Order 1

Order Details: Other
Pdf Text: 1 NM 1088-19 in Stamp No. 3009-19
CNR NO.MHCC0100280619
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 1088 OF 2019
IN
L.C. SUIT (STAMP) NO. 3009 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. Irani for the plaintiff.
Ld. Adv. Smt. Patil for defendant/MCGM.
ORDER
1. The plaintiff by this application seeks injunction restraining the
defendant corporation from acting upon order dated 04.01.2019.
2. Heard Learned Advocate for the plaintiff and the Learned
Advocate for the defendant.
The notice dated 19.12.2018 of the MMC Act called upon the
plaintiff to remove of 2 antennas from the terrace of the building. The
notice was replied by the plaintiff received on 10.01.2019. Vide order
dated 04.01.2019, the plaintiff was directed to remove the notice
structure.
It is contended by the plaintiff that he had made an application
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for permission to install antennas and mobile towers on 09.08.2015. It
is the case of the plaintiff that he had complied all the requirements for
permission to install the antennas.
The plaintiff had paid scrutiny fees. It is contended that the
plaintiff had no response from the defendant. It contended that in the
absence of the reply, the permission to the defendant to set up the said
site was deemed to have been granted. The plaintiff had installed /
erected the antennas accordingly.
3. The defendant MCGM had contended that the plaint does not
disclose causes of action. The structures are without permission. It is
contended that the suit is without any cause of action, need not be
entertained.
4. Admittedly, the plaintiff had applied for permission to erect the
mobile towers and accordingly had made payment of scrutiny fees, the
challan was issued by the office of the defendants i.e. Exh. 'F' to Exh.
'H'. The application made by plaintiff is not decided by the defendant.
This contentions of the plaintiff are not denied in the say on behalf of
MCGM.
5. 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 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 deficiencies further observed if there
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are technical deficiencies in the application which made by the
petitioners, the same shall be accepted by the officers subject to
scrutiny. He was to call upon the petitioner to remove all the technical
deficiencies. The application made are required to be processed at
earliest.
6. Admittedly, the plaintiff 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.
7. The proposal was not considered within 60 days. The permission
sought by the plaintiff is presumed have been granted to the
applicant/plaintiff. The MCGM fled on record the letter dated
14.12.2018 issued to the plaintiff. It appears to be in order about the
proposals pending in the office. It appears to be a composite order, the
proposals made by the plaintiff were recorded and the scrutiny fees paid
is forfeited. The MCGM vide order dated 19.12.2018 had recorded the
proposals. The proposals are reverted after deemed permission after
expiry of 60 days, does not remain in the character of proposal. The
defendant cannot treat the proposal, as proposal after expiry of 60 days.
The Learned Advocate for the plaintiff had also relied upon the
judgment in Writ Petition No. 2043/2014 in the case of Tower and
Infrastructure Providers Association & Anr. V/s State of
Maharashtra. It was observed that if their technical deficiencies, the
same were to be cleared by the officers subject to scrutiny. He can
always call upon to petitioner to remove of the technical deficiencies.
There is nothing to indicate that the technical deficiencies were
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ever sought to be cured by the defendant from the plaintiff.
8. As the plaintiff had deemed permission in accordance with
Section 45 (5) of M.R.T.P. Act, it cannot be state that the structures are
unauthorised. There is triable issue involved in the case. It can be dealt
into only in the trial.
The plaintiff is 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. Adinterim application is allowed.
2. The defendant corporation is hereby restrained from acting upon
notice dated 19.12.2018 and the order dated 04.01.2019 till disposal
of the suit.
(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 1088-19 in Stamp No. 3009-19
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 05.04.2019 at 12.05 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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