Municipal Corporation Must Exercise Substantial Powers In Public Interest; It Can Never Be Exercised To Benefit Builders & Developers: Bombay HC

The Bombay High Court observed that the Municipal Corporation must exercise its substantial powers in the interest of public and such powers can never be exercised to benefit the builders and developers.

The Court observed thus in a writ petition filed by the residents of Tarangan Housing Complex, Thane, challenging the regularisation order of the Executive Engineer, Sewerage and Drainage Department, Thane Municipal Corporation (TMC).

A Division Bench comprising Justice M.S. Sonak and Justice Kamal Khata said, “The Municipal Commissioner may have been given substantial powers under the MMC Act of 1949. However, the Municipal Corporation and its Commissioner are trustees of the power and property they wield and, therefore, have to exercise such powers in the interest of the corporation and the members of the public, which the corporation is duty-bound to serve. Such powers can never be exercised to benefit the builders and developers at the cost of public amenities like Nalas and drains being choked or otherwise encroached upon. That would amount to abuse of such powers.”

Advocates Amol P. Mhatre and Yash Dewal represented the petitioners while AGP Rupali Shinde, Senior Advocates Milind Sathe, and Girish Godbole represented the respondents.

Factual Background -

As per the petition, the Commissioner of TMC helped the respondent builder/developer and a mall owner by way of regularising a patently unauthorised construction put up on a public Nallah/drain. The petitioners being the residents, challenged the regularisation order communicated by the Executive Engineer in 2005. One of the grounds raised in the 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 was stated that the Commissioner of TMC ordered the regularisation, and the Executive Engineer has only communicated the decision of the Commissioner of TMC.

The 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.

The High Court in the above context of the case, noted, “… based upon Regulation 47(7), the impugned regularisation order cannot be sustained. It is, in fact, an admitted fact that the subject plot abuts a service road followed by a Highway or an Expressway. Therefore, the subject plot is not land-locked. Still, invoking Regulation 47(7) by the TMC or its Commissioner is quite unfortunate and discloses a complete non-application of mind. Therefore, upon due consideration of Dr Sathe’s submissions and those contained in TMC’s affidavit, we regret our inability to appreciate or accept them.”

The Court added that, none of the contentions or submissions can sustain the impugned regularisation order or even impart it a modicum of respectability.

“The Municipal Commissioner has, in fact, acted contrary to the law laid down by the Hon’ble Supreme Court on the subject of regularisation of patently unauthorised and illegal constructions put up with impunity by professional builders and developers. Dr Sathe submitted that builders/developers, when served with a notice for demolition of an unauthorised structure, have the right to seek regularisation. He seems to suggest that this is some unqualified right that a builder/developer undertaking an unauthorised construction has under the Scheme of Section 53 of the MRTP Act”, it further noted.

The Court said that this is a case where, despite stop work orders from the TMC, the respondent, with impunity, proceeded with the illegal and unauthorised construction over the municipal Nallah and also into the municipal Nallah. It also observed that besides, the TMC, after filing a solemn affidavit and pleadings before the Civil Court containing the high-handed unauthorised construction carried out by the respondent, has proceeded to regularise such unauthorised construction.

“The attempt to justify the impugned regularisation order by reference to the provision of Section 227 of the MMC Act, 1949 or Regulation 47(7) of DCR of TMCM was also deplorable and virtually amounts to misleading all concerned. The TMC, in this case, tried to make out a false case, which even the third Respondent – builder/developer found difficult and embarrassing to endorse”, it concluded.

Accordingly, the High Court allowed the petition, struck down the impugned regularisation, and directed the TMC and respondent to pay the petitioners Rs. 1 lakh each within four weeks.

Cause Title- Natvar T. Patel & Ors. v. The State of Maharashtra & Ors. (Neutral Citation: 2024:BHC-AS:39466-DB)

Appearance:

Petitioners: Advocates Amol P. Mhatre and Yash Dewal.

Respondents: AGP Rupali Shinde, Senior Advocates Milind Sathe, Girish Godbole, Advocates Mandar Limaye, Narayan Sahu, M.S. Federal, Shrinivasan Mudaliar, Dinkar Desai, and Hiral Tanna.

Click here to read/download the Judgment