Bombay High Court Quashes Panchayat Resolution Restricting Mobile Tower Construction Over Apprehension Of 'Harmful Radiation'

A division bench of Justice Sunil B Shukre and Justice Rajesh S Patit held that the Grampanchayat lacked the authority to issue such a resolution and the apprehension about radiation has already been dismissed in the case of Biju K. Balan and Ors. Vs. State of Maharashtra and Ors (2019) which held that,

“there is no scientific material or data warranting prohibition on installation of mobile tower and that jurisdiction under Article 226 of the Constitution of India cannot be exercised on the basis of apprehensions, which are not rooted in facts and which are not supported by reliable scientific material.

Court also observed 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 petitioner, Indus Towers Ltd., represented by Senior Advocate AV Anturkar, had approached the court seeking relief against Resolution No.7 passed by the Grampanchayat, directing it to halt further work on the mobile tower.

The respondents (Grampanchayat and others) had been served with notice on multiple occasions but failed to appear before the court. The court emphasized that sufficient opportunities had been granted to them to present their submissions.

The question before the court was whether the Grampanchayat had the authority to issue a resolution halting the construction of a mobile tower based on objections from some villagers about the potential health risks associated with the tower's radiation.

The court observed that the role of the Grampanchayat, as per the Government Resolution dated December 11, 2015, was limited to issuing a No Objection Certificate (NOC) for the erection of the mobile tower. Since the Grampanchayat had already issued an NOC in favour of the petitioner, it could not pass another resolution to halt the work, the court said.

The court further considered the villagers' objections related to health concerns about radiation emitted by the mobile tower. However, the court referred to a previous judgment in the case of Biju K Balan and Ors. v. State of Maharashtra, where a Coordinate Bench had dismissed similar apprehensions. The court emphasized that there was no scientific evidence warranting the prohibition of mobile tower installations, and no identifiable risk of serious harm due to such radiation.

“We may add here that today also, 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 judgment in January 2019 in the aforestated case of Biju K. Balan (Supra). The respondent no.1, which has passed the impugned resolution, Resolution No.7, based upon the apprehension that radiation emitted by a mobile tower has harmful and carcinogenic effect, is not based upon any scientific material”, the court held.

Considering the absence of relevant scientific material supporting the villagers' fears, the court held that the Grampanchayat failed to discharge its special burden of proof to establish the soundness of its ground for halting the tower's erection.

“It is well settled law that any agency or institution or person which seeks to deny a benefit or right to another on a special ground like the ground of mobile tower radiation being harmful to the health of the citizens, such agency or institution or person has a special burden of proof to establish the soundness of such a ground. But, in the present case, the respondent-Grampanchayat has failed to discharge the special burden of proof which was on it’s shoulders”, the court said.

Thus, the court quashed Resolution No.7 passed by the Grampanchayat, and directed the respondents not to obstruct the petitioner from installing the mobile tower as long as its operation adheres to the law.

Case no. – Writ Petition No.15779 of 2022

Case Title – Indus Towers Ltd., Pune (Formerly, Bharti Infratel Ltd., Pune) ] v. Grampanchayat, Chikhalhol, Tal. Khanapur, Dist. Sangli and Ors.