1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO. 2376/2010 (Indus Towers Limited and another vs. State of Maharashtra and and others ) .................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... CORAM : D.D.SINHA & A.P.BHANGALE, JJ DATED : 18th January, 2011. Heard Mr. A.M.Gordey, Senior Advocate with Mr Atul S. Chandurkar and Mr. Sameer Adkar, learned Advocates for the petitioners; Shri S.K.Mishra, learned Advocate for Respondent No.2-Nagpur Improvement Trust; Mr J.B. Kasat, learned Advocate for Respondent No.3 - Nagpur Municipal Corporation and Mr. A.G. Majumdar, learned Assistant Government Pleader for respondent No.1 -State. 2. The petitioners are the Mobile Service providers and the mobile tower owners. They have challenged the action of the Nagpur Improvement Trust (in short “N.I.T.”) in sealing their mobile towers and intending to 2 seal mobile towers by resorting to the provisions of the Section 53 of the Maharashtra Regional and Town Planning Act, 1966 (in short “the M.R.T.P. Act”). 3. Mr. Gordey, learned senior counsel has submitted that the petitioners pursuant to the notice issued by the Nagpur Municipal Corporation (in short “the N.M.C.”), a Planning Authority, had made applications for permission for development under section 44 of the M.R.T.P. Act. The petitioners have also paid requisite amount/ fees to the N.M.C. It is submitted that the applications submitted by the petitioners under section 44 of the M.R.T.P. Act are pending for decision before the N.M.C. 4. Learned senior counsel has submitted that the N.I.T. issued notice u/s. 53 of the M.R.T.P. Act while the applications of the petitioners under section 44 of the M.R.T.P. Act were pending for decision before the N.M.C. and initiated action of sealing of towers belonging to the petitioners. It is contended that the notices were issued by the N.I.T. since the petitioners failed to obtain necessary permission contemplated under section 44 of the M.R.T.P. Act from the N.I.T., which is the Planning Authority for the said area and, therefore, the action u/s. 53 of sealing/removal of those towers was initiated by the N.I.T. 3 5. Learned senior counsel has submitted that the petitioners submitted the applications to the N.M.C. u/s 44 with the requisite fees on the premise that the N.M.C. is the Planning Authority for the area where the petitioners have erected towers. However, if the Planning Authority for the said area is N.I.T., in that event, it is for the N.M.C. to transfer the applications submitted by the petitioners u/s 44 of the said Act along with the requisite fees to the N.I.T. for necessary decision to be taken in view of the provisions section 44 of the said Act and the N.I.T. at this stage is not entitled to initiate action under section 53 of the M.R.T.P. Act. 6. Learned senior counsel has submitted that this Court passed an interim order in the present petition (i.e. W.P.No. 2376/2010 ) dated 11th May 2010 and, in one of the paragraphs of the said order, has observed thus: “ In view of the undisputed position in regard to the facts of the case and on hearing the learned counsel for the parties and going through the order passed by the State Government on 26.1.2007 it appears that the petitioners have made out a strong prima facie case for grant of ad-interim relief. It is not in dispute that the petitioners have applied to the NMC under section 44 of 4 the Act of 1966 and have paid necessary fees for permission for development. In such circumstances, it is rightly submitted on behalf of the petitioners that the N.I.T. cannot expect the petitioners to file separate applications before the N.I.T. under section 44 of the Act. The N.M.C. should transfer the applications filed by the petitioners before the N.M.C. to N.I.T. in respect of the areas over which the N.I.T. has the jurisdiction as a planning authority. “ 7. Learned senior counsel has submitted that by virtue of the said interim order, the N.I.T. was also directed to de-seal the mobile towers or cell sites and the petitioners shall be permitted to operate their service from the mobile towers. The authorities accordingly de-sealed those towers and the petitioners are operating from those mobile towers as on today. Learned senior counsel further contended that the interim order may kindly be continued till such time the N.I.T. decides the applications of the petitioners and take a decision thereon. 8. Mr. J. B. Kasat, learned counsel for N.M.C. has submitted that the Nagpur Municipal Corporation has already transferred all the applications submitted by the petitioners u/s 44 of the M.R.T.P. Act to the N.I.T. in respect of the areas where the towers are erected by the 5 petitioners and which falls which within the jurisdiction of N.I.T. It is further submitted that the amount received by the N.M.C. along with said applications towards fees shall also be transferred to N.I.T. within a period of four weeks from today. 9. Mr S.K.Mishra, learned Advocate for N.I.T. has submitted that if the applications are transferred by N.M.C. and if those applications are received by the N.I.T. the same will be decided according to law and procedure applicable in this regard, within a period of two weeks from the date of receipt of the requisite amount, submitted by the petitioners along with their applications to the N.M.C. 10. We have taken into consideration the contentions canvassed by the respective counsel. In view of the undisputed facts, it is evident that the petitioners have submitted applications seeking permission for development u/s 44 of the M.R.T.P. Act to the N.M.C. who, in fact, is not the Planning Authority for the area where the mobile towers were erected by the petitioners. It is also not in dispute that the requisite fees were already paid by the petitioners along with the applications to the N.M.C. Since the Planning Authority for the area where the towers are erected by the petitioners is N.I.T., the N.M.C. has rightly transferred the applications of 6 the petitioners u/s 44 of the M.R.T.P. Act to the N.I.T. Mr Kasat learned counsel for the N.M.C. has also submitted that the requisite amount received by the N.M.C. along with the applications shall also be transferred to the N.I.T. within a period of four weeks from today. It is also not in dispute that by interim order dated 11th May, 2010 passed in the Writ petition No. 2376/2010, the N.I.T. was directed to de-seal the towers which have been done by the N.I.T. 11. Mr. Mishra, learned counsel for the N.I.T. has submitted that though the notices were issued by the N.I.T. to the petitioners for taking action under section 53 of the said Act, however, no action shall be taken pursuant to the said notice till such time the decision is taken on the applications of the petitioners under section 44 of the M.R.T.P. Act. 12. On the backdrop of the above-referred facts, we dispose of the petitions and direct the N.I.T. to decide the applications of the petitioners u/s. 44 of the M.R.T.P. Act ( transferred from N.M.C.) by following the principles of natural justice. 13. At this stage, learned senior counsel has submitted that the effect and operation of the interim order granted by this Court dated 11th May, 7 2010 may be continued till the decision is taken by the N.I.T. on the applications submitted by the petitioners under section 44 of the M.R.T.P. Act and, in the interest of justice, the interim order may be continued for a period of two weeks from the date of decision of the N.I.T. on those applications. 14. In the interest of justice, interim protection granted by this Court vide order dated 11th May, 2010 shall continue till decision is taken by the N.I.T. on the applications of the petitioners under section 44 of the M.R.T.P. Act as well as for a period of two weeks thereafter. We want to make it clear that no tower shall be erected by any service provider without following the legal procedure applicable in this regard. 15. Writ Petition is disposed of accordingly. JUDGE JUDGE sahare