Suit No.1513 of 2009
Date of hearing 31.5.2010 & 23.9.2010.
For hearing of CMA No.9691/2009
Plaintiff: M/s. Rabbiya Associates.
Defendants: M/s Zong (China Mobile) and others.
Mr. Raza Muhammad Raza with Fazal-ur-Rahman, Advocates for the plaintiff.
Mr. Moinuddin, Advocate for defendant No.1.
Mr. Kashif Hanif, Advocate for defendant No.2.
Mr. Salim Salam Ansari & Mukhtar Ahmed, Advocates for defendant No.3.
Mr. Masood Anwar, Advocate for defendant No.4.
Mr. Junaid Farooqui, Advocate for Faisal Cantonment Board.
Muhammad Ali Mazhar, J. By this order, I will dispose of CMA No.9691/2009 filed by the plaintiff under Order 39 Rule 1 & 2 C.P.C. The plaintiff has filed this suit for declaration, damages and permanent injunction with following prayer:-
a) Declaration that the plaintiff is the lawful owner of the roof of the building namely Safari Blessing, situated at plot No.FL-1, Block 12, Sindh Baloch Co-operative Housing Society, Gulistan-e-Johar, Karachi and the defendants have no right, title or interest with the affairs of the plaintiff’s right.
b) Direct the defendant No.3 to remove the illegal construction, which he raised on the top of the roof of his flat and also remove the all installation system of the mobile antenna/booster tower from the building in question.
c) Grant permanent injunction, restraining the defendants and their associates, and any other person (s) acting under or through them or on their behest (including the allottees/owners/occupiers/residents) of building namely Safari Blessing, situated at Plot No.FL-1, Block 12, Sindh Baloch Co-operative Housing Society, Gulistan-e-Johar, Karachi from directly or indirectly obstructing the plaintiff, their men, employees and contractors etc. to use the roof of the said building without consent, prior permission of the plaintiff and also causing interference, hindrances, obstructions against the plaintiff’s absolute rights over the top roof and outer walls of the building by creating nuisance obstructions and disturbances thereof.
d) Direct the defendants to pay Rs.50 Million severally or jointly with interest at the rate of 14 % per annum from the date of the suit.
e) Cost of the suit.
f) Any other relief may be deemed fit and proper in the facts and circumstances of the case.
In the injunction application, the plaintiff has prayed for restraining orders against the defendants from raising construction or installation of BTS tower on the rooftop of the project Safari Blessing. It is alleged in the plaint that after completion of the project “Safari Blessing”, the plaintiff delivered peaceful possession to the respective allottees by executing sub-leases in their favor. It is specified in paragraph 13 of the sub-lease deed that the sub-lessees shall not use flat or any part thereof for the purpose of advertising or for display or any advertisement, poster or notice. The defendant No.3 approached the defendant No.1 for affixing antenna/booster on the rooftop of the above building which is exclusive property of the plaintiff and nobody has any right or title to enter into any agreement with the defendant No.1 for installation of antenna/booster and any agreement or contract made thereon will be illegal and not binding upon the plaintiff. The defendants No.1 and 3 in collusion with the defendant No.4 are installing mobile antenna tower without any written approval of the plaintiff. On the basis of NOC issued by the defendant No.4, the defendant No.2 has already installed a Ufone Mobile Antenna tower without the approval of the plaintiff. The defendants by their unlawful acts and wrongful actions causing prejudice, loss and injury to the plaintiff’s name, reputation, goodwill and credit, therefore the plaintiff in the suit has also claimed damages. It is further stated in the plaint that the plaintiff had served a legal notices to all defendants, calling upon them to desist from entering into any agreement with anyone else other than the plaintiff and so also to refrain from committing trespass and to install any tower/antenna and fixture at the rooftop of the building in question but in spite of service of the legal notice, the said defendants failed to reply to the said legal notice.
The defendants filed their separate counter affidavits. The defendant No.1 submitted that the plaintiff has no locus standi to file the instant suit. In the year 1995, the plaintiff issued circular to the allottees/residents of the building whereby, the plaintiff not only handed over the entire affairs of the said project to the union of the residents but also relinquished its all claims on the said project, therefore, the injunction application is afterthought and liable to be dismissed. The plaintiff leased out the project to different purchaser since long and at present Safari Blessing Welfare Association is running the affairs of the maintenance of the project and plaintiff has no role in the project’s affairs. The instant suit is glaring example of discrimination as one party is already operating its BTS in the same project and defendant No.1 is being stopped by plaintiff with mala fide intention from operating its BTS. The defendant No.2 is already utilizing the roof in “D” Block in same project for its BTS which is in operation last more than three years but plaintiff never raised any objection and closed his eyes. The defendant No.3, being President of Safari Blessing Residence Welfare Association and owner of Flat No.C-10, has entered into License Agreement and in terms of the said agreement, the defendant No.1 was allowed to erect its BTS on the rooftop of the said flat.
The defendant No.2 in its counter affidavit submitted that plaintiff has miserably failed to make out the prima facie case and present proceedings are liable to be dismissed for want of cause of action under Order VII Rule 11 CPC. Number of similar antenna/towers are already installed in the residential and commercial area without any negative impact on the human health.
The defendant No.3 in his counter affidavit submitted that the plaintiff has no cause of action and or balance of convenience in his favor and the plaintiff’s action is based on mala fide intention. The construction has been completed and the connection as well as devices of networking has been kept in abeyance due to interim order passed by this Court. The devices and other electronics equipments are lying on spot. The plaintiff has already transferred the right of ownership in favor of the defendant No.3 against valuable consideration. For installation of tower, the Association of Safari Blessing Residence Welfare Association (Regd.) has already given NOC dated 05.10.2009 for the installation of the tower. The income from tower will be invested (25%) for the welfare of the Safari Blessing Residence Welfare Association’s Fund.
The president of Defendant No.4 in his counter affidavit submitted that various type of antenna and or towers are already erected in the city and the act of stopping the defendants amounts to discrimination, especially when antenna in question has no negative impact on the human health.
Heard the learned counsel for the parties. The learned counsel for the plaintiff argued that the plaintiff is lawful owner of the project namely Safari blessing and transferred the different apartments by virtue of sub-leases. He referred to Clause 13 of the specimen of indenture of lease which provides that the lessee shall not use flat any part thereof or suffer the same for the purpose of advertising or for display or an advertisement or notice. He further pointed out the Clause 10 of the lease which provides that the lessee shall not use the said flat for business, manufacture, occupation which may cause nuisance to the lessor or the occupants of the adjacent flats. He further argued that the defendant No.3 being the occupant of individual flat has no right and authority to rent out the roof top of his flat to the defendant No.1 for installation of antenna/booster and any such contract which has been executed without the approval of the plaintiff is illegal and liable to be cancelled. The learned counsel further argued that a common concern about base station and local wireless network antennas relates to the possible long term health effects that whole body exposure to the radiofrequency signals. Cellular telephones have been claimed to cause cancer. Like Television, Alarm system, Computers, and all electrical devices, mobile phones emit electromagnetic radiations. A mobile phone’s main source of RF Energy is its Antenna, so the closer the antenna is to a phone, user’s health the greater the person’s expected exposure to RF energy. According to the learned counsel not only the defendant No.3 has unlawfully rented out the rooftop but the mobile antenna/BTS is also dangerous to the human health which should not be allowed. In support of his argument, the learned counsel relied upon following case laws:-
1.PLD 1994 Supreme Court 693, (Ms. Shehla Zia versus WAPDA). This judgment pertains to Human Right case against the establishment of a Grid Station in which the honorable Supreme Court held that citizens, under Art .9 of the Constitution of Pakistan were entitled to protection of law from being exposed to hazards of electromagnetic field or any other such hazards which may be due to installation and construction of any grid station, any factory, power station or such like installations. Article 184 of the Constitution, therefore, could be invoked because a large number of citizens throughout the country could not make such representation and may not like to make it due to ignorance, poverty and disability. Considering the gravity of the matter which could involve and affect the life and health of the citizens at large, notice was issued by Supreme Court to the Authority. Balance should be struck between the rights of the citizens and also the plans which were executed by the Authority for the welfare, economic progress and prosperity of the country and if there were threats of serious damage, effective measures should be taken to control it and it should not be postponed merely on the ground that the scientific research and studies were uncertain and not conclusive. With the consent of both the parties Court appointed Commission to examine the plan and the proposals/schemes of the Authority in the light of complaint made by the citizens and submit its report and if necessary to suggest any alteration or addition which may be economically possible for construction and location of the grid station. Supreme Court further directed that Government should establish an Authority or Commission managed by internationally known and recognized scientists having no bias and prejudice, to members of the Commission whose opinion or permission should be obtained before any new grid station was allowed to be constructed. Authority, therefore, was directed by the Supreme Court that in future, prior to installing or constructing any grid station and/or transmission line, it would issue public notice in newspapers, radio and television inviting objections and finalize the plan after considering the objections, if any, by affording public hearing to the persons filing objections. Such procedure was directed to be adopted and continued till such time the Government constituted any Commission or Authority as directed by the Court.
2.PLD 1960 Dacca 103 (Mafizuddin Khan versus Jadu Paramanik). In this judgment the learned Single Judge of Dacca High Court considered Section 42 of the Specific Relief Act and held that Section 42 is very wide and a person can pray for declaration against any person who is interested to deny the plaintiffs title. The relief claimed u/s 42 of the Specific Relief Act is no doubt discretionary but the real test for its application is whether there is any impending danger or whether the plaintiff really apprehends that an interested person may deny the plaintiff title.
3.PLD 1978 Lahore 113, (Abdur Rehman Mobashir versus Syed Amir Ali Shah Bukhari). In this judgment the learned divisional bench of Lahore high Court held that Section 42 of the Specific Relief Act applies only to a case where a person files a suit claiming entitlement to any legal character or any right to property which entitlement is denied by the defendants. It cannot apply to a case where the plaintiffs do not allege their entitlement to any legal character or any right to property or its denial by the defendants. As a corollary it cannot apply to a case where only the entitlement to the legal character or the property of the defendants is denied by the plaintiff. In the same judgment it was further held that the expression “legal character”, attributes which law attaches to a person in his individual and personal capacities or incapacities. Every legal right involves duty or obligation. Moral right or rights recognized only by morality ethics not enforceable in courts.
The learned counsel concluded his arguments that since the plaintiff is lawful owner of the roof top, therefore, the defendants may be restrained from installing or affixing any mobile antenna/BTS on the rooftop.
The learned counsel for the defendant No.1 argued that the plaintiff has no locus standi to file the suit as in the year 1995, the plaintiff issued circular to the residents of the project whereby it handed over the entire affairs of the said project to the association of the residents and at present Safari Blessing Welfare Association is running the affairs of the maintenance of the project and the plaintiff has no role to play. Another BTS is already in operation but the plaintiff never objected to it and only harassing the defendant No.1. The defendant No.2 is operating its BTS for last three years but only the defendant No.1 is being stopped from erecting the same installation in the same project which amounts to discrimination.
The learned counsel for the defendant No.2 argued that the building is situated in the city and right to use the property by the defendants being its owner according to their desire is their constitutional right. The plaintiff has no right to stop the defendants not to rent out or erect antenna/tower on the rooftop as in the year 1995, the plaintiff has already handed over the responsibility of entire project to the Welfare Association of the project and now the plaintiff has no right and authority to intervene in the affairs of the project which has already been handed over to the different allottees. The learned counsel further argued that the case law cited by the learned counsel for the plaintiff are quite distinguishable as the main case relied upon by him pertains to grid station which is not applicable in the case of BTS/mobile antenna. In support of his arguments the learned counsel for the defendant No.2 relied upon following case laws:-
Unreported judgment of Sindh High Court in C.P.No.D-844 of 2004. (Dr.Nazir Ahmed Choudhary versus Federation of Pakistan and others). In this case, the residents had challenged the installation of phone tower and electric generator which was being installed by Defense Housing Authority Telephone Exchange-II, Karachi with the prayer to restrain and prohibit the respondents from energizing/activating the telephone tower or any sort of work adjacent to the bungalows of the petitioners. The petitioners further claimed the protection from hazard of electromagnetic radiation and in this matter also, judgment of the honorable Supreme Court reported in PLD 1994 SC 693 (Shehla Zia case) was relied upon. The respondents took the defense that neither erection of phone tower nor the installation of generator would be hazardous or create any disturbance to the petitioners. After hearing the arguments, the learned divisional bench of this Court dismissed the petition with the observation that the installation made by the respondents cannot be considered to be illegal and there is no substance for invoking the extra ordinary jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 for seeking dismantle/removal of the tower and electric generator.
The learned counsel for the respondent No.3 argued that the plaintiff has no cause of action to file the present suit. The erection has already been completed and only networking is to be activated. The defendant No.3 has been authorized by the Safari Blessing Residents Welfare Association for the installation of tower and other residents of the project have also no objection. From the rental income, 25% amount will be contributed in the welfare association fund. In order to substantiate the authority to rent out the roof top, the defendant No.3 has also attached a copy of NOC dated 5.10.2009, issued by Safari Blessing Residents Welfare Association in favor of the defendant No.3.
The learned counsel for the defendant No.4 argued that the plaintiff has failed to make out any prima facie case and defendants being its owners are having full right to use the said building according to their wishes which right is protected under the Constitution.
Mr. Junaid Farooqui Advocate, learned counsel for the Cantonment Board Faisal argued on court notice that the Cantonment Board had already issued a notice to the defendant No.3 on 15.12.2009, whereby it was communicated that the defendant No.3 has granted permission to M/s Zong (China Mobile) at the roof of subject building without the previous sanction from Cantonment Board Faisal, which is an offence under the provisions of Cantonment Act, 1924. The learned counsel further argued that in pursuance of said notice, the defendant No.3 was directed to remove the illegal erection of antenna/tower within seven days from the receipt of the notice otherwise the same shall be dismantled through the agency of the Board at his own risk and cost under the provisions of Cantonment Act, 1924. On query of Court, whether the Cantonment Board has framed any specific rules and regulations for the installation of antennas/mobile towers/BTS, he frankly conceded to that no specific rules and regulations have been framed by the Cantonment Board, but the notice was issued under Cantonment Act without mentioning any specific provision of Cantonment Act, 1924.
The case file shows that on 5.11.2009, Mr.Abdul Rahman advocate was appointed Amicus Curiae and notice was issued to Karachi Building Control Authority, (KBCA), Pakistan Telecommunication Authority, (PTA), Environment protection agency (EPA) and Faisal Cantonment Board. On 22.1.2010, Amicus Curiae informed the Court that there is no provision either in Sindh Building Control Ordinance 1979 or in Cantonment Act 1924 which requires the permission for erection of telephone antenna/tower. In the same order, Nazir was appointed to inspect the site immediately and if the foundation of partial erection of antenna is found weak then dismantle it forthwith. On 8.2.2010, Nazir submitted his report that foundation of antenna was not found weak. Prior to the inspection of Nazir, a structure stability certificate for 20M tower and ODU pad, dated 29.1.2010, was also issued by the Sarah Haider, Civil Engineer, Pakistan Engineering Council which is also available in Court file to show that building structure was found safe as per latest standards. On notice to Pakistan Environmental Protection Agency, Mr.Naeem Ahmed, Director General, submitted his comments that in recent past with the decision of Pakistan Environmental Protection Agency (Pak-EPA), the companies are required to submit Environmental Monitoring Reports for review and approval from respective provincial EPA(s). it is further submitted in the comments, that environmental impacts emanating from BTS towers include air emission noise due to operation of generators which causes impact on the human health. On 12.4.2010, the Deputy Controller of Buildings, K.B.C.A submitted a statement that they have no jurisdiction for the subject area and proper civic agency is Faisal Cantonment Board.
It clearly appears that Faisal Cantonment Board, Environmental Protection Agency and PTA were only on court notice but they were never made party to the suit. Since, Pakistan Telecommunication Authority (PTA) is the regulatory authority in this matter, the role of EPA is also very crucial and the project in question is situated within the jurisdiction of Faisal Cantonment Board, therefore, in my view they are proper and necessary party. In exercise of powers conferred upon this court under Order 1 Rule 10 C.P.C, I feel it necessary to implead PTA. EPA and Faisal Cantonment Board. The leaned counsel for the plaintiff is directed to file amended title within ten days and office will also issue notices to the newly added defendants for filing their written statements.
After hearing the learned counsels, I have reached to the conclusion that there are many published reports in the scientific literature concerning possible biological effects resulting from animal or human exposure to RF energy. Biological effects that result from heating of tissues by RF energy are often referred to as thermal effect. It has been known for many years that exposure to high level of RF radiation can be harmful due to ability of RF energy to heat biological tissue rapidly. This is the principle by which microwave ovens cook food, and exposure to very high RF power can clearly result in heating of biological tissue and an increase in body temperature. The telecommunication products are being used worldwide by the individuals and industry make use of some form of electromagnetic energy in the shape of radio frequency or ‘RF’. RF emission and associated phenomena can be discussed in terms of energy, radiation or fields. Radiation is defined as the propagation of energy through space in the form of waves or particles. Electromagnetic radiation can best be described as waves of electric and magnetic energy moving together i.e., radiating through space. These waves are generated by the movement of electrical charges such as in a conductive metal object or antenna. As a guideline on Environmental and Health Related Effects of the Cellular Base Station Antennas, a report is posted as PTA website “www.pta.gov.pk “ which is an advisory report of Ministry of Information Technology, Govt. of Pakistan which provides that negative impacts resulting from such an expansion of cellular networks can basically be categorized into three areas. The most obvious and visible of the negative effects of the rapid growth of base station towers is perhaps the aesthetic impact of the structures on environment. Currently each cellular operator has its own network configuration and planning process and therefore multiple antennas can be frequently seen in the urban areas that are in close vicinity of each other. One of the motives behind the encouragement of cellular infrastructure sharing mentioned in the Cellular Mobile policy of the Government was to reduce the environmental effects of rapidly forecasted growth of cellular base stations. There are other obvious advantages associated with the sharing of infrastructure e.g quick rollout and sharing of costs between operators etc. Worldwide in all the mature markets the need for such kind of sharing has been realized and several countries have system in place where either sharing is mandatory or a third party provides the necessary tower co-location to all the cellular mobile operators. Another relatively lower but still real threat is from the accidents that could occur involving these base stations e.g. tower crashes in event of storms and gusty winds. Sometimes when these high towers are located close to power lines there is a strong possibility of tower accident affecting the power supply. Same is the case for the cellular towers mounted on short towers on the roofs of buildings.
Pursuant to the policy guidelines vide 2-30/2003/DT, dated 2nd April, 2007, issued by the Government of Pakistan, Ministry of Information Technology on mitigating the environmental and health related effects of the cellular base stations/antennas, the Pakistan Telecommunication Authority (PTA) under Section 5 (2) of Pakistan Telecommunication (Reorganization Act) 1996 made the “Protection from Health Related Effects of Radio Base Station Antennas Regulations, 2008”.
The relevant Regulations are reproduced as under:-
“4. Compliance Certificate: (1) All operators shall submit a compliance antenna installation certificate along with supporting information as specified in regulation 6 of these regulations to the Authority in the specified form annexed to these regulations Annex-A.
(2). All operators shall submit within three months from the date of gazette notification of these regulations, a fresh compliance certificate to the Authority in accordance with sub-regulation (1).
5. Antenna Installation Standards. All antennas installed by the operators shall confirm to the standards as laid down in ICNIRP’s guidelines of 1998 as may be available on PTA website www.pta.gov.pk for public and professional exposure to radiation which shall be considered as national standards for Pakistan.
6.Supporting Information. The supporting information shall be attached to the compliance certificate in the prescribed format attached to these regulations as Annex A-1.
7.Antenna installation requirements. (1) All operators shall ensure that the information listed below is complete in all respects:-
(i) The hazard light on top of structure/tower for the safety of aviation should be installed with the following features:
(a) red color;
(b) visible at aerial distance of at least three (3)
(c) omni directional; and
(d) blinking of light during day shall be at the rate of four (4) seconds on time and two (2) seconds off time while in night the light should be kept on continuously.
(ii) The tower should have two colors namely red and white.
(iii) Information about the site shall be made known by putting a plate in red color on the structure/ tower. The following information shall be engraved on plate:
(a) company name;
(b) site ID (assigned by company);
(c) Height of tower (tallest mechanical structure
at the site; from base of the structure and not just the tower);
(d) date of Installation;
(e) emergency contact number (24x7); and
(f) Contact No. of PTA.
(g) Contact No. of nearest fire brigade
(h) warning to keep the passerby or someone living in the vicinity away from the site as its prolonged exposure can be hazardous and injurious to health.
(iv) The plate, mentioned in sub-regulation (1) of regulation 7 of these regulations, shall be:
(a) installed at height of five (5) feet from base of tower;
(b) made of stainless steel material or an alloy of good
quality and strength;
(c) weather resistant;
(d) 1’ x 1’ (ft) in dimensions; and
(e) Firmly fixed with at least one leg;
8.Antenna installation and operation directions. (1) Roof-mounted antennas shall be elevated at least of twenty five feet (25ft) above the height of people who may have to be on the roof top.
(2) Radiating surface of all roof-mounted antennas shall be kept twenty five feet (25ft) away from the public places including roof access points, telephone service points etc.
(3) All roof-mounted directional antennas shall be placed near the roof periphery and be pointed away from the building.
(4) The large aperture antennas (lower maximum radiofrequency) and small aperture antennas (lower visual impact) shall be considered especially for installations on building roofs.
(5) Precautions should be taken when designing co-location sites, where multiple antennas owned by different operators are on the same structure, particularly those sites that include high-power broadcast (FM/TV) antennas.
9.Work practices standards. (1) All operators within thirty days from the date of gazette notification of these regulations shall develop and submit to the Authority a work practice manual to be displaced on the antenna site for information.
(2) Individuals working at antenna sites shall be trained and informed about the presence of RF energy, the potential for exposure and the steps that shall be taken to reduce their exposure.
(3) Each exposed worker shall be asked to sign a document provided by the operator (not its contractor or sub-contractor) which clearly indentifies the possible hazards and safety precautions to be taken.
(4) In case where the radio frequency radiation at a site exceeds the national standard for general public/ uncontrolled exposures, the site shall be posted with appropriate signs of warning and a statement that it has been cleared by the Authority.
(5) In case where the situation specified in sub-regulation (4) of regulation 9 of these regulations arises, which shall only be in exceptional circumstances, the complete plan with supporting information shall be submitted to the Authority prior to the increase in energy levels, regarding the time, technical specifications, and justification for such increase.
(6) All antennas shall be presumed to remain active at all times.
(7) All operators shall take necessary preventive measures and safety precautions for the protection of their workers including the following:-
i. A minimum distance of ten feet (10) between the antenna and their workers ; and
ii. A facility to power down (or shut down) the transmitters in the areas which exceed the guidelines for controlled (occupational) exposures.
(8) All Operators shall ensure wearing of a protective gear kit by their workers and that the workers are appropriately communicated to keep moving when working in close-proximity of the site.
10. Inspection. (1) The Authority may if it considers necessary and to ensure compliance of these regulations, through an authorized officer inspect the antennas and records maintained by the operator.
(2) The concerned operator shall provide all the information and shall extend all possible assistance to the authorized officer or representative of the Authority to inspect the antenna site (s).”
It is clear from Regulation No.5 that all antennas installed by the operators shall confirm to the standards as laid down in ICNIRP’s guidelines of 1998 as may be available on PTA website www.pta.gov.pk for public and professional exposure to radiation which shall be considered as national standards for Pakistan. Neither the plaintiff in the plaint has stated that any Regulation is applicable which has been violated by the defendant No.1 and 2 nor the defendants No.1 and 2 pleaded that they have complied with PTA regulations and installed the antenna in accordance with legal requirement nor they have attached any copy of compliance certificate as required under Regulation No.4.
ICNIRP is the International Commission on Non-Ionizing Radiation Protection. They issued guidelines on exposures in 1998. (In 2009 they issued a draft revision for consultation). Importantly, their guidelines are not intended to be a complete system for protecting the public that should be applied in different countries as it stands. They say that their guidance considers only the science, and Governments will need to look at other factors before deciding whether and how to implement the guidelines. Thus, for example, the EU Recommendation uses the numbers out of ICNIRP but expects them to be applied only where the time of exposure is significant.
The Regulation 10 provides that the Authority (PTA) may if it considers necessary and to ensure compliance of these regulations, through an authorized officer inspect the antennas and records maintained by the operator and the concerned operator shall provide all the information and shall extend all possible assistance to the authorized officer or representative of the Authority to inspect the antenna site (s). In this regulation, very important responsibility of inspection has been left at the discretion of PTA, while in the larger public interest and to implement the above Regulations in letter and spirit, the provision of inspection should be made a mandatory provision which should be carried out prior installation and post installation. The prior inspection will give clear idea as to the location of proposed installation and plan, whereas, the post inspection will prove the observance or non observance of the regulations on the part of operator. Necessary amendments are required to be made in the regulations that no certificate should be accepted under Regulation No.4 without proper inspection of PTA. Due to mushroom growth of Telecommunication business and telecom towers/antenna/BTS, the companies engaged in the business of telecommunication and electronic media business installing different types of towers/antennas in many localities in the city, therefore, the Civic Agencies including CDGK, Cantonment Boards should also frame their rules and regulation so prior installing the antenna, proper inspection may be carried out to verify and examine the stability of building structure by their own engineers/architects and before issuing permission, summary inquiry should also be made from residents of locality/building physically as well as through public notice in the newspaper for their objection.
The plaintiff claims that in spite of handing over the project to the residents association, it is still owner of building and no antenna can be installed at rooftop without its permission. This aspect can only be decided after leading the evidence. The plaintiff has also claimed damages in the suit which also requires evidence. The plaintiff in his plaint and application not raise single ground that installation of antennas/towers are harmful to the human health but this plea was only taken by their learned counsel in his arguments. Though the matter could be decided on the basis of pleadings only but since he raised a question of public importance therefore, I attended this plea. According to the pleading, the plaintiff has failed to make out any prima facie case for injunction and also failed to show at this stage any right over the rooftop which has been violated or infringed upon by the defendants. The balance of convenience also does not lie with the plaintiff and there is also no question of any irreparable loss as the plaintiff has already claimed damages on the ground that the defendant No.3 allowed the installation of antenna on rooftop without the permission of the plaintiff. In my view, as a builder of project, the plaintiff built the project and handover the possession to different allottees and occupants. The plaintiff also handed over the entire responsibility of project to the resident association without any further liability. It is quite common that after handing over the project to the allottees, a resident welfare association is founded and entire affairs of the project including maintenance is being looked after by the project residents association against the nominal monthly charges from each flat occupant.
Expression Public Interest in common parlance means an act beneficial to general public and action taken in public interest necessarily means an action taken for public purpose. It further leads general social welfare or regard for social good and predicating interest of the general public in matters where regard was social good is of the first moment. Since in this matter, the larger public interest is also involved, therefore, without dismissing the application out rightly, I would like to dispose of the injunction application in the following terms:-
1. The defendant No.1 and 2 shall not install and operate their BTS/Antennas in the “Safari Blessings” without fulfilling and complying with the mandatory requirements of “Protection from Health Related Effects of Radio Base Station Antennas Regulations, 2008”. PTA shall carry out inspection under Regulation 10 through its authorized officer to check and verify whether the defendant No.1 and 2 have installed the towers after complying with the provisions of “Protection from Health Related Effects of Radio Base Station Antennas Regulations, 2008”. The inspection will be carried out within fifteen days with prior notice to the plaintiff and defendant No.1 and 2.
2. The Faisal Cantonment Board is also directed to depute its own engineers to inspect the site in question and examine/verify the stability of building whether it is safe and can bear the load of proposed antenna tower and generator if any.
3. In the comments filed by the Director General EPA, it has been submitted that M/s.Zong (China Mobile), defendant No.1 and M/s. Ufone defendant No.2 have not submitted any monitoring report regarding the impact of the BTS towers and generators to EPA.
4. Under Clause (iii) of Section 2 of the Pakistan Environmental Protection Act 1997, the definition of “air pollutant” includes electro-magnetic, radiation and radioactive substance, therefore, in my view, the Environmental protection Agency established under Section 5 of the Pakistan Environmental Protection Act 1997, should also conduct an Environmental impact assessment of BTS/Antenna towers to determine the adverse environmental effects.
5. At present, it is the plea of the defendant No.3 and 4 that after completion of project, the affairs of the project were handed over to the M/s. Safari Blessings Associations, therefore, in my tentative view except the association, nobody has right to rent out the rooftop to the defendant No.1 or 2. This right is also subject to the final outcome of the plaintiff’s claim in this suit. At present I am of the view that an individual who is lessee of a particular apartment has no right to lease out the rooftop of its apartment unless, he has been given the leasehold rights to use the rooftop also in the indenture of lease exclusively. Normally, the use of rooftop is for common access to all the occupants of the project under the control of building residents association. It is quite common practice that only residents association grants such permission and utilize the rental income for the welfare, maintenance and well being of the project, therefore, the fate of alleged NOC issued by the defendant No.4 in favor of defendant No.3 can only be decided after evidence. It is an admitted position that defendant No.3 is using 75% income for his own benefit and only allowing 25% to the association, unless, the defendant No.3 proves that in the lease document, he is allowed to rent out rooftop or the rooftop of his apartment is owned by him, the appropriation of aforesaid rental amount is without any rhyme or reason. The defendant No.1 is directed to deposit all future rent regularly with the Nazir of this court till final disposal of this suit. The effect of past rent paid to the defendant No.3 by the defendant No.1 and the right of defendant No.3 if any on such rent will also be decided after evidence.
The advisory report of Ministry of Information Technology provides negative impacts resulting from such an expansion of cellular networks. The most obvious and visible of the negative effects of the rapid growth of base station towers is perhaps the aesthetic impact of the structures on environment. Another relatively lower but still real threat is from the accidents that could occur involving these base stations e.g. tower crashes in event of storms and gusty winds. Sometimes when these high towers are located close to power lines there is a strong possibility of tower accident affecting the power supply.
The honorable Supreme Court in "Shehla Zia" case has already held that Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The word "life" is very significant as it covers all facts of human existence. The word "life" has not been defined in the Constitution but it does not mean nor can be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. A person is entitled to protection of law from being exposed to hazards of electromagnetic fields or any other such hazards which may be due to installation and construction of any grid station, any factory, power station or such like installations.
In view of the dictum laid down by the honorable Supreme Court in the above case, I would also like to make following recommendations in the larger public interest:
1. All civic Agencies including CDGK and Cantonment Board should frame their Rules and Regulations for the installation of BTS/Antennas/F.M Towers. The regulation shall contain proper procedure for grant of NOC not for obtaining fees only but to verify/check and examine the stability of building/structure of the proposed location through their own engineers and architects with further provision of inviting objections in the newspapers through public notices from general public and residents of buildings of the proposed location of installation.
2. It is also necessary for the Pakistan Telecommunication Authority (PTA) to amend/modify its present “Protection from Health Related Effects of Radio Base Station Antennas Regulations, 2008”, with mandatory provision that no antenna/tower/BTS shall be installed without prior inspection of the location and site by PTA. No simple reliance be made on the compliance certificate but immediately upon furnishing the compliance certificate, PTA shall undertake post inspection of the site and if any violation is found, then, there must be a provision to impose fines including the cancellation of license but after issuing show cause notice and personal hearing.
3. Efforts should be made by the PTA in view of the advisory report of Ministry of Information Technology, Govt. of Pakistan, for the sharing of infrastructure e.g. quick rollout and sharing of costs between operators etc. as according to this report, it is stated that worldwide in all the mature markets the need for such kind of sharing has been realized and several countries have system in place where either sharing is mandatory or a third party provides the necessary tower co-location to all the cellular mobile operators. In my view this will be laudable effort of PTA for mitigating environmental and health related effects of Cellular base station antennas.
4. Environmental Protection Agency established under Section 5 of the Pakistan Environmental Protection Act 1997 ought to ensure that BTS/mobile phone towers/antennas are installed after environmental impact assessment in accordance with National Environmental Quality Standards established by Federal Agency under Clause (e) of Sub-section (1) of Section 6 and approved by the Council under clause (c) of Sub-section (1) of Section 4 of the Pakistan Environmental Protection Act 1997.
Office is directed to transmit a copy of this order to Director General PTA, Islamabad, Administrator CDGK, Chairman KPT, Executive Officers of all Cantonment Boards and Director General, Environmental Protection Agency.
Dated. 15.12.2010 Judge