Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 NM No.1088-19 in SU No.1095-19
CNR NO.MHCC01-002806-19
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 1088 OF 2019
IN
L.C. SUIT NO. 1095 OF 2019
Indus Tower Limited …...Plaintif
Versus
Municipal Corporation of Gr. Bombay & Ors...... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 05th February, 2020.
Appearance:
Ld. Adv. Mr. Irani for the plaintif.
Ld. Adv. Mr. Suryavanshi for defendant/MCGM.
ORDER
1. The plaintif by this notice of motion seeks injunction
restraining the defendant corporation from acting upon the
notice issued under Section 351 of the Mumbai Municipal
Corporation Act, 1888 (hereinafter referred to as 'the MMC
Act') dated 19.12.2018 and the Order dated 04.01.2019.
2. Heard Learned Advocate for the plaintif and Learned
Advocate for the defendant corporation.
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3. The Schedule of the Notice dated 19.12.2018 reads as
under:-
‘’Unauthorized installation of 2 nos. of mobile
antenna/towers and equipment on the terrace of the building
known as ‘’Beig Mansion’’ Beside Orient Club, Girgaon
Chowpty, Mumbai-04.’’
4. It is argued by the plaintif that application for
permission to install mobile towers was made on 09.08.2015.
All the requirements for permission were complied. The
scrutiny fees was paid by the plaintif but the defendant
corporation had not decided the application.
It is contended by the defendant corporation that there
is no cause of action. The suit site was inspected on
19.12.2018, unauthorized installation of two mobile antennas
in ‘Beig Mansion’ was found without permission. The plaintif
neither replied the same and it was concluded that notice
structures are illegal. It is contended that the notice of motion
deserves to be dismissed.
5. The plaintif had applied for permission to erect the
mobile towers and had paid the required scrutiny fees. The
application is not decided by the corporation. These
contentions of the plaintif are not denied by the corporation.
6. The Learned Advocate relied upon the judgment of the
Hon'ble High Court in Writ Petition No. 2346/2014 in the
case of Indus Towers Ltd. V/s M.C.G.M. It is observed that
the Counsel representing the defendant corporation had made
the statement that if the application for grant of permission to
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erect the mobile towers are made by the petitioner in
prescribed form in accordance with the Rules and Regulations,
the Deputy Chief Engineer (Building Proposal) Special Cell
shall accept the applications. The defciencies further
observed if there are technical defciencies in the application
which made by the petitioners, the same shall be accepted by
the ofcers subject to scrutiny. He was to call upon the
petitioner to remove all the technical defciencies. The
application made are required to be processed at earliest.
7. Admittedly, the plaintif had moved an application to the
MCGM on 09.05.2015 for permission the installation of cellular
mobile telecommunication system. However, no
communication is made by the corporation within prescribed
period of 60 days. The permission is deemed to be granted
under Section 45 (5) of M.R.T.P. Act.
As the plaintif had deemed permission in accordance
with Section 45 (5) of M.R.T.P. Act, it cannot be state that the
structures are unauthorized. There is triable issue involved in
the case. It can be dealt into only in the trial.
The plaintif has made out prima-facie case in his favour.
The balance of convenience lies in favour of the plaintif. The
plaintif 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. 1088/19 is allowed.
2. The defendants corporation are hereby restrained from
acting upon the notice dated 19.12.2018 issued under
Section 351 of the MMC Act and the order dated
04.01.2019 till the disposal of the suit.
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3. The Notice of Motion stands disposed of accordingly.
(Sanjay N. Yadav)
Judge,
Date : 05.02.2020 City Civil Court, Mumbai.
Dictated on : 05.02.2020
Transcribed on : 06.02.2020
Signed by HHJ on : 13.02.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 13.02.2020 at 5.33 p.m.
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
05.02.2020
JUDGMENT/ORDER signed
by P.O. on
13.02.2020
JUDGMENT/ORDER
uploaded on
13.02.2020
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