Case Note & Summary
The case involves a writ petition filed by residents of Tarangan Housing Complex, Thane, challenging a regularisation order dated 05 February 2005 issued by the Commissioner of Thane Municipal Corporation (TMC). The order regularised an unauthorised construction built by the third respondent, a builder/developer, on a public Nallah/drain. The petitioners argued that the construction was patently illegal, obstructed the water course, and was made to divert attention from the fact that the third respondent had blocked the existing access to the housing complex. The TMC had earlier filed a reply before the Civil Court opposing the construction, but later the Commissioner regularised it. The petitioners contended that the regularisation was arbitrary, ultra vires the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act), the Maharashtra Municipal Corporations Act, 1949 (MMC Act), and the Development Control Regulations of TMC (DCR of TMC). They argued that the Commissioner had no power to regularise such construction and that the reliance on Section 45 of MRTP Act, Section 227 of MMC Act, and Regulation 47 of DCR of TMC was misplaced. The TMC defended the order, submitting that the power to regularise exists under Section 53(3) of MRTP Act and Section 227(1)(b) of MMC Act, and that the construction provided access to the housing complex. The third respondent argued that the construction was permitted in the initial plans and that the Commissioner had ample powers to regularise. The court, after hearing the parties, found that the regularisation order was patently arbitrary and ultra vires. The court noted that the construction was on a public drain, obstructed the water course, and was not for genuine access. The Commissioner's exercise of power was based on legal malafides, as the TMC had earlier opposed the construction. The court held that the provisions relied upon were not attracted to the facts of the case. The court quashed the regularisation order and directed the TMC to take appropriate action to remove the unauthorised construction and restore the Nallah/drain to its original condition.
Headnote
A) Municipal Law - Regularisation of Unauthorised Construction - Ultra Vires - The Commissioner of Thane Municipal Corporation regularised a construction built on a public Nallah/drain by the third respondent builder/developer. The court held that the regularisation order was patently arbitrary and ultra vires the provisions of the Maharashtra Regional and Town Planning Act, 1966, Maharashtra Municipal Corporations Act, 1949, and Development Control Regulations of Thane Municipal Corporation. The construction obstructed the water course and was not for genuine access. (Paras 2-9, 18-20) B) Municipal Law - Legal Malafides - Abuse of Power - The court found that the Commissioner's order was based on legal malafides, as the TMC had earlier filed a reply before the Civil Court opposing the construction, but later regularised it. The Commissioner relied on provisions not attracted to the facts, such as Section 45 of MRTP Act and Section 227 of MMC Act, to regularise the unauthorised structure. (Paras 6-7, 18-20) C) Town Planning - Regularisation under Section 53(3) MRTP Act - Not Applicable - The court noted that the power under Section 53(3) of MRTP Act cannot be used to regularise a construction that is patently illegal and on public property. The regularisation order was based on a misconception of law. (Paras 10, 15, 18-20) D) Municipal Law - Access over Street - Section 227 MMC Act - Misapplication - The Commissioner's reliance on Section 227(1)(b) of MMC Act to regularise a connecting passage over a street was misplaced, as the construction was on a Nallah/drain, not a street, and obstructed the water course. (Paras 11, 18-20) E) Development Control - Regulation 47 DCR of TMC - Landlocked Plot - The court held that Regulation 47 of DCR of TMC, which deals with access to landlocked plots, was not applicable as the subject plot was not landlocked. The third respondent had blocked existing access and then sought regularisation. (Paras 8, 12, 18-20)
Issue of Consideration
Whether the Commissioner of Thane Municipal Corporation had the power to regularise a patently unauthorised construction built on a public Nallah/drain, and whether the impugned regularisation order dated 05 February 2005 was arbitrary and ultra vires the provisions of the MRTP Act, MMC Act, and DCR of TMC.
Final Decision
The court allowed the writ petition and quashed the impugned regularisation order dated 05 February 2005. The court directed the Thane Municipal Corporation to take appropriate action to remove the unauthorised construction and restore the Nallah/drain to its original condition.
Law Points
- Regularisation of unauthorised construction on public drain is ultra vires MRTP Act and MMC Act
- Legal malafides vitiate administrative orders
- Power under Section 45 MRTP Act cannot be used to regularise construction on municipal property
- Section 227 MMC Act does not permit regularisation of construction obstructing water course
- Regulation 47 DCR of TMC not applicable when plot not landlocked
