Gujarat High Court
Keshav Apartment vs State Of Gujarat on 22 December, 2021
Bench: Biren Vaishnav
C/SCA/16798/2021 ORDER DATED: 22/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16798 of 2021
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KESHAV APARTMENT
Versus
STATE OF GUJARAT
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Appearance:
MR M R MOLAVI(3362) for the Petitioner(s) No. 1
MR.MEET THAKKAR, AGP (99) for the Respondent(s) No. 1
MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 2
NOTICE SERVED(4) for the Respondent(s) No. 3,4
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 22/12/2021
ORAL ORDER
1. Heard Mr.M.R.Molavi learned advocate for the
petitioner, Mr.Meet Thakkar learned AGP for
respondent no.1 and Mr.Satyam Chhaya learned
counsel appearing for respondent nos.2 and 3.
Though served, nobody appears for respondent no.4.
2. In this petition under Article 226 of the Constitution
of India, the prayer of the petitioner read as under:
"(A) YOUR LORDSHIPS, may be pleased to
issue a writ of mandamus or a writ in the nature
of mandamus or any other appropriate writ, order
or directions directing quashing and setting aside
the impugned letter dated: 16/04/2021 issued
(ANNEXURE 'A') issued by the respondent no. 3
herein and thereby be pleased to direct the
respondent No.4 to stop the work of installation of
4G mobile tower near Keshav Apartment situated
C/SCA/16798/2021 ORDER DATED: 22/12/2021
at Chandkheda, T.P -44, Ahmedabad in the
interest of the justice.
(B) Pending admission hearing and final
disposal of this petition, YOUR LORDSHIPS, may
be pleased to direct the respondent No.4 to stop
the work of installation of 4G mobile tower near
Keshav Apartment situated at Chandkheda,
Ahmedabad which is started in pursuance to the
impugned letter dated 16/04/2021 issued
(ANNEXURE 'A') in the interest of justice."
3. Essentially the grievance of the petitioner - Keshav
Apartment is that the respondent no.3 has installed
a 4G Mobile Telecom Tower without considering the
health risk of the families residing in the nearby
vicinity. It is the case of the petitioner that 4000
people are residing in 1000 flats in Chandkheda area
and installation of mobile tower near the wall of the
petitioner apartment could cause brain cancer, heart
disease and various such other ailments.
4. Mr.Chhaya would rely on decision of the Division
Bench of this Court in case of Muktipark Co
Operative Society - Part - IV Versus Ahmedabad
Municipal Corporation & other passed in Special
Civil Application No.5548 of 2014, wherein, this
C/SCA/16798/2021 ORDER DATED: 22/12/2021
Court extensively after considering the issue and
analyzing the aspects of installation of mobile towers
held that they are unlikely to pose a risk of health.
The relevant paragraphs of the judgment read as
under:
"Analysis:
6. We have heard Ms. Niyati K. Juthani, the
learned counsel appearing on behalf of the
petitioners, Mr. Mihir Thakore, the learned
Senior Advocate assisted by Ms. Amrita M.
Thakore, the learned advocate appearing on
behalf of the respondent No.2, Mr. Deep D. Vyas,
the learned advocate appearing on behalf of the
Ahmedabad Municipal Corporation, Mr. Vandan
Baxi, the learned Assistant Government Pleader
appearing on behalf of the State Government and
Mr. Shakeel A. Kureshi, the learned advocate
appearing on behalf of the Union of India.
7. Having heard the learned counsel appearing
for the parties and having gone through the
materials on record, the only question that falls
for our consideration in this petition is, whether
the petitioners are entitled to any of the reliefs as
prayed for in the petition.
8. Ordinarily, the court would allow litigation in
public interest if it is found :
i.That the impugned action is violative of any
of the rights enshrined in Part III of the
Constitution of India or any other legal right
and relief is sought for its enforcement;
ii.That the action complained of is palpably
illegal or mala fide and affects the group of
C/SCA/16798/2021 ORDER DATED: 22/12/2021
persons who are not in a position to protect
their own interest on account of poverty,
incapacity or ignorance;
iii.That the person or a group of persons
were approaching the Court in public
interest for redressal of public injury arising
from the breach of public duty or from
violation of some provision of the
Constitutional law;
iv.That such person or group of persons is
not a busy body or a meddlesome inter-loper
and have not approached with mala
fide intention of vindicating their personal
vengeance or grievance;
v.That the process of public interest
litigation was not being abused by politicians
or other busy bodies for political or
unrelated objective. Every default on the
part of the State or Public Authority being
not justiciable in such litigation;
vi.That the litigation initiated in public
interest was such that if not remedied or
prevented would weaken the faith of the
common man in the institution of the
judiciary and the democratic set up of the
country;
vii.That the State action was being tried to
be covered under the carpet and intended to
be thrown out on technicalities;
viii.Public interest litigation may be initiated
either upon a petition filed or on the basis of
a letter or other information received but
upon satisfaction that the information laid
before the Court was of such a nature which
required examination;
ix.That the person approaching the Court
has come with clean hands, clean heart and
clean objectives;
C/SCA/16798/2021 ORDER DATED: 22/12/2021
That before taking any action in public interest,
the Court must be satisfied that its forum was not
being misused by any unscrupulous litigant,
politicians, busy body or persons or groups
with malafide objective of either for vindication of
their personal grievance or by resorting to black-
mailing or considerations extraneous to public
interest.
9. The petition is substantially based on a strong
fear that the radio frequency waves emitted from
the BTS in question is likely to cause health
hazards to the residents of the flats and further
that the respondent No.2 has erected the BTS in
violation of the guidelines issued by the DoT. It is
also the case of the petitioners that the BTS has
been erected without any permission or sanction
of the residents of the residential premises in
question. The petitioners, in support of their case
that the BTS would be harmful to the residents of
the flats, have relied upon the information
downloaded from the Wikipedia (Annexure "C" to
the petition), the inter ministerial report issued
by the Ministry of Telecommunication and
Information Technology (DoT) (Annexure "D" to
the petition), and the report of the Expert Group
to study the possible impacts of communication
towers on Wildlife including birds and bees,
issued by the Ministry of Environment and Forest
(Annexure "E" to the petition). The petitioners
have also relied upon the advisory guidelines
issued by the State Government regarding the
issue of clearance for installation of the mobile
towers, effective from 1st August, 2013, along
with the additional guidelines to TERM Cells for
auditing the BTS for EMF radiation effective from
1st August, 2013, issued by the DoT.
10. From the materials on record, it appears that
the respondent No.2 has been granted Pan India
licence across 22 circles for offering the 4G
C/SCA/16798/2021 ORDER DATED: 22/12/2021
wireless services. In the State of Gujarat, apart
from the respondent No.2, three other operators
have been granted licence for offering the 4G
services. The entities who have been granted the
4G licences, which includes the respondent No.2,
have been granted spectrum in the 2300 MHz
band. It also appears from the information
available on the website of the Global Mobile
Suppliers' Association, that the 4G technology
has been commercially launched by 25 operators
in 20 countries across the world, where also the
spectrum is granted in or around the 2300 MHz
band. The details are as under:-
S Country Operator TDD
r Frequency
.
N
o
1 Australia NBN Co 2.3 GHz
2 Australia Optus 2.3 GHz
3 Bahrain Menatelcom 3.5 GHz
4 Brazil On Telecommunications 2.6 GHz
5 Brazil Sky Brazil Services 2.5 GHz
6 Canada Sasktel 2.5 GHz
7 Hong China Mobile Hong Kong 2.3 GHz
Kong
8 India Bharti Airtel 2.3 GHz
9 Indonesia PT Internet 2.3 GHz
10 Japan Softbank XGP/LTE TDD 2.6 GHz
11 Nigeria Spectranet 2.3 GHz
12 Oman Omantel 2.3 GHz
13 Poland Aem2 2.6 GHz
14 Russia Megafon/Moscow 2.6 GHz
15 Russia MTS/Moscow 2.6 GHz
16 Russia Vanakh Telecom 2.3 GHz
C/SCA/16798/2021 ORDER DATED: 22/12/2021
17 Saudi Mobily 2.5 GHz
Arabia
18 Saudi STC 2.3 GHz
Arabia
19 South Telkom Mobile 2.3 GHz
Africa
20 Spain COTA Murca 4G 2.6 GHz
21 Sri Lanka Dialog Axiata 2.3 GHz
22 Sweden 3 Sweden 2.6 GHz
23 Uganda MTN 2.6 GHz
24 UK UK Broadband 3.5 GHz
25 USA Sprint 2.6 GHz
11. It also appears from the materials on record
that for ensuring uniform, faster and smoother
processing of the applications, for clearance of
sites for the purpose of setting up the BTS by
entities who have been granted the 4G licence
across the cities and towns in Gujarat, the
Government of Gujarat has issued a G.R dated
3rd October, 2012, inter-alia giving suitable
directions to all the Municipal
Corporations/Municipalities/ Urban local
authorities in the State of Gujarat and also
prescribing the amount to be charged.
12. Pursuant to the aforesaid Resolution issued
by the State Government, the respondent No.1
has granted permission in favour of the
respondent No.2 dated 15th November, 2013 to
set up mobile poles at the specific locations in the
city of Ahmedabad. Thus, we do not find any
merit in the contention canvassed on behalf of
the petitioners that the respondent No.2 has
erected the poles without obtaining any requisite
permission from the authorities concerned. This
fact has been made abundantly clear in the
C/SCA/16798/2021 ORDER DATED: 22/12/2021
affidavit-in-reply filed on behalf of the respondent
No.1, State of Gujarat.
13. It also appears that the BTS with which we
are concerned, is 30 meters in height, whereas
the height of the flat (Malhar) is about 16 meters.
Further, the BTS has been erected outside the
compound of Malhar flats.
14. In April, 1998, the International Commission
on Non-ionizing Radiation Protection (ICNIRP),
after conducting the necessary studies, has
prescribed the safe levels of EMF radiation from
the base stations. This is evident from the ICNIRP
guidelines produced on record by the respondent
No.2 with it's affidavit-in-reply. The Table 5
thereof prescribes the basic restrictions for
power density for frequencies between 10 and
300 GHz and the same are 50 W/m 2 for
occupational exposure and 10 W/m2 for the
general public. The Table 7 thereof contains the
reference levels for general public exposure to
time varying electric and magnetic fields
(unperturbed rms values). As per this table, if the
frequency range is 2 to 300 GHz, the equivalent
place wave power density should be 10 W/m2.
15. In May 2006, the World Health Organisation
issued a Fact Sheet, inter alia, making the
following observations:-
&recent surveys have shown that RF exposures
from base stations range from 0.002% to 2% of
the levels of international exposure guidelines,
depending on a variety of factors such as
proximity to the antennae and the surrounding
environment. This is lower or comparable to RF
exposures from radio or television broadcast
transmitters.
C/SCA/16798/2021 ORDER DATED: 22/12/2021
A common concern about base stations and local
wireless network antennae rates to the possible
long term health effects that whole-body
exposure to RF signals may have. To date, the
only health effect from RF fields identified in
scientific reviews has been related to an increase
in body temperature (> 1�C) from exposure at
very high field intensity fund only in certain
industrial facilities, such as RF heaters. The
levels of RF exposure from base stations and
wireless networks are so low that the
temperature increase are insignificant and do not
affect human health.
The strength of RF fields is greatest at its source
and diminishes quickly with distance. Access near
base station antennae is restricted where RF
signals may exceed international exposure limits.
Recent surveys have indicated that RF exposures
from base stations and wireless technologies in
publicly accessible areas (including schools and
hospitals) are normally thousands of times below
international standards.
Over the past 15 years studies examining a
potential relationship between RF transmitters
and cancer have been published, these studies
have not provided evidence that RF exposure
from the transmitters increases the rsik of cancer
From all the evidence accumulated so far, no
adverse short or long term health effects have
been shown to occur from the RF signals
produced by base stations
International exposure guidelines have been
developed to provide protection against
established effects from RF fields by the
International Commission on Non-Ionizing
Radiation Protection (ICNIRP, 1998) and the
Institute of Electrical and Electronic Engineers
(IEEE, 2005). National authorities should adopt
C/SCA/16798/2021 ORDER DATED: 22/12/2021
international standards to protect their citizens
against adverse levels of RF fields. They should
restrict access to areas where exposure limits
may be exceeded.
Considering the very low exposure levels and
research results collected to date, there is no
convincing scientific evidence that the weak RF
signals from base stations and wireless networks
cause adverse health effects.
16. In the year 2008, the Government of India
adopted the restrictions and limits recommended
by the aforementioned ICNIRP guidelines. The
letter dated 4th November, 2008, issued by the
DoT mofifying the terms of the Licence
Agreement in that regard has been produced by
the Union of India, along with its reply (Annexure
R-3). By letter dated 8.4.2010, the DoT directed
all the CMS/UAS Licensees to comply with the
prescribed reference limits/levels and to issue
self certification in that regard in respect of their
BTS. It was also directed that the TERM Cells
would test upto 10% of new BTS sites randomly
at its discretion. Additionally, the BTS sites
against which if any public complaints are
lodged, then the same would also be tested by the
TERM Cell and further if the site fails to meet
with the EMR criterion, a penalty of Rs. 5 lac
would be levied per BTS per service provider.
Moreover, if the servicer provider fails to meet
with the criterion within one month of the report
of the TERM Cell, the site would be shut down.
17. Considering the public concerns over the
issue, an Inter-Ministerial Committee was
constituted in August 2010 to examine the effect
of the EMF radiation from the BTS and mobile
phones, which, after examining the matter,
submitted its Report, inter alia,recommending
C/SCA/16798/2021 ORDER DATED: 22/12/2021
that the RF exposure limits in India may be
lowered to 1/10th of the existing level.
18. In a group of writ petitions filed in the
Rajasthan High Court, inter alia, seeking
directions to the various authorities to formulate
a regulatory body in relation to emission of radio
frequency and electromagnetic radiations from
the mobile towers, seeking directions not to
construct the mobile towers at certain places and
seeking directions to quash the bye-laws made by
the State Government of Rajasthan and the
municipalities prohibiting erection of the mobile
towers at certain places, the Rajasthan High
Court delivered a judgment dated 27.11.2012
upholding the bye-laws/policy decision of the
State Government of Rajasthan and, inter
alia, directing that (i) the mobile towers from
hospitals and colleges be removed within 2
months, (ii) that the time prescribed by the State
Government for removal of the mobile towers
from within vicinity of 500 mt from jail premises
be implemented, (iii) that removal of the mobile
towers near the ancient monuments be
considered by the State Government and the local
authorities, (iv) that the mobile towers on
playgrounds may also be looked into, guideline of
the DoT in regard to the mobile handsets and the
mobile towers be strictly enforced, (v) that the
public be educated and made aware of the
different mobile handsets and ill-effects thereof,
and of the towers, and precautions necessary as
per the DoT guidelines, (vi) that the State
Governments and the local authorities should
take decision on case-wise basis with regard to
the installation of towers in densely populated
areas in accordance with law and removal of
dangerous towers which were not established as
per the norms and were erected without
permission, (vii) that the Government should
consider whether it would be appropriate to
change the constitution of the TERM Cells which
C/SCA/16798/2021 ORDER DATED: 22/12/2021
are the regulatory bodies framed by it, the
directions of the DoT and the Inter-Ministerial
Report with respect to constant monitoring be
implemented and that while granting such
permission for the installation of towers,
concerned bodies should consider the number of
the mobile towers in the area, the effect on the
health of the people and various other
safeguards.
19. Based on such recommendations of the Inter-
Ministerial Committee, the Government of India
has now adopted stricter norms for emission from
the base stations, being 1/10th of the limits
prescribed by ICNIRP. Accordingly, the licence
conditions of all the telecom service providers in
India were again amended to this effect. The
letter dated 26.6.2013 issued by the DoT refers to
the amendment made to the Licence Agreements
in this regard.
20. The DoT has thereafter issued guidelines
effective from 1.8.2013, which, inter alia, reflect
the adoption of 1/10th of the limits prescribed by
ICNIRP. The comparative table given in the reply
of the respondent no. 2 and also reproduced
hereinbelow gives the norms prevalent in India as
against those prescribed by the ICNIRP:
Frequency Power Density Power
(in Mega Hertz Limit Density
or MHz) prescribed by Limit
ICNIRP prescribed
(in by DoT
Watt/meter2or (in
W/m2) Watt/meter2
or W/m2)
900 4.5 0.45
1800 9 0.9
C/SCA/16798/2021 ORDER DATED: 22/12/2021
and
above
21. With a view to strengthen the monitoring and
compliance of safety aspects/provisions in regard
to radio frequency emissions from the mobile
towers, the DoT has also issued Additional
Guidelines with effect from 1.8.2013, wherein the
DoT has prescribed the following safe distances:
No. of Building/Structure safe
antenna(e) distance from the
pointed in the antenna(e) at the same
same direction height (in meters)
22. In the said additional guidelines, it is
specified that 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
narrow. It is also stated that 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 in the same direction with the same height (a
worst case scenario). In practise, the value of
safe distance of buildings will depend upon the
actual deployment scenarios and mostly, may be
far less than depicted above.
C/SCA/16798/2021 ORDER DATED: 22/12/2021
23. Thereafter, several faculty members at the
IITs and IISc in the area of communications,
being concerned about the reports of adverse
impact of radio frequency radiation from cellular
towers on human health, examined the issue and
prepared a Statement on the issue in September
2013 wherein they noted that the DoT had
implemented the reduction of emission levels
from the mobile towers in the country to
1/10th of the ICNIRP standards and that India
thus became one of the 10% countries having the
most stringent norms of the EM exposure. They
concluded that the recommendations of the DoT
were sensible and based on international best
practises at this point of time and that they
should be strictly implemented. They further
recommended creation of a public database
where all study reports on the health implication
of the EM radiation should be placed and
conduction of multiple scientific studies on the
subject of health implications of the EM radiation,
etc.
24. In its latest advisory on health risk associated
with mobile phones and BTS, the World Health
Organisation (WHO) has said:
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&&..
25. In a writ petition filed in the Allahabad High
Court, a direction was given to the Government of
India to constitute a committee of experts to
submit a report so that the Government may take
necessary precautions while granting permission
for establishment of the mobile towers. Such
Committee was formed vide letter dated
20.8.2013, and thereafter, it has submitted its
report on 17.1.2014 stating that the DoT has
already prescribed stricter precautionary limits
C/SCA/16798/2021 ORDER DATED: 22/12/2021
for the EMF radiation from the mobile towers and
the mobile handsets. After considering the report
of the Committee, the DoT has issued an Office
Memorandum on 27.2.2014 stating that the
presently prescribed limits for the EMF radiation
from the base stations in India are one tenth of
the internationally prescribed limits and that the
same were adequate and need no further change
at that stage. It is also decided that in order to
make a deterrent effect, the penalty for violation
of the prescribed stricter norms from the BTS
towers by telecom service providers be increased
from Rs. 5 lac to Rs. 10 lac per BTS per incidence
per operator with effect from 20.11.2013. The
TERM Cells are directed to carry out extensive
audit of comprehensive self certificates and site
for compliance of EMF radiation safe limits.
26. Recently, the Science and Engineering
Research Board, Department of Science and
Technology, Government of India has constituted
a Committee of experts, inter alia, to initiate
country wide special scientific studies in the area
of engineering and life form risk assessment and
to define efficiency and emission norms for
communication, etc. The said Committee has
received about 150 proposals which would be
considered and evaluated.
27. What has really left us baffled is the fact that
the radio frequency waves used for mobile
phones are not covered under the definition of
"radiation" as given in the Atomic Energy Act,
1962 and the non-ionizing radiations do not have
the capability to ionize the matter with which
they interact. The Radiation Protection Division
(NRPB) of the U.K. Health Protection Agency in
the year 2000 has reported that the balance of
evidence indicates that there is no general risk to
the health of the people living near the base
stations on the basis that the exposures are
expected to be small fractions of guidelines. The
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scientific data would indicate that the use of the
mobile phone, AM Radio, FM Radio etc. is more
harmful to the human beings compared to the
power emission from the Base Transceiver
Stations and that of the Mobile Towers.
28. A Division Bench of the Kerala High Court in
the case of Reliance Infocom Ltd. Vs.
Chemanchery Grama Panchayat and ors.,
reported in AIR 2007 Kerala 33 has observed that
the surveys conducted in proximity to the base
stations indicated that the public was exposed to
extremely low intensity RF fields in the
environment and all the evidences indicated that
they were unlikely to pose the risk to health.
29. We may quote some of the observations of the
Division Bench of the Kerala High Court, as
contained in paragraph 5 of the judgment, which
has been relied upon by the respondent No.2.
5. We have already found that RF exposures from
Mobile Base Stations are much less than from
radio, FM radio and television transmissions and
that the consensus of scientific community is that
the radiation from Mobile Phone Base Stations is
far too low to produce health hazards if people
are kept away from direct access to the antenna
and the overall evidence indicates that they are
unlikely to pose a risk to health. The strength of
radio frequency fields in front of the antennae
varies with the distance. Persons standing
directly in front of the antennae in these high
density zones will get higher exposures. We have
also found that the height of Mobile Base Station
antennae is normally 36 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) and Hutter and kundi et at (2006) do
C/SCA/16798/2021 ORDER DATED: 22/12/2021
not report any quantitative parameters related to
health hazards. Therefore it can safely be
concluded that the permission granted for
installation of Mobile Base Station by the
Panchayat would not cause as such any health
hazards nor will it affect the fundamental rights
guaranteed to citizens under Article 21 of the
Constitution. Right to life enshrined under Article
21 includes all those aspects of life which make
life meaningful, complex and worth living.
Development of technology has its own ill-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.
30. We are in respectful agreement with the
aforenoted observations made by the Division
Bench of the Kerala High Court, and propose to
follow the same.
31. Before parting with this matter, we deem it
necessary to mention that the concerned
authorities should, by way of communication
through T.V., Radio etc. bring it to the notice of
the people at large that there is no reason for
them to fear the erection of the Base Transceiver
Station, known as the Wi-Fi Mobile Tower. The
reason why we are saying so is that the
impression in the mind of a common man is that
the Wi-Fi Mobile Towers erected all over the
State has the potential to cause health hazard
due to the emission of radio active waves from
the said tower.
C/SCA/16798/2021 ORDER DATED: 22/12/2021
32. In view of the aforesaid discussion, we have
reached to the conclusion that the petitioners are
not entitled to any of the reliefs as prayed for in
the petition. The petition, being devoid of any
merit, is accordingly ordered to be rejected. No
costs.
33. In view of the order passed in the main
petition, the connected Civil Applications have
become infructuous and are accordingly,
disposed of."
5. In view of the aforesaid decision by the Division
Bench of this Court, the petition is misconceived and
the same is hereby dismissed. Notice is discharged.
(BIREN VAISHNAV, J)
ANKIT SHAH
