Punjab-Haryana High Court
Om Parkash And Ors vs Sdo Bsnl Mahendergarh And Ors on 27 March, 2015
Author: Sabina
Bench: Sabina
Civil Revision No. 2166 of 2015 -1-
In the High Court of Punjab and Haryana at Chandigarh
Civil Revision No. 2166 of 2015
Date of Decision: 27.3.2015.
Om Parkash and others .......Petitioners
Versus
S.D.O., B.S.N.L, Mahendergarh and others .......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. Mukesh Yadav, Advocate
for the petitioners.
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SABINA, J.
Petitioners have filed this petition challenging the order dated 24.2.2015 (Annexure P-3) whereby application moved by the petitioners under Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908 ('CPC' for short), was dismissed.
I have heard the learned counsel for the petitioner and have gone through the record available on the file carefully.
Petitioners have filed suit for permanent injunction restraining the defendants to erect the mobile phone tower in village Bawana. Along with the suit, petitioners filed an application under Order 39 Rule 1 and 2 CPC. The Trial Court vide order dated 18.11.2013, directed the defendants not to erect the mobile towers in the suit property without following the guidelines and rules issued by the government. Aggrieved against the said order, defendant No. 3 preferred an appeal and vide the impugned order dated 24.2.2015, the said appeal was allowed and the application moved by the petitioner under Order 39 Rule 1 and 2 CPC, was GURPREET SINGH 2015.04.07 15:56 I attest to the accuracy and authenticity of this document Chandigarh Civil Revision No. 2166 of 2015 -2- dismissed.
The Appellate Court while allowing the appeal and dismissing the application under Order 39 Rule 1 and 2 CPC has held as under:-
"12. Perusal of the impugned order shows that the learned lower court has relied upon the rule 1.1 of Communication & Connectivity Infrastructure Policy-2013, Government of Haryana while disposing of the injunction application. Rule 1.1 is reproduced as under:-
"Location of GBM/Towers should be avoided in thickly populated residential areas in so far as feasible. In case it becomes absolutely unavoidable to do so, efforts should be made to install these structures in the open spaces such as the Parks or Green belts available in the residential sectors or open spaces/fields in the rural areas maintaining a safe distance of about 50 meters from the residential areas."
13. Though as per rule 1.1 the location of GBM/Towers should be avoided in the residential area but the learned lower court has failed to observe that the appellant/defendant no. 3 has already made huge investment in erecting the towers and that construction work was still going on. The aim of defendant no. 3 is to provide better services to the public at a large and to the inhabitants of village Bawana and as per appellant, the radiation limits are also within the norms prescribed by GURPREET SINGH 2015.04.07 15:56 I attest to the accuracy and authenticity of this document Chandigarh Civil Revision No. 2166 of 2015 -3- the DOT (Department of Telecommunication). Even otherwise the site plan placed on record shows that the tower is being erected in the open space. Furthermore, Shri Ishwar Singh, D.E.T., Narnaul has given undertaking that the matter regarding effect of radiations emitted by mobile towers is pending before the Hon'ble Apex Court and if Hon'ble Apex Court holds that the radiations so emitted by the towers are harmful to the immediate neighbours of the towers then B.S.N.L. Shall remove the same.
14. So, in these circumstances, neither prima-facie case is made out in favour of the plaintiffs nor balance of convenience tilts in favour of the plaintiffs rather balance of convenience tilts in favour of the defendants. Further more in view of undertaking given by Shri Ishwar Singh, D.E.T., Narnaul no irreparable loss is going to be caused to the plaintiffs. Accordingly, the injunction application is hereby dismissed and the appeal is accordingly accepted. Counsel fee is assessed as Rs. 2,100/-. Memo of costs be prepared. Lower court record be sent back alongwith a copy of this judgment and the parties are directed to appear in the lower court on 27.2.2015. File be consigned to record room after compliance. Nothing observed herein shall be construed as an expression of my mind on the merits of the case."
The reasons given by the Appellate Court while dismissing the application under Order 39 Rule 1 and 2 CPC, are GURPREET SINGH 2015.04.07 15:56 I attest to the accuracy and authenticity of this document Chandigarh Civil Revision No. 2166 of 2015 -4- sound reasons.
No ground for interference by this Court is made out. Dismissed.
(SABINA) JUDGE March 27, 2015 Gurpreet GURPREET SINGH 2015.04.07 15:56 I attest to the accuracy and authenticity of this document Chandigarh