Case Note & Summary
The judgment concerns four writ petitions filed by residents and cooperative housing societies challenging the installation of telecom towers on the rooftops of their buildings without their consent. The petitioners argued that under Section 79A of the Maharashtra Cooperative Societies Act, 1960, any construction or alteration of a structure on society property requires the consent of all members. They contended that telecom towers are structures and thus require such consent. The Municipal Corporation of Greater Mumbai (MCGM) had issued a circular on 11.08.2014 requiring no-objection certificates from all members before granting permission for tower installation. The respondents, including telecom companies and the State, argued that telecom towers are not structures under Section 79A and that the circular was ultra vires. The court analyzed the definition of 'structure' under the MCS Act and the Mumbai Municipal Corporation Act, 1888, and held that telecom towers are not permanent structures but are equipment for telecommunication. The court further held that the MCGM circular was ultra vires as it imposed conditions not found in the statute. The court also applied the doctrine of pith and substance, noting that the Indian Telegraph Act, 1885 is a central legislation that prevails over the state MCS Act. Consequently, the court dismissed all petitions, upholding the validity of the tower installations and quashing the MCGM circular.
Headnote
A) Cooperative Societies - Installation of Telecom Towers - Section 79A of Maharashtra Cooperative Societies Act, 1960 - Requirement of Consent - The court considered whether installation of telecom towers on society rooftops requires prior consent of all members under Section 79A. Held that telecom towers are not 'structures' within the meaning of Section 79A, and the MCGM circular requiring consent is ultra vires the Act. (Paras 1-41) B) Municipal Law - Ultra Vires - Circular Requiring Consent - The MCGM circular dated 11.08.2014 requiring consent of all members for installation of telecom towers was challenged. Held that the circular is ultra vires the powers of MCGM under the Mumbai Municipal Corporation Act, 1888, as it imposes conditions not found in the statute. (Paras 15-30) C) Telecom Law - Right of Way - Telecom Towers - The court examined the interplay between the Indian Telegraph Act, 1885 and the Maharashtra Cooperative Societies Act, 1960. Held that the provisions of the Telegraph Act prevail over the MCS Act in matters of installation of telecom infrastructure, and no prior consent is required. (Paras 31-35)
Issue of Consideration
Whether installation of telecom towers on rooftops of cooperative housing societies requires prior consent of all members under Section 79A of the Maharashtra Cooperative Societies Act, 1960, and whether the circular issued by MCGM requiring such consent is valid.
Final Decision
All writ petitions dismissed. The court held that telecom towers are not structures under Section 79A of the Maharashtra Cooperative Societies Act, 1960, and the MCGM circular dated 11.08.2014 is ultra vires. The installations are valid.
Law Points
- Telecom towers are not 'structures' requiring consent under Section 79A of MCS Act
- MCGM circular requiring consent is ultra vires
- Doctrine of ultra vires
- Doctrine of pith and substance
