National Green Tribunal
Subhas Datta S/O Late Baneswar Datta vs State Of West Bengal Through Principal ... on 27 February, 2023
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 02 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, FINANCE CENTRE
KOLKATA
(By Hybrid Mode)
M.A. No. 04/2021/EZ
In
Original Application No. 158/2016/EZ
Subhas Datta Applicant
Versus
State of West Bengal &Ors. Respondent(s)
Date of hearing: 27.02.2023
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER,
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
Applicant: Mr. Subhas Datta, Applicant in person
Respondent(s): Mr. Sibojyoti Chakraborty, Advocate for State Respondents
Mr. Dipanjan Ghosh, Advocate for WBPCB
ORDER
1. The main matter raising grievance against violation of Noise Pollution (Regulation and Control) Rules, 2000 (Noise Rules) was earlier disposed of by this Tribunal vide order dated 4.9.2020 directing the West Bengal Government and State Police to ensure compliance of Rules taking into account the earlier order of this Tribunal dated 11.08.2020 in OA No. 519/2019, Hardeep Singh & Ors. vs. SDMC & Ors.
2. M.A. No. 04/2021/EZ has been filed stating that violation was continuing. High level noise is generated by traffic, loudspeakers, microphones and musical systems like DJs. Order of this Tribunal dated 1 4.9.2020 was not being followed inspite of representation of the applicant dated 2.1.2021 to the Chief Secretary, DGP and State PCB. The State PCB passed order dated 7.8.2004 requiring all users of microphones to use sound limiters at the time of using microphones in open area. Order dated 3.2.2010 was issued by the Environment Department of State PCB prohibiting fitting of loudspeakers in vehicles without permission of police and SDO/BDO of the District. The said orders were not being followed. 150 ambient noise monitoring stations have been set up in West Bengal. Hotels, nursing homes, schools, colleges should install such devices at their cost.
3. On 17.11.2021, the Tribunal sought response from the respondents, including the State, DGP and State PCB who have filed their respective responses. Stand of State PCB is that it has already issued directions on the subject on 25.1.2020. Training has been provided to police personnel. 13 cases have been lodged. 10 equipments have been seized. 13 persons have been arrested. On 4.3.2021, Commissioner of Police has been requested to ensure fitting of sound limiters on all sound systems. Ambient noise monitoring stations have been set up by CPCB which show that noise levels are exceeding the laid down standards mainly due to road traffic noise, vehicular horns, hooters and sirens by ambulances. 115 real time noise monitoring stations have been set up out of which 23 are in Kolkata. 540 sound level meters have been distributed by the State PCB. The State PCB has conducted training programs for police personnel.
4. Additional Chief Secretary, Environment Department has stated that action taken reports have been taken from the Transport Department as well as Police Department. The State PCB is keeping a strict vigil. Urban Development and Municipal Affairs Department have issued letter to urban local bodies for awareness. Noise Monitoring stations have been set up by CPCB at vulnerable locations - Kasba, Baishnabghata Patuli, New Market, 2 SSKM Hospital, Bagbazar, Birati, R.G. Kar Hospital, Tollygunge and the West Bengal Pollution Control Board Headquarter in Salt Lake. Department of Environment has directed manufacturers and traders to produce audio system fitted with sound limiting devices. On the same pattern, the DGP has filed affidavit and further stated that State PCB has distributed 800 sound level meters in different districts.
5. We have heard learned Counsel for appearing parties and considered the material on record.
6. As held in In Re: Noise Pollution - Implementation of the Laws for restricting use of loud speakers and high volume producing sound systems,1 right to live in noise pollution free environment is part of right to life. Noise is more than just nuisance. It constitutes a real and present danger to people's health. It has both auditory and non-auditory effects depending upon the intensity and the duration of the noise level. It affects sleep, hearing, communication, mental and physical health. It may even lead to madness. It can disturb our work, rest, sleep and communication and evoke other psychological and pathological reactions. Industries, automobiles, rail engines, aeroplanes, radios, loudspeakers, tape recorders and vendors are main ear contaminators. Nobody has a right to create noise by amplifying the sound of a speech. Noise is unwanted sound. Apart from Noise Rules 2000, there are provisions in IPC, Cr.PC, Factories Act and Motor Vehicles Rules for action against creating undue noise beyond laid down parameters. However, in absence of adequate awareness in the society and also in Police and Civil Administration and in absence of adequate infrastructure for enforcement and will to enforce, right to peaceful environment is violated. Hon'ble Supreme Court accordingly 1 (2005) 5 SCC 733 3 completely banned bursting of sound emitting fire crackers between 10:00 pm and 6:00 am. Further, noise level was directed to be limited to 10 dB(A) above the ambient noise standards for the area or 75 dB(A) whichever is lower. Further directions in the judgment are:
"175✱2. 1. xxx ...........................xxx.........................xxx
2. No one shall beat a drum or tom-tom or blow a trumpet or beat or sound any instrument or use any sound amplifier at night (between 10. 00 p.m. and 6.a.m.) except in public emergencies.
3. The peripheral noise level of privately owned sound system shall not exceed by more than 5 dB(A) than the ambient air quality standard specified for the area in which it is used, at the boundary of the private place.
(iii) Vehicular Noise 176✱3. No horn should be allowed to be used at night (between 10 p.m. and 6 a.m.) in residential area except in exceptional circumstances.
(iv) Awareness 177✱. There is a need for creating general awareness towards the hazardous effects of noise pollution. Suitable chapters may be added in the text-books which teach civic sense to the children and youth at the initial/early level of education. Special talks and lectures be organised in the schools to highlight the menace of noise pollution and the role of the children and younger generation in preventing it. Police and civil administration should be trained to understand the various methods to curb the problem and also the laws on the subject.
2. The State must play an active role in this process. Resident Welfare Associations, service Clubs and Societies engaged in preventing noise pollution as a part of their projects need to be encouraged and actively involved by the local administration.
3. Special public awareness campaigns in anticipation of festivals, events and ceremonial occasions whereat firecrackers are likely to be used, need to be carried out.
The abovesaid guidelines are issued in exercise of power conferred on this Court under Articles 141 and 142 of the Constitution of India. These would remain in force until modified by this Court or superseded by an appropriate legislation.
✱ Ed. : Paras 175, 176 & 177 corrected vide Official Corrigendum No. F.3/Ed.B.J./70/2005 dated 22-08-2005 ✱ Ed. : Paras 175, 176 & 177 corrected vide Official Corrigendum No. F.3/Ed.B.J./70/2005 dated 22-08-2005 4
(v) Generally
178. 1. The States shall make provision for seizure and confiscation of loudspeakers, amplifiers and such other equipment as are found to be creating noise beyond the permissible limits.
2. Rule 3 of the Noise Pollution (Regulation and Control) Rules, 2000 makes provision for specifying ambient air quality standards in respect of noise for different areas/zones, categorization of the areas for the purpose of implementation of noise standards, authorizing the authorities for enforcement and achievement of laid down standards. The Central Government/State Governments shall take steps for laying down such standards and notifying the authorities where it has not already been done."
7. On the basis of above directions, this Tribunal has considered the matter on several occasions. Particular reference may be made to orders dated 20.11.2019, 11.8.2020 and 3.2.2022 in OA No. 519/2019, Hardeep Singh (supra) which was mainly in the context of Delhi. Each time the Tribunal noted that situation was unsatisfactory and further remedial measures were required. Relevant extracts from order dated 20.11.2019 are as follows:
"15. We have reviewed the progress on the subject in light of the action taken report filed by Special Commissioner of Police (Traffic) of Delhi filed on 31.10.2019, report dated 11.11.2019 filed by the DPCC and the report dated 14.11.2019 filed by the CPCB.
16. Compliance status may be noted as follows. With regard to direction Nos. (a) and (d), there is hardly any further progress even after three months in the report of Special Commissioner of Police (Traffic) Delhi. Requisite equipments have not been procured. Monitoring stations have not been set up in terms in observation of paragraph 9 of the earlier order. Only report is that tender process is going on. Locations have been identified. Technical specification are in the process of being finalized. Further progress is that a workshop was organized on 16.04.2019 (which is prior even to the earlier order). Another workshop was scheduled for 13.11.2019. Template has been prepared.
17. Likewise, progress by the DPCC can hardly be held to be adequate. We are sorry to record that DPCC has been wholly amiss in performance of its duties. There is no satisfactory data about the action for violations though violations are rampant and widespread which is failure on the part of all the concerned statutory authorities entrusted with the enforcement of law. Dr. M.P. George representing DPCC has made a statement that the requisite equipment 5 will be procured within 60 days and monitoring stations will be set up within the said time. In view of the long and continued failures in the past, it becomes necessary to direct that if this is not done even by 31.01.2020, Member Secretary, DPCC and Dr. M.P. George will not be entitled to draw salary till the direction of this Tribunal is complied with.
18. Special Commissioner of Police, has stated in para 4 of the status report that the requisite equipments will be required by March, 2020. Accordingly, the Special Commissioner of Police and Deputy Commissioner of Police (Provisioning and Logistics) will not be entitled to draw salary, if there is non-compliance even upto 01.04.2020, till compliance.
19. With regard to (b), it is stated that Notification of Delhi Government is ready and will be issued within one week from today. We hope that the statements will be faithfully complied with, failing which appropriate coercive action may have to be taken. Let the Chief Secretary, Govt. of Delhi coordinate this matter.
20. Compliance of directions with regard to training for use of the devices, and robust protocol for action against defaulters may be ensured. As already directed vide order dated 27.09.2018, a dedicated telephone line with recording facility and a dedicated online grievance redressal portal for redressal of noise pollution related grievances be developed by Delhi Police and public awareness in this regard created. A minimum grievance redressal timeframe be fixed and monitored by a supervisory authority. Action taken report may be accordingly filed before the next date.
21. We are informed that there are 2000 Eco-clubs in schools/ colleges. Awareness programme may be coordinated in such a way that at least one programme on the subject is held once a month in all such institutions. The present level of awareness activities by Department of Environment, Govt. of NCT Delhi, is inadequate in terms of quality and quantity. It needs to be properly planned and coordinated. Yearly action plan covering different thematic areas of environmental problems needs to be clearly identified, awareness activities planned and monitored. It would be appropriate if target groups are properly identified, logistic and personnel earmarked and action taken is monitored. This may be ensured jointly by the Department of Environment, DPCC and the Special Commissioner of Police in coordination with the Education Department of Delhi and a compliance report furnished by the DPCC before the next by e-mail at [email protected].
22. Report of CPCB is that compensation for violation by using equipments should be 10%-25% of cost of such equipment. Compensation suggested as follows:-
Sr. Violation of Noise Compensation Action to be No. Rules (in Rupees) to be taken by paid by defaulter designated authority 6
1. Use of loud Rs. 10,000 Seizure speakers/public address system (clause 5(1)-5(2), 6 (i,ii,iii&iv)
2. Violation WRT Generator Sets Norms (standards attached as annexure - IV to VI)
a) DG sets more than Rs. 1,00,000/- Sealing of DG sets 1000 KVA
b) DG sets 62.5 to 1000 Rs. 25,000/-
KVA
c) DG sets upto 62.5 KVA Rs. 10,000/-
3. Violation of use of Rs. 50,000/- Seizure/Sealing of sound emitting equipment construction equipment
4. Bursting of Rs. 1000/-
Firecrackers beyond
the prescribed time
limit prescribed
(Hon'ble Supreme
Court and Clause 5A (2)
and 6 (iv)
23. We are of the view that compensation for bursting of crackers at serial No. 4 needs to be suitably revised and needs to be different for different classes of defaulters and frequencies of default. Further, the CPCB has suggested that compensation should be 2-3 times for second and third violations accompanied by withdrawal of permission for installation/operation for their equipment.
24. The CPCB may also lay down stringent compensation for tampering with the sound limiters to ensure that the same is not restored to. Let compliance reports be filed by CPCB, Department of Environment, DPCC and Special Commissioner of Police, Delhi by 31.03.2020 by email at [email protected]."
8. Relevant extracts from order dated 11.8.2020 are as follows:
"xxx .............................xxx.........................................xxx
12. While we find that certain steps have been taken by the Delhi Police, Delhi Government, DPCC and the CPCB, further steps are required to ensure that the noise pollution norms are enforced at the ground level for protection of public health and the environment in the light of orders already passed. We are of the view that the compensation scale laid down by the CPCB may be enforced throughout India. The CPCB may issue appropriate statutory orders for the purpose for being complied with in all the States/UTs.
13. We find that while some regulatory framework is said to have been made operational, there is no effective centralized mechanism for monitoring. Representatives of the Chief Secretary (SDM) and the Police Commissioner(DCP) ought to jointly take stock of the situation on weekly basis. Suitable officers of the rank 7 of the DCP in Delhi Police and SDM in Delhi Government need to be spared for undertaking the assigned responsibility, as already directed. As noticed earlier, though the DCP and the SDM were nominated, on being summoned by this Tribunal, they were found to be non-functional and thereafter, we are informed that even today they are not functional. This state of affairs must be forthwith remedied by the Police Commissioner and the Chief Secretary respectively. They may ensure that their representatives are duly and jointly functional and conduct weekly meetings and maintain the minutes of meetings and the website. They may work in tandem with all other regulatory bodies including the DPCC and the Municipal Corporations. The entire data collected on the noise monitoring equipments may be centralized and placed on their exclusive websites. They may also coordinate and follow-up the corrective measures with all other agencies and may also monitor functioning of the eco- clubs. The DPCC/other authorities may get prepared an appropriate App(like Sameer) to facilitate receiving and addressing complaints. If Delhi becomes a model of compliance for enforcement of pollution norms, it may help all other States/UTs to follow the same.
14. Having regard to the repeated failures, in the last several years, we find it necessary to constitute a monitoring committee to be headed by a former Judge of the High Court to ascertain the status of compliance in the light of the present order and suggest further measures in the context of Delhi for enforcement of noise pollution control measures. The Tribunal has earlier constituted a committee headed by Justice S.P Garg, former Judge of Delhi High Court, to monitor compliance of directions with regard to restoration of water bodies and installation of Rain Water Harvesting Systems, use of treated water and allied issues. Instead of constituting another committee, we request Justice S.P Garg to head the proposed Committee. Justice S.P Garg may be assisted by nominees of the DPCC, Delhi Police and the Chief Secretary, Delhi. The Committee may take assistance of any other experts/institution and associate such members of public/educational institutions/social organizations as may be found useful. The Committee may give its report before the next date by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF."
9. Relevant extracts from order dated 3.2.2022 are as follows:
"xxx ....................................xxx ....................................xxx
5. We grant time to the Committee to complete its work by 30.04.2022 and to file its report by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF with the Registrar General of this Tribunal. If any further direction becomes necessary, the RG may place the report before this Tribunal. A copy of the report be also simultaneously forwarded to the Chief Secretary, Delhi, Police Commissioner, Delhi and DPCC for other appropriate action.
xxx ....................................xxx ....................................xxx 8
8. We note that directions sought, as mentioned in the order of Hon'ble Supreme Court, already stand issued in O.A. No. 681/2018, In Re: News item published in "The Times of India" Authored by Shri Vishwa Mohan Titled "NCAP with multiple timelines to clean air in 102 cities to be released around August 15", applicable throughout India which are referred to in the final order of this Tribunal dated 11.08.2020 which has not been brought to the notice of the Hon'ble Supreme Court. Relevant extracts from the said order for ready reference are:
"23. Status with reference to each of the above questions was examined and following directions were issued:
I to X.......................................xx...............................xx XI. Noise Limiters need to be installed on potential noise polluting devices, including retrofitting the existing devices. Appropriate directions be issued by the States/UTs within three months in the same manner as directed by this Tribunal for Delhi vide order dated 01.08.2019 in O.A. No. 519/2016, Hardeep Singh & Ors. vs SDMC & Ors."
24to26..................xx.................................................xx
27. Separate report on the subject of control of noise pollution gives the gap analysis as follows:
"3.0 GAP ANALYSIS As per Hon'ble NGT Directions dated 15.03.2019 and 15.11.2019, action Plan submitted by States/UTs are analysed on the basis of following points:
i. Noise level monitoring in conjunction with the Police Department and take remedial action. ii. Police Departments of all the States/UTs may obtain the Noise monitoring devices within a period of three months.
iii. Police Department of all the States/UTs may also train their staff regarding the use of such devices.
iv. Police Department of all the States/UTs may develop a robust protocol for taking appropriate action against the defaulters. v. Use of Sound Limiter(s) in all sound system/public address system for effective control of Noise Pollution.
Accordingly, action plans submitted by 30 States/UTs were assessed based on its adequacy in addressing above-mentioned points. Detailed assessment of action plan is attached as Annexure-XLVI.
Following are the major observations based on the assessment:9
i. 10 States/UTs (Delhi, Tripura, Bihar, West Bengal, Karnataka, Kerala, Gujarat, Jammu and Kashmir, Sikkim, Uttar Pradesh) have addressed all the five action points as listed above in their action plans.
ii. 20 States/UTs (Andhra Pradesh, Andaman & Nicobar, Arunachal Pradesh, Assam, Chhattisgarh, Chandigarh, Goa, Daman & Diu & Dadra and Nagar Haveli, Himachal Pradesh, Lakshadweep, Madhya Pradesh, Maharashtra, Meghalaya, Manipur, Mizoram, Odisha, Pondicherry, Tamil Nadu, Telangana, Uttarakhand) have partially addressed the above-listed action points in their action plans. iii. 05 States/UTs namely Haryana, Jharkhand, Nagaland, Punjab, Rajasthan have not submitted any action plan to CPCB."
28to36...........................................xx.........................xx
37. There are huge gaps in execution of action plans for noise control, including procurement of equipments. Such gaps need to be addressed especially by Police and environment Departments who are entrusted with the responsibility of control of noise under the Noise Pollution (Regulation and Control) Rules, 2000. Atleast from 01.11.2021, the concerned States/heads of police force must be held liable to pay compensation @ Rs. 10 lakhs per month on the same pattern as failure to enforce action plans for control of air pollution. 38to59.......................xx....................xx.............xx
60. Our directions are summed up as follows:
i&ii...............xx..................xx.........................xx iii. Monitoring by NTF may be with reference to the action plans of 124 NACs. The components include installation of monitoring stations, completion of CC and SA studies, shifting, prohibiting and regulating activities beyond carrying capacity (such as shifting to cleaner fuel and declaring regulated/no vehicle zones so as to ensure that the air quality does not go beyond 'poor' for protection of health of the citizens), effectiveness of PGRPs, timelines for execution of the action plans and recovery of compensation for delay, addressing gap in control of noise pollution, afforestation drives utilizing CAMPA funds, effective implementation of ERS, revamping of PCBs/PCCs and other monitoring mechanism, remediation of legacy waste sites and effectives steps for management of other waste, including biomedical, plastic and e-waste, dust control, public awareness and community involvement programmes and setting up of data grids on all levels. NTF may also evolve and oversee parameters for interse ranking of success of remedial action for 124 NACs and other air polluted areas where air quality is poor and above. Further, accountability for failures and incentives for success also needs to be 10 monitored. NTF is free to take up any other incidental issues.
iv....................xx...........................xx................xx v. The Chief Secretaries of all States/UTs may continue to monitor progress in execution of action plans at State level with the assistance of monitoring cells in their offices and the AQMCs. The State level monitoring must include action at the ground as per directions to be implemented by the District Magistrates or other concerned departments. The monitoring may include all associated issues, including road dust control by appropriate sprinkling of water (utilizing treated water, instead of potable water), planting herbs and shrubs, and all sources of pollution, including fire crackers. The issue of noise pollution also needs to be addressed, as earlier directed."
10. It is true that inspite of repeated orders, the noise pollution remains a challenge. Need for such compliance can hardly be over emphasized. As shown by affidavits of State of West Bengal, DGP West Bengal and State PCB, steps have been taken for creating awareness, distributing sound limiters and setting up of sound monitoring systems at certain locations, adequacy of such steps is not free from doubt. Challenge to control noise pollution still remains. The applicant in person has suggested that there has to be more intensive monitoring in silence zones and there has to be an effective task force to monitor compliance which should include grievance redressal mechanism, including a helpline, provision for an App, and prompt action on complaints. There is need for more monitoring stations, including by different institutions. The problem is of a continuing nature and is real.
11. We see no objection to the above suggestions being duly acted upon by the administration. Special initiatives may also be required to control noise pollution created by vehicles using high sound pressure horns, two wheelers operating without silencers or tampered exhaust pipes. While mechanism is said to have already been established, its efficacy has to be assessed from time to time, preferably once in six months. Interactions needs to be organized under 11 the Chairmanship of Additional Chief Secretary, Environment Department and Additional DGP nominated by DGP West Bengal with concerned stake holders at State level and such interactions are also required at different levels in districts and major cities. CPCB and MoEF&CC need to lay down conditions to be followed by the manufacturers supplying major noise generating gadgets/equipments like PA systems (loudspeakers), DJ systems and others.
The MA is disposed of accordingly.
A copy of this order be forwarded to the Chief Secretary, West Bengal, DGP, West Bengal, MoEF&CC and CPCB by e-mail for compliance.
Adarsh Kumar Goel, CP B. Amit Sthalekar, JM Prof. A. Senthil Vel, EM February 27, 2023 M.A. No. 04/2021/EZ In Original Application No. 158/2016/EZ DV 12