39 Oswp 1487 - 2019 - Pill.86.19.jt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO. 1487 OF 2019
1. Vanashakti
a Public Trust, registered under the
provisions of the Bombay Public Trust Act,
1950 having its office at Nandakumar
Pawar House, Opp. Shri. Jagannath
Darshan Building, M.D. Kini Marg,
Bhandup Village (East), Mumbai-400 042
2. Stalin Dayanand,
Aged 54 years, Project Director, Vanashakti
and having its office at Nandakumar Pawar
House, Opp. Shri. Jagannath Darshan
Building, M.D. Kini Marg, Bhandup
Village (East), Mumbai-400042
3. Kripa Janaki Raman,
Aged 54 years, residing at B-8, Sai Shakti,
Saibaba Complex, Mohan Gokhale Road,
Goregaon (East), Mumbai-400063
4. Rohit Joshi, Indian Inhabitant,
Aged 40 years, Residing at Flat No.1,
Prajakta CHS Brahmin Society Navpada,
Thane (West)-400 062
5. Priya Narayan Mishra,
residing of Mumbai, Aged 48, Indian
Inhabitant, residing at A-303, Link Palace,
Saibaba Complex, Near Oberoi
International School, Goregaon (East),
Mumbai-400 063 .. Petitioners
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Jdk 2 / 39 oswp 1487_2019_pill.86.19.jt.doc
Versus
1. Union of India
through the Secretary, Ministry of
Environment, Forests and Climate Change,
Indira Parayavaran Bhavan, Aliganj, Jor
Bagh Road, New Delhi-110 003
2. State of Maharashtra, through
The Secretary, Forest Department
Government of Maharashtra, having its
office at New Administrative Bhavan, 15th
floor, Madam Cama Road, Mantralaya,
Mumbai-400 032
3. Chief Conservator of Forests,
Revenue & Forest Department, State of
Maharashtra and having its office at
Mantralaya, Mumbai-400032
4. Principal Chief Conservator of Forests,
State of Maharashtra and having its office at
III floor, Van Bhavan, Ramgiri Rd. Civil
Lines, Nagpur-400 001
5. Chief Executive Officer,
Aarey Colony and having its office at Aarey
Milk Colony, Aarey, Goregaon, Mumbai-
400 065
6. Dairy Development Department,
State of Maharashtra, through The Dairy
Development Commissioner and having its
office at New Administrative Building,
Abdul Gafarkhan Road, Worli Seaface,

Mumbai-400 018
7. Environment Department,
State of Maharashtra, through the Principal
Secretary and having its office at 15th floor,
New Administrative Building, Mantralaya,
Mumbai-400 032
8. Urban Development Department,
State of Maharashtra, through its Principal
Secretary, and having its office at Room
No. 423 (Main Building) Mantralaya,
Mumbai-400 032
9. Revenue Department,
State of Maharashtra, through its Secretary
and having its office at Mantralaya, New
Administrative Building, Madam Cama
Road, Mumbai-400 032
10. Office of Collector, Mumbai Suburban
District, through the District Collector, and
having its office at Administrative Building,
10th floor, Government Colony, Opp.
Chetana College, Bandra (East) Mumbai-
400 051
11. Municipal Commissioner of Greater
Mumbai, through the Municipal
Commissioner, and having its office at Head
Office, Mahapalika Marg, Opp. C.S.T.
Station, Mumbai-400 001
12. Forest Survey of India,
through its Director General and having its
office at Forest Survey of India, Kaulagarh
Road, P.O. IPE Dehradun – 248 195,
Uttarakhand

13. Mumbai Metro Rail Corporation Ltd.

(MMRCL) through the Managing Director,
NaMTTRI Building, Plot No. R-13, ‘E’
Block, Bandra-Kurla Complex, Bandra
(East), Mumbai-400051 .. Respondents
….
Ms. Gayatri Singh, Senior Advocate a/w Ms. Kruti Venkatesh i/by Mr.
Zaman Ali, Advocate for the Petitioners.
Mr. Y.R. Mishra a/w Mr. D.A. Dube, Advocate for Respondent No.1 –
Union of India
Mr. A.Y.Sakhare, Senior Advocate a/w Mr. G.W. Mattos, Additional

Government Pleader Advocate for Respondent Nos. 2 to 10
Ms. Kiran Bhagalia a/w Ms.Aruna Savla, Smt. Vidya Gharpur, Smt.
S.M.Modle and Ms. K.H. Mastakar, Advocate for MCGM Respondent-
No.11.
Mr. Ashutosh Kumbhakoni, Advocate General i/by Mr. Akshay P.

Shinde, Advocate for Respondent No.12.
….
WITH
PUBLIC INTEREST LITIGATION (L) NO. 86 OF 2019
Mr. Zoru Darayus Bhathena

Age : 44 years, Occ: Business
501, Vijay Deep, Plot No. 102,
10th Road, Khar (W),
Mumbai 400 052 ..Petitioner
Vs.

1. Water Resources Department

State of Maharashtra
3rd Floor, Mantralaya,
Mumbai 400 032
Through Office of Government
Pleader, Bombay High Court,
Mumbai 400 001.
2. Urban Development Department,

State of Maharashtra,
4th Floor, Mantrayala,
Mumbai 400 032.
Through Office of Government
Pleader, High Court,
Mumbai 400 001.
3. Municipal Corporation of Greater

Mumbai, Storm Water Drain
Department, Through Legal
Department, 3rd Floor, MCGM HQ,
Mumbai 400 001.
4. Mumbai Metro Rail Corporation Ltd.

Plot R-13, E Block, BKC,
Mumbai – 51. ..Respondents
....
Ms. Sonal a/w Mr. Manoj Shirsat i/b Pushpa Thapa for the
Petitioner.
Mr. A. A. Kumbhakoni, Advocate General a/w Ms. Geeta Shastri,
Addl. Govt. Pleader for Respondent Nos. 1 & 2.
Mr. A.Y. Sakhare, Senior Advocate a/w Ms. Aruna Savla, Smt.
Vidya Gharpur, Smt. S.M. Modle and Ms. K.H. Mastakar for
Respondent No.3 – MCGM.
Mr. Ashutosh Kumbhakoni, Advocate General i/b Akshay Shinde

for Respondent No.4.

Ms. Shakuntala S. Wadekar Advocate for WRD (Water Resource
Department).
….
CORAM: PRADEEP NANDRAJOG, CJ. &

SMT. BHARATI DANGRE, J.
RESERVED ON : OCTOBER 01, 2019
DECLARED ON : OCTOBER 04, 2019
JUDGMENT [PER PRADEEP NANDRAJOG, CJ.] :
1. The five Writ Petitioners of W.P. No. 1487/2019, the first being a
Public Charitable Trust having object to protect and preserve the
western Ghats, coastal zones, forests and rivers, the second being its
project Director, the other three being environmental activists and
residents of Mumbai have filed Writ Petition No. 1487 of 2019 praying
as under:
“a) That this Hon’ble Court be pleased to issue a writ of

Declaration, declaring the entire area of Aarey Colony ad
measuring 1280 hectare as a ‘Reserved Forest’ or a
‘Protected Forest’ as the case may be, under the Indian
Forest Act, 1927 and direct Respondent No.2 to issue a
formal notification to that effect under the Indian Forest
Act, 1927.

b) That this Hon’ble Court be pleased to issue a writ of

Mandamus and/or any other writ or order or direction in
the nature of Mandamus directing Respondent No.2 to
declare the entire area of Aarey Colony ad measuring 1280
hectare as a ‘Reserved Forest’ or a ‘Protected Forest’ as the
case may be, under the Indian Forest Act, 1927 and to issue
a formal notification to that effect under the Indian Forest
Act, 1927.
c) That this Hon’ble Court be pleased to issue a writ of

the nature of Mandamus restraining Respondents from
granting permissions for any proposed development and/or
for any non-forest activity in the entire area of Aarey
Colony without following the due process under the Forest
(Conservation) Act, 1980.
d) That this Hon’ble Court be pleased to issue a writ of

the nature of Mandamus directing Respondents to
forthwith stop all ongoing construction/development / land
filling activities inside Aarey, within the entire area of 1280
hectares.
e) That this Hon’ble Court be pleased to issue a writ of

the nature of Mandamus directing Respondents to give
effect to the implementation of the orders of Hon’ble
Supreme Court in T.N. Godavarman v/s. Union of India
(W.P. [Civil] No. 202/1995) on having identified Aarey as a
‘Forest land’.
f) That this Hon’ble Court be pleased to issue a writ of

the nature of Mandamus directing Respondents to settle

and vest all forest rights of tribal communities in Aarey

Colony in accordance with The Scheduled Tribes and
Other Traditional Forest (Recognition of Forest Rights)
Act, 2006.
f-i) That this Hon’ble Court be pleased to issue a writ of

the nature of Mandamus directing Respondent No.13 to
not carry out any non-forest activity in the entire Aarey
Colony including any change of forest landscape by way of
cutting/trimming/felling/removal of trees and/or
reclamation and/or dumping of debris and/or leveling of
land and/or any construction in the entire Aarey Colony
and to restore the areas of Aarey Colony allotted to
Respondent No.13 to its original position.”
2. The Petitioner in Public Interest Litigation (L) No. 86/2019, who

is concerned with environment has filed the petition praying as under:
“(a) that this Honourable Court be pleased to issue an
appropriate writ, order or direction under Article 226 of the
Constitution of India prohibiting the construction of a Metro
Car Depot on the flood plains of the Mithi river at Aarey;
(b) that this Honourable Court be pleased to issue an

Constitution of India directing the restoration of the natural
flood plain of the Mithi river at Aarey;
(c) that this Honourable Court be pleased to issue an

Constitution of India directing the removal of any mechanical
barrier/wall at the bank of the Mithi river which is blocking
the flow of water to and from the flood plain at Aarey;”

3. The pleadings in W.P. No. 1487/2019 commence with reference

to a direction issued by the Supreme Court in the order reported as
(1997) 2 SCC 267 T.N.Godavarman Thirumulpad v. Union of India &
Ors. in which after referring to the Forest Conservation Act, 1980,
which does not define the meaning of the word ' forest'; holding that
the word must be understood according to its dictionary meaning, the
Supreme Court held that the description covers statutorily recognized
forest, whether designated as reserved, protected or otherwise. The
Supreme Court issued a direction to the State Governments to
constitute within one month an Expert Committee to identify areas
which are forests irrespective of whether they were so notified,
recognized or classified under any law and irrespective of the ownership
of the land. The pleadings recognize that the continuous mandamus
issued is being monitored before the Supreme Court. It is pleaded in
paragraph 4 of the petition that the petitioners seek to challenge the
destructive activities in the form of construction and commercial
activities proposed at the Aarey Milk Colony (“Aarey”) which was
earmarked as Green Zone as per the sanctioned Development Plan:
2014-2034. It is pleaded in the said paragraph that Aarey is
contiguous to the Sanjay Gandhi National Park and is having a natural
tree cover, most of which is forest species and the area is rich in
biodiversity. It is pleaded that Aarey has 12 tribal hamlets and is the

natural habitats of insects, birds, reptiles and leopards. In paragraph 5

it is pleaded that Aarey would be deemed to be a ' forest' . With
reference to the documents it is pleaded that to remove and resettle
cattle from the City of Bombay, in the year 1945 land comprised in
village Aarey was acquired with the object of starting a Government
dairy farm. Construction work commenced in the year 1948. The first
batch of 300 cattle was removed from the city on 8 th March 1947. The
area comprised entirely of jungle land and there was hardly any
agriculture activity. The pleadings refer to a letter dated 22 nd July 1980
addressed by the Divisional Manager Borivali National Park to the
Regional Manager Forest Development Corporation of Maharashtra
Ltd. informing that at a meeting held on 11 th February 1980 the
Advisory Committee of the Borivali National Park decided to create a
recreational zone in Aarey and exclude the same from the boundary of
proposed Sanjay Gandhi National Park. That as per the Management
Plan various sectors have been classified for different use such as lion,
tiger and panthers safari, a botanical park and recreational area;
recognizing existence of a Bacon factory, residential quarters etc. The
letter informs that 575.33 hectare land was earmarked as administrative
sector, zoological sector and areas under construction. The letter
records that in the year 1969, 20 square km area which was revenue
land was transferred from the Greater Bombay Milk Scheme at Aarey
Colony to the forest division. The letter terminates by recording that

the remainder area needs to be notified as a reserved forest. It records

that a proposal was under consideration to issue a Notification under
Section 4 of the Indian Forest Act, 1927 to declare the remaining area
in Aarey as a reserved forest. The Schedule referred to as Appendix A
to the letter records as under:-
“APPENDIX “A”
Legal position of the areas of Borivali National Park as it

stood on 22/7/1980:
(A) Thane District Hectare Sq.Kms.

1 Reserved forest 4000.673 40.006
2 Protected forest 8.518 0.085
3 Area acquired under Special 1027.020 10.270

Land Acquisition Act from
Ghena village
4 Revenue Land from Kavesar 2.670 0.026
village transferred in
exchange
Total 5038.881 50.388
(B) Bombay Suburban District:
1 Reserved Forest 1702.283
2 Protected forest from 6.725

Shimpoli & Borivli villages

3 Revenue Land transferred 2076.073

from Aarey Milk Scheme
Total 3785.081 37.850
GRAND 88.239
TOTAL sq.kms.”
Appendix “B” to the letter records as under:-
“`APPENDIX- B’
Hectare Sq.Kms.
1 Total forest area of the 5038.881 50.388
Borivali National Park
Division in Thane District
2 Total forest area of the 3785.081 37.860
Borivali National Park
Division in Bombay
Suburban District
Grand total of the Division: 8825.962 88.239
I. Areas proposed to be
disforested for regularizing
the encroachments
1. Thane District
i) Reserved Forest 9.225
ii) Protected Forest 0.556
9.781
II. Areas which will not be

included in the proposed
National Park being isolated

patches
1. Bombay Suburban District
i) Reserved forest 7.239
ii)Protected forest 6.725
13.964
III. Areas of the Recreational 575.330

Zone proposed to be excised
from Borivli National Park
Grand Total of I, II &III 599.075 5.990

sq.kms.
The proposed areas of the Borivli National Park to

be notified under Wildlife Act will be 82.249 sq.kms.”
4. The pleadings proceed to refer to a letter dated 10 th October

1980 addressed by the Regional Manager of the Forest Development
Corporation of Maharashtra Ltd. to the Managing Director of the
Forest Development Corporation Maharashtra recording therein that
for a better management of Aarey it would be advisable to declare the
area as a reserved forest under the Land Revenue Code to be delegated
to the park authorities so that the park authorities could evict the
encroachers under the Land Revenue Code. The pleadings further
proceed to make a reference to a letter dated 8th June 2004 written by
the Governor of Maharashtra to the Chief Minister of the State of
Maharashtra recording that Aarey Milk Colony comprises 3,126 acres
of land out of which 955 acres were allotted to 27 Institutions most of

which were not using the land for the purpose it was allotted and
recommending that the Government should resume the said land. It is
recommended in the letter that the entire Aarey Milk Colony could be
merged with the Borivli National Park. The pleadings proceed further
by recording to a table prepared on 16 th October 2006 by the State of
Maharashtra recognizing 32 hectare land in Aarey Colony to be forest
land. The pleadings then referred to a Notification dated 13 th May
2009 sanctioning modification of a Development Plan to reserve 7500
square meter land in Aarey Milk Colony for a Muslim cemetery,
making a reference in the Notification that the land in Aarey Milk
Colony was a forest area. Copious reference is made in the pleadings
to reports of Indian Researchers and Government Agencies recognizing
that the land comprising Aarey had forest like characters having trees,
shrubs, herbs, grasses, herbaceous (non-woody) plants, mosses algae,
fungi, insects, mammals, birds, reptiles, amphibians and microorganism
living on the plants and in the soil, which interact with one another and
that the soil, water and minerals to make up what may be called a
forest. The reports referred to are: (i) Biodiversity of Aarey Milk
Colony and Film City (2007-2009), which highlights that 76 varieties
of Birds, 86 varieties of Butterflies, 13 varieties of Amphibians, 46
varieties of Reptiles, 5 varieties of Scorpions, 19 varieties of Spiders, 3
varieties of Theraphosid Spiders, 16 varieties of Mammals including
Leopard, Jungle Cat, Flying Fox and Jackal were found in Aarey; (ii)

Journal Article published in 'Journal of Threatened Taxa” published in

April 2010 titled “Description of a new Species of Scorpion of the
Genus Lychas” writing that the Eco-system of Aarey was vibrant
requiring the area to be saved as a forest; and (iii) Experts Study Report
published in December 2017 in “The Xavier's Research Journal, Vol.
8’, titled ‘Aarey Milk Colony, Mumbai’ opining that Aarey is a forest
territory, highlighting that the study conducted revealed 530 species of
flowering plants including trees, shrubs, herbs, climbers, twinners etc.
5. The pleading further highlight communications inter se the

Government Departments recording that area comprising Aarey Milk
Colony was a forest, being apart from the communications above
referred to: (i) The Management Plan of Sanjay Gandhi National Park,
(ii) The Statistical Outline prepared by the Forest Department in the
year 2013, (iii) A detailed project report prepared in November 2011
concerning Aarey Milk Colony, (iv) A letter dated 21 st November 2012
written by the District Collector to the Additional Chief Secretary
(Revenue) informing that the land proposed to be acquired for the
Metro Car Depot is full of grass and native trees, (v) The proposal to
declare Eco-Sensitive Zone around Sanjay Gandhi Park prepared by the
Forest Department recording that the area of Aarey is a forest, (vi) The
Management plan prepared by the Forest Department for the period
2013-2014 till 2022-2023 recording that Aarey Colony is an

unclassified forest, (vii) Transport Study Map prepared by the Mumbai

Metropolitan Regional Development Corporation showing Aarey
Colony as a forest land, (viii) Project Note of Municipal Corporation
for Greater Mumbai concerning the Goregaon-Mulund Link road,
pursuant whereto the alignment of an elevated corridor cutting through
Aarey Colony was changed accepting the fact that the ecology and
environment in Aarey would be adversely affected if the road as
proposed was laid on the ground, (ix) Scientific imaginary prepared by
Maharashtra Remote Sensing Application Centre in the year 2006
showing land in Aarey Colony to be thickly covered by vegetation
including trees, (x) The views of a Technical Committee constituted by
the Government of Maharashtra on 6 th March 2015 on the issue of
setting up a Metro Car Shed at Aarey containing a dissenting note
dated 12th June 2015 by environmental experts from IIT Bombay and
NEERI i.e. Dr. Shyam Asolekar and Dr.Rakesh Kumar to the effect
that Aarey Colony must be saved and preserved as a forest. Further
reference is made to affidavits deposed to by Officers of the Forest
Department before National Green Tribunal in O.A. No. 34/2015
renumbered as O.A. No. 45/2018.
6. On the aforesaid material relied upon, the Petitioners plead that

the land comprised in Aarey Colony needs to be declared as a reserved
or a protected forest. It is pleaded that in O.A. No. 34 of 2015 prayer

was made before the National Green Tribunal to declare Aarey as either
a forest or an eco-sensitive zone but was withdrawn on the stated advice
given by the Tribunal to withdraw the same; order dated 20 th
September 2018 passed by the Tribunal recording that the applicants
were withdrawing the Original Application with liberty to take action
as per law.
7. Further pleadings are to the effect that Mithi river, as it flows past
Aarey Milk Colony, overflows when there is excess water in the river
and thus, the land abutting the river bank functions as a flood plain and
vice versa by acting as a catchment area during the rainfall because
topology of the land is a slope with depressions towards Mithi river.
Meaning thereby, when Mithi river overflows the depressed land in
Aarey Milk Colony acts as a flood plain and when the river flow is less,
the water which accumulates in the depressions feeds the river.
8. The crystal which emerges from the distillate of the pleadings and
the documents relied upon in W.P. No. 1487/2019 is that Aarey Milk
Colony needs to be declared either as reserved or a protected forest or
alternatively as an eco-sensitive zone of Sanjay Gandhi National Park
because it has all the characters of a forest in view of the order passed by
the Supreme Court in T.N.Godavarman's case (supra) and additionally
the lands abutting Mithi river, which included the land on which the

proposed Metro Car Shed is proposed to be set up is a flood plain.
9. The petitioner of PIL (L) No.86/2019 pleads that not only the
Technical Committee's Report relied upon in the companion petition
highlighted the land in question being a flood plain of Mithi river,
pursuant to an order dated 16th August 2017 passed by the Supreme
Court in CA No.10463-64/2016 Mumbai Metropolitan Region
Development Authority Vs. Jalbiradari & Ors. a joint Committee of
IIT Mumbai and NEERI was constituted to submit a report because in
the Appeal the Supreme Court was dealing with orders passed by the
National Green Tribunal in Appeal No. 8/2013 and the Appeal No.
7/2015. The orders passed by the NGT took note of development
work along the banks of Mithi river which flooded extensively on 26 th
July 2005 causing havoc in the downstream urbanized areas. Over
1000 people had died and several thousands had fallen ill. The
Supreme Court widened the scope of the proceedings as recorded in the
order dated 16th August 2017. The petitioner relies upon a report
submitted under cover of a letter dated 13 th March 2018 as also a policy
decision taken by the State Government vide GR notified on 5 th
September 2019 concerning State Water Policy as per which vide para
9.4.1 rivers were to be protected from any form of construction on their
flood plains.
10. Since the prayers made in the petitions if granted would

adversely impact the interest of Mumbai Metro Rail Corporation Ltd.

which proposes to establish a Metro Car Shed on the land in dispute,
the response brings out that the land in question has till date not been
declared as reserved or a protected forest under Indian Forest Act,
1927. The Development Plan shows reservation of 33 hectare land as
reserved for a Metro Car Depot/Workshop; that the Metro line is being
constructed in collaboration with Japan International Cooperation
Agency; that the decision dated 26 th October 2018 by a coordinate
Bench of this Court deciding Writ Petition (L) No. 2766 of 2017 Ms.
Amrita Prithwishwar Bhattacharjee & Anr. Vs. State Government of
Maharashtra binds this Bench and operates as res judicata. It is
pleaded that in the said petition though challenge was to Notifications
dated 24th August 2017 and 9th November 2017 issued by the Urban
Development Department, State of Maharashtra under Maharashtra
Regional and Town Planning Act, 1996 reserving 33 hectare land in
question for Metro Car depot, the challenge was premised on the
argument that as per the decision of the Supreme Court in
T.N.Godavarman's case (supra) the land was required to be declared as
a forest area and alternatively as an eco-sensitive zone. The basis of the
challenge to the two Notifications as afore-noted was rejected by the
Division Bench.
11. Ms. Gayatri Singh learned Senior Counsel for the Writ

Petitioners argued in harmony with the pleadings in the Writ Petition

and highlighted that as per the direction issued by the Supreme Court
in T.N.Godavarman's case (supra) the word 'forest' not being defined
either in the Indian Forest Act 1927 or the Forest (Conservation) Act,
1980 required the dictionary meaning of the word 'forest' to be
adopted. The dictionary defined forest as a large tract of land having
trees. With reference to the various Articles and Reports to which we
have referred to above, counsel highlighted that the same evidenced
that the land comprised Aarey Milk Colony was thickly wooded and
that 33 hectare land in dispute was equally thickly wooded and de-
facto was a forest. Counsel pleaded that it needed to be conferred de-
jure status as a forest. Counsel also relied upon the communications by
the Forest Department inter se the department and to other
departments highlighting the entire Aarey Milk Colony should be
declared as a reserved forest.
12. In response, Shri. A.A.Kumbhakoni learned Advocate General

urged that the decision in Writ Petition (L) No. 2766/2017 operated as
res judicata. Learned Advocate General referred to lay out maps of
Aarey to show that extensive parcels of land were already used for non
forest purposes. Shri. A.Y.Sakhare counsel for Respondent Nos. 2, 3
and 6 to 10 adopted arguments of learned Advocate General and
additionally referred to Notification dated 16 th January 1996 (not

forming part of the pleadings in the Writ Petition) issued by the

Revenue and Forest Department State of Maharashtra under Wildlife
(Protection) Act 1972 notifying the situation and limits of the Sanjay
Gandhi National Park to be 8696 hectare out of which 2076 hectare
land comprised in Aarey was transferred as forest land, and 1280
hectare remained as part of Aarey Milk Colony.
13. The record of the Dairy Development Department concerning

Aarey Colony shows that parcels of land totaling 525 hectare were
utilized as follows: (i) 18 Adivasi Padas, (ii) Slum areas, (iii) Office of
the CEO, Aarey Milk Colony, (iv) Aarey Milk processing plaint, (v)
New Zealand Hostel building, (vi) Dairy Diploma College, (vii)
Around 30 units of cattle sheds – consisting of 16,120 buffaloes, (viii)
17 Godowns – 12 of which are around 7000 sq. ft. and 5 are around
3000 sq. ft., (ix) 12 vendor stalls – including food vendors, etc. (x) VIP
rest house, (xi) Police Station, (xii) Wireless Station, (xiii) Maharashtra
Agro Industries Development Corporation Office, (xiv) Modern
Bakery, (xv) Office of Poultry Development Organization, (xvi) BMC
school – from class 1st to 10th, (xvii) Aarey Hospital, (xviii) Veterinary
Quality Control Lab, (xix) Temples, (xx) Gymnasium, (xxi) Adani
Electricity Sub-station, (xxii) 4 gardens, (xxiii) 2 nurseries and (xxiv)
Boat club-near Aarey lake.

14. The learned counsel also highlighted that the issue whether
Aarey Milk Colony was liable to be declared as an eco-sensitive zone
was pending consideration before the National Green Tribunal in O.A.
No.193/2016 for the reason the MoEF Notification dated 5 th
December 2016 notifying the eco-sensitive zone around Sanjay Gandhi
National Park excluded the 33 hectare land on which the Metro car
shed was proposed to be established and the challenge before the
National Green Tribunal was to the exclusion of said land from the area
comprising the eco-sensitive zone. Learned counsel highlighted that
this was also noted by the Division Bench of this Court in its decision
in W.P. (L) No. 2766/2017 Amrita Prithwishwar Bhattacharjee Vs.
State of Maharashtra & Ors.
15. The pleadings in the Writ Petition show that land in Aarey
village was acquired to set up a Dairy and shift the cattle from the city
of Mumbai to said area. The acquired land was a forest and hardly used
for agricultural purpose. How much land was acquired is not known.
The records being old are not available. But, Appendix A to the letter
dated 22nd July 1980 to which we have referred to herein above, while
noting pleadings of the writ petitioners, reveals with reference to
Appendix A therewith, which also we have reproduced herein above,
that pertaining to Aarey Milk Colony (learned counsel for the
petitioners agree that reference to Bombay Suburban District in the

Appendix was a reference to Aarey village), 2076.073 was transferred

to the Forest Department for Sanjay Gandhi Park land constituting
Aarey Milk Colony is 1280 hectare. Learned counsel for the parties
were in agreement that the issue has to be decided with reference to the
land currently recorded in the revenue record as the area comprising
Aarey Milk Colony. The 1280 hectare land is under control of the
Forest Department and that the 33 hectare land in question falls
within the said 1280 hectare land. It is also an admitted position that
525 hectare out of 1280 hectare land has already been diverted for the
24 purposes noted by us herein above, though most of which has not
been utilized by the allottee departments and continues to be a green
area.
16. It being not in dispute that the word ‘forest’ has not been
defined in the Indian Forest Act, 1927 nor the Forest (Conservation)
Act 1980 the ordinary dictionary meaning of the word 'forest' has to be
adopted; which would mean a large tract of land covered by trees on
which no agricultural activity is undertaken.
17. But the problem would be: What would be the measure of a large
tract of land. Further what extent of tree cover of land should exist for
the land to be treated as forest land?
18. Regretfully, the State of Maharashtra has not formulated any

policy laying down the parameters to determine either the extent of

land or treat coverage therein for qualifying the land as a forest. We
find that State of Gujarat has notified a policy as per which 2 hectare
continuous land having tree coverage of above 50% would qualify the
land as a forest land.
19. Areas requiring to be declared as reserved or protected forest is

pending consideration before the Supreme Court in
T.N.Godavarman's case (supra). The issue pertaining to 33 hectare in
question being wrongly excluded from the eco-sensitive zone is
pending consideration before the National Green Tribunal in O.A.
No.193/2016 wherein the Notification dated 5th December 2016
notifying the eco-sensitive zone around Sanjay Gandhi National Park
has been challenged to the extent it excludes the 33 hectare land in
question.
20. In Writ Petition (L) No. 2766/2017 as noted above, while laying
challenge to the Notifications dated 24th August 2017 and 9th
November 2017 issued by the Urban Development Department, State
of Maharashtra under Maharashtra Regional and Town Planning Act
1966, pertaining to the Development Plan of Mumbai Metropolitan
Region, the land in question was reserved for a Metro car shed and the
petitioners while making a reference to the directions issued by the
Supreme Court in T.N.Godavarman's case (supra) had also made a

reference to the letters dated 22nd July 1980, 16th October 1980, 8th
June 2004 and 16th October 2006. The Division Bench held that
therefrom it could not be inferred that the area is a forest area. We
hasten to add that the material placed before us is much more than
what was placed before the Division Bench on the issue of the green
coverage in the area. On the issue of the Notification declaring eco-
sensitive zones around Sanjay Gandhi National Park the Division
Bench held that the said Notification was not challenged before it and
further that the issue was pending consideration before the National
Green Tribunal. Though not expressly stated, the principle of ‘Comity’
has been relied upon. Meaning thereby, the said issue has to be urged
before the National Green Tribunal pertaining to the Notification
dated 6th December 2016.
21. We have perused the decision of the Division Bench of this Court
in W.P. (L) No.2766/2017. Arguments having concluded on 15 th June
2018 the judgment was pronounced on 26 th October 2018. The
Division Bench has noted that the case of the petitioners therein was
that the land was required to be treated as a forest and being located on
the banks of Mithi river had to be treated as a flood plain. It was rich
to flora and fauna. That the MoEF Notification dated 16 th December
2016 wrongly excluded the land from the eco-sensitive zone. The
Division Bench noted that to establish the metro car shed, on 11 th

March 2015 the State Government constituted a Technical committee

comprising six members (including two environmental experts) to
advert its consideration to the delicate issue of environmental impact
on setting up a metro car depot. The Committee tendered its report on
11th August 2015 primarily recommending the metro car depot to be
located at Kanjur Marg with only a small stabilizing unit at Aarey. The
Division Bench noted that as per the report if for some reason land at
Kanjur Marg was not available the metro car depot be located at Aarey
within 20.82 hectare land. The two environmental experts expressed
their dissent and attached three notes evidencing a contrary view. That
pursuant to the report the Government of Maharashtra issued a
directive on 16th October 2015 accepting the report of the technical
Committee and approved the land at Kanjur Marg to be allotted to
Mumbai Metro Rail Corporation Ltd. But the land was found to be
under dispute. The Division Bench noted that the General Consultant
for the project addressed a letter to the Mumbai Metro Rail
Corporation Ltd. on 1st February 2016 listing potential financial
impact on the delayed finalization of the location of the metro depot.
Further, technical difficulties in relation to the proposed site at Kanjur
Marg were cited with a view to demonstrate its non-viability; being
land required to be filled up by three meters to four meters which
would conflict with two monsoon seasons time period. The General
Consultant recommended that the metro depot be constructed at Aarey

using double Decker Lay Out. Mumbai Metro Rail Corporation Ltd.
held a board meeting and resolved to request the State Government to
effect necessary modifications in the Development Plan of Mumbai
Metropolitan Area resulting in the State of Maharashtra resolving on
16th March 2016 that 33 hectare land in Aarey be reserved for the
metro car depot. On 30th December 2016 the State Government
approved the modified lay out – to Aarey as proposed by Mumbai
Metro Rail Corporation Ltd. subject to fulfillment of certain
conditions. This necessitated a modification in the Development Plan
– 1991 for Mumbai Metropolitan Region. A notice was issued as
required by law to change the development plan. 2382 objections were
received. On 24th August 2017 the Notification under challenge in the
petition was issued by the Urban Development Department under
Maharashtra Regional and Town Planning Act, 1966 whereby not only
33 hectare land in dispute but certain other tracts were deleted from the
non-development zone. The conditions enumerated in the
Notification to mitigate the adverse environmental impact were made a
part of the Notification. The same as under were noted by the Division
Bench:
“(1) Open area shown on the Part Plan of proposed
modification shall be kept open and it shall be binding
to conserve the trees on part of the said land
permanently.
(2) To mitigate the environmental impact to Aarey Colony

following measures shall be undertaken:
i) Ground water recharging arrangements to be

provided in the Depot.
ii) Plantation of Trees as per recommendation of the
Committee
iii) Trees above 10 feet height of native variety only be
planted.
iv) Plantation to be undertaken by professional agencies
only.
v) Annual Audit of plantation by Third Party and
Reports posted on the Company's website.
vi) MMRC to maintain these trees for 5 years.
(3) Total 33 Hectors of land shall be used only for Metro

Car Depot/ Workshop, allied users only. Commercial
user shall not be permitted.
(4) Before development of the land for the purpose of Car

Shed, Mumbai Metro Rail Corporation Limited shall
obtain necessary permissions from concerned
Department as required under the all other prevailing
laws.
(5) The character of overall construction shall be such that

the underground water table shall not get disturbed.”
22. The Division Bench noted that the challenge was premised to
the Notification dated 24th August 2017 on the ground that the land
being a forest without the necessary permission from the forest
department land use could not be changed. The Division Bench noted
that the challenge to the eco-sensitive zone Notification was pending

before the National Green Tribunal. The Division Bench noted that
the argument of the land being a flood plain of Mithi river was also
urged, yet the challenge failed.
23. The petitioners herein have challenged the decision of the

Division Bench before the Supreme Court. Petition seeking Special
Leave to Appeal (CC) No. 14933/2019 has been filed. During
argument copy of the said petition was handed over to the Court and
we find that in the synopsis case pleaded by the petitioners herein
before the Supreme Court is that land in Aarey Milk colony is a lush
vegetative land; rich in flora and fauna and thus to delete 33 hectare
land from non-development zone and reserve it for a metro car shed is
illegal. It is pleaded in paragraphs 5,7, 8 and 10 of the Special Leave
Petition as under:-
“5. While deciding that petition the High Court realized
that there are two critical points of law involved (i)
whether the land covering an area of 33 hectare
which was a subject matter of the Writ Petition
before the High Court was forest land, in which case
no non-forest activity could take place and (ii)
whether the notification dated 5.12.2016 the MoEF
which excluded 33 hectare of Aarey Milk Colony
from the Draft Ecological Sensitive Zone
Notification was legal. These points of law were also
subject matter of different petitions pending before
the Bombay High Court in W.P. (L) No. 2766/2017
and the NGT in O.A. No. 193/2016.

7. The question is whether the High Court could have

gone into issues not covered by Writ Petition (L)
No. 2766/2017 which was restricted to the issue of
change of land use from No Development Zone to
'Metro Car Depot/Workshop, allied Users' of an area
ad measuring 33 hectare that petition therefore
sought to challenge the notifications giving effect to
the change in land use. Whether the High Court
followed the correct procedure in not clubbing the
matters together to hear all the overlapping legal
issues simultaneously.
8. Worse still, while observing that the petition seeking

a declaration that Aarey Colony is a forest land was
pending before the NGT (now the High Court), this
Bench of the High Court proceeded to hold in
paragraph 80 that Aarey Milk Colony is not a forest.
xx x
10. The proceedings in which this impugned order was

made involved challenge to the notifications dated
24.08.2017 & 09.11.2017 issued under the
Maharashtra Regional & Town Planning Act, 1966
regarding change in land use from 'No Development
Zone' to 'Metro Car Depot/Workshop and allied
uses' with respect to lands ad measuring 33 hectares
in Aarey Colony. Whereas the issue in WP (L) No.
2766/2017 filed by the petitioner pertains to seeking
a declaration of the entire Aarey Colony as a
'”Reserved forest” or a “Protected forest” where it
relied inter alia, on the decision dated 12.12.96 of
the Supreme Court in T.N.Godavarman
Thirumulkpad vs. Union of India (1997 2 SCC 267)
wherein the Supreme Court held as under:

“3. It has emerged at the hearing, that there

is a misconception in certain quarters
about the true scope of the Forest
Conservation Act, 1980 (for short “the
Act”) and the meaning of the word
“forest” used therein. There is also a
resulting misconception about the need
of prior approval of the Central
Government, as required by Section 2 of
the Act, in respect of certain activities in
the forest area which are more often of a
commercial nature. It is necessary to
clarify that position.
4. The word “forest” must be understood

according to its dictionary meaning.
This description covers all statutorily
recognized forests, whether designated
as reserved, protected or otherwise for
the purpose of Section 2(i) of the Forest
Conservation Act. The term “forest
land”, occurring in Section 2, will not
only include “forest” as understood in
the dictionary sense, but also any area
recorded as forest in the Government
record irrespective of the ownership.
This is how it has to be understood for
the purpose of Section 2 of the Act.
The provisions enacted in the Forest
Conservation Act, 1980 for the
conservation of forests and the matters
connected therewith must apply clearly
to all forests so understood irrespective
of the ownership or classification
thereof.”

22. Pleadings what was wrong, in the view of the petitioners, in the
decision of the Division Bench, in paragraphs 12, 13, 14 and 15 of the
Special Leave Petition it is pleaded as under:
“12. The High Court further wrongly stated that the ESZ
Notification dated 05.12.2016 had not been
challenged. It also wrongly concludes at para 51 that
since 165 hectare of land is not included in ESZ,
Aarey Colony cannot be treated as a forest. An area
declared as ESZ does not imply that it is a forested
area. A non-forest area can fall under ESZ since
ESZ is a buffer area/zone around (and outside of) a
National Park or a Sanctuary and therefore, this ESZ
only acts as a shock absorber and helps in conserving
wildlife inside the National Park or a Sanctuary.
The High Court wrongly concludes that since an
area of 33 hectare has been carved out of ESZ, not
only is this area but the entire area of Aarey Colony
ad measuring 1280 hectare is not a forest. Why
status quo should be ordered.
13. If the petitioners herein succeed before the Bombay

High Court in obtaining a declaration that Aarey
Milk Colony is a forest, then the Government plan
to build a car shed/ workshop and build other
commercial premises in Aarey Milk Colony will
automatically follow since non forest activity is
impermissible in a forest area.
14. If the petitioners herein succeed before the NGT to

have the MoEF Notification dated 5.12.16 set aside

then the consequences will be that the entire Aarey

Milk Colony will fall within the Ecological Sensitive
Zone, in which case non forest activity is not
permissible.
15. Since the restoration of the forests of Aarey Milk

Colony is not possible once the trees are cut and the
flood plains of the Mithi river covered over with
concrete, the more prudent approach would be to
order the immediate final hearing of Writ Petition
(L) No. 2766/2017 pending before the Bombay
High Court and O.A.No. 193/2016 pending before
the NGT, Pune and, in the interim, order all
construction work in the Aarey Milk Colony to
temporarily stopped. This is prayed for in the
Application for Directions filed with this SLP.”
23. Thereafter in the petition seeking Special Leave to Appeal in

paragraph 16 onwards the facts have been pleaded to highlight that the
Division Bench erred in not declaring the land either as a forest or
flood plain or eco-sensitive zone. In paragraph 23 the grievance raised
is that the said Division Bench ought to have summoned the file of the
instant writ petition. Overlooking the fact that the instant petition was
filed in October 2018 arguments were concluded in W.P. (L) No.
2766/2017 on 15th June 2018 and the judgment was pronounced on
26th October 2018, the prayers made in the petition seeking Special
Leave to Appeal (which are interesting) read as under:-
“25. In view of the above, petitioner herein prays for

following reliefs:
a) For an order directing the NGT, Pune to

expeditiously proceed with and decide O.A. No.
193/2016 (Vanashakti Public Trust Vs., Union of
India & Ors.) irrespective of the observations made
by the Bombay High Court in the impugned order;
b) For an order directing the Bombay High Court to

expeditiously proceed and decide the Writ Petition
(L) No. 2766/2017 (Vanashakti Public Trust Vs.
Union of India & Ors.) irrespective of the
observations made by the Bombay High Court in
the impugned order;
c) For an order staying the operation of the impugned

order.
d) For an order stopping all construction work related

to the car shed/workshop and related issues until
the above mentioned writ petition in the Bombay
High Court and the OA in the NGT, Pune are
finally decided.”
24. The pleadings before the Supreme Court in the petition seeking
Special Leave to Appeal challenging decision dated 26 th October 2018
reinforce the fact that the petitioners understand the point that the
issues raised by them in the instant petition were raised before the
Division Bench which pronounced said decision and the core of their
grievance is that till National Green Tribunal decided O.A.

No.193/2016 pertaining to the eco-sensitive zone Notification dated

5th December 2016 and till the Supreme Court decides in T.N.
Godavarman's case (supra) concerning the lands to be notified as
reserved or protected forest, this Court ought not to have decided
legality of the Notifications de-reserving the land in dispute and
reserving the same for a metro car shed. Meaning thereby,
notwithstanding recognizing the fact that the remedy was to move
interim applications before the Supreme Court in the
T.N.Godavarman's case (supra) and before the National Green
Tribunal in O.A.No.193/2016, the writ petitions were filed. The
prayers made before the Supreme Court are not to quash the decision
of the Division Bench but firstly to direct the National Green Tribunal
to expeditiously decide O.A. No.193/2016 and secondly to decide the
instant petition irrespective of the observations made by the coordinate
Bench of this Court in W.P. (L) No. 2766/2017; a prayer which is hit by
the principles of res-judicata.
25. We are respectfully bound by the decision of the Division Bench.

26. We emphasize at the costs of repetition, pertaining to the issue of
the area to be declared as a reserved forest or a protected forest since the
proceedings before the Supreme Court are pending in
T.N.Godavarman's case (supra) petitioners should file an application
before the Supreme Court and concerning the eco-sensitive zone

Notification dated 5th December 2016 an application should be filed

before the National Green Tribunal. The petitioners themselves have
filed as Ex. LL an affidavit deposed to by Dr. Amit Lowe on 18 th June
2016 on behalf of MoEF filed before the National Green Tribunal in
O.A. No. 34/2015(WZ), inter-alia, stating as under:
“That with reference to the declaration of the Aarey

Colony covering an area of 1280 hectare as ‘Forest
land’ under Forest Conservation Act, 1980, it is
submitted that the Ministry in consultation with the
State Government / Union Territories has
formulated draft parameters for classification of an
area as forest under the Forest (Conservation) Act.
These parameters are in final stage of examination
before they are filed before the Hon’ble Supreme
Court for their approval. Once the approval is
obtained then a decision to apply these parameters in
the context of the Aarey land could be taken up.”
27. This itself shows that the appropriate forum to be approached is

the Supreme Court.
28. Concerning the case pleaded in PIL (L) No. 86/2019 that the
report submitted by IIT Bombay and NEERI, placed before the
Supreme Court in CA No.10463-64/2016, suffice it to state that even
this issue relating to the report has to be urged before the Supreme
Court and not in a separate proceedings. We have perused the report.

It notes that the total length of Mithi river is 75.84 km out of which
8.23 km downstream part is influenced by the tidal effect of Mahim
creek. The river traverses through Powai, Marol, Andheri and runs
below the runway of the International Air-port and Meanders through
Bandra-Kurla complex. It discharges through the Mahim creek into the
Arabean Sea. The report notes that the channelization of the river by
erecting vertical concrete walls was wrong. It suggests remedial
measures pertaining to the flood plain in Aarey Colony. It notes that
the natural course of the river had already been altered leading to an
acute 90 degree's turn at the edge of the proposed Metro Yard. The
report also notes that large tracts of lands having depression at the site
of the proposed Metro Yard have been extensively filled up. Though
not expressly stated, the report recognizes the irretrievable change in
Topology and therefore in the proposed eco-rejuvenation master plan
it proposed solutions in a manner the Metro Yard could be constructed
without further environmental damage. Since the report has been
called for by the Supreme Court and the issue of flood plain of Mithi
river is being considered by the Supreme Court, on the principle of
Comity the Petitioner ought to approach the Supreme Court by filing
an application. The water policy relied upon does not expressly
prohibit construction on a flood plain. It lays emphasis to protect flood
plain while planning constructions. In any case, the Technical
Committee Report which would be considered by the Supreme Court

notes that low lying area at the site of the Metro Yard has already been
filled up and the course of the river has been altered, meaning thereby
the remedial measure to be taken concerning this stretch of the river
has to be debated before the Supreme Court. We also note that the
concerns of the two environmental experts as per the dissenting note
dated 12th June 2015 have been taken note of and mitigating conditions
imposed when the draft plan-1991 for Mumbai Metropolitan Region
was amended, which remedial measures we have noted in paragraph 20
above.
29. Repeatedly, Davids (environmentalist) take on industrial

Goliath's. Relationship with nature and love for environment alone is
true and all other relationships are unreal and temporary, is their belief.
Their hearts are a temple of devotion to flora and fauna. In the instant
case, the Davids row their boat with faith, courage and devotion in the
storm of development; but directionless. The Greens fail in the instant
petition because they have lost touch with the procedure to be followed
as per law.
30. Since we agree that the coordinate Division Bench decision of
this Court ties our hands, we need not elaborate on the submissions
made by the learned counsel for the respondents that 525 hectare land
has already been diverted to 24 departments and the map of Aarey
Colony shows that the said 24 diversions are spread over the 1280

hectare of land in Aarey Milk Colony i.e. do not form a contiguous

part, requiring therefrom to be inferred that what was originally a forest
has degenerated and the clock cannot be put back. We do not make
any comments thereon for the reason the petitioners have to now swim
or sink before the Supreme Court with respect to the Special Leave
Petition filed by them and the proceedings before the National Green
Tribunal.
31. The Writ Petition and the PIL are accordingly dismissed but
without any order as to costs.
SMT. BHARATI DANGRE, J. CHIEF JUSTICE

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

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13. Mumbai Metro Rail Corporation Ltd.

Mr. A.Y.Sakhare, Senior Advocate a/w Mr. G.W. Mattos, Additional

Mr. Ashutosh Kumbhakoni, Advocate General i/by Mr. Akshay P.

Mr. Zoru Darayus Bhathena

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1. Water Resources Department

2. Urban Development Department,

3. Municipal Corporation of Greater

4. Mumbai Metro Rail Corporation Ltd.

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for Respondent No.4.

CORAM: PRADEEP NANDRAJOG, CJ. &

RESERVED ON : OCTOBER 01, 2019

DECLARED ON : OCTOBER 04, 2019

JUDGMENT [PER PRADEEP NANDRAJOG, CJ.] :

“a) That this Hon’ble Court be pleased to issue a writ of

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b) That this Hon’ble Court be pleased to issue a writ of

c) That this Hon’ble Court be pleased to issue a writ of

d) That this Hon’ble Court be pleased to issue a writ of

e) That this Hon’ble Court be pleased to issue a writ of

f) That this Hon’ble Court be pleased to issue a writ of

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and vest all forest rights of tribal communities in Aarey

f-i) That this Hon’ble Court be pleased to issue a writ of

2. The Petitioner in Public Interest Litigation (L) No. 86/2019, who

(b) that this Honourable Court be pleased to issue an

(c) that this Honourable Court be pleased to issue an

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3. The pleadings in W.P. No. 1487/2019 commence with reference

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natural habitats of insects, birds, reptiles and leopards. In paragraph 5

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the remainder area needs to be notified as a reserved forest. It records

Legal position of the areas of Borivali National Park as it

(A) Thane District Hectare Sq.Kms.

2 Protected forest 8.518 0.085

3 Area acquired under Special 1027.020 10.270

(B) Bombay Suburban District:

1 Reserved Forest 1702.283

2 Protected forest from 6.725

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3 Revenue Land transferred 2076.073

Total 3785.081 37.850

Appendix “B” to the letter records as under:-

II. Areas which will not be

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III. Areas of the Recreational 575.330

Grand Total of I, II &III 599.075 5.990

The proposed areas of the Borivli National Park to

4. The pleadings proceed to refer to a letter dated 10 th October

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