IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 OP(C).No. 38 of 2010(O) ----------------------- AGAINST THE ORDER DATED 16/03/2009 IN IA.179/2009 IN OS.61/2009 of I ADDL. DISTRICT COURT, PALAKKAD CMA.46/2009 of ADDL.MUNSIFF COURT, PALAKKAD .................... PETITIONER/APPELLANT/PETITIONER/PLAINTIFF -------------------------------------------------- PARAMESWARAN, S/O.LATE VELAYUDHAN MUTHALI, RESIDING AT KUTTIKKATTU KALAM, OLLASSERY P.O., KODUMBA, PALAKKAD. BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL) SRI.AJEESH K.SASI RESPONDENTS/RESPONDENTS/RESPONDENTS/DEFENDANT: ------------------------------------------------ 1. RAMACHANDRAN, AGED 50 YEARS, S/O.LATE VELAYUDHAN MUTHALI, RESIDING AT KURRIKKATTU KALAM, OLLASSERY P.O., KODUMBA, PALAKKAD-678001 2. MANAGER, INDUS TOWERS LTD., N.H.BYEPASS, KUNDANNUR, S.L.AVENUE, KOCHI-680590 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.38 of 2010 --------------------------------------- Dated this 23rd day of September, 2010 JUDGMENT Plaintiff in O.S.No.61 of 2009 of the court of learned Additional Munsiff, Palakkad and appellant in C.M.A.No.46 of 2009 of the court of learned Additional District Judge, Palakkad is the petitioner before me. He sued respondents for a decree for prohibitory injunction against construction of mobile tower in plaint B schedule alleging nuisance and health hazards. He filed I.A.No.179 of 2009 for an order of temporary injunction. That was dismissed vide Ext.P1, order holding that no material was produced by petitioner to show nuisance and health hazards as pleaded by him. The order has been confirmed by the learned Additional District Judge in C.M appeal as per Ext.P2, judgment. That judgment is under challenge in this original petition. In the meantime petitioner has filed Ext.P3, application for amendment of plaint to state that mobile tower is going to be constructed making use of a portion of the pathway as well. The case is brought up for trial in the list on 24-09-2010. It is stated that learned Munsiff is proceeding to conduct trial of the suit without considering application for amendment (Ext.P3). O.P(C).No.38 of 2010 : 2 : 2. So far as Ext.P2, judgment confirming Ext.P1, order is concerned, no material was placed before the court below to show that construction of mobile tower resulted in nuisance or health hazards as apprehended by petitioner. Learned Additional District Judge has placed reliance on the decision of this court in Reliance Infocom Ltd. Vs. Chemanchery Grama Panchayath (2006(4) KLT 695) to hold that apprehension of petitioner cannot (prima facie) be accepted. 3. Though it was contended before the learned Additional District Judge that Rules 130 and 131 of the Building Rules have been violated by respondents in the matter of construction that argument was not accepted since tower is to be constructed at a distance of about 10 meters from property of petitioner and as there was no plea in the plaint or in the application for injunction about violation of Building Rules. Having regard to the facts and circumstances of the case there is little reason to interfere with Ext.P2, judgment confirming Ext.P1, order. 4. So far as Ext.P3, application for amendment is concerned, it is open to the petitioner to pursue that application as provided under law. Original petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-