[Cites 3, Cited by 0]
Bombay High Court
Ambarnath Sah.Samudaik Shetki ... vs State Of Mah. And Ors. on 28 January, 2026
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2026:BHC-AS:4057-DB 402.LPA.10.2011.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
LETTERS PATENT APPEAL NO.10 OF 2011
Ambernath Sahakari Samudayik Shetki
Society Limited, Ambernath, Dist.Thane. Appellant
versus
1. The State of Maharashtra
2. The Commissioner, Konkan Revenue Division,
Mumbai.
3. The Additional Commissioner,
Konkan Revenue Division, Mumbai.
4. The Collector, Thane.
5. The Tehsildar, Ulhasnagar, Dist.Thane.
6. Kalyan Dombivali Municipal Corporation.
7. vijay Shivaji More, R/o.Ulhasnagar.
8. Shivaji Mahadeo Shingote, R/o.Ambernath. Respondents
WITH
INTERIM APPLICATION NO.11554 OF 2025
IN
LETTERS PATENT APPEAL NO.10 OF 2011
Ambernath Sahakari Samudayik Shetki Society Ltd. Applicant
versus
The State of Maharashtra and others Respondents
_______
Mr.Atul G.Damle, Senior Advocate with Mr.Rupesh Lanjekar for Appellant.
Mr.Ashutosh A.Kumbhakoni, Senior Advocate, with Ms.Neha Bhide, Govt.
Pleader with Mr.P.G.Sawant, AGP for Respondent no.1 State.
MANISH Digitally signed by
MANISH
SURESHRAO SURESHRAO THATTE
THATTE Date: 2026.01.28
12:46:51 +0530 Mr.B.D.Joshi for Respondent no.6.
_______
Page 1 of 24
M.S.Thatte
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402.LPA.10.2011.DOC
CORAM: G. S. KULKARNI &
AARTI SATHE, JJ.
Date of Reserving the Judgment : 20th November 2025
Date of Pronouncing the Judgment : 28th January 2026
JUDGMENT (Per : Aarti Sathe, J.) :
-
1. This Letters Patent Appeal is directed against the judgment and order
dated 28th January 2010 (hereinafter referred to as the "impugned order of
resumption of land") passed by the learned Single Judge, whereby Writ Petition
No. 2267 of 1990 filed by the Appellant Society was dismissed and Respondent
No. 1-State Government was allowed to resume all the lands which were not under
cultivation.
2. This Letters Patent Appeal gives rise to a rather interesting and peculiar
litigation wherein, on or about the year 1961, a vast tract of land belonging to the
Respondent No. 1-State Government was given away to the Appellant Society,
more in the nature of a largesse, which, to our mind, is rather perplexing, however,
subject to the fulfillment of certain conditions. The non-fulfillment of conditions
for the use of land by the Appellant was to result in the resumption of such land by
Respondent No. 1-State Government. It is such action of the resumption, which
has aggrieved the Appellant, giving rise to the litigation before the learned Single
Judge.
3. Briefly the facts are: -
(i) The Appellant was formed in 1961 as a farming society under the
then Bombay Co-operative Societies Act, 1925 and as such deemed to be registered
under the Maharashtra Co-operative Societies Act, 1960. The Appellant was
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402.LPA.10.2011.DOC
registered on 21st June 1962 and commenced with having only 20 agriculturist
members, but presently the society has more than 200 members who are purported
to be collectively cultivating the land admeasuring 210 Acres, 32 Gunthas, 12
Anna from Survey No. 166 of Ambernath, Tal. Ulhasnagar, Dist. Thane
(hereinafter referred to as the "Subject Land"). Respondent No. 1- State
Government by letter dated 12th October 1961 informed the Conservator of Forest,
Thane Circle, Thane, that the Respondent No. 1- State Government had taken a
decision to grant certain forest land which otherwise was lying fallow to the
Appellant for agricultural purpose and the land which could not be used for
agricultural purpose was given to be used for planting trees such as cashew nuts,
matchwood, etc.
(ii) On 15th January 1963, Respondent No. 1- State Government
informed the Appellant by a letter of even date that directions have been issued to
Respondent No. 4, i.e., Collector, Thane to allot the subject land to the Appellant
(hereinafter referred to as the "grant"). It was specifically mentioned in the said
letter that no permission was required to be obtained for the purpose of erecting
godowns, poultry farms or farmhouses for the use of agricultural
purposes/activities.
(iii) An order dated 21st October 1964 being an order for allotment of the
subject land, was issued by Respondent no.4 in favour of Appellant subject to the
conditions mentioned therein. The terms and conditions on which the aforesaid
allotment was made were as follows:
"a) The society shall pay no occupancy price for the grant.
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b) The land shall be brought under cultivation within one year from the date
of handing over possession and the grant shall be liable to be cancelled if the land
is left fallow or neglected without valid reasons.
c) The society shall provide access to the cultivators and other persons who
possess the land in the said survey number.
d) The society shall execute a Sanad in usual format before Mamlatdar Kalyan
within 3 months
e) The village record should be corrected accordingly."
(iv) It is the Appellant's case that the letter dated 21 st October 1964 needs
to be read alongwith the grant dated 15th January 1963 which categorically stated
that such part of the land which cannot be cultivated should be utilized for
cultivating trees such as cashew nuts, matchwood, etc. It is Appellant's contention
that the subject land allotted to the Appellant Society is a forest land and hence it
was not possible to bring the same land under cultivation. Also a large portion of
subject land was occupied by a Nalla running through the said land and certain
other portions of the subject land were rocky and hilly and could not be brought
under cultivation. Respondent No. 1-State Government wanted the Appellant to
develop the subject land for agricultural purposes and hence they were assisted by
the Soil Conservation Department, by which a substantial portion of land was
brought under cultivation. However, the Soil Conservation Department informed
the Appellant that it was not possible for them to bring the entire land under
cultivation in as much as the other parts of the land were hilly and rocky areas and
were submerged under the Nalla. The Appellant with the help of its members and
labourers brought the remaining land capable of cultivation to its optimum usage.
It is hence Appellant's contention that all terms and conditions of the grant dated
15th January 1963, and the letter/order dated 21 st October 1964 passed by the
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Respondent No. 4 were complied with by the Appellant.
(v) It is the Appellant's contention that it also intimated to Respondent
No. 4 that an area of 97 acres could not be brought under cultivation for several
reasons. However, this 97acres which could not be brought under cultivation was
utilized by the Appellant for planting trees such as cashew nut, matchwood, etc.
and hence the conditions of the grant dated 15 th January 1963, and the letter/order
21st October 1964 were duly complied by the Appellant.
(vi) On 23rd November 1971, a show-cause notice was issued by
Respondent No. 4 to the Appellant Society alleging that out of the total area of 210
acres of the subject land, only an area of 95 acres was brought under cultivation
and therefore there was a violation of terms and conditions of the allotment
letter/order dated 21st October 1964.
(vii) The Appellant by letter dated 10th October 1972 denied all the
allegations made in the aforesaid show-cause notice. It is the Appellant's
contention that the explanation provided by it in its reply dated 10 th October 1972
was accepted by Respondent No. 1- State Government and resultantly the
aforesaid show-cause notice was dropped.
(viii) On 5th June 1980, the Appellant received a second show-cause notice
wherein allegations were made that out of the entire land of 210 acres, area of 97
acres, 16 gunthas and 12 annas was not brought under cultivation. It was further
alleged that the Appellant without obtaining any permissions had changed the user
of the land by constructing godowns, farmhouses and poultry farms on the subject
land. It is the Appellant's case that one can draw an inference from the said show-
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cause notice that an area of 113 acres was brought under cultivation, in as much as
Respondent No. 4 has issued a show cause notice only in respect of 97 acres, 16
Gunthas and 12 Annas.
(ix) On 30th June 1980, the Appellant filed a detailed reply to the
aforesaid show-cause notice inter alia, submitting that since there was no dispute
regarding 113 acres which have been brought under cultivation by the Appellant
on the part of Respondent No. 4, in so far as the balance 97 acres are concerned,
the Appellant was willing to give up 35 acres of land which was not suitable for
cultivation.
(x) On 15th April 1983, Respondent No. 4, without considering the
reply and submissions of the Appellant passed an order for resumption of the entire
subject land. Simultaneously, another order of even date was passed by Respondent
No. 4 granting an annual lease of 50 Acres of land out of Survey no. 166 to the
Appellant on the terms and conditions set out therein.
(xi) Being aggrieved by the aforesaid order of Respondent No. 4, the
Appellant filed W.P. No. 1773 of 1983 before this Court, which was admitted and
interim reliefs were granted in respect thereof. By virtue of this order passed in W.P.
No. 1773 of 1983, the Appellant was able to retain the possession of the subject
land.
(xii) On 26th June 1987, this Court by an order of even date disposed of
W.P. No. 1773 of 1983 and set aside the order of resumption dated 15 th April 1983
passed by Respondent No. 4 and remanded the matter back for fresh consideration
after giving hearing to the Appellant. In such order, the Division Bench recorded a
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402.LPA.10.2011.DOC
finding that the Appellant had tried to cultivate the subject land which was not
cultivable and it was only by their efforts that a larger part of the land has come
under cultivation.
(xiii) On 19th August 1987, a third show-cause notice was issued by
Respondent No. 4 calling upon the Appellant to give a detailed reply on the issue
relating to resumption of the entire subject land. The litigation in the present
Letters Patent Appeal has its genesis in the said show-cause notice.
(xiv) On 25th December 1987, a detailed reply was submitted by the
Appellant in response to the aforesaid show cause notice and it was once again
submitted that out of the 210 acres of the subject land, the Appellant Society had
brought 175 acres of land under cultivation and the possession of 35 acres of land
should be taken by Respondent No. 1- State Government.
(xv) The Appellant with reference to the show-cause notice dated 19 th
August 1987 and the reply dated 25th December 1987, submitted another reply
dated 18th October, 1988 providing reasons as to why 97 acres of the subject land
could not be cultivated, and how the presence of a stream and scattered rocky
terrain made a portion of the subject land unproductive.
(xvi) On 9th October 1989, Respondent No. 4 passed an order of
resumption of entire subject land relying upon the site inspection report of the
Tehsildar Ulhasnagar in which it was noted that the land admeasuring 132 acres
was not put to use at all by the Appellant for the purpose for which the subject land
was granted. It is Appellant's contention that such order is a non-speaking order
and passed without considering the directions given by this Court in its order dated
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26th June 1987. Being aggrieved by the aforesaid order, the Appellant Society filed
an appeal before the Revenue Commissioner, Bombay.
(xvii) On 14th May 1990, the Appellate Authority/Commissioner, Bombay
partially modified the order passed by Respondent No. 4 which reads thus: -
"a) The land reserved for various public purposes shall be resumed by the
Collector and handed over to KMC within three months.
b) The KMC shall pay a reasonable amount of compensation for the trees
planted on the area of reservation and also for the authorized structures to the
society.
c) The farm houses removed from the reservation site will be considered by
the Collector for re-allotment of site on land which will be allowed to be retained
to the society.
d) The collector shall re-calculate the area under cultivation and consider
allowing the society to continue with this land considering their efforts to develop
this land for last 30 years."
(xviii) The Appellant filed Writ Petition No.2267 of 1990 against the
aforesaid order passed by the Commissioner, Bombay.
(xix) On 25th July 2005, a development plan with Excluded Portions (EP)
were sanctioned by the Mumbai Metropolitan Regional Development Authority
(MMRDA). The excluded portions sanctioned with certain modifications were
brought into force with effect 1st September 2008 in terms of which various
portions of the subject land have been reserved for various public purposes
including construction of a government medical college attached with a
Government Hospital.
(xx) On 13th February 2009, the Municipal Corporation passed a
resolution in respect of various reservations made in the Development Plan which
was sanctioned in the year 2005. It is pertinent to note that all these events
happened prior to the dismissal of W.P. No. 2267 of 1990 filed by the Appellant.
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402.LPA.10.2011.DOC
(xxi) On 15th February 2010, the Tehsildar, Ambernath issued a letter to
DILR to carry out measurement of the area under cultivation, out of the subject
land and submit a report along with the map. On 7 th October 2010, the DILR
Ambernath submitted his report along with the map reporting the actual status of
the land which was under cultivation and its user out of the subject land.
(xxii) On 9th November 2010 the Tehsildar Ambernath submitted a report
to Respondent No. 4 wherein it was submitted that the Appellant had brought
only 7.68.9 H (19 acre and 8 Gunthas) of the subject land under cultivation by
planting some trees which were also being neglected and not looked after by the
Appellant. Therefore, Respondent No. 4 requested the Tehsildar Ambernath to
resume the remaining land admeasuring 85.28 H (213 Acre) land.
(xxiii) The Writ Petition No.2267 of 1990 came to be dismissed by the
impugned order of resumption of land dated 28th January 2010 passed by the
learned Single Judge, which is in challenge in the present Letters Patent Appeal.
(xxiv) The Appellant filed the Letters Patent Appeal on 4 th March 2010
under Stamp No. 5826 of 2010 along with civil application, i.e. CA No. 1443 of
2010 for the stay of the impugned order of resumption of land. The aforesaid
Letters Patent Appeal was dismissed by the order dated 7 th May 2010, on account
of non-removal of office objections. The Appellant thereafter filed a CA No. 354
of 2010 for restoration of the Letters Patent Appeal.
(xxv) On 3rd January 2011, Respondent No. 4 passed an order resuming
77.59.1 H (194 acres) land and further directed the Sub-Divisional Officer,
Ulhasnagar to conduct a fresh inquiry as to whether any cultivation on the balance
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402.LPA.10.2011.DOC
land is being carried out. The aforesaid order passed by Respondent No. 4 has been
challenged on 13th February 2015 by the Appellant through a revision filed before
the Revenue Minister, Maharashtra. However, no order has been passed in this
regard so far.
(xxvi) On 10th January 2011, the Circle Officer took over and obviously an
ex-parte possession of the 77.59.1 H (194 Acre) land since despite notice, the
representative of the Appellant did not remain present. On 11 th January 2011, the
fact of taking over of actual possession was communicated by the Tehsildar,
Ambernath to Respondent No. 4.
(xxvii) In the meantime, on 11th January 2011, this court by two separate
orders of the same date restored the Letter Patent Appeal (present appeal) and also
granted ad-interim reliefs in terms of prayer clause (c) as prayed for in the CA. No.
1443 of 2010. Prayer Clause (c) in the aforesaid application reads thus:-
"c. Pending the hearing and final disposal of the appeal this Hon'ble Court be
pleased to issue an order of injunction restraining the Respondent Nos. 1 to 6
from disturbing the possession of the Applicant in respect of 210 acres, 32
gunthas, and 12 annas of land out of Survey No. 166 of Ambernath in Ulhasnagar
Taluka, District Thane;"
This Letters Patent Appeal was also admitted.
(xxviii) In the year 2012, Ambernath Municipal Council filed Civil
Application No. 227 of 2012 seeking permission to develop the reservation
site/plot as per the reservation shown and described in the sanctioned development
plan. The said Civil Application came to be dismissed by this Court by an order
dated 24th August 2012, on the ground that without due adjudication of the issue
involved in the present appeal, the permission sought by Ambernath Municipal
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402.LPA.10.2011.DOC
Council cannot be granted.
(xxix) On 27th February 2014, another Civil Application No. 2 of 2014
seeking an identical relief was filed by the Ambernath Municipal Council, which
was subsequently dismissed/rejected. In the said Civil Application, it was the
contention of the Ambernath Municipal Council that the Appellant Society had
given NOC to them to take possession of the subject land, which is under
reservation. The Appellant rebutted this contention of Ambernath Municipal
Council stating that the said NOC given by the Appellant stood cancelled vide
Special General Body Meeting dated 12th January 2014.
(xxx) It is the Appellant's contention that pending the hearing of
the present appeal, the Respondents have tried to take possession of the subject
land from the Appellant and therefore the Appellant filed a Contempt Petition
bearing Stamp No. 3811 of 2024 in this Court.
(xxxi) On 28th February 2023 the District Deputy Registrar, Cooperative
Societies, Thane, after conducting various inquiries into the affairs of the Appellant
under Sections 83 and 88 of the Maharashtra Cooperative Societies Act, 1960
passed an order for conducting test audit on the subject land of the Appellant, since
various illegalities have been found in the conduct of the affairs of the Appellant.
In the said order the following illegalities have been listed out:-
"a) Not conducting any activity at all relating to agriculture.
b) Large encroachments have taken place on that portion of the land, which is
butting main road.
c) Using the land for unauthorized construction of chawls, illegally selling the
rooms therefrom.
d) Unauthorized Construction of shops and either letting them out or selling
them.
e) Enrolling rich and non-agriculturist persons as members of the Society,
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while removing/terminating the membership of the original agriculturist, the
founder members.
f) Transfer of plots allotted to the original members to such newly enrolled
non-agriculturist members, by corruption."
4. It is in the backdrop of this chequered history that the issue which has fallen
for consideration before this Court is whether the impugned order of resumption
of land passed in the present appeal allowing the resumption of land in the hands
of Respondent No. 1-State Government, has been passed on a correct appreciation
of the facts.
5. Respondent No. 1-State Government has filed their affidavit dated 9 th
January 2025, bringing on record all the developments which have taken place
post filing of the present Letters Patent Appeal. In the said affidavit, the State has
annexed letters issued by the respective authorities in Ambernath. Also a copy of
the Panchnama conducted by the Tehsildar, Ambernath on 26 th October 2010, a
copy of the report dated 9th November 2010 from the Tehsildar, Ambernath to
Respondent No. 4, and copy of the letter dated 11 th January 2011 from the
Tehsildar Ambernath to Respodnent No. 4 along with Panchnama and possession
receipt of the Circle Officer are annexed. The aforesaid affidavit has been served to
the Appellant, however, there is no rejoinder filed by the Appellant to the aforesaid
affidavit.
6. We have perused the records, the impugned order of resumption of land.
7. We have heard learned counsel Mr. Atul G. Damle, Senior Advocate, along
with Mr. Rupesh Lanjekar for the Appellant and learned counsel Mr. Ashutosh
Kumbhkoni, Senior Advocate along with Ms. Neha Bhide on behalf of Respondent
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No. 1-State Government. The contentions of both the parties have been heard at
length, and we have given our anxious consideration to the issue at hand,
considering the peculiar facts of the present case.
SUBMISSIONS :
8. Mr. Atul Damle, learned Senior Advocate, on behalf of the Appellant has
submitted that the impugned order of resumption of land has been passed on a
misappreciation of the facts of the case and is therefore liable to be quashed and set
aside. His submissions can be summarised as follows-
(i) The impugned order of resumption of land has failed to take into
consideration that by way of the grant dated 15th January 1963 read along with the
letter/order of Respondent No. 4 dated 21 st October 1964, wherein conditions
were stipulated by Respondent No. 4 for the use of the subject land were fulfilled
by the Appellant, hence there was no justification to resume the subject land by
Respondent No. 1- State Government.
(ii) The impugned order of resumption of land failed to take into
consideration that the first order of resumption dated 15 th April 1983 passed by
Respondent No. 4 was set aside by a Division Bench of this court in W.P. 1773 of
1983 and the matter was remanded back for fresh consideration after giving a
hearing to the Appellant. It is the Appellant's contention that the Division Bench
recorded a finding in the aforesaid order that the Appellant has tried to cultivate
land that was not cultivable and had, by their efforts, brought large area of land
under cultivation.
(iii) The impugned order of resumption of land also failed to take into
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consideration that post remand of the proceedings, a fresh show-cause notice dated
19th August 1987 was primarily issued only in respect of 97 acres of land and not
the entire 210 acres of land, which has been sought to be resumed by Respondent
No. 1-State Government. It is his submission, therefore, that it needs to be
presumed that since the show-cause notice has been issued only for 97 acres of
land, the remaining 130 acres of land was cultivated as per the conditions
stipulated in the grant dated 15th January 1963 read with the conditions in the
allotment letter/order dated 21st October 1964.
(iv) The impugned order of resumption of land further does not take into
consideration the circumstances under which the Appellant could not bring the 97
acres of land under cultivation, for which show-cause notice has been issued in
spite of detailed replies given by the Appellant. It was submitted that since the said
97 acres of land was not cultivable, the same was used for the purposes of
horticulture, including planting of trees such as cashew nut, matchwood, etc; as was
permitted by Respondent No. 1by the letter/ order dated 15th January, 1963.
(v) It is also his submission that order dated 14th May 1990 which
modified Respondent No. 4's order dated 15 th April 1983 was not challenged by
Respondent No. 1-State Government and therefore it can be presumed that
Respondent No. 1-State Government has accepted the said order. In view thereof,
he submitted that the impugned order of resumption of land cannot be sustained
and deserves to be quashed.
9. Mr. Ashutosh Kumbhkoni, learned Senior Advocate, along with Ms. Bhide,
Govt.Pleader on behalf of Respondent No.1-State Government has primarily
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adopted the submissions made in the affidavit in reply dated 9 th January 2025 and
submitted that the Appellant has completely contravened the conditions as
stipulated in the grant dated 15th January 1963 along with the letter/order of
Respondent No. 4 dated 21st October 1964. He submitted that the very fact that
the Appellant did not use the subject land for the purpose for which it was granted,
i.e., agricultural purpose should be the sole ground on which the resumption of the
subject land by the Respondents should be held to be justifiable. He submitted that
the subject land was given on a non-occupancy price to the Appellant on the
principes of encouraging farmers to jointly do farming and was based on a co-
operative movement model. Respondent No. 1-State Government had given this
land to the Appellant to encourage group farming and hence categorically put a
condition that the land should be brought under cultivation within 1 year from the
date of possession of the grant and the same shall, be liable to be cancelled if the
land is left fallow or neglected without valid reasons. He submitted that it was
rather unfortunate that the Appellant had not cultivated a single crop or utilised
the subject land for agriculture inspite of the specific conditions in the said grant.
10. The relevant submissions made in the affidavit in reply dated 9 th January
2025 filed by Respondent No. 1-State Government are reproduced below, which
brings out on record events which transpired post passing of the impugned order of
resumption of land -
"a) Pursuant tothe Order dated 28.1.2010, the Tahsildar, Ambernath, informed
the Deputy Superintendent of Land Records, Ambernath, vide his letter dated
15.02.2010 to carry out measurement of the area under cultivation and to submit
report along with a map. Hereto annexed and marked as Exhibit- I is a copy of the
letter dated 15.02.2010.
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b) I say that, accordingly, the Deputy Superintendent of Land Records,
Ambernath, carried out survey and submitted his report dated 07.10.2010
alongwith measurement map to the Tahsildar. In the said report, it is stated that
out of total area admeasuring 85-28-0 HR, area admeasuring 7-68-09 only used
by the Petitioner for plantation of Teak (Sag) and fruits Trees. Hereto annexed
and marked as Exhibit- 2 is a copy of the letter dated 07.10.2010 alongwith
measurement map.
c) I say that, thereafter, panchanama was carried out by the the Tahsildar,
Ambernath, in presence of five panchas and representative of the Petitioner.
Hereto annexed and marked as Exhibit-3 is a copy of the Panchanama conducted
by the Tahsildar, Ambernath, on 26.10.2010. I say that, thereafter, a report was
submitted by the Tahsildar Ambernath to the Collector, Thane. In the said report,
it is mentioned that only 7.68 Hectare land is used for plantation of Teak (Sag),
Mango, Coconut Trees and on the rest of the land, there are Homes, Chawl being
constructed illegally or without permissions of the authorities in that regard.
Hereto annexed and marked as Exhibit-4 is a copy of the report dated 09.11.2010
from the Tahsildar, Ambernath to the Collector, Thane.
d) I say that, thereafter, the survey report and measurement map from the
Deputy Superintendent of Land Records, Ambernath, Panchanama and site report
from the Tahsildar, Ambernath, was submitted to the Collector, Thane, to take
appropriate decision and pass an Order as per the Order passed by the Additional
Commissioner, Konkan Division and confirmed by the Hon'ble Court in the
Order dated 28.01.2010.
e) I say that, the Collector, Thane, after considering all the relevant
documents, passed detailed Order on 03.01.2011, thereby holding that out of total
land admeasuring area 85-28-0 HR only land admeasuring 7-68-9 HR was being
used for plantation of Teak/Sag and Fruit Trees. Therefore, the Collector after
recording the detailed reasons resumed the land 77-59-1 HR to the State
Government. I say that, the Collector, Thane, in the said Order further directed
the Sub Divisional Officer, Ulhasnagar, to find out the whether remaining land
admeasuring 7-68-9 HR is used for agriculture purpose or otherwise? Hereto
annexed and marked as Exhibit-5 is a copy of the Order dated 03.01.2011 passed
by the Collector, Thane along with acknowledgment of service on the Appellant
on 07.01.2011.
f) The Order dated 03.01.2011, passed by the Colector, Thane was served on
Shri. Vishwas Vasant Mhaske President of the Appellant Society through Circle
Officer, Ambernath on 7th January, 2011. Thereafter, on 10.01.2011, Circle
Officer, went to take physical possession of the uncultivated land admeasuring 77-
59-1 HR, however, the office of the Petitioner Society was locked and neither the
president of the Appellant Society nor its members were present, therefore, the
Circle Officer made panchnama and took ex-parte possession of the said land, in
the presence of two panchas. I say that, thereafter exparte possession receipt and
panchanama was prepared and the said uncultivated land admeasuring 77-59-01
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HR was taken into the possession. I say that on the same day, after taking exparte
possession of the said land, the same was intimated by the Circle Officer to the
Tahsildar. Ambernath. I say that, thereafter, the Tahsildar, Ambernath, by his
letter dated 11.01.2011, further informed the Collector, Thane about the said facts.
Hereto annexed and marked as Exhibit-6 (Colly) are the copies of the letter dated
11.01.2011 issued by the Tahsildar, Ambernath to the Collector, Thane, alongwith
Panchanama and exparte possession receipt."
11. Mr. Ashutosh Kumbhkoni, learned Senior Advocate, therefore submitted
that considering the facts and the documents on record, coupled with the non-
compliant conduct of the Appellant, this was a fit case where resumption of the
subject land was rightly undertaken by the Respondents.
ANALYSIS :
12. After hearing the contentions canvassed by both the parties and from the
perusal of the record, we are not persuaded to accept the contentions as urged on
behalf of the Appellant. The following discussions would aid our conclusion.
13. On perusal of the record it definitely appears to be gross violation of the
conditions stipulated in the grant dated 15th January 1963 and the letter/order
dated 21st October 1964 by the Appellant. We doubt that the Appellant was ever
conscious whether there is any rule of law considering the manner in which the
land in question, a State largesse, was used by the Appellant at any point of time.
This view also gets fortified considering the developments that have taken place
post filing of the present Letters Patent Appeal, inasmuch as the Panchnama dated
26th October 2010 drawn by the Tehsildar, Ambernath on the basis of the report
sent to him by Deputy Superintendant of Land Records, Ambernath, very
categorically mentions that only 7.68 hectare (19 acres and 8 Gunthas) land out of
the total 213 acres of land was used for plantation of teak (sal), mango, coconut
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trees and on the rest of the land there are in fact homes, chawls which are being
constructed illegally or without permission of the relevant authorities. The relevant
portion of the Panchnama is reproduced below (translated version from Marathi) :-
"We, the undersigned Panch Witnesses, residing at - Ambernath, give the
Panchanama in writing as under :
We are called at the land, bearing S. No. 166 - part, admeasuring 85-28-0 Hector
Are, situated at Village-Ambernath, allotted to Ambernath Sahakari Samudayik
Shetki Society Ltd., Ambernath. The Tahsildar Ambernath, Deputy
Superintendent, Land Records, Administrator of the Shetki Society, the Circle
Officer, Ambernath and Talathi, Ambernath are present at the said place at the
time of drawing up of the panchanama.
The survey of the land allotted to the said Society is personally carried out in the
presence of us, the Panch Witnesses. The said land is spread over from Shiv Ganga
Nagar, Govind bridge to Shiv Temple and also from Navare Nagar to the
boundaries of Morivali. The said land is situated in the heart of Ambernath City.
The said land is allotted to the said Society for the purpose of carrying out
collective farming. However, at the time of survey, it is found that no farming
activity is carried out at the said place. The said land excluding some of its area
allotted to the Society is fit for cultivation. The entire land excluding the streamlet
passing through the said land and also the rocky land on the north -eastern side of
the land is fit for cultivation. However, it is found that the Society has kept some
land uncultivated and has allotted the said land to its members. Further, it is found
that the said members have kept the said land uncultivated without carrying out
any cultivation therein. Some of members have build houses, chawls and erected
sheds at various places, unauthorisedly. Similarly, poultry sheds, stables have been
erected at some places but the same are not in use. From out of the said land, area
admeasuring 7.68 Hector is seen covered with the plantation of teak wood trees
and fruit trees and the same appear to have been planted many years ago.
However, it is seen that the Society is not maintaining those trees. Grass, shrubs,
and wild trees are seen grown naturally everywhere on the said land. Overall, it is
seen that the Society is not carrying out any agricultural activity in the said land.
It is seen that besides the unauthorised structures constructed by the members of
the Society without obtaining any permission therefor, approximately 400 to 500
encroachments are seen on the south-west and also on the north-east side of the
said land. Thus, the said land is being used for other development purpose and
commercial purpose other than farming.
The state of affairs as mentioned hereinabove are seen personally. And accordingly,
the Panchanama is given in writing."
14. Further an order dated 3rd January 2011 was passed by Respondent No.4
which was post the passing of the impugned order of resumption of land and after
considering all the documents, which held that out of the land admeasuring 200
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Acres, only a very small part of the land was being cultivated. This order was, in
fact, passed after obtaining a report of the ground realities as made by the Tehsildar,
Ambernath in his Panchnama conducted on 26 th October 2010, followed by a
report dated 9th November 2010. The relevant findings in the aforesaid order are
reproduced below (translated version from marathi) :-
"AND WHEREAS, the Applicant Society did not agree to the aforesaid Order and
therefore, it had filed Petition No.2267/1990 before the Hon'ble Bombay High
Court and in the said Petition, the Hon'ble Court declared decision on the date
28.01.2010, thereby rejected the Petition filed by the Applicant Society and
confirmed the Order dated 09.10.1989 referred to hereinabove at Sr. No. 5 under
the Caption READ in the Preface. Pursuant to the said Order, the Tahasildar,
Ambernath, Circle Officer and the Surveyor of the Office of the City Survey
Office carried out inspection of actual site alongwith the representatives of the
Samudayik Shetki Society Ltd. During the course of the said site inspection, it was
found that the trees of teak/mango/coconut etc. have been planted on the area
admeasuring 7-68-9 hectare-Are from out of the total allotted area admeasuring
85-28-0 Hectare-Are (210 acres, 33 gunthas and 12 annas) of the said Society. The
plantation of the said fruit bearing trees and other trees is in a neglected state at
sporadic places and they were planted many years ago and the Tahasildar,
Ambernath, in his Report has mentioned that no cultivation or maintenance
thereof is being carried out at present.
The land allotted to the Society is mostly fit for agriculture and as per the
conditions of the Allotment Order, the Society was required to use the said land
only for agriculture purpose. However, after completion of the site inspection, it is
found that the Society has not fully utilized the land as intended in accordance
with the terms of the Allotment Order. It was expected from the society to try to
increase agricultural income by farming collectively. However, the area allotted to
the Society is found to have been distributed by the Society/ Members and many
members have constructed their houses, chawls, sheds unauthorizedly, without
obtaining necessary permissions therefor. None of the members have kept
continued the agricultural use of the said plot of land got distributed
unauthorizedly. Thus, overall, it becomes clear that the Society has committed
breach of the Order of the Government for allotment of the Land.
The Members only have carried out unauthorized construction works on a large
scale on the land allotted to the Society as mentioned hereinabove. Similarly,
encroachments have been made on a large scale towards the North-East and
South-west sides of the said land. As a matter of fact, it was their first duty to
protect the land allotted to them, from encroachments. However, it is found that
the Society has neverever taken any preventive action in that regard. Due to all
these reasons also, the Society has committed breach of conditions.
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The Society has not taken any permission from this Office before increasing or
making change in the number of its members. Moreover, on perusing the
correspondence available with the Office of the Assistant Registrar, Co-operative
Societies and also the Audit Report of the Society, it is found that there are many
lapses in the affairs of the said society.
Therefore, considering all the aforesaid facts, it is found that the Society has not
utilized the area allotted to the Society for the purpose for which the same has
been allotted and thus, have committed breach of the conditions of the allotment
of the said land. The said land is located in the central part within the limits of the
Ambernath Municipality area and allowing the land located at such an important
and prime place to remain unproductive, is a waste of government property.
On carrying out site inspection of the Society's land pursuant to the directions
given in the Order of the Additional Commissioner, Konkan Division and also of
the Hon'ble Bombay High Court, Mumbai in this matter, it is necessary to take
into consideration the area brought under cultivation while taking action in
respect of commission of breach of conditions.
On perusing the Report submitted by the Tahasildar, Ambernath referred to
hereinabove at Sr. No. 8 under the caption 'Read', in the Preface and the Site-
Inspection Map, it is found that the society has planted the fruit bearing trees like
Teak, Mangos ,Coconut etc. and other trees on the land admeasuring 7-68-9 H.
Are from out of the total area. The Tahasildar, in his Report, has mentioned that
the said trees were planted many years ago and that the same are not being
maintained. However, it is necessary to comply with the Point No. 4 of the Order
of the Additional Commissioner, Konkan Division in Appeal No. LNA 55/89
dated 14.05.1990. Therefore, the Sub-Divisional Officer along with the Taluka
Agricultural Officer, should carry out re-inspection as to whether the said area
admeasuring 7-68-9 H. Are from out of the total area is under cultivation and
should take final decision in respect of the said area. Moreover, as the Ambernath
Sahakari Samudayik Shetki Society Limited has not carried out any cultivation on
the remaining area of the said land and carried out construction works on the said
plot of land unauthorizedly instead and thus, committed breach of conditions and
therefore, it is necessary to forfeit the said remaining plot of land to the
Government.
THEREFORE, considering the entire above-mentioned facts, I, the
Collector,Thane, in exercise of the powers delegated to me, pass the Order, as
under.
1. Ambernath Sahakari Samudayik Shetki Society Limited is directed to surrender
to the Government, the area admeasuring 77-59-1 H. Are not brought under
cultivation, from out of the area admeasuring 85-28-0 H. Are of the land bearing
Survey No. 166 situated at Village Ambernath, Taluka Ambernath, District
Thane.
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2. Directions are given to the Sub-Divisional Officer, Ulhasnagar, to carry out re-
inspection along with the Agricultural Officer to find out as to whether the
remaining area admeasuring 7-68-9 H. Are is under cultivation and thereafter, to
take final decision in respect thereof.
3. This Decision should be intimated to all the Parties concerned."
15. Pursuant to the aforesaid order dated 3 rd January 2011 passed by
Respondent No. 4, the Tehsildar, Ambernath has taken possession of 77.59.01
(194 acres) area of land, inasmuch as none of the office-bearers of the Appellant
remained present when the Tehsildar Ambernath took possession of the subject
land, inspite of the service of the order dated 3 rd January 2011 on them. We have
thus a grave doubt whether the Appellant in the legal character (whatever it was) as
it originally existed continues to be so to take the benefit of the original grant at all
survives. Further, as noted in paragraph 5 above, there is no rejoinder filed to the
affidavit dated 9th January 2025 filed by Respondent No. 1.
16. We are further inclined to accept the submissions made by Mr. Ashutosh
Kumbhkoni on behalf of the State Government, to the effect that the State
Government, has proceeded to take steps for the resumption of the subject land
post dismissal of W.P. No. 2267 of 1990 filed by the Appellant in this Court.
Thus, the submission made by Mr.Damle in rejoinder that the show-cause notice
dated 19th August 1987 was issued only in respect of 97 acres which was sought to
be assumed and that the remaining 113 acres was cultivated, hence, not a subject-
matter of resumption, does not impress us, inasmuch as, both the Panchnama dated
26th October 2010 and the order dated 3rd January 2011 categorically record that
the land was not used for the purpose of cultivation as mandated in the grant dated
15th January 1963 and the letter/order dated 21st October 1964. This, to our mind,
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is a complete violation of the terms and conditions of the grant, which has been
perpetrated by the Appellant, especially in view of the fact that the subject land was
granted to the Appellant on a gratis basis/purely exgratia and dehors the normal
method of allotment of State largesee. Such a large tract of land was granted to the
Appellant, specifically for the purpose of cultivation, although not as per the rules
and regulations, that would stricto sensu govern allotment of public lands, as
otherwise would be done, only making a glaring exception, disregarding that the
public land could have been used for any larger public good. However,
unfortunately the Appellant completely and wholesomely flouted all the conditions
and let the land to be encroached/misutilized by affluent people and exploited the
same for farmhouses, commercial purposes etc by breaching the conditions with
impunity under which the land was allotted to them. It is this illegality which
would prevail, is likely to be recognized if we accept the Appellant's contention.
17. We are also informed by the learned counsel for Respondent No. 1-State
Government Mr. Ashutosh Kumbhkoni, Senior Advocate, that even as of date
there is not a single crop which is standing on the subject land. In fact, it is his
submission that illegal houses/ farmhouses and other structures have come up on
the subject land and the original owners/ farmers to whom the subject land was
given are nowhere in the picture anymore. Learned Counsel for the Appellant, Mr.
Atul G. Damle, Senior Advocate was unable to rebut this submission made on
behalf of Respondent No. 1-State Government muchless on any material. We are
therefore inclined to accept the submission of Respondent No. 1-State
Government that the resumption of the subject land has been rightly made. This
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402.LPA.10.2011.DOC
resumption becomes more crucial now inasmuch as parts of the subject land as per
the Development plans sanctioned in 2005, have been reserved for public
purposes which now need to be implemented.
18. Further in our view it is important to note that at the time when the subject
land was granted to the Appellant, the value thereof would be a modest figure, and
with the passage of time its value has increased substantially. It is therefore rather
unfortunate that the subject land which was granted to the Petitioner with certain
end-use conditions i.e. primarily for agricultural purposes has been neglected and
in fact breached with impunity for commercial exploitation which was never the
intention of the grant. In fact, such large tracts of land can be beneficially used for
public purposes and therefore the conduct of the Appellant in not putting it to the
right use has deprived the public at large of a prime parcel of land.
19. Learned Single Judge has appropriately considered the glaring facts of the
case and has recorded findings which are completely supported by the record to the
effect that the Appellant did not use the subject land as per the conditions
stipulated in the grant read with the order dated 21st October 1964. Further, the
crucial condition of the order dated 21st October 1964 was that the subject land
had to be used for cultivation and the same has not been used by the Appellant for
the said purpose. The relevant observations as made by the learned Single Judge
are required to be noted :-
"13. This forms only a small part of the land leased in 1962. In the
remainder of the lands, cultivation is essentially not seen. The Petitioners own
Replies show that a large part of the lands has not been brought under
cultivation as required under the lease. The brick kiln, store rooms/godowns,
Society s office etc. illustrate non-agricultural user. Further lands are also not
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402.LPA.10.2011.DOC
asked for agriculture and brought under cultivation on the ground that they are
rocky and used for cattle grazing. No land has been returned to the Collector or
refused to be accepted on the ground of its unsuitability being rocky land. No
notice to the Collector has been given since 1962, showing that rocky lands
would not be able to be used for agriculture/cultivation or for permission to
graze cattle. Hence the Petitioners are bound to follow the condition of lease in
the absence of any allowance or permission or taking out of the purview of the
lease any land found unsuitable or in the absence of any other novation of their
contract of lease.
14. Clause 4 of the impugned order has directed the Collector to
recalculate the area which is under cultivation. That order cannot be faulted.
For the remainder of the lands, the Collector's order stands. Such part of the
lands as are found to be not agricultural upon inspection by the Collector must
be reverted to the State. The State shall be entitled to resume all the lands not
under cultivation.
15. Consequently, the impugned order cannot be faulted. No irregularity is
seen therein. The Writ Petition is, therefore, dismissed. Rule is discharged
accordingly."
20. We are accordingly in complete agreement with the observations as made by
the learned Single Judge. The entire conduct of the Appellant Society has been far
from being compliant, and this to our mind cannot be protected under any
provision of law. The State Government has passed the order dated 15 th April
1983 of resumption of land which is completely in accordance with law.
Consequently, Respondent No.1-State Government is directed to resume the entire
area of the subject land in accordance with law within a period of three months
from today. Further action in respect of any illegal encroachments on the subject
land may also be taken in accordance with law within such period.
21. In the light of the above discussion, the present Letters Patent Appeal is
devoid of merits. It is accordingly dismissed. No costs.
(AARTI SATHE, J.) (G. S. KULKARNI, J.)
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