Bombay High Court
INDUS TOWERS LIMITED AND ANRversusTHE STATE OF MAHARASHTRA AND ANR
- Decided
- Disposal
- Allowed
Holding
The FIR was premature and filed without the requisite sanction under Section 142 of the MRTP Act, and therefore the criminal proceedings were quashed.
Summary
The petitioners, Indus Towers Ltd. and an individual, sought to quash FIR No. 37 of 2020 registered under Section 53(7) of the Maharashtra Regional Town Planning Act (MRTP Act) for allegedly unauthorised erection of a telecom tower. The municipal council had issued a 15‑day notice under Section 189 of the Maharashtra Municipal Councils Act and a 24‑hour notice under Section 53(1) of the MRTP Act, but the FIR was lodged before the expiry of the 15‑day period. The petitioners contended that prosecution required prior sanction under Section 142 of the MRTP Act and that the Assistant Town Planner lacked authority to file the FIR. The court held that the FIR was premature, no sanction under Section 142 had been obtained, and the delegation of power under Section 77(2) of the Municipal Councils Act did not extend to the MRTP Act. Consequently, the FIR and the ensuing criminal proceedings were quashed. The petition was allowed.
Issues considered
- Whether an FIR under Section 53(7) of the MRTP Act can be registered before the expiry of the notice period prescribed under Section 189 of the Maharashtra Municipal Councils Act.
- Whether prosecution for an offence under the MRTP Act requires prior sanction under Section 142 of that Act.
- Whether the Assistant Town Planner could validly file the FIR by virtue of delegation under Section 77(2) of the Maharashtra Municipal Councils Act.
- Whether the MRTP Act applies to the erection of a telecom tower in view of the Telecom Infrastructure Policy, 2018.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 482
- Maharashtra Regional Town Planning Act, 1966 — s. 142, 152, 53(1), 53(6), 53(7)
Subjects
- unauthorised development
- FIR quash
- MRTP Act
- Section 142 sanction
- telecom tower
- planning authority
- premature prosecution
- delegation of powers
Judgment
SPG WP-2009-2021.doc
S
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2009 OF 2021
SUPRIYA
PRAMOD 1. Indus Towers Limited,
JAWARE
Digitally signed by
A Company incorporated under
SUPRIYA
PRAMOD JAWARE
Date: 2026.09.11
19:15:27 +0530
The Companies Act, 1956, having its
Registered office at Building No.10,
Tower A, 4th Floor, DLF Cyber City,
Gurugram 122002
And
Having its Circle Office at
Office No. 2010, 2nd Floor,
‘E’ Wing, “Marvel Edge”, S.No.207,
Hissa No.2A/1, Village Logegaon &
Vadgaonsheri, Taluka Haveli, Nagar Road,
Vimannagar, Pune 411014
Through Authorized Representative
of Petitioner No.1,
Shri. Sandip Ganpat Thakur,
Age-Adult, Occ- Service
2. Shri. Bandu Vishnu Khandagale,
Age-48 years, Occ.: Business,
Ichapurti Building, Belsare Galli,
Datar Aali, Fhanas Dongri, Pen,
Taluka- Pen, District-Raigad. … Petitioners
V/s.
1. The State of Maharashtra,
Through the In charge Police Officer,
Pen Police Station,
Taluka-Pen
District-Raigad.
2. Pen Nagar Parishad, Pen,
Through the Chief Officer,
Taluka-Pen, Dist-Raigad
… Respondents
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______________________
Mr. Anil Anturkar, Senior Counsel i/b Adv. Sugandh Deshmukh a/w Mr.
Vaibhav Thorve, Adv. Irvin D’souza for the Petitioner.
Mrs. Megha Bajoria, A.P.P. for Respondent -State.
Ms. Priyanka Bhadrashete for Respondent No.2.
______________________
CORAM : RANJITSINHA RAJA BHONSALE, J.
RESERVED ON : 9th JULY 2026.
PRONOUNCED ON : 11th SEPTEMBER 2026.
JUDGMENT :-
1) By the present Petition, filed under Article 226 of the Constitution
of India and Section 482 of Code of Criminal Procedure, 1973 (for short
‘CrPC’) (now Section 528 of the BNSS), the Petitioners, seek to quash and set
aside the F.I.R. No. 37 of 2020 dated 12 th March 2020 registered with the Pen
Police Station, Raigad under sections 53(7) of the Maharashtra Regional Town
Planning Act, 1966 (for short ‘MRTP Act’) as also the subsequent chargesheet
filed in Summary Case No.159 of 2020.
2) Heard, Mr. Anil Anturkar, learned Senior Advocate for the
Petitioners, Ms. Megha Bajoria, A.P.P for Respondent -State and Mr. Priyanka
Bhadrashete for Respondent No.2.
3) The brief facts of the case are as under: -
3.1) The Petitioner company is engaged in the business of establishing,
maintaining and providing telecommunication infrastructure including mobile
towers.
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3.2) On 5th January 2020, the Petitioner submitted proposal and
requested for permission for installation of telecommunication tower and
other equipment on the premises i.e. survey No. 1923(B) within the
jurisdiction of the Pen Municipal Council. The request was for installation of a
ground base tower.
3.3) On 2nd March 2020, Respondent No.2 directed the Petitioners to
resubmit the proposal due to certain changes in the telecom policies and
issuance of new government resolution. The Petitioners without any valid
permissions, authorisations and in fact contrary to their own proposal, started
and continued work of installing the mobile tower on the top of a building.
This was contrary to the proposal, without permission and unauthorised.
3.4) On 2nd March 2020, the Respondent issued a notice under Section
189 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial
Township Act, 1965 calling upon the Petitioners to remove the unauthorised
construction of the mobile tower within a period of 15 days, failing which
appropriate legal action would be taken.
3.5) On 3rd March 2020, notice under Section 53(1) read with Section
152 of the MRTP Act was issued contending that the tower amounted to
unauthorized development. The Petitioners were called upon to remove the
unauthorised construction within a period of 24 hours.
3.6) On 12th March 2020, FIR bearing C.R. No. 37 of 2020 came to be
registered with Pen Police Station under Section 53(7) of the MRTP Act. On
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14th March 2020, notice under Section 41A (1) of the CrPC was issued. By
reply dated 17th March 2020, Petitioner furnished information and replied to
the investigating agency.
3.7) On 7th July 2020, Petitioners resubmit the proposal for
permission/No Objection Certificate (NOC) for installation of
telecommunication tower and other equipment.
3.8) The Petitioners seek to challenge the FIR bearing C.R. No. 37 of
2020 and the consequent chargesheet arising out of C.R. No. 37 of 2020.
4) Mr. Anil Anturkar, learned Senior Advocate appearing for the
Petitioners submitted that: -
4.1) The FIR as filed is premature in as much as it is filed before the
expiration of time granted to the Petitioners for removal of the tower. That,
under Section 53(1) of MRTP Act, when notice is issued in respect of
development carried out without permission or in contravention of the
permission granted, the Planning Authority is required to grant the noticee,
the period specified in the notice for complying with the direction contained
in the said notice. That, Respondent No.2 granted 24 hours for removal of the
alleged unauthorised construction which is totally unreasonable and
inadequate.
4.2) The prosecution could have been initiated only upon the failure
of the Petitioner to comply with the said notice. In the present case, notice
was issued on 2nd March 2020 and 15 days period was given for compliance
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thereof. In respect of the notice dated 3rd March 2020, a period of 24 hours
was given to dismantle the tower.
4.3) Even according to the allegations mentioned in the FIR, the
period of 15 days which was granted would have expired only on 17 th March
2020. However, the FIR has been registered on 12 th March 2020 much prior to
the expiry of the notice period. Therefore, FIR is premature.
4.4) The complainant has no authority to lodge the prosecution. The
MRTP Act clearly provides that, the competent person to file the complaint
was the Chief Officer of the Pen Nagar Parishad. That, powers delegated under
Section 152 of the MRTP Act, cannot be further sub-delegated in the absence
of any authorization. The Assistant Town Planner had no authority to institute
the prosecution. The compliance of Section 142 of the MRTP Act has not been
done. Initiation of prosecution without the statutory sanction and
authorization as contemplated under Section 142 of the MRTP Act is
untenable in law. Therefore, the FIR is unsustainable.
4.5) The MRTP Act is a special enactment. Under Section 142 of the
MRTP Act, no prosecution for any offences punishable under the Act, or the
Rules shall be instituted or no prosecution instituted shall be withdrawn,
except with the previous sanction of the Regional Board, Planning Authority,
or as the case may be a Development Authority or any officer authorized by
such Board or Authority in his behalf. That, the said sanction as required
under Section 142 of the Act has not been taken.
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4.6) That, the Respondent No.2 was issued notice dated 2 nd March
2020 relied upon the notification dated 4 th March 2014, which was
superseded by the Telecom Infrastructure Policy dated 17 th February 2018.
That, actions of Respondent No.2 are illegal and contrary to the Telecom
Infrastructure Policy of 2018. That, the installation of the telecommunication
towers being governed by the telecom Infrastructure Policy 2018 and DoT
guidelines, the provisions of the MRTP Act would not be applicable.
5) Ms. Priyanka Badrashete, the learned Advocate appearing for the
Respondent No.2 submitted that: -
5.1) Under Section 2(20) of the Maharashtra Municipal Councils
Nagar Panchayat and Industrial Township Act, 1965 read with Section 2(19)
of the MRTP Act, the Respondent No.2 was authorised through its authorised
officer to file the present FIR.
5.2) The Petitioners Application for permission/NOC for installation of
the telecommunication tower in City Survey No. 1923(B) situated at
Fanasdongri was for ‘Tower Type- Ground Based Tower’. That, Respondent
No.2 inspected the site on 26 th February 2020 and found that, the pillars were
already erected and the tower work was been carried out on the terrace of a
building without permissions. By letter dated 2 nd March 2020, Respondent
No.2 informed the Petitioner to comply with the requirements and submit all
documents. That, on 2nd March 2020, notice was given to remove the illegal
work within a period of 15 days. Again, on 3 rd March 2020, a notice under
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Section 53(1) and 152 of the MRTP Act, was issued to the Petitioner and the
owner of the land, calling upon them to remove the construction within a
period of 24 hours. It was submitted that, though a permission was sought for
‘Ground based Tower’ the construction was carried out on the terrace of the
building therefore, the construction was completely illegal and unauthorized.
The Application seeking permission was itself misleading.
5.3) Under Section 77 (2) of the Maharashtra Municipal Councils,
Nagar Panchayat and Industrial Township Act, 1965, the Authority can
delegate the power to file complaint.
5.4) After the FIR was filed on 12th March 2020, the Petitioner
submitted a fresh Application for permission on 7 th July 2020. This indicates
that, the initial erection of the mobile tower was unauthorised and illegal. All
the documents were not submitted with the initial Application dated 5 th
January 2020, therefore, by letter dated 2 nd March 2020, the Petitioners were
requested to submit all documents. It is for this reason that, the Application
was pending. That, notice dated 2 nd March 2020 is given under Section 189 of
the Maharashtra Municipal Councils, Nagar Panchayat and Industrial
Township Act,1965 in view of the inspection which was carried out on 26 th
February 2020. That, the work was commenced and continued without taking
any kind of permission.
5.5) As work was continued without permission, a fresh notice was
issued on 3rd March 2020. On, 7th July 2020, a fresh Application was
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submitted for permission of “Tower Type- Roof Type Poll”. That, the work of
installation of the tower was without permission, documents required in
compliance were not submitted. That, the Petitioners on the purported ground
of permission continued the work on the roof top when permission was sought
for ‘Tower Type-Ground Based Tower’.
5.6) The Respondent No.2, i.e. Pen Municipal Council is a local
authority and Planning Authority as defined under Section 2(19) of the MRTP
Act. Under Section 152 of the MRTP Act, powers and functions of the
Planning Authority under, inter alia, Sections 51, 53, 126(1)(b) shall be
exercised and performed by Officers in the case of Municipal Counsel Towers.
6) Ms. Megha Bajoria, learned APP appearing for the State adopted
the arguments advanced by Ms. Priyanka Bhadrashete, learned Advocate for
the Respondent No.2.
7) Before proceeding to consider the matter on merits it would be
necessary to refer to the legal provisions and certain Judgments which are
relevant for the issues in the present matter.
7.1) Section 53 of the MRTP Act reads as under: -
“53. Power to require removal of unauthorised development.
[(1) (a) Where any development of land has been carried out as
indicated in clause (a) or (c) of sub-section (1) of section 52, the
Planning Authority may, subject to the provisions of this section,
serve on the owner, developer or occupier a prior notice of 24 hours
requiring him to restore the land to conditions existing before the
said development took place;
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(b) if the owner, developer or occupier fails to restore the land
accordingly, the Planning Authority shall immediately take steps to
demolish such development and seal the machinery and materials
used or being used therefor.
(1A) Where any development of land has been carried out as
indicated in clause (b) or (d) of sub-section (1) of section 52, the
Planning Authority may, subject to the provisions of this section,
serve one months' notice on the owner, developer or occupier
requiring him to take necessary steps as specified in the notice.]
(2) In particular, such notice may, for purposes of sub-section (1),
require-
(a)the demolition or alteration of any building or works;
(b)the carrying out on land of any building or other operations; or
(c)the discontinuance of any use of land.
(3) Any person aggrieved by such notice may, within the period
specified in the notice and in the manner prescribed, apply for
permission under section 44 for retention on the land of any building
or works or for the continuance of any use of the land, to which the
notice relates, and pending the final determination or withdrawal of
the application, the mere notice itself shall not affect the retention of
buildings or works or the continuance of such use.
(4)The foregoing provisions of this Chapter shall, so far as may be
applicable apply to an application made under sub-section (2).
(5)If the permission applied for is granted, the notice shall stand
withdrawn; but if the permission applied for is not granted, the
notice shall stand; or if such permission is granted for the retention
only of some buildings, or works, or for the continuance of use of
only a part of the land, the notice shall stand withdrawn as respects
such buildings or works or such part of the land, but shall stand as
respects other buildings or works or other parts of the land, as the
case may be, and thereupon, the owner shall be required to take
steps specified in the notice under sub-section (1) as respects such
other buildings, works or part of the land.
(6)If within the period specified in the notice or within the same
period after the disposal of the application under sub-section' (4), the
notice or so much of it as stand is not complied with, the planning
Authority may-
(a)prosecute the owner for not complying with the notice; and
where the notice requires the discontinuance of any use of land
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any other person also who uses the land or causes or permits
the land to be used in contravention of the notice; and
(b)where the notice requires the demolition or alteration of any
building or works or carrying out of any building or other
operations, itself cause the restoration of the land to its
condition before the development took place and secure
compliance with the conditions of the permission or with the
permission as modified by taking such steps as the Planning
Authority may consider necessary including demolition or
alteration of any building or works or carrying out of any
building or other operations; and recover the amount of any
expenses incurred by it in this behalf from the owner as arrears
of and revenue.
(7) Any person prosecuted under clause (a) of sub-section (6)
shall, on conviction, [be punished with imprisonment for a term
[which shall not be less than one month but which may extend to
three years and with fine which shall not be less than two thousand
rupees but which may extend to five thousand rupees, and in the
case of a continuing offence with a further daily fine which may
extend to two hundred rupees] [These words were substituted for
the words 'be punished with fine which may extend to five thousand
rupees' by Maharashtra 31 of 1983, Section 4(b).] for every day
during which such offence continues after conviction for the first
commission of the offence.
(8) [ The Planning Authority shall, by notification in the Official
Gazette, designate an officer of the Planning Authority to be the
Designated Officer for the purposes of exercise of the powers of the
Planning Authority under this section and sections 54, 55 and 56.
The Designated Officer shall have jurisdiction over such local area as
may be specified in the notification and different officers may be
designated for different local areas.] [Sub-section (8) was inserted
by Maharashtra 2 of 2012, Section 30 (w.e.f. 4-8-2012).]”
7.2) Section 142 of the MRTP Act reads as under: -
“142. Sanction of prosecution. — No prosecution for any offence
punishable under this Act or rules made thereunder shall be
instituted or no prosecution instituted shall be withdrawn, except
with the previous sanction of the Regional Board, Planning
Authority, or as the case may be, a Development Authority or any
officer authorised by such Board or Authority in this behalf:
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1
[Provided that, no sanction shall be necessary where unauthorised
development has been carried out on the plot having area more than
1000 square meters.]”
7.3) Section 77(2) of the Maharashtra Municipal Councils Nagar
Panchayat and Industrial Township Act, 1965 reads as under: -
“77. Powers and duties of Chief Officer
“……..
(2) The Chief Officer may, 3[* * *] delegate any of the powers or
duties or functions conferred or imposed upon or allotted to him by or
under this Act, to any municipal officer or servant:
4
[Provided that, such delegation shall be subject to the control and
revision by the Chief Officer.]”
7.4) Section 189 of the Maharashtra Municipal Councils Nagar
Panchayat and Industrial Township Act, 1965 reads as under: -
“…...
(8) If any person begins any construction of a building of which
notice is required to be given under sub-section (2)
(i) without the permission of the Chief Officer under sub-section
(4) or of the Council under sub-section (5), save as otherwise
provided under subsection (6); or
(ii) having received permission under clause (a) of sub-section (4),
contrary to the plans and information furnished under sub-section
(2) and (3); or
(iii) having received permission under clause (b) of sub-section
(4), contrary to the conditions imposed under that clause or
contrary to the plans and information submitted under sub-sections
(2) and (3) in so far as such plans and information are nor modified
by such conditions; or
(iv) contrary to the provisions of sub-section (6), when
construction is begun under that sub-section,
the Chief Officer may, by a written notice, require such person to
stop such construction and to alter or demolish any construction
already made as specified in the notice. If, within fifteen days, from
the service of such notice for demolishing any such construction, the
work of demolishing it is not commenced, the Chief Officer may
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cause such work to be done and the expenses incurred therefore
shall be recoverable from the person concerned in the same manner
as an amount due on account of a property tax.
….”
7.5) This Court in the case of Mahesh Shivram Puthran Vs.
Commissioner of Police, Thane reported in 2011 SCC OnLine Bom 389 has
observed that: -:
“9. From the scheme of the provisions of the Act, it is obvious that the
prosecution for offences punishable under the Act of 1966 instituted
and pursued by the Planning Authority. This position reinforced by
Section 142 of the Act, which reads thus: -
"Sanction of prosecution. - No prosecution for any offence
punishable under this Act or rules made thereunder shall be instituted
or no prosecution instituted shall be withdrawn, except with the
previous sanction of the Regional Board, Planning Authority or as the
case may be, a Development Authority or any officer authorised by
such Board or Authority in this behalf."
(emphasis supplied)
10. The language of this provision leaves no manner of doubt that the
precondition for even "institution of prosecution", is with the previous
sanction of the specified Authority. As aforesaid, on noticing
unauthorised development or use, it is the Planning Authority who has
to first issue notice under Section 53(1) of the Act to enable the noticee
(owner) to remedy the objectionable unauthorised development or use;
and it is only upon failure to do so within the specified time, and, in
absence of permission granted under Section 44 for retention on the
land of any building or works or for the continuance of any use of the
and, to which the notice relates, the Planning Authority may proceed to
prosecute the noticee/owner by virtue of Section 53(6) of the Act. The
prosecution, however, can be instituted only after previous sanction of
the Regional Board or Planning Authority or, as the case may be, a
Development Authority or any officer authorised by such Board or
authority in that behalf.
11. A priori, the Act, being a special enactment, provides mechanism
for institution of prosecution against the noticee/owner. In the scheme
of things, registration of F.I.R. by the police officer under Section 154 of
the Code in relation to offence punishable under the provisions of the
said Act cannot be countenanced. More so, the local police officer, on
his own, even if he notices any unauthorised development or use,
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cannot proceed to register the F.I.R. under Section 154 of the Code. He
has no authority to do so, especially in the face of mandate of Section
142 of the Code that no prosecution for any offence punishable under
the said Act or Rules made thereunder shall be instituted, except with
the previous sanction of the specified authority.”
7.6) This Court in the case of Bharati Airtel Limited Vs. State of
Maharashtra and Anr. reported in 2016 SCC OnLine Bom 14348 has observed
that: -
“6. The Division Bench of this Court in the case of Mahesh Puthran
(supra) has considered the various provisions of the MRTP Act and also
the relevant provisions of Cr.P.C. namely sections 4 and 5 and after
having examined all those provisions came to the conclusion that an
F.I.R. could not be registered by the police and if it is so registered, it is
without authority of law. There is no material on record to show that
prior sanction has been taken under section 142 of the MRTP Act
before filing the complaints.”
8) Perused the entire record. FIR indicates that, the FIR has been
filed by the Assistant Town Planner on 12 th March 2020. In the present case,
Sub-section (6) of Section 53 of the MRTP Act clearly provides that, if within
the period specified in the notice, the notice or so much of it as stands is not
complied with, the planning authority may prosecute the owner for not
complying with the notice or take steps to restore the land to its condition
before the development took place. The notice dated 2 nd March 2020 under
Section 189 of the Maharashtra Councils, Nagar Panchayats and Industrial
Township Act, 1965 clearly stipulates that, the unauthorized construction is to
be removed within a period of 15 days. As per the notice dated 2 nd March
2020, the period of 15 days would expire only on 17 th March 2020. The FIR is
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dated 12th March 2020. In my opinion, considering the provisions of Section
189 of the Maharashtra Councils, Nagar Panchayats and Industrial Township
Act, 1965, the said FIR is in fact premature.
8.1) Perusal of the FIR indicates that, there is also a reference to
notice dated 3rd March 2020 issued under Section 53(1) and Section 152 of
the MRTP Act requiring the Petitioners to remove the unauthorized work
within a period of 24 hours. Once a notice under Section 189 of the
Maharashtra Councils, Nagar Panchayats and Industrial Township Act, 1965 is
given calling upon the Petitioners to remove the unauthorized construction
within a period of 15 days, in my opinion, the FIR could not have been lodged
before the period of 15 days.
8.2) Once the notice under Section 189 of the Maharashtra Councils,
Nagar Panchayats and Industrial Township Act, 1965 is issued, it is necessary
that the owner is permitted to exercise the available options mentioned
therein. It would be incumbent on the authorities to follow and strictly comply
with the provisions of Section 189 of the Maharashtra Councils, Nagar
Panchayats and Industrial Township Act, 1965. Section 189 of the
Maharashtra Councils, Nagar Panchayats and Industrial Township Act, 1965
deals with notice issued in respect of construction of building. Under Section
189(4), the Chief Officer within 60 days, may either grant permission to
construct according to the plans or impose conditions in accordance with the
Act or direct that the work shall not be proceeded with until all questions are
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decided to his satisfaction or refuse permission. If no order is issued under
clause (c) and (d) of sub-section 4 within the prescribed period, the person
applying under sub-section (2) shall be entitled to proceed with the work after
the expiry of the prescribed period. Sub-section (8) of Section 189 provides
that, a period of 15 days is required to be granted to the noticee to rectify the
unauthorised work, failing which the authority can take action. Sub-section
(9) of Section 189 provides for action, if steps are not taken in the 15 day
period as prescribed in Section 189(8). In the present matter none of the
prescribed procedure is followed. The prosecution pursuant to a notice under
Section 53 of MRTP Act can be initiated only as per the provisions of Sub-
section (6) of Section 53 of the MRTP Act. It is not the case that the notice
dated 2nd March 2020 was withdrawn. In fact, once the notice under Section
189 of the Maharashtra Councils, Nagar Panchayats and Industrial Township
Act, 1965 is issued, the time provided in the notice ought to have been given
to the Petitioner to remove the structure. Filing of the FIR before the expiry of
the period of 15 days, in my opinion, would be premature.
8.3) The record further indicates that, the FIR has been filed by the
Assistant Town Planner for a violation of Section 53 of MRTP Act. Section 142
of the MRTP Act specifically provides that, no prosecution shall be instituted
except with the previous sanction of the Regional Board, the Planning Board,
or as the case may be, the Development Authority or any Officer of Authority
in that behalf. On record there is no Authority letter shown which authorized
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the Assistant Town Planner to file the present complaint. In fact, the present
complaint ought to have been filed by the Chief Officer.
8.4) The contention of the learned Advocate for Respondent No.2 that,
Respondent No.2 was authorized to file the complaint under Section 77(2) of
the Maharashtra Municipal Councils, Nagar Panchayats and Industrial
Townships Act, 1965 and that the Chief Officer had delegated the powers to
the Respondent No.2 is misplaced and misconceived. Perusal of the 77(2)
Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships
Act, 1965 would indicate that, the power which can be delegated under
Section 77(2) of the Maharashtra Municipal Councils, Nagar Panchayats and
Industrial Townships Act, 1965 are restricted to matters relating to violation
under the Maharashtra Municipal Councils, Nagar Panchayats and Industrial
Townships Act, 1965 and not under the MRTP Act. The FIR is specifically filed
under Section 53(6) of the MRTP Act. One has to be conscious of the fact that,
the MRTP Act is a special statute. Section 142 specifically provides the manner
in which sanction for prosecution is required to be obtained and the procedure
to be followed in that regard. It is settled law that, a special statute takes
precedence over the general law, where a procedure is specifically prescribed
therein.
8.5) The decision of this Court in the case of Mahesh Shivram Puthran
Vs. Commissioner of Police, Thane, Dist Thane and Ors. (Supra) and in the
case of Bharti Airtel Limited Vs. State of Maharashtra & Anr (Supra) are
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squarely applicable to the facts of the present case. The FIR has been filed
without obtaining the requisite sanction as contemplated under Section 142 of
the MRTP Act. Even the provisions of Section 189 of the Maharashtra
Councils, Nagar Panchayats and Industrial Township Act, 1965 have not been
followed. Whether Section 189 of the Maharashtra Councils, Nagar
Panchayats and Industrial Township Act, 1965 can be invoked in regard to an
erection of an unauthorised mobile cell phone tower is also a debatable
question, which this Court has not gone into in the present matter. I am of the
view that, the criminal prosecution is totally untenable and misconceived
therefore, it cannot be sustained. On the aforenoted ground i.e. non-
comliance of Section 142 of the MRTP Act. Even otherwise the FIR is filed
prior to the expiry of the period of 15 days as required under Section 189 of
the Maharashtra Councils, Nagar Panchayats and Industrial Township Act,
1965.
9) In view of the above facts, I am of the considered opinion that the
facts of the present case warrant the exercise of the inherent powers of this
Court under Section 482 of the CrPC. A prima facie case of quashing has been
made out so as to enable this Court to exercise the inherent powers under
Section 482 of the CrPC (Now Section 528 of BNSS), to prevent the abuse of
the process of the Court and to secure the ends of justice. Allowing the FIR, to
continue in the present form and with the present allegations would amount
to abuse of the process of law. In my considered view, it will be in the interest
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SPG WP-2009-2021.doc
of justice and to secure the ends of justice, the present criminal proceedings
are quashed.
10) Hence, I pass the following Order: -
i) Petition is allowed in terms of prayer clause (A) and (AA).
(RANJITSINHA RAJA BHONSALE, J.)
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