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2024 Supreme(Online)(Bom) 7963
HIGH COURT OF BOMBAY
HON'BLE SHRI JUSTICE M.S. SONAKHON'BLE JUSTICE KAMAL KHATA
M/S. TARANGAN TOWERS CHS LTD THROUGH SECRETARY – Appellant
Versus
MR. NATVAR T. PATEL AND ORS – Respondent
CAW/751/2014
Digitally signed LAXMIKANT GOPAL GOPAL CHANDAN CHANDAN Date:
2024.10.07
16:58:53 +0530 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3351 OF 2005
1. MR. NATVAR T. PATEL, age 54 years
2. MRS. MEENA AHUJA, age 57 years
3. MR. VISHWAS GOPAL NAWARE, 52 years
4. MR. RAJENDRA S. SAWALE, 42 years
5. MR. SANJEEV ISHWARI KHANDELWAL, 40 years
6. MRS. NEETA SHETTY, 29 years
7. MR. S. K. SUNDERAM, 47 years
8. MRS. MADHULIKA ROONGTA, 47 years
9. MR. VINAY P. JHUNJUNWALA, 50 years
20.
MRS. SUNITA SULTANIA, 36 years All above adults, R/o. Tarangan Complex Off Eastern Express Highway, Behind Cadburys Factory …PETITIONERS Thane (W) 400 606.
~ versus ~
1. THE STATE OF MAHARASHTRA
2. THE COMMISSIONER, Thane Municipal Corporation, Thane.
3. M/S. KALPATRU PROPERTIES (THANE)
PVT. LTD., Having their office at Siddhachal, Vasant Vihar, Pokhran Road No. 2, Thane (W)
…RESPONDENTS WITH CIVIL APPLICATION NO. 751 OF 2014 IN WRIT PETITION NO. 3351 OF 2005 MR. NATVAR T. PATEL, and others … PETITIONERS ~ versus ~
THE STATE OF MAHARASHTRA and others …RESPONDENTS AND M/S. TARANGAN TOWERS CHS LTD., …APPLICANT/ Through its Secretary INTERVENOR APPEARANCES FOR THE PETITIONERS Mr Amol P. Mhatre.
FOR THE APPLICANT IN Mr Yash Dewal.
CAW/751/2014 FOR RESPONDENT NO.1- Ms Rupali Shinde, AGP.
STATE Dr Milind Sathe, Senior Advocate, FOR RESPONDENT NO.2-TMC i/by Mr Mandar Limaye.
Mr Girish Godbole, Senior FOR RESPONDENT NO.3 Advocate, a/w Mr Narayan Sahu, Mr M. S. Federal, Mr Shrinivasan Mudaliar, Mr Dinkar Desai and Ms Hiral Tanna, i/by Federal &
Company.
CORAM : M. S. Sonak &
Kamal Khata, JJ.
RESERVED ON : 27 September 2024 PRONOUNCED ON : 07 October 2024 JUDGMENT ( P er 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
