Ataur Rahman Khan S/O Zulfiquar Khan And Others v. The State Of Maha., Through Principal Secretary, Urban Development, Govt. Of Maha. Mumbai And Other

mca1059.16.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR Misc. Civil Application No.1059/2016 (For Review) in Writ Petition No.5056/2016 (D) Ataur Rehman Khan s/o Zulfiquar Khan & ors vs. The State of Maharashtra thr. Principal Secretary, Urban Development Department, Mantralaya, Mumbai & ors. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. M. V. Samarth, Advocate for applicants-petitioners. Mrs.Bharti Dangre, G..P for non applicant-respondent nos.1 and 2. Mr. J. B. Kasat, Advocate for non applicant-Municipal Corporation. CORAM : B. R. GAVAI & V. M. DESHPANDE, JJ.

DATE : OCTOBER 27, 2016 Heard.

The learned counsel for the applicants-petitioners has moved this Court for review of the order on the following grounds:

(i) In paragraph 8 of the order in the fourth line, year "1972" has been erroneously mentioned and it ought to have been "1792".

(ii) In paragraph nos.30-C to 30-G, though a specific argument was advanced on behalf of the petitioners that regulation no.3.1 of the Heritage Regulations requires a notification for deletion, the said arguments and it has not been considered by this Court.

Insofar as the first ground is concerned, we find that there is a typographical mistake. It appears that the stenographer has interchanged "7" and "9". In that view of the matter, the prayer insofar as changing of the year "1972" to "1792", is allowed.

mca1059.16.odt Insofar as the second ground is concerned, on the basis of the factual material placed before us, we have come to the conclusion that it is only the Tomb (Samadhi) and Gujargate, which are having the status of heritage structure. We have also come to a considered conclusion that rest of the building including the shops, etc. do not enjoy the heritage status. In view of this factual finding, since no structure which, in our view enjoys the heritage status, is being affected by the proposed expansion, there was no occasion to consider the legal submissions as advanced by the learned counsel for the applicants-petitioners. It is the settled position of law that the Court should avoid in going into the academic questions unless the facts warrant so.

In that view of the matter, the review application, insofar as the second ground is concerned, in our considered opinion, is without any substance. Hence, except what is allowed herein, rest of the review application stands rejected. No order as to costs.

JUDGE JUDGE kahale