CR No.5387 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.5387 of 2010 (O&M) Date of decision: 26.8.2010 Harjinder Singh and others ......Petitioner(s) Versus Divisional Engineer Telecom and another ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. C.S.S. Shishodia, Advocate for Mr. J.S. Uppal, Advocate for the petitioners. Rakesh Kumar Garg, J. CM No.21628-CII of 2010 Application is allowed subject to all just exceptions. CR No.5387 of 2010 Prayer for adjournment is made. However, the same is not accepted. This is plaintiffs' revision petition challenging the impugned order dated 15.5.2010 whereby Additional District Judge, Sangrur has accepted the appeal and set aside the order dated 23.1.2009 passed by the Civil Judge (Jr. Division), Malerkotla resulting into dismissal of application under Order 39 Rules 1 and 2 CPC for grant of ad interim injunction in their favour. As per the averments, forefathers of the petitioners had constructed one Dharamshala in the village for their social functions. The petitioners and other villagers are using the above said Dharamshala for their social functions and ceremonies etc. The Gram Panchayat of village Jabbo Majra has got no concern with the ownership/possession of the said CR No.5387 of 2010 (O&M) 2 Dharamshala and has got no right to give the same on lease to any other person or Company. In the month of July, 2008, the defendant-respondents in connivance with Jagtar Singh, Ex-Sarpanch of the village and one contractor of BSNL, Malerkotla tried to install a mobile tower for telephone on the said Dharamshala illegally. Thereupon, the petitioners filed a suit for permanent prohibitory injunction. Defendants appeared and filed written statement submitting that they had already erected and installed a mobile tower of BSNL in the General Dharamshala. On the basis of the aforesaid statement, the petitioners withdrew the said suit. Thereafter, they moved an application to the Chairman, Pollution Board, Punjab and Deputy Commissioner, Sangrur and Environmental Engineer of the Punjab Pollution Board visited the spot on 11.9.2008 and observed that the Company had installed a tower along with D.G. Set but the tower was not started. Thereafter, the respondents tried to start the aforesaid tower, then the petitioners filed a suit for mandatory injunction for issuance of direction to the respondents to remove the mobile tower which they had erected and installed illegally forcibly, without due course of law and without getting any permission, with a further prayer for issuance of permanent prohibitory injunction restraining the defendants from utilizing/ functioning the above said mobile tower along with D.G set illegally and forcibly and without due course of law. Along with the plaint, the petitioners also filed an application under Order 39 Rules 1 and 2 CPC for grant of ad interim injunction during the pendency of the suit. The respondents appeared and filed written statement and reply to the application under Order 39 Rules 1 and 2 CPC. The Civil Judge (Jr. Division) Malerkotla allowed the application vide order dated 23.1.2009 vide which the respondents were restrained from starting the CR No.5387 of 2010 (O&M) 3 functioning of the tower during the pendency of the suit. The respondents filed an appeal against the aforesaid order which was allowed by the Additional District Judge, Sangrur, vide impugned order and the order passed by the trial Court was set aside. The aforesaid order of the Lower Appellate Court has been challenged by the petitioners citing following grounds: “i) That the Ld. Lower Appellate Court has gravely erred by holding that the respondents/defendants cannot be restrained from operating the mobile towers which has been installed by them in a thickly populated area within the Lal Lakir of the village. ii) That the Ld. Lower Appellate Court has not taken into consideration the health issues of the villagers and has ignored the fact that installation of the mobile tower in a thickly populated area can cause a huge loss to the health of the villagers. It also causes nuisance to the villagers. iii) That the order Annexure P-6 is liable to be set- aside as per the order dated 11.5.2006 passed by this Hon’ble High Court in Civil Writ Petition No.10978 of 2006 by which the concerned authorities have been directed not to raise construction of tower except, non- residential area that too after obtaining necessary sanction. iv) That Ld.Lower Appellate Court has gravely erred by setting aside the well reasoned order dated 23.1.2009 passed by Ld. Trial Court by holding that the respondents/defendants have got no objection certificate CR No.5387 of 2010 (O&M) 4 from office of Deputy Commissioner. It is further relevant to mention here that no enquiry of whatsoever nature has ever been conducted by any of the official from the office of Deputy Commissioner to observe as to whether it would be in the interest of general public to install mobile tower in the area or it would be health hazardous for the public. The Ld. Appellate Court set aside the order only on the ground that the respondents have got No Objection Certificate from the office of the Deputy Commissioner ignoring the fact that a piece of paper is not more than the health of the thousands of people and moreover, the No Objections Certificate seems to be a procured certificate as it has been mentioned in order dated 23.1.2009 that letter issued by Deputy Commissioner, Sangrur that no permission has ever been granted by the office of Deputy Commissioner. v) That the Environmental Engineer Punjab Pollution Control Board, after inspection recommended that action against BSNL may be initiated u/s 31-A of Air (Prevention & Control of Pollution) Act, 1981 and Water (Prevention & Control of Pollution) Act, 1974. Copy of the letter dated 15.9.2008 is annexed as Annexure P-7. vi) That the District Magistrate also issued a letter to Senior Superintendent of Police Sangrur to take necessary action against regarding the installation of mobile tower on Dharamshala of village Jabbomajra as it will effect the health of villagers. Copy of letter dated 25.8.2008 is annexed as Annexure P-8.” CR No.5387 of 2010 (O&M) 5 I have perused the impugned order and other documents placed on record of this revision petition. Admittedly, the respondents had set up a telephone exchange in the Dharamshala in the year 1993 which is the property of the Gram Panchayat of village Jabbo Majra. It is also an admitted fact that the respondents had erected and installed a mobile tower in the said telephone exchange. There is also no dispute regarding the fact that the area where the mobile tower is erected is in the thickly populated area. The trial Court had granted ad interim stay to the petitioners observing that No objection Certificate was not given to the respondents for starting the functioning of the mobile tower. However, as noticed by the Additional District Judge, Sangrur, the Deputy Commissioner, Sangrur had accorded No Objection Certificate to the respondents for starting the mobile tower vide dated 27.1.2009. Keeping in view the aforesaid NOC whereby the respondents were accorded sanction for running the mobile tower, it is for the Government to see that whether erection of the mobile tower is against the public policy or not. Since the due sanction has been accorded to the respondents by a competent Authority, the running/functioning of the mobile tower at this stage during the pendency of the suit cannot be stayed as it is yet to be seen whether the mobile tower has been erected in accordance with the Government Policy and with the permission of the Competent Authorities, which can be determined only by taking evidence. At this stage, it shall not be equitable to restrain the respondents from functioning at the instance of the petitioners. There is nothing on record on the basis of which it can be said that by erecting this mobile tower on the General Dharamshala any hindrance has been created for performing social functions by the petitioners in any manner. In fact even in the CR No.5387 of 2010 (O&M) 6 grounds of this revision petition, no such issue has been raised and the ground which has been raised pertains to the other issues such as installation of mobile tower in thickly populated area and the same being hazardous to health and without permission of the competent Authority etc. For the aforesaid reasons, I find no merit in this revision petition. Dismissed. However, keeping in view the facts and circumstances of the case, the trial Court is directed to decide the suit as expeditiously as possible. August 26, 2010 (RAKESH KUMAR GARG) ps JUDGE