The Court is duty bound to issue a Writ of Mandamus for enforcement of a public duty: SC

HARI KRISHNA MANDIR TRUST V.STATE OF MAHARASHTRA AND OTHERS, CIVIL APPEAL NO.6156 OF 2013, 07th August, 2020.

The Bench comprising of Hon’ble Justice Indira Banerjee, and Hon’ble Justice Indu Malhotra pronounced the judgment on the appeal against the judgment passed by Bombay High court.

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.

In the present case, the appellant trust filed an application to the State Government to rectify the wrong entry stating that the internal road had never been acquired by the Pune Municipal Corporation. The Town and Planning Department also admitted that Pune Minicipal Corpotation had wrongly been shown to be owner of said road. The Additional Municipal Corporation Commissioner, Pune Municipal Corporation informed the Secretary, Urban Development Department, Government of Maharashtra that the Town Planning Scheme No. I in respect of Plot number 473B had been given effect without any change in the boundaries of the plot. The appellants filed the writ petition being in the Bombay High Court challenging the said order. 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.

Mr. Pallav Sisodia, learned senior counsel appearing for the Appellant trust, assisted by Mr Braj K Mishra, argued, and in our view rightly, 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. Mr. Sisodia submitted that in any case the award made by the Arbitrator in 1972 under Section 72 of the Regional and Town Planning Act stood final and binding. Mr. Sisodia emphatically argued that the award dated 16.5.1972 of the Arbitrator appointed 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 Register.

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.

Mr. Katneshwar argued that the High Court has rightly interpreted Section 88 and Section 91 of the Regional and Town Planning Act and dismissed the writ petition. Deletion of a road from a Town Planning Scheme can be said to be a variation of substantial nature. Section 91 contemplates minor variation in Town Planning Scheme by following requisite procedure. Mr. Katneswhar argued that pragmatically also modification of the scheme would not be expedient, as future purchasers would have no approach road to access their properties as would be clear from the map of the said plots.

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.

The Court stated that;

The Court is duty bound to issue a writ of Mandamus for enforcement of a public duty. There can be no doubt that an important requisite for issue of Mandamus is that Mandamus lies to enforce a legal duty. This duty must be shown to exist towards the 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.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.

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. The appeal is therefore allowed.

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CIVIL APPEAL NO.6156 OF 2013

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– Karthik K.P (School of Law, SASTRA Deemed to be University)