Kerala High Court
Dr.T.R.Chandramohan vs The Commissioner Of Police on 11 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 11TH DAY OF MARCH 2022 / 20TH PHALGUNA, 1943
WP(C) NO. 24833 OF 2015
PETITIONER:
DR.T.R.CHANDRAMOHAN
RAJALAKSHMI, M.G NAGAR 113,
KILIKOLLOOR P.O, KOLLAM 691 004.
BY ADV SRI.T.R.RAJAN
RESPONDENTS:
1 THE COMMISSIONER OF POLICE
KOLLAM, PIN 691 001.
2 THE SUB INSPECTOR OF POLICE
KILIKOLLOOR POLICE STATION,
KOLLAM, PIN 691 004.
3 THE ENVIRONMENTAL ENGINEER
THE KERALA STATE POLLUTION CONTROL BOARD,
KOLLAM, PIN 691 013.
4 THE KUZHIKANTOM SREE KRISHNA SWAMY TEMPLE
REPRESENTED BY ITS OWNER SAVITHRI,
KOLLAM, PIN 691 004.
5 THE ASSISTANT COMMISSIONER OF POLICE
(SPECIAL BRANCH), KOLLAM.
R3 BY SRI. M.R. ARUN KUMAR, SC
R1, R2 & R5 BY SRI. JOSHY THANNIKKAMATTAM, GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 11.03.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) No.24833 of 2015 2
VIJU ABRAHAM, J.
..................................................
W.P.(C) No.24833 of 2015
..................................................
Dated this the 11th day of March, 2022
JUDGMENT
The above writ petition is filed aggrieved by the inaction on the part of respondents 1, 3 and 5 to avert noise pollution caused by the 4th respondent.
2. The averments in writ petition in brief are as follows: The petitioner is a pediatrician having his consultation clinic attached to his home. The 4th respondent is a temple by the name Kuzhikantom Sree Krishna Swamy Temple which is situated adjacent to the petitioner's property and is situated 3 meters away. The area is thickly populated and is one coming under silent zone as per the Noise Pollution (Regulation and Control) Rules, 2000. (hereinafter referred to as 'Rules 2000')The grievance of the petitioner is that the 4 th respondent temple authority is operating loudspeakers at high volumes from early morning at 5:00 a.m. and continue till 8.30 p.m. At around 6:30 p.m. they start beating drums and the same goes till 8.00 p.m along with the ringing of bells and the blowing of conches. At times firecrackers are also used. All these have made it practically impossible for the petitioners and his family members to lead a peaceful life at their residence. In fact, the noise generated from WP(C) No.24833 of 2015 3 the 4th respondent temple premises exceeds the limits prescribed in the Noise Pollution (Regulation and Control) Rules, 2000.
3. It is further contended that even though the petitioner approached respondents 1 to 3 several times pointing out the illegality committed by the 4th respondent temple, no action was taken in the matter. Therefore, the petitioner was constrained to approach this court filing W.P.(C) No. 1569 of 2014 which was disposed of as per Exhibit P1 judgment dated 17.01.2014 whereby direction was issued to the 1st respondent to consider and pass orders on Exhibit P2 representation dated 01.01.2014 filed by the petitioner. In spite of specific direction issued by this court, no action was taken by the 1 st respondent and in the said circumstance petitioner moved this court again by filing C.C.C No. 1348 of 2014 and while the said Contempt of Court Case was pending consideration, the 1st respondent passed Exhibit P3 order dated 10.01.2015. The said order reads as follows:
"As per the order of the Hon'ble High Court of Kerala Dated 17.01.14 in WP(C) No.1569 of 2014, a meeting of the petitioner, Dr.Chandramohan and the temple authorities of Kuzhikandam Sree Krishna Swamy Temple (respondent) was convened on 22.04.2014 in the presence of Environment Engineer and concerned Police Officials. In the said meeting both the parties were heard and the temple authorities agreed to stop all the activities which may cause noise pollution. Now on the receipt of the petition alleging contempt of the order of the Hon'ble High Court of Kerala filed by Dr.Chandramohan, another meeting of the petitioner and the Temple authorities (respondent) was convened on 10.01.2015. In the meeting, the temple authorities agreed to remove the large bell causing annoyances to the petitioner and that only a small speaker will be used in the temple premises and it will be installed to the opposite direction of the petitioner's house. In the above mentioned circumstances the meeting is WP(C) No.24833 of 2015 4 concluded with strict instructions to the Temple authority (respondent) that they shall not deviate from the assurance given by them. SHO Kilikolloor and Assistant Commissioner of Police Special Branch will supervise the proper implementation of the same."
A reading of Exhibit P3 would reveal that in the meetings convened by the 1st respondent, the 4th respondent temple authorities have agreed to stop all activities which may cause noise pollution and that strict instructions have been given to the 4th respondent not to deviate from the assurance given and the 5th respondent was directed to supervise the proper implementation of the same.
4. It is the contention of the petitioner that the 4th respondent again installed multiple loudspeaker boxes and started other noise polluting activities like the beating of drums, ringing of bells, etc., in connection with the annual festival which commenced on 25.04.2015. Even though the police authorities were duly informed, no action whatsoever was taken in the matter. In the said circumstance, the petitioner again submitted Exhibit P4 representation dated 30.04.2015 before the 1st respondent bringing to the notice the illegality committed by the 4th respondent and requested to prohibit the use of loudspeakers and also sought for prosecuting the 4th respondent as per Rules,2000 for the alleged violation. In spite of the same, no action was taken by the 1st respondent and in the said circumstance the petitioner has approached this Court by filing the above writ petition.
5. Notice to the respondents was duly served and it is seen that WP(C) No.24833 of 2015 5 there is no appearance for the 4th respondent and that none of the respondents have filed their counter-affidavits though the above writ petition was filed as early as in 2015.
6. It is contended by the petitioner that he is living with his family and is running a clinic at his home and that he has every right to have a peaceful living without any noise pollution from the 4 th respondent. It is contended that the noise polluting activities of the 4 th respondent has reached such a stage where it is practically impossible for the petitioner and his family members to lead a peaceful life and to run his clinic without any disturbance.
7. As is seen from the averment in the writ petition the main complaint of the petitioner as against the 4 th respondent is the illegal use of loudspeakers and as regards other noise generating activities like the beating of drums, usage of firecrackers, ringing of bells, and blowing of conches. A perusal of Exhibit P3 order issued by the 1st respondent shows that the 4th respondent had agreed to remove the large bell causing annoyance to the petitioner and that only a small speaker will be used in the temple premises and the same will be installed in the opposite direction of that of the petitioner's house. Grievance raised by the petitioner is that the said agreement has been patently violated by playing music using sound amplifiers, beating drums, and conducting musical performances in violation of the law and that the respondents are not WP(C) No.24833 of 2015 6 taking any steps to prohibit such activities.
8. The specific case of the petitioner is that he is running a clinic in his residential house and that the area in question is a thickly populated area and is in a silent zone as per Noise Pollution (Regulation and Control) Rules, 2000. It will be profitable to discuss the various provisions in Noise Pollution (Regulation and Control) Rules, 2000 in this regard. The said Rule was made by the Central Government to regulate and control of noise producing and generating sources with the objective of maintaining the ambient air quality standards in respect of noise. Petitioner contended that he is running a clinic and going by Rule 2 (f) of the Rules 2000 a clinic also comes under the definition of "hospital." Rule 4 specifically mandates that noise level in any area/zone shall not exceed the ambient air quality standards in respect of noise as specified in Schedule and it shall be the responsibility of the authority (authority defined under Rule 2 (c) of the Rules 2000) for enforcement of noise pollution control measures and the due compliance of ambient air quality standards in respect of noise. It is also contended by the petitioner that as per Rule 5 a loudspeaker or a public address system shall not be used except after obtaining written permission from the authority and that during some special occasions like festivals loudspeakers or public address systems shall be permitted to be used only after getting specific permission in this regard. It is contended by the petitioner that as per WP(C) No.24833 of 2015 7 Rule 6 of Rules 2000, any violation as enumerated in the said rules shall be liable for the penalty provided under the Environment (Protection) Act, 1986. It is further contended by the petitioner that as per Rule 8, the authority as defined under Rule 2(c) has ample power to issue directions to prevent, prohibit, control, and regulate any activities of using sound, whenever a complaint is received regarding any annoyance, disturbance, discomfort or injury or risk to the person who dwells or occupies property in the vicinity. Rule 8 of the Rules 2000 is extracted below:
"8. Power to prohibit etc. Continuance of music sound or noise.-(1)If the authority is satisfied from the report of an officer-in-charge of a police station or other information received by him including from the complainant that it is necessary to do so in order to prevent annoyance, disturbance, discomfort or injury or risk person who dwell or occupy property on the vicinity, he may, by a written order issue such directions as he may consider necessary to any person for preventing, prohibiting, controlling or regulating:-
(a) The incidence or continuance in or upon, any premises of -
(i) Any vocal or instrumental music;
(ii) sounds caused by playing, beating, clashing, blowing or use in any manner whatsoever of any instrument including loudspeakers, public address systems, horn, construction equipment, appliance or apparatus or contrivance which is capable of producing or reproducing sound;
(iii)sound caused by bursting of sound emitting fire crackers, or
(b) The carrying on in or upon, any premises of any trade, avocation or operation or process resulting in or attended with noise.
(2) The authority empowered under sub-rule (1) may, either on its own motion, or on the application of any person aggrieved by an order made under sub-rule (1), either rescind, modify or alter any such order:
Provided that before any such application is disposed of, the said authority shall afford to the applicant and to the original complainant, as the case may be an opportunity of appearing before it either in person or by a person representin him and showing cause against the order and shall, if it rejects any such application either wholly or in part, record its reasons for such rejection."WP(C) No.24833 of 2015 8
9. The petitioner also contended that the ambient air quality standards in respect of noise are detailed in the schedule appended to the Rules which is extracted below:
AMBIENT AIR QUALITY STANDARDS IN RESPECT OF NOISE Area Code Category of Limits in dB(A) Leq* Area/zone Day Time Night Time (A) Industrial area 75 70 (B) Commercial area 65 55 (C) Residential area 55 45 (D) Silence Zone 50 40 Note. 1. Day time shall mean from 6.00 a.m. to 10.00 p.m.
2. Nigh time shall mean from 10.00 p.m. to 6.00 a.m.
3. omitted
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 level of sound in decibels on scale A which is relatable to human hearing. A "decibel" is a unit in which noise is measured.
"A", 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 specific period."
10. Based on these averments as detailed above, the petitioner contended that the authority is fully empowered to prevent any activities undertaken in violation of the Rules 2000, and in spite of a specific complaint submitted by him no action has been taken in this regard. Petitioner also relies on the judgment of this court in Anoop Chandran v. Union of India and Others, 2021 (5) KLT Online 1200 and contended that specific directions have been issued by this court to various authorities under the State Government to scrupulously implement the statutory provision to regulate and control noise pollution. WP(C) No.24833 of 2015 9 Paragraph 12, 13 and 14 is extracted below:
"12. In the light of the statutory provisions to regulate and control noise pollution, decisions of the Hon'ble Supreme Court and High Courts, guidelines and circulars issued under the relevant statutes, it is imperative on the part of the Chief Secretary to the Government of Kerala; Additional Chief Secretary, Department of Home, Government of Kerala; State Police Chief, Government of Kerala; Kerala State Pollution Control Board, represented by its Member Secretary; District Collectors and District Magistrates of all the districts of Kerala; Secretaries of the Travancore Devaswom Board, Cochin WP(C): 7261 of 2017
-46- Devaswom Board, Guruvayoor Devaswom Board, Koodalmanikyam Devaswom, Malabar Devaswom Board and Kerala State Wakf Board, to scrupulously implement the statutory provisions, the decisions stated supra, and the guidelines and circulars issued under various enactments, so as to regulate and control noise pollution by the use of loud speakers.
13. Added further, we also direct the above said respondents that if there is any violation of the statutory provisions / instructions issued from time to time, strict action should be taken against the violators.
14. Authorities are directed to grant permission for the use of loudspeakers under the statutory provisions only, and if any permission is granted, there shall not be any violation to the statutory provisions.
11. It is further contended that it is settled by the various decisions of the Apex Court including Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare Assn., (2000) 7 SCC 282 that religious activities can be permitted only by observing the various pollution control norms.
12. It is submitted by the counsel for the petitioner that the petitioner is aged around 61 years and is living with his family in his residential home and also running a pediatric clinic in the said premises. Petitioner has every right to have a peaceful living in his residential home and in the clinic attached to the same without any excessive sound or WP(C) No.24833 of 2015 10 noise pollution. Such right necessarily flow from Article 21 of the Constitution of India which guarantees protection of life and personal liberty and it is well settled by the decisions of the Apex Court that the right to life enshrined in Article 21 is not mere survival or existence, but it is a guarantee to a citizen to have a life with human dignity. Article 48A coming under the Directive Principles of State Policy, which are regarded as fundamental in the governance of the country, mandates that State shall endeavour to protect and improve the environment which includes providing a pollution-free environment to its citizens. Further, it is the fundamental duty of every citizen to protect and improve the natural environment as mandated in Article 51A (g) of the Constitution of India. Therefore, it is the duty of the respondents herein to provide the petitioner to have a pollution-free environment and it is the complaint of the petitioner that the authorities are not taking any steps in furtherance of the same. In the facts and circumstances of this case, I deem it appropriate to direct the official respondents to look into the grievances raised by the petitioner and take appropriate action so as to redress the grievances raised by the petitioner. Therefore, I dispose of the above writ petition with the following directions:
(i) The 4th respondent shall strictly abide by the undertaking given in the meeting convened by the 1st respondent on 22.04.2014 and on 10.01.2015 as is evident from Exhibit P3 WP(C) No.24833 of 2015 11 order No. G1-7505/14 QC dated 10.01.2015 issued by the 1 st respondent.
(ii) The 1st respondent shall see that the direction given in Exhibit P3 order that the 2nd and 5th respondents will supervise the proper implementation of the undertaking given by the 4th respondent is scrupulously followed in its letter and spirit and periodic inspections shall be conducted by the said respondents to avoid any violation in this regard and to take appropriate action in the case of violation.
(iii) The petitioner shall submit a comprehensive complaint before respondents 1 and 3 detailing the various violations, along with the copy of this Judgment.
(iv) On receipt of the same, the 1st and 3rd respondents shall immediately conduct an inspection in the premises of the 4 th respondent to enquire into the written complaint submitted by the petitioner and ensure that the provisions of the Noise Pollution (Regulation and Control) Rules, 2000 and various orders and circulars issued in this regard are strictly complied with, including as to whether ambient air quality standards in respect of noise are maintained by the 4th respondent and also as to whether loudspeakers or any public address system is used by the 4th respondent without WP(C) No.24833 of 2015 12 obtaining written permission from the authority and any equipments not permitted as per Rules, 2000 is used by the 4th respondent. In case any violations are found during such inspection, necessary remedial measures and strict action shall be taken by 1st and 3rd respondents immediately as per the provisions of the Noise Pollution Regulation and Control Rules, 2000 and various orders and circulars issued in this regard so as to avert any kind of pollution affecting the petitioner.
(v) Needless to say, any final decision/directions in this regard shall be taken by the 1st and 3 rd respondent only with notice and after affording an opportunity of being heard to the petitioner as well as the 4th respondent.
With the above said directions, the above writ petition is disposed of.
Sd/-
VIJU ABRAHAM, JUDGE cks WP(C) No.24833 of 2015 13 APPENDIX OF WP(C) 24833/2015 PETITIONER EXHIBITS EXHIBIT P1. COPY OF THE JUDGMENT DATED 17.1.14 OF THIS HONOURABLE COURT IN WPC 1569 OF 2014.
EXHIBIT P2. COPY OF THE REPRESENTATION DATED 1.1.04 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT EXHIBIT P3. COPY OF THE ORDER DATED 10.1.15 PASSED BY THE IST RESPONDENT.
EXHIBIT P4. COPY OF THE PETITION DATED 30.4.15 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT.