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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

Subjects

  • unauthorised development
  • FIR quash
  • MRTP Act
  • Section 142 sanction
  • telecom tower
  • planning authority
  • premature prosecution
  • delegation of powers

Judgment

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                                                              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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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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