Bombay High Court
Bharti Airtel Limited vs The State Of Maharashtra And ... on 22 September, 2015
Bench: S.S. Shinde
6173.2013 Cri.Appln..odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 6173 OF 2013
Bharti Airtel Limited,
A Company incorporated under the
provisions of the Companies Act, 1956,
having its Circle Office at 7th Floor,
Interface building No.7, Link Road,
Malad [W], Mumbai 400 064.
Through its Authorized Signatory
Ramesh Eknath Salvekar,
Age-49 Years, Occ. Service,
R/o. 501/504, Pentagon P1 Tower,
Magarpatta City, Hadapsar,
Pune - 411 028. APPLICANT
VERSUS
1] The State of Maharashtra
Through the Dhule City Police
Station, District Dhule
[Copy served on G.P. High Court
of Bombay, Bench at Aurangabad]
2] Kamlesh s/o. Bhika Sonawne,
Age 35 Years, Occ. Service,
R/o. Dhule Municipal Corporation,
Dhule
[The original Complainant] RESPONDENTS
...
Mr. Sachin S. Deshmukh, Advocate for the Applicant
Mr. V.D.Godbharle, APP for the Respondent - State
Mr. Subodh P. Shah, Advocate for the Respondent No.2
...
WITH
CRIMINAL APPLICATION NO. 6175 OF 2013
Bharti Airtel Limited,
A Company incorporated under the
provisions of the Companies Act, 1956,
having its Circle Office at 7th Floor,
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6173.2013 Cri.Appln..odt
2
Interface building No.7, Link Road,
Malad [W], Mumbai 400 064.
Through its Authorized Signatory
Ramesh Eknath Salvekar,
Age-49 Years, Occ. Service,
R/o. 501/504, Pentagon P1 Tower,
Magarpatta City, Hadapsar,
Pune - 411 028. APPLICANT
VERSUS
1] The State of Maharashtra
Through the Devpur Police Station,
District Dhule
[Copy served on G.P. High Court
of Bombay, Bench at Aurangabad]
2] Smt. Gulab Ratilal Sisode,
Age 30 Years, Occ. Service,
R/o. Dhule Municipal Corporation,
Dhule
[The original Complainant] RESPONDENTS
...
Mr. Sachin S. Deshmukh, Advocate for the Applicant
Mr. V.D.Godbharle, APP for the Respondent - State
...
WITH
CRIMINAL APPLICATION NO. 6176 OF 2013
Bharti Airtel Limited,
A Company incorporated under the
provisions of the Companies Act, 1956,
having its Circle Office at 7th Floor,
Interface building No.7, Link Road,
Malad [W], Mumbai 400 064.
Through its Authorized Signatory
Ramesh Eknath Salvekar,
Age-49 Years, Occ. Service,
R/o. 501/504, Pentagon P1 Tower,
Magarpatta City, Hadapsar,
Pune - 411 028. APPLICANT
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6173.2013 Cri.Appln..odt
3
VERSUS
1] The State of Maharashtra
Through the Devpur Police Station,
District Dhule
[Copy served on G.P. High Court
of Bombay, Bench at Aurangabad]
2] Smt. Gulab Ratilal Sisode,
Age 30 Years, Occ. Service,
R/o. Dhule Municipal Corporation,
Dhule
[The original Complainant]
ig RESPONDENTS
...
Mr. Sachin S. Deshmukh, Advocate for the Applicant
Mr. V.D.Godbharle, APP for the Respondent - State
...
CORAM: S.S.SHINDE &
A.I.S.CHEEMA, JJ.
Reserved on : 03.08.2015
Pronounced on: 22.09.2015
JUDGMENT: [Per S.S.Shinde, J.]:
1] Rule. Rule made returnable forthwith, and
heard finally with the consent of the parties.
2] The above mentioned three Criminal
Applications i.e. Criminal Application Nos.6173/2013,
6175/2013 and 6176/2013 are filed, praying therein for
quashing FIR No.27/2013, FIR No.06/2013 and FIR No.
13/2013, registered on 7th April, 2013, with the Dhule City
6173.2013 Cri.Appln..odt
Police Station, Dhule and Devpur Police Station, Dhule, by
the Respondent No.2 under Section 52 and 53 of the
Maharashtra Region & Town Planning Act, 1966,
respectively.
In brief the facts disclosed in the Memo of
Application, leading for filing the said Criminal
Applications, are as under:
3]
It is the case of the Applicant that, the
Government of India, pursuant to the new Telecom Policy,
decided to allow Private Operators to provide basic and
cellular telecommunication and paging services in India,
which would put the country in the global
telecommunication map. On 13th August, 2000, the
Government of India opened the infrastructure services
sector [related to telecommunication/cellular
communication] to the Private parties and opened
registration for Infrastructure Provider Category I [IP-1] and
Infrastructure Provider Category II [IP-II]. In the month of
November, 2008, the Applicant was formed. The entire
shareholding of the applicant is held by the group
Companies of Bharti Airtel Limited, Vodafone India Limited
and Idea Cellular Limited. Applicant was granted the
Registration Certificate for Infrastructure Provider [Category
6173.2013 Cri.Appln..odt
- IP I] by the Department of Telecommunications,
Government of India, for providing infrastructure required
for providing telecommunication services. Pursuant to such
registration, the management of the sites, inter alia, set up
by the said Bharti Airtel Limited [including the said site] has
been entrusted to the Applicant.
4] It is the further case of the Applicant that, in the
Year 2011, the Dhule Municipal Corporation resolved to levy
an amount of Rs.1 lac per site set up in the Dhule Municipal
Corporation area. The Applicant challenged the said
Resolution of the Dhule Municipal Corporation before the
Bombay High Court, Bench at Aurangabad, by way of filing
a Writ Petition No.3722/2011. In the Year 2012, despite the
restraining orders of the High Court, the Dhule Municipal
Corporation, sealed some of the sites of the Applicant.
5] It is the further case of the Applicant that, Writ
Petition No.3722/2011 filed by the Applicant, came to be
disposed off by common order. According to the Applicant,
by the said common order, the action of Dhule Municipal
Corporation to impose levy was set aside by the Bombay
High Court, Bench at Aurangabad.
6173.2013 Cri.Appln..odt
6] It is the further case of the Applicant that, on 1st
January, 2013, fresh applications were submitted by the
Applicants to the Dhule Municipal Corporation in respect of
sites of the Applicants in Dhule City. The said Applications
are pending. On 6th April, 2013, the Respondent No.3
lodged the FIR with the Respondent No.2, stating therein
that, the said site has been set up unauthorizedly in Dhule
City. Hence Applications.
7] The learned counsel appearing for the
Applicants submits that, the Applicants or its employees or
Directors have not committed any offence as alleged
inasmuch as the site in question was set up after requisite
application, and after expiry of period contemplated in
Section 45 [5] of MRTP Act. The Applicant has also
submitted fresh Application in respect of the said site to the
Dhule Municipal Corporation. It is submitted that, the
Respondent No.1 is threatening to arrest employees /
Directors of the Applicants. It is submitted that, pending
fresh application filed by the applicant, the respondent No.2
could not and ought not to have filed any complaint, and
respondent No.1 cannot proceed with the investigation of
the impugned FIR or can take any action thereunder
6173.2013 Cri.Appln..odt
against the Applicants. It is submitted that, for want of
necessary sanction in the light of mandate of Section 142 of
MRTP Act, since every prosecution under the said Act,
necessarily has to be proceed by sanction. The
investigation based on afore-mentioned FIR cannot be
proceed further. It is submitted that, allowing the criminal
proceeding to continue against the Applicant would
tantamount to a gross abuse of process of law.
8] It is further submitted that, in the light of
undertaking to this Court in Contempt Petition No.
544/2012, the applications for erecting mobile towers were
to be presented with the Dhule Municipal Corporation in the
light of Judgment of Bombay High Court in Writ Petition No.
48/2011 i.e. GTL Infra. Accordingly, on 01.01.2013, the
applications were presented in Appendix A as per the bye-
laws of the Corporation. On 16.01.2013, the applications
were rejected, directing to submit the application as per
Sections 44, 45, 58, 59 of MRTP Act.
9] It is further submitted that, on 09.04.2013, the
application as per Rule 601 of the Corporation was
tendered and amount of Rs.200/- has been accepted by
issuing receipt to that effect. However, same is not
6173.2013 Cri.Appln..odt
processed. On 12.04.2013, notices were served upon the
applicant under the provisions of Sections 52 and 53 of
MRTP Act, directing removal of towers. On 25.04.2013,
since the applications seeking permission under Section 44
of MRTP Act was not processed, however, the notices
served, therefore, the applicants approached by way of
filing Writ Petition No.3583/2013 to the High Court, seeking
quashment of the said notices with further direction to
decide the application filed by the applicant, wherein High
Court issued notices and directed to maintain the status
quo as such the issue is pending consideration. In the
midst of aforesaid development, the Corporation has filed
the impugned FIR under the provisions of Section 43, 52
and 53 of MRTP Act.
10] It is further submitted that, in the light of the
verdict of the Bombay High Court in Writ Petition No.
3544/2010 rendered by the Division Bench, and further
followed by the another Division Bench in Criminal
Application No.247/2013, the issue raised in the present
Petition is no longer res integra. It is submitted that,
Section 44 of MRTP Act provides making an application
followed by grant or refusal of permission as per Section 45,
6173.2013 Cri.Appln..odt
and subsequent Appeal as per Section 47, departure with
the scheme provided in the Act and having recourse to
Section 52 of the said Act, thereby initiating prosecution, is
unsustainable. Therefore, the learned counsel appearing
for the Applicants submits that, the Petition deserves to be
allowed.
11] On
ig the other hand, the learned counsel
appearing for the Respondent No.2 submits that, in the
case of Mahesh Shivram Puthran [supra], the Bombay
High Court at Principal Seat, in the facts of that case taken
a view that, the Maharashtra Regional and Town Planning
Act, 1966, is a special enactment, provides mechanism for
institution of prosecution against the noticee / owner. In
the scheme of things, registration of FIR 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 unauthorized development or use,
cannot proceed to register the FIR 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
6173.2013 Cri.Appln..odt
thereunder shall be instituted, except with the previous
sanction of the specified authority. He further submits that,
in the facts of that case before launching prosecution no
previous sanction of the specified authority was obtained,
and therefore, it was held that, registering FIR without
previous sanction from the specified authority cannot be
countenanced, and therefore, the FIR was quashed in the
facts of that case. However, in the present case, the
respondent No.2 after obtaining prior sanction of the
specified authority, has lodged FIR.
12] It is further submitted that, in the case of Bharti
Airtel Limited [supra], in the facts of that case, the Court
held that, the allegations in the FIR which was subject
matter of the said Petition, point towards commission of an
offence under Section 52 of the Maharashtra Regional &
Town Planning Act, 1966. Beyond the said provision, no
other enactment was invoked so as to enable the Police to
register the FIR and commence investigation in pursuance
thereof, and therefore, in the said background, the Court
relying upon earlier Judgment in the case of Mahesh
Shivram Puthran [supra] held that, since point is covered by
the Judgment of the Division Bench in the case of Mahesh
6173.2013 Cri.Appln..odt
Shivram Puthran [supra], the Application was allowed.
However, in the present case, the respondent No.2 has
taken sanction to launch the prosecution and thereafter
only FIR is registered, therefore, the Judgments in the case
of Mahesh Shivram Puthran [supra] and in the case of
Bharti Airtel Limited [supra] are not applicable in the facts
of the present case. Therefore, he submits that, in the
present
case, after obtaining prior
registered, and therefore, applications deserve to be
sanction FIR is
rejected.
13] We have given careful consideration to the
submissions of the learned counsel appearing for the
Applicants, the learned APP appearing for the Respondent -
State, and the learned counsel appearing for the
Respondent No.2. We have carefully perused the
averments in the Applications, annexures thereto and the
Judgments cited across the bar by the learned counsel
appearing for the Applicants. The present Applications are
filed invoking provisions of Section 482 of Criminal
Procedure Code. While considering the prayer for quashing
the FIR, this Court has to keep in view that, power under
Section 482 of Criminal Procedure Code has to be used
6173.2013 Cri.Appln..odt
sparingly in rare cases, and also keeping in view the
exposition of the Hon'ble Supreme Court in the case of
State of Haryana Vs. Bhajanlal1.
14] Upon perusal of the allegations in the FIR, the
offence under Section 52 and 53 of the MRTP Act, 1966, has
been clearly disclosed. The provisions of Section 52 of the
MRTP Act, 1966, reads thus:
52. Penalty for unauthorised
development or for use otherwise than in
conformity with Development plan -
(1) Any person who, whether at his
own instance or at the instance of any other
person commences, undertakes or carries out
development or institutes, or changes the use
of any land -
(a) without permission required under this
Act; or
(b) which is not in accordance with any
permission granted or in contravention of any
condition subject to which such permission has
been granted;
(c) after the permission for development
has been duly revoked; or
(d) in contravention of any permission
which has been duly modified,
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
1 AIR 1992 SC 604
6173.2013 Cri.Appln..odt
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] for
every day during which the offence continues
after conviction for the first commission of the
offence.
(2) Any person who continues to use or
allows the use of any land or building in
contravention of the provisions of a
Development Plan without being allowed to do
so under section 45 or 47, or where the
continuance of such use has been allowed
under the section continues such use after the
period for which the use has been allowed or
without complying with the terms and
conditions under which the continuance of such
use is allowed, shall, on conviction be punished
[with fine which may extend to five thousand
rupees]; and in the case of a continuing
offence, with a further fine which may extend
to one hundred rupees for every day during
which such offence continues after conviction
for the first commission of the offence.
It is the submission of the learned counsel
appearing for the Applicants that, in view of the law laid
down by the Bombay High Court in the case of Mahesh
Shivram Puthran [supra] and in the case of Bharti Airtel
Limited [supra], no prosecution could have been launched
without prior permission of the Regional Board, Planning
Authority or Development Authority or any other Officer
authorized for such power and authority in this behalf. In
the present case, FIR is lodged with previous sanction of the
6173.2013 Cri.Appln..odt
specified Authority as contemplated under the provisions of
Section 142 of the said Act. In the case of Mahesh
Shivram Puthran [supra], the Division Bench of the
Bombay High Court at Principal Seat, after considering
factual scenario in the said Petition in para 16, reached to
the conclusion that, the FIR as registered by the Police
Officer against the petitioner, is without authority of law
both on the ground that he could not have registered such
FIR on his own, and, in any case, the FIR is registered
without prior sanction of the specified Authority.
Admittedly, in the present case, as already observed, after
obtaining prior sanction of the Specified Authority, the FIR
is registered.
15] So far next contention of the learned counsel
appearing for the applicants that, the alleged offence under
Section 52 and 53 is non-cognizable, is concerned, in the
case of Mahesh Shivram Puthran [supra], in para 14 it is
held thus:
14. Revering back to the question whether
the offences under Sections 43 and 52 of the
Act are cognizable or non-cognizable, since the
Act of 1966 does not make express provision in
6173.2013 Cri.Appln..odt
that behalf, by virtue of Section 4(2) of the
Code, reference can be made to the scheme
provided in the Code in that behalf. For that, we
may refer to Part II of Schedule I of the Code,
which provides for classification of offences
against other laws. The same reads thus:-
"II. CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS
Offence
ig Cognizable or Bailable or By what
non- non-bailable Court
cognizable triable
If punishable with Cognizable Non-bailable Court of
death, imprisonment Session
for life, or
imprisonment for
more than 7 years
If punishable with Ditto Ditto Magistrate
imprisonment for 3 of the first
years, and upwards class
but not more than 7
years
If punishable with Non- Bailable Any
imprisonment for cognizable Magistrate.
less than 3 years or
with fine only.
As the maximum punishment provided in
terms of Section 52 of the Act, which has been
applied to the case on hand, being up to three
years, at best, the second category of cases
specified in Part II of Schedule I would be
attracted. It would necessarily follow that the
6173.2013 Cri.Appln..odt
offence under Section 52 of the Act is a
cognizable and non-bailable offence.
[emphasis supplied]
16] Therefore, it follows from the para 14 of the
Judgment in the case of Mahesh Shivram Puthran
[supra] that, offence under Section 52 of the said Act is
cognizable and non-bailable. Therefore, the FIR under
Section 154 of Criminal Procedure Code has rightly been
registered.
17] So far the defences raised by the Applicants in
the Application are concerned, at appropriate stage those
defences can be considered, but not at the stage of
considering prayer for quashing the FIR. Once the FIR is
lodged, the investigation is an exclusive domain of the
Investigating Officer, as long as investigation is in
accordance with the law, and the Courts are not supposed
to interfere in such investigation. It is only when the
Investigating Officer departs from the legal provisions, the
Courts are permitted to interfere in such investigation. No
prejudices can be caused to the Applicants to make
themselves available for investigation.
6173.2013 Cri.Appln..odt
18] In our opinion, no case is made out for quashing
the FIR, therefore, the Applications deserve to be rejected.
Accordingly, applications stands rejected. Rule discharged.
19] However, we make it clear that, dismissal of
these Applications should not be construed as an
impediment for availing appropriate remedy as available in
law, in the event of filing of charge sheet by the
Investigating Officer.
Sd/- Sd/-
[A.I.S.CHEEMA, J.] [S.S.SHINDE,J.]
DDC
