Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 24.02.2016
% Pronounced on: 26.04.2016
+ W.P.(C) 5550/2015
KAPIL CHOUDHARY AND ANR. ..... Petitioners
Through: Mr.Sushil Kr.Jain & Mr. Manish
Kumar, Advocates
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Manish Mohan, CGSC with
Mr.Shivam Chanana, Ms.Puja Mishra
& Ms.Manisha Saroha, Advocates for
R-1
Mr.Santosh Kumar Tripathi, ASC for
GNCTD./R-2 & 3
CORAM:
HON’BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (JUDGMENT)
1. The present public interest litigation is filed seeking a writ of
mandamus directing the respondents to remove the mobile towers installed
in the residential area of village Tekhand, New Delhi with immediate effect.
2. It is the contention of the petitioners that they are social workers
living in Tekhand village, Okhla Industrial Area, New Delhi which is a
village about 700 years old. It is urged that Mobile Phone Company has
installed towers in the residential area which is contrary to the policy of
respondent No.1-Union of India. As per the policy, no mobile tower can be
WP(C) 5550/2015 Page 1 of 8
installed in a residential area. It is urged that despite the same, no action has
been taken against the mobile towers. It is further stated that the buildings
being old, the constructions are not in a position to bear the load of the
towers. Stress is also laid on the fact that the presence of the towers will
cause diseases on account of radiation that is emitted. It is stated that the
people are already suffering from cancer and two persons, namely, Sh.
Kishan and Sh.Zile Singh have died of cancer disease. Based on these
submissions, the present writ petition is filed.
3. The respondent No.1-Union of India have filed its counter affidavit
pointing out that the contentions of the petitioners about there being any
radiation or any emissions which are harmful to the health of the citizens are
baseless. It is urged that many studies have been conducted on the health
hazard of radiations of mobile phone towers/networks. These studies have
been conducted under the aegis of WHO. The studies have concluded that
there is no conclusive scientific evidence of adverse health effects due to
low level of RF emission from mobile phone towers.
4. Reliance is also placed on the judgments of the High Courts of
Kerala, Madras, Punjab & Haryana, Allahabad, Delhi and Ahmedabad to
contend that similar pleas have been rejected by all these High Courts.
5. We have heard learned counsel for the parties and gone through the
record. Learned counsel for the petitioner has relied upon the judgment of
the Allahabad High Court in the case of Ram Singh Jauhari vs. Union of
India, Case No. 11275/2010 where certain observations have been made
based on the report of Prof. Girish Kumar that people residing in the vicinity
of cell towers may suffer from different diseases. Based on these
observations, the Allahabad High Court had directed the Government of
WP(C) 5550/2015 Page 2 of 8
India to constitute a committee of five members to submit a report. On the
basis of the report Government was to take necessary precautions.
6. Learned counsel appearing for the respondent has reiterated the
submissions made in the counter affidavit. He has also filed a compilation of
various judgments of different high courts where such contentions raised
have been rejected. The judgments relied upon are as follows:
(i) Dhup Singh vs. Union of India, 2014 SCC P&H 12408.
(ii) Reliance INFOCOM Ltd. vs. Chemanchery Grama
Panchayat & Ors., 2006 SCC Ker 247.
(iii) K.R.Ramaswamy @Traffic Ramaswamy vs. Union of India,
W.P.No.24976/2008, Madras High Court.
(iv) Muktipark Co-operative Society vs. Ahmedabad Municipal
Corporation, SCA No.5548 of 2014, Gujarat High Court.
(v) Ashwani Vs. State of U.P., PIL No. 40535 of 2013, Allahabad
High Court.
(vi) Resident Welfare Association vs. UOI., W.P.(C) 8661/2015,
Delhi High Court.
7. A perusal of the petition filed shows that it completely lacks material
particulars. Except making allegations of ill effects of radiations from
mobile phone towers, there is no attempt to substantiate or support the
submissions.
8. The counter affidavit, on the other hand, has placed on record detailed
facts to demonstrate that radiations from mobile phone tower are not known
to have any adverse health effect. Some of the relevant portion of the
counter-affidavit reads as follows:-
“16. … WHO has referred to approximately 25,000 studies,
conducted around the world over past 30 years, and based on an
in-depth review of scientific literature, has concluded: “current
evidence does not confirm the existence of any health
WP(C) 5550/2015 Page 3 of 8
consequences from exposure to low level electromagnetic
fields”. …
17. That with reference to Electromagnetic Radiation
emanating from celluar mobile towers, World Health
Organization (WHO) in its Fact Sheet No. 304, May 2006 on
Electromagnetic Fields and Public Health (Base Stations and
Wireless Technologies) has concluded that “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 caused
adverse health effects. From all evidence accumulated so far,
no adverse short or long term health effects have been shown to
occur from the RF Signals produced by based stations.”
9. Reference may also be had to the judgment of the Division Bench of
the Kerala High Court in the case of Reliance INFOCOM Ltd. vs.
Chemanchery Grama Panchayat & Ors., 2006 SCC Online Ker. 247: AIR
2007 Kerala 33 . That was a case in which the mobile phone company was
seeking to erect a mobile base station. The plan was approved by the
Panchayat and the petitioner was issued a building permit. However, when
the petitioner started preparation for constructing the tower, certain
segments of the local population raised objections. The Panchayat acting on
complaints received from the local residents cancelled the permit issued to
the petitioner apprehending that apart from pollution, the radiation from the
tower would cause a health hazard. The Kerala High Court noted that the
panchayat had no scientific data or relevant material to cancel the license
already granted on the ground that the installation of the tower would cause
any health hazard. Based on the same, the writ petition was allowed.
Reference may be had to the following observations of the court.
“ 2. ….. The above issue came up for consideration before a
Division Bench of the Bombay High Court in WP No. 2112 of
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2004. The Bench directed the Ministry of Health and Family
Welfare, Government of India to conduct a scientific study on
the issue. The ministry of Health and Family Welfare on the
direction of the Bombay High Court constituted a Committee
under the Chairmanship of Dr.N.K.Ganguly, DG ICMR to
evaluate the following aspects.
1. Whether it is advisable to frame and/or adopt interational
guidelines pertaining to installation of Base Stations by mobile
telephone service providers, so as to avoid any potential risk to
health and safety to public at large.
2. Explore the possibility for studying the course of action and
framing a reaserach project.
….
3. Report submitted before the Bombay High Court was made
available by Shri Santhosh Mathew, Advocate which gave us
considerable scientific insight for resolving the problem posed
before us. Petitioner has also stated that the experiments
conducted in and around BTS towers at points where the public
is likely to be exposed has proven that emission at these points
are 150,000 times below the level at which significant heating
can occur. Petitioner has also produced a chart showing a
comparison between mobile base station and other sources of
radio frequency which stated that 200 microwatts is the safe
exposure limit set by different regulatory bodies. Petitioner has
made a comparison of power density (Microwatts/sq.cm.)
between AM Radio, FM Radio, Mobile Base Station, UHF TV,
VHF TV, Paging Services etc. and submitting that radiation
from the Mobile Base Station is less compared to that of AM
Radio and FM Radio. Atomic Energy Regulatory Board also
submitted a report before the Bombay High Court in WP
No.2112 of 2004. Report states that radio frequency waves used
for mobile phones are not covered under the definition of
"radiation" as given in the Atomic Energy Act, 1962 and non
ionizing radiations do not have the capability to ionize the
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matter with which they interact. 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 people living near the base
stations on the basis that exposures are expected to be small
fractions of guidelines. Scientific data made available to the
Court would indicate that the use of mobile phone, AM Radio,
FM Radio etc. is more harmful to the human beings compared
to the power emission from the base Transcieving Stations and
that of Mobile Towers. Surveys conducted in proximity to base
stations indicate that the public is exposed to extremely low
intensity RF fields in the environment and all the evidence
indicates that they are unlikely to pose a risk to health. We may
in this connection also refer to the order of the Delhi High
Court in OS 1121/02 wherein the court opined that so far there
is neither any conclusive research nor authoritative scientific
evidence to show that the radiations emitted by such
Transmission Towers are dangerous to the health of human
beings.”
10. Reference may also be had to the judgment of the Division bench of
the Ahmadabad High Court in the case of Muktipark Co-operative Society
vs. Ahmedabad Municipal Corporation (supra) . That case was also filed in
public interest by local residents claiming that the installation of WiFi
mobile towers was in violation of the guideline issued by Union of India and
is likely to cause a potential health threat due to the emission of radio-active
waves from the said towers. The High Court relying upon the above-noted
judgment of the Kerala High Court further held as follows:-
“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
WP(C) 5550/2015 Page 6 of 8
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
Limit prescribed
Power Density
Limit prescribed
(in Mega
Hertz or
by ICNIRP (in
Watt/meter2 or
by DoT (in
Watt/meter2 or
MHz)
W/m2 )
W/m2 )
900 4.5 0.45
1800 9 0.9
2100 and
10.5 1
above
11. In the light of these facts, the writ petition was dismissed. However,
the court passed the following directions.
“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.”
12. In view of the above, it is clear that there is no scientific data
available to show that installation of mobile phone towers and the emission
of the waves by the said towers is in any way harmful for the health or
WP(C) 5550/2015 Page 7 of 8
hazardous to the health of citizens. There is no conclusive data to the said
effect. The petitioner has not been able to produce any data whatsoever
showing any such harmful effects on the health of human beings. The
petitioner has also not been able to show violation of any norms by the
respondent.
13. Regarding the judgment in the case of Ram Singh Jauhari vs. Union
of India (supra) passed by the Allahabad High Court relied upon by the
petitioners, the observations made in the said judgment are based on a report
of Prof. Girish Kumar. These were prima facie observations and the
directions were issued to constitute a committee to go into the issue. No
details are forthcoming about the outcome of the report of the committee. In
the absence of the same, in our opinion, the said directions of the Allahabad
High Court do not in any way support the case of the petitioners.
14. The writ petition being without merit is dismissed
(JAYANT NATH)
JUDGE
CHIEF JUSTICE
APRIL 26, 2016
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