KEYWORDS: cell tower on apartment roof consent, telecom tower rental income, electronic radiation, housing society telecom rules, telecom revenue rights.
INTRODUCTION:
The establishment of telecommunications towers and antennas on residential terraces raises interconnected questions of property law, telecom regulation, and public health. Housing societies, whether structured as cooperative societies or apartment owners’ associations must reconcile the statutory framework governing telecommunications right of way with their own internal decision-making processes before permitting such installations. Residents frequently object to these installations on aesthetic and health grounds, while societies and individual owners often see the rental income as a meaningful revenue stream. This creates a genuine tension between three interests: who within a multi-owner structure has the authority to consent, whether radiation-based objections have legal and scientific standing, and how rental revenue generated from a common asset ought to be allocated. This piece examines these three dimensions specifically under Indian law, situating them within the recently notified Telecommunications Act, 2023 and the Telecommunications (Right of Way) Rules, 2024, before drawing limited comparative reference to other jurisdictions
INDIA’S CURRENT TELECOMMUNICATIONS FRAMEWORK
Any discussion of telecom installations on private terraces in India must begin with the Telecommunications Act, 2023 and the rules notified under it, rather than jump straight to comparative law, since these now form the operative legal framework.
The Department of Telecommunications notified the Telecommunications (Right of Way) Rules, 2024 on 19 September 2024, in supersession of the earlier Indian Telegraph Right of Way Rules, 2016 and the Indian Telegraph (Infrastructure Safety) Rules, 2022. These Rules took effect from 1 January 2025 and established a comprehensive framework for obtaining right-of-way permissions for telecommunication networks across both public and private property. Crucially, the 2024 Rules do not treat private property the same way as public property. For establishment of a telecommunication network over any immovable property other than public property, a facility provider must first obtain prior consent and enter into a mutual agreement with the person who has ownership, control, or management over that property. Notably, this agreement does not need to be registered under the Registration Act, 1908. This has a direct bearing on housing societies: the Rules require consent from “the person who has ownership, control, or management” of the property but they do not themselves define who that is inside a multi-owner building. That question is answered by the applicable State Cooperative Societies Act or Apartment Ownership Act, the society’s registered bye-laws, and its governing documents.
WHO OWNS THE TERRACE, AND WHO MUST CONSENT?
Before asking whether a society “can” lease its terrace to a telecom operator, the prior question is who legally holds the right to decide — and this is where the earlier draft’s “unanimous consent” claim broke down. Indian law does not impose a single blanket rule; the answer depends on ownership structure, the society’s registered bye-laws, and the terms of any conveyance from the builder.
Terraces are ordinarily common property, not exclusive to any flat. Under the model bye-laws framework followed by cooperative housing societies (framed under state Cooperative Societies Acts), an “open terrace” is defined as one not in the exclusive possession of any member, and falls within “common areas and facilities” along with the building’s structural elements. This means no individual flat owner — including a top-floor owner can unilaterally lease terrace space to a telecom operator and retain the proceeds, unless a registered conveyance or a specific General Body resolution has granted them exclusive rights.
The Supreme Court’s reasoning in Nahalchand Laloochand Pvt. Ltd. v. Panchali Co-operative Housing Society Ltd., (2010) 9 SCC 536, though decided in the context of stilt parking, established the governing principle by analogy: once a housing society is registered and common areas are meant for collective use, a builder or individual cannot retain, sell, or exploit them separately from the society’s collective ownership. The same logic has since been applied by courts and commentators to terraces physical proximity to a flat (being on the top floor) does not, by itself, create ownership.
Under standard bye-laws, commercial exploitation of the terrace — leasing it for a telecom tower, solar installation, or hoarding — requires approval through a resolution of the General Body Meeting, not merely the Managing Committee. A Committee that leases the terrace without such approval risks the agreement being challenged as unauthorised. What the bye-laws typically do not require is unanimity — approval is by resolution passed at a properly convened General Body Meeting, with the specific majority threshold (simple majority, or a higher threshold for bye-law amendments) governed by the applicable state Act and the society’s own bye-laws.
Rule 14 of the 2024 Rules requires the facility provider to obtain consent from “the person who has ownership, control, or management” of the property. For a housing society, that person is the society itself, acting through its General Body resolution not an individual flat owner, and not the Managing Committee acting alone. In effect, Indian law layers two consent requirements: an internal one (the society’s own governance process) and an external one (the facility provider’s statutory obligation to obtain that consent in writing before installation).Where the property has not yet been conveyed to the society i.e., the builder still holds the terrace the position shifts further, since the builder cannot lawfully lease common areas either, as per Nahalchand Laloochand; only a validly constituted body with title can grant such consent.
RADIATION AND HEALTH ISSUES
Residents commonly object to rooftop telecom installations on the basis of perceived health risk from electromagnetic radiation. Before assessing the legal weight of such objections, it is necessary to separate the regulatory position from the scientific one, since Indian law has taken a fairly firm stance on this question.
India’s exposure limits are already set well below the international default. The Government of India adopted ICNIRP’s 1998 reference levels in 2008, but in 2012, acting on the recommendation of an Inter-Ministerial Committee, DoT reduced the permissible exposure limit for base station emissions to one-tenth of the ICNIRP levels, as a measure of precaution. This is enforced through a self-certification regime: every Base Transceiver Station must be certified as compliant and submitted to the local Telecom Enforcement Resource & Monitoring (TERM) Cell before it can commercially operate, with random audits and a penalty of ₹10 lakh per non-compliant site. DoT has consistently maintained that no scientific evidence establishes that emissions within these limits cause adverse health effects — a position broadly consistent with the WHO’s own stated view that there is no convincing evidence of harm from base-station-level exposure.
This regulatory backing has generally meant that courts defer to the DoT framework over individual apprehension. In Pearl Green Acres Owners v. Union of India before the Delhi High Court, the court rejected the contention that childhood health issues could be attributed to a mobile tower’s electromagnetic radiation, in the absence of evidence displacing the government’s compliance framework. Petitions seeking blanket restrictions on tower installation near residences, schools, or hospitals have generally not succeeded, since DoT’s own 2013 advisory to state governments takes the position that no such distance-based restriction is warranted once emission norms are met.
That said, this is not an unqualified position, and the caveat matters for a housing-society context. In 2017, in proceedings arising from a petition by Harish Chand Tiwari, a Gwalior resident who alleged that fourteen years of exposure to a BSNL tower caused his Hodgkin’s Lymphoma . The Supreme Court directed deactivation of that specific tower within seven days. It is important not to overstate what this order established as it was an interim direction concerning one tower that had reportedly been installed without municipal permission, not a final finding that compliant EMF exposure causes cancer, and the broader petitions on nationwide tower guidelines remained pending. It is nonetheless significant for housing societies because it shows that a) illegal or non-compliant installations carry real litigation risk regardless of the EMF-safety debate, and b) courts retain discretion to act on individual, fact-specific complaints even within a generally permissive regulatory regime.
The practical implication for a society deciding whether to permit an installation is therefore twofold: first, compliance with DoT’s self-certification norms substantially insulates the arrangement from radiation-based legal challenge; second, ensuring the installation itself is regularised with proper municipal/structural permissions, TERM Cell certification on record matters as much as the EMF science, since the Tiwari case suggests courts respond as much to procedural irregularity as to the underlying health claim.
REVENUE RIGHTS: OWNERSHIP, DISTRIBUTION, AND TAXATION
Once it is established that the terrace is common property vesting in the society, three further questions follow; who is legally entitled to the rent, how the society may deal with it, and how it is taxed.
The income belongs to the society as a body, not to any individual member. Since the terrace is common property under the society’s registered bye-laws, rental income from a telecom operator accrues to the society and ordinarily forms part of its corpus or general fund, to be applied for the collective benefit of members like maintenance, repairs, or reduction of the maintenance burden rather than being paid out to individual flat owners, unless the bye-laws or a specific General Body resolution direct otherwise. A Managing Committee that diverts or distributes such income without General Body authorisation exposes itself to challenge on the same basis discussed earlier: it lacks unilateral authority over common property income.
Taxation turns on the principle of mutuality, and telecom rent falls outside it. Indian tax law exempts a cooperative housing society from tax on surplus arising from transactions among its own members, the rationale, affirmed by the Supreme Court in ITO v. Venkatesh Premises Co-operative Housing Society Ltd., (2018) 3 SCC 745, being that a person cannot make a profit from themselves, so contributions like maintenance charges are not “income” at all. This mutuality principle protects member-to-member transactions such as maintenance charges, transfer fees, and interest on defaulted dues. It does not extend to money received from an outsider and a telecom operator, being a non-member third party, breaks mutuality entirely. Rent received from a telecom company for rooftop/terrace installation is therefore fully taxable in the society’s hands, typically under “Income from House Property” (with the standard 30% deduction under Section 24(a) of the Income Tax Act, and a further deduction for interest on borrowed capital if the building was financed through a loan), with the telecom company generally required to deduct TDS at the applicable rate before payment. Societies need to file this correctly — treating tower rent as tax-exempt “society income” on the mistaken assumption that mutuality covers all internal receipts is a common and avoidable compliance error.
A practical consequence follows for how the lease should be structured. Since the income is taxable regardless of how it is later distributed internally, and since only the societycan validly grant the lease, societies are best served by: (a) passing a clear General Body resolution authorising the specific lease terms before signing, (b) routing rent through the society’s official bank account rather than informal committee-level collection, and (c) maintaining the RoW Rules, 2024 consent documentation and DoT self-certification records referenced earlier, both of which now form part of the compliance trail a society may need to produce if the arrangement is ever challenged by a dissenting member or scrutinised by tax authorities.
CONCLUSION
The apparent tension between statutory obligation, radiation concern, and revenue interest in leasing a housing society’s terrace for telecom equipment resolves considerably once the underlying property-law question is answered first: the terrace is common property, and only the society acting through a General Body resolution has the authority to consent to its use, receive rent from it, and decide how that income is applied. Read this way, the Telecommunications (Right of Way) Rules, 2024 do not override a society’s internal governance; they layer an external consent requirement on top of it, while leaving the question of who within the society may grant that consent to be answered by the applicable state cooperative or apartment ownership law and the society’s own bye-laws. Radiation objections, similarly, are not baseless as a matter of resident concern, but they carry limited independent legal weight where DoT’s compliance framework set at a stricter standard than ICNIRP’s has been met; courts have instead intervened chiefly where installation itself was procedurally irregular, as in the Gwalior tower case, rather than on the strength of the health claim alone. On revenue, Indian tax law treats such income as a clean break from the mutuality principle that shields a society’s internal transactions, making the rent fully taxable and requiring it to be properly accounted for as the society’s income rather than informally divided among members. The practical upshot for a housing society considering such a lease is less a legal loophole than a compliance checklist: secure a valid General Body resolution, verify the operator’s EMF certification, ensure municipal and structural approvals are on record, and treat the rental income transparently as a taxable receipt of the society. Where gaps remain — most notably, the absence of a uniform, judicially settled position on how far a society’s discretion to refuse installation may be constrained by telecom policy objectives, and the lack of India-specific empirical data on actual rooftop-level EMF exposure as distinct from ground-level regulatory measurement — these are the areas meriting further regulatory and scholarly attention.
BIBLIOGRAPHY
Telecommunications Act 2023
Telecommunications (Right of Way) Rules 2024
Nahalchand Laloochand Pvt Ltd v Panchali Co-operative Housing Society Ltd (2010) 9 SCC 536
ITO v Venkatesh Premises Co-operative Housing Society Ltd (2018) 3 SCC 745
Pearl Green Acres Owners v Union of India (Ministry of Telecom) Delhi High Court, 27 November 2012
Harish Chand Tiwari v Union of India, Supreme Court of India, interim order dated 30 March 2017
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FAQs
Do all residents need to consent before a telecom tower is installed on the terrace?
Not individually. Since the terrace is common property, the relevant consent is that of the society itself, given through a General Body resolution — not the unanimous agreement of every resident, and not the Managing Committee acting alone. The Telecommunications (Right of Way) Rules, 2024 require the facility provider to separately obtain this consent in writing from the property’s owner/management before installation.
Can a housing society refuse to allow a telecom tower?
Yes. The RoW Rules, 2024 make owner/society consent a precondition for installation on private property (unlike public property, where facility providers have a stronger right of way). A society is not statutorily obligated to permit installation, and can decline through a General Body resolution.
Are radiation-based health objections legally valid in India?
Indian courts have generally deferred to DoT’s EMF framework, which sets exposure limits at one-tenth of ICNIRP’s international standard, and have rejected health claims where a tower is compliant. However, courts have intervened in specific cases involving non-compliant or illegally installed towers, so procedural compliance matters as much as the underlying radiation debate.
Who receives the rent, and is it taxable?
The society, not any individual member, is entitled to the rent, since the terrace is common property. This income breaks the principle of mutuality (because the telecom operator is a non-member) and is fully taxable in the society’s hands, typically under “Income from House Property,” with the telecom company deducting TDS before payment.
What should a society do before agreeing to install a tower?
Pass a General Body resolution authorising the specific lease terms, verify the operator’s DoT self-certification and TERM Cell compliance (checkable via the Tarang Sanchar portal), confirm municipal/structural safety permissions are in place, and route the rent through the society’s official account rather than informal collection.
