Jammu & Kashmir High Court - Srinagar Bench
Kashmir Consumer Welfare Forum & ... vs Comm. Transport And Others. on 20 July, 2017
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
Serial No.01
Regular List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
OWP No.458/2003
Date : 20.07.2017
Kashmir Consumer Welfare Forum & another ...Petitioner.
V.
Comm. Transport and others. ...Respondents.
Coram:
Hon'ble Mr. Justice Badar Durrez Ahmed, Chief Justice Hon'ble Mr. Justice Ali Mohammad Magrey, Judge Appearing counsel:
For the appellant(s) : Mr. J. H. Reshi, Amicus Curaie.
Mr. Ateeb Kanth, Advocate.
For the respondent(s) : Mr. B. A. Dar, Sr. AAG.
Mr. T. M. Shamsi, ASGI.
Mr. Moomin Khan, Advocate.
Mr. Reyaz Ahmad Beigh, Dy. Director,
Tourism, in person.
i) Whether to be reported in
Press/Media. Yes/No
ii) Whether to be reported in
Digest/Journal. Yes/No.
01. On the previous occasion i.e., on 08.06.2017, after the presentation given by the SSP, Traffic, Srinagar, we had requested her to give us ten points of action on which we can issue directions to other associated agencies so that the traffic position is improved in the immediate future as also in the short term of one year and also in the longer period of five years.
The SSP, Traffic, in compliance of the said order has submitted an affidavit which contains the suggested ten points of action. They are as under:
"1. Complete removal of road encroachments by the SMC, be it vendors or on road display of goods by shopkeepers.
2. Installation of Intelligent Traffic Management System (ITMS) all across the City.
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3. Creation of paid parking Zones inside the CBD and on road parking to be made costlier than off road parking. This is also imperative because of the space constraint of Traffic Police City, where once the space to keep toward vehicles is exhausted, no more vehicles can be lifted. 4(a) Expediting the work on the Rambagh flyover with greater impetus on night shifts and till the completion of fly over is underway, Macadamization from Rambagh to Naaz crossing road stretch.
(b) Expediting the construction work of an alternate bridge to Abdullah Bridge to de-congest the traffic on Radio Kashmir, Rajbagh.
(c) Expediting the construction work at Cement Bridge Qamerwari (with a set deadline), and (5) Usage of vehicle immobilizers like wheel clamps be allowed to check wrong parking.
(6) Segregation of Inter City and Intra City Transport including Buses, Sumos, Taveras and 407 Type vehicles to be done and the timetable and stops for each type of vehicle to be fixed and displayed at conspicuous places by the transport authority to be available on line as well for the convenience of general public. The routes of these buses and 407 TATA vehicles have also to be revisited and revised pragmatically so as to ensure proper terminus and timing which needs to be strictly enforced by the transport department
7. Shifting of general bus stand Batamaloo to Parimpora and removal of shops dealing with the scrap and condemned vehicles outside the general Bus Stand Batmaloo who have occupied a huge space of the road for dumping the condemned vehicles.
8. Removal of structures that have created a bottleneck at the Qamerwari chowk to relieve the traffic congestion and to realign the divider on the road for equal space on each side.
9. Commercialization of residential areas to be stopped and restored to its actual position.
10. Labour Commissioner to enforce the slated holidays of different markets and trades on different days of the week."
02. By virtue of our previous order, we had also constituted a Committee of the Divisional Commissioner (Kashmir) as Chairman and the Transport Commissioner (J&K) and the Vice Chairman, SDA, as members. The OWP NO.458/2003 2 OF 10 Committee was directed to meet at least once in a month and they could also invite stakeholders whose presence they felt necessary to give effect to the plan. Of course the learned Amicus Curiae and other assisting advocates were given liberty to give suggestions to the committee.
03. An affidavit has been filed on behalf of the Divisional Commissioner, Kashmir, indicating that the first meeting of the committee was convened on 01.07.2017 in which the following decisions were taken:-
"(I) Identifying and Abolishing the Unauthorized Auto, Sumo and Mini-bus Stops/ Stands.
It was decided that a revised sub-committee consisting of representatives of Deputy Commissioner Srinagar, Transport Commissioner, Traffic Police, SMC, SDA, Executive Police, PWD/ ERA, LAWDA, is constituted, who shall carry out fresh survey and identify the feasible locations for Auto/ Sumo/ Mini-bus stops and Stands in the Srinagar City. The Srinagar City should be divided in zones (East, West, North, South Zones). The present 32 locations identified should be also re-surveyed and taken into consideration. The information should be compiled in the following format.
Location Status of Available Presently Presently No. of Prepared Site Stop/ Site Suggested
identified land (Land space used as vehicles vehicles Advised for Stand Suggested Action of
belongs to) parked/ presently Auto/ Sumo/ to be development
operated, if parked/ Mini Bus Developed
any, type of operated by
vehicle
2 3 4 5 6 7 8 9 10 11
The committee shall submit its report to the Transport Commissioner before 25th July, 2017 which after examination should be placed before the Committee in the next meeting so that formal orders for their development by the concerned Authority shall be issued and notified by the Transport Department accordingly.
(II) Issue regarding Encroachment of Roads/ Streets by Shopkeepers etc. which leads to Traffic Congestion.
a) Regarding encroachment by Street Vendors, it was directed that all the street vendors should be removed from the Srinagar City and the drive should be vigorously monitored and should be sustained and no vender be allowed to operate on streets except for the location OWP NO.458/2003 3 OF 10 identified for their rehabilitation. The drive should be jointly carried out by SMC, SDA and Police and should be effectively monitored.
b) The drives against the shopkeepers for displaying Goods on the footpaths shold be carried out by SMC simultaneously to make footpaths free for movement of pedestrians.
c) Public Notices should be issued for making Road from Dal-Gate to Batmalloo as No Parking Zone and all the vehicles should be made to par in the specified parking places only. SSP Traffic and Commissioner, SMC should also ensure that the vehicles are not parked on the Road side near the Mughal Gardens especially Nishat Garden etc. and should be parked only at designated parking places.
d) The road side parking near Mughal Darbar, Residency Road cancelled and developed as fountain by SMC has been appreciated. III) Installation of more number of Traffic Lights/ Signals and rectification of defunct traffic signal so as to regulate the traffic and de-congest the Srinagar City.
It was decided that SSP Traffic Srinagar shall identify 10 New Locations for installation of traffic lights in Srinagar and furnish the same to SMC for further necessary action. SSP Traffic shall also identify the traffic lights which are dysfunctional and shall inform SMC accordingly. The Commissioner SMC shall ensure repair of these lights within one week. Chief Engineer, Irrigation and Flood Control Kashmir ventilated the concerned about increase in water level due to which Bailey-Bridges are likely to submerge. In this regard, it was decided that Chief Engineer, PWD (R&B) Kashmir shall submit his action plan about the regulation of Traffic in the areas where Bailey-Bridges are likely to be affected due to increase in water level of river Jehlum. The plan should be worked out in consultation with SSP Traffic/ ERA to facilitate Traffic Movement."
04. On going through the affidavit of the Divisional Commissioner as also the affidavit of the SSP, Traffic, it appears that point no. I of the Divisional Commissioner's affidavit deals with the same subject as point no.6 of the SSP's affidavit. Similarly, point nos. II and III of the Divisional OWP NO.458/2003 4 OF 10 Commissioner's affidavit deals with point nos. 1 and 2 of the SSP, Traffic's affidavit.
05. We are informed that the next meeting of the committee is to be held on 25.07.2017 and the action taken report would be considered on that date.
06. In so far as point no.1 of the SSP Traffic's affidavit is concerned, the same has to be complied with by the SMC. Similarly, point no.2, point no.3, point no.8 and point no.9 are also to be complied with by the SMC. They shall take immediate steps and file an action taken report before the next date of hearing.
07. Point no. 4(a) has to be complied with by the JKERA. Point no. 4(b) and 4(c) are to be complied with by the R&B Department. Point no.5 has to be complied with by the Traffic Police itself. Point no.6 has to be complied with by the State Transport Authority and point no.7 needs to be complied with by the Divisional Commissioner, Kashmir, along with the Vice Chairman, Srinagar Development Authority. That leaves point no.10 which has to be complied with by the Labour Commissioner. Action taken reports by each of the above mentioned agencies shall be filed before the next date of hearing indicating compliance of the directions. The SSP, Traffic, shall also examine as to whether the proposed alternate bridge adjacent to Abdullah Bridge would be a better proposal from the traffic congestion point of view than one earlier proposed (i.e., the 'skewed bridge'). Mr. Dar, who is appearing on behalf of the R&B Department, shall provide the earlier OWP NO.458/2003 5 OF 10 proposal as well as the alternate proposal to the SSP, who shall examine the same and submit a report before the next date of hearing.
08. The Pollution Control Board has submitted an affidavit of Mr. Sameer Bharti, who is the Member Secretary, Jammu & Kashmir State Pollution Control Board. This is in pursuance of our direction given on 08.06.2017. We are now informed that till June, 2017, there was only one station for monitoring Ambient Air Quality in the city of Srinagar and that, too, only for PM 10. However, pursuant to the directions given by this court, five new Ambient Air Quality Monitoring Stations have been set up at (i) Boulevard/ Dalgate Area (Hotel Shahan Shah), (ii) Jahangir Chowk Area (Near Civil Secretariat), (iii) Hyderpora Area (Parray Pora), (iv) Soura (Near SKIMS) and (v) Rajbagh (Pollution Control Board Campus). The new monitoring stations not only monitor PM 10 but monitor PM 2.5 also. The monthly average data of particulate matter (PM 2.5) for the month of July 2017 (01.07.2017 to 15.07.2017) has been monitored by four of the five monitoring stations except Soura which is not yet operational. The said data given is reproduced as under: -
S.No. Name of Sampling Station PM 2.5 µg/m3
1. Rajbagh 75.05
2. Hyderpora (Parraypora) 94.32
3. Boulevard Near Dalgate 100.62
4. Jahangir Chowk Near Civil Sectt. 124.71
5. Soura near SKIMS N.A.
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Note:-
1. All values are in µg/m3
2. The monitoring data is confined to the samples collected only.
3. The permissible limit of PM 2.5 for 24 hours = 60 µg/m 3 for the year = 40 µg/m3
4. N.A = Not available."
09. It is evident from the above table that the permissible limit of PM 2.5 for 24 hours is 60 µg/m3. However, all the four operational monitoring stations clearly indicate that permissible limits have been exceeded. In other words, PM 2.5 in Srinagar is beyond the permissible limits. The major contributory, according to the representative of the Pollution Control Board, for PM 2.5 is vehicular traffic and roadside and construction dust. Therefore, in order to contain the particulate matter (PM 2.5) within permissible limits, the SMC, R&B Department and the Traffic Police shall come out with an action plan before the next date of hearing. Further, monitoring in the five monitoring stations shall continue and the latest report shall be submitted before the next date of hearing.
10. This leaves us to consider the issue of the pollution control certificates which are issued by the Pollution Checking Centres. As per the affidavit of the Member Secretary, Jammu & Kashmir State Pollution Control Board, a series of deficiencies have been noticed in the functioning of the Pollution Control Centres. The said deficiencies have been summarized and are reproduced as under: -
"(A). Pollution Under Control Certificates (PUCC) are being issued by the majority of the centres without actually monitoring the vehicles.
OWP NO.458/2003 7 OF 10 (B). Data is pre-fed in the computers of these centres and same figures in respect of big, small or medium vehicles are shown in the certificates, as is evidence in Annexure RIII pages 28-41.
(C) The equipment for monitoring at most of the places was not calibrated. (D) At many a stations, operators were not fully trained."
11. The Transport Commissioner is directed to take immediate action against the errant Pollution Control Centres in accordance with law and he has also to ensure that Pollution Control Centres operate within the parameters of law. A detailed status of the action taken shall be submitted before the next date of hearing.
12. It has also been brought to our notice that vehicular traffic as also other sources of noise pollution in Srinagar need to be contained. There are clear statutory provisions such as the Environment (Protection) Act, 1986, the Environment (Protection) Rules 1986 and, in particular, the Noise Pollution (Regulation and Control) Rules, 2000. The primary duty of enforcement of said statutory provisions and rules with regard to noise pollution is on the District Magistrate, Police Commissioner and any other office not below the rank of Dy. Superintendent of Police designated for the maintenance of the ambient air quality standards in respect of noise under any law for the time being in force. The schedule to the Noise Pollution (Regulation and Control) Rules, 2000, categorizes the Ambient Air Quality Standards in respect of noise and the same are as under: -
"Ambient Air Quality Standards in respect of Noise.
Area Code Category of Area/ Zone Limits in Db(A)Leq*
Day time Night Time
OWP NO.458/2003 8 OF 10
(A) Industrial Area 75 70
(B) Commercial Area 65 55
(C) Residential Area 55 45
(D) Silence Zone 59 40
Note.
1.Day time shall mean from 6.00 a.m. to 10.00 p.m.
2.Night time shall mean from 10.00 p.m. to 6.00 a.m. [3.Silence zone is an area comprising not less than 100 metres around hospitals, educational institutions, courts, religious places or any other area which is declared as such by the competent authority]
4. Mixed categories of areas may be declared as one of the four above mentioned categories by the competent authority. *dB(A) Leq denotes the time weighted average of the evel of sound in decibels on Scale A which is relatable to human hearing. A "decibel" is a unit in which noise is measured. "A", in dB(A) Leq, denotes the frequency weighting in the measurement of noise and corresponds to frequency response characteristics of the human ear.
Leq: It is an energy mean of the noise level over a specified period."
13. It will be evident that silence zone represents an area comprising of not less than 100 metres around hospitals, educational institutions, courts, religious places or any other area which is declared as such by the competent authority. In so far as the silence zones are concerned, the day time limit has been prescribed as 50 dB(A)Leq and the limit for night time has been prescribed as 40 dB(A)Leq. Day time has been specifically mentioned to be from 6.00 a.m. to 10.00 p.m. and night time has been specified to be from 10.00 p.m. to 6.00 a.m. A status report be submitted with regard to measurement of Ambient Air Quality Standards in respect of noise in the silence zones of the city during the day time and night time. We OWP NO.458/2003 9 OF 10 may also point out that there is another Act which is a State Act, which, we are told, is still in vogue (i.e., the Instruments (Control of Noises) Act, 1959). The same also needs to be examined and a status report be submitted in respect thereof. We may also point out that the Motor Vehicles Act, 1988, also prescribes for providing signage particularly with regard to silence zones. The State authorities shall also ensure that proper signage is put in place with regard to silence zones as indicated in the order above in terms of the Motor Vehicles Act.
14. Re-notify on 16.08.2017.
15. Copies of this order be given Dasti to learned counsel for the parties.
(Ali Mohammad Magrey) (Badar Durrez Ahmed)
Judge Chief Justice
Srinagar
20.07.2017
Abdul Qayoom, PS
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