George, A.T.C Telecom Tower Corporation Private Limited and Jacob v. Kamalakshi, Tisarrant, Leena, Sanal and Johny

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR FRIDAY, THE 26TH DAY OF SEPTEMBER 2014/4TH ASWINA, 1936 FAO.No. 207 of 2014 () ----------------------- I.A.4264 of 2013 IN AS 286/2013 OF IV ADDL. DISTRICT JUDGE, THRISSUR. ## APPELLANTS/RESPONDENTS-RESPONDENTS: --------------------------------------------------- 1. GEORGE AGED 63 YEARS S/O KONGOTH DEVASSY, THUMBUR DESOM KOTTANALLUR VILLAGE, MUKUNDAPURAM TALUK. 2. A.T.C TELECOM TOWER CORPORATION PRIVATE LIMITED KERALA CIRCLE OFFICE, 36/2624, FIRST FLOOR CHERAMANGALATH HOSUE, SHENOY ROAD, KALOOR KOCHI-682 017. 3. JACOB SITE SUPERVISOR A.T.C TELECOM TOWER CORPORATION PRIVATE LIMITED 26/2624, FIRST FLOOR, CHERAMANGALATH HOUSE SHENOY ROAD, KALOOR, KOCHI-682017. BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.NISHA GEORGE ## RESPONDENTS/PETITIONERS-APPELLANTS: -------------------------------------------------- 1. KAMALAKSHI, AGED 65 YEARS W/O MEKKAT KUTTAN, THUMBUR PARAKKATTUKUNNU DESOM KOTTANALLUR VILLAGE, MUKUNDAPURAM TALUK-680672. 2. TISARRANT, AGED 53 YEARS S/O ALAPPAT LATE KUNJUVAREED THUMBUR PARAKKATTUKUNNU DESOM, KOTTANALLUR VILLAGE MUKUNDAPURAM TALUK-680672. 3. LEENA, AGED 42 YEARS W/O TISARRANT, THUMBUR PARAKKATTUKUNNU DESOM KOTTANALLUR VILLAGE, MUKUNDAPURAM TALUK-680672. 4. SANAL, AGED 25 YEARS S/O ALAPPAT JOHNY, THUMBUR PARAKKATTUKUNNU DESOM KOTTANALLUR VILLAGE, MUKUNDAPURAM TALUK-680672. 5. JOHNY, AGED 59 YEARS S/O ALAPPAT KUNJUVAREED THUMBUR PARAKKATTUKUNNU DESOM, KOTTANALLUR VILLAGE MUKUNDAPURAM TALUK-680672. R1,R 2 & 5 BY ADV. SRI.K.B.PRADEEP R1,R 2 & 5 BY ADV. SRI.ASHOK SURESH THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 26-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.N.RAVINDRAN & P.B.SURESH KUMAR, JJ.** ## **-----------------------------------------------** ## **F.A.O.No.207 of 2014** ## **-----------------------------------------------** ## **Dated 26[th] September, 2014** ## **J U D G M E N T** ## **P.B.Suresh Kumar, J.** An interim order of injunction passed in an appeal preferred against the final decision in the suit is under challenge in this appeal. The defendants are the appellants. 2. The suit, O.S.No.536 of 2011 on the file of the Sub Court, Irinjalakkuda was one seeking a decree of permanent prohibitory injunction restraining the defendants from erecting/installing mobile tower and related equipments in the plaint schedule property. The plaintiffs are persons residing in the neighbourhood of the plaint schedule property. The first defendant is the owner of the plaint schedule property. The second defendant is the company who is permitted to erect and operate mobile tower and related equipments in the plaint schedule property and the third defendant is an employee of the second defendant company. 3. The case of the plaintiffs is that the plaint F.A.O.No.207 of 2014 2 schedule property is situated in an area which is thickly populated and the erection and operation of mobile tower and related equipments would cause health hazards, including genetic mutations to the people in the locality. 4. The defendants filed written statement contending, inter alia, that the mobile tower and related equipments proposed to be erected/installed in the plaint schedule property are conforming to the standards prescribed by the authorities concerned and that the same would be erected/installed and operated only after obtaining all the necessary permits and licenses. It was also contended by the defendants that the erection/installation and operation of the mobile tower and related equipments would not cause any health hazards to the people in the locality. 5. At the time of the institution of the suit, the plaintiffs were granted an order temporary injunction on the same lines as sought for in the suit and the said order was in force all throughout the suit. Later, after affording to the parties an effective opportunity to adduce evidence, the trial court dismissed the suit, holding that the plaintiffs have failed to establish that the proposed mobile tower would cause any F.A.O.No.207 of 2014 3 health hazards as apprehended by them. The relevant portion of the judgment of the trial court reads thus : “From the above discussion, I am constrained to hold that plaintiffs failed to prove that the proposed Telecommunication Tower would cause health hazards as apprehended. In these circumstances, plaintiffs are not justified in bringing an action. It is made clear that the evidence made available on record are insufficient to hold that the proposed tower would cause health hazards to the plaintiffs as stated in the plaint. Thus, all the issues are answered against the plaintiffs.” 6. Aggrieved by the decision of the trial court, the plaintiffs filed the present appeal. Along with the appeal, they also filed I.A.No.4264 of 2013 seeking an order of temporary injunction as sought for by them in the suit. The defendants filed objections to I.A.No.4264 of 2013 contending that in view of the decision of the trial court, there is no basis for the apprehension that the erection of mobile tower and related equipments would cause health hazards to the people in the locality and that the delay in the erection/installation and operation of the mobile tower and related equipments is causing irreparable injury and loss to them. 7. The lower appellate court took the view that the defendants, who are venturing to bring in a new installation in F.A.O.No.207 of 2014 4 the locality have a duty to reveal the specifications and standards of their installations and without disclosing the specifications and standards of the installations, they cannot contend that no harm would be caused to the people in the locality. According to the appellate court, non disclosure of the specifications and standards of the proposed installations would give room to doubt that the respondents are venturing to put up some installations stealthily and accordingly, issued the impugned order order, restraining the defendants from erecting/installing the mobile tower and related equipments in the plaint schedule property. 8. The learned counsel for the appellants contended that the proposed installations are of the normal standard; that the plaintiffs have no case that the defendants are proposing to establish a mobile tower, deviating from the normal standard and that therefore, they cannot contend that the same would cause health hazards to the people in the locality. The learned counsel for the plaintiffs, on the other hand, contended that the suit has been instituted during September, 2011 and since the order of injunction was in force all throughout the suit, there is no reason to interfere with the impugned order. The learned F.A.O.No.207 of 2014 5 counsel for the plaintiffs has also pointed out that the defendants do not have all the requisite licenses/permits to erect the mobile tower and operate the same. 9. We are afraid, we cannot countenance the stand taken by the appellate court. As pointed out by the learned counsel for the defendants, the case of plaintiffs is only that a mobile tower and related equipments are proposed to be erected/installed in the plaint schedule property and that operation of the mobile tower and related equipments would cause health hazards to the people in the locality. The question whether the erection and operation of the mobile tower and related equipments would cause any health hazards to the people in the locality has been considered by this court in various decisions. It has been held consistently by this court that there are international standards for mobile tower installations and that the installations which are conforming to the standard, have not been established to produce any health hazards. In other words, the question whether the installations in a particular tower would cause any health hazards is a question to be decided based on the specifications and standards of the installations in that particular tower. [See F.A.O.No.207 of 2014 6 **Essar Telecom Infrastructure (P) Ltd. v. State of Kerala** (2011(2) KLT 516)]. Coming to the facts of the present case, the plaintiffs do not have a case that the tower proposed to be erected and the equipments proposed to be installed in the tower in the plaint schedule property are of such a nature which would cause health hazards to the people in the neighbourhood. On the other hand, as indicated above, the case of the plaintiffs is only that a mobile tower is proposed in the plaint property and that the same would cause health hazards to the people in the locality. Further, the trial court, after affording to the parties an effective opportunity to adduce evidence, came to the conclusion that there is absolutely no material on record to infer that any health hazards are likely to be caused on account of the erection of the proposed telecommunication tower. It is settled that in the matter of granting an order of temporary injunction, what is to be seen is a prima facie case, balance of convenience and irreparable injury. In view the specific finding rendered by the trial court, we do not find that the plaintiffs have made out a prima facie case to get an order of injunction, as sought for by them. The view of the court below that in a suit of the instant nature, the F.A.O.No.207 of 2014 7 defendants were duty bound to produce the particulars of the specifications and standards of the tower proposed to be erected is unsustainable. When the defendants contend that they propose to install only equipments of normal standard, in the absence of any material to infer that the said stand of the defendants is incorrect, the appellate court was not justified in holding that the defendants were duty bound to produce standards and specifications of their installations, especially when the plaintiffs do not have such a case. The impugned order, in the circumstances, is liable to be set aside and we do so. It is, however, made clear that we have examined only the question as to whether the plaintiffs/appellants have made out a prima facie case to get the order of injunction claimed by them in I.A.No.4264 of 2013. It is also clarified that the erection of the tower, the installation of the equipments therein, and its operation shall be only after obtaining all the requisite licenses and permits. In the peculiar facts of this case, we also deem it appropriate to direct the appellate court to dispose of the appeal on the merits. Accordingly, the IV Additional District court, Thrissur is directed to dispose of A.S. No.286 of 2013 on its file, within a period of four months from the date of F.A.O.No.207 of 2014 8 communication of this judgment. The appeal is allowed as above. **Sd/-** **P.N.RAVINDRAN, JUDGE.** **Sd/-** **P.B.SURESH KUMAR, JUDGE.** tgs (true copy)