One Thorat family was the owner of Plot at Bhamburda in Pune. By a registered deed of conveyance dated 21.12.1956 one Mrs. Krishnabai Gopal Rao Thorat sold the northern part of the plot admeasuring 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. 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. 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. 473 B was sub divided into 4 plots. 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. The appellant contends that the Pune Municipal Corporation by its letters dated 29.6.1996, 4.1.1997 and 18.1.1997 admitted that the internal road had never been acquired by the Pune Municipal Corporation. The Town and Planning Department also admitted that Pune Municipal Corporation had wrongly been shown to be owner of said road.

The Urban Development Department rejected the proposal of the Appellant and held that Pune Municipal Corporation is the owner of the land. The Hon’ble High Court dismissed the Writ Petition challenging the said order and refused to issue a Writ of Mandamus.

The Hon’ble Supreme Court 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. 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 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 mala fide, or on irrelevant consideration. 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 discretionary, but the discretion must be exercised on sound judicial principles.  (CA No. 6156 of 2013  dt . 07.08.2020 )