Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M.No.791 OF 2020
CNR:MHCC01-002172-2020
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO.791 OF 2020
IN
L.C.SUIT NO.64 OF 2022
Indus Towers Limited ..Plaintiff
V/s.
1. Municipal Corporation of
Greater Mumbai & Anr. ..Defendants
Appearance:-
Adv. Kamini Suhas for plaintiff.
Adv. Ms. Vyavahare for MCGM/defendants.
CORAM : HER HONOUR ADDL. SESSIONS
JUDGE
SHRI. R. M. MISHRA
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 12/07/2023.
ORDER
1 This notice of Motion is taken out by the plaintiff to stay
the operation and effect of the impugned notice dt.15/05/2019 and
impugned order dt.24/01/2020 and for temporary injunction
restraining the defendants from taking any coercive action of
demolition and/or disconnecting electricity supply in respect of site of
the plaintiff located at “Unique Plaza A Wing CHSL”, on plot bearing
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No.CTS No.1923, Hainwes Road, B.J. Maro, Byculla(W), Mumbai,
pursuant to the impugned notice dt.15/05/2019 and impugned order
dt.24/01/2020.
2 The plaintiff that plaintiff company is engaged in the
business of establishment, maintenance and provisions of
telecommunication infrastructure and assets including mobile towers
for the purpose of granting the same on lease/rent basis to various
telecom service providers, pursuant to the Registration Certificate issued
by the Department of Telecommunication, Government of India. The
plaintiff is a joint venture of group companies of Bharti Airtel Ltd,
Vodafone India Ltd and Idea Cellular Ltd. Said infrastructure
companies are now amalgamated with the plaintiff by an order
dt.18/04/2013 passed by the Hon’ble Delhi High Court. As such, the
business and assets of these companies including sites owned and
managed by them stand transferred to the plaintiff from 11/6/2013.
The plaintiff has valid Registration Certificate as Infrastructure Provider
(IP), Category I issued by the Government of India, Department of
Telecommunication to establish, maintain and provide
telecommunication infrastructure including mobile towers for the
purpose of granting the same only to the licensees.
3 In order to provide mobile telephone services/activity, the
plaintiff is required to install antennae towers and electronic equipment
in Aluminum covers/shelters on the roof-tops/terraces of various
buildings in Mumbai City and for that purpose, the plaintiff is required
to enter into leave and license with the building owners. In the year
2011, the defendant No.1 purported to formulate a policy for granting
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permission to set up mobile towers in the city of Mumbai which was
challenged by all the telecom companies before the Hon’ble Bombay
High Court. Accordingly, by an order dt.17/01/2012, the Hon’ble High
Court granted interim reliefs restraining the defendant No.1 from taking
any coercive steps against any of the mobile towers of the plaintiff. In
the year 2013, the Department of Telecommunication issued guidelines
applicable to the entire country for setting up mobile towers across
India. Thereafter, in or about March 2014, Government of Maharashtra
issued certain guidelines for setting up mobile towers in the State of
Maharashtra. However, guidelines issued by the Government of
Maharashtra being contrary to the guidelines issued by the Department
of Telecommunication were challenged by one Telecom & Infrastructure
Providers Association by way of Writ Petition (L) No.2043 of 2014
before the Hon’ble High Court. Accordingly, by an order dt.25/08/2014
r/w order dt.12/09/2014, the Hon’ble High Court directed all the
planning authorities in the State including the defendants to refrain
from taking any coercive steps in respect of any mobile towers in the
State. For the above referred suit site, the predecessor of the plaintiff
had applied to defendant No.1 by an application dt.25/01/2008. The
defendant No.1 by a letter dt.03/07/2007 granted permission to the
plaintiff to erect the suit site and since then the suit site is functioning.
However, under mistaken belief of law that the permission is required to
be renewed, the plaintiff renewed the permission from time to time. In
fact, in the year 2013, the Hon’ble Bombay High Court passed an order
dt.04/09/2013 in the Writ Petition No.6802 of 2013 and thereby ruled
that the permission granted is one-time permission and no renewal of
the same is contemplated in law. However, to the utter shock and
surprise of the plaintiff, on 15/05/2019, the defendant No.2 issued
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show cause notice U/s. 351 of the MMC Act purporting to claim that the
suit site is unauthorized and directed to remove the suit site. The
plaintiff immediately replied to the said notice on 17/05/2019.
However, the plaintiff received the speaking order dt.24/01/2020 from
the defendant No.2 that the suit site is unauthorized and liable to be
demolished. In fact, the defendants have not considered the permission
granted by the defendant No.1 in the year 2007, which was renewed
from time to time and also failed to consider the orders passed by the
Hon’ble High Court. The plaintiff, therefore, prayed for the interim
reliefs.
4 It is the contention of the defendants that they have
received various complaints in respect of Mobile Antennas of suit site
erected without permission of the competent authority, therefore, spot
was inspected on 15/05/2019. At that time, it was found that there is
unauthorized construction of mobile tower above lift machine room at
8th floor terrace level and a cabin admeasuring 2.85m length x 2.55m
width having height 2.85 m as well as construction of cabin
admeasuring 1.27m length x 2.65m width having average height 1.5m
by using aluminum frame partition at ground floor below the stair case
of the said building. Accordingly, photographs were taken and
inspection report came to be submitted to the Designated Officer. The
Designated Officer came to the conclusion that the said construction is
unauthorized and therefore, notice U/s.351 of MMC Act 1888 came to
be issued on 15/05/2019. The Designated Officer also considered the
reply and documents submitted by the plaintiff and came to the
conclusion that the plaintiff failed to prove authentic permission of the
notice structure as authorized one. Therefore, the Designated Officer
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passed the speaking order by giving detailed reasons. It is further
contended that the Architect of the plaintiff had put up proposal for
regularization of temporary cabin for installing Cellular Mobile
Telecommunication system on the terrace of said building. The Assistant
Engineer, Building Proposal City Department revalidated the permission
upto 14/12/2013 subject to conditions. However, thereafter, the
plaintiff has not revalidated the permission till date. Therefore, the
defendants rightly issued the notice and speaking order to the plaintiff.
The plaintiff failed to revalidate the permission granted by the
competent authorities and failed to submit any documents to show that
the competent authority granted any such permission. The present
notice structure is not covered by the orders passed by the Hon’ble
Bombay High Court. As per the copy of agreement submitted to the
Building Proposal City Department, said permission is expired
14/12/2013 and the revalidation of the permission is subject to the
renewal of the agreement for further period upto 31/03/2014. The
orders passed by the Hon’ble High Court in various Writ Petitions are
prior to the notice challenged by the plaintiff in this suit. It is, thus,
contended that the Notice of Motion is liable to be dismissed.
5 Based on rival submissions, following points arise for my
determination. My findings are recorded thereon with reasons
enumerated therein, as under.
Sr.
No.
POINTS FINDINGS.
1 Whether the plaintiff has made out
a prima facie case ?
Affirmative
Whether balance of convenience
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2 lies in favour of the plaintiffs ? Affirmative
3
Whether the plaintiffs will suffer
irreparable loss, if interim reliefs
are not granted, as prayed for?
Affirmative
4 What Order ? As per final order
REASONS
AS TO POINT NOS.1 TO 3.
6 At the outset, after considering the submissions of both the
sides, I have carefully gone through the respective pleadings and copies
of documents on record. By way of interim reliefs, the plaintiff has
sought to restrain the defendants from taking any coercive action of
demolition/disconnecting electricity supply pursuant to the impugned
notice dt.15/05/2019 and speaking order dt.24/01/2020 in respect of
the suit site. Learned advocate for the defendants submitted that the
plaintiff failed to prove that the notice structure as authorized and the
said construction is as per the permission granted by EE(B.P.), Special
Cell which is the competent authority. It is also contention of the
defendants that the Architect of the plaintiff had put up the proposal for
regularization of the notice structure on the said building and the
Assistant Engineer, Building and Proposal, City Department had
revalidated the permission upto 14/12/2013. However, thereafter, the
plaintiff has not revalidated the permission till today. It is also
submitted that the present notice structure is not covered by the orders
passed by the Hon’ble Bombay High Court which have been relied upon
by the plaintiff.
7 On the other hand, the learned advocate for the plaintiff
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submitted that in view of the guidelines issued by the Government of
Maharashtra contrary to the guidelines issued by the Department of
Telecommunication, Writ Petition (L.) No.2043 of 2014 was filed by one
Telecom & Infrastructure Providers Association, challenging those
guidelines. Accordingly, by an order dt.25/08/2014 and 12/09/2014,
the Hon’ble Bombay High Court has directed all the planning
authorities to refrain from taking any coercive steps in respect of mobile
towers in the State. The learned advocate for the plaintiff also placed
reliance towards the directions issued by the Hon’ble Bombay High
Court in Writ Petition No.6802 of 2013 in which it is held that in the
light of provisions of Section 386 of BPMC Act, permission which was
granted to the petitioner was U/s.45 of MRTP Act and in such cases,
there is no question of granting yearly permission by the Corporation.
8 In the light of respective submissions and after cumulative
consideration of the entire facts and circumstances, it reveals that the
defendant No.1 has granted permission to the plaintiff to erect the said
site by letter dt.03/07/2007 and since then, the said site is functioning.
So far as the controversy as to the renewal of permission is concerned,
it is the contention of the plaintiff that under mistaken belief of law that
permission is required to be renewed, the plaintiff had renewed the
permission. In this context, I have carefully considered the observation
of the hon’ble Bombay High Court in Writ Petition No.6802 of 2013
which was filed by one Indus Towers Limited against Mira Bhayander
Municipal Corporation and Ors. in which one of the questions arises for
consideration before the Hon’ble High Court was as to whether it is
permissible for the Corporation/ Municipal Councils to impose a
condition that in respect of mobile towers, renewal should be obtained
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on year to year basis? While answering to this question, the Hon’ble
Bombay High Court in para 15 held that so far as Section 386 of BPMC
Act is concerned, it pertains to renewal of licenses yearly and the
application in that case was made by the petitioner U/s.45 of the MRTP
Act for erection of 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.
9 In this backdrop, it is significant to note that in a copy
of reply dt.17/05/2019 issued by the plaintiff to the notice
dt.15/05/2019, which was issued U/s.351 of MMC Act, 1888, the
plaintiff has specifically contended that the ownership of the suit
structure at the suit site is transferred to the plaintiff with effect from
11/06/2013 and erstwhile owner i.e. Indus Towers Limited had applied
for regularization of the said cabin and mobile telecom system to the
defendant by letter dt.25/01/2008. However, for want of response
from the competent authority within a period of 60 days, said
permission has been deemed to have been granted U/s.45(5) of the
MRTP Act. In fact, said letter is yet not filed on record. Therefore, it is
a question of merit which will have to be determined at the time of
conclusion of trial as to whether the plaintiff is having deemed
permission or not U/s.45(5) of the MRTP Act in view of letter
dt.11/06/2013 submitted by the erstwhile owner for permission of the
said structure.
10 Moreover, after careful perusal of the directions given by
the Hon’ble High Court in Writ Petition (L) No.2043 of 2014 which was
filed by one Tower and Infrastructure Providers Association and Anr., it
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reveals that the Hon’ble Bombay High Court held that the grievance of
the petitioners is that though Union of India, the Department of
Communication has issued certain directions which are binding on the
State Government, the Hon’ble Bombay High Court, therefore, directed
that no coercive steps shall be taken pursuant to the show cause notice
issued by the local authorities. Further, by modified order
dt.12/09/2014, the Hon’ble Bombay High Court further directed that
the State Government and/or all authorities and/or the concerned
municipal and/or local corporations not to take any coercive steps
pursuant to the Impugned Regulations issued by the State Government
and not to seal the tower sites and not to disconnect the electricity.
Therefore, having regard to the entire facts and circumstances, this
Court is of the view that the plaintiff has made out a prima facie case
and balance of convenience also lies in favour of the plaintiff.
Considering these circumstances, at this juncture, if the defendants are
not restrained by way of temporary injunction, the plaintiff will suffer
irreparable loss which cannot be compensated in terms of money.
Therefore, point Nos.1 to 3 are answered in the affirmative.
AS TO POINT NO.4.
11 In view of aforesaid findings on the point Nos.1 to 3,
following order is passed.
ORDER
1 Notice of Motion No.791 of 2020 is hereby made absolute.
2 Pending the hearing and final disposal of the suit, the
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defendants are temporary restrained from taking any coercive action of
demolition of the notice structure and/or disconnecting electricity
supply against the suit site pursuant to the impugned notice
dt.15/05/2019 and impugned order dt.24/01/2020.
3 Cost in cause.
4 Notice of Motion stands disposed off accordingly.
Date:12/07/2023. (R. M. Mishra )
Judge, City Civil Court,
Gr.Mumbai.
Dictated on :12/07/2023.
Typed on :13/07/2023.
Signed on :15/07/2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
15/07/2023 04.25 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Shri. R. M. Mishra
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
12/07/2023.
JUDGMENT/ORDER signed by P.O.on 15/07/2023
JUDGMENT/ORDER uploaded on 15/07/2023
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