctrine of eminent domain which comprises two parts, (i) possession of property in public interest; and (ii) payment of reasonable compensation – State possesses power to take or control property of owner for benefit of public – When, however, a State so acts it is obliged to compensate injury by making just compensation – Right to property includes any proprietary interest hereditary interest in right of management of a religion endowment, as well as anything acquired by inheritance – However, laudable be the purpose, Executive cannot deprive a person of his property without specific legal authority which can be established in a court of law – In case of dispossession except under authority of law, owner might obtain restoration of possession by a proceeding for Mandamus against Government – Even though right to claim compensation or obligation of State to pay compensation to a person who is deprived of his property is not expressly provided in Article 300A of Constitution, it is inbuilt in Article 300A – State seeking to acquire private property for public purpose cannot say that no compensation shall be paid. (Paras 96, 97, 98 and 99)

(B) Constitution of India – Article 226 – Writ Jurisdiction – Court is duty bound to issue a writ of Mandamus for enforcement of a public duty – An important requisite for issue of Mandamus is that Mandamus lies to enforce a legal duty – This duty must be shown to exist towards 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 – High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering petitioner's right to relief questions of fact may fall to be determined – In a petition under Article 226 High Court has jurisdiction to try issues both of fact and law – Exercise of jurisdiction is discretionary but discretion must be exercised on sound judicial principles. (Paras 103, 104)

(C) Maharashtra Regional and Town Planning Act, 1966 – Sections 59 and 91 – Constitution of India – Article 226 – Town planning – Acquisition of land/road – Municipal Corporation was never shown as owner of 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 authorities concerned to acquire the land – On other hand, scheme clearly records that same was based on entries in property records and award of Arbitrator – Appellant trust cannot be deprived of its property save in accordance with law – 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 – High Courts exercising their jurisdiction under Article 226 of Constitution of India, not only have power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty bound to exercise such power where 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 Government or has exercised such discretion malafide, or on irrelevant consideration – In all such cases, High Court must issue a Writ of Mandamus and give directions to compel performance in an appropriate and lawful manner of discretion conferred upon Government or a public authority – Private road in question did not at any point of time belong to Pune Municipal Corporation – It is shown to be held by holders by adjacent plots – Respondents had a public duty under Section 91 to appropriately modify scheme and to show private road as property of its legitimate owners, as per property records in existence, and or in award of Arbitrator – Bombay High Court erred in law in dismissing Writ Petition with observation that land in question had vested under Section 88 of Regional and Town Planning Act – In absence of any proceedings for acquisition or for purchase, no land belonging to Appellant Trust could have vested in State – Judgment and order under appeal set aside – In exercise of power under Article 142 of Constitution of India to do complete justice between parties, Respondent authorities directed to act in terms of the Award and delete name of Pune Municipal Corporation as owner of private road in records pertaining to Scheme and carry out such other consequential alterations as may be necessary under Section 91 of Regional and Town Planning Act. (Paras 93, 94, 96, 99, 100, 101, 106, 107, 113, 115, 117 and 118)

Facts of the case:

Present 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.

Findings of Court:

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. In the absence of any proceedings for acquisition or for purchase, no land belonging to the Appellant Trust could have

vested in the State.

Result : Appeal allowed.