Madras High Court
Karthick vs The District Collector on 7 October, 2021
W.P(MD)No.21299 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON :01.12.2021
PRONOUNCED ON :14.12.2021
CORAM :
THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
W.P(MD) No.21299 of 2021
and
W.M.P(MD)Nos.17869 & 17870 of 2021
Karthick Petitioner
Vs.
1.The District Collector,
Tenkasi District,
Collectorate, Tenkasi.
2.The Tahsildar,
Veerakerampudhur Taluk,
Tenkasi District.
3.The Manager,
M/s. Indus Tower Limited,
Espee IT Part, 5 (N.P), 5th Floor,
Jawaharlal Nehru Road,
Ekkaduthangal,
Chennai – 600 032.
4.R.Mohanraj Respondents
1/19
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W.P(MD)No.21299 of 2021
PRAYER : Writ Petition is filed under Article 226 of the Constitution of
India, praying for issuance of a Writ of Certiorari, call for the records
pertaining to the impugned order made in ROC.No.K3/7615/2021, dated
07.10.2021, passed by the first respondent and quash the same.
For Petitioner :Mr.P.Selvakamatchi
For R1 & R2 :Mr.M.Siddharthan
Additional Government Pleader
For R3 :Mr.K.Govindarajan
ORDER
(Order of the Court was made by P.VELMURUGAN,J.)
The Writ Petition is filed to quash the impugned order passed by
the first respondent in ROC.No.K3/7615/2021, dated 07.10.2021.
2.The case of the writ petitioner is that M/s. Indus Tower
Limited, Chennai/third respondent herein is a licensed Telecom
Infrastructure Service Provider and they wanted to erect Mobile Phone
Tower in the fourth respondent's land in S.No.29/6B, 29/6C, Door No.
17-9-6(3), Amman Sannathi, Sivagurunathapuram, Surandai. According to
the petitioner, the said land is surrounded by various residential buildings. As
per guidelines for erecting the Cellular Towers, the erection of towers shall
not be allowed within a radius of 100 meters from residential buildings,
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W.P(MD)No.21299 of 2021
Schools and Hospitals. But the third respondent without following the
guidelines is trying to erect the Mobile Phone Cellular Tower in the fourth
respondent's land, which is 10 meters away from the residential area.
3.It is the further case of the petitioner that the electromagnetic
radiations emitted from these towers are harmful to the people, who were
living in 300 meters radius from the tower. The electromagnetic radiations
emitted by these towers have many health risks, which include loss of
memory, lack of concentration and digestive problems, more particularly, the
children and pregnant women are at maximum risk, as the child's skull is
thinner, the radiation will make severe effects, as they penetrate deep in their
skull. These radiations are also harmful for the birds and animals. Due to the
erection of tower in the residential area, the health of village people will get
affected. Therefore, they made representation to the District Collector/the
first respondent herein, requesting not to permit the third respondent to erect
the tower in the fourth respondent's land. They have also requested the
second respondent not to allow the third respondent to erect the tower. The
second respondent has conducted an enquiry through Village Administrative
Officer, who got statement from the general public, residing in and around
the area and submitted the report to the second respondent. In that report, the
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W.P(MD)No.21299 of 2021
second respondent has clearly stated that the third respondent is going to
erect mobile phone tower, within 10 meters from the Amman Sannathi Street,
for which, the first respondent has accorded permission from the third
respondent vide proceedings, dated 07.10.2021, in ROC No.K3/7615/2021.
Challenging the same, the present writ petition is filed.
4.The learned counsel for the petitioner would submit that even
though the village people made representation to the District Collector,
Tenkasi, they granted permission, by violating the Rules and without
considering the consequences of erecting mobile phone tower in residential
area, which causes health hazards to human being as well as for animals.
Hence, the impugned order is liable to be set aside.
5.The learned Additional Government Pleader appearing for the
respondents 1 & 2 would submit that the first respondent has not violated
any Rules and the permission given by the first respondent is in accordance
with law. Hence, there is no need to interfere with the order of the first
respondent.
6. Heard both sides and perused the materials available on
record.
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W.P(MD)No.21299 of 2021
7. It is seen that M/s. Indus Tower Limited, Chennai, who is the
third respondent herein is a licensed Telecom Infrastructure Service Provider
and they wanted to erect Mobile Phone Tower in the fourth respondent's land
and obtained necessary permission from the first respondent/the District
Collector, Tenkasi. Though the learned counsel for the petitioner submitted
that the electromagnetic radiations emitted from the towers are harmful to the
human being as well as animals, in order to substantiate the same, no proof
has been produced by the petitioner.
8.In this regard, this Court has already dealt with in the case of
Manivannan Vs the District Collector, Tuticorin District, reported in
(2019) 6 MLJ at 641, and the relevant portion is as under:-
“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 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.
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W.P(MD)No.21299 of 2021
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
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W.P(MD)No.21299 of 2021
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 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
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W.P(MD)No.21299 of 2021
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
bye13/46 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
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W.P(MD)No.21299 of 2021
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 FactSheet 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.
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W.P(MD)No.21299 of 2021
(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 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
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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:
Revised
ICNIRP
Frequency DOT
Radiation Norms
Norms
0.45/Watt/
900 MHz 4.5 Watt/Sqm.
m2
0.90/Watt/
1800 MHz 9 Watt/Sqm.
m2
2100 MHz
10.5 Watt/Sqm. 1 Watt/m2
and above
(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:
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W.P(MD)No.21299 of 2021
Number of Antenna Building/Structure
(e) pointed in the safe distance from the
same direction antenna(e) at the same
height (in Meters)
(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
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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 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
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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.
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W.P(MD)No.21299 of 2021
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
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,
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W.P(MD)No.21299 of 2021
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.
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W.P(MD)No.21299 of 2021
59.We are mindful of the fact that the
foundational basis of 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.”
9.Already, the Division Bench of this Court and the Division
Bench of Bombay High Court have given findings that there is no scientific
proof to prove that electromagnetic radiations emitted from the towers are
harmful to the human being as well as animals. Therefore, in the absence of
any proof, even subsequently as of now, this Court does not find any merit in
this Writ Petition and accordingly this writ petition is dismissed. No costs.
Consequently, connected Miscellaneous Petitions are closed.
(P.S.N.J.,) (P.V.J.,)
14.12.2021
Index : Yes/No
Internet : Yes/No
vrn
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W.P(MD)No.21299 of 2021
Note:
In view of the present lock down owing to COVID-19 pandemic, a web copy
of the order may be utilized for official purposes, but, ensuring that the copy
of the order that is presented is the correct copy, shall be the responsibility of
the advocate/litigant concerned.
To
1.The District Collector,
Tenkasi District,
Collectorate, Tenkasi.
2.The Tahsildar,
Veerakerampudhur Taluk,
Tenkasi District.
3.The Manager,
M/s. Indus Tower Limited,
Espee IT Part, 5 (N.P), 5th Floor,
Jawaharlal Nehru Road,
Ekkaduthangal,
Chennai – 600 032.
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W.P(MD)No.21299 of 2021
PUSHPA SATHYANARAYANA, J.,
and
P.VELMURUGAN,J.,
vrn
Pre-delivery order in
W.P(MD) No.21299 of 2021
and
W.M.P(MD)Nos.17869 & 17870 of 2021
14.12.2021
https://www.mhc.tn.gov.in/judis
