Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3162-19 in Suit No.2332-19
CNR NO.MHCC0100861819
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 3162 OF 2019
IN
L.C. SUIT NO. 2332 OF 2019
Mr. Zainuddin Abid Unwala …...Plaintiff
Versus
The Municipal Corporation of Gr. Mumbai ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 13th September, 2019.
Appearance:
Ld. Adv. Mr. Jafari for the plaintiff.
Ld. Adv. Mr. Pradeep Patil for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks temporary injunction
restraining the defendant corporation from enforcing the notice issued
under Section 55 of the Maharashtra Regional and Town Planning Act,
1966 (hereinafter referred to as 'the M.R.T.P. Act') dated 16.10.2018
and the order dated 16.03.2019.
2. Heard Learned Advocate for the plaintiff and Learned Advocate
for the defendant corporation.
3. The defendant by notice dated 16.10.2018 had directed
Zainuddin Abid Unwala and others to remove the unauthorized
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2 NM 3162-19 in Suit No.2332-19
installation of 3 nos. of mobile antenna/towers and cabins on the
terrace of the building known as Unawalla Buildng No. 291/293,
Lamington Road, Mumbai36.
4. It is the contention of the plaintiff that the action of the defendant
is without any cause and action. It is contended that the Indus Tower
Limited a Company and Cellular Mobile Telecommunication System
had erected the Mobile Towers with proper permission from the
defendant and the Towers are installed on the basis of an agreement
dated 28.02.2018. It is contended that inspite of valid permissions, the
false notice is issued to the plaintiff. It is contended that the defendant
should be restrained from acting upon the notice dated 16.10.2018.
5. The defendant corporation had filed the say to the notice of
motion. It is contended that there is no cause of action for the plaintiff,
who filed the suit against the present defendant. It is contended that
the notice of motion deserved to be dismissed.
6. The schedule of the notice dated 16.10.2018 reads as under:
''Unauthorized installation of 3 nos. of mobile antenna/towers
and cabins on the terrace of the building known as Unwalla Building
No. 291/293, Lamington Road, Mumbai36.''
7. The notice was replied by the Indus Tower Limited. The plaintiff
does not seems to have replied the notice. The notice is contested by the
Indus Tower Company Limited. It is in dispute by virtue of an
agreement that the Indus Towers had installed the Mobile Towers. The
Telecommunication company is expected to take all the requisite
permission from the competent authority and is further required to
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erect the Towers. Admittedly, the plaintiff had only provide space to
erect the Mobile Towers. The plaintiff cannot justify the erection of
Mobile Towers. The issues relating to erection of Mobile Tower are in
between Indus Tower Limited and Corporation. There is no privity of
contract between plaintiff and defendant corporation. The plaintiff
cannot justify the actions of Indus Tower Limited on the basis of an
agreement.
8. It may be true that the notice is issued to the plaintiff by the
defendant corporation for action sought to be taken against Indus
Tower Limited. The plaintiff at the most can bring relevant facts to the
knowledge of the defendant corporation by answering the notice. It
could have only point out the agreement between the plaintiff and
Indus Tower Limited. The plaintiff cannot justify the contentions to the
notice on behalf of Indus Tower Limited. The plaintiff has no locus to
seek temporary injunction.
The plaintiffs has failed to make out the primafacie case in his
favour. The balance of convenience does not lies in favour of the
plaintiff. The plaintiffs would not be put to irreparable loss, if the
temporary injunction is refused.
In the result, following order is passed.
ORDER
The Notice of Motion No. 3162/2019 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 13.09.2019 City Civil Court, Mumbai.
Dictated on : 13.09.2019
Transcribed on : 16.09.2019
Signed by HHJ on : 21.09.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 21.09.2019 at 5.56 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
13.09.2019
JUDGMENT/ORDER signed by
P.O. on
21.09.2019
JUDGMENT/ORDER uploaded
on
21.09.2019
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