Delhi District Court
Sarabjeet Singh vs Indus Towers Ltd on 2 November, 2021
IN THE COURT OF SHRI NARESH KUMAR LAKA
ADDITIONAL DISTRICT JUDGE - 03, SOUTH EAST,
SAKET COURTS, NEW DELHI
MCA DJ No.4/21
In the matter of :
Sarabjeet Singh
....... Appellant
Versus
Indus Towers Ltd.
.......Respondent
Dated : 02.11.2021
JUDGEMENT
The present appeal has been filed under Order 43 Rule 1 CPC challenging the interim order passed under Order 39 Rule 1 and 2 CPC in CS SCJ No. 633/2020 on 09.02.2021 by the court of Sh. Gagandeep Jindal, Ld. SCJ, South-East. Reply to the said appeal has already been filed by the respondents.
2. I have heard argument from Sh. Satyendra Kumar and Sh. Nitesh Saini, Ld. Counsel for the appellant and Sh. Rohit Jain, Ld. Counsel for the respondent no.1 and Sh. Animesh Gaba & Sh. Divyash Basist, Ld. Counsel for the respondent No.2/DDA. File perused.
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3. The background of the suit in which the interim application was decided is to the effect that four plaintiffs objected to the installation of mobile towers on the ground that they posed serious health issues to the nearby residents of the said locality which includes the senior citizens, students, doctors, hospital staff etc. because of radiation exposure from the mobile towers. It is also submitted that the respondent no.1 had installed the said mobile tower in the vicinity of the residential area and not at the designated site which was allotted by the respondent no.2.
4. The Ld. Counsel for the appellant has also relied upon the following judgements :
(i) "Bhupesh Sehgal & Ors. Vs. Delhi Development Authority & Ors.", passed by the Hon'ble Supreme Court of India in Civil Appeal No.2612/2016 dated 30.03.2017;
(ii) "Bharat Sanchar Nigam Ltd. Vs. Justice I.S. Isranai (Retd.) & Ors., SLP ( C) No.1349/2013, dated 27.02.2020;
(iii) "Bharat Sanchar Nigam Ltd. Vs. Justice I.S. Isranai (Retd.) & Ors., case status of SLP ( C) No.1349/2013, dated 27.02.2020 showing pendency of the matter
(iv) "Justice I.S. Isranai (Retd.) & Ors. Vs. Union of India & Ors., Hon'ble High Court of Judicature for Rajasthan at Jaipur Bench Jaipur in D.B. PIL Petition No.2774/2012, dated 27.11.2012
(v) "Sh. Jagdish Narayan Vs. Sh. Shamsher Singh, passed by Ms. Surya Malik Grover, SCJ, Sachet Courts, Delhi in CS No.360/2011, dated 20.04.2015;
(vi) "Kanwal Singh Vs. Municipal Corporation of Delhi, passed by Ms. Surya Malik Grover, SCJ, Sachet Courts, Delhi in CS No.360/2011, dated 27.05.2015;
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5. On the other hand, the Ld. Counsel for the respondents vehemently argued that in view of various judgments passed by the Hon'ble High Court of Delhi as well as Hon'ble Supreme Court of India, the suit filed by the plaintiffs is not maintainable and there is no established scientific study to conclude that the mobile towers or their radiations cause any health hazard to the people. It is also stated that the said mobile tower was installed after following due process of law and in this regard various communications/documents have been placed on record.
6. From the perusal of the order of the learned Trial Court, it is seen that on the first limb of argument relating to causing health hazard, the Ld. Trial Court aptly quoted the observation of Hon'ble High Court of Delhi which were passed in the case of "Resident Welfare Association vs. Union of India, W.P (C) No. 8661/2015" in which it was categorically held that there is no scientific evidence to conclusively prove that the radiation emitted by such transmission towers are dangerous to health of human beings. Therefore, the mere apprehension or assumption of the plaintiffs, without any specific scientific report/evidence cannot be accepted as valid ground to allow the interim relief in their favour, which on the other hand if allowed, will cause great hardship and inconvenience to the defendants/respondents in particular in providing the network services and in general to the subscribers/consumers of the mobile phones which not only include the MCA DJ No.4/21 Page No. 3 of 6 Sarbjeet Singh vs. Indus Towers Ltd.
general public but also the essential part of day-to-day exigency/activity of the said hospital/school or their staffs.
7. It is a settled position of law that no one can take advantage of his own wrong and on the said analogy, it can be said that if the plaintiffs were/are taking benefit by using their mobile phones which involves transmission of the data/network from similar or same mobile towers, on the other hand, they cannot be allowed to raise objection for installation of such towers. As such, this court is of the considered opinion that the plaintiffs have no prima facie case in their favour.
8. The judgment of the Hon'ble Rajasthan High Court in the case of "Justice I.S. Isranai (Retd.) & Ors. Vs. Union of India & Ors., PIL Petition No.2774/2012, dated 27.11.2012" as relied by the counsel for the plaintiffs is distinguishable in nature and moreover, this court is not bound to follow the said judgment when judgement of our own High Court are already on record which are in favour of the respondents. The other judgements of the District Courts, as relied by the counsel for the appellant are not binding on this court.
9. Secondly, as far as the allegation of installation of the mobile tower at the place other than the designated site (as shown in the site plan) is concerned, it is observed that it is the admitted case that plaintiffs are not the owner of the said place which is in fact a Nursery owned by the DDA. As such, they have no locus standi to challenge the action of the respondents in choosing a particular place for installation of mobile tower MCA DJ No.4/21 Page No. 4 of 6 Sarbjeet Singh vs. Indus Towers Ltd.
by defendant no.1. It is also specifically barred by Section 41 (h) of the Specific Relief Act. Even if it is presumed that the tender was given by the DDA to install the mobile tower on a particular altitude /longitude and that the said mobile tower has been installed at some other place, in that case also the matter is between the DDA and its agent (defendant no.1 & defendant No.2) and only the DDA has the right to raise such objection and not the plaintiffs. The tender notice is only a process by which a formal contract for installation of mobile tower was given to the defendant no.1 and, in fact, when the DDA is the owner of the entire Nursery, they can change/modify the terms of the said tender notice at any time or they can orally also grant the permission to the defendant no.1 to install the said tower at any other place of the said Nursery or any other land which is owned by the DDA.
10. The defendants have also placed on record various circulars/official orders passed by the Department of Telecommunication which permit installation of mobile tower and no specific plea has been taken by the appellant claiming or pointing out specifically any violation of such directions of the said circulars. The entire case of the plaintiff is based on oral submissions and the plaintiffs did not show any specific provision of law or the rules or regulations which have been controverted by the defendants.
11. In the light of aforesaid discussion, this court holds that the order dated 09.02.2021 was rightly passed by the learned Trial Court and there is no illegality or infirmity in the same. Accordingly, same is upheld MCA DJ No.4/21 Page No. 5 of 6 Sarbjeet Singh vs. Indus Towers Ltd.
and the present appeal is dismissed with costs of Rs. 20,000/-, out of which, Rs.7,000/- each shall be given to the respondents no.1 and 2 and the remaining Rs.6,000/- be paid by the plaintiff/appellant to the Saket Bar Association Welfare Fund, Account No.32895685000, SBI, IFC Code SBIN0014244 within 30 days.
12. The appeal file be consigned to record room. Copy of the order be sent to the Ld. Trial Court.
Announced in the Open Court (Through V.C.) (Naresh Kumar Laka) Additional District Judge-03, South East District 02.11.2021 MCA DJ No.4/21 Page No. 6 of 6 Sarbjeet Singh vs. Indus Towers Ltd.