The Bombay High Court criticized the Thane Municipal Corporation (TMC) for regularizing an unauthorized construction by a private builder, M/s Kalpataru Properties, on a public Nallah (drain). The Court found the regularization illegal, arbitrary, and in violation of various statutes like the Maharashtra Regional and Town Planning Act (MRTP) and the Maharashtra Municipal Corporation (MMC) Act. The Court set aside the order, noting that such actions compromise public amenities and serve private interests. The Court underscored the importance of upholding town planning regulations to prevent misuse by powerful developers.

Acts and Sections Discussed:

1. Maharashtra Regional and Town Planning Act, 1966 (MRTP Act)

   • Section 53(3): Discussed for regularization powers and whether they could be invoked for unauthorized constructions.

2. Maharashtra Municipal Corporation Act, 1949 (MMC Act)

   • Section 227: Refers to permissions for projections over streets or passages, which was misapplied by the TMC for granting regularization.

3. Development Control Regulations (DCR) of Thane Municipal Corporation

   • Regulation 47(7): Referenced concerning land-locked plots, which was misapplied by the TMC.

Ratio (Legal Reasoning):

The Thane Municipal Corporation’s decision to regularize the illegal construction was an arbitrary use of power. The primary ratio is that municipal authorities must act as trustees of public properties and amenities, ensuring they serve public interest, not private gains. The Court emphasized that regularization of illegal constructions cannot be permitted, especially when it obstructs public utilities like drains or Nallahs, and violates established laws. It also rejected the misuse of Section 227 of the MMC Act and Regulation 47 of the DCR, stating that these provisions did not apply to the present case, as the plot in question was not landlocked.

• Introduction (Para 1-2)

  • Context: The petitioners, residents of the Tarangan Housing Complex, filed a writ petition challenging the regularization of an unauthorized construction by the third respondent (builder) over a public Nallah.
  • Issue Raised: Unauthorized construction obstructing public access and drainage.

• Grounds of Challenge (Para 3-7)

  • Argument by Petitioners: The regularization order was illegal, arbitrary, and violated the MRTP Act, MMC Act, and DCR. The builder's construction blocked the residents' existing access to the housing complex.

• Defense by TMC (Para 8-13)

  • Defense of Regularization: TMC argued that the builder could apply for regularization under Section 53(3) of the MRTP Act and that the construction was necessary for providing access to the housing complex.

• Court’s Observations on Unauthorized Construction (Para 24-29)

  • Illegal Construction: The Court found that the construction over the Nallah was unauthorized, with the builder defying stop-work orders issued by the TMC.

• Misapplication of Law (Para 40-50)

  • Misuse of Sections: The TMC’s reliance on Section 227 of the MMC Act and Regulation 47(7) of the DCR was found to be baseless, as these provisions were not applicable to the facts of the case.

• Decision (Para 53-56)

  • Court’s Final Ruling: The regularization was struck down, and the Court criticized the TMC for abusing its power to favor a private builder at the cost of public interest.

Subjects:

Unauthorized Construction, Public Drainage Obstruction, Municipal Law, Builder Regulation

Regularization, Municipal Corporation, Builders, Town Planning, Public Drain, High Court Judgment