Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1023/18 IN LC SU 671/18
CNR NO.MHCC010033432018
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.1023 OF 2018
IN
L.C.SUIT NO.671 OF 2018
Indus Towers Limited ... Plaintiff
Versus
Municipal Corporation of Greater
Mumbai & Anr. ... Defendants
Coram : H.H.Shri Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 18th April, 2019.
Mr.Dalal, advocate for plaintiff.
Mr.Pradeep Patil, advocate for defendant/BMC.
O R D E R
1. The plaintiff by this notice of motion seeks restoration of
tellycommunication site of plaintiff located at “Jyoti Sadan”, Plot
No.26 B.B.R, land bearing C.S. No.1704 at N. Subhash Chandra
Road, Marine Drive, Mumbai. The plaintiff also had prayed for
temporary injunction restraining the defendant from taking coercive
action including demolition/dismantling/disconnecting electricity
supply against the said site against the plaintiff.
2. Heard Ld. Adv.for the plaintiff and the advocate for
defendant.
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3. The plaintiff had challenged the order passed by the
defendant/corporation on 22.01.2018 pursuant to the notice issued
to the plaintiff under Section 55 of M.R.T.P. Act dated 09.11.2017.
It is the case of the plaintiff that the mobile towers are erected
at “Jyoti Sadan”, Plot No.26 B.B.R, land bearing C.S. No.1704 at N.
Subhash Chandra Road, Marine Drive, Mumbai. In view of the
application for permission to the defendant No.1 on 11.07.2002 the
plaintiff was granted permission on 06.09.2002. The plaintiff under
the mistaken belief had renewed the permission for time to time. It is
contended that the Hon'ble High Court in his order dated 04.09.2013
in Writ Petition No.6802/2013, ruled that the permission once
granted in one time permission. No renewal of the same is
contemplated. The plaintiff received the noticed dated 09.11.2017
under Section 55 of the M.R.T.P. Act issued by the defendant No.2.
The plaintiff replied the notice on 13.11.2017. The plaintiff was
served the with the speaking order 22.01.2018 for demolition of the
site of the plaintiff. The plaintiff, therefore, has moved the present
notice of motion for temporary and temporary mandatory injunction.
3. The defendant had filed say to the notice of motion. It is
contended that the suit is not maintainable in the light of section 149
of the M.R.T.P. Act. It is submitted that the notice u/S.55 of M.R.T.P.
Act was issued to the plaintiff for unauthorised erection of mobile
towers, the same was replied, and on failure to show the
authorisation of the structure speaking order was passed. It is
submitted that the notice structure is demolished by the office on
22.01.2011, four microwave antennas were demolished and
disconnected the electric supply. Further one microwave antenna and
one mobile antenna was demolished on 23.01.2018. It is submitted
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that unauthorised structure is partly demolished after following due
process of law, therefore, the plaintiff is not entitled to reinstall, re
fixation of the notice work. It is submitted that the plaintiff has not
come up with ill hands before the Court. It is stated that the plaintiff
is not entitled for injunction as prayed for.
4. The notice dated 09.11.2007 gives a scheduled which is as
follows :
SCHEDULE :
“Unauthorized erection of 1) Mobile Cabin 1 Nos. adm. 2.40m x
3m x 2.80m in chowk area at ground floor level 2) installation of
mobile antennas 6 nos, microwave antenna 2 nos at terrace level 3)
installation of microwave antenna 6 nos at staircase area roof slab
above terrace level of the building known as 137, Jyoti Sada, 'A' Road,
Churchgate, Mumbai400 020 as shown in sketch.”
The reply points out that 6 antennas are demolished by the
defendant/corporation.
5. The schedule point out a mobile cabin, 6 mobile
antennas and 2 microwave antennas at the terrace level, 6 microwave
antennas at staircase area. Out of 14 mobile antennas 6 are said to be
removed partially by the defendant corporation after the issuance of
notice and passing of order.
6. It would be worth to refer to the observation of the
Hon'ble Bombay High Court, Civil Appellate Jurisdiction in Writ
Petition No.6802 of 2013 in the case of Indus Towers Limited V/s
Mira Bhayandar Municipal Corporation & Ors. vide order dated
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04.09.2013
“The submission made by the Learned Counsel appearing on
behalf of the corporation is without any substance. So far Section 386
of BMC Act is concerned, it pertains to renewal of licenses yearly. In
the present case, the application was made by the Petitioner under
Section 45 of the MRTP Act for erection of the 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.”
7. Even assuming that the permission is not renewed, it is to be
noted that the said permission is one time permission. It is clear that
the plaintiff had permission for installation the mobile
tower/equipments which was granted with conditions.
8. Admittedly, the plaintiff was granted permission to erect the
mobile antennas at the suit site by permission dated 06.09.2002. In
the light of the above referred judgment the permission was one time
and need not be renewed time to time. It prima facie shows that the
plaintiff had constructed the cabin and erected the antennas in the
light of the permission granted. Going by the contention that there is
partial demolition still the cabin and the other 8 antennas still exist.
The plaintiff is armed with a valid one time permission. It is also not
the case of the defendant that there was any breach of the condition
put forth by the plaintiff while granting permission for erection of
mobile towers.
9. The plaintiff had made out prima facie case. It is not
doubt true that 6 antennas are demolished by the defendant
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corporation. The plaintiff can well protected restraining the
defendant for further demolition the 8 remaining antennas and the
cabin. The balance of convenience lies in favour of plaintiff. The
plaintiff would be put to irreparable loss, if the corporation is not
restrained from acting upon the order dated 22.01.2018. By ad
interim order the electricity connection is restored. It also needs to be
continued.
The plaintiff is not entitled for restoration of the
antennas demolished as it would amount to granting of final relief in
the suit at this stage.
In result the following order is passed :
ORDER
1. The Notice of Motion No.1023/2018 is allowed to the extent of 8
remaining microwave/mobile antennas and cabin.
2. The defendant corporation is hereby restrained by temporary
injunction from taking coercive action against the plaintiff in respect
of remaining 8 antennas and the cabin at the suit site.
3. The Notice of motion is disposed off accordingly.
(Sanjay N. Yadav)
Judge,
City Civil Court, Mumbai.
Dictated on : 18.04.2019
Transcribed on : 18.04.2019
Signed by HHJ on : 22.04.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 22.04.2019 At 05.45 pm
NAME OF CLERKTYPIST : Mrs. P. L. Parab
Name of the Judge (With Court
Room no.)
HHJ Shri. S. N. Yadav
C.R. No.05
Date of Pronouncement of
JUDGMENT/ORDER
18.04.2019
JUDGMENT/ORDER signed by
P.O. on
22.04.2019
JUDGMENT/ORDER uploaded
on
22.04.2019
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