Madhya Pradesh High Court
Viom Networks Ltd. vs The State Of Madhya Pradesh on 19 September, 2024
Author: Gurpal Singh Ahluwalia
Bench: G.S. Ahluwalia
NEUTRAL CITATION NO. 2024:MPHC-JBP:47821
1 W.P. No.10057/2012
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE G.S. AHLUWALIA
ON THE 19th OF SEPTEMBER, 2024
WRIT PETITION No.10057 of 2012
VIOM NETWORKS LTD.
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
............................................................................................................................................
Appearance:
Shri Raghvendra Singh Raghuwanshi - Advocate for the petitioner
through Video Conferencing.
Ms. Shraddha Tiwari - Panel Lawyer for respondent No.1/State.
Shri A.H. Khan - Advocate for respondents No.2 & 3.
Shri Sanjeev Tuli - Advocate for the intervenor.
............................................................................................................................................
ORDER
This petition under Article 226 of Constitution of India has been filed against show cause notices dated 17/05/2012 and 18/05/2012, by which petitioner has been called upon to produce NOC as well as the relevant documents, by which they had got permission to install mobile towers at different places as mentioned in the list appended to the show cause notices.
2. It is submitted by counsel for petitioner that petitioner submitted its reply on 24/05/2012 pointing out that out of 41 sites which have been mentioned in the list appended to show cause notices dated 17/05/2012 and 18/05/2012, only 22 sites belong to the petitioner. It was further claimed that small sized Roof Top Poles (RTP) cannot be legally considered at par with the big sized full fledged telecommunication tower. These RTPs are installed on high rise buildings therefore, does Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 23-09-2024 10:41:21 NEUTRAL CITATION NO. 2024:MPHC-JBP:47821 2 W.P. No.10057/2012 not require full infrastructure as compared to a telecommunication tower. Therefore the State Government had also not included RTPs in various circulars issued by it. The telecommunication infrastructure companies have also submitted a joint representation to the Department of Urban Administration and Development Department, Government of M.P. for framing a new policy in order to bring uniformity across the State of Madhya Pradesh as well as to eradicate ambiguity regarding fees and NOC for installation of towers including RTPs. It is submitted that as per the provisions of M.P. Municipal Corporation Act, 1956 (in short „Act, 1956‟) as well as circulars dated 14/03/2002, 04/05/2005, 12/06/2006, 17/04/2007 issued by Department of Urban Administration and Development, Government of M.P, it was provided that in case if the NOC is not granted within a period of 15 days, then it shall be deemed to be granted. In spite of follow ups by the representatives of the petitioner, neither a demand note has been issued for depositing prescribed NOC fee nor formal NOC has been issued till date for the sites, therefore there is a deemed NOC.
3. Challenging the show cause notices, it is submitted by counsel for petitioner that Section 293 of Act, 1956 deals with erection/ re-erection of buildings. It is further submitted that the towers situated in Royal Residency and Saeed Colony have already been demolished on 24/05/2012. It is submitted that Section 295(3) of Act, 1956 deals with the period during which the orders regarding permission/ refusal to erect/ re-erect the building is to be passed and in case if the Commissioner fails to pass such an order, then the permission shall be deemed to have been sanctioned except in so far as it may contravene to rule or byelaw or any town planning scheme sanctioned under this Act.
Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 23-09-2024 10:41:21NEUTRAL CITATION NO. 2024:MPHC-JBP:47821 3 W.P. No.10057/2012 It is submitted that as per the various circulars dated 14/03/2002, 04/05/2005, 15/07/2005, 27/09/2005, 12/06/2006 and 17/04/2007 if the application for grant of permission is not decided within a period of 15 days, then it shall be presumed that there is a deemed permission and accordingly, it is submitted that the impugned show cause notices are bad in law. It is submitted by counsel for petitioner that as per the definition of "building" as defined under Section 5(7) of Act, 1956, it is clear that word "building" includes a house, outhouse, shed, hut and other enclosure or structure whether of masonry, bricks, wood, mud, metal or any other material whatever, whether used as a human dwelling or otherwise, and also includes verandahs, fixed platforms, plinths, doorsteps, walls including compound walls, and fencing and the like but does not include a tent or a temporary shed erected on ceremonial or festive occasions. Therefore, it is submitted that tower installed on the Roof Top would also be a building as provided under Section 293 of Act, 1956.
4. Per contra, petition is vehemently opposed by counsel for Municipal Corporation. It is submitted by counsel for Municipal Corporation that the provisions of Section 293 of Act, 1956 would not apply. In fact the provisions of Madhya Pradesh Nagar Palika (Installation of Temporary Tower/ Structure For Cellular Mobile Phone Service) Rules, 2012 (in short „Rules, 2012‟) would apply and there is no provision regarding deemed permission. It is submitted that the permission has to be obtained under the Rules, 2012 and thus the petitioner has installed the towers without obtaining necessary permissions.
5. Heard learned counsel for the parties.
Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 23-09-2024 10:41:21NEUTRAL CITATION NO. 2024:MPHC-JBP:47821 4 W.P. No.10057/2012
6. First of all, this Court would like to observe that this petition has been filed against the show cause notice. Show cause notice does not give rise to any cause of action unless and until show cause notice has been issued by an unauthorized Authority or contrary to the provisions of law.
7. The Supreme Court in the case of Union of India and another Vs. Kunisetty Satyanarayana reported in (2006) 12 SCC 28 has held as under :-
"13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board vs. Ramesh Kumar Singh and others JT 1995 (8) SC 331, Special Director and another vs. Mohd. Ghulam Ghouse and another AIR 2004 SC 1467, Ulagappa and others vs. Divisional Commissioner, Mysore and others 2001 (10) SCC 639, State of U.P. vs. Brahm Datt Sharma and another AIR 1987 SC 943 etc."
8. Furthermore, petitioner has raised a very disputed question of fact. It is the contention of petitioner that an application for grant of permission to install tower was made and since the permission was not refused within a period of 15 days, therefore it has to be presumed that there is a deemed permission. However, petitioner has not raised this defence in its reply to show cause notices. The date on which application for grant of permission was filed has not been specifically clarified in the Writ Petition. Furthermore, this question should have been raised before the Authorities.
9. So far as the applicability of Rules, 2012 is concerned, the said Rules were published in M.P. Rajpatra (Asadharan) on 06/10/2012. As Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 23-09-2024 10:41:21 NEUTRAL CITATION NO. 2024:MPHC-JBP:47821 5 W.P. No.10057/2012 per Rule 1(3) of Rules, 2012, it shall come into force from the date of its publication in the Gazette. Therefore, it is clear that Rules, 2012 are prima facie prospective in nature. However, it is clear from show cause notices dated 17/05/2012 and 18/05/2012 that the Corporation had already alleged that the towers have been installed contrary to the permission. Therefore it is clear that the towers were already installed prior to coming into force of Rules, 2012.
10. Under these circumstances, this Court is of considered opinion that since disputed questions of facts are involved with regard to the date of installation of towers, the date on which application to install such tower was made to Municipal Corporation and whether there was any deemed permission or not, therefore this petition is disposed of with following observations:-
(i) Petitioner shall file its detailed reply before the Commissioner, Municipal Corporation Bhopal within a period of 15 days from today pointing out the date of installation of their towers at the respective sites.
(ii) Petitioner shall also file a copy of application filed by them before the Commissioner, Municipal Corporation Bhopal for grant of permission to erect/ re-erect the building.
(iii) The Commissioner, Municipal Corporation Bhopal shall verify whether such application was filed on the date so claimed by petitioner or not and whether the application was decided or not?Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 23-09-2024 10:41:21
NEUTRAL CITATION NO. 2024:MPHC-JBP:47821 6 W.P. No.10057/2012
(iv) If petitioner fails to point out the filing of application for installing a tower at a particular site or if it is found that said application was already rejected and in spite of that tower has been installed, then such tower shall be treated to be an illegally installed tower and the Municipal Corporation Bhopal shall be free to take action in accordance with law.
(v) The Commissioner, Municipal Corporation Bhopal shall be free to decide the impugned show cause notices dated 17/05/2012 and 18/05/2012 on any other grounds also which may be available.
(vi) It is made clear that in case if a detailed reply along with copies of the applications, as directed in para 10(i) & (ii), is not filed within a period of 15 days from today, then it shall be presumed that petitioner has nothing to say against the impugned show cause notices dated 17/05/2012 and 18/05/2012 and Commissioner, Municipal Corporation Bhopal shall be free to proceed further in accordance with law.
11. With aforesaid observations, petition is finally disposed of.
(G.S. AHLUWALIA) JUDGE S.M. Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 23-09-2024 10:41:21