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No person can be deprived of land by Govt. save in accordance with law, Supreme Court

The SC on August 7, 2020 {HARI KRISHNA MANDIR TRUST vs STATE OF MAHARASHTRA AND OTHERS} held that the Appellant cannot be deprived of the subject strip of land being the private road without authority of law, as this would be a violation of Article 300-A of the Constitution of India, which prohibits deprivation of person from property without authority of law. 

It was held by the SC Bench, comprising of Justice Indira Banerjee & Justice Indu Malhotra, that the Municipal Corporation was never shown as owner of the vacant plot or of any private road. It was held that 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. It was held on the other hand, the scheme clearly records that the same was based on entries in property records, and the award of the arbitrator. 

The SC held that the finding of the High Court that it was never the case of the petitioner that the land had not vested, is misconceived. It was held that first of all there does not appear to be any admission of vesting on the part of the Appellant Trust. It was held that in any case land can only vest in accordance with law. It was held that if the land has not vested, a mistaken admission would make no difference, for there can be no estoppel against the Constitution of India, or any statute.

The SC held 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 the Court earlier. It was held that 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. It was held that the appellant trust cannot be deprived of its property save in accordance with law.

It was observed 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. It was held 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. It was held 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.

It was held 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 the Court in Wazir Chand v. State of Himachal Pradesh, AIR 1954 SC 415. It was held that admittedly, no compensation has been offered or paid to the appellant Trust. It was held that as observed by the Court in K.T. Plantation Private Limited and Anr. v. State of Karnataka,  (2011) 9 SCC 1 49, 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. It was held that the State seeking to acquire private property for public purpose cannot say that no compensation shall be paid. It was held that the Regional and Town Planning Act also does not contemplate deprivation of a land holder of his land, without compensation. It was held that statutory authorities are bound to pay adequate compensation.

The SC held that 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.

It was held that in appropriate cases, in order to prevent injustice to the parties, the Court may itself pass an order or give directions which the government or the public authorities should have passed, had it properly and lawfully exercised its discretion.

It was held that 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. It was held that 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.

The SC concluded 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. It was held that 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.

The appeal was therefore allowed by the SC, and the Judgment and order under appeal was set aside.

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