Delhi District Court
Suit No. 8970/16 Ram Chandra Tiwari Etc. vs . Devinder Singh Bindra Etc. Page No.1 Of ... on 3 July, 2018
IN THE COURT OF MS. ANU AGGARWAL,
JSCCASCJGJ (SHAHDARA),
KARKARDOOMA COURTS, DELHI.
Suit No.: 8970/16
1. Sh. Ram Chand Tiwari
S/o Sh. Girija Prasad Tiwari,
House no.374/1 A, Street no.3,
Bhola Nath Nagar, Jharkhandi Road,
Shahdara, Delhi - 110032.
2. Sh. Sandeep Goyal
S/o Sh. Nirmal Goel,
House no.380/9 A, Street no.3,
Bhola Nath Nagar, Jharkhandi Road,
Shahdara, Delhi - 110032.
3. Sh. Hari Om Pathak
S/o Sh. Dev Datt Pathak,
House no.374/1 A, Street no.3,
Bhola Nath Nagar, Jharkhandi Road,
Shahdara, Delhi - 110032.
4. Sh. Ravind Mehta
S/o Sh. Gokul Chand Mehta,
House no.380/9 A, Street no.3,
Bhola Nath Nagar, Jharkhandi Road,
Shahdara, Delhi - 110032.
5. Sh. Rakesh Bhatia
S/o Sh. Bihari Lal Bhatia,
House no.380/9 A, Street no.3,
Bhola Nath Nagar, Jharkhandi Road,
Shahdara, Delhi - 110032.
Suit No. 8970/16 Ram Chandra Tiwari etc. vs. Devinder Singh Bindra etc. Page No.1 of 12
6. Sh. Dhanraj Gambhir
S/o Sh. Sai Ram,
House no.382/B/1, Street no.3,
Bhola Nath Nagar, Jharkhandi Road,
Shahdara, Delhi110032.
7. Sh. Anil Kumar
S/o Sh. Shivji Ram,
House no.374/9 A, Street no.3,
Bhola Nath Nagar, Jharkhandi Road,
Shahdara, Delhi - 110032.
8. Sh. Amit Jain
S/o Sh. Chandra Bhan Jain,
House no.374/9 A, Street no.4,
Bhola Nath Nagar, Jharkhandi Road,
Shahdara, Delhi - 110032.
9. Sh. Shyam Singh Chauhan
S/o Sh. Veer Singh Chauhan,
House no.374/2 A, Street no.4,
Bhola Nath Nagar, Jharkhandi Road,
Shahdara, Delhi - 110032.
10. Sh. Pradeep Kumar Jain
House no.361, Street no.4,
Bhola Nath Nagar, Jharkhandi Road,
Shahdara, Delhi - 110032.
11. Sh. Hira Gulati
House no.374/1 A, Street no.4,
Bhola Nath Nagar, Jharkhandi Road,
Shahdara, Delhi - 110032.
Suit No. 8970/16 Ram Chandra Tiwari etc. vs. Devinder Singh Bindra etc. Page No.2 of 12
12. Sh. Vinay Aggarwal
S/o Sh. Suraj Bhan Aggarwal,
House no.362, Street no.4,
Bhola Nath Nagar, Jharkhandi Road,
Shahdara, Delhi - 110032.
13. Sh. Jai Prakash Choudhary
S/o Sh. Jai Chand Choudhary,
House no.373, Street no.4,
Bhola Nath Nagar, Jharkhandi Road,
Shahdara, Delhi - 110032.
14. Sh. Vishal Goyal
S/o Sh. Sheel Goyal,
House no.363, Street no.4,
Bhola Nath Nagar, Jharkhandi Road,
Shahdara, Delhi - 110032.
15. Sh. Chandrakant Khanna,
House no.940/1, street no.4,
Bhola Nath Nagar, Jharkhandi Road,
Shahdara, Delhi - 110032.
...... Plaintiffs
versus
1. Sh. Devinder Singh Bindra
R/o House no.374/1/A, street no.34,
Bhola Nath Nagar, Jharkhandi Road,
Shahdara, Delhi32
2. EDMC
Through Its Commissioner/Deputy Commissioner
G. T. Road, Shahdara, Delhi32.
......Defendants
Suit No. 8970/16 Ram Chandra Tiwari etc. vs. Devinder Singh Bindra etc. Page No.3 of 12
DATE OF INSTITUTION : 02.08.2013
DATE OF RESERVING THE ORDER : 30.05.2018
DATE OF DECISION : 03.07.2018
DECISION : Decreed.
Suit for Mandatory and Permanent Injunction.
JUDGMENT:
1. The present suit has been filed for mandatory and permanent injunction by plaintiffs against the defendants.
2. The brief facts of the case of the plaintiff are as under:
(a). The plaintiffs are the residents of Bhola Nath Nagar, Jharkhandi Road, Shahdara, Delhi. The defendant no.1 is also a resident of the same area and is residing in the neighbourhood of plaintiffs. It is stated that the said area is residential and no commercial activities is being undertaken by any other resident living in the area. The house of the defendant no.1 is three storeyed building built on the plot area measuring 65 Sq. Yard. The construction of the ground floor is more than 15 years old and rest of the construction was done around 5/6 years ago without giving any structural strength to its foundation.
(b) Some time in the month of March, the plaintiffs realized that defendant no.1 has started some construction activity on the roof of his house. On enquiry by the plaintiffs, it was revealed that the defendant no.1 is clandestinely trying to install the cellphone transmission tower on the top of the roof of his house. The plaintiffs collectively visited the house of the defendant no.1 and requested him Suit No. 8970/16 Ram Chandra Tiwari etc. vs. Devinder Singh Bindra etc. Page No.4 of 12 not to install the cellphone transmission tower on the top of the roof as no cellphone mobile transmission tower is allowed to be installed in residential area. It is further stated that the installation of Cellphone transmission tower is injurious to the health of the residents of the locality. However, the defendant no.1 did not pay any heed to the request of the plaintiffs.
(c) The plaintiffs made a complaint dt. 05.03.2013 to PS Farsh Bazar but no action was taken. The plaintiffs further approached the area municipal councillor, Master Balbir Singh vide their complaint dt. 07.03.2013 and apprised him with the facts but no help was provided to the plaintiffs to stop the installation of the same. The plaintiffs also made complaint to the central pollution board, Parivash Bhawan, East Arjun Nagar, Delhi vide their complaint dt. 07.03.2013 and another complaint to Deputy Commissioner of defendant no.2 vide complaint dt. 07.03.2013, but no action was taken.
(d) It is submitted that no license has been obtained by the defendant no. 1 for installation of Cellphone Transmission Tower. It is stated that in the intervening night of 30.07.2013, a truck loaded with goods of cellphone mobile transmission tower instruments was brought by the defendant no.1 to install the mobile tower, but the same was returned due to the strict and stiff resistance of the residents of the area. The installation of the cellphone mobile transmission tower is detrimental to interest of the plaintiffs as such exposure to the radiations from such cell towers is a health hazard to the residents of Suit No. 8970/16 Ram Chandra Tiwari etc. vs. Devinder Singh Bindra etc. Page No.5 of 12 the area. Hence, present suit.
3. The defendant no.1 filed his written statement and raised following objections :
(a) It is stated that plaintiff has no locus standi to file the present case. The plaintiff's suit is not maintainable under Section 41 (f) and
(j) of Specific Relief Act. It is stated that installation of mobile tower is not a commercial activity and it comes within the ambit of Post as defined in the Indian Telegraph Act, 1885. It is stated that only Central Government can deal with the mobile towers and hence present suit is not maintainable.
(b) It is stated that all the allegations are false and frivolous. It is stated that there is no restriction on installation of mobile tower in the residential area. It is stated that there is no dangerous emission of rays from the mobile tower which could harm the life of human beings. It is stated that defendant no. 1 entered into agreement with the tower company Reliance JIO Infocom Limited for installation of Mobile Tower on the rooftop of his house. The tower company applied to MCD, Shahdara, South Zone for permission to install the mobile tower on 31.12.2012. It is stated that the MCD did not make any communication with the company on or before expiry of 60 days from the date of application and therefore, as per DMC Act, it tantamount to the deem sanction for installation of mobile tower. The rest of the averments of the plaint were denied.
4. The defendant no.2 has filed its written statement thereby Suit No. 8970/16 Ram Chandra Tiwari etc. vs. Devinder Singh Bindra etc. Page No.6 of 12 taking following objections:
(a) It is stated that the present suit is not maintainable as no notice under Section 477/478/DMC Act has been served upon the defendant no. 2 prior to filing of the present suit. It is further stated that on 29.11.2013, during inspection of the suit property bearing no.374/1/A, Street no.34, Bhola Nath Nagar, Jharkhandi Road, Delhi32, unauthorized construction was noticed in shape of installation / fixing of antenna and cabin for functioning mobile phone and same has been booked vide file no.555/B/UC/SH/S/13 dt. 29.11.2013. It is further stated that a show cause notice dt. 29.11.2013 has been served upon the owner/builder in this regard and sealing proceedings had also been initiated against the unauthorized construction /fixing of antenna and cabin for functioning of the mobile phones. It is further stated that further action would be taken against the unauthorized construction as per the provisions of the DMC Act in due course of time.
5. On the basis of pleadings of the parties vide order dated 10.04.2015, following issues were framed : ISSUES
1. Whether the plaintiff is entitled for decree of permanent injunction against the defendant no.1 as prayed for?OPP
2. Whether the plaintiff is entitled for mandatory injunction against the defendant no.2 as prayed for?OPP
3. Whether the suit is maintainable on the point of territorial jurisdiction of this court?OPP Suit No. 8970/16 Ram Chandra Tiwari etc. vs. Devinder Singh Bindra etc. Page No.7 of 12
4. Relief
6. The plaintiffs did not led any evidence and submitted that the suit may be disposed off in terms of the report of EDMC on record vide statement dated 16.04.2018. The defendant no. 1 neither appeared nor led any appearance. He was proceeded exparte vide order dated 11.05.2018. The defendant no.2 made the statement that he does not wish to lead any evidence on 11.05.2018.
7. I have heard the arguments of ld. Counsel for defendant no. 2 and have perused the case file. The plaintiffs neither submitted arguments nor filed any written arguments despite opportunity.
8. My issue wise findings are as follows : ISSUE NO. 1.
Whether the plaintiff is entitled for decree of permanent injunction against the defendant no.1 as prayed for?OPP
9. The plaintiff is seeking decree of permanent injunction to restrain the defendant no. 1 from raising or installing the cellphone mobile transmission tower on the rooftop of House No. 374/1/A, Street No.34, Bhola Nath Nagar, Jharkhandi Road, Delhi 32. The defendant no. 1 has admitted in the written statement that he has entered into contract for installation of mobile tower at the rooftop of above said suit property with Infotel Broadband Service Limited. He has also admitted that he never applied with the EDMC for the Suit No. 8970/16 Ram Chandra Tiwari etc. vs. Devinder Singh Bindra etc. Page No.8 of 12 permission for installation of mobile tower. He has stated that the company had applied for the permission for installation of mobile tower with MCD Shahdara South Zone on 31.12.2012. He has admitted that no reply was received of the said application by MCD and has stated that under DMC Act, if EDMC does not give reply to the application within 60 days, the same is deemed to have been granted. The defendant no. 2 is EDMC with whom the defendant no. 1 has claimed to have filed the application for permission. According to EDMC, an unauthorized construction in the form of installation/fixing of antenna and cabin for functioning of mobile phone was found at the above said property and same was booked vide file no. 555B/UC/SH/S/13 on 29.11.2013 and show cause notice was issued to the owner/builder against the said unauthorized construction. Therefore, it is clear that no permission was granted by EDMC for installation of the above mobile tower. The defendant no. 1 had filed one judgment in case Tower Vision Tri India Pvt. Ltd. vs. UOI and Ors. in W.P. (C) 439/2010 of Hon'ble Delhi High Court where the issue was raised that MCD has no power to restrain the raising of the mobile towers without the license being granted by MCD. Hon'ble High Court of Delhi has held that the temporary structures/towers on rooftop for providing Cellular Basic Mobile Phone Service are 'Building' within the meaning of Municipal Acts and hence, cannot be erected / installed without obtaining the permission of the Municipality. In the grant of said permission, all Suit No. 8970/16 Ram Chandra Tiwari etc. vs. Devinder Singh Bindra etc. Page No.9 of 12 provisions of Municipal Act and the byelaws shall apply. Therefore, the mobile tower cannot be erected without the license being granted by the EDMC. Since no license has been granted by EDMC, defendant no. 1 cannot erect the mobile tower without obtaining the license from the EDMC. Accordingly, this issue is decided in favour of plaintiffs and defendant no.1 is restrained from installing the Cellphone Mobile Transmission Tower on the rooftop of H. No. 374/1/A, Street NO. 34, Bhola Nath Nagar, Jharkhandi Road, Delhi 32 without obtaining the license as per law.
ISSUE NO.2.
Whether the plaintiff is entitled for mandatory injunction against the defendant no.2 as prayed for?OPP
10. It is clear from the report of EDMC that they have only sealed the mobile tower and have not removed the same. Since the mobile tower has been installed without obtaining license from EDMC. This issue is decided in favour of plaintiffs and defendant no. 2 is directed to remove the unauthorized construction over the property no. H. No. 374/1/A, Street NO. 34, Bhola Nath Nagar, Jharkhandi Road, Delhi 32 alongwith the structure installed for the purpose of installation of Cellphone Mobile Transmission Tower over the above said property.
Suit No. 8970/16 Ram Chandra Tiwari etc. vs. Devinder Singh Bindra etc. Page No.10 of 12 ISSUE NO. 3 Whether the suit is maintainable on the point of territorial jurisdiction of this court?OPP
11. The defendant no. 1 has raised objection to the territorial jurisdiction of this court but has not mentioned in the written statement as to how this court has no jurisdiction to entertain the present suit. Since, the mobile tower in question has been installed within the jurisdiction of this court, this court has territorial jurisdiction to entertain the present suit.
Relief
12. In view of the above findings, the present suit is decreed in following terms :
1. The defendant no.1 is restrained from installing the Cellphone Mobile Transmission Tower on the rooftop of H. No. 374/1/A, Street NO. 34, Bhola Nath Nagar, Jharkhandi Road, Delhi 32 without obtaining the license from the EDMC.
2. The defendant no. 2 is directed to remove the unauthorized construction over the property no. H. No. 374/1/A, Street NO. 34, Bhola Nath Nagar, Jharkhandi Road, Delhi 32 alongwith the structure installed for the purpose of installation of Cellphone Mobile Transmission Tower over the above said property.
13. Decree sheet be prepared accordingly.
Suit No. 8970/16 Ram Chandra Tiwari etc. vs. Devinder Singh Bindra etc. Page No.11 of 12
14. File be consigned to record room.
(Typed under my direct dictation) Announced in open Court.
ANU
Delhi Dated the 03.07.2018 AGGARWAL
This Judgment contains 12 pages
and each page is signed by me.
Digitally signed by ANU
ANU AGGARWAL
AGGARWAL
JSCC/ASCJ/GJ (SHAHDARA)
Location: Shahdara District,
KKD COURTS/DELHI
Karkardooma Courts, Delhi
Date: 2018.07.04 16:02:46
+0100
Suit No. 8970/16 Ram Chandra Tiwari etc. vs. Devinder Singh Bindra etc. Page No.12 of 12