Interim Order 1

Order Details: Other
Pdf Text: 1 Ad-Int - Draft.NM in Su.No.510-2020
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON AD INTERIM RELIEF ON
DRAFT NOTICE OF MOTION
IN
L.C. SUIT NO. 510 OF 2020
(CNR-MHCC01-002008-2020)
SUYOG TELEMATICS LIMITED ]
Through its Director Mr. SHIVSHANKAR ]
LATURE, Age – 44 Years, Whole time ]
Director of SUYOG TELEMATICS LIMITED, ]
Having Address at 41, Suyog industrial Estate, ]
1st Floor, L.B.S Marg, Vikhroli (West) ]
Mumbai – 400083 ]... Plaintiff
Versus
1. The Asst. Municipal Commissioner ]
2. The Designated Officer Executive ]
Engineer, ]
(Both defendant residing at same address) ]
(Building and Factory Department) ]
M-West Ward, Office Bldg, ]
Room No. 202, 2nd Floor, Sharadbhau ]
Aacharya Marg, Chembur (West), ]
Mumbai 400 071. ]
3. SHOHDAYA KARBALA HASAN AND ]
HUSSAINI SABIL ASTANA COMMITTEE ]
Through its Authorized person. ]
Mr. SHAQAWAT ALI SHAIKH MOHAMMAD ALI. ]
Sabil Astana No.88, Behind S.R.A. ]
Co-operative Housing Society, Railway ]
Crossing, Mukund Nagar, Vashi Naka, ]
Chembur, Mumbai – 400 074 ]...Defendants
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Appearances:-
Ld. Advocate Mr. Ansari for the Plaintiff.
Ld. Adv. Mr.Khandagale for defendant/MCGM.
CORAM : HIS HONOUR JUDGE
SHRI U.J.MORE
(Court Room no. 8)
DATED : 25th February, 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. Perused plaint, Notice of Motion, documents filed by
plaintiff at Exhibit-A to N. It is stated by the plaintiff that, plaintiff is a
director of a Mobile Tower company. Having address at 41, Suyog
Industrial Estate, 1st Floor, L.B.S. Marg, Vikhroli (West), Mumbai –
400083.
2. Plaintiff challenging the Notice dated 31.01.2020 issued by
Designated Officer of defendant corporation. Threatening to initiate
action against unauthorized Mobile Tower. According to plaintiff, he
installed Mobile Tower in the suit premises on 15.08.2019 and on
21.09.2019 MMC Officer visited suit premises for inspection purpose.
Notice dated 31.01.2020 issued by the defendant corporation. Plaintiff
is acknowledging about receiving notice of dated 31.01.2020. On
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10.02.2020 defendant No.3 (Owner of suit premises) inform about the
Notice to the plaintiff. On 10.02.2020 plaintiff reply to the notice as
well as defendant No.3 (Owner)made of application for regularization /
permission of Mobile Tower with some documents.
3. plaintiff placed reliance on the case law
WPL.2043-2014,
Tower and infrastructure Providers Association & Anr Vs. The state of
Maharashtra, by Hon’ble Bombay High Court dated 25.08.2014. Ld.
Adv. Ansari for the plaintiff, pithily submitted that plaintiff’s Mobile
Tower be protected by way of ad-interim relief against the defendant
corporation. He submitted that despite of application for permission on
03.06.2019, and application after issuance of Notice on 10.02.2020. No
permission is given by the corporation. He also submitted that if the
permission is not communicated within span of 60 days on the receipt
of the application it is deemed permission as the application was given
on 03.06.2019.
4. Ld. Adv. Khandagale for the defendant corporation strongly
objected to protect the Mobile Tower. He pithily submitted that, it is
modes operandi of the Mobile Tower company to erect illegal Towers
and then apply for the regularize/approval to the corporation. The
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application namely made to the commissioner of corporation rather to
the proper authorized person i.e. Building and Development
Department as per Central Government guide-line dated 01.08.2013
(Dot - Guidline) without paying to the corporation. The Mobile Tower
company are earning too much with the help of illegal structure. Hence,
prayed for rejection the application.
5. Perused all documents filed by the Plaintiff along-with
plaint and Defendant strongly objected.
6. Heard, Adv.Ansari for the plaintiff and Adv.Khandagale for
the defendant corporation on ad-interim relief at length.
7. By this Notice dated 31.01.2020 the plaintiff is directed to
remove/demolish Mobile Tower/site within seven days from receipt of
letter. Which has been erected/constructed without permission of the
corporation.
8. As per section 44 of MRTP Act as follows -
“ Application for permission for development – Except
as otherwise provided by rules made in this behalf,
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and person not being Central or State Government or
Local Authority intending to carry out any
development on any land shall make an application in
writing to the Planning Authority for permission in
such form and containing such particulars and
accompanied by such documents, as may be
prescribed.
Provided the, save as otherwise provided
in any law, or any rules regulations or by-laws made
under any law for the time being in force, no such
permission shall be necessary for demolition of
existing structure, erection or building or part thereof,
in compliance of a statutory notice form a Planning
Authority or a Housing and Area Development Board,
the Bombay Slum Improvement Board established
under the Maharashtra Housing and area
Development Act, 1976.
Without prejudice to the provisions of
sub-section (1) or any other provisions of this Act, any
person intending to execute a Special Township
Project on any land may make an application to the
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State Government, and an receipt of such application,
the state Government may after making such inquiry
as it may deem fit in that behalf, grant such
permission and declare such project to be a Special
township project by notification in the Official Gazette
or, reject the application.”
9. As per section 45 (5) of MRTP Act as follows -
Section 45 (5) – Grant or refusal of permission – (5) It
the Planning Authority does not communicate its
decision whether to grant or refuse permission to the
applicant within sixty days from the date of receipt of
reply from the applicant in respect of any requisition
made by the Planning Authority, Whichever is later,
such permission shall be deemed to have been granted
to the applicant on the date immediately following the
date of expiry of sixty days.
10. Thus, the application for permission for development has to
be from bare perusal of the provisions contained in section 44 and 45 of
MRTP Act it is clear that for any person, intending to carry out any
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development on any land, it is mandatory to make an application in
writing to the Planning Authority for permission in the
"prescribed
form" and unless the application made is in
"prescribed form", as
contemplated by section 44 of the said Act, one cannot take benefit of
the deeming provision contained in subsection (5) of section 45 of the
said Act and carry out any development, claiming that there was no
communication/ reply from the Planning Authority within sixty days. In
other words, one can take benefit/ advantage deeming provision only if
the application for permission for development was made in the
"prescribed form" and if there was no communication from the Planning
Authority either granting or refusing permission to the applicant within
60 days from the date of receipt of his application. When the statute
mandates that one has to apply for building/ development permission
in the prescribed form, the mandate of the statute has to be duly
observed.
11. In the present case I have peruse the application dated
03.06.2019 made by the plaintiff according to Adv.Ansari, it is under
section 45 of MRTP Act. It is at Exhibit-C page 40 of the plaint. It would
be relevant to reproduce the said application to find out the way it was
made in the prescribed form which is mandatory under section 44 of
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MRTP Act. This application as follows :
FROM:- SHOHADAYE KARBALA HASAN AND
HUSSAINI SABIL ASTANA COMMITTEE
Through its Authorised person
Mr.SHAQAWAT ALI SHAIKH MOHAMMED ALI.
Sabil Astana No.88, Behind S.R.A Co-operative Housing Society,
Railway Crossing, Mukund Nagar,
Vashi Naka, Chembur, Mumbai – 400 074.
Date: 03.06.2019
To,
The Designated Officer
Executive Engineer (Building and Factory Dept.)
M-West Ward, Office Bldg, room No.202, 2nd Floor
Sharadbhau Aacharya Marg, Chembur (West)
Mumbai 400 071.
WITHOUT PREJUDICE
Sub: Application for Permission for setting up of telecommunication
cell site / tower at Sabil Aastana No.88, Behind S.R.A Co-
opertative Housing Society, Railway Crossing, Mukund Nagar,
Vashi Naka, Chembur, Mumbai – 400 074.
Sir,
I undersigned Mr.SHAQAWAT ALI SHAIKH MOHAMMED ALI.
Authorised person of SHOHDAYE KARBLA HASAN AND HUSSAINI
SABIL ASTANA COMMITTEE permises situated at Sabil Aastana No.88,
Behind S.R.A Co-Operative Housing Society, Railway Crossing, Mukund
Nagar, Vashi Naka, Chembur, Mumbai – 400 074.
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I state that I have executed an agreement dated 15.08.2019 between
M/S. Soyug Telematcis Limited 41, Suyog Industrial Estate, 1st Floor
LBS Marg Vikhroli (W) Mumbai 400 083. And myself regarding
installation of Mobile Tower at the above said premises.
I therefore hereby submitting this application along with other
documents as stipulated in the DOT guide-lines dated 01.08.2013 for
installation of telecom tower.
As you are the competent authority within the realm of the said
regulation and by more reading of the above clause any inconsistent
clauses of the said regulation stand superseded by DoT guide-lines
dated 01.08.2013.
Hence I request to your be please issue demand note for reasonable one
time fees for Permission for setting up approval / permission /
installation of telecom tower and grant the permission at the earliest.
Thanking you
Sd/-
Yours Faithfully,
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SHOHDAYE KARBLA HASAN AND
HUSSAINI SABIL ASTANA COMMITTEE
Through its Authorised person
Mr.SHAQAWAT ALI SHAIKH MOHAMMAD ALI.
12. At this stage, it would also be advantageous to reproduce
the prescribed form [Appendix A] to consider whether the application
dated 03.06.2019 (Exhibit-C) was in the prescribed form.
APPENDIX A (Bye-law No. 6.1) Form for first Application for
development and to erect a building.
(Under section 44/45/58/59 of Maharashtra Regional and Town
Planning Act, 1966 and under Section 189/ 190/ 191/ 192 of
Maharashtra Municipalities Act, 1965) (On Rs. 0.20 Stamp) To, The
Authority, Municipal Council of ---------------------
-----------------------------------------
------------------------------------------
Sir, I hereby give notice that I intend to carry out development in the
site/ to erect to re-erect/ to demolish/ to make material alteration in
the building ..............................…
.............. on/ in Plot No. ........................, land, Town and,
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Revenue Survey No. .............
C.T.S. No. ........................ situated at Road/ Street ................ City ......
13. I forward herewith the following plans and statements
(Item 1 to 6) in quadruplicate, wherever applicable, signed by me and
(Name in block letters) ..................... the lincesed
Architect/Engineering/ Structural Engineer/ Supervisor - Licence
No. ...................... who have prepared the plans, designs and a copy of
other statements/ documents/ as applicable Items 1 to 9):
1. Key Plan (Location) Plan.
2. Site Plan
3. Sub-division Layout Plan.
4. Building Plan.
5. Services Plan.
6. Particulars of development in Form.
7. Ownership Title.
8. Attested copy of Receipt for Payment of Application fee.
9. Clearance Certificate of TAX Arrears.
14. I request that the proposed development/ construction may
be approved and permission accorded to me to execute the work.
Signature of Owner ............... Name of Owner ................... Address of
Owner .........…
Date ...................... ........…"
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15. From bare perusal of the prescribed form it is clear that it
has to be submitted on Rs.0.20 Stamp and in the form of notice making
the intent clear to carry out development. It further provides that the
application should be accompanied by nine documents, mentioned in
the prescribed form. Thus, if the application is in the prescribed form
and submitted along with all the relevant/ necessary documents, then
alone, as observed earlier, one can claim benefit of the
deemed
provision. If the prescribed form is compared with the application dated
03.06.2019, submitted by the Petitioner, it is clear that the application
was not in the prescribed form. Therefor, it was not open to the
petitioner to proceed with the construction of mobile tower treating the
inaction/ silence of the Corporation, insofar as their application dated
03.06.2019 is concerned, as deemed permission. In other words, the
petitioners were not obliged to construct the mobile tower merely
because there was no communication from the Corporation in response
to their application dated 03.06.2019 within 60 days, treating the same
as deemed permission under subsection (5) of section 45 of the MRTP
Act.
16. Thus, the permission application dated 03.06.2019 as well
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as fresh application dated 10.02.2020 is not in prescribed form which
mandatory as the the provision of MRTP Act.
17. The person who wants equity should come with a clean
hands, the person who wants equitable relief shall stand on his won
legs. Plaintiff come with a case that, he has erected Mobile Tower in
15.08.2019. Whereas he made application on 03.06.2019 and
10.02.2020. He keep mum for the period more than four months till
receiving notice in January 2020 about his application dated
03.06.2020 file for permission to erect Mobile Tower / Cellular site. He
failed to file any permission on record as per regarding the deem
permission under section 45 of MRTP Act. Unless the application made
is in the
‘Prescribed form’ as contemplated by section 45 of MRTP Act,
One can’t take benefit of the deem provision contend in section 45 (5)
of MRTP Act, 1966 and carried out any development which is not
authorized by law.
18. Prima facie considering the provision of section 44 and 45
of MRTP Act the application made by the plaintiff on 03.06.2019 and
10.02.2020 are not in prescribed form. Therefore, he is not entitled for
the benefit of
“deemed permission”
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19. plaintiff placed reliance on the case law
WPL.2043-2014,
Tower and infrastructure Providers Association & Anr Vs. The state of
Maharashtra, by Hon’ble Bombay High Court dated 25.08.2014. with
due respect the facts are not applicable to the case in hand. In- such
circumstances it is not beneficial to the plaintiff.
20. Modus operandi of the plaintiff to erect Mobile Tower
without prior permission of the corporation. He made application in
simple form to the corporation and when he received notice for
unauthorized structure, then again made application without prescribed
form regularization of Mobile Tower is something fishy and it is nothing
but loss of the Government money. As this prescribed form has make
provision in para 12 and Column 9 the “clearance certificate of Tax”
Arrears. On the other side erection of the Mobile Tower proper sanction
is not safe for the people who are residing there. Within vicinity of the
suit premises, if it without prior permission of local authority.
21. Therefore, I am of the concrete opinion that, plaintiff has
not come out with the prima faciea case to grant ad-interim relief.
Hence, I proceed to pass following order:
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ORDER
The prayer to ad-interim relief is rejected being devoid of merits.
(U.J.More)
Judge,
City Civil Court,
Date : 25.02.2020 Gr. Mumbai.
Dictated on : 25.02.2020
Transcribed on : 26.02.2020
Signed by HHJ on : 26.02.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 27.02.2020 at 5.15 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
25.02.2020
JUDGMENT/ORDER signed by
P.O. on
26.02.2020
JUDGMENT/ORDER uploaded
on
27.02.2020
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