bombay high court

Bombay High Court: While considering the question of whether the Gram Panchayat could pass a resolution directing the petitioner to stop further work related to erection of mobile tower due to objection by some of the villagers with the belief that the radiation emitted by mobile towers is harmful for villagers’ health and may be carcinogenic, the Division Bench of Sunil B. Shukre and Rajesh S. Patil, JJ. quashed and set aside the impugned resolution and restricted the Gram Panchayat from obstructing the work of installation and operation of mobile towers.

The Court agreed with the petitioner’s counsel that the role of Gram Panchayat in the matter related to erection of mobile tower in their vicinity was confined to issuing No-Objection Certificate (‘NOC’) in terms of Government Resolution (‘GR’) dated 11-12-2015. The Court viewed that if any NOC was issued by the Gram Panchayat as per the requirements under such GR, the Gram Panchayat would lose its control over the subject of erection of mobile tower.

The Court highlighted that the Gram Panchayat had already issued NOC on 30-06-2022 in favour of the petitioner regarding erection of mobile tower in the vicinity of the Gram Panchayat. Thus, the Court held that the Gram Panchayat so concerned could not pass another resolution directing the petitioner to stop further work of mobile tower erection in the absence of any such provision under the GR dated 11-12-2015. The Court found the impugned resolution passed by the Gram Panchayat devoid of any authority in law and thus, illegal.

The Court also looked at the instant matter from another angle to examine the correctness of the ground of complaint made by the villagers based on apprehension of radiation emitted by the mobile tower being harmful to health and chances of causing cancer.

The Court referred to Biju K. Balan v. State of Maharashtra, 2019 SCC OnLine Bom 97 wherein, the apprehension of villagers in the instant matter was dealt with by the Court and while holding that there was no scientific material or data warranting prohibition of installation of mobile tower. The Court had further explained that jurisdiction under Article 226 of Constitution of India could not be exercised based on apprehensions which were not rooted in facts and not supported by reliable scientific material. The Bench had specifically noted that “there was no scientific material as of the date of rendering of the judgment, which indicated any identifiable risk of serious harm on account of such radiations.”

The Court concluded the fear expressed by the villagers being without any basis and added that “there is no change in the fact situation with regard to the absence of relevant scientific material, after the position which obtained on the date of rendering of the aforesaid judgment in January 2019.” The Court explained the settled law that any agency/institution/person denying a benefit or right to another on a special ground as happened in the instant case of radiation from mobile towers being harmful holds a special burden of proof to establish the soundness of such ground, which the Gram Panchayat failed to discharge.

The Court held that the impugned resolution dated 22-07-2022 passed by the Gram Panchayat could not be sustained in the eye of law and deserved to be quashed and set aside. The Court further directed the Gram Panchayat not to obstruct installation and operation of mobile tower so long as the occupation of the sane remained in accordance with law.

[Indus Towers Ltd., Pune v. Gram Panchayat, Chikhalhol, 2023 SCC OnLine Bom 1472, decided on 20-07-2023]

Judgment by: Justice Sunil B. Shukre

Advocates who appeared in this case :

For Petitioner: Senior Advocate A.V. Anturkar, Advocate Sugandh B. Deshmukh.

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