Legal Provision and Scope
Section 3 of the Monopolies and Restrictive Trade Practices (MRTP) Act, 1969, excluded public utilities such as government undertakings, government companies, and statutory corporations from its regulatory framework.
This exemption was intended to exclude sectors like electricity, water, telecommunications, and railways, deemed essential services under state control.
Rationale for Exclusion
Introduction
The Monopolies and Restrictive Trade Practices Act, 1969 (MRTP Act) represented India's first comprehensive competition law framework, yet it contained significant exclusions for public utilities and government enterprises. These exclusions reflected the prevailing economic philosophy of post-independence India, where state control over commanding heights of the economy was considered essential for achieving developmental objectives.
The transformation of India's competition law landscape represents one of the most significant regulatory shifts in the country's economic history . At the heart of this transformation lies a fundamental change in how public utilities and government enterprises are treated under competition law . While the Monopolies and Restrictive Trade Practices (MRTP) Act of 1969 largely exempted public utilities from its purview, the Competition Act of 2002 brought about a paradigmatic shift by subjecting these entities to competition law scrutiny . This article examines this crucial transition and its far-reaching implications for India's public utilities sector.
The Monopolistic and Restrictive Trade Practices (MRTP) Act of 1969 contained several provisions relevant to public utilities, though it largely exempted government-controlled enterprises from its scope while establishing frameworks for essential services.
The MRTP Act was enacted to ensure that the operation of the economic system does not result in concentration of economic power in the hands of few, provide control of monopolies, and prohibit monopolistic and restrictive trade practices. The Act addressed three main types of practices:
Plain reading of the above provisions of law discloses that in cases of any development within the territorial limits of the planning authority without the prior permission under the said Act or after revocation of such permission granted under the said Act, if carried out, then it could be ordered to be removed as well as direction can be issued for restoring the land to the condition which existed prior to the concerned development. The authority can also direct to restore such status quo ante within specified period. However, the specified period shall not be less than one month. Such a direction can be issued to the owner of the concerned development. The term "owner" would obviously disclose the person in whom the ownership of the property or the structure vests. The Section 2(18) of the said Act, however, widens the scope of the said expression "owner" by defining it to mean to include any person for the time being receiving or entitled to receive, whether on his own account or as agent, trustee, guardian, manager or receiver for another person or for any religious or charitable purpose, the rents or profits of the property in connection with which it is used. In other words, it is not only the person in whom the title of the property stands, but even his agent or person acting on behalf of the owner for the purpose of receipt of rent or profits from such property would be the owner for the purpose of the said expression under Section 53 of the said Act. Undoubtedly, in the case of co-operative societies, either the Chairman as well as the other members of the managing committee thereof would be the owners of the property of the society for the purpose of the said section.
{Para 7}.
Citation: 2005(2) Bom CR 747.
Read full Judgment here: Click here
Print PageIt is well-settled that expressions in a penal provision of law are to be construed strictly and in favour of the subject. The rules of interpretation clearly require that the language of a statute should be so construed that no case shall be held to fall within it which does not come within the reasonable interpretation of the statute, and in case of any doubt the cardinal principle is that the construction favourable to the subject should be preferred. {Para 8}
9. Where an authority is bestowed with certain power under a statute and for the execution of such power certain requirements or formalities are prescribed under the same statute, it is neither unjust nor incorrect to expect rigorous observance of such requirements or formalities by such authorities while exercising their powers. The relevant provision of law clearly speaks of notice of minimum 30 days to comply with the direction, which the Authority is empowered to issue under such notice. The provision does not contemplate prosecution during the subsistence of such period nor in case of compliance of direction within the stipulated period of time. In other words, non-compliance of direction is precondition for the prosecution. Unless the said precondition is satisfied, there cannot exist criminal liability of the owner and the Authority is not entitled to initiate prosecution under Section 53(6) and (7) of the said Act. Obviously occasion for non-compliance of direction would arise only in case of the party being made aware of the direction. The mode statutorily specified for making the party aware of the direction is only by way of notice under Section 53(1). Being so, issuance of such notice with the necessary direction and non-compliance thereof are pre-requirements for prosecution under Section 53(6) and (7) of the said Act.
10. Undisputedly, in the case in hand, the development is in the property of the society. The notice which was issued to Shri S.S. Rane was in the capacity as the Chairman of the society. It is pertinent to note that there was no notice separately issued to the society as such. In fact, the notice was addressed thus:-
"Shri S.S. Rane (Chairman)
1. A Neelkanth Apartment, Gokuldas Pasta Road, Dadar, Mumbai 400 014."
Even the contents of the notice disclose that the allegations were against Shri S.S. Rane, Chairman of the society. The third para thereof clearly recorded that "it has been reported to me that you have commenced, carried out development described in the Schedule appended below: ......" Even the warning regarding prosecution was directed to Shri S.S. Rane in the sense it recorded that "Please note that on failure to comply with the aforesaid requisition, you will be liable for prosecution under the said act ......"
11. It is not in dispute that no notice was issued to the petitioner in relation to the alleged development. Being so, the petitioner had no occasion to comply with the directions stated to have been issued to Shri S.S. Rane. The notice issued to Shri Rane can by no stretch of imagination be said to be good for the petitioner nor that is the case of the respondents. The Section 53(6), quoted above, clearly reveals that the criminal liability of the owner arises only upon the failure to comply with the directions in the notice and not otherwise. Being so, if there is no notice issued to the party, there cannot be any occasion for prosecution of such person. In fact, the sub-section (7) clearly speaks of prosecution under the sub-section (6)(a). The sub-section (6)(a) empowers the Authority to prosecute the owner only on failure to comply with the notice. Being so, in the case in hand, once it is not in dispute that no notice was served upon the petitioner in terms of the provisions of law comprised under Section 53(1) of the said Act, the petitioner never incurred any criminal liability for the purpose of he being made to face the prosecution under Section 53(6) or to be punished under sub-section (7) thereof for the alleged development. The petitioner, therefore, is justified in contending that the prosecution was without any occasion for the same against the petitioner. In such cases, the prosecution being in the absence of jurisdictional fact which is otherwise needed for the Magistrate to take cognizance of the complaint, question of asking the party to face the prosecution and defend his right does not arise at all. On this count itself, the process issued against the petitioner in Criminal Case No.45/P/2000 by the learned Metropolitan Magistrate is liable to be quashed and set aside.
Citation: 2005(2) Bom CR 747.
Print PageIf the complaint was to be filed by some officers of the Corporation then the previous sanction by the Chief Officer for enabling Officer to file a complaint would be imperative.
After the judgment was over Mr. Patil asked for permission from the Court to urge additional point on behalf of the accused. His contention was that the offence of the accused was complete on 15-12-1980. The prosecution launched by the Chief Officer on 28-7-1981 was, therefore, according to him barred by limitation having regard to the provisions of section 468 of the Criminal Procedure Code.
In the first place this point is being aired before this Court for the first time in this appeal against the acquittal and that too after all the arguments were over and even after the judgment was completely dictated.
But that apart, the argument is without substance. The offences which are susceptible to the plea of limitation under section 468 of the Code are offences which are not continuing offences. It is nobody's case that unauthorised construction has been removed by the accused even till this date. The offence, therefore, continues and there is the cause of action for the Corporation to file the complaint against the accused every day until the offences continue. The complaint filed on 28-7-1981, therefore, does not suffer from any bar of limitation. To give to the said section 52 of the Town Planning Act an interpretation by virtue of which the offence will be deemed to have been completed once for all even though the unauthorised construction remains there on the land in the teeth of the objections raised by the Corporation, would be to defeat the very intendment and spirit of the Town Planning Act and the planned development of the cities.
The argument must, therefore, be rejected.
{Para 18}
Deemed permission to an application under section 44 of MRTP Act can apply only to cases where permission is otherwise capable of sanctioned in law.
The provision that the permission shall be deemed to have been granted within a period of 60 days from the date of receipt of the application if the Planning Authority does not communicate its decision whether to grant or refuse permission can apply only to cases where the permission is otherwise capable of being sanctioned in law. If an application cannot be sanctioned, it certainly cannot be said that it is capable of a deemed sanction. In the present case, it is clear that no permission for development could have been granted by the Planning Authority since the site in question was not buildable at all being reserved as an open space for extension of Maharajbagh.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Public Interest Litigation No. 34 of 2010 & Writ Petition No. 125 of 2011
Decided On: 21.10.2011
The Court on its own motion and Ors. Vs. The State of Maharashtra and Ors.
Hon'ble Judges/Coram:
S.A. Bobde & M.N. Gilani, JJ.
Author: S.A. Bobde, J.
Citation : 2012 (1)MhLj 232
Print Page
https://www.lawweb.in/2021/09/important-judgments-on-municipal.html
https://www.lawweb.in/2022/08/important-judgments-on-municipal.html
2. Definitions. - In this Act, unless the context otherwise requires,-
(9) "Development plan" means a plan for the development or re-development of the area within the jurisdiction of a Planning Authority [ [and includes revision of a development plan and] proposals of a special planning Authority for development of land within its jurisdiction];
[(9A) "development right" means right to carry out development or to develop the land or building or both and shall include the transferable development right in the form of right to utilise the Floor Space Index of land utilisable either on the remainder of the land partially reserved for a public purpose or elsewhere, as the final Development Control Regulations in this behalf provide;]
(12) "existing-land-use map" means a map indicating the use to which lands in any specified area are put at the time of preparing the map;
(13) "final plot' means a plot allotted in a final town planning scheme;
| Floor Space Index = | Total covered area of all floors Plot area |
The land was reserved for a public purpose way back in 2002. By such reservation, the land owner could not use the land for any other purpose for ten years. After the expiry of ten years, the land owner had served a notice calling upon the Respondents to acquire the land but still the land was not acquired. The land owner cannot be deprived of the use of the land for years together. Once an embargo has been put on a land owner not to use the land in a particular manner, the said restriction cannot be kept open-ended for indefinite period. The Statute has provided a period of ten years to acquire the land Under Section 126 of the Act. Additional one year is granted to the land owner to serve a notice for acquisition prior to the amendment by Maharashtra Act No. 42 of 2015. Such time line is sacrosanct and has to be adhered to by the State or by the Authorities under the State.
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 1965 of 2022
Laxmikant and Ors. Vs. State of Maharashtra and Ors.
Hon'ble Judges/Coram:
Hemant Gupta and V. Ramasubramanian, JJ.
Author: Hemant Gupta, J.
Decided On: 23.03.2022
Citation: MANU/SC/0353/2022
In the present case, the High Court has issued a writ of Mandamus directing the Corporation to issue a declaration under Section 19 of the Act of 2013 mainly on the ground that the General Body of the Corporation had passed a Resolution dated 18.02.2012 resolving that the land in question is required to be acquired and the same is needed for the purpose for which it has been reserved. However, in our view, mere passing of a Resolution and/or making a budgetary provision for payment of the compensation in the budget cannot be said to be taking steps as contemplated under section 127 of the MRTP Act.
Therefore, once the reservation of land under the Development Plan is deemed to have lapsed by operation of law and it is released from reservation, no writ of Mandamus could have been issued by the High Court directing the Corporation to still acquire the land and to issue a declaration under Section 19 of the Act of 2013 (as in the meantime, the Land Acquisition Act, 1894 has been repealed and Act of 2013 has been enacted). Once by operation of law, the reservation is deemed to have lapsed, it is lapsed for all purposes and for all times to come. {Para 12}Supreme Court
JUSTICE M.R. SHAH JUSTICE B.V. NAGARATHNA
The Kolhapur Municipal Corporation & Ors. Vs. Vasant Mahadev Patil (Dead) Through L.R.s & Ors.
CIVIL APPEAL NO. 510 OF 2022
14th February 2022
Author: M.R. SHAH, J.
Citation: 2022 ALL SCR (ONLINE) 165
It is true that in cases relating to orders for demolition of buildings, irreparable loss may occur if the structure is demolished even before trial, and an opportunity to establish by evidence that the structure was authorised and not illegal. In such cases, where prima facie case is made out, the balance of convenience automatically tilts in favour of plaintiff and a temporary injunction will be issued to preserve status quo. But where the plaintiffs do not make out a prima facie case for grant of an injunction and the documents produced clearly show that the structures are unauthorised, the court may not grant a temporary injunction merely on the ground of sympathy or hardship. To grant a temporary injunction, where the structure is clearly unauthorised and the final order passed by the Commissioner (of the Corporation) after considering the entire material directing demolition, is not shown to suffer from any infirmity, would be to encourage and perpetuate an illegality. {Para 31}
Bombay High Court
JUSTICE PRITHVIRAJ K. CHAVAN
Shantilal Chhogalalji Doshi & Anr. Vs. Municipal Corporation of Greater Mumbai & ANr.
In case of any conflict between the rules and regulations as framed under the provisions of the M.R.T.P. Act or the Development Regulation and Scheme Regulations in one hand and the building bye-laws framed by the provisions of Bombay Provincial Municipal Corporation Act, 1949, it is quite clear that regulations made under the MRTP Act would prevail. {Para 28}
Bombay High Court
JUSTICE PRITHVIRAJ K. CHAVAN
Shantilal Chhogalalji Doshi & Anr. Vs. Municipal Corporation of Greater Mumbai & ANr.
APPEAL FROM ORDER NO. 8 OF 2021
18th February 2021
Citation: 2021 NearLaw (BombayHC) Online 177
Print PageHowever, so far as the present matter is concerned, it has to be held that the construction of theatre by Respondent No. 3 in CTS No. 417 is within the prohibited area. He had no authority to construct such theatre. He has faulted the provisions of the M.R.T.P.Act and the M.M.Act. There was no valid permission for construction of the theatre. No permission could have been granted for construction of the theatre by the Municipal Council, Rahuri. Furthermore, even taking into consideration the provisions of section 5(b) of the Cinema Regulation Act, no licence can be issued for having a cinema theatre in that building, because it is not safe place to have cinema theatre. In such circumstance, the licence has to be revoked. So also, the building has to be demolished.{Para 67}
68. The learned Counsel for Respondent No. 3 has argued that this floodline is only imaginary line. No proper survey was made before drawing the floodline. There were no floods since 1947 in the area, where the floodline is provided for; and in such circumstances, merely on technicalities, the reliefs sought in the writ petition should not be allowed. However, we do not agree with this argument. It is amply brought on record that the concerned authorities had taken the survey, especially by the Engineers of the Irrigation Department. The Government also considered the matter on every aspect; and though at one stage, the Government was thinking of removing the floodlines, after reconsideration of the entire matter, decided to retain the floodlines and then the Notification of 1981 was issued. It is a precautionary measure taken by the Government for the safety of the residents of Rahuri town. There were no floods in the past, that does not mean that the precautionary measures be thrown to winds. The construction is unauthorised construction and it has to be treated like that.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
V.K. BARDE AND D.S. ZOTING, JJ.
Vithal Ramchandra Devkhar & Anr. Vs. The State Of Maharashtra & Ors.
Writ Petition No. 187 of 1989
18th January, 2001
Citation: 2001(3) ALL MR 872
Print PageFrom aforesaid, it is, therefore, clear that if any notice or order issued under said Act by any authority is sought to be challenged before the Civil Court, then in view of the finality given to such order passed or notice issued, the jurisdiction of the Civil Court would be ousted. However, if any action sought to be taken under said Act is alleged to be null and void and sought to be taken without even issuing any notice or passing any order, then the jurisdiction of the Civil Court is not ousted and the Civil Court can examine the validity of such action which is alleged to be null and void. Similarly, the plaint must contain all statements of material facts that are necessary to invest such jurisdiction with the Civil Court. {Para 11}
As held by the Division Bench in Digambar Sakharam Tambolkar Vs. Pune Municipal Corporation and others 1987 Mh.L.J. 419, the expression "permission granted under this Act or any other law" is wide enough to cover all kinds of permission granted to develop land. A person aggrieved by any permission to develop land can always move the Planning Authority to revoke or modify such permission. Hence, it cannot be said that no remedy whatsoever is available to a person who seeks to revoke or modify such permission. For aforesaid reasons, said submission cannot be accepted.
13. The trial Court while deciding the preliminary issue as regards jurisdiction of the Civil Court has, therefore, rightly found that the Civil Court had no jurisdiction to go into the validity of permission granted by the planning authority as per the sanctioned plan. It has further rightly found that the Civil Court had jurisdiction to the extent of examining whether the construction carried out by the respondent Nos.1 to 3 was contrary to the sanctioned plan.
2015(6) ALL MR 108
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
A. S. CHANDURKAR, J.
Satish s/o. Gayacharan Trivedi Vs. Dr. Gopal Ramnarayan Mundhada & Ors.
Writ Petition No.3004 of 2014
18th April, 2015.
Print PageIn the present case, the dispute between the parties is as to whether any permission was granted by the plaintiff to the defendants for the purpose of amalgamation of two plots or not and the plaintiff's specific case is that no such permission was given to the defendants either in the Development Agreement or in the Power of Attorney which was executed in their favour. The question which falls for consideration is as to whether the suit filed by the plaintiff can be tried in Civil Court or not. In order to appreciate the rival contentions, it would be necessary to examine relevant provisions. Section 149 of the M.R.T.P. Act, 1966 reads as under :-
"149. Finality of orders.- Save as otherwise expressly provided in this Act, every order passed or direction issued by the State Government or order passed or notice issued by any Regional Board, Planning Authority or Development Authority under this Act shall be final and shall not be questioned in any suit or other legal proceedings."
From the perusal of the said section, it is apparent that every order passed or direction issued by the State Government or order passed or notice issued by any Regional Board, Planning Authority or Development Authority under the Act shall be final and shall not be questioned in any suit or legal proceedings. The M.R.T.P. Act, 1966 empowers the Government to issue various orders or directions regarding numerous matters pertaining to either reservation or preparation of development plan etc. In my view, Civil Court's jurisdiction is ousted in respect of such matters where State Government or its authorities alone are empowered under the Act to adjudicate or decide any matter. In the present case, dispute is regarding the question as to whether the plaintiff had permitted the defendants to apply for amalgamation for the two plots or not. The dispute therefore is one which is arising out of the terms and conditions of the contract or the terms and conditions in the Power of Attorney which is executed by the plaintiff. In my view, therefore, bar of section 149 would not be applicable to the facts of the present case.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.M. KANADE, J.
M/S. Gadre Constructions & Ors.Vs.Sadashiv Keshav Sathe & Ors.
Civil Revision Application No.2213 of 2002
10th March, 2004
Citation: 2004(4) ALL MR 374,2004(4) Bom CR 596 Bom
Print PageAn appeal is therefore provided against the order granting permission or refusing permission under section 45. There is obviously no appeal against deemed permission under section 45(5) of the Act. The necessary corollary of this legal situation is that there can be a deemed permission under section 45(5) of the MRTP Act against which there is no appeal provided and there being no order made by any of the authorities there is no question of which acquiring finality as contemplated by section 149. Section 149 reads thus :{Para 11}
"149. Finality of orders.-
Save as otherwise expressly provided in this Act, every order passed or direction issued by the State Government or order passed or notice issued by any Regional Board, Planning Authority or Development Authority under this Act shall be final and shall not be questioned in any suit or other legal proceedings."
12. What is necessary under section 149 to acquire finality and invite the bar of civil suit is, it should be an order passed or direction issued by the State Government or it should be an order passed or notice issued by any Regional Board, Planning Authority or Development Authority under this Act. It is provided by this section that no such order shall be questioned in any suit or in any legal proceedings. It is obvious therefore that a suit or legal proceedings for quashing a deemed permission under section 45(5) is maintainable. Even otherwise under section 149 what is barred is questioning of an order made under the Act in the civil suit. It does not bar any suit whereby a party to it can be prevented from acting on an action and order made under the Act. The bar spelt out by section 149 is therefore very limited.
13. In our opinion therefore, the contention of Mr. V. V. Tulzapurkar that a civil suit is barred by reason of the provisions of section 149 of MRTP Act is unacceptable.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.G. PALSHIKAR AND P.V. KAKADE, JJ.
The Raja Bahadur Motilal Poona Mills Ltd. & Anr. Vs. State Of Maharashtra & Ors.
Writ Petition No.2591 of 2001
26th July, 2002
Citation: 2002(4) ALL MR 429,2003(1) BOM CR 251
