Madhya Chetriya Samajik Aur Kanooni Welfare Society vs Asnani Builders

The Madhya Chetriya Samajik Aur Kanooni Welfare Society has filed this Original Application in the interest of environmental protection, public health, and enforcement of environmental norms, seeking urgent intervention of this Tribunal against the clandestine installation and operation of a mobile/telecom tower resulting in continuous environmental hazard due to electromagnetic radiation (EMR) and violation of in a densely populated established environmental residentialcommercial area at Arvind Vihar, Bag Mugalia, Bhopal. The tower is situated in a highly sensitive zone, within approximately 200 meters of various schools including Mount School, Silver Bells School, Vatsalya Public School, Kidzee Preschool, Little World Play School, Sharda Vidya Mandir etc. and within 100-400 meters of multiple hospitals including Mount Hospital, Ojas Hospital, Navjeevan Hospital, Vibrant Multi Speciality Hospital, Urban Primary Health Centre, Gulabi Nagar, Payal Diagnostic Centre etc. thereby affecting vulnerable groups including 1

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children, patients, elderly persons and pregnant women. The Respondents, in complete disregard of statutory safeguards and public safety, have installed the said tower without transparency, and carried out without obtaining consent of occupants, without disclosure of statutory approvals, and without compliance with EMR (Electromagnetic Radiation) safety norms.

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It is further argued that the Respondent No.1 and Respondent No.2, in a clandestine, non-transparent and unauthorized manner, entered into a commercial arrangement for installation of a telecom/mobile tower on the rooftop of the said building, without any transparent disclosure to residents, occupants, shop owners and stakeholders and without placing statutory compliance records in public domain. The said installation has been carried out without recognizing the scientific uncertainties surrounding long term effects of electromagnetic radiation (EMR) and without demonstrating compliance with applicable regulatory safeguards, environmental safety norms, and principles of natural justice, as no prior consultation or transparent public disclosure was undertaken, despite full knowledge that such installation of tower carries potential health, environmental and economic risk.

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It is further argued that the tower is installed in a highly sensitive zone being within a distance of less than 200 metres from Mount Carmel school (ICSE 10+2 institution), Silver Bells School, Vatsalya Public School, Kidzee Preschool, Little World Play School, Sharda Vidya Mandir a school catering to young children, Inspire Coaching Institute, Teach Tech coaching, Study Zone coaching, Dipole Institute where students spend prolonged hours preparing for competitive examinations and Mahesh Boys Hostel - housing young students. The table showing

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distance from the clandestine tower to various school, coaching, hostel is given below:-

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It is further submitted that the installation site is located in close proximity to Mount Hospital, Ojas Hospital, Navjeevan Hospital, Vibrant Multi Speciality Hospital, Urban Primary Health Centre, Gulabi Nagar, Payal Diagnostic Centre including facilities for pregnancy-related diagnostics and surrounded by various densely populated residential colonies including Arvind Vihar colony a well-known residential locality predominantly inhabited by elderly residents and other residential colonies and societies comprising vulnerable groups including children, pregnant women and elderly persons with weak immunity. The presence of a telecom tower in such proximity to schools and hospitals exposes vulnerable categories of persons, including Children with developing neurological systems, Patients undergoing treatment, Pregnant women, Elderly persons to continuous and unregulated EMR exposure, thereby

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raising serious concerns relating to public health and environmental safety, particularly in relation to vulnerable groups.

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The learned Counsel for the Applicant has taken reliance of the order of the Hon’ble Supreme Court of India in Cellular Operators Association of India Vs. I.S. Israni [2015 SCC 13 663, 2012 SCC OnLine SC 1080], and submitted that there is a need for regular EMR monitoring, precautionary approach and regulatory control over installation in sensitive zones.

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The reliefs sought in the present Original Application are as follows:-

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“a) Pass an ex-parte ad-interim order directing immediate stay of operation of the telecom/mobile tower installed at Landmark Commercial Complex, Arvind Vihar, Bag Mugalia, Bhopal;

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b) Constitute an independent expert committee (such as NEERI/IIT or equivalent authority) to conduct a detailed inspection of the site and submit a report regarding EMR radiation levels, Compliance with environmental and safety norms and its impact on surrounding population;

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c) Direct the Respondents to produce all statutory approvals, permissions, EMR audit reports, and compliance certificates before this Hon'ble Tribunal; and

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d) Direct immediate EMR measurement through authorized agency under DoT norms within a time-bound period (7-15 days) and submission of report before this Hon'ble Tribunal;

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All forms of life on earth have been living amidst radiation through the ages. Radiation is present everywhere. All living beings are exposed to the Sun, which is the largest radiation source. Many commonly known sources of radiation with advancement of technology include radio, transistor, television, microwave oven, mobile handset, Mobile Towers

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and many more. The Radio Frequency (RF) energy is a non-ionizing radiation like radiation from visible light, infra-red radiation, and other 4

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forms of electromagnetic radiation with relatively low frequencies. Cell phone is a very, very low level of radio frequency energy. The type of energy emitted is non-ionizing means it does not cause damage to chemical bonds or DNA. Mobile Tower is a triangular/cone shaped metal structure which is more than nine meter in height on which 3 or more antennas are fixed, the structural height may depend on whether it is fixed on land or on a building. Height of the Ground based towers varies from 30-200 meters however most of the towers are of 40 meters and roof-top towers vary from 9-30 meters. Mobile Tower Antennas are the source of radiation in a mobile tower. However, a telecom infrastructure consists of electronic (active) and non-electronic infrastructure:

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➢ Electronic infrastructure includes base tower station, microwave radio equipment, switches, antennas, transceivers for signal processing and transmission.

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➢ Non-electronic infrastructure includes tower, shelter, airconditioning equipment, diesel electric generator, battery, electrical supply, technical premises.

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For a good quality wireless communication, Mobile Tower Base Stations (MTBS) are an inevitable part of the telecom infrastructure system.

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The mobile phone operators divide a region in large number of cells, and each cell is divided into number of sectors. The base stations are normally configured to transmit different signals into each of these sectors. In general, there may be three sectors with equal angular coverage of 120 degrees in the horizontal direction as this is a convenient way to divide a hexagonal cell. If number of users is distributed unevenly in the surrounding area, then the sectors may be uneven. These base stations are normally connected to directional antennas that are

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mounted on the roofs of buildings or on free-standing masts. The antennas may have electrical or mechanical down-tilt, so that the signals are directed towards ground level. Mobile Tower Antennas are the source of radiation in a mobile tower. Mobile Tower is a triangular / cone shaped metal structure on which 3 or more antennas are fixed radiating electromagnetic power, whereas Base Transreceiver Stations (BTSs) are established at suitable locations, as per their Radio Frequency (RF) Network Planning for proper coverage of the area and for meeting capacity requirements. BTS also contain a number of radio transmitter and each of these has the same maximum output power. The outputs from the individual transmitters are then combined and fed via cables to the base station antenna, which is mounted at the top of a mast (or other suitable structure).

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With the growing population of India, the wireless communication density and its network has escalated at a rapid pace over the past few years. The statistics reveal that there are 867.8 million wireless subscribers in India at the end of March 2013 which account for nearly 96% of the total telecom subscriptions. According to TRAI currently there are 5 lakh telecom towers and it is estimated that around One lakh additional towers would be required to cater the need of ONE billion mobile telephones by 2014. There are 12-14 telecom service providers catering to total projected wireless subscriber base all the over the country covering both GSM (Global System for Mobile Communications) and CDMA (Code Division Multiple Access) technologies.

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As per the studies conducted so far, no conclusive relationship has been established to relate radiation from mobile towers exclusively with health

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hazards, however, as a precautionary measure various standards for radiation from mobile towers have been formulated by Department of

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Telecom (DoT), Government of India in India, based on International Commission on Non-Ionizing Radiation Protection (ICNIRP) guidelines (issued by Germany & adopted by UK, Australia, Malaysia, India and Korea). Consequent to the revision of EMF radiation norms by Department of Telecommunications (DoT), Indian Standards are now 10 times more stringent than many countries (like USA, Canada, Japan and Australia) in the world which follow ICNIRP guidelines. A number of countries have specified their own radiation levels keeping in mind the environmental and physiological factors. The International Standards are provided at Table-1 as below:-

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All telecom service providers (TSPs) / mobile service providers (MSPs) are governed by Terms & Condition of Licenses issued by Department of Telecom and they should ensure that radiation from mobile towers is within the prescribed limit. For this, all TSPs are bound to submit the self-compliance certificate of all the mobile tower installations on biannual basis to ensure radiations are within stipulated limits. Further,

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on a sample survey basis, Telecom Enforcement Resource & Monitoring TERM Cell (field unit of DoT) also tests upto 10% of the total BTS's in their jurisdiction per year as per DOT guidelines, this includes testing the radiation from all the neighboring BTSs also. For non-compliant site i.e. where radiation exceeds the limit, there is provision for imposition of penalty. For non-compliance of EMF standards, a penalty of Rs. 5 lakh is liable to be levied per BTS per service provider.

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As per the 'Guidelines for issue of Clearance for installation of Mobile Towers' published by Department of Telecommunications (DoT), 'Telecom installations are lifeline installations and a critical infrastructure in mobile communication. In order to avoid disruption in mobile communication, an essential service, sealing of BTS towers/disconnection of electricity may not be resorted without the consent of the respective TERM cell of DoT. In view of the above the regulatory agencies (CPCB & SPCBs) have no authority to dismantle any Mobile Towers/disconnect the telecommunication service.

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In view of above and as the number of public complaints on aesthetics,

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health issues concerning radiation hazards and safety of Mobile Tower Base Stations (MTBS) (frequently referred to as telecom towers), this section summarises legal aspects on the subject of radiation.

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1. The Indian Wireless Act, 1933: "wireless communication means any transmission, omission or reception of signs, signals, writing, images and sounds, or intelligence of any nature by means of electricity, magnetism, or Radio waves or Hertzian waves, without the use of wires or other continuous electrical conductors between the transmitting and the receiving apparatus. Explanation:- Radio waves or Hertzian waves means electromagnetic waves of frequencies lower than 3,000 gigacycles per second propagated in space without artificial guide"

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2. However, under The Indian Telegraph Act, 1885 it is mentioned that

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" 'telegraph' means any appliance, instrument, material or apparatus

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used or capable of use for transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, radio waves or Hertzian waves, galvanic, electric or magnetic means."

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3. Under The Telecom Regulatory Authority of India Act, 1997, it is mentioned that 'telecommunication service' means service of any description (including electronic mail, voice mail, data services, audio text services, video text services, radio paging and cellular mobile telephone services) which is made available to users by means of any transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, radio, visual or other electromagnetic means but shall not include broadcasting services."

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As per the studies conducted by MoEF on radiation from Mobile Tower Base Station, no conclusion can be arrived at to ascertain that radiation from mobile tower is exclusively responsible for health hazards. The impact of Mobile Tower (MT) antenna radiations on the environment has been drawing constant attention due to increasing public concern on radiation from mobile towers installations particularly in urban areas which are subjected to various environmental impacts due to varying lifestyles influenced by ex. Noise from TV/ music systems etc, vehicular traffic, dwelling units are in close proximity, activities in the nearby vicinity etc. Several media reports, public complaints besides RTI and court cases are also being forwarded to Central Pollution Control Board (CPCB), State Pollution Control Board (SPCB) / Pollution Control Committees (PCCs) on installations of MTBS. The following are salient points that highlight the role of regulatory agencies in the area of installations of Mobile Tower Base Stations (MTBS):-

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“1. Under The Air (Prevention and Control of Pollution) Act, 1981 and Environment (Protection) Act, 1986 'air pollutant' is defined as: any solid, liquid or gaseous substance [(including noise)] present in the atmosphere in such concentration as may be or tend to be injurious to

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human beings or other living creatures or plants or property or environment'

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Note: 'radiations' is excluded from the above definition that includes Electro Magnetic Radiation (EMR) emitted from mobile tower, a non-air pollutant."

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2. 'No person shall, without the previous consent of the State Board, establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or an extension or addition thereto' as per section 25/26 of the Water (Prevention & Control of Pollution) Act, 1974 and/or under section 21/22 of the Air (Prevention & Control of Pollution) Act.

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3. For the user end of MTBS, the user has to seek consent from the concerned SPCBs / PCCs for installation of the DG sets which is a source of power supply. The regulatory agency ensures that the DG sets functions as per approved guidelines with respect to emission & noise.

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4. The Noise Pollution (Regulation & Control) Rules, 2000 states that 'Whereas increasing ambient noise levels in public places from various sources inter-alia, industrial activity, construction activity, (fire crackers, sound producing instruments), generator sets, loud speakers, public address systems, music systems, vehicular horns and other mechanical devices have deleterious effect on human health & psychological well being of the people, it is considered necessary to regulate & control of noise producing & generating sources with the objective of maintaining the ambient air quality standards in respect of NOISE'.

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a) Noise is an 'air pollutant' and is covered under the E (P) Act, 1986 and under Noise Rules 2000

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b) As per guidelines under Schedule I, Environment (Protection) Act 1986 for every DG set(upto 800 KW), the following abatement measures applicable to the manufacturer's within Indian territory until & unless it is exempted otherwise :

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Abatement for DG noise: mandatory as per GSR 371 (E) dated 17th May 2002 (Schedule 1, Sl #94)

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Abatement of Emissions: mandatory as per GSR 371 (E) dated 17th May 2002 (Schedule I, SI #95)

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All living beings are exposed to the Sun, which is the largest radiation source. Few other sources of radiation include radio, transistor, television, microwave oven, mobile handset, Mobile Towers and many more. The Radio Frequency (RF) energy is, therefore, a non-ionizing radiation like radiation from visible light, infra-red radiation, and other forms of electromagnetic radiation with relatively low frequencies. The intensity of the radiofrequency radiation from base stations are less than one thousandth of those from mobile phones. The output power of mobile phones is less than 1 watt (typically is in the range of 0.2 to 0.6 watts) which is far lower than the emission levels that emanate from the microwave of the radio.

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An 'Expert Committee to study the possible impacts of Communication

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Towers on Wildlife including Birds and Bees' was constituted by the Ministry of Environment & Forests, Government of India on 30th August 2010. On the basis of review of the available scientific information by the Expert Committee, the Report indicates that the Electro-Magnetic Radiations (EMR) interfere with the biological systems besides impact on human beings has also been reported. However, the issue of direct concern to Pollution Control Boards is noise/air emissions from the power generator sets attached to mobile towers for which the provision is made under Environment Protection Act, 1986. In view of above, following are the limited provisions under Pollution Control Acts with reference to emissions and noise of DG sets attached to Mobile Tower;

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“a) Under The Air (Prevention and Control of Pollution) Act, 1981 ' air pollutant' means 'any solid, liquid or gaseous substance [(including noise)] present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment (Note: This clearly shows that Radiation is not covered under the act and is not a pollutant)

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b) Under Environment (Protection) Act, 1986 'environment' includes water, air and land and the inter-relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property;

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c) As per section 25/26 of the Water (Prevention & Control of Pollution) Act, 1974 and /or under section 21/22 of the Air (Prevention & Control of Pollution) Act, 'No person shall, without the previous consent of the State Board, establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or an extension or addition thereto'

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d) The Noise Pollution (Regulation & Control) Rules, 2000 'Whereas increasing ambient noise levels in public places from various sources inter-alia, industrial activity, construction activity, (fire crackers, sound producing instruments ), generator sets, loud speakers, public address systems, music systems, vehicular horns and other mechanical devices have deleterious effect on human health & psychological well being of the people, it is considered necessary to regulate & control of noise producing & generating sources with the objective of maintaining the ambient air quality standards in respect of NOISE'.

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In India, Mobile Tower Radiation testing and monitoring is regulated by Telecom Enforcement Resource & Monitoring (TERM) cell of Department of Telecommunications (Ministry of Communications & Information Technology). Similarly, the mobile tower radiation control is governed by telecom regulatory authorities in other countries like Srilanka, US, UK, China etc. As per legal provisions quoted above, radiation from Mobile Towers & Phones are covered under:

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a) Indian Wireless Telegraph Act, 1933 (Act No XVII)

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b) The Indian Telegraph Act, 1885

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c) The Telecom Regulatory Authority of India Act, 1997

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However, none of the Acts cover the regulation of health impacts of radiation on living beings. Radiation sources are varied in number like Mobile Tower, wireless phones, computers, laptops, TV towers, FM 12

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towers, AM towers, microwave ovens etc., however radiation emission from mobile towers are huge due to its dense installations and unscientific proliferation.

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The matter was considered in Biju K. Balan Vs. State of Maharashtra & Three Ors.: AIR OnLine 2019 BOM 43, 2019 (2) ABR 251, (2019) 5 MAH LJ 436, (2019) 6 ALLMR 34, the Hon’ble Court has considered the Regulatory Mechanism, put in place by the Government of India, which is as under :-

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"(a) A telecom Service Provider, like RJIL, is bound to ensure that a Cell Phone Tower constructed by it. Whether at the ground level or on a building, has to emit radiation which is within the aforesaid radiation norms prescribed by DOT and has to ensure compliance of the various provisions of the Test Procedure Guidelines and DOT Advisory Guidelines.

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(b) Within a period of 15 days from the date of start of radiation, for testing purpose, from the Cell Phone Tower, the Telecom Service Provider has to furnish a Survey Certificate establishing / certifying that the radiation from the Cell Phone Tower is within the aforesaid norms prescribed by DOT.

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(c) The Telecom Service Provider can start the commercial operation of the Cell Phone Tower only after furnishing such a Self Certificate.

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(d) Further, a fresh Self Certificate has to be issued by the Telecom Service Provider after every 2 years, and, in addition, at the time of upgradation of the site.

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(e) The TERM Cell of DOT has been given the power to verify and audit any Cell Phone Tower for the purpose of ensuring that the radiation therefrom is within the radiation norms prescribed by DOT.”

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There is no conclusive evidence which suggests adverse health effects on account of exposure to electro-magnetic filed radiation of TCS/BS and Equipments for Telecommunication Network. Respondent No.3 has also relied on various judicial pronouncements wherein fears of ill effects of electro-magnetic radiation on account of TCS/BS and installation of

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Equipments for Telecommunication Network have been declared to be unfounded.

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The matter was also considered by the Allahabad High Court in Ram Singh Jauhri Vs. Union of India & Ors., and the Hon’ble Court has not accepted the proposition that the radiation emitting from the TCS/BS and Equipments for Telecommunication Network has ill effects on the health of human beings.

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It was urged that the human life cannot be placed in peril when there is a body of opinion which indicates electro-magnetic radiation is harmful to human life and well- being. It was submitted that the fact that it has not been conclusively proved that the electro-magnetic radiation emanating from TCS/BS and Equipments for Telecommunication Network is harmful to human beings, plants and animals is not decisive. On account of the existence of material which alludes to the possibility of ill effects of electro-magnetic radiation for human beings, plants and animals, on the touchstone of "precautionary principle", it is necessary to address the situation by denying the permission to erect TCS/BS and for installation of Equipments for Telecommunication Network, the potential environmental hazard.

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It is further argued that the apprehensions that the electro-magnetic radiation emanating from TCS/BS and Equipments for Telecommunication Network has deleterious effect on human health has been shown to be unfounded. There is a regulatory regime which prescribes stringent standard for maintaining the radiation at 1/10th of the International Standard. The regulatory regime also prescribes the procedure for installation and even testing of the installation for the possible breach of the norms, which entails huge penalty. Various High Courts in the country have repeatedly negatived the challenge (to the

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installation of TCS/BS and Equipments for Telecommunication Network) based on unjustified and unfounded apprehensions. Thus, unsubstantiated claims cannot be the basis for prohibiting an otherwise legitimate activity.

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A reference in this context can be made to the judgment of the Supreme Court in case of Vellore Citizens' Welfare Forum Vs. Union of India , wherein the precautionary principle was expounded in the following words :-

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“....................The "Precautionary Principle" - in the context of the municipal law - means:-

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(i) Environment measures - by the State Government and the statutory Authorities must anticipate, prevent' and attack the causes of environmental degradation.

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(ii) Where there are threats of serious and irreversible damage lack of scientific certainly should not be used as the reason for postponing, measures to prevent environmental depredation. (iii) The "Onus of proof" is on the actor or the developer/industrial to show that his action is environmentally benign."

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In the aforesaid case, the Apex Court tersely observed that where there are threats of serious and irreparable damage, lack of scientific certainty cannot be used as a reason for postponing measures to prevent environmental degradation. This problem of lack of scientific certainty and the uncertain nature of the scientific opinion, which the Court dealing with environmental issues often faces, was elaborately considered by the Supreme Court in the case of A. P. Pollution Control Board Vs. Prof. M. V. Nayudu (Retd.) & Ors . and the concept of 'Special Burden of Proof in Environmental cases' was expounded, after referring to the judgment of the Supreme Court in Vellore Citizens' Welfare Forum (Supra). The observations in paragraph No.36, 37 and 38 are instructive in nature. They read as under :-

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"36 We shall next elaborate the new concept of burden of proof referred to in the Vellore case at p.658 (1996 (5) SCC 647). In that case, Kuldip Singh, J. stated as follows:

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"(iii) "The onus of proof' is on the actor or the developer/industralist to show that his action is environmentally benign."

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The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment.

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The learned counsel for the Petitioners/Applicant also invited our attention to the "analysis of the result of Literature Survey" referred to in the "Report on Possible Impacts of Communication Towers on Wildlife including Birds and Bees", which reads as under :-

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"An analysis of Results of Literature Survey: After careful screening that involved deletion of duplicate records and addition of new references, the 1080 references initially complied for the analysis of literature (which formed the base for our overview) were reduced to 919 references. These final 919 study reports are used here for the present final analysis.

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The studies were broadly classified based on the subject organisms into four categories- Birds, Bees, Other Animals (including wildlife) and humans. Based on the study's findings regarding the impart of EMFs on the subject, each category was further subdivided into three groups - Impact, No Impact or Neutral/Inconclusive, as given in table 3 below. As noted below, majority of the studies reported negative impacts by EMFS.” ................ ............. ............

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On the strength of the aforesaid reports, it was urged that the adverse effects of electro-magnetic radiation cannot be brushed aside as mere misplaced apprehensions. There is an element of clear and present

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danger. In these circumstances, on the basis of "precautionary principle", the possible health hazards and risk to the lives of numerous persons, the installation of the TCS/BS and Equipments for Telecommunication Network in densely populated human habitation is required to be prohibited, urged the learned counsel for the petitioners.

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The Allahabad High Court, in the aforesaid case of Smt. Asha Mishra Vs. State of U.P., had considered the question of restraining of the installation of mobile towers and 4G Base Transmission Stations (BTS's) on the identical ground of perceived ill effects of the electro-magnetic radiation generated therefrom. In the said case, the Allahabad High Court considered a report of 13 Member Expert Committee on the various issues highlighted in the report of Professor Girish Kumar. After adverting to the issues highlighted by Professor Girish Kumar and the remarks/comments thereon of the Expert Committee and its conclusion to the effect that there was no scientific evidence which may justify the perception of electro-magnetic radiation adversely affecting human health or well-being, the Allahabad High Court negatived the challenge based on the report of Professor Girish Kumar.

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The Allahabad High Court also considered the aforesaid report of the Parliamentary Standing Committee and the replies by the Government thereto and ultimately came to the conclusion that all the Experts have unanimously voiced therein that the present body of scientific research does not justify the threat to health and life, as alleged, on account of waves of electro-magnetic radiation emanating from the Equipments for Telecommunication Network. Consequently, Allahabad High Court ruled that as of date, there is no conclusive material or scientific study which may justify or be read as conclusive proof of the of the canvassed ill

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effects of EMF radiation on human health. However, the Court issued further directions to ensure strict adherence to the standards fixed.

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The issue cannot be tested on the numerical strength of the reports without examining the nature of the scientific material and findings therein. It would be too simplistic way to deal with the issue. Unfounded and unsubstantiated claims do not command scientific weight. The mere fact that in majority of studies adverted to in the aforesaid Report some or other impact of the electro-magnetic waves was found on humans does not justify the conclusion that the electro-magnetic radiation emanating from TCS/BS has adverse and ill effects on human health and wellbeing.

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The Parliamentary Standing Committee on the possible threat of electro-

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magnetic radiation has also considered the matter:-

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“.............. (ii) In May 2006, the World Health Organization issued a Fact-Sheet wherein it was, inter-alia, observed 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 cause adverse impact on the health of the human beings.

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(iii) In the year-2008, the Government of India adopted the restrictions and limits recommended by the ICNIRP guidelines.

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(iv) Vide letter dated 4th November 2008, the DOT modified the terms of license agreement.

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(v) On 8th April 2008, the DOT directed all licensees to comply with prescribed limits/levels and also to issue self certification in respect of Base Stations It was also directed to limit the radiation from the Cell Phone Towers to 1/10th of the limits prescribed by the ICNIRP guidelines.

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(vi) An Inter-Ministerial Committee was constituted to examine the effect of electro-magnetic radiation from the BTS and Mobile Phones, which submitted its report, inter- alia, recommending that the RF

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Exposure limits in densely populated area may be lowered to 1/10th of the existing level.

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(vii) Based on the report of the Inter-Ministerial Committee, the Government adopted stricter norms on emission from the base stations being 1/10th of the limits prescribed by the ICNIRP.

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(viii) The Advisory Guidelines for State Government for issue of clearance for installation of mobile towers came to be issued by the Department of Telecommunications on 1st August 2013 and the following limit for radiation based transmission station, which is 1/10th of ICNRP, came to be prescribed :-

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(ix) Additional Guidelines to TERM Cells for auditing BTS for EMF radiation issued, with effect from 1st August 2013, and safe distance from the mobile towers came to be prescribed, which are as under:-

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Number of antenna(e) Building/Structure safe Pointed in the same direction distance from the antenna(e) At the same height (in Meters)

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(x) The latest advisory on health risk associated with mobile phones and BTS of the World Health Organisation (WHO) reads as under :-

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"Studies to date provide no indication that environmental exposure to RF (radio-frequency) fields, such as from base stations increases the risk of cancer or any other disease......."

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There are standards prescribing the radiation norms in accordance with the international norms and adequate regulations to ensure that the installation of TCS/BS and Equipments for Telecommunication Network do not cause unwarranted intrusion and adverse impact upon human health and well-being. In the case of K. R. Ramaswamy @ Traffic Ramaswamy, Founder Chairman Tamilnadu Social Works Organization Vs. The Secretary, 7 2014 SCC OnLine Guj. 9830 and 8 AIR 2007 Kerala 33, the Madras High Court considered the challenge in the light of the

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material and held that the judicial proceedings cannot be analyzed and there being no materials at least as on date, which can finally suggest any health hazards from these towers and the solution thereof, the Court would not venture into unchartered territory of technical expertise to determine the area where it should be installed. The appropriate Committee of the Telecom Division is competent to proceed and consider it and there is a regulatory regime which are regularly monitoring it and environmental conditions have been laid down in the regulatory regime itself.

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We have also examined the regulatory and jurisprudential framework governing electromagnetic radiation emissions in India. There is no single, standalone statute governing electromagnetic radiation (EMR) emissions from mobile towers in India. The subject is regulated primarily through license conditions issued by the Department of Telecommunications (DoT) under the Indian Telegraph Act, 1885, the Indian Wireless Telegraphy Act, 1933, and the Telecom Regulatory Authority of India (TRAI) Act, 1997, alongside non-statutory advisories issued by the Ministry of Environment, Forest and Climate Change (MoEFCC). DOT establishes technical exposure limits for Radio Frequency (RF) emissions. In 2008, India adopted the safety thresholds framed by the International Commission on Non-Ionizing Radiation Protection (ICNIRP). For the 400 MHz to 2000 MHz frequency band, the permissible power density = f/200 (f in MHz), yielding 4.5 W/Sqm at 900 MHz and 9 W/Sqm at 1800 MHz, the two GSM bands used in India. Following growing public health concerns and inter-departmental evaluations, the DoT accepted the recommendations of an InterMinisterial Committee (IMC), drastically reducing permissible RF exposure limits to one-tenth (1/10th) of the pre-existing ICNIRP

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standard: power density = f/2000, i.e., 0.45 W/Sqm at 900 MHz and 0.9 W/m² at 1800 MHz. For mobile handsets, the DoT capped the maximum permissible Specific Absorption Rate (SAR) at 1.6 W/kg averaged over 1 g of human tissue.

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While legacy infrastructure (2G, 3G, and 4G Base Transceiver Stations) remains governed by the strict 1/10th-of-ICNIRP limit ($f/2000$), 5G BTS are regulated under a separate, materially more permissive operational track. To accommodate beamforming and massive MIMO technology, the power-density ceiling for 5G BTS was initially set at 1 W/m², raised to 5 W/m², and progressively transitioned toward alignment with unreduced ICNIRP reference levels (up to 10 W/m²).

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To enforce compliance with the mandated emission caps, the DoT established a rigid verification and penalty framework administered by Telecom Enforcement Resource and Monitoring (TERM) cells. Telecom service providers are required to submit mandatory self-certifications for every Base Transceiver Station (BTS) prior to operationalisation. TERM cells conduct periodic administrative audits and physical testing of BTS sites, now functioning under DoT Licensed Service Area (LSA) Field Units. The financial penalty framework reflects an evolutionary escalation scale rather than a single rate:

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Early non-compliance penalties began at 25 lakh per non-compliant BTS.

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The baseline penalty was escalated to 10 lakh per non-compliant BTS.

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For willful non-compliance or rogue BTS operating on shared tower infrastructure, penalties range up to 20 lakh per BTS per incident.

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Financial penalties are accompanied by mandatory immediate power reduction or physical tower disconnection directives until verified compliance is achieved.

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To standardize the clearance process across various administrative levels without altering safety thresholds, the DoT issued the Advisory

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Guidelines for State Governments for Issue of Clearance for Installation of Mobile Towers in 2013. These guidelines regulate the administrative and structural clearance procedures rather than RF radiation limits. Key procedural requirements under the 2013 guidelines include:

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Obtaining Standing Advisory Committee on Radio Frequency Allocation (SACFA) clearance.

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Submitting structural stability certificates issued by registered structural engineers or recognised academic institutions (e.g., IITs/NITs).

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Verifying antenna orientation, height parameters, and maintaining defi ned exclusion zones immediately surrounding the antenna arrays.

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The DoT enforces a single, uniform national emission threshold across all geographic zones. DoT official policy rejects separate or stricter exposure limits for sensitive institutions such as schools, hospitals, or residential localities. This federal uniform limit policy sits in direct tension with the 2010 Inter-Ministerial Committee recommendations, which had suggested restricting tower erections near high-density residential zones, schools, playgrounds, and hospitals. From the Central Government's regulatory standpoint, spatial exclusions or distance buffers do not derive from central telecommunications licensing rules, but emerge strictly from local land-use bye-laws. DoT emission limits are not subordinate statutory rules or regulations framed under an environmental or public health parent enactment (such as rules under the Environment (Protection) Act, 1986). Instead, they operate as contractual-cum-regulatory conditions inserted into Access Service/ Unified Licences granted to telecom service providers under the Telegraph Act and Wireless Telegraphy Act framework. Consequently, breach of these conditions is enforceable by the DoT as licensor through administrative fines, license revocation, or tower disconnection. They are

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not independently justiciable as "statutory law" that a citizen can directly enforce before an environmental court or tribunal on its own force.

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On August 9, 2012, the Ministry of Environment and Forests (Wildlife Division) issued an Office Memorandum No. F. No. 15-11/2010/WL-1 (OM). This memorandum evaluated the ecological impacts of EMR on living organisms, particularly birds, bees, and wildlife. The MoEFCC OM articulated a precautionary framework recommending:-

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Conducting regular EMR auditing and monitoring in urban localities, educational institutions, hospital premises, residential zones, and ecologically sensitive areas.

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Relocating or removing problematic towers exhibiting non-compliant radiation profiles.

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Displaying visible hazard signages and warning messages on and around cell tower structures regarding associated radiation risks.

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Maintaining a mandatory inter-tower distance buffer radius of one kilometer (1 km) between existing and proposed towers unless passive infrastructure sharing is implemented.

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Undertaking mandatory Ecological Impact Assessments prior to constructing towers near protected areas and zoos, alongside maintaining city-level GIS mapping of all cell towers.

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Legal Character: Executive and judicial rulings have established that the MoEFCC OM is non-statutory and recommendatory. It creates no legally binding obligation on the DoT, state governments, or telecom licensees, and non-compliance cannot be prosecuted as an environmental offense under the Environment (Protection) Act, 1986.

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Because municipal corporations and urban local bodies possess constitutional power under Schedule XII to regulate local land use, building construction, and public health, several state governments framed specific bye-laws governing tower installation. For example, the State of Rajasthan promulgated Local Bye-laws in 2012, alongside executive notifications barring the installation of mobile towers on school

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buildings, hospitals, playgrounds, and within a 500-meter proximity of prison premises. These municipal bye-laws created a regulatory tension between central telecommunication licensing standards and local spatial

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zoning powers.

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Comparative Statutory Matrix

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The issue has further been considered in the following cases:-

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1. Cellular Operators Assn. of India v. I.S. Israni, (2015) 13 SCC 663:

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The litigation trajectory involving the Cellular Operators Association of India (COAI) and Justice I.S. Israni (Retd.) developed through concurrent proceedings before the Supreme Court of India and the High Court of Rajasthan.’

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Rajasthan High Court Proceedings:

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Justice I.S. Israni (Retd.) & Anr. v. Union of India & Ors. (D.B. Civil Public Interest Litigation Petition No. 2774/2012) connected with Cellular Operators Association of India & Ors. v. State of Rajasthan & Ors. (D.B. Civil Writ Petition No. 17867/2012, decided on 27.11.2012)

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The High Court upheld the validity of the Rajasthan municipal byelaws prohibiting mobile towers on schools, hospitals, and playgrounds. Invoking Article 21 and the Precautionary Principle, the Court ruled that scientific certainty is not required where reasonable apprehension of health risks exists for vulnerable populations (infants, children, patients). The Court held that local land-use restrictions do not infringe upon central licensing powers, requiring operators to comply with local spatial zoning rules alongside DoT emission caps.

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Supreme Court Proceedings:

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COAI and telecom service providers approached the Supreme Court challenging the High Court judgment. The Supreme Court permitted the petitioners to withdraw the application, dismissing the case as withdrawn without issuing a judgment on merits. However, the Court recognised the significant public health and environmental concerns raised in the underlying litigation. The Court took note of the MoEFCC Office Memorandum dated August 9, 2012, and state-level directives, emphasizing that until uniform federal norms were fully implemented, proactive measures to safeguard vulnerable institutions like schools and hospitals remained vital.

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Pending Litigation:

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The substantive challenge against state-level siting restrictions and municipal bye-laws travelled from the Rajasthan High Court to the Supreme Court as a consolidated batch of Special Leave Petitions, primarily carrying the title Bharat Sanchar Nigam Ltd. v. Justice I.S. Israni (Retd.) & Ors. (SLP (C) No. 1349/2013).

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This batch of petitions remains pending before the Supreme Court alongside connected matters, including petitions such as Harish Chand Tiwari, where the Supreme Court issued an interim order on March 30, 2017, directing BSNL to deactivate a mobile tower situated adjacent to the residence of a cancer patient. The Supreme Court has not yet issued a final, definitive judgment resolving whether EMR exposure within DoT limits constitutes a recognised health hazard under Article 21.

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2. Dr. Arvind Gupta v. Union of India & Ors. OA No. 61/2012

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(NGT PB):

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In Dr. Arvind Gupta v. Union of India & Ors. (National Green Tribunal, PB, OA No. 61/2012 decided 10.12.2015) serves as the primary

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Vs. Asnani Builders & Ors.

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authority regarding tribunal jurisdiction over radiofrequency emissions. The applicant, invoking Article 21, challenged the inaction of central and state authorities in enforcing the MoEFCC Office Memorandum dated August 9, 2012. The applicant argued that EMR exposure inflicts severe injury on urban and rural flora and fauna, constituting environmental degradation that requires binding NGT directions.

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The Tribunal held that emission of electromagnetic waves from mobile towers does not fall within the scope, ambit, or statutory jurisdiction of the NGT under Section 14 read with the Scheduled Acts of the National Green Tribunal Act, 2010.

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Statutory Definition of Environmental Pollutant and Hazardous Substance:

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To trigger the provisions of the Environment (Protection) Act, 1986 (EPA 1986), an emission must satisfy the statutory definitions under Section 2 as an 'environmental pollutant'.

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The NGT held that non-ionizing electromagnetic radiation and radio frequency waves are forms of physical energy rather than solid, liquid, or gaseous substances. Because the text of Section 2(b) requires a physical substance, EMR cannot be classified as an 'environmental pollutant under the EPA 1986 without explicit legislative amendment.

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Statutory Exclusion Under the Atomic Energy Act, 1962:

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The only Indian statute that explicitly regulates 'radiation' within its primary body is the Atomic Energy Act, 1962. However, Section 2 of the Atomic Energy Act explicitly excludes radio waves and non-ionising electromagnetic radiation from its definition of atomic radiation. Furthermore, the Atomic Energy Act is not listed in Schedule I of the NGT Act.

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* The NGT confirmed that while it lacks power to adjudicate EMR radiation claims, its ruling does not amount to a finding that EMR is scientifically harmless or unregulated.

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Following the Dr. Arvind Gupta (2015), the NGT Principal Bench has consistently rejected claims that rely purely on radiation hazards. However, a key distinction exists in post-2015 NGT jurisprudence: the Tribunal continues to entertain applications involving mobile towers if the dispute is grounded in non-EMR environmental or planning violations.

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Post-2015 NGT Proceedings:

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In matters such as Gautam Nagar Residents Association v. Commissioner, SDMC (2022), Shailesh Kumar v. Govt. of NCT of Delhi (2022), and Subhash Khandelwal v. NDMC (2023), the Tribunal examined tower installations based on non-EMR legal grounds:

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Illegal encroachment on designated green belts, public parks, or forest land.

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Direct violations of local Master Plans or zoning regulations.

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Structural safety hazards and physical obstruction of public passages.

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When an application is framed around planning, green space preservation, or municipal land-use violations, the NGT retains jurisdiction under the relevant Scheduled Acts (e.g., Forest Conservation Act or EP Act rules governing green belts), provided the claim does not rest on EMR health hazards.

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3. M/S Indus Towers Ltd. v. Gautam Nagar Residents Association & Ors.:

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Despite the full bench decision in Dr. Arvind Gupta (2015), instances of jurisdictional overreach occurred when smaller benches of the NGT issued orders directing the removal of mobile towers. This led to corrective intervention by High Courts.

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In M/S Indus Towers Ltd. v. Gautam Nagar Residents Association & Ors. (Delhi High Court, CM(M) 1380/2022, decided December 9, 2022), the NGT had issued orders directing the Municipal Corporation of Delhi (MCD) and the Delhi Pollution Control Committee (DPCC) to remove an Indus Towers cell tower installed at Gautam Nagar, New Delhi.

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The Delhi High Court held that the NGT passed its removal orders by ignoring the binding precedent established by its own bench in Dr. Arvind Gupta v. Union of India. The High Court reaffirmed that the NGT possesses no jurisdiction under Section 14 of the NGT Act to adjudicate mobile tower radiation disputes or issue removal directives. Citing earlier High Court precedents, the Court noted that there is no conclusive scientific evidence establishing that EMR emissions within DoT-prescribed limits cause health hazards. The High Court stayed the NGT's removal orders and stayed consequential actions by municipal authorities.”

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The matter has also been discussed in the following cases and the brief rulings are as follows:-

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The National Green Tribunal lacks statutory jurisdiction under Section 14 read with Schedule I of the NGT Act, 2010, to adjudicate disputes relating to electromagnetic radiation. ( Dr. Arvind Gupta v. Union of India & Ors.; M/S Indus Towers Ltd. v. Gautam Nagar Residents Association & Ors.) In the case relied upon by the applicant ( Cellular Operators Assn. of India v. I.S. Israni ), the Supreme Court did not render a definitive judgment on the merits, but permitted the appeal to be dismissed as withdrawn. The broader constitutional question regarding whether EMR exposure within prescribed limits violates the right to life under Article 21 remains pending ( Bharat Sanchar Nigam Ltd. v. Justice I.S. Israni (Retd.) & Ors. ).

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There is no single, dedicated, or mandatory environmental statute enacted by Parliament to govern mobile tower radiation in India. The subject is governed entirely through regulatory conditions prescribed by the DoT, alongside the MoEFCC OM, which have been affirmed to be purely advisory and non-binding in nature.

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The number of consumers as available in the media and as per information of data the number of users are as follows:-

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(1) Reliance Jio = 50.60 crores users having mobile phone and SIM,

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(2) Bharati Airtel = 48.95 crores users and SIM,

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(3) Vodafone-Idea = 19.91 crores mobile phone and SIM users,

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(4) BSNL = 9.32 crores mobile phone and SIM users,

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In view of above, accordingly, 129 crores approximate active mobile phone and SIM users are available in India. Thus, it will be very difficult to immediately stop the functioning without consultation and any basis of scientific data. The user of the mobile phone and SIM in the urban areas is approximately 58.83% i.e. 78 crores, while in rural areas users of mobile phone and SIM cards are 41.17% i.e., 55.1 crores approximately, (all the above figures are approximate available on the websites and social media.

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The utilization of mobile phone is rising remarkably daily but most of the individuals do not know how cell phone towers affect the personal wellness. The exclusive method to overcome these contradictory features of the most advanced technologies is a replacement but by more reliable technology. Electro-magnetic radiation and radio waves are omnipresent. The precautionary measures require more research and detailed study on human health by the radiation of mobile towers which is to be done by the Department of Telecommunication in accordance with the rules.

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In view of above, we are of the view that no further directions are required in these matters other than to say that the concerned authorities would continue to analyze the material as and when it emerges to look into the concerns raised by the petitioner, especially in view of the fact that there

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is no final view as yet on these aspects. Science grows and evolves and one does not know what may happen tomorrow.

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Having considered the expert reports, Parliamentary Standing Committee Report and prevalent regulatory regime, we find that the scientific material, as of today, does not indicate any identifiable risk or harm on account of non-ionized radiation emanating from TCS/BS and Equipments for Telecommunication Network.

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In view of the above facts, it is not desirable to intervene in the matter. The matter requires to be considered by the State of Madhya Pradesh with regard to the building, land use permissions an advisories and Department of Telecommunication, Government of India, for considering appropriately at the relevant point of time after due research and scientific data collected on the various levels.

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In view of the above facts, we direct as follows:-

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(i) Respondents are directed that the guidelines for issuance of clearance for installation of mobile towers published by the Department of Telecommunication (DoT) must be strictly followed in letter and spirit.

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(ii) For the user end of MTBS, the user has to seek Consent from the concerned State PCB/PCC for installation of the DG sets which is a source of power supply. The regulatory agency must ensure that the DG set must functions as per approved guidelines with respect to emission and noise.

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(iii) The Telecom Enforcement Resource and Monitoring Cell (TERM), Department of Telecommunication, (Ministry of Communication and Information Technology), is directed to regularly test the mobile tower radiation and to maintain that it is in accordance with the parameter laid down in the

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guidelines and in case if it exceeds, immediate remedial measures must be taken according to rules.

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(iv) The Telecom Service Provider within a period of 15 days from the date of start of radiation for testing purposes, must furnish a service certificate certifying that the radiation from the cell phone tower is within the aforesaid norms as prescribed by the DoT and to start the operation only after furnishing such a self-certificate.

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(v) The Municipal Corporations/Municipal Councils and Urban Local Bodies possess constitutional power under Schedule-XII to regulate local land use, building construction and public health. Thus, the State Government is directed to frame specific by-laws governing tower installation, local land use and building construction and installation of tower on the land or building and to finalize an SOP, in case it is not finalized till yet. The process may be initiated within a time frame.

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(vi) We direct the Principal Secretary, Urban Development Department, Madhya Pradesh, and the Bhopal Municipal Corporation, to prepare an SOP for local land use rules, site bans on school, hospitals, playgrounds and the near prisons and habitations on the basis of a scientific data to be called from a scientific studies and to take necessary actions in case the parameter laid down by the Department of Telecommunication is exceeding.

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(vii) The Department of Telecommunication while granting the telecom licenses, have to put the necessary conditions with regard to the siting criteria and environmental norms at the

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time of granting the permission for installation of the mobile towers and to periodically monitor it with regard to the effect on human health and environment and necessary safeguards be taken accordingly.

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With these observations and directions, the Original Application No.135/2026(CZ) alongwith pending I.As., if any, stands disposed of accordingly.

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Sheo Kumar Singh, JM

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Ishwar Singh, EM

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22^nd September, 2026, Original Application No.135/2026(CZ) (I.A. No.109/2026) AK

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Vs. Asnani Builders & Ors.

Madhya Chetriya Samajik Aur Kanooni Welfare Society v. Asnani Builders

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Madhya Chetriya Samajik Aur Kanooni Welfare Society v. Asnani Builders

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