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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
CHANDAN
11. MRS. SHOBHA NARENDRA SHAH, 48 years
12. MR. KISHOR KUMAR PODDAR, 44 years
13. MRS. VIDYA BIPIN KARNIK, 52 years
14. MR. SUSHIL G. DRAUKA, 42 years
15. MR. SUDESH SANJEEVA SHETTY, 46 years
16. MR. SRINIVASAN PADMANABHAN, 48 years
17. MR. MANDAR SHETYE, 30 years
18. MR. JANAK SHAH, 48 years
19. MR. H. MUSALE, 63 years
20. MRS. SUNITA SULTANIA, 36 years
All above adults, R/o. Tarangan Complex
Off Eastern Express Highway, Behind Cadburys Factory
Thane (W) 400 606.
…PETITIONERS
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
IN
WRIT PETITION NO. 3351 OF 2005
MR. NATVAR T. PATEL, and others … PETITIONERS
~
THE STATE OF MAHARASHTRA and others …RESPONDENTS
AND
M/S. TARANGAN TOWERS CHS LTD., Through its Secretary
…APPLICANT/
INTERVENOR
FOR THE PETITIONERS Mr Amol P. Mhatre.
FOR THE APPLICANT IN
CAW/751/2014
Mr Yash Dewal.
FOR RESPONDENT NO.1-
STATE
Ms Rupali Shinde, AGP.
FOR RESPONDENT NO.2-TMC Dr Milind Sathe, Senior Advocate, i/by Mr Mandar Limaye.
FOR RESPONDENT NO.3 Mr Girish Godbole, Senior
Advocate, a/w Mr Narayan
Sahu, Mr M. S. Federal, Mr
Shrinivasan Mudaliar, Mr
Dinkar Desai and Ms Hiral
Tanna, i/by Federal &
Company.
JUDGMENT
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 order dated 05 February 2005 should be struck down.
10. Dr. Milind Sathe, the learned Senior Counsel for the Respondent—TMC—defended the impugned order by submitting that parties who make unauthorised constructions can always apply for regularization under Section 53(3) of the MRTP Act. He submitted that such a power is to be exercised having regard to the provisions of Sections 44, 45, and 53 of the MRTP Act.
11. Dr. Sathe submitted that the impugned regularisation order is made having regard to the provisions of Section 227(1)(b) of the MMC Act. He submitted that since the subject plot was abutting on the street, the Commissioner has regularised the connecting passage from the plot over or across any street or portion thereof. He submitted that the Commissioner has acted intra-vires, and there is no illegality in the impugned regularisation order.
12. Dr Sathe submitted that the subject plot was landlocked, and therefore, the Commissioner has also exercised powers under Regulation 47 of the DCR of TMC. He submitted that the impugned regularisation order provides access to the Tarangan Housing Complex and benefits the Tarangan Housing Complex. Dr. Sathe referred to the TMC’s Affidavit dated 04 September 2024, in which the contentions now raised by him have been pleaded.
13. Dr. Sathe submitted that this Petition may be dismissed for all these reasons.
14. Mr. Godbole, the learned Senior Counsel for the third Respondent, submitted that in the plans as initially approved, the Municipal Nallah or drain was permitted to be covered by an RCC slab. Therefore, he submitted that the third Respondent—the builder/developer did nothing illegal in constructing the RCC slab.
15. Without prejudice, Mr Godbole submitted that the third Respondent applied for regularisation. He submitted that there was no infirmity in the regularization order because the Commissioner has ample powers to regularise an allegedly unauthorised structure, given the provisions of Sections 45 and 53(3) of the MRTP Act, read with several enabling powers under the MMC Act.
16. Mr Godbole submitted that the Petitioners are some disgruntled members of the Tarangan Housing Complex. He submitted that the majority of the members of this Housing Complex support the separate access now provided to the Housing Complex. He pointed out that even an intervention has been filed by the Society of the Housing Complex opposing the grant of any reliefs in this Petition.
17. Mr. Godbole submitted that though the subject plot was never landlocked, nor was the Tarangan Housing Complex or any buildings therein abutting any street, the Commissioner had the powers to regularize the alleged unauthorised structure because such regularisation was in the public interest, or at least the interest of the residents of the Tarangan Housing Complex.
18. Mr. Godbole submitted that the proposed structure does not obstruct the free water flow in the Nallah/drain. He submitted that since the Nallah/drain passes through the subject plot, the same is a part of the property of the third Respondent. He submitted that common access to the shopping mall, multiplex theatre, and the Tarangan Housing Complex would lead to chaos and inconvenience for the Petitioner and the other residents of the Tarangan Housing Complex. He, therefore, submitted that even assuming that there was any procedural irregularity in making the impugned order of regularisation, this Court, in exercising its jurisdiction under Article 226 of the Constitution, should not interfere.
19. Mr. Godbole relied on the Central Council for Research in Ayurvedic Sciences and another Vs. Bikartan Das and others[1] and Jaipur Vidyut Vitran Nigam Ltd. And others Vs. MB Power (Madhya Pradesh) Limited and others[2], to submit that the extraordinary jurisdiction under Article 226 of the Constitution should not be exercised where the Petitioners' motives are not above board. Further, even if some defect is found in the decision-making process, the power under Article 226 of the Constitution must be exercised with great caution and only in furtherance of public interest and not merely on making a legal point. He submitted that the Court should always keep the more significant public interest in mind to decide whether or not its intervention is called for. The Court should intervene only when it concludes that overwhelming public interest requires interference.
20. Mr. Godbole submitted that this Petition may be dismissed for all the above reasons.
21. Mr Yash Dewal, the learned counsel for the Intervenor, submitted that the intervenors support the impugned regularisation order dated 05 February 2005. He submitted that a separate access provided by the third Respondent by constructing over the Nallah/drain is in the interest of the intervenor and the majority of its members. He submitted that serious complications would arise if the impugned regularisation order is upset. Accordingly, he urged that this Petition be dismissed.
22. The rival contentions now fall for our determination.
23. The circumstances leading to the challenge to the impugned regularisation order dated 05 February 2005 are referred to hereafter:- 23.[1] The third Respondent has developed and constructed the “Tarangan Housing Complex” on the part of land bearing final plots Nos. 25, 31 and 23 of Town Planning Scheme No.1, Mangal Pande Road, which is a Service Road on the Eastern Express Highway, Thane (West). 23.[2] This final plot is abutting the Service Road. The Tarangan Housing Complex, therefore, had direct access to this Service Road. This fact is borne out from the material on record and was not even disputed by Mr. Godbole, the learned Senior Counsel for the third Respondent. 23.[3] Later, however, the third Respondent decided to build a shopping mall and a multiplex theatre on a portion of the same final plot. Such construction substantially blocked access to the Tarangan Housing Complex. 23.[4] The third Respondent, therefore, covered the public drain/Nallah abutting the final plot for passing through the final plot and constructed a separate access to the Tarangan Housing Complex. For this purpose, the third Respondent put up an RCC slab on a portion measuring 90 x 30 feet on the Nallah (drain), which is admittedly a natural watercourse flowing through the area. 23.[5] The Petitioners, therefore, filed Regular Civil Suit No.649 of 2004 in the Court of Civil Judge Senior Division, Thane, for various reliefs, including relief for an injunction to restrain the third Respondent from carrying out such illegal and unauthorised construction and to demolish the construction already carried out. 23.[6] The TMC issued stop-work notices to the third Respondent to stop the illegal construction on and in the Nallah/public drain. Ignoring the stop-work notices or defying them, the third Respondent completed the unauthorised construction. 23.[7] The TMC, therefore, issued a show cause notice dated 14 May 2004 to the third Respondent, requiring it to show causes as to why no action should be taken to demolish the unauthorised construction carried out by the third Respondent on and in the Nallah/public drain. 23.[8] After considering the cause shown by the Petitioners, the TMC, by order dated 09 August 2004, ordered the demolition of illegal construction by the third Respondent. 23.[9] The third Respondent instituted a Special Civil Suit No.211 of 2004 in the Court of the Civil Judge Senior Division, Thane and sought an injunction against the TMC from implementing the demolition order dated 09 August 2004.
23.10 In the suit, the TMC filed a reply dated 16/18 August 2004 to the application for temporary injunction. In this reply, which was verified by Shri Ajit Karnik, Executive Engineer of TMC, it was stated that the third Respondent had carried out a patently illegal construction, defying the stop work order issued by the TMC. The Reply proceeds to state that the RCC slab over the Nallah is an unauthorised construction and is obstructing the flow of water in the Nallah.
23.11 During the pendency of the suit, the third Respondent applied for regularisation of the unauthorised construction in an application dated 20 August 2004. By impugned order dated 05 February 2005, the Executive Engineer of TMC communicated that the unauthorised construction had been regularised to provide access to the Tarangan Housing Complex. This order states that during an emergency if the unauthorised construction is required to be demolished, the third Respondent should not raise any objection.
23.12 The impugned regularisation order dated 05 February 2005 is challenged in this Petition.
24. 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.
25. There is ample material on record to establish that the construction put up by the third Respondent over and even within the municipal Nallah/drain is illegal and unauthorised. The record shows that when this unauthorised construction commenced, the TMC issued stopped work orders to the third Respondent—builder/developer. However, in defiance of such stop work orders, the third Respondent proceeded to complete the unauthorised construction covering the municipal Nallah/drain and providing RCC columns within the municipal Nallah/drain.
26. The third Respondent did not even dispute that the TMC issued stop work orders to the third Respondent. This position was asserted on affidavit by none other than Shri Ajit Karnik, Executive Engineer of TMC, in his reply dated 16 August 2004 filed before the Civil Judge, Senior Division, Thane in Special Civil Suit No.211 of 2004 instituted by the third Respondent challenging the demolition order made by the TMC regarding the unauthorised construction which is now ordered to be regularised by the impugned regularisation order dated 05 February 2005 by the Commissioner of TMC.
27. Mr. Godbole, by referring to certain plans and the endorsements made thereon, did try to contend that the original approved plans had permitted the construction of the RCC slab over the municipal Nallah/drain and RCC columns to sustain this slab within the municipal Nallah/drain. However, on perusing the plans, we have been unable to accept this contention. Based on some truncated plans or an isolated endorsement of one of the plans, it is not possible to accept Mr Godbole’s contention about the unauthorised construction not being unauthorised at all because the same was approved in the original plans.
28. The TMC, in the affidavit filed on its behalf on 04 September 2024, has not stated that the construction involving the casting of the RCC slab over the municipal Nallah/drain or the RCC columns within the municipal Nallah/drain was approved in the original plans sanctioned by the TMC. The TMC has repeatedly asserted that this was a patently illegal and unauthorised structure constructed by the third Respondent – builder/developer in defiance of the stopwork orders issued by the TMC.
29. If the third Respondent – builder/developer was serious about the structure/construction being legal and authorised or covered by the sanctioned plans, there was no question of the third Respondent applying for regularisation. The regularisation was applied because even the third Respondent knew that the construction covering the municipal Nallah/drain with an RCC slab or RCC columns within the Nallah was illegal and unauthorised. Therefore, Mr Godbole’s contention about regularised construction being legal and authorised construction even before the impugned regularisation order was made cannot be accepted.
30. The record shows that in the original approved plans for the Tarangan Housing Complex, access was provided from the portion directly abutting the service road. However, at a later point, the third Respondent obtained permission to construct a shopping complex (mall) and a multiplex theatre on a portion of the subject plot. This substantially blocked the access otherwise available to the subject plot.
31. The Petitioner has placed on record the complaints dated 07 June 2004, 10 June 2004, 12 July 2004, and 02 August 2004, all addressed to the Commissioner of TMC, protesting against the permission granted to the third Respondent for the construction of a shopping complex (mall) and a multiplex theatre by seriously affecting the access to the Tarangan Housing Complex. Such complaints are collectively in Exhibit-A (pages 20 to 31 of the Petition's paper book).
32. Based upon the complaints made by the ad hoc committee members of the Tarangan Housing Complex, the TMC issued a show cause notice dated 14 May 2004 to the third Respondent – builder/developer. The show cause notice at Exhibit-B (pages 32 and 33) states that the TMC officials, on inspection of the site, found that the third Respondent was involved in illegal and unauthorised construction over the municipal Nallah/drain without bothering to obtain any permissions from the TMC. The show cause notice required the third Respondent to show cause as to why the unauthorised construction involving the RCC box and column covering an area of 28.00 x 94.00 sq. feet should not be demolished.
33. The third Respondent – builder/developer filed his reply to the show cause notice dated 14 May 2004 on 18 May 2004. This reply is annexed to the Affidavit filed on behalf of the third Respondent at Exhibit R-3/8 (pages 112 and 113). The third Respondent, in its reply dated 18 May 2004, submitted that the Nallah water flow was obstructed due to debris dumped by the nearby residents, sweepers, passers-by etc. and this was creating a nuisance for nearby residents and also due to its proximity to service road, it was also accident prone for vehicles. The reply states that the third Respondent architect had submitted a letter along with a drawing for Nallah covering, and the Commencement Certificate issued on 23 March 2004 includes part of the Nallah covering by RCC slab. The reply admits the construction of columns in the Nallah. The reply states that the third Respondent was now providing a concrete floor in the Nallah bed.
34. The third Respondent also instituted a civil suit questioning TMC’s action. Based on the civil suit's pendency and even without any interim order, the third Respondent requested the TMC to defer its action. The TMC, upon due consideration of the third Respondent’s reply and specific orders made by the Civil Court and after satisfying itself that there was no restraint order from the Civil Court, issued a demolition order on 09 August 2004.
35. At this stage, we must refer to the Written Statement and the reply to the application for temporary injunction filed by the TMC before the Civil Judge, Senior Division at Thane in Special Civil Suit No.211 of 2004 instituted by the third Respondent – builder/developer seeking to restrain the TMC from taking any action against the construction of RCC slab over the municipal Nallah/drain and the RCC columns to sustain such slab within the municipal Nallah/drain.
36. The TMC, in its written statement, duly verified by Shri Ajit Karnik, Executive Engineer of TMC, has stated, among other things, the following:-
(i) In paragraph 13 of the written statement, the TMC has stated that the third Respondent commenced the construction of a shopping complex (mall) and a multiplex theatre without complying with the terms and conditions of the permission granted. (see paragraphs 4 and 13);
(ii) The TMC denied that the third Respondent had not violated any rules and regulations and/or terms and conditions imposed while issuing the commencement certificate. Accordingly, the TMC defended the stop work notices issued to the third Respondent (see paragraphs 17 and 18 of the written statement);
37. The TMC’s reply dated 16 August 2004, is most relevant, and therefore, some of the extracts from this reply are transcribed below for the convenience of reference:-
2. The defendant states that the defendant corporation has granted sanction to the plan dt. 24.3.2004. The said permission has been granted pursuant to the application bearing inward no. 41191, dt. 17.12.2003 received on 19.12.2003. In the said application there is no mention of proposed slab over Nalla.
3. The defendant states that the plans submitted alongwith the application, dt. 19.12.2003 shows 'Nalla covered with R.C.C. Slab'. Merely the said working cannot be construed being permission granted for construction of R.C.C. Slab on the said Nala. The defendant states that the said sanction plan also shows existing structures on the western side of the Bnala which does not mean that any sanction is accorded for the said structures or the said structures are regularized under the said sanction, when in fact the said existing structures are unauthorised constructions.
4. The defendant states that in the permission dt. 24.3.204 the description of the scope of permission is given at the top most portion of the permission which does not include slab over Nala. In any case assuming without admitting the contention of the plaintiff to be true. No commencement certificate was issued for the construction of the said Nala. No detail plans for construction of slab over the said Nala are ever submitted or approved by the defendant corporation. The said Nala is a public Nala carrying water from hilly area as well as drainage from the surrounding areas. For carrying out any construction on the said nala detail plans and specification are required to be furnished which has not been done by the plaintiff.
5. The defendant further states that there exist an access to the said property the same has been closed down by the plaintiff to enable him to undertake the work of commercial building from the service road.
6. The defendant states that in the circumstances stated herein above one can safely conclude that the work undertaken by the plaintiff of covering the said Nala was and is totally illegal. The defendant states that the Executive Engineer of the drainage department of the corporation during their inspection revealed that R.C.C. Columns were being erected in the said Nala by the plaintiff. The drainage department has not given any permission for the said construction. The drainage department also found that the obstruction has caused to the flow of the said Nala because of the said construction carried out in the nala.
7. The defendant states that the officers of the encroachment department again carried out the inspection and revealed that 10 R.C.C. Block and columns were erected in the said Nala. The said columns being erected within the said nala there could be obstruction in the work of cleaning. The said construction was carried out without taking due permission from the concerned departments was totally illegal. The said construction being in progress the defendant corporation issued notice under Sec. 267 (12)(2)(3) of B.P.M.C. Act and under Sec. 260(1)(2) of B.P.M.C. Act, 1949 both dt. 14.5.2004. The contents stated in the said notices are true, legal and valid.
8. The defendant states that inspite of the fact that ntoce under section 267 of B.P.M.C. Act was issued, the plaintiff continued with the construction of the slab on the Nala. The defendant states that on 25.5.2004 again the inspection was carried out and it revealed that work of centering for construction of the slab was in progress. The defendant states that the said centering was partly removed by the corporation on 25.5.2004. The defendant states that the plaintiff however completed the construction of the said slab without complying with the notices issued by the Corporation. The defendant in the circumstance therefore issued notice, dt. 9.8.2004 of 24 hours to the plaintiffs.
9. The defendant states that in fact under sec. 230 & 231 of B.P.M.C. Act, 1949 no notice is necessary to remove or demolish any construction carried out on the Nala. The defendant corporation however has given full opportunity to the plaintiff by way of following principles of natural justice.
10. The defendant states that thus it is clear from all the above facts that the construction in and on the said nala carried out by the plaintiff is totally illegal and the defendant corporation is entitle to take action against the same.
18. With respect to para 7, it is emphatically denied that it is denoted in the sanctioned plan that the Nala coming within the said road to be covered by R.C.C. slab. It is denied that the slab over the Nala is covered under the said plan and is part and parcel of the sanctioned plan. It is denied that the said plan sanctioned on 24.3.2004 is the subject matter of the present suit and/or is specifically covered in the said prayer. It is denied that the defendant are restrained from creating any hurdle or obstruction in the construction work in pursuant to the sanctioned plan.
19. With respect to para 8 it is denied that the plaintiffs in total defiance and disobedience to the order of injunction illegally, high handedly and without any cause issued notice, dt. 14.5.2004 through its Ward Officer under Sec. 260(1)(2) of B.P.M.C. Act and therefore falsely contended that the said R.C.C. slab over the nala is unauthorized construction. It is denied that vide the said notice a threat of demolition was also given. It is denied that issuance of the said notice was absolutely uncalled for, unwarranted and otherwise in defiance of the order of injunction. It is denied that allegations were absolutely false and frivolous to the knowledge of defendant. Reply given by the notice is matter of record. It is denied that any sanction is granted for the construction of the said Nala and/or commencement certificate is issued for the construction of the said Nala. It is denied that there is any necessity to construct a slab on the said nala. It is emphatically denied that access to the said complex would otherwise cut off if the slab is not erected. It is emphatically denied that the erection of the said slab was otherwise just and necessary for having free access from the said complex. It is denied that the access road with the slab on the nala is the only access to the said complex, It is denied that the said slab is nothing but a matter of easement of necessity. It is denied that the construction of the slab by no stretch of imagination can be called as unauthorized construction. It is denied that the defendants are duly satisfied by the reply given by the plaintiff. It is denied that defendants did not give any opportunity of hearing to the plaintiff pursuant to the first notice. It is denied that an impression was created that the first notice would Inever be acted upon as alleged. 24........… It is denied that irreparable loss and injury would be caused to the plaintiffs. If the defendants are allowed to act upon the notices and that the access of the said complex would be cut off and thereby obstruction in the enjoyment of easement by necessity would be created. The Plaintiff has admitted that the slab is unauthorized construction. ………. VERIFICATION I, Shri Ajit Karnik, Ex Engineer, of the defendant corporation do hereby solemnly declare and state that the contents of the foregoing paragraphs of the written statement are true and correct to the best of my knowledge, information and belief and I believe the same to be true and in testimony whereof, I have put my hand hereto at Thane on 16.08.04 Filed in Court Sd/- Dated 16.08.04 Defendant Sd/- Advocate for the Defendant
38. Thus, at least as of 16 August 2004, the TMC was quite clear and stated the following in the affidavit:-
(i) That there was no sanction for constructing any
(ii) In any event, there was no commencement certificate ever issued by the TMC for constructing the RCC slab on the municipal Nallah/drain;
(iii) There was neither any sanction nor commencement certificate for constructing RCC columns within the municipal Nallah./drain;
(iv) That the third Respondent – builder/developer had access which was closed down by the third Respondent to enable it to undertake the work of commercial building from the service road;
(v) That accordingly, it could be safely concluded that the work undertaken by the third Respondent of covering the Nallah was illegal and unauthorised;
(vi) That the Executive Engineer of the Drainage
Department of TMC, during their inspection, saw that RCC columns were being erected in the municipal Nallah by the third Respondent - builder/developer. This was without any permission from the Drainage Department of TMC;
(vii) That the Drainage Department of TMC found that the obstruction was caused to the flow of the said Nallah because of the constructions carried out by the third Respondent – builder/developer in the municipal Nallah;
(viii) The officers of TMC (Encroachment Department) again inspected the site and revealed that 10 RCC blocks and columns were erected in the municipal Nallah. This construction was carried out without obtaining due permission from the concerned department and was illegal. This construction was obstructing the Nallah;
(ix) The stop work notices were issued to the third
Respondent – builder/developer after the inspection revealed that the third Respondent was carrying on the work of illegal construction. A portion of the illegal construction was also removed by the TMC but the third Respondent – builder/developer proceeded to complete the work ignoring the notices issued by the TMC;
(x) Under Sections 230 and 231 of the BPMC Act,
1949, no notices are necessary to remove or demolish any construction on the Nallah. Still, the TMC issued notices to comply with the principles of natural justice;
(xi) In paragraph 10, the TMC asserted that it was clear from all the facts pleaded that the construction in and on the Nallah carried out by the third Respondent “is totally illegal and the defendant corporation is entitle to take action against the same”;
(xii) The TMC denied that any sanction was granted for constructing a slab over the Nallah or columns inside the Nallah. In any event, there was no commencement certificate for such works;
(xiii) The TMC denied that the construction over the
(xiv) The TMC denied the allegations of easementary right claimed by the third Respondent. The TMC claimed that the third Respondent admitted that the slab was unauthorised construction.
39. While the suit was pending, the third Respondent applied for regularisation of the unauthorised construction by application dated 20 August 2004. Based on the application dated 20 August 2004, the third Respondent communicated the impugned regularisation order dated 05 February 2005, which is impugned in the present Petition.
40. The Executive Engineer of the Drainage Department of TMC signs the impugned regularisation order dated 05 February 2005. However, the affidavit filed on behalf of TMC explains that the Municipal Commissioner took this decision, which was only communicated by the Executive Engineer of the Drainage Department.
41. The impugned regularisation order dated 05 February 2005 is in Marathi (Exhibit E on page 41). However, a translation is provided on page 41A, and the same is transcribed below for the convenience of reference:- Exh.E Translated from Marathi THANE MUNICIPAL CORPORATION Mahapalika Bhavan, Dr. Almeida Road, Chandanwadi, Panch-pakhadi Thane 400 602.