C.R.No.2939 of 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.2939 of 2009. Decided on: September 07, 2009. Reliance Infratel Ltd., and another .. Petitioners VERSUS Municipal Council, Sirsa and others .. Respondents * * * CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI PRESENT Mr.D.S.Singal, Advocate, for the petitioners. Mr.Mukesh Aggarwal, Advocate, for the respondent No.2. Mr.Gurinder Pal Singh, Advocate, for respondent Nos.3 to 8. M.M.S. BEDI, J. Defendant-petitioner is aggrieved by the order dated 24.03.2009, passed by the District Judge, Sirsa, allowing the application of the plaintiffs-respondents for interim injunction restraining the petitioners-defendants from installing the mobile tower in the area of Multani Colony, Sirsa, by reversing the order passed by the trial Court dismissing the application for injunction. Briefly stated, case of the plaintiffs-respondents . . . 1 C.R.No.2939 of 2009 as per their pleadings in the plaint is that the plaintiffs-respondents are residents of Multani Colony which has been shown in a scheme approved by Provincial Town Planner, Punjab. Vide notification dated 19.01.2007, Government of Haryana, laid down certain guidelines for installation of Mobile tower in certain areas. As per the said Notification, the residential area has been specifically excluded for installation of mobile tower. The defendants-petitioners and defendant Municipal Council, Sirsa, contrary to the policy are adamant to install mobile tower in the residential area. Defendant- respondent No.3, has granted permission to the defendant-petitioner to install the mobile tower for which the installation work of the tower has been initiated. Along with the suit, the plaintiffs-respondents also filed an application for interim injunction. The case of the Municipal Council and the defendants-petitioners as per the pleadings is that the tower is being raised as per the rules. The lower Court finding that the plaintiffs-respondents have not got prima facie a strong case in their favour and that no irreparable loss was going to be caused in case injunction is not granted dismissed the application of the plaintiffs-respondents for interim injunction whereas in appeal the said order has been set aside and the defendants-respondents have been restrained from raising the tower by relying upon the draft bye- laws issued by Urban Local Bodies Department. The relevant para of the order passed by the District Judge reads as follow :- . . . 2 C.R.No.2939 of 2009 Learned counsel for the defendants-petitioners has contended that the appellants have taken the premises of respondent No.2, on lease vide lease agreement dated 21.08.2008 and after execution of the lease agreement, the appellants have approached the office of respondent No.1, Municipal Council, for getting permission for installation of the tower. Respondent No.1, issued a letter dated 24.10.2008, demanding development charges of Rs.2,25,000/- and other fee on account of tower fee totalling a sum of Rs.2,50,532/-. After depositing the said amount vide receipt dated 10.11.2008, with respondent No.1, Municipal Council, permission was granted vide letter No.3643 dated 18.11.2008, and after getting the said permission for installation of tower, the appellants started the process of installation of tower at the site taken on rent by them belonging to respondent No.2 but respondent Nos.3 to 9, filed the civil suit for declaration challenging the installation of tower. The contention of the defendants-petitioners is that there is no legal bar in raising of the tower in the residential area as it is neither hazardous to health nor it will cause any loss to the plaintiffs. No disturbance will be caused to the residents, in any manner, and no civil rights of the plaintiffs will be infringed in case the defendants are permitted to raise tower for which they have already deposited the fee with the Municipal Council. On the other hand, counsel for the respondents . . . 3 C.R.No.2939 of 2009 contended that in case the erection of tower is permitted in Multani Colony, this would violate the scheme of 1957, Annexure-R3. The plaintiffs-respondents are required to prima facie establish that the raising of dish tower by the petitioners will be violative of any law or would be hazardous to the health of the local residents. So far as the legal position is concerned, it is pertinent to observe that an application for erection of tower was made by the petitioners and the Municipal Council, Sirsa had permitted the raising of tower on payment of Rs.2,50,352/-. After depositing of said amount vide Annexure P3, permission was granted for erection of tower. So far as any statutory bar regarding the erection of towers is concerned, counsel for the plaintiffs-respondents have not been able to cite any specific law except for the scheme Annexure R3/1 which was framed after February 1957. As per the said scheme, certain areas were specified for specific purposes. According to the said policy, no land in the area could be used for any other purpose except for the purpose for which the land has been reserved or designated. As per para 3 of the policy regarding building restrictions, the area of Multani Colony was reserved for developing houses. It was argued that no building can be erected in contravention to the scheme and the purpose of the land cannot be changed. After hearing the counsel for the petitioners, at length, I am of the opinion that the lower appellate Court has wrongly reversed the order of trial Court without minutely analysing, whether the plaintiff has got prima facie a strong case in his favour or that in . . . 4 C.R.No.2939 of 2009 case interim injunction is refused to him, whether he would suffer irreparable loss. The order seems to have been passed without considering whether the balance of convenience lies in favour of the plaintiffs-respondents. The main contention of plaintiffs-respondents is that as per Notification dated 30.01.2007, has framed a policy under Section 25-A of the Haryana Municipal Act, 1973, laying down policy parameters for conversion of residential house or vacant land into commercial use within old Municipal towns in the State of Haryana. As per the said policy, the area covered under any town planning scheme/any planned scheme developed by Haryana Urban Development Authority, Housing Board, Improvement Trust, Rehabilitation Authority and Municipal Committees etc. shall not be covered under he said policy. Counsel for the respondents have vehemently tried to persuade this Court that as per the draft bye- laws called Haryana Municipal Council (Laying of communication Cables and erection of Dish anteena Tower), bye-laws in State of Haryana. The said laws would be applicable to all Municipal Areas of the State except erection of towers in residential area. However, counsel for the respondents have not been able to satisfy the Court as to how the draft bye-laws can be relied upon for adjudication of the rights of the defendants-petitioners or as to how the said bye- laws even, if it is presumed for the sake of arguments to have been finalised would infringe the rights of the plaintiffs-respondents. Counsel for the plaintiffs-respondents has also contended that a Division Bench of this Court had in CWP No.1159 of 2006, issued a . . . 5 C.R.No.2939 of 2009 direction on 11.05.2006, that no further construction of any tower will take place except in non-residential areas and that too after the necessary sanction has been taken as per the policy. The said order was challenged by Operators Association of India and others in the Hon'ble Supreme Court. The operation of the order passed by the High Court was stayed in SLP (Civil) No.14372 of 2006. In case the order of Hon'ble Supreme Court Annexure P-7, is taken into consideration, it would be clear that there is no injunction granted by the High Court or Supreme Court, in the matter of raising of towers in the residential area. So far as Notification of 1957, is concerned, the raising of tower does not fall within the definition of raising of construction of a building. So far as telecommunication tower is concerned, in a case 2006(4), Indian Law Reports, (Kerala Series) Page-357, it has been held that there is no specific date or relevant material available to the effect that installation of tower would pose any health hazard. The scientific opinion that radiation from mobile having base station is far too low is posed any risk to health. In view of the above circumstances, the plaintiffs- respondents does not have prima facie a strong case in their favour. The balance of convenience does not lie in favour of the plaintiffs- respondents. In case the tower is permitted to be continued to the defendants-appellants at a place taken on rent by it, no irreparable loss will be suffered by the plaintiffs-respondents. No statutory obligation of the defendants-petitioners qua the plaintiffs- respondents would be violated. The tower is being constructed after . . . 6 C.R.No.2939 of 2009 getting proper sanction from the Municipal Council and after paying the requisite fee. In view of the above circumstances, the order of the lower appellate Court allowing the application for interim injunction deserves to be set aside. The revision petition is dismissed. However, it is made clear that the construction of tower will be subject to the final decision of the case. (M.M.S.BEDI) JUDGE September 07, 2009. rka . . . 7