Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 525-19 in Stamp No. 1507-19
CNR NO.MHCC0100136519
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 525 OF 2019
IN
L. C. SUIT (STAMP) NO. 1507 OF 2019
Indus Towers Limited. …...Plaintiff
Versus
The Municipal Corporation of Greater Mumbai & Anr. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 01st April, 2019.
Appearance:
Ld. Adv. Mr. Amit Khairwar for the plaintiff.
Ld. Adv. Smt. Patil for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks temporary injunction
restraining the defendant corporation from acting upon order dated
29.01.2019.
2. Heard Learned Advocate for the plaintiff and the Learned
Advocate for the MCGM. Vide notice dated 03.01.2019 under Section
351 of MMC Act. The plaintiff was directed to remove the unauthorised
installation of 5 mobile antenna towers/equipments on the terrace of
Shree Arihant Apartment CHS Ltd, 'C' Wing, Dr. Bhadkamkar Marg,
Bombay Central, Mumbai 08 by the notice in question.
The notice was replied by the plaintiff vide reply dated
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2 NM 525-19 in Stamp No. 1507-19
08.01.2019. The order was passed, the copy of order dated 17.01.2012
(Exh. A), letter dated 07.11.2014 (Exh. F) and notice dated 03.01.2019
(Exh. J), order dated 29.01.2019 (Exh. L). The plaintiff was directed to
remove/demolish the notice structure period within 7 days from the
order. Failing the suit structure would be demolished and the
prosecution would be initiated under Section 457 of the MMC Act.
3. The plaintiff had submitted that on the earlier occasion, the
notice was issued and the present notice was issued on 03.01.2019.
Both the notices were replied. It is pointed out that the action initiated
by the defendant corporation is illegal. The plaintiff was granted
permission to erect the mobile towers in the year 2002. It is submitted
that the permission once granted, cannot be withdrawn. It is contended
that the interest of the justice, the structure needs to be protected by
injunction.
The corporation on the other hand had contended that the
complaint dated 15.12.2018 was received from Dr. Dilip Raja, a
resident of Shree Arihant Apartment CHS Ltd, 'C' Wing, Dr. Bhadkamkar
Marg, Bombay Central, Mumbai08 for unauthorized installation for the
structure. The plaintiff was called upon by the defendant corporation to
show the authorization of the structure. It is contended that the
plaintiff has no authorization of 4 mobile antennas do not have
authorization. The 4 antennas therefore are not authorized and
therefore notice of motion needs not be entertained, deserves to be
rejected.
4. Few on undisputed facts need not be looked into, the plaintiff
had annexed the letter dated 29.09.2013 that the approval permission
was renewed up to period of 31.03.2014 under the same terms and
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3 NM 525-19 in Stamp No. 1507-19
conditions as stated in the initial permission. The plaintiff was directed
to take require safety majors.
5. It would be worth to refer to the observation of the Hon'ble
Bombay High Court, Civil Appellate Jurisdiction in Writ Petition No.
6802 of 2013 in the case of Indus Towers Litmited V/s Mira
Bhayandar Municipal Corporation & Ors. vide order dated
04.09.2013
''The submission made by the Learned Counsel appearing on
behalf of the corporation is without any substance. So far Section 386
of BMC Act is concerned, it pertains to renewal of licenses yearly. In
the present case, the application was made by the Petitioner under
Section 45 of the MRTP Act for erection of the Mobile Tower and the
said permission which is granted in such cases is one time permission
and therefore, the question of granting yearly renewal of such
permission does not arise.''
6. Even assuming that the permission is not renewed, it is to be
noted that the said permission is one time permission. It is clear that
the plaintiff had permission for installation the mobile
tower/equipments which was granted with conditions.
The short question involved in the present case is as whether the
plaintiff had erected 4 new antennas. It was for the defendant to show
that initially it was only one antenna and now 4 antennas was put up by
the plaintiff. It is not in disputed that the plaintiff had valid permission.
The say and written statement only points out that the 4 new antennas
are erected by the plaintiff. It also alleges that there was the complaint
from one Dr. Dilip Raja. It has pointed out in the complaint that, there
is radiation from the antennas are causing a health hazard to the
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members, action does not seems to be initiated on the ground alleged
by the complainant.
It is for the defendant to ascertain that the antennas alleged to be
erected were in the contraventions to the permission granted in the year
2002.
As there is triable issue involved in the suit. The suit structure
need be kept in statusquo till the decision at the suit. The plaintiff has
made out primafacie case. The balance of convenience lies in favour
of the plaintiff. The plaintiff would be put to irreparable loss, if the
temporary injunction is refused.
In the result, following order is passed:
ORDER
1. The Notice of Motion No. 525/2019 is allowed.
2. The defendant corporation are hereby restrained from acting upon
order dated 29.01.2019 till disposal of the suit.
3. The Notice of Motion is disposed of accordingly.
(Sanjay N. Yadav)
Judge,
Date : 01.04.2019 City Civil Court, Mumbai.
Dictated on : 01.04.2019
Transcribed on : 02.04.2019
Signed by HHJ on : 05.04.2019
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5 NM 525-19 in Stamp No. 1507-19
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 05.04.2019 at 5.50 pm.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
01.04.2019
JUDGMENT/ORDER signed by
P.O. on
05.04.2019
JUDGMENT/ORDER uploaded
on
05.04.2019
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