Himachal Pradesh High Court
Deepak Gupta vs Of on 31 December, 2015
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
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CWP No. 4012 of 2015 Judgment reserved on: 9.12.2015 Date of Decision : December 31, 2015.
Deepak Gupta ...Petitioner
Versus
of
State of H.P. and others. . ...Respondents.
Coram
rt
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ? Yes For the Petitioner : Mr. G.C. Gupta, Senior Advocate, with Mr. Anil Negi, Advocate.
For the respondents : Mr. Anup Rattan, Mr. Romesh Verma, Additional Advocate Generals and Mr. J.
K. Verma, Deputy Advocate General, for respondents No. 1 to 3, 6 to 8.
Mr. Manish Sharma, Advocate, for respondent No.4.
Mr. Hamender Chandel, Advocate, for respondent No.5.
Mr. J. S. Bagga, Advocate, for respondent No.9.
Tarlok Singh Chauhan, Judge "A man's home is his Castle."
This maxim is one of the oldest and most deeply rooted principles in Anglo-American jurisprudence. It reflects an egalitarian spirit that embraces all levels of society down to the poorest man living in a Jhuggi or Jhompari. The maxim also forms part of the fabric of part III of the Constitution of India and is deeply rooted in Article 21 thereof.
______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ?
::: Downloaded on - 15/04/2017 19:38:03 :::HCHP 22. The facts leading to filing of this petition is that the .
petitioner has constructed a house at Kachi-Ghati, which falls within the jurisdiction of the Municipal Corporation, Shimla. The area where the petitioner is residing is the gateway to the Shimla town, but unfortunately, of late large number of roadside denting and painting of workshops have mushroomed in and around the house of the petitioner making it difficult for him and his family to live peacefully. The rt activity being carried out in these workshops emit noxious, toxic and hazardous substance and generate noise pollution and also causes nuisance which is violative of the various enactments on the subject, but no action despite this is being taken. On such allegations, the petitioner has prayed for the following directions:
"1. To ensure the health and safety of the petitioner, his family members and other residents of Kachi-ghati /Ghora Chowki area where numerous denting and painting shops have been established causing health and safety hazards to the life of the petitioner and his family.
2. That directions may be issued to the respondents No. 1 to 8 to ensure that no such illegal work is done by the respondent No.9 and the other persons doing similar denting, painting work without following rules and regulations and without having proper set-up and spray booths etc., to ensure that toxic and hazardous substance has no adverse affect upon health and safety of the petitioner and his family members.
3. That to properly ensure that noise and air pollution is not being caused by the respondent No.9 as well as other similar persons so as to degrade the beauty and nature of the city.::: Downloaded on - 15/04/2017 19:38:03 :::HCHP 3
4. Directing the respondents No. 1 to 8 to ensure that traffic hazards are not created by the respondent No.9 and .
other similar persons by parking the vehicles for repair alongwith the road and from throwing the junk vehicles on the road side.
5. Directing the respondents to take strict action against the said persons causing damage to the property and health of of the petitioner and other members of the family by lodging FIR against the said persons and suitable rt actions in accordance with law.
6. Directing the respondents to ensure that no such hazardous and toxic substances are used by the respondent No.9 in the vicinity so as to cause threat to the health and safety of the petitioner and his minor child and old aged persons."
3. Respondents No. 1, 2 and 7 i.e. Chief Secretary, Secretary (Home) and Superintendent of Police have filed common reply, wherein they have raised preliminary objection regarding maintainability of the petition on the ground of concealment of the fact that respondent No.9 has obtained licence from respondent No.8, the Labour Inspector, Shimla. In so far as the violations pointed out by the petitioner in the petition are concerned, it has been stated that no such incident or violation of any law was brought to their notice save and except obstruction being caused by respondent No.9 in public way for which the respondent No.9 stands charge-sheeted.
4. Respondent No.3 i.e. Director of Industries, in its reply has averred that the road side workshops are not registered by General Manager, DIC, Shimla and have not been granted any kind of permission by the respondent. It has further been averred that the activities of denting and painting fall within the category of Micro ::: Downloaded on - 15/04/2017 19:38:03 :::HCHP 4 Service Enterprises in accordance with the provisions made under .
Section 7 (1) (b) of the Micro Small and Medium Enterprises Development Act, 2006 and in terms of Section 8 (1) (a) of the Act, it is incumbent upon the Micro Service Enterprises to file/obtain Entrepreneur Memorandum Part-I and Part-II from the office of the of General Manager, DIC, Shimla.
5. Respondent No.4 i.e. Pollution Control Board in its reply rt has averred that the business /alleged activity carried out on the road side by respondent No.9 is to be regulated by the HPPWD authorities/National Highway authority of India under the road side regulation Act. The allegation regarding structural safety of nearby building, alleged traffic and fire hazards do not pertain to the Board.
Insofar as the generation of noise pollution is concerned, it is averred that the site was inspected by the Environmental Engineer of the Pollution Control Board on 28.11.2015 and during inspection noise monitoring was also conducted. Results of noise monitoring were observed to be above the prescribed limits of 65dB(A) prescribed for Commercial Zone under Noise Pollution (Regulation and Control) Rules, 2000. But then it is clarified that in addition to the activity being carried out by respondent No.9, the other business activity including vehicular traffic on the National Highway also contributes to the higher noise level.
6. Respondent No.5 i.e. Municipal Corporation, Shimla has its own tale to tell by claiming that the building of the petitioner has been constructed prior to the merger of the area in the Municipal Corporation limits, therefore, the status of each building whether they ::: Downloaded on - 15/04/2017 19:38:03 :::HCHP 5 have been approved for commercial or domestic purposes are yet to .
be ascertained by conducting inspection of each building abutting the main highway. This would require considerable time as it is required to carry out the field survey and to verify the approvals. It is only after carrying out the field inspection that notices would be issued to the of building owner/occupier to produce the building sanctions and after receiving the necessary data, appropriate action as per relevant rt regulations governing construction and change of building use shall be initiated against the violators.
7. Respondent No. 8, Labour Inspector has admitted that large number of roadside denting and painting workshops have been established by the persons coming from other towns, but has denied that such shops are being run without any licence or registration sanctioned from the competent authorities in violation of law. It is further stated that most of the shops and commercial establishments are registered and duly licensed including respondent No.9.
8. Now, insofar as respondent No.9, the person who is actually carrying out the denting and painting work is concerned, his only case as set out in the reply is that he is doing the denting and painting work for the last more than 12 years and it is not he alone, who is doing the said work, but there are many others doing the similar work. He further claims that denting work is being carried out at a place more than 30 to 40 meters away while the premises in question are being used only for carrying out the painting work.
We have heard the learned counsel for the parties and have gone through the records of the case.
::: Downloaded on - 15/04/2017 19:38:03 :::HCHP 69. Evidently, the replies filed by all the respondents only .
reflect their lack of sensitivity and oblivious ignorance to the mandate of Constitution, more particularly, Articles 21, 48A and 51A(g) thereof.
10. The citizens of this country have a fundamental right to a wholesome, clean and decent environment. The Constitution of India, of in terms of Article 48A, mandates that the State is under Constitutional obligation to protect and improve the environment. By 42nd amendment rt to the Constitution, the Parliament, with an object of sensitizing the citizens of their duty, incorporated Article 51A therein requiring a citizen to protect and improve the natural environment. This led to framing of various laws in order to safeguard the environment.
11. Enjoyment of life and its attendant including right to live and human dignity encompasses within its ambit, protection and preservation of environment, ecological balance, free from pollution of air and water, sanitation without which life cannot be enjoyed.
Environmental, ecological, air, water, pollution etc. should be regarded as amounting to violative of Article 21. Hygienic environment is an integral part or facet of humane and healthy environment.
12. The Constitution mandates the State Government and the local bodies, not only to ensure and safeguard proper environment but also casts an imperative duty on them to take adequate measures to promote, protect and improve both the man-made and also the natural environment.
13. Article 21 of the Constitution of India reads thus:
"21. Protection of life and personal liberty. - No person shall be deprived of his life or personal liberty except according to procedure established by law."::: Downloaded on - 15/04/2017 19:38:03 :::HCHP 7
14. The right to life includes the right to a clean environment .
as it is only then that the people can enjoy the quality of life which is the essence of the right guaranteed under Article 21. Even the right to live in freedom from noise pollution has now come to be recognized an integral part of the fundamental right and, therefore, any unwanted, of unpleasant or obnoxious levels of noise would tantamount to violating the right of others to a peaceful, comfortable and pollution-free life rt guaranteed under Article 21. Thus, the right of an individual to healthy and clean environment including air, water and noise-free environment is of paramount consideration and it is impermissible for anyone or anybody to cause environmental pollution and violate the prescribed standards.
15. In Subhash Kumar vs. State of Bihar and others (1991) 1 SCC 598, the Hon'ble Supreme Court held that the right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution-free water and air for full enjoyment of life and if anyone endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.
16. In Vellore Citizens' Welfare Forum vs. Union of India and others (1996) 5 SCC 647, it was categorically held by the Hon'ble Supreme Court that the constitutional and statutory provisions protect a person's right to fresh air, clean water and pollution-free environment, but the source of the right is the inalienable common law or right of clean environment. It was further held that since our legal system has ::: Downloaded on - 15/04/2017 19:38:03 :::HCHP 8 been founded on the British common law, therefore the right of a .
person to a pollution-free environment is a part of the basic jurisprudence of the land.
17. In State of M. P. vs. Kedia Leather and Liquor Ltd. and others (2003) 7 SCC 389 it was held that the provision of Section 133 of of the Code of Criminal Procedure can be invoked to prevent public nuisance in case there was imminent danger to the property and rt consequential nuisance to the public. It was also held that hygienic environment was an integral facet of healthy life and the right to live with human dignity becomes illusory in the absence of humane and healthy environment. It is apt to reproduce paras 8 and 10 of the judgment which reads thus:
"8. Section 133 of the Code appears in Chapter X of the Code which deals with maintenance of public order and tranquility. It is a part of the heading 'public nuisance'. The term 'nuisance' as used in law is not a term capable of exact definition and it has been pointed out in Halsbury's Laws of England that :
"even at the present day there is not entire agreement as to whether certain acts or omissions shall be classed as nuisances or whether they do not rather fall under other divisions of the law of tort".
In Vasant Manga Nikumba and Ors. v. Baburao Bhikanna Naidu (deceased) by Lrs. and Anr. (1995 Supp.(4) SCC 54) it was observed that nuisance is an inconvenience which materially interferes with the ordinary physical comfort of human existence. It is not capable of precise definition. To bring in application of Section 133 of the Code, there must be imminent danger to the property and consequential nuisance to the public. The nuisance is the concomitant act resulting in danger to the life or property due to likely collapse etc. The ::: Downloaded on - 15/04/2017 19:38:03 :::HCHP 9 object and purpose behind Section 133 of the Code is essentially to prevent public nuisance and involves a sense of .
urgency in the sense that if the Magistrate fails to take recourse immediately irreparable damage would be done to the public. It applies to a condition of the nuisance at the time when the order is passed and it is not intended to apply to future likelihood or what may happen at some later point of time. It of does not deal with all potential nuisance, and on the other hand applies when the nuisance is in existence. It has to be noted that some times there is a confusion between Section 133 and Section 144 of the Code. While the latter is more general rt provision the former is more specific. While the order under the former is conditional, the order under the latter is absolute. The proceedings are more in the nature of civil proceedings than criminal proceedings.
10. The two statutes relate to prevention and control of pollution and also provide for penal consequences in case of breach of statutory provisions. Environmental, ecological air and water pollution amount to violation of the right to life assured by Article 21 of the Constitution of India, 1950 (in short "the Constitution"). Hygienic environment is an integral facet of healthy life. Right to live with human dignity becomes illusory in the absence of humane and healthy environment."
18. In M. C. Mehta vs. Union of India (2004) 12 SCC 118, the Hon'ble Supreme Court reiterated that the right to life is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution-free air for enjoyment of life. It was further observed that most vital necessities such as air, water and soil, having regard to right of life under Article 21 cannot be permitted to be misused and polluted so as to reduce the quality of life of others.
19. Thus, on the basis of the aforesaid exposition of law, it can safely be concluded that in a civilized society governed by the rule ::: Downloaded on - 15/04/2017 19:38:03 :::HCHP 10 of law, every citizen has a right to enjoy his/her property unfettered by .
interference, except in accordance with law. Any interference with this right of enjoyment without the sanction of the law cannot be countenanced by a court of law. Should such enjoyment of properties sanctioned by law be interfered with, it shall be the solemn duty of the of State to ensure that a citizen is permitted to live freely and fearlessly and enjoy the property in accordance with law.
20. rt In Noise Pollution (V), in Re: Forum, Prevention of Environmental and Sound Pollution vs. Union of India and another (2005) 5 SCC 733, the Hon'ble Supreme Court was dealing with a question as to whether freedom from noise pollution was a part of right to life under Article 21. It was observed that in modern days noise had become one of the major pollutants and had serious effects on human life. It was more than just a nuisance as it constitutes a real and present danger to people's health and could produce serious physical and psychological stress. It was further held that no one could compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels and thereby violating the right of others to a peaceful, comfortable and pollution free life guaranteed by Article
21. It was held:-
"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 right to life enshrined in Article 21 is not of mere survival or existence. It guarantees a right of person 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. The human life has its charm and there is no reason why the life ::: Downloaded on - 15/04/2017 19:38:03 :::HCHP 11 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 the noise as pollutant reaching him. No one 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 of 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 including the place and the time. rt
11. Those who make noise often take shelter behind Article 19(1) (a) pleading freedom of speech and right to expression. Undoubtedly, the freedom of speech and right to expression are fundamental rights but the rights are not absolute. Nobody can claim a fundamental right to create noise by amplifying the sound of his speech with the help of loudspeakers. While one has a right to speech, others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody can claim that he has a right to make his voice trespass into the ears or mind of others. Nobody can indulge into aural aggression. If anyone increases his volume of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels then the person speaking is violating the right of others to a peaceful, comfortable and pollution-free life guaranteed by Article 21. Article 19 (1) (a) cannot be pressed into service for defeating the fundamental right guaranteed by Article 21. We need not further dwell on this aspect. Two decisions in this regard delivered by High Courts have been brought to our notice wherein the right to live in an atmosphere free from noise pollution has been upheld as the one guaranteed by Article 21 of the Constitution. These decisions are Free Legal Aid Cell Shri Sugan Chand Aggarwal alias Bhagatji v. Govt. of NCT of Delhi and Ors., AIR 2001 Del. 455 and P.A. Jacob v. Superintendent of Police, Kottayam, AIR 1993 Ker 1. We have carefully gone through the reasoning ::: Downloaded on - 15/04/2017 19:38:03 :::HCHP 12 adopted in the two decisions and the principle of law laid down therein, in particular, the exposition of Article 21 of the .
Constitution. We find ourselves in entire agreement therewith.
II Noise as nuisance and health hazard
15. Noise is more than just a nuisance. It constitutes a real and present danger to people's health. Day and night, at home, of at work, and at play, noise can produce serious physical and psychological stress. No one is immune to this stress. Though we seem to adjust to noise by ignoring it, the ear, in fact, never rt closes and the body still responds-sometimes with extreme tension, as to a strange sound in the night.
16. Noise is a type of atmospheric pollution. It is a shadowy public enemy whose growing menace has increased in the modern age of industrialization and technological advancement. Although a soft rhythmic sound in the form of music and dance stimulates brain activities, removes boredom and fatigue, but its excessiveness may prove detrimental to living things. Researches have proved that a loud noise during peak marketing hours creates tiredness, irritation and impairs brain activities so as to reduce thinking and working abilities.
Noise pollution was previously confined to a few special areas like factory or mill, but today it engulfs every nook and corner of the globe, reaching its peak in urban areas. Industries, automobiles, rail engines, aeroplanes, radios, loudspeakers, tape recorders, lottery ticket sellers, hawkers, pop singers, etc., are the main ear contaminators of the city area and its market place. The regular rattling of engines and intermittent blowing of horns emanating from the caravan of automobiles do not allow us to have any respite from irritant noise even in suburban zones.
17. In the modern days noise has become one of the major pollutants and it has serious effects on human health. Effects of noise depend upon sound's pitch, its frequency and time pattern and length of exposure. Noise has both auditory and non-auditory effects depending upon the intensity and the ::: Downloaded on - 15/04/2017 19:38:03 :::HCHP 13 duration of the noise level. It affects sleep, hearing, communication, mental and physical health. It may even lead to .
the madness of people.
18. However, noises, which are melodious, whether natural or man-made, cannot always be considered as factors leading to pollution.
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19. Noise can disturb our work, rest, sleep, and communication. It can damage our hearing and evoke other psychological, and possibly pathological reactions. However, rt because of complexity, variability and the interaction of noise with other environmental factors, the adverse health effects of noise do not lend themselves to a straightforward analysis.
112. In P.A. Jacob v. the Superintendent of Police, it was said : (AIR p.1) "The right to speech implies, the right to silence. It implies freedom, not to listen, and not to be forced to listen. The right comprehends freedom to be free from what one desires to be free from. Free speech is not to be treated as a promise to everyone with opinions and beliefs, to gather at any place and at any time and express their views in any manner. The right is subordinate to peace and order. A person can decline to read a publication, or switch off a radio or a television set.
But, he cannot prevent the sound from a loudspeaker reaching him. He could be forced to hear what he wishes not to hear. That will be an invasion of his right to be let alone, to hear what he wants to hear, or not to hear, what he does not wish to hear. One may put his mind or hearing to his own uses, but not that of another. No one has a right to trespass on the mind or ear of another and commit auricular or visual aggression. A loudspeaker is mechanical device, and it has no mind or thought process in it. Recognition of the right of speech or expression is recognition accorded to a human faculty. A right belongs to human personality, and not to a mechanical device. One may put his faculties to reasonable uses. But, he cannot put his machines to any use he likes. He cannot use his machines to injure others. Intervention with a machine, is not intervention with, or invasion of a human faculty or right. No mechanical device can be upgraded to a human faculty. A computer or a robot cannot be conceded the right under Article 19 (though they may be useful to man to express his faculties). No more, a loudspeaker. The use of a loudspeaker may be incidental to the exercise of the right. But, its use is not a matter of right, or part of the right".
117. We have referred to a few and not all available judgments. Suffice it to observe that Indian Judicial opinion has been uniform in recognizing right to live in freedom from noise ::: Downloaded on - 15/04/2017 19:38:03 :::HCHP 14 pollution as a fundamental right protected by Article 21 of the Constitution and noise pollution beyond permissible limits as an .
in-road on that right. We agree with and record our approval of the view taken and the opinion expressed by the several High Courts in the decisions referred to hereinabove."
21. In Farhd K. Wadia vs. Union of India and others (2009) of 2 SCC 442, it was held by the Hon'ble Supreme Court that the interference by the Court in respect of noise pollution is premised on the basis that a citizen has certain rights being "necessity of silence", rt "necessity of sleep", "process during sleep" and "rest", which are biological necessities and essential for health. It was further held that silence is considered to be golden and considered to be one of the human rights as noise is injurious to human health which is required to be preserved at any cost.
22. In Ramlila Maidan Incident, in Re: (2012) 5 SCC 1, it was held that the citizens/persons have a right to leisure, to sleep, not to hear and to remain silent. It was further held that right to privacy is a fundamental right of the citizen being an integral part of Article 21 of the Constitution of India. Illegitimate intrusion into privacy of a person is not permissible as right to privacy is implicit in the right to life and liberty guaranteed under the Constitution. The Courts can always impose a penalty on disturbing peace of others.
23. Yet again in a recent decision in Anirudh Kumar vs. Municipal Corporation of Delhi and others (2015) 7 SCC 779, the Hon'ble Supreme Court while dealing with a Public Interest Litigation (PIL) on the ground of public health, safety and peace of local residents and safety of building, due to running of pathological lab in ::: Downloaded on - 15/04/2017 19:38:03 :::HCHP 15 residential building in the locality held that noise generated upto .
unpleasant or obnoxious levels violates the rights of the people to a peaceful, comfortable and pollution-free life guaranteed under Article 21 of the Constitution. It was held:
"53. The running the Pathological Lab by the respondent-owners air, sound pollution is created rampantly on account of which the of public resident health and peaceful has been adversely affected. Therefore, public interest is affected and there is violation of rule of law. Hence, we have examined this appeal on all aspects of the rt matter and on merits. This position of law is well settled in the catena of decisions of this Court.
24. The Government of India has enacted various legislations to ensure that the people residing in the country have an unfettered right to pollution free air, environment, water and also to ensure that the people are not exposed unpleasant or obnoxious levels of noise.
Some of these enactments are Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution), Act, 1981, the Environment (Protection) Act, 1986 and the Noise Pollution (Regulation and Control) Rules, 2000.
25. Apart from the above, Chapter XIV of the Indian Penal Code relating to an offence affecting the public health, safety, inconvenience, decency and morals vests with the police the power for initiating action against any person(s) causing public nuisance.
26. Adverting to the facts, it would be noticed that it is only after filing of the reply that a licence has been granted by respondent No.8 to respondent No.9 under the Himachal Pradesh Shops and Commercial Establishments Act, 1969 (for short 1969 Act") on 7.10.2015. However, it would still have to be determined as to whether ::: Downloaded on - 15/04/2017 19:38:03 :::HCHP 16 the premises where the painting work (if not denting) is being carried .
out, falls under the purview of 1969 Act.
27. Section 2 (iv) of the Act, 1969, defines "commercial establishment" and means:-
"any premises wherein any business, trade or profession is carried on for profit, and includes journalistic or printing of establishment and premises in which business of banking, insurance, stocks and shares, brokerage or produce rt exchange is carried on or which is used as hotel, restaurant, boarding or eating house, theatre, cinema or other place of public entertainment or any other place which the Government may declare, by notification, to be a commercial establishment for the purposes of this Act."
Likewise "shop" has been defined in Section 2 (xxvii) means:
"any premises where any trade or business is carried on or where services are rendered to customers, and includes offices, store-rooms, godowns, sale depots or warehouses, whether in the same premises or otherwise, used in connection with such trade or business, but does not include a commercial establishment or a shop attached to a factory where the persons employed in the shop are allowed the benefits provided for workers under the Factories Act, 1948 (Central Act, 63 of 1948)."
28. A similar question came up before the Hon'ble Supreme Court in Kalidas Dhanjibhai vs. The State of Bombay AIR 1955 SC 62 and it was held that the "workshop" would not be covered under the definition 'shop' as there was no buying or selling in the premises.
29. In view of the aforesaid exposition of law, respondent No.8 had no jurisdiction or authority to have registered the premises of respondent No.9 under the 1969 Act, that too, when this Court was ::: Downloaded on - 15/04/2017 19:38:03 :::HCHP 17 already seized of the matter. That apart, the action of respondent No.8 .
clearly reflects that he without even caring to physically inspect the premises so as to see the nature of these premises, the activities being carried out therein, has straightway proceeded to register the same under the 1969 Act, which is only indicative of the casual and callous of manner in which the respondent No.8 has discharged his official duties.
30. rt Here, even the stand of the Pollution Control Board cannot also be countenanced for the simple reason that once its official had proceeded to actually inspect the premises, then we see no reason why only the monitoring under the Noise Pollution (Regulation and Control) Rules, 2000 had been carried out, when admittedly, the area in question is one where denting and painting work on large scale is being carried out on the national highway abutting the premises of the petitioner. In such scenario, we fail to understand as to how the extensive air and environmental pollution being generated there has gone totally unnoticed. We are at a complete loss to understand and appreciate as to how the toxic and noxious material of paint being emitted from the nozzle of the spray gun which is otherwise highly volatile apart from being toxic and having very strong pungent odour, which adversely affects the quality and ambiance of the air has gone totally unnoticed.
31. The case of the Municipal Corporation is also no better as inspite of passage of 12 years of the merger of the area in question with the municipal limits, it has failed to get the records from the Town and Country Planning Department. We are at a complete loss to ::: Downloaded on - 15/04/2017 19:38:03 :::HCHP 18 understand as to how in absence of any record the taxes in these .
areas are being collected and at what rate, whether it is commercial or domestic? This only indicates that there is a total lack of co-ordination and cooperation amongst the different organs, wings, departments and functionaries of the Government.
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32. As is evident from the aforesaid discussion, here is a case which clearly reflects total insensitivity and callousness on the part of rt the respondents in dealing with the cases of the most cherished of all fundamental rights i.e. Article 21 of the Constitution of India. We are constrained to observe that entire efforts made in furtherance to Articles 21, 48A and 51A (g) of the Constitution by introducing various legislations to give the citizen a right to enjoy a pollution free life (some of which we have noticed above) has been given a complete go-bye at the hands of those responsible for implementing the same.
33. In such circumstances we are left with no option but to allow the writ petition and consequently we proceed to pass the following directions:
(i) that the respondent No.9 is restrained from carrying out the denting and painting works in the premises in question;
(ii) the licence granted by respondent No.8 to respondent No.9 for the purpose of denting and painting under the Himachal Pradesh Shops and Commercial Establishments Act, 1969, is quashed and set-aside. However, in case respondent No.9 changes his trade, profession, business or vocation which may fall under the provisions of 1969 Act, he shall be free to apply for a licence, which needless ::: Downloaded on - 15/04/2017 19:38:03 :::HCHP 19 to say shall be considered by respondent No.8 strictly in .
accordance with the provisions of law, being totally uninfluenced by the observations made in this judgment.
(iii) the respondents No. 1 to 8 are directed to ensure that no vehicles are parked near the premises of the petitioner for of denting and painting and other repair works and they are further directed to remove all junk vehicles along the road-
(iv) rt sides.
the respondents No. 1 to 8 are directed to regularly monitor the quality and ambiance of the quality of air and noise levels as per the mandate of the various enactments referred to in para 24 supra.
(v) the respondent No.1 is directed to ensure that the records of the subsequently merged area with the Municipal Corporation are handed over to it within a period of three months, whereafter the Municipal Corporation will take follow up action in terms of its reply within a further period of six months.
With the aforesaid observation, the petition is disposed of so also the pending application(s) if any, leaving the parties to bear their costs.
( Mansoor Ahmad Mir), Chief Justice.
December 31, 2015. (Tarlok Singh Chauhan), (GR/krt) Judge.
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