Idea Mobile Communications Ltd. v. Kerala State Pollution Control Board & Ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **WEDNESDAY, THE 22[ND] DAY OF FEBRUARY 2023 / 3RD PHALGUNA, 1944** ## **WP(C) NO. 8981 OF 2007** ## **PETITIONER:** *[IDEA MOBILE COMMUNICATIONS LTD. MERCY ESTATE,M.G.ROAD,RAVIPURAM,KOCHI REPRESENTED, BY ITS AUTHORISED SIGNATORY MR.RAMACHANDRAN.] *[THE NAME OF THE PETITIONER COMPANY IS CORRECRED AND SUBSTITUTED AS "M/S. VODAFONE IDEA LTD" INSTEAD OF IDEA MOBILE COMMUNICATIONS LTD AS PER ORDER DATED 07/11/2022 IN I.A:1/22 IN WP(C) 8981/2007] BY ADVS. P.SANJAY A.PARVATHI MENON ## **RESPONDENTS:** 1 KERALA STATE POLLUTION CONTROL BOARD PATTOM P.O,THIRUVANANTHAPURAM-4, REPRESENTED BY ITS MEMBER SECRETARY. 2 THE CHAIRMAN, KERALA STATE POLLUTION CONTROL BOARD,PATTOM P.O,THIRUVANANTHAPURAM-4. 3 STATE OF KERALA REPRESENTED BY SECRETARY,HEALTH AND FAMILY AFFIRS DEPARTMENT, SECRETARIAT,TRIVANDRUM. SRI.JUSTIN JACOB, SR.GOVERNMENT PLEADER SRI.T.NAVEEN, SC, POLLUTION CONTROL BOARD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 WP(C)No.8981/2007 ## **JUDGMENT** The petitioner is a Company registered under the Companies Act with the name M/s.Idea Mobile Communications Ltd., which is engaged in providing cellular mobile telephone services under the licence granted by the Department of Telecommunications, Government of India by entering into an agreement, Ext.P1. As per the terms and conditions of the agreement, the petitioner set up the mobile telecommunication towers at various places, after obtaining requisite No Objection Certificates from the concerned Panchayats, Pollution Control Board for operating the Diesel Generators. The licence agreement from time to time was modified and entered for 20 years as evident from Ext.P2. The Company has already set up 190 mobile cellular communication towers at different places. In order to expand the coverage and long distance connectivity, was in the process of setting up additional mobile cellular telecommunication towers. All the aforementioned towers were installed with back up diesel generator sets, which do not fall within the definition of 'industry' or the process to be covered by the provisions of the Environment (Protection) Act, 1986 and Air (Prevention and Control of Pollution) Act, 1981. Rule 133 (3) of the 3 WP(C)No.8981/2007 Kerala Municipality Building Rules, 1999 permitted for installation of the diesel generators, if they are covered with insulated sound proof cabin. All the DG sets installed have sound proof cabins and are included in item Nos.94, 95 and 96 of Schedule-I of the Environment Protection Rules. It is the manufacturer/detainer who is required to obtain permissions conforming to pollution standards. 2. The petitioner is aggrieved of the communication, Ext.P11, dated 19.05.2006 of the Kerala State Pollution Control Board. The cellular services installed is being used without taking the permission from the concerned authorities established under the Air (Prevention and Control of Pollution) Act, 1981 and therefore called upon the petitioner to supply information with regard to the tower, generator, accessories and thereafter the consent fee of each district shall be decided. The aforementioned letter also contained that the number of cell phone towers also emanate electro magnetic radiation with attached generators which cause sound and gases in the emission. It is contended that the action of the respondents in calling for the aforementioned information is wholly incorrect as the electro magnetic waves are classified as non ionising waves, which do not fall within the definition of radio active substance. It is already settled by the 4 WP(C)No.8981/2007 Delhi High Court, Punjab & Haryana High Court and this Court that the cellular tower do not emit any electro magnetic waves or do not cause dangerous situation to the environment or health problem in the locality. In support of the contentions, relies on the decisions in **Kapil Choudhary v. Union of India** [2016 SCC OnLine Del 2558: (2016) 231 DLT 158 (DB)], **Mohalla Sudhar Committee v. State of Punjab and others** [2017 SCC Online P& H 334 : [(2017) 3 RCR (Civil) 308]. 3. On the other hand, learned counsel for the respondents objected the aforementioned prayer by submitting that impugned communication only for providing of the information and no express decision was taken. On submission of the document, the Board would be at liberty to decide the charges of the consent fee for each district and also to prevent the misuse of the tower without obtaining necessary permission, though the petitioner is stated to have taken the no objection from the Air Pollution Control Board. 4. I have heard the learned counsel for the parties and appraised the paper book. 5. It is the matter of record that the petitioner has already obtained all the permissions from the competent authorities by entering into agreements Exts.P1 and P2 ie., Automatic Research 5 WP(C)No.8981/2007 Association of India, Air Pollution Control Board, report of Environmental Engineer and from the Municipalities. Apprehension with regard to the emission of electromagnetic rays is only a figment of imagination in view of the judgments referred to above. 6. Paragraphs 8 to 13 of _**Kapil Choudhary** 's_ case reads thus: _“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 indepth review of scientific literature, has concluded: "current evidence does not confirm the existence of any health 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_ 6 WP(C)No.8981/2007 _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 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_ 7 WP(C)No.8981/2007 _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 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_ 8 WP(C)No.8981/2007 _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 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<br>(in Mega<br>Hertz or<br>MHz)|Power Density<br>Limit<br>prescribed by<br>ICNIRP<br>(in<br>watt/meter2<br>or W/m2)|Power Density<br>Limit<br>prescribed by<br>DoT<br>(in<br>Watt/meter2 or<br>W/m2| |---|---|---| |900|4.5|0.45| |1800|9|0.9| |2100 and<br>above|10.5|1| _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_ 9 WP(C)No.8981/2007 _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 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.”_ ## 7. Paragraph 6 of **Mohalla Sudhar Committee** 's case reads thus: _“I have heard learned counsel for the parties and appraised the paper book and of the view that there is no force and merit in the submission of Mr. Inderjeet Sharma, Advocate for the petitioner. Identical occasion arose before this Court in the judgment cited (Supra), wherein this Court in para No.17 of the judgment, while relying upon ratio decidendi culled out by Kerala High Court in a case of Essar Telecom In fracture (P) Ltd. Vs. The Circle Inspector of Police and others, 2008 (3) KLJ 672 held that electromagnetic field up to 300 G.Hz will not have any adverse health effect on the person on exposure. The permission has been granted by Municipal Corporation after taking into consideration the advisory guidelines (Annexure R-_ 10 WP(C)No.8981/2007 _3/1) and also guidelines issued by the State of Punjab as Annexure R-3/2 which has not been disputed or denied by the petitioner, in essence, guidelines are still holding its feet. It is prerogative of the Municipal Corporation to grant licence after examining the guidelines. No third party can be permitted to challenge the same. I have also seen the site plan. The tower is being erected on the commercial area i.e. above the shop.”_ 8. The order under challenge is wholly unjustified. In view of what has been noticed by the judgments referred to above, I am of the view that the allegations of emission of electric magnetic rays and hazardous to health is without any basis or any materials much less research. The said findings are quashed. The petitioner is at liberty to provide all the consents taken for running the mobile towers as and when Pollution Control Board sends a fresh letter without referring to the emission of the radioactive substance. Writ Petition stands allowed. Sd/- **AMIT RAWAL JUDGE** ## **csl** 11 WP(C)No.8981/2007 ## **APPENDIX OF WP(C) 8981/2007** PETITIONER'S EXHIBITS Exhibit P1 COPY OF THE LICENCE AGREEMENT NO.842/54(B)/95-VAS DATED 12.12.1995 - Exhibit P2 MODIFIED LICENCE AGREEMENT DT.29.1.2001 Exhibit P3 A COPY OF THE NOTIFICATION ITEM 94 VIDE GSR371/E DATED 17.5.2002 Exhibit P4 A COPY OF REGULATION GSR-520-448(E)DT.1.7.03 - Exhibit P5 A COPY OF MODIFIED REGULATION GSR-448(E) DT.12.7.2004 - Exhibit P6 COPY OF THE CERTIFICATE OF COMPLIANCE ISSUED BY THE AUTOMATIC RESEARCH ASSOCIATION OF INDIA - Exhibit P7 COPY OF PHOTOGRAPHS OF DG SETS - Exhibit P8 COPY OF GUIDELINES ISSUED BY THE CENTRAL POLLUTION CONTROL BOARD - Exhibit P9 COPY OF THE GUIDELINES ISSUED BY THE CENTRAL POLLUTION CONTROL BOARD - Exhibit P10 COPY OF CIRCULAR NO.PCB/HO/7AMS/14/2005 BY STATE POLLUTION CONTROL BOARD - Exhibit P11 A COPY OF THE LETTER DATED 19.5.06 ISSUED BY THE 1ST RESPONDENT - Exhibit P12 COPY OF THE REPLY LETTER DATED 19.5.06 BY THE PETITIONER - Exhibit P13 A COPY OF CIRCULAR DATED 20.6.06 Exhibit P14 COPY OF THE REPORT DATED 29.6.06 BY THE ENVIRONMENTAL ENGINEER OF THE KPCB, KOZHIKODE Exhibit P15 COPY OF LETTER DATED 6.11.06 ISSUED BY THE 1ST RESPONDENT WP(C)No.8981/2007 12 Exhibit P16 COPY OF THE LETTER DATED 14.12.06 Exhibit P17 COPY OF CIRCULAR NO.PCB/HO/GEN/CON/1/06 DATED 9.1.07