Madras High Court
Shobana Ramasubramanyam And 12 Ors. vs The Member Secretary Chennai ... on 16 November, 2001
Equivalent citations: AIR2002MAD125, AIR 2002 MADRAS 125
ORDER B. Subhashan Reddy, C.J.
1. These two writ petitions have been filed complaining of sound pollution and vibration, because of the operation of the heavy machinery, for digging foundation. Protection is sought for by invoking Article 226 jurisdiction. In W.P.No. 16477 of 2001 there is a single petitioner, and the respondents are Member Secretary, Chennai Metropolitan Development Authority, Member Secretary, Corporation of Chennai, Member Secretary, Tamil Nadu Pollution Control Board, Commissioner of Police, Chennai City, and M/s. Ramaniyam Real Estate Limited. The prayer is directing respondents 1 to 4 to initiate action against the 5th respondent for causing environmental pollution and health hazards to the petitioner family and other neighbouring residents, and further directing the 5th respondent, its men, agents and servants not to carry on any piling foundation activities on their site No.74, C.P. Ramaswamy Road, Alwarpet, Chennai,
2. In W.P.No. 16505 of 2001 there are 13 petitioners and the respondents are (1) the State of Tamil Nadu, rep. by the Commissioner and Secretary to Government, Health Department, Chennai, (2) Tamil Nadu Pollution Control Board, (3) Corporation of Chennai, (4) Chennai Metropolitan Development Authority, (5) the Inspector of Police, Abiramapuram Police Station, (6) Mrs. Unnamalai Sampath, (7) Mr. K.S.P.V. Shanmugam, (8) Mr. S. Harshavardhan, respondents 6 to 8 are represented by their General Power of Attorney M/s. Ramaniyam Real Estate Limited, (9) M/s, Ramaniyam Real Estate Limited itself, (10) M/s. G.K. Shetty Brothers, (11) Mrs. Aruna, Proprietrix, Saravana Pile Foundation, and (12) the Alwarpet Benefit Fund Limited, rep. by Commissioner. Mrs. Meera Sridhar was impleaded as the 13th respondent as per the order dated 15.10.2001 passed in W.P.M.P.No.2908 of 2001, for herself and on behalf of residents of Abiramapuram locality at Alwarpet, Chennai.
3. The petitioners in both the writ petitions and the 13th respondent in W.P.No.16505 of 2001 have got common grievance of sound pollution and vibrations, and the consequent damage to the lives and properties of themselves and the residents of Sriram Colony of Abiramapuram, Chennai City.
4. To avoid repetition and confusion, the petitioner in the first writ petition viz., W.P.No.16477 of 2001, is mentioned as 1st petitioner and the petitioners in W.P.No.16477 of 2001 are referred to as petitioners 2 to 13. The Government is mentioned as 1st respondent, T.N.P.C.B. as 2nd respondent, the Municipal Corporation of Chennai is referred to as 3rd respondent, the C.M.D.A. is mentioned as 4th respondent, the Inspector of Police, Abiramapuram Police Station is mentioned as 5th respondent, the erstwhile owners of the property are mentioned as respondents 6 to 8, M/s. Ramaniyam Real Estate is mentioned as 9th respondent M/s. O.K. Shetty Brothers 10th respondent, Mrs. Aruna, Proprietrix of Saravana Pile Foundation as 11th respondent, Alwarpet benefit Fund Limited as 12th respondent and the Commissioner of Police, Chennai City as 13th respondent.
5. Sri Ram Nagar of Abiramapuram is a residential locality. There are more than 75 houses with about 400 residents consisting of infants, children, young and old, both male and female. Amidst the houses, house property bearing Door No.74, corresponding to new No.39, admeasuring 1 acre, and having boundaries East by C.P. Ramaswamy Road, west by Sriram Colony, South by Abiramapuram 3rd Street, and North by Bheemana Garden Street, having access from C.P. Ramaswamy Road, is situated. This 1 acre plot is having less width and more length with dimension of 93 9" on the north; 88 10" on the south and 499 11" on the east and west sides. It is said that the said property originally belonged to respondents 6 to 8 and they had mortgaged the property in favour of 12th respondent but failed to discharge the mortgage. The 12th respondent went into liquidation and the depositors of the 12th respondent moved this Court by filing W.P.No. 14577 of 1999 and the Commissioners were appointed to sell that property and for the mobilisation of the funds to repay the deposits who are 45,000 in number, and on their application this Court granted permission to sell the property, and that is how the 9th respondent came to purchase the said property. The property was purchased with permission to construct double basement + ground floor + 8 floors of multi-storey building approved by the Government vide in G.O.Ms. No. 12 dated 3.2.1998. The construction permission was again renewed on 27.8.2001, and is valid for 3 years therefrom. The 9th respondent has entrusted the construction work to the 10th respondent, who is the builder and the 10th respondent has engaged the services of 11th respondent for the purpose of doing the pile foundation work.
6. The foundation work had started from 14.8.2001 by employing driven pile machinery. A heavy machinery was used with heavy iron weights as hammer and concrete pipes were driven to the depth of 70 for making way into the earth and the hammer drops from a considerable height for forcing the pile into the ground. Complaining that the sound is unbearable and exceeding much more than the prescribed decibels and the consequent sufferance, as also the vibrations resulting in damage to their buildings, the Sriram Colony residents, who have formed a Welfare Association, under which the petitioners herein are members, have complained to the local police i.e. Abhiramapuram Police Station, Tamil Nadu Pollution Control Board, Commissioner-Corporation of Chennai, Chennai Metropolitan Development Authority as also to the Government including that of Minister for Health. Such complaints were made right from 17.8.2001, the next being 18.8.2001, 20.8.2001, 21.8.2001, 28.8.2001, 31.8.2001 and 5.9.2001. One V. Ganesan, who is a builder and also resident of that locality, had even filed suit in O.S. No.5236 of 2001 on 5.9.2001 in the Court of 18th Assistant Judge, City Civil Court, Madras, and has sought for injunction in LA. No. 15091 of 2001. The relief sought for in the suit was direction to the 9th defendant herein, viz. Ramaniyam Real Estates Limited, directing them not to proceed further with the new construction activities at door No.46, C.P. Ramaswamy Road, Chennai, without adopting safer and pollution-free methods as suitable to the project. The objection was not to the construction but to the method of construction by employing the driven pile system for foundation work. In this suit proceedings, Mrs. Shobana Ramasubramanyam, who is the first petitioner herein, was his counsel. But immediate relief was not granted and as the piling operations were going on, further representations were made to the authorities on 6.9.2001 and it is said that an undertaking was filed by the 9th respondent on 8.9.2001 before the police to stop the work till 11.9.2001 and it is also seen that there were some negotiations but they were not successful and no settlement could be arrived at as the 9th respondent did not heed to change to other modes of foundation work and stuck to his decision to go ahead with driven pile foundation system. Hence these two writ petitions filed on 10th September, 2001.
7. Counters were filed by the contesting respondents. In view of the conflicting claims - petitioners complaining of heavy noise pollution and health hazards and damage to their properties, and the contesting private respondents denying the same - an advocate commissioner was appointed by order dated 11.9.2001 posting the case for report to 18.9.2001 and the status quo, which was ordered on 11.9.2001, was directed to be maintained. Mr. Hidayathullah, Advocate Commissioner, inspected the site and also examined the parties. He found some cracks in some buildings but was of the opinion that there was no evidence that it was the result of the pile driven operations of the 9th respondent. We are not going into the details of the said Commission work. But he himself found that the decibels measured during the operation of the three machines were 85.6 to 85.4 decibels, that the same was above the normal decibel level, and he has suggested that the excess decibel noise could be minimised by adopting the noise arresting or reducing measures as suggested by experts as follows:
(a) the width of wooden dolly (wooden cushion) could be increased;
(b) the rubber cushion used in between the wooden dolly and the hammer may be of thicker size than what is now used in the winches;
(c) proper overhauling and lubrication of the machines operating the pile foundation machines, should be done periodically;
(d) Though the time span for the day is stated (o be from 6.00 a.m. to 10.00 p.m. as per Schedule to the Noise Pollution (Regulation and Control) Rules, 2000, the lime span for pile foundation operation may be restricted between 8.00 a.m. and 6.00 p.m.;
(e) distance between the hammer and the pile casing pipe shall be uniformly maintained at 1.2 meter height; and
(f) permitting to run the pile foundation machines one for driving in the pile into the earth and the other for extraction of casing pipe simultaneously with one concrete mixture machine,
8. The petitioners had reservations against some of the findings of the Advocate Commissioner and contended that even the suggestions made by the Advocate Commissioner have not been followed by the 9th respondent, and that the driven pile foundation work was going, on day and night, exceeding the prescribed decibels of sound pollution, causing lot of inconvenience to the residents of the locality and health hazards as also damage to their properties. As such, two new Advocate Commissioners namely M/s. P. Srinivas and D. Geetha were appointed and they had filed their reports. Both the reports concur, corroborating the version of the petitioners that the pile foundation work carried on by the 9th respondent was causing noise pollution, vibration and inconvenience to the people of the locality. It is noteworthy to extract the pertinent conclusions of two Advocate Commissioners.
(i) Mr. P. Srinivas The noise generated though not measured scientifically are enough to spoil any attempt to relax and is also preventing any concentration. Though the noise levels are reduced by addition of rubber pads, the damage to the pads again increases the noise levels till the pads are replaced, when the drive-head is near to the ground. After nearly two days of exposure to the sound, a head-ache is noticeable even though he did not have any such regular head aches normally. Vibrations are felt very heavily in almost all the points along the road in the western side of the site in Sriram Colony. The buildings are also felt to vibrate to varying degrees according to their individual nature and age. The vibrations are felt clearly on the road also through the feet even with heavy foot-wear that was worn by him for the purpose of negotiating the slushy ground. Vibrations are more pronounced when the pile is about 10 to 20" into the ground and when the pile reaches the maximum depth and when the follower pipe is added during the final stages of the driving. Visible vibrations and vibrations felt through the ground are quite disturbing. Though no scientific measures could be used during inspection, the vibrations seem to cause quite a lot of disturbance to the body. The visual effect of the vibrations could also be seen well on the thatched wall of the site as well as the trees and plants in door No. 18, Sriram Colony as well as in Door No. 33, Third Street., Abhiramapuram.
(ii) Ms. D. Geetha The noise generated by the red rig is markedly higher than the blue rig despite adding rubber sheets. The noise and the vibration in combination are intolerable and brings the soul to a standstill and has a destructive effect upon the person. When she was silting in the site through out the hammering of red rig on 6.10.2001, she was in a state of shell shock. When it stopped, she came back to her senses and realised the environment and its impact. The complaint made by the residents of the locality that the hammering was lesser during official visits and that she should make a surprise visit was justified. She carried on the commission work with a lot of disturbing effect on her and both on 6.10.2001 and 8.10.2001, she left the site with a lot of discomfort and mild head-ache.
9. Even according to the Assistant Engineer, Tamil Nadu Pollution Control Board, the maximum noise levels were ranging from 87.4 to 138 decibels measured on 14.9.2001, 17.9.2001 and 25.9.2001 to 29.9.2001 and that it was 5 to 15 times in excess of the permissible noise level. Even on 8.10.2001 and 13.10.2001, the maximum noise level in decibels were 102.4 and 96-99.5 respectively.
10. Objections were filed by the contesting respondents refuting the conclusions reached by the two Advocate Commissioners, and that necessitated appointing experts.
11. Mr. N. Lakshmanan from Structural Engineering Research Centre, Madras, which is a wing of Council of Scientific and Industrial Research, as also Mr. S. Narasimha Rao from Indian Institute of Technology, Chennai, have inspected the site in the presence of the parties. Mr. S. Gopalakrishnan, Mr. K. Muthumani and Mr. N. Gopalakrishnan of Structural Engineering Research Centre, Madras, have assisted them in examining the site and recording the vibrations and submitting the report. The work carried out by the experts is perfectly on scientific basis and their conclusions are as follows:
(i) the levels of vibrations arc easily perceptible by human beings reducing the comfort levels; and (ii) minor damage/cracking to building is indicated;
It is observed that pile driving operations in the row nearest to Sriram Colony with both rigs operating and without rubber cushioning pads on top of the anvil resting over the pile casing would have certainly led to higher discomfort/damage levels. Some of the cracks could be due to pile driving operations done earlier. With reference to the working of drop hammers, they have the disadvantage that it is not easy to control the height of drop with any accuracy and there is the danger that the operator will use too great a drop when driving becomes difficult.
12. Having regard to the above conclusions, their recommendations are as follows:
(i) It is better to avoid the present system of piling when the site is in the midst of cluster of buildings; Bored cast in situ pile is a better option;
(iii) if the existing system of piling is to be continued, only two piles per day can be permitted with a maximum height fall of 0.80 in. The trench must be kept to the present level and good quality rubber pads are to be provided and maintained on top of the anvil as seen on the day of testing.
Strict control of height of fall is essential. However, this option is to be restricted only to the present block wherein about 50 piles are to be installed.
13. Having regard to the above report and having regard to the fact that there were two types of rigs in operation, both red rig and blue rig, and to ensure proper compliance of the suggestions made by the above experts to minimise the pollution control to the permissible limits as also the effect of vibration and discomfort to the residents, this Court has passed the order on 17.10.2001 directing the 9th respondent to use only the blue rig and to go in for two piles a day specifying the hours during the day and to be supervised strictly by an officer to be deputed by the Tamil Nadu Pollution Control Board to monitor the compliance of the same as also to measure sound pollution. But even by taking the precautions, the noise levels did not decrease and it is obvious from the report of the District Environment Engineer of the Tamil Nadu Pollution Control Board dated 5.11.2001 that between 1.11.2001 and 4.11.2001, the maximum noise level was between 95.1 and 106.2 decibels. May be it is slightly lower to the houses situated in the second row but overall, the sound pollution is much more than the permissible limits and every method of safety suggested has turned out unworkable.
14. The question is what is to be done in the circumstances where noise pollution is clearly made out. Insofar as vibrations and its effect on the property are concerned, we do not deem it proper to adjudicate in these writ petitions as the same involves factual aspects particularly the determination of quantum. But we feel the concern for abatement of nuisance, and we do not accede to the contention of M/s. G. Rajagopalan and T.R. Rajagopalan, learned senior counsel appearing for the 9th and 10th respondents that crores of rupees have been spent and that changing the driven pile system to another system will have lot of financial impact, as, in between the public interest and individual interest, it is always the public interest which prevails and the individual interest is subservient to the public interest. The other argument advanced by the learned senior counsel is that this litigation is a counter-blast at the instance of Mr. V. Ganesan as he could not secure the building contract work and in any event, the allegation being that of a nuisance, the common law remedy is the appropriate and effective remedy and not the extraordinary jurisdiction under Article 226 of the Constitution of India, and more so, the suit was already instituted and there was no reason to withdraw the same. While it is true that Mr. V. Ganesan was the contender for taking up the contract work, we do not see any ulterior motives in initiating either the suit proceedings by him or by the petitioners herein. As could be seen from the averments in the plaint and particularly paragraph 6 of the plaint the complaint was not against the commencement of the progress of the work but was only against not taking the safety measures by the 9th respondents, and in using the driven-pile system and suggesting to adopt other methods like bore piles to abate the noise pollution and avoid health hazards to the people of the locality and damage to their properties. Coming to the alternative remedy argument, it is the settled law that whenever there is a violation of fundamental right, the alternative remedy is not a bar at all. It is held by the Supreme Court in A.P. Pollution Control Board-II v. Prof. M.V. Nayudu & Ors. 2000 (8) Supreme 318 that healthy environment and sustainable development are fundamental human rights implicit in the right to life. It is held in the said decision, "In today's emerging jurisprudence, environment rights which encompass a group of collective rights are described as third generation rights'. The first generation rights are generally political rights such as those found in the International Convention on Civil and Political Rights while "second generation rights' are social and economic rights as found in the International Covenant on Economic, Social and Cultural Rights."
Discussing several decisions and also Covenants on Human Rights, the Supreme Court ultimately held, "Thus, the concept of a healthy environment as a part of the fundamental right to life developed by our Supreme Court is finding acceptance in various countries side by side with the right to development."
15. In Church of God (full Gospel) In India v. K.K.R. Majestic Colony Welfare Association & ors, the Supreme Court was dealing with the noise pollution in the State of Tamil Nadu. It is apt to extract what the Supreme Court said about the noise pollution in the above case.
"3. Under the Environment. (Protection) Act, 1986, rules for noise pollution level are framed which prescribe permissible limits of noise in residential, commercial, industrial and silence zone. The question is whether the appellant can be permitted to violate the said provisions and add to the noise pollution? In our view, to claim such a right itself would be unjustifiable. In these days, the problem of noise pollution has become more serious with the increasing trend towards industrialization, urbanization and modernization and is having many evil effects including danger to the health. It may cause interruption of sleep, artect communication, loss of efficiency, hearing loss or deafness, high blood pressure, depression, irritability, fatigue, gastrointestinal problems, allergy, distraction, mental stress and annoyance etc. This also affects animals alike. The extent of damage depends upon the duration and the intensity of noise. Sometimes, it leads to serious law and order problem. Further, in an organized society rights are related with duties towards others including neighbours."
The Rules framed regarding noise pollution have also been taken into account and ambient air quality standards in respect of noise have been categorised into four:
(a) industrial area;
(b) commercial area;
(c) residential area; and
(d) silence zone The maximum decibel levels prescribed during day time are 75, 65, 55 and 50 respectively. In the present case, the area is a residential one and the maximum decibel level during day time when the pile foundation work is on, should not exceed 55 decibels, but the decibel level is much more than the permissible level even in commercial and industrial areas. A clear case of noise pollution is thus made out.
16. The petitioners had been complaining of the noise pollution right from the inception of the foundation work done with driven pile system. But, the authorities, particularly, respondents 2 (Tamil Nadu Pollution Control Board), 5 (Inspector of Police, Abiramapuram Police Station) and 13 (Commissioner of Police, Chennai City) did not take any effective steps to prevent the sound pollution caused at the instance of the respondents 9,10 and 11, The petitioners could only look to the above authorities, and having failed to get any response and remedy from the above authorities, and also from the 1st respondent-Government, who is at the helm of the affairs, and who is duty bound to curtail the sound pollution, have ultimately approached this Court, invoking the extraordinary jurisdiction under Article 226 of the Constitution of India, and rightly so.
17. In view of what is stated above, there is no other alternative but to restrain the contesting private respondents from proceeding further with the foundation work, by using the driven-pile system and we do so. The respondents 6 to 12, particularly, the respondents 9, 10 and 11 shall not proceed any further with the user of driven-pile foundation work. They are free to proceed further with the foundation work with other modes like bore piling or any other mode of foundation work but not with driven- pile machinery. The respondents 2, 5 and 13 are directed to see that the above restraint order issued against the above private respondents are strictly complied with and to take action in violation thereof.
18. The writ petitions arc allowed. No costs so far as the petitioners are concerned. But the respondents 9 and 10 shall pay the costs of Rs.21,500.00 to the third respondent, that is Tamil Nadu Pollution Control Board. Consequently, W.M.Ps. are closed.
(Order of the Court was made by the Honorable the Chief Justice)
1. After the Judgment has been delivered. Mr. G. Rajagopalan, learned senior counsel appearing for the nineth respondent, submits that only six piles have to be laid with this Driven Pile System in Block 'A', and changing the pattern for this block will cause undue hardship.
2. Having heard all the learned counsel and having regard to the facts and circumstances, we permit respondents 9 to 11 to complete the six remaining piles with Driven Pile System with blue rig, and also following the safety measures for three days i.e.. 17th, 18th and 19th of November, 2001, and in any event, not beyond 5 p.m of the 19th November, 2001.