2012 Supreme(Raj) 2267
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Arun Mishra, Narendra Kumar Jain-I, JJ.
Justice I.S.Israni (Retd.) & anr. - Appellant
Versus
Union of India & Ors. - Respondent
D.B.PIL Petition No. 2774/2012.
Decided On : 27-11-2012
For the Petitioner in petition no. 2774/12.:Mr. Prateek Kasliwal and Mr. Tanveer Ahmed, Advocates and Mr. Rajendra Soni, Amicus Curiae.
For the Petitioner in petition no. 8697/12:Mr. Vinayak Joshi, Advocate.
For the for intervenors in petition no. 2774/12: Mr.Arvind Kumar Arora, Mr.Sandeep Taneja, Mr.Kapil Gupta, Mr.Amod Kasliwal, Dr. Ram Kishan Sharma, Mr. Mahesh Gupta, Mr. Ajay Tyagi and Mr. B.L. Sharma, Senior Counsel.
For the Respondent TAIPA in petition no. 2774/12.:Mr. Lokesh Atrey and Mr.Vikram Singh, Advocates.
For the Cellulor Operators Association of India in (Petitioner petition no. 17867/12 and respondent no. 21 in petition no. 2774/12):Mr. Gopal Subramanium, Senior Counsel assisted by Mr. Naveen Chawla, Mr. Devansh Mohta, Mr. Ravi Chirania, Mr. Sandeep Singh Shekhawat, Advocates.
For the Petitioner in petition no. 18304/12:Mr. Sudhir Gupta, Senior Counsel assisted by Mr. Anuroop Singhi and Mr. Ankit Shah, Advocates.
For the Respondent no. 15 in petition no. 2774/12:Mr. Kamlakar Sharma, Senior Counsel, with Ms.Alankrita Sharma, Advocate.
For the Respondent no. 10 in petition no. 2774/12:Mr. Virendra Lodha, Senior Counsel assisted by Mr. Ankit Jain, Advocate.
For the Respondents no. 11, 13, 18 and 19 in petition no. 2774/12 and respondent no. 7 in petition no. 8697/12):Mr. R.K. Agarwal, Senior Counsel, Mr. Nisheeth Dixit, Advocate.
For the Union of India.: Mr. S.S. Raghav, Additional Solicitor General.
For the State of Rajasthan.:Mr. Dinesh Yadav, AAG with Mr.Subhash Kuntal, Mr. Amit ojha, Mr. Vikram Yadav and Mr. Ram Gopal Khhinchi, Advocates.
For the Respondent no. 8 in petition no. 2774/12:Mr. Sanjay Srivastava, Advocate.
For the Respondent no. 9 & 12 in petition no. 2774/12:Mr. Akhil Simlot, Advocate.
For the Respondent no. 6 in petition no. 2774/12:Mr. R.A. Katta, Advocate.
For the Respondent no. 17 in petition no. 2774/12:Mr. M.P. Singh, Advocate.
For the Respondent no. 16 in petition no. 2774/12:Mr. Indresh Sharma, Advocate.
For the Respondent no. 4 in petition no. 2774/12.:Mr. Saurabh Saraswat, Advocate.
For the Respondent No. 20 in petition no. 2774/12:Mr. T.P. Sharma, Advocate.
Headnote:
Constitution of India, 1950 Art. 21, 48A, 226 - The issues involved in the instant case were addressed through a PIL and related to different environmental and ecological issues under right to life, removal of mobile towers which were emitting hazardous rays and its impact on the flora and fauna. It was held that the removal of the mobile towers was valid and proper - Environment – The making of the regulatory bye – laws by the state was completely within the legislative competence of the state and it does not encroach upon the subject of the union under entry number 31 of the union list of the seventh schedule of the constitution - Environment – For the installation of the mobile towers, the permission of the local bodies was a prerequisite and it was mandatory in nature - Telecom Regulatory Authority Act, 1997, Preamble – S. 11(1)(a) – The state Act does not exclude the applicability of the municipal laws - Environment – The bye laws framed by the state to control the pollution, dated 31 – 08 – 2012 were held to be not arbitrary and whimsical - Environment – It was also observed that the initiatives taken by the state are not violative of Art. 19 of the constitution - Environment – It was observed that the precautionary principle takes its origin from the principle of sustainable development and it is applicable to ancient monuments also. It also applies to human life and health with equal vigour - Pollution – The emphasis was done on the significance of human life and maintaining the prescribed limits if the hazardous electromagnetic radiations because the damage done by these radiations is irreparable. So in this situation only the application of principles like polluter pays and margin of appreciation and provisions for penalty and cancellation of licences will not suffice.
JUDGMENT
1. - Since common questions of law and facts are involved in all these writ petitions, they were heard together and are being decided by common order.D.B.PIL Petition No. 2774/2012, Justice I.S. Israni (Retd.) & anr. v. Union of India & Ors.
2. The said writ petition has been filed in the public interest by the petitioners-Justice I.S. Israni (Retd.) and Smt. Nirmala Singh praying for the relief that the Central Government as well as the State Government and their instrumentalities be directed to formulate regulatory body in relation to emission of radio frequency and electro magnetic radiations emitted by or likely to be emitted by mobile towers and for monitoring emission from these towers; prayer has also been made to stop the respondents from increasing capacity and further, no license to operate towers in the residential areas should be granted to the respondents-companies at the risk of health and life of people; prayer has also been made to direct the respondents to remove the towers from the hospitals, schools and residential areas so as to minimise the environmental and noise pollution.D.B. PIL Petition No. 8697/2012, Pearl Green Acres Owners Welfare & Maintenance Society v. Union of India & Ors.
3. The said writ petition has been filed by the petitioner-Pearl Green Acres Owners Welfare & Maintenance Society with the prayer to direct the respondent no. 7- M/s A.T.C. Limited not to raise construction or erect the mobile tower on the land khasra no. 168, Mangyabas, Tehsil Sanganer, Mahesh Nagar, Jaipur; prayer has also been made that respondents-authorities be directed not to issue any license in favour of respondent no. 7 for erecting mobile tower and operation and installation of Base Station Antennas in the residential area should not be granted.D.B.Civil Writ Petition No. 17867/2012, Cellular Operators Association of India and ors. v. State of Rajasthan & ors.
4. In the said writ petition filed by Cellular Operators Association of India and ors., prayer has been made for quashment of impugned Bye-laws made by the State Government and the order dated 31.8.2012 including Bye-laws framed/to be framed by any of the respondents-Municipalities in compliance of the order dated 31.8.2012 issued to various municipalities/local authorities to implement the Bye-laws prohibiting the erection of mobile towers on the hospitals, school buildings, play grounds and within range of 500 meters from jail premises; prayer has also been made for quashment of communication dated 4.7.2012 issued by the respondent no. 2 Dy.Director (Secondary), Secondary Education, Rajasthan Bikaner; prayer has also been made to quash the communication dated 13.9.2012 issued by the State of Rajasthan, Local Self Department; prayer has also been made to restrain the respondents no. 1 and 2 from removing or hampering the working of mobile towers/antennas installed by the petitioners in the State of Rajasthan.D.B.Civil Writ Petition No. 18304/2012, Association of Unified Telecom Services Providers of India & ors. v. State of Rajasthan & Ors.
5. In the said writ petition filed by the petitioners-Association of Unified Telecom Services Providers of India & ors., prayer has been made to quash the Bye-laws framed by the State Government on 31.8.2012; similar prayers have been made as made in Writ Petition No. 17867/2012 filed by Cellular Operators Association of India and ors.
6. It was clearly stated by Mr.Gopal Subramanyam, learned Senior Counsel appearing on behalf of Cellular Operators Association of India that though the writ petitions have been filed for quashment of Bye-laws made by the State Government, but the main petition is PIL Petition No. 2774/2012 in which all questions are involved.
7. In the public interest litigation No. 2774/2012 which has been preferred by the petitioners-Justice I.S. Israni (Retd.) and Smt. Nirmala Singh, it is submitted that the Central Government as well as the State Government are bound to observe social welfare law
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