Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Notice of Motion No.1392 of 2019
In
L.C.Suit No.823 of 2019
Indus Towers Limited ...Plaintiff
V/s
Municipal Corporation of Greater Mumbai
& Anr ...Defendant
Adv. Shahjad Irani for plaintiff.
Adv. G.O.Giri for defendant
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 4th April , 2019
(Court Room No.06)
O R D E R
1 Plaintiff has taken out this notice of motion to restore the
electricity supply and not to take any action of demolition on the basis
of impugned notice dated 12/06/18 and order dated 02/02/2019 in
respect of the mobile tower situate at Madhav Nagar society,
Junction of Bhavani Shankar Road, Dadar (W),Mumbai400 028 till the
decision of suit on merit .
2- Mr. Shahjad Irani advocate for plaintiff has submitted that
plaintiff is a company incorporated under the Companies Act 1956 and
in the business of establishment , maintenance and provision of
telecommunications infrastructure and assets including mobile towers
on lease and rent. Plaintiff has complied the directions of Dept. of
Telecommunication Govt. of India and also the provisions of the Indian
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Telegraph Act, 1885. Tower in dispute is installed by plaintiff in the
year 2002. Plaintiff has paid license fee to the defendant. Plaintiff has
followed the rules and regulations of Municipal Corporation for Gr.
Mumbai. However, defendant suddenly issued notice to the plaintiff
under section 55 of MRTP Act stating that the mobile tower is
unauthorized. Plaintiff gave reply to the notice. However, officer of the
corporation did not consider the documents and passed impugned
order. He has invited my attention towards the documents on record.
According to him, for the abundant precaution the architect of
defendant has applied for a formal renewal from time to time. He has
also invited my attention towards the orders of Hon'ble High Court in
writ petition no. 6802/2013 and writ petition No 8101/2011.
According to him, defendant cannot get the electric supply to the
tower. The facility of mobile tower is now essential service. The officer
of the defendant has malafidely issued the notice and passed the order.
Hence he prayed to grant ad interim relief.
3 Mr. G.O. Giri advocate for defendant has submitted that
plaintiff has to follow the rules and regulations of Municipal
Corporation. However, plaintiff has not renewed the licence and
erected the tower therefore, notice is issued. Thus, the defendant has
followed the due process of law. Hence, he prayed to refuse ad interim
relief.
4- The impugned notice alleges unauthorized erection of
mobile tower and cabins on the terrace of Madhav Nagar society,
Junction of Bhavani Shankar Road, Dadar (W)Mumbai 400 028.
Admitedly, plaintiff gave reply to the notice and also furnished the
documents. However, the officer of the defendant discarded the
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documents and held that plaintiff unauthorizedly erected the tower. It
is to be noted that in writ petition no. 6802/2013 Indus Towers
Limited V/s Mira Bhayandar Municipal Corporation and Ors.
Hon'ble High Court held that question of granting yearly renewal of
such permission does not arise. Hon'ble High Court further held that
the respondent Municipal Corporation has no authority. From the
perusal of documents it appears that the said mobile tower is in
existence since 2002. Plaintiff has paid the fee to the Municipal
corporation. The architect of the plaintiff Mr. Arun Dange has applied
for the renewal of mobile tower vide letter dated 11/5/2018. Thus it
prima facie shows that the officer of the defendant without
appreciating facts issued a notice and also disconnected the electric
supply. In Aircel Limited V/s Kolhapur Municipal Corporation and Ors,
Writ Petition No. 8101 of 2011, Hon'ble High Court held that Municipal
Corporation has no authority to disconnect the electric supply. Hon'ble
High Court further held that since the action of disconnection is
without authority of law, the same cannot be sustained.
5 Here in the present suit as discussed in supra the mobile
tower is in existance since 2002. Plaintiff has comlied all the
permissions issued by departments of Government of India. Therefore,
it cannot be said that plaintiff has recently erected the tower. Hence, in
such a circumstances, plaintiff is entitled for ad interim relief . Hence,
following order:
ORDER
1 Defendant/MCGM is directed to forthwith restore the electric
supply to the suit tower.
2If the defendant/corporation failed to restore the electric
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supply then plaintiff is entitled to restore the electric
supply on his own costs.
3 Defendant is directed not to take any coercive action in
respect of suit tower on the basis of impugned notice and
order till next date.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay
Dictated on : 4/04/2019
Typed on :5/04/2019
Signed by HHJ. :5/04/2019
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
5/04/2019
S.D. Raje
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with Court
Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
4/04/2019
JUDGEMENT/ORDER signed by
P.O. on
5/4/2019
JUDGEMENT/ORDER uploaded
on
5/4/2019
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