Scheme Encroaching Private Property Has to Be Modified as Right to Property

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The Supreme Court in the case of Hari Krishna Mandir Trust Versus State of Maharashtra and others, rendered its judgment, headed by Justice Indira Banerjee.

The judgment concerned the dismissal of a writ petition filed by the appellant that challenged the order in which the State Government refused to sanction the modification of a scheme as per Section 91 of the Maharashtra Regional and town planning act, 1966.

Brief Facts of the case 

By an order dated 03.05.2006, the urban development department rejected the proposal for modification of the scheme under section 91 on the grounds that the land holders’ name had been recorded incorrectly. Further, the internal road of the final plot number 473B had been alleged to come under the Pune municipal corporation.
It was prima facie decided that the area of the ownership of the plot was to be as per entries in the property register.

Appellant’s Arguments

They argued that they cannot he denied of the strip of land being a private road without the authority of law, which would be a violation of Article 300-A of the Constitution. Further it was argued that it was already decided that the ownership would be determined as per the entries in the property register. Therefore, the respondent ought to correct the entry that was incorrectly recorded as per the directions of the arbitral tribunal.

Respondent’s Arguments

The respondents argued that the deletion of a road from a town planning scheme can be said to be a variation of substantial nature, in consonance with section 91 of the aforementioned Act. Therefore, the findings of the High court, in siding with the Pune municipal corporation was correct.

Findings of the Court and Judgment

The Court held that at no point was the Pune municipal commissioner reflected as holder of the private road. Further, no evidence pointed that the ownership belonged to the municipal corporation.

The Court agreed that the ownership should be determined as per the entries in the register and the arbitration award is final and binding under section 74 of the planning authority act. The Court also held that the right to property is a constitutional right, therefore violation of Art 300-A against the respondents holds merit.

Therefore, the respondents had a duty to modify the scheme and to show the private road as property of its legitimate owners. The same shall be done as per section 91 within 6 weeks from the date of undertaking by the appellant.


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