Bombay High Court
Wecom Trust And 2 Anr vs Union Of India And 5 Ors. And Vishwa ... on 8 February, 2019
Author: Naresh H. Patil
Bench: Naresh H. Patil
l NMW 52-19 in. PIL 116-2009.edited.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 52 OF 2019 in PUBLIC INTEREST LITIGATION NO. 116 OF 2009. Vishwa Mallakhamb Federation and another .. Applicants In the matter between Wecom Trust and others .. Petitioners Vs Union of India (through Ministry of Environment) and others . Respondents Mr.Rajesh Datar i/b Mr.Akshay J.Kandarkar, for Applicants in NMW No.52 of 2019. Mr.Subit Chakrabarti i/b Vidhii Partners, for Petitioners Ms.Geeta Shastri, Addl. Govt. Pleader, for Respondent- State. Mr.Parag Vyas a/w Mr.H.V.Mehta, for Respondent No.1- Union of India. 2 NMW 52-19 in PIL 116-2009. edited.doc CORAM : NARESH H. PATIL, C.J. & N.M_JAMDAR, J.
Date: 8 February 2019.
P.C.:
This Notice of Motion is taken out in the Public Interest Litigation No.116 of 2009. The PIL raises concerns about the noise pollution at Shivaji Park, Dadar, Mumbai.
2. The residents of Shivaji Park locality have filed the Public Interest Litigation No.116 of 2009. They have protested against unauthorised use of the park and the indiscriminate use of loudspeakers. This Court took cognizance and has passed a series of orders laying down various restrictions and parameters. The Court has noted the presence of various schools, hospitals, temples around the Shivaji Park. The Court also considered Noise Pollution (Regulation and Control) Rules, 2000. The Court observed that the Shivaji Park needs to be treated as a Silence Zone and the need to have strict regulation of loudspeakers.
3 NMW 52-19 in PIL 116-2009.edited.doc
3. The applicants had applied for the use of loudspeakers at an event stated to be the Mallakhamb World Championship 2019. On 21 January 2019, the Commissioner of Police rejected the permission, interalia, referring to the Public Interest Litigation No.116 of 2009. The applicants have challenged the order of the Commissioner of Police. The applicant seeks a direction to the respondents to permit the applicants use of loudspeaker/sound systems. We are concerned only with the public loudspeakers/sound system in this Notice of Motion.
4. Mr.Rajesh Datar, the learned counsel for the applicants submitted that the embargo placed by this Court be relaxed in the case of the applicants. Mr.Datar has drawn our attention to some of the orders passed by this court granting relaxation. Mr.Datar submitted that applicants are holding a World Mallakhamb contest where 4 NMW $2-19 in PIL 116-2009-edited:doc around 150 players are likely to take part. He submitted that it is necessary to call the names of the participants and also to play the national anthem of the countries. Mr.Datar submitted that the entire event would be conducted inside a closed tent. He further submitted that permission be granted to use only distributed sound system as has been permitted in the past by this Court.
4. Ms.Geeta Shastri, the learned Additional Government Pleader, opposed the grant of any relief. She has drawn our attention to the judgment of this Court, the order passed by the Apex Court and the notification issued by the State. Ms.Shastri submitted that if at all the event is permitted, the hand-held megaphones, portable sound systems can be used, and a public address system is not necessary.
5. 5 NMW 52-19 in PI, 116-2009-edited,doe We have perused the orders passed by tnis court placed before us by the applicants. These orders are from the year 2012 to 2015. But, later (16 December 2016) bya detailed judgment in the case of Durgesh Warty Vs. Chief Secretary' and others. , the Division Bench of this Court (Coram
- AS.Oka & SmtAnuja Prabhudesai, JJ.) has observed as under:
6. We may make a useful reference to the order dated 2° 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 loud- speaker/public address system for its events to be held in the lawn of VLT plot between 25"
December 2016 and 31° December 2016. After 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:
I _ Writ Petition No.1197 of 2016 dated 16 December 2016 6 NMW 52-19 in PLL 116-2009 edited.doc "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 ta 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 7 NMW 52-19-in PIL 116-2009: edited-doc 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° 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° 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"
January, 2016. It is submitted that
8 NMW 52-19 in PIL 114-2009 edited. doc though the application was filed by him on 18° January, 2016, the same has not been decided by Respondent No.2. He submitted that the permission may be granted only for this year. He has aiso 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 Visarian, Annual Dusshera Rally, Rath Yatra, Baldin functions etc. for this year i.e. 2016. The learned counsel for the Applicant has strenuously urged thal Rule 6 does not apply to the facts of the present case since it only provides for the consequences of ary 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 9 NMW 52-19-in PIL 116-2009. edited.doc 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.
4. 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 Boing 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 10 NMW 52-19 in PIL 116- 2009. cdlited.doc 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.
3. 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 1] NMW $2+19 in PIL 116-2009:edited.doe 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."
(emphasis added)
7. The learned Government Pleader submitted that all prayers in the Petition were in relation to the Maharashtra Day function which was scheduled to be held on Ist May 2016 and, therefore, with the passage of time, the prayers made in the Petition will not survive.
2009. edited.doc ]2 NMW 32-19 in PIL 116 8 We have considered the submissions. /{t is true that the prayer clauses (A) to (C) specitically relate to the function which was scheduled to be held on Ist May 2016. However, the prayer clause (D) of the Petition relates to initiation of action which reads thus:
"(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 Section 15 of Environment Protection Act, 1986, against the Respondent Nos.l and 7."
9. 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 Ist May 2016, permission under Clause {c) of Rule 2 of the Noise Pollution Rules was not granted.
10. In our view, as far as the prayer Clause (D) 2009. edited.doc 13 NMW 52-9 in PIL. LI6- 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.
ii. 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), (xii) and (xiv) of Paragraph 93 of the said judgment. The said Clauses read thus:
"(xii) In view of SubRule (5) of Rule 3, silence zone comprises of an area within the distance of 100 meters around hospitals, educational institutions, and Courts. As educational institutions, hospitals and courts have been defined in Rule 2, for applicabitity of Sub-Rule (Sof Rule 3, it is not necessary to
14 NMW 52-19 in PIL 116- 2009..edited.doc 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.
(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 1S NMW. 52-19 in PIL. 16- 2009.edited.doc spaces in silence zone cannot be granted. Apart from prohibition on grant of license to use floud-
speaker 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 ary instrument playing of any music, using any sound amplifiers, holding of mimetic musical or other performances of a nature.
(iv) 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 arn." (emphasis added) 2069 edited. doc 16 NMW. 52-19 in PIL. 176-
12. 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 floud-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 torn-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.
13. lf 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) 17 NMW $2.19 in PIL 116 2009. cdited.dac No./66 of 2016 in PIL No.116 of 2009 has accepted that the area of Shivaji Park is a silence zone.
q. Further, on 15 December 2016, the Apex Court in the case of Shivaji Park Gymkhana Vs Wecom Trust and others *, while granting permission to a children's event, clarified that the petitioner therein was not permitted to use loudspeakers or other public address systems. The Apex Court placed stringent conditions while granting permission to use the playground.
8. The applicants' Trust stated to have been established on 12 September 2016, under the Companies Act, having the registered address at Bharatpur, Rajasthan. In the application, it is stated that 150 players will be participating. The query as to a why loudspeaker system for 2 . Petition for Special Leave to Appeal No.36586 of 2016 18 NMW 52-19 in PIL 116- 2009 edited. doc such an event is necessary, Mr.Datar stated that it for calling the names of the players and playing national! anthem and for announcements. As rightly pointed out by Ms. Shastri this can be done by low volume hand-held megaphones inside the tent as maybe permissible. Even the national anthems can be played with a small portable sound system, or can be sung. The insistence of applicants for using a public address system contrary to the judgment of this Court and the Rules is entirely unjustified. In these circumstances, we are not inclined to accede to the prayers made in this Notice of Motion. Notice of Motion is accordingly rejected.
N.MSAMDAR, J. CHIEF JUSTICE