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"33. Points sought to be clarified as per the reference order dated 24-3-2009 in W.P.(C). 
            No.6433/2009      and    connected    cases   are
            answered     in  the    above   background      as
            follows:The construction of a Mobile Base
Station by itself witll not give rise to a dispute purely of civil nature, to be relegated to a civil court, merely for the reason that a section of the public apprehends that it may cause some health hazards. Whether a larger question of this nature, as to whether such Mobile Base Station could cause any health hazard, could be decided in a petition filed under Article 226 of Constitution of India, there cannot be any legal bar to such a course in appropriate cases, where sufficient materials are provided as to the scientific studies and norms/guidelines prescribed by the Government/Licensing authorities in this regard; which situation is conspicuously absent in the instant cases. If the petitioners have obtained all requisite licences/permits in accordance with the relevant statutes/orders/notifications in force and start construction/functioning of a Mobile Base Station, nobody can cause any physical obstruction to such work/operation, but it is open to them for raising a dispute and seek remedies available under the law.

We have already found that RF exposures from Mobile Base Stations are much less than from radio, Fm radio and television transmissions and that the consensus of scientific community is that the radiation from Mobile Phone Base Stations is far too low to produce health hazards if people are kept away from direct access to the antenna and the overall evidence indicates that they are unlikely to pose a risk to health. The strength of radio frequency fields in front of the antennae varies with the distance. Persons standing directly in front of the antennae in these high density zones will get higher exposures. We have also found that the height of Mobile Base Station antennae is normally 36 metres and the effect of radio waves depends on the distance from the base stations since the antennae are directed horizontally with a 5 degree downwards tilt. Human studies pertaining to base stations conducted by Santini R et al (2002), Bortkiewicz et al (2004) & Hutter & Kundi et al (2006) do not report any quantitative parameters related to health hazards. Therefore, it can safely be concluded that the permission granted for installation of Mobile Base Station by the Panchayat would not cause as such any health hazards nor will it affect the fundamental rights guaranteed to citizens under Art. 21 of the Constitution. Right to life enshrined under Art.21 includes all those aspects of life which make life meaningful, complex and worth living. Development of technology has its own ill-effects on human beings, but, at times people will have to put up with that at the cost of their advantages. Petitioner and others for installing towers will have necessarily to comply with the statutory provisions contained in Chapter XIX of the Kerala Municipal Building Rules, 1999 which permits construction of telecommunication towers over buildings. Petitioner has submitted that it has already satisfied all those conditions and in such circumstance, Panchayat has granted the licence." Thereafter, the Court referred to the TRAI Act and its powers. The Court also, we notice, held as follows:

Reverting back to the decision of the Full Bench, we notice that since the Full Bench has posted the matter for consideration of the case on merits before this Bench, it is apposite to refer to the following findings as well:

26. In the Full Bench decision, it is, inter alia, stated as follows:

"The observations by the Division Bench of this Court earlier, as per the decision in Reliance's case that, as per the scientific data available as on date, it was not established that the activity would result in any health hazards, stands in tact. The respondents have never brought it to the notice of this Court, any decision or material to the contrary, so as to draw a different inference. In any view of the matter, this Court does not propose to examine the correctness or otherwise of the finding in Reliance's case as to the instance of any health hazards; more so since the points of reference are rather something else. Similarly, this Court also does not propose to go into the merits of the contentions raised by the respondents that various other licences are also required under the relevant provisions of Panchayat Raj Act/Kerala Municipality Act/ Kerala Municipal Building Rules, etc., which, however, is strongly rebutted from the part of the petitioners as well...........It may also not be correct to say that this Court does not have the power to consider the various aspects as to the alleged health hazards which according to the reference Court is surprisingly vested only with the Civil Court. Suffice to say, it is not a question of absence of jurisdiction, but a question of necessity for interference. The instance of any health hazards has to be established with reference to tangible materials and evidence has to be let in; for which, it could be said that the matter may require to be adjudicated before the Civil Court. But then, it is for the concerned party to plead and prove as to the specific threat to the health hazards with reference to reliable materials and also as to the alleged infringement of any statutory prescription or violation of the norms prescribed. It is not for the petitioners to prove a `negative aspects' that there is no health hazard. When the petitioners have prima facie established their right to construct and operate the mobile transmission tower by obtaining all the required licences, it is for the objectors, if any, to prove infraction of their right, if any, and to show the dis-entitlement of the petitioners to establish a mobile tower by resorting to the remedy of approaching the licensing authorities, or to approach the Civil Court or by establishing their right in the Writ Petition for police protection. If any such objection is found prima facie established, this Court can certainly decline to grant police protection or in case the respondent fails to prove their right by documentary evidence, could still reserve his right to approach the Civil Court, as the burden to prove any such infraction is on the objector who asserts any such right. That apart, the observations made by the Division Bench of this Court in `Reliance's case' that the scientific study and the materials brought to light as on date did not reveal any such health hazards still stands, as the said observation has not been successfully challenged and no material has been produced to arrive at a different finding."

39. There is an international body concerned with the effects of such radiation. The standards prescribed by the said body is sought be enforced by Government of India also. It is the view taken by the large number of scientific experts that radiation in conformity with the said standards have not been established to produce any health hazards as such. At any rate, we do not think that it is appropriate for this Court with the material as such on record alone to hold that the respondents have established that siting of the tower would pose a health hazard sufficient enough to warrant this court to decline jurisdiction to grant police protection if the petitioners are otherwise entitled to the same. We must notice that we are not called upon to decide upon the question of health hazards emanating from the use of mobile phones and a distinction must be maintained between the use of mobile phones and the alleged dangers emanating from the operation of a mobile tower. Going by the materials, it does appear that there are international standards. Radiation in deviation from the said standards is, in law, liable to be visited with serious consequences including stoppage of the operations. It is not established before us that these standards are being violated. We have to remind ourselves that the use of mobile phone is a modern day wonder and the contribution of technological advancement which has marked the twentieth century, in particular. Undoubtedly, its use is invaluable, not only to the individual as such, but to the Nation itself, as it would be instrumental in bridging the communication gaps that isolate, otherwise inaccessible areas of the country. Its uses in a vast array of areas is so formidable that it can in one sense be treated as a priceless boon of science. It cannot be gainsaid that nothing comes without a price-tag and the resolution of every problem of this nature must be in the adoption of a balanced view. Needless to say, we do not mean that we have precluded the rights of the respondents to approach the civil court and seek relief against the petitioners by letting and producing materials as they are advised in which case necessarily the civil court shall decide the matter untrammelled by anything contained in this judgment.