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Petitioner: Muhammad Naeem VS Respondent: Govt of KP & Others
Court Name: Peshawar High Court Judge(s): Qaiser Rashid Khan (C.J) Title: Muhammad Naeem vs Govt of KP & Others Case No.:Writ Petition No.4256-P/2018 with CM Nos.1924, 1571, 2335-P/2018 & 353-
JUDGMENT
Reported As: 2022 PHC 450 Result: Petition Dispoded of Judgment JUDGMENT QAISER RASHID KHAN, CJ. Through this common judgment, we intend to dispose of the instant six writ petitions bearing Nos.4256, 4257-P/2018, 2152-P, 69-A/2019, 2885 and 3075-P/2021, as common questions of law and facts are involved therein. 2. Brief facts in Writ Petition Nos.4256, 4257-P/2018, 69-A/2019, 2885 and 3075-P/2021, are that the petitioners have shown their serious reservations over the installation and operation of the Mobile Towers / Base Transceiver Stations (BTS) Towers near to the residential areas, hospitals, schools and also inside the public parks at Peshawar and Abbottabad primarily on the ground that the said Towers hold antennas and other communication equipments with powerful high frequency microwaves for the use of cell phones as well as Wi-Fi, WiMax, Wireless LANs, Bluetooth and other supported devices due to which a number of health problems particularly Cancer disease are being faced by the people in their respective areas. Besides that, the forest and fruit gardens are also affected by installation of BTS and the output of most of the fruits bearing trees have been drastically reduced. The petitioners have alleged that the concerned District Administration including the Authorities of the Environmental Protection Agency have failed to implement the International Laws, Guidelines and policies on the subject in order to protect the environment from the hazards of aesthetic pollution and radiations emitting from the Base Transceiver Stations and Microwave Antennas. 3. Through Writ Petition No.2152-P/2019, the China Mobile Pakistan Limited (CMPak Limited) through its Director Legal (the petitioner herein) has called in questioned the vires and legality of the "Guidelines for Installation of Base Transceiver Station (BTS) Sites" made by the Khyber
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Pakhtunkhwa Environmental Protection Agency (respondent No.1). It is alleged in the petition that the petitioner is a private limited company licensed by the Pakistan Telecommunication Re- Organization Act, 1996 (respondent No.2) to provide cellular mobile services in Pakistan having invested billions of rupees and has millions of customers across Pakistan. The petitioner has installed a countrywide cellular mobile network including installation of BTS as necessitated by the network design approved by the Frequency Allocation Board and the respondent No.2. While the Environmental Protection Agency is the provincial Agency established under section 5 of the KP Environmental Protection Act, 2014 and its functions and powers are provided under sections 6 & 7 of the ibid Act, which include the administration and implementation of the provisions of the Act and the Rules made thereunder and the Agency itself has not been vested with any powers to make Rules, Regulations or Guidelines, the Pakistan Telecommunication Authority is a Federal Regulator established under the Pakistan Telecommunication (Re-Organization) Act, 1996 and has been mandated with specific powers, responsibilities and functions which regulates the licensed services of all the telecom lincesees operating in Pakistan. Further averred that the petitioner at the time of installing and operating its BTS towers including telecommunication equipment installed thereon and the steel tower of pole constructed for erecting such equipment had complied with all the requirements of the Protection from Health Related Effects of Radio Base Stations Antennas Regulations, 2008 and the ICNIRP Guidelines and as per the press release dated 23.02.2016 of the respondent No.2, the misconception regarding the hazardous affects of the wireless telecommunication equipment hoisted on BTS towers is incorrect and the same are working within the specified parameters defined by the regulator as well as relevant international bodies; that the respondent No.1 having no jurisdiction and means to test the electromagnetic emissions from the wireless telecommunication equipment hoisted on BTS towers except the emissions from independent power source obtained from generators for which the respondent No.1 has already made guidelines and followed by all concerned. Similarly, the respondent No.1 has no Rules or Regulations regarding the installation of BTS towers and more so, there is no basis for the petitioner or any other Cellular Mobile Operators to prepare an Initial Environmental Assessment or apply for a NOC prior to installing and operating their BTS towers. On 30.08.2018 two identical writ petitions were instituted with the prayer to protect the general masses from the hazards of environmental pollution by implementing zoning laws made for environmental protection, wherein, the respondent No.1 while submitting comments presented a copy of the impugned "Guidelines for Installation of Base Transceiver Station (BTS) Sites" which have been allegedly prepared pursuant to the query of this court as to under which law the respondent No.1 has sought to take action against the Cellular Mobile Operators. As the said 'Guidelines' made by the respondent No.1 are ultra vires of the KP Environmental Protection Act, 2014, beyond the jurisdiction of the respondent No.1 and in direct conflict with the exclusive statutory authority of the respondent No.2, therefore, the same be declared as without lawful authority, of no legal effect and set aside. 4. The respondent-PTA have submitted their comments, wherein, it has been stated that under section 3 of Pakistan Telecommunication (Re-Organization) Act, 1996 the Pakistan Telecommunication Authority has the mandate to regulate the establishment and maintenance of telecommunication system and provide telecommunication services in Pakistan. Further averred that the Pakistan Telecommunication Authority has no role to play in the issues relating to the Right of way under section 27(A) of the Pakistan Telecommunication (Re-organization) Act, 1996 and in fact it is the subject of the local administration and the Environmental Protection Agency being the concerned authorities which issues NOC to cellular mobile operators for installation of BTS in different vicinities of the cites. It is further clarified that since the Environmental Protection Agency established under the KP Environmental Protection Act, 2014 issues NOCs / Environmental approvals to the cellular mobile companies, therefore, the Environmental Protection Agency is the
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competent body to initiate action against the BTS towers, which violate the rules and regulations adopted by the Agency. 5. Pursuant to the directions of this court, the respondent EPA has also filed their respective comments wherein it has been stated that under section 2 (xx) of the KP Environmental Protection Act, 2014 deals with the matters pertaining to the radiation and section 11 of the ibid Act relates to environmental pollution emitted by the BTS towers. Under section 13 of the ibid Act, the petitioner and other mobile companies are bound to obtain environmental approval for installation and operation of their cellular service across the KPK. Further averred that the Environmental Protection Agency has already issued notices to the petitioner BTS towers under section 17 of the KP Environmental Protection Act, 2014 which do not fulfill the criteria laid down in the KP Environmental Protection Act and the Rules and Regulations made thereunder. 6. All that the learned counsel for the petitioner namely Mr. Hamza Siddique, Advocate, representing the China Mobiles Pakistan Ltd, in connected writ petition urges that while the Pakistan Telecommunication Authority (respondent No.2) is only capable to regulate the licensed services of all the telecom licensees operating in Pakistan under the provisions of the Pakistan Telecommunication Re-Organization Act, 1996, the Environmental Protection Agency is only an executive body and its functions and powers are to administrate and implement the provisions of the KP Environmental Protection Act, 2014; that the Pakistan Telecommunication Authority has conducted several surveys throughout Pakistan and its latest reports clearly suggest that the BTS towers are functioning within the specified parameters as defined by the Pakistan Telecommunication Authority. Further states that the Environmental Protection Agency has no powers to make Rules, Regulations or Guidelines in respect of installation and operation of BTS towers; that the Environmental Protection Agency has no jurisdiction in the matter of the installation of BTS towers by the cellular mobile operators and also in the matter of its clearance; that the Pakistan Telecommunication Authority has promulgated "Protection from Health Related Effects of Radio Base Stations Antenna's Regulations, 2008, which alleviates the environmental and health related effects of a cellular base station antennas; that the petitioner and the other mobile operators are not bound under the impugned `Guidelines' to either prepare an Initial Environmental Assessm ent or apply for `NOC' prior to installation of their BTS towers and more so, that the petitioner and other mobile companies have installed a number of BTS towers throughout the KPK without any prior approval / permission or for that matter seeking any NOC from the Environmental Protection Agency; that the impugned Guidelines, so made by the respondent No.1 are ultra vires to the KP Environmental Protection Act, 2014 as the Environmental Protection Agency has no powers to make the same; that the impugned Guidelines do not bear any date, name or designation of the approving authority, hence, the same have no binding effect upon the petitioner and other mobile companies. He thus contends that the impugned 'Guidelines' be declared as ultra vires, without lawful authority and of no legal effect upon the rights of the petitioner and other Cellular Mobile Services in Pakistan. 7. The learned counsel representing the Mobilink (Jazz), Ufone and Telenor support such arguments. 8. Mr. Shumail Ahmad Butt, the learned Advocate General on his turn opposes such arguments and contends that after the 18th Amendment, all the provinces have their own rules of business. He contends that the KP Environmental Protection Act, 2014 provides a proper procedure and mechanism to investigate any environmental or pollution issue, conduct surprise inspections or visits of any public or private premises, seal or seize the attachments, holding, property, equipment or material in the commission of pollution offences and also register a criminal case against any individual causing hindrances, obstructions in discharge of official functions of the Environmental Protection Agency; that no Cellular Mobile company in KPK shall start construction or operation of a
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BTS tower unless it has filed with the Environmental Protection Agency an Initial Environmental Examination (IEE), Environmental Impact Assessment (EIA) and obtained prior approval / NOC from the Environmental Protection Agency in this respect; that the Environmental Protection Agency has the powers to carry out and conduct environmental audits of those projects establishment before the commencement of this Act under section 6 (1) (xiii) of the KP Environmental Protection Act, 2014; that as per section 6 (1) (xvii), the Environmental Protection Agency is competent to identify the needs and initiate legislation in various sectors of the environment; that the Environmental Protection Agency has the powers to make rules and guidelines under the KP Environmental Protection Act, 2014; that since the Environmental Protection Agency has made the impugned "Guidelines" in reference to recommendation of the Environmental Assessment Advisory Committee and the Pakistan Telecommunication Authority, Protection from Health Related Effects of Radio Base Station Antennas Regulations, 2009 along with International Commission on Non- Iodizing Radiation Protection, therefore, the same cannot be declared as ultra virus. He lastly contends that the petitions filed by the private individuals have practically become infructuous, after promulgation of the KP Environmental Protection Act, 2014, the Rules and Regulations made thereunder and the impugned Guidelines made by the Environmental Protection Agency as earlier there was no such law to investigate or for that matter monitor the installation and operation of a mobile / BTS towers in the province. 9. The learned counsel for the petitioners in WP Nos.4256, 4257-P/2018, 69-A/2019, 2885 and 3075- P/2021 adopts the arguments of the learned Advocate General. 10. Mr. Ashfaq Ahmad Daudzai, the learned Assistant Attorney General by relying on the arguments advanced by the learned Advocate General states that while the Pakistan Telecommunication Authority deals only with the matters relating to the installation of the BTS towers under the provisions of the Pakistan Telecommunication Authority Regulation, 2008 i.e. Protection from Health Related Effects of Radio Base Stations Antennas Regulations, 2008, the Pakistan Telecommunication Authority has no jurisdiction to entertain the matters relating to Right of Way issues, which is the subject of local administration and environmental protection agency being the concerned authorities which issues NOCs to the Cellular Mobile companies for the installation and operation of the BTS towers. 11. Arguments heard and the available record perused. 12. Initially, writ petition Nos. 4256 & 4257-P/2018 were instituted by private individuals before this court, wherein, they raised serious reservations over the mobile / BTS towers, particularly in the residential areas, inside the public parks, schools and hospitals. Both these petitions have been pending before this court for quite a while, whereby, several directions have been issued to the concerned respondents including the KP Environmental Protection Agency, Peshawar and the Pakistan Telecommunication Authority from time to time. On 18.10.2018, keeping in view the fact that the Mobile Towers / antennas installed in the residential areas are hazardous to human life as the emissions from the same in turn cause serious diseases as cancer, this court restrained the provincial government from issuing fresh NOCs to any mobile company for installations of the BTS / Mobile towers in the residential areas. Pursuant to such directions, Dr. Bashir Khan, the then Director General, Environmental Protection Agency, Peshawar had submitted a detailed report on 14.11.2018 based on the latest scientific research regarding the installation of the Antennas and mobile towers and as to how they are causing serious health problems including such fatal diseases as cancer in certain cases. On 6.12.2018 we again directed the Director General, Environmental Protection Agency, Peshawar to show strict compliance to the international standards in respect of installation and operation of such BTS towers and also issue notices to the heads of the Mobile Companies and discuss the matter with them and in case, they found the mobile / BTS towers or Antennas installed in the residential areas, near to the schools or
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mosques, they be removed forthwith. We also modified the interim order dated 18.10.2018 of this restraining the provincial government from issuing the NOC to any mobile company for installation of mobile towers in residential areas to the extent that the NOCs be given to those Mobile companies who conform to the requirements of Pakistan Telecommunication Authority and Environmental Protection Agency as well as the International Health Standards. In line with the ibid directions of this court, the Director General, Environmental Protection Agency conducted an overall survey of the residential areas of Peshawar in respect of the installation of mobile towers and antennas and submitted a report, whereby the Environmental Protection Agency found 20 towers / antennas of different mobile companies at Peshawar which did not meet the requirements of Pakistan Telecommunication Authority and Environmental Protection Agency as well as the International Health Standards. We accordingly, directed the Director General, Environmental Protection Agency to issue notices to their owners for removal of the same to safer places. 13. Undoubtedly, the use of mobile phone is very common and that is how, it drastically increases the possibility of human exposure to the microwave radiation in daily life. However, the effects of radio frequency electromagnetic fields on humans is becoming the focus of interest at the international level due to its potential threat to the health in general. In this respect, the Senate Standing Committee on Environment (Environmental Assessment Advisory Committee) held a meeting, wherein, the issues pertaining to health hazards caused by the radiations emitted by BTS and mobile phone antennas were discussed. The Committee gave some recommendations and actionable points in this regard and the concerned cellular companies were directed to get environmental clearance from the respective Environmental Protection Agencies prior to the installation of BTS towers. The Recommendations and Actionable Points are as under: RECOMMENDATIONS AND ACTIONABLE POINTS S.No.Recommendations of the CommitteeAction required by i.All mobile companies be directed to obtain clearance from EPA prior to installation of a Based Transmission StationCabinet Division Chairman PTA Pak-EPA Provincial EPAs ii.EPA should ensure that one tower is installed in an area. Cluttering of towers in a given areas should be strictly discouraged.Cabinet Division Chairman PTA Pak-EPA Provincial EPAs iii.It should be made mandatory for all the mobile companies to obtain an NOC from City District Government prior to installation of Based Transmission Station.Cabinet Division Chairman, PTA Provincial Chief Secretaries
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iv.Federal EPA should take a comprehensive survey to assess all the hazards caused by transmissions from basis Transmission StationsPak-EPA v.Subsequently, the Federal EPA should conduct a meeting of all stakeholders on the subject issue and inform the Standing Committee of its outcome within 15 daysPak-EPA vi.The Federal EPA should explore the possibility of utilizing Based Transmission Stations on rotation basis i.e. a period should be specified for each company. In addition to this, possibilities should also be explored for replacement of towers with small dishes as is being done in other countries.Pak-EPA vii.Federal / Provincial EPAs should explore the possibility wherein one tower is shared by maximum of three mobile companies. This should be done with a year.Pak-EPA Province EPAs viii.Studies should be conducted for reduction of size of the tower, optimally the size of the tower should be between 15-25 feet. Possibilities should be examined for installation of miniature towers.Cabinet Division Chairman, PTA Pak-EPA ix.Taking due cognizance of the fact that FATA / Tribal areas are lagging behind in cellular phone facilities, all mobile companies were to extend maximum facilities in these areas so that the inhabitants of these areas do not suffer from any sense of deprivation.Cabinet Division x.A mechanism should be developed by al the mobile phone companies so that the emissions from based transmission stations installed by them specially in the border areas and other strategic regions do not hinder or disturb the communication network established by Armed Forces in these areas.Cabinet Division Chairman PTA xi.PTA should take necessary departmental action against management of WARD and ZONG for not sending their representatives in the meeting.P&D Division xii.Economic Affairs Division should expedite arrangements for securing step loan from the Government of Japan for "Revival of Karachi Circular Railway Project".Economic Affairs Division xiii.The Chairman took serious note of non- attendance of Executive District Officer (Rev), CDGK in the meeting and directed that the Chief Secretary, Govt. of Sindh should conduct an inquiry on the recommendations made by the Standing Committee in Para 18-19 of the minutes of its meeting held on 16th August, 2008 and submit his report to the committee within a week.Chief Secretary, Sindh xiv.The Committee took also notice regarding delay in the release of funds for the CNG project and recommended that Secretary Environment should look into the issue and submit a report the committee within 10 days.MD (ENERCON) xv.The Committee recommended that the issues and challenges being faced by the force while discharging their responsibilities in the Province of Sindh should be brought to the notice of Ministry of Interior and Govt. of Sindh for immediate redressal.Chief Secretary, Sindh; Secretary, M/S Interior. xvi.The Committee took cognizance of the issue i.e. approval of PC-I for gas generator for Combined Effluent Treatment Plaint (CETP), Korangi, Karachi andJS (Dev), M/O Env.
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directed that the matter be taken up with the Secretary, Ministry of Environment to finalize the issue without any further loss of time. 14. Second meeting of the Environmental Assessment Advisory Committee (EAAC) was held on 4th December, 2008 at Pak EPA Office, wherein, the representatives of the Cellular companies were also invited. Suggestions made in EAAC meeting are reproduced herein below for ready reference: Suggestions made in EAAC Meeting Pakistan Telecom Authority (PTA) may issue license to telecommunication s network operators under International Commission on Non-Iodizing Radiation Protection (ICNIRP) Guidelines which may specify frequencies for maximum powers transmission; The cellular companies may be bound to obtain environmental approval from the concerned EPAs before installing BTS. EPAs may also ensure compliance of ICNIRP Guidelines while issuing environmental approval of BTS; BTS towers presently working at populous sites should be compelled to adopt all the preventive and safety measures recommended by PTA and INCIRP; EPAs may procure Spectral Monitoring Equipment for measuring BTS radiation; Cellular companies may see possibility of replacing Microcellular based antennas with Microcellular based antennas that could be fixed at external walls of buildings as are used in other countries. As Microcellular antennas are a lot smaller than Microcellular antennas and can often be disguised as building features. Independent Audit System for electromagnetic emissions (EME) from towers may be established' EME reporting framework may be developed; Exclusion zones in the range 10-15, is required to ensure exposures remain within the ICNIRP guidelines for public exposure; BTS tower sites should be managed in such a way that there should not be any public exposure upto 25 feet circumstance; Cellular Companies may look into the matter of re-locating and re-designing mobile towers. GENSET installations may not be allowed in residential areas and noise sensitive areas. Operators should manage alternative source of power supply preferably UPS. GENSET may have inbuilt system (acoustic reduction devices & cleaner fuel) to comply with Environmental Quality Standards for air and noise; Towers may be shared by at least three (03) mobile companies & all three have to get separate approval from the competent authority. 15. Before the Environmental Assessm ent Advisory Committee meeting held way back in November, 2008, there were no approved guidelines existed regarding the installation of BTS towers across the country. Keeping in view the instructions given by the Environmental Assessment Advisory Committee, the Provincial Environmental Protection Agencies across the country started work on the subject in order to streamline the BTS installation in their respective provinces. In the year, 2018, the KP Environmental Protection Agency has prepared and finalized the Guidelines known as "Guidelines regarding Installation of the Base Transceiver Stations Sites" in the light of the recommendations of the Environmental Assessment Advisory Committee, the Pakistan Telecommunication Authority Regulation 2009 known as Protection from Health related effect of Radio Base Station Antennas Regulations, 2009 and the International Commission on Non-Iodizing Radiation Protection (INCIRP) guidelines. The same were circulated amongst all the cellular companies for compliance. During the pendency of these writ petitions, three other similar writ petitions bearing No.69-A/2019, 2885 & 3075-P/2021 were filed by certain individuals showing the same reservations over the installation of the Mobile / BTS Towers in their respective areas.
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16. The China Mobile Pakistan Ltd…
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