1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7396 OF 2008 WRIT PETITION NO. 7396 OF 2008 WRIT PETITION NO. 7396 OF 2008 Vodafone Essar Ltd. ... Petitioners Versus The State of Maharashtra & Ors. ... Respondents Mr. Arif Bookwala, Senior Counsel i/b. Mr. Punit B.Anand, Advocate, for the petitioners. Mr. N.R.Bubna, Advocate for Respondent no.2. Mr. P.P.Kakade, AGP, for the State. CORAM: BILAL NAZKI & J.H.BHATIA,JJ CORAM: BILAL NAZKI & J.H.BHATIA,JJ CORAM: BILAL NAZKI & J.H.BHATIA,JJ. DATED: 12th November, 2008. DATED: 12th November, 2008. DATED: 12th November, 2008. P.C. P.C. P.C. 1. The Petitioners are a Company providing services of mobile telephone. According to petitoners, f or this purpose, the Petitioners submitted an application on 7.12.2006 to the Assistant Director, Town Planning, Thane Municipal Corporation with plan showing the position of Telecommunication Temporary Cabin and Antenna, its size, location plan, block plan, etc. 2 seeking permission for erection of the telecommunication Cabin Antenna on DNS Tower, a building owned by DNS Tower co-operative Housing Society. The Municipal Corporation did not take any decision on their application nor communicated rejection of that application for long time. However, the petitioners were shocked to receive a notice under Section 260(1) of the Bombay Provincial Municipal Corporation Act, 1949 issued by respondent No.5 on 27.8.2008 contending that the said construction was illegal and the petitioners were called upon to show cause why the said Cabin and the Antenna should not be removed. On 14.10.2008, the petitioners received an order dated 3.10.2008 passed by respondent No.5 under Sectiion 260(2) directing removal of the said Cabin and the Antenna within 30 days,failing which action would be taken by the respondents to remove the same. According to the petitioners, the said notice and the order are illegal, without authority of law and without jurisdiction and, therefore, they are liable to be quashed and set aside. Accordingly, the petitioners by this Writ Petition, seek the relief to quash and set aside the said notice and the order. 2. Heard the learned Counsel for the parties. Perused the copies of the relevant documents filed by the petitioners. 3 3. Mr. Bookwalla, the learned Senior Counsel for the petitioners vehemently contended that on 9.10.1996, the Urban Development Department of the Government of Maharashtra had issued a Circular to all the Municipal Commissioners except Brihan Mumbai Municipal Corporation, whereby Directive was issued under Section 154 of the Maharashtra Regional and Town Planning act, 1966 (for short "MRTP Act") in respect of the Development Control Regulations, particularly in respect of the installation of cabin and antenna by the telephone connectors as per the requirements of the Department of Telecommunication and he contended that in view of the said direction, the Municipal Corporation could not issue any notice nor could pass any order for removal of the cabin and the antenna constructed by the petitioners for the purpose of providing cellular and telephone facilities to a large number of customers in that area. The relevant part of the said circular reads as follows :- "All the Corporations (except Brihan Mumbai Municipal Corporation) shall initiate a proposal of modification under Section 37 of the Maharashtra Regional and Town Planning Act, 1966 to incorporate a provision in the 4 Development Control Regulations at suitable place as follows : The area of one room for installation of telephone connectors as per the requirements of the Department of Telecommunication or the companies authorized on that behalf but not exceeding 20 sqm. per building with the written permission of the Commissioner, can be permitted free of FSI. Where similar provision is already existing in the DC Regulations, the said provision can be made operative to the companies to whom valid license is issued by the Department of Telecommunication." On perusal of this, it becomes clear that all the Corporations were directed to initiate a proposal for modification of the Development Control Regulations in order to incorporate a provision whereby an area of one room for installation of telephone connectors by the Department of Telecommunication or the companies authorized on that behalf, not exceeding 20 sqm. per building, could be allowed to be constructed free of 5 FSI. It only means that such construction would not be counted for the purpose of FSI consumed for construction of building. The direction clearly shows that such construction could also be made with written permission of the municipal Commissioner. In our considered opinion, this does not authorise the petitioners to make construction without obtaining the necessary permission from the Municipal Corporation. Admittedly, the petitioners have not obtained any permission for construction or erection of the cabin and the antenna on the DNS Tower even though they claim to have submitted a proposal for permission on 7.12.2006. 4. The learned Senior Counsel for the petitioners vehemently contended that in view of the provisions of Section 45(5) of the MRTP Act, the Planning Authority, on receipt of an application under Section 44 for construction etc., has to take a decision and communicate the same to the applicant within sixty days. If the Planning Authority does not communicate its decision whether to grant or refuse permission to the applicant within sixty days from the date of receipt of his application, or within sixty days from the date of receipt of reply from the applicant in respect of any requisition made by the Planning Authority, whichever is later, such permission shall be deemed to have been 6 granted to the applicant on the date immediately following the date of expiry of sixty days. There can be no dispute about this legal proposition. However, from this provision, it is clear that after submitting the application for permission, the applicant has to wait minimum for sixty days. Only if till expiry of such period, the Planning Authority does not communicate its decision to grant or to refuse permission, then only the permission shall be deemed to have been granted on the date immediately following the date of expiry of sixty days and then the applicant can commence the construction as per the plan submitted by the applicant. However, he cannot commence any such construction before expiry of such period and if he makes such construction, that construction would be illegal and cannot be protected. In the present case, the petitioners admit that the construction was completed and commissioned on 21.1.2007. As the application seeking permission was submitted on 7.12.2006 and construction was completed and the antenna was commissioned on 21.1.2007, even as per the admission of the petitioners, it is clear that the petitioners not only commenced but also completed the construction long before the expiry of period of sixty days. In view of these circumstances, the petitioners cannot claim to have secured deemed permission under Section 45(5) of the MRTP Act. The 7 construction which is illegal, ab initio cannot be deemed to have become legal merely because the order granting or refusing permission was not communicated within sixty days from the date of application. 5. In view of the facts and circumstances and the legal position, we are satisfied that the petitioners erected the cabin and the antenna on the DNS Tower without obtaining necessary permission as required under the law and, therefore, the Municipal Authorities are within their power to issue notice under Section 260(1) of the Bombay Provincial Municipal Corporation Act to show cause why the building or work should not be removed, altered or pulled down and if no satisfactory or sufficient cause is shown under Sub-section (2), the Municipal Corporation is within its power to pass order and then to remove,alter or pull down such building or work which has been constructed illegally and without proper permission from the competent authority. IN view of this, we find no illegality or irregularity in the notice issued and the order passed by the Municipal Authorities. Therefore, we do not find any material on the basis of which the said notice and the order could be quashed. 6. For the aforesaid reasons, the Petition stands 8 dismissed. (BILAL NAZKI,J) (BILAL NAZKI,J) (BILAL NAZKI,J) (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)