Bombay High Court
Robin Jaisinghani vs Mumbai Metro Rail Corporation Ltd. And 3 ... on 24 August, 2018
Bench: Naresh H.Patil, G.S.Kulkarni
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION (Lodg)NO.507 OF 2017
in
WRIT PETITION (LODG) NO.2107 OF 2017
In the matter of :
Mr.Robin Jaisinghani. ...Applicant/Orig.Petitioner
Between
Mr.Robin Jaisinghani ...Petitioner.
vs.
1.Mumbai Metro Rail Corporation Ltd.
2.Sr.Inspector of Police in Charge of the
Cuffe Parade Police Station.
3.The Commissioner of Police, Mumbai
4.State of Maharashtra. ...Respondents
AND
NOTICE OF MOTION (Lodg)NO.387 OF 2018
IN
WRIT PETITION (LODG) NO.2107 OF 2017
In the matter of:
L&T-STEC JV Mumbai. ...Applicant/Intervener
In the matter between
Mr.Robin Jaisinghani ...Petitioner.
vs.
1.Mumbai Metro Rail Corporation Ltd.
2.Sr.Inspector of Police in Charge of the
Cuffe Parade Police Station.
3.The Commissioner of Police, Mumbai
4.State of Maharashtra. ...Respondents
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AND
NOTICE OF MOTION NO.273 OF 2018
IN
WRIT PETITION (LODG) NO.2107 OF 2017
Mumbai Metro Rail Corporation Ltd. ...Applicant
In the matter between
Mr.Robin Jaisinghani ...Petitioner.
vs.
1.Mumbai Metro Rail Corporation Ltd.
2.Sr.Inspector of Police in Charge of the
Cuffe Parade Police Station.
3.The Commissioner of Police, Mumbai
4.State of Maharashtra. ...Respondents
---
Mr.Robin Jaisinghani, Petitioner-in-Person present.
Ms.P.H.Kantharia, Government Pleader with Ms.Deepali Patankar,
Assistant to GP, for the State-Respondent nos.2 to 4 in NMWl 507/17 &
NMW 387/18
Mr.Ashutosh Kumbhakoni, Advocate General with Mr.Akshay P.Shinde,
for Respondent No.1-MMRCL.
Ms.Sharmila Deshmukh with Ms.Jaya Bagve, for Respondent No.6.
Mr.S.U.Kamdar, Senior Advocate with Mr.Varun Shankar, Mr.Purav Shah
I/b. Cyril Amarchand Mangaldas, for Respondent no.5.
Mr.Zal Andhyarujina (Amicus Curaie)with Mr.Kunal Dwarkadas & Shrey
Sancheti.
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---
CORAM: NARESH H.PATIL, ACTING CJ &
G.S.KULKARNI, J.
Reserved on : 20th August,2018
Pronounced on : 24th August 2018
---
P.C.:-
1. The petitioner who is residing at Cuffe Parade area in
Mumbai has filed this petition against respondent no.1-Mumbai Metro Rail
Corporation Ltd. (for short 'MMRCL') and the State Government being
aggrieved by the construction activities undertaken by MMRCL at Cuffe
Parade area in execution of Metro Rail Project - III which is an
underground metro railway being proposed from Colaba to SEEPZ
(Andheri) (for short the 'Metro Project'). The prayers in the petition are
interalia to restrain respondent no.1 from carrying out construction
activities during the night hours as the same would be in violation of the
Noise Pollution Control Rules and for a further prayer that the
respondents ensure that the noise caused by the construction of Metro
project being carried out by the contractors does not exceed the levels
prescribed by the Noise Pollution Control Rules.
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2. By an ad-interim order dated 11 August 2017 passed by this
Court, the MMRCL was directed not to carry out any construction or
ancillary to that, between 10 p.m. to 6 a.m. till the next date of hearing.
The writ petition was adjourned for two weeks. This order is continued till
date. It would be appropriate to note the order dated 11 August 2017.
"1. Heard the applicant appearing in person.
2. Pending consideration of the application on
merits, since the opposite parties have not yet filed their
reply to the notice of motion, we direct the respondent-
Mumbai Metro Rail Corporation Limited not to carry on
any construction or ancillary to that between 10.00 p.m.
to 6.00 a.m. till the next date of hearing.
3 List the matter after two weeks."
3. Thus for the last one year the work of construction of the
Cuffe Parade Metro Rail Station and other ancillary work was undertaken
by the MMRCL and its contractors from 6 a.m. upto 10 p.m. The project
work has substantially progressed and now it is at the stage where Tunnel
Boring Machine (TBM) is being installed and would be required to be
made operational. The case of MMRCL is that the TBM which would
function deep below the ground level, is required to function continuously
for twenty four hours. During the operation of the TBM, the muck which
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would be generated by the boring, would be required to be collected and
excavated by using vehicles (trucks/dumpers) and simultaneously in a
continuous process a pre-cast RCC segment is required to be laid in the
tunnel, as it progresses. It is in these circumstances the MMRCL has
approached this Court by the present Notice of Motion (no.273 of 2018)
making the following prayers :
(a) To appropriately modify, in the light of the
contentions raised in the affidavit filed in support of this
motion, the order dated 11th August,2017 passed by this
Court Hon'ble Court, in the aforesaid Writ Petition;
(b) To allow the applicant to undertake the exercise of
carrying out various activities relating to Tunnel Boring
Machine (In short "TBM") such as lowering the TBM and
its parts underground, at Cuffe Parade site, assembling it
and thereafter carry out the work of excavation of
tunnels;"
4. Mr.Ashok Bhasme, Deputy General Manager of MMRCL has
filed an affidavit in support of the notice of motion. The relevant
averments can be found in paragraphs 5, 15, 16 and 17. They read as
under:-
5. I say that the entire exercise of lowering the TBM machine and its parts,
assembling it, at Cuffe Parade area etc and excavation of tunnels is required to
be done 24x7 and therefore the said fact has triggered the emergent situation to
file the present notice of motion. I say that the said activity is required to be
carried out like a conveyor belt activity on a production line manufacturing
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factory, in an uninterrupted manner. I crave leave to refer to rely upon the
mechanism thereof in greater details as and when required. The facts and
circumstances giving rise to filing of the present Notice of Motion is stated to be
as under .
... .... .... ....
15. As aforesaid the exercise of lowering and assembling the TBM
underground and the exercise of excavation of tunnel will have to be carried out
in a round the clock manner and the entire TBM is required to be made
operational by lowering it at the earliest in order to save time, public money as
also timely completion of the project in issue. Any delay caused in this regard is
going to adversely and deeply affect the public exchequer.
16. The schedule of launching of TBM-1 is presently planned/proposed as
below:
Sr.No. Activity Start End
1. TBM Arrival at port 6 Jun 18 6 Jun 18
2. Customs Clearance and transportation to Site 7 Jun 18 8 Jun 18
3. Preparation of Launching Shaft and making it ready Under 14 Jun 18
for receiving TBM parts progress
4. Placing of TBM shield at site, lowering of shields 9 Jun 18 31 Jul 18
and TBM assembly
5. Welding works in the shaft 15 Jul 18 25 Jul 18
6. Preparation of decking and sleepers for loco 23 Jul 18 30 Jul 18
movement
7. TBM site Acceptance Test and Commissioning 1 Aug 18 3 Aug 18
`8. Starting of Ring Building (Tunneling work) 4 Aug 18 4 Aug 18
.... .... ..
17. I say that delay in the launching (lowering in shaft, assembly of TBM
and start of operation) of the 1st TBM will cause.
a) delay in in construction of the stations work at Cuffe Parade, Vidhan
Bhavan, Churchgate and Hutatma chowk and CSMT (from where the TBM is to
be taken out).
b) Delay in launching of the 2nd TBM which is scheduled to be in Mumbai
by 1st week of July 2018.
c) Overall the schedule of operation of Metro Line 3 will get delayed which
will cost MMRCL about 4 crore per day.
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In view of these and such other aspects of the matter, immediately on
reopening of summer vacation, the applicant had filed an application before the
Hon'ble Committee. However, since the parties could not arrive at an amicable
solution despite efforts made by the Committee to amicably resolve the issues
the applicant-MMRCL has filed instant application seeking urgent orders from
this Hon'ble Court."
5. There is also a notice of motion being Notice of Motion
(Lodg) No.387 of 2018 which is filed by L&T-STEC JV Mumbai (for short
"L&T") who are the contractors appointed by MMRCL. L&T is seeking
intervention in the matter. It is L&T's case that its interest would be
seriously affected by any adverse order which would be passed by the
Court. Mr.A.H.Khan, Task Force Leader of L&T-STEC JV Mumbai, filed an
affidavit in support of the notice of motion contending that it is
undertaking the contract work of the Metro Project, which is for "design
and construction of underground stations and associated tunnels for UGC-01
package of Metro Project and for design and construction of four
underground stations at Cuffe Parade, Vidhan Bhavan, Churchgate and
Hutatma Chowk and associated tunnels together with two tunnel sidings at
Cuffe Parade." L&T has stated that it has commenced construction work
for the first station on 18 July 2016 and since then is undertaking the
construction of the said Metro Rail project. It is contended that the Metro
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Rail Project is of great public importance for a metropolitan city like
Mumbai which would be a fully underground rail based mass public rapid
transport system. On behalf of L&T attention of the Court is drawn to the
order dated 5 May 2017 passed by the Division Bench of this Court in
"Nina Deepak Verma Vs. Tree Officer, Municipal Corporation of
Greater Mumbai & Ors." in which the Court on the importance of this
public project had observed as under:-
" There can be no dispute that the present public transport facilities
in Mumbai city are grossly overcrowded, over-strained and inadequate. It
is a matter of common knowledge that citizens are required to travel with
immense pain and hardship and in conditions endangering their lives in
the overcrowded existing suburban trains and buses. Desire for a smooth
and comfortable travel in Mumbai had remained a distant dream."
" To decongest this pressure on the existing transport system and to
increase mobility across the region, the State authorities had decided to
undertake diverse Metro rail projects. The Metro Rail Line 3 project is
stated to provide a high quality public transport system to the vast
population.."
" It is projected that about 13.87 lakhs passengers per day can be
benefited by Metro Rail Line 3. It is stated to connect 30 educational
institution, 6 central business district, 30 recreational centers and the
domestic and international air terminals. It is expected to save about 60
minutes of the passengers average traveling time per day resulting in
reduction of road traffic, fuel consumption and air pollution. There is a
projection of estimated reduction of 6800 tons of Carbon Dioxide (CO2) in
2021 and 9907 tons by 2041. Further it is estimated that there would be
reduction of Carbon Monoxide (CO) to the tune of 4327 tons in 2021 and
increasing to 6304 tons to 2041. If these are the benefits of the Metro Rail
3, there can be no doubt that it would be of enormous benefit to the public
on all counts."
6. As regards the issue on noise pollution in paragraph 15 of the
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affidavit in support of the notice of motion, L&T has stated that the
ambient noise level i.e. noise level without any construction work being
carried out is in itself exceeding the limits prescribed under the Noise
Pollution (Control and Regulation) Rules,2000 owing to the congestion
and traffic in Mumbai. The averments in that regard are required to be
noted which read thus:-
15. The Applicant/Intervener submits that the ambient noise
level i.e.noise level without any construction work being carried
out is in itself exceeding the statutory limits prescribed under the
Noise Pollution (Control and Regulation) Rules 2000 owing to the
congestion and traffic in Mumbai. The Applicant/Intervenor craves
leave to refer to and rely upon the Noise Pollution (Control and
Regulation) Rules 2000 when required. As can be seen below at
each of the aforesaid stations, the ambient noise levels (both day
and night) without any construction activity are well beyond the
statutory limits:
Noise Levels at various locations as per its scope of work
measured in the 1st week of December 2016 are as under :
Cuffe Parade (Leq) 70dB Day, 61.3 dB Night -
Measurement date-5th December 2016.
Vidhan Bhavan (Leq): 74.1 dB Day, 61.2 dB Night -
Measurement date - 6th December 2016.
Churchgate (Leq) 70.5 dB Day, 62.9 dB Night -
Measurement date - 6th December 2016.
Hutatma Chowk (Leq) 70.4 dB Day, 61.3 dB Night -
Measurement date - 7th December 2016.
Further, in order to show that even during the ongoing
construction activity, the noise levels remain similar to baseline/
ambient level, the applicant/Intervener has also provided noise
level charts of various stations as below:
... .... .... ...
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The above graphs are based on data from December 2016 to May
2018. However, subsequent to the order of the Hon'ble Court dated
11th August,2017, no works were carried out during night time.
The same is testimony to the fact that the ambient noise is already
exceeding the statutory norms irrespective of any construction
work being carried out. As mentioned hereinabove, the Contract
itself recognises that the work to be carried out is inherently noise
producing, and to that extent, permits a 10 db deviation from the
existing ambient pre-construction noise limits. It is submitted that
accordingly, the relevant Contractor should not be penalised for the
rise in noise levels owing to the construction activity as long as
reasonable measures are put in place to mitigate the noise levels to
the extent possible."
7. L&T has contended that considering the importance of noise
mitigation and other environmental concerns, noise mitigation measures
which conform to international standards have already been installed and
the same are listed at "Exhibit-E" to the affidavit in support. Thus on
behalf L&T it is urged that L & T be permitted to undertake the project
work using TBM even during night hours by vacating the order passed by
this Court on 11 August 2017.
8. There is one more notice of motion being Notice of
Motion(Lodg) No.507 of 2017 which was earlier filed by the petitioner
seeking reliefs that the MMRCL be restrained from undertaking
construction activity at Cuffe Parade causing noise levels exceeding the
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levels prescribed in the Noise Pollution Control Rules and if it is found
that the noise levels caused by the construction activity exceeds the
maximum levels prescribed in the Noise Pollution Control Rules, then
MMRCL be restrained from undertaking any further construction, and for
further relief that no construction be undertaken during night hours.
9. On an earlier occasion, this Court on 18 th July 2018 (Abhay
S.Oka and Riyaz I.Chagla, JJ) was pleased to pass an order permitting the
Maharashtra Pollution Control Board to appoint CSIR-National
Environmental Engineering Research Institute, Nagpur (NEERI) to take up
the project of monitoring noise levels during the day time and night time.
The order reads thus:
"1. "Today we have started dictation dealing with the prayer
for interim relief in the main Writ Petition.
2. The added Respondents the Maharashtra Pollution Control
Board has placed on record a compilation of documents which is
taken on record and marked as "MI" for identification. It records
that the CSIR-National Environmental Engineering Research
Institute, Nagpur (for short "NEERI"
) has agreed to take up project
proposal for monitoring noise levels as per CPCB protocol during
day time and night time. The terms of reference signed by the Joint
Director of the added Respondent - the Maharashtra Pollution
Control Board are part of the compilation. As interim order is yet to
be fully dictated and may not be available immediately, we direct
Maharashtra Pollution Control Board to issue necessary work order
to NEERI
as per the terms of reference which are part of the
compilation marked as MI for identification.
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3. We make it clear that the Maharashtra Pollution Control
Board and NEERI will be acting in terms of the order of this Court
and therefore both the Authorities will be in a position of the Court
Commissioner appointed by this Court to assist the court. Even if, a
copy of this order is not available, we permit the Maharashtra
Pollution Control Board to issue necessary work order."
(emphasis added)
10. Thereafter the Division Bench passed a detailed order dated
20 July 2018. In paragraph 25 of the said order, the Division Bench having
noted the order dated 5 May 2017 passed in Writ Petition No.814 of 2017
which also pertained to the very same metro rail project, however in the
context of tree cutting, observed that the Court cannot overlook the
contention that the project of Metro Railway is for the benefit of the
citizens of Mumbai and there may be merit in the contention that as and
when the said project becomes operational, it will serve the cause of lakhs
of citizens of Mumbai. In paragraphs 26 and 28, the Court observed as
under:-
26. Therefore, after recording a prima facie finding which we
have recorded above, we will have to make an attempt, if possible
to mould the interim relief so as to permit sustainable development
which will ensure that larger public interest of the community does
not suffer while protecting the rights of the petitioner. Reliance has
been placed on the report of CSIR-NEERI submitted pursuant to the
directions issued in the case of Dr.Mahesh Vijay Bedekar (supra).
However, the said report is in the context of the directions issued in
respect of noise mapping. The added respondent relied upon
certain data of decibel readings taken. However, the first
respondent and the Contractor agreed before us that the reading of
noise should be taken by an independent agency and, therefore, we
have passed the order dated 18th July 2018 directing the
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Maharashtra Pollution Control Board to do the
needful."..............................
We hope and trust that the work order must have been
issued by the Maharashtra Pollution Control Board. The Board shall
get the work done through NEERI and submit a report by 2 nd
August 2018. Therefore, authentic decibel readings will be made
available to this Court by the Maharashtra Pollution Control
Board."
28. As stated earlier, we make it clear that an attempt will have
to be made to arrive at some workable solution so that the work of
the construction of the Metro Railway progresses. We hope and
trust that by the time we consider the said aspect, there will be
change of approach on the part of the Contractor engaged by the
first respondent and the Contractor will at least make some efforts
to come to an acceptable solution which will ensure that minimum
contribution is made by the work of construction of Metro Railway
to the existing level of noise pollution. (emphasis added)
The operative portion of the order dated 20 July 2018 passed by the Court
reads thus:-:-
30. Hence, we pass the following order :
(i) We direct the Maharashtra Pollution Control Board to ensure that
a report is submitted in terms of the order dated 18 th July 2018 prior to
3rd August 2018. Copies of the said report shall be furnished by the
advocate for the Maharashtra Pollution Control Board to the petitioner
appearing in person, the Amicus Curiae and the advocates on record of
various parties;
(ii) We direct the first respondent to ensure that a Grievance Redress
Mechanism is created as early as possible and, preferably on or before 3 rd
August 2018 as assured by the learned Advocate General. The
Mechanism shall be set up in the light of what we have observed earlier."
(iii) We direct that the petition and notices of motion which are
pending shall be kept for further hearing in the light of the observations
made in this order on 10th August 2018 at 1.00 p.m. Considering the
urgency pleaded by the first respondent, if any of the parties desire to file
further affidavits, the same shall be done on or before 8th August 2018.
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(iv) The ad-interim order which is operating till today will continue to
operate till we hear the parties on the report which may be submitted by
the Maharashtra Pollution Control Board and pass an order after
considering the said report;
(v) We have noted that earlier, certain workable arrangements were
made due to the initiative taken by the learned Advocate General and
the learned Amicus Curiae. Though the matter is pending, the pendency
of the matter will not prevent the first respondent as well as the
Contractor from taking initiative for calling meeting to arrive at an
acceptable solution. If such effort is made, it will assist the Court in
passing the interim order."
11. In pursuance of the said order, a report has been placed on
record by the National Environmental Engineering Research Institute
(NEERI) on the 'Noise Level Monitoring at Cuffe Parade Metro Station
Site, Mumbai to Assess the Ambient Noise Levels'. Page 8 of the report
is a statement of ambient noise levels dB(A) at different locations of Cuffe
Parade Metro construction site which indicates that noise levels are above
the permissible decibel limits during the day and night time. However,
considering the said ambient noise levels, the expert committee of NEERI
has made the following recommendations:-
"6. Recommendations
In view of the above observations, following measures should be
taken to control the noise due to construction activities at metro
construction sites :
. Noise barriers (acoustic sheds or partitions) of sufficient height
should be erected on the sides of construction site to contain and reduce
the impact of noise arising out of various activities in the surrounding
areas i.e residential zone.
. Machine activities that generate a lot of noise should be used
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during the day time only.
. Maintenance of vehicles and machines used for construction
activities should be done regularly to avoid unnecessary increase in noise
levels.
. Old equipment can be made quieter by simple modifications,
such as adding new mufflers or sound absorbing materials.
. Acoustic enclosures for DG set must be provided at the
construction site.
. MMRCL has to take all the precautionary measures to mitigate
the noise at prevailing site conditions."
12. On the above backdrop we have heard the petitioner-in-
person and the learned Advocate General for MMRCL and Mr.Kamdar,
learned Senior Counsel for L&T.
13. Today an additional affidavit of Mr.Ashok Bhasme on behalf
of MMRCL is placed on record as also the petitioner has placed on record
an affidavit objecting to the report as filed by NEERI. Mr.Jaisinghani-
Petitioner-in-person has made extensive submissions contending that
exceeding the ambient noise level in undertaking the Metro Project work
would amount to violation of the petitioner's right under Article 21 of the
Constitution. It is contended that Noise Pollution Rules are required to be
strictly adhered to in undertaking the metro rail construction. It is
contended that severe hardship is faced by the petitioner on account of the
noise pollution being created by the construction work as it disturbs the
sleep of the petitioner and his family members. It is contended by
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Mr.Jaisinghani that the tunneling work can be undertaken by operating
TBM only during day time i.e. between 6 a.m. to 10 p.m. It is next
submitted that the claim as made by MMRCL and L&T that the TBM has to
operate 24X7 cannot be accepted. It is further submitted that lowering of
TBM and its parts can also be undertaken during the day time. It is thus
submitted that the Court should maintain the ad-interim order prohibiting
undertaking the work during the night hours.
14. On the other hand learned Advocate General appearing for
MMRCL would contend that the Metro Rail Project is a project of public
importance being undertaken by the Government to reduce the burden on
the existing metro transport which is basically local trains and buses.
Learned Advocate General while emphasizing the importance of the
project has submitted the severe pressure on the existing transport
facilities in Mumbai and its adverse effect on the lives of the citizens who
travel long distance. The learned Advocate General submits that noise
levels as recorded by NEERI cannot be disputed, however, at the same
time the L&T/MMRCL would implement the recommendations as made in
the report so as to control the noise levels. It is submitted that the
petitioner tows an extreme line that the TBM work should not be
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undertaken at night hours which is technically not feasible as also it will
have serious revenue repercussion on the project. It is submitted that the
tunnel boring would be undertaken about twenty five meters below the
ground level and the machines would not cause any noise pollution. It is
submitted that some noise would be generated on account of continuous
activity of removing muck which would be transported by
trucks/dumpers. It is submitted that proper care would be undertaken to
see that the noise levels are controlled to the best possible extent.
15. Mr.Kamdar, learned Counsel for L&T has also supported the
submissions as made by the learned Advocate General for MMRCL.
16. Having heard the learned Counsel for the parties and having
perused the record, we may at the outset observe that none of the parties
before us have disputed that the metro rail project of the MMRCL is a
project of immense public importance, which is being undertaken at a
public expenditure of Rs.23,136 crores. In exercising our jurisdiction, we
cannot be oblivious to the urgent public need for better transport facilities,
neither can we adopt a hard approach which would frustrate the project of
such magnitude. We also cannot overlook the large public benefit which
would be available to the citizens of this city on completion of the said
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project. We also cannot shut our eyes to the fact that the non-operation of
the machinery and/or the delay of work for a day would cause loss of
Rs.4.5 crores to the exchequer for a day. Any delay in execution of the
project is against public interest. It is a matter of common knowledge that
the existing transport facilities in the city of Mumbai are falling short to
cater to the transport needs of lakhs of citizens. Every day there are about
nine deaths due to overcrowding of trains. It is a legitimate expectation of
the citizens of the city that they travel comfortably and not in inhuman
conditions. If the object is to unburden the transport system, some
inconvenience in putting the system in place is required to be tolerated for
larger public benefits. It is therefore desirable that a balance is brought
about and the work of the ongoing project is not hindered on hard
technical issues when MMRCL and L&T are prepared to implement the
recommendations which are made by the NEERI in its report as noted
above and when their endeavour is that best possible efforts would be
undertaken to maintain the noise levels as per the Rules.
17. The contention as urged by the petitioner that TBM be made
operational only during day time, cannot be accepted. Both, on behalf of
MMRCL as also on behalf of L&T it is contended that the TBM once laid
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and made operational, it is required to be operated continuously 24X7.
We find that this technical aspect of operation of TBM continuously,
cannot be rejected in the absence of any contrary material and thus the
Court would be loath to form any opinion on any technical issues.
18. It is not in dispute that the TBM would work at a position 25
meters below ground level and the noise which would be generated by the
TBM is not a matter of serious concern, the removal of muck which would
be generated by the TBM by trucks/dumpers, appears to be the main
concern as raised by the petitioner. However, the noise level at such
operation can certainly be controlled if the measures as suggested in the
report of the NEERI are implemented as also extra care is undertaken by
MMRCL and L&T in keeping to the optimum noise levels, in undertaking
transportation of muck.
19. As regards the grievance redressal mechanism, the learned
Advocate General has made a statement that the following measures in
that regard would be immediately put in place:- (I) for registration of
complaints a separate E-mail address would be notified; (ii) one toll free
telephone number to lodge complaints would be made available; (iii) One
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officer 24X7 would be available on the site to take complaints; and (iv) a
Register shall be maintained at the site. It is submitted that with these
measures being adopted, any grievance in regard to the noise levels being
exceeded would be immediately attended and redressed. We may also
observe that Rule 7 of the Noise Pollution (Regulation & Control)
Rules,2000 prescribes that "any person may, if the noise level exceeds the
ambient noise standards by 10 dB(A) or more, make a complaint to the
authority." Thus a statutory mechanism is available to any person who is
aggrieved by noise pollution exceeding the standards as prescribed. It
would be difficult for this Court in exercise of its writ jurisdiction under
Article 226 of the Constitution to entertain such complaints and adjudicate
the same. Hence, it would be appropriate that such redressal mechanism
being made available, as per the statement made by the learned Advocate
General, is utilized by the aggrieved persons, in addition to statutory
remedy which is available.
20. In the light of the above discussion, we are of the opinion that
the order dated 11 August 2017 passed by this Court is required to be
vacated, however by the following order:-
pvr 21 nml507-17=387-18=nm273-18=wpl2107-17.doc
ORDER
(I) The MMRCL and its contractors are permitted to carry out construction and/or ancillary activities also during the night hours that is between 10 p.m. to 6 a.m.. The said activities shall be undertaken by due implementation of the recommendation as made by NEERI in its report of August,2018.
(II) It is directed that the grievance mechanism as suggested by the learned Advocate General shall be immediately made available within one week from today.
(III) Any person who is aggrieved by any specific instance of noise level exceeding permissible limits, shall either approach the grievance redressal officer to be notified on behalf of MMRCL/State Government, and/or may resort to the statutory remedy available under the Noise Pollution (Control and Regulation) Rules,2000.
Digitally (IV) The Notices of Motion are disposed of in the above terms. No costs.
signed by
Prashant
Prashant Vilas Rane
Vilas Date:
Rane 2018.08.24
14:32:47
+0530
(G.S.KULKARNI, J.) (ACTING CHIEF JUSTICE)