IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 WP(C).No. 1678 of 2009(Y) ------------------------------------------ IN IA.1132/2007 IN OS.281/2006 of MUNSIFF COURT, ALATHUR .................... PETITIONER: K.A. HAMSA, S/O. APPU HAJIYAR, AGED 61 YEARS, RESIDING AT KALATHIL HOUSE, KUNDUKADU, KIZHAKKANCHERY AMSOM, PALAKKAD DISTRICT. BY ADV. SRI.BINOY VASUDEVAN RESPONDENTS: 1. S. MUHAMMED ALI, S/O. SHOWKATHALI, AGED 22 YEARS, RESIDING AT CHERANADU, ERIMAYOOR AMSOM, ALATHUR TALUK. 2. M/S. BHARATHI INFRATEL LIMITED, REPRESENTED BY ITS MANAGER, N.H. BYE PASS, KUNDANOOR, MARADU.P.O, KOCHI. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.1678 of 2009 Y -------------------------- JUDGMENT Heard counsel for the petitioner. 2. Petitioner is the plaintiff in O.S.No.281/06 on the file of the Munsiff's Court, Alathur. He filed Exhibit P3 application requesting to remit the commission report back to the Commissioner. The court below, vide Exhibit P4 order, dismissed the said application with a direction to the petitioner/plaintiff to file a petition under Order XXVI Rule 10(a) CPC to appoint a commission for scientific investigation, if he actually wants to determine the noise pollution and health hazard problems generated by the Mobile Phone Tower functioning in plaint B schedule property. 3. The grievance of the petitioner/plaintiff is that if at all scientific investigation is necessary, either regarding noise pollution or health hazard problems, the petitioner is prepared to render assistance of any expert as suggested by WPC 1678/09 2 the Commissioner or the court, for which, the petitioner/plaintiff is ready to bear the expenses and it was not proper for the court below to dismiss the application to remit the commission report by directing the petitioner to file petition under Order XXVI Rule 10(a) CPC. The question as to whether the commission report can be remitted enabling further details being collected with the assistance of a scientific expert or an expert competent to ascertain the pollution and health hazard problems has not been considered by the court below. 4. In the result, without prejudice to the petitioner moving afresh to remit the commission report with the assistance of necessary experts to ascertain the details asked for, I dispose of this writ petition. In the event of the petitioner moving such an application within two weeks from today, the court below may direct submission of panel of necessary experts being suggested by both sides and from the panel so submitted by either WPC 1678/09 3 side, the court may appoint an expert with his willingness to assist the Commissioner to ascertain the details asked for. If more expert than one is required as the same expert will not be able to assess the quantum of noise pollution and its effect and the other hazards that may be caused by the functioning of the Mobile Phone Tower, the court below shall be at liberty to appoint more than one expert, as circumstances warrant, after hearing both sides. Petitioner is directed to produce a copy of this judgment in the court below forthwith before moving any fresh application as directed above and with notice to the counsel for the respondent, as this writ petition is being disposed of without notice to the respondent. Issue copy of this judgment to the counsel for the petitioner urgently. 15th January, 2009 (K.P.Balachandran, Judge) tkv