Bombay High Court: In the present case, the petitioner challenged Resolution No. 3 dated 8-8-2024 (‘impugned resolution’) passed by the Gramsabha, Grampanchayat of Tanang, Kolhapur, whereby NOC granted to the petitioner for installing the mobile tower on the land owned by Petitioner 2 was cancelled. The Division Bench of G.S. Kulkarni and Advait M. Sethna*, JJ., stated that the justification for passing the impugned resolution was that some complaints were filed on the ground that mobile tower would cause health hazard/risk to the villagers, due to the radiation therefrom and Respondent 1 took such complaints on face value, without any materials to support their decision that the complaint would in any manner be justified. The Court thus quashed and set aside the impugned resolution passed by Respondent 1 and Respondent 1 was directed not to obstruct the installation of the mobile tower.
Background
Petitioner 2 owned land at village Tanang and had agreed to install Petitioner 1’s mobile tower on the said land. Petitioner 1 was the registered infrastructure provider for the mobile network having registration granted by the Department of Telecommunication and had a license under Section 4 of the Telegraph Act, 1885. Petitioner 1 after due technical study/survey/report from all aspects including radio frequency, identified the location to improve the network connectivity and after negotiations entered into an agreement with Petitioner 2 for installation of mobile tower on the said land.
The petitioners, before starting installation work, duly applied to the Gram Panchayat, Tanang on 28-8-2023 for issuance of NOC for installation of the mobile tower and electricity connection. Petitioner 2, by an application dated 4-11-2023, also applied to the Gram Panchayat for NOC from the adjoining villagers of the said village wherein the villagers signing the NOC, expressed their desire for the requirement of installation of mobile tower in the area, due to the issue of poor mobile network connectivity.
On 20-11-2023, Gramsabha of the said village passed the resolution to grant its NOC for installation of the mobile tower on the land/property of Petitioner 2. In pursuance of such resolution, on 4-12-2023, Respondents 2 and 3, Sarpanch and Gram Panchayat, respectively, issued NOC to the petitioners and after receipt of NOC, the petitioner started the civil work to lay the foundation for installation of the mobile tower after incurring costs and expenses for construction and infrastructure. The petitioner stated that presently about 90% of work had attained completion and the mobile tower was almost ready for operation.
After completion of the foundation/civil work for the installation of the mobile tower, some residents of the Gram Panchayat raised objections to the construction of mobile tower mainly on health grounds, that the radio waves emitted from the mobile tower would be a health hazard. Thus, a complaint dated 19-12-2023 was filed with the Block Development Officer (‘BDO’) and thereafter, Respondents 2 and 3 issued a notice dated 22-12-2023 to the petitioners to stop work until the issues were sorted out. The petitioner stated that the said order was illegal and Respondents 2 and 3 had no authority to stop installation of the mobile tower. The BDO, by an order dated 22-5-2024, directed that Respondent 1 ought to give permission for the installation of mobile tower.
Later, one resident of the said village along with eleven others made a complaint to the Gram Panchayat against the mobile tower on an apprehension, regarding the radiation being emitted from mobile tower, being dangerous to the health of the locals. Petitioner 2 thus, was again directed to stop the work and on 8-8-2024, Respondent 1 passed the impugned resolution cancelling NOC granted to the petitioners.
Analysis, Law, and Decision
The Court opined that the impugned resolution of Respondent 1 was passed without any notice and hearing to the petitioner and as the civil rights of the petitioners were being prejudicially affected by such resolution, they should have been granted an opportunity to be heard. The Court agreed with the contention of the counsel for the petitioners that the impugned resolution was arbitrary, in breach of the well settled principles of audi alteram partem.
The Court observed that a NOC was granted to the petitioners for installation of mobile tower, by a resolution of the village’s Gramsabha and such valid NOC, allowed the petitioner to carry on with the mobile tower’s construction, which could not have been revoked except in accordance with the law. The Court stated that the justification for passing the impugned resolution was that some complaints were filed on the ground that mobile tower would cause health hazard/risk to the villagers, due to the radiation therefrom and Respondent 1 took such complaints on face value, without any materials to support their decision that the complaint would in any manner be justified. Thus, the impugned resolution suffered from the vice of non-application of mind and lacked the rationale to support such action.
The Court agreed with the contention that the impugned resolution would run contrary to the Government Resolution dated 11-12-2015 as its Clause 4 indicated that once the Gram Panchayat granted NOC, it could not be revoked/cancelled in any circumstances. The Court stated that there were no such exceptional circumstances like natural disaster or public emergency which would compel the respondent to cancel NOC dated 4-12-2023 already granted to the petitioners.
The Court opined that the Telegraph Right of Way Rules, 2016, read with the Telecommunication Act, 2003 aimed at promoting and facilitating the development of infrastructure including mobile towers, across the country especially in contemporary modern times. Thus, the impugned resolution could not have been passed only based on an unsubstantiated complaint which was contrary to the statutory framework.
The Court relied on Raj Kishore Jha v. State of Bihar, (2003) 11 SCC 519, wherein the Supreme Court opined that “reason was the heartbeat of every conclusion”. Thus, this Court stated that it was the duty and obligation of a reasonable body of persons to support its conclusion with lawful reasons, which is a sine qua non. The Court opined that before adverting to such drastic action of cancelling the petitioner’s NOC, the prudent norm of an independent scrutiny of such complaints was legally mandated.
The Court opined that in the modern age the inescapable reality was that mobile phones were no longer a luxury but an inevitable necessity, be it in the urban areas or in the remotest part of the country. To facilitate seamless communication throughout the country and to ensure that citizens of the remote areas were not deprived of revolution in technology which manifest itself in the form of mobile phones, mobile towers could not be summarily dispensed with on misplaced information.
The Court thus allowed the petition and quashed and set aside the impugned resolution passed by Respondent 1, whereby the NOC granted to the petitioner was cancelled and the installation work of mobile tower was stopped. Further, Respondent 1, their employees, their agent, or any other person claiming through Respondent 1 was directed not to obstruct the installation of the mobile tower of the petitioner and to allow the petitioner to operate the mobile tower without any obstruction and hindrance by Respondent 1 or by residents of the village or any other person claiming through the Gram Panchayat.
[Indus Tower Ltd. v. Gram Panchayat, Tanang, Writ Petition No. 15903 of 2024, decided on 6-6-2025]
*Judgment authored by: Justice Advait M. Sethna
Advocates who appeared in this case :
For the Petitioners: Anil Anturkar, Senior Advocate a/w Sugandh Deshmukh, for the Petitioners.
For the Respondents: Tejas Dande (VC) Sarvesh Deshpande, Pratik Sabrad, for Respondents 1 to 3.
