Institution Seeking To Deny Installation Of Mobile Tower On Account Of Radiation Must Establish Soundness Of Such Ground: Bombay HC

Finding that the respondent has passed the impugned resolution merely based on the apprehension that radiation emitted by a mobile tower has harmful and carcinogenic effects, and is not based upon any scientific material, the Bombay High Court quashed the resolution and directed the respondents not to obstruct installation of the mobile tower.

The High Court held so while considering a question as to whether the respondent (Grampanchayat) could have passed a resolution directing the petitioner to stop the further work relating to the erection of the mobile tower, on the ground that some of the villagers have taken objection for the erection of the mobile tower because they believe that the radiation emitted by the mobile tower is harmful to the health of the villagers and can be carcinogenic.

A Division Bench of Justice Sunil B. Shukre and Justice Rajesh S. Patil observed that “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 its shoulders, added the Bench.

Senior Advocate A.V. Anturkar appeared for the Petitioner, whereas no one appeared for the Respondent.

After considering the submission, the Bench noted that the role of the Grampanchayat in the matter of the erection of a mobile tower in the vicinity of the Grampanchayat is confined to only issuing of No Objection Certificate in terms of the Government Resolution dated 11th December 2015.

Therefore, the Bench observed that if any NOC has been issued by the Grampanchayat, as required under the G.R. dated 11th December 2015, the Grampanchayat loses its control over the subject of the erection of the mobile tower.

“In the present case, the Grampanchayat, i.e. respondent no.1, has already issued no objection vide its certificate dated 30th June 2022 in favour of the petitioner in the matter of the erection of mobile tower in the vicinity of the Grampanchayat”, added the Bench.

Thus, the Bench stated that Grampanchayat could not have passed another resolution directing the petitioner to stop further work on the erection of the mobile tower, since there is no provision whatsoever made in the G.R. dated Dec 11, 2015, conferring any such power upon any Grampanchayat.

Accordingly, the High Court allowed the petition and directed that the respondents shall not obstruct the petitioner from operating the mobile tower so long as the occupation of the mobile tower is in accordance with the law.

Cause Title: Indus Towers v. Grampanchayat, Chikhalhol and Ors.

Click here to read/download the Judgment