Full Judgment Text
$~49
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8661/2015
RESIDENTS WELFARE ASSOCIATION ..... Petitioner
Through: Mr. Praneet Singh, Ms. Ritagya Riti
Singh, Mr. Honekesh Chaudhary, Mr.
Ashish Gupta and Mr. Shashank
Sharma, Advs.
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Ms. Suparna Srivastava, Mr.
Neelmani Pant and Mr. Rishabh
Wadhwa, Advs. for R-1/UOI.
Mr. Dhanesh Relan, Adv. for R-
2/DDA.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
O R D E R
% 09.09.2015
CM No.18952/2015 (for exemption)
1. Allowed, subject to just exception.
2. The application is disposed of.
W.P.(C) 8661/2015
3. The petitioner, claiming to be an Association of the Residents of
Houses of Sector-C, Pocket-4, Vasant Kunj, New Delhi, has filed this
th
petition impugning the Circular dated 28 October, 2014 of the respondent
No.1 Ministry of Communications & Information Technology, Government
W.P.(C) 8661/2015 Page 1 of 5
of India directing the Chief Secretaries of all the States and Union Territories
to constitute State Level Telecom Committee and District Level Telecom
Committee to effectively address public grievances relating to installation of
telecom towers. The petition also seeks a mandamus to the respondent No.1
Union of India (UOI) to make proper amendments and issue new advisory
guidelines incorporating the Recommendation No.13 of the Inter-Ministerial
Committee (IMC) report of the year 2010-2011, of imposing restrictions on
installation of mobile phone towers near high density residential areas,
schools, playgrounds and hospitals. Axiomatically, a direction is also sought
to the respondent No.2 Delhi Development Authority (DDA) to cancel the
allotment made to the respondent No.3 M/s Indus Towers Ltd. of a site
between the boundary wall of Sector-C, Pocket-4 of the Colony of Vasant
Kunj, New Delhi and Delhi Public School, Vasant Kunj, for installation of a
telecom tower.
4. The entire case of the petitioner, as aforesaid, is based on the report of
the IMC of the year 2010-2011. It is however not as if, while framing the
th
advisory guidelines and in pursuance whereto the communication dated 28
October, 2014 for constitution of State Level Telecom Committee and
District Level Telecom Committee was issued, the authorities concerned
were not conscious of the said report of the IMC. Rather, it is the case of the
petitioner itself in ground (G) that the Standing Committee on Information
Technology, which made the said guidelines, did not accept the
recommendation aforesaid of the IMC. The petitioner finds fault in, the
Standing Committee accepting some of the recommendations contained in
W.P.(C) 8661/2015 Page 2 of 5
the report of the IMC and not accepting others. It is also not as if the
Standing Committee on Information Technology, without any reason did not
accept the recommendation in the IMC report, on which the petitioner relies
upon. The Standing Committee has observed that the said recommendation
is for unfounded reasons which are not based on scientific study or facts.
5. I am of the opinion that the said matters fall in the domain of policy
making and the Courts, neither have the jurisdiction to nor where-with-all to
take a call thereon. The appropriate authority has made the policy and while
framing such policy, the report of the IMC has been duly considered. It is
not for the Court to enter into the arena of finding out, whether the policy
made by the expert body constituted, for going into the said question, is
correct or not and that too on the basis of an opinion of some persons in the
process of such decision making. It is the settled position in law (see
Surgical Electronics Vs. Union of India 60 (1995) DLT 359 (DB) and
Rajinder Kumar Khatri Vs. Delhi Development Authority
MANU/DE/4005/2011) that such comments / opinions during the decision
making process cannot form the basis of the challenge to the ultimate
decision, even if contrary to the opinion at one level in the decision making
process. Supreme Court also, in Sethi Auto Service Station Vs. Delhi
Development Authority (2009) 1 SCC 180 and in Jasbir Singh Chhabra Vs.
State of Punjab (2010) 4 SCC 192 has reiterated that favourable notings
during the decision making process cannot from the basis of a claim when
the ultimate decision making authority has decided against the claimants.
The Interministerial Committee and its recommendations are but a stage in
the making of the policy aforesaid.
W.P.(C) 8661/2015 Page 3 of 5
6. The counsel for the respondent No.1 UOI appearing on advance notice
has stated that a similar petition is pending before the Division Bench being
W.P.(C) No.5550/2015 titled Kapil Choudhary Vs. Union of India and has
th
drawn attention to the order dated 27 May, 2015 in the said petition which
takes notice of several judgments of the Kerala High Court vis. M/s. Essar
Telecom Infrastructure (P) Ltd. Vs. C.I. of Police, Angamali Police Station
MANU/KE/2780/2010 (FB), Indus Towers Ltd. Vs. The Sub Inspector of
Police MANU/KE/1308/2014 (DB) and Sudevan Vs. Mundur Grama
Panchayat MANU/KE/0839/2013, holding that mobile phone towers do not
pose any health hazard, as well as the judgment of the Rajasthan High Court
in Justice I.S. Israni (Retd.) Vs. Union of India MANU/RH/1496/2012 in
the context of mobile phone towers on hospitals, school buildings and
playgrounds.
7. I may also notice that a learned Single Judge of this Court also vide
st
order dated 31 May, 2010 in W.P.(C) No.3267/2010 titled Cellular
Operators Association of India Vs. Municipal Corporation of Delhi had
directed a Committee to be constituted to submit a report on effect if any of
mobile phone towers on public health and safety and regulating the
installation of cellular towers and antennas but which order was set aside by
th th
the Division Bench in appeals, vide order dated 4 June, 2010 / 8 July,
2010 and the final judgment in the said writ petition reported in 179 (2011)
DLT 381 also did not issue any directions in this regard.
8. This Court cannot, upon being approached by residents or by
association of residents, interfere with the works undertaken in accordance
W.P.(C) 8661/2015 Page 4 of 5
with the prevalent policy. In fact, I have asked the counsel for the petitioner
that why not all the residents of Sector-C, Pocket-4, Vasant Kunj give up the
use of cellular phones, to obviate any threat perception from the use thereof
or from the telecom towers essential to enable the use thereof. The counsel
for the petitioner has chosen not to give any reply. Citizens not wanting to
give up use of cell phones cannot approach the Court to push the towers and
antennas essential for use thereof, from their own door steps to another
person’s door step; if at all they feel that the technology is harmful for them,
all they have to do to give up the use of the same and in which case there
would also be no need for towers and antennas required to be installed for
enabling use thereof.
9. There is thus no merit in the petition. Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 09, 2015
bs..
W.P.(C) 8661/2015 Page 5 of 5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8661/2015
RESIDENTS WELFARE ASSOCIATION ..... Petitioner
Through: Mr. Praneet Singh, Ms. Ritagya Riti
Singh, Mr. Honekesh Chaudhary, Mr.
Ashish Gupta and Mr. Shashank
Sharma, Advs.
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Ms. Suparna Srivastava, Mr.
Neelmani Pant and Mr. Rishabh
Wadhwa, Advs. for R-1/UOI.
Mr. Dhanesh Relan, Adv. for R-
2/DDA.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
O R D E R
% 09.09.2015
CM No.18952/2015 (for exemption)
1. Allowed, subject to just exception.
2. The application is disposed of.
W.P.(C) 8661/2015
3. The petitioner, claiming to be an Association of the Residents of
Houses of Sector-C, Pocket-4, Vasant Kunj, New Delhi, has filed this
th
petition impugning the Circular dated 28 October, 2014 of the respondent
No.1 Ministry of Communications & Information Technology, Government
W.P.(C) 8661/2015 Page 1 of 5
of India directing the Chief Secretaries of all the States and Union Territories
to constitute State Level Telecom Committee and District Level Telecom
Committee to effectively address public grievances relating to installation of
telecom towers. The petition also seeks a mandamus to the respondent No.1
Union of India (UOI) to make proper amendments and issue new advisory
guidelines incorporating the Recommendation No.13 of the Inter-Ministerial
Committee (IMC) report of the year 2010-2011, of imposing restrictions on
installation of mobile phone towers near high density residential areas,
schools, playgrounds and hospitals. Axiomatically, a direction is also sought
to the respondent No.2 Delhi Development Authority (DDA) to cancel the
allotment made to the respondent No.3 M/s Indus Towers Ltd. of a site
between the boundary wall of Sector-C, Pocket-4 of the Colony of Vasant
Kunj, New Delhi and Delhi Public School, Vasant Kunj, for installation of a
telecom tower.
4. The entire case of the petitioner, as aforesaid, is based on the report of
the IMC of the year 2010-2011. It is however not as if, while framing the
th
advisory guidelines and in pursuance whereto the communication dated 28
October, 2014 for constitution of State Level Telecom Committee and
District Level Telecom Committee was issued, the authorities concerned
were not conscious of the said report of the IMC. Rather, it is the case of the
petitioner itself in ground (G) that the Standing Committee on Information
Technology, which made the said guidelines, did not accept the
recommendation aforesaid of the IMC. The petitioner finds fault in, the
Standing Committee accepting some of the recommendations contained in
W.P.(C) 8661/2015 Page 2 of 5
the report of the IMC and not accepting others. It is also not as if the
Standing Committee on Information Technology, without any reason did not
accept the recommendation in the IMC report, on which the petitioner relies
upon. The Standing Committee has observed that the said recommendation
is for unfounded reasons which are not based on scientific study or facts.
5. I am of the opinion that the said matters fall in the domain of policy
making and the Courts, neither have the jurisdiction to nor where-with-all to
take a call thereon. The appropriate authority has made the policy and while
framing such policy, the report of the IMC has been duly considered. It is
not for the Court to enter into the arena of finding out, whether the policy
made by the expert body constituted, for going into the said question, is
correct or not and that too on the basis of an opinion of some persons in the
process of such decision making. It is the settled position in law (see
Surgical Electronics Vs. Union of India 60 (1995) DLT 359 (DB) and
Rajinder Kumar Khatri Vs. Delhi Development Authority
MANU/DE/4005/2011) that such comments / opinions during the decision
making process cannot form the basis of the challenge to the ultimate
decision, even if contrary to the opinion at one level in the decision making
process. Supreme Court also, in Sethi Auto Service Station Vs. Delhi
Development Authority (2009) 1 SCC 180 and in Jasbir Singh Chhabra Vs.
State of Punjab (2010) 4 SCC 192 has reiterated that favourable notings
during the decision making process cannot from the basis of a claim when
the ultimate decision making authority has decided against the claimants.
The Interministerial Committee and its recommendations are but a stage in
the making of the policy aforesaid.
W.P.(C) 8661/2015 Page 3 of 5
6. The counsel for the respondent No.1 UOI appearing on advance notice
has stated that a similar petition is pending before the Division Bench being
W.P.(C) No.5550/2015 titled Kapil Choudhary Vs. Union of India and has
th
drawn attention to the order dated 27 May, 2015 in the said petition which
takes notice of several judgments of the Kerala High Court vis. M/s. Essar
Telecom Infrastructure (P) Ltd. Vs. C.I. of Police, Angamali Police Station
MANU/KE/2780/2010 (FB), Indus Towers Ltd. Vs. The Sub Inspector of
Police MANU/KE/1308/2014 (DB) and Sudevan Vs. Mundur Grama
Panchayat MANU/KE/0839/2013, holding that mobile phone towers do not
pose any health hazard, as well as the judgment of the Rajasthan High Court
in Justice I.S. Israni (Retd.) Vs. Union of India MANU/RH/1496/2012 in
the context of mobile phone towers on hospitals, school buildings and
playgrounds.
7. I may also notice that a learned Single Judge of this Court also vide
st
order dated 31 May, 2010 in W.P.(C) No.3267/2010 titled Cellular
Operators Association of India Vs. Municipal Corporation of Delhi had
directed a Committee to be constituted to submit a report on effect if any of
mobile phone towers on public health and safety and regulating the
installation of cellular towers and antennas but which order was set aside by
th th
the Division Bench in appeals, vide order dated 4 June, 2010 / 8 July,
2010 and the final judgment in the said writ petition reported in 179 (2011)
DLT 381 also did not issue any directions in this regard.
8. This Court cannot, upon being approached by residents or by
association of residents, interfere with the works undertaken in accordance
W.P.(C) 8661/2015 Page 4 of 5
with the prevalent policy. In fact, I have asked the counsel for the petitioner
that why not all the residents of Sector-C, Pocket-4, Vasant Kunj give up the
use of cellular phones, to obviate any threat perception from the use thereof
or from the telecom towers essential to enable the use thereof. The counsel
for the petitioner has chosen not to give any reply. Citizens not wanting to
give up use of cell phones cannot approach the Court to push the towers and
antennas essential for use thereof, from their own door steps to another
person’s door step; if at all they feel that the technology is harmful for them,
all they have to do to give up the use of the same and in which case there
would also be no need for towers and antennas required to be installed for
enabling use thereof.
9. There is thus no merit in the petition. Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 09, 2015
bs..
W.P.(C) 8661/2015 Page 5 of 5