Allowed

Indus Towers Limited v. Brihanmumbai Electricity Supply and Transport Undertaking Ltd., and Another

Bombay HC13 Mar 2014WP/548/2014

Case brief

AI extract

What is this about?

The Writ Petition challenged a circular requiring a no objection certificate from the Municipal Corporation before telecommunication companies could receive electricity. The Court held that no statute mandated this document, declared the circular illegal, and allowed the petition.

What did the court decide?

The circular dated 20th June, 2013 was set aside and the petition was disposed of in terms of prayer clause (a).

Indus Towers Limited Vs Brihanmumbai Electricity… — Service and Employment | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO.548 OF 2014

Indus Towers Limited

..Petitioner.

V/s.

Brihanmumbai Electricity Supply & Transport Undertaking Ltd. & Anr.

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..Respondents.

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Dr. Virendra Tulzapurkar, senior counsel with Vivek Menon, Prasad Dhonde, Yogesh Phopale and Chandramani i/b. D.H. Law Associates for the petitioner.

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Mr. Naresh Rathani for the respondents.

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CORAM : V.M. KANADE AND A.K. MENON, JJ. DATED : 13TH MARCH, 2014

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P.C. :-

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Heard learned counsel appearing on behalf of the

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petitioner and learned counsel appearing on behalf of the respondents.

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By this petition under Article 226 of the Constitution of India, the

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petitioner is challenging the operation, effect and for setting aside the circular dated 20^th June, 2013 issued by respondent No.2.

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The petitioner is a company incorporated under the Companies Act, 1956 and is in the business of establishment, maintenance and provision of telecommunications infrastructure and assets including erection of mobile towers. Respondent No.1 is a company engaged in the distribution of electricity to the City of Mumbai. Respondent No.2 is the Dy. General Manager of respondent No.1. He has issued a circular directing the Divisional Engineers of all the Divisions of respondent No.1 to supply electricity only after the applicant inter alia produces a no objection certificate from the Executive Engineer, Building Proposal. It is contended that the said circular is patently illegal and has been issued on misinterpretation of the provisions of the Electricity Act, 2003. It is submitted that the said condition which is enforced by respondent Nos.1 & 2 is not supported by any provisions of the Electricity Supply Act or Regulations. It is submitted that reliance placed by respondent No.2 on the regulation 4 is unwarranted. It is, therefore, submitted that the said circular is issued without any authority of law.

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An affidavit in reply has been filed on behalf of respondents and in the said reply, it is stated that the Municipal Corporation has formulated guidelines on 8^th August, 2011 pursuant to the directions given by the Division Bench of this Court in Writ Petition

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(Lod) No.58 of 2011. It is submitted that in view of the said guidelines, respondent No.2 has imposed the said condition. Learned counsel appearing on behalf of the respondents has submitted that this has been done to ensure that unauthorized towers are not erected on unauthorized structures. It is submitted that respondent No.2 has, pursuant to the letters written by the officers of the Municipal Corporation are now insisting upon the applicants such condition. Suitable amendment has been made in the application form and the list of documents to be supplied by the applicant. Serial No.9 of Clause 8 makes a provision for submission of no objection certificate issued by the MCGM / Director of Industry.

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We have perused the order passed by this Court Writ Petition (Lod) No.58 of 2011. The said petition was filed by the petitioner and other companies seeking direction from this Court directing the respondents to formulate a policy / guidelines which has to be complied by the petitioner for regularization of construction of towers which are erected. In our view, these guidelines which have been framed have nothing to do with the duty and obligation imposed on respondent Nos.1 & 2 to provide electricity supply to the residents of Mumbai and as such, therefore, it cannot be said that the said guidelines issued pursuant to the directions given by this Court would

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in any way fall under the category of additional documents which are required under the Supply Code Regulations.

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Regulation 4 of the Supply Code Regulations provides for information / particulars / documents which are to be placed by the applicant. 4.1 clause (viii) reads as “ additional documents as may be required from the applicant under any statute for the time being in force ”. Perusal of the said clause clearly indicates that there must be a statutory requirement for providing additional documents. In this case, neither the Bombay Municipal Corporation nor the Electricity Supply Act mentions that no objection certificate had to be obtained from the Corporation in order to enable respondent Nos.1 & 2 to supply electricity to the petitioner. In our view, therefore, the circular which has been issued is clearly illegal and respondent No.2 does not have any authority in law to demand no objection certificate from the Bombay Municipal Corporation before supplying electricity to the petitioner.

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The petition is, therefore, allowed in terms of prayer clause (a) and is disposed of.

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(A.K. MENON, J.) ( V.M. KANADE, J.)

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Indus Towers Limited v. Brihanmumbai Electricity Supply and Transport Undertaking Ltd., and Another

Case brief

What is this about?

What did the court decide?

Indus Towers Limited v. Brihanmumbai Electricity Supply and Transport Undertaking Ltd., and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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