Apprehension Of Radiation: Calcutta HC Stays Construction Of Jio Mobile Tower [Read Judgment]

The petitioner in this case who is a villager in Jahanabad alleged that the Reliance JIO Infocomm Limited started construction of a mobile tower in close proximity (about 5m laterally) to the petitioner's house, in a densely populated area. He also alleged that the installation of such a tower emits harmful radiation which will pose a serious health hazard to the residents of the neighborhood.

The Single Bench of Justice Sabyasachi Bhattacharya noted that the apprehension of the petitioner is genuine since the indiscriminate construction mobile towers in densely populated areas would cause environmental issues and the common citizen would suffer unnecessarily from known as well as unknown-diseases caused by such radiations and emissions.

The court further observed that the public interest has to be balanced with the interest of the public in getting the benefits of modern technology provided by the mobile phone service providers.

"The use of mobile phones is now almost a basic necessity of human life. Even the financially backward stratum of society is fast becoming dependent on mobile phone services, particularly in view of several services by government authorities and other sectors now being extended through the mobile networks, including e‐payment, social benefit schemes, banking, etc", the court remarked.

"In order to strike a balance, the Department of Telecommunications issued Advisory Guidelines since there is no specific law governing the mode of installation of mobile towers apart from the said guidelines. These guidelines are taken as the yardstick to be adhered to while erecting mobile towers" Court added.

Since Reliance JIO Infocomm Limited complied with all the clauses as specified in the Advisory Guidelines (particularly clause 4A), the court observed that though there is no bar in erecting a mobile tower no inquiry was held from the residents of the immediate vicinity of the proposed mobile tower site.

" It is clear from the sub-clause VIII of the Advisory Guidelines that there is a provision not only for the local bodies to seek submission of No Objection Certificates at the inception but also for the State Governments, as per their Rules in force, to seek fresh NOCs at the time of the renewal of site (tenancy) contract for mobile towers ", added the court.

The bench noted that the State Government has not complied with several orders passed by the court by constituting Public Grievance Committees.

" It is expected that such Committees would be formed at the earliest by the State Government" , the court added.

Accordingly, the court issued the following directions:

"(i) The respondent nos.1 to 5 shall ascertain as to whether the Advisory Guidelines for issuance of clearance for installation of mobile towers, issued by the Department of Telecommunications, as annexed at page‐38, have been satisfied, insofar as clause 4A thereof is concerned, within a fortnight from date;

(ii) In the event any of such Guidelines have been flouted, the respondent nos.1 to 5 or any of them may direct the respondent nos.6 and 7 to ensure that the further construction of the mobile tower‐in‐question is stopped till the Guidelines provided in clause 4A are complied with. However, in the event such Guidelines have been followed, the respondent no.10 would be at liberty to resume the construction of the mobile tower from a fortnight hence;

(iii) The construction of the said tower shall remain stayed for a fortnight from the date and, in the event the respondent authorities come to a conclusion that due compliance is lacking as regards clause 4A, as mentioned above, till such clauses are complied with to the satisfaction of the said authorities;

(iv) The local bodies, as represented by the respondent no.5, shall invite objections from the people in the immediate vicinity of the site of the proposed mobile tower, in the event No Objection Certificates, as contemplated in clause 4A, sub‐clause VIII in terms of the Advisory Guidelines are not deposited. Upon due publication of such an invitation for filing objections, the respondent no.5 shall fix a cut‐off date for filing such objections and, within a week thereafter, assess the veracity of such objections and submit a report thereon to the respondent no.4, who would forward the same to the respondent no.1. In the event the respondent no.1 finds substance in such report sufficient to castigate the respondent no.10 for violation of any of the other sub‐clauses of clause 4A, than sub-clause VIII, of the Advisory Guidelines, the respondent no.1 shall forward the said objections to the Telecom Regulatory Authority of India (TRAI) within a reasonable period for the latter's consideration.

(v) In the event of compliance of other formalities, apart from sub‐ clause VIII of clause 4A of the Advisory Guidelines, it would be open to the respondent no.10 to continue with the installation of the mobile tower‐in‐question.

(vi) After completion of the structure of the tower and at the juncture of installation of the antenna(e), the Additional Guidelines, as annexed at page‐41 of C.A.N. 10762 of 2019, shall come into play and it would be open to the petitioner to take objection before 17 appropriate authorities in the event such safe distances as provided therein are not followed.

(vii) It is made clear that the relevant point of time for consideration of the safe distance as provided in the chart under clause 2 of the Additional Guidelines, would be the date when the first such antenna is installed in the proposed mobile tower."

The court while disposing of the petition insisted that the above-said directions are to be mandatorily followed.

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