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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.3546 OF 2006

Mrs.Jayashree D. Vaishnav & Anr. ....Petitioners

V/s.

Thane Municipal Corporation .

through its Commissioner ....Respondent

Mr.P.M.

Pradhan

for

the

Petitioners.

Mr.R.S. Apte for the Respondent.

CORAM : R.M. SAVANT, J.

DATED : 21ST MARCH, 2007.

P.C. :

1.

This Petition is filed under Article 227 of

the Constitution of India challenging the order dated

15.11.2005 passed in Misc. Civil Appeal No.73 of 2005

filed by the original Respondent No.1.

2.

The Petitioners herein are running a hotel in

the name and style of ‘Hotel Nisarga’ in Gala Nos.34

to 38 of Vedant Shopping Complex, Vartak Nagar, Thane.

The Respondent is the planning authority, so far as

city of Thane is concerned. The Respondent issued a

notice under Section 253 of the Bombay Provincial

Municipal Corporations Act, 1949 on 22.2.2004 to the

Petitioners in respect of a weather shed constructed

by the Petitioners adjoining the shop premises and

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covering the open passage abutting the premises

wherein the Petitioners are carrying on their

business.

3.

Aggrieved by the said notice, the Petitioners

filed R.C.S. No.335 of 2004, claiming permanent

injunction against the Respondent from taking action

in respect of the said weather shed. The Petitioners

also made an application for temporary injunction

being Exhibit 5 in the said suit which application was

allowed by the trial Court vide its order dated

24.6.2005. By the said order, the trial Court

restrained the Respondent from demolishing the weather

shed constructed by the Petitioners. Being aggrieved

by the said order of the trial Court granting

temporary injunction, the Respondent herein filed an

Appeal being R.C.A. No.73 of 2005. The said Appeal

came to be allowed by the Appellate Court vide its

order dated 15.11.2005 and the order of the trial

Court granting temporary injunction was substituted by

the Appellate Court by issuing the following

directions :-

"3.

Instead in place of the said order,

following temporary relief is granted.

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a)

pending hearing and final disposal of

the suit the plaintiffs given liberty to

submit reply to notice dated 14.6.2004 issued

under section 260 of B.P.M.C. Act within 15

days from today. If the reply is submitted

within the prescribed period, the defendant

shall consider the same and intimate its

decision with brief reasons to the plaintiff.

The defendant will be at liberty to consider

the proposal submitted by the plaintiffs for

regularization of whether shade and

communicate its decision thereof to the

plaintiffs.

b)

For a period of

15 days from

communication of either the decision on

reply, if any, submitted by the plaintiffs to

notice under section 260 of B.P.M.C. Act or

from the date of decision of plaintiffs

proposal for regularization of whether shade,

whichever is earlier, the offending weather

shade will not be demolished.

4.

This time is given to the plaintiff to

take out further proceedings, if they so

desire.

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4.

In terms of the directions contained in the

said order dated 15.11.2005, the Deputy Municipal

Commissioner heard the Petitioners and passed an order

dated 8.5.2006. By the said order, the Deputy

Municipal Commissioner has confirmed the notice issued

to the Petitioners in respect of the weather shed and

has also rejected the application of the Petitioners

for regularization. The Deputy Municipal Commissioner

has observed in the said order that the Petitioners

have no right to encroach upon the area whic