Bombay High Court
D. Dahyabhai And Co. Pvt. Ltd And Anr vs The State Of Maharashtra And Ors on 23 October, 2023
Author: Sunil B. Shukre
Bench: Sunil B. Shukre
2023:BHC-AS:31856-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6603 OF 2023
WITH
INTERIM APPLICATION (ST) NO. 19213 OF 2023
1. D. Dahyabhai and 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. Shri. Nitesh Prataprai Kothari, }
adult, Indian inhabitant, shareholder of }
petitioner no.1, having address at 121/C, }
Mittal Tower, Nariman Point, Mumbai-400 021. } ..Petitioners
V/s.
1. The State of Maharashtra and Ors. }
(acting through its Urban Development }
Deparatment), 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 its address at Mahanagarpalika Bhavan, }
Sarsenani General Arun Kumar Vaidya Marg, }
Chandanwadi Pachapakhadi, Thane-400 602. }
4. Additional Commissioner (2), }
Thane Municipal Corporation }
having its address at Mahanagarpalika Bhavan, }
Sarsenani General Arun Kumar Vaidya Marg, }
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Chandanwadi Pachapakhadi, Thane-400 602. }
5. Deputy Commissioner (Estates), }
Thane Municipal Corporation, }
having its address at Mahanagarpalika Bhavan, }
Sarsenani General Arun Kumar Vaidya Marg, }
Chandanwadi Pachapakhadi, }
Thane-400 602. }
6. City Engineer, Thane Municipal Corporation }
having its address at Mahanagarpalika Bhavan, }
Sarsenani General Arun Kumar Vaidya Marg, }
Chandanwadi Pachapakhadi, Thane-400 602. }
7. Deputy City Engineer, }
Thane Municipal Corporation }
having its address at Mahanagarpalika Bhavan, }
Sarsenani General Arun Kumar Vaidya Marg, }
Chandanwadi Pachapakhadi, Thane-400 602. }
8. Assistant Director Town Planning, }
Thane Municipal Corporation }
having its 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 its address at Mahanagarpalika Bhavan, }
Sarsenani General Arun Kumar Vaidya Marg, }
Chandanwadi Pachapakhadi, Thane-400 602. }
10. The Principal Secretary, }
Revenue and Forest Department, Mantralay, }
Mumbai. }
11. Conservator of Forest and Director, }
Sanjay Gandhi National Park, Borivali }
12. The Deputy Director (North) }
Yeur, Sanjay Ganghi National Park, Borivali }.. Respondents
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Mr. Pravin Samdhani, Senior Advocate a/w. Mr. Hrushi Narvekar, with
MR. Sanjay Borkar with MR. Sumit Shukla with Ms. Saloni Shah and
Mr. Jayesh Joshi I.by DSK Legal, for the petitioners.
Mr. Mandar Limaye, for respondent nos. 2 to 5.
Mr. S.H. Kankal, AGP for respondent nos. 1, 10 and 11/State.
---------------------
CORAM : SUNIL B. SHUKRE &
RAJESH S. PATIL, J.J.
RESERVED ON : 27th JULY, 2023.
PRONOUNCED ON : 23th OCTOBER, 2023.
JUDGMENT :(PER SUNIL B. SHUKRE, J).
1. Rule. Rule made returnable forthwith. Heard finally by consent of the parties.
2. My learned brother, Justice Rajesh Patil, has taken a view that since Writ Petition No. 3208 of 2018, which involves question as to whether or not the petitioner's land is a private forest is pending and till this issue is decided in the said petition and that the petitioner having given affidavits-cum-undertaking dated 30.06.2019, thereby undertaking that whatever the decision is rendered in the said Writ wp-6603-2023.doc varsha 3 of 30 Petition, pending before the learned single Judge of this Court will be acceptable to the petitioners, this Writ Petition is not entertainable and therefore, he has dismissed this Petition.
3. I am in respectful disagreement with the view so expressed and the conclusion so made by my learned brother for the reasons given in the ensuing paragraphs.
4. The facts of this case are already summarised in the judgment of my learned brother Justice Rajesh Patil and therefore, it is not necessary for me to repeat all of them. However, I deem it fit to reiterate here some facts which would be relevant for the purpose of the discussion that is being made here. The relevant facts are stated in brief as under:-
a. Maharashtra Revenue Tribunal ('MRT' for short) by its order dated 30.06.2017 has decided the issue as to whether or not the petitioners land is a private forest land in favour of the petitioner no. 1 holding that it is not a private forest land and against this order, the forest department has filed a Writ Petition being Writ Petition No. 3205 of 2018, which is pending for consideration before the learned single Judge of this Court, in which no stay has been granted to the order dated 30.06.2017 passed by MRT.
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b. A portion of the larger property of the petitioner no. 1,
which is subject matter of this petition, is affected by following three reservations in the Development Plan of Thane City:-
a) 5000 sq. mtrs for a 20 mtrs vide DP road.
b) 7000 sq. mtrs for 30 mtrs vide High
Capacity Mass Transit Route.
c) 7740 sq. mtrs for 40 mtrs vide DP road.
The above land is hereinafter called as "subject land". c. An application was made by the petitioner no. 1 through its Architect, requesting respondent no. 2 to acquire the subject land in terms of Section 126 of Maharashtra Regional Town Planning Act, 1966 read with relevant Development Control Regulations and Notifications and the respondent no. 2 acquired subject land by granting Transferable Development Rights ('TDR' for short) against it's surrender in favour of respondent no.2. A registered transfer deed was also executed between the petitioner no.1 and respondent no.2 towards acquisition of the subject land.
d. The respondent no. 2, considering the pendency of Writ Petition No. 3205 of 2018 filed by the forest department against the wp-6603-2023.doc varsha 5 of 30 petitioner no. 1, called upon the petitioner no. 1 to submit, before granting TDR, Affidavits-cum-undertaking containing following statements.
i) Decision of the High Court in the pending Writ petition would be acceptable to and binding upon the petitioner no. 1.
ii) In case, the decision of the High Court fixes any financial liability, the financial liability would be of petitioner no. 1, it would be the responsibility of the petitioner no. 1 to discharge it and that the petitioner would not let the financial liability affect the Corporation i.e. respondent no. 2 in any manner.
e. The Affidavits-cum-undertaking containing the above referred statements were furnished by the petitioner no. 1 on 30.05.2019 to the respondent no. 2 f. These Affidavits-cum-undertaking nowhere mentioned that the petitioner no. 1 would obtain No Objection Certificate ('NOC' for short) from the forest department as a condition precedent for grant of TDR against the surrender of the subject land by the petitioner no. 1 in favour of respondent no. 2.
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g. Following the aforestated Affidavit-cum-undertaking, the
respondent no. 2 issued three Development Rights Certificates (DRCs) dated 06.06.2019 granting TDR in lieu of acquisition of the subject land subject to various conditions stipulated in Government Notification dated 29.01.2016 and its Addendum dated 02.05.2016 as amended from time to time, which were of general nature. The DRCs contained no express condition of obtaining any NOC from the forest department, though in their footnotes it was stated "affidavit regarding Court order binding on applicant". In other words, these DRCs were made subject to the affidavits-cum-undertaking dated 30.05.2019 submitted by the petitioner no. 1 to the respondent no. 1, thereby emphasizing the fact that the said affidavits-cum-undertaking would be binding on applicant.
5. The above referred facts make it clear that neither the Affidavits-cum-undertaking contained a statement that the petitioner would obtain NOC from the forest department as a condition precedent for grant of the TDR nor the DRCs contained any such condition. In spite of that, a communication dated 21.06.2019 was sent by the respondent o. 2 to the petitioner no. 1 that as per the affidavits-cum-undertaking given by the petitioner no. 1, the petitioner wp-6603-2023.doc varsha 7 of 30 no. 1 would not utilise the TDR till NOC was obtained by it from the forest department. This communication of the respondent no. 2 is arbitrary as it amounted to modifying the conditions of the DRCs in a unilateral way. The said affidavits-cum-undertaking and the DRCs are clear on this aspect of the matter, the absence of an undertaking to obtain NOC from the forest department for utilisation of TDR and the absence of a condition in the DRCs to obtain such NOC before using the TDR. Keeping in mind the said communication dated 21.06.2019 perhaps my learned brother has held in Paragraph 22 of the judgment separately written by him that the petitioners are required to obtain NOC from the forest department before using the DRCs.
6. In my humble view, such is not the requirement of the said DRCs nor is there any undertaking given by the petitioner no. 1, that it would obtain NOC from the forest department before using the TDR granted under the said three DRCs, as I have already said. So, what is clear here is that when the said DRCs do not contain any condition of the petitioner no. 1 obtaining any NOC from the forest department before utilisation of the TDR, there could not have been any effort made by respondent no. 2 to restrict the petitioner no. 1 from utilising the TDR till NOC from the forest department was obtained by it. It wp-6603-2023.doc varsha 8 of 30 would then follow that the respondent no. 2 could not have insisted and cannot not insist upon the petitioner no. 1 to first obtain the NOC from the forest department and then utilise the TDR granted vide said DRCs and to that extent, I am of the view that the restriction placed upon the utilisation of the TDR granted as per the said DRCs by the respondent no. 2 is against the fact situation of this case.
7. Learned AGP for the forest department submits that the fact that the said affidavits-cum-undertaking dated 30.05.2019 are given during pendency of the Writ Petition No. 3205 of 2018 itself is indicative of the restriction on the use of the TDR without NOC granted by the forest department. The submission is fallacious and hence rejected. One must accept the reality that the words not there in the affidavits-cum-undertaking and the condition absent in the DRCs cannot be put into the mouth of the petitioner and cannot be used against the petitioner, coming as a bolt from the blue. Ultimately, what can be held against the petitioner no. 1, on the fact situation of this case, are only the statements made in the affidavits-cum-undertaking given by the petitioner no. 1 and the conditions expressly stated in the DRCs. If these statements do not say that the petitioner no.1 would obtain NOC from the forest department as a condition precedent for wp-6603-2023.doc varsha 9 of 30 utilisation of the TDR granted vide said three DRCs and the DRCs do not impose any such condition, the petitioners cannot be restricted from utilisation of the TDR till no objection from forest department is obtained.
8. In view of the above, in the fact situation of this case, I am of the view that there is no impediment of pendency of Writ Petition No. 3205 of 2018 for petitioner no. 1 to utilise the TDR granted vide said DRCs and the petitioner no. 1 can proceed to utilise the TDR in accordance with law only subject to the condition that in case any financial liability is fastened upon the petitioner no. 1 by the judgment / order of the High Court that may be delivered in Writ Petition no. 3205 of 2018, same shall be binding upon it and the petitioner no. 1 would discharge it in terms thereof without passing it over to respondent no. 2.
9. There is a similar affidavits-cum-undertaking dated 14.07.2023 freshly submitted by the petitioners to this Court. It states that in case decision of the High Court that might be rendered in Writ Petition No. 3205 of 2018 directs that the subject land be restored from its user under sanctioned DP plan to forest user then, the petitioners would undertake to compensate the affected respondents wp-6603-2023.doc varsha 10 of 30 on the principles of restitution as may be determined and directed by this Court. Effectively, this undertaking creates only an obligation on the part of the petitioners to compensate the affected respondents on the principle of restitution as may be determined and directed by the Court, which would ultimately boil down to due discharge of financial liability by the petitioners, if the same is fastened upon the petitioner no. 1. So this undertaking would also have to interpreted in the same manner the earlier affidavits-cum-undertaking, and I do so.
10. Whatever I have held thus far is only on the basis of the fact situation of this case without considering the law governing the field of acquisition of private land subjected to reservations under the development plan, in accordance with the provisions prescribed in section 126 of MRTP, Act. If the law governing this subject is considered, the unmistakable conclusion that would emerge from it is that once a private land is acquired in terms of Section 126 of MRTP Act, which is the case here, it vests absolutely free from all encumbrances in the planning authority or development authority or any appropriate authority as the case may be. The planning authority in this case is Thane Municipal Corporation, the respondent no. 2. For such acquisition, the planning authority is required to pay wp-6603-2023.doc varsha 11 of 30 compensation to the owner i.e. petitioner no. 1 which may be monetary or in terms of TDR or FSI depending upon the nature of agreement between the owner and the planning authority and if there is no such agreement reached between them, the third option available is of compulsory acquisition under the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Re-settlement Act, 2013. In order to have a better idea about the law, I would like to refer to Section 126 of the MRTP Act, which reads thus:-
126. Acquisition of land required for public purposes specified in plans
1) When after the publication of a draft Regional Plan, a Development or any other plan or town planning scheme, any land is required or reserved for any of the public purposes specified in any plan or scheme under this Act at any time the Planning Authority, Development Authority, or as the case may be, (any Appropriate Authority may, except as otherwise provided in section 113A) (acquire the land,-
(a) by agreement by paying an amount agreed to, or wp-6603-2023.doc varsha 12 of 30
(b) in lieu of any such amount, by granting the land- owner or the lessee, subject, however, to the lessee paying the lessor or depositing with the Planning Authority, Development Authority or Appropriate Authority, as the case may be, for payment to the lessor, an amount equivalent to the value of the lessor's interest to be determined by any of the said Authorities concerned (on the basis of the principles laid down in the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013) Floor Space Index (FSI) or Transferable Development Rights (TDR) against the area of land surrendered free of cost and free from all encumbrances, and also further additional Floor Space Index or Transferable Development Rights against the development or construction of the amenity on the surrendered land at his cost, as the Final Development Control Regulations prepared in this behalf provide, or
(c) by making in application to the State Government for acquiring such land (under the provisions of the Right to wp-6603-2023.doc varsha 13 of 30 Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013), and the land (together with the amenity, if any, so developed or constructed) so acquired by agreement or by grant of Floor Space Index or additional Floor Space Index or Transferable Development Rights under this sections (or under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013), as the case may be, shall vest absolutely free from all encumbrances in the Planning Authority, Development Authority, or as the case may be, any Appropriate Authority.
11. It would be clear from the above referred provisions of law that acquisition of land can take place by any one of the modes stated in Section 126, and upon acquisition of the land it stands vested in the planning authority absolutely free from all encumbrances. They also make it clear that whenever such acquisition is to be made by grant of FSI or TDR, such vesting of the land in the planning authority takes place the moment FSI or Transferable Development Rights (TDR) are granted and such grant of FSI or TDR is to be made only when the area wp-6603-2023.doc varsha 14 of 30 of land is surrendered free from cost and free from all encumbrances. They further show that Transferable Development Rights are granted to the land owner as a form of compensation for deprivation of his land. These provisions indicate that there is a transfer of ownership from the land owner to the planning or development or appropriate authority under a statutory scheme because of which such authority becomes absolute owner of the acquired land on the one hand and the land owner becomes entitled to use the TDR at his free will, subject to the conditions mentioned in the development rights certificate issued to him on the other. These conditions are related to the manner in which the TDR must be used by the land owner and these conditions, as seen from the applicable DRCs and notification here, do not state that the TDR cannot be utilised by the land owner till NOC is obtained form the forest department.
12. Apart form whatever is said above, I must state it here that if any condition relating to obtaining of NOC is to be imposed while issuing DRC for granting TDR, it would be against the law. Neither the provisions made in section 126 of MRTP Act permit imposition of such a condition nor applicable Development Controal Regulations impose any such restriction upon utilisation of the TDR. If such a restriction is wp-6603-2023.doc varsha 15 of 30 to be imposed on the use of the TDR, it would amount to making payment of compensation in the form of grant of TDR depend upon a contingency not within the control of the land owner. On the one hand, the authority would become absolute owner of the land by virtue of completion of procedure prescribed by law and, on the other hand the compensation paid to the land owner is rendered illusory. The land owner is deprived of his property but is not paid the compensation in reality. This is not the scheme of Section 126 of MRTP, Act which is the source of law governing the field. The scheme of Section 126 is of payment of definite and certain compensation and not equivocal, uncertain and illusory compensation for acquisition of private land, which in real terms is no compensation. If the compensation is provided in a manner as would not make it certain as to when the land owner would be able to enjoy the fruits or would be able to enjoy it at all, it effectively amounts to acquiring the land free of cost without payment of any compensation. This view of mine gets it's support from the law laid down in the case of "PT Chet Ram Vashist vs Municipal Corporation of Delhi"1, which states that the law does not entitle the Corporation to claim the private land free of cost.
1 (1995) SCC (1) 47
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12. It would then follow that if any condition is imposed in DRCs granting TDR for acquisition of the private land in terms of Section 126 of MRTP, Act that the TDR shall not be utilised till NOC from forest department is obtained, such condition would be contrary to the law governing the field and as such illegal. Similarly, if there is any undertaking given by the land owner that he would not utilise the TDR till NOC is obtained by him from forest department or any other concerned department, such undertaking would not bind him, it being against the law, on the principle that there can be no estoppel against the law. A useful reference in this regard may be made to the case of 'The State of West Bengal and Ors. vs. Gitashree Dutta (Dey)2 .
13. In the present case, however, I have already found on facts that there is neither any undertaking given by the petitioner no. 1 that it would obtain NOC from the forest department nor is there any condition imposed in that regard in the said DRCs which only state that the affidavits-cum-undertaking given by the petitioner no. 1 would be binding upon it. The other conditions mentioned therein are not about obtaining of NOC from the forest department. Then, when the acquisition of the subject land by issuance of DRCs took place, the petitioner no.1 was the owner of the subject land, which was declared 2 2022 live law (SC) 527 wp-6603-2023.doc varsha 17 of 30 to be private land and not private forest land by the MRT, and to these findings recorded by the MRT, there is no stay granted by the High Court in the Writ Petition presently pending. That only means that the transfer and vesting of the subject land in respondent no.2 by virtue of the provisions made in section 126 of MRTP, Act is complete and absolute and therefore, payment of consideration for such acquisition of the subject land to respondent no. 2 is also absolute, except to the extent of the permissible conditions as stated in the applicable DCR and Government notification dated 29.01.2016 read with addendum dated 12.05.2016 and amended from time to time which do not contain any such condition about obtaining of NOC from the forest department.
14. Learned AGP for the forest department has relied upon the case of 'Kolhapur Municipal Corporation and Ors. vs. Vasant Mahadev Patil (dead) through Legal Representatives and Ors. 3 , to support his submission that in this case there is a deemed lapsing of reservation and therefore, respondent no. 2 cannot be directed to still acquire the land and to pay compensation.
15. In the said case of 'Kolhapur Municipal Corporation' (supra), the Apex Court has held once the reservation of the land 3 (2022) 5 SCC 758 wp-6603-2023.doc varsha 18 of 30 under the development plan is deemed to have lapsed by operation of law and it is released from reservation, no writ of mandamus could be issued by the High Court directing the Corporation to still acquire the land and issue a declaration under Section 19 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
16. In the present case, however, there is no deemed lapsing of reservation by operation of law nor is there any release of the subject land from reservation. On the contrary, the reservations on the subject land have been acted upon by the acquisition of the subject land affected by these reservations by the Corporation in terms of section 126 of MRTP, Act and now subject land stands vested absolutely free from all encumbrances in respondent no. 2 and there is no provision in law which would permit devesting of the subject land and it's restoration to the land owner from when it is acquired. Besides, the subject land has also been declared to be a private land and not private forest land by the Maharashtra Revenue Tribunal and this decision of the Maharashtra Revenue Tribunal has not been stayed by the High Court so far. Therefore, the case of "Kolhapur Municipal Corporation"
wp-6603-2023.doc varsha 19 of 30 (Supra) would be of no assistance to the learned AGP for the forest department.
17. In view of above, I find that the petitioners are not required to obtain any NOC from the forest department for the purpose of utilisation of the TDR granted as per the three DRCs and can use them, in accordance with law and as per the other conditions mentioned in the said DRCs. However, in order to balance the equities involved here, I am not in favour of declaring three affidavits-cum-undertaking dated 30.05.2019 as not binding upon the petitioners inasmuch as the obligations that they cast upon the petitioners are only to the extent of discharge of financial liability, if fastened upon petitioner no. 1 in the judgment that may be delivered by the High Court in Writ Petition No.3205 of 2018. Accordingly, I partly allow the petition in terms of prayer clause (b) of the Writ Petition. I clarify that the earlier affidavits-cum-undertaking dated 30.05.2019 and later affidavit-cum- undertaking dated 14.07.2023 given to this Court shall be binding upon the petitioners to the extent of the obligations that they expressly cast upon the petitioners.
18. Rule is made absolute in the above terms.
19. Writ Petition is disposed of accordingly.
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20. In view of the above, Civil Application (St) No. 19213 of 2023 does not survive and the same is disposed of.
(SUNIL B. SHUKRE, J) JUDGMENT: ( PER RAJESH S. PATIL, J.)
1. This Writ Petition filed under Section 226 of the Constitution of India is seeking relief ordering and directing the Respondents to permit the Petitioner No.1 to use the said DRCs, in accordance with law, without obtaining the NOC of the Forest Department; and by way of amendment adding new prayer on 24 July, 2023, praying therein to order a declared that the Affidavit-cum-Undertaking dated 30 May, 2019, are contrary to law, nonest and therefore, not binding upon the Petitioners.
FACTS :-
2. The Petitioner on 6 July, 1960 purchased from Court receiver by way of two Deeds of Conveyance, various properties including land bearing Survey No.59/A/1(P), admeasuring around 207 acres, 30 gunthas and 8 annas in the village Chitalsar, Manpada, Thane (for wp-6603-2023.doc varsha 21 of 30 short "Larger Property").
3. The Petitioner sold certain portions of the Larger Property, around 14 acres and 23 gunthas, and retained with it the ownership and possession of 193 acres, 7 gunthas and 4 annas of the Larger Property.
4. On 29 August, 1975, the Forest Department issued a notice to Petitioner under Section 35(3) of Indian Forest Act, 1927, in respect of Larger Property by contending that it became Private Forest within the meaning of Section 2(f) III of Maharashtra Private Forest (Acquisition) Act, 1975 and therefore Larger Property stood transferred with the State Government w.e.f. 30 August, 1975.
5. The Petitioner being aggrieved by the Forest Department's Notice dated 29 August, 1975, filed a Writ Petition No.1026 of 1975 in this Court. However, the Petitioner withdrew the said Writ Petition.
6. On 3 June, 1980, an order was passed by Deputy Collector, Private Forest whereby out of 204 acres, 8 gunthas, 8 annas, an area of 168 acres, 16 gunthas, 4 annas was declared as "Forest". Being dissatisfied the State of Maharashtra filed an appeal before the Maharashtra Revenue Tribunal ( for short "MRT") challenging the wp-6603-2023.doc varsha 22 of 30 Order dated 3 June, 1980 passed by the Deputy Collector, being Forest Appeal No.9 of 1981. The said Forest Appeal was decided by Order dated 15 October, 1982, whereby the Order of Deputy Collector was set aside and the matter was remanded back for fresh enquiry.
7. In the meanwhile, Thane Municipal Corporation was established in October, 1982.
8. As the State Government had remanded matter back to the Deputy Collector the remand proceedings, being Remand Case No.53 of 1999 was taken up for hearing, and by Order dated 27 December, 2004, the Deputy Collector, Private Forest, Thane Division came to a conclusion that area of 132 acres, 18 gunthas, 4 annas of the Larger Property was Private Forest and the remaining portion was exempted from the purview of the Act.
9. The Forest Department and the Petitioner both being dissatisfied with the order passed in remand case, challenged the Order dated 27 December, 2004, by filing their Appeals before the MRT, being Appeal No.165 of 2005 and Appeal No.229 of 2009 respectively.
10. MRT heard both the sides and by its Order dated 30 June, wp-6603-2023.doc varsha 23 of 30 2017 dismissed the Appeal No.165 of 2005 filed by the Forest Department and allowed the Appeal No.229 of 2009 filed by the Petitioner, thereby holding that the Larger Property was not Private Forest within the meaning of Maharashtra Private Forests Act.
11. The Forest Department being dissatisfied, challenged the Order dated 30 June, 2017, passed by MRT by filing Writ Petition No.3205 of 2018 in this Court. The said Writ Petition is pending in this Court.
12. Pursuant to the Development Plan of Thane a portion of Larger Property, admeasuring 55,000 sq.mtrs. (for short "said Property") came to be affected by inter alia the reservations as under :-
[i] 5000 sq.mtrs. for a 20 mtrs. DP Road.
[ii] 7000 sq.mtrs. came to be reserved for 30 mtrs. High Capacity Mass Transit Route.
[iii] 7740 sq.mtrs. came to be served for 40 mtrs. Development Plan Road.
13. In June-2018, the Petitioner filed separate application with Thane Municipal Corporation with respect to the reservations as mentioned above.
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14. The Petitioner thereafter, approached Municipal Corporation with regard to issuance of TDRs/DRCs.
15. On 30 May, 2019 Petitioners, gave undertaking on affidavits.
16. Shortly, thereafter, on 6 June, 2019, the Thane Municipal Corporation by its Letters issued TDRs/DRCs in favour of Petitioner.
17. The Thane Municipal Corporation thereafter, by its Letter dated 21 June, 2019 addressed to the Petitioner, informed them that it has received a Letter dated 14 June, 2019 from the Forest Department, calling upon the Municipal Corporation to cancel/suspend the said DRCs, in light of Writ Petition No.3205 of 2018. It also reminded the Petitioner of the undertaking furnishing by them in the Affidavit dated 30 May, 2019. In further stated that Petitioner cannot use the said DRCs until it gets NOC from Forest Department, in order to utilize the same.
18. The Petitioners have hence challenged the Affidavit-cum- Undertaking dated 30 June, 2019 being contrary to law, nonest and therefore, not binding upon the Petitioners and further seeking directions that the Respondent should permit the Petitioners to use the said DRCs, in accordance with law without obtaining NOC of the Forest wp-6603-2023.doc varsha 25 of 30 Department.
19. Senior Counsel Mr. Pravin Samdhani made his submission on behalf of the Petitioners.
19.1. Mr. Samdhani submitted that the Thane Corporation has unfairly imposed restriction on Petitioners for using DRCs, by obtaining the NOC of Forest Department. He further submitted that Petitioners have purchased the property from the Court receiver by way of two Deeds of Conveyance and none of these Deeds of Conveyance have been challenged till date. Mr. Samdhani further submitted that the issue raised by the Forest Department that the said property is a Private Forest, has been rejected by the MRT by its Order dated 30 June, 2017, thereby holding the said property is not a Private Forest. Mr. Samdhani further submitted that just because a Writ Petition is filed in this Court challenging the Order dated 30 June, 2017, wherein no stay has been granted nor the Petition is admitted, therefore, the Municipal Corporation should not have imposed the condition of obtaining NOC from Forest Department.
19.2. Mr. Samdhani further submitted that at the time of taking possession and entering into the Registered Deeds of transfer, the wp-6603-2023.doc varsha 26 of 30 Thane Corporation never informed the Petitioners that it is going to issue DRCs with a restriction on the use of the same. Mr. Samdhani further submitted that the Affidavit-cum-Undertaking submitted by the Petitioners to obtain the NOC of Forest Department before using the said DRCs cannot be used against the Petitioners. Mr. Samdhani submitted that by putting on conditional use of DRCs, the same have become of no use to the Petitioners. He submitted that the object of acquisition of the property of a person for a public purpose has been completely defeated by the present acquisition, as the persons whose property has been acquired has been restricted from enjoying his compensation, which is impressible in law.
19.3. Mr. Samdhani submitted that the present petition should be allowed.
20. Mr. Mandar Limaye appeared for Respondent Nos. 2 to 5 made submissions on behalf of Thane Corporation and its Officers. 20.1. Mr. Limaye submitted that the Petitioners have on oath, given an undertaking dated 30 May, 2019 thereby in clear words stating that without NOC of Forest Department they will not use the TDRs. The said undertaking binds the Petitioners and at a later stage, they cannot wp-6603-2023.doc varsha 27 of 30 take a u-turn. Mr. Limaye submitted that the Petitioners cannot now say that the Affidavit-cum-Undertaking were taken by force. 20.2. Mr. Limaye submitted that it is a matter of record that Petitioners never raised any objection against the reservation. He submitted that a Writ Petition, challenging the impugned Judgment and Order dated 30 June, 2017 is pending before this Court. Mr. Limaye further submitted that there is no merit in this Petition and the Petition should be dismissed.
21. Mr. S.H. Kankal, AGP appeared for Respondent Nos.1, 10 and 11, and made his submissions on behalf of State of Maharashtra. Mr. Kankal adopted the submissions made by Mr. Limaye. Mr. Kankal submitted that without obtaining NOC from Forest Department, the Petitioners and Respondent-Corporation cannot take any decision on their own. Mr. Kankal submitted that there is no merits in the present Writ Petition and the same should be dismissed. ANALYSIS & CONCLUSION :-
22. Admittedly, the DRCs dated 6 June, 2019 issued by the Municipal Corporation, is conditional. The Petitioners are required to obtain NOC from the Forest Department before using the DRCs. The wp-6603-2023.doc varsha 28 of 30 Forest Department, has objected to giving an NOC, as according to them the said property falls under Private Forest.
23. Petitioners have furnished Affidavit-cum-Undertaking dated 30 May, 2019, which reads as under :-
gehi= vkEgh fM- Mk;kHkk;h vW.M daIkuh izk-fy-ps- lapkyd Jh- furs'k ih- dksBkjh] rQsZ dqyeq[kR;kj/kkjd Jh- eukst th- eVykuh] iRrk : nqljk etyk] jkstk foLVk] ok?kchG] ? kksMcanj jksM] Bk.ks (if'Pke) 400615 vls lR;izfrKki= fygqu nsrks rs ;s.ksizek.ks :-
ekSts fprGlj ekuikMk] rk-ft- Bk.ks ;sFkhy xV ua- 59v/1/22 ;k Hkw[kaMkP;k ekydh gDdkckcr ek- mPp U;k;ky;kr eqacbZ ;sFks fjV fiVh'ku dz-3205/2018 fn LVsV vkWQ egkjk"V~ fo:/n fM- Mk;kHkkbZ vW.M daiuh izk-fy- gs izdj.k U;k; izfo"B vkgs- rlsp lnj U;k; izfo"B vlysY;k lnj fjV fiVh'ku e/;s fo"k;kafdr Hkw[kaMkckcr ek- U;k;ky;kpk tks fu.kZ; ikfjr dj.;kr ;sbZy rks fu.kZ; vkeP;koj ca/kudkjd jkfgy rlsp ek- mPPk U;k;ky;kr nk[ky nkO;k lanHkkZr ek- U;k;ky;kus vkns'k ikfjr dsY;kl lnj Hkw[kaMkckcrhr vkfFkZd nkf;kRo vkY;kl R;kph loZLoh tckcnkjh vkeph jkfgy o R;kdfjrk Bk.ks egkuxjikfydsl dks.kR;kgh izdkjph rksf"kl ykxw ns.kkj ukgh- lnj mPp U;k;ky;kr o vU; dks.kR;kgh U;k;ky;kpk Hkw[kaMk lanHkkZr dks.krkgh eukbZ gqdwe vkt jksth ukgh- rlsp ou foHkkxkpk uk gjdr nk[kyk izkIr djsi;Zar lnj Vh-Mh-vkj- ps gLrkarj.k vkf.k okij dj.kkj ukgh-
gs gehi= vkt fn- 30-05-2019 jksth fygqu fnys vkgs-
¼gehi= fygqu ns.kkj½
24. Writ Petition No.3205 of 2018, filed by State of Maharashtra, is pending in this Court, which challenges the Order passed by MRT dated 30 June 2017. Even, during the pending of this Petition, the Petitioners have furnished the undertaking in form of Affidavit dated 30 May, 2019.
25. The Petitioners are now challenging their own Affidavit-cum-
wp-6603-2023.doc varsha 29 of 30 Undertaking dated 30 May, 2019, as being contrary to law, nonest and therefore not binding on them, by way of present Writ Petition, which is filed on 20 April, 2023, in this Court.
26. According to me, the question whether Petitioners land in within Private Forest, will be decided by the proceedings which are pending by way of Writ Petition No.3205 of 2018, in this Court, before Single Judge. In the said Writ Petition No.3205 of 2018, it will be concluded whether the Petitioners land in within Private Forest. Therefore, during the pendency of the said Writ Petition No.3205 of 2018, Petitioners furnishing an Affidavit-cum-Undertaking on 30 May, 2019, and now challenging their own solemn undertaking, according to me cannot be permitted. Therefore, the question whether Petitioners land in Private Forest can be decided only in Writ Petition No.3205 of 2018.
27. Hence present Writ Petition is not entertainable and is dismissed. No costs.
28. Interim Application is also disposed off.
[RAJESH S. PATIL, J.]
Signed by: Varsha D Gaikwad wp-6603-2023.doc
varsha 30 of 30
Designation: PA To Honourable Judge
Date: 23/10/2023 17:34:00