Bombay High Court
Takshashila Hotels Pvt. Ltd. vs The Municipal Corporation Of The City Of ... on 20 September, 2025
2025:BHC-AS:39596
905-WP-4179-2011.docx
rrpillai IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4179 OF 2011
Takshashila Hotels Pvt. Ltd. ... Petitioners
Vs.
The Municipal Corporation of the ... Respondent
City of Pune
Mr. Pradeep Thorat a/w. Mr. S. Shamim, Mr. Murtuza
Slatewala and Mr. Sharif Lakdawala i/b. M/s. S.Shamim and
Co. for the Petitioners.
Digitally
signed by
Mr. Abhijit P. Kulkarni a/w. Ms.Sweta Shah, Mr. Gaurav
RAJESHWARI
RAJESHWARI RAMESH
RAMESH PILLAI
PILLAI Date:
2025.09.20
07:29:27
+0200
Sahane and Mr. Abhishek Roy for the Respondent-PMC.
CORAM : GAURI GODSE, J.
DATE : 20th SEPTEMBER 2025
ORDER :
1. This petition is filed by the plaintiff to challenge the
dismissal of his application for interim protection during the
pendency of the suit. The suit is filed to challenge the notice
dated 15th September 2009 issued by the respondent-
corporation under Section 478(1) of the Maharashtra
Municipal Corporation Act, 1949 (" The 1949 Act") and Notice
dated 15th September 2009 issued under Section 53(1) of the
Maharashtra Regional and Town Planning Act, 1966 ("MRTP
905-WP-4179-2011.docx
Act").
2. Learned counsel for the petitioner makes a grievance
that without issuing any show cause notice the action under
Section 478(1) of the 1949 Act has been initiated which is
contrary to the well settled legal principles in the decision of
our court in the case of Shri Sopan Maruti Thopte and
Another vs. Pune Municipal Corporation and Another 1. He
further points out that on earlier occasion also a similar
notice was issued which was challenged in Regular Civil Suit
No. 1404 of 1995. The trial court had partly decreed the suit
directing the petitioner to remove water tank from rear side to
the terrace or to the southern side margin within three
months and further directed the petitioner to use parking area
only for parking. By the said decree the notice issued by the
Corporation under Section 478 (1) of the 1949 Act was
declared as null and void. This decree was challenged by the
petitioner in Civil Appeal No. 71 of 1998. The first appellate
court by judgment and decree dated 21 st August 2001
allowed the appeal and set aside the directions for demolition
granted by the trial court in clause (2) of the impugned
decree.
1 1996(2) ALL MR 383
905-WP-4179-2011.docx
3. Learned counsel for the petitioner submits that the
corporation has again issued the notice, making similar
allegations. He therefore submits that the petitioner would be
entitled to interim relief during the pendency of the suit. He
submits that this court vide order dated 13 th July 2011 had
issued notice for final disposal of the petition and further
restrained the corporation from demolishing the construction
referred to in the suit notice. He points out that this court vide
order dated 13th July 2011 had clarified that the protection
granted by this court would not prevent the corporation from
issuing show cause notice as contemplated in the decision of
this court in the case of Sopan Maruti Thopte.
4. This petition arises out of Regular Civil Suit No. 1408 of
2009. The petition is pending since 2011. Hence a query was
made to the learned counsels for the parties as to whether
the suit is still pending. In response to this query learned
counsel for the petitioner has tendered copy of a recent print
out of the case status of the suit. The suit is renumbered as
Regular Civil Suit No. 201408 of 2009. The stage of the
case is shown as stayed by the High Court. Print out of the
case status is taken on record and marked "X" with today's
905-WP-4179-2011.docx
date for identification.
5. I have perused the record of this petition. On 13 th July
2011, this court granted a temporary injunction restraining
the corporation from demolishing the construction referred to
in the impugned notice till 27 th July 2011. Thereafter, on 24 th
August 2011, the ad-interim order of 13 th July 2011 was
continued till 9th September 2011. On 9th September 2011,
the ad-interim order was continued till further orders. The
office remark dated 9th November 2011 shows that a status
quo writ was issued by the office. Though there was no
status quo order, the office has issued a writ of status quo.
The ad-interim relief granted by this court is an injunction
restraining the corporation from demolishing the structure.
This court has neither passed any order of status quo nor
there is any stay granted to the further proceeding of the suit.
6. By order dated 4th April 2013 Rule was issued in the
petition and interim relief was granted in terms of prayer
clause (c). Prayer clause (c) is for stay to the impugned
orders rejecting the petitioners' application for temporary
injunction.
7. I have carefully perused the papers of this petition and
905-WP-4179-2011.docx
all the order passed. There is no order granting stay to the
further proceedings of the suit. It is shocking that the suit of
2009 has remained pending till 2025 for no reason.
8. Learned Registrar (Judicial I) is therefore requested to
find out as to why the stage of the suit was shown as stayed
by High Court and why the hearing of the suit was not
proceeded. Office is directed to forward copy of this order
alongwith papers of the petition to the Registrar (Judicial I) to
find out the correct status of the suit and why the suit
remained pending.
9. In the compilation filed on behalf of the petitioner, a
notice dated 15th September 2009 issued under Section
53(1) of the Maharashtra Regional and Town Planning Act,
1966 ("MRTP Act") is annexed. A reference to the said notice
under Section 53(1) is made in paragraph 3 of the plaint.
Paragraph 3 says that both the notices i.e. notice under
Section 478(1) of the 1949 Act bearing no. 5324 and notice
dated 15th September 2009 under Section 53(1) of the MRTP
Act is challenged. The notice under Section 53(1) is styled as
'supplement 6' which is attached to the notice under Section
478(1) of the 1949 Act. Notice under Section 53(1) clearly
905-WP-4179-2011.docx
states that within one month of receipt of the notice under
Section 53(1), the notice under Section 478(1) bearing no.
5324 shall be implemented. Thus, there is no manner of
doubt that the notice issued by the corporation is under
Section 53(1) of the MRTP Act and petitioner has challenged
the said notice alongwith notice under Section 478(1) of the
1949 Act.
10. Since the main challenge in the suit is to the notice
under Section 53(1) of the MRTP Act, learned counsel for the
petitioner on instructions submits that the petitioner be
granted time to apply for regularisation. He on instructions
submits that the regularisation application shall be filed within
four weeks.
11. Learned counsel for the corporation submits that if the
regularisation application is filed, the same shall be decided
in accordance with law. However, the petitioner be directed to
file affidavit-cum-undertaking stating that if regularisation
application is not favourably decided, the offending structure
shall be removed.
12. Learned counsel for the petitioner submits that subject
to the remedy to file an appeal, in the event regularisation
905-WP-4179-2011.docx
application is adversely decided, the petitioner shall file an
affidavit-cum-undertaking in this court that the offending
structure shall be remedy, if the decision on the
regularisation application is adverse to the petitioner.
13. In view of the aforesaid submissions nothing survives
for further consideration in the petition as well as the suit.
Hence, learned counsel for the petitioner seeks leave to
withdraw the suit with liberty to file appropriate application for
regularisation in view of the notice under Section 53(1) of the
MRTP Act.
14. In view of the aforesaid facts and circumstance and
the statements made on behalf of both the parties the writ
petition is disposed of by passing the following order :
(i) The petitioner (plaintiff) is permitted to apply for
regularisation in terms of notice dated 15 th September 2009
issued under Section 53(1) of the MRTP Act within four
weeks from today.
(ii) If such an application is filed within four weeks from
today, the corporation shall decide the same in accordance
with law within four weeks thereafter.
905-WP-4179-2011.docx
(iii) The petitioner shall file an affidavit-cum-undertaking in
this court within two weeks from today stating that the
regularisation application shall be filed within four weeks from
today and if the decision is adverse to the petitioner, the
offending structure as per the notice dated 15 th September
2009 under Section 53(1) of the MRTP Act shall be removed
subject to the right to appeal under the MRTP Act. The
undertaking shall further state that the petitioner shall not
carry out any further construction and shall not create any
third party rights.
(iv) Subject to the petitioner filing an undertaking in this
court as directed by this order, the corporation shall not take
any coercive action to implement the impugned notices till
the decision of the notice under Section 53(1) of the MRTP
Act.
(v) If the decision of the corporation is adverse to the
petitioner, the notice shall not be implemented for a period of
four weeks from the date of intimation of the decision to the
petitioner.
(vi) The petitioner is permitted to withdraw Regular Civil
Suit No. 201408 of 2009 with liberty to file regularisation
905-WP-4179-2011.docx
application as permitted by this order.
(vii) It is clarified that if the decision on the notice under
Section 53(1) of the MRTP Act is adverse to the petitioner,
subject to the petitioner's right to appeal under the MRTP Act
and subject to orders passed in the appeal, the petitioner
shall remove the offending structure within four weeks from
the date of communication of the decision by the corporation.
(viii) It is clarified that if the undertaking as directed by this
order is not filed within the time granted, the corporation shall
implement the impugned notices dated 15 th September 2009
in accordance with law.
(ix) The Writ Petition is disposed of in the aforesaid terms.
(x) Copy of his order and papers of the petition be
forwarded to the learned Registrar (Judicial I) for compliance
of the directions issued in paragraph 8 of this order.
Necessary report shall be filed within eight weeks from today.
(xi) List the petition for reporting compliance and further
directions, if necessary on 24th November 2025.
[GAURI GODSE, J.]
