Mrs. Asha Sharma and Another vs The State of Himachal Pradesh and Others

Dharam Chand Chaudhary, J.—This writ petition is filed with the following prayers:-

i) That respondents No. 2, 3 and 6 may kindly be directed to stop construction of mobile communication tower on the land immediately adjacent to Monks hut building, Phagli, Shimla (H) in order to make it functional;

ii) The respondents No.1 and 5 may kindly be directed by issuing a writ of Mandamus to discharge their public duty and to stop construction of mobile communication tower by respondents No. 2, 3 and 6 on the land adjacent to Monks hut building, Phagli, Shimla (HP);

iii) Appropriate directions may kindly be issued by way of writ of Mandamus to Respondent No.1 to scrap the present policy for erection of mobile communication tower and to formulate a new policy with main stress on curbing ill effects of mobile communication towers on public health; and

iv) The respondent No.4 may kindly be directed by issuing a writ of Mandamus to stop according permission for erection of mobile communication towers as the same is being practiced in contravention of HP Municipal Corporation Act, bye-laws.

The main relief as has been sought in this petition is that the construction of mobile communication towers amounts to depriving the petitioners from their right to life as provided under Article 21 of the Constitution of India. These towers allegedly are not only affecting the environment adversely but are also the source of health hazard. The radiation emitted by these towers results in various diseases, like fatigue, headache, sleep disruption, loss of memory to those who live nearby these towers, hence, not in the larger public interest. The policy, Annexure P-10, framed by the Government of Himachal Pradesh for the erection of mobile communication towers being violative of the right to life has also been sought to be quashed. The respondent No.4, a civil body, otherwise entrusted with an onerous job of maintaining public health is granting permission for erection of mobile communication towers in a mechanical manner and without taking into consideration the health hazard posed thereby and threat to environment.

The response of 2nd and 3rd respondents to such contentions in the writ petition is denial altogether on the ground that the study on the element of health hazard reveals that there is no substantive or convincing evidence of biological effects that could harm a person''s health. It has further been submitted that the mobile phone base stations operate on low power with typical maximum field strengths at ground level which are less than 1% of the international guidelines for public exposures and the review by experts reveals that there is no convincing scientific evidence of adverse effects on the human health. It is specifically submitted that the 2nd and 3rd respondents have been issued the license for providing Cellular Mobile Telephone Service in Himachal Pradesh Telecom Circle Service Area vide letter dated 11.4.2003. The said respondents being licensees for providing cellular mobile telephone services in Himachal Pradesh have already erected the mobile phone tower at Phagli which even stands commissioned also on 5.8.2008.

The Municipal Corporation, Shimla-4th respondent in its reply has come forward with the version that the permission for installation of mobile phone towers is being granted as per the norms prescribed by the Department of Information and Technology. No permission for installation of mobile phone tower allegedly was granted in favour of 6th respondent and having coming to know about the installation of the said tower by the said respondent, action was taken in accordance with law.

The respondent-State in its reply has raised the plea that the policy Annexure P-10 has been framed to have a suitable regulatory mechanism to prevent haphazard setting of mobile communication towers. As per the policy, permission for erection of mobile phone towers can only be granted by concerned Urban Local Body; viz, in the case in hand, the Municipal Corporation, Shimla-the 4th respondent. Similar is the stand taken by the 5th respondent-The H.P. State Pollution Control Board in response to the contention in the writ petition.

The respondent No. 6 in reply to the writ petition has made the only submission that she has leased out the land for construction of mobile phone tower in favour of the 2nd and 3rd respondents and as regards the observance of codal formalities, safety measures required and also obtaining of permission from the concerned authority is for the said respondents and she is not responsible for it.

Having gone through the record and taking into consideration the submissions made by learned counsel on both sides, this Court refrains itself to enter into the controversy on merits and suffice would it to say that as per the admitted case of the parties, the disputed mobile phone tower was already constructed on the spot at the time of filing of this writ petition. Reference in this regard can be made to photographs Annexures P-6 and P-7 annexed to the writ petition. Not only this, but the record reveals that notice of this writ petition which, no doubt, was filed in the Registry on 11th July, 2008 and even taken up also on 16.7.2008, was issued to respondents on 15.10.2010. Well before that the disputed tower already in existence on the spot was commissioned on 5.8.2008, as has come in reply to the writ petition filed on behalf of the 2nd and 3rd respondents. There is no rejoinder to the case so pleaded by the said respondents.

The 4th respondent-Municipal Corporation, Shimla in its reply has submitted that no permission for erection of mobile phone tower in question was granted and rightly so as at the time of filing of reply no such permission was granted. However, the same stands granted subsequently vide office order dated September 19, 2011, Annexure R-7 to the application registered as CMP No. 9627 of 2012 filed on behalf of 2nd and 3rd respondents.

Admittedly, one civil suit against the erection of another tower by Vodafone, another service provider on the piece of land leased out by respondent No. 6 itself is pending disposal in the Court of Civil Judge (Senior Division), Court No.1, Shimla.

It is not a case that there was no guidelines or policy framed by the competent authority at the time of construction of the tower in dispute as Annexure R-4 to the reply filed on behalf of respondents No. 2 and 3 reveals that initially four Vigilance Telecom Monitoring Cells (VTM) were formed by the Government of India in November, 2004 at Delhi, Mumbai, Hyderabad and Chennai. Subsequently, such cells for other parts of the country including Himachal Pradesh at Shimla were also formed in March, 2007. Meaning thereby that a cell was also in existence to take care of the grievances of the general public in respect of health hazard and adverse effects of our environment and ecology well before the construction of the disputed tower. Presently, it is Telecom Enforcement, Resource and Monitoring Cell, in short "TERM Cell" taking care of such grievances of general public.

Therefore, having regard to the position so emerges from the perusal of the record, the relief as sought in the writ petition cannot be granted at this stage for the reason that the tower in question was already constructed well before the institution of the writ petition. Hence, there is no question of issuing a direction mandatory in nature to stay its construction or its commissioning as the same stands already commissioned, leaving open the issue of the health hazard and damage to environment and ecology pleaded in this petition to be decided by the appropriate forum, including learned Civil Judge (Senior Division) where the civil suit is pending disposal, as the similar issue for adjudication is involved in that suit. Above all, the issue being disputed one needs evidence for its proof, which cannot be taken in the writ jurisdiction and rather can be produced by the parties in pending civil litigation. Besides, the petitioners are also at liberty to approach to the TERM Cell for the redressal of their grievances, if so advised. The question of policy for erection of mobile communication tower sought to be quashed is also left open to be raised by the petitioners in appropriate proceedings. With the above observations, the petition stands disposed of finally. Pending application(s), if any, shall also stand disposed of.