Magdum Bibi Wagf Through Its Sole ... vs The State Of Maharashtra Through ...
2021 Latest Caselaw 11813 Bom

                                                     16-WP-4626-2021.doc




        IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                 CIVIL APPELLATE JURISDICTION

                WRIT PETITION NO.4626 OF 2021

MAGDUM BIBI WAQF                                )...PETITIONER

        V/s.

THE STATE OF MAHARASHTRA AND ANR.               )...RESPONDENTS

Mr.Sharique Nachan with Mr.Azeem Shaikh i/b. Judicare Law Associates, Advocate for the Petitioner.

Mr.Jagdish Aradwad (Reddy), Advocate for Respondent No.2.

Mr.K.S.Thorat, AGP for the Respondent-State.

                            CORAM : A. A. SAYED &
                                    S. G. DIGE, JJ

                            DATED :     25th AUGUST, 2021


P.C.:



1       Learned Counsel for the Petitioner has tendered draft

amendment. The amendment is allowed. Amendment be carried out within the course of the day. The learned Counsel for the Petitioner states that he is only pressing Prayer Clause (A-1) of the amended Petition which reads as follows :

AVK 1/3 16-WP-4626-2021.doc

"(A-1) This Hon'ble Court be pleased to issue a writ of Mandamus or any other writ in the nature of Mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India directing the Respondents to comply with their statutory obligation Under Section 88 to 90 of MRTP Act and handover final plot no. 280 and 280/1 admeasuring 8428 sq.meters situated at Panvel City, Tal:- Panvel, Dist:- Panvel free from any encumbrances to the Petitioner in lieu of the Original Plot of land owned by the Petitioner admeasuring 12291 sq. meters by initiating appropriate proceeding in accordance with law."

2 Learned Counsel for the Petitioner has invited our attention to the judgment of the Division Bench of this Court in Shri Shridhar Gangadhar Lonari vs. The Nasik Municipal Corporation and Others1 and in particular paragraph 9 which reads as follows :

"9 We have given careful consideration to the submissions. In view of clause (b) of Section 88 of the MRTP Act, final plot no.103 vests in the original petitioner. On this aspect, there is no dispute between the parties. In case of Municipal Corporation of Greater 1 2017 SCC Online Bom 9214

AVK 2/3 16-WP-4626-2021.doc

Bombay v. The Advance Builders India Pvt. Ltd. ( supra), the Apex Court had an occasion to consider the provisions of Section 53 of the Bombay Town Planning Act, 1954 which are pari materia with section 88 which contained clauses (a) and (b) which have been virtually reproduced in clauses (a) and (b) Section 88. However, the Apex Court has interpreted clauses (a) and (b) Section 53 of the old Act which are now forming a part in Section 88 and held that it is the statutory obligation of the Planning Authority to remove all the encroachments on the final plot and give the vacant possession thereof to the allottee. In fact, section 89 of the MRTP Act empowers the Planning Authority to pass orders of summary eviction. Under Section 90 of the MRTP Act, various powers have been conferred on the Planning Authority to implement the provisions of the said scheme. The power include the power to pull down the structures in the area included in the said scheme."

3 Let the Respondent/Corporation filed Affidavit-in-Reply before the next date. List the Petition on 8th September 2021.

                           (S. G. DIGE, J.)                     (A. A. SAYED, J.)



                     AVK                                                                3/3
        Digitally
        signed by
        ARTI
ARTI    VILAS
VILAS   KHATATE
KHATATE Date:
        2021.08.26
        13:13:45
        +0530