IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 14094 of 2010(J) 1. M/S ESSAR TELECOM INFRASTRUCTURE(P)LTD., ... Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY THE ... Respondent 2. THE ASSISTANT SUPERINTENDENT OF POLICE, 3. THE CIRCLE INSPECTOR OF POLICE, 4. THE SUB INSPECTOR OF POLICE, 5. MR. PAULOSE, PAYYAPPILLY, 6. MR. THOMAS, VAZHAPPILLY, 7. MR. CHAKKAPPAN, MALIAKKAL HOUSE, 8. MR. GEORGE, S/O GEEVARGHESE, 9. MR. SUTHAN, S/O KUMARAN, 10. PUTHENVELIKKARA GRAMA PANCHAYAT, For Petitioner :SRI.SANTHOSH MATHEW For Respondent :DR.K.P.SATHEESAN The Hon'ble MR. Justice K.M.JOSEPH The Hon'ble MRS. Justice M.C.HARI RANI Dated :11/03/2011 O R D E R K.M. JOSEPH & M. C. HARI RANI, JJ.  JUDGMENT
K.M. Joseph, J.
In these batch of writ petitions certain common questions arise and we deem it appropriate to dispose of the cases by the following common judgment.
2. Petitioners are either service providers or infrastructure WPC.NO.14094/10 & CONN.CASES 3 providers or agreement holders with the infrastructure holders. The controversy arises on account of obstruction to the construction of mobile towers and in many cases, obstruction to construction of towers for their operation and they seek police protection to aid them.
3. This issue had engaged the attention of this Court earlier. Divergent views were expressed by this Court in the decision in Reliance Infocom Ltd. v. Chemanchery Grama Panchayat (2006 (4) KLT 695) (hereinafter referred to as the "Reliance case"), Essar Telecom Infrastructure (P) Ltd. v. Circle Inspector Of Police (2008 (4) KLT 713) and Dishnet Wireless Limited v. Circular Inspector of Police (2009 (1) KHC 781). On noticing the divergent views, a Division Bench of this Court referred the following two questions to the Full Bench:
"(1) Whether the construction of a Mobile Base Station by itself will give rise to a dispute of civil nature, merely for the reason that a section of the public apprehends that it may cause some health hazards and whether a larger question of this nature as to whether such Mobile Base Station could cause any health hazards could be decided in a petition filed under Article 226 of the Constitution of India.
WPC.NO.14094/10 & CONN.CASES 4 (2) If the petitioners have obtained licence in accordance with the relevant statute in force and when they start functioning of a Mobile Base Station, can anybody cause any physical obstruction to such work, without raising a dispute and seeking remedies available to them under law, and in case, any such physical obstructions is caused, is not the Police bound to act and whether in the absence, this Court could issue necessary directions to the Police."
Subsequently, another Division Bench felt that two more points require consideration by the Full Bench and sought to clarify the following two points :
"(1) Whether this Court can exercise the jurisdiction to issue a writ of mandamus to the police, as if this Court is hearing a suit for mandatory injunction and whether the objection taken to the same in para 8 of Sadananda Bai's case (supra) and para 8 of Essar Telecom Infrastructure (P) Ltd's case (supra) is sustainable ?
(2) When, for causing obstruction to the construction of a mobile phone tower, the petitioners have an alternative effective remedy of filing a civil suit, is it a proper exercise of discretion by this Court to entertain the Writ Petitions and advise the respondents to invoke the alternative remedies available to them ?"
The Full Bench answered the questions in the decision in WPC.NO.14094/10 & CONN.CASES 5 Reliance Telecommunications Ltd. v. S. I. of Police (ILR 2010 (2) Ker. 592) (hereinafter referred to as the Full Bench decision) as follows:
"33. Points sought to be clarified as per the reference order dated 24-3-2009 in W.P.(C).
No.6433/2009 and connected cases are answered in the above background as
follows:The construction of a Mobile Base Station by itself witll not give rise to a dispute purely of civil nature, to be relegated to a civil court, merely for the reason that a section of the public apprehends that it may cause some health hazards. Whether a larger question of this nature, as to whether such Mobile Base Station could cause any health hazard, could be decided in a petition filed under Article 226 of Constitution of India, there cannot be any legal bar to such a course in appropriate cases, where sufficient materials are provided as to the scientific studies and norms/guidelines prescribed by the Government/Licensing authorities in this regard; which situation is conspicuously absent in the instant cases.
If the petitioners have obtained all requisite licences/permits in accordance with the relevant statutes/orders/notifications in force and start construction/functioning of a Mobile Base Station, nobody can cause any physical obstruction to such work/operation, but it is open to them for raising a dispute and seek WPC.NO.14094/10 & CONN.CASES 6 remedies available under the law.
If the police is alerted as to the threat to the law and order situation and if there is any violation on the part of the Police to discharge the statutory duty in takiang steps to prevent cognizable offence, a Writ of Mandamus is very much liable to be issued granting police protection.
34. Points sought to be clarified as per the reference dated 2-11-2009 in W.P.(C).
Nos.24384 & 25157/2009 are answered as follows:
(i) In view of the observation in paragraph 8 of Sadananda Bai's case (2008 (3) KLT 542) and similar observations in paragraaph 8 of Essar Telecom's case (2008 (4) KLT 713) holding that this Court is very much having the power to provide the remedy, in case of violation to discharge the duty by the police, further reference doubting the power of this Court under Article 226 is quite unwarranted. In view of the law declared by this Court as stated in the forgoing paragraphs, the observations to the contrary in the above two decisions (Sadananda Bai's case and Essar Telecom's case) are not correct or sustainable.
(ii) Relegation to the Civil Court, in the event of forceful obstruction to the construction or energization of Mobile Phone Tower is not an effective alternate remedy and interference by this WPC.NO.14094/10 & CONN.CASES 7 Court, granting `Police protection', invoking the power and discretionary jurisdiction under Article 226 of the Constitution of India is warranted to advance the course of justice."
The Full Bench also approved the law declared by the decision in Reliance Case and the Dishnet Case. Thereafter, the Full Bench ordered as follows:
"36. The next question is whether the merits of each case are to be dealt with or not. Even though we are very much aware of the scope and power under Sec.7 of the Kerala High Court Act, in view of the dictum laid down by the Apex Court as per the decision in Kerala State Science & Technology Museum v. Rambal Co. and Others reported in (2006) 6 S.C.C. 258), we find it proper to have the cases considered and decided on merits by the appropriate Court, in the light of the law declared as above."
4. In many of these cases the matter had engaged the attention of the Full Bench of this Court. We are proceeding to dispose of not only the cases which were listed before the Full Bench, but also other cases, many of them filed subsequent to the decision of the Full Bench.
5. Sri. P. Sathisan, learned counsel for the petitioners in many of these cases would make the following submissions: Under Section 4 WPC.NO.14094/10 & CONN.CASES 8 of the Indian Telegraph Act, a licence has been granted to establish a telegraph, which takes in a mobile business also. He points out that Entry 31 of List I of the 7th Schedule provides for legislative power to Parliament, as hereunder:
"Entry 31: Posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication."
He would submit that it is in the exercise of the legislative power that the Parliament has enacted the Telecom Regulatory Authority of India Act, 1997 (TRAI Act for short). He would draw our attention to Section 11 of the said Act. He relies further on Section 14 which provides for right of appeal to the appellate authority. He further draws our attention to Se.2 (l) of the Municipality Building Rules where the word "building" is defined. He would canvass, in particular, Rule 141 (8) of the Kerala Municipality Building Rules, 1999. It reads as follows:
"141. Submission of application and its disposal.- (8) The Secretary shall, if convinced of the
boundaries and ownership of the plot, plans and drawings and genuineness of the certificates, issue permit, not later than 30 days from the date of receipt of the WPC.NO.14094/10 & CONN.CASES 9 application."
He would further contend that there is a right of appeal to the Tribunal under Se.276 of the Kerala Panchayat Raj Act, 1994. Without challenging the permit issued under the Building Rules, it is contended that it is not open to the respondents or their men in these cases to obstruct the petitioners from carrying out the work for which they have taken permit and are otherwise armed with necessary licences under the Central enactment governing the field. He would submit that if the tower is not put up and operated it will affect the quality of the service which would result in the petitioners being liable to pay penalties. He would refer to the Division Bench decision of this Court in Dishnet Wireless Ltd. v. Circle Inspector of Police and Others (2009 (1) KHC 781) and the unreported judgment of another Division Bench. He also relied upon the judgment of the Full Bench (supra) of this Court and contended that the writ petitions are only to be allowed. He would submit that there is a bar under Se.37 of the TRAI Act to institute a civil suit. He relied further on the judgment of the Apex Court in Union of India v. Tata Teleservices (Maharashtra) Ltd. (2007 (7) SCC 517).
6. Sri. Santhosh Mathew, learned counsel for the petitioners in many of these cases would essentially adopt the arguments of Sri. P.
WPC.NO.14094/10 & CONN.CASES 10 Satheesan. He would submit that once permit is obtained under the Building Rules, there is no need for further permission under Se.235
(h). He would refer to the 73rd Amendment to the Constitution. He would further refer to Se.166 of the Panchayat Raj Act and would contend that the local body may not have any further say in the matter once a permit is obtained. He would also refer to Exts.P9 which are questions seeking information under the Right to Information Act and Ext.P10 reply given in W.P.(C) No.10907/2010 to contend that the petitioners have obtained all necessary permissions required as per law. He also relied on the decision of the Apex Court in All India Federation of Tax Practitioners And Others v. Union of India And Others (2007 (7) SCC 527 (at 547)). He would further refer to Se.256 of the Panchayat Raj Act. He would further point out that writ petitions are pending since 2009. He also referred to the unreported judgment of the Bombay High Court in Crl. Appeal 930/2009 and the unreported judgment of the Karnataka High Court MANU/KA/0496/2001 in W.P No.35408/2000 (para 15) and the judgment of this Court in W.A.No.1596/2007.
7. Shri. Philip Mathew, learned counsel for the petitioners in many of these cases would point out that except in some cases no counter affidavit is filed. He would address six points before us. (i).
WPC.NO.14094/10 & CONN.CASES 11 Se.232 and Se.233 of the Kerala Panchayat Raj Act are not applicable in view of Chapter 19 of the Municipal Building Rules. (ii) Se.233 (B) of the Panchayat Raj Act corresponding to Se.450 of the Kerala Municipalities Act provides for exemption from taking permit for installation of machinery. In this regard he relies on clause (a) and
(c). (iii) He refers to the heading of Sec.233 and he would contend that it is only in cases where the matter is covered by Se.232 that Se.233 will apply and since there is no notification which requires taking out a licence under Se.232, Se.233 of the Panchayat Raj Act cannot apply. (iv) Sec.4 of the Telegraph Act contains certain safeguards and the Panchayat Raj Act cannot be made applicable in an area held by the Telegraph Act. (v) He would contend that the technological benefit should be made available to the masses and the Court must interpret the provisions of laws in such a manner that the technological advancement are made available to the masses. He would also contend that the workplace used in Se.233 (a) must be given the commonly understood meaning. He would refer to G.P.Singh Interpretation of Statutes 10th Edition Page 158 where the learned Author refers to the importance to be attached to the heading of a section. He would refer to Mimansa Rules of Interpretation (3rd Edition) page 185. He relies on the decision in Vijay v. State of WPC.NO.14094/10 & CONN.CASES 12 Maharashtra (2006 (6) SCC 289). He refers to the provisions of the Dangerous Trades Licensing Rules made under the Panchayat Raj Act particularly the explanatory note. He would contend that no separate form is prescribed under the Municipality Building Rules and he would refer us to Form A to contend that once a permit is acquired there can be no scope for obtaining any other permission. He refers to the decision of a Division Bench of this Court in Bini v. Sundaran K.V. (2008 (1) KHC 209). He would contend that State Government has some power but it may not operate when any collision with the Central Legislation is occasioned. He further submitted that without acquiring land, the rights of the owner cannot be affected and he relied on the judgment in Raju S. Jeth malani v. State of Maharashtra (2005(11) SCC 222) and Nasar v. Malappuram Municipality (2009 (3) KLT 92). He would rely on the decision in Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd. (2007 (8) SCC 705) to contend that the Apex Court has recognised that right to immovable property, though no longer a fundamental right is a human right. He further relied on the decision in Sivadasan v. Mattannur Municipality (2008 (4) WPC.NO.14094/10 & CONN.CASES 13 KLT 684).
8. Shri. V. G.Arun, learned Counsel appears for the petitioners in a number of writ petitions wherein, the petitioners seek police protection for constructing and operating the mobile towers. He also relied in Entry 31 of list I, which we have already referred to. Besides, he also referred us to Entry 13 of list II. He would refer us to Section 3(1)AA of the Indian Telegraph Act, Section 2 sub-Section (2) of the Wireless Telegraph Act 1933, Sections 4, 7, 19 and 8 of the Telegraph Act, to contend that the matter of establishing the telecommunication tower is governed by the provisions of the Central Enactments. He sought to buttress this position with reference to the provisions of the Telecom Regulatory Authority of India Act (hereinafter referred to as the TRAI Act). He referred us to the provisions of Section 11 besides Section 13 of the Act. He also made available the licence agreement and referred us to various clauses therein in an attempt to contend that the matter engaged the attention of the Licensing WPC.NO.14094/10 & CONN.CASES 14 Authority which has provided for various conditions and, therefore, he would contend that the provisions of The Wireless Telegraphy Act, Telegraph Act and the TRAI Act r/w terms of the licence (agreement) occupy the field and there is no space for the State to legislate as the field is completely occupied. He would also refer us to the third schedule to the Panchayat Raj Act and Section 166 of the same. He also would submit that, having regard to the fact that the new licence condition has been imposed for regulating electro magnetic field, radiation, by way of self-audit and providing for officials to cross-check the same and as under the licence condition, stringent punishment is provided by way of penalty and also if needed, revocation of the licence, all is well. In this regard, he referred us to the communication dated 2.11.2010 addressed by the Government Department to the term "cells". He also relied on the decision in Baijnath Kedia v. The State of Bihar (AIR 1970 (SC) 1436).
WPC.NO.14094/10 & CONN.CASES 15
9. Shri. Krishna Prasad, learned Counsel for the petitioners appearing in writ petitions wherein, the petitioners are civil contractors, undertaking work of construction of towers, submits that they are only engaged in construction of towers for which they are having Permits. According to him, no other permission is required. He adopts the argument of the other petitioners.
10. Shri. A. Mohamed Mustaque, learned Counsel for the petitioners would raise the following contentions:
He appears in the writ petitions wherein the petitioners are infrastructure providers, i.e., the petitioners are engaged in construction of mobile towers. He would broadly contend as follows:
There is a social philosophy behind the policy of the Government in the matter of having mobile towers. Secondly, he would delineate on the aspect of a writ of mandamus and when it will be issued. Thirdly, he would contend that no permission is required u/s. 233 of the Panchayat Raj Act or the provisions WPC.NO.14094/10 & CONN.CASES 16 contained the Municipalities Act. Expatiating his contentions, he would refer us to clause 3 at page 55 (compilation No.1). He would contend that there is a universal service obligation, that is to say an obligation to take the mobile telephone to the remote and rural areas through the length and breadth of the country and there is a social philosophy as the framers of the policy have found that reaching this modern means of communication to the far corners, of the country will best promote the development of the people. He referred to Sections 9, 9A, 9C, and 9D of the India Telegraph Act. He would point out the gap between the number of towers required (3,30,000) by 2010 (see page 5 of compilation 1). He would contend that there is need to bear in mind that concept of sustainable development. He would point out that the implementation of the policy being man made, there will be imperfection. He would contend that in fact, there is an increasing awareness and which is being translated to reality also that operators must share towers. He referred us to various material to WPC.NO.14094/10 & CONN.CASES 17 show that the matter of erection of towers is seized of by International Telecommunication Union and also the National Authorities in India, namely the concerned Government Department. He would point out that there is lot of dispute in the matter of allocation of spectrum. He would also rely on literature to contend that it may be necessary to have more base stations (towers) and it would be in the interest of the members of the public themselves. He would also submit that the matter must be treated as occupied field having regard to the central legislation and the conditions of the licence. He also would refer us to the experience in other countries. He would contend that the radiation in the case of a mobile tower is non-ionizing. He referred us to the concepts of wireless networks cellular topography and contended that there is no merit at all in obstructing the construction of the towers. He would contend that ideally when the density of the population increases, there would be a corresponding increase in the number of towers.
WPC.NO.14094/10 & CONN.CASES 18
11. Shri A. Mohamed Mustaque would also contend that the petitioners had the liberty and, therefore, there was correspondingly no right for the obstructionists to physically obstruct. He referred us to the decision in Gardon Riots' case. He would submit that the discretion of this Court would be fettered, if there is any established violation of law. Thirdly, he would contend, in regard to Section 233 of the Panchayat Raj Act and the corresponding provisions in the Municipalities Act, that the principle of ejusdem generis, must be applied. He would submit that Section 233 contemplates a quasi-judicial procedure for processing applications seeking permission under the same. He would submit that when the Panchayat Raj Act and the Municipality Act were enacted, the Legislature had before it the Factories Act, 1948, Air Pollution Act, 1981 and the Environmental Protection Act, 1986. He referred us to the definition of "factory" and "machinery" contained in the Factories Act. He does not dispute that the Antenna, Receiver and Generator WPC.NO.14094/10 & CONN.CASES 19 (if used) would be machinery. But, he would contend that it is not machinery as was contemplated under Section 233(1)(b) of the Panchayat Raj Act. According to him, the machinery must be machinery which is used in a factory, workshop or work place and it must be capable of producing pollution or nuisance as is contemplated in sub-section (3) of Section 233. He referred us to case law to explain the concept of ejusdem generis and to contend that Section 233 of the Act did not and does not contemplate within its scope, the component parts used in a mobile tower. He would refer us to the definition of the words "air pollutant" in the Air Pollution Act, 1981 and the Water Pollution Act, 1974 to contend that the Legislature did not intend to include the components of a mobile tower within the scope of the Act. Therefore, he would contend that Section 233 of the Panchayat Raj Act would not apply as they stand, to the construction or installation of machinery in the tower.
WPC.NO.14094/10 & CONN.CASES 20
12. He would next argue that if it is found to be an omission, then, it is not for the Court to supply the omission of the Legislature and he projected the principle of casus omissus. He relied on the Judgments of the Apex Court in Smt. Hira Devi v. District Board, Shahjahnpur (AIR 1952 SC 362), Gullapalli Nageswara Rao v. A.P. State Road Transport Corpn. (AIR 1959 SC 308) and Bondu Ramaswami v. Bangalore Development Authority (2010 (7) SCC 129). He also relied on Black Law Dictionary and Maxwell on Interpretation of Statutes in this regard. He would further submit that Section 233 B, no doubt, provide for exemptions. But, he would contend that the fact that the component parts of a tower are not mentioned therein, would not immediately mean that Section 233 applies for the reasons which he has already advanced. He would further submit that Section 233 A of the Panchayat Raj Act provides for remedying nuisance and a perusal of its terms would show that the Legislature did not contemplate the nuisance if any which may WPC.NO.14094/10 & CONN.CASES 21 emanate from the operation of a mobile tower.
13. Shri K. Ramakumar, learned senior counsel appearing for the petitioner in W.P.(C).No.1693/10 would contend as follows:
He would submit that the question as to whether the component parts are machinery requiring permission has not been raised or pleaded and it is not open to the Court to decide questions which are not pleaded or raised. He referred us to the decisions in Naresh Shridhar Mirajkar v. State of Maharashtra (AIR 1967 SC 1) and Sundarjas Kanyalal Bhatija v. Collector, Thane ((1989) 3 SCC 396) (paragraphs 16 to 26). He would submit that at present the protection is sought only for putting up the tower and the Court need not assume that the local bodies will fail to discharge their duties. It is not open to the Court to travel beyond pleadings. It is not open to the people to physically obstruct the construction of the tower. He relied on the decision in Union of India v. Jai Prakash Singh ((2007) 10 SCC 712). In considering the issue of prerogative writs, the Court must be confined to the WPC.NO.14094/10 & CONN.CASES 22 pleadings and documents before it. He relied on the decision in Union of India v. R. Bhusal ((2006) 6 SCC 36). He would contend that it may be open to the Court to direct the Authorities concerned to look into as to whether any permission is necessary and it is not for this Court to primarily decide the very issue itself.
The case of the respondents:
14. In W.P.(C).No.13403/2010, the second respondent has produced Ext.R2(b), an article written by a retired Civil Surgeon about the dangers of the radiation. Ext.R2(c) purports to be a Newspaper Report in Madhyamam Daily. Ext.R2(d) purports to be another paper Report. Ext.R2(g) purports to be a Report in the newspaper, the Times of India reporting the adverse effect of electromagnetic radiation on honeybees. Ext.R2(h) purports to be a study report by Professor Girish Kumar, Electrical Engineering Department, IIT Bombay with regard to the biological effects on the cell tower operation. It is, inter alia, stated that when the human body is exposed to electromagnetic radiation, it absorbs the WPC.NO.14094/10 & CONN.CASES 23 radiation because the human body contains seventy per cent of liquid. The current international standards based on ICNIRP recommendations are purely based on thermal effects of radiation, whereas various epidemiological and experimental studies have shown to have significant biological effects far below these standards. It is stated further that non-thermal effects of radio frequency radiation accumulate over time and the risks are more pronounced after 8 to 10 years of exposure. There is reference to studies in Australia and Germany linking increased level of cancer to residents near TV and FM towers and cellular transmitter site respectively. It is further stated as follows:
"Radiation from cell phone towers has been associated with greater increase in brain tumor. (2) This is due to the damage in the blood brain barrier and the cells in the brain which are concerned with learning, memory and movement. Studies by Carl Blackman have shown that weak electromagnetic fields release calcium ions from cell membranes (4). Leakage of calcium ions into the cytosol acts as a metabolic stimulant, which accelerates growth and healing, but it also promotes the growth of tumors.
Loss of calcium ions causes leaks in the membranes of lysosomes releasing DNAase that causes DNA WPC.NO.14094/10 & CONN.CASES 24 damage. Another possibility of DNA damage is via increased free radical formation inside cells (5, 6), which further causes cellular damage in the mitochondria. Irreversible infertility has been reported in mice (7) and continuous exposure has been associated with reduction in sperm viability and mobility by around 25 percent in men (8). Children are more vulnerable to radio frequency radiation emissions as their skulls are thinner, their nervous system still developing and myelin sheath is yet not developed. A pregnant woman and the fetus both are vulnerable because of the fact that these RF radiations continuously react with the developing embryo and increasing cells. Microwave radiation damages the placental barrier, implying that pregnant woman should not use cell phone (9). The RF Exposure can adversely affect the heart pace maker, implantable cardiovascular defibrillators and impulse generators (10). These radiations may stop Pace maker from delivering pulses in a regular way or may generate some kind of external controlling pulse putting the patient to death. Studies of people who are exposed in their work (occupational exposure), have shown to have elevated levels of health risks. Another study reveals that workers who are in the highest 10% category for EMF exposure are twice as likely to die of prostate cancer as those exposed at lower levls (11). Exposure to electromagnetic fields has shown to be in connection with Alzheimer's disease, motor neuron disease and Parkinson's disease (12). All these diseases are involved with the death of specific neurons and are classified as neurodegenerative diseases. Inhabitants living near mobile phone base stations are also at risk for developing WPC.NO.14094/10 & CONN.CASES 25 neuropsychiatric problems as headache, memory loss, nausea, dizziness, tremors, muscle spasms, numbness, tingling, altered reflexes, muscle and joint paint, leg/foot pain, depression, and sleep disturbance (13). More severe reactions include seizures, paralysis, psychosis and stroke. All point to the fact that the current exposure standards for microwaves are not safe for long-term exposure."
15. It is submitted by Shri V.P. George that the Full Bench has not relegated the parties to the civil court. He relies on the Statement of the Government of India filed in one of the cases. He would rely on Section 23 of the Environmental Protection Act. He contends that he does not take the extreme position that mobile phones should be banned or that mobile towers should not be constructed. But, having regard to the dangers emanating from the indiscriminate proliferation of towers and mobile phones and the radiation which emanates from the same, they are matters to be regulated. He would submit that an environmental impact report must be obtained before proceeding further. TRAI is not concerned with the safety aspects, he contends. He relied on the Judgment of the Gujarat High Court in D.S. Rana & Others v. Ahamedabad WPC.NO.14094/10 & CONN.CASES 26 Municipal Corporation and Others (AIR 2000 Guj. 45) (paragraph 19).
16. In W.P.(C).No.14476/10, Shri Vinod Madhavan, appearing for the fifth respondent, a local body, would point out as follows:
The petitioner is Indus Tower. But, in Ext.P1, another name is shown. In Ext.P2, building permit is issued to one Biju Nair,and not issued to the petitioner, it is contended. Therefore, the petitioner has no locus standi. Reference is made to Ext.P3 complaint. He would contend that under Section 233(1)(b) of the Panchayat Raj Act, the equipments which are put on a mobile tower constitute machinery within the meaning of Section 233(1)
(b) and permission is indeed required for installation of the components.
17. In W.P.(C).No.17009/10, it is submitted on behalf of respondents 4 and 5 that Ext.P2 permit was issued to Indus Towers, but the petitioner is another. He also refers to WPC.NO.14094/10 & CONN.CASES 27 IA.No.12508/10. In W.P.(C).No.13401/10, Advocate Shri T.N. Suresh, appearing on behalf of the second respondent would point out that Leela is the mother-in-law of Madhu who entered into Ext.P1 agreement and there is no reply affidavit. He otherwise adopts the arguments of the other respondents.
18. In W.P.(C).No.8321/09, Shri Joseph George appearing on behalf of the eighth respondent would point out that there are two civil suits pending. Fixation of boundary is sought. In W.P. (C). No.14361/10 Shri R. Parthasarathy appearing on behalf of respondents 3 and 4 would submit that they are neighbours and their consent was not obtained and Rule 7(1) of the Kerala Municipality Building Rules has been violated. He also relied on Ext.R3(c) Circular issued by the Government.
19. Shri P. Chandrasekhar, learned counsel who appears in W.P.(C).Nos.14094/10 and 24384/09 (for party respondents) would submit as follows:
WPC.NO.14094/10 & CONN.CASES 28 He would contend that the tower would be a "work place" and it requires permission under Section 233 of the Panchayat Raj Act. At any rate, he would submit that the component parts constitute machinery under Section 233(1)(b). He relied on the Judgment of this Court in N.S.S. Hindu College v. Chief Engineer, Kerala State Electricity Board and Others (2007 (4) KHC 271). He would contend that the Local Authority has a constitutional duty and he relied on Article 243 G of the Constitution and Entry 23 of the Eleventh Schedule which, inter alia, provides for "Health and Sanitation". He also refers to Section 166 of the Panchayat Raj Act and the 3rd Schedule. The 3rd Schedule, inter alia, provides for mandatory functions of the Panchayat. It provides for maintenance of environmental hygene. He would submit that this must be read in conjunction with Section 233 of the Act. He would submit that "work place" takes colour from the provision to the effect where electrical power/steam power is used. He would further take us to Sections 235F, 235H, WPC.NO.14094/10 & CONN.CASES 29 235P and 235Q of the Panchayat Raj Act. He would refer to Section 233(5) to contend that the permission under the provisions mentioned therein, must also be obtained. He would further refer us to Rule 140A of the Kerala Municipal Building Rules. He would rely on the Judgment of a Division Bench of this Court in Gopalan Bhavani v. Raghavan Aravindakshan (1989 (2) KLT
118) and the decision in Satyawati Sharma (dead) by Lrs. v. Union of India and Another (2008) 5 SCC 287) to contend that the Court must provide a purposive interpretation. He also relied on the decisions in State v. Chaudhary (1996 (1) KLT 454(SC)) and Kashmir Singh v. Union of India & Others ((2008) 7 SCC
259) to contend that the provisions of the Panchayat Raj Act and the Municipalities Act are provisions contained in an ongoing Statute and accordingly, the interpretation must be so placed in keeping with the principles applicable thereto. He would submit that to constitute a "work place", the workers need not go to work there all the time. Systematic work goes on in a mobile tower with WPC.NO.14094/10 & CONN.CASES 30 the aid of power. Certainly, some workmen will be going there from time to time. He relied on the decision in Consumer Education & Research Centre & Others v. Union of India & Others (AIR 1995 SC 922 for supporting his argument that the mobile tower is a "work place" under Section 233(1)(a) of the Panchayat Raj Act. He also relied on the alma ata convention and the asbestos convention, 1986. He also referred us to the constitution of WHO (World Health Organisation). He would submit that different kind of cells are used and they include micro, pico and macro cells. He would submit that the effect of these cells would vary and macro cells used in thickly populated areas, would constitute a great threat to the health. He also relied on the decision of the Apex Court in Gramophone Company of India Ltd. v. Birendra Bahadur Pandey & Others ((1984) 2 SCC 534. According to him, the Court must give considerable importance to the purpose. The context of the provision must also be borne in mind as also the mischief which is sought to be redressed by the WPC.NO.14094/10 & CONN.CASES 31 author of the law. It is stated that there is no pleading in the Writ Petition that the respondents physically obstructed and a writ of police protection would not lie on the pleadings.
20. Shri K. Sasikumar, learned counsel appearing on behalf of the respondents in W.P.(C).No.7312/09 and 6433/09 would adopt the arguments of Shri P. Chandrasekhar. He would further refer us to the letter issued by the Pollution Control Board in W.P. (C).No.7312/09.
21. Shri Rinny Stephen Chamaparambil, learned counsel appearing for the party respondents in W.P.(C).Nos. 35836/09 and 31772/09 would rely on the Report of Professor Girish. He also draws support from Ext.R1(c). He would contend that there are thermal and non-thermal effects. He relied on Ext.R3(j) Report and Ext.R3(k) resolution. He further referred us to Ext.R11(d) and
(e). He referred us to paragraph 18 of the Full Bench decision.
22. Learned counsel appearing for the respondents in W.P. (C).No.29644/10 would contend that the petitioner has no locus WPC.NO.14094/10 & CONN.CASES 32 standi and the tower is being erected in the middle of a thickly populated area.
23. Shri T.K. Vipindas, learned Government Pleader would contend as follows:
He relies on Entry 6 of List II. He would contend that the State has legislative power under Entry 6 of List II to provide for public health which is what Section 233 of the Panchayat Raj Act is all about. He relies on the decision on State of Rajasthan v. G. Chawla & Another (AIR 1959 SC 544). He would contend that the TRAI Act does not deal with any matter covered by Entry 6 of List II. In this regard, he referred to the provisions of Section 11 of the TRAI Act. Learned Government Pleader would specifically say that the Government does not have a case that the mobile tower is a "work place" within the meaning of Section 233 of the Panchayat Raj Act. However, he would submit that under Section 233(1)(b), the component parts installed in a tower would constitute machinery and, therefore, permission is required under WPC.NO.14094/10 & CONN.CASES 33 Section 233. He would contend that Sections 233 and 233A of the Panchayat Raj Act deal with issues of nuisance and health. He further drew our attention to the provisions of Section 2 of the Travancore - Cochin Public Health Act. In particular, he referred us to the definition of "nuisance". He further brought to our attention Sections 39 and 40 of the said Act, besides Sections 95, 98 and 99. He further referred us to the Town Planning Scheme and contended that under the Scheme, towers cannot be permitted in residential areas. He also referred us to the decision in State of Maharashtra v. Bharat Shanti Lal Shah & Others ((2008) 13 SCC 5). Learned counsel for the petitioners would counter the arguments of the learned counsel for the respondents and we shall deal with the same more elaborately.
24. Construction of mobile towers have given rise to these Writ Petitions. In most of these cases, the petitioners have obtained Permits issued for construction of mobile tower under the WPC.NO.14094/10 & CONN.CASES 34 Municipal Building Rules, which Rules have been made applicable to the Panchayats also.
Whether the operation of mobile tower a health hazard ?
25. The first question, of course, is as to whether there is any material produced to warrant the view that the construction of the towers and their operation would constitute a health hazard. Counsel for the petitioners would point out that most of the materials have been considered by the Division Bench and the Full Bench. It is contended that this Court has found that the precautionary principle would not apply in the matter of operation of the mobile towers and that it is not the burden of the petitioners to show that there is no pollution or nuisance. In the Reliance case, the Court proceeded to refer to the constitution of the Committee under the Chairmanship of Shri N. K. Ganguly, DG, ICMR by the Government as directed by the Bombay High Court.
WPC.NO.14094/10 & CONN.CASES 35 The Court, inter alia, held as follows: " Mobile phones produce radio-frequency.
Magnetic energy moving through space is generally called radio frequency electro magnetic radiation (EMR). EMR is of course a part of everyday life. EMR is emitted by natural sources like the sun, the earth and the ionosphere and also by artificial sources, such as, electrical and electronic equipments, radar facilities, broadcast towers and mobile phone base stations, etc. EMR absorbed in human body is measured in units called the specific absorption rate (SAR) which is usually expressed in units of watts per kilogram (w/kg.) or milliwatts per gram (mw/g.). There are multiple sources of exposures to electromagnetic fields including radio, FM radio, Television and other household gadgets. Exposure standards for Radio Frequency Energy has been develop0ed by various countries and organizations. Based on these scientific data, the National Council for Radiation Protection and Measurement of USA and the Australian Communication Authority urges a public exposure limit of 200 microwatts per square centimetre in the 30 to 300 Mhz range. Direct use of mobile phones including radio FM radio, Television and other household gadgets would have some illeffects on human beings. A workshop conducted by World Health Organization (WHO) in Prague in 2004 reached the following conclusions, viz., that (1) reported symptoms are very unspecific and could have other causes: (2) there is no casual association demonstrated between exposure and symptoms; (3) that patients who display those symptoms should be medically examined for alternative explanations and WPC.NO.14094/10 & CONN.CASES 36 causes including psychiatric/psychological ones and other environmental factors: (4) lowering the safety limits for handset radiation (SAR levels) will not affect the situation. Study conducted would show that there is no scientific evidence for a casual relationship between the reported clusters of symptoms and exposure to microwave radiation used in cell phones, well below the safety standards............Question that is posed for consideration in this case is not with regard to ill effects of the use of mobile phones but whether installation of mobile base station and its functioning would cause any health hazards to the people who are residing nearby.
Reference was made to the following remarks of a Committee appointed pursuant to the decision of the Bombay High Court:
"* There are multiple sources of exposures to electromagnetic fields including radio, FM radio, Television and other household gadgets. There is a need to acknowledge the confounding effects on these sources of RF.
* There are different types of Mobile Base Stations depending on the requirements of a particular system (GSM or CDMA) prevalent in India, however GSM system outnumbers CDMA.
* RF exposures from Mobile Base Stations are much less than from radio, FM radio and WPC.NO.14094/10 & CONN.CASES 37 television transmissions.
* The height of Mobile Base Station antennae is nominally 36 metres and the effect of radio waves depends on the distance from the base stations since the antennae are directed horizontally with a 5 degree downwards tilt. * The strength of radio frequency fields in front of the antennae varies with the distance. Persons standing directly in front of the antennae in these high density zones will be higher exposures.
* There are two main types of effects of electromagnetic waves: thermal and non-
thermal which includes electrophysiological behavioural effects. These can be sleep disorder, cognitive disorder, memory disturbances, hearing disorders, etc. * Factors like urbanization, siting of base stations, distance from the towers, existence of multiple towers and multiple providers, etc. all may have confounding effects which could be difficult to quantify.
* Subjective symptoms such as sleep disorders, cognitive disorders, memory
disturbances, hearing disorders, etc. have been reported. However, the three completed human studies pertaining to base stations conducted by Santini R et al (2002), WPC.NO.14094/10 & CONN.CASES 38 Borkiewicz et al (2004) & Hutter & kundi et atl (2006) do not report any quantitative parameters related to health hazards.
* ICNIRP Guidelines in respect of restriction on Specific Absorption Rate (SAR) are available internationally and have been adopted by various European countries, such as UK, Australia, Malaysia and Korea. But, China has adopted more stringent criteria. * Various studies conducted across the world on RF from Mobile Base Stations have shown that the exposures are of a such lower magnitude than the internationally accepted levels.
* At the moment there is no concrete evidence of any health hazard and WHO has the same opinion as mentioned in the latest Fact Sheet modified in May, 2006. The Committee felt that more objective research is needed in the above disorders to quantify the effect on human health.
* WHO in its Fact Sheet No.304 regarding EMF in relation to Base Stations and wireless technology which has been updated in May, 2006 recommends "National Authorities should adopt international standards to protect their citizens against adverse levels of RF fields."
* Taking the above mentioned into account, the WPC.NO.14094/10 & CONN.CASES 39 Committee opined that overall there is not enough evidence to show direct health hazards of RF exposures from Mobile Base Stations."
The Court also held as follows:
"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 WPC.NO.14094/10 & CONN.CASES 40 human beings.
We have already found that RF exposures from Mobile Base Stations are much less than from radio, Fm radio and television transmissions and that the consensus of scientific community is that the radiation from Mobile Phone Base Stations is far too low to produce health hazards if people are kept away from direct access to the antenna and the overall evidence indicates that they are unlikely to pose a risk to health. The strength of radio frequency fields in front of the antennae varies with the distance. Persons standing directly in front of the antennae in these high density zones will get higher exposures. We have also found that the height of Mobile Base Station antennae is normally 36 metres and the effect of radio waves depends on the distance from the base stations since the antennae are directed horizontally with a 5 degree downwards tilt. Human studies pertaining to base stations conducted by Santini R et al (2002), Bortkiewicz et al (2004) & Hutter & Kundi et al (2006) do not report any quantitative parameters related to health hazards. Therefore, it can safely be concluded that the permission granted for installation of Mobile Base Station by the Panchayat would not cause as such any health hazards nor will it affect the fundamental rights guaranteed to citizens under Art. 21 of the Constitution. Right to life enshrined under Art.21 includes all those aspects of life which make life meaningful, complex and worth living. Development of technology has its own ill-effects on human beings, but, at times people will have to put up with that at the cost of their advantages. Petitioner and others for installing towers will have necessarily to comply with WPC.NO.14094/10 & CONN.CASES 41 the statutory provisions contained in Chapter XIX of the Kerala Municipal Building Rules, 1999 which permits construction of telecommunication towers over buildings. Petitioner has submitted that it has already satisfied all those conditions and in such circumstance, Panchayat has granted the licence." Thereafter, the Court referred to the TRAI Act and its powers. The Court also, we notice, held as follows:
"Petitioner has not installed any generator as on today and if the installation of generator would cause any sound pollution, evidently Pollution Control Board can give appropriate direction and the petitioner will have to obtain necessary consent from the Pollution Control Board for installation of generators, so that it would not cause any sound pollution. So also, if the installation of Tower and the emission of electromagnetic waves causes any air pollution, affecting human health the Pollution Control Board can take appropriate measures under Air (Prevention and Control of Pollution) Act, 1991."
Reverting back to the decision of the Full Bench, we notice that since the Full Bench has posted the matter for consideration of the case on merits before this Bench, it is apposite to refer to the following findings as well:
WPC.NO.14094/10 & CONN.CASES 42
26. In the Full Bench decision, it is, inter alia, stated as follows:
"The observations by the Division Bench of this Court earlier, as per the decision in Reliance's case that, as per the scientific data available as on date, it was not established that the activity would result in any health hazards, stands in tact. The respondents have never brought it to the notice of this Court, any decision or material to the contrary, so as to draw a different inference. In any view of the matter, this Court does not propose to examine the correctness or otherwise of the finding in Reliance's case as to the instance of any health hazards; more so since the points of reference are rather something else. Similarly, this Court also does not propose to go into the merits of the contentions raised by the respondents that various other licences are also required under the relevant provisions of Panchayat Raj Act/Kerala Municipality Act/ Kerala Municipal Building Rules, etc., which, however, is strongly rebutted from the part of the petitioners as well...........It may also not be correct to say that this Court does not have the power to consider the various aspects as to the alleged health hazards which according to the reference Court is surprisingly vested only with the Civil Court. Suffice to say, it is not a question of absence of jurisdiction, but a question of necessity for interference. The instance of any health hazards has to be established with reference to tangible materials and evidence has to be let in; for which, it could be said that the matter may require to be adjudicated before the Civil Court.
But then, it is for the concerned party to plead and WPC.NO.14094/10 & CONN.CASES 43 prove as to the specific threat to the health hazards with reference to reliable materials and also as to the alleged infringement of any statutory prescription or violation of the norms prescribed. It is not for the petitioners to prove a `negative aspects' that there is no health hazard. When the petitioners have prima facie established their right to construct and operate the mobile transmission tower by obtaining all the required licences, it is for the objectors, if any, to prove infraction of their right, if any, and to show the dis-entitlement of the petitioners to establish a mobile tower by resorting to the remedy of approaching the licensing authorities, or to approach the Civil Court or by establishing their right in the Writ Petition for police protection. If any such objection is found prima facie established, this Court can certainly decline to grant police protection or in case the respondent fails to prove their right by documentary evidence, could still reserve his right to approach the Civil Court, as the burden to prove any such infraction is on the objector who asserts any such right. That apart, the observations made by the Division Bench of this Court in `Reliance's case' that the scientific study and the materials brought to light as on date did not reveal any such health hazards still stands, as the said observation has not been successfully challenged and no material has been produced to arrive at a different finding."
27. Therefore, the first question which arises is whether any material is produced by the respondents to establish that there is any health hazard, at least, prima facie. We have already referred WPC.NO.14094/10 & CONN.CASES 44 to the findings of the Committee appointed by the Government of India pursuant to the directions of the Bombay High Court as extracted from the judgment in the Reliance Case. We have already also referred to the fact which is again considered by the Bench in the Reliance Case that the Atomic Energy Regulatory Board has reiterated that radio frequency waves used in mobile phones are not covered under the definition of "radiation" as provided in the Atomic Energy Act, 1962, and that non-ionizing radiations do not have the capacity to ionize the matter with which they interact.
28. Now, let us see the materials which are produced by the respondents in these cases.
W.P.(C).NO.35836/2009 Y:
The 11th respondent has, inter alia, stated that it is well settled from scientific studies that electro magnetic radiation emanating from mobile towers would result in health hazards and the people who are continuously exposed to such radiation, would be badly WPC.NO.14094/10 & CONN.CASES 45 affected and are more prone to serious illness, like brain tumour and cancer as a result of such continuous exposure to radiation. There is reference to the high sound emanating from the diesel generators. The students in the area would not be able to study in a peaceful and noise free atmosphere. Ext.R11(f) purports to be an Article published by one Ali Ashraf in a newspaper, highlighting the effects of radiation. There is no mention about the credentials of the Author of the Article by way of his expertise in the field. Essentially, he refers to various studies. In the Reply Affidavit, the petitioners would state that the mobile stations erected by the petitioners are within the safety limits set by the International Council on non-ionizing, radiation protection and it will not create any health hazard. The standard set by the said Council for efficiency levels are safe and have been adopted by most of the countries including India. Reliance is also placed on the report of Technical Committee which is produced as Ext.P11. Ext.R11(e) is produced by the 11th respondent as a communication from the WPC.NO.14094/10 & CONN.CASES 46 Pollution Control Board to the Secretaries of the Panchayats mentioned. It refers to the need for getting permission from the Pollution control Board for using generators as such. In Ext.P11 Report given by the Committee constituted by the Government of Kerala, under the heading "Observations by the Committee", it is stated as follows:
"The committee had gone through the websites of world bodies dealing with the subject. The committee has noted that considerable research had been undertaken by various countries on the subject. Opinions expressed by some of the reputed organizations are as follows:
World Health Organization (WHO) recommends adoption of the International Commission on Non-Ionizing Protection (ICNIRP) 1998 guidelines6 states that these guidelines '.....offer protection against all identified hazards of RF energy with large safety margins7.
" Based on a recent in-depth review of the scientific literature, the WHO concluded that current evidence does not confirm the existence of any health consequences from exposure to low level electromagnetic fields8.
" To date, all expert review on the health effects WPC.NO.14094/10 & CONN.CASES 47 of exposure to RF fields have reached the same conclusion: ....no adverse health consequences established from exposure to RF fields ...... "-WHO9 The WHO states that "current scientific evidence indicates that exposure to RF fields, such as those emitted by mobile phones and their base stations, is unlikely to induce or promote cancers".10 Overall, the existing scientific literature ..... provides no convincing evidence that the use of radiotelephones or other radio systems, whether analogue or digital, poses a long-term public health hazard - European Commission Expert Group. 11 " In many cases where the general public has shown concern, radiation intensity has proved to be less than a thousandth of the permitted level"12. To summarize, mobile telecommunications base stations do not constitute a risk regarding radiation protection.-Swedish Radiation Protection Institute13 " The Nordic authorities14 agree that there is no scientific evidence for any adverse health effects from mobile telecommunication systems, neither from the base stations nor from the handsets... There are a number of published reports suggesting that biological effects may occur at exposure levels below the ICNIRP WPC.NO.14094/10 & CONN.CASES 48 guidelines..... important to note the biological effects do no necessarily imply health hazard"- Nordic Countries: Denmark, Finland, Iceland, Norway, Sweden.
" The AFSEE notes that the general analysis of current scientific data on exposure to base station waves show no health risk linked to mobile phones as base stations........"15 French Environment Heal And Safety Agency (AFSEE) There is no substantive evidence that adverse health effects, including cancer, can occur in people exposed to levels at or below the limits on whole body average SAR recommended by the INIRC (IRPA / INIRC 1998) or at below the ICNIRP limits for localized SAR. 16 No adverse health effects are expected from continuous exposures to the RF radiation emitted by the antennas on mobile telephone base station towers. Australian Radiation Protection and Nuclear Safety Agency.17 The weight of national & international scientific opinion is that there is no substantial evidence that exposure to low level RF EME cause adverse health effects. The view is backed by every major review panel on the subject including the Royal Society of Canada (1999), the International Expert Group on Mobile Phones (2000), the French Health General Directorate (2001) and ARPANSA's RF standard Working Group (2002)".
WPC.NO.14094/10 & CONN.CASES 49 Australia: Committee On Electromagnetic Energy Public Health Issues.18 " Regarding Health Hazards: As per the information available with TRAI there is no definite conclusive study, which confirms that health is adversely affected by radiations emitted by mobile phones"- Telecom Regulatory Authority of India 19 The Atomic Energy Regulatory Body also produced a report before the Mumbai High Court which states that the radio frequency waves used for mobile phones are not covered under the definition of "Radiation" as given in the Atomic energy Act 1962. 20 The International Commission in Non-Ionizing Radiation Protection (ICNIRP) specifies Specific absorption Rate (SAR) for various Frequencies. For 10MHz to 10GHz range, it imposes a basic restriction as described below for an averaging time of 6 minutes.
Localized SAR in 10g(Watts/kg) Whole body SAR (Watts/kg) Head and Trunk Arms and legs General public exposure 0.08 2 4 Occupational exposure 0.4 10 20 WPC.NO.14094/10 & CONN.CASES 50
The Institute of Electrical and electronic Engineers (IEEE) specifications are similar to ICNIRP levels.
Whole body SAR Localized SAR in cube(W/kg)
Watts/kg Head and Trunk Extremities
Uncontrolled
exposure 0.08 1.6(1g) 4(10g)
Controlled
exposure 0.4 10 20
The transmission from a Mobile tower is classified as Non-ionizing, which is difference Ionizing radiations such a X-rays, Gamma rays and atomic radiations. In non-ionizing radiations, thermal effects predominate when it comes to injury to human beings - like in the case of radiations from microwave ovens. Non-ionizing radiation from mobile towers is of low power levels and hence does not produce heating effects that can damage body tissues.
There is an immediate minimum reduction of more than 2 billion times as the microwave energy enters the atmosphere. The signal power level reduces in a logarithmic manner as we move away from the tower.
The mobile antenna are fed 5 watts to 20 watts of power in the normal course. The Standing Advisory Committee on Frequency Allocation (SACFA) under the Wireless Planning Wing of DOT does not give permission to operate above 20 Watts in India. On WPC.NO.14094/10 & CONN.CASES 51 the other hand, mobile set transmit from 0.25 watt to 2 watt depending on the distance from the mobile tower. As the handset moves away it increases the power to a maximum of 2 watts.
As the frequency spectrum (Number of radio channels) is limited, there is a need for mobile operators to establish more and more BTSs to accommodate the ever increasing customer base. As BTS count is increasing, they have to reduce the power of facilitating the frequency reuse. It is now established that the mobile handsets are to be treated with caution than the mobile towers. Many studies caution that a headset that is kept near the brain or heart could affect these parts in the long run if the usage is continuous, especially in children less than 18 years. They suggest the use of hand free devices or speakers rather than direct use of handsets near the ear."
29. Thereafter, under the heading "Need for caution", it is stated that though thermal effect from the mobile radiation is ruled out, it is non-thermal effects which are under research currently by various countries in the world. It is further stated that international bodies still suspect that there could be some effect from microwave transmissions even at the very low power level and are WPC.NO.14094/10 & CONN.CASES 52 in continuously in search of conclusive proof since the past many years. Thereafter, the Committee proceeded to make certain recommendations. They include the recommendations that the towers, both ground and roof based, should be avoided within 50 metres of schools or hospitals. The micro and piocel antenna mounted inside the buildings should not exceed 5 watts. The Government of Kerala is to request the Central Government to ask the Department of Telecommunications to ensure that operators are not exceeding the level stipulated by the TEC through its field units or wireless monitoring units under the Wireless Planning and Co-ordination Wing. It is also recommended that the mobile towers may be permitted across all developable zones in the Zoning Regulations of the Power Planning Schemes subject to the conditions specified in Chapter 19 of the Building Rules. However, it is recommended that Chapter 19 may be amended and 3 metres setback shall be increased to 5 metres (Rule 131(1)). It is further recommended that 1.20 metres specified for the distance WPC.NO.14094/10 & CONN.CASES 53 from the boundary of the plot in Rule 131(3) shall be increased to 3 metres. (Actually, it is to be noted that these aspects have been referred by the Full Bench in its judgment). Petitioners have produced Ext.P10 letter (produced along with I.A No.9997/2010) written by the the Director, Regional Cancer Centre, Trivandrum to the Secretary of the Kudappanakunnu Grama Panchayat dated 11.09.2006, wherein it is stated as follows:
"Radio Frequency (RF) fields are present in the environment ever since the invention of radio. AM/ FM transmission, Television, Radar etc use RF fields. The intensity of these fields including the one that is used in mobile phones is very low. Mobile phone towers emit RF microwaves in the frequency range 800-1000 MHz that are directed towards the horizon. So people staying near the tower will not receive any significant radiation. Besides, the signal fades away rapidly over distance. Microwave is a non-ionising radiation unlike X rays or gamma rays that are ionising. Ionising radiation can cause biological damage. These RF fields do not have sufficient energy to produce direct biological effects. The RF fields generated near mobile towers are thousands of times lower than the recommended maximum exposure levels. (Specific Absorption Rate for Public: 0.08 watt/kg).
WPC.NO.14094/10 & CONN.CASES 54 Scientific studies performed to date suggest that exposure to low intensity non-thermal RF fields do no impair the health of humans or animals. The overall population exposure from mobile phone towers is extremely low and no increased risk for cancer or other diseases has been established.
A group of independent experts led by Sir William Stewart in UK has investigated possible health effects posed by mobile phone technology and has come to the following conclusions. " The balance of evidence indicates that there is no general risk to the health of people living near base stations, on the basis that exposures are expected to be small fractions of guidelines".
From the above it is clear that mobile phone towers are not a health hazard for the Public as per available knowledge.
The facts mentioned above are from different international study groups. Should you require any more clarifications on this, please feel free to write to me."
Ext.P12 is a letter written by the Joint Secretary, Government of India, Ministry of Health & Family Welfare Wing. Therein, it is stated that the Committee constituted pursuant to the direction of the High Court of Mumbai, has opined that overall there is not WPC.NO.14094/10 & CONN.CASES 55 enough evidence to show direct health hazards or RF exposures from Mobile Base Stations. The 11th respondent has produced Ext.R11(j), a report prepared by Professor Thomas Haumann and others, who are stated to be the experts in conducting research on Electro-Magnetic radiation. It is, inter alia, stated in the report as follows:
"The GSM technology of wireless communication produces constant pulsed microwave radiation. The cellular base stations are transmitting continuously even when nobody is using the phone. We know from a variety of scientific studies, that significant biological effects result from the non-thermal effects of extremely periodic pulsed-HF-radiation as are utilized in the most common modern digital cellular and cordless phone systems in Germany and round the world. Official international and national standards and safety guidelines (based on ICNIRP recommendations) are still only taking into account the risk of thermal effects of high energy HF- radiation. Most of the official HF public exposure measurements are conducted to observe the percentage of the current standard with only broadband-not frequency selective-
measurements. Only in very few cases one or more percent of the (thermal) guideline value is reached or exceeded close to antenna sites. Exposure recommendations based on non-thermal effects are by far lower by many magnitudes. Frequency selective measurements are necessary to observe the cellular WPC.NO.14094/10 & CONN.CASES 56 base station downlink frequencies and differentiate from other radiation sources as FM radio or TV transmitters. Therefore, very limited information is available on the exposure to cellular base station radiation in residential areas at difference distances and directions to antenna sites. The objective of this field study was to collect measurement data, statistical evaluation, documentation and exposure assessment for cellular phone tower radiation in Germany. Measurements were conducted at different distances and directions, inside and outside of representative public and residential buildings. Frequency selective spectrum analysis was used to obtain capital GSM power densities following the current recommendations for capital GSM cellular phone radiation measurements."
Thereafter, there is reference to the methods employed, as follows:
" BELOW AND CLOSE TO ROOF TOP POSITIONS Directly below roof top positions (e.g. schools, preschools homes) significant exposures in the range of a few 1,000 uW/m2 were observed due to secondary side lobes and reflections. During our data collection, highest exposure values in the range of 10,000-100,000 uW/m2 were observed very close to low antenna/roof top positions at inside and outside locations in line of sight and distance < 100 meter."
Summary:
WPC.NO.14094/10 & CONN.CASES 57 The results of this study show that the GSM cellular phone tower radiation is the dominating HF source in residential areas in Germany. The median power density is found in the range of 200 uW/m2 (50.
percentile) with the maximum value exceeding 100,000 uW/m2. No location reached or exceeded the standard values for the USA or Germany. For comparison, thermal (official threshold), other non-thermal (recommendations), and cellular tower exposure reference values are listed in table
2..................Therefore, in respect to recent studies and review of articles regarding non-thermal biological effect of e.g. pulsed GSM radiation, the STOA study concluded with a considerable concern. For example 25% of the locations the long term exposure levels are very high above 1,000 uW/m2, which has been suggested to be the average threshold value for non- thermal biological effects. These levels are reached especially is proximity of the antenna sites, directly below antenna sites and in line of sight in a distance of < 250 m. Two of the most important limiting factors are the distance and the direct line-of-sight to the antenna site. But, in proximity to the antenna site the GSM radiation levels are scattered due to various influencing parameters and cannot be calculated easily by using antenna power and distance models only. In general, exposures for without line of sight locations are about 90 % (-10 dB) lower than those for line of sight.
The Authors would conclude, inter alia, as follows:
" The human body reacts more complexly than acknowledged in the thermal model and is sensitive to WPC.NO.14094/10 & CONN.CASES 58 extreme periodic stimuli. The biological system takes the "energy" as well as the "information" which is brought by the continuous pulsed modulation pattern. Much experimental evidence of non-thermal influences of microwave radiation on living systems have been published in the scientific literature during the last 30 years - relating both to in vitro and in vivo studies - and were reviewed just recently by the STOA commission of the European Parliament (STOA 2001). From the use of microwave wireless technologies e.g. the following non-thermal biological effects have been reported:
Changes in the electrical activity in the human brain (VON KLITZING 1995) Increase in DNA single and double strand breaks from RF exposure to 2.45 Ghz (LAI & SINGH 1996) Increased lymphoma rates (2 fold) in transgenic mice exposed twice a day exposed to 30 minutes of cell phone (GSM) signals over 18 month (REPACHOLI 1997) Increased permeability of the blood-brain barrier in rats (PERSSON 1997) Production of heat shock proteins and cancer risk (FRENCH 2001) Higher risk of uveal melanoma (STANG 2001) Other reported effects include e.g. (STOA 2001):
WPC.NO.14094/10 & CONN.CASES 59 7 Observation of an increase in resting blood pressure during exposure.
7 Increased permeability of the erythrocyte membrane. 7 Effects on brain electrochemistry (calcium efflux), 7 Increase of chromosome aberrations and micronuclei inhuman blood lymphocytes, 7 Synergistic effects with cancer promoting drugs and certain psychoactive drugs, 7 Depression of chicken immune systems, 7 Increase in chick embryo mortality, 7 Effects on brain dopamine/opiate electrochemistry, 7 Increase in DNA single and double strand breaks in rat brain, 7 Stressful effects in healthy and tumour bearing mice, 7 Neurogenetic effects and micronuclei formation in peritoneal macrophage.
From the scientific point of view adverse human health effects of non-thermal radiation levels cannot be exactly quantified, verified, or excluded at this time. Only limited toxicological information is available in respect to the widespread use and the economical impact of the cellular phone systems in industrial nations. On one side, there is always a demand for scientific proof for human adverse health effects and dose response when establishing official economically reasonable guideline exposure threshold values. On the other side, insufficient limit of detection, insufficient dosimetry and exposure control, and industry friendly research bias the risk assessment for long-term adverse health effects, especially in the field of the cellular phone industry. That makes it clear-that by definition-official guideline WPC.NO.14094/10 & CONN.CASES 60 standard values can only limit the consequences of adverse health effects in the frame of the economical impact. "
Under the head "recommendations", it is stated as follows:
" We recommend to follow the principle of prevention. This includes implementation of residential exposure minimization and prevention procedures in the frame of the technical feasibility as long as the non-thermal effects are not considered in any official standard and guideline. These will include especially sensitive locations as preschools, schools, hospitals and residential areas. So far, no other technical aspects than interferences, system coverage and system performance are taking into account. By official definition, the cellular phone system covers an area when the signal strength of about 0.001 uW/m2 is reached we expect that with little effort, cities, communities, and the providers will be able to significantly reduce the long term radiation exposures to cellular phone towers in residential areas. "
30. Ext.R11(k) purports to be the Minutes of the meeting chaired by the Minister of Local Self Government Institutions. It was decided to issue circular to ensure that when there are WPC.NO.14094/10 & CONN.CASES 61 complaints from the public about the siting of the tower, there should be discussion and the matter should be settled and a suitable place found out. It is also decided to not repeat the process of illegally issuing stop memos. Ext.R11(l) (marked as Ext.R3(i)) purports to be the report prepared by Prof.Girish Kumar, Electrical Engineering Department, IIT Bombay, on the Biological Effects of Electro Magnetic Radiation. The Author would, inter alia, state as follows:
All the transmitting towers, such as AM and FM towers, TV towers, cell towers etc emit RF/microwave radiation continuously. Also, Wi-Fi (wireless Internet) wireless computers, cordless phones and their base units, cell phones and all other wireless devices emit microwave radiation. Cell phones operate within the frequency band of 800 Mhz, 900 Mhz and 1800 Mhz and the latest 3G technology works between 1900-2200 Mhz. Microwave radiation effect can be classified as thermal and non-thermal. The thermal effect has been largely studied and refers to the heat that is WPC.NO.14094/10 & CONN.CASES 62 generated due to absorption of microwave radiation. Exposure to thermal effect could cause fatigue, cataracts and reduced mental concentration. Sadly, the current exposure safety standards are purely based on the thermal effect while ignoring the non-thermal effects of radiation. The Author refers to various reports in news papers from across the world. It is, inter alia, stated as follows:
7 "Base stations affect health negatively, Among people living closer than 300 m away from the base station, a French study found an increased incidence of tiredness within 300m, of headache, sleep disturbance, discomfort, etc, within 200 m, and of irritability, depression, loss of memory, dizziness libido decrease, etc. Within 100 m.
Women were found to complain significantly more often than men of headache, nausea, loss of appetite, sleep disturbance, depression, discomfort and visual perturbations. This study, based on the symptoms experienced by people living in vicinity of base stations recommend that the minimal distance of people from cellular phone base stations should not be < 300 m. (Santini R, et al 2002) 7 New Austrian research confirms health effects of base station radiation.
Another study where tests were done on subjects WPC.NO.14094/10 & CONN.CASES 63 living within 20-600 meters from Mobile Phone Base stations were found to have sleeping problems and effect on cognitive performance. (Hutter et al 2006) 7 Building Top Floors under the Antenna Closed After Brain tumor Alert The Australian UK (5.13.2006) After a seventh case of brain tumor observed among workers in the top floors of a Melbourne office building, the top floors were closed down and 100 people were evacuated. The mobile phone towers on the roof of the 17-storey RMIT University building were thought to be linked to the recurrent cancer cluster.
7 Three groups find danger of tumors Sun Sentinel, florida (1.2.2006) Three European research groups in separate studies have found an increased risk of brain tumors in people who have used the phones for 10 years or more. Two of the studies found a correlation between the tumor's location and the side of the head where people reported they held the phone (Hardell et al 2003).
One also suggests the greatest risk is in people who began using the phones before age of 20. Lennart Hardell found that the use of cell phones before age of 20 increased the risk of brain tumors by 5.2, compared to 1.4 for all ages."
WPC.NO.14094/10 & CONN.CASES 64 There is reference to increased brain cancer risk for people who use the phone more intensively and for more years. There is again reference to a German study and a research and it is stated as follows:
" What they found is quite telling: the proportion of newly developed cancer cases was three times higher among those who had lived during the past ten years at a distance of up to 400m from the cellular transmitter site, compared to those living further away. They also revealed that the patients fell ill on average 8 years earlier.
Computer stimulation and measurements used in the study with both show that radiation in the inner area (within 400m) is 100 times higher compared to the outer area, mainly due to additional emissions coming from the secondary lobes of the transmitter."
The Author, would also say as follows:
" Mumbai has witnessed a spurt in the number of phone towers in the recent past exposing people to dangerously high levels of radiations. Being exposed to such radiations, this leads to problems like loss of appetite, irritation, fatigue, difficulty in concentrating, headaches, problems in vision, infertility and deformity of fetus. Medical experts feel it is a 'slow and invisible killer'."
WPC.NO.14094/10 & CONN.CASES 65 Under the heading "Radio-Wave Sickness", it is stated as follows:
" Unfortunately, cell phone users are not the only ones, whose brains and ears are getting affected. Organs such as the lungs, nervous system, heart, eyes, testes and thyroid gland have been shown to be especially susceptible to radio waves.
Diseases such as asthma, sleep disorders, anxiety disorders, attention deficit disorder, autism, multiple sclerosis, ALS, Alzheimer's disease, epilepsy, fibromyalgia, chronic fatigue syndrome, cataracts, hypothyroidism, diabetes, malignant melanoma, testicular cancer, heart attacks and stokes in young people have increased remarkably in the last couple of decades, and have shown to be connected with massive increase in radiation in our environment. Radiation changes sleep rhythm, affect's body's cancer-fighting capacity by harming immune system and changes nature of electrical and chemical signals communicating between cells. These changes lead to functional changes in the nervous system. It also causes red blood cells to leak hemoglobin, leading to heart disease and kidney stones."
It is also stated as follows:
"Melatonin Reduction " Melatonin is a powerful antioxidant, antidepressant and immune system enhancer that regulates our circadian rhythm. When availability of melatonin is WPC.NO.14094/10 & CONN.CASES 66 impaired, a whole range or disorders including sleep disturbances and psychological imbalances such as depression can occur (Abeline et al 1999) Various studies show that exposure to EMR reduce melatonin levels in people (wilson et al. 1990. Wood et al 1998). Melatonin protects the brain against damage leading to Alzheimer's disease; hence degenerative diseases such as Alzheimer's and Parkinson's disease as well as cancer have been linked to suppressed melatonin production in the body."
It is stated that "keep out of Mobile phone towers/base stations." Studies indicate an increased rate of diseases, including cancers, within about 400 m from them." It is stated that the thermal measurements taken at a cell phone base station have ranged as high as 900W/KG whereas the permissible SAR level for cell phone base station antenna is 100 W/KG. There is also reference to significant environmental effects of cell tower radiations. Referene is made to effect on birds, farm animals and vanishing of bees.
W.P.(C).NO.31772/2009 N
31. Ext.R3(n) is the same Report by Professor Girish Kumar, WPC.NO.14094/10 & CONN.CASES 67 which we have already referred above, while Ext.R3(k) purports to be a Circular issued in terms of the decision which we have also already referred to, as per which where there is protest from the public, suitable place has to be found out after discussion with the public. In W.P.(C).No.13403/2010, Ext.R2(h) purports to be the Report of Professor Girish Kumar which we have already referred above.
32. Let us now examine the material produced by the petitioners. Shri A. Mohamed Mustaque in his Compilation would refer to WHO Paper on ionizing radiation. It states, inter alia, as follows:
Energy emitted from a source is generally referred to as radiation. Examples include heat or light from the sun, microwaves from an Oven, X rays from an X-ray tube, and gamma rays from radioactive elements. Ionizing radiation is stated to be radiation with enough energy so that during an interaction with an atom, it can remove tightly bound electrons from the orbit of an WPC.NO.14094/10 & CONN.CASES 68 atom, causing the atom to become charged or ionized. Ionizing radiation occurs in waves or particles. Radiowaves, heat waves, infrared light, visible light, ultraviolet light, X rays and Gamma rays are different forms of electromagnetic radiation. They differ only in frequency and wave length. It is also stated that longer wave length, lower frequency waves (heat and radio) have less energy than shorter wave length, higher frequency waves (X-ray, gamma rays). Not all electromagnetic (EM) radiation is ionizing. Only the high frequency portion of the electromagnetic spectrum is ionizing. Another paper produced is stated to be part of a series of background paper prepared for ITU Forum (International Telecommunication Union Forum) of the regional working group of the private sector issues, Asia and Pacific region, in New Delhi, India. It is a Forum said to be jointly organized by the ITU and the Cellular Operators' Association of India and hosted by the Department of Telecommunications. In the same, it is, inter alia, stated as follows:
WPC.NO.14094/10 & CONN.CASES 69 There is also lack of awareness that RF radiations emitted by the mobile base station lie in the non-ionizing part of the electromagnetic spectrum and thus do not have enough energy to cause genetic damage. It is also not known to most people that the average level of RF exposure from the base station is only 0.002 per cent, ie. 50,000 times lower than the levels laid down in the recommended guidelines. Then, there is reference to the electromagnetic spectrum and it is stated that the range of frequencies used for radio transmissions, radio frequency (RF) signals lie in the non-ionizing part in the electromagnetic spectrum and do not have any energy to cause genetic damage. The WHO is quoted and it is stated by it as follows:
"An adverse health effect causes detectable impairment of the health of the exposed individual or of his or her offspring; a biological effect, on the other hand, may or may not result in an adverse health effect.
It is not disputed that electromagnetic fields above certain levels can trigger biological effects.
Experiments with healthy volunteers indicate that short-term exposure at the levels present in the WPC.NO.14094/10 & CONN.CASES 70 environment or in the home do not cause any apparent detrimental effects. Exposures to higher levels that might be harmful are restricted by national and international guidelines. The current debate is centred on whether long-term low level exposure can evoke biological responses and influence people's well being."
It is further stated as follows:
"Some people believe that there are possible thermal or non-thermal effects of exposure to RF fields. This refers to alleged effects at levels of exposure too low to cause detectable heating. Reports of such effects have been considered, however, the effects have not been substantiated and therefore, the heating or thermal effects are regarded as the only scientifically acceptable basis for RF exposure safety standards setting.
In commenting on reports of `thermal' effects ICNIRP concludes in the 1998 guidelines that:
Overall, the literature on thermal effects of AM (Amplitude Modulated) electromagnetic fields is so complex, the validity of reported effects so poorly established, and the relevance of the effects to human health so uncertain, that it is impossible to use this body of information as a basis for setting limits on human exposure to these fields."
It is again stated as follows:
"In 1995, Dr. Michael Repacholi commented in WPC.NO.14094/10 & CONN.CASES 71 a report prepared by him as the then Chairman of ICNIRP:
All learned reviews have concluded that the RF fields emitted from base stations do not have any known impact on health. While research is continuing to determine if there are any health effects from very low levels, it is only possible to make decisions based on our present knowledge.
Regulators are well aware of the fact that physical agents such as X-Rays, asbestos and smoking were once considered safe but later studies revealed they were not. In the case of radio frequency, studies have continued for some 40 years and laboratory techniques are extremely sensitive. While it cannot be dismissed that subtle effects will be found in the future, it is comforting to know that a large amount of research has been conducted and international standards have not had to be lowered for more than fifteen years. Another point that needs to be remembered is that RF emissions from base stations are some 50,000 times lower than the levels at which the first health effects begin to be established." It is also stated as follows:
"To date, all expert reviews on the health effect4s of exposure to RF fields have reached the same conclusion: There has been no adverse health consequences established from exposure to RF fields at levels below the international guidelines on exposure limits published by the International Commission on Non-Ionizing Radiation Protection".
WPC.NO.14094/10 & CONN.CASES 72
33. In Compilation No.4 produced by Shri A. Mohamed Mustaque, reference was made to a Paper on Health effects of electromagnetic field by the Department of Communications, Marine and Natural Resources, Ireland. It is stated that the Report was compiled by a group of experts from the electromagnetic field.
An electromagnetic field is a generic term for fields of force generated by electrical charges or magnetic fields. Under certain circumstances, EMF can be considered as a radiation when they radiate energy from the source of the fields. Electromagnetic waves periodically change between positive and negative. The number of changes per second is called the frequency and is expressed in hertz. In response to the question, are there any harmful health effects from living near base stations or using mobile phones, is stated as follows:
"Response: From all the evidence accumulated so far, no adverse short or long term health effects have been shown to occur from exposure to the signals produced by mobile phones and base station transmitters. However, studies have mainly involved looking at cancer and cancer-related topics. Among WPC.NO.14094/10 & CONN.CASES 73 other studies being planned are prospective cohort studies of children and adolescent mobile phone users and studies of health outcomes other than brain cancer including more general health outcomes such as cognitive effects and sleep quality.
The only established adverse health effect associated with mobile phones is with traffic accidents. Research has clearly demonstrated an increase in the risk of traffic accidents when mobile phones (either hand held or with a hands-free kit) are used while driving."
Under the heading "Children and base stations", it is stated as follows:
"Children and base stations:
It is common for the public to object to proposals to build phone masts in their neighbourhood. When the proposal involves the phone mast being located near a school or creche or health centre or indeed anywhere children gather the number of objections will usually increase.
In Ireland there are 4500 base stations in an area of just over 70,000 km2. If these masts were evenly distributed geographically no one would be more than 2.5 km from a mast. However because the distribution of masts reflects the distribution of the population, in urban areas no one is likely to be more than a kilometre from the nearest mast. This can be WPC.NO.14094/10 & CONN.CASES 74 confirmed by accessing the Communications Regulator's website www. ComReg.ie. It is clear that it is no longer possible for anyone, including children, to live anywhere in Ireland and not be exposed to the RF fields emitted by phone masts. However, it is equally the case that there is nowhere in Ireland where a child is not exposed to the RF fields produced by local, national and international radio and television broadcasting stations. Indeed there are now few adults who have not been exposed to radio broadcasts all of their lives. Furthermore, the fields from TV and radio stations are usually stronger than those from mobile phone masts.
One reason for the absence of concern regarding radio and TV is that broadcasting transmitters are more powerful than base station phone masts, so fewer of them are required to cover an area. However, over 500 transmitters are still required to provide national TV coverage. Another explanation is that radio and TV transmitters are generally located on high ground that is usually unpopulated; in the case of the most powerful transmitters exclusion areas are employed to restrict public access from the areas where the RF fields might exceed international guideline limits.
The levels of public exposure to phone masts are usually thousands and often tens of thousands times below the international limits. The highest exposures at ground level are found some 50 m to 300 m from the phone mast. Fields at ground level at the site and within 50 m of the mast are generally lower than those at 200 m to 300 m distance.
WPC.NO.14094/10 & CONN.CASES 75 National and international health advisory authorities have concluded that exposure to base station phone masts is not associated with adverse health effects. The position is summarised in a conclusion of the Stewart report (IEGMP, 2000):
"The balance of evidence indicates that there is no general risk to the health of people living near to base stations on the basis that exposures are expected to be small fractions of guidelines."
The fact that exposures are very small fractions of the internationally accepted guidelines of ICNIRP has been demonstrated by the Communications Regulator's "400 Site Survey" (ComReg, 2004). The WHO workshop on children's exposure to EMF (WHO, 2004) also concluded that from the low exposures and the scientific evidence collected to date, it appeared highly unlikely that the weak signals to which people are exposed from base stations could cause cancer or any other adverse health effects. This was explained in the WHO fact sheet on mobile phone base stations and wireless networks (WHO, 2006).
Children and base stations - conclusions:
There is no scientific basis for, or evidence of, adverse health effects affecting either children or adults as a result of their exposure to RF fields from phone masts.
This applies irrespective of the location of the phone mast. While the maximum exposures from a phone mast will occur at some distance from the mast, WPC.NO.14094/10 & CONN.CASES 76 and not in its immediate vicinity nor underneath it, the exposures are so low as to make it immaterial where masts are located with respect to schools, playgrounds, health centres or other places where children gather."
It is further stated as follows:
"ICNIRP ICNIRP is the formally recognised non- governmental Organisation responsible for non- ionising radiation protection for WHO, the International Labour Office (ILO), and the EU. Among other things it provides guidelines on limiting the exposure of the public to EMF, optical radiation, ultrasound and infrasound. The ICNIRP guidelines limiting public and occupational exposure to EMF are endorsed by the WHO; have been adopted by a great many countries around the world; and are incorporated into an EU occupational exposure Directive (EU, 2004) and a public exposure Recommendation (EU, 1999). In Ireland, the ICNIRP guidelines have been adopted by both the Communications Regulator and the Commission for Energy Regulation.
ICNIRP guidelines and long-term exposure:
The ICNRP guidelines are based on comprehensive review of all relevant published peer-
reviewed literature. Exposure limits are based on effects relating to short-term acute exposure as the above question implies. However, it is not the case that long-term exposures are disregarded or WPC.NO.14094/10 & CONN.CASES 77 discounted, it is simply that the available information on long-term effects is considered to be insufficient to establish exposure limits. For example, there have been several very large lifetime exposure studies involving animals. These studies have involved exposures to both ELF and RF fields, corresponding respectively to power line fields and mobile phone fields. So far, none of these studies have established any adverse health effects at exposures corresponding to the present guideline limits or at higher levels." Under the head "Base stations", it is stated as follows:
"A common concern about base stations is that whole body exposure to the RF signals they emit may have long term health effects. To date, the only acute health effects identified from RF fields are related to increases in temperature of more than about 1oC, as discussed above. The levels of RF exposure from base stations (and other local wireless networks) are so low that the body's temperature rise is insignificant.
The strength of an RF field is greatest at its source and diminishes rapidly with distance. At or near ground level, in the vicinity of a typical 25-metre high base station mast, RF exposure is much lower than that received from a mobile phone. Because base station antennas do not radiate equally in all directions, but in a collimated beam tilted slightly to the ground, the maximum ground level exposure is always at some distance from the base of the mast.
Recent measurements made in Ireland as part of the "400 Site" Survey (ComReg, 2004) indicate that RF WPC.NO.14094/10 & CONN.CASES 78 exposures from base stations are thousands of times below international exposure guidelines and are similar to or below those from radio and television broadcasting antennas.
Over the past 15 years a small number epidemiological studies have been undertaken to examine the association between cancer incidence and living near RF transmitters (UK, 2004; WHO, 2005). These studies have provided no evidence that RF exposure from transmitters increases the risk of cancer, even though the RF exposures are much higher than those found near base stations (WHO, 2006).
It is of interest to note that more of the energy from the RF fields emitted by TV and FM radio transmitters is absorbed in the body than those from base stations. This is because the frequencies used in FM radio (around 100 Mhz) and in TV broadcasting (around 450MHz to 600MHz) are lower than those employed in mobile telephony (900 Mhz and 1800 Mhz). At these lower frequencies the height of the adult human acts as a more efficient receiving antenna. Children, because of their smaller size, absorb somewhat more RF energy at higher frequencies than do adults. While radio stations have been broadcasting for 80 years and TV for over 50 years without being associated with adverse health effects, there has been only a limited amount of research undertaken in this area. Essentially, there have been few reasons to carry out such studies.
Mobile telephony involves the transmission of WPC.NO.14094/10 & CONN.CASES 79 complex digital signals. Soon many radio stations and most TV stations will also be transmitting their programmes digitally. Detailed reviews conducted on the possible health effects of digital signals have, so far, not revealed any hazard specific to different RF modulations (Foster and Repacholi, 2004; WHO, 2005).
In addition to these studies there have been occasional media reports of cancer clusters around mobile phone base stations and these have heightened public concern. When these clusters are analysed it is often found that the reported cluster doesn't exist. This can be due to a number of factors including multiple reporting of the same cases; some of the reported cancers having occurred many years before the existence of the base station; or that a number of the cancers were clearly associated with heavy smoking or some other more likely cause. Indeed, because cancer is primarily a disease that affects older people, over 20% of the Irish population will eventually die of cancer.
Although most cancer clusters reported in the media can be explained, the distribution of cancer in a population follows what is termed in statistics as a `Poisson distribution'. Because of this, the distribution of the incidence of cancer in small areas will be very uneven, with some locations having many more cases than the average, and others far fewer. Further, since there are 4500 phone masts in Ireland, distributed relatively evenly among the population, it is to be expected that at any location where a cancer cluster is reported, there is likely to be a phone mast. This does WPC.NO.14094/10 & CONN.CASES 80 not mean that the phone mast is the cause of the cluster."
34. Learned counsel for the Cochin Corporation referred to the phenomenon of electromagnetic hypersensitivity. Under the head "Electromagnetic Hypersensitivity", it is stated as follows in the Irish Report (supra):
"Electromagnetic Hypersensitivity:"
What is EHS ?
The term `electromagnetic hypersensitivity' (EHS) is often used to denote a phenomenon where individuals experience adverse health effects while using or being in the vicinity of electric, magnetic, EMF sources and devices, and when the individuals themselves attribute their symptoms to EMF emissions from these sources and devices. There are no standardised diagnostic criteria available and, although the symptoms experienced vary substantially among the affected individuals, they are generally non-specific with no objective signs present. The severity of the condition varies; the majority of cases present mild symptoms, but some people experience severe problems with major consequences for work and everyday life (SSI, 2004).
There is little support for the term `electromagnetic hypersensitivity' to describe t4his WPC.NO.14094/10 & CONN.CASES 81 condition among medical specialists. The symptoms and the distress they cause clearly exist, but, so far, no study has been able to prove a link between EMF exposure and the occurrence of symptoms. At a recent workshop organised by the WHO on the subject (WHO, 2004), it was proposed that, the term should not be used. Instead the expression `idiopathic environmental intolerance' or IEI was suggested. The independent Expert Group to the Swedish Radiation Protection Agency, who also recommend against the use of the term `electromagnetic hypersensitivity', believe that any term that combines exposures and health consequences will hinder further studies (SSI, 2004)."
It also stated that in a Swiss EHS study, it was found that the most common reported symptoms were sleep disorders, followed by headaches, nervousness or distress, fatigue and concentration difficulties. It is stated that, there is no doubt, that the symptoms affecting EHS individuals (electromagnetic sensitivity) are real and this has led national and international authorities to investigate and determine. It is further stated as follows:
The authors in studies conducted in 2005, concluded that while the symptoms described by EHS sufferers can be severe and are sometimes disabling, it was difficult to show under blind WPC.NO.14094/10 & CONN.CASES 82 conditions that exposure to EMF can trigger these symptoms. They concluded that EHS was unrelated to the presence of EMF and this conclusion is shared by a United States review. It is also stated that as sham exposure was sufficient to trigger severe symptoms in some participants, psychological factors may have an important role in causing this condition. In conclusion, it is stated that a WHO workshop in Prague (WHO, 2004) attended by leading European researchers on EHS, concluded that EHS has no scientific basis to link its symptoms to EMF exposure. Further, EHS is not a medical diagnosis, it is stated.
35. In Compilation No.2, Shri A. Mohamed Mustaque has produced certain pages from the International Telecommunication Union Paper from the Telecommunication News Magazine. It is, inter alia, stated as follows:
"Many Brazilian cities have now established rules that limit radio station installations in urban areas. Also, there is a national regulation establishing limits for electromagnetic emissions, based on the International Commission on Non-Ionizing Radiation Protection (ICNIRP) guidelines. However, due to the WPC.NO.14094/10 & CONN.CASES 83 lack of a device to demonstrate that the levels of radiation are within permitted limits in the vicinity of a radio tower, the number of lawsuits has risen. Alongside municipal laws to slow down installations, this significantly complicates expansion projects.:"
It is also stated as follows:
"The monitoring system that was developed in Brazil performs continuous measurements and simulations of the intensity of non-ionizing radiation (NIR) produced by base stations of wireless telecommunication systems. The system allows users to see, via the internet, a map of actual electromagnetic emissions in their city, or to examine simulations of the emissions from changes to the wireless network."
Sri. A. Mohamed Mustaque has also relied on communication from the Government of India, Department of Telecommunication Engineering Centre. We find that it is stated as follows :
GENERAL DOT vide letter No.800-15/2010-VAS dated 8th April 2010 has directed all CMTS/UAS licensees for compliance of the reference limits/levels prescribed by International Commission on Non-
Ionizing Radiation Protection (ICNIRP) for exposure for general public in respect of electromagnetic emission by Base Transceiver Stations (BTSs). The limits/reference levels are reproduced WPC.NO.14094/10 & CONN.CASES 84 below:
Type of Frequency Electric field Magnetic field Eqivalent Plane Exposure range strength (V/m) Strength (A/m) Wave Power Density S (W/m2) General Public 400-2000 MHz 1.375f 0.0037f f/200 20300 GHz 61 0.16 10 f is the frequency of operation in Mhz.
TEC had published Test Procedure for measurement of EMF from Base Transceiver Stations vide Document Ref.No.TEC/TP/EMF/001/01.SEP 2009.The procedure seeks for compliance of Electromagnetic Field exposure levels prescribed by International Commission on Non-Ionizing Radiation Protection (ICNIRP).
This document addresses the number of representations seeking clarification received from associations of Service Providers and with an objective to provide assistance to the Telecom Enforcement Resource & Monitoring (TERM) Cells for audit verification of EMF compliance of BTSs. It is very important to note that Electromagnetic Emission should be below the above limits prescribed for general public and if emission levels are higher, those areas should be restricted for access to general public and duly marked as exclusion zone. Adequate barricades should be erected and signboard for caution of Electromagnetic Radiation Hazard/Danger should be put on the likely entry points of the exclusion zones.
This document serves as an addendum to the aforesaid TEC Test Procedure. Based on the experience gained so far, it elaborates the methodology, Calculations, Measurements and report formats for verification of compliance of a BTS to the above limits."
WPC.NO.14094/10 & CONN.CASES 85
36. The communication provides for estimation of EIRP (Total) for each operator. It provides for various methods for compliance. It also says mobile service operator should have proper signage warning entry of general public of the exclusion zones. It provides for various signs. They include warning non-ionizing radiation ! Beyond the point RF fields exist that exceed the rules for human exposure Authorised personnel only. It also states another sign danger RF radiation ! Do not touch tower ! Access to Authorsed Personnel only ! Caution ! non-ionizing radiation!
37. Sri. A. Mohamed Mustaque also place reliance on the communication dated 8.4.2010 from the Government of India to CMTS/UAS Licensees.
"Licensee shall conduct audit and provide self certificates annually as per procedure prescribed by Telecommunication Engineering Centre (TEC)/ or any other agency authorized by Licensor from time to time for confirming to limits/levels for antennae (Base Station Emissions) for general public exposure as prescribed by international Commission on Non-ionizing Radiation Protection (ICNIRP) from time to time. The present limits/levels are reproduced as detailed below:
WPC.NO.14094/10 & CONN.CASES 86 Frequen E-Field H-Field Power cy range Strength Strength Density (Volt/Me (Amp/M (Watt/Sq ter eter .Meter (V/m) (A/m) (W/Sq.m ) 400 1.375f 0.0037f f/200 MHz to 2000 Mhz 2GHz to 10 300GHz 61 0.16 (f= frequency in Mhz)
Note: The compliance in the form of Self Certificate shall commence six months after the date of issue of prescribed test procedure by TEC or any other agency authorized by Licensor."
2. TEC has since issued the test procedure No.TEC/TP/EMF/001/01.SEP-2009 which has been intimated to the Licensees vide letter dated 09.11.2009.
3. In view of the above, the following instructions are issued for meeting the ICNIRP guidelines:
(i) All existing BTSs should be ICNIRP guidelines complaint by 08.05.2010 as the TEC test procedure has been circulated on 09.11.2009. Therefore,all BTSs should be self certified as meeting the radiation norm. Self certification should be submitted to respective Telecom Enforcement Resource & Monitoring (TERM) Cells of DOT by 15.05.2010.
(ii). All new BTS sites should start radiating only after self certificate has been submitted to relevant TERM Cells.
(iii) The TERM Cell will test up to 10% of new BTS sites randomly WPC.NO.14094/10 & CONN.CASES 87 at its discretion. Additionally, the BTS sites against which there are public complaints, shall also be tested by TERM Cell. The testing shall be done as per procedures prescribed by Telecom Engineering Center (TEC) from time to time.
(iv) The cost of test for audit of EMF exposure from BTS shall be borne by the the Mobile Service Operator, which shall be Rs.10,000(Rs.Ten Thousands only) for one site/per Service Provider.
(v) Tools and equipments for testing would be provided by the concerned Mobile Service Provider to the TERM cell.
(vi) If a site fails to meet the EMR criterion, a penalty of Rs.5 lakh shall be levied as per BTS per service provider. Service providers must meet the criterion within one month of the report of TERM cell in such cases, after which the site will be shut down.
(vii) The BTS site details would be hosted on Telecom Engineering Center (TEC) website on submission of self test and registration with TERM cell, giving the test result and mentioning that the BTS site is self certified by the service Providers. Nature of compliance will be mentioned against each BTS i.e. self certified, TERM certified and not certified. After the BTS site has been tested by TERM cell, status of the BTS site will be changed to be "TERM certified."
(viii) The service providers also have the option of getting all the BTS sites tested from TERM cell by paying the requisite fee. TERM cell will test such sites at their discretion depending upon the availability of resources with them. If they are not able to test such sites either the test fee shall not be accepted or will be refunded within a month's time, if a commitment to test the site within next 6 months is not given."
WPC.NO.14094/10 & CONN.CASES 88 He has also produced communication to show terms of expanded telecom enforcement and monitoring cells have been set up which were formerly known as VTM cells. They have been entrusted with functions including monitoring functions to inter alia check compliance by the licensee in respect of license conditions and any directions issued by the licensor in public interest. Petitioners have also produced communication dated 8th June, 2010 referring to letter dated 8.4.2010 which were adverted to and which related to instructions on implementation of radiation norms on EMF exposure by Base Transceiver Stations. The time line for self certifying by stations was extended by 6 months that is till 15.11.2010.
38. Mobile phone works on Electromagnetic radiation. In the state of materials on record the radiation involved can safely be treated as non-ionizing. It does cause thermal effect. But the thermal effect produced is far too insignificant to constitute a perceptible health hazard provided the radiation is confined to internationally prescribed standards.  We have already noticed the concept of Electromagnetic Hypersensitivity.
39. There is an international body concerned with the effects of such radiation. The standards prescribed by the said body is sought WPC.NO.14094/10 & CONN.CASES 89 be enforced by Government of India also. It is the view taken by the large number of scientific experts that radiation in conformity with the said standards have not been established to produce any health hazards as such. At any rate, we do not think that it is appropriate for this Court with the material as such on record alone to hold that the respondents have established that siting of the tower would pose a health hazard sufficient enough to warrant this court to decline jurisdiction to grant police protection if the petitioners are otherwise entitled to the same. We must notice that we are not called upon to decide upon the question of health hazards emanating from the use of mobile phones and a distinction must be maintained between the use of mobile phones and the alleged dangers emanating from the operation of a mobile tower. Going by the materials, it does appear that there are international standards. Radiation in deviation from the said standards is, in law, liable to be visited with serious consequences including stoppage of the operations. It is not established before us that these standards are being violated. We have to remind ourselves that the use of mobile phone is a modern day wonder and the contribution of technological advancement which has marked the twentieth century, in particular. Undoubtedly, its use is WPC.NO.14094/10 & CONN.CASES 90 invaluable, not only to the individual as such, but to the Nation itself, as it would be instrumental in bridging the communication gaps that isolate, otherwise inaccessible areas of the country. Its uses in a vast array of areas is so formidable that it can in one sense be treated as a priceless boon of science. It cannot be gainsaid that nothing comes without a price-tag and the resolution of every problem of this nature must be in the adoption of a balanced view. Needless to say, we do not mean that we have precluded the rights of the respondents to approach the civil court and seek relief against the petitioners by letting and producing materials as they are advised in which case necessarily the civil court shall decide the matter untrammelled by anything contained in this judgment.
40. The further question is whether any other permission is required for operating the mobile towers other than the permit under the Building Rules ?
We must deal first with certain preliminary objections in this regard. We must address the argument of Shri Philip Mathew, learned counsel for the petitioners that Section 233 will apply only WPC.NO.14094/10 & CONN.CASES 91 in a situation where Section 232 applies. Section 232 of the Panchayat Raj Act reads as follows:
"232. Purpose for which places may not be used without a licence.- (1) The Village Panchayat may notify that no place in the Panchayat area shall be used for any of the purposes specified in the rules made in this behalf being purposes which in the opinion of Government, are likely to be offensive or dangerous to human life or health or property, without a licence issued by the Secretary and except in accordance with the conditions specified in such licence:
Provided that no such notification shall take effect until the expiry of thirty days from the date of its publication. "
41. Government have framed the Kerala Panchayat Raj (Licensing of Dangerous Trade) Rules, 1996. As per Section 232, it is for the local body to notify that a particular activity is offensive or dangerous to human health or property and in such a case, without licence from the Executive Authority, no person can WPC.NO.14094/10 & CONN.CASES 92 use any area for such purposes as are notified, without licence. This Court has taken the view that the word "offensive or dangerous to human life or health or property" are not to be construed in their ordinary sense and it need be only activities which are so considered by the Authority (See Shaji v. State of Kerala - 2004 (1) KLT 118). It is true that a mobile tower is not notified under Section 232 as such. But, we should have regard to the words used in Section 233 wherein the only indispensable requirements are the construction or establishment of any factory, workshop or workplace in which, no doubt, it must be proposed to employ steam power, water power or other mechanical power or electrical power. Nothing prevented the Legislature also indicating in Section 233 that it must be a factory, workshop or workplace to which Section 232 is applicable. The conspicuous omission to refer to the same and the width of the language employed in Section 233 leads us to hold that any factory, workshop or workplace, be it included in Section 232 or not, in which it is WPC.NO.14094/10 & CONN.CASES 93 proposed to employ the steam power, water power, mechanical power or electrical power will attract Section 233 and permission must be sought and granted before construction or establishment.
Whether Central legislation occupies the field ? Whether in pith and substance, the Panchayat Raj Act and the Municipality Act fall under Entry 6 of List II ?
42. We must also address the arguments raised on behalf of the petitioners that no other permission is required to construct and operate a mobile tower, in view of the fact that the Central Legislation occupies the field. This argument is based on the provisions of Entry 31 of List I of the VIIth Schedule. It reads as follows:
"31. Posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication." It is pointed out that in exercise of exclusive legislative power, the Central Legislature has enacted the Wireless Telegraphy Act, the WPC.NO.14094/10 & CONN.CASES 94 Telegraph Act, and the TRAI Act. They occupy the entire field. All aspects are covered by the Central Legislation. There is no scope for the State Legislature to legislate in respect of construction or operation of mobile towers, as mobile telephony is embraced within the scope of Entry 31 of List I of the Constitution, it is contended. Let us consider the provisions contained in the Central Enactments. It is necessary that we consider the scheme of the Central enactment as pressed by the petitioners. The Indian Telegraph Act, 1885 defines the word "telegraph" as follows:
"3.(1AA): "telegraph" means any appliance, instrument, material or apparatus 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;
Explanation.- "Radio waves" or "Hertzian waves" means electromagnetic waves of frequencies lower than 3,000 giga-cycles per second propagated in space without artificial guide."
Section 4 provides for power with the Central Government to grant WPC.NO.14094/10 & CONN.CASES 95 licence and it reads, inter alia, as follows:
"4. Exclusive privilege in respect of telegraphs, and power to grant licences:- (1) Within India, the Central Government shall have the exclusive privilege of establishing, maintaining and working telegraphs:
Provided that the Central Government may grant a licence, on such conditions and in consideration of such payments as it thinks fit, to any person to establish, maintain or work a telegraph within any part of India."
Section 8 provides for power with the Central Government to revoke at any time any licence granted under Section 4 on the breach of any other conditions contained therein or in default of payment of any consideration payable thereunder. Section 9 being relevant, we extract the same hereunder:
"9. Government not responsible for loss or damage.- The Government shall not be responsible for any loss or damage which may occur in consequence of any telegraph Officer failing in his duty with respect to the receipt, transmission or delivery of any message; and no such Officer shall be responsible for any such loss or damage, unless he causes the same negligently, maliciously or fraudulently."
WPC.NO.14094/10 & CONN.CASES 96 Section 9A provides for creation of a Universal Service Obligation Fund. It is apposite to notice that Universal Service Obligation has been defined in Section 3 (1A) to mean "the obligation to provide access to telegraph services to people in the rural and remote areas at affordable and reasonable prices." Section 9D provides that the fund shall be utilised exclusively for meeting the Universal Service Obligations. Section 10 of the Indian Telegraph Act provides for power for the Telegraph Authority to place and maintain telegraph lines and posts. Section 16 provides for powers conferred under Section 10 in respect of property other than that of a Local Authority.
43. The Indian Wireless Telegraphy Act was enacted in the year 1933. Section 2(1) defines "wireless communication" as follows:
"Sec.2(1): "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 WPC.NO.14094/10 & CONN.CASES 97 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."
"Wireless telegraphy apparatus" is defined as follows:
"Section 2. Definitions.- In this Act, unless there is anything repugnant in the subject or context,-
(2) "Wireless telegraphy apparatus" means any apparatus, appliance, instrument or material used or capable of use in wireless communication, and includes any article determined by rule made under Section 10 to be wireless telegraphy apparatus, but does not include any such apparatus, appliance, instrument or material commonly used for other electrical purposes, unless it has been specially designed or adapted for wireless communication or forms part of some apparatus, appliance, instrument or material specially so designed or adapted, nor any article determined by rule made under Section 10 not to be wireless telegraphy apparatus".
Section 2A defines the word "wireless transmitter" as follows:
"Sec.2A: "Wireless transmitter" means any apparatus, appliance, instrument or material used or capable of use for transmission or emission of wireless communication."
WPC.NO.14094/10 & CONN.CASES 98
44. The latest of the triology of enactments is the TRAI Act, 1997. The word "licensee" is defined as a person licensed under Section 4 of the Telegraph Act for providing specific public telecommunication services. "Service provider" is defined to mean the Government as a service provider and includes a licensee (Section 2(j)). Section 2(k) defines "telecommunication service" as follows:
"Section 2(k): "Telecommunication service" means service of any description (including electronic mail, voice mail, data services, audio tax services, video tax 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;
Provided that the Central Government may notify other service to be telecommunication service including broadcasting services."
Section 11 provides for powers and functions of the Authority established under the Act. It reads as follows:
WPC.NO.14094/10 & CONN.CASES 99 "S. 11: Functions of Authority.- (1)
Notwithstanding anything contained in the Indian Telegraph Act, 1885 (13 of 1885), the functions of the Authority shall be to-
(a) make recommendations, either suo motu or on a request from the licensor, on the following matters, namely:-
(i) need and timing for introduction of new service provider;
(ii) terms and conditions of licence to a service provider;
(iii)revocation of licence for non-compliance of terms and conditions of licence;
(iv)measures to facilitate competition and promote efficiency in the operation of telecommunication services so as to facilitate growth in such services;
(v)technological improvements in the services provided by the service providers;
(vi) type of equipment to be used by the service providers after inspection of equipment used in the network;
(vii)measures for the development of telecommunication technology and any other matter relatable to telecommunication industry WPC.NO.14094/10 & CONN.CASES 100 in general;
(viii)efficient management of available spectrum;
(b) discharge the following functions, namely:-
(i)ensure compliance of terms and conditions of licence;
(ii)notwithstanding anything contained in the terms and conditions of the licence granted before the commencement of the Telecom Regulatory Authority of India (Amendment) Act, 2000, fix the terms and conditions of inter- connectivity between the service providers;
(iii)ensure technical compatibility and effective inter-connection between different service providers;
(iv)regulate arrangement amongst service providers of sharing their revenue derived from providing telecommunication services;
(v)lay-down the standards of quality of service to be provided by the service providers and ensure the quality of service and conduct the periodical survey of such service provided by the service providers so as to protect interest of the consumers of telecommunication service;
(vi)lay-down and ensure the time period for providing local and long distance circuits of telecommunication between different service WPC.NO.14094/10 & CONN.CASES 101 providers;
(vii)maintain register of interconnect agreements and of all such other matters as may be provided in the regulations;
(viii)keep register maintained under clause (vii) open for inspection to any member of public on payment of such fee and compliance of such other requirement as may be provided in the regulations;
(ix)ensure effective compliance of universal service obligations;
) levy fees and other charges at such rates and in respect of such services as may be determined by regulations;
(d)perform such other functions including such administrative and financial functions as may be entrusted to it by the Central Government or as may be necessary to carry out the provisions of this Act:
Provided that the recommendations of the Authority specified in clause (1) of this sub-section shall not be binding upon the Central Government.
Provided further that the Central Government shall seek the recommendations of the Authority in respect of matters specified in sub-clauses (1) and (ii) of clause (a) of this sub-section in respect of new licence to be issued to a service provider and the WPC.NO.14094/10 & CONN.CASES 102 Authority shall forward its recommendations within a period of sixty days from the date on which that Government sought the recommendations:
Provided also that the Authority may request the Central Government to furnish such information or documents as may be necessary for the purpose of making recommendations under sub-clauses (i) and
(ii) of clause (a) of this sub-section and that Government shall supply such information within a period of seven days from receipt of such request.
Provided also that the Central Government may issue a licence to a service provider, if no recommendations are received from the Authority within the period specified in the second proviso or within such period as may be mutually agreed upon between the Central Government and the Authority:
Provided also that if the Central Government having considered that recommendation of the Authority, comes to a prima facie conclusion that such recommendation cannot be accepted or needs modifications, it shall, refer the recommendation back to the Authority for its reconsideration, and the Authority may within fifteen days from the date of receipt of such reference, forward to the Central Government its recommendation after considering the reference made by that Government. After receipt of further recommendation, if any, the Central Government shall take a final decision.
(2)Notwithstanding anything contained in the Indian Telegraph Act, 1885 (13 of 1885), the WPC.NO.14094/10 & CONN.CASES 103 Authority may, from time to time, by order, notify in the Official Gazette the rates at which the telecommunication services within India and outside India shall be provided under this Act including the rates at which messages shall be transmitted to any country outside India:
Provided that the Authority may notify different rates for different persons or class of persons for similar telecommunication services and where different rates are fixed as aforesaid, the Authority shall record the reasons therefor.
(3)While discharging its functions under sub- section (1) or sub-section (2) the Authority shall not act against the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality.
(4) The Authority shall ensure transparency while exercising its powers and discharging its functions."