In a well-balanced, well-reasoned, well-analysed and well-articulated judgment, a two Judge Bench of Supreme Court comprising of Justice Indu Malhotra and Justice Indira Banerjee in Hari Krishna Mandir Trust vs State of Maharashtra in Civil Appeal No. 6156 of 2013 delivered on August 7, 2020 reiterated that the right to property is still a constitutional and a human right. This was held so while allowing an appeal filed by Hari Krishna Mandir Trust in the matter of a land dispute with the Pune Municipal Corporation. Very rightly so!

To start with, this latest, landmark and laudable judgment authored by Justice Indira Banerjee for herself and Justice Indu Malhotra sets the ball rolling by first and foremost observing in para 1 that, This appeal is against a judgment and order dated 15.09.2008 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, 1996, hereinafter referred to as the Regional and Town Planning Act.

While discussing the facts of the case, it is then enunciated in para 2 that, One Thorat family was the owner of Plot No. 1092 at Bhamburda in Pune. By a registered deed of conveyance dated 21.12.1956 one Mrs. Krishnabhai 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.

Interestingly enough, it is then disclosed in para 3 that, 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.

To be sure, it is then disclosed in para 4 that, 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. 473B 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.

Furthermore, it is then revealed in para 5 that, 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 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.

While continuing in the same vein, it is then stated in para 6 that, 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.

Going ahead, it cannot be overlooked that it is then explicitly mentioned in para 92 that, 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 in possession of Pune Municipal Commissioner nor of the procedure adopted for effecting changes, if any, in the property records.

Interestingly enough, it is then further revealed in para 93 that, 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 473B1, B2, B3 and 473B4 shown as vacant land held by the owners of all the three adjacent plots.

Most significantly, it is very rightly underscored in para 96 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 as observed by this Court in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and Others, (2008) 4 SCC 644 (para 42). 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 appellant trust cannot be deprived of its property save in accordance with law.

To put things in perspective, the Bench very rightly makes it a point to put across in a forthright manner in para 98 that, 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 cannot deprive a person of his property without specific legal authority, which can be established in a court of law.

As it turned out, the Bench then makes it clear in para 99 that, 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 AIR 1954 SC 415. 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 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.

More crucially, the Bench then also makes it amply clear in para 107 that, 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.

Equally significant is what is then stated in para 115 and para 116. Para 115 states that, In the absence of any proceedings for acquisition or for purchase, no land belonging to the Appellant Trust could have vested in the State. Para 116 further states that, 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.

Be it noted, it is then observed in para 117 that, The appeal is therefore allowed, and the judgment and order under appeal is set aside.

Finally, it is then observed in the last para 118 that, In exercise of our power under Article 142 of the Constitution of India to do complete justice between the parties, we direct the 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 above, shall be carried out within six weeks from the date of furnishing of the undertaking by the appellant, as directed above.

In essence, the key takeaway from this latest, landmark and extremely laudable judgment is that the two Judge Bench of Apex Court comprising of Justice Indu Malhotra and Justice Indira Banerjee has once again very firmly reiterated that right to property is a constitutional as well as human right. It is also made clear that the Executive has no right to deprive a person of his/her property without specific legal authority. There can be no denying or disputing it!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.