Madras High Court
P.Shanthi vs The District Collector on 20 February, 2019
Equivalent citations: AIRONLINE 2019 MAD 1543
Author: S.Manikumar
Bench: S.Manikumar, Subramonium Prasad
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.02.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD
W.P.No.4783 of 2019
and W.M.P.No.5416 of 2019
P.Shanthi .. Petitioner
Vs.
1. The District Collector,
Coimbatore District,
Coimbatore.
2. The Executive Officer,
No.4, Veerapandi Town Panchayat,
Coimbatore District,
Coimbatore.
3. Lakshmidevi
4. Bharati Airtel Limited,
Airtel Zonal Office,
N.S.R. Road Main,
Saibaba Colony,
Coimbatore - 11. .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of
India seeking a Writ of Mandamus directing the respondents 1 and
2 not to grant any permission for the 4th respondent herein i.e.
Airtel to erect cell phone tower amidst our residential area more
http://www.judis.nic.in
2
specifically in Plot No.8, Bhagyalakshmipuram, Veerapandi Town
Panchayat, Coimbatore North Taluk, Coimbatore District based on
the petitioner's representations dated 28.12.2018, 28.01.2019
and 30.01.2019.
For Petitioner : Mr.G.Karthikeyan
For Respondents 1 & 2 : Mr.Akhil Akbar Ali,
Government Advocate
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ORDER
(Order of the Court was made by S.MANIKUMAR, J.) Claiming herself to be a public interest litigant, petitioner has sought for a Writ of Mandamus directing the District Collector, Coimbatore District, / first respondent herein and the Executive Officer, Veerapandi Town Panchayat, Coimbatore District / second respondent herein, not to grant any permission for M/s.Bharti Airtel Limited, Coimbatore / 4th respondent herein, to erect a cell phone tower amidst the residential area, in particular near Plot No.8, Bhagyalakshmipuram, Veerapandi Town Panchayat, Coimbatore North Taluk, Coimbatore District, based on her representations, dated 28.12.2018, 28.01.2019 and 30.01.2019 respectively.
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2. According to the petitioner, erection of cell phone towers would cause health hazards and that therefore no permission has to be granted to the 4th respondent. Reliance has been made on a report published in Indian Journal of Radio & Space Physics.
During the course of hearing, Mr.G.Karthikeyan, learned counsel appearing for the petitioner submitted that the proposed cell phone tower to be erected by M/s.Airtel is nearer to the residence of the writ petitioner. Submission is placed on record. From the submissions of the learned counsel for the petitioner, it could be deduced, more of public interest, petitioner seeks to vindicate her private interest that the proposed location of the cell phone tower is nearer to her house.
3. State Government have issued orders in G.O.Ms.No.2, Information Technology Department, dated 01.04.2002 and as per Clause No.1, the District Collectors are empowered to grant permission for erection of mobile phone towers. The said G.O. reads thus:
"ABSTRACT Information Technology - Setting up of Base Transreceiver Station Towers and installation http://www.judis.nic.in of equipment for telecommunication 4 networks - Leasing of space in Government office on a non-exclusive basis to any licenced telecom company on certain prescribed terms and conditions - Orders - Issued.
-------------------------------------------------- INFORMATION TECHNOLOGY DEPARTMENT G.O.MS.No.2 Dated: 01-04-2002 Read:
1) G.O.Ms.No.7, Information Technology department, dated 12.02.2001.
2) From Tvl. Relience Infocom Limited, Chennai, letter Ref.No.2375/IT/2001-02, dated 29.01.2002.
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ORDER:
In the G.O. first read above, consolidated policy guidelines were issued specifying terms and conditions for the grant of centralised permission for the use of public right of way of any private or public sector application that proposes to lay optic fibre cables in the National and State Highways and other roads in Tamil Nadu.
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2. Tvl.Reliance Infocom Limited, who have been given centralised permission to lay optic fibre cables in Tamil Nadu, have indicated that in order to maximise the coverage throughout the State, permission is required for renting / leasing out Government land / Government buildings for putting up Base Transreceiver Station Towers (BTS Towers) at technically feasible locations. The company has also requested the Government to grant exemption to it from observing side set back rules of Chennai Metropolitan Development Authority / Directorate of Town and Country Planning for the BTS towers which are only temporary structures and to apply the rules only in the cases of construction of buildings for BTS equipment room, Diesel Generator Set room etc.,
3. The Government, after careful consideration and detailed examination, have decided to issue general permission to any licenced telecom company providing infocom services to the end users, on a non-exclusive basis subject to certain terms and conditions.
http://www.judis.nic.in 4. Accordingly, the Government hereby 6 accord permission to any licenced telecom company and which is committed to the cause of Government of Tamil Nadu to install its Base Stations consisting of Tower, Equipment room and Generator room, on roof top or on the ground of premises and buildings belonging to Government of Tamil Nadu, subject to availability and technical feasibility, on a non-exclusive basis and also subject to the following terms and conditions:
(i) Permission for installing towers, equipment and generator etc., on case to case basis will be issued by the District Collectors concerned in consultation with the district office concerned.
(ii) Availability of space of 4.5 Mts x 4.5 Mts.
(iii) Technical feasibility - Building should be structurally strong to take a lead of 3.5 Mt to 6.0 MT depending on the height of tower.
(iv) A Telecom company providing infocom service and is desirous of utilising the Government premises / buildings for installing the base stations, should comply http://www.judis.nic.in with all the regulations and stipulations 7 including that of the Ministry of Civil Aviation, Government of India, in installation of the Base stations. All clearances / permissions, required in the process of establishing the base stations are to be obtained by such company.
(v) Permission may be given on non- exclusive basis.
(vi) The future extension / expansion of building / premises may be kept in mind.
(vii) Permission may be granted initially for a period of 10 (ten) years.
(viii) Damages caused, if any, shall be rectified by such company and bring back to original condition and to the satisfaction of the authorities concerned.
(ix) Leasing of the premises or buildings to such company should not be detrimental to the daily routine and activities of the Office or Offices concerned.
(x) Appropriate rent shall be charged from such company.
(xi) Exemption shall be given to the telecom companies from side set back rules of Chennai Metropolitan Development Authority / Directorate of Town and Country Planning for the BTS Towers and the said http://www.judis.nic.in 8 rules shall be applicable only to the construction of buildings.
5. This order issued with the concurrence of Housing & Urban Development, Revenue and Public Works Departments.
(BY ORDER OF THE GOVERNOR) VIVEK HARINARAIN SECRETARY TO GOVERNMENT"
4. Prayer sought for by the writ petitioner against the District Collector, Coimbatore District / first respondent herein and the Executive Officer, Veerapandi Town Panchayat, Coimbatore District / second respondent herein, not to grant any permission to respondent No.4, cannot be granted as power has been conferred on the District Collectors to consider such applications and to grant permission to erect cell phone towers if it is in accordance with law.
5. Judicial Notice can also be taken that Government of India have issued instructions for erection of cell phone towers. http://www.judis.nic.in 9 That apart, the issue as to whether erection of cell phone towers would cause health hazards, has been considered by this Court in A.V.Sekar Vs. Union of India (W.P.No.2362 of 2019 dated 05.02.2019). In paragraph No.6, this Court held as follows:
"6. When W.P.No.23411 of 2018, came up for admission, attention of this Court was brought to a decision of a Hon'ble Division Bench of this Court in W.P.No.3006 of 2008 dated 19.02.2018. Following the orders made in the said writ petition, W.P.No.23411 of 2018 was disposed of on 07.09.2018, as hereunder.
"3. When the matter came up for admission, attention of this Court was invited to an order made by a Hon'ble Division Bench of this Court in W.P.No.3006 of 2018, dated 19.02.2018 [P.Balasubramaniam Vs. The District Collector, Namakkal District and others], by which, a similar writ petition, opposing commissioning of high rise cellular phone transmission towers, was considered and disposed of, as hereunder:
"5. It is not for this Court exercising its extraordinary writ jurisdiction to assess the http://www.judis.nic.in health hazards of erection and/or 10 commission of high rise Mobile Phone Towers in residential areas or elsewhere. The exercise of study of health hazards, if any, of erection of Cellular Phone Transmission Towers has to be done by the Health Department of the Union of India and the Government of Tamil Nadu and based on such study, measures may have to be taken. This Court neither has the expertise, nor the technical knowledge to asses the effects and/or ill-effects of the radiation, if any, caused by the installation of Cellular Phone Transmission Towers.
6. It is believed that not only erection of towers, but even excessive use of mobile phones has its own hazards. However, mobile phones seem to have become a part of life, where parents who can afford mobile phones, even provide children with mobile phones so that they can keep track of the children. Mobile phones are used by persons of every strata of society. Regretfully, we cannot but comment on our own inability to strictly enforce switching off of mobile phones even in the Court rooms and Court proceedings are often disturbed by ringing http://www.judis.nic.in mobile phones. In these circumstances, we 11 are not sure whether an order by the Court prohibiting erection of Mobile Phone Towers can be considered to be an order in public interest, though personally we may feel that restriction in use of mobile phones is imperative for reasons of health, reasons of concentration and may be even social and family harmony.
7. A similar writ petition was moved by Dr.K.R.Ramaswamy @ Traffic Ramaswamy being W.P.No.24967 of 2008, where an order dated 05.03.2015 was passed by the then Hon'ble Chief Justice Sanjay Kishan Kaul and Hon'ble Mr.Justice M.M.Sundresh as under:
“10. We are, thus, of the view view that in a judicial proceeding these aspects cannot be analysed. There being no materials atleast as on date, which can finally suggest any health hazards from these towers and the solution thereof, the Court would not venture into unchartered territory of technical expertise to determine the area where it should be installed. The Court, at best can place this matter before the appropriate committee to look into this http://www.judis.nic.in matter which the Kerala High Court already 12 did and we have the benefit of the conclusion arrived at in those proceedings, as noticed above.
11. We are of the view that no further directions are required in these matters, other than to say that the concerned authorities would continue to analyse the materials as and when it emerges to look into the concern raised by the petitioner, especially, in view of the fact that there is no final view as yet on these aspects. Science grows and evolves and one does not know what may happen tomorrow. It is, in this context, we have made these observations.”
8. As a Bench of co-ordinate strength, we are bound by the aforesaid verdict dated 05.3.2015 in the public interest litigation initiated by Dr.K.R.Ramaswamy @ Traffic Ramaswamy.
9. We expect the concerned Health Ministries to conduct necessary studies in this regard and to take such measures as may be deemed appropriate upon such studies.
10. Needless to mention that Cellular http://www.judis.nic.in Phone Transmission Towers can only be 13 erected on obtaining of requisite permissions and approvals as per law.
The writ petition is disposed of. No costs. Consequently, WMP.No.3672 of 2018 is closed."
4. Following the order made in WP.No.3006 of 2018, dated 19.02.2018, instant writ petition is disposed of, on the same terms. No Costs. Consequently, the connected writ miscellaneous petition is closed."
6. In the light of the above discussions and decisions, direction sought for against the respondents not to exercise their duties and functions, in the matter of granting permission to erect cell phone towers, cannot be granted and therefore instant writ petition deserves to be dismissed and accordingly dismissed.
Consequently, the connected miscellaneous petition is closed. No Costs.
[S.M.K., J.] [S.P., J.]
20.02.2019
Index : Yes
Internet : Yes
kk
http://www.judis.nic.in
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To
1. The District Collector,
Coimbatore District,
Coimbatore.
2. The Executive Officer,
No.4, Veerapandi Town Panchayat, Coimbatore District, Coimbatore.
http://www.judis.nic.in 15 S.MANIKUMAR, J.
AND SUBRAMONIUM PRASAD, J.
kk W.P.No.4783 of 2019 and W.M.P.No.5416 of 2019 20.02.2019 http://www.judis.nic.in