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. {Para 7}
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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH ATAURANGABAD
APPELLATE SIDE, CIVIL JURISDICTION
WRIT PETITION NO.: 48 OF 2011
GTL Infrastructure Ltd. V/s The Dhule Municipal Corporation and others
CORAM: D. B. BHOSALE AND S. B. DESHMUKH,JJ.
DATED:9th JUNE, 2011.
Citation: 2011(6) BOM CR 152: 2011(6) MHLJ 215
1. 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, interalia,
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 ExhibitL
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 Byelaws
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.
Subsection
(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 byelaws
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 ExhibitG
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.
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 Sd/9.,
8.10
Site Name: Malegaon GTL Infrastructure Limited
(Aircel) 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 (ExhibitG)
was in the prescribed form.
APPENDIX A
(Byelaw
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 reerect/
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. Subdivis9ion
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 byelaws
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.
[S. B. DESHMUKH, J.] [D. B. BHOSALE, J.]
Dated:09/06/2011.
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