Madras High Court
K.R.Ramaswamy @ Traffic Ramaswamy vs The Secretary on 5 March, 2015
Bench: Sanjay Kishan Kaul, M.M.Sundresh
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.03.2015
CORAM
The Hon'ble MR.SANJAY KISHAN KAUL, CHIEF JUSTICE
AND
The Hon'ble MR.JUSTICE M.M.SUNDRESH
W.P.Nos.24976 of 2008;
W.P.Nos.7450, 11020, 14675, 14867, 19166, 19273 and
23060 of 2009;
W.P.Nos.4503, 7479, 8251, 25944 of 2010 and
W.P.(MD) Nos.595, 1143 and 2722 of 2010;
W.P.Nos.7786, 22595 of 2011 and W.P.(MD) Nos.2027, 6239, 6938 of 2011;
W.P.(MD) No.9675, 16907, 16908, 16909 of 2012;
W.P.Nos.8317, 9878, 12775, 24769 of 2013 and
W.P.(MD) No.5960, 9611, 11499, 11747, 12021,
17442 of 2013;
W.P.(MD) Nos.582, 852, 1909, 2191, 3778, 4910, 5187, 7776, 10633, 11148, 12080, 12711, 12947, 13029, 17467,
21270 of 2014
and
W.A.No.191 of 2014
and
connected Miscellaneous Petitions
W.P.No.24976 of 2008:
K.R.Ramaswamy @ Traffic Ramaswamy ... Petitioner
Vs.
1.The Secretary,
Department of Telecommunications,
Government of India, New Delhi
2.The Secretary,
Ministry of Information & Broadcasting,
Government of India, New Delhi.
3.The Telecommunication
Regulatory Authority of India,
Government of India, New Delhi.
4.Chief Post Master General, Tamilnadu,
Anna Salai, Chennai-2.
5.The Chief Secretary,
Government of Tamilnadu,
Secretariat, Chennai-9.
6.The Commissioner,
Corporation of Chennai,
Rippon Buildings, Chennai-3.
7.The District Collector,
Chennai District, Chennai.
8.Tamilnadu Pollution Control Board,
76, Mount Salai, Guindy,
Chennai-32.
9.Chief General Manager,
BSNL Telephones,
Tamilnadu, Chennai-10.
10.Bharti Airtel Limited,
No.101, Bharati towers,
Santhome High Road,
Mylapore, Chennai-4.
11.Vodafone Essar Limited,
Tower 1, 9th Floor, TVH Beliciaa towers,
Block 94, MRC Nagar,
Chennai-28.
12.Aircel Limited,
5th Floor, Spencer Plaza,
769, Anna Salai, Chennai-2.
13.Reliance Communications Limited,
6, Huddows Road, Nungambakkam,
Chennai-6.
14.Tata Teleservices Limited,
Paras Tower 2, 3 & 4,
Thiruvika Road, Chennai-14.
15.Wireless TT Infor Services Limited,
rep. by its Authorised Signatory Meenakshisundaram,
having its Chennai office at
3rd Floor, North Wing,
No.40, Bazullah Road, T. Nagar,
Chennai-17.
(15th respondent impleaded as per order
dt.10.09.2009 in M.P.No.1 of 2009 ... Respondents
Prayer in W.P.No.24976 of 2008:
Writ petition filed under Article 226 of the Constitution of India praying for issue of Writ of Mandamus directing the respondents to formulate rules, regulations, guide lines to erect cell phone/mobile phoe towers only in vacant lands taking into consideration proper structural standards, WHO tower radiation specifications, exposure limit to human beings etc.
W.P.No.24976 of 2008:
For Petitioner : Mr.P.T.Permal
For Respondents : Mr.N.Ramesh
SGSC for RR1 and 2
Mr.STS.Moorthy
Government Pleader for RR4, 5, 7
assisted by
Mr.V.R.Kamalanathan, Addl. G.P.
Mr.V.Shanmugasundaram, Govt. Adv.
Mr.V.C.Selvasekaran for R6
Ms.Rita Chandrasekaran for R8
Mr.S.Udayakumar for R9
* * * * *
COMMON ORDER
(Order of the Court was delivered by The Hon'ble Chief Justice) ''To be or not to be'' or rather ''to have mobile phone towers or not to have mobile phone towers'', is the question !
2. Petitioners seek regulations qua where the mobile phone towers should be installed on account of ill-effects of technology on human beings. But, none of the petitioners have any conclusive material to show such ill-effects of radiation from the mobile phone towers. The apprehension arises on account of what is stated to be the different studies to the effect that the existence of mobile phone towers may possibly amount to health hazards. The moot point is, though, whether there are actually any health hazard on account of mobile phone towers, and if so, what are the precautions necessary.
3. We had an occasion to deal with the same in a writ petition being W.P.No.33465 of 2014 decided on 18.12.2014 where we had opined that there is no final view one way or other on this issue till now. There are only mere opinions.
4. Learned counsel appearing for the respondent-BSNL has pointed out to us the Division Bench judgment of the Kerala High Court in W.P.(C) No.16724 of 2006(N) [Reliance Infocomm Ltd. v. The Sub Inspector of Police, Koyilandy, Kozhikode and others), decided on 12.10.2006. The Division Bench of Kerala High Court noted that the Division Bench of Bombay High Court in W.P.No.2112 of 2004, directed the Ministry of Health and Family Welfare, Government of India to conduct a scientific study on the issue of health hazards for persons residing near the mobile phone stations, as it was said to be exposing human beings living within the magnetic field to fatal deceases like cancer, embryo, disruption and changes in DNA structure. A Committee was, thus, constituted under the Chairmanship of Dr.N.K.Ganguly, DG ICMR, which gave its opinion. Suffice to say, the Committee recommended that a precautionary approach should be adopted till further research data is available, as there was not enough evidence to show any direct health hazards of RF exposure from mobile base stations. The relevant observations made by the Division Bench of Kerala High Court, while dealing with the report, are as under:-
''The Committee on the basis of the above findings recommended that a precautionary approach should be adopted till further research data is available. Further it was also opined that it will not be amiss to adopt the ICNIRP guidelines for limiting EMF Exposure. Committee also reported that the protocols to be allowed and necessary guidelines for siting of mobile phone base stations may need to be developed as per its applicability for India. Further it was also recommended that periodic review of the status of knowledge in this area should be done and the recommendations may be revised accordingly. Committee however, opined that there is not enough evidence to show any direct health hazards of RF exposure from Mobile Base Stations. Recognizing that, committee has however opined, that data be generated through appropriate epidemiological studies (covering urban/rural population & varied exposure levels) and appropriate funds should be made available to the Institutions conducting these studies.''
5. The aforesaid report was made available to the counsel for the parties by the Kerala High Court. In fact, on analysis, it was found that radiation from the mobile base station is less as compared to that of AM Radio and FM Radio. The frequency waves used for mobile phones was found not covered under the definition of radiation as given in the Atomic Energy Act, 1962. The Radiation Protection Division of the U.K. Health Protection Agency in the year 2000, is stated to have reported that the balance of evidence indicates that there is no general risk to the health of the people living near the base stations on the basis that exposures are expected to be small fractions of guidelines.
6. The Division Bench also took note of the views expressed by the Delhi High Court in O.S.No.1121 of 2002 wherein, it was opined that 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.
7. The Kerala High Court also rightly took the view that mobile base stations are essential for transmitting the receiving signals installed and maintained by all telecom service providers. There is no technology available to operate mobile phones without these towers. The findings given in paragraph 5 of the Kerala High Court judgment, is as under:-
''5.We have already found that RF exposures from Mobile Base Stations are much less than from radio, FM radio and television transmissions and that the consensus of scientific community is that the radiation from Mobile Phone Base Stations is far too low to produce health hazards if people are kept away from direct access to the antenna and the overall evidence indicates that they are unlikely to pose a risk to health. The strength of radio frequency fields in front of the antennae varies with the distance. Persons standing directly in front of the antennae in these high density zones will get higher exposures. We have also found that the height of Mobile Base Station antennae is normally 36 meters and the effect of radio waves depends on the distance from the base stations since the antennae are directed horizontally with a 5 degree downwards tilt. Human studies pertaining to base stations conducted by Santini R et al (2002), Bortkiewicz et al (2004) & Hutter & kundi et al (2006) do not report any quantitative parameters related to health hazards. Therefore, it can safely be concluded that the permission granted for installation of Mobile Base Station by the Panchayat would not cause as such any health hazards nor will it affect the fundamental rights guaranteed to citizens under Article 21 of the Constitution. Right to life enshrined under Article 21 includes all those aspects of life which make life meaningful, complex and worth living. Development of technology has its own ill-efects on human beings, but, at times people will have to put up with that at the cost of their advantages. Petitioner and others for installing towers will have necessarily to comply with the statutory provisions contained in Chapter XIX of the Kerala Municipal Building Rules, 1999 which permits construction of telecommunication towers over buildings. Petitioner has submitted that it has already satisfied all those conditions and in such circumstance Panchayat has granted the licence.''
8. Insofar as regulation of Roof Top Towers for Cellular Mobile Systems are concerned, the Department of Telecommunications, Government of India, has circulated GR No.GR/TWR-09/01 FEB 2004. Thus, the technical body has taken care of the technical aspects by providing necessary requirements. It is orally stated before us that the Government India has constituted Inter Ministerial Committee to analyse this issue.
9. Learned counsel for petitioner in W.P.(MD) Nos.16907 to 16909 of 2012 has also referred to the report of the Departmental Committee of BTS towers, which contains recommendations. The Departmental Committee report is dated 30.3.2012. This, actually, thus, succeeds GR No.GR/TWR-09/01 FEB 2004 issued by the Department of Telecommunications, referred to above by us. In fact, it enforces the health aspects of the concerned authorities and thus, periodically reviewing the matter depending upon the evidentiary material available for and against the health aspects qua these towers.
10. We are, thus, of the 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 matter which the Kerala High Court already 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 petitioners, 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.
12. Writ petitions and the writ appeal, accordingly, stand disposed of. No costs. Consequently, all connected Miscellaneous Petitions are closed.
(S.K.K., CJ.) (M.M.S, J.) 05.03.2015 Index : Yes/No Internet : Yes/No bbr To
1.The Secretary, Department of Telecommunications, Government of India, New Delhi.
2.The Secretary, Ministry of Information & Broadcasting, Government of India, New Delhi.
3.The Telecommunication Regulatory Authority of India, Government of India, New Delhi.
4.The Chief Post Master General, Tamilnadu, Anna Salai, Chennai-2.
5.The Chief Secretary, Government of Tamilnadu, Secretariat, Chennai-9.
6.The Commissioner, Corporation of Chennai, Rippon Buildings, Chennai-3.
7.The District Collector, Chennai District, Chennai.
8.Tamilnadu Pollution Control Board, 76, Mount Salai, Guindy, Chennai-32.
9.The Chief General Manager, BSNL Telephones, Tamilnadu, Chennai-10.
The Hon'ble Chief Justice and M.M.Sundresh, J.
bbr W.P.Nos.24976 of 2008;
W.P.Nos.7450, 11020, 14675, 14867, 19166, 19273 and 23060/2009;
W.P.Nos.4503, 7479, 8251, 25944/2010 and W.P.(MD) Nos.595, 1143 and 2722/2010;
W.P.Nos.7786, 22595 of 2011 and W.P.(MD) Nos.2027, 6239, 6938/2011;
W.P.(MD) No.9675, 16907, 16908, 16909/2012;
W.P.Nos.8317, 9878, 12775, 24769/2013 and W.P.(MD) No.5960, 9611, 11499, 11747, 12021, 17442/2013;
W.P.Nos.1035 of 2014 and W.P.(MD) Nos.582, 852, 1909, 2191, 3778, 4910, 5187, 7776, 10633, 11148, 12080, 12711, 12947, 13029, 17467, 21270/2014 and W.A.No.191 of 2014 05.03.2015