M/s Shankarlal Gulabchand & Co., A Partership FirmThrough it’s Partner Sunilkumar Shankarlal Mor v. The State of Maharashtra

8377-25-WP.odt {1}IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.8377 OF 2025M/s Shankarlal Gulabchand & Co., A Partership FirmThrough it’s Partner Sunilkumar Shankarlal MorVersusThe State of Maharashtra and Others......Mr. Surendra V.Suryawanshi, Advocate for the Petitioner.Mr. S.K.Tambe, Addl. G.P. for Respondents No.1 to 4......CORAM: SMT. VIBHA KANKANWADI AND HITEN S. VENEGAVKAR, JJ. DATED: 17 NOVEMBER, 2025ORDER [Per Hiten S. Venegavkar, J.] :-1.The petitioners have invoked the writ jurisdiction of this Courtunder Article 226 of the Constitution of India seeking a declaration thatthe reservation for the public purpose of “public housing and houses forhomeless” imposed under the sanctioned Development Plan of JalgaonCity in respect of land bearing CTS No. 2134, Survey No. 272admeasuring 3844.5 square meters situated within the limits of JalgaonMunicipal Corporation has lapsed by operation of Section 127 of theMaharashtra Regional and Town Planning Act, 1966 (hereinafterreferred to as ‘the said Act’) and for a consequential direction to therespondents to notify such lapsing in the Official Gazette under Section127(2) of the said Act. 8377-25-WP.odt {2}2.The factual backdrop, which is largely undisputed in itschronology, is that the petitioners claim to have derived title to thesubject land pursuant to an assignment executed on 04.04.1960 by theOfficial Assignee of Bombay in insolvency proceedings. The land, whichis now identified as CTS No. 2134, Survey No. 272, came within themunicipal limits of Jalgaon and upon sanction of the final DevelopmentPlan for Jalgaon City, which came into force on 15.02.1993, the saidland was reserved as Reservation Site No. 82 for the public purpose ofpublic housing and houses for homeless. It is the case of the petitionersthat despite lapse of more than ten years from the coming into force ofthe final Development Plan, no steps were taken by the planningauthority to acquire the land in accordance with Section 126 of theMRTP Act. Consequently, the petitioners issued purchase notices dated29.07.2003 and 20.01.2004 invoking Section 127 of the Act. Correspondence thereafter ensued between the petitioners andrespondent No.5, culminating in forwarding of an acquisition proposalto the State Government, which however never fructified into issuanceof a declaration under Section 6 of the Land Acquisition Act, 1894 norinto passing of an award under Section 11 thereof. On these premises, the petitioners assert that the reservation has lapsed by operation oflaw. 8377-25-WP.odt {3}3.The statutory framework relevant for consideration of thecontroversy is well settled. Section 126 of the MRTP Act provides themodes by which land reserved, allotted or designated in a DevelopmentPlan may be acquired, namely by agreement, by grant of Floor SpaceIndex or Transferable Development Rights, or by acquisition under theLand Acquisition Act.4.Section 127, as it stood at the relevant time, stipulates that ifany land reserved, allotted or designated for any purpose specified in aDevelopment Plan is not acquired by agreement within ten years fromthe date on which the final Development Plan comes into force, or ifproceedings for acquisition are not commenced within such period, theowner may serve a notice (purchase notice) on the planning authorityrequiring it to acquire the land. If within six months from the date ofservice of such notice, the land is not acquired or no steps ascontemplated by Section 126 are commenced, the reservation isdeemed to have lapsed and the land becomes available to the owner fordevelopment as otherwise permissible.5.Sub-section (2) of Section 127 casts an obligation on the StateGovernment to notify such lapsing in the Official Gazette. However, before examining the applicability of these provisions on merits, it isnecessary to note that the very same petitioners had earlier approached 8377-25-WP.odt {4}this Court by filing Writ Petition No. 6844 of 2007 before theAurangabad Bench seeking substantially identical reliefs. The prayerclause in the said petition sought a declaration that land bearing SurveyNo. 272, CTS No. 2134 reserved under the Development Plan bedeclared de-reserved pursuant to the purchase notice dated 29.07.2003.By judgment and order dated 19.09.2023, the Aurangabad Benchconsidered the rival pleadings, including the affidavit filed by theMunicipal Corporation specifically disputing the ownership status of thepetitioners and contending that the petitioners were merely lesseesholding leasehold rights under an indenture dated 04.04.1960 for aperiod of 51 years which had expired in the year 2001 without renewal. The Court recorded that the indenture was not produced before it and, therefore, it was not possible to ascertain whether the petitioners hadabsolute ownership rights or merely leasehold rights and whether suchrights entitled them to seek development or claim lapsing ofreservation.6.In view of the serious disputed questions of fact relating to titleand nature of rights, the Court held that such issues could not beadjudicated in writ jurisdiction and disposed of the petition keepingrival contentions open, granting liberty to the petitioners to adoptappropriate proceedings in accordance with law. 8377-25-WP.odt {5}7.In the present petition, though couched in slightly differentlanguage, the substance of the grievance and the reliefs sought are thesame, namely, declaration of lapsing of reservation under Section 127 inrespect of the very same land. The doctrine of finality of adjudicationand the principle that a litigant cannot re-agitate the same cause ofaction by merely rephrasing prayers are clearly attracted. Nonetheless, during the pendency of the present petition, by order dated 11.07.2025,this Court granted an opportunity to the petitioners to produce theoriginal conveyance/assignment deed dated 04.04.1960, which wasadmittedly not placed before the Court when Writ Petition No. 6844 of2007 was decided. The said document was produced and perused.8.A careful perusal of the indenture and the accompanyingconditions of sale unequivocally demonstrates that what was put toauction and purchased by the petitioners through the Official Assigneewas not absolute ownership of freehold land but leasehold interest for afixed term of 51 years commencing from 1 January 1950 in respect oflands bearing Survey Nos. 271 and 271A, subject to specific conditions. The document itself records that the insolvents held only leaseholdrights derived from original lessors and that the auction was expresslysubject to the conditions of the lease. There is nothing on record toshow that the lease was renewed or extended beyond its expiry in the 8377-25-WP.odt {6}year 2001. Thus, even on the petitioners’ own showing through theoriginal document now produced, the objection raised by therespondent authorities regarding the petitioners’ ownership status is notwithout substance.9.Whether a person holding leasehold rights for a limited term, which has admittedly expired, can invoke Section 127 of the MRTP Actand seek declaration of lapsing of reservation raises complex anddisputed questions of fact and law, including the nature of subsistingrights, entitlement to develop the land, and locus to demand acquisitionor lapsing of reservation. These issues necessarily require adjudicationon evidence and cannot be satisfactorily determined in the exercise ofwrit jurisdiction under Article 226. The MRTP Act contemplates lapsingof reservation at the instance of an “owner” of the land. Thedetermination as to whether the petitioners answer that description inthe facts of the present case is itself in serious dispute.10.In view of the above, this Court is of the considered opinion thatthe cause raised by the petitioners has already been the subject matterof adjudication by this Court in Writ Petition No. 6844 of 2007 decidedon 19.09.2013. Even otherwise, the present petition involves disputedquestions relating to title and nature of rights in the subject land, whichrender the petition unsuitable for determination under Article 226 of 8377-25-WP.odt {7}the Constitution of India. The petitioners’ attempt to re-agitate the sameissue by filing the present petition, despite the earlier adjudication andwithout first establishing their rights before a competent forum, cannotbe permitted.11.Accordingly, the writ petition is dismissed. However, inconsonance with the liberty earlier granted and reiterated herein, thepetitioners are at liberty to approach the appropriate forum and toinitiate such proceedings as may be permissible in law for adjudicationof their rights, title and entitlements in respect of the subject land. There shall be no order as to costs.12.As per Court’s order dated 11.07.2025, original documentssubmitted by the petitioner be returned to him. [ HITEN S. VENEGAVKAR ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGES P Rane