Interim Order 1

Order Details: Other
Pdf Text: 1 Ad-Int - NM 239-2020 in Su.No.109-2020
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON AD INTERIM RELIEF ON
NOTICE OF MOTION NO.239 OF 2020
IN
L.C. SUIT NO. 109 OF 2020
SUYOG TELEMATICS LIMITED ]
Through its Director ]
Mr.SHIVSHANKAR LATURE, ]
Age44 years, Whole time Director of ]
SUYOG TEMEMATICS LIMITED, ]
Having Address at 41, Suyog Industrial Estate, ]
1st Floor, L.B.S. Marg, ]
Vikhroli (West), Mumbai400083 ]... Plaintiff
Versus
1. The Asst. Municipal Commissioner ]
(Building and Factory Department) ]
Office of the Assistant Commissioner ]
NWard, Office Annexed Bldg. Jawahar Road, ]
Ghakopar (East) Mumbai 400077. ]
2. Designated Officer, ]
Executive Egineer, ]
Building & Factory Department ]
Office of the Assistant Commissioner ]
NWar, Office Annexed Bldg, Jawahar Road, ]
Ghatkopar (East), Mumbai400077. ]
3. MR. SHABBIR HUSSAIN KHAN. ]
"Jay Ganesh Garment House" Ekta Nagar, ]
D Silva Chawl, Azad Nagar Near Babu Bhai, ]
Gangarwala, Ghatkopar (West) ]
Mumbai 400086 ]....Defendants
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Appearances:
Ld. Advocate Mr. Ansari Asggar Kalim for the Plaintiff.
Ld. Adv. Mrs.Patil for defendant/MCGM.
CORAM : HIS HONOUR JUDGE
SHRI U.J.MORE
(Court Room no. 8)
DATED : 23th January, 2020
O R A L O R D E R O N A D I N T E R I M R E L I E F
1. By way of adinterim relief, the plaintiff seeks to restrain
the defendant from taking any coercive action in respect of the mobile
tower, for directing the defendant to decide the application for
regularization dated 06.01.2020 and alternatively for allowing him to
grant liberty to apply online for regularization, till filing reply by the
defendants No. 1 to 2.
2. The challenge in this suit is notice issued under section 55
of the MRTP Act thereby calling upon the owner/occupier of the
property over which the mobile antenna is situated, to remove Three
unauthorized mobile antennas over M.S. Section, skeletal with height of
06 mtrs. the learned advocate for the plaintiff argued that the plaintiff
has already submitted proposal for regularization on 06.01.2020 to the
Assistant Engineer (Building & Factory Department), NWard which is
not yet considered. He relied upon the case of Vijay Shankar Yadav Vs.
Municipal Corporation of Greater Mumbai and others decided by the
Hon'ble Bombay High Court on 01.03.2019 in Writ Petition (L)
No.672/2019 to show that the adinterim relief claimed by the plaintiff
can be granted in the circumstances mentioned in the said ruling.
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3. As against this Ld.Advocate for the defendant No.1 and 2
pithily submitted that the erection of tower is unauthorized the plaintiff
has made application by giving hard copy but not made online
application. Hence, adinterim relief be refused.
4. Admittedly, erection of the notice structure i.e. mobile
tower is without permission. After receipt of the impugned notice, the
plaintiff has applied on 06.01.2020 to the Assistant Engineer Building
and Factory Department for regularization/approval/permission, which
is not yet considered. In the case of Vijay (Supra) as relied upon by the
learned advocate for the plaintiff, in similar circumstances, the Hon'ble
Bombay High court has granted liberty to the plaintiff therein to make
an application online for regularization and till deciding the said
application, the parties were directed to maintain statusquo. It is seen
that in the cited case also, notice under Section 55 of the MRTP Act was
under challenge. There also the petitioner has applied for regularization
which was found by the Hon'ble Bombay High Court to be not an
application for regularization, but only permission to set up
telecommunication cell site/tower. Therin the learned advocate for the
petitioner sought liberty for making appropriate application for
regularization and pursuant thereto, the Hon'ble Bombay High Court
has granted aforesaid relief.
5. In the present case also, the plaintiff has made manual
application for regularization. It is submitted by the learned advocate
for the defendants that regularization application is to be made online.
The plaintiff is also seeking liberty to apply online for regularization
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and also for deciding his application for regularization which it has
submitted manually. Thus, the facts fo the present case and that of the
cited case are similar. Therefore, the observations of the Hon'ble
Bombay High Court in the case of Vijay (Supra) is. squarely applicable
to the facts of the present.
7. It is to be noted that under the MRTP Act, there is specific
provision for applying for regularization. Thus, when the act itself
provides for regularization of a structure, which is erected without
permission of the competent authority, in such circumstances, I do not
find any substance in the submissions of the learned advocate for the
defendants that if, adinterim relief as claimed by the plaintiff is
granted, public at large will take disadvantage of the same by carrying
out unauthorized construction and then apply for regularization. When
the Act itself provides for regularization, I find submission of the
learned advocate for the defendants to be misconceived, as the
impugned notice has been issued under MRTP Act and not under MMC
Act.
8. Considering the Hon'ble Division Bench Judgment in the
case of Vijay (Supra), the plaintiff has made out a prima facie case for
grant of adinterim relief. The ruling cited by the learned advocate for
the defendants is of no help to it, in view of the observations of the
Hon'ble Division Bench in the case of Vijay (Supra). An irreparable loss
will be caused to the plaintiff, if adinterim relief sought by it is refused.
The defendants have also not filed reply. Hence, I pass the following
order :
ORDER
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1. By way of adinterim relief, it is open to the plaintiff to
make an application online to the Municipal Corporation for
regularization of the mobile tower through a licensed Architect within
two months from today and till the decision of the application for
regularization, the Municipal Corporation shall not take any coercive
action in respect of the notice structure.
2. If any adverse order against plaintiff there should not be
coercive action by defendant for two weeks after order.
(U.J.More)
Judge,
City Civil Court,
Date : 23.01.2020 Gr. Mumbai.
Dictated on : 23.01.2020
Transcribed on : 23.01.2020
Signed by HHJ on : 23.01.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 27.01.2020 at 3.30 p.m.
NAME OF STENOGRAPHER : Mr.G.R.Suryawanshi
Name of the Judge (With Court
Room no.)
HHJ Shri. U.J.More
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
23/01/2020
JUDGMENT/ORDER signed by
P.O. on
23/01/2020
JUDGMENT/ORDER uploaded
on
27/01/2020
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