Writ Petition No.48 of 2011

9th June, 2011

Petitioner Counsel: Mr. V. J. DIXIT, Senior Counsel i/b Mr. L. V. SANGIT
Respondent Counsel: Mr. S. P. SHAH, Mrs. V. A. SHINDE

Cases Cited:
Pune Municipal Corporation, Pune Vs. Nanasaheb Nagoji Bhosale, AIR 1995 Bombay 164 [Para 5,12,13]

JUDGMENT

JUDGMENT :- Heard learned counsel for the parties. Rule. Rule, made returnable forthwith and heard finally with the consent of parties.

2. This writ petition under Article 226 of the Constitution of India is basically directed against the notice dated 21st October, 2010 issued by Respondent No.1 - Dhule Municipal Corporation (for short, the Corporation) under sections 260 and 478 of the Bombay Provincial Municipal Corporation Act, 1949 (for short, BPMC Act) and section 52 and 53 of the Maharashtra Regional and Town Planning Act, 1966 (for short, MRTP Act). By this notice, petitioners are directed to remove/ demolish a mobile tower/ cellular site within 30 days, which has been erected/ constructed without permission of the Corporation.

3. Petitioner is a company incorporated under the Companies Act, 1956 and is in the business, inter-alia, of providing infrastructure services for erection of mobile towers/ cellular sites. The petitioners claim that they had applied for permission for erection of the mobile tower as provided for under section 44 of the MRTP Act. Further, it is their case that since the decision on their application for permission for development/ construction of mobile tower was not communicated by the Corporation, either granting or refusing to grant permission to them, within 60 days from the date of receipt of their application, they carried out the development treating it as deemed permission as contemplated by subsection (5) of section 45 of the MRTP Act and, hence, according to the petitioners the impugned notice is illegal.

4. The petitioners have also challenged the resolution passed by the Corporation at Exhibit-L to the writ petition. However, Mr. Dixit, learned senior counsel did not press this prayer since the petitioners have an alternate remedy to challenge the said resolution.

5. Mr. Dixit, learned senior counsel for the Petitioners addressed the Court only on the legality of the impugned notice. He contended that the petitioners had applied for sanction of the plans and/ or for permission to erect the mobile tower as contemplated by section 44 of the MRTP Act and since the Corporation did not communicate its decision, either granting or refusing permission within 60 days, the petitioners proceeded to develop/ construct the mobile tower under the deeming provision contemplated by subsection (5) of section 45 of the MRTP Act and, therefore, the impugned notice cannot be sustained in law and deserves to be set aside. In support of this contention, he invited our attention to sections 44 and 45 of the MRTP Act. Then, Mr. Dixit submitted that the notice under section 260 and 478 of the BPMC Act is illegal also on the ground that the petitioners had applied for permission to construct the mobile tower and, therefore, the Corporation was not justified in issuing the notice under section 260 and 478. In other words, he submitted that in the present case the petitioners had applied for permission and in view thereof the impugned notice asking the petitioners to demolish and/ or remove the mobile tower within 30 days was illegal. In support of this contention, he placed reliance upon the judgment of this Court in "Pune Municipal Corporation, Pune V/s Nanasaheb Nagoji Bhosale" AIR 1995 Bombay 164.

6. We have perused the provisions of section 44 and 45 of the MRTP Act, so also the provisions of section 260 and 478 of the BPMC Act. There is no dispute that construction/ erection of a mobile tower amounts to "development" within the meaning of section 2 (7) of the MRTP Act and for its construction/ erection a permission of the Planning Authority is necessary as provided for under section 45 of the said Act. Section 44 of the MRTP Act provides the procedure for seeking permission for development. Under this provision, it is necessary for a person intending to carry out any development on any land to make an application in writing to the Planning Authority for permission "in such form" and containing such particulars and accompanied by such documents "as may be prescribed". The form, Appendix A to Bylaw No.6.1 of the Standardised Building Bye-laws and Development Control Rules for "A" class municipal councils of Maharashtra, is the prescribed form as contemplated by section 44 and 45 of the MRTP Act. Section 45 of the MRTP Act provides that on receipt of an application, as prescribed under section 44, the Planning Authority by an order in writing grants permission with or without conditions or refuse to grant permission and communicates the same to the applicant within the prescribed time. Sub-section (5) of section 45 provides that if the Planning Authority does not communicate its decision whether to grant or refuse permission, to the applicant within 60 days from the date of receipt of his application, or within 60 days from the date of receipt of reply from the applicant in respect of any regulation made by the Planning Authority, whichever is later, such permission shall be deemed to have been granted to the applicant on the date immediately following the date of expiry of 60 days. Provided that the development proposal, for which the permission was applied for, is strictly in conformity with the requirements of all the relevant Development Control Regulations framed under this Act or bye-laws or regulations framed in this behalf under any law for the time being in force and the same in no way violates either the provisions of any draft or final plan or proposals published by means of notice, submitted for sanction under this Act. It further provides that any development carried out in pursuance of such deemed permission which is in contravention of the provisions of the first proviso, shall be deemed to be an unauthorised development for the purposes of section 52 to 57 of the said Act.

7. From bare perusal of the provisions contained in section 44 and 45 of MRTP Act it is clear that for any person, intending to carry out any development on any land, it is mandatory to make an application in writing to the Planning Authority for permission in the "prescribed form" and unless the application made is in "the prescribed form", as contemplated by section 44 of the said Act, in our opinion, one cannot take benefit of the deeming provision contained in subsection (5) of section 45 of the said Act and carry out any development, claiming that there was no communication/ reply from the Planning Authority within sixty days. In other words, one can take benefit/ advantage of deeming provision only if the application for permission for development was made in the "prescribed form" and if there was no communication from the Planning Authority either granting or refusing permission to the applicant within 60 days from the date of receipt of his application. When the statute mandates that one has to apply for building/ development permission in the prescribed form, the mandate of the statute has to be duly observed.

8. In the present case, we have perused the application dated 9th August, 2010 made by the petitioners, which according to Mr. Dixit, is under section 44 of the MRTP Act. It is at Exhibit-G to the writ petition. It would be relevant to reproduce the said application to find out whether it was made in the prescribed form:

“EXH.G

G T L

INFRASTRUCTURE                                       Date: 9.8.10.

To, The Commissioner, Dhule Municipal Corporation, Dhule, Dist. Dhule.

Ref. Our application letter for noc dated 14 July 2010.

Respected Sir,

1.       We are a company registered under the Companies Act, 1956. We are a proper license holder of IP 1 issued by Department of Tele communication, New Delhi and engaged in the business of installation of passive infrastructure in the telecom circle of Maharashtra and Goa.

2.       We are required to erect mobile towers on rooftop of buildings and ground base tower, after entering into a proper agreement with the owners.

3.       We are required to erect mobile towers on the roof top of the buildings & ground based tower after entering into a proper agreement with owners. We have entered into a License Agreement with Kashinath Babulal Chaudhari, the owner of the property Plot No. - 3/ A, P. No. 200/4, Survey NO.546, 80 feet Road, Dhule Tal. & Dist. Dhule. Mentioned here in above for erection of mobile tower.

4.       We had applied for your Permission for installation of mobile tower on the above said property on 14th July, 2010.

5.       Therefore, as per your directions, we are resubmitting all the below mentioned requisite docs in the prescribed format for your record purpose on time to time as per your requirements in office by hand through our representative.

i. License Agreement.

ii. Tower Drawing 3 copies.

iii. Structural stability certificate.

iv. 7/12 3stract.

v. Building permission.

vi. Sanction Plan.

vii. Municipal tax paid receipt.

viii. Consent letter from owner on Rs.100 Stamp

ix. other requisite documents as per your instructions.

We further request you to issue no objection certificate for our previously mentioned installation at the earliest.

Kindly Acknowledge receipt and oblige.

For GTL Infrastructure Limited.

Sd/-

Authorized Singature. GLOBAL Group Enterprise Site Name: Malegaon

(Aircel)

Sd/- 9., 8.10 GTL Infrastructure Limited Global House | Lane No. 15, Prabhat Road, Erandwane | Pune 411 004 | India Tel:+91 20 25650708 FAX: + 91 2025659713

9. At this stage, it would also be advantageous to reproduce the prescribed form [Appendix A] to consider whether the application dated 9th August, 2010 (Exhibit-G) was in the prescribed form.

APPENDIX A (Bye-law No. 6.1) Form for first Application for development and to erect a building. (Under section 44/45/58/59 of Maharashtra Regional and Town Planning Act, 1966 and under Section 189/ 190/ 191/ 192 of Maharashtra Municipalities Act, 1965)

(On Rs. 0.20 Stamp)

To, The Authority,

Municipal Council of -----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Sir,

I hereby give notice that I intend to carry out development in the site/ to erect to re-erect/ to demolish/ to make material alteration in the building ......................................................... .............. on/ in Plot No. ................., land, Town and, Revenue Survey No. ............. C.T.S. No. ..................... situated at Road/ Street ................ City ......

I forward herewith the following plans and statements (Item 1 to 6) in quadruplicate, wherever applicable, signed by me and (Name in block letters) ............. the lincesed Architect/ Engineering/ Structural Engineer/ Supervisor - Licence No. ............... who have prepared the plans, designs and a copy of other statements/ documents/ as applicable Items 1 to 9):

1.    Key Plan (Location) Plan.

2.    Site Plan

3.    Sub-division Layout Plan.

4.    Building Plan.

5.    Services Plan.

6.    Particulars of development in Form.

7.    Ownership Title.

8.    Attested copy of Receipt for Payment of Application fee.

9.    Clearance Certificate of TAX Arrears.

I request that the proposed development/ construction may be approved and permission accorded to me to execute the work.

Signature of Owner ...................

Name of Owner .......................

Address of Owner ....................

Date ......................                                              ...........”

10. From bare perusal of the prescribed form it is clear that it has to be submitted on Rs.0.20 Stamp and in the form of notice making the intent clear to carry out development. It further provides that the application should be accompanied by nine documents, mentioned in the prescribed form. Thus, if the application is in the prescribed form and submitted along with all the relevant/ necessary documents, then alone, as observed earlier, one can claim benefit of the deeming provision. If the prescribed form is compared with the application dated 9th August, 2010, submitted by the Petitioner, it is clear that the application was not in the prescribed form. Therefor, it was not open to the petitioner to proceed with the construction of mobile tower treating the inaction/ silence of the Corporation, insofar as their application dated 9th August, 2010 is concerned, as deemed permission. In other words, the petitioners were not obliged to construct the mobile tower merely because there was no communication from the Corporation in response to their application dated 9th August, 2010 within 60 days, treating the same as deemed permission under subsection (5) of section 45 of the MRTP Act. In the circumstances, the challenge to the impugned notice on this ground fails and rejected as such.

11. The next contention urged by Shri Dixit that the notice under sections 260 and 478 of the BPMC Act and under Sections 52 and 54 of the MRTP Act, is illegal, also deserves to be rejected outright. Shri Dixit urged that the provisions of Sections 260 and 478 would not apply to the facts of the present case, since, the petitioner had made an application for seeking permission for development under Section 44 of the MRTP Act. We have already taken a view that application dated 9th August, 2010 for development/ for erecting the mobile tower, in our opinion, was not an application as contemplated by Section 44 of the MRTP Act and, therefore, it was not open to the petitioner to treat the silence or inaction on the part of the Corporation for sixty days and proceeded with construction of the mobile tower.

12. A plain reading of Section 260 of the BPMC Act shows that the procedure under this provision presupposes a situation, whereby an application in the prescribed form, has been made and it has either been rejected or where the permission granted has been exceeded or a situation, whereby deemed permission is pleaded, but is not justified. The case of the petitioner does not fall in any of these categories. It is so observed by this Court in the case of Nanasaheb Nagoji Bhosale (Supra). Section 478 contemplates an entirely different set of cases whereby the records of the Corporation indicate that no application whatsoever was ever made, and consequently, that it was neither rejected nor granted nor was there any deemed permission. In the present case, the application dated 9th August, 2010 was no application as contemplated by section 44 of the MRTP Act. Therefore, there was no occasion for the Corporation to either reject or to grant and no reason for the petitioner to treat the silence on the part of the Corporation as deemed permission. Section 52 of the MRTP Act provides for penalty for unauthorised development or for use otherwise than in conformity with the development plan and section 53 confers power on the planning authority to remove unauthorized development. A plain reading of all these provisions, in the light of our finding that application dated 9th August, 2010 was not an application for development as contemplated by section 44 of the MRTP Act, would show that the Corporation is justified in issuing the impugned notice against the petitioner.

13. The judgment of this Court in Nanasaheb Nagoji Bhosale's case (supra) relied upon by the Petitioner, in our opinion, is of no avail to the petitioner in view of the finding recorded in the foregoing paragraphs in respect of petitioner's application under section 44 of the MRTP Act dated 9th August, 2010. Thus, the Challenge to the impugned notice fails on this ground also.

14. In the result, Writ petition is dismissed. Rule is discharge. No costs.

15. However, dismissal of the petition shall not preclude the petitioner from making an application to the Corporation for regularisation of the mobile tower. If any such application is made by the petitioner, the Corporation, while dealing with the same, shall consider whether the mobile tower is in conformity with the requirements of all the relevant development control rules or bye-laws or regulations framed in this behalf under any law for the time being in force and the same in no way violates either the provisions of any draft or final plan or proposals published by means of notice submitted for sanction under the MRTP Act.

Petition dismissed