Hon'ble Rakesh Srivastava,J.
(ORAL)
1. Raj Kumar Shukla has preferred this petition for issuance of a writ in the nature of mandamus directing respondents not to install any mobile tower in Khasra Plot No.186 belonging to respondent no.5 (Dharam Raj) situated in Village Belwa Shukla, Pargana, Tehsil and District - Gonda.
2. Shri Jaideep Narain Mathur, learned Senior Advocate assisted by Shri Aakash Prasad, Advocate has appeared for respondents no.2 and 3.
Power of Attorney filed by Shri Aakash Prasad, Advocate and his associates in Court today is taken on record.
3. Shri Mathur contends that for redressal of grievances such as raised before this Court, a Division Bench of this Court has already rendered a judgment. In this regard Shri Mathur has referred to [(2017) 1 UPLBEC 261] PIL No.48084 of 2015 titled 'Smt. Asha Mishra vs. Union of India and others'. It has been projected that other than the fact that there is no deterrent medical effect of such mobile towers, in case the petitioner has any grievance, a dispute redressal mechanism has been set in place.
4. We would like to refer relevant portions from Asha Mishra's case (supra) in extenso and the same is extracted here-below:-
5. Upon a review of the material placed before us and the submissions advanced we find that the following broad issues fall for our consideration:
I. Whether the contention of the petitioners including those related to the deleterious effect of EMF radiation upon human health and safety is liable to be sustained;
II. Whether the seventh respondent is in compliance with the statutory and regulatory framework presently in vogue;
III. Whether the Court in exercise of its jurisdiction under Article 226 would be justified in granting the reliefs as sought; and IV. Further directions if any.
20. The primary contention of the petitioners as noted above is based upon a perceived present and imminent danger to human health and safety caused by EMF radiation. The report of Prof. Girish Kumar forms the fundamental bedrock upon which these submissions are based. We however find that this is not the first time that this report has been utilized or pressed into service for laying a challenge to the roll out and establishment of mobile towers. In fact this very report was noted by the Division Bench of the Court at Lucknow in Shriram Singh Jauharia when taking note of the said report the Bench constituted a committee to examine the conclusions and undertake a comprehensive review on the subject of EMF radiation and the ill effects of mobile telephony on human health. As the record would reveal and as would be evident from the findings of the committee that we have extracted above, the conclusion arrived at was that there was no material which justified the conclusions arrived at by Prof. Kumar. The Committee, in fact went to the extent of characterizing the perceived threats as voiced by Prof. Kumar as being a misrepresentation. Once that be the state of the record we find that the report of Prof. Kumar does not advance the case of the petitioners any further.
21. However since the issue raised in the petitions related to public health and safety and bearing in mind the command of Article 21 we delved even further to consider whether there was any material, which justified the invocation of our constitutional powers to injunct the seventh respondent from establishing the mobile towers or BTS's.
22. We felt constrained to burden this judgment with various extracts of the findings and recommendations of DOT, the Parliamentary Standing Committee as well as the WHO in order to establish that a plethora of material gathered by experts clearly negatives the perceived and alleged imminent threat and danger to health as was sought to be canvassed before us. All the experts have unanimously voiced their opinion that the present body of scientific research does not justify the threat to health and life as is sought to be portrayed by some quarters including the petitioners before us.
23............. We further note that the studies undertaken both in India as well as by other international organizations have unanimously opined that the emissions from these equipments are minuscule and do not warrant the anxiety or fear which is sought to be generated in this batch of petitions. Our conclusion so recorded is of course not intended to relieve DOT or the Union Government from its obligation of continuing a scientific review of the subject. However in light of what we have found above, we rule against the petitioners insofar as Issue No. I is concerned.
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Issue No. III. Whether the Court in exercise of its jurisdiction under Article 226 would be justified in granting the reliefs as sought?
25. The submissions of learned counsel for the petitioners advanced on these petitions on more than one aspect would require us to travel into the realm of testing policy measures as well as evaluation of scientific material gathered by experts. The Court in exercise of its powers of judicial review undertakes an exercise of testing actions of the State on the touchstone of our Constitution and the laws of the land. Articles 21 and 38 clearly mandate the State to take measures to ensure the safety, health and well being of all citizens. Its measures and actions must be aimed at alleviating the living conditions of all citizens and the environment of the nation as a whole. The Court in exercise of its constitutional mandate is therefore obliged to enquire into and test all actions of the State bearing in mind the breath and content of Articles 21 and 38. However at the same time, it cannot loose sight of certain inherent limitations placed upon the exercise of this power. The Court is not an arena for scientific debate nor is it a forum for the testing of conflicting scientific studies and findings of experts. That is surely not its province. The Courts exercise their power of judicial review to test a lis or a cause necessarily against legal norms or legal parameters. Legal norms and legal parameters do not, nay, cannot be left to rest upon competing or nebulous scientific research or opinion.
26. We may in this connection usefully refer to two causes, which travelled to the Supreme Court for an amplification of what we have held. The first was a challenge to the construction of the Tehri Dam. The second more recent and of far greater import than the subject which falls for our determination the use of nuclear energy. N.D. Jayal Vs. Union of India, (2004) 9 SCC 362 dealt with a challenge to the establishment of the Tehri Dam. The Supreme Court dealing with the challenge held:
"20. This Court cannot sit in judgment over the cutting edge of scientific analysis relating to the safety of any project. Experts in science may themselves differ in their opinions while taking decisions on matters related to safety and allied aspects. The opposing view points of the experts will also have to be given due consideration after full application of mind. When the Government or the authorities concerned after due consideration of all viewpoints and full application of mind took a decision, then it is not appropriate for the court to interfere. Such matters must be left to the mature wisdom of the Government or the implementing agency. It is their forte. In such cases, if the situation demands, the courts should take only a detached decision based on the pattern of the well settled principles of administrative law. If any such decision is based on irrelevant consideration or non-consideration of material or is thoroughly arbitrary, then the court will get in the way. Here the only point to consider is whether the decisionmaking agency took a well informed decision or not. If the answer is "yes", then there is no need to interfere. The consideration in such cases is in the process of decision and not in its merits."
27. Dealing with the challenge to the establishment of a nuclear power plant in G. Sundarrajan Vs. Union of India, (2013) 6 SCC 620 the Supreme Court ruled:
"15. India's national policy has been clearly and unequivocally expressed by the legislature in the Atomic Energy Act. National and international policy of the country is to develop control and use of atomic energy for the welfare of the people and for other peaceful purposes. NPP has been set up at Kundankulam as part of the national policy which is discernible from the Preamble of the Act and the provisions contained therein. It is not for courts to determine whether a particular policy or a particular decision taken in fulfillment of a policy, is fair. The reason is obvious, it is not the province of a court to scan the wisdom or reasonableness of the policy behind the statute......
28. Bearing in mind the principles which must guide the exercise of the power of judicial review as enunciated by the Supreme Court we are of the opinion that this Court while exercising its jurisdiction under Article 226 would clearly not be justified in proceeding on the basis of the conclusions of an author of a scientific study which itself has not found acceptance amongst its peers.
29. Our reluctance to accede to the submissions advanced by the learned counsel for the petitioners also stemmed from the factual backdrop of the present proceedings. There was no conclusive material which was brought to our attention which may have even remotely be read as evidencing, underlining or supporting the perceived threat to human health voiced by the petitioners. Further we note that the seventh respondent is in the process of rolling out and establishing its 4G network on the basis of licenses and permissions granted by the Union Government which are not under challenge before us. It is also not established from the record that the seventh respondent is in breach of the conditions of its license or that its installations violate the regulatory framework put in place by the Union and State governments.
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Issue No IV Further directions
31. Though having found no justification for the imposition of a prohibition or restraint upon the installation of mobile towers and BTS's there remain certain issues which in our opinion do require notice. As per the admitted stand of the Union, the TERM Cells carry out a random inspection of 10% of the mobile tower sites falling within their respective jurisdictions. No periodicity of inspections appears to be fixed. There also does not appear to be in place a system for verification of the self-certification which is filed by the prospective service provider. The other area of concern appears to be, as was evident from the common refrain of all the petitioners, the lack of a complaint redressal mechanism or at least the absence of an effective, robust and transparent grievance redressal machinery.
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33. The other aspect as noted above relates to the grievance redressal mechanism. From the submissions advanced and the material placed before us we find that there does exist the need for the establishment of a grievance redressal and information dissemination mechanism which may take note of complaints and allay the various doubts which stand raised in respect of the subject in question. The absence of an effective machinery was also noted by the Parliamentary Standing Committee which found the reply of DOT to be unsatisfactory and reiterated its recommendations for the system being made more robust and responsive. Bearing in mind the serious concerns raised in respect of the above two issues, we proceed to issue the following directions:
(1) DOT will expeditiously and not later than within 2 months from the date of this judgment frame guidelines for the TERM Cells carrying out periodical inspection of mobile towers and BTS stations falling within their respective jurisdictions;
(2) DOT while framing the guidelines shall also consider and if thought feasible incorporate appropriate provisions for inspection of all or such percentage of cell towers as may be deemed appropriately by the TERM Cells;
(3) DOT shall also consider and implement a mechanism where the testing of cell sites is not left to depend upon the self certification procedure of the service provider solely;
(4) The directions issued shall mandate the TERM Cells to disclose their findings of compliant and non-compliant mobile towers and BTS's for the information of the general public;
(5) The TERM Cells shall also make known to the general public the action taken against erring and non-compliant mobile towers and BTS establishments;
(6) DOT shall ensure that the particulars of TERM Cells including the particulars of its Nodal Officer for different regions are made known to the members of the general public;
(7) DOT shall establish a complaint cell in the various regions details of which are given wide publicity in the area concerned, to receive and address public complaints relating to mobile towers and BTS;
(8) DOT shall also issue necessary directions to ensure that the complaint cell duly looks into, enquires and disposes of such complaints within a reasonable period of time.
(Emphasised by us)
5. Learned counsel for the petitioner has taken a stand in saying that the petition be disposed of with liberty to the petitioner to approach the appropriate forum in terms of judgment rendered in Smt. Asha Mishra's case (supra) relevant portion of which has been extracted above.
Ordered accordingly.
Order Date :- 26.9.2019 nishant/-