IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 27TH SEPTEMBER 2010 / 5TH ASWINA 1932 OP(C).No. 23 of 2010(O) ----------------------- OS.604/2008 of MUNSIFF COURT, CHITTUR .................... PETITIONERS/PETITIONERS NO.2 & 3/PLAINTIFFS 2 &3: -------------------------------------------------------------------- 1. SOMAN, S/O.PANKAJAKSHAN, GREEN GARDEN, KITTUMAMAN NAGAR, (CADET AVENUE), AMBATTUPALAYAM, CHITTUR VILLAGE & TALUK, PALAKKAD DISTRICT. 2. PRABHAKARAN, S/O.RAMANKUTTY NAIR, KITTUMAMAN NAGAR, (CADET AVENUE), AMBATTUPALAYAM, CHITTUR VILLAGE & TALUK, PALAKKAD DISTRICT. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENTS/ RESPONDENTS &PETITIONER NO.1/DEFENDANTS ------------------------------------------------------ 1. THE DISTRICT COLLECTOR, PALAKKAD-678001 2. THE REVENUE DIVISIONAL OFFICER, PALAKKAD.-678001 3. THE TAHSILDAR, TALUK OFFICE, CHITTUR, PALAKKAD.-678101 4. THE VILLAGE OFFICER, CHITTUR VILLAGE, PALAKKAD DISTRICT.-678101 5. THE SURVEY SUPERINTENDENT, CIVIL STATION, PALAKKAD.-678001 6. RESURVEY SUPERINTENDENT, CIVIL STATION, PALAKKAD.-678101 7. THE SECRETARY, CHITTUR-THATHAMANGALAM MUNICIPALITY, CHITTUR, PALAKKAD DISTRICT. OP(C).No. 23 of 2010 8. GANGADHARAN, S/O.LAKSHMANAN, VERKOLI ROAD, KALLUKUTTIYAL, POLPULLY VILLAGE, POLPULLY P.O., PALAKKAD DISTRICT.-678552 9. BHARTHI INFRATEL LIMITED, KUNDANNUR, MARADU P.O., ERNAKULAM.-682304 10. MARIYA ANTONY PUSHPARAJ, S/O.RATHNAM, KITTUMAMAN NAGAR, (CADET AVENUE), AMBATTUPALAYAM, CHITTUR VILLAGE & TALUK, PALAKKAD DISTRICT.-678101 GOVERNMENT PLEADERl ADV. SRI. P R JAYAKRISHNAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 27/09/2010 ALONG WITH OP(C).No.29 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).Nos.23 and 29 of 2010 --------------------------------------- Dated this 27th day of September, 2010 JUDGMENT These petitions are filed under Article 227 of the Constitution in challenge of orders passed by the learned Munsiff, Chittur on I.A.Nos.1902 and 1905 of 2010 and 730 of 2010, respectively in O.S.No.604 of 2008. Petitioners sued respondent Nos.1 to 6, District Collector and other government officials, respondent No.7, Secretary of the local authority and respondent Nos.8 and 9 for a decree for prohibitory injunction to restrain respondent Nos.1 to 7 from granting permission to respondent Nos.8 and 9 to install a mobile tower in the suit property belonging to respondent No.8 without following international guidelines and to restrain respondent Nos.8 and 9 from installing the tower illegally. Respondent Nos.8 and 9 resisted the suit. On the request of petitioners, Advocate Commissioner inspected the suit property with the assistance of a Surveyor and submitted report and plan (marked as Exts.C1 and C1(a) in the court below). Petitioners filed I.A.No.730 of 2010 to set aside and remit the report and plan. They also filed I.A.Nos.1902 and 1905 of 2010 to amend the plaint and grant O.P(C).Nos. 23 and 29 of 2010 : 2 : leave under Section 91 of the Code of Civil Procedure (for short, “the Code”). In I.A.No.730 of 2010 Commissioner and Surveyor were examined as CWs.1 and 2. Learned Munsiff by separate orders dismissed the said applications. O.P.No.23 of 2010 arises from the orders passed on I.A.Nos.1902 and 1905 of 2010 while O.P.No.29 of 2010 arise from the order on I.A.No.730 of 2010. Learned counsel for petitioners contended that on the facts brought out through the report of Advocate Commissioner, amendment of plaint was necessary to prevent multiplicity of suits and settle the real dispute between the parties. It is also contended that since Advocate Commissioner has failed to properly identify the pathway in respect to which amendment is sought for in I.A.No.1902 of 2010, report and plan are required to be remitted to the Advocate Commissioner for fresh measurement and proper identification of the pathway. Learned counsel for respondent No.8 has contended that so far as nature of the suit is concerned, setting aside or remission of the report or plan is not called for as rightly found by the court below. According to the learned counsel amendment was also not warranted since that would alter nature and character of the suit. 2. The suit is coming up for trial this day in the court of learned Munsiff. True, learned counsel has a contention that copy of the relevant orders were received only a week back. I am at the question whether amendment of the plaint and remission O.P(C).Nos. 23 and 29 of 2010 : 3 : of the report and plan are necessary. 3. Ext.P1 in O.P.No.23 of 2010 is the copy of plaint. On a reading the plaint it is seen that relief sought for is on two grounds mainly, that though respondent Nos.8 to 9 are said to have obtained permission from the Revenue Divisional Officer for construction of mobile tower, that was in respect of property comprised in R.S.No.23/6 but, based on that permission respondent Nos.8 and 9 are attempting to put up the mobile tower in a paddy land comprised in R.S.No.21/5 against the provision of the Kerala Land Utilisation Order (for short, “the KLU”). Thus it is contended that construction of tower is illegal. The further contention is that construction of mobile tower would result in health hazards to the petitioners and other neighbouring dwellers. Respondent No.8 contended that suit property is not paddy land, it is a paramba and that respondent No.7 has granted permission to construct the mobile tower in R.S.No.23/6 and not in R.S.No.25/1. Respondent No.4 gave notice to respondent No.8 stating that construction is at a place without obtaining permission under the KLU order. The Tahasildar conducted an enquiry and it was revealed that tower is being installed in the paramba in R.S.No.23/6 (old survey No.2719). 4. Advocate Commissioner with the assistance of the Surveyor inspected the property and submitted report and plan (Exts.C1 and C1(a) in the court below). The Advocate O.P(C).Nos. 23 and 29 of 2010 : 4 : Commissioner has stated that property where the tower is being constructed falls in old survely No.2719, a part of which comes in R.S.Nos.21/5 and 23/6. The commissioner has identified the suit property (admittedly belonging to respondent No.8) with reference to the relevant records. The Commissioner also stated that there is a pathway (or road as the case may be) in between property of petitioners and respondent No.8. The Commissioner has shown position of the pillars in Ext.C1(a), plan. At that stage petitioner filed I.A.No.730 of 2010 contending that Commissioner has not shown exact lie and position of the said pathway and the survey number in which that pathway falls. It was also contended that two of four pillars of the mobile tower are being errected in the said pathway which fact the Advocate Commissioner not disclosed in his report and plan. It is on the above premise that petitioner filed I.A.No.1902 of 2010 for amendment of plaint seeking injunction against construction of mobile tower in the disputed pathway. In the affidavit in support of that application it is stated that though the said pathway originally belonged to the predecessor-in-interest of petitioners, it was dedicated for public use and thus it is being used by petitioners and other members of the locality for access to their respective properties. It is a public way over which respondent Nos.8 and 9 have constructed two pillars for installing the mobile tower. I.A.No.1902 of 2010 seeks leave of the court to institute O.P(C).Nos. 23 and 29 of 2010 : 5 : the suit under Section 91 of the Code. 5. On I.A.No.730 of 2010 Advocate Commissioner and Surveyor were examined. They stated that suit property falls in R.S.Nos.21/5 and not in 23/6 and corresponding old survey No is 2719 (in the plaint old survey number stated by the petitioners is 2744). They also stated that they had not separately identified property of the petitioners nor has the disputed way been specifically marked and its survey number shown. 6. Now question for consideration is whether amendment prayed for and remission of the report prayed for should be allowed. So far as I.A.No.1902 of 2010 is concerned, I must bear in mind that the prayer is in relation to a property which is not the subject matter of the suit for, relief sought for by amendment as per I.A.No.1902 of 2010 is as regards disputed public way lying between property of petitioners and respondent No.8 (suit property). It is not disputed that so far as plaint averments are concerned the suit as it now stands has no reference to the said way and, the suit property stated in the plaint is the property of respondent No.8 and as I stated above the grounds upon which the injunction is sought for is health hazards due to installation of the mobile tower and construction in a property different from the one in respect of which respondent No.7 had granted permission. Under Section 91 of the Code even in the absence of special damages two or more O.P(C).Nos. 23 and 29 of 2010 : 6 : person may with leave of the court institute a suit with the object of preventing public nuisance. A suit under Section 91 of the Code relates public nuisance. Here, vide I.A.No.1902 of 2010 what is sought to be incorporated as alleged public nuisance is installation of the tower on the road which has become public on account of the alleged dedication. That does not come within the scope of the present suit. I am also inclined to think that if the amendment is allowed, that would have the effect of altering nature of the suit to one under Section 91 of the Code relating to public nuisance where a publication under Order 1 Rule 8 of the Code is also necessary and it invites persons who are interested in the matter to get themselves impleaded either to oppose or support petitioners/plaintiffs. There is no reason why that procedure should be adopted at the fag end of the present suit. Allegations presently made give a fresh cause of action to the petitioners or any other affected persons who can file a separate suit under Sec.91 of the Code. In the circumstance, I find no reason to interfere with the discretion exercised by learned Munsiff not to allow I.A.No.1902 of 2010. So far as dismissal of I.A.No.1905 of 2010 is concerned, it follows the finding on I.A.No.1902 of 2010. 7. Coming to the relief prayed for in I.A.No.730 of 2010, that is with reference to the alleged public nuisance on account of alleged errection of pillars on the disputed pathway. It is true O.P(C).Nos. 23 and 29 of 2010 : 7 : that Advocate Commissioner has not identified the properties of petitioners and as rightly pointed out by learned Munsiff, for the decision of the dispute involved in the suit that was not necessary since it is not disputed that petitioners are residing in the neighbourhood of the suit property. Grievance of petitioners in I.A.No.730 of 2010 mainly is that the disputed pathway (referred to in I.A.No.1902 of 2010) has not been specifically marked or it is not shown which is its survey number. Such an identification was not necessary for the decision of the suit. But I make it clear that it will be open to the petitioners to proceed with their contention in the plaint as to the legality or otherwise of permission granted by respondent No.7 and the right of respondent Nos.8 and 9 to put up the mobile tower in the suit property. I also make it clear that if any portion of the mobile tower falls in the public way as alleged by the petitioners and it gives a separate cause of action to the petitioners or any other affected persons as urged in I.A.No.1902 of 2010, the present suit or disposal of I.A.Nos.1902 and 1905 of 2010 will not in any way prevent petitioners or anybody else instituting appropriate action to vindictive their grievance as provided under law. With the above observation these original petitions are dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-