Suresh Devchand Shah And Ors. vs State Of Maharashtra And Ors.

CNR No : HCBM010536602023

2026:BHC-AS:42275-DB

WP-15-2024-Judgment.doc
Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 15 OF 2024
1. Suresh Devchand Shah,
2. Jitendra Devchand Shah,
3. Atul Devchand Shah,
All having their Office at 122/A-
Thakurdwar Road, Datta Mandir
Compound, Mumbai – 400 002. ..PETITIONERS
~ versus ~
1. The State of Maharashtra
2. The Collector and Competent
Authority,
Urban Land Agglomeration, Thane
3. The Tahsildar,
Mira-Bhayandar
4. Mira Bhayander Municipal
Corporation,
Indira Gandhi Bhavan, Shivaji Road,
Bhayandar (West), Thane–401 101.
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M/s. Raj Project and Infrastructure,
5.
B/29, 02, Sector-11, Shantinagar,
Mira Road (East), Thane – 401 107. ..RESPONDENTS
A PPEARANCES
For the Petitioner Mr. Kailas Dewal with Mr. Yash Dewal
and Mr. Ashwin Kulkarni, Advocates.
Mrs. Shruti D. Vyas, Additional
Government Pleader with Mrs. M.S.
Bane, Assistant Government Pleader.
For Respondent
Nos. 1 to 3-State of
Maharashtra
CORAM : SUMAN SHYAM &
GAUTAM A. ANKHAD, JJ
th
RESERVED ON : 29 SEPTEMBER, 2026.
th
PRONOUNCED ON : 16 OCTOBER, 2026.
JUDGMENT ( Per Gautam Ankhad, J) :-
1. Rule. Rule is made returnable forthwith and the Writ
Petition is heard finally with the consent of the parties.
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2. The Petitioners are the owners and currently in
possession of land bearing Survey No.153/1 (Old Survey
No.392/1), admeasuring 58.80 Ares situated at Village
Navghar, District Thane. The Petitioners have impugned the
st
legality and validity of the orders dated 1 December, 2008
rd
and 3 November, 2020 passed by Respondent Nos.1 and 2
respectively, directing Respondent No.3 and its officers to
enter a remark regarding the obligation/responsibility with
reference to Section 20 of the Urban Land (Ceiling and
Regulation) Act, 1976 (“ULC Act”). Pursuant thereto,
nd
Mutation Entry No.2222 dated 22 December, 2015 and
nd
Mutation Entry No.2760 dated 2 July, 2021 came to be
entered in the revenue records by Respondent No.3, which
is also impugned in this Petition.
3. The brief facts leading to the filing of the present
Petition are as follows:-
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(i) Caroline Jasin Rebello, Philip Jasin Rebellow,
Walter Jasin Rebello, Plasid Jasin Rebello, Moras
Jasin Rebello, Elsie Michael Pareira and Nebal Patel
were the original owners of the land admeasuring
65.30 Ares (“said land”), out of which land
admeasuring 3,026 square meters was declared as
surplus land under Section 8(4) of the ULC Act by
th
an order dated 17 February, 1982. However, the
original owners/predecessors-in-title of the
Petitioners continued to remain in possession of the
said land.
th
(ii) On 8 June, 2005, Respondent No.2 issued a
Notification under Section 10(1) of the ULC Act, in
respect of the said land and furnished particulars of
the vacant land held in excess of the ceiling limit.
rd
(iii) On 23 April, 2007, on an application for
Exemption under Section 20 of the ULC Act filed by
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the original owners, Respondent No.2 issued the
Exemption Order pursuant to a Scheme submitted
for constructing tenements of different categories
under the said Order. Respondent No.2 exempted
210 square metres of vacant land, as mentioned in
the Schedule. The Exemption Order inter alia
records at Condition Nos.5, 13 and 17 as follows:-
“5. The said person/Developer shall commence
construction of tenements within a period of One year
from the date of this exemption order and shall
complete the construction work within three years
failing which the exemption shall stand withdrawn. If
part of land is utilized and part remains unutilized,
then the land under such incomplete buildings along
with land appurtenant there at will attract provision of
Chapter III of Urban Land (Ceiling and Regulation)
Act, 1976.
… …
13. The exemption granted under Section 20 of said Act
shall be deemed to have been withdrawn for such
vacant land which have not been built upon as and
when such exempted lands are required for any
Government organization in public interest.
… …
17. If at any time Competent Authority or the State
Government has noticed that there is breach of any of
these conditions mentioned in this order, it shall be
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lawful for Competent Authority or State Government
to withdraw the exemption order from the date
specified in such order.”
th
(iv) On 7 July, 2007, a Notification under Section
10(3) of the ULC Act was published declaring the
vesting of the excess vacant land admeasuring
3,026 square metres and its deemed acquisition by
the State Government.
th
(v) On 14 November, 2007, a Notice under Section
10(5) of the ULC Act was issued by Respondent
No.2 calling upon the Petitioners to surrender and
handover possession of the vacant land
admeasuring 3,026 square metres within twenty
days of receipt of the said notice.
th
(vi) On 29 November, 2007, the ULC Act was repealed
by Respondent No.1 by the Urban Land (Ceiling and
Regulation) Repeal Act, 1999 (“Repeal Act”).
Section 3 of the Repeal Act, which contains the
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“Saving clause”, provides that the repeal would not
affect (a) the vesting of any land in respect of which
possession had been taken by the State
Government; (b) the validity of any exemption
under Section 20(1) or any action taken thereunder
notwithstanding any judgment of any Court to the
contrary; and (c) any payment made to the State
Government as a condition for granting exemption
under Section 20(1).
th
(vii) On 11 November, 2008, the original
owners/Petitioners’ predecessors-in-title filed Writ
Petition No.441 of 2009 (Philip Jasin Rebellow
(since deceased), through Legal Heirs: 1(a) Sheela
Philip Rebellow & Ors. Vs. The State of Maharashtra
& Ors.) inter alia seeking the following reliefs:
“(a) This Honourable Court may be pleased to, by an
appropriate writ and/or order and/or direction, quash
and set aside the orders passed/notices issued under
th
Section 10, sub-clause (1) dated 8 June, 2005, under
th
Section 10, sub-clause (3) dated 7 July, 2007 and
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th
under Section 10, sub-clause (5) dated 14
November, 2007 of the said Act;
(b) Pending the hearing and final disposal of the present
Writ Petition, this Honourable Court may be pleased
to restrain the Respondents from giving effect to
and/or implementing the orders passed/notices
th th th
issued dated 8 June, 2005, 7 July, 2007 and 14
November, 2007 on such terms and conditions this
Honourable Court may deem fit and proper under the
circumstances.”
(viii) The said Petition was, inter alia, filed on the basis
that possession of the surplus land had not been
th
taken by Respondent No.1 on or before 29
November 2007, i.e., date of the ULC Repeal Act.
This fact was confirmed by Respondent No.2 in its
th
affidavit-in-reply dated 9 July, 2009. After
considering the record, this Court by its order dated
th
18 November, 2009 allowed Writ Petition No.441
of 2009. For convenience, the said order is quoted:
“1. Rule. Rule is made returnable forthwith. Heard finally
by consent of parties.
2. The following facts can be taken as admitted.
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3. By order under Section 8 of the Urban Land (Ceiling
and Regulation) Act, 1976 (hereinafter referred to as
“the ULC Act”), land admeasuring 3,226 square
meters was declared as surplus land from the holding
of the petitioner. Out of that land, land admeasuring
210 square meters was exempted because of sanction
of the Scheme under Section 20 of the said Act for
sanction in relation to that land. One of the
conditions of exemption was that the petitioner shall
build upon the land within one year of the sanction of
the Scheme. The petitioner could not build upon the
land and comply with the condition. Therefore, the
State Government assumed that exemption is deemed
to have been withdrawn and, therefore, issued
notification under Section 10(1) of the Act in relation
to the entire surplus land. A notice under sub-section
(3) of Section 10 was issued on 7.7.2007. Then on
14.11.2007 notice under sub-section (5) of Section 10
was issued asking the petitioner to deliver possession
of the surplus land within a period of 20 days from
the date of the notice.
4. According to the petitioner, this notice under sub-
section (5) of Section 10 is invalid. It gives only 20
days to the petitioner to deliver possession. In any
case, according to the petitioner, pursuant to notice
dated 14.11.2007, possession of the surplus land has
not been taken by the respondent before 29.11.2007,
the date when the ULC Act was repealed by the Urban
Land (Ceiling and Regulation) Repeal Act, 1999.
5. The learned counsel appearing for the petitioners
therefore relying on the judgment of this Court in the
case of Voltas Ltd. and another Vs. Additional
Collector and Competent Authority and others
reported in 2008(5) Bom.C.R. 746 submitted that as
the possession of the land has not been taken before
29.11.2007 and further proceedings under the ULC
Act in relation to the land of the petitioner have
abated.
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6. The respondent Government has filed their affidavit.
In the affidavit, they do not claim that possession has
been taken. In fact, in para-1 a categorical statement
has been made that the respondents have not taken
possession of the land. In this view of the matter, in
the light of the law laid-down by Division Bench of
this Court in the case of Voltas Ltd. (supra) , the
Petition succeeds and is allowed. It is declared that all
further proceedings in relation to the land which is
subject matter of this Petition under ULC Act have
abated. Rule is made absolute accordingly. No order
as to costs.”
(ix) The said order has not been challenged by the
st
Respondents. Meanwhile, on 1 December, 2008,
Respondent No.1 issued the impugned
communication directing all Deputy Collectors
and Competent Authorities to record an entry in
the “Other Rights” column of the 7/12 Extract in
respect of all lands in relation to which the
scheme submitted by the landowners under
Section 20 of the ULC Act was pending. This was
th
followed by letters dated 26 March, 2009 and
th
5 November, 2009, by which Respondent No.2
directed Respondent No.3 and its officers to
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record a mutation entry in respect of the
Petitioners’ land and impose restrictions on the
sale/ transfer of the said land.
rd
(x) On 3 September 2010, Respondent No.2 issued
a Notification recording that physical possession
had not been taken by Respondent No.2 and that
the entry reflecting the State’s ownership had
itself been cancelled. A copy of the said
Notification was tendered by the Petitioner’s
counsel during the course of hearing, which is
taken on record and marked ‘X’ for identification.
The said Notification is not disputed by the
learned Additional Government Pleader.
(xi) The Petitioners purchased the said land from the
original owners by and under registered Sale
th st
Deed dated 26 December, 2011 and 31
December, 2012. Thereafter, Petitioner Nos.1 to 3
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sold a portion of the said land admeasuring 650
square metres to Respondent No.5 and are
currently in occupation and possession of 58.80
Ares.
nd
(xii) On 22 December, 2015, Respondent No.3,
without serving any notice upon the Petitioners
or their predecessors-in-title, entered Mutation
Entry No. 2222 in the revenue records of the said
rd
land. Thereafter, on 3 November, 2020,
Respondent No.2 issued the impugned
communication directing Respondent No.3 to
enter, in the “Other Rights” column of the 7/12
Extract, the remark that the “obligation towards
Section 20 of the ULC Act in respect of 650
square metres will be of M/s. Raj Project and
nd
Infrastructure”. Pursuant to the said order, on 2
July, 2021, Respondent No.3 entered impugned
Mutation Entry No.2760 in the revenue records.
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(xiii) The Petitioners, whilst intending to develop a
portion of the said land, learnt of the aforesaid
th
mutation entries. On 28 September, 2022, the
Petitioners issued a legal notice calling upon
Respondent Nos.2 and 3 to cancel mutation
entries and withdraw the impugned
rd
communication dated 3 November, 2020
th
particularly in view of the order dated 18
November, 2009 passed by this Court.
(xiv) Aggrieved by the inaction of the Respondents,
the present Petition has been filed.
4. Mr. Kailas Dewal, learned counsel appearing for the
st
Petitioners, assails the impugned orders dated 1 December,
rd
2008 and 3 November, 2020, as also Mutation Entries
bearing Nos. 2222 and 2760 and all subsequent actions, on
rd
the ground that, under the Exemption Order dated 23
April, 2007 granted in respect of 210 square metres of land,
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the Petitioners were required to commence construction
within one year from the date of the said Order, failing
which the exemption granted under Section 20 of the ULC
Act would lapse. The construction had not commenced on
the said land within the said period. Thereafter, the
exemption under the ULC Act lapsed when the
Notifications under Sections 10(3) and 10(5) of the Act
were issued by the Respondents. However, the Petitioners’
predecessors-in-title continued to remain in occupation and
possession of the said land. As the ULC Act stood repealed
th
with effect from 29 November, 2007, all proceedings
under the ULC Act, pending before the commencement of
the Repeal Act stood, abated. This includes proceedings in
respect of the said land.
5. Mr. Dewal submits that the above factual matrix was
th
considered by this Court in the order dated 18 November,
2009 passed in Writ Petition No.441 of 2009, after which
this Court declared that all further proceedings in relation
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to the land stood abated. The Respondents have not
challenged the said order and are bound by the same. The
impugned orders and mutation entries are contrary to the
said order and cannot be sustained. The impugned actions
deprive the Petitioners of their vested rights in the said land
and ought to be quashed and set aside. In support of these
submissions, learned counsel for the Petitioners has placed
reliance on the judgments of (i) V. S. Charati Vs. Hussein
1
Nhanu Jamadar (Dead) By LRs. ; (ii) Vithabai Bama
2
Bhandari Vs. State of Maharashtra and Another ; and (iii)
3
Manik M. Ragit Vs. State of Maharashtra and Another .
6. On the other hand, Ms. Shruti Vyas, learned
Additional Government Pleader appearing for Respondent
th
Nos.1 to 3, submits that this Court, in its order dated 18
November, 2009, did not make any declaration regarding
the withdrawal of the Scheme under Section 20(1) of the
1 (1999) 1 SCC 273
2 2009(4) Mh.L.J. 693
3 2013(2) Mh.L.J. 224
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ULC Act and the Petitioners are estopped from seeking such
a declaration in the second round of litigation.
7. It is contended that the Repeal Act has no effect on
the validity of the Exemption Order or on any action taken
thereunder. It is submitted that the Exemption Order and
the Scheme were to be implemented within a period of one
rd
year from 23 April, 2007. However, before the expiry of
th
the said period, the Repeal Act was enacted on 29
November, 2007. Therefore, Respondent Nos.1 and 2 could
not take over possession of the said land. Lastly, it is
contended that since there is no specific order of
withdrawal, as required under Condition no.17, the
Exemption Order has not lapsed and the impugned orders
and mutation entries call for no interference. Reliance is
placed upon the decision of the Full Bench of this Court in
Maharashtra Chamber of Housing Industry, Mumbai and
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4
Others Vs. State of Maharashtra and Another for dismissal
of the Petition.
Reasons and Conclusion:
8. We have perused the record and have heard the
learned counsel for the parties. The short question that
arises for our consideration is whether, having regard to the
th
order dated 18 November, 2009, passed in Writ Petition
No.441 of 2009, the Respondents can maintain the
impugned communications and Mutation Entries in respect
of the said land.
th
9. This Court, in its order dated 18 November, 2009,
had expressly recorded that exemption under Section 20 of
the ULC Act was deemed to have been withdrawn and
therefore the Respondents issued the Notification under
Section 10(1) of the ULC Act. The said order was passed
4 2014 (6) Mh.L.J. 829
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after considering the status of the Section 20 exemption,
the proceedings under Section 10 and, most importantly,
the Respondent’s admission in its affidavit-in-reply that
possession had not been taken before the Repeal Act. It is
in this background that this Court declared that “all further
proceedings in relation to the land”, which is the subject
matter of the Petition, had abated. The said order has
attained finality and will bind the Respondents and the
Petitioner. Therefore we cannot accept the Respondents
submission and dilute/ignore the consequences of the
expression “all further proceedings in relation to the land”.
It is settled law as held by the Hon’ble Supreme Court in
5
Erach Boman Khavar v. Tukaram Shridhar Bhat that when
a question of fact or law is decided between the parties in
one suit or proceeding and the decision is final, either
because no appeal was filed or an appeal was dismissed,
neither party will be allowed in a future suit or proceeding
5 (2013) 15 SCC 655
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between the same parties to canvass the matter again.
Similarly In Hope Plantations Ltd. v. Taluk Land Board,
6
Peermade the Hon’ble Supreme Court held that the
general principle underlying the doctrine of Res Judicata is
ultimately based on public policy. One important
consideration of public policy is that the decisions
pronounced by courts of competent jurisdiction should be
final, unless they are modified or reversed by appellate
authorities and a person should not be made to face the
same kind of litigation twice over, such process being
contrary to considerations of fair play and justice. The
Hon’ble Court further held that even where Section 11 of
CPC does not apply, the principle of Res Judicata has been
applied by courts for the purpose of achieving finality in
litigation. Thus, we are required to proceed on the basis
th
that the order dated 18 November, 2009 is correct and
binding on the Respondents.
6 (1999) 5 SCC 590
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10. Mr. Dewal has rightly relied upon V.S. Charati
(supra), wherein the Hon’ble Supreme Court held that
decision rendered by the Court in absence of challenge
becomes final and binding on both the parties and until the
same is set aside, it would not amount to a nullity, merely
because it is wrong. For convenience, relevant portion is
extracted and quoted:
“9. It is submitted by the respondent that the Agricultural
Lands Tribunal was not right in dropping proceedings
under Section 32-G. Its order of 31-5-1961 is bad in law.
He relied upon a decision of the Bombay High Court in
the case of Nago Dattu Mahajan v. Yeshodabai Huna
Mahajan [(1976) 78 Bom LR 427] where this Court had
held that under Section 31, the landlords have a choice to
avail of one of the two provisions of resumption, namely,
either Section 31(1) or Section 31(3). No landlord can
avail of both the provisions. Learned counsel for the
respondent, therefore, contends that in the present case,
the appellant having exercised his choice under Section
31(1), could not have urged in the proceedings under
Section 32-G his disability as a minor under Section
31(3). The order of 31-5-1961 of the Agricultural Lands
Tribunal, however, was not challenged by the respondent.
The order of 31-5-1961 has become final and the decision
rendered by the Agricultural Lands Tribunal as between
the appellant and the respondent is binding on both the
parties. A decision, simply because it may be wrong,
would not thereupon become a nullity. It would continue
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to bind the parties unless set aside. The effect of the
decision of 31-5-1961 on the parties, therefore, cannot be
ignored. In the present case, since the tenant could not
complete his purchase by reason of the proceedings under
Section 32-G being dropped, he cannot now contend that
the decision has no legal effect or that the proceedings
under Section 32-G ought to have been completed and,
therefore, he should be looked upon as a purchaser.”
11. In the present case, the Petitioners are not seeking to
reopen an issue decided in their favour. They only seek
enforcement of the legal consequences flowing from that
final order against subsequent administrative actions. The
distinction sought to be drawn by the learned AGP that the
Respondents that there is no specific order of “withdrawal
of exemption” cannot be accepted. Once the proceedings
under the ULC Act concerning the said land had been
judicially declared to have abated, a revenue entry cannot
itself confer or revive a right, liability or statutory
obligation which no longer survives. The Respondents
cannot by an administrative action seek to override or
nullify a judicial order.
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12. The reliance placed by the learned AGP upon Section
3 of the Repeal Act is also misplaced. Section 3 contains a
saving provision and, inter alia , protects the validity of
Exemption Order granted under Section 20(1) and the
action taken thereunder. The saving clause preserves what
falls within its statutory field. It does not confer a power
upon the State to resurrect the issue or override a final
judicial determination inter parties concerning the very
land and proceedings in question.
13. We are also unable to agree with the Respondents’
contention based on Condition No.17 that the exemption
could not have lapsed before the expiry of one year from
rd
23 April 2007 because the Repeal Act came into force on
th
29 November, 2007, as it overlooks the fact that the
Respondents themselves proceeded on the basis that the
exemption was withdrawn or deemed to have been
withdrawn by initiating proceedings under Sections 10(1),
10(3) and 10(5) of the Act. The Respondents cannot now
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rely upon the unexpired portion of that period to revive
proceedings which no longer survive in law. Even assuming
that Condition No.17 contemplated a formal order for
withdrawal of the exemption, such a requirement now
cannot be invoked to defeat the binding effect of the order
th
dated 18 November, 2009.
14. We are fortified in our view by the judgment of the
Co-ordinate Bench in Manik M. Ragit (supra) which follows
Vithabai Bama Bhandari (supra) wherein this Court
ordered correction of revenue records in similar
circumstances where the Scheme was not implemented.
Once Respondents have issued notice under Section 10 of
the Act and if possession is not taken, prior to the Repeal
Act coming into force, then the land shall stand restored to
the owner. We may also note that the subsequent
rd
Notification dated 3 September 2010, tendered by the
Petitioners and which is not disputed by the learned AGP,
further supports the factual position that actual physical
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possession had not been taken by Respondent No.2 and
that the entry reflecting the State’s ownership had itself
been cancelled. The revenue record, therefore, cannot be
permitted to convey a position inconsistent with the
adjudicated and admitted factual position. The judgment of
the Full Bench of this Court in Maharashtra Chamber of
Housing Industry, Mumbai and Others (supra) does not
alter this position and does not assist the Respondents.
15. For all the above reasons, the Petition is allowed in
terms of prayer clauses (a), (b) and (c), as modified, which
read as under:-
“a. This Hon’ble Court may be pleased to issue an appropriate
writ and/or order and/or direction thereby quashing and
setting aside the order dated 03/11/2020 passed by the
Respondent No.2 i.e., the learned Collector & Competent
Authority, Urban Land Agglomeration, Thane and Order
dated 01/12/2008 passed/issued by the Deputy Secretary
of Respondent No.1-State of Maharashtra and its effect in
respect of Survey No.153/1 (Old Survey No.392/1) and
amalgamated Survey No.153/1A situated at village
Navghar, taluka and district Thane in view of the abatement
of all proceedings under ULC Act, 1976 and order dated
18/11/2009 passed by this Hon’ble Court in Writ Petition
No.441 of 2009 and declare that Petitioners are free to deal
with the land in any manner as they deem fit without there
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being any restriction as regards Scheme sanctioned under
Section 20 of the ULC Act bearing No.SR/1769 as the same
has lapsed and is not in existence;
b. This Hon’ble Court may be pleased to issue an appropriate
writ and/or order and/or direction and direct Respondent
No.2 and/or 3 and its concerned officers to forthwith
delete/cancel/rectify the Mutation Entry No.2222 dated
22/12/2015 and Mutation Entry No.2760 dated
02/07/2021 so far as they records existence of scheme u/s.
20 of the ULC Act, bearing No.SR/1769, from the revenue
records of the Survey No.153/1 (Old Survey No.392/1) and
amalgamated Survey No.153/1A situated at Village
Navghar, taluka and district Thane in view of the order
dated 18/11/2009 passed by this Hon’ble Court in Writ
Petition No.441 of 2009;
c. This Hon’ble Court may be pleased to issue an appropriate
writ and/or order and/or direction and direct Respondent
Nos.1 to 3 and its officers to delete/cancel/rectify Mutation
Entry No.2222 dated 22/12/2015 and Mutation Entry
No.2760 dated 02/07/2021 so far as they records existence
of scheme u/s. 20 of the ULC Act, from the revenue records
of Survey No.153/1 (Old Survey No.392/1) and
amalgamated Survey No.153/1A situated at village
Navghar, taluka and district Thane and further direct
Respondent No.4 to forthwith grant certificate of Transfer
of Development Rights (“TDR”) to Petitioner No.4 in respect
of the Parking Building handed over by Petitioner No.4.”
16. Rule is partly allowed in the above terms. There shall
be no order as to costs.
(GAUTAM A. ANKHAD, J.) (SUMAN SHYAM, J.)
Digitally
signed by
SNEHA
ABHAY DIXIT
Date:
2026.10.16
16:05:03
+0530
Page 25 of 25
SNEHA
ABHAY
DIXIT
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