Bombay High Court
Smt. Malti Manohar Mankame And Ors vs State Of Maharashtra Thru Secretary , ... on 14 August, 2025
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
2025:BHC-AS:35941-DB
12.wp.15955.22.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 15955 OF 2022
Anjani Sachin Pitale & Ors .. Petitioners
Versus
State of Maharashtra & Ors .. Respondents
Mr. Saurabh Butala, Advocates for the Petitioners.
Mr. M. .M. Pabale, AGP, for the Respondents/State.
ANJALI by
Digitally signed
ANJALI
TUSHAR
CORAM: B. P. COLABAWALLA &
TUSHAR ASWALE
Date:
ASWALE 2025.08.21
13:23:37 +0530
FIRDOSH P. POONIWALLA, JJ.
DATE: AUGUST 14, 2025
P. C.
1. The above Writ Petition is filed seeking a writ, order or direction to quash and set aside the impugned Notice dated 2 nd January 1962 issued by the Conservator of Forest, Thane Circle, and further hold and declare that the said Notice has lapsed. Thereafter, a declaration is sought that the land in question, namely, the Petitioners' land at village Maldunge, Taluka Panvel, District Raigad bearing (Old Gat No. 106) and New Gat No.71/1, 71/3/k, 71/4,71/5/B admeasuring a total of 45H 81.8R (wrongly mentioned in prayer clause as "818R") is not a forest or a private forest and the same have never vested in the State of Maharashtra under the provisions of the Maharashtra Private Forest (Acquisition) Act, 1975 (for short "the said Act"). Page 1 of 6
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2. The principal challenge in the present Petition is that the notice dated 2nd January 1962 issued by the Conservator of Forest, Thane, was never served upon the predecessor of the Petitioners. Once this is the case, then, the ratio laid down by the Hon'ble Supreme Court in the case of Godrej & Boyce Mfg Co Ltd & Anr v/s the State of Maharashtra and Ors reported in [(2014) 3 SCC 430] would squarely apply and the Petitioners would be entitled to the declarations sought.
3. In the above matter, the State has filed its affidavit in reply. In the said reply, the State has categorically stated that the Notice under Section 35 (3) of the Indian Forest Act, 1927 was issued on 2 nd January 1962 to the original owner/ the then land holder Mr. Damodar Gangadhar Mankame (for short "Mr. Damodar") and which was duly received by him. Accordingly, Mutation Entry No. 852 dated 5 th December 1980 was recorded in the name of the State of Maharashtra in the 7/12 extract. The original owner Mr. Damodar was alive till 4th February 1998 and never raised any objection or dispute about non service of notice upon him during his life time. The fact that the notice has been served is reflected on page 187 of the affidavit in reply filed on behalf of the State which clearly bears the signature of the said Mr. Damodar. According to the State, therefore, this is a case which is clearly Page 2 of 6 AUGUST 14, 2025 Aswale ::: Uploaded on - 21/08/2025 ::: Downloaded on - 22/08/2025 23:04:24 :::
12.wp.15955.22.doc different from the one before the Hon'ble Supreme Court in the case of Godrej & Boyce Mfg Co Ltd (supra), in as much as, what the Supreme Court was considering as to what would happen to the notices that have been issued [under Section 35 (3) of the Indian Forest Act, 1927] but not served on the party
4. This apart, it is the case of the State that under the said Act, when a private forest vests in the Government (under Section 3), a part of the land is to be restored to the owner as contemplated under Section 22A of the said Act. In this regard, the State Government passed an order on 31 st January 1980 and out of the total land of 57H 67R, an amount of 11H 23.2 R were restored/re-granted to the said Mr. Damodar and an order to that effect was passed on 31st January 1980. It is pursuant to this order that the Mutation Entry was carried out on 5th December 1980 whereby the balance amount of 45H 67.8 R were mutated in the name of the State of Maharashtra. It is the case of the State that the Petitioners, therefore, cannot come after 40 years and challenge the aforesaid Mutation Entry. This is more so, when the original owner Mr. Damodar has never disputed either the service of the notice or the order passed on 31st January 1980.
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5. Having heard the learned counsel for the parties, we find considerable force in the arguments canvassed on behalf of the State. Prima facie, we find that the notice issued under Section 35 (3) was in fact served on Mr. Damodar (the predecessor of the Petitioners). This is clear from page 187 of the paper book. Mr. Damodar had never once disputed the service of this notice. This apart, we find that even the order dated 31 st January 1980 clearly sets out that out of the 57H 67R which were acquired/vested in the State, an area of 11H 23.2R were re-granted to Mr. Damodar. It is on this basis that for the balance 45H 67.8R, a Mutation Entry was carried out reflecting it to be a forest. We find that the Petitioners have come to this Court after a lapse of about 42 years. Apart from the fact that the record shows, at least prima facie, that the aforesaid land admeasuring 45H 67.8R vested in the State of Maharashtra as a private forest, the Petition suffers from serious delay and latches. The Petitioners cannot expect the Government to produce the entire record after a period of 40 years. This is a classic case where because of the delay on the part of the Petitioners, the Government is not in a position to produce the entire record.
6. The learned counsel appearing on behalf of the Petitioners thereafter feebly tried to contend that even assuming that the notice under Section 35 (3) was served on the Petitioners' predecessor (Mr. Damodar), no Page 4 of 6 AUGUST 14, 2025 Aswale ::: Uploaded on - 21/08/2025 ::: Downloaded on - 22/08/2025 23:04:24 :::
12.wp.15955.22.doc further steps were taken in relation to the said notice. In light of this, the order dated 31st January 1980 passed under Section 22A of the said Act cannot affect the rights of the Petitioners. We find absolutely no merit in the aforesaid submission. The question of passing an order under Section 22A would arise only once the land vests in the State as a private forest. Once this position is accepted by the predecessor of the Petitioners and he has taken benefit of the order passed under Section 22A (31 st January 1980), the Petitioners cannot today contend that the order dated 31 st January 1980 does not affect the rights of the Petitioners because no steps were taken after the service of the notice under Section 35 (3) of the Indian Forest Act, 1927. The Petitioners cannot be allowed to approbate or reprobate in this fashion. In other words, the Petitioners' predecessor having taken advantage of the order passed on 31st January 1980, the Petitioners today cannot contend that the entire land [namely, not only 11H 23.2R but also the balance area of 45H 67.8R] is not a private forest.
7. In view of the foregoing discussion, and in the peculiar facts and circumstances of the present case, we find no merit in the above Petition. It is accordingly dismissed. However, there shall be no order as to costs. Page 5 of 6
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8. This order will be digitally signed by the Private Secretary/ Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
[FIRDOSH P. POONIWALLA, J.] [B. P. COLABAWALLA, J.] Page 6 of 6 AUGUST 14, 2025 Aswale ::: Uploaded on - 21/08/2025 ::: Downloaded on - 22/08/2025 23:04:24 :::