Madras High Court
N.Venkatachalam vs District Collector on 29 August, 2019
Equivalent citations: AIRONLINE 2019 MAD 1515, (2019) 8 MAD LJ 63
Author: S.Manikumar
Bench: S.Manikumar, Subramonium Prasad
W.P.No.25094 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.08.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD
W.P.No.25094 of 2019
and WMP No.24668 of 2019
N.Venkatachalam ... Petitioner
Vs
1. District Collector,
Office of the District Collector,
Namakkal District.
2. American Tower Corporation of India,
Represented by its General Manager,
Celestial Point, No.45, Damodaram St.,
T.Nagar, Chennai - 600 017.
3. Mrs.Krishnaveni ... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India,
issuance of a writ of forbearing the 1st respondent from granting permission
to build the proposed cell phone by the 2nd respondent in S.No.190/2B, Plot
No.9, Vettambadi Village, Kosavampatti, Namakkal District and
consequently, to direct the 2nd respondent to build and operate this
proposed cell phone tower to a suitable location where buildings are not
concentrated or in a remote location.
For Petitioner : Mr.G.Anbalagan
For Respondents : Mr.Akhil Akbarali (for R1)
Government Advocate.
ORDER
http://www.judis.nic.in 1/24 W.P.No.25094 of 2019 (Order of this Court was made by S.MANIKUMAR, J.) Alleging that the 3rd respondent viz., Mrs.Krishnaveni, has entered into an agreement with M/s.American Tower Corporation of India, Chennai, the 2nd respondent herein, for building and operating a cell phone tower at her residential Plot No.9 in Survey No.190/2B, one Mr.N.Venkatachalam, petitioner, has filed the instant public interest writ petition to forbear the District Collector, Namakkal District, the 1st respondent from granting permission to build the proposed phone tower by the 2nd respondent in S.No.190/2B, Plot No.9, Vettambadi Village, Kosavampatti, Namakkal District and consequently to direct the 2nd respondent to build and operate this proposed cell phone tower to a suitable location where buildings are not concentrated or in a remote location.
2. Opposing the erection of cell phone tower, petitioner and other residents of Chettiyar Street, Veetampadi Village, seemed to have sent representations to the District Collector, Namakkal and District Superintendent of Police, Namakkal District on 22.07.2019. Said representation reads as under:
Sir, Sub: Requesting to issue a ban order - Cell Phone tower erection in the residential area - Regarding.
We are the residents of Veetampadi Village, near Ninayagar temple in Chettiyar Street. We are having residential buildings and vacant lands. In the said Chettiyar Street, Veetampadi Village, S.No.190/2, divided into http://www.judis.nic.in 2/24 W.P.No.25094 of 2019 31 residential plots. It's all designated for residential purpose. In the said residential plots, Plot No.9 and 10 was purchased by one Mr.Srinivasan, S/o.Nagaraju, residing at 1/171, Chettiyar Street, Kosavampatti Post, Namakkal. In this P.No.9, a residential building was built and he is residing there, whereas, P.No.10 remaining vacant. Around this Plot No.10 we are about 70 families residing.
The said P.No.10 owner made an agreement with a Cell phone Tower Company to erect a cell phone tower in the said Plot No.10. If the Cell Phone Tower erected in the said Plot No.10, it would cause high frequency waves, transmission through the installed antennas. If the radiation energy exceeds a certain limits it would cause dangerous health hazards to the neighbors those who are residing in the adjacent area of the proposed Cell Phone Tower. We came to know from certain Research Journals, the radiation from Cell Phone Tower likely to cause head-ache, vision defectiveness, Lungs, heard diseases and cancer etc. Those who are residing adjacent to Cell Phone Tower are also expressing their ailments. In the event of any power failure, the stand by Generator set will start automatically and will remain in service till resumption of power; during its operation in will exhaust unburnt fuel along with Carbon di-oxide and carbon monoxide which may cause environmental problems and breathing problems to the children as well as to very elderly people. Within 4 km radius of a Cell Phone Tower, the chances of affecting the children by Leukemia a type of cancer would be high. In addition, if there is any 'Vis major' the resultant damage to the people and buildings would be quite high. Further, in order to erect a Cell Phone Tower a 20 feet deeper excavation would be carried out which is likely to cause some damage to the adjacent buildings.
Hence we all informed to the P.No.10 owner not to erect this Cell Phone Tower in the said area but all resulted in vein, more over he become very adamant and he informed us that he is not ready to listen any of us. With the help of JCB equipments Cell Phone Tower erection work commenced, but with the intervention of elderly people the work suspended. The P.10 owner threatened us that he would commence the work with the help of police.
http://www.judis.nic.in 3/24 W.P.No.25094 of 2019 We all requesting you to take some concrete steps and stop building this Cell Phone Tower in this site and ensure safe and healthy life to us."
3. As there was no response, petitioner has filed the instant writ petition for the relief stated supra.
4. Mr.Akhil Akbarali, learned Government Advocate takes notice on behalf of the District Collector, Namakkal District, the 1st respondent.
5. Heard the learned counsel for the parties and perused the materials available on record.
6. Earlier, when a similar issue came up for hearing, this Court vide common order in WP Nos.7544 of 2017 and 15144 of 2019 dated 22.08.2019, observed as under:
6. Government have issued G.O.Ms.No.2, Information Technology Department, dated 1/4/2002, regarding installation of Base Transreceiver Station Towers (BTS Towers). Under the said G.O., Government have accorded permission to any licenced telecom Company, 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 the availability and technical feasibility, on a non-exclusive basis and also subject to certain terms and conditions:-
7. The entire G.O., is extracted hereunder:-
http://www.judis.nic.in 4/24 W.P.No.25094 of 2019 ABSTRACT Information Technology - Setting up of Base Transreceiver Station lowers and installation of equipment for telecommunication - networks - Leasing of space in government offices on a non-exclusive basis to any licenced telecom company on certain prescribed terms and conditions ? Orders-Issued.
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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 centralised permission for the use ?of public right of wav 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 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 service's 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 http://www.judis.nic.in 5/24 W.P.No.25094 of 2019 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 is 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 infocom 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 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 issues with the concurrence of Housing & Urban development, Revenue and Public Works departments.
(BY ORDER OF THE GOVERNOR) VTVEK HARINARAIN http://www.judis.nic.in 6/24 W.P.No.25094 of 2019 SECRETARY TO GOVERNMENT
8. A perusal of the said G.O., makes it clear that the said G.O., is applicable only to those buildings which belong to Government of Tamil Nadu. Thereafter, the Government came out with another G.O.Ms.No.302, Housing and Urban Development (UD 4.2) Department, dated 12/12/2012. Under the said G.O., Information Technology Department has clarified that exemption given in G.O.(Ms).No.2, dated 1/4/2002, quoted supra, will be applicable not only for the Base Trans-receiver Station Towers to be installed on roof top or on the ground of premises and buildings belonging to Government of Tamil Nadu, but also for the Base Trans Receiver Station Towers to be installed on private land/buildings. The said G.O., reads as under:-
ABSTRACT Urban Development - Installation of the Base Transreceiver Station Towers in all the land use zones in the Master plan - Permission - orders ? issued.
Housing and Urban Development (UD 4.2) Department G.O.(Ms).No.302 Dated: 12.12.2002
1.G.O.(Ms).NO.1730, Rural Development and Local Administration Department, dated 24.07.1974
2. G.O.Ms.No.2, Information and Technology Department, dated 1.4.2002
3. Government Lr.No.237/I&T/2002/2, Information Technology Dept., dated
09.05.2002.
4. From the Special Commissioner of Town and Country Planning, Lr.Roc.No.13287/2002/BA1, dated 03.06.2002 and 17.07.2002.
5. Government Lr.No.237/IT/2002/2 Information Technology Department dated 18.09.2002.
ORDER:
In the Government Order second read above, the Information Technology Department had issued orders permitting any licenced telecom company to install Base Transreceiver Station Towers, equipment room and generator room on roof top or on the ground of premises and building belonging to Government on certain terms and conditions. Orders were also issued by the Government that exemption shall be given to such telecom companies from following the side set back rules of Chennai Metropolitan Development http://www.judis.nic.in 7/24 W.P.No.25094 of 2019 Authority / Director of Town and Country Planning for installation of Base Transreceiver station Towers and applicability of the said rules only to the construction of buildings.
2. Subsequently, in the Government letter third read above, the Information Technology Department has further clarified that the exemption given in G.O.(Ms.).No.2, dated 01.04.2002 will be applicable not only for the Base Transreceiver Station Towers to be installed on roof top or on the ground of premises and buildings belonging to Government of Tamilnadu but also for the Base Trans receiver Station Towers to be installed on private land / buildings.
3. In the letter fifth read above, the Information Technology Department while issuing certain amendments to paras 4 and 5 of Government Order second read above has directed Municipal Administration and Water Supply Department and Rural Development Department to issue necessary orders exempting under Tamilnadu District Municipalities Building Rules and Multistoreyed and Public Building Rules 1973; under G.O.164, Municipal Administration and Water Supply Department, dated 15.06.94 and G.O.(Ms.)No.22, Municipal Administration and Water Supply Department, dated 30.01.97 against restricting the height of the Buildings / structures / Base Trans Receiver Station Towers within the Heritage Zone of the Heritage Towns and under G.O.(Ms.)No.1730, Rural Development and Local Administration Department dated 24.07.74 allowing the Base Trans Receiver Station Towers in all the land use Zones.
4.As regards the issue of allowing the Base Trans Receiver Station Towers in all the land use zones, the Special Commissioner of Town and Country Planning in his letter fourth read above has reported that as per the Government Order first read above only permissible uses specified in each use zone as per the Master Plan can be permitted. He has requested that since there is no provision at present in the Master Plan for permitting the Base Trans receiver Station towers, a separate Government Order for permitting Base Trans Receiver Station Towers in all land use zone in the master plan may be issued by the Government.
5.The Government after careful examination accept the proposal of the Special Commissioner of Town and Country Planning and accordingly direct that the installation of Base Trans receiver station Towers shall be permitted http://www.judis.nic.in 8/24 W.P.No.25094 of 2019 in all the land use zones in the master plan.
(BY ORDER OF THE GOVERNOR)
9. Thereafter, Government have issued G.O.Ms.No.177 Municipal Administration and Water Supply (MAI) Department, dated 17/12/2002. In the said G.O., it is noticed that the Special Commissioner of Town and Country Planning, Chennai, sought clarification from the Government on the exemption of BTS Towers constructed by Telecom Companies from the Tamil Nadu District Municipalities Building Rules, 1972 and Multistoreyed and Public Building Rules, 1973, in respect of heritage towns, subject to the condition imposed in G.O.Ms.No.2, Information Technology Department, dated 1/4/2002 and Government letter No.237/IT/2002-7 IT Department, dated 18/9/2002. The said G.O., reads as under:-
Information Technology - Installation of Base Transreceiver Station Towers by Telecommunication Companies - Exemption under Tamil Nadu District Municipalities Building Rules 1972 and Multistoried and Public Building Rules, 1973, Orders ? Issued.
MUNICIPAL ADMINISTRATION & WATER SUPPLY (MAI) DEPARTMENT G.O.Ms.No.177 Dated: 17/12/2002
1. G.O.Ms.No.2, Information Technology Department, dated 1.4.2002
2. From the Special Commissioner of Town and Country Planning, Lr.Roc. 13287/ 2002/BA1, dt 30.5.2002
3. From the Director of Municipal Administration, Lr.Roc.43829/2002/TP3 dt.23.7.2002
4. Government Lr.No.237/IT/2002/7 IT Dept., dt.18.9.2002 ORDER In G.O. first read above, as amended in Government letter fourth read above, Government have accorded permission to licensed telecom companies to install Base Trans receiver Station Towers, equipment room and generator room on rooftop or on the ground of premises and buildings belonging to Government of Tamil Nadu / Quasi Government / Public Sector Undertaking / Local Bodies / Private Lands and Buildings subject to certain terms and conditions mentioned therein.
2.The Special Commissioner of Town and Country Planning sought the http://www.judis.nic.in 9/24 W.P.No.25094 of 2019 clarification of Government on the exemption of BTS towers from Tamil Nadu District Municipalities Building Rules and Multistoreyed and Public Building Rules, 1973 and height restriction in respect of heritage towns. The Director of Municipal Administration has also requested the Government to issued necessary orders in this regard.
3.The Government after careful examination grant exemption to BTS Towers constructed by Telecom Companies, from the Tamil Nadu District Municipalities Building Rules 1972 and Multistoreyed and Public Building Rules, 1973, subject to the conditions imposed in the G.O. and letter first and fourth read above. However, the exemption granted above is subject to the height restrictions in hentage towns ordered in respect of the Madurai Corporation in G.O. (Ms).No.164, MA&WS, dt. 16.6.1994 and in respect of other heritage towns in G.O.(Ms).No.22, MA&WS, dt. 30.1.1997.
(By order of the Governor) L.N.VIJAYARAGAVAN, Secretary to Government
10. Energy (C3) Department, Secretariat, Chennai, vide letter No.5742/C3/2008-6, dated 26/3/2009, has stated as under:-
"?2. In this connection, I am to state that orders have already been issued in G.O.Ms.No.177, Municipal Administration and Water Supply Department, dated 17/12/2002, granting exemption to the Base Trans Receiver Station Towers constructed by Telecom Companies from the Tamil Nadu District Municipalities Building Rules, 1972 and Multi storeyed and Public Building Rules, 1973 and in G.O.Ms.No.302, Housing and Urban Development Department, dated 12/12/2002. The Government directed that the installation of Base Trans Receiver Station towers shall be permitted in all the land use zones in the master plan.
3. In this connection, I am to state that the Municipal Administration and Water Supply Department, and Rural Development ad Panchayat Raj Departments have since been instructed to issue necessary instruction to the Corporation/Municipalities/Local Bodies not to insist upon building permission from the cell phone companies for erection of Base Trans Receiver Station http://www.judis.nic.in 10/24 W.P.No.25094 of 2019 towers in view of the orders issued in G.O.Ms.No.177, Municipal Administration and Water Supply Department, dated 17/12/2002 and in G.O.Ms.No.302 Housing and Urban Development Department, dated 12/12/2002. I am therefore, to request you to follow the instructions to be issued by the Municipal Administration and Water Supply Department/Rural Development and Panchayat Raj Departments, in this matter and also send an action taken report to the Government.?"
11. The position which emerges till now is that permission has to be obtained from the authorities under G.O.Ms.No.177, Municipal Administration & Water Supply (MAI) Department, dated 17/12/2002, which relies on G.O.Ms.No.2, Information Technology Department, dated 1/4/2002. G.O.Ms.No.302, Housing and Urban Development (UD 4.2) Department, dated 21/12/2002, makes G.O.Ms.No.2, Information Technology Department, dated 1/4/2002, to be applicable to private buildings also. Department of Telecommunications has issued guidelines, dated 1/6/2013, for issuance of clearance for installation of mobile towers, and the same reads as under:-
A. Documents to be submitted by Telecom Service Providers/Infrastructure Providers:
1. Copy of Access Service License/Infrastructure Provider Registration Certificate from Department of Telecommunications.
2. Copy of Standing Advisory Committee for Frequency Allocation (SACFA) clearance for the said location issued by Wireless Planning Commission (WPC) Wing of Department of Telecom. [Telecom Enforcement, Resource and Monitoring (TERM) cells certification for installation of towers as getting clearance from SACA takes little long time.]
3. Other clearance at State/Local authority level:
(i). Copy of the type test certificate issued by Automotive Research Association of India (ARAI) to the manufacturers of the Diesel Generator (DG) Sets [The DG sets used shall be as per the provisions under Environment (Protection) Act, 1986 & noise pollution (Regulation & Control) Rules, 2000, as amended from time to time].
(ii). Copy of clearance from Fire Safety Department only in case for high rise buildings where Fire Clearance is mandatory.
(iii). For forest protected areas, the copy of clearance from State Environment & Forest Department, if applicable.
(iv). Copy of No Objection Certificate (NOC) from Building owner.
B. Base Trans-receiver Stations (BTS) Tower Details:
1. Data Sheet a. Name of Service/Infrastructure Provider b. Location c. Tower Reference:
http://www.judis.nic.in 11/24 W.P.No.25094 of 2019
(i). Height (ii). Weight (iii). Ground/Roof Top (IV). Number of antennas planned on tower,
2. Copy of structural stability certificate of foundation for ground based BTS.
Or In case of roof top BTS towers, structural stability certificate for the building based on written approvals of any authorised Structural Engineer of State/local bodies/Central Building Research Institute (CBRI), Roorkee/IIT/NIT or any other agency authorised by local body.
c. Safety/Precautionary Provisions (Relevant to TERM Cell Unit Verification):
(i). In case of both ground based towers & roof top towers, there shall be no nearby buildings right in front of the antenna with height comparable to the lowest antenna on tower at a distance threshold as specified below:
Number of Multiple antennas in Building/structure distance from the same direction the antenna (Safe distance in meters) 1 20 2 35 3 45 6 55 Alternatively, operators need to establish/certify that all General public areas area within safe EMF exposure limits as per actual peak traffic measurements after the antenna (s) start radiating.
(ii). Wall Mounted/Police mounted Antenna:
a. The antenna mounted on pole should be at least 5 metre above ground level/road level on flyovers.
b. No residential/office/work place is directly in front of the wall/pole antenna at a height comparable to the antenna as per para c (ii) above. (Note: Calculation of safe distance based on maximum 20 watt RF power radiated from the antenna).
D. Points relevant to State/Local Administrative Authorities
(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). Telecom towers have been given infrastructure status by Government of India vide Gazette Notification No.81 dated 28/3/2012. All benefits, as applicable to infrastructure industry, should be extended. Electricity connection may be provided to BTS site on priority.
(iii). Formation of State and District Telecom Committees:
Keeping public interest in view, there is a need of regular interactions between TERM cell of DOT and State/District administration under District Collector. Hence it is proposed to set up State and District Telecom Committees for review of all Telecom Infrastructure related issues at State/District Level consisting of Officers from TERM Cells, State/District http://www.judis.nic.in 12/24 W.P.No.25094 of 2019 Administration and the concerned Telecom Service Provider(s).
(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 without the consent of the respective TERM Cell of DoT.
(v). All radiation related technical details are dealt with by TERM cells of DOT.
(vi). 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.
(vii). Telecom infrastructure/installation of tower may be permitted for all locations irrespective of land usage.
(viii). Public awareness programme may be conducted regularly by involving concerned TERM Cells & Telecom Service Providers.
12. Department of Telecommunications, dated 1/8/2013, has also issued Advisory Guidelines, to the State Government, for issuance of clearance of mobile towers and the same reads as under:-
1. 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 Licence/Infrastructure Provider registration and SACFA clearance for frequency allocation at any location are dealt with by DOT.
3. India has adopted strict limit for radiation from Base Transceiver Station (BTS), as below, which is 1/10th of the International norms (ICNIRP):
Frequencyin MHZ Power density limit
900 0.45 watt/m
1800 0.9 watt/m
2100 and above 1 watt/m
4. Broad guidelines for issue of clearance for installation of mobile phone towers were issued on 23/8/2012 and later modified on 26/3/2013.
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.
http://www.judis.nic.in 13/24 W.P.No.25094 of 2019 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 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 authorised 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 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 28/3/2012. All benefits as applicable to infrastructure industry, should be extended. Electricity connection may be provided to BTS site on priority.
http://www.judis.nic.in 14/24 W.P.No.25094 of 2019 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 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.?
13. Additional Guidelines, dated 1/8/2013, for TERM Cells are as follows:-
?1. Instructions/guidelines have been issued to the TERM Cells for auditing the RF radiations from Bts for compliance to the prescribed norms. Following are additional guidelines to TERM cells in the matter.
2. With a view to strengthen monitoring and compliance of safety aspects/provisions in regard to radio frequency emissions from mobile towers, TERM cells may take the following also into account while conducting their audits for the purpose of ensuring that all general public areas are within safe EMF exposure limits as prescribed by DOT.
. In case of both ground based towers & roof top towers, there shall be no building right in front of the antenna(e), of equivalent height taking into account the tilt of the lowest antenna on tower as per details in the table below. Further, the antennae at the same height only are to be counted, as the beam width of the mobile antennae, in the vertical direction, is very http://www.judis.nic.in 15/24 W.P.No.25094 of 2019 narrow.
Number of antenna (e) pointed Building/structure safe distance in the same direction from the antenna (e) at the same height (in meters) 1 20 2 35 4 45 6 55 . The distance figures in the above table are based on empirical estimation considering that all the antennae are emitting at their maximum RF power of 20 watts and exactly in the same direction with same height (a worst case scenario). In practice, the values of safe distance of buildings will depend upon actual deployment scenarios and mostly, may be far less than depicted above.
3. Wall Mounted/Pole mounted Antenna:
. Wherever the antennae are mounted on the wall of building or pole on/along the road, their height should be at least 5 meters above ground level/road level. However, such installations will have to comply with the radiation limits.
As far as safe distance of buildings from antenna is concerned, guidelines as given above will apply.?
14. Government of India, Ministry of Communications, issued a Notification, dated 15th November, 2016, to regulate the underground infrastructure (optical fibre) and overground infrastructure (mobile towers).
Chapter III of the said Notification deals with Establishment of Overground Telegraph infrastructure, with which we are concerned. Clause 9 and 10 of the said Notification, reads as under:-
9. Application by a licensee ?- (1) A licensee shall, for the purposes of establishing overground telegraph infrastructure, upon any immovable property vested in or under the control or management of any appropriate authority, make an application, supported by such documents, to that appropriate authority in such form and manner as may be specified by that appropriate authority.
(2). The information along with supporting documents to be provided by the licensee in the application made under sub-rule (1) shall include,
(i). a copy of the licence granted by the Central Government
(ii). the nature and location, including exact latitude and longitude, of post or other above round contrivances proposed to be established;
(iii). the extent of land required for establishment of the overground telegraph infrastructure
(iv). the details of the building or structure, where the establishment of the overground telegraph infrastructure, is proposed
(v). the copy of approval issued by the duly authorised officer of the Central http://www.judis.nic.in 16/24 W.P.No.25094 of 2019 Government for location of the above ground contrivances proposed to be used for the transmission of Radio waves or Hertzian waves;
(vi). The mode of and the time duration for, execution of the work;
(vii). The inconvenience that is likely to be caused to the public and the specific measure proposed to be taken to mitigate such inconvenience
(viii). The measure proposed to be taken to ensure public safety during the execution of the work
(ix). The detailed technical design and drawings of the post or other above ground contrivances
(x). certification of the technical design by a structural engineer attesting to the structural safety, of the overground telegraph infrastructure
(xi). Certification, by a structural engineer, attesting to the structural safety of the building, where the post or other above ground contrivances is proposed to be established on a building
(xii). The names and contact details of the employees of the licensee for the purpose of communication in regard to the application made
(xiii). Any other matter relevant, in the opinion of the licensee, connected with or relative to the work proposed to be undertaken; and
(xiv). Any other matter connected with or relevant to the work as may be specified, through a general or special order, by the Central Government or appropriate State Government or appropriate local authority. (3). Every application under sub-rule (1) shall be accompanied with such fee to meet administrative expenses for examination of the application and the proposed work as the appropriate authority may, by general order, deem fit:
Provided that the one-time fee, to meet administrative expenses, accompanying every application shall not exceed ten thousand rupees.
15. Government of Tamil Nadu have issued a Notification in G.O.Ms.No.1, Information Technology (B4) Department,dated 21/2/2018 and the entire G.O., reads as under:-
Information Technology Department - Indian Telegraph Right of Way Rules, 2016 notified by the Government of India - Implementation in the State of Tamil Nadu ? - Procedure for grant of Right of Way (RoW) permission for laying Optical Fibre Cables (OFC) and installation of Cellphone Towers - Revised - Orders - Issued.
Information Technology (B4) Department G.O.(Ms).No.1 Dated: 21.02.2018
1.G O.Ms.No.7, Information Technology Department, dated 12.2.2001.
2.G.O.Ms.No.2, Information Technology Department, dated 1.4.2002.
3.Letter No.237/IT/2002/7, Information Technology Department, dated 18.9.2002.
4.Indian Telegraph Right of Way Rules 2016 notified in the Government of India Gazette Notification No. GSR 1070 (E) dated 15.11.2016.
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5.From the Secretary, Department of Telecommunications, D.O letter No.2- 6/20-Policy-I (Vol VIII) dated 23.11.2016.
ORDER:
In the Government Order first read above consolidated guidelines were issued specifying the terms and conditions for the grant of centralised permission for the use of public Right of Way (ROW) by any private or public sector applicant proposing to lay Optic Fibre Cables (OFCs) in Tamil Nadu. As per the Guidelines prescribed in the Government Order first read above, the Public / Private Communication Providers (PCPs) have to pay annual track rent to the concerned local bodies and to provide 2 Mbps (two Mbps) free bandwidth to the State Government.
2. In the Government order 2nd read above and in the Government letter 3rd read above, guidelines have been issued to telecom companies for installation of Base Stations consisting of Tower, Equipment room and Generator room, on rooftop or on the ground of premises and buildings belonging to Government of Tamil Nadu / Quasi Governments / Public Sector Undertakings / Local Bodies/ Private lands and buildings subject to availability and technical feasibility, on a non-exclusive basis subject to certain terms and conditions. As per clause 4 (i) of the Government Order 2nd read above, 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 offices concerned.
3. The Government of India has notified the - Indian Telegraph Right of Way Rules 2016? to regulate underground Telegraph infrastructure (optical fibre) and overground Telegraph infrastructure (mobile towers) under/upon any immovable property vested in or under the control or management of any appropriate authority, in the Gazette notification 4th read above. Among other things, the Rules stipulate that every application for establishment of telegraph infrastructure, shall be accompanied with such fee to meet administrative expenses for examination of the application and the proposed work as the appropriate authority by may, general order deem fit and the appropriate authority shall within a period not exceeding sixty days from the date of application, grant permission on such conditions including, but not limited to, payment of restoration charge, as may be specified, subject to the provisions of the Act and these rules (or) reject the application for reasons to be recorded in writing.
4.In the letter 5th read above, the Secretary, Department of Telecommunications has requested the State Government to nominate a suitable officer not below the level of Principal Secretary to the Government so as to enable Government of India to notify such officers as the designated officers for dispute resolution. He has also requested that the Right of Way Rules need to be widely circulated to all agencies who are involved in granting Right of Way permissions so as to sensitise them about the provisions of the Rules and has also sought for the co-operation of the State Government in implementing the Rules in their true letter and spirit to help in creation of telecom infrastructure that can deliver high speed broadband to all citizens at affordable prices.
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5. The Government, after careful examination, have decided to implement the Indian Telegraph Right of Way Rules, 2016, notified by Government of India, in the Gazette Notification No. GSR 1070 (E) dated 15.11.2016, in the State of Tamil Nadu. The Government further direct that:-
a)The District Collectors, in respect of all Districts and the Commissioner for Greater Chennai Corporation in respect of Chennai, be 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.
b)ELCOT be 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, for submission of online applications by the Licensees for grant of Right of Way permissions, which shall have a provision for consolidation of the demand raised by the authorities concerned and the collections received.
c)The Principal Secretary to Government, Information Technology Department be nominated as the Dispute Resolution Officer, under the provisions of Indian Telegraph Right of Way Rules, 2016.
d) Levy and collection of track rent for the Telecom Infrastructure, be continued in accordance with the existing guidelines issued by the State for the present, till they are revised, in addition to collection of administrative expenses / restoration charges/compensation prescribed by the Government of India for establishing the Overground Telecom Infrastructure (Towers) and Underground Telecom Infrastructure (OFC) as per the provisions of Indian Telegraph Right of Way Rules, 2016.
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.
f) Pending requests received from the Telecom Companies for Right of Way (RoW) permissions for laying OFC for which No Objection Certificate (NOC)? has already been received, be remitted to the respective District Collectors in respect of all Districts and the Commissioner for Greater Chennai Corporation in respect of Chennai for according of Right of Way permission under the provisions of Indian Telegraph Right of Way Rules, 2016.
g) Detailed guidelines will be issued by the Information Technology Department for the successful implementation of the Indian Telegraph Right of Way Rules, 2016, regulating the Underground /Overground Telecom Infrastructure in Public/ Private areas/ buildings and amendments thereto, if any required, in consultation with the concerned Departments.
6. This order issues with the concurrence of Finance (Industries) Department vide its U.O. No.7954/lnd/2018, dated 19.02.2018.
(By Order of the Governor)
16. A perusal of all the G.Os and Notifications issued from time to time, would show that G.O.Ms.No.2 Information Technology Department, http://www.judis.nic.in 19/24 W.P.No.25094 of 2019 dated 1/4/2002, which has been extended to installation of mobile towers in G.O.Ms.No.302, dated 12/2/2012 has not been superseded or over ruled. The said G.O.Ms.No.2, dated 1/4/2002 makes it clear that permission for installation of towers, equipment and generator, on case to case basis will be issued by the District Collector concerned in consultation with the District Office concerned. The said G.O., also states that technical feasibility, the structure on which the tower would be installed etc., have to be looked into.
17. Mr.Om Prakash, learned Senior counsel for R.6 in W.P.No.15144 of 2019 vehemently submitted that in paragraph 5 (g) of G.O.Ms.No.1, Information Technology (B 4) Department, dated 21/12/2018, Government is yet to issue guidelines for the successful implementation of the Indian Telegraph Right of Way Rules, 2016, regulating the Underground/Overground Telecom Infrastructure in Public/Private areas/buildings and amendments thereto, if any required, in consultation with the concerned departments. He would therefore, submit that in the absence of guidelines, permission to install the tower cannot be refused and the instant public interest litigations cannot be entertained. He would also categorically state that they have approached various Departments for grant of permission but the departments have not taken the matter forward.
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. http://www.judis.nic.in 20/24 W.P.No.25094 of 2019 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 provisions of the Tamil Nadu District Municipalities Building Rules and Multi-storeyed 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 tot he 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 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 DOT http://www.judis.nic.in 21/24 W.P.No.25094 of 2019 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 licenced 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 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 http://www.judis.nic.in 22/24 W.P.No.25094 of 2019 with the decision taken."
7. There cannot be a mandamus restraining the District Collector from exercising his duties, as to whether permission should be granted or not. Permission to be granted subject to fulfillment of certain conditions, extracted supra. No order can be issued to the respondents to locate in some other place also.
8. In view of the above decision, the instant writ petition is dismissed. No Costs. Consequently, the connected Writ Miscellaneous Petition is closed.
[S.M.K., J.] [S.P., J.] 29.08.2019 Index: Yes Internet: Yes Speaking / Non-speaking Order ars To District Collector, Office of the District Collector, Namakkal District.
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AND SUBRAMONIUM PRASAD, J.
ars/dm W.P.No.25094 of 2019 and WMP No.24668 of 2019 29.08.2019 http://www.judis.nic.in 24/24