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2010 Supreme(Ori) 260
2010 (Supp.-II) OLR — 773
B.P. DAS AND B.K. NAYAK, JJ.
Swapan Ghosh and others...Petitioners
Versus
Cuttack Development Authority and others...Opp.Parties
W.P.(C) No.1742 of 2010
(Date of Judgment : 30.4.2010)
For Petitioners:M/s. B. P. Satpathy, B. K. Nayak, A. K. Sahoo and J. Pradhan
For Opp.Party Nos.1 & 2:M/s. D. Mohapatra, M. Mohapa¬tra, G. R. Mohapatra and S. P. Nath
For Opp. party Nos.3, 4 & 5:Additional Standing Counsel
For Opp. party No.6:M/s. B. K. Nayak and D. K. Mohanty
For Opp. party No.7 and 9:M/s. Basudev Mishra and B. L. Tripathy
For Opp. Party No.8:M/s. Srikanta Kumar Nayak
Headnote:1. ORISSA DEVELOPMENT AUTHORITIES ACT, 1982 - Sec. 15 - Construction of telephone tower on the roof - Permission from the Development Authority in writing is necessary to institute or change the use of any land or building or for undertaking or carrying out any development in any building or in or over any land - Proviso (a)(b) (c) carved out certain exceptions where permission from the development authority is not required - In the present case held, O.P.Nos. 7 and 9 cannot claim exemption under proviso (c) of Section 15(1) of the Act.
It is seen from the aforesaid proviso (c) under Sub Section (1) of Section 15 that ‘operational construction’, which is undertaken by any Department of the Central or a State Govern¬ment or a local authority or a body corporate constituted under any law is only exempted from obtaining permission from the Development Authority. While opposite party No.7 is an individu¬al, opposite party No.9 is a Company registered under the Indian Companies Act, 1956. A company registered under the Companies Act, though a legal person, is not a body corporate constituted under a law. The expression “body corporate constituted under any law” occurring in proviso (c) under Section 15(1) of the Act would only mean a corporation, which is otherwise called a statu¬tory corporation. A company registered under the Companies Act cannot be said to be a statutory corporation. (Paras - 6 to 8)
2. ORISSA MUNICIPAL CORPORATION ACT, 2003 - Sec. 194 - Municipal Corporation to levy fees for issue of Corporation licence for various non-residential use of land and building - Where a particular land or building comes within the jurisdiction of an urban local body and also within a development area under the provisions of the Orissa Development Authorities Act, there the provisions of both the Orissa Development Authorities Act and the Municipal Act or the Municipal Corporation Act, as the case may be, shall apply - Application of both the Acts is not alternate but simultaneous. (Para - 9)
JUDGMENT
B.K. NAYAK, J. : In this writ application, the petition¬ers have prayed for issuance of direction to the opposite parties for removal/demolition of the telephone tower illegally con¬structed on the roof of the house situated over Plot Nos. F/401 and F/402 in Sector-7, C.D.A., belonging to opposite party No.7.
2. Admittedly, the petitioners are lessees under the Cuttack Development Authority (in short ‘C.D.A’), who have been allotted with different ‘F’ type plots in Sector-7, C.D.A. and have been staying with their families over those plots by con¬structing houses. Opposite party No.7 and his wife have also been allotted with Plot Nos.F/401 and F/402 near the house of the petitioners and the said opposite party No.7 constructed a house over those two plots. Opposite party No.7 took up construction of a telephone tower on the roof of his house unauthorisedly and apprehending danger to their life, health and property that may result from such unauthorized construction of the tower, the petitioners submitted applications (Annexures-1 and 2) to oppo¬site party No.1, the C.D.A. authority with a request to stop the unauthorised construction undertaken by opposite party No.7. On receipt of the applications, the Asst. Town Planner, C.D.A. (opposite party No.2) issued a letter to Inspector-in-charge of Markatnagar Police Station, C.D.A., (opposite party No.5) under Annexure-3 requesting to ensure discontinuance of the construc¬tion work. It is also indicated in Annexure-3 that notice had been issued to opposite party No.7 to discontinue the construc¬tion. It is further alleged by the petitioners that due to some political interference opposite party No.5 failed to take steps,as a result of which opposite party No.7 proceeded with illegal construction of the tower and has let out the same to mobile phone companies, but the tower has not been made opera¬tional since electricity connection has not been provided. It is alleged by the petitioners that for the illegal and unauthorised construction of the tower, the petitioners being adjoining house owners are apprehending danger to their life,safety and property. It is also alleged that because of illegal construction undertak¬en by opposite party No.7, house of petitioner No.1 which adjoins to plot No.F/402 on one side has already developed cracks.
3. During the course of hearing of the writ petition, it came to light that Essar Telecom Infrastructure Pvt. Ltd. (in short ‘Essar Telecom’) has undertaken the construction of the tower on the roof top of house of petitioner No.7 by entering into an a agreement with him. Therefore, the Cuttack Municipal Corporation and Essar Telecom were impleaded as opposite party Nos.8 and 9 respectively and notices were issued to them.
4. Opposite party Nos.7 and 9 have filed separate counter affidavits taking almost identical stands. It is stated by them that the construction of the telephone tower in question is coming within the meaning of ‘operational construction’ as de¬fined in the Orissa Development Authorities Act, 1982 (in short “the Act”) and, therefore, no permission from the C.D.A. under Section 15 of the Act is required. It is also stated that for the purpose of removal of the construction in question, which has been undertaken without permission, C.D.A. has already initiated proceeding bearing U.C. Case No.2 of 2010 against opposite party No.7 and issued notice to him and in view of the pendency of the proceeding the petitioner is not entitled to any relief in this writ petition.
It is additionally stated in the counter of opposite party No.9 that Essar Telecom has brought necessary license from the Telecom Regulatory Authority of India (in short “TRAI”) to oper¬ate through out the country and to meet the need of mobile tele¬phone service in the Markatnagar locality in the Cuttack City, opposite party No.9 entered into an agreement with opposite party No.7 and his wife and took up the construction of the telephone tower. It is also state
