Judgment :- 1. The second defendant in O.S.No.756 of 2005 on the file of the Additional District Munsif Court, Namakkal, who is the second respondent in I.A.No.1949 of 2005 is the petitioner in the above C.R.P. 2. The first respondent herein filed O.S.No.756 of 2005 against the second respondent herein and the petitioner herein seeking a decree for permanent injunction restraining the defendants in the suit from installing powerful generator at the place of marked as 'D' in the sketch filed along with the plaint as the same affects the peace of the public and the plaintiff and causes polluted atmosphere. 3. Pending the suit, the plaintiff filed I.A.No.1949 for interim injunction. The trial Court dismissed the application for interim injunction and being aggrieved by that the first respondent herein preferred an appeal in C.M.A.No.25 of 2006 before the Sub Court, Namakkal. The Sub Court, Namakkal, allowed the appeal and granted interim injunction and being aggrieved by that the second defendant has filed the above C.R.P. 4. The brief facts which are necessary for the disposal of the above C.R.P. are set out below:- a. In the plaint it is stated that the suit has been filed on behalf of the plaintiff as well as on behalf of the villagers of Maduraiveeran Pudur of Periapatti Village. b. The case of the plaintiff/first respondent herein is that the plaintiff and the villagers have put up their own house and peacefully living in the Village. While so, the second defendant had taken on lease the site belonged to the first defendant for the purpose of installing the cell phone tower and the second defendant without getting the consent of the residents of the Village, has taken steps to instal the cell phone tower and a powerful generator. In the plaint sketch, the place marked as 'P' is the place where the plaintiff and other villagers constructed their houses and the place where the cell phone tower and the generator to be installed is marked as 'D' which is situated on the eastern side of the plaintiff's house. c. The plaintiff apprehends that if the powerful generator is installed, it will cause danger to the residents of that area; some days earlier to the installation of the cell phone tower by the second defendant, several cell phone towers fell down due to heavy rains. c. The plaintiff apprehends that if the powerful generator is installed, it will cause danger to the residents of that area; some days earlier to the installation of the cell phone tower by the second defendant, several cell phone towers fell down due to heavy rains. The cell phone tower and the generator to be installed by the second defendant may fell down and cause danger to the residents of that area. The further apprehension of the plaintiff is that if the powerful generator is installed, it will emanate hot air and black smoke which will cause inconvenience to the plaintiff and the general public. It will also cause diseases and will affect the peace of the plaintiff and the public. 5. The very same averments have been stated in the affidavit filed in support of the I.A.No.1949 of 2005. 6. The second defendant/petitioner herein filed a detailed counter statement and an additional counter statement inter alia contending as follows:- a. The apprehension of the plaintiff that hot air and black smoke will be emanated from the generator and that will cause unnecessary problems to the plaintiff and the public is unfounded and there is absolutely no basis for alleging that it may cause diseases and it will affect the peace of the residents. b. The sketch filed by the plaintiff is not correct and the cell phone tower and the generator are to be located 10 feet away on the east of the plaintiff's property. The site wherein the cell phone tower to be installed belongs to the first defendant and she is entitled to lease out the same. c. After taking the site belonging to the first defendant on a long lease and after obtaining necessary orders from the authorities, the second defendant installed the cell phone tower and the generator. d. Strong foundation has been laid with concrete materials and as such there is absolutely no possibility for the cell phone tower to fall down. The allegation that the powerful generator is to be installed is totally false and only due to the enmity between the plaintiff and the first defendant and being jealous of her receiving good rent from the second defendant, the suit has been filed. The allegation that the powerful generator is to be installed is totally false and only due to the enmity between the plaintiff and the first defendant and being jealous of her receiving good rent from the second defendant, the suit has been filed. e. It has been specifically stated in the counter that the cell phone tower functions with electric power and whenever there is disruption in the power supply automatically the batteries will start functioning and the cell phone tower will function with the power from the batteries. If the charge in the batteries get discharged fully, then only, the mini generator will start functioning. f. The generator will not cause any noise pollution and emanate any smoke. The generator is noiseless and smokeless. If the generator is operated no noise, smoke and hot air will be emanated and it will not cause any inconvenience to the nearby residents. The generator is only a mini generator. When the power supply gets restored, automatically the generator will get switched off. g. If the power supply is disrupted for more than 24 hours, then only, the generator will be operated as the cell phone tower will function for 24 hours with the power from the batteries. Therefore, the apprehension entertained by the plaintiff is baseless. Similarly, the cell phone towers have been installed all over the country and if the installation of the cell phone tower and the generator is prevented by issuing an order of injunction, it will affect the general public and the mobile phone services will be affected and in that event the public will be the worst sufferers. 7. Before the trial Court, no oral evidence was adduced on either side. But on the side of the plaintiff, Exs.P1 to P6 have been marked and on the side of the defendants Exs.R1 and R2 have been marked. The Commissioner's report and plan were marked as Exs.C1 to C4. 8. On a consideration of the evidence on record, the trial Court found that no prima facie case has been made out and there is no basis for the apprehension of the plaintiff and on such reasonings, the petition has been dismissed. 9. Being aggrieved by that the first respondent/plaintiff filed the appeal before the appellate court. 10. The appellate court allowed the appeal mainly basing reliance on the Commissioner's report. 11. 9. Being aggrieved by that the first respondent/plaintiff filed the appeal before the appellate court. 10. The appellate court allowed the appeal mainly basing reliance on the Commissioner's report. 11. Being aggrieved by that the above C.R.P. has been filed. 12. It is seen from the records, when the above C.R.P. was listed for final disposal on 22.7.2011, though the learned counsel for the petitioner was present, the learned counsel for the first respondent was absent and there was no representation and hence, the above C.R.P. was adjourned by two weeks. 13. The above C.R.P. was listed before me on 29.8.2011 and on that day, though the learned counsel for the petitioner was present , the learned counsel for the respondent was absent and there was no representation. The learned counsel for the petitioner was heard in part and thereafter, the C.R.P. was adjourned to 5.9.2011. Though the matter was listed on 5.9.2011 and 6.9.2011, the same did not reach for hearing and when the above C.R.P. was taken up for final disposal on 7.9.2011 one Mr.Vincent representing the counsel for the first respondent sought for an adjournment and at his request the matter was adjourned to 8.9.2011 and again on 8.9.2011, at the request of the representing counsel, the case was adjourned to 9.9.2011. 14. Today also, when the C.R.P. was taken up, the said Vincent submitted that the learned counsel for the first respondent is reporting 'no instructions'. But no written memo has been filed reporting 'no instructions'. The counsel on record has not appeared before the Court. The representing counsel, who is not on record, is not competent to report 'no instructions'. 15. The learned counsel for the first respondent is in the habit of absenting himself on several occasions before this Court and asking some other counsel to represent on his behalf and trying to get an adjournment and ultimately, reporting 'no instructions' which is condemnable. 16. If the learned counsel on record for the first respondent has not received necessary instructions from his client, he could very well have filed a memo to that effect before the Registry, but the said procedure has not been followed. 17. Therefore, this Court is not inclined to adjourn the C.R.P. for the reasons stated above. 18. Hence, the above C.R.P. is being disposed of on merits after hearing the learned counsel for the petitioner. 19. 17. Therefore, this Court is not inclined to adjourn the C.R.P. for the reasons stated above. 18. Hence, the above C.R.P. is being disposed of on merits after hearing the learned counsel for the petitioner. 19. Heard the learned counsel for the petitioner. 20. The learned counsel for the petitioner submitted that the plaint averments and the averments in the affidavit filed in support of the interim application show that the apprehension of the first respondent is that if the generator is installed, hot air and black smoke may emanate from the generator and the same will cause unnecessary problems to the residents and because of that several diseases may be caused and the same may also affect the peace of the residents. Nowhere in the plaint and in the affidavit, it is averred that the noise that may be produced during the running of the generator will cause noise pollution. 21. Though it has been stated in the plaint and the affidavit that the petitioner is going to instal the powerful generator, the capacity of the generator has not been mentioned. The said averments and apprehensions have been specifically dealt with and denied in the counter affidavit filed by the petitioner and in the counter affidavit, it has been specifically stated that the generator to be installed is not a powerful generator and its capacity is 15KV and it will not emanate hot air and black smoke as alleged in the plaint. 22. It has been specifically stated that if the power supply is disrupted for more than 24 hours, then only, the generator will be operated as the cell phone tower will function for 24 hours with the power from the batteries. Only after the charge in the batteries get discharged, the cell phone towers will cease function and only in that event, the generator will be operated. Once the power supply is restored, automatically the generator will be switched off. Therefore, the learned counsel for the petitioner submitted that if at all the generator is to be operated, it will only be in the aforesaid circumstances and that too for a short duration and therefore, the apprehension of the plaintiff/first respondent herein that the operation of the generator will emanate hot air and black smoke is totally baseless. 23. Therefore, the learned counsel for the petitioner submitted that if at all the generator is to be operated, it will only be in the aforesaid circumstances and that too for a short duration and therefore, the apprehension of the plaintiff/first respondent herein that the operation of the generator will emanate hot air and black smoke is totally baseless. 23. The learned counsel further submitted that the capacity of the generator is 15KV and as per The Environment (Protection)Rules 1986 framed under The Environment (Protection)Act, 1986, the maximum permissible sound pressure level for new diesel generator (DG) sets with rated capacity up to 1000 KVA manufactured on or after the 1st July 2005 shall be 75dB (A) at 1 metre from the enclosure surface and the diesel generator sets should be provided with integral acoustic enclosure at the manufacturing stage itself. 24. The learned counsel submitted that the generator installed in the disputed site is 15KV and the noise level of the generator is less than 75 dB(A) at 1 metre from the enclosure surface. 25. The learned counsel further submitted that the generator is provided with integral acuostic enclosure and as such the noise level will not exceed 75 decibels as prescribed under the rules. 26. The learned counsel submitted that the lower appellate Court has not considered the fact that there is absolutely no material whatsoever available on record to show that the noise level will exceed the prescribed limit and in the absence of such materials, the learned Judge committed an error in holding that the peace of the public will be affected. 27. The learned counsel further submitted that at the time when the Advocate Commissioner inspected the cell phone tower and the generator, the generator was not functioning due to a small fault and therefore, the Commissioner could not have noticed or found any hot air or black smoke being emanated by the generator. The objections filed by the petitioner to the Commissioner's report have not been considered by the lower appellate court. 28. The learned counsel submitted that though in the counter it has been specifically stated that the generator and the cell phone tower are installed 10 feet away from the plaintiff's property, the same has not been taken note of by the lower appellate Court. 29. 28. The learned counsel submitted that though in the counter it has been specifically stated that the generator and the cell phone tower are installed 10 feet away from the plaintiff's property, the same has not been taken note of by the lower appellate Court. 29. The learned counsel submitted that in the Commissioner's report, the Commissioner has noted that by the running of the air conditioner hot air was coming out from the air conditioner unit as the air conditioner unit is situated opposite to the windows of the plaintiff's house and such hot air affects the plaintiff. But the same has been totally accepted by the lower appellate court. 30. The learned counsel further submitted that the owner or occupier of the property is entitled to instal air conditioners in his property for his convenience and if the air conditioners emanated hot air that cannot be considered to be causing inconvenience to the neighbours. Such right of the owner or occupier of the property cannot be curtailed. 31. I have considered the aforesaid submissions and perused the materials available on record. 32. A perusal of the order of the trial court shows that the trial Court has properly considered the materials available on record and applied its mind judiciously and rightly held that there is absolutely no apprehension can be entertained by the plaintiff. 33. The trial Court has pointed out that the cell phone tower well run with the electric power and if the power supply is disrupted it will run for 24 hours with the power from the batteries and even after 24 hours, if the power supply is not restored then only the generator will be operated and once the power supply is restored the generator will get switched off automatically. 34. The trial Court has rightly pointed out that the aforesaid averments contained in the counter affidavit have not been denied or objected to by the plaintiff/the first respondent herein. 35. The trial court has also pointed out that even before the installation of the generator, the plaintiff entertained the apprehension that hot air or black smoke will be emanated from the generator. The lower court has rightly pointed out that the plaintiff has not established the nature of the damage or problem that will be caused. 36. The aforesaid reasons of the trial Court are based on the materials available on record. The lower court has rightly pointed out that the plaintiff has not established the nature of the damage or problem that will be caused. 36. The aforesaid reasons of the trial Court are based on the materials available on record. But unfortunately, the lower appellate Court has not considered the aforesaid reasons recorded by the trial Court and without considering the said reasons the lower appellate Court merely basing reliance on the Commissioner's report, has reversed the well considered order of the trial Court. 37. The lower appellate Court has not at all considered as to when the generator installed by the petitioner will be operated and how long it will be operated and when it will get switched off. 38. When it is not in dispute that the cell phone tower will function with the aid of the electric power and only where there is disruption in the electric power, the cell phone tower will function with the aid of the power from the batteries for 24 hours and within 24 hours, if the power supply is not restored then only the generator will be operated and once the power supply is restored automatically, the generator will get switched off. Thus, it is clear that even if the generator is operated it will be only for a short duration and during such short duration, it cannot be said that the running of the generator will cause any inconvenience to the plaintiff. Moreover, the two air conditioners are located at the back side of the generator and much away from the window of the plaintiff's house. 39. The plaintiff cannot in any way object to the installation of the air conditioner in the property of the first defendant by the second defendant. If such stand of the plaintiff is to be accepted, then no person can have air conditioner in his property. 40. Had the aforesaid material facts been considered by the lower appellate Court, it would not have granted interim injunction. 41. As rightly contended by the learned counsel for the petitioner several lakhs of cell phone towers have been installed through out the country and if the installation of cell phone towers on the reasons given by the lower appellate court are prevented then the mobile services provided to the public will be disrupted. 41. As rightly contended by the learned counsel for the petitioner several lakhs of cell phone towers have been installed through out the country and if the installation of cell phone towers on the reasons given by the lower appellate court are prevented then the mobile services provided to the public will be disrupted. It is only to serve the public and to make the mobile phone services available uninterruptedly the cell phone towers have been installed. Therefore, in the interest of the public, the cell phone towers have been installed by the BSNL. 42. Even assuming that there will be some inconvenience to the private individuals, the private interest should yield to the public interest and the public interest will prevail over private interest. These aspects have not at all been considered by the lower appellate court. The appeal has been disposed of by the lower appellate Court in a slip-shod manner and the reasons recorded by the lower appellate Court are against the facts and the reasonings recorded by the trial Court. For the aforesaid reasons, the C.R.P. is allowed setting aside the order of the lower appellate Court but confirming the order of the trial Court. No costs. Connected M.P. is closed.