Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no.761-2018 L.C.SU no.560-2018
CNR MHCC01-002769-2018
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.761 OF 2018
IN
L.C. SUIT NO.560 OF 2018
Indus Towers Limited ]...Plaintiff.
Versus
Municipal Corporation of ]
Greater Mumbai & Anr. ]... Defendants
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 5th April, 2018.
Mr. Dalal with Mr. Kapadia, advocate for plaintiff.
Ms. Patil, advocate for defendant.
ORDER
1. The plaintiff, an infrastructure provider for mobile towers,
has taken out this notice of motion seeking interim relief of injunction
for restraining the defendant Corporation from demolishing /
dismantling mobile tower and disconnecting electricity supply located
at the terrace of Siddhi Cooperative Housing Society (for short,
“Siddhi Society”) at C.T.S. no.1010, 10th Khetwadi Road, Mumbai – 400
004.
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2. The facts, in brief, are that the plaintiff Company provides
telecommunication infrastructure and raising mobile towers etc.
According to the plaintiff, it holds requisite licenses and permits to do
its business under the prevailing laws and notifications.
3. According to the plaintiff, in 2013 the Department of
Telecommunication (for short, “DOT”) issued certain guidelines
applicable across the country. However, the State Government issued
certain guidelines which were contrary to the DOT guidelines.
Therefore, the same were challenged in Writ Petition (L) no.2043 of
2014. The Hon'ble High Court of Bombay by order dated 25.8.2014
and subsequent order dated 12.9.2014 allowed the infrastructure
providers to make applications as per DOT guidelines, 2013 instead of
following the state guidelines 2014. Consequently, the Town Planning
department of the Government of Maharashtra by letter dated
7.11.2014 informed the local authorities including the defendant
Corporation to follow the directions given in the aforesaid Writ Petition.
4. The plaintiff holds a mobile tower site on the terrace of
the building of the Siddhi Society. On 27.9.2016 the plaintiff applied to
the defendant Corporation seeking permission to raise mobile towers at
the terrace of the said building. The plaintiff submitted all the
documents and paid scrutiny fees. On 19.10.2016 the defendant
directed the plaintiff to submit additional documents, though the same
were not required under DOT guidelines. However, the plaintiff filed
the documents and assured to file remaining documents in the due
course. The plaintiff was informed that the requisite permission would
be granted shortly.
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5. However, on 25.10.2017 the plaintiff was called upon by
the defendant to submit documents / permission received from
competent authority for raising the mobile towers on the said building
within 7 days with a remark that upon failure, an action for demolition
will be taken.
6. On 6.11.2017, the plaintiff replied the aforesaid letter and
requested to withdraw the same. On 4.12.2017, the plaintiff received a
letter through the Siddhi Society issued by the defendant directing the
plaintiff that the structure of mobile tower being unauthorized remove
the same. On 15.12.2017, the plaintiff replied the same, however,
officers of the defendants are threatening the plaintiff to demolish the
tower site. According to the plaintiff, it has complied all the formalities
and filed all the documents, and therefore, the defendant is estopped
from contending that the tower site as unauthorized. According to the
plaintiff, the said service is very essential and the same cannot be cut off
and therefore, the balance of convenience lies in favour of the plaintiff.
7. The defendant opposed the motion by contending that it
received a complaint from Mr. Vipul Jogani regarding unauthorized
installation of mobile transmission towers of three different companies
on the terrace of Siddhi Society. Therefore, officers of defendant by
letter dated 25.10.2017 asked the said society to submit documents and
permits showing authenticity of construction of the said tower. The
plaintiff replied the same on 6.11.2017 by contending that it had
applied for permission through its Architect.
8. According to the defendant, the plaintiff has not complied
with the directions given by the defendant and therefore, its proposal
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stood rejected. According to the defendant no permission has been
granted to the plaintiff to raise mobile towers on the terrace of Siddhi
Society. Therefore, the defendant initiated action by issuing notice to
the Siddhi Society under Section 55 of the M.R. & T.P. Act. The same
has not been complied with within the given limit and therefore, on
17.1.2018 the defendant demolished six towers out of total thirteen
towers erected at the terrace of the said society. The office bearers of
the said society informed the defendant that they would remove the
remaining towers on their own accord, as due to demolition action
initiated by the Corporation, the building was sustaining vibrations etc.
Therefore, the officers of the defendant did not remove the remaining
towers. According to the defendant, the suit has became infractous.
The plaintiff has suppressed the action for demolition and thus, is not
entitled to interim reliefs.
9. The Learned Advocate for the plaintiff submitted that the
defendant has not decided its application within a period of 60 days and
therefore, the plaintiff has got deemed permission to raise mobile
towers at the terrace of the said society.
10. On the other hand, the Learned advocate for the defendant
submitted that the plaintiff has raised unauthorized structure of mobile
towers on the terrace of said society. The defendant has taken action
under the provisions of M.R. & T.P. Act by following due process of law
and partly demolished the towers.
11. Considering the submissions made by the respective
advocates and the copies of documents placed on record, the following
points are decided for the reasons stated below:
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SR.
NOS.
POINTS FINDINGS
1 Whether the plaintiff has made out a prima
facie case?
In affirmative.
2 Whether the points of balance of
convenience, hardship and irreparable loss lie
in favour of the plaintiff?
In affirmative.
3 Whether the plaintiff is entitled to temporary
injunction as prayed for?
In affirmative.
REASONS
As to point nos.1 to 3:
12. The plaintiff has instituted the suit seeking declaration that
it has set up validly the mobile tower site at the terrace of Siddhi
Society. The plaintiff has also prayed for consequential relief of
permanent injunction.
13. It is necessary to look into the copies of documents placed
on record by respective parties. The plaintiff has filed the copies of
DOT guidelines, the guidelines issued by the State Government of
Maharashtra. It has also produced on record the copies of orders
passed in Writ Petition (L) no.2043 of 2014. The copy of letter dated
4.11.2014 issued by the Town Planning Department to the local
authorities in Mumbai including the defendant, prima facie shows that
they were directed to follow the aforesaid orders dated 25.8.2014 and
12.9.2014 by which the Hon'ble High Court of Bombay allowed the
infrastructure providers to make an application as per the DOT
guidelines instead of state guidelines 2014.
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14. The copy of application dated 27.9.2016 submitted by the
architect of the plaintiff to the defendant prima facie shows that the
plaintiff had applied for permission for raising temporary antennae /
BTS platform, canopy and poles for installation of cellular mobile
telecommunication system on the terrace of Siddhi Society and also
filed certain documents with the same. It also appears that the plaintiff
deposited scrutinies fees on 13.10.2016. In response to the letter dated
19.10.2016 issued by the defendant, the architect of the plaintiff
complied with the requisition made in the said letter. Thus, it prima
facie appears that on 24.10.2016 the plaintiff complied with the
formalities and was waiting for the permission.
15. The copy of application dated 3.10.2017 filed by Vipul
Jogani to the defendant, prima facie shows a complaint about raising
multiple mobile transmission towers at the terrace of Siddhi Society by
three different companies. The copy of letter dated 25.10.2017 issued
by the defendant to the Siddhi Society shows that the said Society was
called upon to submit the documents showing authenticity of the said
towers. The copy of communication dated 14.11.2017 inter se the two
departments of defendant namely Assistant Engineer (Building
Proposal) Special Cell to Designated officer (B & F) 'D' ward prima facie
shows that the special Cell received a proposal from Reliance Jeo Info
Tech and accordingly by letter dated 23.2.2016 it was informed to the
concerned architect that till the compliance of requisitions, the proposal
stood rejected and till date the Special Cell had not granted any
permission to the mobile tower erected at the said location.
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16. The Learned Advocate for the plaintiff submitted that the
particular letter dated 14.11.2017 pertains to the tower site of Reliance
Jeo Info Tech Limited. It has no nexus with the tower site of the
plaintiff raised on the terrace of the Siddhi Society. According to him,
the defendant Corporation has never informed about the rejection or
grant of its proposal to the plaintiff, and therefore, the plaintiff has
received deemed permission and accordingly the mobile towers are
raised. On the other hand, the Learned Advocate for the defendant
submitted that the said letter dated 14.11.2017 shows that there was no
permission for raising mobile towers to anybody.
17. The copy of notice dated 22.12.2017 issued under Section
55 of M.R. & T.P. Act in the name of the office bearers of the Siddhi
Society shows that they were called upon to remove the unauthorized
development i.e. installation of 13 mobile antenna/ towers. The copy
of report dated 18.1.2018 shows that on 17.1.2018 the mobile towers
were partly demolished. The report is coupled with the copies of
photographs depicting an action of demolition of mobile towers. The
said photographs do not bear the date. Further, the copy of letter dated
17.1.2018 issued by the Siddhi Society to the Designated officer prima
facie shows that they sought two days time to remove the remaining
mobile towers on their own accord, as due to demolition work the
entire building was getting vibrations, etc.
18. On the other hand, the plaintiff has filed certain
photographs bearing dates 18.1.2018, 22.1.2018, 1.2.2018 showing
that the some mobile towers were lying demolished and some were
standing at the site. Thus, it prima facie shows that during the action
taken by the defendant on 17.6.2017 some of the towers were
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demolished and the remaining towers are standing. There is nothing
place on record by the defendant to show that what action it had taken
in respect of the remaining towers which were not demolished on
17.1.2018.
19. By order dated 22.1.2018 this Court has directed both the
parties to maintain statusquo as on that date.
20. Considering the aforesaid facts and circumstances, it prima
facie appears that though the plaintiff had applied for permission to
raise mobile towers and further complied with the requisition made by
the defendant, the defendant did not pass any order either allowing or
rejecting its proposal. The Section 45(5) of M.R. & T.P. Act provide
that “if 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.”
21. Here, it prima facie appears that by letter dated 24.10.2016
the plaintiff's architect complied with the requisition made by the
defendant. The defendant has not produced anything on record to
show that it had further made some requisition to the plaintiff and the
plaintiff did not comply with the same and therefore, the proposal was
kept in abeyance. In absence of any such material, it appears prima
facie that after a period of sixty days after 24.10.2016 i.e. probably after
24.12.2016 the plaintiff got deemed permission as contemplated under
Section 45(5) of the M.R. & T.P. Act.
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22. Nothing has been placed on record by the defendant as to
what happened with the proposal of the plaintiff which was submitted
on 27.9.2016 and what further orders were passed after 24.10.2016 till
issuance of letter to the Siddhi Society on 25.10.2017. Moreover, it is a
question, prima facie arose before this Court, as to why the defendant
issued notice to the Siddhi Society alone and why it was not issued to
the plaintiff. Similarly, it is not specifically mentioned about the
rejection of the proposal of the plaintiff in inter department
communication dated 14.11.2017.
23. Under such circumstances, if the defendant is not
restrained from demolishing the remaining towers, the plaintiff will
suffer irreparable loss which cannot be compensated in any terms. The
learned Advocate for the plaintiff submitted that the towers of Reliance
Jeo Company were demolished. The defendant has not prima facie
clarified about the same. Thus, there is no material on record to show
as to towers of which company were so demolished.
24. It is necessary to determine whether the plaintiff has got
the deemed permission for that purpose. It is necessary to allow the
respective parties to lead evidence in support of their rival claims.
However, the mean time, it is necessary to protect the mobile towers
which were standing at the terrace after the action of part demolition
dated 17.1.2018 was taken by the defendant. Under such
circumstances, intervention of this Court appears necessary. Therefore,
point nos.1 to 3 are answered in affirmative and following order is
passed:
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ORDER
1. Notice of Motion no.761 of 2018 is made absolute in terms of
prayer clauses (a) and (b) by restraining the defendant from
demolishing the remaining towers standing at the terrace of Siddhi
Society and disconnecting electricity supply till the final disposal of suit.
2. The plaintiff is also restrained from raising any further towers at
the said site till disposal of suit.
3. Hearing of the suit is expedited and be completed by end of
December, 2018.
Sd/
(M.S. Deshpande)
Ad Hoc Judge,
City Civil Court, Mumbai.
Dated: 05.04.2018
Dictated on : 05/04/2018.
Transcribed on : 10/04/2018.
Signed by HHJ on : 16/04/2018.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNE
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 17.04.2018 At 03.16 p.m.
NAME OF STENOGRAPHER : Mrs. V. U. Pawar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
05.04.2018
JUDGMENT/ORDER signed by
P.O. on
16.04.2018
JUDGMENT/ORDER uploaded
on
17.04.2018
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