Jyoti Builders A Partnership Firm vs State Of Maharashtra Revenue And Forest Department

CNR No : HCBM020301292025

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 4418 OF 2025
Jyoti Builders ]
A Partnership firm, Having its office at ]
6 Dheeraj Plaza, Hill Road Bandra West ]
Mumbai-400 050. ]
… Petitioner
V/s.
1. State of Maharashtra ]
Revenue and Forest Department ]
Mantralaya, through Government ]
Pleader, Original Side of Hon’ble ]
Bombay High Court, Mumbai. ]
2. The Collector ]
Mumbai Suburban District ]
Administration Building ]
th
10 Floor, Government Colony ]
Bandra East, Mumbai-400 051. ]
3. The Chief Executive Officer ]
Slum Rehabilitation Authority ]
Administrative Building ]
Professor Anant Kanekar Marg ]
Bandra (East), Mumbai-400 051. ]
4. Laxmibai Mangal Page ]
An adult of Mumbai Residing at ]
C/o Flat No.104, I-Wing ]
Satellite Garden, Phase – II ]
Film City Road, Goregaon East ]
Mumbai-400 063. ]
5. Gokuldham Ekta SRA Co-operative ]
Housing Society Limited, a housing ]
Society having its registered office at ]
Building No.8, Bengali Compound ]
Gokuldham, Off.A.K. Vaidya Marg ]
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Digitally
signed by
SUMEDH
NAMDEO
SONAWANE
Date:
2026.10.21
16:11:29
+0530
SUMEDH
NAMDEO
SONAWANE
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Goregaon (E), Mumbai-400063. ]
7. Shree Gokuldham Durgadevi Vikas ]
SRA Co-operative Housing Society ]
Ltd., a housing society having its ]
registered office at Building No.5 ]
Bengali Compound, Gokuldham ]
Off. A.K. Vaidya Marg, Goregaon(E) ]
Mumbai-400 063.
8. Gokuldham Shree Durgadevi SRA ]
Co-operative Housing Society Ltd. ]
a housing society having its ]
registered office at Building No.7 ]
Bengali Compound, Gokuldham ]
Off. A.K. Vaidya Marg, Goregaon(E) ]
Mumbai-400063. ] … Respondents
WITH
WRIT PETITION NO.4488 OF 2025
1. Shree Durgadevi Vikas ]
SRA Co-operative Housing Society ]
Ltd., a housing society having its ]
registered office at Building No.5 ]
Bengali Compound, Gokuldham ]
Off.A.K. Vaidya Marg, Goregaon(E) ]
Mumbai-400 063. ]
2. Gokuldham Ekta SRA Co-operative ]
Housing Society Limited, a housing ]
Society having its registered office at ]
Building No.6, Bengali Compound ]
Gokuldham, Off. A.K.Vaidya Marg ]
Goregaon (E), Mumbai-400 063. ]
… Petitioners
V/s.
1. State of Maharashtra ]
Revenue and Forest Department ]
Mantralaya, through Government ]
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Pleader, Original Side of Hon’ble ]
Bombay High Court, Mumbai. ]
2. The Collector ]
Mumbai Suburban District ]
Administration Building ]
th
10 Floor, Government Colony ]
Bandra East, Mumbai-400 051. ]
3. Slum Rehabilitation Authority ]
Administrative Building ]
Professor Anant Kanekar Marg ]
Bandra (East), Mumbai-400 051. ]
4. The Executive Engineer ]
Slum Rehabilitation Authority ]
Administrative Building ]
Professor Anant Kanekar Marg ]
Bandra (East), Mumbai-400 051. ]
5. Laxmibai Mangal Page ]
An Adult of Mumbai Residing at ]
C/o Flat No.104, I-Wing ]
Satellite Garden, Phase-II ]
Film City Road, Goregaon East ]
Mumbai-400 063. ]
6. Jyoti Builders ]
A Partnership firm, Having its office ]
at 6 Dheeraj Plaza, Hill Road ]
Bandra West, Mumbai-400 050. ]
7. Gokuldham Shree Durgadevi SRA ]
Co-operative Housing Society Ltd. ]
a housing society having its ]
registered office at Building No.7 ]
Bengali Compound, Gokuldham ]
Off. A.K. Vaidya Marg, Goregaon(E) ]
Mumbai-400063. ]
8. Shri Krupa SRA Co-operative ]
Housing Society Limited (Proposed) ]
a housing society having its ]
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office at Building No.9, Bengali ]
Compound, Gokuldham, Off. A.K. ]
Vaidya Marg, Goregaon (E) ]
Mumbai-400 063. ]
9. Gokuldham Saidham SRA Co-op. ]
Housing Society Limited, a housing ]
Society having its register office at ]
Building No.8, Bengali ]
Compound, Gokuldham, Off. A.K. ]
Vaidya Marg, Goregaon (E) ]
Mumbai-400 063. ] … Respondents
______________________________________
Mr. Vinay Nair i/by Adv. Arun Panickar for the Petitioner in WP/4488/2025
and for the Respondent No. 7 in WP 4418/2025.
Mr. Ravi Kadam, Senior Advocate Mr. Ashish Kamat, Senior Advocate i/by
Jitendra Jain for the Petitioner in WP/4418/2025.
Mr. Mohit Jadhav, Addl. G.P. in WP 4488/2025.
Mr. Rakesh Pathak, AGP in WP/4418/2025.
Mr. Ranjit Thorat, Sr. Adv. a/w Mr. Hemant Ghadigonkar and Adv. Pratibha
Shelake for the Respondent No.4 in WP 4418/2025 and for the Respondent
No. 5 in WP 4488/2025
_______________________________________
CORAM : A. S. GADKARI AND
KAMAL KHATA, JJ.
st
RESERVED ON : 21 July, 2026.
st
PRONOUNCED ON : 21 October, 2026.
Judgment (Per : Kamal Khata, J) :-
1) By these Petitions under Article 226 of the Constitution of
rd
India, the Petitioners seek to challenge the letter dated 23 June 2025,
issued by the State of Maharashtra at the instance of Laxmibai Mangal Page
(Respondent No. 4 and 5 respectively in the above Petitions), directing the
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Collector of Mumbai Suburban i.e. the Respondent No.2, to take immediate
action of restoration of the subject property under section 36A(6) of the
Maharashtra Land Revenue Code, 1966 (‘MLRC’) on the basis of an
erroneous interpretation of the legal opinion obtained from the Law and
Judiciary Department which is entirely contrary to the law and without
even considering the facts and circumstances of the case.
2) Since the issues involved in the above Petitions are the same
and as the contesting parties are common, therefore for the sake of
convenience, the parties are referred to by their names for clarity.
3) Jyoti Builders is implementing the Slum Rehabilitation Scheme
on 4 plots of land admeasuring 12,606,70 sq. mtrs. situated at village
Malad (East), at off Gen. A.K. Vaidya Marg, Goregaon (East) (‘the Project
Property’) under the Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971 (‘Slum Act’), under valid permissions of the
Slum Rehabilitation Authority (‘SRA’). Out of the project property, a plot
bearing CTS No. 619 is the subject matter of the Petition (‘the subject
property’).
Brief Facts:
4) Laxmibai Mangal Page (‘Laxmibai’) the contesting Respondent
claims to be a tribal and the daughter of one Warlya Shaniwar who was the
original owner of the subject property. The subject property was sold by
Warlya Shaniwar to the predecessors of Jyoti Builders by a registered Deed
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th
of Conveyance on 25 October 1991 on the basis that, he belonged to
‘Other Backward Class’ and not to Scheduled Tribe stated on Affidavit dated
th th
16 April 1991. Warlya Shanivar died on 26 September 1995. However,
despite Laxmibai being paid under a settlement by Ram Kumar Mahaton
and Harishree Enterprises evinced by the execution of an Irrevocable Power
of Attorney in favour of Harishree Enterprises, she made an Application
th
dated 27 August 2019, seeking restoration (restoration Application) of the
subject property under Section 36A of the MLRC before the learned
Collector, Mumbai Suburban District after a delay of fourteen years. Upon
th
her Application, the SDO by his Order dated 8 February 2005, held that
the transfers to the said Ram Kumar Mahaton and Harishree were invalid in
light of Section 36A of MLRC and the subject property vested in the State.
Several litigations ensued and were disposed off. During the pendency of
one such Writ Petition bearing No. 2123 of 2025 the State of Maharashtra
rd
issued the impugned letter dated 23 June 2025. Despite correspondence
with them to withdraw the said letter, they did not, based on some legal
opinion obtained by them. The above conduct of Laxmibai and the
Authorities have compelled the Petitioners to file the Petitions.
5) We have heard learned senior counsel Mr. Ravi Kadam
appearing for Jyoti Builders, Mr. Ranjit Thorat, learned senior counsel for
Laxmibai Page, Mr. Rakesh Pathak, AGP for the State in Writ Petition
No.4418 of 2025, Mr. Mohit Jadhav. AGP for the State in Writ Petition
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No.4488 of 2025 and perused the record.
6) We find merit in Mr. Kadam’s submission that, the facts of the
present case are similar to and therefore covered by the Judgment of this
Court in Jai Ganesh SRA CHS (prop.) & Anr. vs. State of Maharashtra &
Ors., reported in 2016 (5) AIR Bom R 209: 2016 SCC OnLine Bom 5176.
The Division Bench of this Court has held that, the Maharashtra Restoration
of Land to Scheduled Tribe Act, 1974, would be applicable to the transfers
st th
between 1 April 1957 and 6 July 1974. It has been followed in the case of
Harasiddh Corporation vs. State of Maharashtra & Ors. reported in 2024
SCC OnLine Bom 2034, to which one of us (Kamal Khata, J.) was a
member.
7) In Harasiddh Corporation v. State of Maharashtra (supra), this
Court has held that where land was already covered by slums, insistence
upon Section 36A could not be sustained. The Court following Jai Ganesh
SRA C.H.S. Ltd. (supra), noted that the land had "already been covered by
slums". It distinguished authorities concerning ordinary tribal land because
they did not involve land covered by slums, and it directed the SRA to
process the scheme without insisting upon Section 36A permission.
8) In Lingappa Pochanna Appelwar v. State of Maharashtra
reported in (1985) 1 SCC 479 , the Supreme Court examined the statutory
scheme as one for annulment of transfers and restoration of agricultural
lands. It noticed that restoration is available only upon the tribal
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undertaking personal cultivation, this is the interpretative foundation
subsequently applied directly to Sections 36 and 36A of the MLRC.
9) In Jayvant Laxman Bagad v. Sub-Divisional Officer reported in
2024 SCC OnLine Bom 1892 , the learned Single Judge of this Court, after
considering the controlling proposition of Lingappa Appelwar (supra), that
“non-agricultural land would not fall within the purview of Sections 36 and
36(4) of the Code.. if the lands have already been converted into and used
for non-agricultural purposes, the question of its restoration to tribal
transferor would not arise.”, has held that the protective legislation deals
with transactions concerning agricultural land and “does not deal with the
non-agricultural lands”. He therefore concluded that, the Revenue
Authorities cannot invoke Sections 36 and 36A for transactions relating to
non-agricultural land. We respectfully concur with the view of the learned
Single Judge and in our view, it is a direct answer to the present issue.
10) In the present case the subject property is a part of the project
property and was also covered by slums. Accordingly, the provisions of
Section 36A of the MLRC would not apply in view of the endorsement of
Section 3C notification under the Slum Act.
11) The statutory conditions in Section 36A(6) discloses the
character of the land to which the provision applies. Re-grant/purchase of
occupancy by the tribal is conditional, inter alia, upon an undertaking from
such tribal to cultivate the land personally and upon the agricultural
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holding not exceeding an economic holding. In our view, “Personal
Cultivation” is not an incidental formality, but it is the statutory indicator
that the restoration may be granted only if the land in question is capable of
agricultural cultivation. Thus, these provisions cannot apply to the land/s
which has been long converted to slum and now occupied by permanent
rehabilitation buildings and as such, are incapable of being put in
agricultural cultivation.
12) In our view, the existence of an agricultural land, as such, is a
jurisdictional fact, upon which the ability to exercise of power under
Section 36A of MLRC vests. Absent this, Section 36A of MLRC does not
apply.
13) In Arun Kumar v. Union of India, reported in (2007) 1 SCC
732 , the Supreme Court explained that where jurisdiction depends upon a
‘particular state of affairs’, it becomes a jurisdictional fact and therefore
held as under:
"The existence of jurisdictional fact is thus sine qua non or condition
precedent for the exercise of power by a court of limited jurisdiction."
14) In our view, the Collector could assume jurisdiction under
Section 36A only if, the subject matter was agricultural land of the class
contemplated by that provision. According to us, if that foundational fact
were absent, neither an executive direction nor a revenue entry could
confer jurisdiction. The objection is therefore not merely a defence to be
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examined after a full restoration inquiry; it goes to the Collector's
jurisdictional competence to entertain the application at all.
15) In the present case, the jurisdictional fact is demonstrably
absent and as such, recourse to Section 36A is plainly not available. First,
the 1957 Notification placed the village within an area reserved for non-
agricultural and industrial development. Second, by 1987 the Subject
Property was admittedly so densely occupied by hutments that it was
statutorily declared a slum. Third, its actual user for decades has been non-
agricultural owing to development of slums. Lastly, permanent
rehabilitation buildings now stand upon it. There is no agricultural user to
restore and no land capable of the personal cultivation as mandated by
Section 36A(6).
16) Thus, whether the issue is tested by the legal/planning
character reflected in the 1957 Notification; by the admitted actual user
established by the 1987 slum declaration; or by the existing completed
development, the conclusion is the same. The Subject Property is not an
agricultural land any more and cannot be subjected to Section 36A of the
MLRC. The Collector, therefore, lacks jurisdiction to entertain Respondent
No. 4's application, and Respondent No. 1 could not direct him to take
action under Section 36A(6).
17) In this regard, the Constitution Bench judgement of the
Hon'ble Supreme Court in Kiran Singh v. Chaman Paswan reported in
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(1954) 1 SCC 710 particularly paragraph 6 thereof held that, a defect of
subject-matter jurisdiction strikes at the very authority of the adjudicating
body and the resulting order is a nullity, and its invalidity may be asserted
whenever and wherever the order is sought to be enforced or relied upon,
including in collateral proceedings. Such a fundamental defect cannot be
cured even by consent.
18) Consequently, neither the said Order dated 8th February 2005
nor the vesting thereunder can constitute the basis for entertaining
Respondent No.4's application dated 27th August 2019 or for taking any
further action under Section 36A.
19) According to us, the allegations by Respondent No.4 of the
alleged suppression by the Petitioner to the SRA that the land had vested in
the State and other alleged wrong doings by the Petitioner will not assist
the Respondent as they have been expressly denied. On the contrary, from a
th
perusal of the Order dated 7 August 2023 passed by Division Bench of this
Court in Writ Petition (L) No. 19749 of 2023 filed by the Petitioner and
against which a challenge by Respondent No.4 was dismissed by the
th
Hon'ble Supreme Court vide its Order dated 7 May 2024, it is evident that,
it is the Respondents who are seeking to illegally and unconstitutionally
violate the Petitioner's legal and valid redevelopment of the Subject
Property. According to us, the same does not detract from the fundamental
and foundational defect of lack of jurisdiction and will not alter the
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outcome of the present Petition or alter the legal consequence flowing
therefrom.
20) In our view therefore, Mr. Thorat’s contention that, the
permission under Section 36A of the MLRC would be required to be
obtained, cannot be sustained.
th
21) A perusal of the record indicates that, as on 17 November
1987, the subject property was infested with slums and thus, alongwith
other adjoining properties was declared as a Slum under Section 4 of the
Slums Act. Moreover, the State of Maharashtra had issued a notification
notifying the villages which were reserved for non-agricultural and
industrial development. The subject property falls within the schedule of
th
the said notification dated 29 March 1957. Therefore, by virtue of the
1957 notification, Section 36A would not apply qua the subject property
inasmuch as Section 36A only applies to the agricultural land.
22) In our view, Laxmibai is only attempting to exploit the situation
for extraneous reasons. Apparently, no steps were taken by Warlya
Shaniwar to protect the so-called agricultural land when illegal structures
cropped up on his land. Record indicates that, no steps were taken by
Warlya Shaniwar to reclaim the land from the Collector under Section 36A
of the MLRC when the lands were notified as a Slum. Admittedly, after the
erection of illegal structures, there was no activity of agriculture being
conducted thereon. It would be safe to presume that, Warlya Shaniwar
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obtained compensation from the slumdwellers who occupied his property.
Having infested the lands with illegal structures and having presumably
earned sufficient money therefrom, he agreed to sell the same to Mr. Ram
Kumar Mahaton, the Chief Promoter of Udaigiri CHS in the year 1991. It
would not be out of place to assume that Warlya Shaniwar got monetary
benefits over and above the money collected for permitting the construction
of illegal structures.
23) There were no objections taken by Warlya Shaniwar in 1991
when the Development Plan indicated that, the subject property was
reserved for residential purpose. In fact, after Warlya Shaniwar sold the
subject property to Ram Kumar Mahanton by executing a registered
th
conveyance on 25 October 1991, neither Warlya Shaniwar nor his
daughter Laxmibai took any steps to reclaim the property from the Collector
th
under Section 36A of the MLRC till he expired on 26 September 1995.
24) It is interesting to note that, whilst Laxmibai continues to
initiate various proceedings from time to time, she has failed to file any
proceeding before the competent Court, to declare the Affidavit of Warlya
Shaniwar which confirmed that he had belonged to the other backward
class and was not belonging to the Scheduled tribe, as invalid or to set it
aside.
25) We are unable to understand as to how an application would
be made to restore a land after the same has been declared as slum and has
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been developed. In our view, after having filed Consent Terms with the
rd
Petitioner on 23 June 2006 and having taken consideration thereunder,
there could not have been any claim for restoration of the lands. The
th
Applications made to the Collector on 27 August 2019, under Section
36A(6) of the MLRC in itself was an Application which could not have been
made by Laxmibai particularly when she had obtained consideration from
rd
the Petitioners on 23 June 2006.
26) As per Mr. Kadam’s submission, the current status of the
subject property is as follows:-
Rehab Commencement certificate date Occupation
bldg no. certificate date
5 05.02.2010 23.08.2011
6 03.08.2004 30.06.2008
7 31.07.2004 20.07.2006
8 17.10.1997 09.06.2006
9 28.08.2003 02.02.2022
27) Jyoti Builders has rehabilitated 498 slum dwellers in the
aforesaid five buildings (‘rehab buildings’) who are members of the
Respondent No.5 in the Petition (‘slum societies’). In addition, they have
handed over 32 Permanent Alternate Accommodation (‘PAA’) in the said
rehab buildings to the SRA for rehabilitation of project affected persons
(‘PAP’).
28) As on date, the State of Maharashtra is the owner of the
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subject property. The State of Maharashtra has never objected to the
implementation of the slum scheme by Jyoti Builders on the subject
property.
29) We find that Laxmibai has wilfully and intentionally made false
statements in her Reply. She claims that her father and uncle were in use
and occupation of the subject property. If that was so, how was the property
infested with illegal structures? Was her father unaware that the subject
property was declared as a Slum under Section 4 of the Slum Act?
Assuming her father was unaware, what steps were taken for preventing
the illegal structures cropping up on their land which was supposedly
th
agricultural land until 17 November 1987? There is no averment
explaining why no steps were taken until 1995 when she was dispossessed.
30) According to us Laxmibai has wilfully and deliberately
suppressed material facts and documents executed by her father Warlya
Shaniwar as well as by her. Illustratively, the Registered Conveyance in
nd
favour of Ram Kumar Mahato dated 2 June 1992, the Settlement
th
Agreement between Laxmibai and Ram Kumar Mahato dated 6 January
1997 confirming that the subject property is sold to Harishree and she has
no objection for redevelopment of the same and the Consent Terms
th
executed by her with Jyoti Builders on 28 March 2006 and accepting
consideration thereunder. She has attempted to distort facts and mislead
the Court and seek unwarranted sympathy. On this ground alone her
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Application before the SDO deserves to be dismissed and consequently, the
Petition of Jyoti Builders deserves to be allowed.
31) In our view, all proceedings initiated by Laxmibai are nothing
else but a malicious intent of sophisticated mode of extortion and creating
hurdles in the completion of the schemes. She is probably a front for some
other interested unsuccessful developer who was unable to get the project.
It is rather unfortunate that, the concerned Authorities including the SRA
are entertaining these Applications of such unscrupulous elements and
causing undue harassment to the developers who have obtained
permissions from all concerned Authorities before initiating these projects.
rd
In our view, the communication dated 23 June 2025, based on a legal
opinion given by the Law and Judiciary Department is yet another attempt
by Laxmibai Page to create hurdles and cause harassment to the
developers/Petitioners.
32) We are surprised that the Respondent No. 2 has sought
rd
guidance from the State so belatedly by their letter dated 3 November
2025. Shouldn’t the Collector have taken guidance in 1987 before the
subject property was declared as a Slum under Section 4 of the Slum Act?
Moreover, we are unable to understand how the Respondent No. 2 would
have the jurisdiction to entertain an Application from Laxmibai after a
period of 31 years particularly when the subject property vests with the
SRA.
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33) We are unable to accept the contention that the
Commencement Certificates and Occupation Certificates were obtained
th
after the order dated 8 February 2005. Because, firstly the SDO ought to
have taken guidance from the State before passing such order and secondly,
ought to have conveyed its order to the SRA for its implementation. Failures
of Respondent No.1 and 2 in taking effective steps, since the declaration of
slum, cannot enure to the benefit of Laxmibai under the garb of being a
Tribal. In our view, both Warlya Shaniwar and Laxmibai have apparently
gained more than sufficient monetary benefits from time to time from each
developer and at same point must be stopped.
34) In our considered view, such attempt to abuse the process
should be nipped in the bud at the first instance itself. Such belated
Applications deserve to be terminated at the threshold and cannot be
permitted to become tools of sophisticated way extortion in the hands of
unscrupulous litigants. We find no material on record to show what steps
Laxmibai’s father took to prevent slums on the land. It was the duty of the
State to prevent proliferation of slums on the subject land. According to us,
if Laxmibai has any claims then it can only be against the State who failed
to prevent slums on her father’s land. In the event that the State pays
Laxmibai compensation, the State may in turn hold its concerned officers
responsible and take action against them for their inaction.
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35) In the aforesaid factual position, we cannot permit the
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communication dated 23 June 2025 to be implemented and Application
th
dated 27 August 2019 cannot be considered. We are of the view that
having permitted the Petitioners to take steps under the SRA Scheme it was
not open for Laxmibai to insist on compliance with the Restoration Act or
Section 36 of the MLRC. Such insistence, in the peculiar facts, is
unsustainable.
36) We accordingly allow the Writ Petition No. 4418 of 2025 in
terms of prayer clauses (a), (b) and (c) and in terms of prayer clauses (a) to
(d) of Writ Petition No. 4488 of 2025.

(KAMAL KHATA, J.) (A.S. GADKARI, J.)
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