Bombay High Court
Oriental Floric Culture Llp vs D. Dayabhai And Co. Pvt. Ltd. And Ors on 20 February, 2026
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2026:BHC-AS:9748-DB
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Digitally signed
by SUNNY
SUNNY ANKUSHRAO
ANKUSHRAO THOTE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
THOTE Date:
2026.02.25
22:26:05 +0530
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3205 OF 2018
1. The State of Maharashtra
By and through the Chief
Conservator of Forests &
Director, Sanjay Gandhi
National Park, Borivali East,
Mumbai 400 066 .... Petitioner
Versus
1. D. Dayabhai and Co. Pvt. Ltd.
Devkaran Mansion 79A
Princess Street, Mumbai 400 002
2. Shri Narayan Ganu Tangadi
(deceased) by heirs and legal
Representatives
2.1. Smt. Bhimabai Bhalchandra Tangadi
2.2. Smt. Vijaydeep B. Tangadi, deceased
By his heirs and legal representatives
2.3. Bhupendra B. Tangadi
2.4. Nalini B. Tangadi
2.5. Naina V. Tangadi
2.6. Avinash V. Tangadi
2.7. Dnyansehwar V. Tangadi
2.8. Rakesh V. Tangadi
2.9. Siddharth N. Tangadi
2.10. Bhagwanti G. Patil
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2.11. Sita Yadav Gharat
2.12. Gulab Ramesh Tare
All residing near Marathi School
Chitalsar Manpada Ghodbunder Road
Thane West
3. Neelaben Pravinchandra Parekh
4. Tiku P. Parekh
5. Rajeev P. Parekh
all residing at Tiku Ji Ni Wadi
Manpada Thane
6. Meghjibhai Somjibhai Patel
Residing at Shankar Vijay Saw Mill
Agra Road Arjunphata Bhiwandi
Thane
7. Kalyanjibhai Natha Patel,
Residing at 703, Sayali MHADA
Housing Society,
Behind Vasant Vihar,
Pokharan Road No.2, Thane
8. Thane Municipal Corporation
Through Commissioner
Mahapalika Bhavan, Thane (W)
Panchpakhadi .... Respondents
WITH
INTERIM APPLICATION NO.2785 OF 2020
IN
WRIT PETITION NO.3205 OF 2018
1. Conservation Action Trust
5, Sahakar Bhavan, 1st Floor,
LBS Road, Narayan Nagar,
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Ghatkopar (W),
Mumbai - 400 086
Through its Executive Trustee
Mr. Debi Goenka
2. Mr. Debi Goenka
Indian National, aged about 63 years
Executive Trustee, Conservation
Action Trust, Having office at :
5, Sahakar Bhavan, 1st Floor,
LBS Road, Narayan Nagar,
Ghatkopar (W), Mumbai - 400 086 ....Applicants
IN THE MATTER BETWEEN :
1. The State of Maharashtra
By and through the Chief
Conservator of Forests &
Director, Sanjay Gandhi
National Park, Borivali East,
Mumbai 400 066 .... Petitioner
Versus
1. D. Dayabhai and Co. Pvt. Ltd.
Devkaran Mansion 79A
Princess Street, Mumbai 400 002
2. Heirs of Shri Naryan Ganu Tangadi
(deceased) and legal Representatives
2.1. Smt. Bhimabai Bhalchandra Tangadi
2.2. Heirs of Smt. Vijaydeep B. Tangadi,
(deceased) and legal representatives
2.3. Bhupendra B. Tangadi
2.4. Nalini B. Tangadi
2.5. Naina V. Tangadi
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2.6. Avinash V. Tangadi
2.7. Dnyansehwar V. Tangadi
2.8. Rakesh V. Tangadi
2.9. Siddharth N. Tangadi
2.10. Bhagwanti G. Patil
2.11. Sita Yadav Gharat
2.12. Gulab Ramesh Tare
All residing near Marathi School
Chitalsar Manpada Ghodbunder Road
Thane West
3. Neelaben Pravinchandra Parekh
4. Tiku P. Parekh
5. Rajeev P. Parekh
all residing at Tiku Ji Ni Wadi
Manpada Thane
6. Meghjibhai Somjibhai Patel
Residing at Shankar Vijay Saw Mill
Agra Road Arjunphata Bhiwandi
Thane
7. Kalyanjibhai Natha Patel,
Residing at 703, Sayali MHADA
Housing Society,
Behind Vasant Vihar,
Pokharan Road No.2, Thane .... Respondents
WITH
WRIT PETITION NO.10024 OF 2023
1. D Dahyabhai & Co. Pvt. Ltd.
a company incorporated under the
provisions of the Companies Act,
1956 and having its registered office
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at 121, Mittal Tower, 'C' Wing,
12th Floor, Nariman Point,
Mumbai - 400 021
2. Nitesh Prataprai Kothari,
Adult, Indian inhabitant,
shareholder/director of
Petitioner No.1, having address
at 121/C, Mittal Tower,
Nariman Point, Mumbai - 400 021 .... Petitioners
Versus
1. The State of Maharashtra
(acting through its Urban Development
Department), having its office at
Mantralaya, Madam Cama Road,
Mumbai - 400 032
2. Thane Municipal Corporation,
having its address at Mahanagarpalika
Bhavan, Sarsenani General Arun Kumar
Vaidya Marg, Chandanwadi Pachapakhadi,
Thane - 400 602
3. Commissioner, Thane Municipal
Corporation, having address at,
Mahanagarpalika Bhavan,
Sarsenani General Arun Kumar Vaidya
Marg, Chandanwadi, Pachapakhadi,
Thane - 400 602
4. Additional Commissioner (2),
Thane Municipal Corporation, having address at
Mahanagarpalika Bhavan, Sarsenani General Arun
Kumar Vaidya Marg, Chandanwadi
Pachapakhadi, Thane - 400 602
5. Deputy Commissioner (Estates),
Thane Municipal Corporation,
having address at Mahanagarpalika
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Bhavan, Sarsenani General Arun
Kumar Vaidya Marg, Chandanwadi
Pachapakhadi, Thane - 400 602
6. City Engineer, Thane Municipal
Corporation, having address at
Mahanagarpalika Bhavan, Sarsenani
General Arun Kumar Vaidya Marg,
Chandanwadi Pachapakhadi,
Thane - 400 602
7. Deputy City Engineer, Thane
Municipal Corporation, having
address at Mahanagarpalika Bhavan,
Sarsenani General Arun Kumar
Vaidya Marg, Chandanwadi,
Pachapakhadi, Thane - 400 602
8. Assistant Director Town Planning,
Thane Municipal Corporation,
having address at Mahanagarpalika
Bhavan, Sarsenani General Arun
Kumar Vaidya Marg, Chandanwadi
Pachapakhadi, Thane - 400 602
9. Executive Engineer, Town
Development Department, Thane
Municipal Corporation, having
address at Mahanagarpalika Bhavan,
Sarsenani General Arun Kumar
Vaidya Marg, Chandanwadi
Pachapakhadi, Thane - 400 602 .... Respondents
WITH
INTERIM APPLICATION NO.7016 OF 2024
IN
WRIT PETITION NO.10024 OF 2023
1. Oriental Florie Culture LLP
A Limited Liability Partnership
Duly registered under the provisions
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of The Limited Liability Partnership
Act, 2008
Through its partner
Mr. Kapil Mahendra Sharma
Age : 65, Occu : Business/Agriculturist
Office at : Highland Garden, G/1,
Ground Floor, Balkum, Dhokali Road,
Dhokali, Thane West 400 608 .... Applicants
IN THE MATTER BETWEEN :
1. D. Dayabhai & Co. Pvt. Ltd.
a company incorporated under the
provisions of the Companies Act,
1956 and having its registered office
at 121, Mittal Tower, 'C' Wing,
12th Floor, Nariman Point,
Mumbai - 400 021
2. Nitesh Prataprai Kothari,
Age : Adult, Indian inhabitant,
shareholder/director of
Petitioner No.1, having address
at 121/C, Mittal Tower, Nariman Point,
Mumbai - 400 021
.... Petitioners
Versus
1. The State of Maharashtra
(acting through its Urban Development
Department), having its office at
Mantralaya, Madam Cama Road,
Mumbai - 400 032
2. Thane Municipal Corporation,
having its address at Mahanagarpalika
Bhavan, Sarsenani General Arun Kumar
Vaidya Marg, Chandanwadi Pachapakhadi,
Thane - 400 602
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3. Commissioner, Thane Municipal
Corporation, having address at,
Mahanagarpalika Bhavan,
Sarsenani General Arun Kumar Vaidya
Marg, Chandanwadi, Pachapakhadi,
Thane - 400 602
4. Additional Commissioner (2),
Thane Municipal Corporation,
having address at Mahanagarpalika
Bhavan, Sarsenani General Arun
Kumar Vaidya Marg, Chandanwadi
Pachapakhadi, Thane - 400 602
5. Deputy Commissioner (Estates),
Thane Municipal Corporation,
having address at Mahanagarpalika
Bhavan, Sarsenani General Arun
Kumar Vaidya Marg, Chandanwadi
Pachapakhadi, Thane - 400 602.
6. City Engineer, Thane Municipal
Corporation, having address at
Mahanagarpalika Bhavan, Sarsenani
General Arun Kumar Vaidya Marg,
Chandanwadi Pachapakhadi,
Thane - 400 602
7. Deputy City Engineer, Thane
Municipal Corporation, having
address at Mahanagarpalika Bhavan,
Sarsenani General Arun Kumar
Vaidya Marg, Chandanwadi,
Pachapakhadi, Thane - 400 602
8. Assistant Director Town Planning,
Thane Municipal Corporation,
having address at Mahanagarpalika
Bhavan, Sarsenani General Arun
Kumar Vaidya Marg, Chandanwadi
Pachapakhadi, Thane - 400 602
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9. Executive Engineer, Town
Development Department, Thane
Municipal Corporation, having
address at Mahanagarpalika Bhavan,
Sarsenani General Arun Kumar
Vaidya Marg, Chandanwadi
Pachapakhadi, Thane - 400 602 .... Respondents
----
Mr. Janak Dwarkadas, Senior Advocate a/w. Mr. Anant G. Mallya
and Mr. Sachin H. Kankal, AGP for the Petitioners in Writ Petition
No.3205 of 2018 and for the Respondent-State in Writ Petition
No.10024 of 2023.
Mr. Chirag Balsara a/w. Mr. Sanjay Borkar, Mr. Jaydeep Deo & Ms.
Rashmi Chavan i/b. Ms. Minal Chandnani and Mr. Rajesh Ranglani
for the Petitioners in Writ Petition No.10024 of 2023 and for
Respondent No.1 in Writ Petition No.3205 of 2018.
Mr. Karl Tamboly a/w Mr. Vishesh Srivastav, Mr. Anubhav Singh,
Mr. Pratik Thorat and Mr. Nikhil Waje i/b. I.C. Legal for
Respondent No.2(1) & 2(3) to 2(12) in Writ Petition No.3205 of
2018.
Mr. R. S. Apte, Senior Advocate i/b. Mr. Mandar Limaye for the
Respondent TMC/Respondent Nos.2 to 5 in Writ Petition No.10024
of 2023.
Mr. Ashutosh Gole a/w. Mr. Nikhil Waje for the Applicants in
Interim Application No.7016 of 2024.
Mr. Kunal Dwarkadas a/w Mr. Aniket Kharote i/b Jayakars, for the
Applicants in Interim Application No.2785 of 2020.
Mr. S.G. Karandikar, for Respondent Nos.3 to 5 in Writ Petition
No.3205 of 2018.
----
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CORAM : RAVINDRA V. GHUGE
&
ASHWIN D. BHOBE, JJ.
RESERVED ON : 17th DECEMBER, 2025
PRONOUNCED ON : 20th FEBRUARY, 2026
JUDGMENT (PER : RAVINDRA V. GHUGE, J.) :
INDEX
Sr.
Particulars Page Nos.
Nos.
A. Preface 13 to 18
B. Summary of the Pleadings and
19 to 34
averments of the State
C. Summary of the Pleadings and
averments of the Land Owner 34 to 56
(Respondent No.1/ Company)
D. Summary of the Pleadings and
averments of Respondent No.2
56 to 61
(Deceased, through LRs 2.1, 2.3 to
2.12)
E. Summary of the Pleadings and
averments of Respondent No.8 61 to 69
(Thane Municipal Corporation)
F. Summary of the Oral and Written
submissions on behalf of the State 70 to 91
by Senior Advocate, Mr. Dwarkadas
(i) Submissions on Godrej & Boyce
(supra) and Rohan Nahar (supra) and [73 - 91]
rejoinder submissions.
G. Summary of the submissions of the 91 to 111
learned Advocate, Mr. Balsara on
behalf of Respondent No.1 (Land
Owner)
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H. Summary of the comments of
Respondent No.1 on the Petitioner's 111 to 127
rejoinder.
I. Summary of the submissions of the
learned Advocate, Mr. Karl Tamboly
127 to 138
on behalf of Respondent Nos.2.1, 2.3
to 2.12
J. Compilations of Judgments relied
upon by Respondent Nos. 2.1, 2.3 to 138 to 144
2.12
K. Summary of the submissions of
Senior Advocate, Mr. R.S. Apte on
144 to 154
behalf of the Thane Municipal
Corporation
L. Our Analysis and Discussion 154 to 191
(i) Issues framed by the MRT and its
[165 – 168]
conclusions
(ii) Consideration of the facts before
us, in the light of the law laid down [169 – 172]
in GODREJ & BOYCE
(iii) Crucial factors [172 – 176]
(iv) Subsequent Events Relevant for
[176 – 183]
Writ Petition No.10024 of 2023
(iv) Our Final Conclusions and
Order in Writ Petition No. 3205 of [184 – 189]
2018
(v) Order in Writ Petition No.10024
[190 – 191]
of 2023
M. Article X – Copy of the Notice dated 192 – 193
29.08.1975
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N. ANNEXURES TO THIS
JUDGMENT W.R.T WRIT 194 to 350
PETITION NO. 3205 OF 2018
A. Petitioner’s note in respect of the
Sanjay Gandhi National Park
Division [194 – 199]
(Tendered by Mr. Janak Dwarkadas)
B. Written Notes of arguments on the
law laid down by the Hon’ble
Supreme Court in Godrej and Boyce [200 – 249]
(supra) and Rohan Nahar (supra)
(Tendered by Mr. Janak Dwarkadas)
C. Written notes of arguments on
behalf of Respondent No.1 [250 – 258]
(Tendered by Mr. Chirag Balsara)
D. Modification/ Additions made by
Respondent No.1 [259 – 303]
(Tendered by Mr. Chirag Balsara)
E. The Petitioner’s note in rejoinder
to Respondent No.1’s arguments [304 – 317]
(Tendered by Mr. Janak Dwarkadas)
F. Submissions on behalf of
Respondent No.1 to the Petitioner’s
rejoinder [318 – 333]
(Tendered by Mr. Chirag Balsara)
G. Submissions on behalf of
Respondent Nos.2.1, 2.3 to 2.12
[334 – 350]
(Tendered by Mr. Karl Tamboly)
O. ANNEXURES IN WRIT PETITION 351 to 373
NO. 10024 OF 2023
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H. Short note on behalf of the
Petitioners [351 – 358]
(Tendered by Mr. Chirag Balsara)
I. Note on behalf of Respondent
Nos.2 to 5 [359 – 367]
(Tendered by Mr. R. S. Apte)
J. Submissions of the Respondent
Corporation [368 – 373]
(Tendered by Mr. Mandar Limaye)
PREFACE
1. Rule in both the Writ Petitions. Rule made returnable
forthwith and heard finally by the consent of the parties. This Court
has not granted any interim relief in the First Writ Petition No. 3205
of 2018.
2. The First Petition (Writ Petition No.3205 of 2018) is
filed by the Petitioner State, was listed before the Single Judge
Bench, as per Chapter XVII, Rule 18 (1) of the Bombay High Court
Appellate Side Rules, 1960. By an order dated 4th January, 2024,
passed by the Hon’ble the Chief Justice, on request of the parties,
Writ Petition No.3205 of 2018 has been clubbed with Writ Petition
No.10024 of 2023 and placed before the Division Bench.
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3. The learned Senior Advocates and the Advocates for
the respective sides, canvassed their oral submissions in marathon
hearings for long hours, held on 21st November 2025, 28th
November 2025, 4th December 2025, 9th December 2025, 10th
December 2025, 15th December 2025, 16th December 2025 and 17th
December, 2025. They also placed their extensive written notes of
submissions on record along with case law. Finally, these matters
were closed for Judgment on 17th December, 2025 just before the
Christmas vacation.
4. In the First Petition (Writ Petition No.3205 of 2018)
filed by the Petitioner, State of Maharashtra, through the Chief
Conservator of Forests & Director, Sanjay Gandhi National Park,
(for the sake of brevity, herein after referred to as the State), the
State has put forth the following Prayers :
(a) That the order dated 30 June 2017 passed
by the Maharashtra Revenue Tribunal dismissing
the Petitioner’s Appeal No.165 of 2005 be set
aside entirely and the order dated 27 Dec 2004
passed by the SDO Thane (Private Forests) in
case No 53/99 in respect of part of Gat No.59A/1
Manpada, Thane District admeasuring about 59 A,
be set aside and the entire 193 A of Gat No.59A/1
Manapada, Thane be declared as being finally
acquired private forest having status of deemed
reserved forest.
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(b) Pending the hearing and final disposal of
this Petition, the order dated 30 June 2017 passed
by the Maharashtra Revenue Tribunal dismissing
the Petitioner’s Appeal No.165 of 2005 be set
aside entirely and the order dated 27 Dec., 2004
passed by the SDO Thane (Private Forests) in
case No 53/99 in respect of part of gat number
59A/1 Manpada, Thane District admeasuring
about 59 Acres, be stayed.
5. In the Second Petition filed by the Petitioners/Company
(for the sake of brevity, herein after referred to as the
Company/Land owner/Respondent no.1), the Company has put forth
the following Prayers :
(b) This Hon’ble High Court be pleased
issue a Writ of Mandamus or any other
appropriate Writ, Order or Direction under Article
226 of the Constitution of India, ordering and
directing the Respondents to issue / allot the said
TDR/DRC against park reservation No.4 (said
reservation) area admeasuring 404721.02 sq. mtrs.
which has been acquired vide registered Deed of
Transfer dated 24th May, 2019 registered under
Serial No. TNN5-8450-2019 to the Petitioner
No.1 within a period of 2 weeks from the date of
order or such other time as this Hon’ble High
Court may deem fit and proper.
(c) pending the hearing and final disposal of
this Petition, this Hon’ble High Court be pleased
to pass an order of temporary injunction
restraining the Respondents from in any manner
whatsoever dealing with the said Property
(defined at paragraph 18 of the Petition) and
utilizing the same for the purpose of the said
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Reservation (defined at paragraph 18 of the
Petition).
6. It is quite apparent that the decision in the first Petition
would directly impact the decision in the second Petition. All the
learned Counsel also submit that the verdict in the first Petition
would decide the fate of the second, keeping in view that the second
Petition is filed for seeking directions, based on the decision of the
Maharashtra Revenue Tribunal, which is impugned in the First
Petition. Hence, we are dealing with the first Petition, first.
7. The learned Advocates have tendered their extensive
written notes of submissions. According to them, they have covered
all the points and issues that need consideration by this Court, in the
light of the law pronounced by the Hon’ble Supreme Court in the
judgments cited. It is urged that all these submissions be considered
for the proper adjudication of the dispute, especially the challenge
posed by the State to the impugned judgment and order of the
Maharashtra Revenue Tribunal (herein after referred to as the MRT).
8. We do not wish to enlarge the size of the Judgment by
reproducing the entire written notes of submissions of the parties,
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which we have read, thread-bare. The notice at issue, dated
29.08.1975, is annexed to this Petition and marked Article ‘X’. We
have drawn a summary of their written notes (verbatim) and their
entire compilation of written notes of submissions/arguments are
annexed after the end of this judgment, as per a separate index.
WRIT PETITION NO. 3205 OF 2018
PARTIES IN THE WP
Parties Referred To As
The State of Maharashtra Petitioner/State
D. Dayabhai and Co. Respondent No. 1
Pvt.Ltd (Original Land Owner of the Subject
Land)
Narayan Ganu Tangadi Respondent No. 2
(Claiming 17 acres of land)
Neelaben Pravinchandra Respondent No. 3
Parekh (Claiming some portion of the 24
acres of land that Respondent No. 1
sought exclusion)
Tiku P Parekh Respondent No. 4
(Claiming some portion of the 24
acres of land that Respondent No. 1
sought exclusion)
Rajeev P Parekh Respondent No. 5
(Claiming some portion of the 24
acres of land that Respondent No. 1
sought exclusion)
Meghjibhai Sojibhai Respondent No. 6
Patel (Claiming exclusion from 19 i.e.,
about 0.45 acres gunthas from the
subject land)
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Kalyanjibhai Natha Patel Respondent No. 7
(Claiming exclusion from 19 i.e.,
about 0.45 acres gunthas from the
subject land)
Thane Municipal Respondent No.8
Corporation (Acquired the said property from
Respondent No.1/land owner vide a
registered Deed of transfer dated
24.05.2019)
9. In this Petition, the State has prayed that the order dated
30th June, 2017 passed by the Maharashtra Revenue Tribunal (MRT)
dismissing the Petitioner’s Appeal No.165 of 2005, be set aside
entirely. So also, the order dated 27 th December, 2004 passed by the
SDO Thane (Private Forests) in Case No.53/99, in respect of part of
Gat No.59A/1 Manpada, Thane District admeasuring about 59 A, be
set aside and the entire 193 A of Gat No.59A/1 Manapada, Thane,
be declared as being an acquired private forest having the status of a
deemed reserved forest.
10. Before we turn to the Oral and written submissions of
the learned Senior Advocates, Mr. Dwarkadas and Mr. Apte, and
the learned Advocates, Mr. Balsara and. Mr Tamboly and all the
other parties, it would be appropriate to consider the pleadings and
averments of the parties.
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PLEADINGS AND AVERMENTS OF THE STATE
(Summarised from the WP records)
11. The State has pleaded in Writ Petition No.3205 of
2018, as under :
(a) Land Acquisition was sought in Gut No.59/A/1
situated at Manpada, Chitalsar, Thane, for an area of 203 acres, 8
gunthas and 8 annas owned by M/s. D. Dahyabhai and Company
Private Limited, Respondent No.1 (The land owner).
(b) It was found that although 217 acres, 8 gunthas and
8 annas from Survey No.59/A/1 in village Manpada was originally
intended to be acquired about 14 acres has been sold to various
entities, viz. Tata Power Company, Tolani Bros, Fuel Injection
Company etc., much prior to 30th August, 1975, which was the
appointed day under the Maharashtra Private Forests (Acquisition)
Act, 1975 (hereinafter referred to as MEFA’). Notice under S.35(3)
of the earlier Forest Act, 1927, had not been issued.
(c) Calculations of the area of land available with the
land owner, was only 197 acres, 07 gunthas and 4 annas, which was
available for acquisition. The land owner had conceded that
168 acres, 15 gunthas and 04 annas was forest land and actual
possession was handed over to the Maharashtra Forest Department.
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(d) Notice under Section 35(3) of the 1927 Act, was
issued on 29th August, 1975 and the land owner received the notice
on 4th September, 1975. The land owner did not raise any dispute
about the forest character of the land in its letter dated 4 th
September, 1975.
(e) The land owner issued letters dated 5th July, 1979
and 28th August, 1979, requesting the State Government to exempt
24 acres and 32 gunthas from Gut No.59/A/1 of its holding from
acquisition and offered an alternate land of 25 acres and 32 gunthas
from Gut No.59/2 and 59/16, Manpada.
(f) The land owner canvassed that he had spent
substantial amount in developing 24 acres and 32 gunthas for
converting the same for horticulture use and have constructed two
Wells and three farm houses, which is denied by the State.
(g) The land owner proposed, that 24 acres and 32
gunthas be excluded from acquisition. It would surrender alternate
area of 24 acres and 32 gunthas from its other property in Survey
Nos.59/2, 59/3 and 59/16 that were contiguous to the large portion
of land under acquisition.
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(h) On 3rd August, 980, the Deputy Collector (SDO),
after conducting an inquiry, passed an order accepting the proposal
of the land owner.
(i) On 15th October, 1982, the Appeal preferred by the
State Government was allowed by the Maharashtra Revenue
Tribunal (MRT) and the order of the Sub-Divisional Officer was
quashed and set aside. The inquiry was remanded to the
Sub-Divisional Officer.
(j) On 13th December, 2004, Respondent No.2, Narayan
Ganu Tangdi (now deceased and represented by LRs.) moved an
Intervention Application before the Sub-Divisional Officer claiming
to be interested in area admeasuring 7 hectares and 38 R out of the
total area of about 193 acres in Survey No.59/1, which was also
under acquisition. Respondent No.2 claimed to be the agricultural
tenant of the land owner.
(k) The State opposed the application filed by
Respondent No.2 in its reply dated 18th December, 2004, contending
that the inquiry was remanded only for consideration of the issue of
about 24 acres in respect of which, the land owner had offered
alternate land.
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(l) The Sub-Divisional Officer closed the inquiry for
passing final order after the hearing on 20th December, 2004.
However, the said officer was subsequently transferred from his
post.
(m) By letter dated 5th March, 2005, the succeeding
presiding officer addressed a letter to the Deputy Conservator of
Forests, Sanjay Gandhi National Park, requiring the attendance of
the representatives of the Forest Department at the hearing to be
held on 17th March, 2005. The body of the letter clearly mentioned
Case No.53/99.
(n) On 27th March, 2005, an order was submitted to the
office of Deputy Conservator of Forests (DCF), Sanjay Gandhi
National Park (SGNP), which indicated that Case No.53/99 under
Section 6 of the Act of 1975, had been decided by the
Sub-Divisional Officer by an order dated 24th December, 2004, by
which, 24 acres from Survey No.59/1 had been held to be not a
Forest. The Application of Respondent No.2 was allowed and he
was held to be in possession of 7 hectares and 38 R of land, not
being Forest within the said Survey No.59/1.
(o) An area of 17 acres and 19 gunthas relating to
village settlement (Konkanipada) was also excluded from the Forest
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Area, though this area was never at issue, as is contended by the
State Government.
(p) An Appeal was filed on 15th April, 2005, bearing
Forest Appeal No.165 of 2005. There was a delay of 45 days for
preferring the Appeal. In a hearing in January 2013, the MRT was
apprised by one of the Respondents that the Appeal was not filed
within limitation.
(q) The MRT, after taking note of circumstances in
which the appeal was filed on 15th April, 2005, dismissed the same
on the basis of the Judgment of the High Court, holding that the
Tribunal did not have the authority to condone the delay.
(r) The said order of dismissal was set aside by the
High Court and the matter was remanded to the Tribunal for
considering the issue of condonation of delay. The said delay was
condoned by the MRT.
(s) In the interregnum, the other Respondents
impleaded themselves as parties to the appeal claiming to have an
interest with the First Respondent in the land under acquisition.
(t) The Appeal No.165 of 2005 was heard by the MRT
and dismissed by an order dated 30th June, 2017. By the same order,
the Appeal filed by the land owner (Respondent No.1) was allowed.
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In effect, the MRT released 193 acres of Forest Land from
acquisition.
(u) The Petitioner/State, filed Writ Petition No.3203 of
2018 on 22nd January, 2018, on the following grounds :
(i) The land owner had sought an inquiry under
Section 6 of the MPFA in respect of only 24 acres
and 32 gunthas in Gut No.59/A/1, Manpada. The
landlord had never claimed any inquiry for the
entire land of 193 acres with the contention that it
was not a forest or a private forest. It was never
open to the Sub-Divisional Officer to expand the
scope of the inquiry under Section 6 of the MPFA
by including 193 acres.
(ii) The impugned order of the MRT amounts to
illegally expanding the scope of inquiry.
(iii) The impugned order misinterpreted the MRT
order of 15th October, 1982 by expanding the
scope of inquiry to 193 acres instead of 24 acres
and 32 gunthas.
(iv) Both the Subordinate Fora, viz. The Sub-
Divisional Officer and the MRT, have exceeded
their jurisdiction.
(v) The reasoning of the MRT in the impugned
order on why the land in question was not private
forest, is highly convoluted, patently illegal,
grossly contrary to law and totally unsustainable.
(vi) The impugned order is wholly erroneous,
which states that the per-condition for any land to
be private forest is a notice under Section 35(3) of
the 1927 Act, and its service upon the land owner.
(vii) The impugned order is in complete ignorance
of the definition of forest under Section 2(c)(i) to
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(vi) which is the basic concept of forest and is
included in the definition of private forest in
Section 2(f) of the MPFA.
(viii) The impugned order ignores the fact that
Section 2(f) of the MPFA is inclusive of forest
which is not the property of Government and
includes categories of land mentioned in (i) to (vi)
of Section 2(f), hence 2(f)(iii) is neither the
exclusive provision nor the sole criterion for
determining if land was or was not forest or
private forest.
(ix) The MRT has ignored the Full Bench decision
of this Court in Janu Chandra Waghmare V/s.
State of Maharashtra, AIR 1978 Bom 119.
(x) The MRT has exceeded its jurisdiction in
extrapolating a ratio in Godrej and Boyce Mfg.
Company Limited V/s. State of Maharashtra,
2014 (3) SCC 430 and failed to follow the law
laid down in Godrej and Boyce Mfg. Company
Limited (Supra).
(xi) In Godrej and Boyce Mfg. Company Limited
(Supra), the Hon’ble Supreme Court overruled
Chintamani G. Velkar V/s State of Maharashtra,
(2000) 3 SCC 143, on a limited point that though
actual service of notice issued under Section 35(3)
of the 1927 Act, was required, it did not prescribe
that the notice should be served before
30.08.1975.
(xii) The MRT misinterpreted Godrej and Boyce
Mfg. Company Limited (Supra), to conclude that
the notice should be actual served before 30th
August, 1975.
(xiii) Notice issued should be in close proximity
to the commencement of the act to be treated as
‘live’ notice to be acted upon.
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(xiv) The notice was issued in close proximity to
30th August, 1975 and was served on 4th
September, 1975, therefore, was a ‘live’ or
‘pipeline’ notice.
(xv) The reliance by MRT on Dr. Arjun Sitaram
Nitanwar V/s. Tahasildar Distrct Thane & Ors.,
2015 (6) Mh.LJ Page 634 [Coram : Abhay S. Oka
(as His Lordship then was) and A.S. Gadkari, JJ],
was misplaced. This Court held that unless it is
proved that notice under Section 35(3) is served
on the owners, land which is subject matter of
notice will not become private forest under
Section 2(f)(iii) of the 1975 Act and will not vest
in the State Government under Section 3(i) of the
1975 Act. So also, reliance placed on Ozone Land
Agro Private Limited V/s. State of Maharashtra &
Ors., (2016) 1 Mh.LJ Page 483, is misplaced. In
both these cases, the notices were stayed having
been issued several years prior to 30th August,
1975 and in both these cases, the notices were
never served on the land owners.
(xvi) The notice in this case was issued on
29th August, 1975 and was actually served on
4th July, 1975. Hence, the issue of non-service of
notice would never arise.
(xvii) Section 7(c)(e) of the Maharashtra
General Clauses Act, 1904 clearly states that the
repeal, wholly or partially, of any enactment does
not affect any proceeding or liability under the
Repealed Act.
(xviii) The MRT has erroneously concluded that
because the notice was served on 4 th September,
1975, after repeal of the 1927 Act, and was not
served before 30th August, 1975, it was not a
notice issued at all.
(xix) The MRT strangely recorded that no notice
was either issued or served on the land owner and
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was drawn in the name of the Dahyabhai and Co.
when the name of the owner on 7/12 extract is of
D. Dahyabhai and Company Private Limited.
(xx) D. Dahyabhai and Company Private Limited
sought inquiry under Section 6 of the MPFA and
never took a plea that they were misled by the
notice or the land to be acquired was not theirs
and some other land was the real focus of
acquisition.
(xxi) The observation in Paragraph No.18 of the
impugned order was most incongruous, inasmuch
as, the forest department would never have issued
any notification under Section 35(1) of the 1927
Act, as Section 35 had already been repealed by
Section 24 of the 1975 Act.
(xxii) The MRT has failed to appreciate the
difference between Chapter V of the 1927 Act,
which was intended to regulate use of forest
which was not the property of the Government,
and the MPFA, 1975 which was to divest private
persons of ownership over all private forest and
vest such ownership, without encumbrance, in the
Government.
(xxiii) The MRT has overlooked the entries in the
7/12 extracts for Gut No.59/A/1, Manpada, which
clearly mentions that the land was under forest
and grass land, both of which fall within the
definition of forest. This case is covered by T.N.
Godavarman Thirumalapad V/s. Union of India,
2018 SCC OnLine SC 3924.
(v) Regarding findings on the case of Respondent No.2
(Narayan G. Tangadi), the State has contended as under :
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(i) The 7/12 extracts pertaining to Survey No.59/1
as in August 1975, do not show any part of the
land in this survey number under cultivation,
either by Narayan or by any other person. To the
contrary, the relevant extract clearly shows that
the land consisted of Palmyra Trees and Stone
Quarry.
(ii) Even the owner of the land never contended
that any part of the land was under cultivation by
any other person as a tenant. Narayan admitted in
the proceedings before the Tahasildar that he did
not have any receipts in respect of his tenancy
from D. Dahyabhai and Company Private
Limited.
(iii) As per Section 22-A of the MPFA, 1975, the
land used as a Stone Quarry is not liable to be
restored.
(iv) The Application under BTAL Act, 1948 was
made under Section 70-B. The Government/
Forest Department/Sanjay Gandhi National Park,
was not made a party. The Application for
declaration of tenancy was made in 1991, 16
years after the property had vested completely in
the Government.
(v) There was no evidence that Narayan was
paying rent to the land owner. There is no
explanation why the Application was made clearly
after 40 years, post the tillers day.
(vi) By order dated 18th January, 1991, in RTS
Revision No.54/1988, the Sub-Divisional Officer,
Thane had cancelled the Mutation Entry No.525
dated 25th January, 1984 of village Chitalsar
Manpada.
(vii) Narayan was aware that the said land was
being claimed by the Forest Department to be a
part of the National Park.
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(viii) The order of the Tahsildar declaring
Narayan to be a tenant, indicates that the owner
D. Dahyabhai and Company got the land released
for acquisition. This is completely erroneous
because the owner did not get a single inch of
land released from acquisition.
(ix) The land owner had admitted that the entire
land in Gut No.59A/1 was forest land, but only
raised a plea not to take possession of 24 acres
with a promise to surrender an equivalent
alternate land.
(x) 168 acres have already been acquired and the
possession thereof is with the Sanjay Gandhi
National Park.
(xi) The orchards and paddy cultivation is not
indicated anywhere.
(xii) The order of the Tahsildar was ex-parte and
is not binding upon the State.
(w) Regarding Respondent Nos.3, 4 and 5, the State
submits that these Respondents claim to be in possession of some
portion of land which is within the area of 24 acres and 32 gunthas
in Gut No.59A/1, Manpada, which they claim to have purchased
from D. Dahyabhai and Company Private Limited in 1980.
(x) The land owner is aware of the acquisition
proceedings and the inquiry under Section 6 of the MPFA, 1975.
(y) By the impugned order, an area of 17 acres and 19
gunthas from Survey No.59/1 has been excluded from the area of
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forest in the village settlement Konkanipada. There is no application
by any person made under Section 6 of the MPFA, 1975, claiming
exclusion.
(z) No person representing the village settlement, either
appeared or advanced any submissions supporting such a claim.
(aa) The State had not been heard whatsoever on the
aspect of whether the area of 17 acres and 19 gunthas could be
legitimately excluded from the forest area.
(bb) The portion of the impugned order relating to
exclusion of 17 acres and 19 gunthas of the area of the village
settlement, is completely illegal and invalid.
(cc) Pursuant to the orders of the High Court in Writ
Petition No.305 of 2025, proceeding for eviction of the encroachers
from the village settlement are underway.
(dd) With regard to Respondent Nos.6 and 7, they claim
to have purchased 19 gunthas of land in Gut No.59A/1 from
Smt. Kusum Vasant Salkar and three other of her family.
(ee) The predecessors in interest of Respondent Nos. 6
and 7, viz., the Salkar family could, therefore, have no better title
than their tranferors.
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(ff) In 1982, several years after the land vested in the
Government, it was found that one Smt. Laxmi Vasant Salkar had
constructed a hut on a part of the forest in Survey No.59/1, village
Manpada and, therefore, she was prosecuted under the Indian Forest
Act and was declared guilty. The said Laxmi Vasant Salkar filed a
Criminal Revision Application No.133 of 1987 before the Sessions
Court at Thane.
(gg) Laxmi Salkar was acquitted after the Revisional
Court held that the notification/other official document showing that
Survey No.59/1, Manpada was a reserved forest, had not been
produced in evidence before the Trial Court and, therefore, it was
not proved that the land upon which Laxmi Salkar constructed a hut,
was a forest. Hence, she was acquitted by Judgment and order dated
16th April, 1988.
(hh) In 1996, Laxmi Salkar filed Regular Civil Suit
No.229 of 1996 before the Civil Judge Senior Division Thane,
against the original land owner D. Dahyabhai and Company Private
Limited. She claimed to be owner by adverse possession of the area
of 19 and half gunthas on Survey No.59/1, village Manpada. The
forest department was not made a party to the Suit knowing that the
State Government was claiming the said land as acquired private
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forest. In May, 1977, the Suit was decreed ex-parte.
(ii) The Suit was uncontested by the land owner and the
State Government was deliberately not made a party to the Suit.
Secondly, the decree in question was obtained in a purely private
action between the plaintiff and the defendant. Thirdly, there is no
determination of the status of the land as forest or otherwise in the
said Suit. Even if there had been such determination, the same was
not binding upon the Petitioner/State Government as the status
could only have been determined in an inquiry under Section 6 of
the MPFA, 1975.
(jj) An NGO, Bombay Environmental Action Group
filed a PIL No.17 of 2002 in the High Court at Mumbai complaining
that the land revenue records in the State of Maharashtra had been
updated to show all acquired private forest lands as Government
Forest. The High Court passed an interim order directing the State
Government to issue immediate order to all revenue officials to
make the necessary Mutation entries in the revenue records.
(kk) Pursuant to the interim orders, the State
Government issued a circular dated 22nd February, 2005 in
connection with correction of revenue records.
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(ll) PIL No.17 of 2002 was concluded by an order dated
22nd June, 2005, by which the interim orders directing correction of
the revenue records, were confirmed and the State was directed to
complete the task on or before 31st May, 2006.
(mm) Consequently, in respect of Survey No.59/1
village Manpada, the concerned revenue officials made the requisite
changes indicating the name of Government of Maharashtra as
Kabjedar in the 7/12 extracts and the tenure of land as Government
Forest.
(nn) As regards the land holding of Salkar family, viz.,
vendors to Respondent Nos.6 and 7, their names were shown in the
‘other rights’ column by Mutation Entry No.729.
(oo) The Salkar family felt aggrieved and made an
application to the Sub-Divisional Officer Thane, for reversal of
M.E.729. The application was rejected by order dated
31st December, 2007. Salkar family filed an appeal to the Deputy
Collector (Appeals), Thane, who reasoned that the circular issued by
the Government dated 22nd February, 2005, itself directed correction
in the revenue records in those matters where, there were no legal
proceedings pending and as Forest Appeal No.165 of 2005 was
pending in respect of Gut No.59A/1 village Manpada, the revenue
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record should not have been changed. Accordingly, by order dated
5th August, 2008, the Deputy Collector directed that the Mutation
Entry No.729 be reversed and the names of Salkar family members
be shown as Kabjedar and that of the Government be shown in the
other rights column.
(pp) The State is presently in possession of 168 acres of
prime forest situated at Gut No.59A/1, Manpada Thane, as part of
the Sanjay Gandhi National Part Division. The effect of the
impugned order is to release the same from acquisition into private
ownership. Manpada Thane is a highly sought after locality for
residential and commercial construction activity. The pristine forest
in this area will be completely destroyed by construction activity.
This will be irreversible with long term adverse effects on the
environment and health. If the impugned order is set aside, the
forest will be in the Care and Protection of the Forest Department
(Sanjay Gandhi National Park Division).
PLEADINGS AND AVERMENTS OF THE LAND
OWNER/RESPONDENT NO.1
(Summarised from the WP records)
12. Respondent No.1, the actual land owner namely D.
Dahyabhai and Company Private Limited (in short, the land
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owner/Company) filed its affidavit in reply, in which it has been
specifically pleaded as under :
(a) It is denied that the notice dated 29 th August, 1975
with respect to land Gut No.59/1 (Part) situated at Manpada,
Chitalsar Thane, admeasuring 204 acres, 8 gunthas and 8 annas was
legal and valid.
(b) No opportunity of hearing was granted to the actual
owner of the property to respond to the impugned notice.
(c) The impugned notice was not signed by the Deputy
Conservator of Forest or any other authorised person being authority
of the Forest Department. It was signed by the Forest guard (Van
Rakshak) Mr N J Joshi.
(d) The Forest Department, while issuing the impugned
notice, was well aware that the notice could not be served upon the
land owner during the period of subsistence of Section 35 of the
Indian Forest Act.
(e) The Forest Department has mentioned incorrect
description of a large suit property only with the intention of
grabbing the suit land.
(f) The Forest Department failed and neglected to
exclude Konkanipada village settlement which was in existence way
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(g) The Forest Department ignored the fact that a
portion of approximately 14 acres of the large suit property was
conveyed and transferred by the land owner in favour of Tata Hydro
Electric Supply Company Limited and others and the concerned
purchasers had already procured necessary non-agricultural
permissions and carried out constructions and development thereon.
(h) The Forest Department ignored the fact that certain
portion of the large suit property was used for paddy cultivation,
orchards and the balance portion was utilized for Wells, Industries,
Slums, Structures and godowns.
(i) The Forest Department also ignored the fact that the
substantial portion of the large suit property was used for a stones
quarry after obtaining all the requisite permissions from the
concerned departments.
(j) The State amendment carried out by the Indian
Forest (Bombay Amendment) Act 1955 makes it abundantly clear
that a notice issued under Section 35(3) shall be served on the owner
of such forest in the manner provided in the Code of Civil
Procedure, 1908. It is an admitted fact that the notice was never
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in the manner prescribed therein.
(k) The land owner placed reliance upon Godrej &
Boyce (Supra), to contend that a service of notice issued under
Section 35(3) of the Forest Act, has to be (served) on the land
owner.
(l) The large suit property does not constitute private
forest under Section 2(f) of the MPFA.
(m) The land owner executed two registered deeds of
conveyance, both dated 6th July, 1960 and purchased the suit land
through the Court Receiver of the Bombay High Court and several
other properties as are described in the deeds of the conveyance.
The Court Receiver of the Bombay High Court specified the usage
of the property while executing the deeds and also specified that
portion of the large suit land was under cultivation.
(n) Over a passage of time, the land owner issued
several deeds and documents and sold, transferred and conveyed the
area admeasuring 14 acres to Tata Hydro Electric Supply Company
Limited, Tolani Bros, Eastern Machinery and Trading Company,
Adarsh Industries and Fuel Injection Limited. The balance land
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admeasuring 193 acres, 7 gunthas and 4 annas was in the possession
and ownership of the land owner, Respondent No.1.
(o) The large suit property was forming a part of Thane
Industrial Complex out of Bombay, Panvel Regional Plan of 1970
and large suit property was divided into residential, recreational,
industrial and green zone. The said plan was sanctioned before the
appointed date of MPFA land owner had started various activities
permissible under the regional plan.
(p) The land owner gave lease hold rights to various
mining firms for mining stones and operating quarry activities like
M/s. Ashok Quarries, M/s. Amar Quarries, M/s. Patel Quarries and
M/s. Bootheld Quarries, Rupit Quarries.
(q) The Collector, Thane District issued NA
permissions to the above lessees for various portions of the suit
property. The copies of the NA permissions as well as the renewals
and extensions, are at Exhibit-C.
(r) From perusal of the revenue records, NA
permissions and survey reports of the Forest Department indicate
that the large suit property was used for non-forest activities on the
appointed day.
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(s) The 7/12 extract-village from the year 1955 to 1981
show cultivation of paddy, bellary vegetables, fruit garden, Shenda
(Palmyra) and Stone Quarries.
(t) The President of India granted assent to the MPFA
on 25th August, 1975 and the same was published in the gazette on
29th August, 1975.
(u) The impugned notice was not issued in the name of
the land owner M/s. D. Dahyabhai and Company Private Limited
and the notice was sent through post.
(v) Since the notice was issued in the wrong name, it
has to be treated as ‘no notice’ issued to the land owner.
(w) The large suit property does not fall within the
purview of the private forest under Section 2(f)(iii) of the MPFA.
(x) The Forest Department issued another notice on
4th September, 1975 demanding possession of the large suit land and
the same was served through hand delivery on the same day. After
receipt of the notice dated 4th September, 1975, the land owner filed
Writ Petition No.1026 of 1975 before the Bombay High Court.
(y) In Janu Chandra Waghmare (Supra), the High Court
of Bombay had upheld the constitutional validity of MPFA and
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further opined that the aggrieved parties may explore the
opportunities under Section 6 of the MPFA.
(z) The Forest Department started initiating criminal
action against the owners and occupants of the land and embroiled
them in litigation under MPFA and also threatened to block the road
in existence which was an access to the suit property. The blockage
of the road would have stalled industrial and warehousing activities
of the Respondent in the properties adjacent to the suit property.
(aa) With a view to buy peace and to put an end to the
litigation, the land owner issued a letter dated 5 th July, 1979,
addressed to the Minister for Forest, Mantralaya and a letter dated
28th August, 1979, addressed to the Secretary, Revenue and Forest
Department, proposing without prejudice, that several parcels of the
large suit property admeasuring 24 acres and 32 gunthas which were
scattered pieces of land, be released from the purview of the notice
dated 29th August, 1975 and further offered equivalent area from
other adjacent properties bearing Gut Nos.59/2, 59/3 and 59/16.
(bb) The Assistance Secretary, Revenue Forest
Department, by letter dated 31st December, 1979, directed the land
owner to approach the Collector Thane under Section 6 of the
MPFA for getting the area excluded from acquisition. It is denied
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that the land owner had conceded that an area of 168A, 15G and 4a
was forest land.
(cc) The land owner submitted the proposal for
settlement to the Deputy Collector Thane, without prejudice to its
rights in Writ Petition No.1026 of 1995 and prayed that necessary
inquiry may be held under Section 6 of the MPFA.
(dd) The Deputy Collector (Private Forest) Thane,
personally inspected the site of larger suit property and verified the
horticultural activities, Wells and farmhouses constructed over the
larger suit property and also verified the permissions obtained by
Respondent No.1/land owner for the same. The Forest Department
also prepared plan of the larger suit property showing status of
larger suit property and users thereof.
(ee) In pursuance of the settlement proposal submitted
by Respondent No.1/land owner, the Deputy Collector (Private
Forest) Thane, passed an order dated 3rd June, 1980. The Forest
Department rejected the proposal submitted by Respondent
No.1/land owner and, therefore, the said proposal submitted at the
relevant time considering the relevant peculiar circumstances with
an objective of buying peace, cannot be used as tool against
Respondent No.1/land owner. The said offer no more stands valid
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and Respondent No.1/land owner has got every right to deal with
and dispose of the suit property. It is also pertinent to note that
Respondent No.1/land owner had submitted settlement proposal
without prejudice and Respondent No.1/land owner had always
denied the claim of the Forest Department that the larger suit
property or any portion thereof is a forest within the meaning of
Section 2(c)(i) of MPFA.
(ff) Respondent No.1/land owner withdrew the Writ
Petition No.1026 of 1975 in the light of order passed by the Deputy
Collector Private Forest on 3rd June, 1980.
(gg) Being aggrieved by the above order passed by the
Deputy Collector, Thane in pursuance of the settlement proposal
submitted by Respondent No.1/land owner, the State of Maharashtra
filed an appeal before MRT, Bombay bearing Rev/forest appeal no.9
of 1981. The bench of MRT by their order dated 15 th October, 1982
set aside the order passed by Deputy Collector Private Forest dated
3rd June, 1980 and remanded the matter for fresh inquiry.
(hh) In the meanwhile Thane Municipal Corporation
was established in the year 1982 and village Manpada was included
in its territorial jurisdiction. In due course, development plan for
Thane Municipal Corporation was published and sanctioned
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wherein certain portions of the larger suit property were reserved for
various public purposes such as DP Road, HCMTR (Thane City
Metro), Thane Municipal Transportation, Park, Garden etc. The
balance portion of larger suit property formed part of commercial
zone, godown zone, industrial zone and residential zone as per the
development plan for the time being in force. The Forest
Department never ever objected the development plan for the larger
suit property and permissible use and reservations for public
purposes.
(ii) Remand Case No.53 of 1999 was filed before the
Deputy Collector (Private Forest), Thane Division at Thane. The
Deputy Collector (Private Forest) has specifically observed that, the
Forest Department in their arguments, has not denied the presence
of such area admeasuring 24A-32G to be under godowns,
cultivation for horticulture and road etc. The Forest Department has
not denied the presence of fruit gardens. The Forest Department has
heavily relied on the notice alone to declare the entire area as
Private Forest. The Revenue record shows that, on certain portions
of lands out of Gut No.59/1, cultivation was conducted prior to 30 th
August, 1975 or prior to the date of issuance of notice. The 7/12
extract, i.e. the village form no.7 and 12 also show existence of
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certain industries in the said Survey No.59/1, such as the fuel
injection company, much prior to the date of issuance of notice. Tata
Hydro Electric Power Supply Company Limited started a sub
transmission station in Gut No.59/1, much prior to the
commencement of the Private Forest Act, 1975, i.e., since 1970. The
village revenue record also shows that an area admeasuring 19
gunthas was also in possession of Tolani Bros Private Limited and
had an industrial shed over the land. Then area of 1 acre and 39
gunthas land was transferred to Eastern Machinery and Trading
Company prior to the date of issue of notice and area of 2A-0G was
transferred to Adarsh Industries out of the area of 207 acres, 30
gunthas and 9 annas as being the Gut No.59/1 part.
(jj) It is, thus, abundantly clear that, the Forest
Department failed to prove presence of forest over the larger suit
property or any portion thereof. It has merely relied on the notice
sent under Section 35(3) of Indian Forest Act and it is also clear that
the impugned notice under Section 35(3) was issued without
conducting any preliminary survey or inquiry.
(kk) Deputy Collector (Private Forest), Thane Division
at Thane, passed an order in Remand Case No.53 of 1999 and
thereby declared 132 acres and 32 gunthas as private forest and
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balance area was exempted under Section 3(2) of MPFA.
(ll) Being aggrieved by the order of the Deputy
Collector (Private Forest), Thane Division, in Remand Case No.53
of 1999, the Petitioner State had filed Appeal No.165 of 2005 before
the MRT and Respondent No.1/land owner had filed an Appeal
No.229 of 2009.
(mm) The Member, MRT heard both the Appeals and
delivered a common order on 30th June, 2017 and dismissed Forest
Appeal No.165 of 2005 and allowed Forest Appeal No.229 of 2009.
He declared that the larger suit property is not private forest land as
contemplated under Section 2(f)(iii) of the MPFA and, therefore,
excluded entirely from the acquisition under the MPFA.
(nn) The Revenue Department has accordingly carried
out a necessary mutation entry by mutating the name of Respondent
No.1/land owner in the record of rights of the suit property and
same was subsequently confirmed by the Sub-divisional Officer
Thane in Revision No.182 of 2018.
(oo) Portions of the suit property are reserved for 40
meter DP Road (5500 sq. mtrs.), 20 meter DP Road (5000 sq. mtrs.),
30 meter H.C.M.T.R. (7600 sq. mtrs.). The Thane Municipal
Corporation had issued letter dated 2nd November, 2017 to
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Respondent No.1/land owner, calling upon it to handover the vacant
possession of certain reserved portion of the suit property since the
same was required for developing infrastructure. Since the said
reserved portion out of the suit property are reserved for public
purposes, Respondent No.1/land owner had no other alternative, but
to handover the possession of the said portion of the suit property to
the Thane Municipal Corporation.
(pp) Respondent No.1/land owner had accordingly
made requisite application to the Thane Municipal Corporation on
or about 30th June, 2018 under Development Control Rules and
Regulations of 1994. After the said application was made, the Thane
Municipal Corporation had verified the title of Respondent
No.1/land owner with respect to the said portion of the suit property.
The Thane Municipal Corporation and its panel Advocate had
verified the order passed by the MRT and also relied on the opinion
of Advocate General, Government of Maharashtra and advised to
proceed with the TDR proposal.
(qq) The Thane Municipal Corporation also published a
public notice in ‘Punya Nagari’ Local Newspaper on 21st November,
2018 in respect of the said reserved portion inviting objections from
the public at large.
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(rr) Respondent No.1/land owner had accordingly
signed and executed a Registered Deed of Transfer dated 25 th April,
2019 thereby assigning, transferring and conveying DP Road and
HCMTR reservation portions in favour of the Thane Municipal
Corporation.
(ss) Respondent No.1/land owner has handed over
vacant and peaceful possession of the reserved portion of the suit
property (reserved for DP road and HCMTR) with a view to enable
the Thane Municipal Corporation to implement the development
plan.
(tt) Apart from above mentioned reserved portion,
certain portions of the suit property admeasuring 404721.02 sq.
mtrs. equivalent to approximately 100 acres, is reserved for ‘Park’
under the Development Plan for City of Thane. The aforesaid
portion of 100 acres is hereinafter referred to as the ‘Park
Reservation Property’. Respondent No.1/land owner had issued
notice dated 23rd October, 2017 under the provisions of Section 127
of the MRTP Act to the Thane Municipal Corporation to acquire the
said Park Reservation Property since the Thane Municipal
Corporation had failed to acquire the Park Reservation Property
within stipulated time limit.
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(uu) After receipt of the said notice issued by
Respondent No.1/land owner, the Thane Municipal Corporation
(TMC), had taken opinions from various legal luminaries and
thereafter agreed to acquire the said Park Reservation Property in
accordance with the provisions of MRTP Act.
(vv) A public notice was published on 3rd May, 2019 in
the local newspaper Punyanagari in respect of Park Reservation
Property inviting objections from public at large.
(ww) Respondent No.1/land owner had accordingly
signed and executed a Registered Deed of Transfer dated 24 th May,
2019 thereby assigning, transferring and conveying Park
Reservation Property in favour of the Thane Municipal Corporation.
ADDITIONAL AFFIDAVIT BY THE LAND OWNER
13. Respondent No.1/land owner has filed an additional
affidavit in reply and has averred as under :
(a) After filing of the Affidavit in Reply dated
25th November, 2019, it came to know about two affidavits filed on
behalf of the Petitioner in the present proceedings. The first affidavit
seems to be of Shri. R. B. Kumbhar, Divisional Forest Officer,
Wildlife-II, Yeoor dated 1st July, 2019 (hereinafter referred to as the
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Kumbhar, dated 11th December, 2019 (hereinafter referred to as the
said ‘Second Affidavit’). Vide said first and second affidavits, the
Petitioner has attempted to make certain improvements in its case as
spelt out in the Writ Petition, so also has attempted to mislead this
Hon’ble Court and/or distort the facts.
(b) Respondent No.1/land owner has denied that the
area of land bearing Survey No.59A, admeasuring 193 acres, village
Chitalsar, Manpada (viz. suit property) is falling within Sanjay
Gandhi National Park Division (SGNP) and that it is included in
village Form-1A maintained by SGNP as required by the Forest
Manual and, therefore, is forest within the meaning of the word as
enunciated by the Hon’ble Supreme Court of India in the case of
T N. Godavarman V/s. Union of India (Writ Petition No.202 of
1995). The reference of the said judgment of Hon’ble Supreme
Court and/or the reliance placed thereupon is nothing, but, frivolous
and a malafide attempt on the part of the Petitioner to mislead this
Hon’ble Court.
(c) In the same way, the reference to the case of
Wildlife Conservation Trust V/s. Union of India (Writ Petition
No.337 of 1995) of the Hon’ble Supreme Court given in the said
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Respondent No.1/ land owner mentioned that Revenue and Forest
Department of the State of Maharashtra viz. Petitioner published a
notification in Maharashtra Gazette dated 16th January, 1996,
whereby area of SGNP was specified and defined. In said
notification names of villages included in SGNP are specified. In the
said names, the name of village Chitalsar, Manpada is not at all
mentioned. Thus, none of the properties of village Chitalsar,
Manpada (within whose limits admittedly the suit property is
situated), are included within the limits of SGNP.
(d) Respondent No.1/land owner submits that the very
notice purportedly dated 29th August, 1975 under Section 35(3) of
the Indian Forest Act, 1927 (IFA) issued in respect of suit property,
is null and void for the reasons elaborately stated in affidavit dated
25th November, 2019, filed by the Respondent No.1/ land owner.
The said notice was served upon the affiliate concern on
4th September, 1975, i.e., after the appointed date (30th August,
1975) on which date Section 35 of the IFA, 1927 was repealed as
provided under Maharashtra Private Forest Act 1975 (MPFA). Thus,
there was no question of said larger land (suit property), falling
within the purview of MPFA. Respondent No.1/ land owner also
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states that as on 30th August 1975, on the said larger land (suit
property), there was no presence of Forest as defined under Section
2(c)(i) of the MPFA and hence, it could not fall in the definition of
private forest as defined in Section 2(f) of the MPFA.
(e) In fact, various non-forest activities such as
Industrial user, warehousing, Quarry activities, Horticulture
Activities, Agricultural activities, Cultivation by way of production
of herbs, vegetables etc. were going on. In 1970, the said larger land
(suit property) was included as forming a part of Thane Industrial
Complex out of Bombay Panvel Regional Plan of 1970 and thereby
it was divided into residential, recreational, Industrial Zones etc.
(f) Respondent No.1/land owner stated that the notice
under Section 35(3) was required to be served on the actual owner
in the manner provided in the Code of Civil Procedure, 1908 for the
Service of summons and was also required to be published in the
manner prescribed by the rules. It is admitted fact that the impugned
notice was never issued/served in the manner provided under Code
of Civil Procedure, 1908. It was never published as prescribed by
the rules. The impugned notice was admittedly served on
4th September, 1975, i.e., after the repeal of Section 35 of IFA 1975
and, therefore, the impugned notice was null and void-ab-initio.
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(g) The notice was never acted upon and no further
steps such as giving opportunity of hearing, passing of any order,
issuance of notification under Section 35(1) of IFA, 1927, were
initiated and could have been initiated since Section 35 stood
repealed as provided under MPFA. The physical possession of the
suit property continued to be with Respondent No.1/land owner.
This fact is evident from the letter of the Petitioner dated 23rd
January, 1986.
(h) It is pertinent to note that above Judgment and order
dated 30th June, 2017 passed by the Hon’ble MRT Court is on the
basis of the order passed in the matter of Godrej & Boyce Mfg. Co.
Ltd. (Supra) by the Hon’ble three Judges Bench of the Hon’ble
Supreme Court.
(i) Respondent No.1/land owner specifically stated that
during the process of preparation of DP Plan of TMC and its
approval by the State Government as per order No.TPS/NO.1249/
CR/222/94B-12, dated 28th April, 1995, Petitioner never raised any
objection to the effect that said portions out of suit property are
reserved forest and, therefore, said public reservations cannot be
imposed on the suit property.
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(j) It is further pertinent to note that TMC at the
relevant time through its Advocate published public notices in
Punyanagari local newspaper on 21st November, 2018 and 3rd May,
2019 inviting objections from public at large, but the Petitioner did
not raise any objection in response to the said public notices. The
TMC, after verification of title, got 2 registered deeds of transfer
executed on 25th April, 2019 and 24th May, 2019.
(k) Admittedly, the said reservation affected portion
which is totally admeasuring 422821.02 sq. meters, which is
equivalent to about 104 acres, is already vested with and in
possession of TMC. Admittedly, TMC is a planning authority under
MRTP Act and as a planning authority has already acquired the said
portion under Section 127 of MRTP Act.
(l) Respondent No.1/land owner submits that it is now
the statutory obligation of TMC to provide compensation to
Respondent No.1 by way of Development Rights Certificate (DRC).
Thus, DRC’s issued or to be issued by TMC cannot be ranked
defective or illegal just because Petitioner has raised false and
frivolous claim on the basis of null and void notice dated 29 th
August, 1975 under Section 35(3) of the IFA and which admittedly
never acted upon thereafter and could not have been acted upon
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after the repeal of Section 35(3) of IFA, which stood repealed on
30th August, 1975 as per provisions of MPFA.
(m) The Mutation Entry No.1056 has been certified
pursuant to and on the basis of said Judgment and order dated 30 th
June, 2017 of the Hon’ble MRT Court. The certification of mutation
entry has been lawfully effected. The objection of Forest
Department raised vide Case No.182 of 2018 has been lawfully
rejected by the Sub-Divisional Officer vide order dated 31 st January,
2019. It is pertinent to note that the order dated 31 st January, 2019
has not been challenged by the Petitioner before Higher Authority
and has attained finality.
(n) The concerned DRC Nos.281, 362 and 363, are
issued by TMC in favour of Respondent No.1 and towards
acquisition of reservation portions such as 30 meters Road,
HCMTR, 20 meters wide DP road, 40 meters wide DP road.
Respondent No.1/land owner submits that as aforesaid DRCs are
issued in accordance with law, Respondent No.1 is entitled to use,
utilize and/or transfer the TDR credit given there under. It is now
statutory obligation even of TMC to allow the utilization and/or
transfer of TDR credit given under the said three DRCs.
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(o) It is denied that DRCs are issued on the basis of
sub-divisions. Respondent No.1/land owner submits that DRCs are
issued under the provisions Appendix-W of the Development
Control Regulations of TMC and in lieu of surrendered lands
affected by various public reservations. In any case, the said DRCs
are not the subject matter of challenge in the present Petition.
(p) Respondent No.1/land owner said that the reliance
placed on the alleged satellite maps are neither authenticated maps
nor could be entertained in a Writ Petition as evidence of fact.
Respondent No.1/land owner denies that 193 acres is seen from the
satellite data, as well forested.
(q) Respondent No.1/land owner submits that
reservation affected portion is already handed over to TMC and
those are in possession of TMC.
(r) Respondent No.1/land owner submits that alleged
undertaking taken from the constituted attorney of first Respondent
by TMC about getting no objection from Forest Department was
obtained by force and by exercising misuse of dominant position.
First Respondent vide letters dated 31st July, 2019 and
26th December, 2019 raised objections about the validity and legality
of the said undertaking.
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(s) TMC has accepted the said objection and
accordingly issued letters dated 31st December, 2019, 8th January,
2020 and 15th January, 2020 to the Chief Conservator, Sanjay
Gandhi National Park.
(t) It is pertinent to note that even the office of the
Petitioner, by its letter dated 17th January, 2020 accepted the right of
TMC to take an appropriate decision about the utilization and
transfer of DRC.
PLEADINGS AND AVERMENTS OF RESPONDENT NO. 2
(Summarised from the W P records)
14. The legal heirs of the Deceased Respondent No.2 (2.1,
2.3 to 2.12) have filed an affidavit in reply. Their averments can be
summarized as under :
(a) The Petition filed by the State is misconceived, not
maintainable and liable to be dismissed at the threshold with
compensatory costs. There are no grounds for interference with the
order dated 30th June, 2017 passed by the MRT. The said order was
passed after affording full opportunity of hearing to all the parties
concerned and after perusal of the material on record. Respondent
No.1/land owner states that the findings recorded in the said order
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perversity.
(b) This Petition concerns the land bearing Survey
No.59/1 situated at Manpada village in Thane District (Larger
Land). Respondent No.1/land owner has been in actual use,
occupation and physical possession of a portion of the Larger Land
admeasuring 7 Hectors 38 R (equivalent to 18 acres and
18 ghuntas), Gat No.59/1, Chitalsar village, Manpada, Thane
District (smaller Land).
(c) The Larger Land was owned by one
Mr. Shyamaldas Gandhi before Respondent No.1 became its owner.
Respondent No.1 purchased the Larger Land from Mr. Shyamaldas
Gandhi in or around 1960s through the High Court Receiver.
Respondent No.2 has been cultivating the Smaller Land from the
time of Mr. Shyamaldas Gandhi, even before the Respondent No.1
became the owner of the said land.
(d) In or around 1982, the Forest Department filed
Criminal Case No.5227 of 1982 against Respondent No.2 before the
Judicial Magistrate First Class (‘JMFC’) under Section 26 of the
1927 Act making false allegation. The said criminal case came to be
dismissed vide order dated 30th September, 1992 passed by the
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JMFC. The said order dated 30th September, 1992 was challenged by
the Forest Department vide Criminal Appeal No.172 of 1993 before
the High Court. This Court, vide order dated 14 th June, 1993
dismissed the said Appeal and observed inter alia that Respondent
No.2 was in possession of the Land as a tenant of Respondent
No.1/land owner, prior to it being declared as a forest. There was no
challenge to the order dated 14th June, 1993 and consequently the
same attained finality.
(e) The orders dated 14th June, 1993 and 23rd February,
2004 clearly establish the factum of Respondent No.1/land owner’s
use, occupation and possession of the Smaller Land and the status of
being a tenant under the Bombay Tenancy And Agricultural Lands
Act, 1948.
(f) Furthermore, the Smaller Land is not in excess of
the ceiling area provided by Section 5 of the Maharashtra
Agricultural Lands (Ceiling and Holdings) Act, 1961 and therefore,
the divesting portion of Section 3(2) of the 1975 Act is not attracted.
(g) In or around March 1991, Respondent No.1
attempted to interfere with the possession of Respondent No.2 in
respect of the Smaller Land. On 25 th July, 1991, Respondent No.2
filed Application No.16 of 1991 before the Tahsildar, Thane under
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Section 70-B of the BTAL Act, for a declaration of tenancy in
respect of the Smaller Land. The said Application No.16 of 1991
was duly served on Respondent No.1 and after due consideration of
the matter and the evidence on record, the Tahsildar declared
Respondent No.1/land owner as a tenant vide order dated
23rd February, 2004.
(h) Respondent No. 2 intervened in the Case
No.53/97/Ch. Manpada before the Sub Divisional Officer, Thane by
filing an intervention application. Respondent No.2 expressly stated
that he was declared as a tenant in respect of Smaller Land in the
proceedings under BTAL Act. Despite this, the Petitioner did not
take any steps in respect of the order dated 23 rd February, 2004.
Hence, in so far as the Petitioner is concerned, the said order dated
23rd February, 2004 has attained finality and is binding upon the
Petitioners.
(i) After 11 years, in or around 2015, Respondent No.1
filed Tenancy Appeal No.109 of 2015 before the Deputy Collector
challenging the order dated 23rd February, 2004 by which
Respondent No.2 was declared as a tenant under the BTAL Act. The
Deputy Collector passed an order dated 23rd February, 2017
condoning the delay of 11 years on the part of Respondent No.1
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filing the said appeal. These Respondents thereafter filed Revision
Application No.150 of 2017 before the MRT challenging the order
dated 23rd February, 2017 passed by the Deputy Collector. The MRT
vide order dated 4th May, 2017 allowed Revision Application
No.150 of 2017 and set aside the order dated 23rd February, 2017
passed by the Deputy Collector. As a result, Respondent No.1’s
Tenancy Appeal No.109 of 2015 was disposed off.
(j) On 8th June, 2017 Respondent No.1 filed Writ
Petition No.6351 of 2017 before this Court challenging the order
dated 4th May, 2017 passed by the MRT in Revision Application
No.150 of 2017. This Court, vide order dated 23rd January, 2019
dismissed Writ Petition No.6351 of 2017 and upheld the order dated
4th May, 2017 passed by the MRT in Revision Application No.150 of
2017. Respondent No.1 thereafter filed Special Leave Petition
No.9998 of 2019 before the Hon’ble Supreme Court challenging the
order dated 23rd January, 2019 passed by this Court in Writ Petition
No.6351 of 2017. The Hon’ble Supreme Court vide order dated 29 th
April, 2019 dismissed SLP No.9998 of 2019. As a result, the order
dated 23rd February, 2004 attained finality and Respondent No.2
status as a tenant under the BTAL Act is established.
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(k) As on 30th August, 1975 the Larger Land was within
the jurisdiction of the Bombay Metropolitan, Regional Development
Authority who had prepared a development plan, wherein, the
Larger Land was reserved for industrial purpose. Thereafter, the
Larger Land which includes the Smaller Land has been within the
limits of the Municipal Corporation of Thane and shown for
residential use.
PLEADINGS AND AVERMENTS OF RESPONDENT NO.8
THANE MUNICIPAL CORPORATION
(Summarised from the WP records)
15. Respondent No.8/Thane Municipal Corporation (TMC)
has filed an affidavit in reply. It’s averments can be summarized as
under :
(a) This Petition is filed against order dated 30 th June
2017 passed by MRT, Mumbai in Forest Appeal No.165 of 2005.
The Thane Municipal Corporation was not a party to earlier
proceedings up to MRT. Respondent No.8/Thane Municipal
Corporation had filed an Interim Application No.775 of 2021 for
intervention and for impleading it as a Respondent in the present
Writ Petition, which came to be allowed by order dated 18 th July,
2022 passed by this Court.
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(b) The suit property bearing Gut No.59/A/1, is situated
at Chitalsar Manpada, within the local limits of TMC. The
Development Plan for the city of Thane was sanctioned by the State
Government on 4th October, 1999 which came into force from 22 nd
November, 1999. So also, the Government sanctioned the excluded
portion on 8th April, 2003 which came into force from 14th May,
2003. In the said sanctioned DP, various portions of the suit property
came to be reserved for, viz. (a) 20 meter wide DP Road, (b) 40
Meter wide DP Road, (c) 30 meter wide High Capacity Mass
Transport Route (HCMTR), (d) TMT reservation, (e) Park
reservation nos.4,5,6, (f) Municipal Primary School reservation, (g)
Maternity Home Reservation, (h) Municipal purpose reservation
no.1, (‘a’ to ‘h’ above are collectively referred to as RESERVATION
AFFECTED PORTION).
(c) The balance portion of the suit property was shown
as reserved for commercial zone, godown zone, industrial zone and
residential zone, in the said sanctioned DP. The record does not
reveal that during the period from preparation of the said Dev. Plan,
till its approval by the State Government, any objection/claim was
received by TMC contending that the suit land is a private forest
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under the Maharashtra Private Forest (Acquisition) Act, 1975
(MPFA). It also does not appear that TMC received any objection
for placing aforesaid reservations upon portions of the suit property,
as also about inclusion of the balance suit property into the above
stated various zones.
(d) The Bombay High Court has not granted any
interim relief to the Petitioner State, as against the order passed by
M.R.T. which is impugned in this Petition. The Entry showing the
concerned land to be Maharashtra Government Reserved Forest,
came to be deleted from the 7/12 extract of concerned land.
(e) The TMC was served with a Purchase Notice dated
24th August, 2017 under Section 127 of The Maharashtra Regional
Town Planning Act, 1966 for Park Reservation No.4. If urgent and
effective steps for acquiring the reservation portion would not have
been taken by TMC, then the said reservation would have lapsed
and said reservation affected portion would have become de-
reserved as per the applicable provisions of law. In that eventuality,
there would have been loss to the City of Thane and the public at
large, for whose benefit the said reservations were put up. The
TMC, therefore, by agreement, acquired reserved portions of the
said land and issued D.R.C. No.362 (Road) for 10500 sq. meters,
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D.R.C. No.363 (Road) for 7328 sq. meters and D.R.C. No.281
(Reservation) for 15960 sq. meters.
(f) The TMC entered into following transfer deeds
which have been registered :
(i) Deed of Transfer dated 25th April, 2019 duly
registered with the Sub Registrar of Assurances,
Thane at serial no.TNN-5-6766-2019, by and
between the TMC and Respondent No.1 herein
i.e. D. Dahyabhai & company Pvt. Ltd. (vide the
said deed, the portion out of the suit property,
affected by 20 meter wide D.P. Road, 40 Meter
wide DP Road, 30 meter wide HCMTR
collectively admeasuring 18100 square meters,
was acquired by the TMC).
(ii) Deed of Transfer dated 24th May, 2019 duly
registered with the Sub Registrar of Assurances,
Thane at serial no.TNN-5-8450-2019, by and
between the TMC and Respondent No. 1 herein
i.e. D.Dahyabhai & company Pvt Ltd. (vide the
said deed, the said park reservation portion
admeasuring 404721.02 square meters, equivalent
to approximately 100 acres.)
(g) In view of the filing of the present Petition, an
undertaking was taken from Respondent No.1 to refrain from
utilising and/or transferring the aforesaid D.R.C., till receipt of an
NOC from the forest department. Respondent No.1, vide its letter
dated 26th December, 2019 raised an objection about the said
undertaking and requested to delete the condition of ‘taking NOC’
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WP-10024-2023.odtfrom the Forest Department. Respondent No.1 also requested the
TMC to remove the prohibition upon use and transfer of the said
DRCs or else to provide monetory compensation of
Rs.78,38,30,000/-.
(h) In view of the said letter dated 26th December, 2019,
the TMC addressed a letter dated 31st December, 2019 bearing Ref.
No.4548, to the Chief Conservator of Forest, informing him about
the objection raised by Respondent No.1 and that if stay from this
Court is not obtained, the TMC shall be left with no option, but to
remove the prohibition on the use of the TDR under the said DRCs.
(i) In the meantime, Respondent no.1 submitted an
application through its Architects for securing TDR 10 folds of the
land surrendered vide transfer deed dated 24th May, 2019, by way of
DRC. In view of that proposal, the TMC issued the letter dated
8th January, 2020 bearing Ref. No.2405 to the Chief Conservator of
Forests. TMC specifically assured that the Park reservation portion
will not be used for any non-forest activity and the said portion shall
be maintained by keeping it’s natural greenery intact, as it is.
(j) It was also further clarified that the TMC, if
requested by the Forest Department/State, shall hand over the said
park reservation portion to the Forest Department by seeking
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permission of the general body. The TMC further clarified that as
per the provisions of law, it was obligatory on the part of the TMC
to give compensation to the landowner viz. the
Company/Respondent No.1 herein.
(k) In response to the said letters 31st December, 2019
and 8th January, 2020, the TMC did not receive any letter from the
Forest Department. Hence, TMC issued one more letter dated
15th January, 2020 to the Chief Conservator of Forest. TMC once
again requested the Forest Department to give a written explanation
as early as possible.
(l) On 15th January, 2020, the TMC received the letter
dated 12th January, 2020 sent by Chief Conservator of Forest to the
Additional Secretary (Forest) and a copy of the said letter was
marked to the TMC. Vide the said letter the said Chief Conservator
sought guidance and further orders in the matter from the State.
(m) On 21st January, 2020, the TMC received a letter
from the office of the Chief Conservator of Forest bearing Ref.
No.3447 dated 17th January, 2020 addressed to ADTP, TMC. Vide
the said letter, TMC was instructed to take appropriate action at its
level regarding permitting the use and transfer of DRCs.
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(n) In view of the letter received from the Forest
Department, the Thane Municipal Corporation sought guidance
from the Urban Development Department vide letter dated
9th November, 2020 regarding the development of the Park
Reservation. On 1st June, 2021, the Thane Municipal Corporation
received a letter from the Additional Principal Chief Conservator
Forest regarding cancellation of DRC’s and stoppage of procedure
for acquisition of reservation.
(o) On 7th June, 2021, the Thane Municipal Corporation
has informed these facts to the Additional Principal Chief
Conservator Forest.
(p) In the meantime, Respondent No.1, D. Dahyabhai &
Co. Pvt. Ltd., filed Writ Petition No.6603 of 2023, before the
Division Bench of this Court, seeking directions from this Court for
permitting the use, utilisation and transfer of said three DRCs. This
Respondent, as well as the State Petitioner herein, both appeared in
the said Petition, filed their respective replies and vide order dated
24th April, 2023, the said Petition was closed for pronouncement of
Judgment. It is pertinent to note that in the said Petition, the
Petitioner herein requested to tag this Petition with the said Petition.
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(q) Respondent No.1, D. Dahyabhai & Co. Pvt. Ltd.
also filed one more Writ Petition No.10024 of 2023, before the
Division Bench of this Court seeking a direction against TMC for
issuance of DRC against the said Park Reservation No.4. The said
Writ Petition is now being heard. In the said Writ Petition, order
dated 5th September, 2023 was passed.
(r) In another dispute between Respondent No.1 herein,
M/s. D.Dahyabhai & Co. Pvt. Ltd. and one Mr. Rajadhaksha Sharma
and two others, in which this Respondent was also party, the Single
Bench of this Court (Coram: Nitin W Sambre, J) was pleased to pass
an order dated 25th November, 2022 in Appeal from Order No.1051
of 2019, directing this Respondent to issue DRC against the said
Park Reservation No.4.
(s) Thus, so far as the issue regarding permitting the
utilisation of the said 3 DRCs is concerned, the same is already sub-
judice before this Court. So far as issuance of DRC against Park
Reservation No.4, the Single Bench has already passed an order
dated 25th November, 2022, in the said Appeal from Order No.1051
of 2019, directing this Respondent/TMC to allot DRC. Said issue is
also now pending before this Division Bench.
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(t) The Reservation affected portion has now been
transferred to the TMC by executing registered instruments. The
D.R.C’s. have already been issued for the said land affected by
reservation for 20 Mt wide D.P. road, 40 Mt wide D.P. road & 30 Mt
wide HCMTR reservation,. However, these D.R.Cs. are restrained
from transfer & utilization due to the objection raised by the Forest
Department. So far as park reservation portion is concerned, a DRC
is not yet issued.
(u) There is no judicial order prohibiting utilization
and/or transfer of aforesaid D.R.C. The D.R.Cs. are freely
transferable to any third party as per the provisions of DCR. The
Petitioner has prayed for suspension/cancellation of aforesaid
D.R.C., however no orders are passed till the date.
(v) The Forest Department, by letter at Exhibit-F has
instructed the TMC to take appropriate decision in the matter. The
result of the present Petition shall directly affect the entitlement of
Respondent No.1 to get D.R.C. claimed by it. In view of the above,
this Court may kindly issue appropriate directions including in
respect of transfer and use of aforesaid three DRCs and about
issuance of DRC against the park reservation.
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CONSIDERATION OF THE ORAL AND WRITTEN
SUBMISSIONS OF THE PARTIES
16. Having considered the pleadings and averments of the
parties, we are adverting to their oral and written submissions herein
after. Their entire written submissions (verbatim) have been annexed
after this judgment, as annexures. Herein below is the summary of
their oral and written submissions.
17. SUBMISSIONS OF THE SENIOR ADVOCATE
MR. DWARKADAS, SPECIAL COUNSEL FOR THE STATE
AND HIS REJOINDER ARGUMENTS.
(Summarised from the written notes of arguments)
17.1. Whether the law laid down by the Hon’ble Supreme
Court in Rohan Vijay Nahar and Ors. v/s. State of Maharashtra and
Ors., 2025 SCC OnLine SC 2366 (‘Rohan Nahar’), would apply to
the present Writ Petition No.3205 of 2018 ?
17.2. On 7th November 2025, a bench of the Hon’ble
Supreme Court (Coram : Vikram Nath and Prasanna B. Varale, JJ.),
delivered its decision in Rohan Vijay Nahar (supra). The Court set
aside the Bombay High Court’s decision in Devkumar Gopaldas
Aggarwal and Ors. v/s. State of Maharashtra and Ors., 2018 SCC
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Online 2823 (‘Devkumar Aggarwal’) holding that the High Court
was wrong in concluding that the facts of the case in Devkumar
Aggarwal (supra) differed from those in Godrej & Boyce Mfg. Co.
Ltd. v/s. State of Maharashtra, (2014) 3 SCC 430 (Godrej &
Boyce’).
17.3. The Hon’ble Supreme Court noted that the High Court
had framed two issues in Devkumar Aggarwal (supra). The main
issue was whether the law laid down by the Hon’ble Supreme Court
in Godrej & Boyce (supra) would apply to the facts in Devkumar
Aggarwal (supra), and whether subsequent purchasers could rely on
Godrej & Boyce (supra) even when their predecessors-in-title had
not questioned the application of the Maharashtra Private Forests
(Acquisition) Act, 1975 (‘Maharashtra Private Forests Act‘) or the
actions taken under it (Para 12.1/Page 18 of Rohan Nahar).
17.4. In fact, the Hon’ble Supreme Court in Rohan Nahar
(supra) followed the law laid down in Godrej & Boyce (supra),
particularly, in paragraph nos.10.2/Page 16, 10.3/Page 16, 10.4/Page
16 and 14.2/Pages 22-23 of Rohan Nahar (supra), and observed as
follows :
“10.2. Interpreting the expression “a notice has
been issued” in Section 2(f)(iii) of the MPFA,
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service. Given the statutory scheme, a valid notice
under Section 35(3) of the IFA necessarily entails
service on the owner, an opportunity to file
objections, to adduce evidence, and to be heard.
Because interim restraints may be imposed under
Section 35(4) of the IFA and penal consequences
attach under Section 35(7) of the IFA, service is
inherent to the process. Section 35(5) of the IFA,
requiring service in the CPC manner and
publication as prescribed, reinforces this
conclusion.
10.3. On this basis, the view in Chintamani
Gajanan Velkar (Supra) that a bare, unserved
notice sufficed for Section 2)(f)(iii) of the MPFA
was found to have overlooked the
Bombay/Maharashtra amendments to Section 35
of the IFA and to have proceeded on an erroneous
premise regarding the two-hectare exclusion. It
was overruled to that extent.
10.4. The Court further clarified that Section 2(f)
(iii) of the MPFA saves only “live” or “pipeline”
notices, those issued and pursued in reasonable
proximity to 30.08.1975. Notices left undecided
for years or decades lapse into desuetude. The
State is obliged to act within a reasonable time; a
notice from 1956-57, never taken to its statutory
culmination, cannot be revived to effect vesting
on the appointed day.
…………..
14.2. After this categorisation, we are satisfied
that there is no legally relevant distinction
between the present cases and the decision in
Godrej and Boyce (Supra). The ratio in Godrej
and Boyce (Supra) turns on service of a notice
under Section 35(3) of the IFA, the existence of a
live process capable of culminating in a
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notification under Section 35(1) of the IFA, and
strict compliance with the statutory steps that
alone can support vesting under Section 3(1) of
the MPFA Act on the footing of Section 2(f)(iii).
The record before us discloses the same
deficiencies that were fatal in Godrej and Boyce
(Supra). There is no proof of service of any notice
under Section 35(3) of the IFA on the then
owners. There is no final notification under
Section 35(1) of the IFA. Possession has remained
with private owners throughout. No
contemporaneous action was taken under Sections
4, 5, 6 or 7 of the MPFA Act. These features
mirror the very elements that led this Court to
hold that vesting had not occurred in Godrej and
Boyce (Supra)….”
SUBMISSIONS ON GODREJ & BOYCE AND ROHAN NAHAR
(Part of the written submissions of Sr. Adv. Mr. Dwarkadas)
18. Since the issue in Rohan Nahar (supra) is connected to
Godrej & Boyce (supra), it is necessary to first examine Godrej &
Boyce (supra). The relevant facts emerging from that judgment are
as follows :
18.1. Godrej acquired land in Vikhroli by a registered deed of
conveyance dated 30th July,1948 from Nowroji Pirojsha, who had
inherited it from Framjee Cawasjee Banaji, the original perpetual
leaseholder under an 1835 Government of Bombay grant. The land
was classified as ‘wasteland’ under the original lease, meant to be
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specific survey numbers, referred to as the ‘disputed land’. (Paras 3
– 4/Page 12 of Godrej & Boyce)
18.2. In 1951, the Salsette Estates Act (“Abolition Act”) was
passed stating that wastelands granted under a perpetual lessor not
cultivated before 14th August, 1951 would vest in the State and be
the property of the State. However, aggrieved by this Act, Godrej
filed a suit in the Bombay High Court for seeking a declaration of
its ownership and that the Abolition Act had no application to the
lands in question. After litigation, a 1962 consent decree declared
that except for 31 gunthas, the rest of the land had been cultivated
by Godrej before 14th August, 1951 and therefore, belonged to
Godrej. (Paras 5 – 7/Pages 12 – 13 of Godrej & Boyce)
18.3. Development plans for the city of Bombay in 1967 and
1991 designated the disputed land as residential. Godrej received
permissions to construct residential buildings and it built four, for
staff use. However, on 17th February, 1976 the Urban Land Ceiling
Act (1976) came into force and since the disputed land was in
excess of the ceiling limit, Godrej sought exemptions to use excess
land for industrial and residential purposes. The State granted the
exemption, requiring construction of staff housing. With exemptions
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residential buildings, a club house, sub-stations, and other facilities,
housing thousands of families. (Paras 9 – 11/Page 13 of Godrej &
Boyce)
18.4. In May 2006, Godrej received six ‘stop-work’ notices
stating that the disputed land was treated as private forest, requiring
Central Government approval for construction under the Forest
(Conservation) Act, 1980. Godrej learned that this action arose from
a 2005 Bombay High Court order directing the State to update all
land records. Godrej learned that, while updating land records, the
State had unilaterally changed the revenue entries to classify the
land as private forest. It also found that Notice No. WT/53, issued
under Section 35(3) Indian Forest Act, 1927 ( ‘Indian Forest Act‘),
had been published in the Bombay Government Gazette of 6th
September 1956 regarding the land, but the notice had no date, was
never served on Godrej, and was never acted upon by the
Government. (Paras 16 & 31 – 33/ Pages 14 & 19 of Godrej &
Boyce)
18.5. Aggrieved by this, Godrej filed Writ Petition No.2196
of 2006, seeking a declaration that its Vikhroli land was not forest
land and requesting the High Court to invalidate the forest
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mutation. During the case, it emerged that about 170 similar notices
were issued in 1956-57 to various entities, including government
establishments. (Paras 34 – 35/ Pages 19-20 of Godrej & Boyce)
18.6. The State contended that, based on the Supreme Court’s
ruling in Chintamani Velkar (supra), the disputed land had already
vested in the State under Section 3 of the Maharashtra Private
Forests Act. The High Court dismissed Godrej’s Petitions in 2008,
holding that development approvals and planning designations
could not override the land’s status as private forest, and that the
government inaction did not invalidate earlier notices. The Court
further held that even a Section 35(3) notice issued without a
corresponding Gazette notification did not remove the land from the
Maharashtra Private Forests Act and such notices could not be
deemed abandoned. It concluded that private forest land remains
forest despite any development plans or zoning changes. Aggrieved
with this decision, Godrej and other Petitioners filed Special Leave
Petitions before the Supreme Court. (Paras 36 – 38/Pages 20-21 of
Godrej & Boyce)
18.7. However, the Supreme Court allowed all the appeals
and set aside the judgment of the Bombay High Court, and delivered
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18.7.1. Chintamani Velkar was over-ruled which had held that
mere issuance of a notice under Section 35(3) of the Indian Forests
Act is sufficient and service is not required under Section 2(f)(iii) of
the Maharashtra Private Forests Act and held that the word ‘issued’
in Section 2(f)(iii) must include service of the show-cause notice.
(Paras 61 – 62/Page 26 of Godrej & Boyce)
18.7.2. The Supreme Court endorsed the Full Bench decision
in J. C. Waghmare v/s. State of Maharashtra, AIR 1978 Bom 119,
which upheld the constitutional validity of the Maharashtra Private
Forest Act (Paras 22 – 26/Pages 17-18 of Godrej & Boyce). It held
that :
(a) Section 2(f)(iii) of the Maharashtra Private
Forests Act applies even to land where only a notice had been issued
under Section 35 of the Indian Forest Act and the owner’s objections
remained unheard when that provision was repealed in 1975, such
objections can now be heard under Section 6 of the Maharashtra
Private Forests Act.
(b) Section 6 provides landowners with the
opportunity to file objections and demonstrate that their land should
not be classified or declared as forest.
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18.7.3. The Hon’ble Supreme Court held that Section 2(f)(iii)
of the Maharashtra Private Forests Act is in sense a saving clause
and is meant to save ‘pipeline notices’. ‘Pipeline notices’ or ‘live
notices’ have been defined to mean notices issued in reasonably
close proximity to the coming into force of the Maharashtra Private
Forests Act and only such ‘live notices’ could be acted upon. (Paras
71 – 74/Pages 27-28 of Godrej & Boyce)
18.7.4. The Supreme Court held that the notice issued to
Godrej could not be considered a ‘pipeline’ notice, since a pipeline
period cannot reasonably extend from 1956-1957 all the way to
1975. Therefore, the notice was not valid for the purpose of treating
the land as private forest. (Para 49/Page 24 of Godrej & Boyce)
19. In the background of Godrej & Boyce (supra), it would
be appropriate to examine the facts of the case in Rohan Nahar
(supra).
19.1. The Appellants (batch of 96 civil appeals) were
landowners in Maharashtra whose cases share a common factual
background with each other, as well as with the facts in Godrej &
Boyce (supra). The State claimed that in the early 1960s, notices
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under Section 35(3) of the Indian Forest Act were issued and
published in the Official Gazette, calling upon landowners to show
cause why forest-related restrictions should not be imposed. The
landowners maintained that these notices were never personally
served, no hearings were held, no final notification under Section
35(1) of the Indian Forest Act was issued, and the proceedings
remained dormant for decades. (Para 7.1/Page 12 of Rohan Nahar)
19.2. After the Maharashtra Private Forests Act, came into
force, the landowners argued that the State did not take possession
under Section 5 and that, for decades the lands continued to be
treated as private holdings. Transfers were allowed, planning
authorities treated these lands as agricultural land or no
development zone, and no compensation was paid. The State argued
that the 1960s notices under Section 35(3) of the Indian Forest Act
read with Section 2(f)(iii) of the Maharashtra Private Forests Act
caused automatic vesting of the lands in the State. (Para 7.2/Page 13
of Rohan Nahar)
19.3. However, from around 2001, revenue officers began
mutating village records to show lands as affected by forest
proceedings. Names of the landowners were replaced with that of
the State. The owners alleged these changes were made without
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notice to them and in violation of the Maharashtra Land Revenue
Code. The State argued that the entries merely reflected statutory
vesting. These annotations had collateral effects and Sub-Registrars
refused to register documents having regard to departmental
instructions. Possession nonetheless remained with the private
parties, compensation was never awarded, and many administrative
challenges under Maharashtra Land Revenue Code remained
unresolved. Landowners, therefore, approached the High Court
seeking correction of records, declaratory relief regarding title and
vesting and restoration of entries consistent with private title and
possession. (Paras 7.3 – 7.4/ Page 13 of Rohan Nahar)
19.4. Before the High Court, landowners challenged the
legality of forest-related mutation entries and sought declarations
that their lands were not private forests under the Maharashtra
Private Forests Act, along with restoration of their names in the
revenue records. The Landowners argued that :
(i) mere Gazette publication of the notice under Section
35(3) of the Indian Forest Act without personal service under
Section 35(5) of the Indian Forest Act could not have adverse
consequences;
(ii) they emphasized that no inquiry or final notification
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WP-10024-2023.odtfollowed after the issuance of the notices under Section 35(3);
(iii) that the notices were stale;
(iv) that the State never took possession of the lands in
question or paid compensation for the same; and
(v) the revenue authorities actions violated the
Maharashtra Land Revenue Code and natural justice requirements.
(Paras 8.1 – 8.2/ Pages 13 – 14 of Rohan Nahar)
19.5. The State responded that issuance of Section 35(3)
notices in the 1960s was sufficient for vesting under Section 2(f)(iii)
and Section 3 of Maharashtra Private Forests Act and that revenue
entries were ministerial reflections of statutory vesting that followed
as a matter of law. It also raised objections regarding delay and
laches and pointed out to availability of remedies under the
Maharashtra Land Revenue Code. (Para 8.3/Page 14 of Rohan
Nahar)
19.6. The High Court grouped the cases and considered
common questions such as :
(i) Whether issuance of Section 35(3) notices in these
cases, without service of these notice on the landowners, alone was
enough?
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(ii) Whether service and a Section 35(1) notification
were mandatory?
(iii) Whether dormancy affected vesting, and
(iv) Whether the Maharashtra Land Revenue Code
procedures had been violated? (Para 8.4/Page 14 of Rohan Nahar)
19.7. The Hon’ble High Court in Devkumar Aggarwal
(supra) vide its order dated 27th September, 2018, disposed off this
batch of 96 petitions and held as follows :
19.7.1. That vesting under Section 3 of Maharashtra Private
Forests Act occurred automatically on 30th August 1975, i.e., the
appointed day and that entries made in 2002 merely reflected this
vesting. (Para 12.2/Page 18 of Rohan Nahar)
19.7.2. It accepted the State’s claim that the Section 35(3)
notices were issued and served and that in many cases a Section
35(1) notification was already in force. It relied on Gazette extracts,
referred to as the ‘Golden Register’, possession notices, and
panchanama. (Para 12.3 of the Rohan Nahar Judgment)
19.7.3. It distinguished Godrej & Boyce (supra) as being fact-
specific as in Godrej & Boyce (supra) the owners had an earlier
consent decree, long-standing sanctioned development and an
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evidentiary vacuum on service and follow-through. It also held that
requirements of issuance and service were satisfied on the basis of
the facts on record. (Paras 12.4 – 12.5/Page 19 of Rohan Nahar)
19.7.4. The principle laid down in Godrej & Boyce (supra)
that had made a distinction in ‘stale’ and ‘live’ notices was not
considered by the High Court and it was held that the issue in
Godrej & Boyce (supra) was fact specific to the facts of that case. It
was further held that in any event, the lands in question would come
within the primary definition of ‘forest’ under Section 2(c- i) of the
Maharashtra Private Forests Act. (Para 12.6/Page 19 of Rohan
Nahar).
19.7.5. In several of the cases the High Court found that the
challenges were mounted by subsequent purchasers who had
acquired the land post 30th August, 1975, i.e., the appointed day and
not by original land owners. The High Court held that the
subsequent purchasers were alleging non service of notices without
obtaining affidavits from their predecessors-in-title stating whether
the notices were in fact served on them or not. It was further held
that the subsequent purchasers made these allegations even though
the ‘burden was effectively placed on the petitioners to dislodge
official records’. (Paras 12.7 – 12.8/Page 19 of Rohan Nahar)
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19.7.6. Except one matter remitted for inquiry, the High Court
dismissed all Writ Petitions, charactering several as commercially
motivated and not bona fide and cautioning that entraining them
would weaken forest protection. (Para 12.12/Page 19 of Rohan
Nahar)
19.8. However, in the case of Rohan Nahar (supra), the
Hon’ble Supreme Court overruled Devkumar Aggarwal (supra) and
held as under :
19.8.1. That the legal position is settled, i.e., for vesting under
Section 3 of the Maharashtra Private Forests Act based on Section
2(f)(iii), the Section 35(3), notice must not only be issued, but, must
be served. Service is essential because it allows a right in the owner
to object. The Court rejected the High Court’s view that reproducing
the text of Section 35(1) ‘beneath’ a show-cause notice amounted to
a final notification. It further held that mutation entries cannot
perfect an acquisition that lacks statutory predicates and that these
entries cannot create title in the State or divest title from the private
owner. (Para 13.1/Page 20 of Rohan Nahar)
19.8.2. The Court found critical statutory steps to be missing,
viz.,
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(i) No proof that Section 35(3) notices were served, nor
any final notification under Section 35(1).
(ii) Private owners had remained in continuous
possession, as shown by revenue records.
(iii) The State had not taken possession under Section
5, initiated schemes under Section 4, conducted compensation
proceedings under Section 7, or held timely inquiries under S. 6.
(iv) The documents relied on by the State, mostly
undated or unverified, were unreliable when contrasted with
decades of undisputed private possession.
(v) In some cases, the State relied on notices sent to
non-owners or on lands long converted to industrial use. In another,
it could not even assert that a Section 35(3) notice existed.
(vi) Considering these deficiencies together, made it
clear that vesting under Section 3(1) of the Maharashtra Private
Forests Act had not been completed (Para 13.2/Page 20 of Rohan
Nahar)
19.8.3. The Hon’ble Supreme Court also rejected the High
Courts distinctions between original and subsequent purchasers. It
was held that compliance with mandatory statutory requirements
does not depend on ownership history. Subsequent purchasers
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cannot be prejudiced by undisclosed proceedings. The revenue
records themselves showed continued private ownership,
undermining the State’s case. The Supreme Court rejected the High
Court’s approach to hold that a subsequent purchaser is in a worst
position than the one who developed land would invert the logic of
the statute and would reward illegality while penalising restraint.
(Para 13.4/Page 21 of Rohan Nahar)
19.8.4. The Hon’ble Supreme Court also refused remand for a
Section 6 inquiry, holding that such an exercise decades later would
be meaningless and could not cure the lack of mandatory
prerequisites. It further held that the High Court misread the
Gazette, diluted statutory requirements, and relied on irrelevant
material. The judgment therefore could not stand. (Para 13.5/Pages
21-22 of the Rohan Nahar Judgment)
19.8.5. And finally it was held that the facts in those 96 appeals
which arose from the Bombay High Court Judgment in Devkumar
Aggarwal (supra) were indistinguishable in principle from Godrej
& Boyce (supra). It was held that the record reflects the same
jurisdictional defects viz.,
(i) non-service of a notice under Section 35(3) of the
Indian Forest Act,
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(ii) absence of a final notification under Section 35(1)
of the Indian Forest Act, and
(iii) lack of contemporaneous steps under Sections 4, 5,
6, and 7 of the Maharashtra Private Forests Act.
20. It is submitted by Mr. Dwarkadas that, the facts in
Godrej & Boyce (supra) and Rohan Nahar (supra), are
indistinguishable. In both cases, the Section 35(3) notices were
issued in the 1960s, never served on the original owners, and never
followed by any further action. As held by the Hon’ble Supreme
Court in Godrej & Boyce (supra), only ‘Pipeline Notices’, viz.,
those issued in close proximity to the Maharashtra Private Forests
Act coming into force, could be acted upon. This principle has not
been interfered with in Rohan Nahar (supra).
21. In Godrej & Boyce (supra), it is held that mere issuance
of a notice under Section 35(3) of the Indian Forest Act is not
enough, the notice also has to be served on the owner of the land. It
is important to note that while Rohan Nahar (supra) reaffirmed this
principle regarding issuance and service of the notice under Section
35(3) of the Indian Forest Act, it did not hold that such notices must
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be served before the Maharashtra Private Forests Act came into
force on 30th August, 1975.
22. In the light of the above, it is submitted by the
Mr. Dwarkadas that the facts in the present case (Writ Petition
No.3205 of 2018) are distinguishable from those in Rohan Nahar
(supra), for the following reasons :
22.1. The notice under Section 35(3) of the Indian Forest Act
was issued to Respondent No. 1 on 29th August 1975 and served on
4th September, 1975. This is confirmed in paragraphs 7.11 and 7.12
(Pages 126-127) of Respondent No.1’s Reply in Writ Petition
No.3205 of 2018.
22.2. The notice under Section 35(3) of the Indian Forest Act
was issued on 29th August, 1975 and served on 4th September, 1975
i.e., in close proximity to 30th August 1975. It is, therefore,
submitted that such a notice would be a “live” notice/”pipeline”
notice as understood in the decision of Godrej & Boyce (supra).
Significantly, in contrast, the notices in Rohan Nahar (supra) were
‘stale’ notices, issued in the 1960s and never served on the
landowners.
22.3. In the present case, after taking possession of the
subject land, the Forest Department constructed boundary walls, an
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entry gate, a security cabin, a nature interpretation centre, and other
structures for protecting the subject land. By contrast, in Rohan
Nahar (supra), no action was taken even after issuing notices in the
1960s.
22.4. Furthermore, in the current case, Respondent No. 1 also
wrote two letters (dated 5th July, 1979 and 28th August, 1979)
requesting exemption of 24 acres and 32 gunthas from Gat
No.59/A/1, offering substitute land instead. Respondent No.1 stated
that considerable amounts had been spent by it in developing
horticulture on the land and wells and farmhouses had been built on
the subject land. Since the provisions of the Maharashtra Private
Forests Act did not allow substitution of land, the State rejected this
request. Respondent No.1 then filed a Section 6 application under
the Maharashtra Private Forests Act before the Collector (“SDO”).
This is a key distinction from Rohan Nahar, where the owners never
got a hearing. Here, the original owner himself approached the
authorities and participated in the process.
22.5. In the present case, the purpose of issuing a notice
under Section 35(3) has been fulfilled (viz. giving a hearing to the
owner of the land) in as much as, after the Section 6 application, the
following proceedings were held :
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22.5.1. The Collector, by order dated 3rd August, 1980,
accepted Respondent No.1’s offer of alternate land. The Petitioner
challenged this before the Maharashtra Revenue Tribunal (“MRT”).
22.5.2. On 15th October, 1982, the MRT remanded the matter to
the SDO for fresh inquiry, holding that the SDO did not have the
jurisdiction to allot the 24-acre parcel.
22.5.3. After the remand, the SDO passed a second order on
27th December, 2004, holding that 138 acres was private forest land
vesting in the Government, while 55 acres was not.
22.5.4. Both sides appealed. On 15th June 2017, the MRT
dismissed the Forest Department’s appeal and allowed Respondent
No.1’s appeal, incorrectly interpreting Godrej & Boyce (supra) to
hold that because the notice under Section 35(3) of the Indian Forest
Act was not served on or before 30th August, 1975, it could not be
treated as a valid notice at all and held that the subject land is not a
‘private forest’ as contemplated under Section 2(f)(iii) of the
Maharashtra Private Forests Act and hence the subject land is
excluded entirely from acquisition under the Maharashtra Private
Forests Act.
22.6. These facts clearly show that, unlike Rohan Nahar
(supra), the original owner in the present case had multiple
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opportunities to present his case.
22.7. In view of the above, it is submitted that the present
case is clearly distinguishable from Rohan Nahar (supra). Further,
the issues raised in the present petition did not arise for
consideration in Rohan Nahar (supra).
23. SUBMISSIONS OF ADVOCATE MR. BALSARA, ON
BEHALF OF RESPONDENT NO.1/LAND OWNER.
(Summarised from the written submissions of Adv Balsara)
23.1. Background :
(a) The Respondent No.1 is the owner of subject land
admeasuring 193 acres 07 guntha 4A. The Indian Forest Act, 1927
(IFA) came to be published in official gazette on 27th September,
1927. It contained Section 35. Said Section 35 deals with the aspect
of protection of forest for special purpose by the State Government
by way of publication of notification in the Official Gazette under
Section 35 (1). But before that under Section 35 (3), Government is
under obligation to issue the notice to the owner through an officer
authorised by the State Government, calling upon such owner to
show cause within a reasonable period, as to why a notification
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calling for objections, giving opportunity of hearing to the owner,
passing of an order by the authorised officer, before publication of
notification under Section 35 (1).
(b) It is pertinent to note that on 14 th August, 1975 a
legislation was passed under the name and style as ‘Maharashtra
Private Forest (Acquisition) Act, 1975‘ (MPFA). The President of
India gave ascent to MPFA on 25th August, 1975. MPFA was
published in the Maharashtra Government Gazette Part IV on
29th August, 1975. MPFA, vide clause 2 (a), stipulates that
‘Appointed Day’ means the day on which the said act comes into
force. The said date was notified as 30th August, 1975 vide G.N.R.
and F.D. No.PRF1073/40845-F-2 dated 29th August, 1975 The
Section 24 (i) of MPFA (acquisition 1975) is reproduced as below :
“On and from the appointed day, sections 34a, 35,
36, 36a, 36b, 36c and 37 of the Forest Act shall
stand repealed”. Whereas, it is obvious, on record
the MPFA Act (Acquisiton 1975) received assent
of the President on 25th August, 1975 published
in Gazette on 29th August, 1975. This itself shows
that the Forest Department was very much aware
that Section 35 is going to get repealed and hence
with the malafide intention has issued a notice
under section 35(3) on 29th August, 1975 to the
wrong person.
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(c) Admittedly, during the period from 27 th September,
1927 till 29th August, 1975 (for about 48 years), it was never
claimed by the State Government that the subject land is a forest and
never issued any notice under Section 35 (3) of IFA to the owner of
the subject land calling upon the owner as to why the subject land
should not be protected as a forest. In fact, during the said period,
the subject land was subjected to lawful transfer by registered
instruments, cultivation, horticulture, NA user, quarry purposes, etc.
(see Exhibit A, Exhibit B, Exhibit C, Exhibit D of affidavit in reply
of Respondent No.1 dated 25th November, 2019). The said
documents are at page no.283, i.e., Bombay Panvel Regional Plan of
1970, NA Permission granted by Collector Office Thane dated 14 th
May, 1963 at page no.284, NA Permission granted by Collector
Office Thane dated 15th December, 1964 at page no.286, NA
Permission granted by Collector Office Thane dated 25th July, 1973
at page no.287, 7/12 extract for the period from 1956 to 1972-73 at
page no.288-289, recording cultivation of rice, existence of
structures, horticulture, paddy, etc. upon subject land.
(d) It is only after MPFA getting ascent from the
President of India, and having realised that Section 35 is repealed,
the State Forest Department arbitrarily made a show about issuance
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IFA (impugned notice). In as much as, the notice issued a day prior
to the repealing of the provision of section 35 ceased to have effect
after the repeal of Section 35.
(e) The Petitioner has not submitted any documentary
proof about actual issuance of the impugned notice, on the alleged
date, i.e., 29th August, 1975 and service on the actual land owner.
(f) In para 3 (d) of the Petition it is stated that the
impugned notice was served on 4th September, 1975. The position of
law is that mere issuance of notice is not sufficient, but its service is
also important. Issuance cannot be divorced from service of notice.
Section 35 (3) of IFA necessarily entails service on the owner and
opportunity to file objections, to adduce evidence and to be heard.
Section 35 (5) of IFA requires service of such notice as per Civil
Procedure Code and publication as prescribed.
(g) In Godrej & Boyce (supra), the above stated
position of law is laid down by the Hon’ble Supreme Court. The
service of notice on 4th September, 1975 after repeal of the
provision, was claimed to be served on D Dayabhai & co., though it
was obvious that the land owner were M/s. D.Dayabhai and Co.
Pvt.ltd. and that D Dayabhai & Co. was an entirely different entity
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and the real owner of the land was never served with a notice under
section 35(3) under Forest Act.
(h) In the latest judgment dated 7 th November, 2025 in
the case of Rohan Nahar (supra), it is specifically held that the law
settled in the case of Godrej & Boyce (supra), is a declaration under
Article 141 of the Constitution. Paragraph 10 in case of Rohan
Nahar (supra) reads as under:
10. The judgment in Oberoi Constructions Private
Limited v. State of Maharashtra (supra) was
challenged in this Court and decided by a three
Judge Bench on 30th January, 2014 and has been
the prevailing precedent in such matters viz.
Godrej & Boyce (supra). This Court gave the
following findings :
10.1. This Court held that the mere issuance
of a notice under Section 35(3) of the IFA is
not, by itself, sufficient to treat land as a
“private forest” within Section 2(f)(iii) of the
MPFA. The answer to the principal question
was returned in the negative.
10.2. Interpreting the expression “a notice
has been issued” in Section 2(f)(iii) of the
MPFA, when read with Section 35 of the
IFA, the Court held that “issuance” cannot be
divorced from service. Given the statutory
scheme, a valid notice under Section 35(3) of
the IFA necessarily entails service on the
owner, an opportunity to file objections, to
adduce evidence, and to be heard. Because
interim restraints may be imposed under
Section 35(4) of the IFA and penal
consequences attach under Section 35(7) ofSunny Thote 95 of 373
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Section 35(5) of the IFA, requiring service in
the CPC manner and publication as
prescribed, reinforces this conclusion.
10.3. On this basis, the view in Chintamani
Gajanan Velkar (Supra) that a bare, unserved
notice sufficed for Section 2(f)(iii) of the
MPFA was found to have overlooked the
Bombay/Maharashtra amendments to
Section 35 of the IFA and to have proceeded
on an erroneous premise regarding the two-
hectare exclusion. It was overruled to that
extent.
10.4. The Court further clarified that Section
2(f)(iii) of the MPFA saves only “live” or
“pipeline” notices, those issued and pursued
in reasonable proximity to 30.08.1975.
Notices left undecided for years or decades
lapse into desuetude. The State is obliged to
act within a reasonable time; a notice from
1956-57, never taken to its statutory
culmination, cannot be revived to effect
vesting on the appointed day.
10.5. On the definitional plane, the Court
reaffirmed that the “means and includes”
formulation in Section 2(c-i) of the MPFA
does not dilute the primary sense of “forest”.
Lands long designated for urban use,
developed under sanctioned plans and
permissions, and integrated with municipal
infrastructure could not, on the admitted
facts, be regarded as “forest” either in the
primary or extended sense of Section 2(c-i)
of the MPFA.
10.6. Recognising the expropriatory
character of the MPFA, the Court applied
strict construction. Fundamental norms of
fairness and good governance preclude
unsettling settled civilian and commercial
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arrangements after prolonged State inaction,
particularly where the State itself facilitated
and acquiesced in development over
decades.
10.7. Even assuming arguendo that the lands
were forest, wholesale demolition and
dispossession after half a century was neither
feasible nor in the public interest on the facts
recorded. The equities of third-party
purchasers and residents, the State’s
prolonged acquiescence, and the practical
impossibility of “restoration” militated
against such a course.
10.8. In consequence, the appeals were
allowed, the High Court’s judgement was set
aside, and actions premised solely on stale
notices under Section 35(3) of the IFA were
quashed.
Also, paragraphs 13 and 14 of the said judgment in the case of
Rohan Nahar (supra) are relevant.
(i) Cumulative reading of both the judgments, i.e.,
Godrej & Boyce (supra) and Rohan Nahar (supra), clearly
demonstrate that unless a notice is legally served and further steps
under Section 35, i.e., issuance of notification, taking over
possession, giving hearing and deciding the objection of the owner
etc. are effectively taken up, the vesting of land as private forest, in
the State Government under Section 3 of MPFA, is not formalised.
When in the present case the validity of the proceeding under
section 6 of the Act of 1975 and process initiated under it, is vitiated
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because of the non-service of the notice under section 35(3) of the
Act, on the original owner.
(j) Admitted position is that Section 35 stood repealed
as per Section 24 of MPFA with effect from 30 th August, 1975. Thus
after 30th August, 1975 Section 35 was not in existence and therefore
the service of notice under Section 35 after 30th August, 1975 is of
no effect. Petitioner admittedly has not come up with any
documentary proof or case that after 30th August, 1975 they had
taken the steps under Section 35 of IFA particularly publication of
notification, taking over possession, giving opportunity of hearing to
the owner etc.
(k) In fact, the State witness has clearly admitted in
cross that notification under Section 35(1) 34(a) and 38 of IFA, have
not been published (Page Nos.87 and 88 of additional compilation
by Respondent No.1). Considering these factual aspects and law laid
down by Hon’ble Supreme Court in the case of Godrej & Boyce
(supra), the MRT vide impugned judgment dated 30th June, 2017
held that land in dispute is not a private forest and accordingly
dismissed the forest Appeal and allowed another Appeal filed by
Respondent No.1.
(l) Whereas in the matter of Godrej and Boyce (supra),
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the notices which were issued were not acted upon for a huge period
of 27 years and hence the Hon’ble Supreme Court held that the
notices had became stale and not ‘live’ and in para 56 in clear terms
has observed as follows :
56. A notice under Section 35(3) of the Forest Act
is intended to give an opportunity to the owner of
a forest to show cause why, inter alia, a regulatory
or a prohibitory measure be not made in respect of
that forest. It is important to note that such a
notice pre-supposes the existence of a forest. The
owner of the forest is expected to file objections
within a reasonable time as specified in the notice
and is also given an opportunity to lead evidence
in support of the objections. After these basic
requirements are met, the owner of the forest is
entitled to a hearing on the objections. This entire
procedure obviously cannot be followed by the
State and the owner of the forest unless the owner
is served with the notice. Therefore, service of a
notice issued under Section 35(3) of the Forest
Act is inherent in the very language used in the
provision and the very purpose of the provision.
(m) In the present case, the forest department not only
issued the notice under section 35(3) to the wrongful person and not
to the owner, but, thereafter also in the year 1982, when the Tribunal
remanded the matter, the department, after 17 years, i.e., in the year
1999, got the said remanded proceedings numbered as 53/99. This
clearly shows the negligence on the part of the Petitioner.
23.2. Whereas :
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Admittedly, from 2018 till today, the Petitioner failed
to obtain any stay to the impugned order of the MRT. The order of
MRT has been effected in the revenue record. Substantial portion of
land, about 104 acres has been transferred under registered
instruments to the planning authority, viz., TMC, for various
reservations. These registered instruments of 2019 have not been
challenged by any separate legal suit/proceedings or in the present
Writ Petition by the Petitioner. The possession of acquired land
under registered instrument is handed over to planning authority viz.
TMC which is evident from the text of the registered instruments.
23.3 In respect of some of the acquired land, 3 DRCs have
been issued. In respect of land admeasuring 100 acres, acquired for
PARK RESERVATION No.4, even though TMC did not issue the
DRC, there are already three orders of the Hon’ble High Court dated
22nd November, 2022, 28th April, 2025 and 27th June, 2025 whereby
the planning authority TMC is directed to issue DRCs. In the 7/12
extract the concerned reservation affected portion is already mutated
in the name of TMC. From the TILR report, it is evident that the
acquired portion is situated at the eastern boundary of the Sanjay
Gandhi National Park. Even otherwise, the circular dated 16 th
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January, 1996 of the Government of Maharashtra identifying the
boundaries of Sanjay Gandhi National Park is filed on record, i.e.,
Exhibit-A of additional affidavit of Respondent No.1 page (nos.445
to 447).
23.4 From the said circular, it is evident that the entire
village Manpada, where the subject land is situated, is at the eastern
boundary of Sanjay Gandhi National Park. Respondent No.1 has
already filed another letter dated 23rd January, 1986 issued by the
forest department, to the Deputy Collector Thane (said letter dated
23rd January, 1986 is annexed as Exhibit-B to the additional affidavit
of Respondent No.1 at Page nos.448, 449). In said letter, the
Petitioner has admitted that they could not take over the possession
of the subject land.
23.5 Thus, in the present matter, the following factors
become undisputed facts :-
(a) There is no proof that notice was issued prior to
appointed date, i.e., 30th August, 1975 to the Respondent No.1.
(b) Notice was served on 4th September, 1975 (it is not
served on the actual owner as required by CPC).
(c) There is no service or publication of notice as per
CPC. No notification under Section 35(1) came to be published.
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(d) No opportunity of hearing was given to the
Respondent No.1.
(e) Possession of subject land was not taken over by the
Petitioner as per Section 5 of MPFA.
(f) No compensation was paid by the Petitioner to the
Respondent No.1.
(g) Subject land was otherwise under cultivation, N.A.
users, etc. Thus, there is no question of subject land coming within
the definition of private forest defined under Section 2 (f) of MPFA.
In the circumstances, there is no question of acquisition and vesting
of subject land in the state government under Section 3 of MPFA.
(h). Whereas the MRT in its order dated 30/6/2017 has
clearly observed and recorded in para 17 (part of this paragraph is
reproduced below) :
17. In view of above discussion, as the Forest
Department has failed to prove that the notice u/s.
35 (3) was ‘served’ on the land owner, Resp. No.1
in Appeal No. 165/2005 who is Appellant in
Appeal No. 229/2009, prior to the appointed day,
and in fact, it has duly come on record that the
said notice was actually served on the land owner
on 4th September, 1975, i.e. after the repealing of
the provisions of section 35 of the Forests Act, the
land in dispute cannot be termed to be a ‘private
forest’ as contemplated u/s. 2(f)(iii) of the Act of
1975, inasmuch as the notice issued a day prior to
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is also interesting to point out here that in spite of
the knowledge about the proposed repealing of
section 35, the Department of Forest right from the
coming into force of the Indian Forests Act, 1927
in the year 1927, till 29th August, 1975, i.e. till a
day prior to the proposed repealing of the
provision of section 35, did not take any move or
action so as to protect the so-called ‘forest’ or
‘private forest’ and only a day prior to the
appointed day, i.e. 30/8/1975, on 29/8/1975 just
‘issued’ a notice which was not served on the land
owner, so as to accord him an opportunity of
hearing or representing his case in order to protect
his rights….
(i) The facts of present case are covered by two
judgments of the Hon’ble Supreme Court, in Godrej Boyce (supra)
case and Rohan Nahar (supra) case. Cumulative reading of both
judgments would indicate that a show cause notice granting time for
objection cannot be reconciled with the final decision taken without
service of notice and without hearing. Mere issuance of notice
cannot clothe the State with authority to vest the land.
(j) Mere issuance of notice under Section 35(3) of
Indian Forest Act does not result in automatic vesting of the subject
land under Section 3 of MPFA on the appointed date. Statutory
requirement of service on the owner, publication of the notification
and inquiry, must be satisfied before vesting of land under Section 3
of MPFA to the State.
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(k) Whereas, presently, the maximum land in question
in the present Petition is owned and possessed by the Thane
Municipal Corporation. So also, on the actual site, TMC has
constructed 40Mtr DP Road and there is a TMT bus Depot in
existence. TMC has reserved and allocated the funds for
development of Garden, Maternity Home, Park, school and for other
Municipal purposes. Hence, it is obvious that the said land is
acquired for the urban usage and the Respondent has been denied
any compensation. The TMC is very much aware that the due legal
process under the MPFA has not been followed and no
compensation has been paid under MPFA. Hence, now that the land
has to be acquired, compensation as per the provisions of “Right to
Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013” (RFCTLA), is mandated
and the owner shall clearly fall under Section 3 (c) of the said Act so
as to be compensated as per RFCTLA read with Section 126 of
MRTP Act.
24. The learned Senior Advocate Mr. Balsara has
contradicted the submissions of the State and has canvassed a host
of grounds, which are summarised as under :
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[A]. Suppression and Misrepresentation by the Petitioner (Re: Para
1.4) :
1. The Petitioner, has deliberately and willfully tried to
mislead the Court by suppressing material facts.
(a) The Petitioner has consciously stated that the
alleged notice was served upon “D.Dayabhai”, while suppressing
the crucial fact that :
(i) The alleged notice was not served upon the original
owner, namely M/s D.Dayabhai and Co. Pvt. Ltd.;
(ii) The alleged notice was instead addressed to an
incorrect and non-juristic entity, rendering the entire service void ab
initio.
(b) It is further an admitted position by the Petitioner
that the said notice was received on 4th September 1975, by D
Dahyabhai and Co., and after the repeal of the relevant Act.
(c) Once the statute itself stood repealed, no
proceedings, rights, obligations or consequences could survive,
much less be resurrected on the basis of an invalid and belated
notice.
[B]. Illegal Reliance on Inadmissible Evidence :
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(a) The Petitioner has heavily relied upon a
xerox/photocopy of a registered post receipt, which is :
(i) Inadmissible in evidence under the Indian Evidence
Act;
(ii) Neither primary evidence nor secondary evidence is
led in accordance with law;
(iii) Rejected during trial itself for want of proof.
(b) It is a settled principle of law that mere photocopies
do not constitute admissible evidence unless foundational
requirements are satisfied. The Petitioner’s reliance on such
inadmissible material vitiates the entire case and exposes the mala
fide attempt to create a false record.
[C]. Testimony of Interested Witness :
(a) The Petitioner has relied upon the statement of Shri
Pakhre, who is :
(i) An employee of the Forest Department;
(ii) An interested and partisan witness;
(iii) The very person whose conduct has created
unnecessary litigation, confusion, and grave hardship to
the Respondent.
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(b) Reliance on such a witness, without independent
corroboration, cannot override statutory lapses, legal repeal, and
absence of lawful service.
[D]. Clear Case of Suppression of Material Facts :
(a) The Petitioner has deliberately suppressed the
following material facts :
(i) That the alleged notice was served on the wrong
person;
(ii) That the alleged service is sought to be proved only
by a xerox copy;
(iii) That the notice was admittedly received after
repeal of the Act;
(iv) That there is no legally valid service upon the
lawful owner.
(v) That the Petitioner does not have any proof about
actual dispatch of notice prior to the appointed day.
(b) Such suppression strikes at the very root of the
Petitioner’s case and disentitles the Petitioner from any equitable or
discretionary relief.
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[E]. MRTP Act – Lapse of Reservation and Collusive Conduct :
(a) Respondent No.1’s land in question falls under the
development plan passed and published vide notification dated 1986
approved by the State of Maharashtra in the year 1991 for City of
Thane after considering all objections and suggestions as per the
statutory provisions of MRTP ACT 1966. This unequivocally
establishes that the reference land is situated outside the notified
boundary of Sanjay Gandhi National Park (SGNP), and that the
Thane Municipal Corporation is the competent planning and
implementation authority for the said land.
(b) In view of the Development Plan reservation
designating the land as a park, the Respondent has at all times
refrained from carrying out any non-forest activities and, for the
overall welfare and betterment of Thane City, has remained
committed to preserving and maintaining its status as a park.
(c) A valid notice under Section 127(2) of the MRTP
Act was served; the copy of the said notice is enclosed for ready
reference.
(d) The Planning Authority failed to take steps within
the statutory period.
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(e) The Respondent respectfully submits that,
acknowledging the Petitioner’s contention that a park is an essential
amenity for the citizens of Thane and respecting public sentiment
and necessity, even though a notice under Section 127(2) of the
MRTP Act was served and the reservation had lapsed due to
inaction, the Respondent nonetheless accepted Transferable
Development Rights (TDR) in lieu of monetary compensation for
the development of the park. Accordingly, with the intention of
enabling the Thane Municipal Corporation to develop and maintain
the park reservation and preserve its natural character, the
Respondent accepted the TDR for the overall betterment of the
citizens of Thane.
(f) The letter dated 8th January, 2020 (Exh. H, page 120
of Writ Petition No.10024 of 2023) issued by TMC to the forest
department clearly established the fact and willingness to Develop
the park reservation for which last three paragraphs are reproduced
as below:
“वि षयांवि त वि ळ तीबाबत त्या र असलेले पा
आरक्षण हापालिल े ने सदर क्षेत्र संपाविदत े ल्यानंतर त्याचा
नेत्तर ा ा रीता ापर होणार नसुन,वि ास
विनयंत्रणविनय ा लीतील तरतुदीनुसार पा आरक्षणा रीता
अस्ति&तत् ातील विनसर्ग संपत्ती अबाधि)त ठे ऊन ापर होणार
आहे. त्यानुसार भुखंड)ार यांना सदर भुखंडा रील पा
आरक्षणक्र.४ ने बाधि)त क्षेत्र ह&तांतरीत े लेले असल्याने सदरSunny Thote 109 of 373
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ायद्यानेबं)न ार आहे. यदा दाधिचत ठाणे
हानर्गरपालिल े नेभुखंड)ार ास ोबदला न विदल्यास
भुखंड)ार ायदेशीर ाय ाही रण्याची शक्यता आहे .
सबब, उपरोक्त प्र रणी र्ग.नं. ५९अ, विह.नं. १/१ र न ुद
ंजुरवि ास आराखड्यातील पा आरक्षण क्र. ४ चे
अस्ति&तत् ातीलविनसर्ग संपत्ती अबाधि)त ठे ुन नैसर्गिर्ग सौंदयाचे
जतन रुन हापालिल ा सा ाजिज नी रण रणार आहे.
तसेच सदरभुखंड न वि भार्गास आ श्य असल्यास,
ठाणे हानर्गरपालिल ा स स)ारण सभेची ान्यता प्राप्त रुन
नवि भार्गास देता येईल. तरी सदर भुखंडाबर
हापालिल े नेप्र&तावि त े लेल्या बाबीचा वि चार होऊन आपल्या
वि भार्गाचाअभिभप्राय त् रीत वि ळणेस वि नंती आहे.
ा. आयुक्त साो. यांचे ान्यतेने,”
(g) It is further pertinent to note that the Land is
acquired by the TMC, 7/12 extract is mutated in the name of TMC
and pursuant to the order dated 12th July, 2023 passed in Special
Civil Suit No.35 of 2020, measurement was carried physically
whereby the boundaries and lines of the area possessed by D
Dayabhai and Company Pvt. Ltd., is earmarked in blue color dotted
lines. The copy of the said Measurement is enclosed for ready
reference.
(h) Further, there are Minutes of the 112 th meeting of
Regional Empowered Committee (REC) of the Regional Office,
Ministry of Environment, Forest and climate Change, Nagpur, held
on 6th February, 2024 whereby the Agenda of the said Meeting was
to discuss diversion of Forest land in favor of MMRDA Thane for
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construction of Twin Tunnel 2 Lanes, on each side. In the said
proposal the petitioners land was also considered and the Forest
consented MMRDA to construct the said twin tunnels. The above
facts clearly establish that the land is already acquired and possessed
by various state Government Authorities and falls outside the
boundary of SGNP.
[F]. Conclusion :
• The Petitioner's case is built on;
• Suppression of material facts;
• Inadmissible evidence;
• Invalid service of notice;
• Proceedings post repeal of statute;
• Collusive conduct between statutory authorities.
• The Petitioner has, therefore, approbated and
reprobated, abused the process of law, and is not
entitled to any relief whatsoever.
25. COMMENTS OF RESPONDENT NO.1, ON THE
PETITIONER’S REJOINDER
(Summary of the written notes of arguments of Respondent No.1)
(i) The Petitioner is raising a hyper technical issue that
Respondent No.1 has taken this stand for the first time after 50
years. Said contention is not correct. Otherwise also, after the
judgments in the Godrej & Boyce (supra) and Rohan Nahar (supra),
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the law is crystallised by the Supreme Court, that notice issued
under section 35 (3) of IFA, has to be a valid notice and has to be
served on the owner of the land. The burden to prove the validity of
the notice is naturally on the Petitioner because Petitioner claims the
land with the contention that its notice is valid. The Petitioner could
have produced proof of actual issuance and dispatch of the
concerned notice by producing the outward register, copy of postal
receipt showing date of dispatch of notice, etc. Apart from mention
of a number on the notice, there was deliberate failure to produce
the outward register by the Forest Department.
(ii) The reliance placed on the evidence of the
Petitioner’s witness Mr. Pakhare is half hearted. Instead of relying
upon what Pakhare has said, Petitioner could have directly produced
the document of dispatch showing dispatch of notice prior to
appointed day. Non-production of any such document itself
demonstrates that Petitioner, till date, has no documentary proof to
establish the issuance and dispatch of the notice prior to appointed
day.
(iii) Read paragraph 13.3, 13.4 and 13.5 of Rohan
Nahar (supra), Page 59-60 of Citations filed by R1. The Hon’ble
Supreme Court has clearly held that legislation must be construed
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strictly and Article 300A of the Constitution requires that no person
is deprived of the property, save, by authority of law. When the
statute prescribed a manner of doing a thing, it must be done in that
manner or not at all. In paragraph 13.5 it is held that after the
passage of nearly half a century, exercise of inquiry under Section 6
is largely academic and would not cure the absence of mandatory
preconditions of notice served under Section 35 (3) of IFA and
lawful progression towards the notification under Section 35 (1) of
IFA.
(iv) In view of the declaration of law by the Hon’ble
Supreme Court in the above judgment and in the Godrej & Boyce
(supra), it becomes the primary duty of the Petitioner to prove
beyond doubt, the issuance/dispatch of notice prior to the appointed
day regardless whether objection about date of actual issuance is
taken at what stage?
(v) The Forest Department, in a substantial number of
cases, has not taken any action from 1927 till 29 th August, 1975
(Chintamani Velkar and present case). Godrej & Boyce (supra) has
in paragraph 69 specifically observed that directions were issued to
Collector with a draft copy of the MPFA annexed thereto on 27 th
August, 1975 with instructions to take possession. But possession
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could not be taken over by the Petitioner, which fact is proved from
their own letter dated 23rd January, 1986 (Page 448 of additional
affidavit in reply of Respondent No.1).
26. Comments of Respondent No.1 on the submissions of
the Petitioner in paragraphs 2.1 to 2.5 of it’s Rejoinder
(i) It is incorrect to state that, by virtue of pleadings in
Writ Petition No.1026 of 1975, any judicious admissions are given
by Respondent No.1 about receipt of notice by Respondent No.1
itself. Refer order dated 27th December, 2004 of the Deputy
Collector passed after remand (Page Nos.73-86 of WP). Page
Nos.75-76 of the said order clearly demonstrate that it has been the
consistent stand of Respondent No.1 that notice was addressed to a
wrong person, viz., D. Dahyabhai & Co. and not to Respondent
No.1, which is private limited company who is the actual owner of
subject land. One Chimanlal Shah was examined in that regard, who
stated that he is accountant of D. Dahyabhai & Co. which is a
different entity. Even the Deputy Collector has accepted this fact,
but discarded it by ranking it as a clerical error.
(ii) MRT has accepted the fact that notice was
addressed to and received by D. Dahyabhai & Co. (Chimanlal Shah,
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an employee) which is an entirely different entity and held that this
shows that the company who was the real owner of the land
(Respondent No.1), was never served with the notice under Section
35 (3) of IFA. MRT further held that the Deputy Collector was
wrong in branding a fact to be a clerical error, and held that the
notice was not served upon the land owner (Respondent No.1) as
contemplated by Hon’ble Supreme Court in Godrej & Boyce (supra)
judgment.
(iii) In spite of the above stated specific conclusion by
MRT, the Petitioner in the present WP has not demonstrated through
any document that the notice was served on the actual owner, i.e.,
Respondent No.1.
(iv) Respondent No.1 has filed Writ Petition No.1026
of 1975 because it came to know from Chimanlal Shah the
Accountant of the said separate entity, viz., D Dahaybhai & Co. that
it had received a notice in respect of Respondent No.1’s land and
Respondent No.1 was the affected party.
(v) Godrej & Boyce (supra) and Rohan Nahar (supra)
mandate issuance of a valid notice to the real land owner and in the
manner prescribed under CPC, so also its publication.
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(vi) The Petitioner, neither in the Writ Petition nor in
the rejoinder, has demonstrated compliance of these preconditions
of valid notice.
27. Comments of Respondent No.1 on the submissions of
the Petitioner in paragraphs 3, 4 , 5, 6 and 7 of the Rejoinder :
(i) The submissions made in the said paragraph 3.1 and
the reliance placed upon the judgment of Supreme Court in Peacock
Plywood Case or upon Philson (supra) on evidence, is wholly
irrelevant and misleading. In the Peacock case, the Insurance
Company was not allowed to resile from the representation made by
it on account of waiver of privilege and in order to advance a
beneficial legislation in favour of the beneficiary. In Rohan Nahar’s
case (supra), the Hon’ble Supreme Court has held that MPFA is an
ex-proprietary legislation so Peacock case is not applicable to the
present case.
(ii) Admittedly said letters dated 5th July, 1979 and 28th
August, 1979 and also the application dated 19th January, 1980
(Page No.63 of Respondent No.1 compilation), were issued without
prejudice to the pending Writ. By filing an appeal against Deputy
Collector’s acceptance order dated 3rd June, 1980 before MRT by
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without prejudice. This fact is evident from the whole reading of the
MRT order dated 15th October, 1982 (Page 48-56 of Writ Petition).
(iii) From the remand order dated 15th December, 1982
particularly paragraphs 8, 13, 15, 16, 17 and 22 as well as the
operative part, it is evident that the matter was remanded for fresh
inquiry in respect of entire land admeasuring 204 acres.
Accordingly, the Deputy Collector framed issues (Page No.75 of the
Writ Petition). It is only in the Appeal No.165 of 2005 before the
MRT, that the Petitioner has taken a stand that the inquiry was
restricted to 24 acres and that Respondent No.1 has concealed that
168 acres is forest.
(iv) Paragraph 11 of the MRT order demonstrates that a
negative finding was given on issue no.1 and accordingly the entire
land was held as non-forest. Affirmative finding was given on issue
no.2 by holding that proceeding conducted by Deputy Collector
stands vitiated because of non-service of notice under Section 35 (3)
of IFA upon the real land owner (Respondent No.1).
(v) The Petitioner, neither in the WP nor in the
rejoinder, has demonstrated that there was valid service upon the
true owner and/or the subject land comes within the definition of
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private forest. The Petitioner has not even filed on record the alleged
notice dated 29th August, 1975 (we find the photostat copy at page
277). Without showing a single document from the record and
without satisfying the Court about actual issuance and service upon
real land owner, i.e., Respondent No.1, an attempt has been made by
the Petitioner to create confusion by way of misleading this Court
by misinterpreting the binding ratio of Godrej & Boyce (supra) and
Rohan Nahar (supra) judgments.
(vi) It is incorrect to state that in Writ Petition No.1026
of 1975, Respondent No.1 has admitted on oath that the land was
put to non-forest use only to a limited extent. It is not Respondent
No.1 who has to prove that the subject land is not forest, but it is for
the Petitioner to prove that the subject land comes within the
definition of forest. In fact, since 1975 it had been consistent stand
of Respondent No.1 that the subject land does not come within the
definition of forest. The remand order dated 15 th October, 1982 was
to make inquiry in that regard. An inquiry panchnama was carried
out by the Petitioner’s own officers in which it is recorded that more
than 107 acres of land was under non agricultural user (read page
nos.65-67 of compilation of Respondent No.1).
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(vii) The Petitioner has attempted to misinterpret
paragraph 72 of Godrej & Boyce (supra) judgment by contending
that the Hon’ble Supreme Court has not used the word served in
close proximity and, therefore, for any notice to become a pipeline
notice, the requirement is that the issuance should be in close
proximity and not service before appointed day. Said interpretation
is incorrect because in the earlier paragraphs of the Godrej & Boyce
(supra) judgment, the word issued used in Section 2 (f) (iii) of
MPFA is interpreted as issued and served and it is specifically held
that service is inherent in the word ‘issued’. The Hon’ble Supreme
Court, therefore, never intended in paragraph 72 to exclude service.
As per Godrej & Boyce (supra) judgment, pipeline notice means
issued in close proximity before appointed day and served. Godrej
& Boyce (supra) judgment, therefore, overrules its previous
judgment in Chintamani Velkar (supra) to that extent, because in
that matter also service was after appointed day.
(viii) Petitioner in the rejoinder and/or in the rejoinder
argument unnecessarily attempted to point out certain orders passed
in PIL No.305 of 1995. On the basis of said orders, Petitioner tried
to urge that even the subject land of the present petition being
included in SGNP Division, becomes forest land and vest with the
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State Government. Said argument is misleading. It is respectfully
submitted that orders passed in said PIL are passed in different
context and not related to the subject land. In any case, subject land,
i.e., Survey No.59/1 was not the subject matter of said PIL.
Admittedly, Respondent No.1 who is the owner of Survey No.59/1
was not party to the said PIL. In fact, present Petition is a dispute
between private land owner and forest department and this dispute
has nothing to do with the said PIL or orders passed therein or in
any other matter.
(ix) The issue involved in the present petition is that
whether by merely saying that forest has issued notice dated 29 th
August, 1975 under Section 35 (3) of IFA (to the wrong addressee
and not to Respondent No.1) whether land of Respondent No.1,
which it has purchased from High Court Receiver in 1960, would
vest with the State under Section 3 of MPFA and that too without
complying with other statutory pre-requisites such as issuance of
notification under Section 35 (1) of IFA, giving opportunity of
hearing to the owners, etc. For the facts involved in the present
matter, relevant judgments are those delivered by the Supreme Court
in Godrej & Boyce (supra) case and Rohan Nahar (supra) case.
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(x) On this backdrop, stating that Government has
included the land bearing Survey No.59/1 in SGNP forest division,
is a malafide contention and such inclusion, without giving
opportunity of hearing to the land owner, viz., Respondent No.1
would be otherwise be violative of fundamental rights of
Respondent No.1 under Article 14 of the Constitution. In any case,
such alleged inclusion in SGNP division does not amount to
automatic vesting of the subject land under Section 3 of MPFA, as
well as, such inclusion in SGNP division is violative of Article 300A
of the Constitution.
(xi) It is otherwise clear from notification dated 16 th
January, 1996 (Page Nos.445-447, i.e., Exh.A of Additional
Affidavit of Respondent No.1) that Survey No.59/1 is not within the
notified area of SGNP. The Petitioner’s own letter dated 23/01/1986
(Page 448 i.e. Exh.D of Additional Affidavit of R1) clearly shows
that possession of Survey No.59/1 could not be taken over by Forest
Department. There are no document such as Panchnama, Possession
receipt, etc. filed on record to demonstrate that Petitioner ever took
legal and physical possession of subject land from Respondent
No.1.
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(xii) Admittedly, from 2019, about 104 acres of land
out of subject land is in possession of TMC. About 18 acres of land
is under cultivation of Respondent No.2. Upon 17 acres 19 gunthas
of land, a village settlement by name Kokanipada, came up. Rest of
the land is under cultivation of Respondent No.1 and/or under N A
user, quarrying operations, horticulture, construction of godown,
roads, etc. In the circumstances, it is fanciful to state that subject
land admeasuring 193 acres 7 gunthas and 4 annas is within SGNP
forest division. The TILR report recently carried out also
demonstrate that subject land is not in possession of SGNP or within
SGNP forest division.
(xiii) The Petitioner’s reliance on Section 144 of CPC
whereby principle of restitution is stipulated, is improper, irrelevant
and not applicable to the facts involved in the present matter. It is
evident that subject land never vested in Forest Department under
Section 3 of MPFA because for such vesting all statutory pre
conditions mentioned in Section 35 (1), 34 (A), and 38 of IFA have
not been complied with. Unless there is a vesting, there is no
question of restitution.
(xiv) The entire rejoinder including submissions made
in paragraphs 4, 5, 6 & 7 of the rejoinder are misleading and a
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definite attempt to wrongly distinguish binding effect of judicial
precedent of Godrej & Boyce (supra) case and Rohan Nahar
(supra)cCase on the basis of immaterial facts.
(xiii) It will be appropriate to point out paragraph 14.5
and 14.6 of Rohan Nahar (supra) judgment, which are reproduced
hereunder :
14.5. When a judgment minimises a binding ratio,
ignores missing statutory steps, and seeks to
distinguish on immaterial facts, it creates an
appearance of a reluctance to accept precedent.
Such an approach conveys a major of pettiness
that is inconsistent with the detachment that
judicial reasoning demands. In our view this is an
unfortunate departure from the discipline of stare
decisis.
14.6. We accordingly hold that the present appeals
are indistinguishable in principle from Godrej and
Boyce (Supra). The record discloses the same
jurisdictional defects of non-service of a notice
under section 35 (3) of IFA, the same absence of a
final notification under Section 35 (1) of IFA, and
the same want of contemporaneous steps under
Section 4,5,6 and 7 of the MPFA Act. In such
circumstances the High Court could not
consistently with Article 141 of the Constitution
avoid the binding ratio by treating immaterial
differences as determinative. In our opinion
fidelity to binding precedent and to the statutory
scheme admits of no other conclusion than that
the impugned order must be set aside.
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28. Case law relief upon by Respondent No.1, particularly
regarding effect of repeal, saving clause, retrospective application of
Judgment of Supreme Court.
(Summary from the written notes of arguments of Respondent No. 1)
(i) C Golakhnath and Others v/s. State of Punjab 1967
SCC (Online) SC 14 (Paragraphs 45, 50, 51, 52) and C.B. Gautam
v/s. Union of India 1993 (1) Supreme Court Cases 78 (Paragraphs
43 and 46). These two judgments were cited to demonstrate that
judgment interpreting the legal principles or provisions have
retrospective effect. Whenever Supreme Court intends to give
prospective effect then it is specifically stated so in the concerned
judgment.
(ii) Godrej & Boyce (supra) and Rohan Nahar (supra),
judgments are retrospective in nature. Interpretation of provisions of
MPFA, IFA, etc. made therein, has retrospective effect and hence
those two judgments are applicable to the facts involved in the
present case.
(iii) In fact, even the Petitioner in their note have
admitted that Godrej & Boyce (supra) and Rohan Nahar (supra)
judgments are relevant for the present matter, but Petitioner made
incorrect attempt to distinguish them with the present facts.
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(iv) Judgment of the Supreme Court in the case of
Chintamani Velkar (supra), has also been referred to demonstrate
that even in that case, S. 35 (3) notice was dated 29 th August, 1975
but served on 12th September, 1975, i.e., after repeal of Section 35 of
IFA. Thus, said notice was also issued in closed proximity but not
served before appointed day. However, the Hon’ble Supreme Court
in the said case of Chintamani Velkar (supra), held that notice issued
under Section 35 (3) would in itself be sufficient if such notice is
issued before the appointed day and there is no need for any service
of such notice before 30th August, 1975. Said view of the Hon’ble
Supreme Court in Chintamani Velkar (supra) is overruled in Godrej
& Boyce (supra) (Para 62) by holding that mere issuance of notice is
not sufficient, but issuance includes service as well as mandatory
compliance of all preconditions of served notice under Section 35
(5) of IFA. Thus, the view taken by Deputy Collector in Chintamani
Velkar (supra) case in a sense is upheld and confirmed in Godrej &
Boyce (supra) case by the Hon’ble Supreme Court. Even in the
present matter notice is dated 29th August, 1975 and served on 4th
September, 1975 (that too on wrong addressee), i.e., after appointed
day, viz., 30th August, 1975. Thus, the judgment of Godrej & Boyce
(supra) has to be made applicable to the present facts by holding that
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notice was served on 4th September, 1975, i.e., after appointed day
and that too on the wrong addressee and hence, is void and not
enforceable at law.
(v) In the case of Pernod Richord India Pvt. Ltd. v/s.
State of Madhya Pradesh & Anr. 2024 (8) SCC 742 , paragraph 13
states that repealed provision will cease to operate from the date of
repeal and the substituted provision will commence to operate from
the date of its substitution).
(vi) In the case of Hikal Ltd. v/s. Union of India 2025
DGLS (Bom) 2724, the aspect of repeal of enactment and its
enforceability after repeal, is discussed at length by referring to the
Constitution Bench. Kindly read paragraph 78 of said judgment in
which paragraphs 36 to 40 of Constitution Bench judgments are
reproduced.
(vii) In the case of Kolhapur Cane Sugar Works Ltd.
v/s. Union of India (2000) 2 Supreme Court Cases 536 , in
paragraph 37 it is held that “The position is well known that at
common law, the normal effect of repealing a statute or deleting a
provision is to obliterate it from the statute-book as completely as if
it had never been passed, and the statute must be considered as a law
that never existed. To this rule, an exception is engrafted by the
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provisions of Section 6 (1). If a provision of a statute is
unconditionally omitted without a saving clause in favour of
pending proceedings, all actions must stop where the omission finds
them, and if final relief has not been granted before the omission
goes into effect, it cannot be granted afterwards.” In the case of
MPFA, Section 24 (2) is a limited saving clause applicable only in
respect of land restored under Section 22 (A) of MPFA. Said saving
clause is not applicable in respect of Section 2 (f) (iii) where
issuance of notice under Section 35 (3) is stipulated. No doubt
Godrej Case states that Section 2 (f) (iii) itself in a sense is a saving
clause, but same can be made applicable only to those notices issued
and served before appointed day).
29. SUBMISSIONS BY ADV. KARL TAMBOLY ON
BEHALF OF RESPONDENT NO. 2.1, and 2.3 to 2.12.
(Summary from the written notes of submissions)
(1) Declaration of Respondent No. 2’s tenancy under
section 70(b) of the Bombay Tenancy Agricultural Lands Act, 1948
has attained finality.
(a) Since the year 1960, Respondent No. 2 has been
a tenant of Respondent No. 1 and in actual occupation, possession
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and cultivation of the land admeasuring 18 acres 18 gunthas bearing
Gat No. 59/1 at Manpada village, Thane (“Smaller Land”).
[Respondent No.2’s LRs Affidavit in Reply dated 11th December
2019, pg. 155, paras 3 and 4]
(b) On 29th August 1975, alleged Notice claimed to
be issued by the Deputy Conservator of Forests under section 35(3)
of the Indian Forest Act, 1927 (“Forest Act“) in respect of the land
admeasuring 204 acres, 8 gunthas and 8 annas and bearing Gat No.
59/1 at Manpada village, Thane (“Larger Land”). The Smaller
Land forms a part of the Larger Land. Respondent No. 1 has failed
to produce any proof of issuance of the alleged notice on 29th
August 1975.
(c) Criminal Case No.5227 of 1982 was filed by the
Maharashtra Forest Department against Respondent No. 2 under
section 26 of the Forest Act for the offence of trespassing on forest
land, which was dismissed by the Hon’ble Judicial Magistrate Fist
Class Thane vide Order dated 30th September 1992. [Exhibit A to
Respondent No.2’s LRs Affidavit in Reply dated 11th December
2019, pg. 160 at pg. 168]
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(d) The said Order records the following admissions
made by the Maharashtra Forest Department personnel (viz. PW-1
and PW-4) during their cross-examination as witnesses in the
criminal proceedings filed against Respondent No. 2:
(e) The Smaller Land was private land of
Respondent No. 2 prior to it being declared as a forest in the year
1975. [para 10 at Pg 164].
(f) Respondent No. 2 was in possession of the
Smaller Land prior to the year 1975. [para 10 at Pg 165]
(g) Smaller Land originally belonged to Respondent
No. 1 and Respondent No. 2 has been cultivating the said land as a
tenant. [para 10 at Pg 163]
(h) Nothing has come on record to show that the
Forest Department has taken possession of the Smaller Land. [para
10 at Pg 165].
[Exhibit A to Respondent No.2’s LRs Affidavit in Reply dated 11th
December 2019, para 10 at pgs. 164 and 165 and para 13 at pg.166]
(i) An admission made by a party in a previous
criminal proceeding, is admissible in subsequent civil proceedings.
[Seth Ramdayal Jat vs. Laxmi Prasad, (2009) 11 SCC 545, at paras
20 and 21].
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(j) The Petitioner’s Criminal Appeal No. 172 of 1993
against the Hon’ble Judicial Magistrate First Class Thane’s Order
was dismissed by Judgment dated 14th June 1993 of this Hon’ble
Court, which held:
1. Respondent No. 2 is in possession as a
tenant of Respondent No.1 prior to the land being
declared as forest land. [Pg. No.171].
2. The construction found on the land is 9
years old and hence no fresh construction or clearing
of forest is proved against Respondent No. 2. [Pg
No.171] .
3. No appeal was filed by the Petitioner
against the Hon’ble High Court’s judgment, and
therefore the findings of the Hon’ble High Court in
the said judgment have attained finality.
[Exhibit B to Respondent No.2’s LRs Affidavit in Reply dated 11th
December 2019, pg. 169 at pg. 170]
(k) In March 1991, Respondent No.1 attempted to
interfere with Respondent No.2’s possession of the Smaller Land,
which led Respondent No. 2 to file Application No.16 of 1991
before the Tahsildar ALT Thane under section 70(b) of the Bombay
Tenancy and Agricultural Lands Act, 1948 (“BTAL Act“) for
declaration of his tenancy in respect of the Smaller Land.
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[Respondent No.2’s LRs Affidavit in Reply dated 11th December
2019, pg. 155, para 6 and Exhibit C, at pg. 171]
(l) By the Tahsildar’s Order dated 23rd February
2004, Respondent No. 2 has been declared as a tenant of the Smaller
Land since the year 1960. [Exhibit D to Respondent No.2’s LRs
Affidavit in Reply dated 11th December 2019, pg. 174 at pg. 179
(English translation at pg.186)]
(m) An Order passed under section 70(b) is
appealable under section 74(1)(a) of the BTAL Act and the
Petitioner could have challenged the Tahsildar’s Order even though
the Petitioner was not a party to those proceedings; yet no appeal
was filed by the Petitioner. [ Ebrahim Yusuf Lambe vs. Abdul Razak
Abdul Rahiman Mulla, AIR 1977 Bom 22, at para 9; Nookala
Setharamaiah vs. Kotaiah Naidum, (1970) 2 SCC 13, at para 24 and
State of Kerala vs. Mohammed Basheer, (2019) 4 SCC 260 , at paras
19 to 20]
(n) Respondent No. 1 filed Tenancy Appeal No. 109
of 2015 before the Sub-Divisional Officer challenging the
Tahsildar’s Order, and the delay of 11 years in filing the said appeal
was condoned by the Sub-Divisional Officer’s Order dated 23rd
February 2017. [Exhibit E to Affidavit in Reply dated 11th
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December 2019 of Respondent No. 2’s LRs, pg. 187 at pg. 195.]
(o) By Order dated 4th May 2017, the Maharashtra
Revenue Tribunal allowed Respondent No. 2’s Revision Application
No. 150 of 2017 against the Sub-Divisional Officer’s Order and
dismissed Respondent No. 1’s Tenancy Appeal. [Exhibit F to
Affidavit in Reply dated 11th December 2019 of Respondent No.
2’s LRs, pg. 197 at pg. 207]
(p) Respondent No. 1’s Civil Writ Petition No. 6351
of 2017 filed to challenge the Maharashtra Revenue Tribunal’s
Order, was dismissed by this Hon’ble Court’s Judgment dated 23 rd
January 2019. [Exhibit G to Affidavit in Reply dated 11 th December
2019 of Respondent No. 2’s LRs, pg. 208 at pg. 225, para 25]
(q) Respondent No. 1’s Special Leave Petition (C)
No. 9998 of 2017 filed to challenge this Hon’ble High Court’
Judgment, was dismissed by the Hon’ble Supreme Court’s Order
dated 29th April 2019. [Exhibit H to Affidavit in Reply dated 11th
December 2019 of Respondent No. 2’s LRs, pg. 226]
(r) Respondent No.1’s Review Petition No. 366 of
2020 filed against the dismissal of its Special Leave Petition, was
dismissed by the Hon’ble Supreme Court’s Order dated 6th
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February 2020. [Page 7 & 8 of List of dates Tendered in Court]
(s) The Tahasildar’s Order declaring Respondent No.
2 as a tenant of the Smaller Land has therefore attained finality. It
therefore stands established that the Respondent No.2 was the tenant
in respect of the smaller land, at least since the year 1960. [Ashalata
Anand Dabholkar vs. Vrindevati Tukaram Bhaire, (2005) 1 Mah LJ
418, at para 9 and Gulabrao Laxman Kolhe vs. Tahsildar, Writ
Petition No.2759 of 2018 dated 24th July, 2025, at para 8]
(t) The Tahsildar’s Order cannot be reopened in
collateral proceedings. [Union of India vs. S.P. Sharma, (2014) 6
SCC 351, at para 76 and Pankaj Bhargava vs. Mohinder Nath,
(1991) 1 SCC 556, at para 20]. Therefore, it is clear that the attempt
on the part of the Petitioner to raise factual controversies with
respect to the tenancy and possession of Respondent No.2 in respect
of the smaller land is in inapposite and impermissible without
prejudice to the same, it is submitted that this Hon’ble Court ought
not to enter into factual controversies/ disputed questions of facts in
exercise of its writ jurisdiction [Gunwant Kaur vs Municipal
Committee (1969) 3 SCC 769]
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(u) The smaller land thus being held by Respondent
No.2 as a tenant and lawfully being under his cultivation on 30th
August 1975 (the appointed day on which the Private Forest came
into force), the same is exempted from being declared as private
forest under section 3 (2) of the Private Forest Act, 1975 [ State of
Kerala vs. Mohammed Basheer, (2019) 4 SCC 260, para 17 to 21]
(v) Deputy Collector (Private Forests) passed an
Order dated 3rd June, 1980 under Section 6 of the MPFA Act,
directing that out of the land bearing Gat No. 59/1 at Manpada:
(w) The definition of the term ‘private forest’ under
section 2(f)(iii) of the MPFA Act must be strictly construed. [ Godrej
& Boyce Manufacturing Co. Ltd. vs. State of Maharashtra, (2014) 3
SCC 430, at para 73] [HPC vs Darius Shapur Chenai 2005 (7) SCC
627, para 29]
(x) The Revenue Department mutated Respondent
No. 1’s name in respect of the Larger Land in the revenue records
under Mutation Entry No. 1056, which was subsequently confirmed
by the Sub-Divisional Officer’s Order dated 31st January, 2019 in
the Petitioner’ Revision Application No. 182/2018 which was filed
to challenge the said Mutation Entry. [Respondent No. 1’s
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Exhibit E, pg. 492 at pg. 499]
(y) The Sub-Divisional Officer’s said Order dated
31st January 2019 has not been challenged by the Petitioner and has,
therefore, attained finality. [Respondent No. 1’s Additional Affidavit
dated 9th April 2021, at pg. 438, para 8]
(z) Manpada Village does not fall within boundaries
of Sanjay Gandhi National Park:
(aa) The Maharashtra Forest Department’s
Notification dated 16th January, 1996 under section 35(4) of the
Wildlife (Protection) Act, 1972 specifying the boundaries of the
Sanjay Gandhi National Park, does not include the Larger Land
(which includes the Smaller Land) within the said boundaries.
[Exhibit N to Respondent No.1 Affidavit in Reply dated 25 th
November 2019, pg. 427. Having not included the Larger land in
the aforesaid notification, it is now not open for the Petitioner to
contend that the same is a part of SNGP. It is well settled that a party
cannot be permitted appropriate and reprobate [ Rajasthan State
Industrial Development and Investment Corporation. vs. Diamond
& Gem Development Corporation Ltd.,(2013) 5 SCC 470 para 15
& 16]
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(bb) Respondent No. 1 has also admitted that the
Larger Land (which includes the Smaller Land) does not form part
of the Sanjay Gandhi National Park. [Respondent No.1 Affidavit in
Reply dated 25th November, 2019, para 24 at pg. 275]
(cc) Respondent No. 2’s name has been mutated in
respect of the Smaller Land in the revenue records.
(dd) By a common Judgment and Order dated 24th
March, 2008, the Hon’ble Bombay High Court dismissed the Writ
Petitions filed by Godrej & Boyce Manufacturing Co. Ltd.
(“Godrej”) and others challenging the notices issued by the Forest
Department under section 35(3) of the Forest Act.
(ee) In Special Leave Petition (C) No. 11509 of 2008
filed against the Hon’ble High Court’s said Judgment, Respondent
No. 2 filed Interim Application No. 18 of 2010 for impleadment
therein and Interim Application No. 19 of 2010 praying for a
direction that Respondent No. 2’s Smaller Land is non-forest land
and should be free to be developed under Development Control
Regulations and municipal bye laws. [Exhibit D to Additional
Affidavit dated 21st September 2023 of Respondent No. 2’s LRs,
pg. 512 at pg. 524.]
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(ff) By Judgment dated 30th January 2014, the
Hon’ble Supreme Court allowed the appeals filed by Godrej and
others against the Hon’ble High Court’s said Judgment and quashed
and set aside the impugned notices issued under section 35(3) of the
Forest Act. [Exhibit C to Respondent No. 1’s Additional Affidavit
dated 9th April 2021, pg. 450 at pgs. 488 and 489, paras 87 to 91]
(gg) The Hon’ble Supreme Court’s Order also
allowed Respondent No. 2’s impleadment application and
consequently the Smaller Land was exempted from being declared
as forest land. [Exhibit C to Respondent No. 1’s Additional Affidavit
dated 9th April 2021, pg. 450 at pg. 488, para 90]
(hh) By Order dated 16th March 2015, the Sub-
Divisional Officer Thane exempted the Smaller Land from
reservation as a ‘private forest’ under section 3(2) of the MPFA Act
and directed mutation of Respondent No. 2’s name in respect of the
Smaller Land in the revenue records. [Exhibit H to Additional
Affidavit dated 21st September 2023 of Respondent No. 2’s LRs,
pg. 565 at pg. 567]
(ii) By Order dated 27th March, 2015, the District
Collector, Thane stayed the said Order of the Thane Sub-Divisional
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Officer. [Exhibit I to Additional Affidavit of Respondent No.2 LR’s
dated 21st September 2023, pg. 568 at pg. 571]
(jj) By letter dated 9th July, 2015, the Divisional
Commissioner (Konkan Division) directed the District Collector to
vacate the stay on the said Order of the Sub-Divisional Officer.
[Exhibit J to Additional Affidavit of Respondent No.2 LR’s dated
21st September 2023, pg. 572]
30. COMPILATION OF JUDGMENTS RELIED UPON
BY RESPONDENT NOS.2.1, 2.3 TO 2.12.
(Summarised from the written notes of submissions)
Sr. Particulars
Nos
1. Issue of tenancy having attained finality, cannot be
reopened
A. Ashalata Anand Dabholkar vs. Para.6
Vrindevati Tukaram Bhaire, (2005) 1
Mah LJ 418
“…The earlier decision would not
only bind the parties themselves, but
also the tenancy authority …with the
conclusion of proceedings before the
Mamlatdar and the Civil Court
between the original landlord and the
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tenant, the issue of defendants being
tenants in respect of the suit land on
the tillers’ day has been finally
answered and that issue cannot be
reopened…”
B. Gulabrao Laxman Kolhe vs. Para.8
Tahsildar, W.P. No. 2759/2018 dated
24.07.2025
“the issue of tenancy has attained
finality and same cannot be permitted
to be reopened.”
2. Decision by a competent court cannot be challenged
in collateral proceedings
A. Union of India vs. S.P. Sharma Para.
(2014) 6 SCC 351 76
“A decision rendered by a competent
court cannot be challenged in
collateral proceedings for the reason
that if it is permitted to do so there
would be “confusion and chaos and
the finality of proceedings would
cease to have any meaning.”
B. Pankaj Bhargava vs. Mohinder Nath, Para.
(1991) 1 SCC 556 20
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aside. Doctrine of collateral challenge
will not apply to a decision which is
valid ex-hypothesi and which has
some presumptive existence, validity
and effect in law. Such a decision can
be invalidated by the right person in
right proceedings brought at the right
time.”
3. Admission by a party in a previous criminal
proceeding is admissible in a subsequent civil
proceeding
A. Seth Ramdayal Jat vs. Laxmi Prasad, Para.
(2009) 11 SCC 545 20
“… judgment of a criminal court shall
not be admissible in a civil suit. What,
however, would be admissible is the
admission made by a party in a
previous proceeding.”
4. Definition of “private forest” u/s 2(f)(iii) of Private
Forests Act 1975 must be strictly construed
A. Hindustan Petroleum Corpn. Para
Ltd. v. Darius Shapur Chenai [(2005) 29
7 SCC 627]
“…the legislation being an
expropriatory legislation, it ought to
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be strictly construed since it deprives
a person of his/her land.”
B. Godrej & Boyce Mfg. Co. Ltd. vs. Para.
State of Maharashtra, (2014) 3 SCC 73
430
“Section 2(f)(iii) of the Private
Forests Act since it seeks to take
away, after a few decades, private
land on the ostensible ground that it is
a private forest. Section 2(f)(iii) of the
Private Forests Act must not only be
reasonably construed but also strictly
so as not to discomfit a citizen and
expropriate his/her property.”
C. D.B. Basnett v. LAO, (2020) 4 SCC Para
572 15
"...unless, the notice is given in
accordance with the provisions
contained therein, the entire
acquisition proceedings would be
vitiated"
5. Order u/s 70(b) is appealable u/s 74(1)(a) of the
BTAL Act 1948
A. Ebrahim Yusuf Lambe vs. Abdul Para.9
Razak Abdul Rahiman Mulla, AIR
1977 Bom 22
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“We are thus of the opinion that s. 4 in
the context of s. 74(1)(a) is wide
enough to cover every order in regard
to claim to tenancy passed under s.
70(b) of the Act and the order under
consideration of the Awal Karkun,
was appealable to the Collector under
s. 74(1)(a) of the Act.”
B. Shyamrao Aswale vs. Atmaram Para.7
Aswale, 1976 SCC Online Bom 146
Note : Ebrahim Yusuf Lambe vs.
Abdul Razak Abdul Rahiman Mulla,
AIR 1977 Bom 22 followed
6. State, despite not being a party to the S.70(b)
proceedings could have appealed against the Order
under S.74 of the BTAL Act
A. Nookala Setharamaiah vs. Kotaiah Para.
Naidum, (1970) 2 SCC 13 24
“..it is settled by a long course of
authorities that a person who has not
been made a party to a proceeding
may still appeal”
B. State of Kerala vs. Mohammed Para.
Basheer, (2019) 4 SCC 260
19 &
20
"...The Certificate issued by
Competent Land Tribunal after
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finding that the tenant was in
possession of the property as
cultivating tenant is a conclusive
proof of possession as well"
"Though the State Government is not
a party to this order, there was no bar
for it to challenge this order under
Section 102 of the Land Reforms Act.
No appeal has been filed challenging
the certificate of purchase either by
the Government or by any other
person. Thus, the certificate of
purchase has become final.”
7. Approbate and reprobate
A. Rajasthan State Industrial Para.
Development and Investment 15 &
Corporation. vs. Diamond & Gem 16
Development Corporation Ltd.,
(2013) 5 SCC 470
“A party cannot be permitted to blow
hot-blow cold, fast and loose or
approbate and reprobate”
8. Disputed questions of fact cannot be determined in
writ proceedings
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A. Gunwant Kaur vs. Municipal Para
Committee, (1969) 3 SCC 769 14
“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. When the petition raises
questions of fact of a complex nature,
which may for their determination
require oral evidence to be taken, and
on that account the High Court is of
the view that the dispute may not
appropriately be tried in a writ
petition, the High Court may decline
to try a petition ”
31. SUMMARY OF THE WRITTEN NOTES OF
SUBMISSIONS TENDERED BY SENIOR ADVOCATE, MR. R S
APTE, FOR THE THANE MUNICIPAL CORPORATION
[The written submissions on behalf of the Thane Municipal
Corporation are in support of it’s common stand in both the
Petitions, considering that TMC has acquired 104 acres of land of
the Company and has taken possession of the same].
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31.1. The Petitioner submitted the proposal dated 3.07.2018,
through its architect for grant of DRC in lieu of the above-
mentioned land, as per the provisions under Regulation No.
Appendix N.N.1.5 (a) read with Appendix W of the Development
Control Regulations, 1994, for grant of T.D.R. to the Thane
Municipal Corporation (page No. 90 of the Petition).
31.2. Pursuant to the said proposal Transfer Deed dated 24th
May, 2019 was executed between the Petitioner and the
Corporation. Recitals therein clearly indicate that the Petitioner shall
be entitled to be awarded Development Rights and/or TDR in
accordance with the provisions of the said Development Control
Regulations, 1994, and also as per Government Notification dated
29.01.2016 and the amended order dated 02.05.2016 for surrender
of the said reserved land (page 99 of the Petition).
31.3. Regulation 4.1.2 of the Notification dated 29th January,
2016 reads as under:
“4.1.2 – DRC shall be issued only after the land
is surrendered to the Municipal Corporation free
of cost and free from encumbrances, and after
levelling the land to the surrounding ground level,
and after constructing/erecting a 1.5 m high
compound wall/fencing, i.e. brick/stone wall up to
0.60 m above ground level and fencing above that
up to the remaining height with a gate, at the cost
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certain lands such construction/erection of
compound wall/fencing is prohibited or restricted
by any regulation, then the quantum of
Transferable Development Rights (TDR) shall be
reduced as prescribed in the proviso to Clause
4.1.1.”
It is mandatory for the Petitioner to comply with the
above regulation before issuance/ grant of TDR/DRC.
31.4. Regulation 7.1 of the Notification dated 29th January,
2016 reads as under:
“7.1 – The Commissioner, before issuing DRC,
shall verify and satisfy himself that the ownership
and title of the land proposed for surrender is with
the applicant, and get the Record of Rights
corrected in the name of the Planning Authority.”
It is incumbent upon the Petitioner to get the Record of
Rights mutated in the name of the Planning Authority.
31.5. The recitals in the Transfer Deed dated 24th May, 2019
also indicate that the Petitioner had all along represented that they
have clear and marketable title, free from all encumbrances.
31.6. It is to be noted that the Petitioner was aware of the
filing of Writ Petition No. 3205 of 2018 by the Forest Department
of State of Maharashtra, impugning the order dated 30th June, 2017
passed by the MRT, Mumbai. This fact can be ascertained from
Paragraph No.17 of the present Petition. In view of pendency of the
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petition NOC of the forest was required form the petitioner.
31.7. By order dated 25th November, 2022 passed in Appeal
from Order No. 1051 of 2019, the order dated 10 th October, 2019
passed by the learned Civil Judge, Senior Division, Thane, was
modified, and the Respondent Corporation was directed to allot
TDR/DRC in favour of the Petitioners.
31.8. It is to be noted that the Corporation is and was always
ready and willing to allot TDR/DRC in favour of the Petitioner,
subject to compliance as contemplated under the Development
Control Regulations. The Respondents, in their affidavit dated 27 th
November, 2025, especially in Paragraph No.19, have clearly
averred that the Corporation is ready and willing to grant TDR, and
that a letter dated 10th July, 2025, which is in tune with the
Development Control Regulations, has been issued to the
Petitioners, thereby directing them to comply with the requisitions
raised therein (page 438 of the affidavit in reply filed by the
Corporation).
31.9. It is to be noted that in response to the letter dated 10 th
July, 2025, the Petitioners responded by reply dated 15 th July, 2025,
and as per Paragraph No.4 of the said reply, the Petitioners agreed
to erect fencing in the form of metal sheets and stated that they
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would initiate the said work in the near future (page 442, para 4 of
the affidavit in reply). Further, by letter dated 6 th October, 2025
issued by the Petitioners in response to the Corporation’s letter
dated 10th July, 2025, the Petitioners have clearly admitted in clause
(f) that the work of erecting the compound wall around the park
reservation has already been initiated under the supervision of a
security guard, which can be verified by the Corporation. Clause (j)
of the letter dated 6th October, 2025 also records that the Petitioners
assured that they would erect the compound wall within six months
and hand it over to the Thane Municipal Corporation. (Page Nos.
465 and 466 of the Affidavit in reply 27 th November, 2025 of
corporation).
31.10. The Forest Department, being an authority entrusted
with environmental protection, has raised objections that have
placed TMC in a dilemma as to whether Development Rights
Certificates (DRC) can be granted against the reservation in
question. Further, the Petitioner has failed to comply with several
mandatory conditions prescribed under the Unified Development
Control and Promotion Regulations, 2020 (UDCPR-2020). These
include:
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31.11. 1. Measurement of the reserved land by the TILR in the
presence of all concerned parties, namely the Forest Department,
TMC, and the Petitioner; Mutation and reflection of the reserved
land in the name of Thane Municipal Corporation by way of an
independent and separate 7/12 extract or Property Card, clearly and
unambiguously recording TMC as the owner; and
31.11.2. Handover of vacant, unencumbered physical possession
of the reserved land to TMC in terms of Regulation 11.2 of the
UDCPR-2020.
31.12. It is submitted that TMC has never been handed over
physical possession of the writ land. Consequently, the further
process for issuance of the DRC has remained incomplete, along
with other mandatory prerequisites under the UDCPR-2020.
31.13. In respect of the compliances sought by the Corporation
from the Petitioners in its letter dated 10th July, 2025, all such
compliances are in consonance with the Development Control
Regulations and are required to be complied with.
31.14. The Respondent Corporation issued a letter dated 6th
August, 2025 to the Deputy Superintendent of Land Records,
thereby requesting measurement of the land under park reservation
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and handing over the measurement plan to the Corporation (pages
450 to 452).
31.15. The Respondent Corporation also issued a letter dated
6th August, 2025 to the Tahsildar, Thane, thereby requesting him to
take steps to change the Record of Rights in favour of the Thane
Municipal Corporation (pages 453 to 455).
31.16. In other similar matter, TMC had issued three DRCs to
the Petitioner after following due procedure; however, the transfer
and utilization of the said DRCs were subsequently prohibited after
objections raised by Forest Department. Aggrieved by such
prohibition, the Petitioner approached this Hon’ble Court by filing
Writ Petition No. 6603 of 2023, which is presently sub-judice. In
the said proceedings, this Hon’ble Court, by order dated 15 th
December, 2023, observed that considering the complexion of the
issue, it would be appropriate to defer the hearing of the present
proceedings as a third judge matter until the adjudication of Writ
Petition No. 10024 of 2023. Thus, the Forest Department has, from
time to time, raised objections to the issuance of the said three
DRCs and has also objected to the issuance of any further DRCs.
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31.17. Appendix ‘W’ read with Appendix N.N.1.5 (a) spells
out the regulations for grant of Transferable Development Rights.
Regulation 7 of Appendix ‘W’ reads as under:-
“A DRC will be issued only on satisfactory
compliance with the conditions prescribed in the
Appendix.”
31.18. Regulation 15 of the Development Control Regulations,
1999, reads as under:
“Development Rights will be granted and DRCs
issued only after the reserved land is surrendered
to the Corporation, where it is the Appropriate
Authority, or otherwise to the State Government,
as the case may be, free of cost and free from
encumbrances, after the owner or lessee has
levelled the land to the surrounding ground level
and after he has constructed a 1.5 m high
compound wall (or at a height stipulated by the
Commissioner) with a gate at the cost of the
owner, and to the satisfaction of the
Commissioner, or the State Government (where
the Corporation is not the Appropriate Authority).
The cost of any transaction involved shall be
borne by the owner or lessee.”
31.19. Regulation 11.2.4(b) of the UDCPR, 2020 is pari
materia with Appendix W. It is therefore necessary for the Petitioner
to comply with the Development Control Regulations for grant of
TDR. Compliance of Law (DCR) in is inherent in an order passed
by the Hon’ble Court.
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31.20. Clause 11.2.4(b) read as under:
“(b) DRC shall be issued only after the land
is surrendered to the Authority free of cost and
free from encumbrances and after levelling the
land to the surrounding ground level and after
constructing/erecting a 1.5 m. high compound
wall/fencing i.e. brick/stone wall up to 0.60m.
above ground level and fencing above that upto
remaining height with a gate, at the cost of the
owner and to the satisfaction of the Authority.”
31.21. It is clear that the land is required to be surrendered free
from all encumbrances. The Petitioner, in the present Writ Petition
No. 10024 of 2023, in (paragraphs 10 to 17), has averred in detail
about the claim of the Forest Department, which ultimately
culminated in Writ Petition No. 3205 of 2018. In these
circumstances, the Corporation has rightly demanded submission of
an NOC from the Forest Department in order to comply with the
requirement under the Development Control Regulations of
surrendering the land “free from all encumbrances.”
31.22. It is settled law that one cannot transfer a better title
than what one has. It is thus clear that if the Forest Department
succeeds in Writ Petition No. 3205 of 2018, the Petitioner will not
have title to the suit lands and will not be entitled to any TDR in lieu
thereof. It is pertinent to note that the Petitioner was well aware of
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the claim of the Forest Department for all these years prior to
submitting the proposal dated 3rd July, 2018 for grant of TDR. The
said proposal also states that the Petitioner is entitled to grant of
DRC “as per the provisions under Regulation No. Appendix N.1.5
and Appendix W of the DCR, 1994 of TMC, and amendments
thereto.”
31.23. It is also pertinent to note that the Corporation was
earlier prevented from granting TDR in view of the injunctions
granted in two civil suits, namely Special Civil Suit No. 440 of 2019
and Special Civil Suit No. 36 of 2019, till 25th November, 2022,
when the order came to be passed in Appeal from Order No. 1050 of
2019.
31.24. The Petitioner, in their communication dated 15th
September, 2020 (Page 168 of Writ Petition No. 10024 of 2023), the
relevant portion of which appears at Page 132, reiterated that the
TMC is also under a statutory obligation under the MRTP Act, 1966,
read with the Development Control Rules and Regulations.
31.25. It is to be noted that the Petitioners, in their letter dated
21st March, 2023 addressed to the Corporation, have categorically
stated that they are entitled to be awarded development rights and
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TDR in accordance with the provisions of the Development Control
Regulations (pages 139-140 of the petition).
31.26. It is also pertinent to note that the Forest Department, in
its affidavit in reply dated 4th January, 2015, has categorically
averred that the land in question is deemed reserved forest, vested in
the State Government, and is in the possession of the Sanjay Gandhi
National Park.
31.27. The Corporation has taken consistent, timely, and
necessary steps to comply with Court orders and statutory
obligations.
OUR ANALYSIS AND DISCUSSION
32. It has to be borne in mind that the first Petition pertains
to the jurisdiction of the Single Judge Bench under Article 227 of
the Constitution of India. The State has invoked the Writ of
Certiorari, which is akin to the Revisional jurisdiction of a Court. As
such, while we exercise our jurisdiction, which is of a Revisional
nature, we ought to keep in mind that, unless the impugned
judgment clearly appears to be illegal, perverse, erroneous and
unsustainable, it cannot be quashed and set aside. Merely because a
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different view could be possible, the impugned judgment cannot be
branded as perverse and illegal.
(Read Syed Yakoob v/s. K.S. Radhakrishnan, AIR 1964 SC 477 and
Surya Dev Rai V/s. Ram Chander Rai, AIR 2003 SC 3044).
33. The impugned Judgment dated 30th June, 2017
delivered by the MRT, is in the light of an appeal preferred by the
State challenging the order dated 27th December, 2004 passed by the
Deputy Collector (Private Forests), Thane Division, in Case No.53
of 1999. The Appeal No.REV/ Forest/165/2005 filed by the State
has been dismissed. The Appeal No.REV/Forest/229 of 2009 filed
by the Original Landlord, has been allowed. To the extent of the
State, we have concurrent findings before us. To the extent of the
Original Landlord, the impugned findings of the Deputy Collector
have been over-turned.
34. The pleadings, averments and oral submissions of the
parties before us, were also advanced before the MRT. The
impugned Judgment runs into 29 pages. The submissions of the
parties have been considered thread-bare by the MRT and have been
dealt with on the basis of the oral and documentary evidence
available on record.
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35. Since we have extensively heard the learned Advocates
for the parties, considered their pleadings and averments and their
Written/oral submissions and have also reproduced the salient
features from their written submissions, in a summary form, we are
not required to repeat them in our conclusions.
36. The dispute that originated 50 years ago was in respect
of land Survey No.59/1 at village Manpada in Thane district. In
1975, the Government of Maharashtra proposed to acquire 217 acres
and odd, from the entire land under the provisions of the 1975 Act.
A notice dated 29th August, 1975 was said to have been served on 4 th
September, 1975. There is no dispute that the said notice was served
on D. Dahyabai and Company, which is not the owner of the land. It
is equally undisputed that the original land owner is D. Dahyabhai
and Company Private Limited and not D. Dahyabhai and Company.
Hence, as a matter of fact, based on the records, the non-service of
the notice on the original land owner, is apparent and fatal.
37. The impugned notice dated 29th August 1975, at page
number 277 in the petition paper-book of the first Petition, has been
signed by Shri N J Joshi (Forest Guard). It has been addressed to D.
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Dahyabhai and Co. The photostat copy, which is at page 277, is
annexed herewith as Article ‘X’.
For ready reference, the same is typed and reproduced hereunder :-
नोटीस
क्र ां ६९ सन १९७५-७६
ॉन्झर ेटर ऑफ फॉरे&ट्स
स ल यांची चेरी
ता. २९ ाहे. ऑर्ग&ट सन १९७५
नंबर ६९ सन १९२७ चा भारताचा जंर्गलाबाबत अधि)विनय (सन १९२७
चा अधि)विनय १६ ा) याचे ल ३५, पोट- ल (३) तारीख १९ ाहे सप्टेंबर सन
१९५० रोजीची शेत ी जंर्गल वि भार्गाची सर ारी अधि)सूचना क्र ां
५१३३/४८५१३-जे हीत प्रजिसद्ध े लेल्या विनय ांपै ी विनय २ यांस अनुसरून ी, श्री.
ना. ज. जोशी, नसंरक्ष , ठाणे.
स ल येथील जंर्गलाचा रक्ष या रून ी,
यांना नोटीस देतो त्यांनी ही नोटीस वि ळाल्याच्या तारखेपासून दोन विहन्याच्या आत,
यास जोडलेल्या परिरभिशष्टात विनर्गिदष्ट े लेल्या त्याच्या ाल ीच्या असलेल्या जंर्गलाच्या
बाबतीत ुंबई सर ारने सदरहू ल ३५, पोट- ल (१) अन् ये सोबत असलेली
अधि)सुचना (जीस यात यापुढे ‘अधि)सूचना’ असे म्हटले आहे.) ा ाढू नये याचे ारण
दशवि ण्या रीता धिडलिhहजनल फॉरे&ट ऑविफसर रा. ऊ. बोरी ली याजस ोर हजर राविहले
पाविहजे असे ळ तो.
२. जर सदरहू श्री. X खालील प्र ाणे ……… या नोटीशी प्र ाणे
ार्गण्यात सूर रतील तर, सदरहू श्री. X खालील प्र ाणे ……. यांची सदरहू अधि)सूचना
ाढण्याच्या बाबतीत ोणतीच हर त नाही असे र्गृहीत )रण्यात येईल.
३. ाझे आणखी असे म्हणणे आहे ी १ षाहून जा&त नाही इतक्या
ुदतीत किं ा अधि)सूचना ाढण्याच्या तारखेपयnत जी ोणती अर्गोदर असेल त्या ुदतीत
किं ा त्या तारखेपयnत सदरहू श्री. X —
खालील प्र ाणे आभिण सदरहू ल ३५, पोट- ल (१) र ाना (१)
ध्ये विनर्गिदष्ट े लेल्या र्गोष्ट ी ोणतीही किं ा स र्गोष्टी रण्याचा हक्क असलेले किं ा
रण्यास पर ानर्गी विदलेले स इस यांनी र्ग असा हक्क किं ा अशी पर ानर्गी, ोणताही
हक्क, ाल ी हक्क किं ा विहतसंबं) यांच्या ारणां ुळे किं ा ोणतेही लायसेन्स किं ा रार
याअन् ये किं ा इतर रीतीने वि ळालेला किं ा देण्यात आलेली असो या नोविटशीच्या
तारखेनंतर आभिण प्रसंर्गाप्र ाणे र सांविर्गतलेल्या ुदतीत तारखेपयnत, सदरहू ल ३५,
पोट- ल (१) र ाना (१) ध्ये विनर्गिदष्ट े लेल्या पुढील र्गोष्टींपै ी ोणतीही र्गोष्ट रता
ा ा नये. त्या र्गोष्टी येणेप्र ाणे.
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(अ ) झाडे इ ारती ला डे ापणे ती ाहून नेणे, फांद्या
छाटणे, र े घेणे, खाचा पाडणे, खाली ाढणे, अर्गर पाने
तोडणे.
(ब ) झाडे झुडपे जाळणे ाढू न टा णे.
( ) शेतीसाठी ज ीन फोडणे अर्गर नांर्गरने.
[ ार्गे पहा]
X
श्री. डी. डायाभाई आभिण ं पनी रा. ानपाडा
ु. ानपाड्यास ोर
पो. ानपाडा ठाणे नं.७
तालु ा – ठाणे
जिजल्हा – ठाणे
परिरभिwष्ट
जिजल्हा तालु ा र्गा स y अद ासे विदwा
नंबर क्षेत्रफळ उत्तर पू दधिक्षण पधिz
ठाणे ठाणे ानपाडा र्गट नं. २०४- राखी र्गट नं. राखी राखी
५९/ ८-८ जंर्गल ५९ पै. जंर्गल जंर्गल
१
जार्गा : ठाणे (ना. ज. जोwी)
तारीख : २९ ऑर्ग&ट, १९७५
जंर्गलाचा रक्ष
नसंरक्ष , ठाणे न ंडळ ठाणे
38. The above reproduced notice indicates many glaring
aspects. Firstly, that it has been signed by a Forest Guard and not by
any authorised officer or signatory. Secondly, it has been addressed
to D. Dahyabhai and Co. and not to the actual owner of the land,
M/s D. Dahyabhai and Co. Pvt. Ltd. Thirdly, the said notice was
admittedly received by Mr. Chimanlal Shah, the accountant of D.
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Dahyabhai and Co. He was not an employee of the land owner. So
also, the State has been unable to point out that the notice was
published in the State Gazette.
39. It is also undisputed that 14 acres of land was already
transferred to different persons much prior to the issuance of the
notice dated 29th August, 1975. A balance of 193 acres was available
for acquisition. From this large area of land, the land owner has
brought on record the improvement in the land by plantation and
construction of residential hutments over an area admeasuring 24
acres, 32 gunthas. The land owner had requested to exclude this area
from the proposed acquisition and had also expressed its willingness
to hand over an equal area from the adjoining lands bearing Survey
Nos.59/2 and 59/3, which belong to the land owner.
40. The Additional Collector/Sub-Divisional Officer
initiated an inquiry under Section 6 of the 1975 Act. This inquiry
was concluded by an order dated 3rd June, 1980 and the
representation made by the land owner for exchange of land parcels
was accepted. The Forest Department challenged the order before
the Tribunal on the ground that the proposed alternate land had
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some encroachments. The Forest Appeal No.9 of 1981, was allowed
and the proceedings were remitted for fresh adjudication. However,
the Forest Department or the Revenue Department, did not initiate
steps for 17 years. In 1999, the said ‘remanded proceeding’ was
renumbered as 53/1999. A final order was passed on 27 th December,
2004 by the Deputy Collector (Private Forest), Thane Division.
41. The Forest Department has contended that the notice
was issued for acquiring 204A, 8G and 8A at village Manpada. It
was alleged that the actual physical possession of area admeasuring
168A, 15G and 4A was with the Forest Department. Some portion
was found to have been unsuitable as it was encroached upon. The
notice was issued on 29th August, 1975 and was served upon D.
Dahyabhai and Company. The issue before us is as to whether it can
be presumed that the notice was rightly served on the original land
owner, only because the actual land owner requested the State
Government to exempt certain area from acquisition,.
42. We find that such submission of the State is only by
way of an attempt to take advantage of the fact that the actual land
owner had later on offered alternate land parcels. In fact, even the
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communication dated 23rd January, 1986 by the Divisional Manager,
Sanjay Gandhi National Park, Borivali in response to the Assistant
District Collector Thane’s letter dated 10th January, 1986, indicates
that the Forest Department consistently believed that the owner of
the suit land was M/s. D. Dahyabhai and Company, when the actual
owner is M/s. D. Dahyabhai and Company Private Limited. The
Forest Department further averred that Survey Nos.59/2, 59/3 and
59/16, were not covered in the notices issued under Section 35(3) of
the Indian Forest Act, 1927.
43. Respondent No.2, who claims to be a tenant, made an
application for intervention on 13th October, 2004 claiming to be
interested in an area admeasuring 7 hectors 38 R, out of the total
193 acres in Survey No.59/1. Respondent No.2 claimed to be the
tenant of the original land owner under the provisions of the
Bombay Tenancy and Agricultural Lands Act, 1948 (in short the
BTAL Act).
44. When the hearing commenced before the Sub-
Divisional Officer, it was revealed that Case No.53/1999 filed under
Section 6 of the 1975 Act, had been decided by the Sub-Divisional
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Officer, Thane and 24 acres from Survey No.59/1 were held to be
not a forest. The application of Respondent No.2 was allowed and it
was held that he was in possession of 7H, 38A, which parcel was
not a forest land in Survey No.59/1. An area of 17A and 19G
relating to the village settlement (Konkanipada) was also excluded
from the Forest Area.
45. Respondent No.2 had produced a copy of one order
dated 27th December, 2004, thereby raising an issue that 17 acres
and 19 gunthas out of Survey No.59/1, excluded from the
reservation on the premise that the said area of 17A and 19G was a
village settlement (Konkanipada). It was alleged that when there
was no application made by any person under Section 6 of the Act
seeking such exclusion, the Sub-Divisional Officer never called
upon the parties before him to take up the said issue of exclusion.
46. The original land owner had purchased the land from
the Court Receiver on 6th July, 1960 by virtue of two Deeds of
Conveyance. This is an admitted position. Respondent No.2 who
claims to be a tenant, was said to be in possession of 18 acres 18
gunthas out of Survey No.59/1 quite prior to the introduction of the
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Act of 1975. The Court orders in Criminal Case No.5227/1982 and
Criminal Appeal No.172/1993, did not record any finding that
Respondent No.2 was in possession of 18A and 18G. The order in
the Criminal Case No.5227/1982, refers to only 4 acres, whereas
the order of the High Court in Criminal Appeal No.172/1993, does
not mention any area.
47. The land owner who had appeared before the MRT by
filing its Case No.229 of 2009, had stated that the entire land in Gut
No.59/1, was a non-forest land on the appointed date, i.e., 30th
August, 1975. We find from the records that it was used for
Horticulture, Stone Quarries, Godowns, Residential Units and had
various structures thereon. If this be the position, no part of the land
bearing Gut No.59/1 could have been declared as Forest/Private
Forest Land.
48. Apart from Konkanipada village settlement, the
Appellants had adduced evidence to show that the portions of
property bearing Gut No.59/1 was used for non-agricultural
purposes. Evidence was led to show existence of four stone quarries
on the areas shown in the order dated 7th May, 1963. On the
appointed day 30th August, 1975 the owners and the licensees were
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carrying on business of stone quarries on the part of the said
property. The Collector of Bombay had issued valid permission.
Therefore, we find that the Deputy Collector should have exempted
that portion of the area in Gut No.59/1, considering it’s actual use as
on the appointed day.
49. The other Respondents, who are LRs of the deceased
Respondent no. 2, have filed an affidavit in reply contending that the
deceased was cultivating the said land admeasuring 7H and 38R out
of Gut No.59, Hissa No.1 in village Manpada for the last 60 years.
They also claimed that the original land owner had purchased this
land in 1960 from the Court Receiver, which fact is established.
Respondent No.2 was taking crops such as paddy, barley, vegetables
etc. Respondent No.2 made an application bearing No.16 of 1991
on 25th July, 1991 under Section 70(b) of the BTAL Act 1948. The
Tahsildar and ALT Thane declared Respondent No.2 a tenant over
the area admeasuring 7H and 38R. This conclusion has attained
finality.
50. Respondent No.2 had averred that the Assistant
Conservator of Forest (Protection) Sanjay Gandhi National Park,
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tried to evict Respondent No.2 by concluding that he is an
encroacher, by an order dated 4th November, 1999. The said order
was carried in appeal by Respondent No.2 and was quashed by an
order dated 11th April, 2005, passed by the Additional
Commissioner, Konkan Division .
51. It has been contended by Respondent No.2 that no
notice under Section 35(3) of the Indian Forest Act, 1927 was issued
to him. He has been in actual cultivation and physical possession of
the said portion of land as an agricultural tenant of Shyamaldas
Gandhi and thereafter, of M/s. D. Dahyabhai and Company Private
Limited. The fact of tenancy has been established in separate
proceedings by an order dated 13th February, 2004 passed by the
Tahsildar in Tenancy Suit No.70(b)/Chi.Manpada/16/91. Hence, the
land never vested in the State Government and never became a part
of the forest land. We find the said contention to be sustainable from
the above facts.
ISSUES FRAMED BY MRT AND IT’S CONCLUSIONS
52. After all the parties canvassed a host of grounds, the
MRT framed the following issues :
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(a) Whether the land in dispute can be said to be a
‘Private Forest’ as contemplated under Section 3(f)(iii) of the Act of
1975?
Answer : In the Negative.
(b) Whether the proceeding conducted by the Deputy
Collector (Private Forest), Thane Division, Thane was vitiated by
the non-service of notice under Section 35(3) of the 1927 Forest Act
on or before the appointed day, i.e., 30th August, 1975?
Answer : In the Affirmative.
53. The MRT has referred to Section 2(f)(iii) of the 1975
Act, which reads as under :
Section 2(f) – ‘Private Forest’ means any forest
which is not the property of the Government and
includes, –
(i) …
(ii) …
(iii) any land in respect of which a notice has been
issued under sub-section (e) of section 35 of the
Forest Act, but excluding an area not exceeding
two hectares in extent as the Collector may specify
in this behalf.
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54. Section 35(3) of the 1927 Forest Act, reads as under :
“Section 35(3) – No notification shall be made
under sub-section (1) nor shall any work be begun
under sub-section (2), until after the issue of a
notice to the owner of such forest or land calling
on him to show cause, within a reasonable period
to be specified in such notice, why such
notification should not be made or work
constructed, as the case may be, and until his
objections, if any, and any evidence he may
produce in support of the same, have been heard
by an officer duly appointed in that behalf and
have been considered by the State Government.”
55. We find from the record that the notice dated 29 th
August, 1975, has been issued by a Forest Guard, namely Shri N J
Joshi. He does not appear to be an authorised signatory. He had no
jurisdiction to issue the said notice. It is typed as ‘Jungle Rakshak’
below his signature, which mean a ‘Forest Guard’. Unless, if the
authorised officer of the Forest department was then nomenclatured
as ‘Forest Guard’ instead of ‘Chief Conservator of Forest’ or the
like.
56. After considering the law laid down in Godrej & Boyce
(supra), Dr. Arjun Sitaram Nitanwar (supra) and Ozone Land Agro
Pvt. Ltd. (supra), the MRT has concluded as under :
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(a) The notice dated 29th August, 1975 said to be issued,
was served on Dahyabhai and Company, on 4th September, 1975.
(b) The notice was not served on or before the
appointed day 30th August, 1975.
(c) The notice was not served on the actual land owner,
i.e., D. Dahyabhai and Company Private Limited.
(d) The recipient of the notice Dahyabhai and Company
is a distinct entity and is not the actual owner of the land.
(e) The notice dated 29th August, 1975 was never served
on the owner as is mandated under Section 35(3) of the 1927 Forest
Act, and having been served on an entity which is not the owner of
the land, it cannot be construed to have been issued on the owner.
(f) Shri. Narayan Ganu Tangadi (now deceased),
Respondent No.2 being a tenant prior to 1st April, 1957, has been
declared by the Agricultural Lands Tribunal to be a tenant, which
need not be interfered with since the said order has not been
challenged by the Forest Department and, as such, the area for
which Shri. Narayan Ganu Tangadi has been declared to be a tenant,
is deemed to have been purchased by him and, therefore, cannot fall
within the purview of ‘Private Forest’.
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CONSIDERATION OF THE FACTS BEFORE US, IN THE
LIGHT OF THE LAW LAID DOWN IN GODREJ & BOYCE
57. We deem it appropriate to advert to the important
paragraphs in Godrej & Boyce (supra), since the following legal
principles emerge from the said ruling :
(a) S. 2(f)(iii) of the Maharashtra Private Forests Act is
a ‘savings’ clause;
(b) The term ‘saving clause’ has been defined in P.
Ramanatha Aiyar’s Advanced law Lexicon, 4th Edition, as under :
“A ‘saving clause’ is ordinarily a restriction in a
repealing Act and saves rights, pending
proceedings, penalties, etc., from the annihilation
which would result from unrestricted repeal.”
(c) Section 2(f)(iii) of the Maharashtra Private Forests
Act can be interpreted to mean that the saving clause is meant to
save ‘pipeline notices’.
(d) ‘Pipeline notices’ or ‘live notices’ mean :
“…notices issued in reasonably close proximity to
the coming in to force of the Private Forests Act
which were, “live” and “could be acted upon”.
(e) The Supreme Court has held that
“…Section 2(f)(iii) of the Private Forests Act is in
a sense a saving clause for pipeline notices issued
under Section 35(3) of the Forest Act…”
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(f) Since Section 2(f)(iii) of the Maharashtra Private
Forests Act is meant to save notices which have been issued under
Section 35(3) of the Indian Forest Act, the notices should be
‘issued’ in a reasonably close proximity of the appointed date under
the Maharashtra Private Forests Act.
(g) The service of notice as well as proceedings with
regard to settling disputes u/s. 6 of the Maharashtra Private Forests
Act could be completed after 30th August 1975.
(h) The Hon’ble Supreme Court, in International Ore
& Fertilizers (India) P.Ltd. vs. ESI Corporation (1987) 4 SCC 203,
has considered the importance of welfare legislation in the context
of the Employees’ State Insurance Act, 1948 as under :
“4. … We agree with the decision of the High
Court that while construing a welfare legislation
like the Act and the notification issued thereunder
a liberal construction should be placed on their
provisions so that the purpose of the legislation
may be allowed to be achieved rather than
frustrated or stultified…..”
(i) Paragraph 61 in Godrej and Boyce (supra), reads
thus :
“…By making reference in Section 2(f)(iii) of the
Private Forest Act to “issue” in Section 35 of the
Forest Act, it is clear that the word is dressed in
borrowed robes”
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“…Once that is appreciated (and it was
unfortunately overlooked in Chintamani) then it is
quite clear that “issued” in Section 2(f) (iii) of the
Private Forests Act must include service of the
show-cause notice as postulated in Section 35 of
the Forest Act.”
(j) The Hon’ble Supreme Court has concluded that the
word ‘issue’ has to include ‘service of the show cause notice’.
(k) We do not find any specific conclusion or the
dictum of the Hon’ble Supreme Court that service of the notice has
to be effected prior to 30th August, 1975 in order to be saved under
section 2(f)(iii) as a “pipeline notice”.
(l) “By making a reference in Section 2(f)(iii) of
the Private Forest Act to “issue” in section 35 of
the Forest Act, it is clear that the word is dressed
in borrowed robes…”
The above observation of the Hon’ble Supreme Court
would mean that the word ‘issue’ has been borrowed from Section
35 of the Indian Forest Act only to ensure that the service is effected
so as to make the provisions of Section 35(4) to (7) of the Indian
Forest Act effective, lest, the issuance of notice would be an empty
formality and farcical.
58. If we compare Section 21 of the Maharashtra Private
Forests Act with Section 35 of the Indian Forest Act, it becomes
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clear to us that Section 35, requires issuance of the service of the
notice prior to the issuance of a final notification under Section
35(1). In the Maharashtra Private Forests Act, issuance and service
of the notice are steps which are preceded by the publication of the
notification. In our view, which is supported by Godrej & Boyce
(supra) and Rohan Nahar (supra), the word ‘issued’ under Section
2(F)(iii) cannot be read as ‘issued and served prior to 30 th August,
1975’. This would be contrary, not only to paragraph 72 and 74 of
the judgment in Godrej and Boyce, but, also to the provisions of the
Maharashtra Private Forests Act, particularly Section 21 thereof. To
this extent, we reject the contention of the land owner.
CRUCIAL FACTORS
59. In the proceedings before the Deputy Collector, a
specific Affidavit was filed in evidence by Mr. Chimanlal Shah on
3rd December 1999, clearly stating that he is the accountant of
D.Dahyabhai & Co. It is a proprietary concern. He received a
registered envelop on 4th September, 1975 containing the notice
addressed to D.Dahyabhai & Co. (which is not the owner of the
subject land in said notice). The said notice, which we have
reproduced herein above, does not even mention the name of the
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actual land owner, D Dahyabhai and Co. Pvt. Ltd. This
undisputable fact has been either ‘glossed’ or over-looked by the
Petitioner.
60. In our considered view, the present matter is fully
covered by the judgment of the Hon’ble Supreme Court in the case
of Godrej & Boyce (supra), which has been followed in Rohan
Nahar (supra). In Godrej & Boyce (supra) case the word “issued” is
interpreted to include the service on the addressee. Paragraph 72 of
Godrej & Boyce (supra) is in respect of pipeline notice meant to be
served. However, Paragraph 72 cannot be interpreted to mean only
issuance of notice, sufficient to define it as a pipeline notice or a live
notice.
61. To make any notice, to be a pipeline or live, in our
view, does not mean that the notice has to be served before the
appointed day. In Rohan Nahar (supra), the Hon’ble Supreme Court
has specifically stated that only upon receipt of notice by the true
land owner, that a right to take objection is born. In the case in
hands, there is no documentary proof, either about issuance of
notice prior to the appointed day or its service upon the true owner.
Service is admittedly upon a wrong addressee. This has been a
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consistent stand of Respondent No.1 before the Deputy Collector in
the remand inquiry, as well as before the MRT.
62. The Petitioner’s contention that notice under Section
35(3) of the Indian Forest Act was issued to Respondent No. 1 on
29th August, 1975 and served on 4th September, 1975, is fallacious
for another reason. We find from the record that this is an incorrect
statement. The notice in the present case, was signed by a Van
Rakshak. A Van-Rakshak (the signatory to the notice dated
29/08/1975), is a Forest Guard. A Conservator of Forest is Van-
Sanrakshak. A Deputy Conservator of Forest is Up-Van Sanrakshak.
As such, it is apparent that the impugned notice was signed by a
Forest Guard, who has no jurisdiction and authority to issue a notice
under Section 35(3) of the Indian Forest Act, 1927. The impugned
notice dated 29th August, 1975 is at Page No.277 in the Petition
paper book of the first Petition signed by Shri. N.J. Joshi (Forest
Guard), which is addressed to D. Dahyabhai’s Company. Before no
authority, has the Petitioner/State produced documentary proof of
the notice dated 29th August, 1975, having been signed by an
authorized Competent Officer and issued on 29th August, 1975,
which should be reflected from the outward registered.
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63. It is in the above backdrop that the actual land owner
M/s D. Dahyabhai and Co. Pvt. Ltd. has issued letters dated 5 th July,
1979 and 28th August, 1979, requesting the State Government to
exempt 24 acres and 32 gunthas from Gut No.59/A/1 of its holding
from acquisition. It offered an alternate land of 25 acres 32 gunthas
from Gut No.59/2 and 59/16, Manpada. It was under fortuitous
circumstances that the actual owner offered alternate land in
exchange, to the State. This cannot be said to be service of notice as
mandated in Godrej Boyce (supra) and Rohan Nahar (supra), so as
to create a right for raising objections. When the actual owner was
not addressed with a notice, there can be no argument that the actual
owner was served or heard. It is only the addressee of a notice, who
gets the right to object, only on service of notice.
64. No documentary proof about compliance of Section 5
of MPFA is produced by the forest department. The subject land is
not vested in State/Forest under Section 3 of the MPFA on the
appointed day 30th August, 1975, apparently because the notice
under Section 35 (3) of IFA was not served on the owner. The Forest
Department could not produce any documentary proof to show that
alleged notice dated 29th August, 1975 was actually
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dispatched/issued from the office of Forest Department. Strict
compliance of statutory preconditions, which is necessary for
vesting as per Rohan Nahar (Supra) and Godrej & Boyce (Supra), is
missing.
SUBSEQUENT EVENTS RELEVANT FOR
WRIT PETITION NO. 10024 OF 2023
65. It is contended by the State that, after taking possession
of the subject land, the Forest Department constructed boundary
walls, an entry gate, a security cabin, a nature interpretation centre,
and other structures for protecting the subject land. By contrast, in
Rohan Nahar (supra), no action was taken even after issuing notices
in the 1960s.
66. D. Dahyabhai & Co. Pvt. Ltd. and its Director Mr.
Nitesh Kothari (Petitioner), have filed Writ Petition no 10024/2023,
seeking directions to the Respondent Thane Municipal Corporation
to issue DRC in favour of the Petitioners against acquisition of Park
Reservation No.4 (said reservation area is admeasuring 404721.02
sq. meters), which has been acquired by the Respondent
Corporation under registered Deed of Transfer dated 24th May, 2019
registered under Serial No.TNN5- 8450-2019 (Exh.E, Page 92-115
of WP).
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67. The Respondent Corporation filed it’s reply, admitting
the execution of said Transfer Deed, acquisition of the said
reservation and having got the possession of the land. Admittedly,
there is an order dated 25th November, 2022 (Exh.F, Page No.116 to
118 of the WP) read with an order dated 7th December, 2022 (Exh.G,
Page No.119 of the WP), which is passed by the Single Judge Bench
of the High Court, directing the Respondent Corporation to issue
and allot the said DRC. In spite of such an order passed by the High
Court, the Respondent Corporation has withheld the issuance of
DRC and, hence, this Petition has been filed.
68. The established position is that vide order dated 30 th
June, 2017 passed in MRT Appeal No.165 of 2005 and Appeal
No.229 of 2009, the MRT has declared the lands under the said
reservation and the lands which were subject matter of the notice
dated 29th August, 1975, to be a non-forest land.
69. The Forest Department, has filed the first Writ Petition
No.3205 of 2018 against rejection of it’s Appeal No.165 of 2005.
There is no interim order against the said order of MRT dated 30 th
June, 2017, passed by this Court.
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70. The record reveals that the said reservation is
sanctioned by the State Government and is a part of the sanctioned
D.P. of Thane 1994-1999 (Thane D.P.). Till date, the Forest
Department has neither challenged the Thane D.P. nor the
introduction of the said reservation. The Forest Department, during
the process of acquisition of the land under reservation, has never
raised any objection against the Respondent Corporation in
introducing the said reservation.
71. The record further reveals that the registered Deed of
Transfer dated 24th May, 2019 is also not challenged. The Deed of
Transfer states that the land is acquired and the possession is handed
over to the planning authority. (Exh.E, Page Nos.92 to 115, relevant
page No.100). The said Deed of Transfer is a registered instrument
which ought to have been challenged by filing a suit for
cancellation, within the limitation of 3 years, from the date of
registration of the said Deed. Admittedly, no such challenge is posed
by the Forest Department in any substantive proceeding, which
could now be barred by limitation.
72. Three orders are passed by this Court, out of which
two orders dated 28th April, 2025 and 27th June, 2025 were passed
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after hearing the State/forest. The Land is acquired, 7/12 extract is
mutated in the name of Corporation (Exh.M, Page 469 of Affidavit-
in-Reply of Respondent No.2 Corporation). It is only after
acquisition of Park Reservation No.4, that the Forest Department
woke up from deep slumber and lodged its objection with the Thane
Municipal Corporation for allotting TDR to D. Dahyabhai & Co.
Pvt. Ltd. The position as it stands today is that, without challenging
sanctioned Thane D.P. and without challenging the acquisition of
land, the Forest Department is opposing grant of compensation to
the land owner.
73. There is no dispute that 100 acres of land is acquired
under registered instruments by the planning authority viz.
Respondent Corporation for a public purpose under sanctioned D.P.
Such D.P. was sanctioned by the State Government itself under the
MRTP Act long back in the year 1994. This step of the State
Govenment of subjecting the land to reservation for public purposes
such as park, road, TMT bus depot, Primary School, HCMTR, etc.
has never been objected to by the Forest Department.
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74. It appears from the record that, the land is in possession
of the Corporation (Page 100 of WP) from May 2019. Though the
Forest department is claiming to be in physical possession, it’s letter
dated 23rd January, 1986 (Page No.448, of the additional affidavit of
Respondent No.1 land owner company, in Writ Petition No.3205 of
2018) demonstrates that they could not take possession of the land
prior to 1986. There is no documentary proof placed on record to
show that the physical possession was taken by the forest
department.
75. As per the registered acquisition instrument dated 24 th
May, 2019, 100 acres towards park reservation and additional 18100
sq. meter of subject land is also in possession of the Respondent
Corporation and on a small portion, a twin tunnel project is being
implemented, for which the Forest Department has given it’s NOC.
The project is said to be progressing rapidly.
76. It is canvassed before us by the land owner that, from
the plain reading of Regulation No.11.2.4 of UDCPR, it is evident
that Petitioner/D. Dahyabhai Co. Pvt. Ltd. has achieved all
compliances. Respondent TMC vide letter dated 10 th July, 2025, has
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illegally called upon D Dahyabhai Co Pvt. Ltd. to obtain an NOC
from Forest Department despite the fact that the orders of this Court
dated 28th April, 2025 and 27th June, 2025 do not impose such
condition, which were passed after hearing the Forest Department.
The letter dated 8th October, 2025 (Page Nos.483-492 of the
Affidavit-in- Reply of the Corporation) from the Conservator of
Forest, Sanjay Gandhi National Park indicates an unholy alliance
between the TMC and the Forest Department to deprive D.
Dahyabhai Co. Pvt. Ltd. from receiving the statutory compensation
in violation of Article 300A of Constitution, is the contention.
77. It is further canvassed by the land owner that, as per
Regulation No.11.2.4 of UDCPR, construction of the boundary wall
is not mandatory. Instead of carrying out such construction, the land
owner Company can deposit the cost of construction of compound
wall/fencing with the Corporation, provided Corporation issues
DRC. All other requirements of the Corporation about TILR survey,
mutating name of Corporation in 7/12 extract, certification of
mutation entry in that regard, are already complied with
(Petitioner’s Advocate reply dated 14th July, 2025 and Petitioner’s
letter dated 6th October, 2025, Page Nos.440-447 and 463-468 of
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Respondent No.2’s own affidavit dated 27th November, 2025, in the
second WP).
78. It is vehemently contended by the land owner
Company that, while acquiring the land and getting the registered
instrument executed for acquisition in May 2019, TMC did not find
it necessary to seek prior opinion from the Forest Department or TD
department of the State Government. Before giving consent for
passing the order dated 25th November, 2022 directing TMC to allot
DRC, TMC did not seek any opinion of the State Government.
When the order dated 28th April, 2025 was passed, at that time also
TMC did not make any submission that it desired to consult the
State Government. Even in the Interim Application filed for seeking
modification of the order dated 28th April, 2025 TMC did not take
this stand. It is only after the order dated 27 th June, 2025, that the
TMC expressed it’s desire to seek the opinion of the forest
department and TDD for implementation of the orders of this
Hon’ble Court. We are in agreement that the above stated grievance
and contentions of the land owner needs consideration and we
record that the TMC cannot take a summersault to deprive the
Company of the compensation in the form of DRC.
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79. Another aspect needs consideration. The Thane
Municipal Corporation, vide its letter dated 8 th January, 2020
(Exh.H, Page Nos.120 to 126 of WP), addressed to the Conservator
of Forest, Sanjay Gandhi National Udyan, has clearly stated that it is
not going to change the user of the said reservation and in fact will
be maintaining it as a park by keeping the natural greenery. The
Corporation has also agreed to handover the said reservation, if the
forest department makes such a request, by obtaining permission of
the General Body. We are informed that, the Forest Department has
not responded to the said letter as yet.
80. It is, thus, clear that these two authorities will have to
sort out this issue. Nevertheless, this dead lock cannot defer the
issuance of DRC to the land owner, which has the character of
compensation. We agree with the contention of the land owner
Company, that refusing the DRC, would be unjust and unfair and
would impinge the constitutional rights of the land owner Company,
guaranteed under article 300 A of Constitution.
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OUR F I NAL CONC LUS I ONS AND ORDE R
IN W R I T P E T I T I O N N O. 3 2 0 5 O F 2 0 1 8
81. We are, therefore, of the considered view that the
complete answer to the first Petition filed by the Petitioner State,
lies in Godrej and Boyce (supra) and Rohan Nahar (supra).
82. In Paragraph Nos. 13.1. 13.2 and 13.5, Rohan Nahar
(supra), the Hon’ble Supreme Court has specifically recorded that
‘We are unable to agree with the High Court that the reproduction of
a draft text of S.35(1) beneath a S.35(3) show cause in the Gazette
amounts to a concluded notification u/s 35(1) of the IFA. A notice
that grants time for objections cannot co-exist with a final decision
u/s 35(1) without rendering the statutory hearing illusory. Mutation
entries are ministerial in nature and cannot perfect an acquisition
that lacks the statutory predicates. They neither create title in the
State nor divest title from the private owner.’
83. In Paragraph No.13.2 of Rohan Nahar (supra), the
Hon’ble Supreme Court has recorded that, ‘On the facts across these
appeals, we find that the essential links in the statutory chain are
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missing. There is no proof of service of any S.35(3) notice of the
IFA on the then owners. There is no final notification u/s 35(1) of
the IFA. Actual possession has at all times remained with private
owners and this position is reflected in the revenue records that
describe them as occupants. No possession was taken u/s 5 of the
MPFA Act, no schemes were set in motion u/s 4, no compensation
exercise was undertaken u/s 7, and no inquiry u/s 6 was held at a
time proximate to the appointed day of 30th August 1975.
………..
In one instance the State relies on a pipeline notice which was
addressed to a person who was not the owner as on 29 th or 30th
August 1975. In another, the land forms part of an industrial estate
converted to non-agricultural use long before 1975.
……….
These features are wholly inconsistent with a completed vesting u/s
3(1) of the MPFA ACT.’
84. As such, the above findings and conclusions, are
virtually tailor-made for the case before us. We summarise the
decisive factors before us as follows :-
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(a) The original land owner had purchased the land
from the Court Receiver on 6th July, 1960 on the basis of two deeds
of conveyance.
(b) The notice dated 29th August, 1975 has been
signed by an unauthorised person, a Forest Guard N J Joshi.
(c) The said notice has been addressed to a stranger
namely, D. Dahyabhai and Co.
(d) The said notice was never served on the actual
owner D. Dahybhai and Co. Pvt. Ltd.
(e) That the alleged service is sought to be proved
only by a xerox copy on the accountant of D. Dahybhai, Shri
Chimanlal Shah.
(f) That there is no legally valid service upon the
lawful owner.
(g) That the Petitioner does not have any proof about
actual dispatch of notice prior to appointed day.
(h) The land always remained in the possession of
the land owner, for almost 6 decades.
(i) The Thane Municipal Corporation (TMC) has
acquired the land, taken physical possession of the same and has
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declared reservations for public purposes, public projects on some
portions of the land.
(j) The TMC has declared that the land covered by
greenary will be protected and the green cover would be maintained,
in as much as, that, if the Govt desires to take the land for
maintaining the greenary, TMC is willing to hand over the same to
the Govt.
85. In Paragraph Nos.13.5 and 14.2 in Rohan Nahar
(supra), the Hon’ble Supreme Court has further held that :
‘13.5. We are further of the view that a remand
for an inquiry u/s 6 of the MPFA Act is neither
warranted nor efficacious. Such an inquiry is
designed to be contemporaneous with the
appointed day so that meaningful evidence on the
character of the land can be adduced by both
sides. After the passage of nearly half a century
(in our case it is 60 years), that exercise would be
largely academic and would not cure the absence
of mandatory preconditions of a served notice u/s
35(3) of the IFA and lawful progression towards a
notification u/s 35(1). the authorities have also
adopted a concluded litigating stance on the very
matters they would be called upon to decide,
which would not inspire confidence in the fairness
of any remanded proceeding. ………’‘14.2. After this categorisation, we are satisfied
that there is no legally relevant distinction
between the present cases and the decision in
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under Section 35(3) of the IFA, the existence of a
live process capable of culminating in a
notification under Section 35(1) of the IFA, and
strict compliance with the statutory steps that
alone can support vesting under Section 3(1) of
the MPFA Act on the footing of Section 2(f)(iii).
The record before us discloses the same
deficiencies that were fatal in Godrej and Boyce
(Supra). There is no proof of service of any notice
under Section 35(3) of the IFA on the then
owners. There is no final notification under
Section 35(1) of the IFA. Possession has remained
with private owners throughout. No
contemporaneous action was taken under Sections
4, 5, 6 or 7 of the MPFA Act. These features
mirror the very elements that led this Court to
hold that vesting had not occurred in Godrej and
Boyce (Supra)’
86. We have no doubt from our analysis and conclusions of
the relevant factors before us, that the above conclusions in Rohan
Nahar (supra) squarely apply to the case before us. We see no
purpose in considering a remand of the case for a fresh inquiry to
grant the Petitioner an opportunity to lead evidence, after we have
concluded that the impugned order deserves no interferance.
Moreover, it would serve no object for the reason that the notice
dated 29th August, 1975 was issued by an incompetent/unauthorised
person and addressed to a partnership firm which is admittedly not
the owner of the land.
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87. In view of the above, though we find no fault with the
impugned Judgment, we are of the view that the only conclusion
drawn by the MRT that, ‘the notice should have been served on or
before the appointed day’, is an erroneous observation, though it is
of no consequence, since the notice is not proved to have been
issued on 29th August, 1975, admittedly signed by Mr. N J Joshi,
who was not an authorised officer and not served upon the actual
owner. The contention of the State that because the land owner
subsequently reacted to the situation, it would indicate that the
notice was served on the owner, is a contention in desperation which
is a result of surmises, conjectures and presumptions. Therefore, we
disregard the only impression of the MRT that the notice should
have been served before the appointed date, as being abstruse. Rest
of the impugned order does not deserve to be branded as perverse or
illegal.
88. Consequentially, the First Petition No. 3205 of 2018, is
dismissed. Rule is discharged.
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ORDER IN WRIT PETITION NO. 10024 of 2023
89. Presently, the maximum land in question is around 104
acres which is acquired, owned and possessed by the Thane
Municipal Corporation. So also, on the actual site today, Thane
Municipal Corporation has constructed 40 mtrs DP road, Thane
Municipal Bus Depot and has reserved the land for development of
a garden, maternity home, park, school and metro rail, as well as,
the twin tunnel which is a public project and is at an advanced stage.
TMC has made a statement in it’s pleadings that the Forest cover
would be maintained and if the State desires to take over the Forest,
TMC us willing to hand over the said land to the State.
90. In view of our analysis, observations and conclusions
set out in paragraph nos. 65 to 80 in this judgment, the Second
Petition No. 10024 of 2023, is allowed.
91. We direct the Respondent Thane Municipal
Corporation to issue/allot the said TDR/DRC, against park
reservation No.4 area admeasuring 404721.02 sq. mtrs. which has
been acquired vide the Deed of Transfer dated 24th May, 2019
registered under Serial No. TNN5-8450-2019, to the Petitioner
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No.1, within a period of 21 working days from the date of the
uploading of this Judgment.
92. Rule is made absolute in the above terms.
93. The pending Interim Applications do not survive and
stand disposed off.
94. We express gratitude to the learned Senior Advocates,
Sarvashri Janak Dwarkadas and R S Apte and the learned
Advocates, Sarvashri Chirag Balsara, Karl Tamboly and their
associate lawyers, for the immense assistance given to us.
(ASHWIN D. BHOBE, J.) (RAVINDRA V. GHUGE, J.) Sunny Thote 191 of 373 ::: Uploaded on - 25/02/2026 ::: Downloaded on - 27/02/2026 21:51:23 ::: WP-10024-2023.odt Sunny Thote 192 of 373 ::: Uploaded on - 25/02/2026 ::: Downloaded on - 27/02/2026 21:51:23 ::: WP-10024-2023.odt Sunny Thote 193 of 373 ::: Uploaded on - 25/02/2026 ::: Downloaded on - 27/02/2026 21:51:23 ::: WP-10024-2023.odt ANNEXURE 'A'
PETITIONERS NOTE IN RESPECT TO THE SANJAY GANDHI
NATIONAL PARK DIVISION
(1) Without prejudice to any other submissions made in the present
proceedings, the Petitioner places this note on a limited aspect,
namely, to explain the legal status and scope of the Sanjay Gandhi
National Park Division (“SGNP Division”).
(2) In 1995, Bombay Environmental Action Group (“BEAG”) filed
Writ Petition No. 305 of 1995 before this Hon’ble Court (” BEAG
Writ Petition”) seeking, inter alia, removal of encroachments from
the SGNP Division (which had not yet been finally notified as a
National Park), relocation of occupants to non-forest areas, and
demolition of unauthorised structures within the SGNP Division.
(3) During the hearing of the BEAG Writ Petition, this Hon’ble
Court passed an interim order dated 7 May 1997 (“Interim Order”)
holding that the SGNP is a protected forest and a National Park
under Indian law, containing Vihar and Tulsi lakes which supply
drinking water to Mumbai, and representing a rare National Park
within an urban metropolis with rich biodiversity.
(4) This Hon’ble Court, relying upon the order of the Hon’ble
Supreme Court in Writ Petition (Civil) No. 202 of 1995 ( T.N.
Godavarman), held that the expression “forest” must be understood
in its dictionary sense and includes all lands recorded as forest in
Government records, irrespective of ownership.
(5) It was further held that the Forest Conservation Act applies to
the entire National Park and the SGNP Division. Accordingly, this
Court directed strict and time-bound measures, including
demarcation of boundaries, prohibition of non-forest activities,
cancellation of municipal permissions, and demolition of
unauthorised structures.
(6) The relevant paragraphs from the Interim Order are reproduced
below:
2. The Sanjay Gandhi National Park Division is a
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has also been notified as a National Park under
the provisions of the Wildlife Protection Act. The
National-Park Division contains within its
boundaries two lakes that provide drinking water
to the city of Bombay viz. Vihar and Tulsi Lakes.
It is unique in that it is perhaps the only National
park in protected forest area within an urban
metropolis. A large amount of wildlife as well as
important flora and fauna area also to be found
within the boundaries of the National Park…..
7. On the 12th December, 1996 the Hon’ble
Supreme Court had passed an order in Writ
Petition (Civil) No. 202 of 1995 that the word
‘forest’ must be understood according to its
dictionary meaning. This description covers the
statutory recommendations of the Forest Act
including “reserved, protected or otherwise” for
the purposes of section 2.1 of the Forest
Conservation Act. The term ‘forest land’ in
section 2 will not only include forest in the
dictionary sense but also the area recorded as
forests in the Government records irrespective of
ownership. This is how it has to be understood for
the purposes of section 2 of the Act. The
provisions indicated in the Forest Conservation
Act for conservation of forests and matters
connected therein must clearly apply to all forests
irrespective of the ownership or classification
thereof. The Supreme court has further held that it
would be reasonable to argue that any State
Government which had failed to provide the
correct position in law so far, would forthwith
correct its stance and take necessary remedial
measures without any further delay….
10. Based on the recommendations contained in
the report of the Committee we think it necessary
to pass the following order do that the
committee’s recommendations are given effect to
and carried out in a time bound manner:
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(a) The Deputy Conservator of Forests of the
Sanjay Gandhi National Park Division is directed
to prepare a map to show the boundaries of the
National park Division with reference to the
existing roads and send the same to the Municipal
Corporation and also to the General Manager,
BEST and the General Manager MTNL (West 3)
within a period of four weeks from today. The
above mentioned statutory authorities are directed
not to grant any permission or allow any non
forest activity/ies within the boundaries of the
said National park Division….
(d) The Deputy Conservator of Forests of the
National Park Division is directed to make
barriers and getes within a period of eight weeks
from today to stop public transport such as taxis,
autos from entering the forest area….
(i) The BMC is directed to cancel all sanctions
and registrations and permissions granted within
the National Park Division after giving 15 days
notice of the same. The BMC is directed to give
such notices forthwith. All structures having
commercial establishments, schools etc. within
the National Park Division are to be demolished
within one year from today and all building
materials are to be confiscated so that the same is
not used to re-erect the structures.”
[Emphasis supplied]
(7) The above findings were reiterated in the final judgment dated
15 September 2003, by which the BEAG Writ Petition was allowed.
This Hon’ble Court recorded that the area under the control of the
Deputy Conservator of Forests, SGNP Division, admeasured 103.09
sq. km., comprising :
(a) 82.23 sq. km. of reserved forest;
(b) 20.76 sq. km. of unclassed forest; and
(c) 0.10 sq. km. of protected forest.
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(8) Importantly, in paragraph 28(13) of the said judgment, this
Hon’ble Court clarified that:
“In case of any dispute regarding boundary of
Sanjay Gandhi National Park, the map prepared
and survey carried out by the Forest Department,
pursuant to the order dated 7th May, 1997 of this
Court, shall be final.”
(9) This Hon’ble Court has further held that there is no distinction in
law between Sanjay Gandhi National Park and Sanjay Gandhi
National Park Division. The relevant findings are reproduced below:
“194. It was urged by Mr. Oka, Mr. Grover and
Mr. Vashi that Sanjay Gandhi National Park and
Sanjay Gandhi National Park Division are two
independent areas. SGNP cannot be equated with
a SGNP Division. The notifications under sub-
sections (1) and (2) of section 35 (preliminary
notification) and under sub-section (4) of section
35 of the Wild Life (Protection) Act, 1972 (final
notification), referred to only National Park and
not National Park Division. Several areas which
have not been included in National Park (SGNP),
therefore, cannot form part and parcel of National
Park and the notifications will not apply to those
areas. It was also submitted that Schedule to both
the notifications referred the areas to be included
in National Park and the boundaries situated in or
around such National Parks. Occupiers of the
areas not within SGNP, therefore, would not be
affected and no proceedings can be initiated
against them. It was submitted that in view of the
legal position, though in an order dated 7th May,
1997 the Division Bench of this Court has issued
certain directions in respect of occupiers of SGNP
Division, they would not apply to the SGNP
Division but their application would be limited to
occupiers in SGNP.
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195. We are unable to accept the submission of
the learned Counsel, the map annexed to the
petition, though it is captioned as Sanjay Gandhi
National Park (SGNP), is really a map of the
Sanjay Gandhi National Park Division (SGNP
Division). Several orders which have been passed
by this Court as well as by the Supreme Court
from time to time also refers to SGNP Division.
It, therefore, cannot be contended that the
application of notification should be made limited
to SGNP.
196. It is also pertinent to note at this stage that it
does not make any difference whether the area is
part of SGNP or SGNP Division. All the land in
the Division is ” forest” within the meaning of
Maharashtra Private Forests (Acquisition) Act,
1975 or the Indian Forest Act, 1927. Once the
land is held to be “forest”, no relief can be granted
to the occupiers as the directions issued in
Godavarman would squarely apply to such land.
Godavarman goes further and declares that the
expression “forest” should not be read in a
restrictive manner and it must be understood
according to its dictionary meaning which would
cover all statutory forests, whether designated as
reserved protected or otherwise, and would also
include any area recorded as forest in the
Government record, irrespective of ownership. In
the present case, the case of the State Government
is that the area is ” forest” and has been recorded
as such in the Government record. Hence, the
ratio laid down in Godavarman will apply.”
[Emphasis supplied]
(10) It is respectfully submitted that a perusal of the official map
prepared by the Forest Department pursuant to the Interim Order
clearly shows that Gat No. 59/1 forms part of the SGNP Division.
The said map is produced along with this note for ease of reference.
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(11) The continuing recognition of the SGNP Division as a
protected forest area admeasuring approximately 104 sq. km. has
also been reaffirmed in subsequent proceedings, including Contempt
Petition (Lodging) No. 9237 of 2023, wherein this Hon’ble Court
observed:
“1. The present Contempt Petition alleges
contempt of various orders passed in Writ Petition
No. 305 of 1995 for the protection and
preservation of the area of Sanjay Gandhi National
Park Division admeasuring approximately 104
square kilometers…”
(12) In view of the above orders and findings, it is submitted that it
is clear that the subject lands fall within the SGNP Division.
Consequently, the subject lands are “forest lands” in law, and Gat
No. 59/1 indisputably forms part of the SGNP Division.
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ANNEXURE 'B'
WRITTEN NOTES OF ARGUMENTS ON THE LAW LAID
DOWN BY THE HON’BLE SUPREME COURT IN GODREJ &
BOYCE (SUPRA) AND ROHAN NAHAR (SUPRA)
(1) On 7th November 2025, a bench of the Hon’ble Supreme Court
comprising Vikram Nath and Prasanna B. Varale, JJ., delivered its
decision in Rohan Vijay Nahar & Ors. vs. State of Maharashtra &
Ors., 2025 SCC OnLine SC 2366 (“Rohan Nahar”). The Court set
aside the Bombay High Court’s decision in Devkumar Gopaldas
Aggarwal and Ors vs State of Maharashtra and Ors, 2018 SCC
Online 2823 (“Devkumar Aggarwal”) holding that the High Court
was wrong in concluding that the facts of the case in Devkumar
Aggarwal differed from those in Godrej & Boyce Mfg. Co. Ltd. v.
State of Maharashtra, (2014) 3 SCC 430 (“Godrej & Boyce”).
(2) The Hon’ble Supreme Court noted that the High Court had
framed two issues in Devkumar Aggarwal. The main issue was
whether the law laid down by the Hon’ble Supreme Court in Godrej
& Boyce would apply to the facts in Devkumar Aggarwal, and
whether subsequent purchasers could rely on Godrej & Boyce even
when their predecessors-in-title had not questioned the application
of the Maharashtra Private Forests (Acquisition) Act, 1975
(“Maharashtra Private Forests Act“) or the actions taken under it
(Para 12.1/Page 18 of Rohan Nahar).
(3) In fact, the Hon’ble Supreme Court in Rohan Nahar relied and
also followed the law laid down in Godrej & Boyce. In particular, in
paragraphs 10.2/Page 16, 10.3/Page 16, 10.4/Page 16 and
14.2/Pages 22-23 of Rohan Nahar, the Supreme Court observed as
follows :
“10.2 Interpreting the expression “a notice has
been issued” in Section 2(f)(iii) of the MPFA,
when read with Section 35 of the IFA, the Court
held that “issuance” cannot be divorced from
service. Given the statutory scheme, a valid notice
under Section 35(3) of the IFA necessarily entails
service on the owner, an opportunity to file
objections, to adduce evidence, and to be heard.
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Because interim restraints may be imposed under
Section 35(4) of the IFA and penal consequences
attach under Section 35(7) of the IFA, service is
inherent to the process. Section 35(5) of the IFA,
requiring service in the CPC manner and
publication as prescribed, reinforces this
conclusion.
10.3 On this basis, the view in Chintamani
Gajanan Velkar (Supra) that a bare, unserved
notice sufficed for Section 2)(f)(iii) of the MPFA
was found to have overlooked the
Bombay/Maharashtra amendments to Section 35
of the IFA and to have proceeded on an erroneous
premise regarding the two-hectare exclusion. It
was overruled to that extent.
10.4 The Court further clarified that Section 2(f)
(iii) of the MPFA saves only “live” or “pipeline”
notices, those issued and pursued in reasonable
proximity to 30.08.1975. Notices left undecided
for years or decades lapse into desuetude. The
State is obliged to act within a reasonable time; a
notice from 1956-57, never taken to its statutory
culmination, cannot be revived to effect vesting
on the appointed day.
14.2 After this categorisation, we are satisfied that
there is no legally relevant distinction between the
present cases and the decision in Godrej and
Boyce (Supra). The ratio in Godrej and Boyce
(Supra) turns on service of a notice under Section
35(3) of the IFA, the existence of a live process
capable of culminating in a notification under
Section 35(1) of the IFA, and strict compliance
with the statutory steps that alone can support
vesting under Section 3(1) of the MPFA Act on
the footing of Section 2(f)(iii). The record before
us discloses the same deficiencies that were fatal
in Godrej and Boyce (Supra). There is no proof of
service of any notice under Section 35(3) of the
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IFA on the then owners. There is no final
notification under Section 35(1) of the IFA.
Possession has remained with private owners
throughout. No contemporaneous action was
taken under Sections 4, 5, 6 or 7 of the MPFA Act.
These features mirror the very elements that led
this Court to hold that vesting had not occurred in
Godrej and Boyce (Supra)….”
FACTS IN THE DECISION OF GODREJ & BOYCE
(4) Since the issue in Rohan Nahar is connected to Godrej & Boyce,
it is necessary to first examine Godrej & Boyce. The relevant facts
from that judgment are as follows:
(4.1) Godrej acquired land in Vikhroli by a registered deed of
conveyance dated 30th July 1948 from Nowroji Pirojsha, who had
inherited it from Framjee Cawasjee Banaji, the original perpetual
leaseholder under an 1835 Government of Bombay grant. The land
was classified as “wasteland” under the original lease, meant to be
cultivated. The dispute concerns 133 acres and 38 gunthas from
specific survey numbers, referred to as the “disputed land.” (Paras 3
– 4/Page 12 of Godrej & Boyce).
(4.2) In 1951, the Salsette Estates Act (“Abolition Act”) was passed
stating that wastelands granted under a perpetual leaser not
cultivated before 14th August 1951 would vest in the State and be the
property of the State. However, aggrieved by this Act, Godrej filed a
suit in the Bombay High Court for declaration of its ownership and
that the Abolition Act had no application to the lands in question.
After litigation, a 1962 consent decree declared that except for 31
gunthas, the rest of the land had been cultivated by Godrej before
14th August 1951 and therefore belonged to Godrej. (Paras 5 –
7/Pages 12 – 13 of Godrej & Boyce).
(4.3) Development plans for the city of Bombay in 1967 and 1991
designated the disputed land as residential. Godrej received
permissions to construct residential buildings and built four for staff
use. However, on 17th February 1976 the Urban Land Ceiling Act
(1976) came into force and since the disputed land was in excess ofSunny Thote 202 of 373
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industrial and residential purposes. The State granted the exemption,
requiring construction of staff housing. With exemptions and
municipal permissions, Godrej built over 40 multi-storeyed
residential buildings, a clubhouse, substations, and other facilities,
housing thousands of families (Paras 9 – 11/Page 13 of Godrej &
Boyce).
(4.4) In May 2006, Godrej received six stop-work notices stating
that the disputed land was treated as private forest, requiring Central
Government approval for construction under the Forest
(Conservation) Act, 1980. Godrej learned that this action arose from
a 2005 Bombay High Court order directing the State to update all
land records. Godrej learned that, while updating land records, the
State had unilaterally changed the revenue entries to classify the
land as private forest. It also found that Notice No. WT/53, issued
under Section 35(3) Indian Forest Act, 1927 ( “Indian Forest Act“),
had been published in the Bombay Government Gazette of 6 th
September 1956 regarding the land, but the notice had no date, was
never served on Godrej, and was never acted upon by the
Government. (Paras 16 & 31 – 33/ Pages 14 & 19 of Godrej &
Boyce)
(4.5) Aggrieved by this, Godrej filed Writ Petition No. 2196 of
2006 seeking a declaration that its Vikhroli land was not forest land
and asking the High Court to invalidate the forest department’s
letter, the stop-work notices, and the revenue record mutation.
During the case, it emerged that about 170 similar notices were
issued in 1956-57 to various entities, including government
establishments. (Paras 34 – 35/ Pages 19-20 of Godrej & Boyce)
(4.6) The State contended that, based on the Supreme Court’s ruling
in Chintamani Gajanan Velkar v. State of Maharashtra (2000)
(“Chintamani Velkar”), the disputed land had already vested in the
State under Section 3 of the Maharashtra Private Forests Act. The
High Court dismissed Godrej’s petitions in 2008, holding that
development approvals and planning designations could not
override the land’s status as private forest, and that government
inaction did not invalidate earlier notices. The Court further held
that even a Section 35(3) notice issued without a corresponding
Gazette notification did not remove the land from the Maharashtra
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Private Forests Act and such notices could not be deemed
abandoned. It concluded that private forest land remains forest
despite any development plans or zoning changes. Aggrieved with
this decision, Godrej and other petitioners filed special-leave
petitions before the Supreme Cour (Paras 36 – 38/Pages 20-21 of
Godrej & Boyce).
(4.7) However, the Supreme Court allowed all the appeals and set
aside the judgment of the Bombay High Court, and delivered the
following findings:
(4.7.1) It overruled Chintamani Velkar which had held that mere
issuance of a notice under Section 35(3) of the Indian Forests Act is
sufficient and service is not required under Section 2(f)(iii) of the
Maharashtra Private Forests Act and held that the word “issued” in
Section 2(f)(iii) must include service of the show-cause notice
(Paras 61 – 62/Page 26 of Godrej & Boyce).
(4.7.2) The Supreme Court endorsed the Full Bench decision in J. C.
Waghmare vs State of Maharashtra, AIR 1978 Bom 119 , which
upheld the constitutional validity of the Maharashtra Private Forest
Act (Paras 22 – 26/Pages 17-18 of Godrej & Boyce). It held that :
(a) Section 2(f)(iii) of the Maharashtra Private Forests Act
applies even to land where only a notice had been issued under
Section 35 of the Indian Forest Act and the owner’s objections
remained unheard when that provision was repealed in 1975, such
objections can now be heard under Section 6 of the Maharashtra
Private Forests Act.
(b) Section 6 provides landowners with the opportunity to file
objections and demonstrate that their land should not be classified or
declared as forest.
(4.7.3) The Hon’ble Supreme Court held that Section 2(f)(iii) of the
Maharashtra Private Forests Act is in sense a saving clause and is
meant to save “pipeline notices”. “Pipeline notices” or “live notices”
have been defined to mean notices issued in reasonably close
proximity to the coming into force of the Maharashtra Private
Forests Act and only such “live notices” could be acted upon (Paras
71 – 74/Pages 27-28 of Godrej & Boyce).
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(4.7.4) The Supreme Court held that the notice issued to Godrej
could not be considered a “pipeline” notice, since a pipeline period
cannot reasonably extend from 1956-1957 all the way to 1975.
Therefore, the notice was not valid for the purpose of treating the
land as private forest (Para 49/Page 24 of Godrej & Boyce).
FACTS IN THE DECISION OF ROHAN NAHAR
(5) In the background of Godrej & Boyce, it is now essential to
examine the facts of the case in Rohan Nahar:
(5.1) The Appellants (batch of 96 civil appeals) are landowners in
Maharashtra whose cases share a common factual background with
each other, as well as with the facts in Godrej & Boyce. The State
claims that in the early 1960s, notices under Section 35(3) of the
Indian Forest Act were issued and published in the Official Gazette,
calling upon landowners to show cause why forest-related
restrictions should not be imposed. The landowners maintain that
these notices were never personally served, no hearings were held,
no final notification under Section 35(1) of the Indian Forest Act
was issued, and the proceedings remained dormant for decades
(Para 7.1/Page 12 of Rohan Nahar).
(5.2) After the Maharashtra Private Forests Act, came into force, the
landowners argued that the State did not take possession under
Section 5 and that for decades the lands continued to be treated as
private holdings. Transfers were allowed, planning authorities
treated these lands as agricultural land or no development zone, and
no compensation was paid. The State argued that the 1960s notices
under Section 35(3) of the Indian Forest Act read with Section 2(f)
(iii) of the Maharashtra Private Forests Act caused automatic vesting
of the lands in the State(Para 7.2/Page 13 of Rohan Nahar).
(5.3) However, from around 2001, revenue officers began mutating
village records to show lands as affected by forest proceedings.
Names of the landowners were replaced with that of the State. The
owners alleged these changes were made without notice to them and
in violation of the Maharashtra Land Revenue Code. The State
argued that the entries merely reflected statutory vesting. These
annotations had collateral effects and Sub-Registrars refused to
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register documents having regard to departmental instructions.
Possession nonetheless remained with the private parties,
compensation was never awarded, and many administrative
challenges under Maharashtra Land Revenue Code remained
unresolved. Landowners therefore approached the High Court
seeking correction of records, declaratory relief regarding title and
vesting and restoration of entries consistent with private title and
possession. (Paras 7.3 – 7.4/ Page 13 of Rohan Nahar).
(5.4) Before the High Court, landowners challenged the legality of
forest-related mutation entries and sought declarations that their
lands were not private forests under the Maharashtra Private Forests
Act, along with restoration of their names in the revenue records.
The Landowners argued that :
(i) mere Gazette publication of the notice under Section 35(3)
of the Indian Forest Act without personal service under Section
35(5) of the Indian Forest Act could not have adverse consequences;
(ii) They emphasized that no inquiry or final notification
followed after the issuance of the notices under Section 35(3);
(iii) that the notices were stale;
(iv) that the State never took possession of the lands in
question or paid compensation for the same; and
(v) the revenue authorities actions violated the Maharashtra
Land Revenue Code and natural justice requirements (Paras 8.1 –
8.2/ Pages 13 – 14 of Rohan Nahar).
(5.5) The State responded that issuance of Section 35(3) notices in
the 1960s was sufficient for vesting under Section 2(f)(iii) and
Section 3 of Maharashtra Private Forests Act and that revenue
entries were ministerial reflections of statutory vesting that followed
as a matter of law. It also raised objections regarding delay and
laches and pointed out to availability of remedies under the
Maharashtra Land Revenue Code. (Para 8.3/Page 14 of Rohan
Nahar).
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(5.6) The High Court grouped the cases and considered common
questions such as
(i) whether issuance of Section 35(3) notices in these cases,
without service of these notice on the landowners, alone was
enough?
(ii) whether service and a Section 35(1) notification were
mandatory?
(iii) whether dormancy affected vesting, and
(iv) whether the Maharashtra Land Revenue Code procedures
had been violated (Para 8.4/Page 14 of Rohan Nahar).
(5.7) The Hon’ble High Court in Devkumar Aggarwal vide its order
dated 27th September 2018 disposed of this batch of 96 petitions and
held as follows:
(5.7.1) That vesting under Section 3 of Maharashtra Private Forests
Act occurred automatically on 30th August 1975 i.e., the appointed
day and that entries made in 2002 merely reflected this vesting (Para
12.2/Page 18 of Rohan Nahar).
(5.7.2) It accepted the State’s claim that the Section 35(3) notices
were issued and served and that in many cases a Section 35(1)
notification was already in force. It relied on Gazette extracts,
referred to as the “Golden Register”, possession notices, and
panchanama (Para 12.3 of the Rohan Nahar Judgement).
(5.7.3) It distinguished Godrej & Boyce as being fact-specific as in
Godrej & Boyce the owners had an earlier consent decree, long-
standing sanctioned development and an evidentiary vacuum on
service and follow-through. It also held that requirements of
issuance and service were satisfied on the basis of the facts on
record (Paras 12.4 – 12.5/Page 19 of Rohan Nahar).
(5.7.4) The principle laid down in Godrej & Boyce that had made a
distinction in “stale” and “live” notices was not considered by the
High Court and it was held that the issue in Godrej & Boyce was
fact specific to the facts of that case. It was further held that in any
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event, the lands in question would come within the primary
definition of “forest” under Section 2(c- i) of the Maharashtra
Private Forests Act. (Para 12.6/Page 19 of Rohan Nahar).
(5.7.5) In several of the cases the High Court found that the
challenges were mounted by subsequent purchasers who had
acquired the land post 30th August 1975 i.e., the appointed day and
not by original land owners. The High Court held that the
subsequent purchasers were alleging non service of notices without
obtaining affidavits from their predecessors -in-title stating whether
the notices were in fact served on them or not. It was further held
that the subsequent purchasers made these allegations even though
the “burden was effectively placed on the petitioners to dislodge
official records”. (Paras 12.7 – 12.8/Page 19 of Rohan Nahar).
(5.7.6) Except one matter remitted for inquiry, the High Court
dismissed all writ petitions, charactering several as commercially
motivated and not bona fide and cautioning that entraining them
would weaken forest protection. (Para 12.12/Page 19 of Rohan
Nahar).
(5.8) However, in the case of Rohan Nahar, the Hon’ble Supreme
Court overruled Devkumar Aggarwal and held as under:
(5.8.1) That the controlling legal position is settled i.e., for vesting
under Section 3 of the Maharashtra Private Forests Act based on
Section 2(f)(iii), the Section 35(3) notice must not only be issued
but must be served. Service is essential because it triggers the
owner’s right to object. The Court rejected the High Court’s view
that reproducing the text of Section 35(1) ” beneath” a show-cause
notice amounted to a final notification. It further held that mutation
entries cannot perfect an acquisition that lacks statutory predicates
and that these entries cannot create title in the State or divest title
from the private owner (Para 13.1/Page 20 of Rohan Nahar).
(5.8.2) The Court found critical statutory steps missing viz.
(i) no proof that Section 35(3) notices were served, nor any
final notification under Section 35(1).
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(ii) Private owners had remained in continuous possession, as
shown by revenue records.
(iii) The State had not taken possession under Section 5,
initiated schemes under Section 4, conducted compensation
proceedings under Section 7, or held timely inquiries under Section
6.
(iv) The documents relied on by the State, mostly undated or
unverified, were unreliable when contrasted with decades of
undisputed private possession.
(v) In some cases, the State relied on notices sent to non-
owners or on lands long converted to industrial use. In another, it
could not even assert that a Section 35(3) notice existed.
Taken together, these deficiencies made it clear that vesting under
Section 3(1) of the Maharashtra Private Forests Act had not been
completed (Para 13.2/Page 20 of Rohan Nahar)
Note: It may be noted that in Rohan Nahar, the Hon’ble Supreme
Court has not reinterpreted the ratio in Godrej & Boyce nor has it
distinguished the same. Furthermore, the ratio laid down in Godrej
& Boyce in the paragraphs that are being relied up by the Petitioner
in WP 3205 of 2018, viz. paragraphs 61 and 71 – 74, has not been
disturbed by the judgement delivered in Rohan Nahar.
(5.8.3) The Hon’ble Supreme Court also rejected the High Courts
distinctions between original and subsequent purchasers. It was held
that compliance with mandatory statutory requirements does not
depend on ownership history. Subsequent purchasers cannot be
prejudiced by undisclosed proceedings. The revenue records
themselves showed continued private ownership, undermining the
State‘s case. The Supreme Court rejected the High Court’s approach
to hold that a subsequent purchaser is in a worst position than the
one who developed land would invert the logic of the statute and
would reward illegality while penalising restraint (Para 13.4/Page
21 of Rohan Nahar).
(5.8.4) The Hon’ble Supreme Court also refused remand for a
Section 6 inquiry, holding that such an exercise decades later would
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be meaningless and could not cure the lack of mandatory
prerequisites. It further held that the High Court misread the
Gazette, diluted statutory requirements, and relied on irrelevant
material. The judgment therefore could not stand. (Para 13.5/Pages
21-22 of the Rohan Nahar Judgement).
(5.8.5) And finally it was held that the facts in those 96 appeals
which arose from the Bombay High Court Judgement in Devkumar
Aggarwal were indistinguishable in principle from Godrej & Boyce.
It was held that the record reflects the same jurisdictional defects
viz.
(i) non-service of a notice under Section 35(3) of the Indian
Forest Act,
(ii) absence of a final notification under Section 35(1) of the
Indian Forest Act, and
(iii) lack of contemporaneous steps under Sections 4, 5, 6, and
7 of the Maharashtra Private Forests Act.
In these circumstances, the High Court could not, consistent with
Article 141 of the Constitution, disregard the binding ratio by
treating immaterial differences as determinative (Para 14.6/Pages
23-24 of Rohan Nahar).
DISTINGUISING FEATURES OF THE PRESENT PETITION
FROM ROHAN NAHAR
(6) It is submitted that, based on the above facts and as correctly
held in Rohan Nahar, the facts in Godrej & Boyce and Rohan Nahar
are indistinguishable. In both cases, the Section 35(3) notices were
issued in the 1960s, never served on the original owners, and never
followed by any further action. As held by the Hon’ble Supreme
Court in Godrej & Boyce, only “Pipeline Notices”, viz. those issued
in close proximity to the Maharashtra Private Forests Act coming
into force, could be acted upon. This principle has not been
interfered with in Rohan Nahar.
(7) Godrej & Boyce held that mere issuance of a notice under
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Section 35(3) of the Indian Forest Act is not enough, the notice also
has to be served on the owner of the land. It is important to note that
while Rohan Nahar reaffirmed this principle regarding issuance and
service of the notice under Section 35(3) of the Indian Forest Act, it
did not hold that such notices must be served before the
Maharashtra Private Forests Act came into force on 30th August
1975.
(8) In light of the above, it is humbly submitted that the facts in the
present case (WP 3205 of 2018) are distinguishable from those in
Rohan Nahar for the following reasons:
(8.1) The notice under Section 35(3) of the Indian Forest Act was
issued to Respondent No. 1 on 29th August 1975 and served on 4th
September 1975. This is confirmed in Paras 7.11 and 7.12 (Pages
126-127) of Respondent No. 1’s Reply in WP 3205 of 2018. This
alone marks a significant factual difference from Rohan Nahar as in
the Rohan Nahar the notices were not served at all and in some of
the appeals served on non-owners.
(8.2) The notice under Section 35(3) of the Indian Forest Act was
issued on 29th August 1975 and served on 4th September 1975 i.e., in
close proximity to 30th August 1975. It is therefore submitted that
such a notice would be a “live” notice/”pipeline” notice as
understood in the decision of Godrej & Boyce. Significantly, in
contrast, the notices in Rohan Nahar were “stale” notices, issued in
the 1960s and never served on the landowners.
(8.3) In the present case, after taking possession of the subject land,
the Forest Department constructed boundary walls, an entry gate, a
security cabin, a nature interpretation centre, and other structures for
protecting the subject land. By contrast, in Rohan Nahar, no action
was taken even after issuing notices in the 1960s.
(8.4) Furthermore, in the current case, Respondent No. 1 also wrote
two letters (dated 5th July 1979 and 28th August 1975) requesting
exemption of 24 acres and 32 gunthas from Gat No. 59/A/1, offering
substitute land instead. Respondent No. 1 stated that considerable
amounts had been spent by it in developing horticulture on the land
and wells and farmhouses had been built on the subject land. Since
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1 then filed a Section 6 application under the Maharashtra Private
Forests Act before the Collector (“SDO”). This is a key distinction
from Rohan Nahar, where the owners never got a hearing. Here, the
original owner himself approached the authorities and participated
in the process.
(8.5) In the present case, the purpose of issuing a notice under
Section 35(3) has been fulfilled (viz. giving a hearing to the owner
of the land) in as much as, after the Section 6 application, the
following proceedings were held:
(8.5.1) The Collector, by order dated 3rd August 1980, accepted
Respondent No. 1’s offer of alternate land. The Petitioner
challenged this before the Maharashtra Revenue Tribunal (“MRT”).
(8.5.2) On 15th October 1982, the MRT remanded the matter to the
SDO for fresh inquiry, holding that the SDO did not have the
jurisdiction to allot the 24-acre parcel.
(8.5.3) After the remand, the SDO passed a second order on 27 th
December 2004, holding that 138 acres was private forest land
vesting in the Government, while 55 acres was not.
(8.5.4) Both sides appealed. On 15th June 2017, the MRT dismissed
the Forest Department’s appeal and allowed Respondent No. 1’s
appeal, incorrectly interpreting Godrej & Boyce to hold that because
the notice under Section 35(3) of the Indian Forest Act was not
served on or before 30th August 1975, it could not be treated as a
valid notice at all and held that the subject land is not a ‘private
forest’ as contemplated under Section 2(f)(iii) of the Maharashtra
Private Forests Act and hence the subject land is excluded entirely
from acquisition under the Maharashtra Private Forests Act .
(8.6) These facts clearly show that, unlike Rohan Nahar, the original
owner in the present case had multiple opportunities to present his
case.
(8.7) In view of the above, it is submitted that the present case is
clearly distinguishable from Rohan Nahar. Further, the issues raised
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PART 2 - LIST OF DATES AND EVENTS
SR. DATE EVENT REFEREN
CE
1. 29th Notice u/s 35(3) of the Indian Forest WP
August Act, 1927 ("Indian Forest Act") was Para 3(a)
1975 issued to D Dayabhai & Co Pg. 5
("Respondent No. 1") re: S.No.
59/A/1 measuring 204 acres 8
Gunthas 8 annas situated at Manpada,
Chitalsar, Thane. (“said land”).
Note: It was later found that 14 acres
of this land had been sold by
Respondent No. 1 to third parties
prior to 29.08.1975 and that the
balance area available for acquisition
was 193A 07g 4a.
2. 30th The Maharashtra Private Forests
August (Acquisition) Act, 1975 (”
1975 Maharashtra Private Forests Act“)
came into force.
Key sections of the Forest
Acquisition Act:
(i) Sec. 2(a) defines “appointed day”
to mean the date on which the Private
Forests Act comes into force i.e. 30th
August 1975.
(ii) Sec 2(c-i) contained definition of
“forest” & Sec 2(f) contained
definition of “private forest”.
(iii) Sec 2(f)(iii) provides that a
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“private forest” includes any land in
respect of which a notice has been
issued under Sec. 35(3) of the Indian
Forest Act, but excluding an area not
exceeding 2 hectares in extent as the
collector may specify in this behalf.
(iv) Sec 3(1) states that with effect on
and from the appointed day i.e.,
30.08.1975, private forests in the
State shall stand acquired and vest,
free from all encumbrances, in and
shall be deemed to be the property of
the State Government, with all rights
in or over the same or appertaining
thereto and all rights, title and
interest of the owner or any person
other than Government subsisting in
any such forest on the said day shall
be deemed to have been
extinguished.
(v) Sec 3(2) excluded land held by an
occupant or tenant and lawfully under
cultivation on the appointed day and
which is not in excess of the ceiling
area provided under Sec 5 of the
Maharashtra Agricultural Lands
(Ceiling on Holdings) Act, 1961 or
any building or structure standing
thereon or appurtenant thereto.
(vi) Sec. 6 states that where any
question arises as to whether or not
any forest is a private forest, or
whether or not any forest is a private
forest or portion thereof has vested in
the State Government or whether or
not any dwelling house constructed in
a forest stands acquired under Private
Forests Act, the Collector shall
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decide the question, and the decision
of the Collector shall, subject to the
decision of the tribunal in appeal
which may be preferred to the
tribunal within sixty days from the
date of the decision of the Collector,
or the order of the State Government
under section 18, be final.
(vii) Section 21 provides the
procedure by which certain lands can
be declared as private forests.
(viii) Sec 24 repealed Sec 35 of the
Forests Act w.e.f 30.08.1975.
3. 30th By virtue of Sec. 3(1) read with Sec.
August 2(f)(iii) of the Maharashtra Private
1975 Forests Act, the said land vested with
the State Government and the said
land is deemed to be the property of
the State Government.
4. th
4 By way of a letter to the Petitioner, WP
Septem Respondent No. 1 acknowledged that Para 3(d)
ber it had received the notice dated 29th Pg. 6
1975 August 1975 that was issued u/s
35(3) of the Indian Forest Act.
Respondent No. 1 did not raise any
dispute about the “forest” character
of any portion of the land but only
requested for time to verify the
correct extent of the land held by it.
Note 1: in its reply, Respondent No. 1
has not disputed the receipt of the
notice issued u/s. 35(3);
Note 2: Therefore, the fact of the
“issuance” and the “service” of the
notice issued u/s 35(3) of the Indian
Forest Act on Respondent No. 1
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cannot be disputed.
Note 3: In the letter acknowledging
the receipt of the notice, Respondent
No. 1 did not dispute that the land in
respect of which the notice was
issued u/s 35(3) of the Indian Forest
Act is not a forest.
Note 4: In view of the fact that the
notice was issued on 29th August
1975 i.e. one day prior to the repeal
of the Indian Forest Act and served
on Respondent No. 1 on 4th
September 1975, the notice falls
within the category of a “pipe-line
notice” as laid down by the Hon’ble
Supreme Court in Godrej and Boyce
Mfg. Co Ltd v State of Maharashtra1.
Note 5: In para 72 of the decision of
the Hon’ble Supreme Court in Godrej
and Boyce (supra), it has been held
that:
“Section 2(f)(iii) of the Private
Forests Act is not intended to apply to
notices that had passed their shelf life
and that only “pipeline notices”
issued in reasonably close proximity
to the coming into force of the
Private Forests Act were “live” and
could be acted upon.”
th
5. 5 July 4 years after the land had already WP
1979 vested with the State Government , Para 3(d)
Respondent No. 1 addressed two Pg. 6
& letters to the Petitioner requesting
that the State Government exempt 24
th
28 Acres 32 gunthas from Gat No.
August 59/A/1 of its holding from acquisition WP
1 (2014) 3 SCC 430
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1979 with an offer to substitute another Para 3(g)
parcel of land admeasuring 24 A 32 g Pg. 7
from S. No. 59/2 & 59/16, which
were contiguous to the said land as
Respondent No. 1 had expended
substantial amounts on Gat No.
59/A/1 for converting the same into
horticultural use and in this process
had constructed two wells and three
farmhouses on the said land.
Note 1: The fact that Respondent No.
1 may have put the 24 acres of land
to horticultural use did not however
mean that it was not a “forest land”.
Note 2: Such a right to substitute the
land is not contemplated under the
provisions of the Maharashtra Private
Forests Act
6. 27th Therefore, the State Government Exh A
May rejected Respondent No. 1’s proposal Para 17
1980 requesting the State Government to Pg 53
exempt 24 Acres 32 gunthas from
Ghat No. 59/A/1 of its holding.
7. 3rd An order was passed by Deputy WP
August Collector (Private Forests) Thane Para 3(i)
1980 Division (“SDO”) [“First SDO Pg. 8
Order”] wrongly accepting the
application filed by Respondent No.
1 u/s. 6 of the Maharashtra Private
Forests Act, for excluding 24-32-12
acres from Gat No 59 A/1, in lieu of
24- 32-12 acres from Gat No 59/2,
59/3 and 59/16 which would vest in
the State Government as reserved
Forest.
Note: The Petitioner filed an appeal
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against this order before the
Maharashtra Revenue Tribunal
Mumbai (“MRT”) against this order
under Section 6 of the Maharashtra
Private Forests Act.
8. 15th The MRT passed an order [“First WP
Octobe MRT Order”] allowing the appeal Exh A
r 1982 filed by the Petitioner and remanding Pgs. 48-56
the matter to the SDO with the
following observations and order:
Observations:
Para 8
1. An area of 204 acres 8g 8a Pg. 50
bearing Gat No 59/1 answers the
definition of Private Forests,
which is a common ground
between the parties.
2. The SDO had to restrict his Para 18
inquires to the specific provisions Pg. 54
of Sections 2(f)(iii) and 3(2) of the
Maharashtra Private Forests Act
and the other considerations
which weighed with him are
beyond his jurisdiction.
3. The Collector has no power to
declare any additional land as Para 22
private forest unless it answers the Pg. 55
definition of private forest
contained under Section 2(f)(iii)
of the Maharashtra Private Forests
Act. Similarly the exclusion from
the area of private forest is also to
be strictly worked out on the
consideration of actual cultivation
as on the appointed day and the
owner’s structure if any
mentioned under Section 3(2) ofSunny Thote 218 of 373
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Act.
Para 24
4. The SDO has no jurisdiction to Pg. 56
declare additional area of 23 acres
2 ghuntas and 12 annas as private
forest and exclude therefrom the
area of 24 acres 32 ghuntas 12
annas under the provisions of the
Private Forests Act.
Order:
1. The case was remanded to the
SDO for holding further inquires and
for its disposal according to law
keeping in view the observations
made in this judgement.
2. The SDO should call on both the
parties to put in their say and such
other additional evidence as they may
like to adduce in support of their
pleas.
9. 25th Respondent No. 2 made an Exh
July Application to the Tahsildar and Para II2
1991 A.L.T Thane for declaration that he Pg. 59
was a tenant of Respondent No. 1 in
respect of the area admeasuring 7
hectares and 38 ares (approximately
17.5 acres) out of the said gat no.
59/1.
10. 15th The Tehsildar by his order declared Exh
March that Respondent No. 2 is a tenant of Para II
2004 Respondent No. 1 in respect of the Pg. 59
area admeasuring 7 hectares and 38
ares (approximately 17.5 acres).
2 Forms part of the written submissions submitted by Respondent No. 2 as part of his
intervention application before the SDO (Part of Exh B to the WP 3205 of 2018)
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11. 13th Having succeeded in getting himself Exh
Decem declared as a tenant of Respondent Para IX
ber No. 1 in respect of the area Pg. 63
2004 admeasuring 7 hectares and 38 ares
(approximately 17.5 acres),
Respondent No. 2 filed an
intervention application before the
SDO seeking that:
(i) the SDO declare that the land
admeasuring 7 hectares and 38
ares (approximately 17.5 acres)
is in actual and physical
possession and cultivation of
Respondent No. 2 as an
agricultural tenant as held by
the Tehsildar order dated
15.03.2004.
(ii) the said land is an agricultural
land and was never a forest or
a private forest including on
30.08.1975 and does not vest
and was never vested in the
state government and
(iii) that the provisions of Private
Forests Act do not apply to the
said land.
(Note: The land that Respondent No.
2 seeks to exclude is in addition to
and not a part of the the 24 acres that
Respondent No. 1 seeks to exempt
from acquisition under the
Maharashtra Private Forest Act)
12. 18th The Petitioner opposed Respondent Exh
Decem No. 2’s intervention application on Pgs. 64-72
ber inter-alia the following grounds:
Sunny Thote 220 of 373 ::: Uploaded on - 25/02/2026 ::: Downloaded on - 27/02/2026 21:51:24 ::: WP-10024-2023.odt 2004 1. The status of Land in Gat No 59/1 Para 2/
as forest land had never been Pgs. 66-67
disputed by Respondent No. 1 and
that the issue had only been re 24
Acres sought to be excluded/
substituted, and that the area claimed
by Respondent No. 2 did not fall
within this 24 acre area.
Para 5/Pg.
2. Moreover the 7/12 extracts in 1975 68
did not show that any part of the land
was under cultivation. Accordingly
the 7/12 extracts of 1981 & 1987
showing cultivation by Respondent
No. 2 in two subsequent years only,
were irrelevant.
Paras 7
3. The orders passed by the Tehsildar and
confirming the tenancy of 9(f)/Pgs.
Respondent No. 2 under the BTAL 69 and 71
Act had been obtained without
joining the Petitioner and ex parte
qua Respondent No.1
Note: Pursuant to the intervention
application filed by Respondent No.
2, the Second SDO Order excluded
17 acres (7 hectares) of land from the
said land on the ground that the same
were under cultivation by
Respondent No. 2 as a tenant of
Respondent No. 1.
13. Respondent Nos. 3-7 also claim to be
in possession of some portions of the
subject land. However, these
Respondents raised their claims for
the same when the matter was
pending before MRT for the second
time i.e., when the Second SDO
Order was being challenged. The case
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of these Respondents is as follows:
1. Respondent Nos. 3, 4 and 5
claimed to be in possession of land
within the 24 Acre area sought to be
excluded from acquisition by
Respondent No. 1, which they
alleged they had purchased from
Respondent No. 1 in 1980 (5 years
after the appointed day under the
Maharashtra Private Forests Act).
2. Respondent Nos. 6 & 7 claim to
have purchased 19 gunthas
(approximately 0.5 acre) of land in
Gat No. 59/1 from Smt Kusum
Vasant Salkar & 3 others of her
family, who in turn claimed to be in
possession of 19.65 gunthas of land
in Gat No 59/1 that were acquired by
them by way of adverse possession
against Respondent No. 1. The
Petitioner was not joined as party to
the suit filed by Smt Kusum Vasant
Salkar and her family claiming
adverse possession againt
Respondent No. 1, which suit came
to be decreed ex-parte.
Note 1: Though Respondent Nos. 3-7
claim ownership of certain portions
of the subject land, they have never
appeared nor filed any replies in the
current proceedings before this
Hon’ble Court.
Note 2: These Respondents claim to
be owners of certain portions of the
subject the land only after 30th August
1975 i.e., after the land came to be
vested with the State Government by
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virtue of Section 3(1) of the
Maharashtra Private Forest Act.
14. 27 th
The SDO finally passed an order in Exh D
Decem the matter that had been remanded to Pg. 73-86
ber it by virtue of the MRT Order dated
2004 15th October 1982 (after a period of
22 years) [“Second SDO Order”].
The SDO framed the following three
issues:
(i) Whether the said land is
a ‘Forest/Private Forest’ within
the meaning and definition of
Private Forest u/s2(f)(iii) of the
Maharashtra Private Forests
Act?;
(ii) Whether any portion of
the said land qualifies for an
exemption under Section 3(2)
of the Maharashtra Private
Forests Act?; and
Pg 76
(iii) What should be the area
if any to be vested in the State
Government?
Answering the above issues, the
order held as under:
In answer to Issue 1:
(i) The SDO found that Respondent
No. 1 had confirmed having received
the Notice u/s 35(3). The SDO
rejected Respondent No. 1’s
contention that the notice under
Section 35(3) was invalid on the
ground that was issued to “D.
Dayabhai & Company” instead of “D
Dayabhai & Company Private
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did not invalidate the Notice. The
SDO accordingly held that sec 2(f)
(iii) was applicable to the said land.
In answer to Issue 2:
(ii) The Deputy Collector however
held that 24 acres of S No 59/1
[being the land in respect of which Pgs. 76-79
Respondent No. 1 had sought an
exemption on the ground of
horticulture and construction of well
and farm house] would be required to
be excluded from S No 59/1 as:
(a) S. No. 59/1 it not a continuous
Pg. 77
portion of land but are multiple
pieces of land scattered intermittently
with various survey nos.
(b) the topographic situation shows
Pg. 77
that these scattered pieces of land do
not form a continuous part of the
Borivali National park which could
qualify on its own, merit to be a part
and parcel of the national park.
(c) there exists permanent structures
Pg. 77
such as go-downs on these scattered
pieces of lands.
(iii) The Deputy Collector held that
Respondent No. 2 was in possession
Pg. 84
and cultivation of 18 Acreas 18
gunthas out of the said land and
excluded the same u/s 3(2) of the
Private Forests Act .
(iv) Moreover the Deputy Collector
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held that an area of 17 Acres 19 G Pg. 85
was also required to be released as
Village settlement (Konkanipada),
although this had never been raised in
the Inquiry by any party thereto.
In answer to Issue 3:
(v) The Deputy Collector declared
the balance area of 132 Acres 18 Pg. 85
gunthas 4Anas as having vested
under the 1975 Act.
15. 15th Appeal No. 165/2005 was filed by
April the Petitioner against the Second
2005 SDO Order.
16. 2009 Cross Appeal No. 229/2009 was filed
by Respondent No. 1 against the
Second SDO Order
17. 30th The MRT passed an order (“Second Exh E
June MRT Order” / Impugned Order) Pgs. 87-
2017 dismissing the Petitioner’s Appeal No 115
165 and allowed Respondent No. 1
Appeal No 229.
On a perusal of the Second MRT
order, it appears that the following
issues were raised by Respondent No.
1 before the MRT:
a) Whether the ‘issuance of notice’ Para 13,
u/s. 35(3) of the Indian Forest Act Pgs. 109-
was sufficient for declaring the 110
land to be a ‘private forest’
without ‘service of said notice’ on
the land owner.
b) the entire land covered under Gat
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No. 59/1 was and is a non-forest Para 2(q),
land in fact on the appointed day Pg. 96
i.e., 30.08.1975
Note: The above two points have
been raised by Respondent No. 1
for the first time since the
issuance of the notice u/s 35(3) of
the Indian Forest Act on
29.08.1975 i.e., after a period of
almost 34 years
c) that the said land was used for
horticulture, stone queries, go-
downs, residential units and was Para 2(q),
and is having structures Pg. 96
thereupon.
Para 17,
d) that the notice u/s 35(3) of the
Pg. 112
Indian Forest Act was issued in
the wrong name and not that of
Respondent No. 1
The MRT held as follows:
(i) The MRT placed reliance on
the following judgements of
this Hon’ble Court:
A. Dr Arjun Sitaram Nitanwar
vs Tahsildar, District-
3
Thane to assert that unless
a notice u/s. 35(3) of the
Indian Forest Act is served
on the owners the land in
question will not vest in the
State Government as a
private forest.
3 2015 (6) Mh.L.J. 634
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Note: Petitioners Reply:
a. In Dr. Arjun Nitanwar, the
notice in question was dated
13 April 1957, and there
was no evidence that this
notice had ever been served
on the original owner.
b. Such a notice constitutes a
“stale notice” as explained
in Godrej & Boyce. The
Supreme Court in Godrej &
Boyce held that stale
notices cannot be acted
upon. In contrast, in the
present case, the notice was
issued in close proximity to
30 August 1975. It therefore
qualifies as a “live notice”
under the principles laid
down in Godrej & Boyce
and can validly be acted
upon.
B. Ozone Land Agro Pvt Ltd
vs State of
4
Maharashtra which dealt
with a case where there was
no proof of service of the
notice u/s. 35(3) of the
Indian Forest Act on the
owner of the land.
Note: Petitioners Reply:
a. In Ozone, it was undisputed
that only the issuance of the
show-cause notice was
established; there was no
4 2016 (1) Mh.L.J Pg. 483
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proof that the notice was
ever served. In contrast, in
the present case, it is an
admitted fact that the notice
under Section 35(3) was not
only issued but also duly
served on the Respondent.
C. Satellite Developers Ltd vs
State of Maharashtra5 to
assert that where the notice
u/s. 35(3) of the Indian
Forest Act was not acted
upon, this Hon’ble Court in
its writ jurisdiction set aside
the acquisition without
further reference to the
SDO.
Note: Petitioners Reply:
a. In Satellite Developers, the
notice in question was issued in
1956, and thereafter no steps
were taken to provide a hearing
to the owners, nor was any final
notification under Section 35(1)
of the Indian Forest Act issued.
b. In contrast, in the present case,
the notice was not only issued
and duly served on the
Respondent, but the
Respondent himself filed an
application under Section 6
and was afforded an
opportunity of hearing.
(ii) The MRT placed reliance on Paras. 13-
the judgment of the Hon’ble 16/Pgs.
5 WP (OS) 2084 of 2013 decided on 26th November 2014
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Supreme Court and Godrej and 109-112
Boyce and wrongly held that
as the Notice u/s 35(3) was
required to be served on the
land owner and as the same
had not been served before
30.08.1975 the acquisition u/s
2(f)(iii) was illegal.
Note:- Petitioner’s
Contentions:
a. the MRT and Respondent No. 1
have wrongly interpreted the law
laid down by the Hon’ble
Supreme Court in Godrej and
Boyce.
b. The Supreme Court in Godrej
and Boyce held that while WP
actual service of notice under Ground
Section 35(3) of the Indian g/Pgs. 17-
Forest Act is necessary, it did 18
not require such notice to be
served before 30th August
1975.
c. The Apex Court overruled
Chintaman G. Velkar6 which
6 (2000) 3 SCC 143
“18. In our view, the proper clue in this behalf is provided by sub-clause (iii) of Section 2(f)
itself. It will be noticed that in cases where a final notification has been issued under Section
35(1) the entire notified land would automatically vest in the State on the appointed date,
namely, 30-8-1975. But in the case where only notice has been issued as per Section 35(3)
before the appointed day, namely, 30-8-1975 — the Maharashtra Legislature thought that
the entire property covered by the notice in the State need not vest but it excluded 2
hectares out of the forest land held by the landholder. That was the consideration for not
allowing the benefit of an inquiry under Section 35(3) and for not allowing the notification
to be issued under Section 35(1) of the 1927 Act.
19. In our view, the legislature has not made any discrimination in regard to the matters where
notification had been issued under Section 35(1) of the Forest Act, 1927 on the one hand
and in cases where notification had not been issued and the matter stood still at the stage of
notice under Section 35(3) on the other. In the latter cases, the legislature thought it fit to
exclude 2 hectares of the landholder from vesting. If that was done, a notice that was issued
under Section 35(3) would itself be sufficient and if such notice was issued before the
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had held that mere issuance of
a notice under Section 35(3) of WP
the Indian Forests Act is Ground
sufficient and service is not g/Pgs. 17-
required under Section 2(f)(iii) 18
of the Maharashtra Private
Forests Act.
d. The Hon’ble Supreme Court
also approved the view of the WP
Full Bench of this Hon’ble Ground
Court in Janu C. Waghmare g/Pgs. 17-
which upheld the 18
constitutional validity of the
Maharashtra Private Forest
Act, observing as follows:
(i) Section 2(f)(iii) of the
Maharashtra Private Forest Act
covers land in respect of which
merely a notice has been issued to
the owner and his objection may
have remained unheard till 30th
August 1975 when Section 35 of
the Indian Forest Act was
repealed. Accordingly, it was
conceded by the Government of
Maharashtra that such objections
could be heard under Section 6 of
the Maharashtra Private Forest Act
(Para 43/Pg. 28)
(ii) Under Section 6 of the
Maharashtra Private Forest Act,
owners of land that is sought to
be decelerated as a forest would
have an opportunity of raising
objections to the proposed
appointed day i.e. 30-8-1975 the land would vest in the State subject, of course that the
Collector has to specify the particular extent of 2 hectares which can be retained by the
landholder. There is no need for any service of such notice before 30-8-1975, nor for an
inquiry nor for a notification under Section 35(1).”
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declaration and of satisfying the
government that their lands are
not and cannot be treated or
declared as forest (Para 43/Pg.
29)
e. The MRT misinterpreted Godrej
and Boyce by wrongly WP
concluding that it was held that Ground
notice must be served before g/Pgs. 17-
30th August 1975. This is neither 18
the finding in Godrej and Boyce
or even otherwise a correct
statement of the law.
f. In the Godrej case, the
Supreme Court (paras 71, 72, WP
73, and 74) held that notices Ground
issued in reasonably close h/Pgs. 18-
proximity to the 19
commencement of the Private
Forests Act are considered
“live” and actionable. In the
present case, the notice was
issued on 29th August 1975 i.e.
in extremely close proximity to
30th August 1975 (the
appointed day) and served on
4th September 1975, qualifying
it as a “live” or “pipeline”
notice as per the judgment in
Godrej and Boyce. Despite this
being highlighted in the
Synopsis of Submissions filed
before it by the Petitioner, the
MRT has misapplied this
binding precedent without
justification.
g. In this case, a notice under
Section 35(3) of the Indian WP
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Forest Act was issued on Ground
29.08.1975, just before the i/Pgs. 19-
commencement of the Private 20
Forests Act, and served on
04.09.1975,
which fact has not been
disputed. Therefore, the issue
of “non-service” of the notice
does not arise. In this case, the
notice was acted upon by the
Petitioner taking possession of
168Acres out of 193Acres
(excluding 24A meant for
exchange), subject to two
rounds of proceedings u/s. 6 of
the Private Forests Act.
h. Upon reviewing the Second
MRT order dated June 30, 2017
/ Impugned Order, it is evident
that the MRT relied on the
Hon’ble Supreme Court’s
decision in Godrej and Boyce.
However, it is clear that the
MRT misinterpreted the law
laid down by the Hon’ble
Supreme Court therein.
BRIEF FACTS IN GODREJ AND
BOYCE:
(a) The facts in Godrej and Boyce’
case were that Godrej acquired land
in Vikhroli, Mumbai by a registered
deed of conveyance dated 30th July,
1948 from the successor-in interest of
Framjee Cawasjee Banaji, who, in
turn, had been given a perpetual lease
of the land by the Government of
Bombay on 7th July, 1835. The land
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was described in the perpetual lease
as “wasteland” and one of the
purposes of the lease was to cultivate
the wasteland.
(b) The appeals before the Hon’ble
Supreme Court concern an area of
133 acres and 38 gunthas of land
bearing Old Survey Nos. 117, 118
and 120. 72.
(c) Then, there was an Act passed,
abolishing these estates. After
referring to the salient features of this
Act, it was stated that Godrej did not
accept that the lease was brought to
an end by the provisions of this Act
and decided to contest the stand of
the State Government. It filed a suit
in this court for declaration of its
ownership and that the Abolition Act
had no application to the lands in
question. Though the suit was
contested by the State Government,
later on, there was a consent decree.
(d) Consequently, the Development
Plan for City of Bombay, including
Vikhroli, was published on 7th
January, 1967 and the next
development plan was published in
1991. In both the plans, the disputed
land was described as residential.
Thereafter, Godrej applied for and
sought development permissions.
(e) Later on, the Urban Land
(Ceiling and Regulation) Act, 1976
intervened, but M/s. Godrej earned an
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exemption from the State
Government so that the provisions of
this Act do not apply to the lands and
they were exempted accordingly.
After this order of exemption was
passed, Godrej applied for and was
granted permission by the Municipal
Corporation of Greater Mumbai to
construct multi-storeyed buildings
and it constructed 40 residential
(ground + 4 and ground + 7)
buildings, one club house and five
electric substations. Over a couple of
thousand families occupy these
buildings. Further construction was
also made for a management institute
and other residential buildings.
(f) That is how it was aggrieved by a
notice bearing no. WT/53 issued to
Godrej under section 35(3) of the Act
of 1927 and which was published in
the Bombay Government Gazette of
6th September, 1956. Godrej
contested that and even when they
had filed the earlier suit and the
consent decree was passed therein on
8th January, 1962, issuance of such a
notice was never made known to
them. It was stated that it searched
the details of this notice in the
Department of Archives. The notice,
as published in the Official Gazette,
bore no date and according to Godrej,
it was not served upon it. It was never
acted upon. The subsequent events
raised doubt whether the notice was
issued or served on Godrej
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PETITIONER’S SUBMISSIONS:
The Petitioner submits that on a true
and correct reading, the following
legal principles emerge from the
Supreme Court’s ruling in Godrej and
Boyce:
A. Reading Paras 72 and 74 of
Godrej and Boyce, the following
propositions will emerge:
a. That according to the law
laid down by the Supreme
Court, 2(f)(iii) of the
Maharashtra Private Forests
Act “is in a sense a savings
clause”;
b. In P. Ramanatha Aiyar’s
Advanced law Lexicon, 4th
Edition, the term “saving
clause” has been defined as
under:
“A “saving clause” is
ordinarily a restriction in a
repealing Act and saves
rights, pending proceedings,
penalties, etc., from the
annihilation which would
result from
unrestricted repeal.”
c. Section 2(f)(iii) of the
Maharashtra Private Forests
Act i.e. the saving clause is
meant to save “pipeline
notices”.
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mean“…notices issued in
reasonably close proximity to
the coming in to force of the
Private Forests Act which
were, “live” and “could be
acted upon”.
e. Even in para 74, the
Supreme Court has held
that:
“…Section 2(f)(iii) of
the Private Forests Act is in a
sense a saving clause for
pipeline notices issued under
Section 35(3) of the Forest
Act…”
f. Since Section 2(f)(iii) of the
Maharashtra Private Forests
Act has been interpreted to
be a savings clause meant to
save notices which have
been issued under Section
35(3) of the Indian Forest
Act such that they would be
considered to be live and
could be acted upon, the
only interpretation that can
be placed is that what was
saved is notices that were
“issued” in reasonably close
proximity of the
Maharashtra Private Forests
Act.
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service as well as
proceedings with regard to
settling disputes u/s. 6 of
the Maharashtra Private
Forests Act could be
completed after 30th August
1975.
h. Any other interpretation if
placed would mean that the
savings clause has become
redundant because even if a
notice were to be issued
within time, it would not be
acted upon unless including
service of the same – only
on account of the Indian
Forest Act being repealed.
i. The Statement of Objects
and Reason of the
Maharashtra Private Forests
Act inter alia provides that
it is considered expedient to
acquire private forests in
Maharashtra generally for
conserving their material
resources and protecting
them from destruction or
over exploitation by their
owners.
j. The provisions of the Indian
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general public. Thus even if
therefore a purposive
interoperation is to be
placed on a beneficial piece
of legislation, it is trite law
that overall intention of the
legislation is to further the
provisions of the act and not
to defeat the same. The
same principle has been
held by the Hon’ble
Supreme Court in
International Ore &
Fertilizers (India) P. Ltd. vs.
ESI Corporation7 observing
in the context of the
Employees’ State Insurance
Act, 1948 that:
“4. … We agree with the
decision of the High Court
that while construing a
welfare legislation like the
Act and the notification
issued thereunder a liberal
construction should be
placed on their provisions
so that the purpose of the
legislation may be allowed
to be achieved rather than
frustrated or stultified…..”
B. The observations made by the
Hon’ble Supreme Court in Paras
56-61 of Godrej and Boyce and
in particular para 61 thereof that
the word “issue” appearing in7 (1987) 4 SCC 203
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service of the show cause notice
as postulated in Section 35 of the
Indian Forest Act were made in
the context of interpreting the
provisions of Section 35 of the
Indian Forest Act. In other
words, as observed by the
Supreme Court in para 61,
applying the principle that a
words must be construed in the
context that it is used, the
Supreme Court held:
“…By making reference in
Section 2(f)(iii) of the Private
Forest Act to “issue” in Section
35 of the Forest Act, it is clear
that the word is dressed in
borrowed robes”
C. It is for this reason that the
Hon’ble Supreme Court in para
61 has held as follows:
“…Once that is appreciated
(and it was unfortunately
overlooked in Chintamani) then
it is quite clear that “issued” in
Section 2(f) (iii) of the Private
Forests Act must include
service of the show-cause
notice as postulated in Section
35 of the Forest Act.”
D. The context in which the
Hon’ble Supreme Court has
construed the word “issue” to
include “service of the showSunny Thote 239 of 373
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WP-10024-2023.odtcause notice” was clearly in the
context of the object underlying
the provisions of the entirety of
Section 35 of the Indian Forest
Act.
E. In other words, the Supreme
Court has come to a conclusion
that service of a notice is
required for the purposes of
Section 35 of the Indian Forest
Act to make it effective. It has
not come to the conclusion that
service of the notice is required
prior to 30th August 1975 in order
for it to be saved under section
2(f)(iii) as a “pipeline notice”.
Any other interpretation if placed
on para 61 vis a vis para 74,
would mean that there is an
apparent inconsistency between
the conclusion in Para 61 vis a
vis the conclusions of para 72
and 74.
F. In fact the expression
“By making a reference
in Section 2(f)(iii) of the Private
Forest Act to “issue” in section
35 of the Forest Act, it is clear
that the word is dressed in
borrowed robes…”
means that the word
“issue” has been borrowed from
Section 35 of the Indian Forest
Act and must therefore be
interpreted in that context toSunny Thote 240 of 373
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cause notice in order to make
the provisions of Section 35(4)
to (7) of the Indian Forest Act
effective.
G. On a comparison of Section 21
of the Maharashtra Private
Forests Act with the provisions
of Section 35 of the Indian
Forest Act it is clear that whereas
in the case of the Indian Forest
Act, Section 35, requires
issuance of the service of the
notice prior to the issuance of a
final notification under Section
35(1), in case of Maharashtra
Private Forests Act, issuance and
service of the notice are steps
that follow subsequent to the
publication of the notification.
To read the words “issued” under
Section 2(F)(iii) as “issued and
served prior to 30.08.1975”
would be contrary not only to
para 72 and 74 of the judgment
in Godrej and Boyce but also to
the provisions of the
Maharashtra Private Forests Act,
particularly section 21 thereof.
H. Therefore the conclusion of the
Supreme Court in para 72 that
Sec 2(f)(iii) of Maharashtra
Private Forests Act is not
intended to apply to notices past
their shelf life but only pipeline Para
notices issued reasonably close 8/Pgs.
106-108
to the coming into force of theSunny Thote 241 of 373
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could be acted upon will bring
within the savings clause a
notice issued prior to 30.08.1975
under Section 35(3) of the Indian
Forest Act, even though served
after 30th August 1975, but in
close proximity to the Section
35(3) notice.
(iii) That although the earlier
Appeal & remand were only re
the 24 acres sought to be
released/ exchanged &
although Respondent No. 2
was not claiming this area or
any part thereof, the Deputy
Collector was entitled to
consider Respondent No. 2’s
claim to be in WPGroun
d r/Pgs.
possession/cultivation under
25-26
Section 3(2) read with Section
6 of the Private Forests Act.
The MRT held that the
SDO/Deputy Collector was not
restricted only to the issue of
24 acres raised by the
Respondent No. 1.
Note:- Petitioner’s Reply:
a. The 7/12 extracts for the
subject land in August 1975 do not
indicate any cultivation by
Respondent No. 2 or anyone else.
Instead, they show the land consisted
of “palmyra trees and a desertedSunny Thote 242 of 373
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never contended either before the
State Government or under the Sec. 6
inquiry that the land was being WP
cultivated by a tenant – either in the Grounds
first or second round of proceedings s-t/Pgs.
before the SDO. Moreover, 26-27
Respondent No. 2 admitted before
the Tahsildar that he had no tenancy
receipts from Respondent No. 1.
There is no credible evidence to
support Respondent No. 2’s claim of
cultivating the subject land prior to
the appointed day. (Ground r/Pgs. 25-
26 of WP).
b. Respondent No. 2's application
for declaration of tenancy was made WP
on 25-7-1991 ("tenancy declaration Ground
application") i.e., 16 years after the w/Pg. 28
property was vested completely with
the government and nearly 40 years
after “Tillers’ Day”. The Petitioner
was not made a party to the tenancy
declaration application. (Grounds s-WP
t/Pgs. 26-27 of WP) Ground
x/Pgs. 28-
c. W.r.t the Tahsildar order 29
declaring Respondent No. 2 as a
tenant (“Tahsildar order”), the
Petitioner submits as follows:
c-1 The Tahsildar order refers to a
reply filed by Respondent No. 1., but
the contentions taken in the said reply
to do not find mention
anywhere in the order (Ground w/Pg.
28 of WP).
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c-2 The Tahsildar’s order incorrectly
states that Respondent No. 1 had the
land released from acquisition. In
reality, Respondent No. 1 did not
secure the release of any part of the
land. Respondent No. 1 admitted that
the entire subject land (Gat. No.
59A/1) was forest land but only
requested that 24 acres not be taken
into possession, offering to surrender
an equivalent area in other gat
WP
numbers instead. Of the 193 acres,
Ground
168 acres were acquired and are now y/Pgs. 29-
part of the Sanjay Gandhi National 30
Park, which includes the land
claimed by Respondent No. 2.
Importantly, Respondent No. 2 never
raised any dispute under Section 6 of
the Private Forests Act. The inquiry
before the SDO Thane pertains only
to the remaining 24 acres, which does
not include the land occupied by
Respondent No. 2.( Ground x/Pgs. 28
-29 of WP)
c-3 The Tahsildar order mentions that
in the 7/12 extracts between 1981 and
1987 the cultivation column shows
the name of the Respondent No. 2.
This would be of no consequence
because the land was already
acquired and deemed to be vested in
the State Government as on
30.08.1975. Surreptitious
insertion of the Respondent No. 2’s
name in the cultivator’s column for
the brief period between 1981 and
1987 could not therefore take the
land out of the description of forest
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land under Section 3(2) of the Private
Forests Act. There is no explanation
why the name of Respondent No. 2
does not appear in the said column
before 1981 and after 1987. The table
showing the columns “Year” and WP
“Cultivation” clearly show that from Ground
1966 to 1973 and as well as in 1974 bb/Pgs.
and 1975 the land was uncultivated 30-32
and quarry land. This table does not
support the claim that Respondent No
2 was cultivating the land much prior
to ‘Tiller’s day’ as required under the
BT and A L Act 1948. (Ground y/Pgs.
29 -30 of WP).
WP
c-4 In the proceedings before the Ground
Tahsildar, Respondent No. 1 dd/Pgs.
explicitly denied that Respondent No. 31-32
2 was his agricultural tenant. Notably,
the Tahsildar’s order fails to disclose
the date on which it was issued.
Furthermore, the order provides an
explanation for the absence of rent
receipts from Respondent No. 1 to
Respondent No. 2, despite
Respondent No. 2 not offering any
such explanation in his application
(Ground z-bb/Pgs. 30-31 of WP).
d. The criminal proceedings cited
by Respondent No. 2 in his
intervention application before the
SDO arose from his prosecution
under Section 26 of the Indian Forest
Act for alleged encroachment on
forest property and construction of
structures. The criminal court, based WP
on the evidence presented, concluded Ground
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that the structures were older than the ee-gg/Pgs.
period of the alleged encroachment, 32-33
leading to Respondent No. 2’s
acquittal, which was upheld by the
Mumbai High Court. However, it is a
well-established legal principle that a
judgment in one proceeding is neither
conclusive nor binding in another.
Each case must be decided based on
the evidence specific to its
proceedings (Ground dd/Pgs. 31-32
of the WP).
e. Respondent No. 2 failed to
provide any evidence proving that he
was lawfully cultivating the land as Paras 4-6/
of 30.08.1975. The criminal court Pgs. 103-
orders in both proceedings contain no 106
finding that Respondent No. 2 was in
possession of 18A 18g prior to
30.08.1975. The Trial Court’s order
in Criminal Case No. 5227/82 only
mentions 4 acres, while the High
Court’s order in Criminal Appeal No.
172/93 does not specify any area. WP
Thus, reliance on these criminal Ground
proceedings is misplaced and reflects jj/Pg. 33
a lack of application of mind.
(Grounds ee-gg/Pgs. 32-33 of the
WP)
(iv) That the Deputy Collector was
entitled to suo moto take cognizance
of the village settlement
(Konkanipada) (Paras 4 to 6, Pg 103-
106).
(Note: Petitioner’s Reply:
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a. No application was made under
Section 6 of the Private Forests Act to WP
claim exclusion of the village Ground
settlement. The record shows that no kk/ Pg.35
such issue was raised by any party.
The then SDO did not ask any parties
to address the exclusion of the village
settlement, and no representative of
the settlement appeared or made any
WP
submissions supporting this claim.
Ground
There was no material or justification
ll/Pgs. 35-
for the SDO to consider such a claim
36
or order its exclusion, as stated in the
impugned order (Ground jj/Pg. 35 of
WP).
b. As the inquiry was remanded
for consideration of the limited aspect
of whether the 24 acres
approximately was Forest or not, WP
there was no jurisdiction for the then Ground
SDO to decide anything else. oo/Pgs.
(Ground kk/Pg. 35 of WP). 35-36
c. The Petitioner had not been
heard whatsoever on the aspect of
whether or not the village settlement
area (17A 19g) could be legitimately
excluded from forest area. The then
SDO did not even give the appellant
an idea that he was going to decide
such an issue (Ground ll/Pgs. 35-36
of WP).
d. Following the Bombay High
Court’s orders in WP 305/95, eviction
proceedings are underway for
encroachers in the village settlement. Para 17/
Many encroachers have made Pgs.112-
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payments as required by the High 114
Court to qualify for alternative
accommodation. Given this, there
was no need to consider whether the
village settlement fell outside the
scope of ‘Forest’ under the Private WP
Forests Act. The Petitioner could Ground
have presented the records of these m/Pg. 23
proceedings to the SDO if the SDO
had indicated any intention to
consider the village settlement’s case
(Ground oo/Pgs. 35-36 of WP).
(v) That the Notice was also bad as it
was addressed to D Dayabhai & Co
and not to D Dayabhai & Co Pvt.
Ltd. (Para 17, Pgs. 112-114).
(Note: Petitioner’s Reply:
e. The MRT ruled that no notice
was “issued” or “served” on
Respondent No. 1 because the notice
was addressed to “D Dayabhai and
Co.” while the name on the 7/12
extract was “D Dayabhai and Co. Pvt.
Ltd.” The SDO dismissed this as a
clerical error. The MRT’s reasoning
overlooks the fact that Respondent
No. 1 never claimed there was
another entity called D Dayabhai and
Co. owning the land. Respondent No.
1 requested an inquiry under Section
6 of the Private Forests Act and never
argued that the notice was not
received by it or that the notice was
misleading or that the land in
question was not theirs or that the
land in question is not a forest.
Additionally, Respondent No. 1
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offered land from other holdings (gat
nos. 59/2, 59/3, and 59/16) for
exchange, which they would not have
done if they believed their land was
not subject to acquisition. (Ground
m/Pg. 23 of the WP)
Appeal No 165 was dismissed and
Appeal 229 was allowed and it was
held that the said land was not
covered by the Forest Acquisition
Act.
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ANNEXURE 'C'
WRITTEN NOTES ON BEHALF OF RESPONDENT NO.1:-
1. Background:-
a. The Respondent No.1 is the owner of subject land
admeasuring 193 acres 07 guntha 4A. The Indian Forest Act,
1927 (IFA) came to be published in official gazette on
27/09/1927. It contained Section 35. Said Section 35 deals
with the aspect of protection of forest for special purpose by
the State Government by way of publication of notification in
the Official Gazette under Section 35 (1). But before that
under Section 35 (3), Government is under obligation to issue
the notice to the owner through an officer authorised by State
Government, calling upon such owner to show cause within a
reasonable period why notification under Section 35 (1)
should not be made? Said Section 35 (3) stipulates calling for
objection, giving opportunity of hearing to the owner, passing
of order by the authorised officer, before publication of
notification under Section 35 (1).
b. It is pertinent to note that on 14/08/1975 a legislature was
passed under the name and style as Maharashtra Private
Forest (Acquisition) Act, 1975 (MPFA). The president of
India gave ascent to MPFA on 25/08/1975. MPFA was
published in Maharashtra Government Gazette Part IV on
29/08/1975. MPFA vide clause 2 (a) stipulates that appointed
day means the day on which said act comes into force. Said
date was notified as 30/08/1975 vide G.N.R. and F.D.
No.PRF1073/40845-F-2 dated 29/08/1975 The section 24 (i)
of MPFA (acquisition 1975) is reproduced as below:
“On and from the appointed day, sections 34a, 35, 36, 36a,
36b, 36c and 37 of the Forest Act shall stand repealed”.
Whereas, it is obvious, on record the MPFA Act
(Acquisiton 1975) received assent of the President on 25th
August, 1975 published in Gazette on 29 th August, 1975.
This itself shows that the Forest Department was very
much aware that Section 35 is going to get repealed and
hence with the malafide intention has issued a notice under
section 35(3) on 29th August, 1975 to the wrong person.
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c. Admittedly, during the period from 27/09/1927 till
29/08/1975 (for about 48 years) it was never claimed by the
State Government that subject land is forest and never issued
any notice under Section 35 (3) of IFA to the owner of subject
land calling upon the owner as to why the subject land should
not be protected as forest. In fact, during said period subject
land was subjected to lawful transfer by registered
instruments, cultivation, horticulture, NA user, quarry
purposes, etc. Kindly see Exhibit A, Exhibit B, Exhibit C,
Exhibit D of affidavit in reply of the Respondent No.1 dated
25/11/2019. The said documents are at page no.283 i.e.
Bombay Panvel Regional Plan of 1970, NA Permission
granted by Collector Office Thane dated 14/05/1963 at page
no.284, NA Permission granted by Collector Office Thane
dated 15/12/1964 at page no.286, NA Permission granted by
Collector Office Thane dated 25/07/1973 at page no.287, 7/12
extract for the period from 1956 to 1972-73 at page no.288-
289 recording cultivation of rice, existence of structures,
horticulture, paddy, etc. upon subject land.
d. It is only after MPFA getting ascent from President and
having realised that Section 35 is repealed, State through
Forest Department arbitrarily made show about issuance of
notice allegedly dated 29/08/1975 under Section 35 (3) of IFA
(impugned notice). In as much as, the notice issued a day
prior to the repealing of the provision of section 35 ceased to
have effect after the repeal of section 35.
e. The Petitioner has not submitted in the present petition any
documentary proof about actual issuance of impugned notice
on alleged date i.e. 29/08/1975.
f. In para 3 (d) of the Petition it is stated that impugned notice
was served on 04/09/1975. The position of law is that mere
issuance of notice is not sufficient but its service is also
important and issuance cannot be divorced from service of
notice. Section 35 (3) of IFA necessarily entail service on the
owner and opportunity to file objection, to adduce evidence
and to be heard. Section 35 (5) of IFA require service of such
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notice as per Civil Procedure Code and publication as
prescribed. In the case of Godrej & Boyce (2014) 3 Supreme
Court Case 430, above stated position of law is laid down by
the Hon’ble Supreme Court. The notice dated 4th September,
1975 after repeal of the provision was claimed to be issued to
D Dayabhai & co. though it was obvious that the land owner
were D.Dayabhai co.& pvt.ltd. and that D Dayabhai & Co.
was entirely different entity and the real owner of the land
was never served with a notice under section 35(3) under
Forest Act to D. Dayabhai & Co.pvt.ltd. viz. R1.
g. In the latest judgement dated 07/11/2025 in the case of Rohan
Vijay Nahar & Ors. V/s. State of Maharashtra it is specifically
held that the law settled in the case of Godrej & Boyce is a
declaration of law under Article 141 of the Constitution.
We will like to draw attention of this Hon’ble Court to
paragraph number 10 in case of Rohan Vijay Nahar & Ors.
V/s. State of Maharashtra:
10. The judgement in Oberoi Constructions Private
Limited v. State of Maharashtra (supra) was challenged
in this Court and decided by a three Judge Bench on
30.01.2014 and has been the prevailing precedent in
such matters viz. Godrej & Boyce (supra). This Court
gave the following findings:
10.1. This Court held that the mere issuance of a notice
under Section 35(3) of the IFA is not, by itself,
sufficient to treat land as a “private forest” within
Section 2(f)(iii) of the MPFA. The answer to the
principal question was returned in the negative.
10.2. Interpreting the expression “a notice has been
issued” in Section 2(f)(iii) of the MPFA, when read
with Section 35 of the IFA, the Court held that
“issuance” cannot be divorced from service. Given the
statutory scheme, a valid notice under Section 35(3) of
the IFA necessarily entails service on the owner, an
opportunity to file objections, to adduce evidence, and
to be heard. Because interim restraints may be imposed
under Section 35(4) of the IFA and penal consequences
attach under Section 35(7) of the IFA, service is
inherent to the process. Section 35(5) of the IFA,Sunny Thote 252 of 373
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prescribed, reinforces this conclusion.
10.3. On this basis, the view in Chintamani Gajanan
Velkar (Supra) that a bare, unserved notice sufficed for
Section 2(f)(iii) of the MPFA was found to have
overlooked the Bombay/Maharashtra amendments to
Section 35 of the IFA and to have proceeded on an
erroneous premise regarding the two-hectare exclusion.
It was overruled to that extent.
10.4. The Court further clarified that Section 2(f)(iii) of
the MPFA saves only “live” or “pipeline” notices, those
issued and pursued in reasonable proximity to
30.08.1975. Notices left undecided for years or decades
lapse into desuetude. The State is obliged to act within
a reasonable time; a notice from 1956-57, never taken
to its statutory culmination, cannot be revived to effect
vesting on the appointed day.
10.5. On the definitional plane, the Court reaffirmed
that the “means and includes” formulation in Section
2(c-i) of the MPFA does not dilute the primary sense of
“forest”. Lands long designated for urban use,
developed under sanctioned plans and permissions, and
integrated with municipal infrastructure could not, on
the admitted facts, be regarded as “forest” either in the
primary or extended sense of Section 2(c-i) of the
MPFA.
10.6. Recognising the expropriatory character of the
MPFA, the Court applied strict construction.
Fundamental norms of fairness and good governance
preclude unsettling settled civilian and commercial
arrangements after prolonged State inaction,
particularly where the State itself facilitated and
acquiesced in development over decades.
10.7. Even assuming arguendo that the lands were
forest, wholesale demolition and dispossession after
half a century was neither feasible nor in the public
interest on the facts recorded. The equities of third-
party purchasers and residents, the State’s prolonged
acquiescence, and the practical impossibility of
“restoration” militated against such a course.
10.8. In consequence, the appeals were allowed, the
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High Court’s judgement was set aside, and actions
premised solely on stale notices under Section 35(3) of
the IFA were quashed.
Also Kindly read para no.13 and 14 of the said judgment
in the case of Rohan Vijay Nahar. Cumulative reading of
both the judgements i.e. Godrej & Boyce and Rohan
Nahar clearly demonstrate that unless notice is legally
served and further steps under Section 35 i.e. issuance of
notification, taking over possession, giving hearing and
deciding the objection of the owner etc. are effectively
taken up, the vesting of land as private forest in State
Government under Section 3 of MPFA cannot happen.
When in the present case the validity of the proceeding
under section 6 of the Act of 1975 and process initiated
under it is vitiated because of the non-service of the notice
under section 35(3) of the Act i.e. before the appointed
date 30th August, 1975 to the original owner.
h. Admitted position is that Section 35 stood repealed as per
Section 24 of MPFA with effect from 30/08/1975. Thus after
30/08/1975 Section 35 was not in existence and therefore the
service of notice under Section 35 after 30/08/1975 is of no
effect. Petitioner admittedly has not come up with any
documentary proof or case that after 30/08/1975 they had
taken the steps under Section 35 of IFA particularly
publication of notification, taking over possession, giving
opportunity of hearing to the owner etc. In fact their witness
in cross has clearly admitted that notification under Section
35(1) 34(a) and 38 of IFA have not been published (Page No.
87 and 88 of additional compilation y Respondent No.1)
Considering these factual aspects and law laid down by
Hon’ble Supreme Court in the case of Godrej & Boyce, the
MRT vide impugned judgement dated 30/06/2017 Exhibit-E,
at Page 87 to 115 held that land in dispute is not a private
forest and accordingly dismissed the forest Appeal and
allowed another Appeal filed by the Respondent No.1.
i. Whereas in the matter of Godrej and Boyce Supra, the notices
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which were issued were not acted upon for the huge period of
27 years and hence the Hon’ble Supreme Court held that the
notices had became stale and not live and in para 56 in clear
terms has observed as follows:
56. A notice under Section 35(3) of the Forest Act is
intended to give an opportunity to the owner of a forest to
show cause why, inter alia, a regulatory or a prohibitory
measure be not made in respect of that forest. It is
important to note that such a notice pre-supposes the
existence of a forest. The owner of the forest is expected to
file objections within a reasonable time as specified in the
notice and is also given an opportunity to lead evidence in
support of the objections. After these basic requirements
are met, the owner of the forest is entitled to a hearing on
the objections. This entire procedure obviously cannot be
followed by the State and the owner of the forest unless
the owner is served with the notice. Therefore, service of a
notice issued under Section 35(3) of the Forest Act is
inherent in the very language used in the provision and the
very purpose of the provision.
j. In the present case, the forest department not only issued the
notice under section 35(3) after the repeal of the act to the
wrongful person and not to the owner but thereafter also in
the year 1982, when the Tribunal remanded the matter, the
department after 17 years i.e. in the year 1999 got the said
remanded proceedings numbered as 53/99. This clearly shows
the negligence on the part of Petitioner, which is established
as above.
2. Whereas:-
A. Admittedly, from 2018 till today Petitioner failed to obtain
any stay to the order of MRT. The order of MRT has been
effected in the revenue record. Substantial portion of land
about 104 acres has been transferred under registered
instruments to planning authority viz. TMC for various
reservations. These registered instruments of 2019 have
not been challenged by any separate legal suit/proceedings
or in the present Writ Petition by the Petitioner. The
possession of acquired land under registered instrument isSunny Thote 255 of 373
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WP-10024-2023.odthanded over to planning authority viz. TMC which is
evident from the text of registered instruments. In respect
of some of the acquired land, 3 DRCs have been issued. In
respect of land admeasuring 100 acres, acquired for park
reservation No.4, even though TMC did not issue DRC,
there are already three orders of the Hon’ble High Court
dated 22/11/2022, 28/04/2025 and 27/06/2025 whereby
planning authority TMC is directed to issue DRC. In the
7/12 extract the concerned reservation affected portion is
already mutated in the name of TMC. From TILR report it
is evident that acquired portion is situated at the eastern
boundary of the Sanjay Gandhi National Park. Otherwise
also circular dated 16/01/1996 of Government of
Maharashtra identifying the boundaries of Sanjay Gandhi
National Park is filed on record i.e. Exhibit-A of
Additional affidavit of Respondent No.1 page No.445 to
447. From said circular it is evident that the entire village
Manpada where the subject land is situate is situated at the
eastern boundary of Sanjay Gandhi National Park.
Respondent No.1 has already filed another letter dated
23/01/1986 issued by forest department itself to Deputy
Collector Thane (said letter dated 23/01/1986 is annexed
as Exhibit-B to Additional affidavit of Respondent No.1 at
Page No.448, 449) In said letter Petitioner itself has
admitted that they could not take over the possession of
the subject land. Thus, in the present matter following
become undisputed facts.
(i) There is no proof that notice was issued prior to
appointed date i.e. 30/08/1975 to the Respondent No.1.
(ii) Notice was served on 04/09/1975 (it is not served on
the actual owner as required by CPC)
(iii) There is no service or publication of notice as per
CPC.
(iv) No opportunity of hearing was given to the
Respondent No.1. No notification under Section 35(1)
came to be published.
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(v) Possession of subject land was not taken over by
Petitioner as per Sec. 5 of MPFA.
(vi) No compensation was paid by Petitioner to the
Respondent No.1
(vii) Subject land was otherwise under cultivation, N.A.
users, etc. Thus, there is no question of subject land
coming within the definition of private forest defined
under Section 2 (f) of MPFA. In the circumstances, there
is no question of acquisition and vesting of subject land in
the state government under Section 3 of MPFA.
B. Whereas the MRT in its order dated 30/6/2017 has
clearly observed and recorded in para 17 as below of
which partially been reproduced:-
“17. In view of above discussion, as the Forest Department
has failed to prove that the notice u/s. 35 (3) was
‘served’ on the land owner, Resp. No.1 in Appeal No.
165/2005 who is Appellant in Appeal No. 229/2009,
prior to the appointed day, and in fact, it has duly come
on record that the said notice was actually served on the
land owner on 4th September, 1975, i.e. after the
repealing of the provisions of section 35 of the Forests
Act, the land in dispute cannot be termed to be a
‘private forest’ as contemplated u/s. 2(f)(iii) of the Act
of 1975, inasmuch as the notice issued a day prior to
the repealing of the provision of section 35, ceased to
have effect after the repeal of the section 35. It is also
interesting to point out here that in spite of the
knowledge about the proposed repealing of section 35,
the Department of Forest right from the coming into
force of the Indian Forests Act, 1927 in the year 1927,
till 29th August, 1975, i.e. till a day prior to the
proposed repealing of the provision of section 35, did
not take any move or action so as to protect the so-
called ‘forest’ or ‘private forest’ and only a day prior to
the appointed day, i.e. 30/8/1975, on 29/8/1975 just
‘issued’ a notice which was not served on the land
owner, so as to accord him an opportunity of hearing or
representing his case in order to protect his rights….”
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C. The facts of present case are covered by two judgements
of Hon’ble Supreme Court in Godrej Boyce case and
Rohan Vijay Nahar case. Cumulative reading of both
judgments would indicate that a show cause notice
granting time for objection cannot be reconciled with
the final decision taken without service of notice and
without hearing. Mere issuance of notice cannot clothe
the State with authority to vest the land. Mere issuance
of notice under Section 35(3) of Indian Forest Act does
not result in automatic vesting on the appointed date of
the subject land under Section 3 of MPFA. Statutory
requirement of service, publication and enquiry must be
satisfied before vesting of land under section 3 of
MPFA to the State.
D. Whereas currently the maximum land in question in the
present Petition is owned and possessed by Thane
Municipal Corporation also on actual site it has
constructed 40Mtr DP Road and there is TMT bus
Depot in process, TMC has reserved and allocated the
funds for development of Garden, Maternity Home,
Park, school and for other Municipal purposes. Hence,
it is obvious that the said land is acquired silently for
the urban usage and the Respondent has been denied
any compensation. The TMC is very much aware that
the no due legal process under the MPFA has been
followed and no compensation has been paid under
MPFA. Hence, now that land has to be acquired in the
provisions of “”Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013” (RFCTLA) then owner shall
clearly fall under Section 3 (c) of the said Act and
needs to be compensated as per RFCTLA read with
Section 126 of MRTP Act. Kindly read the present note
together with the comments made in red by R1 in the
modified dates and events tendered in the court during
the course of oral argument by the counsel of R1.
E. Whereas in view of these facts, Writ Petition
No.3205 of 2018 needs to be rejected as per
MRT judgement.
Sunny Thote 258 of 373 ::: Uploaded on - 25/02/2026 ::: Downloaded on - 27/02/2026 21:51:25 ::: WP-10024-2023.odt ANNEXURE 'D' STATE OF MAHARASHTRA VS D DAYABHAI AND CO PVT LTD WP/3205/2018 PART 1 - PARTIES IN THE WP MODIFICATION/ADDITIONS MADE BY R1 Parties Referred To As The State of Maharashtra Petitioner D. Dayabhai and Respondent No. 1 Co.Pvt.Ltd (Original Owner of the Subject Land) Narayan Ganu Tangadi Respondent No. 2 (Claiming 17 acres of land) Neelaben Pravinchandra Parekh Respondent No. 3
(Claiming some portion of the 24 acres
of land that Respondent No. 1 sought
exclusion)
Tiku P Parekh Respondent No. 4
(Claiming some portion of the 24 acres
of land that Respondent No. 1 sought
exclusion)
Rajeev P Parekh Respondent No. 5
(Claiming some portion of the 24 acres
of land that Respondent No. 1 sought
exclusion)
Meghjibhai Sojibhai Patel Respondent No. 6
(Claiming exclusion from 19 i.e., about
0.45 acres guntas from the subject
land)
Kalyanjibhai Natha Patel Respondent No. 7
(Claiming exclusion from 19 i.e., about
0.45 acres guntas from the subject
land)Sunny Thote 259 of 373
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WP-10024-2023.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAY
CIVIL APPELLATE JURISDICTIONWRIT PETITION NO. 3205 OF 2018
DISTRICT : THANEModification/Additions made by R1 with its comments in the list of
dates and events submitted by the Petitioner
Sr. Date EVENT REFERENC
No. E
1. From Indian Forest Act came into force on WP Page
27/09/1927 27/09/1927. Even though it contains section No.5 & Para
to 35 contemplating issuance of notice to the No.3 (a)
29/08/1975 owner and publication of notification in
Official Gazette about any land being forest,
no such notice was ever issued during the
said period of 48 years by the State
Petitioner claiming suit land as forest.
During this period particularly on
06/07/1960 Respondent No.1 purchased suit
property and other properties from Court
Receiver Bombay in Court Auction under 2
registered Conveyance Deed. Under
subsequent registered instrument 14 acres
was sold by R1 to third parties.
Affidavit in
In 1970 suit land came to be included in reply of R-1
Bombay Panvel Regional plan and divided Exhibit B,
into 4 parts. Page No.283
Affidavit in
reply of R-1
Page No.284
N A Permissions dated 14/05/1963, to 287
15/12/1964, 25/07/1973 came to be granted
by Collector office, Thane in respect of suit
land Affidavit in
reply of R-1
Page No.288
to 289
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7/12 extract for the period from 1956 to
1972-73 records the user of suit land for
cultivation of rice, paddy, horticulture,
fruits, etc. so also the existence of various
structures.
MPFA was passed on 14/08/1975. MPFA
got ascent from President of India on
25/08/1975 and MPFA was published on
Maharashtra Gazette on 29/08/1975. Section
24 (1) of MPFA repeals Section 35 of IFA.
2. 30/08/1975 Appointed day under MPFA.
th
3. 29 Notice u/s 35(3) of the Indian Forest Act, WP
1927 (“Indian Forest Act“) was issued to Para3(a)
August
D Dayabhai & Co (“Respondent No.1”) Pg. 5
1975 re: S. No. 59/A/1 admeasuring 204 acres8
Gunthas 8 annas situated at Manpada,
Chitalsar, Thane. (“said land”).
Note (by Petitioner): It was later found that
14 acres of this land had been sold by
Respondent No. 1 to third parties prior to
29.08.1975 and that the balance area
available for acquisition was 193A 07g 4a.
Comments of R1
The notice dated 29/08/1975 is not
addressed to Respondent No.1. Respondent
No.1 is D. Dahyabhai & Co. Pvt. Ltd., who
is the owner of subject land but notice was
wrongly addressed to affiliate Company of
Respondent No.1 which affiliate company
is known as D. Dahyabhai & Co. (In fact,
there is a admission in the cross by
Petitioner’s witness that original notice is
not produced on record (Page Nos.87 & 88
of additional compilation filed by R1)
Even though notice is showing as dated R1
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WP-10024-2023.odt
affidavit
29/08/1975 there is no proof filed on record Para 7.11
by the Petitioner to the effect that it was Deputy
actually issued or left the office of Collector
Petitioner on 29/08/1975 or before Order, Page
appointed day. 76 and
MRT
Order, page
113
th
4. 30 August The Maharashtra Private Forests
(Acquisition) Act, 1975 (“Maharashtra
1975
Private Forests Act”) came into force.
Key sections of the Forest Acquisition Act:
a. Sec.2 (a) defines “appointed day” to
mean the date on which the Private
Forests Act comes into force
i.e.30thAugust 1975.
(i) Sec2(c-i) contained definition of
“forest” & Sec 2 (f) contained
definition of “private forest”.
(ii) Sec 2(f)(iii) provides that a “private
forest” includes any land in respect
of which a notice has been issued
under Sec. 35(3) of the Indian
Forest Act, but excluding an area
not exceeding 2 hectares in extent
as the collector may specify in this
behalf.
(iii) Sec 3(1) states that with effect on
and from the appointed day i.e.,
30.08.1975, private forests in the
State shall stand acquired and vest,
free from all encumbrances, in and
shall be deemed to be the property
of the State Government, with all
rights in or over the same or
appertaining thereto and all rights,
title and interest of the owner or any
person other than Government
subsisting in any such forest on theSunny Thote 262 of 373
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WP-10024-2023.odtsaid day shall be deemed to have
been extinguished.
(iv) Sec 3(2) excluded land held by an
occupant or tenant and lawfully
under cultivation on the appointed
day and which is not in excess of
the ceiling area provided under Sec.
5 of the Maharashtra Agricultural
Lands (Ceiling on Holdings) Act,
1961 or any building or structure
standing thereon or appurtenant
thereto.
(v) Sec. 6 states that where any
question arises as to whether or not
any forest is a private forest, or
whether or not any forest is a
private forest or portion thereof has
vested in the State Government or
whether or not any dwelling house
constructed in a forest stands
acquired under Private Forests Act,
the Collector shall decide the
question, and the decision of the
Collector shall, subject to the
decision of the tribunal in appeal
which may be preferred to the
tribunal within sixty days from the
date of the decision of the Collector,
or the order of the State
Government under section 18, be
final.
(vi) Section 21 provides the procedure
by which certain lands can be
declared as private forests.
(vii) Sec 24 repealed Sec 35 of the
Forests Act w.e.f30.08.1975.
Comment of R1
Section 24(2) is a saving clause but saving
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is only for limited purposes that is in respect
of land restored under section 22A of
MPFA.
th
5. 30 August By virtue of Sec. 3(1) read with Sec. 2(f)
1975 (iii) of the Maharashtra Private Forests Act,
the said land vested with the State
Government and the said land is deemed to
be the property of the State Government.
Comments of R1
Subject land did not vest with the State
Government under Section 3 (1) read with
Section 2(f) (iii) of MPFA for following
reasons.
a. There is no proof that there was any
live process as on appointed day
because there is no proof on record
of actual issuance of notice before
appointed day.
(a) Notice was admittedly addressed to
wrong addressee and received by
wrong addressee after repeal of
Section 35 of IFA.
(b)In the case of Godrej & Boyce as
well as Rohan Vijay Nahar, it is held
that there is no automatic vesting in
the State. All statutory pre-
conditions mentioned in Section 35
are required to be strictly complied
and that too in the manner provided
under the statute. (kindly refer para
58 of Godrej & Boyce‘s case and
para 11.1, 11.3, 13.1, 13.2, 13.3, 13.5
of Rohan Vijay Nahar‘s case)
(c) Admittedly in the present matter
notification under Section 34A,
35(1) and 35 (8) of IFA has not been
published. No opportunity of hearing
was given to the Owner to raise
objection. No order was passed. No
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further steps contemplated under
Section 35 were ever initiated. In
fact no steps could have been
initiated under Section 35 after
receipt of notice on 04/09/1975,
because on that day said Section 35
of IFA was already repealed.
(d) In the absence of proof about
actual issuance of notice before
appointed day and its service in the
manner provided under CPC and
publication under Rules prescribed
and that too upon true owner of the
land, mere contention of Petitioner
that notice is dated 29/08/1975
cannot be considered as a “duly
done”, act under Section 7 of
Maharashtra General Clauses Act
and hence even under said Act it
cannot be saved.
(e) When issuance of notice prior to
appointed day, itself is in doubt there
is no question of vesting of land in
State automatically under Section 3
of MPFA on the appointed day.
(f) Deputy Collector in its order dated
03/08/1980 (Page 76) while
considering Respondent No.1’s
objection to the notice that it is
addressed to wrong person held that
it was a clerical mistake but MRT in
its order dated 30/06/2017 (Page
113, para 17) has considered the
same as a fatal defect.
(g)Godrej & Boyce and Rohan Vijay
Nahar, both state that notice cannot
be divorced from service and notice
has to be served to the correct land
owner and in the manner provided
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under CPC & Para 11.1, 11.3, 13.1,
13.2, 13.3 and 13.5 of Nahar’s
Judgment & Para 58 of Godrej
Judgment. Thus, strict compliance is
mandatory. There is no strict
compliance in the present matter
hence there is no vesting.
6. 4th By way of a letter to the Petitioner, WP Para
September Respondent No.1 acknowledged that it 3(d) Pg. 6
1975 had received the notice dated 29th August
1975 that was issued u/s35(3) of the
Indian Forest Act. Respondent No.1 did
not raise any dispute about the “forest”
character of any portion of the land but
only requested for time to verify the
correct extent of the land held by it.
Note1:In its reply, Respondent No.1 has
not disputed the receipt of the notice
issued u/s. 35(3).
Comments of R1 on Note-1:-
It is false.
Record would demonstrate that
Respondent No.1 filed Writ Petition No.
1026 of 1975 (Page 297 to 323)
challenging the notice received on
04/09/1975 as well as validity of MPFA .
Kindly see Exhibit -F of Affidavit in reply
of Respondent No.1 (Page 293 and 338) .
Two important grounds (Page 308 ground
no.c onwards) were taken in Writ Petition
that subject land cannot be ranked as
forest and that notice is illegal.
Note 2:Therefore, the fact of the
“issuance” and the “service” of the notice
issued u/s35(3) of the Indian Forest Act on
Respondent No. 1 cannot be disputed.
Comments of R1 on Note – 2:-
It is false.
Issuance and service, both are disputed by
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WP-10024-2023.odtRespondent No.1.
Note 3:In the letter acknowledging the
receipt of the notice,
RespondentNo.1didnot dispute that the
landin respect of which the notice was
issued u/s 35(3) of the Indian Forest Act is
not a forestComments of R1 on Note-3:-
It is false.
It is evident from Writ Petition No.1026 of
1975 that such objection has been taken.
Note 4:In view of the fact that the notice
was issued on 29th August 1975 i.e. one
day prior to the repeal of the Indian Forest
Act and served on Respondent No. 1 on 4th
September 1975, the notice falls within
the category of a “pipe-line notice” as laid
down by the Hon’ble Supreme Court in
Godrej and Boyce Mfg. Co Ltd v State of
Maharashtra1.
Note5:Inpara72ofthedecisionoftheHon’ble
Supreme Court in Godrej and Boyce
(supra), it has been held that:
“Section2(f)(iii)of the Private Forests Act
is notintended to apply to notices that had
passed their shelf life and that only
“pipeline notices” issued in reasonably
close proximity to the coming into force
of the Private Forests Act were “live” and
could be acted upon.”
Comments of R1 on Note-4 and 5:-
It is also false and misleading.
In the present matter there is no proof on
record to show that impugned notice was
actually issued before appointed day.
Admittedly it was served upon wrong
addressee after appointed day. Godrej &
Boyce state that service cannot be
divorced from issuance. Hence impugnedSunny Thote 267 of 373
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WP-10024-2023.odtnotice cannot be termed as pipeline notice.
In fact it is a stale/dead notice, because
neither there is a proof about issuance of
notice before appointed date nor there is
any proof about its receipt by Respondent
No.1 at its registered address and in the
manner provided in CPC. Admittedly
notice was not published. Thus, notice
when served on 04/09/1975 there was no
live process in existence. Process shall
become live or notice can become pipeline
notice only if it is served before the
appointed day and strictly by complying
with mandatory procedure contemplated
under Section 35 and not otherwise.
7. 04/09/1975 The Forest Department issued another Page No.8 &
notice to the R-1, demanding possession 9 of
of the subject land. additional
compiliation
of R1
8. 09/09/1975 R-1 filed WP 1026/1975 challenging the Page No.297
notices dated 04/09/1975 as well as the of WP
validity of the Act of 1975.
9. 09/09/1975 Forest Dept. threatened to take action
against R-1 for non-forest activities.
10. 11/07/1977 Hon’ble Bombay High Court was pleased Page No.293
to stay the acquisition proceedings by to 295 of
granting ad-interim stay in the above WP
proceedings.
Validity of MPFA was upheld in Janu
Chandra Waghmare.
11. 5th July, 4 years after the land had already vested WP PARA 3
1979 with the State Government Respondent (D) Pg.6
& No.1 addressed two letters to the
28th August, Petitioner requesting that the State
1979 Government exempt 24 Acres 32 gunthas
from Gat No. 59/A/1 of its holding from
acquisition with an offer to substitute
another parcel of land admeasuring 24A
32g from S.No. 59/2 & 59/16, which were
contiguous to the said land as Respondent
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No. 1 had expanded substantial amounts
on GatNo.59/A/1 for converting the same
in to horticultural use and in this process
had constructed two wells and three
farmhouses on the said land.
Note1:The fact that Respondent No.1 may WP PARA 3
have put the 24acres of land to (G) Pg.7
horticultural use did not however mean
that it was not a “forest land”.
Note 2:Such a right to substitute the land
is not contemplated under the provisions
of the Maharashtra Private Forests Act
Comment of R1.
This is false.
The fact of filing of above stated Writ
Petition has been concealed by the
Petitioner. Above stated letters were given
without prejudice. Communication made
without prejudice does not amount to
admission under Section 23 of Evidence
Act.
12. 31/12/1979 Secretary Revenue & Forest Department Additional
directed R-1 to approach the Collector Compilation
Thane u/s 6 of Mah. Private Forest Act for of documents
getting the area excluded from acquisition. by R-1
Page No. 62
13. 19/01/1980 Accordingly, R-1 made application (which
was without prejudice) to Dy. Collector to
conduct enquiry under Section 6 of MPFA
and to give finding so as to submit it in
pending writ petition no.1026 of 1975.
14. 27/03/1980 Panchanama was carried out at the instance Additional
of Petitioner in which existence of quarry, Compilation
office, structures upon 107 acres of land is of documents
specifically recorded so also the existence by R-1
of road, acquisition of land, existence of Page No.65 to
67
garden and cultivation, etc. is also recorded.
th
15. 27 May Therefore, the State Government rejected Exh.A
1980 Respondent No.1’s proposal requesting the Para17
State Government to exempt 24 Acres 32 Page 53
gunthas from Gut No. 59/A/1 of its holding.
Sunny Thote 269 of 373 ::: Uploaded on - 25/02/2026 ::: Downloaded on - 27/02/2026 21:51:25 ::: WP-10024-2023.odt 16. 3rd An order was passed by Deputy Collector WP August,1980 (Private Forests) Thane Division ("SDO") Para3(i) Pg. ["First SDO Order"] wrongly accepting 8
the application filed by Respondent No.1
u/s.6 of the Maharashtra Private Forests
Act, for excluding 24- 32-12acres from
Gat No59A/1, in lieu of 24-32-12 acres
from Gat No59/2, 59/3 and 59/16 which
would vest in the State Government as
reserved Forest.
Note:The Petitioner filed an appeal against
this order before the Maharashtra Revenue
Tribunal Mumbai (“MRT”) against this
order under Section 6 of the Maharashtra
Private Forests Act.
17. 15th October The MRT passed an order “FIRST MRT WP
1982 ORDER” allowing the appeal filed by the Exh A
Petitioner and remanding the matter to the Pgs. 48 – 56
SDO with the following observations and
order.
Observations:
a. An area of 204 acres 8g 8a
bearing Gat No. 59/1 answers Para 8
the definition of Private Forests, Pg. 50
which is a common ground
between the parties.
1. The SDO had to restrict his inquires to Para 18
the specific provisions of Sections 2(f) Pg. 54
(iii) and 3(2) of the Maharashtra
Private Forests Act and the other
considerations which weighed with him
are beyond his jurisdiction.
2. The Collector has no power to declare Para 22
any additional land as private forest Pg. 55
unless it answers the definition of
private forest contained under Section
2(f)(iii) of the Maharashtra Private
Forests Act. Similarly, the exclusionSunny Thote 270 of 373
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WP-10024-2023.odtfrom the area of private forest is also to
be strictly worked out on the
consideration of actual cultivation as
on the appointed day and the owner’s
structure if any mentioned under
Section 3(2) of the Maharashtra Private
Forests Act.
3. The SDO has no jurisdiction to declare Para 24
additional area of 23 acres 2 ghuntas Pg. 56
and 12 annas as private forest and
exclude therefrom the area of 24 acres
32 ghuntas 12 annas under the
provisions of the Private Forests
Act.
Order:
a. The case was remanded to the SDO for
holding further inquires and for its
disposal according to law keeping in
view the observations made in this
judgement.
1. The SDO should call on both the
parties to put in their say and such
other additional evidence as they may
like to adduce in support of their pleas.
Comments of R1
Paragraph 8 Page 50 and Paragraph 22,
Page 55 expressly provide enquiry and
remand for the entire land. Same are
reproduced as under:
Para 8 of the said order is also important in
which it is clearly recorded that whether
land admeasuring 204 acres is answering
the definition of forest, is the common
stand between the parties.
In para 22 in the remand order it was
clearly held that the dispute regardingSunny Thote 271 of 373
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WP-10024-2023.odtwhether a land is Private Forest and
whether it is vested in the State has to be
resolved by the Collector under Section 6,
but same was not done hence matter was
remanded for fresh inquiry.Those will
indicate that remand was for entire land
and never restricted only for 24 acres.
18. Oct. 1982 Thane Municipal Corporation was
established. DP Plan of TMC sanctioned &
certain portions of larger suit property
(about 130 acres of land) reserved for
various public purposes such as D.P. Road,
Park, HCMTR, etc. Balance part for
commercial zone, godown zone, industrial
Zone and residential zone.
19. 23/01/1986 Petitioner issued letter to Deputy Collector, Additional
Thane, inter-alia, admitting that R1 did not affidavit of
handover the possession of subject land R-1
and instead filed application under Section Exhibit
6 of MPFA. Para 1 of the letter. Page No.
448
20. 25th July, Respondent No. 2 made an Application to Exh.B
1991 the Tahsildar and A.L.T Thane for Para II2
declaration that he was a tenant of Pg. 59
Respondent No. 1 in respect of the area
admeasuring 7 hectares and 38 acres
(approximately17.5acres) out of the said
Gut no.59/1.
21. 16/01/1996 Petitioner published in Government R-1
Gazette a circular specifying the land area Exhibit A
covered under Sanjay Gandhi Rashtriya Page No.
Udyan. In said circular survey number of 445-447
subject land is not included. In fact, it is
mentioned that entire village Manpada is
situate at Eastern Boundary of
SGNP._Admitedly, R1’s land is in village
Manpada (Kindly see Para 1 Page No.4 of
WP)._______________
22. 1999 The remanded proceedings were formally WP Exh.E
numbered as Case No. 53 of 1999 by Page
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Deputy Collector, Thane. No.91 and
Para No.2
(a)
Statement of Haresh Jani was recorded on Additional
behalf of R1 so also of one Chimanlal Compilation
Shah, accountant of addressee company. of R1, Page
No.70-72
23. 24/11/1999 Oral evidence of Ramesh Pakhare was Additiona
adduced in the inquiry on behalf of l
Petitioner. In the cross he admitted that Compilati
Petitioner does not have office copy of on of
purported notice. ( the said admission document
makes it absolutely clear that the Petitioner s by R-1
do not have any proof that the said notice Page
though dated 29/08/1975 was actually Nos.87
dispatched prior to 30/08/1975) Along with and 88
purported notice plan showing the location
of subject land was not annexed. He also
admitted that pursuant to purported notice,
notification under Section 35 (1), 34 (a)
and 38 of the Indian Forest Act have not
been published. Strict compliance as
mentioned in Godrej‘s Case (Para 58) and
Nahar‘s Case (Para 11.1, 11.3, 13.1, 13.2,
13.3) has not been made.
th
24. 15 March The Tehsildar by his order declared that Exh.B
2004 Respondent No.2 is a tenant of Respondent Para II
No. 1 in respect of the area admeasuring 7 Pg. 59
hectares and 38 acres (approximately 17.5
acres).
th
25. 13 Having succeeded in getting himself Exh.B
December, declared as a tenant of Respondent No.1 in Para IX
2004 respect of the area admeasuring 7 hectares Pg. 63
and 38 acres (approximately 17.5 acres),
Respondent No.2 filed an intervention
application before the SDO seeking that:
(i) the SDO declare that the land
admeasuring 7 hectares and 38 acres
(approximately 17.5 acres) is in actual and
physical possession and cultivation ofSunny Thote 273 of 373
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WP-10024-2023.odtRespondent No. 2 as an agricultural tenant
as held by the Tehsildar order dated
15.03.2004.
(ii) the said land is an agricultural land
and was never a forest or a private forest
including on 30.08.1975 and does not vest
and was never vested in the state
government and
(iii) that the provisions of Private Forests
Act do not apply to the said land.
(Note: The land that Respondent No. 2
seeks to exclude is in addition to and not a
part of the 24 acres that Respondent No.1
seeks to exempt from acquisition under
the Maharashtra Private Forest Act)
26. 18th The Petitioner opposed Respondent No. Exh.C
December 2’s Intervention application on inter-alia Pgs. 64-
2004 the following grounds: 72
a. The status of Land in Gat No. 59/1 as
forest land had never been disputed by Para
Respondent No.1 and that the issue had 2/Pgs. 66-
only been re 24 acres sought to be 67
excluded/substituted, and that the area
claimed by Respondent No. 2 did not
fall within this 24 acre area.
1. Moreover, the 7/12 extracts in 1975 did
not show that any part of the land was Para 5/Pg.
under cultivation. Accordingly, the 68
7/12 extracts of 1981 & 1987 showing
cultivation by Respondent No. 2 in two
subsequent years only, were irrelevant.
2. The orders passed by the Tehsildar
confirming the tenancy of Respondent Paras 7
No. 2 under the BTAL Act had been and 9
obtained without joining the Petitioner (f) /Pgs.
and ex parte qua Respondent No. 1 69 and 71
Note: Pursuant to the intervention
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application filed by Respondent No. 2, the
Second SDO Order excluded 17 acres (7
hectares) of land from the said land on the
ground that the same were under
cultivation by Respondent No. 2 as a tenant
of Respondent No. 1.
Respondent Nos.3-7 also claim to be in
possession of some portions of the subject
land. However, these Respondents raised
their claims for the same when the matter
was pending before MRT for the second
time i.e., when the Second SDO Order was
being challenged. The case of these
Respondents is as follows:
a. Respondent Nos. 3, 4 and 5
claimed to be in possession of
land within the 24 Acre area
sought to be excluded from
acquisition by Respondent No.
1, which they alleged they had
purchased from Respondent
No.1in1980(5yearsaftertheappoi
nted day under the Maharashtra
Private Forests Act).
1. Respondent Nos. 6 & 7 claim to have
purchased 19 gunthas
(approximately0.5acre) of land in Gat
No.59/1 from Smt Kusum Vasant
Salkar & 3 others of her family, who in
turn claimed to be in possession of 19.65
gunthas of land in Gat No 59/1 that
were acquired by them by way of
adverse possession against Respondent
No. 1. The Petitioner was not joined as
party to the suit filed by Smt Kusum
Vasant Salkar and her family claiming
adverse possession against Respondent
No. 1, which suit came to be decreed
ex-parte.
Note 1:Though Respondent Nos. 3-7
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claim ownership of certain portions of the
subject land, they have never appeared nor
filed any replies in the current proceedings
before this Hon’ble Court.
Note2:These Respondents claim to be
owners of certain portions of the subject
the land only after 30th August 1975 i.e.
after the land came to be vested with the
State Government by virtue of Section
3(1) of the Maharashtra Private Forest
Act.
26 27th The SDO finally passed an order in the Exh D
December matter that had been remanded to it by Pg.73-86
2004 virtue of the MRT Order dated 15 th
October 1982 ( after a period of 22 years)
( “Second SDO Order ” ) The SDO
framed the following three issues;
a. Whether the said land is a
‘Forest/Private Forest’ within the
meaning and definition of Private
Forest u/s 2(f) (iii) of the
Maharashtra Private Forests Act?;
(i) Whether any portion of the said
land qualifies for an exemption
under Section 3(2) of the
Maharashtra Private Forests Act?;
and
(ii) What should be the area if any to be
vested in the State Government?
Answering the above issues, the order
held as under:
In answer to Issue 1:
(i) The SDO found that Respondent No. 1 Pg 76
had confirmed having received the Notice
u/s
35(3). The SDO rejected Respondent No.
1’s contention that the notice under
Section 35(3) was invalid on the ground
that was issued to “D. Dayabhai &Sunny Thote 276 of 373
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WP-10024-2023.odtCompany” instead of “D Dayabhai &
Company Private Limited” holding that
the omission to mention “Ltd” was a
clerical error and did not invalidate the
Notice. The SDO accordingly held that
sec 2(f) (iii) was applicable to the said
land.
In answer to Issue2:
Pgs. 76-
b. The Deputy Collector however held 79
that 24 acres of S No 59/1 [being
the land in respect of which
Respondent No.1 had sought an
exemption on the ground of
horticulture and construction of
well and farmhouse] would be
required to be excluded from S No
59/1 as:
Pg. 77
(a) S.No.59/1 it not a continuous
portion of land but are multiple
pieces of land scattered
intermittently with various
survey nos.
Pg. 77
(b) the topographic situation shows
that these scattered pieces of
land do not form a continuous
part of the Borivali National
park which could qualify on its
own, merit to be a part and
parcel of the national park.
(c) There exists permanent Pg.77
structures such as godowns on
these scattered pieces of lands.
(iii) The Deputy Collector held that Pg 84
Respondent No. 2 was in possession
and cultivation of 18 Acre as 18
gunthas out of the said land and
excluded the same u/s 3(2) of the
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Private Forests Act .
(iv) Moreover the Deputy Collector held
Pg. 85
that an area of 17 Acres 19 G was
also required to be released as
Village settlement (Konkanipada),
although this had never been raised
in the Inquiry by any party thereto.
In answer to Issue3:
(v)The Deputy Collector declared the
balance area of 132 Acres 18 gunthas 4 Pg. 85
Anas as having vested under the 1975 Act.
th
27. 15 April, Appeal No. 165/2005 was filed by the
2005 Petitioner against the Second SDO Order.
28. 2009 Cross Appeal No. 229/2009 was filed by
Respondent No.1 against the Second SDO
Order Pg. 85
th
29. 30 June The MRT passed an order (“Second MRT ExhE
2017 Order” / Impugned Order) dismissing the Pgs.87-115
Petitioner’s Appeal No 165 and allowed
Respondent No. 1 Appeal No 229.
On a perusal of the Second MRT order, it
appears that the following issues were
raised by Respondent No. 1 before the
MRT:
Para13,
a. Whether the ‘issuance of notice’ u/s.
Pgs.109-
35(3) of the Indian Forest Act was
110
sufficient for declaring the land to be a
‘private forest’ without ‘service of said
notice’ on the land owner.
3. The entire land covered under Gat Para2(q),
No.59/1 was and is a non-forest land in Pg. 96
fact on the appointed day i.e.,
30.08.1975
Note: The above two points have been
raised by Respondent No.1 for the first
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time since the issuance of the notice u/s
35(3) of the Indian Forest Act on
29.08.1975 i.e., after a period of almost 34
years
Comment of R1- Para2(q),
It is false that above points were raised for Pg. 96
the first time after 34 years.
4. that the said land was used for
horticulture, stone queries, go-downs, Para17,Pg.
residential units and was and is having 112
structures thereupon.
5. that the notice u/s 35(3) of the Indian
Forest Act was issued in the wrong
name and not that of Respondent No. 1
The MRT held as follows:
(i) The MRT placed reliance on the
following judgements of this Hon’ble
Court:
a. Dr Arjun Sitaram Nitanwar vs
Tahsildar, District-Thane3 to assert
that unless a notice u/s.35(3)of the
Indian Forest Act is served on the
owners the land in question will not
vesting the State Government as a
private forest.
Note:Petitioners Reply:
a. In Dr. Arjun Nitanwar, the notice in
question was dated 13 April 1957,
and there was no evidence that this
notice had ever been served on the
original owner.
a. Such a notice constitutes a “stale
notice” as explained in Godrej &
Boyce. The Supreme Court in
Godrej & Boyce held that staleSunny Thote 279 of 373
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WP-10024-2023.odtnotices cannot be acted upon. In
contrast, in the present case, the
notice was issued in close proximity
to 30 August 1975. It therefore
qualifies as a “live notice” under the
principles laid down in Godrej &
Boyce and can validly be acted
upon.
B. Ozone Land Agro Pvt Ltd vs State of
Maharashtra4 which dealt with a case
where there was no proof of service of
the notice u/s. 35(3) of the Indian
Forest Act on the owner of the land.
Note:Petitioners Reply:
a. In Ozone, it was undisputed that
only the issuance of the show-cause
notice was established; there was no
proof that the notice was ever
served. In contrast, in the present
case, it is an admitted fact that the
notice under Section 35(3) was not
only issued but also duly served on
the Respondent.
C. Satellite Developers Ltd vs State of
Maharashtra5 to assert that where the
notice u/s. 35(3) of the Indian Forest
Act was not acted upon, this Hon’ble
Court in it’s writ jurisdiction set aside
the acquisition without further reference
to the SDO.
Note:Petitioners Reply:
a. In Satellite Developers, the notice in
question was issued in 1956, and
thereafter no steps were taken to
provide a hearing to the owners, nor
was any final notification under
Section 35(1) of the Indian Forest Act
issued.
a. In contrast, in the present case, the
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WP-10024-2023.odtnotice was not only issued and duly
served on the Respondent, but the
Respondent himself filed an Paras 13-
application under Section 6 and was 16/Pgs.109-
afforded an opportunity of hearing. 112
b. The MRT placed reliance on the
judgment of the Hon’ble
Supreme Court and Godrej and
Boyce and wrongly held that as
the Notice u/s 35(3) was
required to be served on the land
owner and as the same had not
been served before 30.08.1975
the acquisition u/s 2(f)(iii) was
illegal.
Note:-Petitioner’s Contentions:
the MRT and Respondent No. 1 have
wrongly interpreted the law laid WP Ground
down by the Hon’ble Supreme g/Pgs.17-18
Court in Godrej and Boyce.
The Supreme Court in Godrej and
Boyce held that while actual WP Ground
service of notice under Section g/Pgs 17-18
35(3) of the Indian Forest Act is
necessary, it did not require such
notice to be served before 30th
August 1975.
The Apex Court overruled WP Ground
6
Chintaman G. Velkar which had g/Pgs 17-18
held that mere issuance of a
notice under Section 35(3) of the
Indian Forests Act is sufficient
and service is not required under
Section 2(f)(iii) of the WP Ground
Maharashtra Private Forests Act. g/Pgs 17-18d. The Hon’ble Supreme Court
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WP-10024-2023.odtalso approved the view of the
Full Bench of this Hon’ble Court
in Janu C. Waghmare which
upheld the constitutional validity
of the Maharashtra Private
Forest Act, observing as follows:
(i) Section 2(f)(iii) of the
Maharashtra Private Forest Act WP Ground
covers land in respect of which g/Pgs 18-19
merely a notice has been issued
to the owner and his objection
may have remained unheard till
30th August 1975 whenSection
35 of the Indian Forest Act was
repealed. Accordingly, it was
conceded by the Government of WP Ground
Maharashtra that such objections g/Pgs 19-20
could be heard under Section 6
of the Maharashtra Private
Forest Act (Para 43/Pg. 28)
(ii) Under Section 6 of the
Maharashtra Private Forest Act,
owners of land that is sought to
be decelerated as a forest would
have an opportunity of raising
objections to the proposed
declaration and of satisfying the
government that their lands are
not and cannot be treated or
declared as forest (Para 43/Pg.
29)
e. The MRT misinterpreted Godrej
and Boyce by wrongly
concluding that it was held that
notice must be served before 30th
August 1975. This is neither the
finding in Godrej and Boyce or
even otherwise a correct
statement of the law.
Sunny Thote 282 of 373
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WP-10024-2023.odtf. In the Godrej case, the Supreme
Court (paras 71, 72, 73, and 74)
held that notices issued in
reasonably close proximity to
the commencementof the Private
Forests Act are considered “live”
and actionable. In the present
case, the notice was issued on
29th August 1975 i.e. in
extremely close proximity to
30th August 1975 (the appointed
day) and served on 4th
September 1975, qualifying it as
a “live” or “pipeline” notice as
per the judgment in Godrej and
Boyce. Despite this being
highlighted in the Synopsis of
Submissions filed before it by
the Petitioner, the MRT has
misapplied this binding
precedent without justification.
g. In this case, a notice under
Section 35 (3) of the Indian
Forest Act was issued on
29.08.1975, just before the
commencement of the Private
Forests Act, and served on
04.09.1975, which fact has not
been disputed. Therefore, the
issue of “non-service” of the
notice does not arise. In this
case, the notice was acted upon
by the Petitioner taking
possession of 168Acres out of
193Acres (excluding 24A meant
for exchange),subject to two
rounds of proceedings u/s. 6 of
the Private Forests Act.
h. Upon reviewing the Second
MRT order dated June 30, 2017 /
Impugned Order, it is evidentSunny Thote 283 of 373
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Hon’ble Supreme Court’s
decision in Godrej and Boyce.
However, it is clear that the
MRT misinterpreted the law laid
down by the Hon’ble Supreme
Court therein.
SUBSEQUENT EVENTS AFTER IMPUGNED ORDER WAS PASSED.
30. 22/09/2017 Nitesh Kothari, Director of R-1 applied to Petitioner
the Talathi for effecting a mutation in the Additional
land records i.e. 7/12 extract, on the basis of Affidavit
the Impugned Order. Page No.
120
Para No.4
31. 25/09/2017 Mutation Entry No. 1056 was effected, Petitioner
which recorded the name of R-1 and deleted Additional
the name of the State Government with Affidavit
respect to the Subject Land (“said Mutation Page No.
Entry”) 120
Para No.4
31. 02/11/2017 TMC issued letter to R-1 for handing over
of possession of reserved portion of part
property i.e. D.P. Road and HCMTR
(METRO)
32. 13/03/2018 Present writ petition no.3205 of 2018 was WP
filed before this Hon’ble High Court. Page Nos.1
to 47
33. 30/06/2018 R-1 sought release of TDR proposed to be
given after surrendering property as
mentioned hereinabove.
34. 20/11/2018 TMC issued public notice thereby notifying Affidavit in
the various acquisitions of part of the reply of R-1
subject land for various reservations of Exhibit-I
Thane Municipal Corporation & calling Page No.
objections (To which forest did not raise any 342
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35. 09/01/2019 Title Certificate was issued by Adv. Prasad
Kulkarni the empanelled Advocate of TMC.
36. 30/01/2019 Subsequently M.E. No.1056 Confirmed by Additional
SDO in Revision No. 182 of 2018 Affidavit in
reply of R-1
Exhibit-D
Page No.
490-491.
37. 25/04/2019 Reg. Deed of Transfer executed by R-1 in Affidavit in
favour of Thane Municipal Corporation reply of R-1
with respect to reserved portions (DP Road Exhibit-J
and HCMTR) for an area admeasuring Page No.
about 18100 sq. mtrs. Which is equivalent 343 to 405.
to 4.47 Acres. (Till date Petitioner has not
challenged the said acquisition, said deed
and/or the fact of handing over the
possession of the concerned land by the R1
to TMC.)
38. 03/05/2019 Thane Municipal Corporation issued Public Affidavit in
notice with respect to balance area of reply of R-1
4,04,721.02 sq. mtrs. Which is equivalent to Exhibit-L
100 Acres reserved for park. Page No.
(To which Forest Department did not raise 407
any objection)
39. 24/05/2019 Regd. Deed of Transfer executed by R1 in Affidavit in
favour of TMC w.r.t. balance reserved reply of R-1
portion (100 Acre Park). Document clearly Exhibit-M
state that possession is handed over to TMC Page No.
by R1. (Till date Petitioner has not 408 -426
challenged the said acquisition, said deed
and/or the fact of handing over the
possession of the concerned land by the R1
to TMC.)
40. 06/06/2019 TMC issued three DRCs bearing No. 261,
362 & 363 against acquisition of D.P. Road
and HCMTR against the land transferred vide
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registered Deed of Transfer dated 25/04/2019.
41. 01/07/2019 Additional Affidavit of Petitioner was filed. Page
Nos.117 to
127
42. 2019 Correspondence by and between TMC, Forest
to Department and Respondent No. 1 in respect
15/09/2020 of use and utilisation of TDR and/or
regarding issuance of DRC against Park
Reservation.
43. 25/11/2019 Affidavit in reply filed by Respondent No.1. Page No.
250-276 of
Writ
Petition.
44. 11/12/2019 Affidavit filed by Petitioner. Page No.
243-247 of
Writ
Petition.
45. 11/12/2019 Affidavit in Reply filed by Respondent Nos. Page Nos.
2.1 to 2.12 except 2.2. 153-159 of
Writ
Petition.
46. 28/02/2020 Conservation Action Trust filed Intervention Page Nos. 1
Application No. 2785 of 2020 in present to 9 of IA
Petition in WP No. 3205 of 2018. 2785 of
2020.
47. 21/08/2020 TMC filed Intervention Application bearing
no. 775 of 2021 in present Writ Petition.
48. 10/08/2022 Affidavit in Reply filed by Respondent No.1 Page Nos.
to the said intervention application No. 2785 14 to 22 of
of 2020 of Conservation Action Trust. IA 2785 of
2020.
49. Affidavit in Reply was filed by Respondent
No.1 to the said intervention application.
50. 09/04/2021 Additional Affidavit in Reply filed by Page Nos.
Respondent No.1. 430 to 444
of Writ
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Petition.
51. 18/07/2022 Order passed by this Hon'ble Court
allowing TMC’s Intervention Application
bearing no. 775 of 2021.
52. 25/11/2022 Single Bench of this Hon’ble Court in private
& dispute between Respondent No.1 herein and
07/12/2022 one M/s. K.S. Group in Appeal from Order
arising out of the judgement and order dated
10/10/2019 passed by the learned trial court,
by consent passed an order directing Thane
Municipal Corporation to issue DRC against
Park Reservation No. 4.
53. 01/06/2023 Respondent No.1 D. Dayabhai & Co. Pvt.
Ltd. filed Writ Petition No.6603 of 2023 inter
alia seeking direction to TMC for permitting
the use and utilisation of three DRC’s since
the Forest Department had addressed
communication to Thane Municipal
Corporation erroneously objecting to the
grant of DRC.
54. 05/08/2023 Affidavit in reply filed on behalf of Thane Page Nos.
Municipal Corporation to Writ Petition No. 146 to 225 of
10024 of 2023. Writ Petition
No. 10024 of
2023.
55. 08/08/2023 D. Dayabhai & Co. Pvt. Ltd. filed another Page Nos. 1
Writ Petition No. 10024 of 2023 seeking to 145 of
direction against the Thane Municipal Writ Petition
Corporation for implementation of Order No. 10024
dated 25/11/2022 passed by the Single of 2023.
Judge read with order dated 07/12/2022 for
issuing DRC & the same is also tagged
along with the present Writ Petition.
56. 21/09/2023 Additional Affidavit in Reply filed by Page Nos.
Respondent No. 2.1, 2.3 to 2.12 in WP 452 to 576
No.3205/2018. in Writ
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Petition No.
3205 of
2018.
57. 03/10/2023 Affidavit in Reply filed by TMC in WP Page Nos.
No.3205/2018. 577 to 615
in Writ
Petition No.
3205 of
2018.
58. 23/10/2023 Order passed by the Division Bench of this Page Nos.
Hon'ble Court, in WP No.6603/2023 and in 340 to 369
view of divergence of the opinion between of Writ
the two learned judges of the bench, the said Petition No.
WP No. 6603 of 2023 was directed to be 10024 of
placed before the third judge of this Hon'ble 2023.
Court.
59. 15/12/2023 Order passed by Division Bench of this
Hon’ble Court Inter alia clubbing the
hearing of the present Writ Petition No.
3205 of 2018 with Writ Petition No. 10024
of 2023.
60. 15/12/2023 On the same day, by an order passed by 3rd
judge, the hearing of the said Writ Petition
No.6603/2023 was deferred until the
hearing of the present Writ Petition & Writ
Petition No.10024 of 2023 (which are
placed before the present bench.)
61. 04/01/2024 Affidavit in reply filed on behalf of State of Page Nos.
Maharashtra (i.e. Respondent Nos. 10 to 12) 226 to 278 of
in Writ Petition No. 10024 of 2023. Writ Petition
No. 10024 of
2023.
62. 19/09/2024 Affidavit of Rejoinder on behalf of Petitioner Page Nos.
is filed in reply to the Affidavit in reply filed 279 to 411 of
on behalf of State of Maharashtra in Writ Writ Petition
Petition No. 10024 of 2023. No. 10024 of
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2023.
63. 28/04/2025 Order passed by this Hon’ble Court
directing TMC to implement earlier order
dated 25/11/2022.
64. 27/06/2025 Order passed by this Hon’ble Court
rejecting the prayer of TMC seeking
modification to the order dated 28/04/2025.
65.
BRIEF FACTS IN GODREJ AND BOYCE:
a. The facts in Godrej and Boyce‘ case
were that Godrej acquired land in
Vikhroli, Mumbai by a registered deed
of
conveyancedated30thJuly,1948fromthe
successor-in interest of Framjee
Cawasjee Banaji, who, in turn, had been
given a perpetual lease of the land by the
Government of Bombay on 7th July, 1835.
The land was described in the perpetual
lease as “wasteland” and one of the
purposes of the lease was to cultivate the
wasteland. The appeals before the
Hon’ble Supreme Court concern an area
of 133acres and38 gunthas of land
bearing Old Survey Nos. 117, 118 and
120. 72.
(a) Then, there was an Act passed,
abolishing the see states. After referring
to the salient features of this Act, it was
stated that Godrej did not accept that the
lease was brought to an end by the
provisions of this Act and decided to
contest the stand of the State
Government. It filed a suit in this court
for declaration of its ownership and that
the Abolition Act had no application to
the lands in question. Though the suit
was contested by the State Government,
later on, there was a consent decree.
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(b) Consequently, the Development Plan for
City of Bombay, including Vikhroli, was
published on 7th January, 1967 and the
next development plan was published in
1991. In both the plans, the disputed
land was described as residential.
Thereafter, Godrej applied for and
sought development permissions.
(c) Later on, the Urban Land (Ceiling and
Regulation) Act,1976 intervened, but
M/s. Godrej earned an exemption from
the State Government so that the
provisions of this Act do not apply to the
lands and they were exempted
accordingly. After this order of
exemption was passed, Godrej applied
for and was granted permission by the
Municipal Corporation of Greater
Mumbaitoconstructmulti-
storeyedbuildingsanditconstructed40resi
dential (ground + 4 and ground + 7)
buildings, one club house and five
electric substations. Over a couple of
thousand families occupy these
buildings. Further construction was also
made for a management institute and
other residential buildings.
(d) That is how it was aggrieved by a notice
bearing no. WT/53 issued to Godrej
under section 35(3) of the Act of
1927and which was published in the
Bombay Government Gazette of 6th
September, 1956. Godrej contested that
and even when they had filed the earlier
suit and the consent decree was passed
therein on 8th January, 1962, issuance of
such a notice was never made known to
them. It was stated that it searched the
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details of this notice in the Department
of Archives. The notice, as published in
the Official Gazette, bore no date and
according to Godrej, it was not served
upon it. It was never acted upon. The
subsequent events raised doubt whether
the notice was issued or served on Godrej
PETITIONER’S SUBMISSIONS:
The Petitioner submits that on a true and
correct reading, the following legal
principles emerge from the Supreme Court’s
ruling in Godrej and Boyce:
A. Reading Paras 72 and 74 of Godrej and
Boyce, the following propositions will
emerge:
a. That according to the law laid down
by the Supreme Court, 2(f)(iii) of the
Maharashtra Private Forests Act “is in
a sense a savings clause”;
a. In P. Ramanatha Aiyar’s Advanced law
Lexicon, 4th Edition, the term “saving
clause” has been defined as under:
“A “saving clause” is ordinarily a restriction
in a repealing Act and saves rights,
pending proceedings, penalties, etc.,
from the annihilation which would
result from unrestricted repeal.”
b. Section 2(f)(iii) of the Maharashtra
Private Forests Act i.e. the saving clause
is meant to save “pipeline notices”.
c. “Pipeline notices” or “live notices” have
been defined in para 72 of Godrej to
mean
“…notices issued in reasonably close
proximity to the coming in to force of
the Private Forests Act which were,
“live” and “could be acted upon”.
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d. Even in para 74, the Supreme Court has
held that:
“…Section 2(f)(iii) of the Private
Forests Act is in a sense a saving clause
for pipeline notices issued under
Section 35(3) of the Forest Act…”
e. Since Section 2(f)(iii) of the
Maharashtra Private Forests Act has
been interpreted to be a savings clause
meant to save notices which have been
issued under Section 35(3) of the Indian
Forest Act such that they would be
considered to be live and could be acted
upon, the only interpretation that can be
placed is that what was saved is notices
that were “issued” in reasonably close
proximity of the Maharashtra Private
Forests Act.
f. All further steps including service as
well as proceedings with regard to
settling disputes u/s. 6 of the
Maharashtra Private Forests Act could
be completed after 30th August 1975.
g. Any other interpretation if placed
would mean that the savings clause
has become redundant because even if
a notice were to be issued within time,
it would not be acted upon unless
including service of the same-only on
account of the Indian Forest Act being
repealed.
h. The Statement of Objects and Reason
of the Maharashtra Private Forests Act
inter alia provides that it is considered
expedient to acquire private forests in
Maharashtra generally for conserving
their material resources and protecting
them from destruction or over
exploitation by their owners.
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i. The provisions of the Indian Forest
Act and the provisions of the
Maharashtra Private Forests Act are
welfare legislations meant for the
welfare of the general public. Thus
even if therefore a purposive
interoperation is to be placed on a
beneficial piece of legislation, it is
trite law that overall intention of the
legislation is to further the provisions
of the act and not to defeat the same.
The same principle has been held by
the Hon’ble Supreme Court in
International Ore & Fertilizers (India)
P.Ltd. vs. ESI Corporation7 observing
in the context of the Employees’ State
Insurance Act, 1948 that:
“4. … We agree with the decision of the
High Court that while construing a
welfare legislation like the Act and
the notification issued thereunder a
liberal construction should be placed
on their provisions so that the
purpose of the legislation may be
allowed to be achieved rather than
frustrated or stultified…..”
B. The observations made by the Hon’ble
Supreme Court in Paras 56-61 of Godrej
and Boyce and in particular para 61 thereof
that the word “issue” appearing in Section
2(f)(iii) must include service of the show
cause notice as postulated in Section 35 of
the Indian Forest Act were made in the
context of interpreting the provisions of
Section 35 of the Indian Forest Act. In other
words, as observed by the Supreme Court in
para 61, applying the principle that a words
must be construed in the context that it is
used, the Supreme Court held:
“…By making reference in Section 2(f)(iii)
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Section 35 of the Forest Act, it is clear that
the word is dressed in borrowed robes”
C. It is for this reason that the Hon’ble
Supreme Court in para 61 has held as
follows:
“…Once that is appreciated (and it was
unfortunately overlooked in Chintamani)
then it is quite clear that “issued” in Section
2(f) (iii) of the Private Forests Act must
include service of the show-cause notice as
postulated in Section 35 of the Forest Act.”
d. The context in which the Hon’ble
Supreme Court has construed the word
“issue” to include “service of the show
cause notice” was clearly in the context
of the object underlying the provisions
of the entirety of Section 35 of the
Indian Forest Act.
D. In other words, the Supreme Court has
come to a conclusion that service of a
notice is required for the purposes of
Section 35 of the Indian Forest Act to
make it effective. It has not come to the
conclusion that service of the notice is
required prior to 30th August 1975 in
order for it to be saved under section 2(f)
(iii) as a “pipeline notice”. Any other
interpretation if placed on para 61 vis a
vis para 74, would mean that there is an
apparent inconsistency between the
conclusion in Para 61 vis a vis the
conclusions of para 72 and 74.
E. In fact the expression “By making a
reference in Section 2(f)(iii) of the
Private Forest Act to “issue” in section
35 of the Forest Act, it is clear that the
word is dressed in borrowed robes…”
means that the word “issue” has been
borrowed from Section 35 of the Indian
Forest Act and must therefore be
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interpreted in that context to include
service of the show cause notice in order
to make the provisions of Section 35(4)
to (7) of the Indian Forest Act effective.
F. On a comparison of Section 21 of the
Maharashtra Private Forests Act with the
provisions of Section 35 of the Indian
Forest Act it is clear that whereas in the
case of the Indian Forest Act, Section
35, requires issuance of the service of
the notice prior to the issuance of a final
notification under Section 35(1), in case
of Maharashtra Private Forests Act,
issuance and service of the notice are
steps that follow subsequent to the
publication of the notification. To read
the words “issued” under Section 2(F)
(iii) as “issued and served prior to
30.08.1975” would be contrary not only Para 8
to para 72 and 74 of the judgment in Pgs.106-
Godrej and Boyce but also to the 108
provisions of the Maharashtra Private
Forests Act, particularly section 21
thereof.
G. Therefore the conclusion of the Supreme
Court in para 72 that Sec 2(f)(iii) of
Maharashtra Private Forests Act is not
intended to apply to notices past their
shelf life but only pipeline notices issued
reasonably close to the coming into
force of the Maharashtra Private Forests
Act could be acted upon will bring
within the savings clause a notice issued
prior to 30.08.1975 under Section 35(3)
of the Indian Forest Act, even though
served after 30th August 1975, but in
close proximity to the Section 35(3)
notice.
(iii) That although the earlier Appeal & WP Ground
remand were only re the 24 acres sought r/Pgs 25-26
to be released/ exchanged & although
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Respondent No. 2 was not claiming this
area or any part thereof, the Deputy
Collector was entitled to consider
Respondent No. 2’s claim to be in
possession/cultivation under Section
3(2) read with Section 6 of the Private
Forests Act. The MRT held that the
SDO/Deputy Collector was not
restricted only to the issue of 24 acres
raised by the Respondent No. 1.
Note:- Petitioner’s Reply:
a. The 7/12 extracts for the subject land in
August 1975 do not indicate any
cultivation by Respondent No. 2 or
anyone else. Instead, they show the land WP Ground
consisted of “palmyra trees and a s-t/Pgs 26-27
deserted stone quarry.” Respondent No.
1 never contended either before the State
Government or under the Sec. 6 inquiry
that the land was being cultivated by a
tenant – either in the first or second
round of proceedings before the SDO.
Moreover, Respondent No. 2 admitted
before the Tahsildar that he had no WP Ground
tenancy receipts from Respondent No. 1. w/Pgs 28
There is no credible evidence to support
Respondent No. 2’s claim of cultivating
the subject land prior to the appointed
day. (Ground r/Pgs. 25-26 of WP).
a. Respondent No. 2’s application for
declaration of tenancy was made on 25-
7-1991 ("tenancy declaration
application") i.e., 16 years after the WP Ground
property was vested completely with the x/Pgs 28-29
government and nearly 40 years after
“Tillers’ Day”. The Petitioner was not
made a party to the tenancy declaration
application. (Grounds s-t/Pgs. 26-27 of
WP).
b. W.r.t the Tahsildar order declaring
Respondent No. 2 as a tenant (“Tahsildar
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order”), the Petitioner submits as
follows:
c-1 The Tahsildar order refers to a
reply filed by Respondent No. 1., but the
contentions taken in the said reply to do
not find mention anywhere in the order
(Ground w/Pg. 28 of WP).
c-2 The Tahsildar’s order
incorrectly states that Respondent No. 1
had the land released from acquisition.
In reality, Respondent No. 1 did not
secure the release of any part of the land.
Respondent No. 1 admitted that the
entire subject land (Gat. No. 59A/1) was WP Ground
forest land but only requested that 24 y/Pgs 29-30
acres not be taken into possession,
offering to surrender an equivalent area
in other gat numbers instead. Of the 193
acres, 168 acres were acquired and are
now part of the Sanjay Gandhi National
Park, which includes the land claimed
by Respondent No. 2. Importantly,
Respondent No. 2 never raised any
dispute under Section 6 of the Private
Forests Act. The inquiry before the SDO
Thane pertains only to the remaining24
acres, which does not include the land
occupied by Respondent No. 2.( Ground
x/Pgs. 28 -29 of WP)
c-3 The Tahsildar order mentions
that in the 7/12 extracts between 1981
and 1987 the cultivation column shows
the name of the Respondent No. 2. This
would be of no consequence because the
land was already acquired and deemed
to be vested in the State Government as
on 30.08.1975. Surreptitious insertion of
the Respondent No. 2’s name in the
cultivator’s column for the brief period
between 1981 and 1987 could not WP Ground
z-bb/Pgs 30-
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description of forest land under Section
3(2) of the Private Forests Act. There is
no explanation why the name of
Respondent No. 2 does not appear in the
said column before 1981andafter
1987.The table showing the columns
“Year” and “Cultivation”clearly show
that from 1966 to 1973 and as well as in
1974 and 1975 the land was uncultivated WP Ground
and quarry land. This table does not dd/Pgs 31-32
support the claim that Respondent No 2
was cultivating the land much prior to
‘Tiller’s
day’asrequiredundertheBTandALAct194
8. (Ground y/Pgs. 29 -30 of WP).
c-4 In the proceedings before the
Tahsildar, Respondent No. 1 explicitly
denied that Respondent No. 2 was his
agricultural tenant. Notably, the
Tahsildar’s order fails to disclose the
date on which it was issued.
Furthermore, the order provides an
explanation for the absence of rent
receipts from Respondent No. 1 to
Respondent No. 2, despite Respondent WP Ground
No. 2 not offering any such explanation ee-gg/Pgs
in his application (Ground z-bb/Pgs. 30- 32-33
31 of WP).
d. The criminal proceedings cited by
Respondent No.2 in his intervention
application before the SDO arose from his
prosecution under Section26 of the Indian
Forest Act for alleged encroachment on
forest property and construction of
structures. The criminal court, based on
the evidence presented, concluded that the Para
structures were older than the period of 4-6/Pgs.1
the alleged encroachment, leading to 03-106
Respondent No. 2’s acquittal, which was WP Ground
upheld by the Mumbai High Court. jj/Pg 33
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However, it is a well-established legal
principle that a judgment in one
proceeding is neither conclusive nor
binding in another. Each case must be
decided based on the evidence specific to
its proceedings (Ground dd/Pgs.31- 32 of
the WP).
e. Respondent No. 2 failed to provide any WP Ground
evidence proving that he was lawfully kk/Pgs 35
cultivating the land as of 30.08.1975. The
criminal court orders in both proceedings
contain no finding that Respondent No. 2
was in possession of 18A 18g prior to
30.08.1975. The Trial Court’s order in
Criminal Case No. WP Ground
5227/82onlymentions4acres, while the High ll/Pgs 35-36
Court’s order in Criminal Appeal No. 172/93
does not specify any area. Thus, reliance on
these criminal proceedings is misplaced and
reflects a lack of application of mind.
(Grounds ee-gg/Pgs. 32-33 of the WP)
d. That the Deputy Collector was entitled to
suo moto take cognizance of the village WP Ground
settlement (Konkanipada) (Paras 4 to 6, oo/Pgs 35-36
Pg 103-106).
(Note:Petitioner’s Reply:
a. No application was made under Section
6 of the Private Forests Act to claim
exclusion of the village settlement. The
record shows that no such issue was
raised by any party. The then SDO did
not ask any parties to address the
exclusion of the village settlement, and
no representative of the settlement
appeared or made any submissions
supporting this claim. There was no
material or justification for the SDO to Para 17/Pgs
consider such a claim or order its 112-114
exclusion, as stated in the impugned
order (Ground jj/Pg. 35 of WP).
b. As the inquiry was remanded for
WP Ground
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consideration of the limited aspect of m/Pgs 23
whether the 24 acres approximately was
Forest or not, there was no jurisdiction
for the then SDO to decide anything
else. (Ground kk/Pg. 35 of WP).
c. The Petitioner had not been heard
whatsoever on the aspect of whether or
not the village settlement area (17A 19g)
could be legitimately excluded from
forest area. The then SDO did not even
give the appellant an idea that he was
going to decide such an issue (Ground
ll/Pgs. 35-36 of WP).
d. Following the Bombay High Court’s
orders in WP 305/95, eviction
proceedings are underway for
encroachers in the village settlement.
Many encroachers have made payments
as required by the High Court to qualify
for alternative accommodation. Given
this, there was no need to consider
whether the village settlement fell
outside the scope of ‘Forest’ under the
Private Forests Act. The Petitioner could
have presented the records of these
proceedings to the SDO if the SDO had
indicated any intention to consider the
village settlement’s case (Ground
oo/Pgs. 35-36 of WP).
(v) That the Notice was also bad as it was
addressed to D Dayabhai & Co and not
to D Dayabhai & Co Pvt. Ltd. (Para 17,
Pgs. 112-114).
(Note: Petitioner’s Reply:
e. The MRT ruled that no notice was
“issued” or “served” on Respondent No. 1
because the notice was addressed to “D
Dayabhai and Co.” while the name on the
7/12 extract was “D Dayabhai and Co.
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Pvt. Ltd.” The SDO dismissed this as a
clerical error. The MRT’s reasoning
overlooks the fact that Respondent No. 1
never claimed there was another entity
called D Dayabhai and Co. owning the
land. Respondent No. 1 requested an
inquiry under Section 6 of the Private
Forests Act and never argued that the
notice was not received by it or that the
notice was misleading or that the land in
question was not theirs or that the land in
question is not a forest. Additionally,
Respondent No. 1 offered land from other
holdings (gat nos. 59/2, 59/3, and 59/16)
for exchange, which they would not have
done if they believed their land was not
subject to acquisition. (Ground m/Pg. 23
of the WP)Appeal No 165 was dismissed and Appeal
229 was allowed and it was held that the said
land was not covered by the Forest
Acquisition Act.
Comments by R1,
In the proceedings before Dy. Collector
specific Affidavit was filed by Mr. Chimanlal
Shah on 3rd December 1999 stating that he is
the accountant of D.Dahyabhai& Co. which is
a separate entity and that it is a proprietary
concern. He received registered envelop on
04/09/1975 but D.Dahyabhai& Co. is the
different entity and not the owner of subject
land of said notice. Fact of said statement is
concealed in the note by the Petitioner.
Present matter is fully covered by both
judgments of Supreme Court in the case of
Godrej & Boyce and Rohan Vijay Nahar. In
Godrej & Boyce‘s case the word “issued” is
interpreted to include the service also. In the
circumstances the word “issued” mentioned
in para 72 of Godrej judgement in respect of
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pipeline notice in close proximity, has to be
taken up to mean that pipeline notice meant
by the Hon’ble Supreme Court were those
notices which were issued and served in the
close proximity. Para 72 cannot be interpreted
to mean that only issuance of notice is
sufficient to rank it as pipeline notice, live
notice. To make any notice pipeline or live
process what is required is strict compliance
of statutory provisions. As well as non-
missing of all mandatory links provided under
Section 35. The notice which is served before
appointed day only could be considered as
live notice. Because in Rohan Vijay Nahar’s
case Hon’ble Supreme Court has specifically
stated that only upon receipt of notice by the
true land owner right to take objection
triggers. In the present matter there is no
proof either about issuance of notice prior to
appointed day or its service prior to appointed
day upon the true owner. Service is
admittedly upon wrong addressee. This has
been consistent stand of Respondent NO.1
since beginning i.e. before Dy. Collector in
the remand enquiry as well as before MRT
and in present Writ Petition. In view of what
is held in Rohan Vijay Nahar ‘s case, the
issuance of notice cannot co-exist with the
final notification. In present matter notice
was served on wrong addressee but
admittedly on 04/09/1975. Thus it is only on
04/09/1975, right of owner triggered to
object. But on 04/09/1975 Section 35 was
already repealed. So, service of notice on
04/09/1975 is nothing but a service of a dead
notice because on appointed day there was no
live process. Process become live only when
owner’s right to take objection triggers. In
present matter such right triggered on
04/09/1975.
The facts involved in the present matter are
almost similar and identical to the facts
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involved with the Godrej Case and Rohan
Vijay Nahar‘s case. In both the cases it is
specifically held that service cannot be
divorced from issuance. Thus word issue as
contemplated under Section 2 (f) (iii) is
interpreted to mean serve also. Thus, issuance
and service both need to be completed before
appointed day. Only those notices which are
issued and served before the appointed day
can be ranked as pipeline notice because what
is meant by pipeline notice by the Hon’ble
Supreme Court is a live process. In both the
judgements it is already held that the process
shall become live only upon service. The
process in the present matter also was not live
on the appointed day. Even if it is presumed
that notice was issued on 29/08/1975 it
becomes a dead notice because of its service
after appointed day. Treating the present
matter differently from those two matters
would amount to mis interpreting the law laid
down by the Hon’ble Supreme Court in both
the judgements. In the respectful submission
of Respondent No.1 that would be against the
judicial discipline which is underlined by
Hon’ble Supreme Court in Rohan Vijay
Nahar‘s case.
Writ Petition No. 3205 of 2018 thus deserves
to be dismissed and order of MRT needs to be
confirmed.
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ANNEXURE 'E'
PETITIONERS’ NOTE IN REJOINDER TO RESPONDENT
NO.1’S ARGUMENTS
The Petitioner’s rejoinder to the submissions advanced by
Respondent No. 1 is set out as follows:
1. Respondent No. 1’s Submission: No proof of “issuance”
of the notice dated 29.08.1975 prior to the appointed day.
Petitioner’s Response:
1.1 The entirety of the submission viz, that the Section 35(3)
notice was not issued before the appointed day i.e., 30.08.1975,
is contrary to the record relied upon by Respondent No.1 itself.
1.2 In support of this submission, Respondent No. 1 has relied up
on a Marathi transcript of the cross-examination of Shri.
Ramesh Pandurang Pakhare, Assistant Conservator of Forest
SGNP recorded before deputy collector on 24.11.1999 (Pgs.
87-88 of Respondent No. 1’s additional compilation of
documents).
1.3 However, Respondent No. 1 has not produced a translation of
the same.
1.4 Even an office translation (carried out by the Forest
Department) of the relevant proration of the cross-examination
reads as follows:
“A registered post receipt is being submitted (xerox copy) as
proof that a notice under section 35(3) regarding the said land
was sent to D. Dayabhai by registered post on 29/08/1975, and
that D. Dayabhai received the said notice on 04/09/1975.”
1.5 Significantly Respondent No. 1 has not produced the xerox
copy of the registered AD postal receipts, a xerox of which
appears to have been produced by Shri. Pakhare during his
cross-examination.
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1.6 This is borne out by the following answer given in Shri
Pakhare cross-examination;
“A registered post receipt is being submitted (xerox copy) as
proof that a notice under section 35(3)…”
1.7 It is trite law that all answers given by a witness during cross-
examination are deemed to be the evidence of the party cross-
examining the witness.
1.8 Since there does not appear to be any further cross of Shri
Phakre, the cross-examination establishes the following two
facts viz
(a) That a xerox copy of the registered post receipt by which
a Section 35(3) notice was issued to Respondent No. 1 was
produced on the record;
(b) that the registered post receipt established the date of
issuance of the Section 35(3) notice as 29.08.1975 and the
date of its receipt as 04.09.1975.
1.9 Significantly, the objection that the notice under Section 35(3)
was never issued prior to the appointed day has never been
raised by Respondent No. 1 in any of the pleadings filed by it,
including:
(a) in the affidavit-in-reply filed in the present writ petition;
(b) in the Section 6 proceedings filed by Respondent No. 1
before the SDO on 19.01.1980.
(c) before the MRT in the appeal filed by the Petitioner against
the SDO order dated 03.06.1980 wherein the MRT remanded
the matter back to the SDO vide order 15.10.1982.
(d) before the SDO in the second round which was concluded
by an order dated 27.12.2024.
(e) before the MRT wherein both the Petitioner and
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impugned order dated 30th June 2017.
1.10 This objection has been raised across the bar without
Respondent No. 1 putting his oath to this submission.
1.11 Thus, this fact, that a notice under Section 35(3) was issued
prior to appointed day, is a fact admitted Respondent No. 1 by
non-traverse.
1.12 It is trite law that a judicial admissions stand on a higher
footing than evidentiary admissions (Para 27, Nagindas
Ramdas v. Dalpatram Ichharam, (1974) 1 SCC 242).
1.13 Given the serious consequences of a Section 35(3) notice
being issued before the appointed day, it is impossible to
believe that this objection would never have been raised by
Respondent. 1 till the present matter.
1.14 Respondent No.1 is therefore estopped from raising this
objection before this Hon’ble Court.
2. Respondent No. 1’s Submission: The Section 35(3)
notice was issued in the name of Dayabhai and Co. and not
Dayabhai and Co. Pvt Ltd.
Petitioner’s Response:
2.1 This submission is contrary to the admission made by
Respondent No. 1 in Writ Petition No. 1026 of 1975, filed by
Respondent No. 1 before this Hon’ble Court. It is pertinent to
note that Respondent No. 1 was the first petitioner in Writ
Petition No. 1026 of 1975, and the second petitioner therein
was a Director of Respondent No. 1. Respondent No. 1 has
categorically admitted as follows:
a. Para 10/Pg. 21 of Respondent No. 1’s additional
compilation of documents:
“10. By a notice dated 29th August 1975, the
first Respondent purporting to act under the
provisions of the said Central Act purportedSunny Thote 306 of 373
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WP-10024-2023.odtto issue a notice to the 1st Petitioner under the
provisions of S.35(3) of the said Central Act,
requiring 1st Petitioner to show cause as to
why a notification under S.35(1) of the said
Central Act should not be issued in respect of
the said land. The said notice was served upon
the Petitioner on 4th September 1975.”
(emphasis supplied)
b. Para 12(r)/Pg. 30 of Respondent No. 1’s additional
compilation of documents:
“The Petitioners submit that the impugned
notice dated 29th August 1975 (Exhibit “A”
hereto visits the Petitioners with Civil
consequences….”
(emphasis supplied)
c. Exh. D of WP 1026/Pg. 44 of Respondent No. 1’s
additional compilation of documents:
“RE NOTICE DATED TWENTY NINTH
AUGUST 1975 ISSUED BY
CONSERVATOR OF FORESTS THANE
RECEIVED ON FOURTH SEPTEMBER
1975 ISSUED BY SUBDIVISIONAL
OFFICER FORESTS, BORIVILI,
NATIONAL PARK AGAINST OUR
CLIENTS D. DAYABHAI AND CO.
PRIVATE LIMITED IN RESPECT OF
LAND BEARING GAT NO. 59/1…”
(emphasis supplied)
d. Para 2 of Affidavit in support of WP 1026/1975 Pg. 48
Respondent No. 1’s additional compilation of documents:
“I say that a notice dated 29th August 1975
issued by the Conservator of Forests, Thane
was received by the 1st Petitioner CompanySunny Thote 307 of 373
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(
emphasis supplied)2.2 It may be noted that D. Dayabhai and Co. was not even made a
party to WP No. 1026 of 1975.
2.3 If this objection raised that the notice was erved on the wrong
entity was correct, Respondent No. 1 would have no locus to
filed WP 1026 of 1975.
2.4 As stated herein above judicial admissions stand on a higher
footing than evidentiary admissions.
3. Respondent No. 1’s Submission: As the letters dated
05.07.1979 and 28.08.1979 were sent to the Petitioner
“without prejudice”, they do not amount to an admission
under Section 23 of the Indian Evidence Act.
Petitioner’s Response:
3.1 Firstly it maybe noted that it is not the Forest Department or
the State Government that has disclosed the letters dated
05.07.1979 and 28.08.1979 which were marked with the words
“without prejudice” and which have now been produced
Respondent No. 1 in his additional compilation of documents.
3.2 Respondent No. 1 has produced/relied on these documents in
the current proceedings, Respondent No. 1 has waived the
privilege covered by Section. 23 of the Indian Evidence Act.
3.3. Additionally, it is obvious that the offer made by Respondent
No. 1 in letter dated 28.08.1975 was not intended to be a
privilege communication. This because in the course of the
Section 6 proceedings, Respondent No. 1 called upon the SDO
to accept his offer of exchanging 24 acres of land belonging to
Respondent No. 1, not covered by the Notice under 35(3) in
exchange for 24 acres of land covered by the notice.
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3.4 It has never been Respondent No. 1’s case in any proceeding
so far that 24 acres of the land offered in exchange by
Respondent No. 1 was in any form a manner in full and final
settlement and or a waiver of the right to challenge to notice
under Section 35(3).
3.5 Nor was the offer made for surrender of 24 acres made on a
condition that he would withdraw his challenge to the
contentions raised in the WP No. 1026 of 1975.
3.6 Furthermore, the contention raised across the bar that WP.
1026 of 1975 was withdrawn on the ground that the judgment
of Waghmare upheld the constitutional validity of the
Maharashtra Private Forest Act is contrary to the stand taken
by Respondent No. 1 in its affidavit-in-evidence (Para 7.23/Pg.
131) filed in the present proceedings.
3.7 In the said affidavit, Respondent No. 1 has stated that WP.
1026 of 1975 was withdrawn in light of the order passed by the
Sub-Divisional Officer dated 03.06.1980, whereby substitution
of 24 acres of land was permitted.
3.8 In fact the Order of this Hon’ble Court dated 17.06.1980
records WP. 1026 of 1975 was withdrawn without liberty and
costs were imposed (Pg. 77 of Respondent No. 1’s additional
compilation of documents)
3.9 It is submitted that in light of the decision of the Supreme
Court in Peacock Plywood (P) Ltd. v. Oriental Insurance Co.
Ltd., (2006) 12 SCC 673, these letters will not be protected
under Section 23 of the Indian Evidence Act. The relevant
paras are produced below:
“42. Only because the expression “without
prejudice” was mentioned, the same, in our
opinion, by itself was not sufficient and would
not curtail the right of the insured to which it
was otherwise entitled to. The expression
“without prejudice” may have to be construed
in the context in which it is used. If the
purpose for which it is used is accomplished,Sunny Thote 309 of 373
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WP-10024-2023.odtno legitimate claim can be allowed to be
defeated thereby…
43… Privilege can be waived at the behest of
the party entitled to the privilege. ….”
4. Respondent No. 1’s Submission: The said land is not a
forest and it is being used for non-forest activities.
Petitioner’s Response:
4.1 In WP 1026 of 1975 Respondent No. 1 has admitted on oath
that the land was put to non-forest use only to a limited extent
viz:
(a) Para 5/Pg. 13 of Respondent No. 1’s additional
compilation of documents: Respondent No. 1 has leased 21
acres in favour for three quarry operators.
(b) Para 6/Pgs. 13/14 of Respondent No. 1’s additional
compilation of documents: approximately 17 acres out of
the balance of approx183 acres constitute fruit orchid and a
garden operated by Respondent No. 1.
4.2 In the letter dated 05.07.1979 at page 55 of Resppndent No.
1’s additional compilation of documents, Respondent No. 1
admits that the fruit orchard is only 18 acres of which only 10
acres was being acquired as forming Part of Gat No. 59/1.
4.3 In the very same letter dated 05.07.1979 Respondent No. 1
also offered to surrender 128 acres thus admitting that a large
part of the land is a forest land. (Pg. 57 of Resppndent No. 1’s
additional compilation of documents under the Maharashtra
Private Forest Act).
4.4 In the Section 6 application dated 19.01.1980 at Pg. 63 of the
Respondent No. 1’s additional compilation of documents,
Respondent No. 1 admitted that only 24 acres out of the said
land was under cultivation hence he offered to exchange
another 24 acres which was not covered by the Section 35(3)
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notice.
4.5 Therefore, as Respondent No. 1, in 1980, had only sought for
24 acres, it does not now lie in Respondent No. 1’s mouth to
say large parts of the said land is a non-forest area.
4.6 This submission by Respondent No. 1 viz, said land is not a
forest and it is being used for non-forest activities is also
contrary to the Google Earth Image taken as late as on 5 th
December 2025 that show the said area as a forest land.
4.7 Furthermore, it is Petitioner’s case that the said land falls
within the SGNP division not that the said land falls within the
SGNP as notified on 16.01.1996.
4.8 In the additional affidavit dated 01.07.2019 filed in the current
WP, Mr RB Kumbhar, Divisional Forest Officer wherein he
has stated that the entire area (193 acres) of land in survey
number 59/A in Chitalsar-Manpada Thane is included in the
Village Form-1A maintained by SGNP Division as required by
the Forest Manual and the Maharashtra Land Revenue Code,
1966.
4.9 In light of the above it is submitted that the said land is in fact
a forest.
5. Respondent No. 1’s Submission: Re Godrej & Boyce and
Rohan Nahar
Respondent No. 1 Submitted that the following was held in
Godrej & Boyce and the same was affirmed in Rohan Nahar
(a) A Section 35(3) notice should be issued and served
before the appointed day.
(b) The service of the Section 35(3) notice must be in
accordance with the rules for service of summons under the
CPC and must be published in accordance with the rules.
(c) The savings clause i.e., Section 24 of the Maharashtra
Private Forests Act only applies to proceedings for
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restoration of land under Section 22A
Petitioner’s Response:
5.1 The Petitioner submits the following with respect to each of
the above submissions:
Re: Section 35(3) notice should be issued and served before the
appointed day5.2 This submission is based on the observations of the Hon’ble
Supreme Court contained in Paras 59 to 61 of Godrej & Boyce.
5.3 The context in which the Supreme Court made this
observations was with respect to stale notices that had passed
their shelf life i.e. notices issued in the 1950/60s but which
have neither been served or acted upon.
5.4 As was already contended by the Petitioners in their opening
submissions, the Supreme Court in the same judgement of
Godrej & Boyce made a clear distinction between “stale” and
“live” notices.
5.5 In para 72 of Supreme Court judgement in Godrej & Boyce,
the Supreme Court has defined pipeline notices as notices
issued in reasonably close proximity to the coming into force
of the Maharashtra Private Forests Act were “live” and could
be acted upon.
5.6 It is significant that the Supreme Court has not used the
expression that Section 2(f)(iii) was intended to apply to
notices that had been issued and served in close proximity to
coming into force of the Maharashtra Private Forests Act.
5.7 Further, as contended by the Petitioners in their opening
submissions, the Hon’ble Supreme Court in Para 74 of Godrej
& Boyce has held that
“…Section 2(f)(iii) of the Private Forests Act
is in a sense a saving clause for pipeline
notices issued under Section 35(3) of theSunny Thote 312 of 373
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WP-10024-2023.odtForest Act but which could not, for want of
adequate time be either withdrawn or
culminate in the issuance of a regulatory or
prohibitory final notification under Section
35(1) of the Forest Act, depending on the
objections raised by the landowner”
5.8 Therefore it is submitted that in the case of ” pipeline/live”
notices, issuance of the notice in close proximity of the coming
into force of the Maharashtra Private Forest Act would save the
notices such that they could be acted upon under the provisions
of the Maharashtra Private Forest Act.
Re: The service of the Section 35(3) notice must be in accordance
with the rules for service of summons under the CPC and must be
published in accordance with the rules
5.9 The observation of the Supreme Court that the service of the
Section 35(3) notice must be in accordance with the rules for
service of summons under the CPC and must be published in
accordance with the rules and must be published was also
made in the context of the provisions of the Indian Forest Act
and in particular notices which had been issued in the 1950/60s
and not served on the noticees.
5.10 The justification given by the Supreme Court for service of
the notice is found in para 55 of Godrej & Boyce wherein the
Supreme Court has observed that:
(i) A notice under 35(3) is intended is intended to give an
opportunity to the owner of a forest to show cause why,
inter alia, a regulatory or a prohibitory measure be not made
in respect of that forest.
(ii) The owner of the forest is expected to file objections
within a reasonable time as specified in the notice and is
also given an opportunity to lead evidence in support of the
objections.
(iii) The owner of the forest is entitled to a hearing on the
objections.
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(iv) The entire procedure obviously cannot be followed by
the State and the owner of the forest unless the owner is
served with the notice. Therefore, service of a notice issued
under Section 35(3) of the Forest Act is inherent in the very
language used in the provision and the very purpose of the
provision.
5.11 Further, in para 56 of Godrej & Boyce, the Supreme Court
has observed that under the provisions of Section 35(4) the
noticee can be obligated obliged to adhere to one or more of
the regulatory or prohibitory measures mentioned in Section
35(1) of the Forest Act.
5.12 Further on the failure of the owner of the forest to abide by
the aforesaid obligations, the notice is liable is liable to
imprisonment for a term up to six months and/or a fine under
Section 35(7) of the Forest Act.
5.13 It is also for this reason that in Para 57 of Godrej & Boyce,
the Supreme Court holds that under Section 35(4) of the Indian
Forest Act a direction under 35(4) can be made to prevent
damage to or destruction of a forest. The Supreme Court
therefore concludes by holding that:
“…If the notice under Section 35(3) of the
Forest Act is not served on the owner of the
forest, he/she may continue to damage the
forest defeating the very purpose of the Forest
Act. Such an interpretation cannot be given to
Section 35 of the Forest Act nor can a limited
interpretation be given to the word “issued”
used in the context of Section 35 of the Forest
Act in Section 2(f)(iii) of the Private Forests
Act”
5.14 This is the context in which the Supreme Court in Para 58
observes that a Section 35(5) notice mandates that:
“not only service of a notice issued under that
provision “in the manner provided in the Code
of Civil Procedure, 1908, for the service ofSunny Thote 314 of 373
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WP-10024-2023.odtsummons” (a manner that we are all familiar
with) but also its publication “in the manner
prescribed by rules”. not only service of the
summons”
Re: The savings clause i.e., Section 24 of the Maharashtra Private
Forests Act only applies to proceedings for restoration of land
under Section 22A.
5.15 Whilst it is true that the savings clause in Section 24 only
applies to 22A, by reason of the law laid down in Godrej &
Boyce, it has been held that 2(f)(iii) is in the nature of savings
clause and therefore saves notices issued in close proximity of
the appointed day.
5.16 It is retreated that repeats and retiaries that judgements
cannot be read as theorems.
6. Respondent No. 1’s Submission: The Forest Department
is not in possession of the said land
(i) The Forest department has admitted this fact in its letter
dated 23rd January 1980
(ii) By virtue of the registered deeds executed between
TMC and Respondent No.1, Respondent No. 1 has handed
over possession of over 100 acres of the said land to TMC
and Respondent No. 1 is now entitled to receive DRCs in
exchange for the said land from TMC
Petitioner’s Response:
6.1 The Petitioner submits the following with respect to each of
the above submissions:
Re: The Forest department has admitted this fact in its letter dated
23rd January 1980
6.2 The statement made in this letter does not seem to be correct
in light of the fact that the Petitioner has already pleaded
during his opening submission that Forest department hasSunny Thote 315 of 373
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WP-10024-2023.odtconstructed boundary walls, an entry gate, a security cabin, a
nature interpretation centre, and other structures for protecting
the said land.
Re: By virtue of the registered deeds executed between TMC and
Respondent No.1, Respondent No. 1 has handed over possession
of over 100 acres of the said land to TMC and Respondent No. 1
is now entitled to receive DRCs in exchange for the said land from
TMC
6.3 As stated herein above, the Forest Department continues to
remain in physical possession of the said land.
6.4 However, the legal possession may have remained with
Respondent No. 1 on account of Impugned MRT Order dated
30th June 2017 deciding the appeal under Section 6 in favour
of Respondent No. 1.
6.5 In other words, the land would have legally vested in the State
Government only if the Section 6 application was decided in
favour of the State Government.
6.6 The Impugned Order of the MRT was passed on 30 th June
2017 and the current writ petition viz. WP 3205 of 2018 was
filed in 2018.
6.7 Admittedly Respondent No. 1 has attempted to create rights in
favour of TMC vide two registered deeds of transfer dated
April and May of 2019 i.e., after becoming aware of the
pendency of the current writ petition which was served on
Respondent No. 1 in January 2018.
6.8 Since the land was in the physical possession of the Forest
Department, Respondent No. 1 could not have validly
transferred physical possession to TMC.
6.9 In fact TMC has issued a possession receipt to Respondent No.
1 on 23rd April 2019 (Exh.K/Pg 274 of Respondent No. 1’s
affidavit-in-reply) in respect to a portion of the said land,
wherein the possession receipt states as under:
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“This possession receipt does not mean that Thane Municipal
Corporation has taken physical possession of the said land
categiorically stating that they are not in physical possession.
6.10 It is trite law that if the order passed by the tribunal was to set
aside by this Hon’ble Court by virtue of Section 144 of the
CPC, Respondent No. 1 maybe ordered to restitute all benefits
that it may have derived pursuant to the orders of MRT.
6.11 This has been held by the Hon’ble Supreme Court in
Padanathil Rugmini Ama Vs. P.K. Abdulla (1996) 7 SCC 668
as under:
“10…Section 144 of the Civil Procedure
Code where and insofar as a decree or an
order is varied or reversed or is set aside, the
court which passed the decree or order, shall,
on the application of any party entitled to any
benefit by way of restitution or otherwise,
cause such restitution to be made as will, so
far as may be, place the parties in the position
which they would have occupied but for such
decree or order. For this purpose, the court
may make such orders including orders for the
refund of costs and for the payment of
interest, damages, compensation and mesne
profits, which are properly consequential on
such variation, reversal, setting aside or
modification of the decree or order.”
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ANNEXURE 'F'
SUBMISSIONS ON BEHALF OF RESPONDENT NO.1 TO
PETITIONER’S REJOINDER:
A. Suppression and Misrepresentation by the Petitioner (Re: Para
1.4)
1. The Petitioner, while relying upon paragraph 1.4 of its Note in
rejoinder which read as under:
1.4 Even an office translation (carried out by the
Forest Department) of the relevant proration of
the cross-examination reads as follows:
“A registered post receipt is being submitted
(xerox copy) as proof that a notice under section
35(3) regarding the said land was sent to D.
Dayabhai by registered post on 29/08/1975, and
that D. Dayabhai received the said notice on
04/09/1975.”
The petitioner has deliberately and wilfully has once again tried to
mislead the Hon’ble Court by suppressing material facts, thereby
misleading this Hon’ble Court.
a. The Petitioner has consciously stated that the alleged notice was
served upon “D. Dayabhai”, while suppressing the crucial fact that:
i. The alleged notice was not served upon the original owner,
namely D. Dayabhai Co. Pvt. Ltd.;
ii. The alleged notice was instead addressed to an incorrect and non-
juristic entity, rendering the entire service void ab initio.
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b. It is further an admitted position of the Petitioner itself that the
said notice was received only on 4th September 1975, i.e. after the
repeal of the relevant Act.
c. Once the statute itself stood repealed, no proceedings, rights,
obligations or consequences could survive, much less be resurrected
on the basis of an invalid and belated notice.
B. Illegal Reliance on Inadmissible Evidence
a. The Petitioner has heavily relied upon a xerox/photocopy of a
registered post receipt, which is:
i. Inadmissible in evidence under the Indian Evidence Act;
ii. Neither primary evidence nor proved in accordance with law;
iii. Rejected during trial itself for want of proof.
b. It is a settled principle of law that mere photocopies do not
constitute admissible evidence unless foundational requirements are
satisfied.
The Petitioner’s reliance on such inadmissible material vitiates the
entire case and exposes the mala fide attempt to create a false
record.
C. Testimony of Interested Witness
a. The Petitioner has relied upon the statement of Shri Pakhre, who
is:
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i. An employee of the Forest Department;
ii. An interested and partisan witness;
iii. The very person whose conduct has created unnecessary
litigation, confusion, and grave hardship to the Respondent.
b. Reliance on such a witness, without independent corroboration,
cannot override statutory lapses, legal repeal, and absence of lawful
service.
D. Clear Case of Suppression of Material Facts
a. The Petitioner has deliberately suppressed the following material
facts:
i. That the alleged notice was served on the wrong person;
ii. That the alleged service is sought to be proved only by a xerox
copy;
iii. That the notice was admittedly received after repeal of the Act;
iv. That there is no legally valid service upon the lawful owner.
v. That the Petitioner does not have any proof about actual dispatch
of notice prior to appointed day.
b. Such suppression strikes at the very root of the Petitioner’s case
and disentitles the Petitioner from any equitable or discretionary
relief.
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E. MRTP Act – Lapse of Reservation and Collusive Conduct
a. The Respondent no.1’s land in question falls under the
development plan passed and published vide notification dated 1986
approved by the State of Maharashtra in the year 1991 for City of
Thane after considering all objections and suggestions as per the
statutory provisions of MRTP ACT 1966. This unequivocally
establishes that the reference land is situated outside the notified
boundary of Sanjay Gandhi National Park (SGNP), and that the
Thane Municipal Corporation is the competent planning and
implementation authority for the said land.
b. In view of the Development Plan reservation designating the land
as a park, the Respondent has at all times refrained from carrying
out any non-forest activities and, for the overall welfare and
betterment of Thane City, has remained committed to preserving
and maintaining its status as a park.
c. A valid notice under Section 127(2) of the MRTP Act was served;
the copy of the said notice is enclosed for ready reference.
d. The Planning Authority failed to take steps within the statutory
period;
e. The Respondent respectfully submits that, acknowledging the
Petitioner’s contention that a park is an essential amenity for the
citizens of Thane and respecting public sentiment and necessity,
even though a notice under Section 127(2) of the MRTP Act was
served and the reservation had lapsed due to inaction, the
Respondent nonetheless accepted Transferable Development Rights
(TDR) in lieu of monetary compensation for the development of the
park. Accordingly, with the intention of enabling the Thane
Municipal Corporation to develop and maintain the park reservation
and preserve its natural character, the Respondent accepted the TDR
for the overall betterment of the citizens of Thane.
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f. The letter dated 8.1.2020 (Exh.H page 120 of WP
No.10024/2023) issued by TMC to the forest department clearly
established the fact and willingness to Develop the park reservation
for which last three paragraphs are reproduced as below:
वि षयांवि त वि ळ तीबाबत त्या र असलेले पा आरक्षण हापालिल े ने सदर
क्षेत्र संपाविदत े ल्यानंतर त्याचा नेत्तर ा ा रीता ापर होणार नसुन,वि ास विनयंत्रणविनय ा लीतील तरतुदीनुसार पा
आरक्षणा रीताअस्ति&तत् ातील विनसर्ग संपत्ती अबाधि)त ठे ऊन ापर होणारआहे.
त्यानुसार भुखंड)ार यांना सदर भुखंडा रील पा आरक्षणक्र.४ ने
बाधि)तक्षेत्र ह&तांतरीत े लेले असल्याने सदर क्षेत्राचा ोबदला भूखंड)ार ास
देणे हानर्गरपालिल े स ायद्यानेबं)न ार आहे. यदा दाधिचत ठाणेहानर्गरपालिल े नेभुखंड)ार ास ोबदला न विदल्यास भुखंड)ार
ायदेशीर ाय ाही रण्याची शक्यता आहे.
सबब,उपरोक्त प्र रणी र्ग.नं.५९अ, विह.नं.१/१ र न ुद ंजुरवि ास
आराखड्यातील पा आरक्षण क्र.४ चे अस्ति&तत् ातीलविनसर्ग संपत्ती अबाधि)त
ठे ुन नैसर्गिर्ग सौंदयाचे जतन रुन हापालिल ा सा ाजिज नी रण रणार
आहे. तसेच सदरभुखंड न वि भार्गास आ श्य
असल्यास,ठाणे हानर्गरपालिल ा स स)ारण सभेची ान्यता प्राप्त रुन
नवि भार्गास देता येईल. तरी सदर भुखंडाबर हापालिल े नेप्र&तावि त े लेल्या
बाबीचा वि चार होऊन आपल्या वि भार्गाचाअभिभप्राय त् रीत वि ळणेसवि नंती
आहे.
ा. आयुक्त साो. यांचे ान्यतेने,
g. It is further pertinent to note thatLand is acquired, 7/12 extract is
mutated in the name of Corporation and further pursuant to the
order dated 12th July, 2023 passed in Special Civil Suit No 35 ofSunny Thote 322 of 373
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WP-10024-2023.odt2020, measurement was carried physically whereby the boundary
and line possessed by D Dayabhai and Company Pvt Ltd is
earmarked in blue dotted linescolor.The copy of the said
Measurement is enclosed for ready reference.
h. Further, there is a Minutes of 112 th meeting of Regional
Empowered Committee (REC) of Regional office, Ministry of
Environment, Forest and climate Change, Nagpur, held on 6 th
February, 2024 whereby the Agenda of the said Meeting was to
discuss diversion of Forest land in favor of MMRDA Thane for
construction of Twin Tunnel 2 Lanes each side. In the said proposal
the petitioners land was also considered and forest consented
MMRDA to construct said twin tunnels on our land.
The above facts clearly establish that our land is been already
acquired and possessed by various state govt. Authorities and falls
outside the boundary of SGNP.
F. Conclusion
(1) The Petitioner’s case is built on:
(2) Suppression of material facts;
(3) Inadmissible evidence;
(4) Invalid service of notice;
(5) Proceedings post repeal of statute;
(6) Collusive conduct between statutory authorities.
(7) The Petitioner has therefore approbated and reprobated,
abused the process of law, and is not entitled to any relief
whatsoever.
DETAILED COMMENTS ON POINTERS ON BEHALF OF
RESPONDENT NO.1 TO PETITIONER’S REJOINDER
A. R1 comment on submissions of Petitioner in Para 1.1 to 1.15 of
Rejoinder :
i. The Petitioner’s reply on R1’s contention about no proof of
issuance of notice dated 29/08/1975 itself demonstrates that
Petitioner is raising hyper technical issue that R1 has taken thisSunny Thote 323 of 373
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WP-10024-2023.odtstand for the first time after 50 years. Said contention is not correct.
Kindly see WP No.1026 of 1975 (Page 297-338 of R1 Affidavit-in-
Reply particularly Page 308-309 i.e. grounds and Page 320 i.e.
Prayers) filed by R1 after issuance of notice dated 29/08/1975. In
said writ petition validity of the notice dated 29/08/1975 was
specifically challenged. When validity of the notice itself is
challenged, there is no need to put challenge to every aspect of
validity such as issuance, service, contents, annexures, etc. It is
sufficient if the validity of notice itself is challenged. Otherwise also
after the judgements in the Godrej case and Rohan Nahar case it has
become absolutely clear that law declared by the Supreme Court
indicate that notice issued under section 35 (3) of IFA has to be a
valid notice. It is always open to the R1 to use the judgments of the
Hon’ble Supreme Court in Godrej and Rohan Nahar as the Hon’ble
Supreme Court has not resorted to prospective overruling. (Please
see C. B. Gautam para 43 & 46) and C Golakhnath para 45, 50, 51,
52). The burden to prove the validity of the notice is naturally on the
Petitioner because Petitioner claims land with the contention that its
notice is valid. R1 need not have to prove or take objection from
inception about issuance. If at all according to Petitioner objection
about issuance is taken for the first time after 50 years then in
rebuttal Petitioner could have produced on record along with its
rejoinder, proof about actual issuance and dispatch of the concerned
notice prior to appointed day by submitting outward register, copy
of postal receipt showing date of dispatch of notice, etc. Apart from
mention of a number on the notice, there was deliberate failure to
produce the outward register by the Forest Department. Thus
Petitioner has failed to produce any such documents even after
raising the doubt by R1 about issuance of notice before appointed
day. The reliance placed on evidence of the Petitioner’s witness Mr.
Pakhare is half hearted. Instead of relying upon what Pakhare has
said, Petitioner could have produced directly the document of
dispatch showing dispatch of notice prior to appointed day. Non
production of any such document itself demonstrates that Petitioner
till date has no documentary proof to establish the issuance and
dispatch of the notice prior to appointed day. Kindly read para 13.3,
13.4 and 13.5 of Rohan Nahar Judgment (Page 59-60 of Citations
filed by R1). In said paragraphs Hon’ble Supreme Court has clearly
held that ex-proprietary legislation must be construed strictly and
Article 300A of the Constitution requires that no person is deprived
of the property save by authority of law. When the statuteSunny Thote 324 of 373
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WP-10024-2023.odtprescribed a manner of doing the thing it must be done in that
manner or not at all. In para 13.5 it is held that after the passage of
nearly half a century exercise of enquiry under Section 6 is largely
academic and would not cure the absence of mandatory pre
conditions of served notice under Section 35 (3) of IFA and lawful
progression towards the notification under Section 35 (1) of IFA.
ii. In view of declaration of law by the Hon’ble Supreme Court in
the above judgment and in the Godrej Case it becomes primary duty
of the Petitioner to prove beyond doubt the issuance/dispatch of
notice prior to appointed day regardless whether objection about
date of actual issuance is taken at what stage?
iii. The Forest Department has in a substantial number of cases not
taken any action from 1927 till 29/08/1975 (Chintamani Velkar and
present case). Godrej has in para 69 specifically observed that
directions were issued to Collector with a draft copy of the MPFA
annexed thereto on 27/08/1975 with instructions to take possession.
But possession could not be taken over by Petitioner, which fact is
proved from their own letter dated 23/01/1986 (Page 448 of
additional affidavit in reply of R1).
B. R1 comment on submissions of Petitioner in Para 2.1 to 2.5 of
Rejoinder :
i. It is incorrect to state that by virtue of pleadings in WP No.1026 of
1975 any judicious admissions are given by R1 about receipt of
notice by R1 itself. Kindly read order dated 27/12/2004 of Deputy
Collector passed after remand (Page 73-86 of WP). Particularly
Page 75-76 of the said order clearly demonstrate that it has been
consistent stand of R1 that notice was addressed to wrong person
viz. D. Dahyabhai & Co. And not to R1, which is private limited
company who is actual owner of subject land. One Chimanlal Shah
was examined in that regard, who stated that he is accountant of D.
Dahyabhai & Co. which is different entity. Even Deputy Collector
has accepted this fact but discarded it by ranking it as clerical error.
Then kindly see impugned common judgment dated 30/06/2017 of
MRT (Page 87-115 of WP). Kindly read Page 112-113, para 17.
MRT has accepted the fact that notice was addressed to and received
by D. Dahyabhai & Co. which is entirely different entity and held
that this shows that the company who was real owner of the landSunny Thote 325 of 373
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WP-10024-2023.odt(R1) was never served with the notice under Section 35 (3) of IFA.
MRT further held that Deputy Collector was wrong in ranking the
said mistake to be clerical and further held that notice was not
served upon land owner (R1) prior to appointed day as contemplated
by Hon’ble Supreme Court in Godrej Judgment. Hence, said notice
ceased to exist or ceased to have its effect after repeal.
ii. In spite of above stated specific holding by MRT/Petitioner in the
present WP had not demonstrated by way of any document that
notice was served on actual owner i.e. R1.
iii. R1 has filed WP No.1026 of 1975 because it came to know from
Chimanlal Shah the Accountant of said separate entity viz. D
Dahaybhai & Co. because notice was in respect of R1’s land and R1
was the affected party. Just because R1 has admitted in the said WP
that notice dated 29/08/1975 was received by it does not amount to
automatic curing of inherent defect in addressing the notice.
iv. Godrej and Rohan Nahar both stipulate issuance of valid notice
to the real land owner and in the manner prescribed under CPC so
also its publication.
v. The Petitioner neither in the WP nor in the rejoinder demonstrated
compliance of these pre conditions of valid notice.
C. R1 comment on submissions of Petitioner in Para 3, 4 , 5, 6 & 7
of Rejoinder :
i. The submissions made in the said para 3.1 and the reliance placed
upon the judgment of Supreme Court in peacock Plywood Case or
upon Philson on evidence is wholly irrelevant and misleading. It
was Petitioner who in first place suppressed the fact that said letters
were issued without prejudice and now stating that those letters are
no longer without prejudice because they waived their without
prejudice privilege. There is no question in the present matter of
Petitioner waiving any privilege because it was R1 who issued the
letters without prejudice. In peacock case the Insurance Company
was not allowed to resile from the representation made by it on
account of waiver of privilege and in order to advance a beneficialSunny Thote 326 of 373
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WP-10024-2023.odtlegislation in favour of the beneficiary. In Nahar‘s case the Hon’ble
Supreme Court has held that MPFA is an ex-proprietary legislation
so Peacock case is not applicable to the present case.
ii. Kindly appreciate that admittedly said letters dated 05/07/1979
and 28/08/1979 so also the application dated 19/01/1980 (Page 63 of
R1 compilation) all were issued without prejudice to the pending
writ. By filing appeal against Deputy Collector’s acceptance order
dated 03/06/1980 before MRT by the Petitioner, Petitioner itself
rejected the without prejudice offer given by R1. This fact is
evident from the whole reading of MRT order dated 15/10/1982
(Page 48-56 of WP).
iii. From said remand order dated 15/12/1982 particularly para 8,
13, 15, 16, 17 and 22 as well as the operative part it is evident that
matter was remanded for fresh enquiry in respect of entire land
admeasuring 204 acres. Accordingly, Deputy Collector framed
issues (Page 75 of WP). The Petitioner never raised objection about
framing of said issues before Deputy Collector; in fact, Petitioner
participated in the trial upon said issues by leading evidence. It is
only in the appeal no.165 of 2005 before MRT Petitioner has taken
stand that enquiry was restricted to 24 acres and R1 has concealed
that 168 acres is forest. From para 8, Page 108 of WP of the MRT
order it is evident that MRT discarded contention of Forest
Department that enquiry was restricted to only 24 acres. In para 10
of MRT order, MRT framed specific questions for determination on
the basis of rival contentions of parties. Those issues/questions are
as under:-
1. Whether the land in dispute can be said to be private forest
as contemplated under Section 2 (f) (iii) of MPFA?
2. Whether the proceedings conducted by Deputy Collector
was vitiated by the non service of notice on or before
appointed day?
3. What order?
iv. Para 11 of the MRT order demonstrate that negative findings was
given on issue no.1 and accordingly the entire land was held as non
forest. Affirmative finding was given on issue no.2 by holding that
proceeding conducted by Deputy Collector stands vitiated because
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of non service of notice under Section 35 (3) of IFA upon the real
land owner (R1).
v. The Petitioner neither in the WP nor in the rejoinder has
demonstrated that there was valid service upon true owner and/or
the subject land comes within the definition of private forest. The
Petitioner has not even filed on record the alleged notice dated
29/08/1975. Without showing a single document from the record
and without satisfying the Hon’ble Court about actual issuance and
service upon real land owner i.e. R1, attempt has been made by
Petitioner to create confusion by way of misleading this Hon’ble
Court by misinterpreting the binding ratio of Godrej and Rohan
Nahar judgments by pointing out immaterial facts and without
demonstrating strict compliance of statutory pre conditions for
vesting the land in the Forest Department.
vi. It is incorrect to state that in WP No.1026/1975 R1 has admitted
on oath that the land was put to non forest use only to a limited
extent. It is not R1 who has to prove that subject land is not forest
but it is for the Petitioner to prove that subject land comes within the
definition of forest. In fact, since 1975 it had been consistent stand
of R1 that subject land does not come within the definition of forest.
The remand order dated 15/10/1982 was to make enquiry in that
regard. In enquiry panchanama was carried out by the Petitioner’s
own officers in which it is recorded that more than 107 acres of land
was under non agricultural user. Kindly read page 65-67 of
compilation of R1. In para 4.8 misleading reference of village form
-1A maintained by SGNP Division is given but same is neither
produced on record nor from form-1A it could be construed as land
is vested in State under Section 3 of MPFA.
vii. The Petitioner has attempted to misinterpret para 72 of Godrej
Judgement by contending that Supreme Court has not used the word
served in close proximity and therefore for any notice to become
pipeline notice what is required is only issuance in close proximity
and not service before appointed day. Said interpretation is incorrect
because in the earlier paragraphs of the Godrej Judgement the word
issued used in Section 2 (f) (iii) of MPFA is interpreted as issued
and served and it is specifically held that service is inherent in the
word ‘issued’. Supreme Court therefore never intended in para 72
to exclude service. As per Godrej Judgement pipeline notice means
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WP-10024-2023.odt
issued and served in the close proximity before appointed day.
Godrej Judgement therefore overrules its previous judgement in
Chintamani Velkar to that extent because in that matter also service
was after appointed day.
viii. It is incorrect to say that in view of Godrej Judgement notices
issued in closed proximity but served after repeal are saved by
Section 2 (f) (iii) of MPFA.
ix. Petitioner in the rejoinder and/or in the rejoinder argument
unnecessarily attempted to point out certain orders passed in PIL
No.305 of 1995. On the basis of said orders, Petitioner tried to urge
that even the subject land of the present petition being included in
SGNP Division, becomes forest land and vest with the State
Government. Said argument is misleading. It is respectfully
submitted that orders passed in said PIL are passed in different
context and not related to the subject land. In any case subject land
i.e. Survey No.59/1 was not the subject matter of said PIL.
Admittedly, R1 who is the owner of Survey No.59/1 was not party
to the said PIL. In fact, present petition is a dispute between private
land owner and forest department and this dispute has nothing to do
with the said PIL or orders passed therein or in any other matter. The
issue involved in the present petition is that whether by merely
saying that forest has issued notice dated 29/08/1975 under Section
35 (3) of IFA (to the wrong addressee and not to R1) whether land
of R1, which it has purchased from High Court Receiver in 1960,
would vest with the State under Section 3 of MPFA and that too
without complying with other statutory pre requisites such as
issuance of notification under Section 35 (1) of IFA, giving
opportunity of hearing to the owners, etc. For the facts involved in
the present matter relevant judgments are the judgment passed by
the Supreme Court in Godrej Case and Rohan Nahar Case.
Petitioner by citing irrelevant orders passed in the PIL, is trying to
create confusion. Rohan Nahar Case clearly helds that for vesting
of land in the State strict compliance is mandatory and even one
missing statutory step would amount to “not vesting” the land in the
State. On this backdrop, at this point of time, stating that
Government has included the land bearing Survey No.59/1 in SGNP
forest division is malafide contention and such inclusion without
giving opportunity of hearing to the land owner viz. R1 would be
otherwise violative of fundamental rights of the R1 under Article 14
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WP-10024-2023.odt
of the Constitution. In any case such alleged inclusion in SGNP
division does not amount to automatic vesting of the subject land
under Section 3 of MPFA as well as such inclusion in SGNP
division is violative of Article 300A of the Constitution. It is
otherwise clear from notification dated 16/01/1996 (Page 445-447
i.e. Exh.A of Additional Affidavit of R1) that Survey No.59/1 is not
within the notified area of SGNP. Petitioner’s own letter dated
23/01/1986 (Page 448 i.e. Exh.D of Additional Affidavit of R1)
clearly shows that possession of Survey No.59/1 could not be taken
over by Forest Department. There are no other documents such as
Panchanama, Possession receipt, etc. filed on record to demonstrate
that Petitioner ever took legal and physical possession of subject
land from R1. Admittedly, from 2019 about 104 acres of land out of
subject land is in possession of TMC. About 18 acres of land is
under cultivation of R2. Upon 17 acres 19 gunthas of land there is
village settlement by name Kokanipada. Rest of the land is under
cultivation of R1 and/or under N A user, quarrying operations,
horticulture, construction of godown, roads, etc. In the
circumstances, it is fanciful to state that subject land admeasuring
193 acres 7 gunthas and 4 annas is within SGNP forest division.
The TILR report recently carried out also demonstrate that subject
land is not in possession of SGNP or within SGNP forest division.
x. Petitioner’s reliance on Section 144 of CPC whereby principle of
restitution is stipulated is improper, irrelevant and not applicable to
the facts involved in the present matter. It is evident that subject
land never vested in Forest Department under Section 3 of MPFA
because for such vesting all statutory pre conditions mentioned in
Section 35 (1), 34 (A), and 38 of IFA have not been complied with.
Unless there is a vesting, there is no question of restitution.
xi. The entire rejoinder including submissions made in para 4, 5, 6
& 7 of the rejoinder are misleading and a definite attempt to
wrongly distinguish binding effect of judicial precedent of Godrej
Case and Nahar Case on the basis of immaterial facts.
xii. It will be appropriate to point out para 14.5 & 14.6 of Rohan
Nahar Judgment, which are reproduced hereunder:
14.5. When a judgment minimises a binding ratio,
ignores missing statutory steps, and seeks to
distinguish on immaterial facts, it creates anSunny Thote 330 of 373
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WP-10024-2023.odtappearance of a reluctance to accept precedent.
Such an approach conveys a major of pettiness that
is inconsistent with the detachment that judicial
reasoning demands. In our view this is an
unfortunate departure from the discipline of stare
decisis.
14.6. We accordingly hold that the present appeals
are indistinguishable in principle from Godrej and
Boyce ( Supra). The record discloses the same
jurisdictional defects of non-service of a notice
under section 35 (3) of IFA, the same absence of a
final notification under Section 35 (1) of IFA, and
the same want of contemporaneous steps under
Section 4,5,6 and 7 of the MPFA Act. In such
circumstances the High Court could not consistently
with Article 141 of the Constitution avoid the
binding ratio by treating immaterial differences as
determinative. In our opinion fidelity to binding
precedent and to the statutory scheme admits of no
other conclusion than that the impugned order must
be set aside.
D. Kindly also appreciate other citations filed by R1 particularly
regarding effect of repeal, saving clause, retrospective application of
judgment of Supreme Court, etc. Submissions in short in that
regard are as under:
i. 1967 SCC (Online) SC 14 C Golakhnath and Others V/s. State of
Punjab (Para 45. 50, 51, 52) and1993 (1) Supreme Court Cases 78
C.B. Gautam V/s. Union of India (Para 43, 46):-These 2 judgments
were cited to demonstrate that judgment interpreting the legal
principles or provisions have retrospective effect. Whenever
Supreme Court intends to give prospective effect then it is
specifically stated so in the concerned judgment.
ii. Godrej and Boyce and Vijay Nahar’s judgments are retrospective
in nature. Interpretation of provisions made therein of MPFA, IFA,
etc. has retrospective effect and hence those two judgments are
applicable to the facts involved in the present case.
iii. In fact, even Petitioner in their note have admitted that Godrej
and Boyce and Vijay Nahar’s judgments are relevant for the presentSunny Thote 331 of 373
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WP-10024-2023.odtmatter but Petitioner made incorrect attempt to distinguish them
with the present facts.
iv. Judgment of the Supreme Court in the case of Chintamani
Gajanan Velkar (2000) 3 Supreme Court Cases 143 has also been
referred to demonstrate that even in that case 35 (3) notice was
dated 29/08/1975 but served on 12/09/1975 i.e. after repeal of
Section 35 of IFA. Thus, said notice was also issued in closed
proximity but not served before appointed day. The same therefore
did not qualify as a pipeline notice. In that matter Deputy Collector
held that subject land did not vest in the State as the notice issued
under Section 35 (3) was not served on the land holder before
appointed day viz. 30/08/1975. In said matter Deputy Collector
held that for the purpose of definition of private forest under Section
2 (f) of MPFA it was necessary that notice be not only issued under
Section 35 (3) of IFA but should have also be served on the land
holder before the appointed day i.e. 30/08/1975. however, Hon’ble
Supreme Court in the said case of Chintamani Velkar held that
notice issued under Section 35 (3) would itself is sufficient if such
notice is issued before the appointed day and there is no need for
any service of such notice before 30/08/1975. Said view of the
Supreme Court in Chintamani Velkar is overruled in Godrej and
Boyce (Para 62) by holding that mere issuance of notice is not
sufficient but issuance include service as well as mandatory
compliance of all pre-conditions of served notice under Section 35
(5) of IFA. Thus, the view taken by Deputy Collector in Chintamani
Velkar‘s case in a sense is upheld and confirmed in Godrej Case by
the Supreme Court. Even in the present matter notice is dated
29/08/1975 and served on 04/09/1975 (that too on wrong addressee)
i.e. after appointed day viz. 30/08/1975. Thus, the judgment of
Godrej and Boyce has to be made applicable to the present facts by
holding that notice was served on 04/09/1975 i.e. after appointed
day and that too on the wrong addressee and hence, is void and not
enforceable at law.
v. 2024 (8) SCC 742 in the case of Pernod Richord India Pvt. Ltd.
V/s. State of Mdyapradesh & Ano.:- Para 13 states that repealed
provision will cease to operate from the date of repeal and the
substituted provision will commence to operate from the date of its
substitution).
vi. 2025 DGLS (Bom) 2724 in the case of Hikal Ltd. V/s Union of
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India:- The aspect of repeal of enactment and its enforceability after
repeal is discussed at length by referring to constitution bench.
Kindly read Para 78 of said judgment in which Para 36 to 40 of
Constitution Bench judgements are reproduced.
vii. (2000) 2 Supreme Court Cases 536 in the case of Kolhapur
Cane Sugar Works Ltd. V/s. Union of India:-
In Para 37 it is held that “The position is well
known that at common law, the normal effect of
repealing a statute or deleting a provision is to
obliterate it from the statute-book as completely as
if it had never been passed, and the statute must be
considered as a law that never existed. To this rule,
an exception is engrafted by the provisions of
Section 6 (1). If a provision of a statute is
unconditionally omitted without a saving clause in
favour of pending proceedings, all actions must stop
where the omission finds them, and if final relief
has not been granted before the omission goes into
effect, it cannot be granted afterwards.” (In the case
of MPFA, Section 24 (2) is a limited saving clause
applicable only in respect of land restored under
Section 22 (A) of MPFA. Said saving clause is not
applicable in respect of Section 2 (f) (iii) where
issuance of notice under Section 35 (3) is stipulated.
No doubt Godrej Case states that Section 2 (f) (iii)
itself in a sense is a saving clause but same can be
made applicable only to those notices issued and
served before appointed day).
E. It is respectfully submitted that as demonstrated in the short note
and by way of comments in red made by R1 in modified dates and
events, R1 has beyond doubt substantiated that in the present matter
on appointed day there was no live process in existence and hence,
the notice in the present matter of which issuance is doubtful before
appointed day and service is admittedly on wrong owner, cannot be
ranked as live or pipeline notice, as sought to be contended by the
Petitioner.
F. Hence, present petition deserves to be dismissed.
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ANNEXURE 'G'
SUBMISSIONS ON BEHALF OF RESPONDENT NO. 2.1,2.3 TO
2.12′
1. Declaration of Respondent No. 2’s tenancy under section 70(b) of
the Bombay Tenancy Agricultural Lands Act, 1948 has attained finality
(a) Since the year 1960, Respondent No. 2 has been a tenant of Respondent
No. 1 and in actual occupation, possession and cultivation of the land
admeasuring 18 acres 18 gunthas bearing Gat No. 59/1 at Manpada
village, Thane (“Smaller Land”). [Respondent No.2’s LRs Affidavit in
Reply dated 11th December 2019, pg. 155, paras 3 and 4]
(b) On 29th August 1975, alleged Notice claimed to be issued by the Deputy
Conservator of Forests under section 35(3) of the Indian Forest Act,
1927 (“Forest Act“) in respect of the land admeasuring 204 acres, 8
gunthas and 8 annas and bearing Gat No. 59/1 at Manpada village,
Thane (“Larger Land”).
Note:
1. The Smaller Land forms a part of the Larger Land.
2. Respondent No. 1 has failed to produce any proof of issuance of
the alleged notice on 29th August 1975
(c) Criminal Case No.5227 of 1982 was filed by the Maharashtra Forest
Department against Respondent No. 2 under section 26 of the Forest
Act for the offence of trespassing on forest land, which was dismissed
by the Hon’ble Judicial Magistrate Fist Class Thane vide Order dated
30th September 1992. [Exhibit A to Respondent No.2’s LRs Affidavit
in Reply dated 11th December 2019, pg. 160 at pg. 168]
Note:
i. The said Order records the following admissions made by the
Maharashtra Forest Department personnel (viz. PW-1 and PW-4)
during their cross-examination as witnesses in the criminal
proceedings filed against Respondent No. 2:
a. The Smaller Land was private land of Respondent No. 2 prior
to it being declared as a forest in the year 1975. [para 10 at
Pg 164]
b. Respondent No. 2 was in possession of the Smaller Land priorSunny Thote 334 of 373
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WP-10024-2023.odtto the year 1975. [para 10 at Pg 165]
c. Smaller Land originally belonged to Respondent No. 1 and
Respondent No. 2 has been cultivating the said land as a
tenant. [para 10 at Pg 163]
d. Nothing has come on record to show that the Forest
Department has taken possession of the Smaller Land. [para
10 at Pg 165]
[Exhibit A to Respondent No.2’s LRs Affidavit in Reply dated
11th December 2019, para 10 at pgs. 164 and 165 and para 13 at
pg.166]
ii. An admission made by a party in a previous criminal proceeding, is
admissible in subsequent civil proceedings. [Seth Ramdayal Jat
vs. Laxmi Prasad, (2009) 11 SCC 545, at paras 20 and 21]
(d) The Petitioner’s Criminal Appeal No. 172 of 1993 against the Hon’ble
Judicial Magistrate First Class Thane’s Order was dismissed by
Judgment dated 14th June 1993 of this Hon’ble Court, which held:
i. Respondent No. 2 is in possession as a tenant of Respondent No.1
prior to the land being declared as forest land .[ Pg No.171]ii. The construction found on the land is 9 years old and hence no fresh
construction or clearing of forest is proved against Respondent
No. 2. [ Pg No.171]
iii. No appeal was filed by the Petitioner against the Hon’ble High
Court’s judgment, and therefore the findings of the Hon’ble High
Court in the said judgment have attained finality.
[Exhibit B to Respondent No.2’s LRs Affidavit in Reply dated 11 th
December 2019, pg. 169 at pg. 170]
(e)In March 1991, Respondent No.1 attempted to interfere with Respondent
No.2’s possession of the Smaller Land, which led Respondent No. 2 to
file Application No.16 of 1991 before the Tahsildar ALT Thane under
section 70(b) of the Bombay Tenancy and Agricultural Lands Act,
1948 (“BTAL Act“) for declaration of his tenancy in respect of the
Smaller Land. [Respondent No.2’s LRs Affidavit in Reply dated 11 th
December 2019, pg. 155, para 6 and Exhibit C, at pg. 171]
(f) By the Tahsildar’s Order dated 23 rd February 2004, Respondent No. 2
has been declared as a tenant of the Smaller Land since the year 1960.
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[Exhibit D to Respondent No.2’s LRs Affidavit in Reply dated 11 th
December 2019, pg. 174 at pg. 179 (English translation at pg.186)]
Note:
i. An Order passed under section 70(b) is appealable under section
74(1)(a) of the BTAL Act and the Petitioner could have
challenged the Tahsildar’s Order even though the Petitioner was
not a party to those proceedings; yet no appeal was filed by the
Petitioner. [Ebrahim Yusuf Lambe vs. Abdul Razak Abdul
Rahiman Mulla, AIR 1977 Bom 22, at para 9; Nookala
Setharamaiah vs. Kotaiah Naidum, (1970) 2 SCC 13, at para 24
and State of Kerala vs. Mohammed Basheer, (2019) 4 SCC 260,
at paras 19 to 20]ii. Respondent No. 1 filed Tenancy Appeal No. 109 of 2015 before the
Sub-Divisional Officer challenging the Tahsildar’s Order, and the
delay of 11 years in filing the said appeal was condoned by the
Sub-Divisional Officer’s Order dated 23rd February 2017.
[Exhibit E to Affidavit in Reply dated 11 th December 2019 of
Respondent No. 2’s LRs, pg. 187 at pg. 195.]iii. By Order dated 4th May 2017, the Maharashtra Revenue Tribunal
allowed Respondent No. 2’s Revision Application No. 150 of
2017 against the Sub-Divisional Officer’s Order and dismissed
Respondent No. 1’s Tenancy Appeal. [Exhibit F to Affidavit in
Reply dated 11th December 2019 of Respondent No. 2’s LRs, pg.
197 at pg. 207]iv. Respondent No. 1’s Civil Writ Petition No. 6351 of 2017 filed to
challenge the Maharashtra Revenue Tribunal’s Order, was
dismissed by this Hon’ble Court’s Judgment dated 23 rd January
2019. [Exhibit G to Affidavit in Reply dated 11 th December 2019
of Respondent No. 2’s LRs, pg. 208 at pg. 225, para 25]v. Respondent No. 1’s Special Leave Petition (C) No. 9998 of 2017
filed to challenge this Hon’ble High Court’ Judgment, was
dismissed by the Hon’ble Supreme Court’s Order dated 29 th April
2019. [Exhibit H to Affidavit in Reply dated 11 th December 2019
of Respondent No. 2’s LRs, pg. 226]vi. Respondent No.1’s Review Petition No. 366 of 2020 filed against
the dismissal of its Special Leave Petition, was dismissed by the
Hon’ble Supreme Court’s Order dated 6 th February 2020. [Page 7Sunny Thote 336 of 373
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vii. The Tahsildar’s Order declaring Respondent No. 2 as a tenant of
the Smaller Land has therefore attained finality. It therefore
stands established that the Respondent No.2 was the tenant in
respect of the smaller land, at least since the year 1960. [Ashalata
Anand Dabholkar vs. Vrindevati Tukaram Bhaire, (2005) 1 Mah
LJ 418, at para 9 and Gulabrao Laxman Kolhe vs. Tahsildar, W.P.
No. 2759 of 2018 dated 24.07.2025, at para 8]viii. The Tahsildar’s Order cannot be reopened in collateral
proceedings. [Union of India vs. S.P. Sharma, (2014) 6 SCC 351,
at para 76 and Pankaj Bhargava vs. Mohinder Nath, (1991) 1
SCC 556, at para 20]. Therefore it is clear that the attempt on the
part of the Petitioner to raise factual controversies with respect to
the tenancy and possession of Respondent No.2 in respect of the
smaller land is in inapposite and impermissible without prejudice
to the same, it is submitted that this Hon’ble Court ought not to
enter into factual controversies/ disputed questions of facts in
exercise of its writ jurisdiction [Gunwant Kaur vs Municipal
Committee (1969) 3 SCC 769]
2. The Larger Land (which includes the Smaller Land) has been exempted
under Section 3(2) of the MPFA Act
(a) The smaller land thus being held by Respondent No.2 as a tenant and
lawfully being under his cultivation on 30 th August 1975 (the
appointed day on which the Private Forest came into force), the same
is exempted from being declared as private forest under section 3 (2)
of the Private Forest Act, 1975 [State of Kerala vs. Mohammed
Basheer, (2019) 4 SCC 260, para 17 to 21]
(b) Deputy Collector (Private Forests) passed an Order dated 3 rd June 1980
under section 6 of the MPFA Act, directing that out of the land bearing
Gat No. 59/1 at Manpada:
i. An area of 168 acres 15 gunthas 4 annas would be vested in the
Petitioner as private forest.
ii. An area of 24 acres 32 gunthas would be retained by Respondent
No.1 and in lieu thereof, an area of 24 acres 32 gunthas out of
Respondent No.1’s properties in Survey nos. 59/2, 59/3 and 59/16Sunny Thote 337 of 373
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[Writ Petition, para 3(i) at pg.8]
(c) The Petitioner’s appeal against the Deputy Collector’s Order was
allowed by Judgment dated 15th October 1982 of the Maharashtra
Revenue Tribunal, which remanded the case back to the Deputy
Collector for holding a further inquiry. [Exhibit A to Writ Petition, pg.
48 at pg. 56]
(d) Respondent No. 2 filed an Intervention Application before the Deputy
Collector in Remand Case No. 53 of 1999 for being added as a party in
the inquiry under section 6 of the MPFA Act on the ground that
Respondent No. 2 has been in actual and physical possession of land
admeasuring 7 hectares and 37 ares (equivalent to 18 acres and 18
gunthas) out of Gat No. 59/1 as a tenant. The said Intervention
Application was opposed by the Petitioner. [Writ Petition, paras 3(m)
and 3(n), at pgs.10 and 11, Exhibit B, at pg.57 and Exhibit C, at pg.64]
(e) In Remand Case No. 53 of 1999, after hearing the Petitioner and
Respondent Nos. 1 and 2 respectively, the Deputy Collector by Order
dated 27th December 2004 held:
i. An area of 132 acres and 18 gunthas is declared as private forest
under the MPFA Act and the Forest Department shall pay
compensation at the specified rate to its owner (viz. Respondent
No. 1).
ii. An area of 24 acres and 32 gunthas is exempt under section 3(2) of
the MPFA Act as it is not a forest / private forest and it should be
restored to the original owner or consequent lawful owner.
iii. An area of 18 acres and 18 gunthas is exempt as forest/private forest
and the said land be restored to the Intervenor (viz. Respondent No. 2)
who is a tenant over the said land.
[Exhibit D to Writ Petition, pg.73 at pg.86]
(f) By Order dated 30th June 2017, the Maharashtra Revenue Tribunal
quashed and set aside the Deputy Collector’s said Order and declared
that the land bearing Gat No. 59/1 is not a ‘private forest’ under section
2(f)(iii) of the MPFA Act and is therefore entirely excluded from
acquisition under the MPFA Act and the village records may therefore
be corrected. Forest Appeal No. 229 of 2009 filed by the RespondentSunny Thote 338 of 373
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WP-10024-2023.odtNo. 1 (viz.) against the Deputy Collector’s said Order was allowed and
the Petitioner’s Forest Appeal No. 165 of 2005 was dismissed. [Exhibit
E to Writ Petition, pg.87 at pg.115]Note: The definition of the term ‘private forest’ under section 2(f)(iii)
of the MPFA Act must be strictly construed. [Godrej & Boyce
Manufacturing Co. Ltd. vs. State of Maharashtra, (2014) 3 SCC 430, at
para 73] [HPC vs Darius Shapur Chenai 2005 (7) SCC 627 para 29]
(g) The Revenue Department mutated Respondent No. 1’s name in respect
of the Larger Land in the revenue records under Mutation Entry No.
1056, which was subsequently confirmed by the Sub-Divisional
Officer’s Order dated 31st January 2019 in the Petitioner’ Revision
Application No. 182/2018 which was filed to challenge the said
Mutation Entry. [Respondent No. 1’s Additional Affidavit dated 9 th
April 2021, Exhibit D at pg. 490 and Exhibit E, pg. 492 at pg. 499]Note: The Sub-Divisional Officer’s said Order dated 31 st January 2019
has not been challenged by the Petitioner and has therefore attained
finality. [Respondent No. 1’s Additional Affidavit dated 9 th April 2021,
at pg. 438, para 8]
3. Manpada Village does not fall within boundaries of Sanjay Gandhi
National Park:
(a) The Maharashtra Forest Department’s Notification dated 16 th January
1996 under section 35(4) of the Wildlife (Protection) Act, 1972
specifying the boundaries of the Sanjay Gandhi National Park, does
not include the Larger Land (which includes the Smaller Land) within
the said boundaries. [Exhibit N to Respondent No.1 Affidavit in Reply
dated 25th November 2019, pg. 427. Having not included the Larger
land in the aforesaid notification, it is now not open for the Petitioner
to contend that the same is a part of SNGP. It is well settled that a party
cannot be permitted appropriate and reprobate [Rajasthan State
Industrial Development and Investment Corporation. vs. Diamond &
Gem Development Corporation Ltd.,(2013) 5 SCC 470 para 15 & 16]
(b) Respondent No. 1 has also admitted that the Larger Land (which
includes the Smaller Land) does not form part of the Sanjay Gandhi
National Park. [Respondent No.1 Affidavit in Reply dated 25 th
November 2019, para 24 at pg. 275]Sunny Thote 339 of 373
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4. Respondent No. 2’s name has been mutated in respect of the Smaller
Land in the revenue records
(a) By a common Judgment and Order dated 24 th March 2008, the Hon’ble
Bombay High Court dismissed the Writ Petitions filed by Godrej &
Boyce Manufacturing Co. Ltd. (“Godrej”) and others challenging the
notices issued by the Forest Department under section 35(3) of the
Forest Act.
(b) In Special Leave Petition (C) No. 11509 of 2008 filed against the
Hon’ble High Court’s said Judgment, Respondent No. 2 filed Interim
Application No. 18 of 2010 for impleadment therein and Interim
Application No. 19 of 2010 praying for a direction that Respondent
No. 2’s Smaller Land is non-forest land and should be free to be
developed under Development Control Regulations and municipal bye
laws. [Exhibit D to Additional Affidavit dated 21st September 2023 of
Respondent No. 2’s LRs, pg. 512 at pg. 524.]
(c) By Judgment dated 30th January 2014, the Hon’ble Supreme Court
allowed the appeals filed by Godrej and others against the Hon’ble
High Court’s said Judgment and quashed and set aside the impugned
notices issued under section 35(3) of the Forest Act. [Exhibit C to
Respondent No. 1’s Additional Affidavit dated 9 th April 2021, pg. 450
at pgs. 488 and 489, paras 87 to 91]
Note: The Hon’ble Supreme Court’s Order also allowed Respondent
No. 2’s impleadment application and consequently the Smaller Land
was exempted from being declared as forest land. [Exhibit C to
Respondent No. 1’s Additional Affidavit dated 9 th April 2021, pg. 450
at pg. 488, para 90]
(d) By Order dated 16th March 2015, the Sub-Divisional Officer Thane
exempted the Smaller Land from reservation as a ‘private forest’ under
section 3(2) of the MPFA Act and directed mutation of Respondent No.
2’s name in respect of the Smaller Land in the revenue records.
[Exhibit H to Additional Affidavit dated 21st September 2023 of
Respondent No. 2’s LRs, pg. 565 at pg. 567]
Note:
i. By Order dated 27th March 2015, the District Collector, Thane stayed
the said Order of the Thane Sub-Divisional Officer. [Exhibit I to
Additional Affidavit of Respondent No.2 LR’s dated 21 stSunny Thote 340 of 373
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ii. By letter dated 9th July 2015, the Divisional Commissioner (Konkan
Division) directed the District Collector to vacate the stay on the
said Order of the Sub-Divisional Officer. [Exhibit J to Additional
Affidavit of Respondent No.2 LR’s dated 21 st
September 2023, pg. 572]LIST OF DATES AND EVENTS OF RESPONDENT NO. 2.1,
2.3 TO 2.12The Respondent No.2.1 to 2.12 are the legal heirs of late
Narayan Ganu Tangadi who during his lifetime was
cultivating the land admeasuring 7H 38R (equivalent to 18
acres and 18 gunthas) from land bearing Gat No.59/1,
Village Chitalsar, Manpada Taluka, District Thane as an
agricultural tenant (hereinafter referred to as the ‘ said
tangadi land’) out of said larger land i.e. land
admeasuring 207 acres, 8 gunthas and 8 annas situated in
Gat No. 59/A/1, Manpada, Chitalsar, Thane (hereinafter
referred to as the ‘ said larger land’) which is owned by
Respondent No.1 i.e. D. Dahyabhai & Co. Pvt. Ltd.
Sr. Date Particulars Page No.
No.
1. 1960 The late Narayan Ganu Tangadi 154
(predecessor of Respondent No. 2.1 to Para 4 of
2.12) was cultivating the said tangadi Affidavit in
land as an agricultural tenant prior to Reply of
1960. Respondent
No. 2.1, 2.3
to 2.12
2. 29 t h Alleged notice under section 35(3) of the 277
August Indian Forest Act 1927 (“Forest Act“) Affidavit in
1975 was claimed to be issued to D. Reply of
Dahyabhai and Company (which is an Respondent
affiliate of the owner of the said larger No.1
land).
Sunny Thote 341 of 373 ::: Uploaded on - 25/02/2026 ::: Downloaded on - 27/02/2026 21:51:26 ::: WP-10024-2023.odt 3. 1982 Maharashtra Forest Department filed 154 Criminal Case No. 5227 of 1982 against Para 5 of Shri. Narayan Ganu Tangadi before the Affidavit in Judicial Magistrate First Class (Thane) Reply of ("JMFC") under section 26 of the Forest Respondent Act for the offence of trespassing on No. 2.1, 2.3 forest property. to 2.12 th 4. 25 The landowner tried to interfere with the 155 January possession of Shri. Narayan Ganu Para 6 of 1991 Tangadi and therefore he filed an Affidavit in Application No. 16 of 1991 under section Reply of 70B of the Bombay Tenancy Agricultural Respondent Lands Act, 1956 ("BTAL Act") for No. 2.1, 2.3 declaration of tenancy over said land. to 2.12 th 5. 30 Criminal Case No. 5227 of 1982 was 160 Septem dismissed by the JMFC holding that the - ber said Shri. Narayan Ganu Tangadi is in 168
1992 possession of the said tangadi land prior
to 1975 as an agricultural tenant and he Affidavit in
was found in possession prior to alleged Reply of
declaration of private forest. Respondent
No. 2.1, 2.3
Note : JMFC’s Order records: to 2.12
dated
(a) Admitted position that the said Shri 11.12.2019
Narayan Tangadi is in possession of
land at Gut No. 59/1 at Manpada.
[Ex. A at pg. 161 – Para 6]
(b) The Maharashtra Forest Department’s
employee and witness (PW-1)
admissions during his cross-
examination: [Ex. A at pg. 165 – Para
10]
A. Land was the private land of
the said Shri Narayan Tangadi
before it was declared as a
forest in 1975.
B. Prior to 1975, the said Shri
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Narayan Tangadi was in
possession of the land.
C. Land originally belonged to
Respondent No. 1 and is being
cultivated by the said Shri
Narayan Tangadi as a tenant.
D. Nothing has come on record
to show that the Forest
Department has taken
possession of the land.
(c) Forest Range Officer (PW-4) of the
Maharashtra Forest Department,
during his cross-examination, also
could not depose as to the date on
which the Forest Department took
actual possession of the land. [Ex. A
at pg. 166 – Para 13]
6. 1993 Maharashtra Forest Department filed –
appeal before Bombay High Court
bearing Criminal Appeal No. 172 of 1993
thereby challenging order dated 30 t
September 1992 in Criminal Case No.
5227 of 1982.
7. 14 t h Bombay High Court dismissed the said 169
June Criminal Appeal No. 172 of 1993 by –
1993 inter alia holding that: 170 e) Accused (Narayan Tangadi) Affidavit in is in possession of said Reply of tangadi land as tenant of Respondent Respondent No. 1 prior to No. 2.1, 2.3 the land being declared as to 2.12 a forest. dated f) Construction found on the 11.12.2019. said tangadi land is 9 years old g) No fresh construction or Sunny Thote 343 of 373 ::: Uploaded on - 25/02/2026 ::: Downloaded on - 27/02/2026 21:51:26 ::: WP-10024-2023.odt clearing of forest proved. 8. 16th Notification published by the 427
January Maharashtra Forest Department under the
1996 Wildlife Protection Act 1972 itself Ex. N of
shows that Chitalsar village has not been Additiona
included within the limits of the area l
forming part of the Sanjay Gandhi Affidavit
National Park (“SGNP”). in reply
of
Responde
nt No.1
dated
09.04.202
1
rd
9. 23 Tahsildar ALT Thane passed an order in 171
Februar Application No. 16 of 1991 declaring –
y 2004 that the said Shri. Narayan Ganu Tangadi 179
as an agricultural tenant of said tangadi Affidavit in
land from the year 1960. Reply of
Respondent
No. 2.1, 2.3
to 2.12
th
10. 13 Shri. Narayan Ganu Tangadi filed an 57
Decemb application for intervention in the –
er, 2004 proceedings before the Deputy Collector 63
bearing Case No. 53 of 1999, inter alia,
stating that he has been declared to be a Memo of
tenant in respect of said tangadi land and Writ
in physical possession and cultivating Petition
the said tangadi land as an agricultural
tenant.
th
11. 18 The Petitioner filed its Reply to the 64 -72
Decemb Intervention Application of Shri. Memo of
er 2004 Narayan Ganu Tangadi Writ
Petition
th
12. 27 Deputy Collector Shri G. N. Jagtap 73
Decemb passed an order in Appeal No.53 of 1999 –
er, 2004 thereby inter alia holding: 86
(iv) Intervention Application of Shri.
Narayan Ganu Tangadi was allowed Exhibit D
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and held that that he was of Writ
cultivating the said tangadi Petition
Property prior to the appointed day
for commencement of the
Maharashtra Private Forest
Acquisition Act 1975; and
(v) An area admeasuring 18 acres 18
gunthas was exempted under
Section 3(2) of the Acquisition Act
and restored to Shri. Narayan Ganu
Tangadi.
13. 15 t h The State of Maharashtra filed Forest –
April, Appeal No. 165 of 2005 before the MRT
2005 challenging the Order dated 27 t
& December 2004 passed by Deputy
2009 Collector in Appeal No.53 of 1999.
D. Dayabhai also filed Forest Appeal No.
229 of 2009 challenging the Order dated
27 t h December 2004 passed by Deputy
Collector in Appeal No.53 of 1999.
14. 24 t h This Hon’ble Court dismissed the Writ –
March Petition No. 2196 of 2006 and connected
2008 writ petitions (Godrej and Boyce Mfg.
Comp. Ltd.).
15. 2008 Godrej and others challenged the –
common Order in WP. 2196 of 2006
before Hon’ble Supreme Court in SLP
(Civil) No. 10677/ 2008.
16. 2008 The State of Maharashtra filed I.A. Nos. 453
2352-2353 of 2008 in SLP (Civil) No. Additional
10677 of 2008 seeking the constitution Affidavit in
of a Central Empowered Committee Reply of R.
(“CEC”) to submit a detailed report on No. 2.1, 2.3
whether the lands in state are forest land to 2.12
or not.
17. 29 t h The Hon’ble Supreme Court pleased to 459
August pass an order in I.A. No. 2352 – Additional
2008 2353/2008 in SLP (Civil) No. 10677/ Aff. in
2008 thereby directed CEC to file its Reply of R.
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Report. No. 2.1, 2.3
to 2.12.
18. 13 t h Shri. Narayan Ganu Tangadi filed an 453
July application before CEC, however the Additional
2009 same was not considered in its report. Affidavit in
Reply of R.
No. 2.1, 2.3
to 2.12
19. 23 r d Narayan Ganu Tangadi filed I.A. No.18 506
March of 2010 in SLP (C) No. 11509 of 2008 –
2010 for impleadment as party Respondent 527 Exhibit and of Additional I.A. No. 19 of 2010 in SLP (C) No. Affidavit in 11509 of 2008 for seeking inter alia Reply of directions qua the said Tangadi land is Respondent free to be developed in accordance with No. 2.1, 2.3 the development regulations and to 2.12 Municipal by laws being non-forest land dated and for other reliefs 21.09.2023 th 20. 30 Hon'ble Supreme Court allowed the said 528 January SLP (C) No. 11509 of 2008 and I.A. - 2014 No.18 of 2010 and I.A. No. 19 of 2010 547 filed by the i.e. Narayan Ganu Tangadi Exhibit E were also allowed and therefore said of Tangadi land declared as non-forest and Additional removed from the clutches of forest Affidavit in reservation and became freehold land. Reply of Respondent No. 2.1, 2.3 to 2.12 dated 21.09.2023 21. 25 t h Zonal Forest Officer Yeoor issued its 556 -561 May Report bearing No. 18-19/2010 dated Additional 2014 25.05.2014 in respect of the said Tangadi Affidavit in land whereby it was stated there are Reply of R. temples and Samadhi /memorial No. 2.1, 2.3 commemorating the dead / tomb lying in to 2.12 Sunny Thote 346 of 373 ::: Uploaded on - 25/02/2026 ::: Downloaded on - 27/02/2026 21:51:26 ::: WP-10024-2023.odt
the said smaller land since last more than
65-67 years.
th
22. 11 Narayan Ganu Tangadi through his legal 562 – 564
Februar heirs filed an Application before Sub- Additional
y 2015 Divisional Officer Thane thereby seeking Affidavit in
inter alia cancelation of Mutation Entry Reply of R.
No. 727 qua said Tangadi land. No. 2.1, 2.3
to 2.12.
23. 16 t h Sub-Divisional Officer Thane pleased to 565 – 567
March pass an order dated 16.03.2015 whereby Additional
2015 said Mutation Entry No. 727 qua said Affidavit in
Tangadi land was cancelled and name of Reply of R.
Tangadi was directed to be restored. No. 2.1, 2.3
to 2.12.
24. 27 t h District Collector Thane passed an order 568 – 571
March dated 27.03.2015 thereby the order dated Additional
2015 16.03.2015 passed by the SDO Thane Affidavit in
was stayed on the sole ground to Reply of R.
minimize the multiplicity of litigation No. 2.1, 2.3
till further directions / orders received to 2.12
from the State of Government. dated
21.09.2023
25. 9 t h July Divisional Commissioner Kokan 572
2015 Division, State of Maharashtra Revenue –
and Forest Department issued a letter 575
whereby directions were issued to the Exhibit J
District Collector Thane to vacate the of
stay upon the order dated 16.03.2015 Additional
passed by the SDO Thane and implement Affidavit in
the directions of the Hon’ble Supreme Reply of
Court in its judgement dated 30th Respondent
January 2014 in Special Leave Petition No. 2.1, 2.3
(C) No. 11509 of 2008. The Divisional to 2.12
Commissioner also reiterated in the said dated
letter dated 09.07.2015 that the said 21.09.2023
Narayan Tangadi filed I.A. No. 18 and
19 in Special Leave Petition (C) No.
11509 of 2008 for seeking directions
against the State and these I.A.’s were
allowed by the Hon’ble Supreme Court
vide its judgment dated 30.01.2014.
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26. 2015 Respondent No.1 (D. Dayabhai filed 156
Tenancy Appeal No. 109 of 2015 before Para 9 of
SDO Thane, challenging the order dated Affidavit in
23 r d February, 2004 of the Tahsildar. Reply of R.
No. 2.1, 2.3
to 2.12
27. 23 r d Order passed by the SDO Thane, in 187 – 196
Februar Tenancy Appeal No. 109 of 2015 Affidavit in
y, 2017 condoning the delay of 11 years on for Reply of R.
challenging order dated 23 r d February, No. 2.1, 2.3
2004. to 2.12
28. 2017 Shri. Narayan Ganu Tangadi and others 156
filed Revision Application No. 150 of Affidavit in
2017 before the MRT challenging the Reply of R.
order dated 23 r d February, 2017 passed No. 2.1, 2.3
by the SDO to 2.12
29. 4 t h May, MRT Allowed the Revision No. 150 of 197 – 207
2017 2017 by setting aside impugned order Affidavit in
dated 23 r d February 2017 and Reply of R.
consequently dismissing Appeal No. 109 No. 2.1, 2.3
of 2015. to 2.12
30. 8th D. Dayabhai filed Writ Petition No. 6351 –
th
June, of 2017 challenging the order dated 4
2017 May, 2017 passed by the MRT.
31. 30 t h The MRT dismissed Forest Appeal No. 87
June, 165 of 2005 preferred by the Forest -
2017 Department and allowed Forest Appeal 115
No. 229 of 2009 preferred by D.
Dayabhai. It was declared that the Writ
Subject Land was not a private forest as Petition
per Section 2(f)(iii) of the Acquisition
Act (Impugned order in present Writ
Petition)
32. 16 t h State of Maharshtra filed present Writ –
January Petition (Writ Petition No. 3205 of 2018)
, 2018 challenging the order of dated 30 t h June
2017 passed by MRT.
33. 23 r d Bombay High Court dismissed Writ 208 – 225
January Petition No. 6351 of 2017 filed by Affidavit
, 2019 D.Dayabhai and upholding the order in Reply
dated 4th May, 2017 passed by the MRT. of R. No.
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2.1, 2.3 to
2.12.
34. 29 t h Special Leave Petition (C) No. 9998 of 226
April, 2019 filed by the Respondent No.1, Affidavit
2019 challenging the order dated 23.02.2017 in Reply
passed in this Hon’ble Court in Writ of R. No.
Petition No. 6351 of 2017 was dismissed. 2.1, 2.3 to
2.12
35. 6th Review petition No. 366 of 2020 thereby 7-8
Februar seeking review of order dated 29.04.2019
y 2020 in SLP (C) No. 9998 of 2019 was List of
dismissed. dates
th
36. 26 Tahsildar and ALT Thane pleased to pass –
June an order thereby deciding the purchase
2020 price of the said Tangadi land under
section 32-O of Maharashtra Tenancy
and Agricultural Lands Act 1948.
37. 2020 Respondent No.1 filed Tenancy Appeal –
No. 70 of 2020 before SDO challenging
the order dated 26.06.2020 passed by
Hon’ble Tahsildar ALT.
38. 5th July SDO dismissed the said Tenancy Appeal –
2024 No. 70 of 2020.
39. 2025 Respondent No.1 filed appeal before -
MRT bearing Appeal No.
TNC/REV/THN/L- 336/2024 thereby
challenging order dated 26.06.2020.
st
40. 1 MRT dismissed the said in 9
April TNC/REV/THN/L- 336/2024.
2025 List of
dates
41. 8th Order passed under section 32(M) of the 10
April Maharashtra Tenancy and Agricultural
2025 Lands Act, 1948 whereby the Tahsildar List of
ALT Thane issued Purchase certificate in dates
favour of the Legal Heirs of Shri.
Narayan Ganu Tangadi.
42. 15 t h Said Purchase Certificate was duly 11
April registered under document No. List of
2025 7798/2025. dates
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43. May Name of Legal Heirs of Narayan Tangadi 12-13
2025 mutated in 7/12 extract of the said List of
Tangadi land. dates
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ANNEXURE 'H'
SHORT NOTE ON BEHALF OF PETITIONERS:
MAY IT PLEASE YOUR HONOUR: –
1. D. Dahyabhai & Co. Pvt. Ltd. and its Director Mr. Nitesh Kothari
(Petitioner) have filed the present Petition, inter-alia, seeking
directions to Respondent No.2 Corporation to issue DRC in favour
of Petitioners against acquisition of Park Reservation No.4 (said
reservation area is admeasuring 404721.02 sq. meters) which has
been acquired by Respondent Corporation under registered Deed of
Transfer dated 24/05/2019 registered under serial no.TNN5- 8450-
2019 (Exh.E, Page 92-115 of WP).
2. Respondent Corporation filed reply, inter-alia, admitting the
execution of said Transfer Deed and acquisition of said reservation.
3. Admittedly, there is an order dated 25/11/2022 (Exh.F, Page
No.116 to 118 of WP) read with an order dated 07/12/2022 (Exh.G,
Page No.119 of WP) passed by the Single Bench of Hon’ble High
Court, inter- alia, directing Respondent Corporation to issue and
allot the said DRC. In spite of such an order passed by the Hon’ble
Court, Respondent Corporation has arbitrarily withheld the
issuance of DRC and hence petition has been filed.
4. Forest department has filed Intervention Application, inter-alia,
claiming that concerned reservation is affected by the claim of
Forest Department which it has raised long back vide notice dated
29/08/1975.
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5. Admitted position is that vide order dated 30/06/2017 (Exh.A,
Page No.35 to 63 of WP) passed in MRT Appeal No.165 of 2005
and Appeal No.229 of 2009, MRT has already declared said
reservation and other lands which were subject matter of said notice
dated 29/08/1975 as non-forest land.
6. The Forest Department, no doubt has filed Writ Petition No.3205
of 2018 in the Hon’ble High Court against rejection of their Appeal
No.165 of 2005 but till date there is no stay sought to the said order
of MRT dated 30/06/2017. In said Writ Petition No.3205/2018
Petitioner herein who is Respondent No.1 therein has already
submitted written notes, inter-alia, demonstrating the falsity and
futility of the contentions of forest department that subject land is
forest. Said written notes may kindly be read along with these
written notes.
7. The said reservation is sanctioned by the State Government and is
forming part of sanctioned D.P. Plan of Thane 1994-1999 (Thane
D.P.).
8. Till date Forest Department neither challenged the Thane D.P. nor
the act of State Government putting the said reservation.
9. Forest Department during the process of acquisition of said
reservation have never raised any objection in respect of
Respondent Corporation acquiring the said reservation.
Admittedly, concerned registered Deed of Transfer dated
24/05/2019 is also not challenged. Concerned Deed of Transfer
clearly state that land is acquired and handed over in possession of
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planning authority. (Exh.E, Page No.92 to 115 relevant Page No.100
may kindly be read). The said Deed of Transfer being registered
instrument ought to have been challenged by way of filing suit for
cancellation within 3 years, from the date of registration of the said
Deed. Admittedly no such challenge is set up by Forest Department
and any such challenge is now barred by limitation.
10. It is only after acquisition of Park Reservation No.4 Forest
Department lodged its claim or objection with Thane Municipal
Corporation for allotting TDR to D. Dahyabhai & Co. Pvt. Ltd. i.e.
Petitioner against said acquisition. The fact needs to be appreciated
is that Forest Department without challenging sanctioned Thane
D.P. and without challenging the acquisition of land is objecting for
granting compensation to the land owner. Said objection has no base
under law.
11. Otherwise also Respondent Corporation vide its letter dated
08/01/2020 (Exh.H, Page No.120 to 126 of WP) addressed to
Conservator of Forest, Sanjay Gandhi National Udyan clearly stated
that they are not going to change the user of the said reservation and
in fact are going to maintain it as a park by keeping the natural
greenery as it is and shall be doing social foresting there upon.
Respondent Corporation has also agreed to handover the said
reservation if required by forest department by obtaining permission
of General Body. Admittedly, Forest Department has not responded
to the said letter either positively or negatively till date. It is thus
clear that it is for TMC and forest department to decide between
them as to who will hold the said acquired land. Just because they
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are not deciding between them, issuance of compensation by way of
DRC to the petitioner can not be withheld. It would be unjust and
unfair and against the constitutional rights of petitioner guaranteed
under article 300 A of Constitution.
12. The present petition needs to be allowed because there is no
dispute that 100 acres of land is acquired under registered
instruments by planning authority viz. Respondent Corporation for
the public purpose under sanctioned D.P. Such sanctioned D.P. was
sanctioned by State Government (Respondent No.1) itself under
MRTP Act long back in the year 1994. Act of the state of subjecting
the land under public reservation such as park, road, TMT bus
depot, Primary School, HCMTR, etc. has never been objected by
Forest Department, by saying that subject land is forest land. The act
of acquisition under registered instrument has also not been objected
by Forest Department. Forest department is objecting the grant of
statutory compensation to the private owner, which objection is
frivolous. Article 300A needs to be invoked in the present matter to
protect the interest of private owner. It cannot be deprived from
statutory compensation. Already three orders are passed by this
Hon’ble Court out of which two orders dated 28/04/2025 and
27/06/2025 were passed after hearing forest and in the presence of
their counsel. Land is acquired, 7/12 extract is mutated in the name
of Corporation (Exh.M, Page 469 of Affidavit-in-Reply of
Respondent No.2 Corporation). From May 2019, land is in
possession of Corporation (Page 100 of WP). Forest department
even though is claiming to be in physical possession their own letter
dated 23/01/1986 (Page No.448, of additional affidavit of R1 of WP
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No.3205/2018) demonstrates that they could not take possession of
the land prior to 1986. There is no documentary proof placed on
record to show that possession was taken by the forest department
physically thereafter till date.
13. No documentary proof about compliance of Section 5 of MPFA
is produced in this petition or in another Writ Petition No.3205/2018
by the forest department. The subject land is not vested in
state/forest under Section 3 of the MPFA on the appointed day
because on appointed day i.e. 30/08/1975 admittedly notice under
Section 35 (3) of IFA was not served. Even Forest Department could
not produce any documentary proof to show that alleged notice
dated 29/08/1975 was actually dispatched/issued from the office of
Forest Department. Admittedly, Section 35 of IFA stood repealed
on and from 30/08/1975. There is no proof on record to demonstrate
that there was any live process in existence under Section 35 of IFA
on or before appointed day. No notifications under Section 35 (1),
34 (A) or 38 of IFA have been published till date. Strict compliance
of statutory pre conditions is not there which is must for vesting as
per Rohan Nahar and Godrej judgements of Supreme Court. Subject
land continued to be in possession with the Petitioner. As per
registered acquisition instrument from 24/05/2019, 100 acres park
reservation and additional 18100 sq. meter of subject land is also in
possession of Respondent Corporation and on some portion twin
tunnel project is being implemented for which Forest Department
has given NOC so what remains is only providing statutory
compensation to the Petitioner in the form of DRC as per the
provisions of law and as per the said 3 orders of this Hon’ble Court.
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14. In order to make show of compliance of orders dated 22/11/2022
and 28/04/2025 Respondent No.2 TMC filed affidavit dated
27/11/2025 in this WP (Page 412-510). Kindly see its annexures
such as letter bearing no.1025, dated 10/07/2025 (Exh.F, Page 438-
439 of Affidavit dated 27/11/2025), reply dated 14/07/2025 given
thereto by Petitioner through Advocate Sanjay Borkar (Exh.G, Page
440 to 447 of Affidavit dated 27/11/2025), Petitioner’s letter dated
06/102025 (Exh.L, Page 463-468 of Affidavit dated 27/11/2025)
coupled with 7/12 Extract (Exh.M, Page 469 of Affidavit dated
27/11/2025), Mutation Entry No.1274 (Exh.M, Page 470-472 of
Affidavit dated 27/11/2025), Order of Tahasildar dated 23/09/2025
(Exh.N, Page 473-482 of Affidavit dated 27/11/2025). From the
reading of those annexures and from plain reading of Regulation
No.11.2.4 of UDCPR it is evident that Petitioner/D Dahyabhai Co.
Pvt. Ltd. has complied with all compliances under said regulation.
In fact, it is Respondent TMC vide letter dated 10/07/2025 illegally
called upon Petitioner/D Dahyabhai Co Pvt. Ltd. to obtain NOC
from Forest Department even though orders of this Hon’ble Court
dated 28/04/2025 and 27/06/2025 do not put such condition. In fact,
those 2 orders were passed after hearing the Forest Department and
in the presence of counsel of Forest Department. The Annexure ‘O’
i.e. letter dated 08/10/2025 (Page 483-492 of Affidavit-in- Reply of
Respondent No.2 Corporation) of and from Conservator of Forest,
Sanjay Gandhi National Park clearly shows how TMC and Forest
Department are acting in collusion with each other to deprive
Petitioner/D. Dahyabhai Co. Pvt. Ltd. from statutory compensation
in violation of Article 300A of Constitution. As per regulation
no.11.2.4 of UDCPR construction of boundary wall is not
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mandatory. Instead of carrying out construction Petitioner can
deposit with Corporation cost of construction of compound
wall/fencing provided Corporation issues DRC. Petitioner
specifically state that it shall deposit the construction cost of fencing
with Corporation provided Corporation issues full DRC to the
Petitioner as per said regulation. All other requirements of
Corporation about TILR survey, mutating name of Corporation in
7/12 extract, certification of mutation entry in that regard, all are
already complied with (kindly read Petitioner’s Advocate reply
dated 14/07/2025 and Petitioner’s letter dated 06/10/2025, Page
440-447 and 463-468 of Respondent No.2’s own affidavit dated
27/11/2025.)
15. It is pertinent to note that while acquiring the land and getting
executed registered instrument for acquisition in may 2019,TMC
did not find it necessary to seek prior opinion from Forest
Department or TD department of state government . In the same
way before giving consent for passing the order dated 25/11/2022
directing TMC to allot DRC, TMC did not seek in advance opinion
of state government. When order dated 28/04/2025 was passed, at
that time also TMC did not make submission that they need to
consult state government. Even in the IA filed for seeking
modification to order dated 28/04/2025 TMC did not take up this
stand but after order dated 27/06/2025 TMC started taking opinion
of forest department and TDD for implementation of orders of this
Hon’ble Court. This is evident from their said affidavit and it’s
annexures. This is contemptuous. This clearly demonstrates
collusion between TMC and forest to avoid allotment of DRC and to
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commit contempt of the orders of this court.
16. The Petitioners have under cover of their letter dated 14/07/2025
addressed to TMC enclosed a copy of the TILR Report. The said
letter dated 14/07/2025 has been annexed at page nos.440-447 of the
affidavit dated 27/11/2025 filed by TMC and has not enclosed the
said report and hence copy of the same is annexed herewith and
marked as EXHIBIT A hereto.
17. Hence, present petition needs to be allowed.
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ANNEXURE 'I'
NOTE ON BEHALF OF THE RESPONDENT NO.2 to 5 (TMC)
1. The Petitioner submitted the proposal dated 03.07.2018, through
its architect for grant of DRC in lieu of the above-mentioned land,
as per the provisions under Regulation No. Appendix N.N.1.5 (a)
read with Appendix W of the Development Control Regulations,
1994, for grant of T.D.R. to the Thane Municipal Corporation (page
No. 90 of the Petition).
2. Pursuant to the said proposal Transfer Deed dated 24.05.2019 was
executed between the Petitioner and the Corporation. Recitals
therein clearly indicate that the Petitioner shall be entitled to be
awarded Development Rights and/or TDR in accordance with the
provisions of the said Development Control Regulations, 1994, and
also as per Government Notification dated 29.01.2016 and the
amended order dated 02.05.2016 for surrender of the said reserved
land (page 99 of the Petition).
3. Regulation 4.1.2 of the Notification dated 29.01.2016 reads as
under:
“4.1.2 – DRC shall be issued only after the land is
surrendered to the Municipal Corporation free of
cost and free from encumbrances, and after
levelling the land to the surrounding ground level,
and after constructing/erecting a 1.5 m high
compound wall/fencing, i.e. brick/stone wall up to
0.60 m above ground level and fencing above that
up to the remaining height with a gate, at the cost
of the owner and to the satisfaction of the
Municipal Commissioner. Provided that, if on
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certain lands such construction/erection of
compound wall/fencing is prohibited or restricted
by any regulation, then the quantum of
Transferable Development Rights (TDR) shall be
reduced as prescribed in the proviso to Clause
4.1.1.”
It is mandatory for the Petitioner to comply with the above
regulation before issuance/ grant of TDR/DRC.
4. Regulation 7.1 of the Notification dated 29.01.2016 reads as
under:
“7.1 – The Commissioner, before issuing DRC,
shall verify and satisfy himself that the ownership
and title of the land proposed for surrender is with
the applicant, and get the Record of Rights
corrected in the name of the Planning Authority.”
It is incumbent upon the Petitioner to get the Record of Rights
mutated in the name of the Planning Authority.
5. The recitals in the Transfer Deed dated 24.05.2019 also indicate
that the Petitioner had all along represented that they have clear and
marketable title, free from all encumbrances (Page 100,
Unnumbered Para 1).
6. It is to be noted that the Petitioner was aware of the filing of Writ
Petition No. 3205 of 2018 by the Forest Department of State of
Maharashtra, impugning the order dated 30.06.2017 passed by the
MRT, Mumbai. This fact can be ascertained from paragraph 17 of
the present Petition.In view of pendency of the petition NOC of the
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forest was required form the petitioner.
7. By order dated 25.11.2022 passed in Appeal from Order No. 1051
of 2019, the order dated 10.10.2019 passed by the learned Civil
Judge, Senior Division, Thane, was modified, and the Respondent
Corporation was directed to allot TDR/DRC in favour of the
Petitioners.
8. It is to be noted that the Corporation is and was always ready and
willing to allot TDR/DRC in favour of the Petitioner, subject to
compliance as contemplated under the Development Control
Regulations. The Respondents, in their affidavit dated 27.11.2025,
especially in paragraph 19, have clearly averred that the Corporation
is ready and willing to grant TDR, and that a letter dated
10.07.2025, which is in tune with the Development Control
Regulations, has been issued to the Petitioners, thereby directing
them to comply with the requisitions raised therein ( page 438 of the
affidavit in reply filed by the Corporation).
9. It is to be noted that in response to the letter dated 10.07.2025, the
Petitioners responded by reply dated 15.07.2025, and as per
paragraph 4 of the said reply, the Petitioners agreed to erect fencing
in the form of metal sheets and stated that they would initiate the
said work in the near future (page 442, para 4 of the affidavit in
reply). Further, by letter dated 06.10.2025 issued by the Petitioners
in response to the Corporation’s letter dated 10.07.2025, the
Petitioners have clearly admitted in clause (f) that the work of
erecting the compound wall around the park reservation has already
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been initiated under the supervision of a security guard, which can
be verified by the Corporation. Clause (j) of the letter dated
06.10.2025 also records that the Petitioners assured that they would
erect the compound wall within six months and hand it over to the
Thane Municipal Corporation. ( Page no. 465 and 466 of the
Affidavit in reply 27.11.2025 of corporation).
10. The Forest Department, being an authority entrusted with
environmental protection, has raised objections that have placed
TMC in a dilemma as to whether Development Rights Certificates
(DRC) can be granted against the reservation in question. Further,
the Petitioner has failed to comply with several mandatory
conditions prescribed under the Unified Development Control and
Promotion Regulations, 2020 (UDCPR-2020). These include :
Measurement of the reserved land by the TILR in the presence of all
concerned parties, namely the Forest Department, TMC, and the
Petitioner;
Mutation and reflection of the reserved land in the name of Thane
Municipal Corporation by way of an independent and separate 7/12
extract or Property Card, clearly and unambiguously recording TMC
as the owner; andHandover of vacant, unencumbered physical possession of the
reserved land to TMC in terms of Regulation 11.2 of the UDCPR-
2020.
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It is submitted that TMC has never been handed over physical
possession of the writ land. Consequently, the further process for
issuance of the DRC has remained incomplete, along with other
mandatory prerequisites under the UDCPR-2020.
11. In respect of the compliances sought by the Corporation from
the Petitioners in its letter dated 10.07.2025, all such compliances
are in consonance with the Development Control Regulations and
are required to be complied with.
12. The Respondent Corporation issued a letter dated 06.08.2025 to
the Deputy Superintendent of Land Records, thereby requesting
measurement of the land under park reservation and handing over
the measurement plan to the Corporation (pages 450 to 452).
13. The Respondent Corporation also issued a letter dated
06.08.2025 to the Tahsildar, Thane, thereby requesting him to take
steps to change the Record of Rights in favour of the Thane
Municipal Corporation (pages 453 to 455).
14. In other similar matter, TMC had issued three DRCs to the
Petitioner after following due procedure; however, the transfer and
utilization of the said DRCs were subsequently prohibited after
objections raised by Forest Department. Aggrieved by such
prohibition, the Petitioner approached this Hon’ble Court by filing
Writ Petition No. 6603 of 2023, which is presently sub-judice. In the
said proceedings, this Hon’ble Court, by order dated 15.12.2023,
observed that considering the complexion of the issue, it would be
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appropriate to defer the hearing of the present proceedings as a third
judge matter until the adjudication of Writ Petition No. 10024 of
2023. Thus, the Forest Department has, from time to time, raised
objections to the issuance of the said three DRCs and has also
objected to the issuance of any further DRCs.
15. Appendix W read with Appendix N.N.1.5 (a) spells out the
regulations for grant of Transferable Development Rights.
Regulation 7 of Appendix W reads as under:
“A DRC will be issued only on satisfactory
compliance with the conditions prescribed in the
Appendix.”
16. Regulation 15 of the Development Control Regulations, 1999
reads as under:
“Development Rights will be granted and DRCs
issued only after the reserved land is surrendered
to the Corporation, where it is the Appropriate
Authority, or otherwise to the State Government,
as the case may be, free of cost and free from
encumbrances, after the owner or lessee has
levelled the land to the surrounding ground level
and after he has constructed a 1.5 m high
compound wall (or at a height stipulated by the
Commissioner) with a gate at the cost of the
owner, and to the satisfaction of the
Commissioner, or the State Government (where
the Corporation is not the Appropriate Authority).
The cost of any transaction involved shall be
borne by the owner or lessee.”
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17. Regulation 11.2.4(b) of the UDCPR, 2020 is pari materia with
Appendix W. It is therefore necessary for the Petitioner to comply
with the Development Control Regulations for grant of TDR.
Compliance of Law (DCR) in is inherent in an order passed by the
Hon’ble Court.
18. Clause 11.2.4(b) read as under:
“(b) DRC shall be issued only after the land is
surrendered to the Authority free of cost and free
from encumbrances and after levelling the land to
the surrounding ground level and after
constructing/erecting a 1.5 m. high compound
wall/fencing i.e. brick/stone wall up to 0.60m.
above ground level and fencing above that upto
remaining height with a gate, at the cost of the
owner and to the satisfaction of the Authority.”
19. It is clear that the land is required to be surrendered free from all
encumbrances. The Petitioner, in the present Writ Petition No.
10024 of 2023, in (paragraphs 10 to 17), has averred in detail about
the claim of the Forest Department, which ultimately culminated in
Writ Petition No. 3205 of 2018. In these circumstances, the
Corporation has rightly demanded submission of an NOC from the
Forest Department in order to comply with the requirement under
the Development Control Regulations of surrendering the land “free
from all encumbrances.”
20. It is settled law that one cannot transfer a better title than what
one has. It is thus clear that if the Forest Department succeeds in
Writ Petition No. 3205 of 2018, the Petitioner will not have title to
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the suit lands and will not be entitled to any TDR in lieu thereof. It
is pertinent to note that the Petitioner was well aware of the claim of
the Forest Department for all these years prior to submitting the
proposal dated 03.07.2018 for grant of TDR. The said proposal also
states that the Petitioner is entitled to grant of DRC “as per the
provisions under Regulation No. Appendix N.1.5 and Appendix W
of the DCR, 1994 of TMC, and amendments thereto.”
21. It is also pertinent to note that the Corporation was earlier
prevented from granting TDR in view of the injunctions granted in
two civil suits, namely Special Civil Suit No. 440 of 2019 and
Special Civil Suit No. 36 of 2019, till 25.11.2022, when the order
came to be passed in Appeal from Order No. 1050 of 2019.
22. The Petitioner, in their communication dated 15.09.2020 (page
168 of Writ Petition No. 10024 of 2023), the relevant portion of
which appears at page 132, reiterated that the TMC is also under a
statutory obligation under the MRTP Act, 1966, read with the
Development Control Rules and Regulations.
23. It is to be noted that the Petitioners, in their letter dated
21.03.2023 addressed to the Corporation, have categorically stated
that they are entitled to be awarded development rights and TDR in
accordance with the provisions of the Development Control
Regulations (pages 139-140 of the petition).
24. It is also pertinent to note that the Forest Department, in its
affidavit in reply dated 04.01.2015, has categorically averred that
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the land in question is deemed reserved forest, vested in the State
Government, and is in the possession of the Sanjay Gandhi National
Park.
25. The Corporation has taken consistent, timely, and
necessary steps to comply with Court orders and statutory
obligations.
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ANNEXURE 'J'
SUBMISSIONS OF THE RESPONDENT CORPORATION
1. The Respondent Corporation submits that although the registered
Transfer Deed dated 24.05.2019 was executed in favour of the
Petitioners, Writ Petition No. 3205 of 2018 filed by the Forest
Department was pending, wherein the Department was also
claiming the land as private forest.
2. The Respondent Corporation further submits that during the
pendency of the said Writ Petition and before the passing of the
interim order dated 28.04.2025, the Corporation was unable to
process the TDR proposal as two civil suits were filed against the
Petitioners before the then Civil Courts.
3. The details of the said suits are as under:
a. Special Civil Suit No. 440 of 2019 filed by Rajyaddyaksh
Mahendra Sharam and two others against Petitioner No. 1.
b. Special Civil Suit No. 36 of 2019 filed by Oriental Floriculture
Private Limited against the Petitioners.
4. The Respondents submit that in both the above-mentioned suits,
injunctions were granted, due to which the TDR could not be
processed or granted.
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5. The Respondents further submit that during the pendency of the
Forest Department’s writ petition, an interim order dated 28.04.2025
was passed in writ Petition No. 10024 of 2023, directing the
Corporation to comply with the order dated 25.11.2022 passed in
Appeal from Order No. 1051 of 2019.
6. Pursuant to the order dated 28.04.2025 in W.P. No. 10024/2023,
the Corporation promptly addressed a letter dated 14.05.2025 to the
Additional Chief Secretary (UD) seeking guidance regarding grant
of TDR (Exh. A is annexed to the Affidavit in reply dated
27.11.2025).
7. The State Government, by communication dated 15.05.2025,
clearly informed that TDR cannot be granted due to restrictions
under Reg. 11.2.3 (vii) of UDCPR 2020 (Exh. B is annexed to the
Affidavit in reply dated 27.11.2025).
8. A coordination meeting was scheduled with UD Department and
Forest Department officials on 12.06.2025, communicated through
the Corporation’s letter dated 10.06.2025 (Exh. C is annexed to the
Affidavit in reply dated 27.11.2025).
9. The Corporation filed Interim Application No. 9043/2025 on
25.06.2025, explaining that the subject land falls within a Forest
Zone and therefore TDR could not be issued in view of Reg.
11.2.3(vii).
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10. The said Interim Application was heard and dismissed by the
Hon’ble Court on 27.06.2025 (Exh. D is annexed to the Affidavit in
reply dated 27.11.2025).
11. The Commissioner again wrote on 10.07.2025 to the Additional
Secretary (UD-1), informing about the Court’s orders and seeking
further guidance on the grant of TDR (Exh. E is annexed to the
Affidavit in reply dated 27.11.2025).
12. Meanwhile, the ADTP issued a requisition letter dated
10.07.2025 to the Petitioner, calling for compliance with mandatory
conditions under Reg. 11.2.4 of UDCPR (Exh. F is annexed to the
Affidavit in reply dated 27.11.2025).
13. The Petitioner replied on 14.07.2025, but failed to comply with
the requisitions (Exh. G is annexed to the Affidavit in reply dated
27.11.2025).
14. At the Petitioner’s request dated 23.07.2025, the Corporation
initiated steps for survey and mutation and issued a letter dated
06.08.2025 to DSLR and Tahsildar (Exh. I is annexed to the
Affidavit in reply dated 27.11.2025).
15. Draft Development Plan (Revised) was submitted by the
Commissioner on 03.09.2025 for final sanction (Exh. J is annexed
to the Affidavit in reply dated 27.11.2025).
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16. Further guidance was sought once again from UD Department
on 03.10.2025 (Exh. K is annexed to the Affidavit in reply dated
27.11.2025).
17. Petitioner again requested to issuing DRC on 06.10.2025 (Exh.
L is annexed to the Affidavit in reply dated 27.11.2025), despite not
fulfilling earlier requisitions.
18. The consolidated 7/12 extract submitted by Petitioner includes
several names; an independent 7/12 extract /Property card in the
name of TMC was a mandatory requirement as per UDCPR
Regulation no 11.2.12 (Exh. M is annexed to the Affidavit in reply
dated 27.11.2025).
19. Objections raised to mutation entry were rejected on 23.09.2025,
confirming Mutation Entry No. 1244 (Exh. N is annexed to the
Affidavit in reply dated 27.11.2025).
20. The Deputy Director, SGNP, by letter dated 08.10.2025. stated
that the land is in Forest Department’s possession and that W.P. No.
3205/2018 is pending (Exh. O is annexed to the Affidavit in reply
dated 27.11.2025).
21. The Respondent submits that the Petitioner failed to comply
with the essential conditions listed in the letter dated 10.07.2025,
including :
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i. Submission of an independent 7/12 extract /Property card solely in
the name of TMC.
ii. Non-submission of measurement plan of reserved 2. area.
iii. Failure to construct compound wall around reserved area.
iv. Non-completion of physical unencumbered possession of
reserved area.
v. Failure to procure NOC from Forest Department.
22. The requisitions made in the Corporation’s letter dated
10.07.2025 are fully aligned with UDCPR.
23. TDR cannot be granted unless all conditions are satisfied, which
the Petitioner has failed to do (Exh. P is annexed to the Affidavit in
reply dated 27.11.2025).
24. The Corporation has taken consistent, timely, and necessary
steps to comply with Court orders and statutory obligations.
25. The Respondent submits that the only reason TDR could not be
issued is due to: Statutory restrictions under UDCPR, Claims of the
Forest Department, and non-compliance by the Petitioner with
mandatory requirements.
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26. Therefore, the Corporation submits that appropriate
orders in accordance with law may be passed.
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