Delhi District Court
Hargyan Singh vs Sh. Satya Prakash on 6 November, 2012
IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
ASJ03 (EAST) KARKARDOOMA COURTS, DELHI
CR No. 37/12
1. Hargyan Singh
S/o. Late Sh. Hari chand
18/481482, Trilok Puri,
Delhi110091.
2. M/s. Indus Tower Ltd.
Regd. Office at
Bharti Cresent
1, Nelson Mendela Road
Vasant Kunj, PhaseII
New Delhi. ............ Revisionists
Versus
1. Sh. Satya Prakash
S/o. Sh. Om Prakash
18/483, Trilok Puri,
Delhi.
2. The State
(Delhi Administration) ............ Respondent
ORDER
1. By this order I shall dispose off Criminal revision petition filed Crl. (R) No. 37/12 Page 1 of 10 Hargyan Singh & Anr. Vs. Satya Prakash by the petitioners challenging the validity of order dt. 15.07.11 passed by Sh. D.P.Singh, Ld. SDM, directing removal of the mobile tower belonging to petitioner no.2 from the premises owned by petitioner no.1.
2. The facts of the case are that petitioner no.2 has approached petitioner no.1 for hiring space required for erection of mobile tower and installation of mobile network instruments. An agreement has been entered into in this regard. The petitioner no.2 has obtained a certificate of structural stability in respect of the premises and petitioner no.1 has applied to MCD for the requisite permission. Respondent made a complaint to the concerned SDM alleging that the erection of the tower was causing hydro electro magnetic radiation and that a heavy generator is installed on the roof. Ld. SDM passed a conditional order u/s.133 of Cr.P.C directing the petitioners to stop installation work till a permission letter is obtained from MCD.
3. On 15.07.11 Ld. SDM passed an order confirming its earlier order, directing removal of the mobile tower from the roof top of the premises of petitioner no.1. It has been argued by the counsel for the petitioner that essential ingredients of section 133 Cr.P.C concerning unlawful obstruction and nuisance are not satisfied. The petitioner Crl. (R) No. 37/12 Page 2 of 10 Hargyan Singh & Anr. Vs. Satya Prakash already has a permission from MCD. The ground for impugned direction was absence of necessary permission, however, the SDM could not have passed an order stating that the tower be removed as there is no permission, without holding any enquiry on whether or not the erection of tower will cause any unlawful obstruction or nuisance as envisaged u/s. 133 Cr.P.C.
4. Ld. Counsel has argued that the mobile tower was non functional on the date of passing of order by Ld. SDM and as such, the Ld. SDM could not have arrived at a conclusion that the erection and use of the same will cause any nuisance or obstruction in future. Ld. Counsel for the petitioner has relied upon the judgment of Hon'ble Kerala High Court in W.P. no. 18242 & 16724 of 2006 dated 12/10/2006 stating that the operation of mobile tower and equipment does not cause any radiation, which could be termed hazardous. He further argued that Ld. SDM in his order has stated that necessary permission has not been obtained from DPCC, failing to appreciate that this permission could be obtained only once the DG set became operational. It is argued that DPCC grants permission qua the noise pollution only after hearing the alleged equipment causing the noise pollution. In the instant case, however, the generator set has not been installed yet and therefore, the Crl. (R) No. 37/12 Page 3 of 10 Hargyan Singh & Anr. Vs. Satya Prakash petitioner could not have obtained any permission from DPCC.
5. Ld. Counsel for the respondent on the other hand argued that the place where the petitioner no.1 and respondent are residing is densely populated residential area and there is no scope for erecting a mobile tower in that area. The house of respondent is very weak and cracks have already appeared on it, this house as such is incapable of lifting the weight of a heavy tower and generator. Ld. Counsel has relied upon the noise pollution guidelines issued by the Hon'ble Supreme Court in 2005 (3) RCR (Crl.) 8001. SC and 209 (3) RCR (Crl.) 36 SC.
6. Arguments heard. Record perused.
7. The case of the respondent is based on the apprehension of a harm to the property situated and persons residing in the locality and also of noise pollution and health hazards. Ld. SDM, however, while passing his order did not take into consideration the plea, grievances and the fears of the respondent into consideration at all. The order passed by Ld. SDM does not indicate, if he conducted any enquiry. Section 133 of Cr.P.C lays down that the District Magistrate or SDM is empowered to order removal of any structure, which he feels is likely to cause injury to Crl. (R) No. 37/12 Page 4 of 10 Hargyan Singh & Anr. Vs. Satya Prakash persons living or carrying business in the neighborhood and can also order the removal of any unlawful obstruction or nuisance. Section 138 Cr.P.C says that a Magistrate, after issuing showcause to the person against whom an order is made u/s. 133 Cr.P.C, shall after taking evidence in the matter as in summons case, confirm the order passed u/s. 133 Cr.P.C or order such modifications as may be necessary, based on the evidence taken by him.
8. The grievance of the petitioner in this case is that the SDM did not conduct any enquiry before arriving at a conclusion that installation of the tower might cause nuisance for the public in the area. The record reveals that there are 23 letters of the residents duly signed by them, which were placed on record in reply to the notices issued by the SDM on 05.08.10, the complaint of complainant is also on record, nevertheless the SDM did not consider any of these documents at the time of passing of the impugned order. When section 138 Cr.P.C directs, taking of evidence as in summons triable cases, it speaks of recording of evidence of some witnesses and affording proper opportunity to the contesting parties. The procedure has not been so followed by the Ld. SDM. He has based his reliance solely on the fact that the petitioner did not have requisite permission from MCD and DPCC regarding which the stand of the Crl. (R) No. 37/12 Page 5 of 10 Hargyan Singh & Anr. Vs. Satya Prakash petitioner is that the permission from DPCC is obtained only after the DG set becomes operational and the MCD permission has already been obtained by him.
9. Ld SDM has based his reliance solely on the fact that the petitioner did not have requisite permission from MCD and DPCC regarding which the stand of the petitioner is that the permission from DPCC is obtained only after the DG set becomes operational and the MCD permission has already been obtained by him. Further, if the order of removal of structure could be passed only on the basis of non existing permission of MCD, the defect having been cured, the petitioner would automatically become entitled for erection of the tower. This however is not the rationale of section 138 Cr.P.C; the duty of the SDM Court under section 138 is to find out if the apprehension of persons before it regarding alleged obstruction and nuisance is valid or not irrespective of permission from the concerned authority. There may be cases where a construction or erection might, inspite of permission, be causing nuisance and there may be cases where there would be no nuisance though the party might not be having a valid permission.
10. The SDM, therefore, was required to conduct an inquiry to Crl. (R) No. 37/12 Page 6 of 10 Hargyan Singh & Anr. Vs. Satya Prakash conclude as to whether or not the erection of tower will cause nuisance and obstruction as alleged; and in reaching a conclusion non existance of the requisite permission may become one of the grounds, it cannot , however, be the sole criteria for deciding the issue under section 138 of Cr.P.C. For, if it were so the petitioner having obtained the requisite permission would become entitled automatically to start his work. It was held in Balakrishna versus State of Mysore, 1974CrLJ220 &State of Maharashtra vs Hasanali, 1975 CrL J 1782 (Bom) that final order under section 138 must be based on evidence, if the opposite party appears and showscause. In Gopalswamy versus State of Mysore, 1974 CrLJ1119 (Ker) it was held that the order must be based on evidence even if the opposite party produces no evidence. Thus though the Ld SDM could have passed an order u/s 133 of Cr.P.C summarily; it was bound to take evidence while passing the order under section 138 of the Cr.P.C.
11. It is important to note the the respondent after putting an appearance on show cause had filed a detailed reply stating therein that due procedure has been followed in installation of mobile tower/antena; a thorough research and analysis is carried out. He also relied upon the orders passed by Hon'ble High Court of Kerala on the health hazard Crl. (R) No. 37/12 Page 7 of 10 Hargyan Singh & Anr. Vs. Satya Prakash issues etc., and he having so stated in the reply and having put on record his defence, it was incumbent upon the SDM to take evidence in the matter regarding the possibility of nuisance and obstruction as had been alleged by the respondent and having been refuted by the petitioner, instead of having passed the order on the technical ground of the respondent having not obtained the requisite permission.
12. For arriving at a conclusion, I place my reliance on the judgment of Hon'ble Supreme Court in 1996 SCC (CRI) 27 and AIR 2004 Supreme Court 4818, whereby the object and purpose of section 133 Cr.P.C discussed and the Hon'ble Supreme Court held as under:
" The exercise of the power should be one of judicious discretion objectively exercised on pragmatic consideration of the given facts and circumstances from evidence on record. The proceedings under Section 133 is not intended to settle private disputes or a substitute to settle civil disputes though the proceedings under Section 133 is more in the nature of civil proceedings in a summary nature. The nuisance Crl. (R) No. 37/12 Page 8 of 10 Hargyan Singh & Anr. Vs. Satya Prakash is the concomitant act resulting in danger to the life or property due to likely collapse etc. The dangerous condition of the building is in praesenti but not in future. The section is limited to injuries likely to be caused to the passersby or persons living or carrying on business in the neighbourhood. Each case has to be considered in the light of the facts and circumstances obtained in each case."
"A Conjoint reading of Sections 133 and 138 of the Code discloses that it is the function of the Magistrate to conduct an enquiry and to decide as to whether there was reliable evidence or not to come to the conclusion to act under Section 133."
13. In view of above, the order passed by Ld. SDM is in error in not following the due procedure of law as laid down for summons triable case under section 138 Cr.P.C. The order dt. 15.07.11 is set aside. Trial Court record be sent back with the direction to Ld. SDM to conduct proper enquiry on the possibility of nuisance if any likely to be caused by erection Crl. (R) No. 37/12 Page 9 of 10 Hargyan Singh & Anr. Vs. Satya Prakash of mobile tower without being influenced by the findings hereinabove and trial after the show cause as laid down u/s. 138 of Cr.P.C. Revision file be consigned to record room.
Announced in the open court on 06.11.12 (ANURADHA SHUKLA BHARDWAJ) ASJ03, (EAST) KKD COURTS, DELHI/06.11.12 Crl. (R) No. 37/12 Page 10 of 10 Hargyan Singh & Anr. Vs. Satya Prakash