Calcutta High Court (Appellete Side)
For The vs Union Of India & Ors.) Reported In on 12 March, 2010
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose
1
AST 81 of 2010
01 12.03. A.S.T. 81 of 2010
10
Mr. Pratap Chatterjee,
Mr. Ramavatar Ginodia,
Mr. Ranjan Bachawat,
Mr. Sanjoy Ginodia,
Mr. Manoj Kumar Piwali,
Mr. Rudeamann Bhattacharyya,
Ms. Preetu Agarwal,
Mr. Pritwiraj Sinha,
Mr. Sayan Rai Chowdhury,
Mr. Subhasis Sengupta,
Mr. Dhrubrata Ghosh.
...For the Petitioners.
Mr. Balai Chandra Ray ...Ld. Adv. General,
Mr. Sandip Srimani. ... Ld. Addl. G.P.
Mr. Ashim Kumar Chatterjee,
Mr. Suman Ghosh,
Mr. Samiran Giri.
... For the State.
Mr. Abhijit Chatterjee,
Mr. Amitesh Banerjee,
Mr. B. Boral.
... For Respdt. No. 10.
Mr. Kallol Basu
...For the WBPCB.
Heard Mr. Chatterjee, learned counsel for
the petitioner and the learned Advocate
General for respondent No. 1, State of West
Bengal and respondent Nos. 4, Chief Law Officer, Department of Environment, Government of West Bengal and respondent Nos. 5 to 9, who were officers of the State 2 AST 81 of 2010 Government and Mr. Basu, learned counsel for respondent No. 2, West Bengal Pollution Control Board and its member-secretary, respondent No. 3 on the question of interim relief.
What is challenged in this petition under Article 226 of the Constitution is the instructions contained in the letter dated 24th February, 2010 from the Chief Law Officer, Department of Environment and Member- Secretary, State Noise Monitoring Committee to Secretary, Cricket Association of Bengal, Eden Gardens, Kolkata regarding control of noise pollution during IPL Cricket Match at Eden Gardens. The letter reads as under:-
"The Secretary, Cricket Association of Bengal, Eden Garden, Kolkata.
Sub: Control of noise pollution during IPL Cricket Match in Eden Garden.
Sir, With reference to the above I am directed to inform you that in the State of West Bengal, Secondary Examination is going on and therefore, open air use of microphone is strictly prohibited as per order of the Hon'ble High Court, Calcutta.
Accordingly, you are requested to arrange function in 3 AST 81 of 2010 connection with the ensuing cricket tournament maintaining the noise level i.e. noise should not travel outside the stadium and the same should not go beyond 55 dB(A) in the ambient level.
Further, you are requested not to use any fireworks which generate noise level more than 90 dB(A) from 5 meters of the bursting point.
Aforementioned regulations need to be adhered to strictly by the orgnizers."
The petitioners have also challenged the statutory Circular dated 12th February, 2010 in so far as it sought to be applied to the cricket match at Eden Gardens, Kolkata. The relevant portion of the Statutory Circular directs all concerned not to issue any permission of issue any permission for use of microphones, loudspeakers, sound boxes or Amplifiers in open air functions before three days of the commencement of the Secondary, Higher Secondary and Council Examinations, till such examinations are over. It is all the District Magistrate, District Superintendents of Police, Deputy Commissioner of Police, Kolkata are requested to instruct the concerned authorities not to allow use of any microphone, loudspeaker, sound box or amplifier within 100 metres of any 4 AST 81 of 2010 examination centre.
It is the case of the petitioners that upon coming to learn about the above instruction, the petitioners requested the respondent No. 4, the author of the letter as under:-
" As the Eden Gardens is situated in a non-residential area and there are no schools in the vicinity, we request you to allow us to use microphones and fireworks on the days when Kolkata Knight Riders hosts the matches which are listed below:
March 14th and 16th April 1st, 4th, 7th, 17th and 19th. Your kind co-operation is earnestly solicited".
Learned counsel for the petitioners submits that in spite of the aforesaid specific request made by the petitioner, pointing out that Eden Gardens is situated in a non- residential area and there are no school in the vicinity, the petitioners had not been granted any permission to use microphones. The learned counsel further submits that the petitioners are really pressing their challenge to the first and second paragraphs of the letter dated 24th February, 2010 which was received by them very recently and that as far as the 5 AST 81 of 2010 last instruction not to use any fireworks generating noise level more than 90 dB(A) are concerned, the petitioners propose to use fireworks which emit more light and noise and therefore, the petitioner do not propose to use fireworks more than 90 decibel from 5 meters of the bursting point.
Learned counsel for the petitioner has sought to raise various legal contentions which need not be examined at this stage because the affidavit-in-opposition shall be filed within four weeks from today and the affidavit-in- reply, if any, shall be filed within two weeks thereafter.
Learned Advocate General as well as the learned counsel for the Pollution Control Board submit that this Court itself had passed an order and the Hon'ble Supreme Court has also rendered judgment for prevention and regulation of noise pollution and, therefore, the impugned instructions are in conformity with the directions given by this Court as well as the judgment of the Apex Court (Farhad K. 6 AST 81 of 2010 Wadia -vs- Union of India & Ors.) reported in (2009) 2 S.C.C. 442. It is submitted that even though there is no school or residential area around the Eden Gardens, Raj Bhawan and the High Court are within the vicinity of Eden Gardens. Reliance is also placed on the Notification dated 27th January, 2006 of the State Government in the Department of Environment issued under Rule 3(2) of the Noise Pollution (Regulation & Control) Rules, 2000 wherein the State Government has declared an area of 100 metres surrounding Raj Bhavan as 'silence zone' from the date of publication of the Notification. It is stated that this is done with a view to regulating and controlling ambient air quality standards in respect of noise. Learned Advocate General further submits that the High Court is in the vicinity of the Eden Gardens and the High Court is also in the silence zone and, therefore, also the instructions are not in violation of any legal provisions, but are in conformity with the relevant Circulars.
Mr. Chatterjee, learned counsel for the 7 AST 81 of 2010 petitioner submit that even in a decision of the Apex Court in (Farhad K. Wadia -vs- Union of India & Ors.) (supra) the directions of this Court are quoted in paragraph 23 and it is specifically mentioned as under:-
" ( c ) Cultural programmes in open air may be held excepting at least before three days of holding Board/Council Examinations to till examinations are completed in residential areas or areas where education institutions are situated.
(d) The distance of holding such functions from the silence zones should be 100 metres and in so far as schools, colleges, universities, courts are concerned, they will be treated as silence zones till the end of office hours and/or the teaching hours. Hospitals and some renowned important nursing homes will be treated as silence zones round the clock".
It is submitted that since there are no residential area or areas where educational institutions are situated in the vicinity of the Eden Gardens, direction no. ( c ) would not apply. As regards the direction (d) it is stated that as far as High Court is concerned, it could be in the silence zone till the end of the office hours, i.e. 4-30 p.m. and that therefore, there could be no objection to the permission for use of microphones and sound systems being granted on days when the High Court is not 8 AST 81 of 2010 working and even on holidays and working days after 4-00 P.M. Having heard the learned counsel for the parties, we are of the view that the petitioners have made out strong prima facie case for granting interim relief of the first and second paragraphs of the direction. As far as the third para of the impugned letter dated 24th February, 2010 is concerned, we record the statement made by the learned counsel for the petitioners that the petitioners shall permit to use the fireworks which generate more light than noise and that they shall not use the fireworks which generate noise level more than 90 decibel from 5 metres of the bursting point.
There shall be an order in terms of prayer
(j).
The petition shall be listed for hearing on 11th June, 2010.
Photostat plain copy of this order duly countersigned by the Assistant Registrar 9 AST 81 of 2010 (Court) be given to the learned counsel for the parties on usual undertaking.
(MOHIT S. SHAH, CHIEF JUSTICE) (PINAKI CHANDRA GHOSE, J.)