Lilabai Vasantrao Hiray And Ors vs The State Of Maharashtra Thr. Secretary Urban Development And Public Health Dept. And Ors

sns 7-aswp-2732-2023-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2732 OF 2023
1. Lilabai Vasantrao Hiray ]
Age: 61 years, Occ: Household ]
2. Pannalal Vasantrao Hiray ]
Age: 44 years ]
3. Abhijit Vasantrao Hiray ]
Age: 41 years ]
4. Bansilal Vasantrao Hiray ]
Age: 38 years ]
All having address Bungalow No. 10, ]
Shankar Smruti, Jai Ambika Colony, ]
Malegaon Camp, Malegaon, ]
District: Nashik. ] … Petitioners
V/s.
1. The State of Maharashtra ]
Through its secretary, ]
Urban Development and Public. ]
Health Department, ]
Mantralaya, Mumbai- 400 032 . ]
2. The Commissioner., ]
Malegaon Municipal Corporation, ]
Malegaon, Nashik.
3. The Director, ]
Town Planning Department for ]
Malegaon, having office at 5B, ]
Prestige Park, ]
‘B’ Wing, Opp. Bitco College, ]
Matrubhumi Co-operative Society, ]
Near Jagtap Mala, Nashik Road, ]
Nashik- 422 101. ]
Digitally
signed by
SUMEDH
NAMDEO
SONAWANE
Date:
2026.07.01
13:18:16
+0530
SUMEDH
NAMDEO 1/8
SONAWANE

sns 7-aswp-2732-2023-J.doc
4. The Assistant Director, ]
Town Planning Malegaon Municipal ]
Corporation, Malegaon. ]
5. The Collector, Nashik ]
Dist. Nashik. ] … Respondents
______________________________________
Ms. Manisha Devkar for the Petitioners.
Shri. Kedar Dighe, Addl.GP, a/w Ms. Reena A. Salunkhe, AGP for the
Respondent-State.
Mr. S. S. Patwardhan for Respondent No. 2
_____________________________________________
CORAM : A. S. GADKARI AND
KAMAL KHATA, JJ.
rd
RESERVED ON : 23 April, 2026.
th
PRONOUNCED ON : 30 June, 2026.
Judgment (Per : A. S. Gadkari, J) :-
1) Rule. Rule made returnable forthwith. By consent of the
learned counsel for the parties, the Petition is heard finally at the stage of
admission.
2) Heard Ms. Devkar, learned Advocate for the Petitioners, Mr.
Dighe, learned Addl. GP. for Respondent-State and Mr. Patwardhan, learned
Advocate for Respondent No.2. Perused entire record.
3) By this Petition, the Petitioners seek a declaration that, the
Reservation No. 378 designated for a burial ground and affecting their land,
has lapsed under the provisions of Section 127 of the Maharashtra Regional
and Town Planning Act, 1966 (MRTP Act).
2/8

sns 7-aswp-2732-2023-J.doc
Background:
4) The Petitioners are owners of land bearing survey No. 117/4
admeasuring 1 H 93 R and 2 H 46 R and 18 R (Potkharaba) situated at
Village Sangmeshwar, Taluka Malegaon, District Nashik (the subject land).
In the Draft Development Plan prepared by the Planning Authority and
published by Malegaon Municipal Corporation, the subject land was
reserved for a burial ground. The Draft Development Plan was sanctioned
th
on 15 September, 2006. Despite the passage of more than 15 years, the
Respondents failed to acquire the subject land. According to the Petitioners,
the reservation stood lapsed on account of the Respondents’ failure to
acquire the subject land within the statutory period.
5) The Petitioners served a Purchase Notice on the Malegaon
th
Municipal Corporation on 19 November, 2018 by hand delivery. The copy
of the said notice was also forwarded to Respondent Nos.2 and 3 by
nd
registered post on 22 November, 2018. A second Purchase Notice was
th
issued on 5 December, 2018 since the Respondents failed to respond to the
first Notice.
th
6) By their letter dated 11 December, 2018, the Deputy
Commissioner, Malegaon Municipal Corporation, called upon the
Petitioners’ Advocate to produce the documents of ownership over the
subject property including the 7/12 extracts and measurement map of the
land record.
3/8

sns 7-aswp-2732-2023-J.doc
th
7) By a letter dated 20 December, 2018, the Petitioners father
enclosed the 7/12 extract, the map of the town planning, the measurement
map of the land Authority, to the Malegaon Municipal Corporation by hand
delivery. The same was acknowledged by the said Corporation.
8) The statutory period of 24 months prescribed under Section
127 of the MRTP Act, reckoned from the date of service of the Purchase
th
Notice, expired on 19 November, 2020.
9) Ms. Manisha Devkar, learned Advocate for the Petitioners
submitted that, despite the service of the Statutory Purchase Notice, the
Respondents failed to acquire the lands or take requisite steps for its
acquisition under Section 126 and 127 of the MRTP Act, read with the
provisions of Section 19 of Fair Compensation Act, 2013 (the 2013 Act).
She submitted that, the Malegaon Municipal Corporation has also failed to
issue a declaration recording the lapsing of reservation of said property.
She, therefore, prayed that the Petition be made absolute.
10) In their defense, Mr. Dighe, Addl. G.P. for the State and
Mr. Patwardhan for the Commissioner, Malegaon Municipal Corporation,
th
relied upon the Affidavits dated 16 January, 2025 of Mr. Nitin Sadgir,
th
Divisional Officer, Malegaon and 28 November, 2024 of Mr. Shantaram
Chaure, the Town Planner-II of Respondent No.2 respectively.
th
10.1) The Affidavit dated 28 November, 2024 of Mr. Shantaram
Chaure acknowledges receipt of the second Purchase Notice issued by the
4/8

sns 7-aswp-2732-2023-J.doc
th
Petitioners on 5 December, 2018 and sets out, in a tabular form, the steps
purportedly taken by the Planning Authority. Mr. Patwardhan also emphasis
on the press note issued by the Respondent No.2 cautioning the prospective
purchasers against the purchase of portions of subject land it being under
reservation.
th
10.2) The Affidavit dated 16 January, 2025 filed by the Collector,
Nashik District, similarly sets out the steps purportedly taken by the State
Authorities. Relying upon the said Affidavit, Mr. Dighe submitted that the
period during which the authorities were unable to take the requisite steps
on account of the COVID - 19 pandemic ought to be excluded while
computing the statutory period.
10.3) He further submitted that, the subject land was measured by
th
the office of the District Inspector of Land Records, Malegaon, on 18 April,
2024. As certain defects and discrepancies were noticed in the
th th
measurement, letters dated 6 May, 2024 and 18 December, 2024 were
addressed to the Corporation, directing it to obtain a revised measurement
through the competent authority. According to him, in the absence of a
revised joint measurement of the subject land, the acquisition proceedings
could not be taken forward. He also drew our attention to the assurance
given in the Affidavit that the Petitioner would be appropriately
compensated for the acquired land upon completion of the measurement
process.
5/8

sns 7-aswp-2732-2023-J.doc
Reasons and Conclusion:
11) It is abundantly clear to us that, the State and the concerned
Authorities are either blissfully unaware of the settled legal position or have
deliberately chosen to disregard it. As a result, landowners are compelled to
approach the Court for enforcement of their statutory rights.
12) The Division Benches of this Court in Ramakant Vasudeo Pai
vs. State of Maharashtra & Ors. reported in 2021 (3) Mh.L.J. 204 and
subsequently in Trilok Singh Pahlajsingh Rajpal & Anr. v MCGM and Ors.
reported in 2022 SCC OnLine Bom 2347 after considering the relevant
precedents, have held that, the steps towards acquisition can be said to
have commenced only when the State Government accepts the proposal for
acquisition and, pursuant thereto, publishes a declaration under Section 6
of the Land Acquisition Act, 1894 or Section 19 of the 2013 Act.
13) Thus, it is only the publication of a declaration under Section 6
of the 1894 Act or Section 19 of the 2013 Act that constitutes
commencement of acquisition proceedings for the purposes of the MRTP
Act. Such proceedings culminate in the making of an Award under Section
126(3) of the MRTP Act. Unless such a declaration is issued, it cannot be
said that the requisite steps for acquisition have commenced.
14) Evidently, neither of the two Affidavits discloses that any
declaration under Section 19 of the 2013 Act was issued or that any legally
cognizable step towards acquisition was taken by the Malegaon Municipal
6/8

sns 7-aswp-2732-2023-J.doc
Corporation or State Government within the prescribed period, even after
excluding the Covid – 19 period, as contended by the Respondents.
15) In Girnar Traders vs. State of Maharashtra reported in (2011) 3
SCC 1, the Supreme Court observed that, the legislative object underlying
Sections 126 and 127 of the MRTP is to ensure the expeditious acquisition
of the land reserved under the town planning plan. Section 127 grants the
authorities not only an initial period of ten years but also a further period of
24 months (2 years), after service of a Purchase Notice, either to acquire
the land or to take legally recognized steps towards its acquisition. Mere
administrative steps that may eventually lead to acquisition are insufficient.
16) Lands cannot lie locked under reservation indefinitely. The
underlying principle is that the land must, in a given time, be utilized for
the purpose for which it is reserved in the plan, or, if not done, the owner
must be allowed to utilize the land as permissible under the town planning
law.
17) The failure of the Authorities to take steps which result in the
actual commencement of the acquisition of the land cannot be permitted to
defeat the purpose and object of the scheme of acquisition under the MRTP
Act by merely moving an application requesting the Government to acquire
the land, which the Government may or may not accept. Unless steps
resulting in the actual commencement of acquisition proceedings are taken
within the statutory period, the consequences prescribed under Section 127
7/8

sns 7-aswp-2732-2023-J.doc
must necessarily follow. No legally recognized steps towards acquisition
were taken in the present case.
18) In view of the above and the settled principles of law, the
Petition is allowed in terms of prayer clause (b) which reads as under:
“(b) That on perusal of the same and on further
hearing to the Petitioners, this Court be kindly
pleased to issue appropriate Writ or Order and
thereby be kindly pleased to declare that the
Reservation No.378 as provided in the
development plan sanctioned on 15/09/2006 in
respect of subject matter property i.e. a land
admeasuring of 1 H and 93 R and 00-18 R
Potkharaba out of the Survey No.117/4 situated at
village Sangameshwar, Taluka Malegaon, District
Nashik belonging to the Petitioners has lapsed as
per the provisions of Section 127 of the
Maharashtra Regional Town Planning Act, 1966
and the said subject matter property has become
free from reservation.”
19) The Respondent No.1 is directed to notify the lapsing of
reservation within a period of two months from the date of this Judgment.
(KAMAL KHATA, J.) (A.S. GADKARI, J.)
8/8