DEVENDRA PRASAD Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THE petitioner by way of this interlocutory application has prayed for amendment in the main writ petition by incorporating additional relief seeking quashing of the order dated 27th November, 2008 passed in Case No. 10 of 2007 in a proceeding under Section 145 of the Criminal Procedure Code by Sub Divisional Officer, Barhi while the main relief sought for in the writ application was for stoppage of the construction of the tower being constructed by respondent nos. 8 to 10. The amendment sought for by way of interlocutory application is totally independent and a new relief. If the petitioner has any cause of action it can be raised in the duly constituted petition before the appropriate Court. Therefore, such amendment cannot be allowed to be incorporated in the main writ application. Accordingly, this interlocutory application is rejected.

(2.) THE petitioner had approached this Court directing the respondents to stop the construction of mobile tower which is being done by respondent nos. 8 to 10 on the grounds that it is being made on the land adjoining to the residential house of the petitioner. The petitioner had also prayed that the respondents may be directed to remove the said tower. From the affidavit of the Respondents-State, it appears that the matter was inquired into and it was found that the tower, in question, is being erected on the land of respondent no. 7 who is a co-sharer of the petitioner and the said land is not in possession of the petitioner as has been verified by the respondent 6 who is Officer Incharge, P.S. Barhi. It is further stated in the counter affidavit on behalf of respondents that the mobile tower has since then been completed over the land and is surrounded by a boundary wall. Learned counsel for the petitioner refutes the aforesaid contention relying upon the documents brought on record by way of supplementary affidavit including the order passed on 17.7.2007 under Section 144 Cr. P. C. by the court of Sub Divisional Officer, Barhi. He further submits that the said land is in joint possession of the petitioner and the respondent no.7. He further submits that construction of the tower, in question, over the land where the petitioner is residing adjacent to is in violation of Article 21 of the Constitution of India as it is causing heavy sound pollution because of use of generator set. Learned counsel for the petitioner also submits that erection of the tower would definitely cause radiation affects, which are in violation of the provisions of the Air Act and the Rules whereunder pollution by noise is regulated and restricted. From the submission of the parties, it appears that the grievance of the petitioner is against the respondent nos. 8 to 10 who are private company engaged in the construction of erection of a mobile tower. No writ can be issued against a private person. Moreover, it appears that the land, in question, is a subject matter of dispute between the petitioner and the respondent no. 7 in respect of which certain orders have been passed in a proceeding under sections 144 and 145 Cr. P. C. The petitioner in the entire writ petition has not given any scientific figures or facts disclosing level of radiation/noise pollution/air pollution caused by erection of mobile tower in question. The allegation of violation of Article 21 of the Constitution of India are substantiated upon sound foundational facts whereupon the writ court can take cognizance.