Madras High Court
Manivannan vs The District Collector on 29 August, 2019
Equivalent citations: AIRONLINE 2019 MAD 1127
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan, B.Pugalendhi
WP(MD)Nos.15974 of 2017 etc.,
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 13.08.2019
PRONOUNCED ON : 29.08.2019
CORAM:
THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN
and
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P(MD)Nos.15974 and 21631 of 2017, 11615, 19982, 21154,
22367, 23106, 24089 and 24782 of 2018 and 3675, 4681,
10627,11503, 12202 and 16354 of 2019
and
W.M.P(MD)Nos.12627 and 17912 of 2017, 3476, 10583, 20591,
17777, 20265, 21008, 21984 and 22473 of 2018 and 13367,
13371, 2889, 3733, 9166, 9719 and 12995 of 2019
WP(MD)No.15974 of 2017:
Manivannan ... Petitioner
Vs.
1.The District Collector,
Tuticorin District,
Tuticorin.
2.The District Revenue Officer,
Tuticorin District,
Tuticorin.
3.The Revenue Divisional Officer,
Kovilpatti,
Tuticorin District.
4.The District Environmental Engineer,
Tamil Nadu Pollution Control Board,
C7,C9, Sipcot Industries Company,
Meelavittan, Tuticorin – 8.
http://www.judis.nic.in
1/46
WP(MD)Nos.15974 of 2017 etc.,
5.The Commissioner,
Kovilpatti, Tuticorin District.
6.The Inspector of Police,
West Police Station,
Kovilpatti, Tuticorin District.
7.M/s.Reliance Jio infocom Limited,
Having the Circle Office
at A1, Tower, 8th Floor,
B9-90, Dr.Radhakrishnan Salai,
Mylapore,
Chennai – 600 004. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Mandamus directing the respondents
1 to 6 herein to take necessary steps against the 7th respondent herein
from further construction of cell phone tower at 5th Cross Street, North
Veeravanchi Nagar, Kovilpatti Town, Tuticorin District.
For Petitioner : Mr.P.Subburaj
For Respondents : Mr.A.K.Baskarapandian
Special Government Pleader
for R1 to R4 & R6
: Mr.P.Srinivas,
for R5
: Mr.R.G.Shankar Ganesh,
for R7
*****
COMMON ORDER
(Order of the Court was made by B.PUGALENDHI, J.) These writ petitions are filed by the respective petitioners, in the form of public interest litigations, seeking closure or not to erect the cell phone towers, on the ground that the respondent / service providers http://www.judis.nic.in 2/46 WP(MD)Nos.15974 of 2017 etc., either constructed or are constructing the cell phone towers without obtaining any permission from the local authorities and that these towers are responsible for innumerable health hazards to the nearby residents. Since the issue involved in all these writ petitions is one and same, they are taken up together for hearing and are disposed off by way of this common order.
2.Heard the respective learned Counsel appearing for the petitioners, the learned Special Government Pleader appearing for the State and the respective learned Counsel appearing for the service providers.
3.The sum and substance of the petitioners' arguments are as follows:
(i) The respondent service providers are constructing the cell phone towers without obtaining any permission from the local authorities / municipal corporations. The cell phone towers are constructed up to 125 feet and there is a risk of falling down and they are dangerous to the nearby residential buildings and the other buildings.
(ii) The Tamil Nadu Panchayats Act, 1994, prohibits any construction or structure without prior permission.
http://www.judis.nic.in 3/46 WP(MD)Nos.15974 of 2017 etc.,
(iii) No land or premises or building shall be built, altered, reconstructed, sub-divided, changed or put to use, which is not in conformity with the provisions of Tamil Nadu Combined Development of Building Rules, 2019.
(iv) Base Trans-receiver Stations (BTS Towers) are not considered as buildings or structures for telecommunication and it can either be allowed on a plot or top of a building, only after obtaining permission under the Tamil Nadu Combined Development of Building Rules, 2019.
(v) The areas where the towers are constructed / proposed to construct are within 10 feet from the residential buildings, schools and hospitals, and the radiation from the towers may cause health hazards like cancer, embryo disruption and changes in DNA.
(vi) Any unauthorized construction is liable to be removed / demolished as per the provisions under Tamil Nadu Panchayat Building Rules and that apart, the Hon’ble Supreme Court in Hari Chand Tewari’s Case has ordered the removal of illegally erected tower.
4. Per contra, the private respondents / service providers would submit that they are taking all necessary care while constructing the Base http://www.judis.nic.in 4/46 WP(MD)Nos.15974 of 2017 etc., Trans-receiver Stations (BTS Towers) and vide G.O.Ms.No.177, Municipal Administration and Water Supply Department (MAI Department), dated 17.12.2002, the Government of Tamil Nadu has exempted the Base Trans- receiver Stations (BTS Towers) by the telecommunication companies from the Tamil Nadu District Municipalities Buildings Rules, 1972 and Multistoried and Public Building Rules, 1973, subject to the conditions imposed in G.O.Ms.No.2 Information Technology Department, dated 01.04.2002 and the letter of the Municipal Administration dated 23.07.2002. They would further submit that vide G.O.Ms.No.302, Housing and Urban Development (UD 4.2) Department dated 12.12.2002, the installation of Base Trans-receiver Stations (BTS Towers) are permitted in all land use zones in the master plan.
5.It is also submitted that the Secretary to Government Energy (C-3) Department, vide his letter No.5742/C3/2008–6, dated 26.03.2019 addressed to the Principal Secretary and Chairman of Tamil Nadu Electricity Board and the Secretaries to the Government, Municipal Administration and Water Supply Department; Rural Development and Panchayat Raj Department, has reiterated by referring G.O.Ms.No.171 and Municipal Administration and Water Supply Department, dated 17.01.2002 and G.O.Ms.No.302, Housing and Urban Development (UD 4.2) Department, dated 12.12.2002 and instructed those Departments to issue http://www.judis.nic.in 5/46 WP(MD)Nos.15974 of 2017 etc., necessary instructions to the Corporations / Municipalities / Local Bodies, not to insist upon building permission from the Cell Phone Companies for the erection of BTS Towers.
6.The learned Counsel for the private respondents / service providers by relying upon a report by one Rumani Saikia Phukan published in the year 2014 would submit that the continuous exposure to cellular towers within 50 meters may cause so many disorders like headache and sleeping disorder and it may even lead to cancer. They have also relied upon the order of this Court in the case of ATC Telecom Infrastructure Private Ltd., [W.P.No.18442 of 2019, decided on 24.07.2019,], wherein a notice issued by the Development Officer, Thandalam Panchayat, Kundrathur Panchayat Union, Gandhipuram, calling for plan approval and directing stoppage of work in construction of a BTS Tower, was put to challenge and a Division Bench of this Court, by order dated 24.07.2019 set aside the said notice, in the light of the Government Letter dated 26.03.2019, wherein the State Government has specifically instructed the Local Bodies, not to insist upon building permissions in the erection of BTS Towers.
8.The learned Special Government Pleader appearing for the State submitted that G.O.Ms.No.2 Information Technology Department, dated 01.04.2002, has been issued for setting up of BTS Towers and installation http://www.judis.nic.in 6/46 WP(MD)Nos.15974 of 2017 etc., of equipment for telecommunication networks, subject to certain terms and conditions. The said Government Order, which was issued initially for leasing of spaces in Government lands on non exclusive basis, has also extended to the private lands and buildings by amendment to the paragraph Nos.4 and 5, vide letter No.237/ IT/2002-27, dated 18.07.2002.
9.According to the learned Special Government Pleader, the applicability of terms and conditions as stipulated in G.O.Ms.No.2, dated 01.04.2002 to the private buildings was also reiterated in G.O.Ms.No.1 Information Technology (B.4) Department, dated 21.02.2018. But the said submission is objected to by the learned Counsel appearing for the private respondents / service providers by stating that G.O.Ms.No.1 dated 21.02.2018 is pertaining to laying of optic fiber cables and the terms and conditions stipulated in G.O.No.2 dated 01.04.2002 are only pertaining to the buildings of Government Bodies / Local Bodies and it cannot be extended to the private lands by way of the letter dated 01.04.2002.
10.This Court has paid it's anxious consideration to the rival submissions made by the learned Counsel on either side and also perused the records placed before it.
http://www.judis.nic.in 7/46 WP(MD)Nos.15974 of 2017 etc.,
11.The common issues that are arising out for consideration in these writ petitions are:
1.Whether the BTS Towers can be permitted in the residential area, nearby residential buildings and schools? and whether it would cause any health hazards to the nearby residents?
2.Whether any permission or no objection certificate is required for installation of BTS Towers from the Localbodies / Panchayats or any other authorities?
12.Issue No.1 12.1.Telecommunication is a necessary infrastructure for the growth as well as for modernisation. Information revolution had taken place through the use of mobile broad band / internet. It is the key source for empowerment of citizens. According to the report of the telecommunication, the increase in 10% of the penetration of mobile broadband may lead to 1% increase in GDP of the country.
12.2.The Indian telecom industry is growing rapidly and it is one of the largest Telecom Industries in the world. The total number of wireless telephone subscribers in India as on 30.06.2019 is 1165.46 million and the number of wire-line connection is 21.7 million, totaling to 1186.63 million subscribers to the telecom companies. The popularity of http://www.judis.nic.in 8/46 WP(MD)Nos.15974 of 2017 etc., cell phone and wireless communication devices has resulted in proliferation of cell phone towers across the country and as on 01.07.2018, there are 18,33,842 cell phone towers in India and the overall tele density in the month of June 2019 is 90.11%.
12.3.The telecom towers are the backbone of telecommunication and to provide uninterrupted and quality service, the installation of telecom towers are inevitable. The telecommunication towers are known as Base Trans-receiver Stations (BTS).
12.4.The increased use of mobiles in India has raised the public concern over possible health issues associated with exposure to electromagnetic energy and electromagnetic field radiation and this concern is prevailing all over the world. The World Health Organisation [WHO] is conducting a detailed study in this regard. The International Commission on Non Ionising Radiation Protection [ICNIRP] has issued various guidelines and norms, as recommended by the World Health Organisation. The World Health Organisation, by referring to approximately 25,000 articles published around the world over the past 30 years, on health issues arising out of BTS Towers has concluded that the available evidence does not confirm the existence of any health hazards to the mankind from exposure to low level electromagnetic field. http://www.judis.nic.in 9/46 WP(MD)Nos.15974 of 2017 etc., 12.5.The World Health Organisation in its report No.304, issued in May 2006 on electromagnetic field and public health for base station and wireless technologies has concluded that, there is no convincing scientific evidence that the weak radiation frequency (RF Signals) from base stations and wireless networks cause adverse health effects. The said finding was also reiterated in the year 2011 that no adverse health effects have been established as being caused by mobile phone towers. In September 2013, with regard to a query, WHO has made an online reply that the status as on date provide no indication that environmental exposure to radio frequency fields such as from base stations increases the risk of cancer or any other disease.
12.6.The World Health Organisation had also established the EMF project in the year 1996 to assess the scientific evidence of possible health effects in the frequency range from 0 to 300 GHZ. Over 15 National Authorities are involved in the EMF project and it is also overseen by eight International Organisations. The Government of India adopted the ICNIRP guidelines in the year 2008 for basic restrictions and limiting reference levels of electromagnetic radiation from mobile towers. The above prescribed limits for EMF radiation from base station in India are 1/10 th of International Prescribed limits of ICNIRP. The Government of India, Ministry of Telecommunication and Information Technology in their official http://www.judis.nic.in 10/46 WP(MD)Nos.15974 of 2017 etc., memorandum No.17-63/2011-CS-III, dated 27.02.2014 issued EMF norms pursuant to the report of the committee constituted in compliance of the directions of the High Court of Allahabad, Lucknow on issues relating to electromagnetic field radiation.
12.7.In a writ petition filed before the High Court of Allahabad, at Lucknow Bench, the Court directed the Government to constitute a High Level Committee including members from IIT, Kharagpur, Kanpur, Delhi, Rurki and Bombay and from other scientific institutes of the country including Indian Council of Medical Research (ICMR) and All India Institute of Medical Science, Delhi to asses the possible health hazards and adverse impact on ecology from BTS Towers and mobile phones. The said Committee submitted its report on 17.01.2014 and based on the same, the Government of India decided that the present prescribed precautionary EMF safe exposure limits are adequate, which needs no further change at this stage.
12.8.A similar batch of writ petitions have been moved before the Principal Seat of this Court, in WP No.24976 of 2008 etc, batch [K.R.Ramasamy @ Traffic Ramaswamy Vs. The Secretary, Department of Telecommunications] and the same was disposed of by a Division Bench of this Court by order dated 05.03.2015, wherein it has http://www.judis.nic.in 11/46 WP(MD)Nos.15974 of 2017 etc., been held as follows:
“ 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.” 12.9.Following the above said decision, a Division Bench of the Bombay High Court in the case of Biju K.Balan Vs. State of Maharastra, reported in 2019 SCC Online 97, held as follows:
“50.It was submitted on behalf of the petitioners that in the analysis, referred to in the report on Possible Impacts of http://www.judis.nic.in 12/46 WP(MD)Nos.15974 of 2017 etc., Communication Towers on Wildlife including Birds and Bees (extracted above), majority of studies have shown impact of electro-magnetic radiation on humans, and, therefore, the permission for erecting the TCS/BS and installation of Equipments for Telecommunication Network is required to be stalled.
51.We are unable to accede to this submission. The issue cannot be tested on the numerical strength of the reports without examining the nature of the scientific material and findings therein. It would be too simplistic way to deal with the issue. Unfounded and unsubstantiated claims do not command scientific weight. The mere fact that in majority of studies adverted to in the aforesaid Report some or other impact of the electro-magnetic waves was found on humans does not justify the conclusion that the electro-magnetic radiation emanating from TCS/BS has adverse and ill effects on human health and well-being.
52.The learned counsel for the petitioners placed reliance on a judgment of the Rajashtan High Court in case of Justice I.S. Israni (Retd.)v. Union of India wherein the Rajasthan High Court has upheld the validity of the bye-laws framed by the State Government to prohibit the installation of towers on play grounds, hospitals and places within vicinity of 500 mtrs. from jail premises and also near ancient monuments and old heritage buildings, as being neither illegal nor arbitrary. The aforesaid ruling does not assist the case of the petitioner. In the said case, the situation was converse. The validity of the duly framed bye-
http://www.judis.nic.in 13/46 WP(MD)Nos.15974 of 2017 etc., laws, which restricted the erection of the TCS/BS and installation of Equipments for Telecommunication Network, was under
challenge therein. In the case at hand, the State Government has taken a policy decision to permit the erection of TCS/BS and installation of Equipments for Telecommunication Network with certain conditions. Thus, the aforesaid judgment will be of no assistance to the petitioners.
53.It would be contextually relevant to trace the development of the regulatory regime over a period of time based on orders passed by various High Courts as well as the reports submitted by the Expert Committees/Parliamentary Standing Committees on the possible threat of electromagnetic radiation:—
(i) In April 1998, the ICNIRP prescribed the safe levels of electro-magnetic radiation from the Base Stations.
(ii) In May 2006, the World Health Organization issued a Fact- Sheet wherein it was, inter-alia, observed that considering the very low exposure levels and research results collected till date, no convincing scientific evidence could be gathered to arrive at the conclusion that the weak RF signals from the base stations and wireless networks cause adverse impact on the health of the human beings.
(iii) In the year-2008, the Government of India adopted the restrictions and limits recommended by the ICNIRP guidelines.
(iv) Vide letter dated 4th November 2008, the DOT modified the terms of license agreement.
(v) On 8th April 2008, the DOT directed all licensees to comply with prescribed limits/levels and also to issue self certification in respect of Base Stations. It was also directed to http://www.judis.nic.in 14/46 WP(MD)Nos.15974 of 2017 etc., limit the radiation from the Cell Phone Towers to 1/10th of the limits prescribed by the ICNIRP guidelines.
(vi) An Inter-Ministerial Committee was constituted to examine the effect of electro-magnetic radiation from the BTS and Mobile Phones, which submitted its report, inter-alia, recommending that the RF Exposure limits in densely populated area may be lowered to 1/10th of the existing level.
(vii) Based on the report of the Inter-Ministerial Committee, the Government adopted stricter norms on emission from the base stations being 1/10th of the limits prescribed by the ICNIRP.
(viii) The Advisory Guidelines for State Government for issue of clearance for installation of mobile towers came to be issued by the Department of Telecommunications on 1st August 2013 and the following limit for radiation based transmission station, which is 1/10thof ICNRP, came to be prescribed:— Frequency ICNIRP Radiation Norms Revised DOT Norms 900 MHz 4.5 Watt / Sqm. 0.45 Watt/m2.
1800 MHz 9 Watt / Sqm. 0.90 Watt/m2.
2100 MHz and above 10.5 Watt / Sqm. 1 Watt/m2.
(ix) Additional Guidelines to TERM Cells for auditing BTS for EMF radiation issued, with effect from 1st August 2013, and safe distance from the mobile towers came to be prescribed, which are as under:
Number of Antenna(e) Building / Structure safe distance pointed in the same from the antenna(e) at the same direction height (in Meters) 1 20 2 35 4 45 6 55 http://www.judis.nic.in 15/46 WP(MD)Nos.15974 of 2017 etc.,
(x) The latest advisory on health risk associated with mobile phones and BTS of the World Health Organisation (WHO) reads as under:— “Studies to date provide no indication that environmental exposure to RF (radio-frequency) fields, such as from base stations increases the risk of cancer or any other disease…….”
(xi) The Regulations dated 4thMarch 2014 issued by the Government of Maharashtra incorporates all these precautions and safeguards envisaged by the Advisory Guidelines of Department of Telecommunication, Government of India. The issue of electro-magnetic radiation norms has been specifically dealt with in Clause 7 of the said Regulations. The safe distance requirement is provided in the table below sub-clause (d) of clause (6) of the said Regulations.
54.In the backdrop of the aforesaid regulatory regime, we are inclined to hold that the field is not left unregulated and un-canalized. On the other hand, the standards which are prescribed in the matter of radiation norms are 1/10th of the International norms. There are adequate regulations to ensure that the installation of TCS/BS and Equipments for Telecommunication Network do not cause unwarranted intrusion and adverse impact upon human health and well-being.
55.Though the learned counsel for respondent No. 3 has placed reliance upon a number of judgments of the various High Court, we deem it appropriate to note two of the judgments wherein identical challenge was repelled. In the case of Muktipark Co Operative Society v. Ahmedabad Municipal http://www.judis.nic.in 16/46 WP(MD)Nos.15974 of 2017 etc., Corporation a Division Bench of the Gujarat High Court, after referring to the judgments of the Division Bench of Kerala High Court in the case of Reliance Infocom Ltd. v. Chemanchery Grama Panchayat agreed with the observations therein that the electro-magnetic radiation emanating from the Base Stations were unlikely to pose a risk to health. The Gujarat High Court went a step ahead to observe that the public at large be informed that there is no reason for them to fear of erection of Base Stations and telephone towers and thereby dispel the impression in the mind of common man that the mobile towers have the potential to cause health hazard due to emission of radio active waves.
56.In the case of K.R. Ramaswamy @ Traffic Ramaswamy, Founder Chairman Tamilnadu Social Works Organization v. The Secretary, Department of Telecommunication, a Division Bench of the Madras High Court considered the challenge in the light of the afore-extracted material and negatived the same. The Court observed as under:
— “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 http://www.judis.nic.in 17/46 WP(MD)Nos.15974 of 2017 etc., 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.”
57.In the light of the aforesaid material and the judicial pronouncements, which, by and large, are based on the similar challenges, Expert Reports, Parliamentary Standing Committees Reports and the prevalent regulatory regime, we are not inclined to take a different view of the matter. We are of the view that there is a consistent judicial opinion, speaking through various judgments of the High Courts, about the absence of any scientific material or data to warrant the prohibition on installation of TCS/BS and Equipments for Telecommunication Network.
58.Having examined the matters on the anvil of special burden of proof in environmental cases, as expounded by the Supreme Court, in the case of A. P. Pollution Control Board (Supra), we find that the scientific material, as of today, does not indicate any identifiable risk of serious harm on account of non-ionized radiation emanating from TCS/BS and Equipments for Telecommunication Network. Thus, we are not inclined to exercise our jurisdiction under Article 226 of the Constitution of India on the basis of apprehensions which are not rooted in the facts and supported by reliable scientific material.
59.We are mindful of the fact that the foundational basis of http://www.judis.nic.in 18/46 WP(MD)Nos.15974 of 2017 etc., the aforesaid judicial pronouncements and the view which we are persuaded to take is the prevalent body of scientific opinion. Since the risk potential is enormous, we need to be in a state of perpetual precaution and, thus, strict enforcement of the prevailing standards and continuous research to obviate the possible risk are absolutely necessary.” 12.10. When a similar issue was raised before the Principal Seat of this Court, in the case of P.Balasubramaniam Vs The District Collector, Namakkal District, Namakkal [W.P.No.3006 of 2018, decided on 19.02.2018], a Division Bench of this Court, by following the decision taken in Dr.K.R.Ramaswamy @ Traffic Ramaswamy's case, [W.P.No.24967 of 2008, decided on 05.03.2015], cited supra, disposed the same as follows:
“5. It is not for this Court exercising its extraordinary writ jurisdiction to assess the health hazards of erection and/or 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 http://www.judis.nic.in 19/46 WP(MD)Nos.15974 of 2017 etc., 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 mobile phones. In these circumstances, we 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.
...
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 Phone Transmission Towers can only be erected on obtaining of requisite permissions and approvals as per law.” 12.11.Mr.K.Govindarajan, learned Counsel appearing for one of the Service Providers namely, Industrial Tower Limited Companies has drawn the attention to a publication of the Department of http://www.judis.nic.in 20/46 WP(MD)Nos.15974 of 2017 etc., Telecommunication namely Journey for CMF and the relevant portions of the said publication are extracted hereunder :
“ 15…. … ….In order to ensure that all Base Transceiver Stations (BTSs) should be compliant to prescribed EMF reference limits/ levels, DoT has issued instructions directing all Cellular Mobile Telephone Service (CMTS)/ Unified Access Services (UAS) licensees that all BTSs should be compliant to prescribed EMF reference limits/ levels and all BTSs should be self certified as meeting the radiation norm. Self certification is submitted to respective Telecom Enforcement Resource & Monitoring (TERM) Cells of DoT. All new BTS sites starts radiating commercially, only after self certificate has been submitted to relevant TERM Cells. In order to ensure compliance to the prescribed stricter precautionary norms of EMF radiation from mobile tower, the extensive audit of compliance of self-certificates being submitted by telecom service providers and Base Transceiver Station (BTS) sites is carried out by Telecom Enforcement Resource & Monitoring (TERM) field units of DoT. This is regularly done by TERM units for the purpose of limiting the EMF radiation exposure and keeping general public areas in the vicinity of towers safe. In case, any BTS site is found to violate the prescribed EMF norms, actions are taken to put a penalty of Rs.
10 lakh per BTS per incidence including closing of BTS site as per the prescribed procedure. Additionally, the BTS sites against which there are public complaints are also tested by TERM Cell. The testing is done as per procedures prescribed by Telecom Engineering Centre (TEC) from time to time. TEC has published the Test Procedure for measurement of EMF from BTSs vide document no. TEC/TP/EMF/001/01 SEP 2009.
http://www.judis.nic.in 21/46 WP(MD)Nos.15974 of 2017 etc.,
16.Specific Absorption Rate (SAR) safe exposure Limits from mobile handsets adopted in India – With respect to radiation from Mobile Handsets also, ICNIRP has prescribed values for Specific Absorption Rate (SAR) limit as 2 Watt/Kg averaged over 10 gm tissue. Based on the limits provided by ICNIRP, DOT, in the year 2008, noticed for compliance of Mobile Handsets being manufactured in India as well as the handsets being imported to conform to SAR limit of 2 W/kg (averaged over a mass of 10 gm tissue) localised for head and trunk in the frequency range of 10 MHz to 10 GHz Based on the recommendations by IMC, SAR level for Mobile Handset has been revised from 2 watt per Kg averaged over a mass of 10 gram human tissue to 1.6 Watt per Kg averaged over a mass of 1 gram human tissue. Directions in this regard including other recommendations related to Mobile Handset have been issued to Mobile Handset Manufacturers on 25.01.2012. These directions have now become elective since 01.09.2013. From 01.09.2013, the mobile handsets with revised SAR value of 1.6 Watt/Kg averaged over a mass of 1 gram human tissue are only permitted to be manufactured or imported in India for domestic market.
17.SAR value testing Lab - A laboratory has been set-up in the Telecommunication Engineering Centre (TEC) for testing of SAR value of mobile handsets imported/manufactured in India. On Public Awareness DoT has issued an informative guide on 'Mobile Communications-Radio Waves and Safety'. The document covers http://www.judis.nic.in 22/46 WP(MD)Nos.15974 of 2017 etc., a basic introduction to radio waves, various terminologies, Do's & Don'ts related to mobile phone usage, clarification of various myths regarding deployment, use of Radio waves / Safety Standards and frequently asked questions relating to Mobile phones Human health. Advertisement for ensuring safety from radiations of Mobile Towers & handsets has been issued by DoT which has been published in National & Regional Newspapers. About EMF Web portal
18. Department of Telecom (DoT), Ministry of Communications has launched Tarang Sanchar, a web portal for Information sharing on Mobile Towers and EMF Emission Compliances, with a view to generate confidence and conviction with regard to safety and harmlessness from mobile towers, clearing any myths and misconceptions. The portal can be accessed at www.tarangsanchar.gov.in. The EMF Portal provides a public interface where an easy map-based search feature has been provided for viewing the mobile towers in vicinity of any locality. By click of a button, information on EMF compliance status of mobile towers can be accessed. Detailed information about any tower site, if requested, will be sent on email to the users. Additionally, any person can request for EMF emission measurement at a location by paying a nominal fee of ? 4000/- online. Local Telecom Enforcement Resource and Monitoring (TERM) unit of DoT will conduct the test (the requestor can be present, if he so desires) and the test reports will be provided. The portal also has ‘EMF Overview’ and ‘Learn’ Sections, which provide numerous articles, booklets and videos, to further educate the citizens about EMF and coverage of telecom http://www.judis.nic.in 23/46 WP(MD)Nos.15974 of 2017 etc., services. Public can also access the ‘DoT Initiatives’ section which has information on various leaflets, articles and Frequently Asked Questions. The portal has the complete collated technical details of over 14.5 lakh base stations (BTSs) spread across the country of all technologies (2G, 3G, 4G etc.) and of all Telecom Service Providers (TSPs).” 12.12.According to the learned Counsel, the service providers, once in 45 days, submit a report on the frequency level to the Ministry of Telecommunication and it is available in the website also and it can be monitored through EMF portal. If any individual intends to verify the EMF emission level at a particular tower nearby his residence, he can very well avail the same by paying a nominal fee of Rs.4,000/- through online and if any violations are found, the service providers are liable for penalty upto Rs.10,00,000/-.
12.13.In view of the specific stand taken by the Department of Telecommunication and the reports of WHO, there are no materials on record to confirm the existence of any health hazard from exposure to low level electromagnetic field and as stated by the three earlier orders of the different Division Benches of this Court, this Court cannot dwell into those aspects as an expert. Thus, issue No.1 is answered accordingly. http://www.judis.nic.in 24/46 WP(MD)Nos.15974 of 2017 etc.,
13.Issue No:2 13.1.The respective learned counsel appearing for the private respondents / service providers, by relying upon the Government Orders in G.O.Ms.No.302, dated 12.12.2002 and G.O.Ms.No.177, dated 17.12.2002 submitted that the installation of Base Trans-receiver Station towers shall be permitted in all land use zones in the master plan and the construction of BTS towers are also exempted from the Tamil Nadu District Municipalities Building Rules, 1972 and the Multistoried and Public Building Rules, 1973.
13.2.The Government of Tamil Nadu vide G.O.Ms.No.302, Housing and Urban Development Department, dated 12.12.2002, ordered that the BTS towers shall be permitted in all the land use zones in the Master Plan. Similarly G.O.Ms.No.177 Municipal Administration and Water Supply (MAW) Department dated 17.12.2003, grants exemption to BTS towers constructed by telecom companies from the Tamil Nadu District Municipalities Building Rules, 1972 and the Multistoried and Public Building Rules, 1973, subject to the conditions imposed in G.O.Ms.No.2 Information Technology Department, dated 01.04.2002 and the Government Letter No. 237/IT/2002-7/ Information Technology Department dated 18.09.2002. http://www.judis.nic.in 25/46 WP(MD)Nos.15974 of 2017 etc., 13.3.G.O.Ms.No.2 Information Technology Department dated 01.04.2002 is extracted hereunder for reference:-
INFORMATION TECHNOLOGY DEPARTMENT G.O.Ms.No. 2 Dated: 1 -04-2002
1) G.O. Ms. No. 7, Information Technology department, dated 12.02.2001.
2) From Tvl Reliance Infocom Limited, Chennai, letter Ref.No. 2375/IT/2001- 02, dated 29.1.2002.
ORDER:
In the G.O first read above, consolidated policy guidelines were issued specifying terms and conditions for the grant of centralized permission for the use “of public right of way by any private or public sector applicant that proposes to lay optic fibre cables in the National and State Highways and other roads in Tamil Nadu.
2.Tvl. Reliance Infocom Limited, who have been given centralized 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 http://www.judis.nic.in 26/46 WP(MD)Nos.15974 of 2017 etc., 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 licensed telecom company providing infocom services to the end users, on a non-exclusive basis subject to certain terms and conditions.
4.Accordingly, the Government hereby 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 lowers, 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 load of 3.5 MT to 6.0 MT depending on the height of tower.
iv) A Telecom company providing infocem services and is desirous of utilising the Government premises / buildings for installing the base stations, should comply with all the regulations and stipulations including that of the Ministry of Civil Aviation, Government of India, in installation of the Base http://www.judis.nic.in 27/46 WP(MD)Nos.15974 of 2017 etc., 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 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.” 13.4.Vide Letter No.237/IT/2002-7 Information Technology Department, dated 18.09.2002, certain amendments were made to paragraphs 4 and 5 to G.O.Ms.No.2 Information Technology Department dated 01.04.2002 and the relevant portion of the above said letter is extracted as hereunder:
http://www.judis.nic.in 28/46 WP(MD)Nos.15974 of 2017 etc., “3.In para 4 of the G.O. first cited above, after the word Government of Tamil Nadu in the fourth line, the words “Quasi Governments/ Public Sector undertaking/ Localbodies/ Private lands and Buildings” be added and after the eleventh terms and conditions mentioned in the same para at page two, the following shall be added as number twelve to sixteen:
(xii) Clearance from CRAC and Civil Aviation Department for erection of towers shall have to be obtained before erection whatever required.
(xiii) The BTS room size shall not exceed 15 Sq.M.in floor area and it should not be more that 3.0M in heights.
(xiv) Generator on platform shall not cause noise and air pollution.
(xv) These structures shall not be erected on any unauthorised or deviated part of a building or layout, agricultural land and OSR use zones.
(xvi) The BTS structure shall be structurally sound and safe.” 13.5.In the said letter, the Information Technology Department, while making amendments to paragraphs 4 and 5 to G.O.Ms.No.2 Information Technology Department, dated 01.04.2002, has also directed Municipal Administration and Water Supply Department and Rural Development Department to issue orders exempting BTS towers under Tamil Nadu District Municipalities Building Rules, 1972 and the Multistoried and Public Building Rules, 1973 and for allowing BTS towers in all land use zones.
Accordingly G.O.Ms.No.177, dated 07.12.2002 and G.O.Ms.No.302, dated 12.12.2002, as stated supra came to be passed. http://www.judis.nic.in 29/46 WP(MD)Nos.15974 of 2017 etc., 13.6.The learned Counsel for the private respondents / service providers would contend that the condition stipulated in G.O.Ms.No.2, Information Technology Department, dated 01.04.2002 is only applicable to the setting up of BTS towers on leasing of space in Government Offices and those conditions cannot be made applicable to the erection of towers in the private lands and private buildings.
13.7.The learned Special Government Pleader by referring to the Government letter dated 26.03.2009 vehemently contend that by this letter, amendment has been made to GO.Ms.No.2 dated 01.04.2002 and it would also be applicable to the quasi government bodies and private bodies, co-operative societies etc., and that the applicability of the conditions stipulated in G.O.Ms.No.2 was also reiterated in G.O.Ms.No.302, Housing and Urban Development (UD4.2) Department, dated 12.02.2002 and as such, G.O.Ms.No.2 is applicable to the private lands also.
13.8.He would further submit that while implementing the Indian Telegraph Right of Way Rules, in G.O.Ms.No.1 Information Technology Department, dated 21.02.2018, the Government has specifically stated the applicability of those conditions to the private buildings in clause (e) of paragraph 5 of the said Government Order as follows:
http://www.judis.nic.in 30/46 WP(MD)Nos.15974 of 2017 etc., “e) The existing guidelines as per G.O (Ms) No.2, Information Technology Department dated 1.4.2002, for installation of Overground Telecom Infrastructure (Towers) in Private Buildings, be continued since these are not covered by the Indian Telegraph Right of Way Rules, 2016.” 13.9.The private respondents / service providers claim that despite the exemption given by the Government of Tamil Nadu regarding the Public Building Rules, vide G.O.Ms.No.177, dated 07.12.2002, it is their responsibility to ensure the safety of the Towers. The BTS Towers are constructed with structural stability and therefore, the apprehension raised by some of the petitioners before this Court is ill-founded. It is the concern of the petitioners that tower was constructed without permission from the competent authorities and in the absence of any guidelines, if any incidents take place, due to natural calamities, the innocent people in and around the tower would be affected, leading to irreparable loss.
13.10.Though the service providers claim that all precautionary steps are taken to ensure the safety in the construction of BTS Towers, the fact remains, there are many incidents in the past, where valuable lives of the innocent people were taken away. Some of the incidents are narrated below:
http://www.judis.nic.in 31/46 WP(MD)Nos.15974 of 2017 etc.,
(i) On 09.10.2018, a Telecom tower erected on the top of a two storied building collapsed at Thoppumpody, Kochin.
(ii) On 11.10.2010, a mobile tower constructed on a three storey building fell on its adjacent building at Raja Annamalai Puram, Chennai.
(iii) A 60 metre BSNL mobile telecommunication tower fell during cyclone Phailin at Chatarpur in Ganjam District of Odisha on 12.10.2018.
(iv) A mobile phone tower stationed on the third floor of a building collapsed in Old Gurgaon, killing a 23 year old man and his friend suffered injuries.
(v)A 28 year old man succumbed to injuries when a mobile tower installed on a building collapsed. A woman named Lalitha was also injured. This incident took place on 10.09.2016 at Chennai.
13.11.The grant of license to telecom companies is exclusively under the domain of the Central Government. The telecom sector is the Central Government subject and the Central Government is levying the license fee to the telecom service providers, who have been granted license under Section 4 of the Indian Telegraph Act, 1885.
http://www.judis.nic.in 32/46 WP(MD)Nos.15974 of 2017 etc., 13.12.The Parliamentary Standing Committee (PSC) on Information Technology, in its 53rd report, has emphasized on the need of an uniformed guidelines for setting up of telecom towers. Pursuant to the same, the Department of Telecommunication has also framed certain Advisory Guidelines for the State Government for issuance of clearance for installation of mobile towers with effect from 01.08.2013.
13.13.The Department of Telecommunications had issued advisory guidelines for the State Governments in respect of issuance of clearance, for installation of mobile towers on 01.08.2013 and the said guidelines are extracted as hereunder:
“The Indian telecom sector has witnessed phenomenal growth and mobile telephony in particular has revolutionized in the Country over the past decade. Providing telephone coverage across the country has been one of DOT's top priority areas. Out of 921 million connections, 891 million are wireless, as on May 2013.The popularity of cell phone and wireless communication devices has resulted in a proliferation of cell towers across the country.
2.Fixation of standards for exposure limits of radio frequency field emissions from mobile base stations, monitoring their compliance, all radiation related technical issues, issues of Access Service License / Infrastructure Provider registration and SACFA clearance for frequency allocation at any location are dealt with by DOT.
http://www.judis.nic.in 33/46 WP(MD)Nos.15974 of 2017 etc.,
3.India has adopted strict limit for radiation from Base Transceiver Station (BTS), as below, which is 1/10th of the International norms (ICNIRP):
Frequency in MHz Power Density limit
900 0.45 watt/m
1800 0.9 watt/m
2100 & above 1 watt/m
4. Broad guidelines for issue of clearance for
installation of mobile phone towers were issued on23/8/2012 and later modified on 26.03.2013. Subsequently, on the basis of feedback received after deliberations made with the State Government officials and various stake holders on 16/4/2013 and holding further consultations thereafter, the guidelines have been finalized for the State Governments. These are detailed in A and B below. These guidelines are issued in supersession of all earlier guidelines on the subject.
A. Documents to be submitted by Telecom Service Providers /Infrastructure Providers for obtaining clearance from local bodies/State Governments for installation of mobile towers:
I. Copy of relevant license/Infrastructure Provider Registration Certificate from Department of Telecommunications. II. Data Sheet a. Name of Service/Infrastructure Provider b. Location C. Tower Reference:
(i). Height (ii) weight (iii). Ground/Roof top (iv). Pole/wall http://www.judis.nic.in 34/46 WP(MD)Nos.15974 of 2017 etc., mounted (v). number of antennae III. Copy of SACFA Clearance/copy of SACFA application for the said location submitted to WPC Wing of DOT with registration number as WPC acknowledgment along with undertaking that in case of any objection/rejection, TSPs/IPs will take corrective actions/remove the tower.
(IV). Copy of structural stability certificate for ground based tower. In case of roof top BTS towers, structural stability certificate for the building and tower based on written approvals of any authorized structural engineer of State/local bodies/Central building Research Institute (CBRI), Roorkee/IIT/NIT or any other agency authorised by local body. (V). Copy of the type set certificate issued by Automotive Research Association of India (ARAI) to the manufacturers of the Diesel Generator (DG) sets.
(VI). Copy of clearance from Fire Safety Department only in case for high rise buildings where Fire Clearance is mandatory. (VII). The local bodies may also seek submission of the copy of No Objection Certificate (NOC) from Building Owner/entities having roof top rights or roof top tenants in case of roof based tower/land owner in case of ground based tower, as the case may be. As per their rules in force, State Governments, at their discretion, may seek fresh NOC at the time of renewal of site (tenancy) contract for mobile tower.
(IX). Acknowledgment receipt issued by TERM Cells (DOT) of the self certificate submitted by Telecom Service Provider/Infrastructure Provider in respect of mobile tower/BTS (Ground based / roof top/pole/wall mounted) in the format as http://www.judis.nic.in 35/46 WP(MD)Nos.15974 of 2017 etc., prescribed by TEC, DOT, establishing/certifying that all General public areas around the tower will be within safe EMR exposure limit as per peak traffic measurement after the antennae starts radiating.
B. Action by State Government/local body I. Nominal one time Administrative fee as may be decided by the State Government to recover its costs on the issue of permission for installation of tower.
II. Single Window Clearance may be provided in a time bound manner to telecom service provider/infrastructure provider by the local body/State Government. This will ensure issuance of faster clearances.
III. Telecom towers have been given infrastructure status by Government of India vide gazette Notification No.81 dated 28.03.2012. All benefits as applicable to infrastructure industry, should be extended. Electricity connection may be provided to BTS site on priority.
IV. Telecom installations are lifeline installations and a critical infrastructure in mobile communication. In order to avoid disruption in mobile communication, an essential service, sealing of BTS towers/disconnection of electricity may not be resorted to without the consent of the respective TERM Cell of DOT in respect of the EMF related issues.
V. State Governments along with DOT may organise public awareness programmes involving civil society members. VI. In order to effectively address Public Grievances relating to installation of towers and issues related to telecom http://www.judis.nic.in 36/46 WP(MD)Nos.15974 of 2017 etc., infrastructure, State Governments may set up: State Level Telecom Committee (STC) consisting of officers from TERM Cells, State Administration, representative (s) of concerned Telecom Service Provider(s) and eminent public persons etc. . District Level Telecom Committee (DTC) consisting of officers from District Administration, representative(s) of concerned Telecom Service Provider(s) and eminent public persons etc. C. Action by DOT/TERM Cells I. Public awareness programme (Through DOT web portal / Govt.publication).
II (a). For all the existing as well as new BTSs/Towers, Telecom Service Providers are required to submit self-certificates periodically in the format as prescribed by TEC, DOT, in order to ensure that normally all general public areas around the site are within the safe EMR exposure limits. Any violation noticed attracts heavy penalties on Telecom Service Provider(s) and may also lead to shut down of BTS in case the violation persists.
(b). The TERM Cells have been given clear instructions with regard to the technical audit of BTS, including for radiation from towers within safe limits. These include roof top/ground based/pole mounted/wall mounted towers. They will also verify antenna orientation, safe distance from the tower (exclusion zone) etc. Installation and augmentation of BTS and antenna is a continuous process. DOT is organising frequent workshops for these officers to ensure observance of the latest guidelines issued by DOT on the subject of EMF radiation and public safety.” http://www.judis.nic.in 37/46 WP(MD)Nos.15974 of 2017 etc., 13.14.However, the State Level Telecom Committee and District Level Telecom Committee as recommended under the guidelines to address the public grievances relating to the installation of towers and issues relating to telecom infrastructures, are not yet constituted by the Government of Tamil Nadu.
13.15.The Indian Telegraph Right of Way Rules, 2016 was notified by he Government of India on 15.11.2016 to regulate the underground telegraph infrastructure optical fiber and overhead telegraph infrastructure (mobile towers) under / upon any immovable property in or under the control or management of any appropriate authority.
13.16.The Government of Tamil Nadu, vide G.O.Ms.No.1, Information Technology (B4) Department, dated 21.02.2018, implemented the Indian Telegraph Right of Way Rules, 2016, in the state of Tamil Nadu and while implementing the said rules, it has specifically mentioned that detailed guidelines will be issued by the Information Technology Department for the successful implementation of Indian Telegraph Right of Way Rules, 2016. But no such guidelines have been framed so far.
13.17.Rule 9 of Indian Telegraph Right of Way Rules, 2016 deals with the application by a licensee for the purpose of establishing http://www.judis.nic.in 38/46 WP(MD)Nos.15974 of 2017 etc., overground telegraph infrastructure and Rule 10 deals with the grant of permission by the appropriate authority. The District Collectors in respect of all Districts and the Commissioner for Greater Chennai Corporation in respect of Chennai, are designated as the Nodal Officers for the respective jurisdictions and authorised to issue Right of Way (RoW) permissions for Overground Telecom Infrastructure (Towers) and Underground Telecom Infrastructure (OFC) in respect of all areas in the Districts (including Highways, Public Works Department, Forest etc.,) under the provisions of Indian Telegraph Right of Way Rules, 2016. The ELCOT is designated as the nodal agency for the purposes of the Indian Telegraph Right of Way Rules, 2016 and to develop an electronic application process, as required under sub rule (2) of rule (4) of the said Rules and the Principal Secretary to Government, Information Technology Department is nominated as the Dispute Resolution Officer. It is also made clear that the existing guidelines as per G.O(Ms)No.2, Information Technology Department dated 1.4.2002, for installation of Overground Telecom Infrastructure (Towers) in Private Buildings, be continued as it was not covered by the Indian Telegraph Right of Way Rules, 2016.
13.18.A Division Bench of this Court in the case of S.P.Loganathan and others Vs.The Secretary to the Government, Department of Town and Country Planning, Chennai – 600 009 [WP http://www.judis.nic.in 39/46 WP(MD)Nos.15974 of 2017 etc., Nos.7544 of 2017 and 15144 of 2019] by order dated 22.08.2019, has held as follows:
“18. We are afraid that the contention of Mr.Om Prakash can be accepted. Clause (e) of paragraph 5 of G.O.Ms.1, Information Technology (B 4) Department, dated 21/12/2018, would show that the existence guidelines as per G.O.Ms.No.2 Information Technology Department, dated 1/4/2002, for installation of Overground Telecom Infrastructure (Towers) in Private Buildings will be continued to apply, since they are not covered by the Indian Telegraphic Right of Way Rules, 2016.
19. Perusal of Clause 4(e) (supra) would state that all the conditions in G.O.Ms.No.2 Information Technology Department, dated 1/4/2002, which has been extended to mobile towers to be erected on private buildings still occupies the field and holds till date.
20. In view of the above, it cannot be said that till the guidelines are framed, no permission is required. Similar issue regarding the very same respondent arose before a Hon'ble Division Bench of this Court in W.P.No.21979 and 14877 of 2017, Indus Towers Limited and another & 1 Vs. The Secretary to the Government, Municipal Administration Department, Chennai and two others), wherein the learned Division Bench has observed as under:-
“12. The sum and substance of the case is that the petitioners in W.P.No.21979 of 2017 like to have the Base Trans Receiver Station Towers in a private land, for which, whether the planning approval is required in terms of the http://www.judis.nic.in 40/46 WP(MD)Nos.15974 of 2017 etc., provisions of the Tamil Nadu District Municipalities Building Rules and Multistoreyed and Public Building Rules. But for G.O.Ms.No.2, Information Technology Department, dated 1/4/2002, G.O.Ms.No.302, Housing and Urban Development Department, dated 12/2/2002 and G.O.Ms.No.177, Municipal Administration and Water Supply Department, dated 17/12/2002, the exemption has been granted with regard to the Base Trans Receiver Station Tower from the aforesaid Act/Rules. The petitioners get their right only based on the said G.O.Ms.No.177, dated 17/12/2002. On a reading of paragraph 3 of the said G.O.Ms.No.177, it would make it clear that the Government has granted exemption to BTS Towers constructed by Telecom Companies from the Tamil Nadu District Municipalities Building Rules and the Multi-Storeyed and Public Building Rules, subject to the conditions imposed in the said G.O.Ms.No.2 and the Government's letter dated 18/9/2002, which means that the conditions mentioned in G.O.Ms.No.2 have been bodily incorporated into G.O.Ms.No.177. Unless the petitioners satisfy/fulfils the conditions laid down in the said G.O.Ms.No. 2, the petitioners cannot have a right to have the cell phone towers – Base Trans Receiver Station Towers.
13. It is true that there is no need for any building plan or permission from the authorities. What is required as per the said G.Os, is that an application has got to be obtained. A ready of G.O.Ms.No.2 makes it clear that permission may be granted initially for a period of ten years and the word “permission” would mean that there shall be an application http://www.judis.nic.in 41/46 WP(MD)Nos.15974 of 2017 etc., and that the authorities will have to scrutinise the papers and permit the person to operate the cell phone towers in a particular place.
14. A reading of G.O.Ms.No.177 in isolation without reference to G.O.Ms.No.2, would not be correct. No prejudice is going to be caused to the petitioners, if all the particulars/documents that are required by the authorities are produced. There are Advisory Guidelines for the State Government framed by the DOT (Department of Telecommunication) for issuance of Clearance Certificate for the purpose of installing Mobile Towers with effect from 1/8/2013, wherein it is stated that detailed scrutiny has got to be done including structural stability, etc. As the cell phone towers are going to be used for the purpose of making the citizens to use the cell phones, it is mandatory on the part of the petitioners in W.P.No.21979 of 2017 to seek prior permission from the authorities concerned.
Without the permission from them, the petitioners cannot be permitted to operated the cell phone towers from the Base Trans Receiver Station Towers. However, it is mandatory that even before the installation, such permission has got to be granted and taking note of the present case that the installation has already commenced, the necessary papers along with the request may be made to the authorities and the said authorities will have to consider the request of the petitioners in W.P.No.21979 of 2017 in terms of G.O.Ms.No.2. It will not preclude the authorities from looking into the Advisory Guidelines of the http://www.judis.nic.in 42/46 WP(MD)Nos.15974 of 2017 etc., DOT for the purpose of granting the relief sought for by the petitioners. It is open for the petitioners in W.P.No.21979 of 2017 to make an application to the authorities within a period of one month from the date of receipt of a copy of this order, enclosing all the necessary documents. When once such application is received, the authorities shall hear the petitioners in W.P.No.21979 of 2017 and also the petitioner in W.P.No.14877 of 2017 and others who are interested in the matter, including the complainant and pass appropriate orders within a period of one month from the date of receipt of such application from the petitioners. It is needless to mention that the observations touching upon the merits of the issue in question, are only for the purpose of disposal of these writ petitions and the petitioners and others are entitled to put forth their factual and legal submissions before the authorities, who shall consider the request of the petitioners in accordance with the statutory provisions/Rules/guidelines, if any.”
21. The said judgment has come prior to G.O.Ms.No.1 dated 21/2/2018 which makes the position very clear. In view of the above, we hold that general permission to any licensed telecom company and erect towers can be granted subject to the terms and conditions, laid down in G.O.Ms.No.2 dated 01.04.2002, passed by the Information Technology Department.
22. Keeping in mind the statement of Mr.Om Prakash, learned Senior counsel that his clients have approached the Officers concerned and they have not processed the request further, we direct Indus Towers Limited, Chennai, sixth respondent in http://www.judis.nic.in 43/46 WP(MD)Nos.15974 of 2017 etc., W.P.No.15144 of 2017 and tenth respondent in W.P.No.7544 of 2017, to make a fresh application, in terms of G.O.Ms.No.2, Information Technology Department, dated 1/4/2002, for erection of towers (even if they are already installed), within a period of three weeks from the date of receipt of a copy of this order. On receipt of the same, respondent Nos.1 to 4 in W.P.No. 15144 of 2017 are directed to consider the application and take a decision in accordance with law, within a period of six weeks, thereafter.
23. In those areas where Mobile Towers have been erected without following the G.O.Ms.No.2, Information Technology Department, dated 1/4/2002, the Collectors are directed to issue notices to the operators directing them to make applications for erection of the Mobile Towers, within one week from the date of receipt of this order and on the receipt of the application, the District Collectors shall pass orders on merits in accordance with rules, but not later than three weeks and issue directions in accordance with the decision taken.” 13.19.In view of the above Government Order and the above cited decisions rendered by this Court, the private respondents / service providers have to obtain permission from the District Collectors concerned as per G.O.Ms.No.2 Information Technology Department, dated 01.04.2002. Issue No.2 is answered accordingly. http://www.judis.nic.in 44/46 WP(MD)Nos.15974 of 2017 etc.,
14.In fine, all these writ petitions are disposed of in the above terms. No costs. Consequently, connected miscellaneous petitions are closed.
[M.S.N., J.] [B.P., J.]
29.08.2019
Index : Yes / No
Internet : Yes / No
dsk
To
1.The District Collector,
Tuticorin District,
Tuticorin.
2.The District Revenue Officer,
Tuticorin District,
Tuticorin.
3.The Revenue Divisional Officer,
Kovilpatti,
Tuticorin District.
4.The District Environmental Engineer,
Tamil Nadu Pollution Control Board,
C7,C9, Sipcot Industries Company,
Meelavittan, Tuticorin – 8.
5.The Commissioner,
Kovilpatti, Tuticorin District.
6.The Inspector of Police,
West Police Station,
Kovilpatti, Tuticorin District.
http://www.judis.nic.in
45/46
WP(MD)Nos.15974 of 2017 etc.,
M.SATHYANARAYANAN, J.
and
B.PUGALENDHI, J.
dsk
W.P(MD)Nos.15974 and 21631 of 2017,
11615, 19982, 21154, 22367, 23106,
24089 and 24782 of 2018 and 3675,
4681, 10627,11503, 12202
and 16354 of 2019
29.08.2019
http://www.judis.nic.in
46/46