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Petitioner: Messrs RABBIYA ASSOCIATIES through Proprietor VS Respondent: Messrs ZONG (CHINA MOBILE) through Director and 3 others
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar Title:Messrs RABBIYA ASSOCIATIES through Proprietor vs Messrs ZONG (CHINA
MOBILE) through Director and 3 others Case No.: Suit No,1513 of 2009 and C.M.A. No,9691 of 2009C.P. No,D-844 of 2004 Date of Judgment:2010-12-15 Reported As: PLD 2011 Karachi 132 Result: Order accordingly Judgment ORDER ' MUHAMMAD ALI MAZHAR, J.---By this order, I will dispose of C.M.A. No, 9691/2009 filed by the plaintiff under Order XXXIX, Rule 1 and 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, Gulistane- 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.
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(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 favour. 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 Nos.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 an 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, C.P.C. 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 favour 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 favour 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 5-10-2009 for
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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 types 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 radio frequency 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 v. WAPDA). This judgment pertains to Human Right case against the establishment of a Grid Station in which the honourable 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
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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 v. 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 v. Syed Amir All 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 telied 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-law:-- ' Unreported judgment of Sindh High Court in C.P.No,D-844 of 2004. (Dr.Nazir Ahmed Choudhary v. 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 defence that neither erection of phone tower nor the installation of generator would be hazardous or create any disturbance to the
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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 favour 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 Cantonments 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 Cantonments 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 Cantonments Act without mentioning any specific provision of Cantonments 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 Cantonments 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.
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' 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 I, Rule 10, C.P.C, I feel it necessary to implead PTA. EPA and Faisal Cantonment Board. The learned 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 counsel, 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 or Environmental and Health Related Effects of the Cellular Base Station Antennas, a report is posted as PTA website "www.Pta.Nov.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:--
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"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…
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