IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 12TH NOVEMBER 2009 / 21ST KARTHIKA 1931 WP(C).No. 30430 of 2009(O) -------------------------- CMA.16/2009 of SUB COURT, MUVATTUPUZHA OS.31/2009 of MUNSIFF COURT,MUVATTUPUZHA (IA 254/2009) .................... PETITIONER: --------------- M/S.WIRELESS TT INFO-SERVICES LTD., S.L.PLAZA, PALARIVATTOM.P.O, KOCHI-682025, REPRESENTED BY ITS MANAGER, (NOW FUNCTIONING AT J & CO. CHAMBERS, (MANIMALA ROAD, EDAPPALLY, KOCHI-682 024). BY ADV. MR.E.K.NANDAKUMAR MR.A.K.JAYASANKAR NAMBIAR MR.K.JOHN MATHAI MR.P.BENNY THOMAS MR.P.GOPINATH MR.JOSON MANAVALAN RESPONDENTS: --------------- 1. BIJU K.MENON, AGED 40 YEARS, S/O.V.KRISHNANKUTTY MENON, KOCHUVEETTIL, MATHIRAPPILLY, KOTHAMANGALAM. 2. SAJITH C.KUMAR, AGED 38 YEARS, S/O.P.K.KUMARAN NAIR, CHAKKALAYIL HOUSE, MATHIRAPPILLY, KOTHAMANGA 3. K.K.SURESH, AGED 32 YEARS, S/O.KESAVAN KARTHA, KAVILAMKUZHY HOUSE, MATHIRAPPILLY, KOTHAMANGALAM. 4. KOTHAMANGALAM MUNICIPALITY, MUNICIPAL OFFICE, KOTHAMANGALAM, REPRESENTED BY ITS SECRETARY. ADV. MR.GEORGE VARGHESE KIZHAKKAMBALAM FOR R1-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 30430 of 2009(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: PLAINT IN O.S.NO.31/2009 DATED 16.1.2009 FILED BY RESPONDENTS 1 TO 3 BEFORE THE MUNSIFF'S COURT, MUVATTUPUZHA. EXT.P2: APPLICATION FOR TEMPORARY PROHIBITORY INJUNCTION FILED BY RESPONDENTS 1 TO 3 AS I.A.SNO.254/2009 IN O.S.NO.31/2009 WITH ACCOMPANYING AFFIDAVIT DATED 16.1.2009 BEFORE THE MUNSIFF COURT, MUVATTUPUZHA. EXT.P3: DETAILED COUNTER AFFIDAVIT FILED BY THE PETITIONER DATED 14.3.2009 IN I.A.NO.254/2009 IN O.S.NO.31/2009 BEFORE THE MUNSIFF COURT, MUVATTUPUZHA. EXT.P4: ORDER DATED 8.4.2009 PASSED BY THE MUNSIFF COURT, MUVATTUPUZHA IN EXT.P2 APPLICATION. EXT.P5: C.M.A.NO.16/2009 FILED BEFORE THE SUBORDINATE JUDGE'S COURT, MUVATTUPUZHA BY THE PETITIONER DATED 4.6.2009 EXT.P6: ORDER DATED 13.8.2009 PASSED BY THE SUB COURT, MUVATTUPUZHA IN C.M.A.NO.16/2009. RESPONDENTS' EXHIBITS: NIL .... // TRUE COPY // P.A TO JUDGE. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.30430 of 2009 - O --------------------------------- Dated this the 12th day of November, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: “i) To issue a writ of certiorari or any other appropriate writ order or direction and set aside Ext.P6 order dated 13.8.2009 in C.M.A.No.16 of 2009 on the files of the Sub Court, Muvattupuzha, upholding Ext.P4 order dated 8.4.2009 passed by the Munsiff Court, Muvattupuzha and set aside Exts.P4 and P6 orders. ii) To stay Ext.P4 and P6 orders pending disposal of the above writ petition.” 2. Petitioner is the defendant in O.S.No.31 of 2009 on the file of the Munsiff Court, Muvattupuzha. Suit is one for permanent prohibitory injunction restraining the petitioner/first defendant from constructing a telecommunication tower and the second defendant from granting any permit, sanction or permission from the second respondent to erect such a tower in the plaint property described as having an extent of 5 cents in survey No.1321/9K/1 in Kothamangalam Village. Suit has been filed under Section 91 of the Code of Civil Procedure imputing W.P.(C).No.30430 of 2009 - O 2 nuisance, and with the suit plaintiff applied for an interim injunction to restrain the first defendant from commencing any work to erect the transmission tower in the plaint property. That application was resisted by the first defendant/petitioner filing Ext.P3 objections. Learned Munsiff after hearing both sides allowed the interim injunction sought for by the plaintiffs to the extent of restraining the petitioner/first defendant from activating the transmission tower in the plaint property till disposal of the suit. Ext.P4 is that order. Challenging the correctness of Ext.P4 order, petitioner preferred an appeal before the Sub Court, Muvattupuzha. Learned Sub Judge after hearing the counsel on both sides rendered Ext.P6 judgment confirming Ext.P4 order with a direction to the court below to dispose the suit within three months from the date of receipt of a copy of the judgment. Ext.P6 judgment rendered by the learned Sub Judge confirming Ext.P4 order order passed by the learned Munsiff is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. W.P.(C).No.30430 of 2009 - O 3 4. The learned counsel for the petitioner submitted that expending huge amount, petitioner had erected the transmission tower and each day's delay in activating the tower would cause it irreparable injury and also severe inconveniences. It is further submitted that no scrap of paper or any material has been produced by the respondents/plaintiffs to substantiate their case that activating of the transmission tower would cause health hazard to those living in the neighbourhood of that tower or in any other way injuriously affect the general public. Inviting my attention to Reliance Infocom v. Chemanchery Grama Panchayath (2006(4) KLT 695) learned counsel for the petitioner submitted this Court in the above decision has observed that there is no scientific data to conclude that activation of the transmission tower would cause any health hazard and so much so, it is too early to form any conclusion in the matter without serious research and meticulous study. When such a view has been expressed by this Court, it is the submission of the counsel that both the courts went wrong in granting an interim injunction on the request made by the W.P.(C).No.30430 of 2009 - O 4 respondent/plaintiff to restrain the activation of the transmission tower on the premise that a serious issue require to be adjudicated in the case. Other than expressing a view that the petitioners/plaintiffs have an arguable case for seeking the relief of injunction, nothing more is expressed in the orders passed by both the courts restraining the petitioner/first defendant, and the balance of convenience and the injury that is likely to be suffered by the petitioner by the interdiction imposed has not been considered, according to the counsel. On the other hand the learned counsel appearing for the respondents/plaintiffs contended that the learned Munsiff is strictly following the directions given by the learned Sub Judge to have an expeditious disposal of the suit. The case stands posted day after tomorrow for consideration of an application moved by the plaintiffs to examine two experts on commission and, according to the counsel, the plaintiffs shall co-operate for a speedy disposal of the suit so that it can be disposed of within the time limit fixed by the learned Sub Judge. It is further submitted that two courts concurrently have found that the plaintiffs have made out a prima W.P.(C).No.30430 of 2009 - O 5 facie case for the discretionary relief of injunction and unless the decision so rendered is shown to be perverse or suffering from any jurisdictional infirmity this Court may not interfere with such orders in exercise of its visitorial jurisdiction vested under Article 227 of the Constitution of India. 5. Propriety and correctness of Ext.P6 judgment rendered by the learned Sub Judge and also Ext.P4 of the learned Munsiff can be examined by this Court only within the parameters permissible in exercise of the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. Both courts have formed any opinion that plaintiffs have a case for seeking the discretionary relief of interim injunction. Interim injunction is an equitable relief, and it is granted on an application under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure. The material required to support that application is the affidavit of the party seeking such relief. Even if no other material is produced, the sworn affidavit of the party can be taken into consideration and appropriate orders can be passed by the court to grant that equitable relief. Petitioners have not W.P.(C).No.30430 of 2009 - O 6 produced materials for seeking the discretionary relief to substantiate their case that activation of mobile tower would cause health hazards, the challenge canvassed by the counsel for the petitioner/first defendant does not carry any conviction. This Court has earlier expressed a view earlier that the scientific data available is not sufficient to conclude activating of the mobile transmission towers is likely to cause health hazards can only be taken as an observation with reference to the facts and circumstances presented in that case at this point of time. It cannot be considered as a binding principle to be followed in all cases where that issue crops up for adjudication or consideration. In the given facts of the case where two courts have concurrently expressed the view that the plaintiffs have made out a prima facie case for the discretionary relief of injunction and there is nothing to indicate the view so formed is perverse, I find no interference with the order/judgment passed by the courts below is permissible. There will be a direction to the learned Munsiff, Muvattupuzha, to follow scrupulously the time limit fixed for expeditious disposal of the suit, and, at any rate, the suit has to W.P.(C).No.30430 of 2009 - O 7 be disposed of on or before 31.1.2010. Both parties are directed to co-operate for the expeditious disposal of the suit. Writ petition is disposed of as above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-