Dismissed

Spoorthi School of Dance v. v Ramalinga Reddy

Karnataka HC25 Jun 2024WA/1212/2019

Case brief

AI extract

What is this about?

A writ appeal challenged the Single Judge's direction to stop a dance school operating in a residential zone with noise levels exceeding permissible limits. The Division Bench held fee-charging made it a commercial activity barred by zoning regulations, and added noise worsened existing pollution. Appeal dismissed.

What did the court decide?

Appeal dismissed with no costs; Single Judge's order permitting enforcement action against the dance school stands.

Spoorthi School of Dance Vs v Ramalinga Reddy — Environment and Pollution | Karnataka HC (2024)

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NC: 2024:KHC:23731-DB WA No. 1212 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF JUNE, 2024

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PRESENT

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THE HON'BLE MR JUSTICE V KAMESWAR RAO

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AND

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THE HON'BLE MR JUSTICE C M JOSHI

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WRIT APPEAL NO. 1212 OF 2019 (LB-BMP)

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BETWEEN:

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SPOORTHI SCHOOL OF DANCE, NO. 91/B, 2^ND FLOOR, 3^RD WEST MAIN ROAD, ITI LAYOUT, KATRIGUPPE, BANGALORE - 560 085, REPRESENTED BY ITS OWNER SMT. SUMA.

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…APPELLANT

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(BY SRI. SUBRAMANYA PRASAD., ADVOCATE)

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AND:

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Digitally signed by K G RENUKAMBA Location: High Court of Karnataka

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V. RAMALINGA REDDY, S/O. LATE VENKATA REDDY, AGED ABOUT 74 YEARS, R/A.NO.92, 3^RD WEST MAIN ROAD,

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ITI LAYOUT, KATRIGUPPE, BSK III STAGE, BENGALURU – 560 085.

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THE BRUHAT BENGALURU MAHANAGARA PALIKE, N.R.SQUARE, BANGALORE - 560 002, REPRESENTED BY ITS COMMISSIONER.

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THE ASST. REVENUE OFFICER, BBMP VIDYAPEETA,

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BSK III STAGE, BANGALORE - 560 085.

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THE MEDICAL OFFICER FOR HEALTH, BBMP BASAVANGUDI, C.T.BED MAIN ROAD, T.R.NAGAR, BANGALORE - 560 028.

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THE DEPUTY HEALTH OFFICER, SOUTH ZONE, BBMP, BANGALORE.

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THE COMMISSIONER OF POLICE, INFANTRY ROAD, BANGALORE - 560 052.

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THE SUB INSPECTOR OF POLICE, C.K. ACCHUKATTU POLICE STATION, BSK III STAGE, BANGALORE - 560 085.

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THE KARNATAKA STATE POLLUTION CONTROL BOARD, 1^ST FLOOR, NISARGA BHAVANA, 7^TH D MAIN ROAD, THIMMAIAH ROAD, SANEGURVANAHALLI, SHIVANAGAR, BANGALORE - 560 010, BY ITS REGIONAL ENVIRONMENT OFFICER.

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…RESPONDENTS

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(BY SRI. VARADARAJAN M.S., ADVOCATE FOR CAVEATOR/RESPONDENT NO.1 (CP NO.203/2019) SRI.B.V.MURALIDHAR., ADVOCATE FOR R2 to R5, SRI.DEVARAJ.C.H., GOVT. ADV FOR R6 & R7, SRI.GURURAJ JOSHI, ADVOCATE FOR R8 )

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THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT 1961 PRAYING TO SET ASIDE THE ORDER DATED 08/02/2019 PASSED IN WP NO.34055/2016 [LB-BMP], PASSED BY THE LEARNED SINGLE JUDGE, AND CONSEQUENTLY DISMISS THE WRIT PETITION AND ETC.,

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THIS APPEAL COMING ON FOR HEARING THIS DAY, V KAMESWAR RAO J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The challenge in this petition by the appellant is to the order dated 08.02.2019 passed by the learned Single Judge in Writ Petition No.34055/2016(LB-BMP) whereby the learned Judge has allowed the petition filed by Respondent No.1 herein by stating in Paragraph No.21 as under:

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“21. Taking note of the fact that the respondent No.8 continues to run the dance school, in the interest of justice, it would be appropriate to provide time of one month to enable respondent No.8 to voluntarily stop running dance school and to make alternative arrangements. On the expiry of period of one month, respondent Nos. 1 to 4 to take action as permissible in accordance with law as regards violation as pointed out. In so far as respondent No.7 is concerned, if found necessary that there is continuing actionable wrong and if

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NC: 2024:KHC:23731-DB WA No. 1212 of 2019

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complaint is made, respondent No.7 to consider the same and take forward the complaint in accordance with law.

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Accordingly, petition is disposed of in light of the observations made above.

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In view of disposal of the petition, I.A.No.1/2018 stands disposed of.”

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The writ petition was filed by Respondent No.1-Sri.

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V. Ramalinga Reddy herein seeking a direction against Respondents No. 2 to 7 herein to take appropriate steps to

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shift the appellant dance School run by its owner (‘appellant’ in short). It was his case before the learned Single Judge that, he is a Senior Citizen and has retired as a Professor of Head of Department of Mathematics. The appellant dance School is holding dance Classes in Batches for 25 to 30 students. The Musical Instruments are used and the sound that emanates is beyond the prescribed decibel level. It was also his case that the property used for running the dance Classes is in a residential locality and as such the activity is impermissible.

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During the proceedings, before the learned Single Judge, it appears a report was filed by Respondent No.8, the Karnataka State Pollution Control Board ( for short, ‘KSPCB’) wherein it was stated that the noise level measured exceeded the limits prescribed for residential area. As the said report was disputed by the appellant herein, the learned Single Judge directed Respondent No.8-KSPCB herein to visit the spot in the presence of the appellant and others and to measure the noise level. It appears pursuant to inspection, another report was submitted.

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The case of the appellant was, dance Classes are being conducted not for profit purpose and as such cannot be termed as commercial activity. It was stated that the decibel levels are already beyond the permissible limit and as such, holding of dance Classes is not the reason for the decibel limits to be beyond the permissible limits and as such, the Court shall not exercise power of judicial review.

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The case of Respondents No.2 to 5 before the

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learned Single Judge was that the property in question of the appellant is located in a residential main zone. As per the Notification Dated 20.03.2015, which contains amendments carried-out and the zoning regulations, provides that no commercial activity of any nature shall be allowed in residential main and residential mixed zones in Ring-1, Ring-2 and Ring-3, if width of the road is less than 40 feet. It was stated that the width of the road where the property of the appellant herein is situated is 30 feet. It was also clarified that, as per the Notification Dated 20.03.2015, the permissible use in residential category does not include the activity of running a dance Class. The learned Single Judge has in Paragraph-17 of the impugned order, re-produced the extract of the report dated 23.07.2018 in the following manner.

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“ 17. Subsequent to placing of said Status Report, this Court, pursuant to the order of this Court for conducting other inspection and furnishing a report in the presence of all persons including respondent No.8 by order dated 09.07.2018 has ordered for a fresh

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inspection to be conducted and another Status Report came to be submitted on 23.07.2018. The said report filed by the learned counsel for respondent No.7 contains the inspection report at page Nos.3 to 5 and the relevant extract would also indicate that the noise level measured are exceeding the limit prescribed for residential area. The relevant extract of the said report is reproduced herein.

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" A. Back Ground Noise levels: When dance class was

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not conducted (From 5.55 PM to 6.40 PM).

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*Place*	*Minimum*	*Maximum*
1. At Living area	41.6 dB(A)	60.1dB(A)
2. At dining Hall	37.5 dB(A)	63.8 dB(A)
3. At Kitchen	37.2 dB(A)	63.5 dB(A)
4. at 1st Floor	37.8 dB(A)	66.5 dB(A)

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B. Noise Level measured when the dance class was conducted (from 6:45 PM to 7:10 PM)

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*Place*	*Minimum*	*Maximum*
At Living area	41.6 dB(A)	69.5 dB(A)
At dining Hall	41.6 dB(A)	73.7 dB(A)
The following	Points were observ	ed at the time of
inspection and	noise measurement.

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1. The dance class was not conducted in full fledged manner.

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2. There were only 16 students in the age group of 1012 years.

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3. No musical aids like Tabala, Tala were not used.

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Opinion:-

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The dance school authorities not conducted dance classes in full fledged manner. Only 16 students in the age group of 10-12 were participated in the dance training class. Further, no musical aids like tabala, Tala were not used. However, the noise levels measured are exceeding the limit prescribed for residential area."

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The learned Judge while allowing the petition

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has also in Paragraph Nos. 18, 19 and 20, stated as

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under: -

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“18. The learned counsel for respondent No.8 vehemently opposes the petition by contending that the noise levels recorded even when the dance classes were not conducted, revealed that the noise level was beyond the permissible limit, hence, it is contended that once the permissible noise level was beyond the limit prescribed even in the absence of the said activity, the petitioner could not contend that he is affected by activity which merely adds to the high levels of noise pollution that already exists. Such a contention cannot be accepted as running of the dance class would add to the existing noise pollution and merely because existing noise levels are beyond the permissible limits, there is no reason to permit any activity which would result in further violation. This Court cannot permit to breach perpetuating illegality or encourage violation of any Rule or Law only on the ground that the Rule or Law even otherwise, has already been breached.

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19. The Court is also reluctant to enter into the correctness of the findings recorded by Competent Experts and that no grounds being made to impute motives as regards the reports furnished, there is no reason to disagree with the findings recorded by the said Authorities.

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20. As regards the other contention of the learned counsel for respondent No.8 that equitable considerations ought to be taken and taking note of the nature of activity of respondent No.8, which according to the said respondent, contributes to the society's well being and promotion of cultural activity and Court ought not to intervene in this matter, the said contention requires consideration. This is not a case where equitable considerations could be taken note of so as to permit clear breach of existing Law and Rules relating to permissibility of use of property as well as breach of permissible noise levels. The petitioner's right to a healthy environment, free of noise pollution as well as right as regards the right to enjoy a neighbourhood free from activities in violation of Zonal Regulations also requires to be upheld. Impermissibility of the activity being established in light of material and stand taken by learned counsel for respondent Nos.1 to 4, this Court cannot permit for continuation of such activity”.

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The submission of the learned counsel for the

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appellant is that, Respondent No.1, who has alleged noise pollution and violation of Zonal Regulation by the appellant

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is without providing any substantial proof for the same. The learned Single Judge has entirely believed the version of the Respondent No.1 and allowed the petition, which is untenable. According to him, the first reason for the learned Judge to allow the writ petition that the activity undertaken by the appellant, running a dance school is a commercial activity without prior approval, is a perverse finding, as the appellant has not violated any Zonal Regulations. Moreover, the road width is 30 feet and as such there is no hindrance for the vehicular movement. According to him even the ground of noise pollution being beyond the permissible decibel limits, as noted by the learned Judge in Paragraph No.17 of the impugned order, it can be easily ascertained that the maximum noise level at the property is already beyond the normal decibel limits, even when the activity is not conducted and as such, to direct the appellant to shift the activity by making alternative arrangements is totally untenable. He states that, vide impugned order, the learned Single Judge has put a blanket ban on the activity

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of the appellant though the appellant had contended that, there exists many other activities in that area which are in violation of Regulations and the Authorities instead of proceeding against them, has singled out the appellant. He states that in the given facts of this case, the appellant must be allowed to continue the activity.

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On the other hand, learned counsel for Respondent No.1 would reiterate the stand taken by Respondent No.1 in the writ petition and as noted by the learned Single Judge. Even the counsel appearing for Respondents No.2 to 5 and also Respondent No.8 would support the impugned order passed by the learned Single Judge to say that, there is no illegality in the same.

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Having noted the submissions made by the learned counsel for the parties and perused the record, we are not impressed by the submissions made by the learned counsel for the appellant. This is for the reason that the appellant is running a Dance School, which is

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being operated from the property in question under a trade name “Spoorthi School of Dance” which itself indicate commercial activity. The photographs depict batch of many students are being taught the dance.

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The Learned counsel for the appellant did concede the fact that, fee is being charged for imparting dance activity. In that sense also there is an element of commercial activity undertaken in the property in question. If that be so, the stand of Respondents No. 2 to 5 that commercial activity is impermissible in residential area, is justified. In fact it is also stated that on a road of 30 feet, no ancillary commercial activity can be undertaken.

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In so far as the submission that the decibel

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levels are already higher than the permissible limits and the sound generated by the dance Classes is inconsequential and as such the appellant cannot be restrained from holding such classes is concerned, we are

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not impressed by this plea as well for the simple reason that when the decibel limits are already high, any activity which enhances those decibel limits, surely would create more inconvenience to the persons residing nearby like Respondent No.1 herein. In any case that cannot be a reason to justify the activity undertaken by the appellant.

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There is no submission made by the learned counsel for the appellant that, in law also, the learned Single Judge could not have restrained the appellant from running the dance School.

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In so far as reliance placed by the learned counsel for the appellant, before the learned Single Judge, on the judgment of the Supreme Court in the case of R.K.

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MITTAL AND OTHERS VS. STATE OF UP AND OTHERS [(2012) 2 SCC 232] is concerned, as noted by the learned Single Judge, the facts of the case were in respect of usage of property for clinic or office run by a Doctor or a Lawyer or an Architect. According to him, the Supreme Court has considered the Regulations of the Authority in

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that particular case, which cannot be extended to the facts of this case, more so in the light of the Notification Dated 20.03.2015. Such a conclusion in justified, as every case has to be seen/decided on facts which arises for consideration in that case.

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We may at this stage refer the Judgment of the Madhya Pradesh High Court in the case of DHANNALAL AND ANOTHER VS. THAKUR CHITTARSINGH MEHTAPSINGH (AIR 1959 IN MP 240) wherein the court has summarized the following principles in regard to noise nuisance:

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“The principle deducible from the cases discussed and referred to above may be summarised thus,-

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(1) Constant noise, if abnormal or unusual, can be an actionable nuisance, if it interferes with one's 'physical comforts.

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(2) The test of a nuisance causing personal discomfort is the actual local standard of comfort, and not and an ideal or absolute standard.

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(3) Generally, unusual or abnormal noise on defendant's premises which disturbs sleep of the occupants of the plaintiff's house during night, or which is so loud during day time that due to it one cannot hear ordinary conversation in the plaintiff's

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house or which cannot allow the occupants of the plaintiffs house to carry on their ordinary work is deemed to be a noise which interferes with one's physical comforts.

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(4) Even in a noisy locality, if there is substantial addition to the noise by introduction to of some machine, instrument, or performances at defendant's premises, which materially affects the physical comforts, of the occupants of the plaintiff's house then also the noise will amount to actionable nuisance.

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(5) If the noise amounts to an actionable nuisance, the defence that the defendant is making a reasonable use of his own property will be ineffectual. No use of one's property is reasonable if it causes substantial discomfort to other persons.

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(6) If the defendant is found to be carrying on his business so as to cause a nuisance to his neighbours, he is not acting reasonably as regards them, and may be restrained by injunction, although he may be conducting his business in a proper manner or and according to rules framed in this behalf either by the Municipality or by the Government. The Latter defence can be effective in a case of public nuisance, but not in that of a private nuisance.

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(7) If an operation on the defendant's premises cannot by any care and skill be prevented from causing a private nuisance to the neighbours, it cannot be undertaken at a all, except with the consent of those injured by it.

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(8) The right to commit a private nuisance can, in certain circumstances. be acquired either by prescription or by the authority of a Statute".

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In the case in hand the above Principles are equally applicable in as much as the activity undertaken by the

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appellant is also in violation of the rules/Regulations framed by the corporation.

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That apart, the Supreme Court in its opinion in the case of NOISE POLLUTION (V), IN RE and connected petition [2005(5) SCC 733] has which considering the issues relates to noise Pollution vis-a-vis right to life enshrined under Article 21 of the Constitution has in Paragraphs 10 and 102 has stated as under:-

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“10. Article 21 of the Constitution guarantees life and personal liberty to all persons. It is well settled by repeated pronouncements of this Court as also the High Courts that the right to life enshrined in Article 21 is not of mere survival or existence. It guarantees a right of persons to life with human dignity. Therein are included, all the aspects of life which go to make a person's life meaningful, complete and worth living. Human life has its charm and there is no reason why life should not be enjoyed along with all permissible pleasures. Anyone who wishes to live in peace, comfort and quiet within his house has a right to prevent noise as pollutant

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reaching him. None can claim a right to create noise even in his own premises which would travel beyond his precincts and cause nuisance to neighbours or others. Any noise which has the effect of materially interfering with the ordinary comforts of life judged by the standard of a reasonable man is nuisance. How and when a nuisance created by noise becomes actionable has to be answered by reference to its degree and the surrounding circumstances, the place and the time.

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xxx xxx xxx xxx xxx xxx

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102. Quietness and freedom from noise are indispensable to the full and free enjoyment of a dwelling-house. No proprietor has an absolute right to create noises upon his own land, because any right which the law gives is qualified by the condition that it must not be exercised to the nuisance of his neighbours or of the public. Noise will create an actionable nuisance only if it materially interferes with the ordinary comfort of life, judged by ordinary, plain and simple notions, and having regard to the locality; the question being one of degree in each case”.

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It follows, in the facts of this case, the respondent No.1 has an actionable claim against the appellant, which has been rightly accepted by the Learned Single Judge in the impugned order.

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There is no merit in the appeal. The appeal is dismissed . No costs.

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In view of dismissal of this appeal, IA No.2/2019 for Stay do not survive for consideration and it stands dismissed.

Sd/JUDGE

Sd/JUDGE

KGR

List No.: 1 Sl No.: 29

Spoorthi School of Dance v. v Ramalinga Reddy

Case brief

What is this about?

What did the court decide?

Spoorthi School of Dance v. v Ramalinga Reddy

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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