IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc. No.M-20758 of 2010 (O&M) Date of decision: 22.7.2010 Satpal ......Petitioner Vs. Satish Kumar and others ...Respondents CORAM:- HON'BLE MRS.JUSTICE DAYA CHAUDHARY. PRESENT: Mr.Rajesh Bhardwaj, Advocate, for the petitioner. **** ORDER The present petition has been filed for quashing of impugned order dated 28.4.2009 passed by SDM, Panipat and order dated 18.3.2010 passed by Additional Sessions Judge, Panipat in the revision petition vide which the revision petition filed by petitioner has been dismissed. In this case, an application under Section 133 of the Code was filed by respondents Satish Kumar and Parveen Kumar for restraining the petitioner from installing mobile tower on his plot by Reliance Communication. The SDM, Panipat dismissed the application filed by the respondents vide order dated 4.7.2008 which was challenged before the Additional Sessions Judge, Panipat who vide order dated 13.10.2008 set aside the order dated 4.7.2008 and remanded the case back to SDM, Panipat for passing fresh order after obtaining evidence from both he parties under Section 138 of the Code and considering other points. After remand, both the parties adduced their evidence. The SDM Panipat allowed the Crl.Misc. No.M-20758 of 2010 -2- application filed by respondents No. 1 and 2 and directed them to remove the tower vide order dated 28.4.2009. Aggrieved against the order dated 28.4.2009 passed by SDM, Panipat, the petitioner filed revision before the Additional Session Judge, Panipat who while upholding the order passed by SDM, Panipat dismissed the revision petition vide order dated 18.3.2010. The present revision has been filed for quashing of the orders dated 28.4.2009 passed by SDM, Panipat as well as order dated 18.3.2010 passed by Additional Sessions Judge, Panipat. Learned counsel for the petitioner submits that both the Courts below have miserably failed to appreciate evidence available on record and the statutory provisions and wrongly reached to the conclusion of removing the tower contrary to various reports received from various departments. Learned counsel further submits that reports were sought by SDM, Panipat from various departments for ascertaining safety of life and property of the public at large. Panchayat of the concerned village has no objection and XEN has also categorically mentioned that dispute is between the private parties. Moreover, respondents No. 1 and 2 have already filed a civil suit on the same cause of action but failed to get any interim order and this fact has not been taken into consideration. Moreover, the report submitted by the fire brigade department is perverse as it specifically states that the risk factor can be covered by the pipe. The Panchayat of the village had no objection and has supported the case of the petitioner by mentioning that already three mobile towers are functioning in the village. The learned courts below have failed to appreciate the fact that the Reliance Crl.Misc. No.M-20758 of 2010 -3- Communication is a reputed Company and had invested more than Rs.10 lacs in the installation process and all safety measures in the installation process have been observed after inspection of the file and testing of nature of the soil. Apart from this there is no evidence whatsoever which justifies the extreme action taken by both the Courts below. I have heard the arguments of the learned counsel for the petitioner and have also gone through the orders passed by both the Courts below. In this case an application filed by the respondents under Section 133 Cr.P.C. for removal of the tower was dismissed by the SDM vide order dated 4.7.2008 and order restraining Reliance Communications to raise further construction was set aside. Revision against order dated 4.7.2008 passed by SDM was filed, which was allowed and case was remanded to SDM, Panipat for passing fresh order after obtaining evidence from both parties under Section 138 Cr.P.C. Both parties were given opportunity to adduce their evidence. Vide order dated 28.4.2009, the SDM Panipat, allowed the application filed by the respondents. Aggrieved against the said order, the petitioner filed revision which was dismissed on the ground that it is clear from the reports sent by various departments that it was dangerous to the life and safety of the public at large. The Fire Department has given report that the road which goes to the tower is not sufficiently wide and there is no instrument for extinguishing the fire. The street is also uneven and fire brigade cannot enter in the said street. As per report of Executive Engineer PWD (B&R) no certificate has been given Crl.Misc. No.M-20758 of 2010 -4- with regard to safety of the adjoining places. As per the report of Fire Department, the road leading to tower was 2 feet wide and at some places it was 7 feet and 9 feet wide. The fire brigade cannot enter in the street. There is no instrument for extinguishing fire and it has been reported that the street was uneven and fire brigade cannot enter in the said street. Keeping in view the safety measures of the general public, both the courts below have rightly reached to the conclusion and allowed the application under Section 133 Cr.P.C. and directed Reliance Communications to remove its structure from the site in dispute. There is no illegality in the orders passed by both the courts below. There is no ground to interfere with the impugned orders passed by both the Courts below. The petition being devoid of any merit is dismissed. (DAYA CHAUDHARY) JUDGE July 22, 2010. raghav