MUKTIPARK CO OPERATIVE SOCIETY AND ORS Vs. AHMEDABAD MUNICIPAL CORPORATION AND ORS
LAWS(GJH)-2014-9-232
HIGH COURT OF GUJARAT
Decided on September 05,2014

Muktipark Co Operative Society And Ors Appellant
VERSUS
Ahmedabad Municipal Corporation And Ors Respondents

JUDGEMENT

- (1.) BY this writ -application in the nature of a public interest litigation, the petitioners have brought to our notice that just adjoining to their residential flats situated near the Sola Railway Crossing, Sola, Ahmedabad, the respondent No.2, Reliance Jio Infocomm Limited, a company engaged in the business of telecommunications, has erected a Base Transceiver Station (BTS), popularly known as "the Wi -Fi Mobile Tower", in violation of the guidelines issued by the respondent No.4, Union of India, which is likely to cause a potential health hazard due to the emission of radio active waves from the said tower.
(2.) THE case made out by the petitioners may be summed up thus: 2.1 The petitioners are residents of Malhar Flats, situated near the Sola Railway Crossing, Sola, Ahmedabad. The residents of the Malhar Residential Flots have formed a Society, known as "the Muktipark Co -operative Society, Part IV", registered under the Gujarat Cooperative Societies Act. The petitioner No.1 is the Chairman of the said Society. 2.2 The respondent Nos. 1, 3 and 4 are "the State", within the meaning of Article 12 of the Constitution of India. The respondent No.2 is a company registered under the Companies Act, and is engaged in the business of communication. 2.3 There are around 39 flats in the Malhar Residential complex, and approximately 120 individuals are residing in the said flats. The respondent No.2 has illegally erected a Wi -Fi mobile tower approximately two meters close to the residential premises. The Wi -Fi mobile tower is of 4G technology. The respondent No. 2 has erected the said Wi -Fi mobile tower without any permission or sanction or No Objection from the residents of the Malhar flats or the other nearby residents. 2.4 According to the petitioners, the Wi -Fi mobile tower emits electromagnetic waves which in turn causes electromagnetic radiation and it has been scientifically proven that the electromagnetic radiation effects are divided into thermal and non thermal effects; the thermal effects are similar to that of cooking in the microwave oven, whereas non -thermal effects are not well defined but, they are three to four times more harmful than the thermal effects. The inter -ministerial report issued by the respondent No.4 indicates the adverse effects of the radiation emitted by the Wi -Fi mobile towers. 2.5 According to the petitioners, the Wi -Fi mobile towers erected therein would emit higher level of electromagnetic radiations. The photographs annexed with the petition clearly indicates that the Wi -Fi mobile tower is extremely close to the residential premises and the warning signs shown on the said Wi -Fi mobile tower further indicates that it is harmful for the human beings. The warning shown on the tower indicates that the said tower would be emitting non ionizing radiations, capable of causing cancer. 2.6 The Wi -Fi mobile tower operators divide a region in large number of cells and each cell is divided into number of sectors, the base station is normally configured to transmit different signals into each of those sectors, wherein the majority of the towers are mounted near the residential and office buildings to provide good Wi -Fi mobile phone coverage to the users. Taking into consideration such proposition, it would be an undisputed fact that the Wi -Fi mobile tower located in the vicinity of the petitioner Society would emit radiation round the clock and the said tower would receive ten thousand to one crore times stronger signals than required for the Wi -Fi mobile communication. 2.7 The Wi -Fi mobile tower has been erected just outside the garden of the residential premises, wherein the children from the age group of 3 to 18 years play everyday in the evening. The tower has been erected at such a place that the residents of the building would be exposed to constant radiation. In such circumstances, the petitioners have prayed for the follow reliefs: - (A) Be pleased to issue a writ of mandamus or writ in the nature of mandamus and/or a writ of certiorari or any other appropriate writ, direction or order commanding the respondent authorities to forthwith take action in accordance with law against the tower erected by the respondent No.2 just outside the said premises in question by directing the respondent No.1 to remove the same from said premises since the tower in question is causing severe health hazard to the family of the petitioner and the like; (B) Permanently restrain the respondent No.2 from erecting any Wi -Fi mobile tower in a close vicinity of the petitioner, which would cause health hazard due to emission of radiation; (C) Be pleased to direct the respondent authorities to not permit use of the tower in question, by sealing the said tower, which is not permissible under the law, and for which no permission has been sought by the respondent No.4 from the respondent authorities; (D) Pending the admission, hearing and final disposal of this petition, be pleased to: - i) Direct the respondent authorities to not permit use of the property in question, by sealing the said tower; ii) Direct the respondent authorities to submit a report to this Court of the action taken by the respondent authorities after the filing of this petition; iii) Restrain the respondent No.2 from continuing the operation and commencing and usage of the said mobile tower; iv) Restrain the respondent No.2 from using the said tower unless and until the respondent No.2 has got all the legal permission and sanctions, which are in accordance with the General Development Control Regulation applicable; E) Be pleased to grant an ex -parte ad interim relief in terms of prayer (D) (i), (ii), (iii) and (iv) above; F) Be pleased to pass such an order and further orders as may be deemed just and proper in the facts and circumstances of the present case. G) Be pleased to award costs of this petition."
(3.) STANCE of the respondent No.4, Union of India: All the allegations levelled in the petition are baseless and not true. The World Health Organization (WHO) in its Fact Sheet No.304, May 2006 on the Electromagnetic Fields and Public Health (Base Stations and Wireless Technologies) has concluded 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 had any adverse impact on the health of the human beings. The WHO has recommended in the Fact Sheet No. 304, May 2006 that the National authorities should adopt the international standards to protect their citizens against the adverse levels of RF fields. The International Commission on Non -ionizing Radiation Protection Guidelines of April, 1998 suggests that the epidemiological studies on exposed workers and the general public have shown no major health effects associated with typical exposure environments. The studies have yielded no convincing evidence that the typical exposure levels lead to adverse reproductive outcomes or increases the risk of cancer. The Department of Telecommunications (DoT) vide letter dated 8th April, 2010 directed all the CMTS/UAS licensees for compliance of the reference limits/levels prescribed by the ICNIRP by way of self certification of their Base Transmitting Stations for meeting with the EMF radiation norms. In such circumstances referred to above, the respondent No.4 has prayed that there being no merit in this petition, the same deserves to be rejected. Stance of the respondent No.1, The Ahmedabad Municipal Corporation: By filing an affidavit, the respondent -Corporation has stated that none of the fundamental rights or any accrued legal right of the petitioners could be said to have been violated by any action or inaction on the part of the respondents so as to maintain this petition. The Corporation is governed and administered by the Rules, Policies and Guidelines framed by the Government of India. The licensee company, before installation of the towers, is required to obtain the requisite permission and clearance from the Department of Telecommunications (DoT), and is obliged to follow the conditions and guidelines as prescribed by the authorities. The Telecom Enforcement Resource and Monitoring Cells (referred to as "the TERM Cell") of DoT are constituted for the purpose of vigilance, monitoring and security functions. On failure of any site to meet with the requirements, the authority has been conferred with the powers to impose heavy penalties and even order closure of the sites. The Urban Housing Department of the State Government issued Resolutions dated 3rd October, 2012 and 22nd December, 2012 respectively for levying of charges and fees for the companies providing Wireless Broad Band Services (4G Telecom Services) installing cables and preparing trench through Horizontal Direct Drilling (HDD) system and erecting of poles in the different cities of State. The resolutions referred to above issued by the State Government have been accepted by the Standing Committee and Board of the Corporation, vide Resolutions dated 10th January, 2013 and 29th January, 2013 respectively. In pursuance thereof, the Corporation has granted the requisite permission for installation of the 4G towers at the respective sites at the height admeasuring from 25 meters to 30 meters, depending upon the requirements and in conformity with the Rules and Regulations. The compliance and monitoring of the radiation levels would be taken care of by the technical and specialized agencies of the respondent herein. The permissions granted to the respondent No.2 includes unconditional undertaking to abide with and follow all the rules, regulations and guidelines issued by the Central/State Government and also issued by the DoT, so as to ensure that no radiation/frequency rays are harmful and/or hazardous to human life and inhabitation. In such circumstances referred to above, the respondent No.1 has prayed that the petition being devoid of any merit, the same may be rejected.;


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