Bombay High Court: The Division Bench of M. S. Sonak and Bharat P. Deshpande, JJ., quashed the impugned order of the State Commissioner, For Persons with disability directing the Indus Towers Ltd. to relocate its mobile tower holding it dangerous for children with disabilities. The Court held,
“We are mindful of the health issues of special children studying in the school run by the complainant and their need to have special care and protection. However, we cannot ignore the rights of the petitioner to install such mobile tower by complying with all the rules and regulations.”
Whether the electro-magnetic frequency (EMF) radiation emitting from a mobile connection tower would cause irreparable harm to the children with disabilities such as intellectual disability, mental illness, autism spectrum disorder, cerebral palsy, muscular dystrophy, chronic neurological condition, specific learning disabilities and other disabilities, is the moot question to be considered in this petition.
The petitioner, Indus Towers Ltd., a registered infrastructure company, had applied for permission to erect a mobile tower under single window clearance as established by Goa Telecom Infrastructure Policy, 2020. It was the case of the petitioner that after due compliance with the requirements of Policy of 2020 and after obtaining permission for the installation of the mobile tower, it started initial piling work for the foundation and installation, thereby investing huge amounts.
Meanwhile, Aastha Anand Niketan, a special school owned by a Society (hereinafter “the complainant”) lodged a complaint with the State Commissioner for Persons with Disability (Commissioner) objecting to the erection of tower on the premise that such tower is within a distance of 100mts from the Special Children School and radiation emitting from such mobile tower would cause harm to such children.
Grievances of the Petitioner
The petitioner contended that the Commissioner, without giving any opportunity of personal hearing to the petitioner had passed the impugned order observing that erection of mobile tower near the said school would certainly affect the children/students who are having inherent low immunity and are prone to various ailments thereby causing harm to special students, and thereby directed the petitioner to relocate the mobile tower and submit compliance. The petitioner claimed that the impugned order is erroneous on the following grounds:
The radiation emitted from mobile towers is not at all a health hazard to any human being or even to any other living creature on this earth since such radiation is so minimal that it will not even create any harm to any tissue in the human body.
The Commissioner has no jurisdiction to entertain or decide the complaint pertaining to EMF in cellular network and such grievances are required to be examined only by the DoT that too only after the certification of Telecom Infrastructure Resources And Monitoring Cells (TERM Cells).
Analysis and Findings
The Ministry of Telecommunications (DoT) in the exercise of the powers under the Indian Telegraph Act, 1885 issued rules called Indian Telegraph Right of Way Rules, 2016 in order to regulate the establishment and maintenance of telecom infrastructure, etc. Rule 2 of Rules 2016 defines appropriate authority which can seek the removal of underground or overground telegraph infrastructure.
The Court noted that the Commissioner working under Rights of Persons with Disability Act, 2016 is certainly not covered under the definition of ‘authority’ found in Rule 2(b) quoted above. Hence, the Court held that the Commissioner had acted outside his jurisdiction while passing the impugned order.
Considering that no specific material was produced by complainant to establish that electro-magnetic radiations are having adverse effect on the special children studying in the said school, the Court opined that the Commissioner had acted in clear violation of principles of natural justice. The Court noted that there were absolutely no reasons to issue such directions since there was no justification for accepting the contentions of the complainant to come to the conclusion that radiations would harm the special children who are studying in the said school.
Relying on Vijay Verma v. State of H.P., 2015 SCC OnLine HP 2722, the Court held that there are no ill effects of the radiations emitting from the mobile towers on human beings and there was no reason or justification for deviating from such findings when no scientific data was placed by the complainant to prove the contrary.
The Court noticed the following grounds to decide the matter in favour of the petitioner:
The petitioner has fully complied with all the rules and regulations and invested huge amounts for erection of such tower.
The contention of the petitioner that location of such tower is at a strategic location and same cannot be moved to other place, needs to be accepted because receiving and transmitting radiation is a technical aspect and the same is related to connectivity.
The authority concerned had found is suitable to grant permission to the petitioner to erect the said tower at the disputed location.
It is clear from the Policy 2020 issued by the Goa Government and the Rules of 2016 that if the radiations are beyond the limit, the concerned authority is empowered the o direct petitioner to relocate the said tower or even to stop operating it.
Even if the petitioner is allowed to operate the said mobile tower the powers of certain authority can be exercised if it is found that the radiations emitting from such tower exceed the limit.
Hence, the Court held that the impugned order was clearly without any authority and violative of principles of natural justice and, therefore, the impugned orders were quashed and set aside.
However, the Court directed that the petitioner has to establish that all General Public areas around the tower will be within safe Electro-magnetic Radiation (EMR) exposure limit as per peak traffic measurement after the antennas start radiating.
[Indus Towers Ltd. v. State of Goa, 2022 SCC OnLine Bom 6863, decided on 14-12-2022]
Advocates who appeared in this case :
For the Petitioner: Anil Anturkar, Senior Advocate with Nikhil Vaze and Sugandh Deshmukh, Advocates;
For the State of Goa: Deep D. Shirodkar, AGA;
For the State Commissioner, For Persons with disability: Maria S. J. Correia, Advocate;
For Respondents 4, 5(A) to 5(F): Akhil Parrikar and Sowmya Drago, Advocate.
*Kamini Sharma, Editorial Assistant has put this report together.