Supreme court: The 2-judge bench of Indira Banerjee and Indu Malhotra, JJ has held that Section 88 of Maharashtra Regional and Town Planning Act, 1966 cannot be read in isolation from the other provisions of the Act, particularly Sections 65, 66, 125 and 126 thereof. It further, said,

“however laudable be the purpose, the Executive cannot deprive a person of his property without specific legal authority, which can be established in a court of law.”

On whether Section 88 of Maharashtra Regional and Town Planning Act, 1966 can be read in isolation

Section 125 read with Section 126 enables the state/Planning authority to acquire land. Section 65 read with Section 66, on the other hand, protect the interests of the owners. Considering all the relevant provisions, the Court held that 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. However,

“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.”

On Right to property vis-à-vis Doctrine of Eminent Domain

Article 300A of the Constitution of India embodies the doctrine of eminent domain which comprises two parts,

  • possession of property in the public interest; and
  • payment of reasonable compensation.

Noticing that 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, the Court said that 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 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 the authority of law, the owner might obtain restoration of possession by a proceeding for Mandamus against the Government.”

Factual background and Ruling

The Court was hearing the case pertaining to a private road in Pune being declared as being owned by Pune Municipal Corporation whilst in the property records, there was no private road.  In 1970, by an order of the Pune Municipal Corporation, a Plot was divided into 4 plots and a private road admeasuring 414.14 square meters.

On perusal of the documents, the Court noticed that 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. 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.

“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.”

The Court, hence, held that the Pune Municipal Corporation 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.

It, hence, directed the Municipal Corporation to

“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 Maharashtra Regional and Town Planning Act, 1966.”

[Hari Krishna Mandir Trust v. State of Maharashtra,  2020 SCC OnLine SC 631, decided on 07.08.2020]

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