SADHU SINGH Vs. BHARAT SANCHAR NIGAM LIMITED

JUDGEMENT

(1.) The petitioner has filed present petition under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C .') for setting aside order dated 08.07.2019 (Annexure P-6) passed in criminal revision No. CRR-167-2018 by learned Additional Sessions Judge, Yamuna Nagar at Jagadhri whereby revision petition filed against order dated 09.08.2018 passed under Section 133 of the Cr.P.C. in Case No.17/133 titled 'Sadhu Singh Vs. Bharat Sanchar Nigam Limited' by the Sub-Divisional Magistrate, Radaur has been dismissed.

(2.) The petitioner purchased land measuring 3 marlas out of total land of 4 marla comprised in Khasra No.481 from Smt. Sham Kaur vide sale deed No.668 dated 05.07.2002 and constructed his residential house over the same. The petitioner is residing therein along with his sons and grandsons. The respondent installed a high transmission wireless tower with generator set in the vacant land comprised in Khasra No.481 adjoining the house of the petitioner. The said mobile tower is run on electricity day and night but when there is no electricity, the mobile tower is run on the high/heavy capacity generator fueled by diesel. The petitioner filed petition under Section 133 of the Cr.P.C. before Sub-Divisional Magistrate, Radaur for removal of illegal and unlawful nuisance created by the respondent by installation of high wireless transmission tower and generator set. The respondent appeared and filed its reply. The Sub-Divisional Magistrate, Radaur sought report from the Block Development and Panchayat Officer, Saraswati Nagar (for short 'the BDPO'). The BDPO, vide his report bearing memo No.716 dated 11.05.2018, submitted that due to long height of the tower birds in large number sit on the same and dropping of the birds fall on the house of the petitioner due to which there is a fear of spreading of disease; the residents in the neighbourhood are facing inconvenience due to the running of generator and the rays being emitted are having a bad effect on the health of the family members and recommended that the tower be shifted by 800 meters to 1 Kilometer away from the abadi. The Sub-Divisional Magistrate, Radaur, vide order dated 09.08.2018, directed the respondent to shift the generator 10 feet away and install Jali (mesh) on the tower immediately. The petitioner filed revision against the above-said order which was dismissed by learned Additional Sessions Judge, Yamuna Nagar at Jagadhri vide impugned order dated 08.07.2019. Feeling aggrieved the petitioner has filed the present writ petition.

(3.) The petitioner has averred that the high transmission wireless tower and the generator set have been installed within the abadi land of the village in total contravention of the rules governing the installation of high transmission wireless tower. The heavy vibration of the generator causes great nuisance to the petitioner and other neighbours. The petitioner is a heart patient and undergoing treatment in P.G.I. Chandigarh. His grandsons are school going and unable to concentrate on their studies due to vibration and nuisance caused by generator set. The birds in large number sit on the mobile tower and droppings of the birds fall in the house of the petitioner. The impugned order is liable to be set aside as installation of tower is against the government policy stipulating that the mobile tower should not be installed in the residential areas. No reason has been assigned for ignoring the report of the BDPO. The permission for installation of the tower was not attached with the reply. The respondent did not produce any evidence in support of his plea that generator installed was of silent canopy and there is no vibration. Therefore, the impugned orders may be modified and the application under Section 133 of the Cr.P.C. for removal of mobile tower and generator in question may be allowed.