JUDGMENT
R.C. Chopra, J.
1. This application under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure has been filed by the plaintiff with a prayer to restrain the defendants, their servants, employees etc. from raising any constructions and installing a Transmission Tower in the open space/terrace on the 7th Floor of Ansal Chambers-II, 6, Bhikaji Cama Place, New Delhi till the disposal of the suit.
2. The facts relevant for the disposal of this application, briefly stated, are that the plaintiff has filed a suit for permanent injunction against the defendant No. 1, the owner/developer of Ansal Chambers-II, Bhikaji Cama Place, New Delhi and defendant No. 2, a Company holding a license for providing cellular services in the territory of Delhi. The plaintiff, a registered partnership firm, has alleged that it had purchased two flats bearing No. 709, 709-A, 710 and 710-A from the defendant No. 1 vide Flat Buyers Agreement dated 20.11.1989 and since then, it is using the same for office purposes. It is stated that the said flats are situated on the terrace floor of the aforesaid property. The said flats were sanctioned/approved for storage but the same are being used for office purpose where the plaintiff’s partner’s and staff work and the clients also visit. According to the plaintiff, on 1.7.2002, some building activity was observed just outside in the open space in front of its flats and on enquiry, it was learnt that defendant No. 1 had entered into an agreement with defendant No. 2 and provided the open space to defendant No. 2 to construct and install a Transmission Tower for cellular services and also construct two huge rooms for generator and control panel. It is averred that these two rooms are being constructed at a distance of less than two meters from his office space and foundations for electric pillars are being made at a distance of 1 or 1.5 meters. These constructions are stated to be unauthorised, in violation of international guide-lines and a serious health hazard to the plaintiff and others on account of exposure of radiation, pulse micro waves and signals- It is also alleged that the plaintiff’s egress and ingress to his premises is likely to be affected besides obstruction to the light and air.
3. The defendant No. 2 filed a written statement and reply to the application under Order 39 Rules 1 and 2 of the CPC which have been adopted by defendant No. 1 also. The plaintiff has filed a replication in which certain additional pleas are raised. In terms of orders dated 24.9.2002, passed as per the statements of counsel for the defendants, the pleas raised in the replication may be considered for disposal of the present application.
4. The defendant No. 2 in its written statement has pleaded that the plaintiff has neither any locus standi nor any legal right to restrain the defendants from using the open space/terrace on the seventh floor of the building in question. It is denied that the proposed structure would block passage or the flow of light and air to the plaintiff’s premises which are being used by the plaintiff for office purpose unauthorisedly in view of the fact that the premises are meant to be used for storage only. It is also submitted that the proposed Transmission Tower and structure fulfills all legal and statutory requirements and the defendants have applied for permission to the authorities concerned. It is stated that the proposed tower will be conforming to the standards prescribed by the Pollution Control Board and will be free from air and noise pollution and would not violate any statutory provision or guide lines laid down by the authorities. The defendants submit that the Transmission Tower is being constructed as the defendant No. 2 is a licensee for providing cellular services and the ex-parte injunction granted by the Court is causing serious financial loss to defendant No. 2. The defendants have entered into an agreement for the installation of the said Transmission Tower and construction of two rooms for generator and the control panel on the terrace of the building which is not at all a health hazard as alleged by the plaintiff.
5. In the replication, the plaintiff has reiterated that the defendant No. 2 is raising constructions without sanction and is totally silent regarding his status or right to raise the impugned constructions. It is also pointed out that the roof top on which such towers are permitted to b(c) raised does not mean the open area in front of the plaintiff’s office on the same floor level. It is also pleaded that in view of Delhi Apartment ownership Act, 1986, the roof of the building forms a part of a common area in which all the apartment owners have a proportionate share and as such the builder/promoter of the building, defendant No. l, has no right to enter into any agreement with defendant No. 2. Reliance is placed on a judgment passed by the High Court of Delhi in the case of Sagar Appartments Flat owners Society v. Sequoria Construction, (P) Ltd. reported in 1993 RLR Page 446. It is asserted that defendant No. 1 has no right to enter into any kind of arrangement with any outsider for the use of the said roof/open space.
6. I have heard learned counsel for the parties. I have gone through the records.
7. The plaintiff, with a view to show a prima facie case in its favor, relies upon the provisions of Delhi Apartment ownership Act 1986 Act (hereinafter referred to as the “Act” only) and contends that the defendant No. 1 is left with no right or interest in the terrace in question which is a common area and as such all the flat owners in the building have proportionate ownership right therein. On this score it is averred that defendant No. 1 has no right to enter into any agreement with defendant No. 2 for erection of Transmission Tower and construction of two temporary rooms for generator set and control panels. The second limb of the plaintiff’s case is that it is running its office in the two flats on the 7th floor of the building in question, the windows and door of which abut on the open terrace and in case impugned constructions are raised not only that the plaintiff’s light and air and right of ingress and egress would get affected the persons working in its office would be exposed to radiation from the Transmission tower which is a potential health hazard. It is also pleaded that the defendants have neither obtained any sanction nor any permission for erection of the Transmission Tower or construction of two rooms.
8. On the other hand the contention of learned Counsel for the defendants is that the plaintiff has no right or interest whatsoever in the open space/terrace, which is still under the ownership of defendant No. 2 in view of Clause 11 (a) of the Agreement executed between the plaintiff and defendant No. 1. It is contended that Delhi Apartment ownership Act 1986 does not advance the case of the plaintiff as the terrace in question is not a “common area”. It is also pleaded that the plaintiff has no prima facie case in its favor for the reason that the plaintiff itself is using the flats meant for storage only for office purposes. It is pointed out that the proposed tower, the construction of which is at some distance from the doors and windows of the plaintiffs flat, would not affect its light or air nor there would be any obstruction in the egress and ingress to the flat. The plea regarding radiation and health hazard is disputed on the ground that there is no conclusive scientific research or evidence to show that such towers are a health hazard. It is submitted that had it been so the authorities would not have permitted the Transmission Towers to be erected. The judgment in Sagar Appartments case is stated to be not applicable to the facts of the present case for the reason that in the said case the issue before the Court was entirely different and the Court had held that the portions regarding which injunction was being claimed were common areas and the builders and promoters of the building had impliedly agreed that after the handing over of the flats/space to the flat owners, they would have no right to raise any additional storey or putting up any additional structure in open space.
9. Coming to the question as to whether the plaintiff has established or not a prima facie case in its favor, this Court finds that the plaintiff is claiming its ownership rights in the terrace in question on the basis of the provisions of Delhi Apartment ownership Act, 1986. Section 3(j) of the said Act defines “common areas and facilities” and Sub-clause (ii) thereof covers the “roofs” also within the definition of common areas. It is contended that Section 4 of the Act lays down that every person who becomes entitled to the ownership and possession of an Apartment under Section 4 (1) or (2)of the Act is entitled to such percentage of undivided interest in the “common areas and facilities” as may be specified in the Deed of Apartment. Sub-clause (4) of Section 4 further says that such percentage of undivided interest of each apartment owner in the common areas and facilities shall have a permanent character and shall not be altered without the written consent of all the apartment owners. It is asserted that the plaintiff who is an owner of one of the apartments in the building in question is vested with undivided interest in the roof in question on which proposed tower is coming up. The defendants on the other hand contend that although Section 3(j) of the Act covers the “roofs” also within the definition of “common areas and facilities” in relation to a multi storeyed building Sub-clause(3) to Section 4 of the Act categorically says that an apartment owner is entitled to only such percentage of undivided interest in common areas and facilities as may be specified in the Deed of Apartment. It is submitted that the Act does not envisage any automatic interest in favor of a flat owner in a common area for the reason that in every building there are numerous common areas like roofs, halls, corridors, lobbies, stairway etc. which may or may not be made available to every apartment owner. The promoter/ owner of building may keep some of the areas for his Own use or may plan equitable distribution and division of common areas between different occupants. Every apartment, therefore, owner cannot claim an undivided interest in every part of common area in a building. It is argued that in a multi-storeyed building the promoter or builder of the building may provide different common areas to different segments of Apartment owners so that they may use those areas without interference from others. If it is not done and everybody is allowed to claim interest in every part of common area in the building multifarious problems and disputes may arise between the flat owners themselves and for this reason Section 4 of the Act specifically says that a person who becomes entitled to the ownership and possession of an apartment in terms of Sub-section (1) or Sub-section (2) of Section 4 shall be entitled to undivided interest in only those common areas and facilities which may be specified in the Deed of Apartment in his favor. It is also submitted that in a multi storeyed building, which is not fully constructed or in which the builder or promoters expects chances of further constructions on the terrace or any open area, he may specifically reserve his ownership rights over such area so that in case he gets permission from the concerned authorities he may raise further constructions as per the building byelaws. It is pointed out that Section 4(3) of the Act does not confer any automatic right in favor of all the Apartment owners in respect of all the common areas defined in Section 3(j) of the Act and as such one has to look to the Agreement between the parties to find out as to in which common area or facility an apartment owner has undivided interest.
10. After considering the submissions made by learned counsel for the parties and examining the provisions of the Delhi ownership of Apartments Act, this Court is of the considered view that the Act certainly creates valuable rights in respect of the “common areas and facilities” in multi-storeyed buildings in favor of the apartment owners so that they may enjoy their portions comfortably, but these rights are controlled by and are subject to the provisions of Section 4(3) of the Act which entitles the promoter/builder of a multi-storeyed building to specify common areas which he wishes to transfer to the flat owners. It entitles him to earmark different common areas and facilities for different occupants in the building so that different groups of the flat owners in different parts of the building may enjoy separate “common areas and facilities” without interference from other occupants of the building. This can be done by the promoter/builder of the building by incorporating appropriate Clauses regarding common areas in the Deeds of Apartments executed in favor of the purchasers of the flats in terms of Section 4(3) of the Act. Had the Legislature intended not to permit, the promoter/builder of a building to earmark or apportion such areas Section 4(3) of the Act would have simply stated that every person who becomes entitled to the exclusive ownership and possession of an apartment under Sub-section (1) or Sub-section (2) of Section 4 of the Act shall become entitled to undivided interest in all the common areas and facilities in the building and there was no need to use the words “as may be specified in the Deed of Apartment”. A purchaser of the Apartment may opt out of the deal in case he finds that common areas and facilities required by him are not being provided to him by the promoter. Learned counsel for the defendants rightly contends that the roof in question still remains exclusively with defendant No. 1 in as much as Clause 11(a) of the Agreement between the parties specifically provides that the promoters shall continue to have a right to make additions or put up additional structure etc. as may be permitted by the local authorities on the terrace of the complex and the terrace and parapet walls shall continue to be the property of the promoter who shall be entitled to use the same for any purpose whatsoever.
11. Learned counsel for the plaintiff however, relies upon a judgment of this Court in Sagar Apartment Flat owners case (supra), in which Delhi Apartment ownership Act, 1986 was considered and it was held that the intention of the Act is to protect the interests of the apartment owners in the common areas and facilities available in the building. However, a perusal of para 26 of the judgment shows that in the said case the promoter/builder had impliedly given an assurance that he shall have no right to raise any additional stories or put up any additional structures after the specific flat/space, the subject matter of the agreements, was given to the flat owners. In view of Clause 18 of the Agreement in the said case the the Court had come to the conclusion that the promoter/builder had no right to raise any further constructions in the common areas available to the flat owners. However, in the present case Clause 11(a) of the agreement does not confer any right in favor of the plaintiff in respect of the terrace of the building in question and therefore in terms of Section 4(3) of the Act the plaintiff has no prima facie case in his favor to show that the defendant No. 1 is not entitled to use the said roof/terrace without its permission.
12. The plea of the plaintiff that the erection of the Transmission Tower and two rooms in front of his office premises is likely to cause obstruction in his ingress and egress and would affect his light and air is also not prima facie sustainable for the reason that the impugned structures are being raised at some distance from the door and windows of the plaintiffs premises and it does not appear that the plaintiff’s right of access into his premises or his light or air would be affected. The plea that the radiations emitted by the Transmission Tower are a health hazard and may lead to cancer, cardiac ailments and neurological disorders is based upon certain reports placed on record but this Court is of the considered view that these reports cannot be relied upon on their face value because so far there is neither any conclusive research nor authoritative scientific evidence to show that the radiations emitted by such Transmission Towers are dangerous to the health of human beings. Conflicting reports keep on coming and in Hindustan Times dated 20.9.2002 noticed by the Court there was a report on page 12 that Cellphone-cancer link stands disproved. The report reads as under :
“Cellphone-cancer link disproved
London, September 19
A new study has unfounded previous theories that have linked use of cellphones to cancer.
In a wide-ranging scientific review by the Swedish Radiation Protection Authority (SSI), “no consistent evidence” was found linking cellphone use to a list of cancers including brain cancer, meningioma, acoustic neurinoma, ocular melanoma and salivary gland cancer.
US scientists John Boice and Joseph McLaughlin of the International Epidemiology Institute, chosen by the Swedish public health body to carry out the study, were quoted by Discovery Health as saying, “In our view, a consistent picture has emerged from these studies that appears to rule out, with a certain degree of consistency, a casual association between cellular telephones and cancer to date”.
Boice and McLaughlin looked at dozens of studies from several countries that had taken into account many different criteria, including the type of cellphone, duration and frequency of use, total cumulative hours of use, and tumour location. The epidemiologists found fault with several studies, claiming that cellphones use was dangerous.
They said five more thorough studies from three countries, including a Danish project involving data on 400,000 cellphone users, provided more reliable evidence ruling out the dangers of cellphone use.
In addition, the studies of human data have been backed by recent experiments on lab animals showing there is no adverse effect of exposure to the radiation produced by the cellphones.
Finally, the team argued in the SSI report, “there is no biologically plausible mechanism” that could even support the idea of cellphone use being cancer-causing.”
Moreover, this Court is of the considered view that had there been any conclusive and satisfactory scientific evidence on this question, the authorities themselves would not have permitted putting up of Transmission Towers all over the country. Therefore, it cannot be prima facie held that the putting up of the Transmission Tower in question would be a health hazard for the plaintiff and others visiting its office or working in its office
13. It is also to be mentioned that the plaintiff has no equity in its favor to claim discretionary relief from this Court for the reason that the premises in occupation of the plaintiff are not at all meant for human habitation. These were purchased for storage purpose only and as such by putting the premises to unpermitted use the plaintiff cannot turn around and plead that the persons working there are facing any inconvenience or health risk. Not only that the plaintiff has no prima facie case in its favor it also appears that the balance of convenience is more in favor of the defendants who are in the midst of setting up the cellular net work under a license and if one Transmission Tower remains non-operational the whole network proposed to be established by defendant No. 2 may be jeopardised. The plaintiff would suffer no irreparable loss/injury by the refusal of an ad-interim injunction in case the erection of the Transmission Tower in question is permitted subject to the final out come of the suit so that after the trial of the suit, in case the plaintiff is in a position to establish its case, the defendants may be asked to remove their Transmission Tower. In a recent judgment in the case of State of Karnataka v. State of A.P. and Ors. , the Apex Court (in para 45) clearly held that an injunction under Order 39 CPC being a discretionary relief may not be granted even if all the three ingredients for the grant thereof are established. Applying the said principle to the facts of the present case this Court is of the considered view that it is not a fit case for grant of this discretionary relief to the plaintiff during the pendency of the suit.
14. The defendant No. 1 who is supporting defendant No. 2 appears to have entered into an agreement with defendant No. 2 to permit it to raise a Transmission Tower. This Court is assured by learned Counsel that the tower as well as the structures for the generator room and panel room would be with the permission and sanction of the concerned authorities including MCD.
15. In the result the plaintiff’s prayer for restraining the defendants from commissioning the Transmission Tower in question till the disposal of suit is declined. However with a view to safeguard and protect the plaintiff’s interests which may be established during trial, it is ordered that the defendants shall file a joint undertaking with this Court that required sanctions and permissions shall be obtained from the authorities concerned including MCD before commencing the construction of impugned Transmission Tower and also give an undertaking to dismantle and remove the Transmission Tower and rooms in case the suit filed by the plaintiff is decreed and they are restrained from continuing with the Transmission Tower on the roof of building in question.
16. The application stands disposed of accordingly.
Nothing stated herein shall be taken as an expression of opinion on the merits of the suit as observations made herein are tentative only.