Dismissed

Durgesh Warty v. Chief Secretary and 9 Ors.

Bombay HC16 Dec 2016WP/1197/2016

Case brief

AI extract

What is this about?

The Court disposed of a writ petition concerning noise pollution during a State function at Shivaji Park. Relying on precedent, the Bench enforced existing silent zone rules, directing the Pollution Control Board to examine recorded noise levels and take appropriate action if violations are found, without issuing a new specific writ.

What did the court decide?

Directing the Pollution Control Board to examine noise recordings and take action if violations are found; petition otherwise disposed of.

Durgesh Warty Vs Chief Secretary and 9… — Constitutional and Fundamental Rights | Bombay HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO.1197 of 2016

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Durgesh Warty. .. Petitioner Vs Chief Secretary and Others. .. Respondents

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Ms. Jai Kanade alolng with Shri Drupad S. Patil for the Petitioner. Ms. P.H. Kantharia, Government Pleader for the Respondent Nos.1, 4, 5, 7, 8 and 9. Ms. Geeta Joglekar for the Respondent No.2.

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Ms. Sharmila Deshmukh for the Respondent No.6.

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CORAM : A.S. OKA & SMT.ANUJA PRABHUDESSAI, JJ DATED : 16TH DECEMBER 2016

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ORAL JUDGMENT : ( PER A.S. OKA, J)

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Perused the order dated 5th December 2016 which directs

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that the Petition will be taken up for final disposal at the admission stage. The learned counsel appearing for the Petitioner states that the Advocate on record for the Petitioner has served private notice to the second and tenth Respondents along with an authenticated copy of the order dated 5^th December 2016.

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We direct the Petitioner to file an affidavit of service within a period of one week from today.

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The present Petition has been filed on 29th April 2016 inviting attention of the Court to the provisions of the Noise Pollution (Regulation and Control) Rules, 2000 ( for short “the Noise Pollution Rules”). In the Petition, it is contended that while holding the function to celebrate Maharashtra Day on 1st May 2016 at Shivaji Park, Dadar, Mumbai, the State Government must ensure that a strict compliance is made with the Noise Pollution Rules. Our attention is invited to the order dated 29th April 2016 passed by the First Court which takes a note of the prayers made in the Petition and in particular the prayer made for preventing the use of the high volume sound system in the function of Maharashtra Day which was scheduled to be held on 1st May 2016 at Shivaji Park ground.

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We may note here that the learned counsel representing the sixth Respondent- the Maharashtra Pollution Control Board stated today that the noise levels have been recorded by the six Respondent during the Maharashtra day function held on 1st May 2016 and the same have been forwarded to the State Government for necessary action.

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The basic submission of the learned counsel appearing for the Petitioner is that irrespective of the object of function, all the Authorities of the State are under a legal obligation to ensure that there

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is a strict compliance with the provisions of the Noise Pollution Rules including the provisions regarding silence zones therein. Her submission is that it is the duty of the State Government to ensure that the ambient air quality standards as provided in the schedule to the Noise Pollution Rules are maintained while holding functions on Shivaji Park ground. She has placed reliance on a decision of this Court dated 10^th , 11^th , 12^th & 16^th August 2016 in PIL No.173 of 2010 ( Dr. Mahesh

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Vijay Bedekar v. State of Maharashtra and Others ) and other connected matters. She has also placed reliance on the directions issued under the said judgment and order. She has placed reliance on the judgment and order dated 2nd December 2016 passed by a Division Bench of this Court in Notice of Motion (L) No.766 of 2016 in PIL No.116 of 2009. She urged that Shivaji Park ground is a part of the silence zone within the meaning of the Noise Pollution Rules and therefore, the Rules applicable to silence Zone will apply to the said ground.

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We may make a useful reference to the order dated 2^nd December 2016 passed in Notice of Motion (L) No.766 of 2016 in PIL No.116 of 2009. An Application was made before a Division Bench of this Court by Shivaji Park Gymkhana seeking permission to use loudspeaker/public address system for its events to be held in the lawn of VLT plot between 25^th December 2016 and 31^st December 2016. After

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referring to the decision in PIL No.173 of 2010, the Division Bench categorically held in Paragraphs 3, 4 and 5 (wrongly numbered as 3) which read thus:

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“3. The learned counsel for the Applicant has submitted the written submissions and has also taken us through the judgment of the Apex Court and also of this Court. He has tried to distinguish the judgment delivered by the High Court in the case of Dr. Mahesh Vijay Bedekar vs. The State of Maharashtra & Ors. [Public Interest Litigation No.173 of 2010]. He has submitted that the relevant rules do not prohibit the use of loudspeaker during the day time. It is submitted that this Division Bench of this Court had no occasion to consider the issue as to whether permission under sub Rule (1) of Rule (5) to use loudspeaker can be granted in a silence zone in day time [between 6 a.m. And 10.00 p.m.] if the noise levels are maintained below the prescribed decibel limits as provided in the Schedule to the said Rules nor has the Division Bench of this Court either expressly or impliedly held that such permission cannot be granted. He further invited our attention to the Noise Pollution (Regulation and Control) Rules, 2000. He submitted that function of 25^th December, 2016 is being organized for the benefit of children viz. Games, quiz contest, magic show and price distribution etc. He then submitted that the function which is to be organized on 31^st December, 2016 is for the benefit of the young talented needy tennis players by collecting donations for giving them free coaching. He submitted that both the authorities have refused the permission on the ground that Shivaji Park is declared as a silent zone by this Court and lastly, on the ground that Applicant's name does not appear in the Government Resolution dated 20^th January, 2016. It issubmitted that though the application was filed by him on 18^th January, 2016, the same has not been decided by Respondent No.2. He

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submitted that the permission may be granted only for this year. He has also pointed out a permission which has been granted for using the Shivaji Park Ground/Maidan for non-sports activities like parking for vehicles on Ganesh, Gauri and Durga Visarjan, Annual Dusshera Rally, Rath Yatra, Baldin functions etc. for this year i.e. 2016. The learned counsel for the Applicant has strenuously urged that Rule 6 does not apply to the facts of the present case since it only provides for the consequences of any violations in silence zone as mentioned in clauses (i) to (iii) thereto. Rule 6 does not in any manner prohibit use of loudspeaker in silence zone. He then submitted that they do not propose to use conical loudspeaker but they will use modern equipments which do not permit the sound to be travel far beyond the source. It is submitted that Gymkhana was seeking permission for use of low watt box loudspeaker/amplifier sound system and distributed sound system which will be below the permitted decimal level.

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On the other hand, Shri Tulzapurkar, learned Senior Counsel appearing on behalf of the Original Petitioners submits that the Rule 6, in term, prohibits the use of loudspeaker in the silence zone and that is the legislative intent. It is submitted that for last year the Applicant had taken permission by requesting the Court that it is going to use only for that particular year. He also invited our attention to the recent judgment of the Division Bench in the case of Dr. Mahesh Vijay Bedekar vs. The State of Maharashtra and Ors., in which various provisions of the Act and Rules have been considered and the direction have been given in paragraph 93. He submitted that though in some cases loudspeakers would be used upto the midnight, in paragraph 93, it is specifically clear that the said exception would not apply to the silence zone. This Court has already held that Shivaji Park area is a silence zone since there is a school, hospital within less than 100 meters.

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After having heard all the parties at length, we are of the view that taking into consideration the ratio of the judgment in the case of Dr. Mahesh Vijay Bedekar (Supra), now it is well settled law that no loudspeaker can be used in a silence zone. We must also note that Shivaji Park Ground is one of the few public places which are open for people residing in around Dadar. This ground is being used as right to use and the said ground cannot be claimed by any organization, political party for holding their functions. Shivaji Park Ground is used as open space for the residents of Mumbai. There are several clubs on the periphery of the Shivaji Park and partically all these clubs have their own programmes, which took place through out the year. In all these functions, there is a gross violation of the Rules and Regulations which operate under the Act. ”

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(emphasis added)

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The learned Government Pleader submitted that all prayers

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in the Petition were in relation to the Maharashtra Day function which was scheduled to be held on 1st May 2016 and, therefore, with the passage of time, the prayers made in the Petition will not survive.

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We have considered the submissions. It is true that the prayer clauses (A) to (C) specifically relate to the function which was scheduled to be held on 1st May 2016. However, the prayer clause (D) of the Petition relates to initiation of action which reads thus:

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“(D) This Hon'ble Court be pleased to issue a Writ of Mandamus or any other Writ in the nature of Writ of Mandamus thereby directing the Respondent Nos.3, 4, 6 and 8 to initiate action, as contemplated under

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Section 15 of Environment Protection Act, 1986, against the Respondent Nos.1 and 7.”

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Moreover, the case of the Petitioner is that Shivaji Park ground forms a part of silence zone within the meaning of the Noise Pollution Rules. The ground taken in the Petition is that for holding the function of the Maharashtra Day scheduled on 1st May 2016, permission under Clause (c) of Rule 2 of the Noise Pollution Rules was not granted.

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In our view, as far as the prayer Clause (D) is concerned, the Petition will be governed by the directions issued by this Court in the judgment and order passed in PIL No.173 of 2010 and other connected matters.

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We may make a useful reference to the relevant portion of the said decision in PIL No.173 of 2010 as well as the directions issued in the said decision. On the basis of the findings recorded in Paragraph 55 onwards, this Court issued detailed directions as regards implementation of the Noise Pollution Rules in silence zones. The said directions are in Clauses (xii), (xiii) and (xiv) of Paragraph 93 of the said judgment. The said Clauses read thus:

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“(xii) In view of Sub-Rule (5) of Rule 3, silence zone comprises of an area within the distance of 100 meters around hospitals, educational

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institutions, and Courts. As educational institutions, hospitals and courts have been defined in Rule 2, for applicability of Sub-Rule (5) of Rule 3, it is not necessary to have a specific declaration issued in respect of the silence zone around hospitals, educational institutions and Courts. As it is clear from clause 3 of the Schedule, only in the event any other area or additional area (over and above 100 meters) is to be declared as a silence zone, a specific declaration will be necessary. On plain reading of Sub-Rule (5) of Rule 3, a silence zone means an area of 100 meters on all sides of precincts of educational institutions, hospitals, religious places and courts and not the area within the precincts of the said institutions.

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(xiii) In view of the clause (v) of Rule 6 of the Noise Pollution Rules, using loud-speaker or public address system is an offence and therefore, a permission under Sub-Rule (1) of Rule 5 to use loud-speaker or public address system in the open spaces in silence zone cannot be granted. Apart from prohibition on grant of license to use loudspeakers or public address systems in silence zones, in except in completely covered and enclosed places in silence zone, there is a complete ban on beating a drum or tom-tom or on blowing a horn, either musical or pressure, or trumpet or beats or sounds any instrument playing of any music, using any sound amplifiers, holding of mimetic musical or other performances of a nature.

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(xiv) On plain reading of clauses (i) to (v) of Rule 6, the prohibition provided therein is applicable to the open spaces in the silence zone . In view of the clause (iv) of Rule 6, there is a complete ban on blasting of sound on firecrackers in silence zone. There is a complete ban on bursting sound emitting crackers between 10.00 pm and 6.00 am.”

(emphasis added)

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Hence, in no uncertain terms, this Court has held that on a plain reading of Clauses (i) to (v) of Rule 6, the prohibition provided therein is applicable to the open spaces in the silence zone. Thus, it follows that apart from the fact that there is a complete prohibition on the grant of license to use loud-speakers or public address system in the open spaces in silence zones, except in completely covered and enclosed places in silence zone, there is a complete ban on beating a drum or tom-tom or on blowing a horn, either musical or pressure, or trumpet or beats or sounds, any instrument playing of any music, using any sound amplifiers, etc. in silence zones.

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If Shivaji Park ground or a part thereof falls in the silence zone within the meaning of Noise Pollution Rules, it follows that the prohibition imposed by the Noise Pollution Rules as interpreted by this Court in the aforesaid decision will have to be strictly implemented by the State Government and all other authorities. The Division Bench in judgment and order dated 2nd December 2016 in Notice of Motion (L) No.766 of 2016 in PIL No.116 of 2009 has accepted that the area of Shivaji Park is a silence zone.

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As regards the prayer clause (D), elaborate directions have been issued under the said judgment in PIL 173 of 2000 for taking

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action for violation of the provisions of the Noise Pollution Rules including the action of setting a criminal law in motion under Subsection (1) of Section 15 of the Environment Protection Act, 1986.

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The learned counsel appearing for the sixth Respondent Maharashtra Pollution Control Board pointed out across the bar that the noise levels recorded on 1^st May 2016 have been already submitted to the concerned Department of the State of Maharashtra. If the said recorded noise revels show that the ambient air quality standards prescribed by the Noise Pollution Rules were not maintained, appropriate measures in accordance with law as directed in the aforesaid judgment and order will have to be taken. We, accordingly, direct the Maharashtra Pollution Control Board to examine the readings taken on 1^st May 2016 in Shivaji Park area. If it is found that there is a violation of the Noise Pollution Rules, the said Board shall take appropriate action in accordance with law and the directions issued in PIL No.173 of 2010.

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In view of what is observed above and subject to the directions issued above, it is not necessary for us to issue a specific writ of mandamus or a writ of prohibition in this Petition as firstly, the prayers are worked out with the passage of time. Secondly, the directions issued in PIL No.173 of 2010 will govern the Shivaji Park

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ground. We make it clear that the State Government and all concerned Authorities are under an obligation to enforce all the provisions of the Noise Pollution Rules in relation to the silence zones. As stated earlier, all the concerned Authorities are bound to implement the directions issued in the judgment in PIL No.173 of 2010 with all force.

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Subject to the observations made above and the directions issued above, the Petition is disposed of. Rule is disposed of accordingly.

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All concerned to act upon an authenticated copy of this order. A simple copy of this order be served to the second and sixth Respondents.

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(SMT.ANUJA PRABHUDESSAI, J) ( A.S. OKA, J )

Durgesh Warty v. Chief Secretary and 9 Ors.

Case brief

What is this about?

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Durgesh Warty v. Chief Secretary and 9 Ors.

Case brief

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