The court ruled that the regularisation of unauthorised construction obstructing a public drain was arbitrary and ultra vires, emphasizing the need for adherence to planning laws and public interest.

JUDGMENT :

M.S. SONAK, J.

1. Heard learned counsel for the parties.

2. This Petition shows the extent to which the Commissioner of Thane Municipal Corporation (“TMC”) has gone to help the third Respondent, a builder/developer and a mall owner by way of regularising a patently unauthorised construction put up by the third Respondent on a public Nallah/drain. The Petitioners, who are some of the residents in Tarangan Housing Complex, Thane, constructed by the third Respondent, have challenged the regularisation order dated 05 February 2005 communicated by the Executive Engineer, Sewerage and Drainage Department, TMC, by instituting this Petition.

3. One of the grounds raised in this Petition was that the Executive Engineer of TMC has no power or authority to regularise. However, in the affidavit filed on behalf of TMC, it is stated that the Commissioner of TMC ordered the regularisation and the Executive Engineer has only communicated the decision of the Commissioner of TMC. Accordingly, the grounds for the Executing Engineer’s lack of authority were not seriously pressed before us on behalf of the Petitioners.

4. Mr. Mhatre, the learned counsel for the Petitioners, submitted that the impugned regularization order is patently arbitrary and ultra vires the provisions of the Maharashtra Regional and Town Planning Act, 1966 (“MRTP Act”), Maharashtra Municipal Corporations Act, 1949 (“MMC Act”) and the Development Control Regulations of Thane Municipal Corporation (“D.C.R. of TMC”), as applicable. He submitted that legal malafides vitiate the impugned order.

5. Mr. Mhatre submitted that the impugned order is based on the premise that the regularisation is to provide access to the Tarangan Housing Complex. He submitted that this complex always had direct and substantial access until the third Respondent blocked it by constructing a mall and a multiplex theatre. The unauthorised construction was only to divert the focus from the third Respondent, who blocked the existing access. He submitted that for this purpose, the municipal/public property had been constructed upon unauthorisedly and by defying the stop work order issued by the TMC.

6. Mr. Mhatre submitted that the TMC had filed a solid reply before the Civil Court pointing out the high-handed action of the third Respondent and how the patently unauthorised construction was made on a municipal Nallah/drain. The Reply also highlighted how the construction was made within the Nallah, thereby obstructing the water course. However, by ignoring its statements on the affidavit, the Commissioner of TMC has proceeded to regularise this patently unauthorised construction by relying on the provisions that were not even remotely attracted to the facts and circumstances of the present case.

7. Mr. Mhatre submitted that the Commissioner’s purported exercise of powers under Section 45 of the MRTP Act, read with Section 227 of the MMC Act, was misconceived. Under these provisions, the impugned regularisation order would never have been made. He submitted that this is a case of abuse of powers and legal malafides.

8. Mr. Mhatre submitted that the reliance placed in the TMC’s affidavit on Regulation 47(7) of the DCR of TMC was also misplaced. He submitted that it was not even the case of the third Respondent-builder/developer that the subject plot was landlocked. There is ample material on record demonstrating that the subject plot was not land-locked. He submitted that the third Respondent could not block the existing access, projected some difficulties for access based upon such unauthorised blockage, put up a patently unauthorised construction, and then sought regularisation. In any event, the TMC Commissioner cannot abuse his powers and grant regularisation by invoking the provisions that were not even remotely attracted to the present case.

9. Mr. Mhatre relied upon several decisions in support of his submissions. Upon his submissions and decisions, Mr. Mhatre submitted that the impugned regularisation