Madras High Court
M.Duraisamy vs The District Collector on 27 October, 2021
Author: S.M. Subramaniam
Bench: S.M. Subramaniam
W.P.No.32832 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.10.2021
CORAM :
THE HONOURABLE MR. JUSTICE S.M. SUBRAMANIAM
W.P.No.32832 of 2016
M.Duraisamy ... Petitioner
Vs.
1.The District Collector,
Namakkal District,
Namakkal.
2.The Revenue Divisional Officer,
Tiruchengode Taluk,
Namakkal District.
3.The Commissioner,
Pallipalayam Municipality,
Pallipalayam.
4.Ashraqmia
Majith Gurukkal
Komarapalayam Road,
Agraharam Post,
Pallipalayam, Trichengode Taluk,
Namakkal District.
5.The Chairman/Member Secretary,
Tamil Nadu Pollution Control Board,
Anna Salai, Guindy,
Chennai – 32. ... Respondents
[R5 suo motu impleaded vide order dated 26.10.2021
made in W.P.No.32832 of 2016]
https://www.mhc.tn.gov.in/judis/
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W.P.No.32832 of 2016
Prayer : Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Mandamus directing the respondents 1 to 3
herein to take appropriate action against the 4th respondent and thereby
prevent the 4th respondent from using high Volume speaker in the early
morning and night hours in their mosque by considering petitioner's notice
and representation dated 23.07.2015 and 02.07.2016 respectively.
For Petitioner : Mr.R.Marudhachalamurthy
For R1 to R3 : Mr.C.Kathiravan
Government Advocate
For R4 : No appearance
For R5 : Mrs.Shanmugavalli Sekar
for Tamil Nadu Pollution
Control Board
ORDER
(Through Video Conferencing) The writ petition on hand has been instituted to direct the respondents 1 to 3 to take appropriate action against the 4th respondent and thereby, prevent the 4th respondent from using high volume speakers in the early morning and night hours in their Mosque, by considering petitioner's notice and representation, dated 23.07.2015 and 02.07.2016, respectively. https://www.mhc.tn.gov.in/judis/ Page 2 of 22 W.P.No.32832 of 2016
2.The grievance of the petitioner is that he is residing at Door No.39, Komarapalayam Road, Agraharam Post, Pallipalayam, Kumarapalayam Taluk, Namakkal District. The 4th respondent Mosque situated nearby gives sermon after 10.00 p.m. and before 05.00 a.m. in the loudspeaker in high volume. The petitioner, at the time of filing of the writ petition, was aged about 68 years, was unable to sleep due to the noise created by the 4th respondent, as the petitioner states the noise created nuisance. Thus, the petitioner sent legal notice through his counsel on 23.07.2015. On receipt of his notice, the 1st respondent/District Collector directed the Superintendent of Police, Namakkal, to take appropriate action. Despite the instructions provided, the 4th respondent Mosque has continued its activity of creating noise pollution, which caused mental agony to the petitioner. The Inspector of Police, Pallipalayam, in turn, informed the petitioner to approach the appropriate authorities to work out the remedy. In view of the fact that the authorities expressed their inability to control the irregularities and illegalities, the petitioner is constrained to move the present writ petition. https://www.mhc.tn.gov.in/judis/ Page 3 of 22 W.P.No.32832 of 2016
3.The larger issue to be considered by this Court is about the religious right to be exercised by the citizen under Article 25 of the Constitution of India. Article 25 sub-clause (1) unambiguously stipulates that subject to public order, morality and health and to the other provisions of Part III, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. Thus, the fundamental right under Article 25 of the Constitution of India is subject to public order, morality and health.
4.Right to life under Article 21 is an absolute fundamental right and exercise of fundamental right under Article 25 is undoubtedly subject to the right to life enunciated under Article 21 of the Constitution of India. Thus, every citizen while exercising the right under Article 25 is duty bound to borne in mind that the right to life of other citizen is to be respected. In the event of any violations, such violations or otherwise are actionable. Thus, Article 25 imposes certain conditions for exercise of religious rights subject to public order, morality and health includes many issues in the interest of public and the Authorities Competent in the event of violations are empowered to initiate action. Thus creating nuisance is https://www.mhc.tn.gov.in/judis/ Page 4 of 22 W.P.No.32832 of 2016 an offence punishable under the Indian Penal Code. Noise pollution over and above the prescribed level is also an offence which all are actionable under the relevant provisions of the Act and Rules.
5.No person can be allowed to commit any illegality merely on the ground of sentiments of the people or under the guise of religious rights, any such sentiments leading to illegality can never be tolerated by the State and its Authorities. Any leniency would lead to infringement of fundamental rights of the other citizen and therefore, the State is duty bound to ensure that all such religious rights are being exercised by any citizen in the manner contemplated and to the extent permissible under the Constitution of India. Merely by creating sentiments in the public or in any religious places, no person can be allowed to carry on any such illegal activities or otherwise. Encroachments, usage of loudspeakers causing disturbance and nuisance are to be viewed seriously and all necessary actions are to be initiated for the purpose of restraining such persons from creating such nuisances or disturbances to the public at large.
6.Unity in diversity is the principle enunciated under the Indian Constitution. Unity can be preserved only when the Authorities controlled https://www.mhc.tn.gov.in/judis/ Page 5 of 22 W.P.No.32832 of 2016 the illegalities being committed in the name of the religion or otherwise. Thus, the religious rights are subject to conditions and subject to the rights of the other citizen and hence, it is to be borne in mind that religious right under Article 25 can never be an absolute fundamental right and subject to the rights of other citizen and subject to the laws in force. The laws enforceable are to be considered by this Court.
7.Each word in Article 25 denotes and provides larger implications and rights of the citizen. When freedom to exercise religious right is subject to public order. Likelihood of disputes, likelihood of religious disheartening and various other related acts are to be considered. While considering application for the purpose of grant of permission for construction of religious institutions or conduct of religious activities, morality perhaps would provide and keeping all other aspects, health is of more importance. Now health being an integral part of Article 21 of the Constitution of India, the rights of children, sick and aged people and the rights of citizen in general for good health are all to be taken into consideration.
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8.In our country, it is most common that many such Religious Institutions are causing nuisance and disturbances. Imagine a situation of any person after hard work going to bed for sleep and during mid night or early morning if he is disturbed on account of usage of loudspeaker certainly it creates not only mental agony but also leads to mental depression. Thus, peaceful living and health can be ensured only if such irregular and illegal activities are controlled by the Authorities. Every citizen has got fundamental right of peaceful living and health being integral part of Article 21 which provides right to life. Thus the Authorities must ensure that such valuable right to life for all the citizen is protected and it is the duty of the State to provide such protection to every citizen of this Great Nation.
9.It is contended that the usage of loudspeakers is causing nuisance and disturbance to the people in the nearby vicinity. In this regard, it is needless to state that the Authorities Competent are bound to initiate action in accordance with law.
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10.It is relevant to consider the Noise Pollution (Regulation and Control) Rules, 2000, which was published in the Gazette of India vide S.O. 123(E) dated 14.02.2000 and subsequently amended on 22.11.2000, 11.10.2002, 19.09.2006 and 11.01.2010 under the Environment (Protection) Act, 1986.
11.Under the Noise Pollution (Regulation and Control) Rules, 2000, the Authorities are bound to initiate action if violations are brought to their notice or complaints are made. Rule 2(c) defines 'Authority' means and includes any authority or officer authorized by the Central Government, or as the case may be, the State Government in accordance with the laws in force and includes a District Magistrate, Police Commissioner, or any other officer not below the rank of the Deputy 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”.
12.Rule 5 imposes restrictions on the use of loud speakers / public address system and sound producing instruments. Sub Rule (1) https://www.mhc.tn.gov.in/judis/ Page 8 of 22 W.P.No.32832 of 2016 contemplates "a loud speaker or a public address system shall not be used except after obtaining written permission from the authority". Sub Rule (2) denotes “a loud speaker or a public address system or any sound producing instrument or a musical instrument or a sound amplifier shall not be used at night time except in closed premises for communication within, like auditoria, conference rooms, community halls, banquet halls or during a public emergency”.
13.Rule 7 stipulates 'complaints to be made to the Authority'. Sub Rule (2) to Rule 7 contemplates “the Authority shall act on the complaint and take action against the violator in accordance with the provisions of these rules and any other law in force”.
14.Rule 8 provides “power to prohibit etc. continuance of music sound or noise” and Schedule provides “Ambient Air Quality Standards in respect of Noise”.
15.In respect of the actions to be initiated, Environment (Protection) Act, 1986, more specifically, Section 15 provides 'Penalty for Contravention of the Provisions of the Act and the Rules, Orders and https://www.mhc.tn.gov.in/judis/ Page 9 of 22 W.P.No.32832 of 2016 Directions'. The noise pollution, regulation and control rules are notified under the provisions of the Environment (Protection) Act, more specifically, by invoking Section 25. Thus if any violations of such Rules or directions are established/ proved, then penalty for contravention of the provisions of the Act and also the Rules are to be imposed.
16.Sub section (1) to Section 15 of the Environment (Protection) Act, 1986 contemplates “whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or orders or directions issued thereunder, shall, in respect of each such failure or contravention, be punishable with imprisonment for a term which may extend to five years with fine which may extend to one lakh rupees, or with both, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention”.
17.Therefore, laws in force are to be enforced by the public authorities. It is not as if the laws are enacted for the purpose of keeping it in Books. Thus the Authorities are to be sensitised to protect the https://www.mhc.tn.gov.in/judis/ Page 10 of 22 W.P.No.32832 of 2016 fundamental rights of every citizen of this Great Nation. Our country had enacted effective and efficient laws in order to protect the rights of the citizen. However, its implementation lacks. Thus, the Authorities are to be sensitised. They can never be allowed to take a partisan attitude in the matter of implementing the laws in force. Non implementation or improper implementation must be viewed seriously as it infringes the rights of the citizen at large.
18.In a Public Interest Litigation in Afzal Ansari and 2 others v. State of U.P. and 2 others [P.I.L.No.570 of 2020, dated 15.05.2020], the Division Bench of Allahabad High Court has considered various judgments of the Hon'ble Supreme Court of India and has held as follows :
“17.In this regard it may be noted that the issue of the use of sound amplifying devices for amplifying human voice and other sounds while offering daily pujas by a Hindu Organization arose before the Calcutta High Court in the case of Om Birangana Religious Society Vs. The State and Ors., MANU/WB/0254/1996, wherein it was held as under:
"15. It is well-settled that the right to propagate one's religion means the right to communicate a person's belief to another or to expose the tenets of that faith. The question is whether the right to propagate religion includes the right to use loud- https://www.mhc.tn.gov.in/judis/ Page 11 of 22 W.P.No.32832 of 2016 speakers and microphones for the purpose of chanting religious tenets or religious texts and/or the indiscriminate use of microphones or loud- speakers during religious performance in the society.
...
17. There cannot be any dispute that sound is a known source of pollution. The adverse and ill effect of sound on human body is also known. It has a tremendous impact on the nervous system of human being ....
20. The religion that has been performed by the petitioner and others, is nothing new, but the same is there for several centuries. It cannot be said that the religious teachers or the spiritual leaders who had laid down these tenets, had any way desired the use of microphones as a means of performance of religion. Undoubtedly, one can practise, profess and propagate religion, as guaranteed under Article 25(1) of the Constitution, but that is not an absolute right. The provisions of Article 25 is subject to the provisions of Article 19(1)(a) of the Constitution. On true and proper construction of the provisions of Article 25(1), read with Article 19(1)(a) of the Constitution, it cannot be said that a citizen should be coerced to hear anything which he does not like or which he does not require."
18.Subsequently, the issue of using sound amplifying devices for the purposes of reciting Azan was specifically dealt with by the Calcutta High Court in the case of Moulana Mufti Syed Mohammed Noorur Rehman Barkati and Ors. Vs. State of West Bengal and Ors.
MANU/WB/0211/1998. The claim in the Writ Petition was https://www.mhc.tn.gov.in/judis/ Page 12 of 22 W.P.No.32832 of 2016 that Namaz is the second pillar of Islam and occupies a permanent position among the practical duties of the Muslims. It was claimed that use of microphones for the purpose of Azan is a part of the religious right guaranteed under Article 25 of the Constitution of India. After detailed discussions the Calcutta High Court while recognizing that Azan was certainly an essential part of Islam, held that the use of microphone and loud-speakers were not an essential and an integral part of Azan.
19.The Apex Court in the case of Church of God (Full Gospel) in India Vs. K.K.R. Majestic reported in (2000) 7 SCC 282 has held as follows:
"no religion or religious sect can claim that the use of loudspeakers or similar instruments for prayers or for worship or for celebrating religious festivals is an essential part of the religion which is protected under Article 25. We hold that there is no fundamental right to use loud-speakers or similar instruments under Article 19 (1) (a) of the Constitution. On the contrary, the use of such instruments contrary to the Noise Pollution Rules will be a violation of fundamental rights of citizens under Article 21 of the Constitution as well as fundamental right of citizens of not being forced to listen something which they do not desire to listen"
20.In the case of P.A. Jacob v. Supdt. of Police, AIR 1993 Ker 1, it was held that right to speech implies the right to silence. It implies freedom, not to listen, and not to https://www.mhc.tn.gov.in/judis/ Page 13 of 22 W.P.No.32832 of 2016 be forced to listen. The right comprehends freedom to be free from what one desires to be free from. A person cannot 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.
21.Similarly, a Co-ordinate Bench of this Court, comprising of Hon'ble Pankaj Mittal J. and Hon'ble V.C. Dixit J., in the case of Masroor Ahmad and another Vs. State of U.P. and two others by judgment and order dated 9.1.2020 in no uncertain terms held that use of sound amplifying systems for the purposes of Azan at the Mosques could be refused on grounds of sound pollution and in order to maintain peace and tranquility in the area. It was further held that the freedom to practice, profess and propagate religion under Article 25(1) is not absolute and is subject to Article 19(1)(a) of the Constitution of India, and both have to be construed harmoniously.
22.The apex court while dealing with the issue of privacy as part of Article 21 of Constitution of India held that right to sleep has always been treated to be a fundamental right like right to breath, to eat, to drink, to blink, etc. In the case of Ramlila Maidan Incident, in re, reported in 2012 (5) SCC 1 in paragraphs 318 and 327, the apex court held as follows:
https://www.mhc.tn.gov.in/judis/ Page 14 of 22 W.P.No.32832 of 2016 "318. Thus, it is evident that right of privacy and the right to sleep have always been treated to be a fundamental right like a right to breathe, to eat, to drink, to blink, etc."
"327. An individual is entitled to sleep as comfortably and as freely as he breathes. Sleep is essential for a human being to maintain the delicate balance of health necessary for its very existence and survival. Sleep is, therefore, a fundamental and basic requirement without which the existence of life itself would be in peril. To disturb sleep, therefore, would amount to torture which is now accepted as a violation of human right. It would be similar to a third degree method which at times is sought to be justified as a necessary police action to extract the truth out of an accused involved in heinous and cold-blooded crimes. It is also a device adopted during warfare where prisoners of war and those involved in espionage are subjected to treatments depriving them of normal sleep."
23.There is catena of judicial decisions which recognizes the right to live in freedom from noise pollution as a fundamental right protected by Article 21 of the Constitution of India. Noise pollution beyond permissible limit is hazardous which violates the fundamental rights of citizens.
24.In the case of Church of God (Supra), the Supreme Court has held that no religion prescribes that prayers should be performed by disturbing the peace of https://www.mhc.tn.gov.in/judis/ Page 15 of 22 W.P.No.32832 of 2016 others nor does it preach that they should be through voice amplifiers or beating of drums. In a civilized society in the name of religion, activities which disturb old or infirm persons, students or children having their sleep in the early hours or during daytime or other persons carrying on other activities cannot be permitted. A student preparing for his examination is entitled to concentrate on his studies without their being any unnecessary disturbance by the neighbours. Similarly, the old and the infirm are entitled to enjoy reasonable quietness during their leisure hours without there being any nuisance of noise pollution. Aged, sick, people afflicted with psychic disturbances as well as children up to 6 years of age are considered to be very sensitive to noise. Their rights are also required to be honoured.
...
32.Thus, under no circumstances loud-speakers or any public address system or musical system or sound amplifiers can be permitted to be used between 12.00 p.m. to 6.00 a.m. As according to Noise Pollution Rules, night hours have been fixed between 10. p.m. to 6 a.m. For the period between 10pm to 12 midnight the power of relaxation has been conferred only upon the State Government under Sub Rule 3 of Rule 5.” https://www.mhc.tn.gov.in/judis/ Page 16 of 22 W.P.No.32832 of 2016
19.In a vibrant democracy, the rights of the citizen are valuable and are of paramount importance. Of course, fundamental duties are to be borne in mind and reminded of. Fundamental duties under Article 51-A of the Indian Constitution must go together with the rights and the duties are corresponding in nature and thus, exercise of rights is to be done only keeping in mind the duties involved. Any Religious Institution exercising their right must be reminded of their duties towards other citizen, upon whose rights are also to be protected. Unfortunately, such situation is not prevailing in this Great Nation in view of the lackadaisical approach of the Authorities in the matter of dealing with the violations and infringement of the rights.
20.One may form an opinion that it would be sensitive if any actions are initiated. However, they are forgetting the other side that inaction will lead to further chaos. Thus actions then and there on noticing the irregularities and illegalities are of paramount importance, which is the duty mandated on the authorities.
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21.Importantly, Section 19 of the Environment (Protection) Act, 1986 contemplates 'cognizance of offences'. Accordingly, a complaint is to be made by the persons. Thus, sub clause (b) to Section 19 empowers the any person to give a complaint by issuing notice of not less than 60 days. Thus any person is empowered to send complaint in the manner prescribed.
22.This Court is of the considered opinion that all Religious Institutions must adhere to the Rules of law for the purpose of conducting their respective religious activities. Any such religious activities affecting the rights of the other citizen and any infringement of rights under the Constitution of India must be viewed seriously and all appropriate actions are to be initiated in the event of any complaint or otherwise.
23.The prevailing situation cannot be brushed aside by this Court. The prevailing situation though painful is to be improved only through effective actions of the Public Authorities. There are many Religious Institutions across the State of Tamil Nadu who are violating the noise pollution and Regulation Control Rules and the provisions of the other Statutes. However, officials are insensitive in the matter of initiation https://www.mhc.tn.gov.in/judis/ Page 18 of 22 W.P.No.32832 of 2016 of actions regarding such violations. Thus, the State is duty bound to sensitise the Authorities for the purpose of protection of the fundamental rights of the citizen of our Great Nation.
24.Enacting the Laws or insufficient implementation of Laws are to be deprecated. Laws are enacted to protect the rights of the citizen under the Constitution. If such Laws are not implemented effectively, then also we are committing an act of unconstitutionality. Thus, unconstitutionality is not only relatable to the provisions of the Statute, but also relatable to an ineffective or non-implementation of the Statutes, resulting in violations of rights ending unconstitutionality. Thus, the State must act in consonance with the constitutional principles and the laws enacted for the purpose of protecting the rights of the citizen, more specifically, with reference to the religious rights.
25.In view of the fact that many such complaints are raised across the State of Tamil Nadu and many people are hesitating to inform and submit complaint in these aspects, as they are afraid of giving such complaints on account of religious sentiments, and due to fanatic approach of few fringe groups, it is the duty of the State to issue appropriate orders https://www.mhc.tn.gov.in/judis/ Page 19 of 22 W.P.No.32832 of 2016 regulating the activities of the Religious Institutions and to ensure the right of the citizen in general. One cannot recuse that common men are afraid of giving complaint against Religious Institutions. In such circumstances, the State being the custodian is duty bound to initiate action under the relevant provisions of law.
26.In view of the principles considered, the respondents 1 to 3 are directed to conduct periodical inspection in respect of the complaint raised by the petitioner and the persons from the locality and accordingly, initiate all appropriate actions by coordinating with the other Departments, so as to protect the fundamental rights of the citizens, who all are the residents in that locality and in the nearby vicinity. Such actions are to be initiated, if any complaints are received or brought to the notice of the competent authorities.
Accordingly, the writ petition is allowed. No costs.
27.10.2021
mkn
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W.P.No.32832 of 2016
Internet : Yes
Index : Yes / No
Speaking order / Nonspeaking order
To
1.The District Collector,
Namakkal District,
Namakkal.
2.The Revenue Divisional Officer,
Tiruchengode Taluk,
Namakkal District.
3.The Commissioner,
Pallipalayam Municipality,
Pallipalayam.
4.The Chairman/Member Secretary,
Tamil Nadu Pollution Control Board,
Anna Salai, Guindy,
Chennai – 32.
https://www.mhc.tn.gov.in/judis/
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W.P.No.32832 of 2016
S.M. SUBRAMANIAM, J.
mkn
W.P.No.32832 of 2016
27.10.2021
https://www.mhc.tn.gov.in/judis/
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