National Green Tribunal
Onakkur Paristhithi Samrakshana ... vs Kerala Pollution Control Board on 26 September, 2022
Bench: K Ramakrishnan, K. Satyagopal
Item No.1:- Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Original Application No. 262 of 2020 (SZ) &
I.A. No. 13/2021 (SZ) & 91 of 2021 (SZ)
IN THE MATTER OF
Onakkur Paristhithi Samarakshana Samithy
Reg. No. ER 155/08, Anchalpetty P.O.,
Pambakkuda, Ernakulam District - 686 667.
Represented by its President Abraham Paul,
Aged 51 years, Son of V.P. Paulose
...Applicant(s)
Versus
Kerala State Pollution Control Board
Represented by its Secretary
Pattom, Thiruvananthapuram-695 004 and Ors.
...Respondent(s)
For Applicant(s): Mr. P.B. Sahasranaman &
Mr. S. Sai Sathya Jith.
For Respondent(s): Mrs. V.K. Rema Smrithi for R1.
Mr. G. Vignesh represented
Mr. E.K. Kumaresan for R2.
M/s. Philip P.J. Vettickattu for R3.
Mrs. M. Sumathi for R4.
Judgment Pronounced on: 26th September 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER
ORDER
Judgment pronounced through Video Conference. The original application is disposed of with directions vide separate Judgment.
Pending interlocutory application, if any, shall stand disposed of.
Sd/-
Justice K. Ramakrishnan, J.M. Sd/-
Dr. Satyagopal Korlapati, E.M. O.A. No.262/2020 (SZ) I.A. No.13/2021 (SZ) I.A. No.91/2021 (SZ) 26th September 2022. Mn.
Page 1 of 24Item No.1:- Court No.1 BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI (Through Video Conference) Original Application No. 262 of 2020 (SZ) & I.A. No. 13/2021 (SZ) & 91 of 2021 (SZ) IN THE MATTER OF Onakkur Paristhithi Samarakshana Samithy Reg. No. ER 155/08, Anchalpetty P.O., Pambakkuda, Ernakulam District - 686 667.
Represented by its President Abraham Paul, Aged 51 years, Son of V.P. Paulose ...Applicant(s) Versus
1. Kerala State Pollution Control Board Represented by its Secretary Pattom, Thiruvananthapuram-695 004.
2. The Deputy Superintendent of Police Office of the Superintendent of Police Puzhakarakavu Rd, Thottumkalpeedika, Muvattupuzha, Kerala-686 661.
3. M/s. Brmsco Garments Private Limited Anchelpetty.P.O. Onakkur Pampakuda Represented by its Managing Director Sri. T.K.Vijayan.
4. Union of India Ministry of Environment, Forest and Climate Change Rep. by its Secretary, Indira Paryavaran Bhavan Jorbagh Road, New Delhi - 110 003.
...Respondent(s)
For Applicant(s): Mr. P.B. Sahasranaman &
Mr. S. Sai Sathya Jith.
For Respondent(s): Mrs. V.K. Rema Smrithi for R1.
Mr. G. Vignesh represented
Mr. E.K. Kumaresan for R2.
M/s. Philip P.J. Vettickattu for R3.
Mrs. M. Sumathi for R4.
Judgment Reserved on: 26th August 2022.
Judgment Pronounced on: 26th September 2022.
Page 2 of 24CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER Whether the Judgment is allowed to be published on the Internet - Yes.
Whether the Judgment is to be published in the All India NGT Reporter - Yes.
JUDGMENT Delivered by Justice K. Ramakrishnan, Judicial Member
1) This case pertains to noise pollution caused on account of the operation of the 3rd respondent unit which is engaged in the manufacture of plastic woven fabrics and flexible packaging materials in Onakkur Village, Muvattupuzha Taluk, Ernakulam District of State of Kerala.
2) This Original Application was filed by the applicant's organization registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 bearing Registration No. ER 155/08, evidenced by Annexure - A1/Registration Certificate issued by the Registrar of Societies, Ernakulam dated 25-11-2020.
The main object of the applicant organization is to protect the rights of the people and to do activities to protect the environment and ecology of the Pampakuda area, evidenced by Annexure - A2/ Memorandum of Association and Bye-laws of the applicant Society.
3) It was alleged in the application that Onakkur is a small village in Pampakuda Block of Ernakulam District, wherein the 3rd respondent had established a factory in the land in Survey Number 890/4.5A, 5B, 3.1 and 6 of Onakkur Village, Muvattupuzha Taluk, Ernakulam District. They are engaged in the manufacture of plastic woven fabrics and flexible packaging material operating with a capacity of 700 MT sacks per month. Over 300 people are working in the company and having an extent of 50,000 sq. ft. factory area. The said unit had obtained the Consent to Operate on 21-10-2016, evidenced by Annexure - A3 and heavy machineries are being used for manufacturing of the said items. The working of the machines creates huge noise, throughout day and night and thereby, the local people Page 3 of 24 have been affected on account of the same. They are not able to use mobile phones or Television sometimes in that area and photographs of some of the heavy machineries that have been installed by the 3rd respondent were produced as Annexure - A4.
4) It was further alleged in the application that the noise generated from the said unit during day and night exceeds the limit causing disturbance to the local residents and their life. One of the specific conditions imposed in the Consent to Operate is that the sound (Leq) measures at a distance of 1 m from the boundary of the premises shall not exceed 55 dB (A) during day time (i.e. 06:00 a.m. to 10:00 p.m.) and 45 dB(A) during night time (i.e. 10:00 p.m. and 06:00 a.m.). The noise level fixation was without looking into the Noise Pollution (Regulation and Control) Rules, 2000. Further, religious institution like St. George Malankara Catholic Chappel is located within 11.5 meters from the 3rd respondent unit. On the basis of the complaint made by the applicant and others, an inspection was conducted by the Environmental Engineer of the State Pollution Control Board on 12-09-2018 and found that the sound emitted from the unit is 62.7 dB(A) during working and a certificate was issued to that effect, which was produced as Annexure - A5. They have not taken the average result of the sound at the starting point and during working so as to assess the actual sound that emits from the unit. The pollution control mechanism provided is not sufficient and representations were made, evidenced by Annexure - A6, to take appropriate steps to mitigate the situation. They have informed that action will have to be taken in respect of violation of Noise Pollution (Regulation and Control) Rules, 2000 and the Pollution Control Board has no authority to take action but the Police Department under the said Rules have to take action, but that is not correct.
5) Since no action was taken by them, the applicant filed by this application seeking the following reliefs:-
"i. To direct the Kerala State Pollution Control Board to issue necessary directions to the 3rd respondent for the installation of proper tamper free equipment for the online measurement of noise level generated from the industrial unit of the 3 rd respondent for the effective implementation of the Noise Pollution (Regulation and Control) Rules, 2000 with complete access for seeing the data by the general public including the 2nd respondent;
ii. To issue proper directions to the 4th respondent to issue proper authorization or make proper changes for the implementation of the Noise Pollution (Regulation and Control) Rules, 2000 by issuing Page 4 of 24 proper authorization to launch prosecution to take cognizance of offences under Sec.19 of the Environment (Protection) Act, 1986.
iii. To direct the 2nd respondent to take proper steps required under law for the implementation of the Noise Pollution (Regulation and Control) Rules, 2000 including passing of prohibitory orders to stop the generation of noise, launching of complaint, seizing of equipment‟s and other steps in accordance with law against the 3rd respondent unit and its officers responsible;
iv. Pass such other orders or direction which this Hon‟ble Tribunal may deem fit, proper and necessary in the circumstances of the case for the effective implementation of Noise Pollution (Regulation and Control) Rules, 2000."
6) The 2nd Respondent filed counter contending that the 3rd respondent unit is established in Ward No.VI of the Pampakuda Grama Panchayath in pursuance of Establishment Permit issued by the Gram Panchayth vide its order bearing No A5.406/2008 dated 30.10.2008. They are engaged in the manufacture of plastic woven fabrics and flexible packaging materials, with operating capacity of 700 MT sacks per month housed within an area of 50,000 Sq.ft. and employed around 300 people. They have obtained necessary consent and license from various authorities, including Fire & Rescue Department, Pollution Control Board, District Medical Officer, Factories and Boilers, Electrical Inspectorate etc. When the unit was inspected, it was revealed that the unit have installed liquid waste management treatment plant and also constructed sewage treatment plant, thereby they have compiled with the requirement of recycling and reusing of waste water generated. There is a perennial water source (open well) is available inside the compound and it is a Green Category industry certified by the Kerala State Pollution Control Board. A letter has been sent to the Kerala State Pollution Control Board to check whether there is any violation found in connection with the noise pollution norms and also for giving adequate suggestions to the unit for abating the noise pollution permanently without giving any room for any complaint from the public. Whenever any law and order issue raised in connection with the 3rd respondent unit, police will take necessary legal steps at the right time.
7) The 3rd respondent filed counter contending that the application is not maintainable. The applicant has no locus standi claiming to be a registered society under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 having Registration Page 5 of 24 No. ER. 155/08, evidenced by Annexure A1 and A2. But a perusal of Annexure - A1, will go to show that the society registered with the Regn.No.ER. 155/08 is not the applicant herein, but it is "Onakkur Paristhithi Samrakshana Paura Samithi" and it is entirely different establishment and as such, they are not entitled to maintain the application representing the interest of the local people as alleged by them. According to them, it is only a paper organization which is evidenced from Annexure - A6 and as such, this application is not maintainable. The present application is nothing but as a bargaining in disguise represented by one Abraham Paul and the said Abraham Paul and his brother Anil V.Paul were having properties near to the site of the 3rd respondent unit. They were raising vexatious allegations against the 3rd respondent by filing false complaints. For smooth functioning of the unit, the 3rd respondent was constrained to purchase the lands of Abraham Paul and his brother Anil V.Paul for an exorbitant prize in the year 2017, evidenced by Annexure - R3(a) and Annexure - R3(b), Sale Deeds. It is only an attempt on the part of the applicant to sell the remaining portion of the land to the 3rd respondent unit, which the 3rd respondent is not interested in purchasing and it is for that purpose, the application has been filed. The unit is situated in an extent of 7.45 Acres of land and it is situated in a lower terrain than the neighbouring houses. The machineries and the working space of the unit is housed in a building with plinth area of 1,09,000 sq. ft. and the building is assigned with number as 7/33, 7/33B, 7/33C, 7/33D and 7/33E respectively by the local Grama Panchayat, evidenced by Annexure - R3(c) and Annexure
- R3(d). The allegation that huge noise pollution is being caused on account of their activity, affecting the people in the locality including causing disturbance for using mobile phones, T.V., etc. are not correct. They were working since 2008 without any complaints from any of the neighbours including Abraham Paul or his brother till 2016. Even going by Annexure - 5, it is within the permissible limit. They are strictly abiding the conditions imposed by the Pollution Control Board and the further directions issued by the Pollution Control Board had been carried out by them. They have provided flip curtains in all entrances to the building of the unit as additional measure as directed by the Pollution Control Board and the compliance of the same had been informed to the Board vide Annexure - R3 (e). They also produced some photographs as Annexure R3 (f) showing the pollution Page 6 of 24 control mechanism provided by them. They have denied all the allegations of pollution caused on account of their unit. They further contended that they are strictly complying with the conditions imposed and they are not causing any pollution. So, they prayed for dismissal of the application.
8) The 4th respondent filed counter contending that the application is not maintainable as against them. Exercising the powers conferred under the Environment (Protection) Act, 1986 read with Rule 5 of the Environment (Protection) Rules, 1986, the Central Government has notified the Noise Pollution (Regulation and Control) Rules, 2000 and makes amendments thereof. As per Section 3 (2) of the Noise Pollution (Regulation and Control) Rules, 2000, the State Government and concerned authorities shall categorize the areas into industrial, commercial, residential or silence areas/zones for the purpose of implementation of noise standards for different zones. As per Rule 4 (3) of the Noise Pollution (Regulation and control) Rules, 2000, the respective State Pollution Control Boards and Pollution Control Committee in consultation with the Central Pollution Control Board shall be responsible to collect, compile and publish technical and statistical data relating to noise pollution and measures devised for its effective prevention, control and abatement. Rule 5 A of the said Rules, restricts the use of horns, sound emitting construction equipments and bursting of fire crackers which reads as follows:
"5A. Restrictions on the use of horns, sound emitting construction equipments and bursting of fire crackers.
(1) No horn shall be used in silence zones or during night time in residential areas except during a public emergency.
(2) Sound emitting fire crackers shall not be burst in silence zone or during night time.
(3) Sound emitting construction equipments shall not be used or operated during night time in residential areas and silence zones."
9) It is further contended that as per Rule 7 of the said Rules, any complaint with respect to the violation of any provision of these rules is to be made to the competent authority. Rule 7 reads as follows:
"Complaints to be made to the authority.
1) A person may, if the noise level exceeds the ambient noise standards by 10 dB (A) or more given in the corresponding columns against any area/zone, [or, if there is a violation of any provision of these rules regarding restrictions imposed during night time,] make a complaint to the authority.
(2) 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."Page 7 of 24
10) The 3rd respondent filed I.A. No.69 of 2021 (SZ) to receive additional document as Annexure - R3 (h), the compliance report submitted by them dated 12.10.2021 to the State Pollution Control Board and that application was allowed and the same has been received.
11) The 3rd respondent also filed I.A. No.91 of 2021 (SZ) to receive documents which was obtained under the RTI Act from the District Registrar General's Office, Ernakulam in respect of the applicant's organization in this Original Application and that application is allowed and the document received subject to its admissibility and relevancy to be considered in this Judgment.
12) The applicant in the Original Application also filed I.A. No.13 of 2021 to correct the name since that was opposed by the 3rd respondent, the same is being considered along with the Original Application.
13) Vide Order dated 22.12.2020, while admitting the matter, this Tribunal directed the State Pollution Control Board to inspect the unit in question and submit a factual as well as action taken report and also ascertain as to whether the sound control mechanism provided are sufficient and if not, give suggestion as to how this can be abated permanently without giving room for any complaint regarding the sound pollution from the public residing around the area. Further, they were directed to conduct the noise level test during day time and night time at different intervals while the unit was in operation in its full optimum level so as to ascertain the amount of noise that is being emanated and the adequacy of the pollution control mechanism provided and submit a report to that effect. Apart from that, they were also directed to file independent response.
14) When the matter was taken up on 16.03.2021, the State Pollution Control Board filed the report dated 27.01.2021, e-filed on 28.01.2021, along with the report, they also produced the result of the sound level test. After considering the above report, this Tribunal passed the following order:-
"9. It is seen from the report that the sound level that is noted during day time and night time exceeds the sound level prescribed under the rules. They have also issued certain directions by issuing proceedings no. PCB/EKM/IAO-185/07 dated 25.01.2021 wherein they have directed the 3rd respondent to do the following control measures
i) Build a barrier wall of adequate height between the factory building and boundary wall to reduce the sound pressure level.Page 8 of 24
ii) Provide acoustic panels of adequate sound absorbing materials in loom and compressor area.
iii) Or any suitable measures in order to reduce the sound level.
10. The counsel appearing for the 3rd respondent submitted that they will take all necessary precaution as directed by the Pollution Control Board to avoid sound pollution.
11. It is seen from the report that the unit is functioning throughout day and night on shift basis and the sound pollution was more during night time.
12. The Pollution Control Board (PCB) is directed to file a further report showing the regulation of timing of industrial units that is being operated in that area is there any restriction of timings for carrying out the operations in such area, which authority is regulating these activities etc., and also file a further report as to whether the directions issued by them in the notice issued in January, 2021 has been complied with by the 3rd respondent and also conduct further sound level test to ascertain as to whether on account of the compliance of the directions issued by them any improvement has been passed in controlling the sound pollution in that area.
13. I.A. No. 13 of 2021. This is an application filed by the applicant to correct the name of the applicant as Onakkur Paristhithi Samrakshana Paura Samithy instead of Onakkur Paristhithi Samrakshana Samithy. But Annexure A-6 document produced by the applicant themselves will show that the name in the letter head was shown as Onakkur Paristhithi Samrakshana Samithy. But in the application they have mentioned that it is a registered society under the provisions of the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 having Registration No. ER 155/2008 where it has been registered as Onakkur Paristhithi Samrakshana Paura Samithy and the word "Paura" has been omitted in the cause title. But they have not produced the registration certificate show that this is the name under which their society has been registered under the above said Act.
14. When this was pointed out, the learned counsel appearing for the applicant submitted that they will produce the copy of the Registration certificate to convince this Tribunal that the name is as sought for in the application for amendment filed by them.
15. They are directed to file the further action cum compliance report on or before 20.04.2021 by e-filing in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF along with necessary hard copies to be produced as per rules."
15) This Tribunal also issued certain directions to the applicant to produce relevant documents to show that the applicant's organization is a registered society entitled to file an application on behalf of the organization.
16) Pursuant to the direction of this Tribunal, the State Pollution Control Board has filed the further report dated 18.06.2021, received on 21.06.2021 which reads as follows:-
"REPORT FILED BY THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE II, PERUMBAVOOR
1. ... xxx .... xxx ... xxx
2. Since the sound level obtained during the day time and night time exceeds the sound level prescribed for residential area during the monitoring conducted on 23.01.21, direction was given to the industry to provide sound barrier wall of adequate height between the industrial shed and the boundary and to provide adequate sound absorbing panels in the northern side of the loom area and compressor room through the Page 9 of 24 letter dated 25.01.21. In compliance with the direction given following additional control measures provided in the company for noise reduction
1. Transparent PVC strip curtains were installed at three number wide opening locations in North sidewall between main shed and the lean-to-shed area.
2. Gunny fabric false ceiling works carried out below the roof in the entire area of both sheds.
3. PVC sound barrier screens erected throughout the length of external wall of lean- to-roof area in East-West direction.
4. Hanged gunny fabric curtains in inner surface of the lean-to- roof area.
5. On Northern outer border of the company in front of the petitioner‟s residence and parallel to the Panchayat road, erected a frame work of 12 m height at a length of 85 m and the frame work is covered with synthetic carpet material in two layers.
6. The metallic roof sheets slopping towards north side of factory shed are blanketed with synthetic carpet material for dampening the noise reverberated in the metallic roofing.
3. Sound monitoring conducted on 09.06.21. Monitoring started at 9.30 am and stopped on 10.06.21, 9.30 am. Sound level, was measured near the residence of Sri. Abraham Paul to ascertain as to whether on account of the compliance of the directions issued by them any improvement has been passed in controlling the sound pollution in that area. Only 67 looms out of 97 looms is functioning at the time of monitoring as the production is limited due to low supply order.
Average sound level obtained during various time intervals are given below:
Base ambient Date Time sound level obtained(Without industrial operation) 9.43a.m to 10.14a.m 58.8 dB(A) 09.06.2021 10.13 p.m to 11.01 pm 53.7 dB(A) Average sound level Date Time (Day time) obtained 11.02 a.m. - 11.32 a.m. 54.7 dB(A) 09.06.2021 - 11.43 a.m. - 12.57 p.m. 54.0 dB(A) 10.06.2021 1.44 p.m. - 3.17 p.m. 61.6 dB(A) 3.35 p.m. - 5.25 p.m. 61.6 dB(A) 5.56 p.m. - 08.23 p.m. 60.0 dB(A) 8.24 p.m. - 10.10p.m. 58.8 dB(A) Average sound level calculated for day time ( 11 59.37 dB(A) am to 10 pm)(Ambient + Industry) Noise Sound level due to operation 50.27 dB(A) of the company in day time Date Time (Night time) 11.02 p.m to 12.41 a.m 53.3 dB(A) 09.06.2021-
10.06.2021
12.42 a.m to 04.29 a.m 56.6 dB(A)
Page 10 of 24
Average sound level
calculated for night time ( 11
pm to 4.30 am)(Ambient 55.1 dB(A)
+ Industry) Noise
Sound level due to operation
of the company in Night 49.5 dB(A)
time
4. Intermittent rain interrupted the monitoring in some intervals. The chirping of beetles in the monitoring area contributed to an increase in sound pressure level especially in evening, night and early morning. Even though monitoring conducted up to 9.30 am, sound pressure level during morning hours is not considered as the chirping sound of beetles are very high during this period. Copy of the sound level monitoring report is produced herewith and marked as Exhibit R1(a).
5. Table showing comparison of average sound level obtained during monitoring on 23.01.21 and 9.06.21 during day time and night time is given below.
Average sound level Date Monitoring period (day Time) due to operation of the company in day time 9.30 am to 9.30 pm 61.63 dB(A) 23.01.21 09.06.21 11 am to 10 pm 50.27 dB(A) Average sound Date Monitoring period (night level due to time) operation of the company in Night time 9.30 pm to 7a m 58.71 dB(A) 23.01.21 09.06.21 10 p.m to 4.30 a.m 49.5 dB(A)
6. From the above tables, it is clear that by providing additional control measures for abating noise pollution by the unit, there is considerable reduction in noise level.
7. It is submitted that the Board insists time regulation for the operation of stone crusher units and quarries and the permitted operational timing for the above two activities is 6 a. m to 6 p.m. No other time restriction is insisted the area in which the unit in question is functioning. It is to be insisted that the industries should conform to the national ambient noise standards with respect to the adjoining area. The National ambient noise standards is produced herewith and marked as Exhibit R1(b). Board is the prescribed regulatory authority to monitor and control the noise pollution in the industries."
17) Heard the learned counsel appearing for the applicant and respondents.
Page 11 of 2418) The learned counsel appearing for the applicant argued that the contentions of the 3rd respondent that the applicant is not an authorized to file the application representing the society is not sustainable in view of the subsequent documents produced by the applicant along with I.A. No.13 of 2021 (SZ) where it will be seen that the organization was registered as "Onakkur Paristhithi Samrakshana Paura Samithi" and by mistake, it was shown as "Onakkur Paristhithi Samrakshana Samithi" in the cause title and the documents produced along with that application for amendment will go to show that it was only a mistake and they may be permitted to carry out the amendment in the cause title. Further, the documents produced by the 3rd respondent themselves along with I.A. No.91 of 2021 will go to show that such an organization was registered and it was only mentioned that the applicant organization now shown is not registered and not otherwise. Further, the 3rd respondent had not produced any documents to show that no such organization was in existence. Further, the applicant had produced along with the application as Annexure - A1 that "Onakkur Paristhithi Samrakshana Paura Samithi" was a registered organization registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 and it was only a mistake that the word 'Paura' was omitted in the cause title. Further, the documents produced will go to show that on account of the operation of the 3 rd respondent unit, lot of sound pollution is being caused and they will have to control the sound pollution without affecting the health of the people of that locality. Further, they were operating the unit throughout day and night and that causes injury to the people. So, necessary directions will have to be issued in this regard.
19) The learned counsel appearing for the State Pollution Control Board argued that though there was some excess sound level found at the time of inspection during day time and night time, on the basis of the directions issued by the State Pollution Control Board, the 3rd respondent unit had carried out certain pollution control mechanism and thereafter, when the sound level was taken, there was a considerable reduction in the sound level and they will monitor the unit and if there is any complaint regarding the sound pollution, they will take appropriate action.
Page 12 of 2420) The learned counsel appearing for the 2nd respondent argued that they have not received any complaint regarding the sound pollution and as and when, the complaint is received, they will take appropriate action under the Noise Pollution (Regulation and Control) Rules, 2000. Further, if there is any sound pollution caused, it is for the State Pollution Control Board to take action under the Air (Prevention and Control of Pollution) Act, 1981.
21) The learned counsel appearing for the 3 rd respondent argued that the application itself is not maintainable as the documents produced by the applicant themselves will go to show that the organization that was registered is "Onakkur Paristhithi Samrakshana Paura Samithi"
and not "Onakkur Paristhithi Samrakshana Samithi". Further, the portion of the property was purchased from the applicant and his brother Anil V. Paul and they wanted to sell the remaining property demanding exorbitant price, for which, the 3rd respondent was not amenable and that prompted the applicant to file this application with false allegations of sound pollution. The unit was in existence since long time and the Consent to Establish and Consent to Operate were granted and it is on the basis of the consent that it is being operated by the 3rd respondent. The State Pollution Control Board is inspecting the unit whenever complaints were received and on the basis of the directions issued by them, pollution control mechanism have been improved and they are carrying out the directions in its letter and spirit. So, according to them, the application is liable to be dismissed.
22) We have considered the pleadings, reports submitted, submissions made by the learned counsel appearing for the parties and also perused the documents available on record.
23) The points that arose for consideration are:-
a. Whether the application is maintainable? b. Whether I.A. No.13 of 2021 (SZ) is liable to be allowed? c. Whether the allegation of sound pollution alleged against the 3rd respondent unit is true and if so, what is the nature of directions to be issued in this regard?Page 13 of 24
d. Even assuming that the application was filed by an improper person, what is the nature of direction that can be issued by this Tribunal applying the „Precautionary Principle‟ so as to protect the environment and health of the people?
e. Relief and costs.
POINTS:-
24) The application was filed by an organization by name "Onakkur Paristhithi Samrakshana Samithi" alleging that it was a registered society bearing Registration No.ER 155/08, Pampakuda, Ernakulam District represented by its President viz., Abraham Paul.
25) There was a contention raised by the 3 rd respondent that the society that was registered as claimed in the application is not the applicant organization, but it is some other organization by name "Onakkur Paristhithi Samrakshana Paura Samithi" and there is nothing to show that the applicant has got any connection with the same.
26) It is true that as per the documents produced by the applicant themselves namely, Certificate of Registration issued by the Registrar of Societies, Ernakulam that the organization that was registered was "Onakkur Paristhithi Samrakshana Paura Samithi" and the president of the society was shown as one C.A. Sasidaran and the applicant herein who is claiming to be a President viz., Abraham Paul was not the president and he was not a member of the organization at the time when it was registered. When the applicant herein filed I.A. No.13 of 2021 for amendment of the cause title to correct the name of the organization as "Onakkur Paristhithi Samrakshana Paura Samithi" in tune with the Certificate of Registration, after hearing the parties, this Tribunal directed the applicant to produce the documents to show that he was a member of the society entitled to represent the organization.
27) Though the learned counsel appearing for the applicant submitted that they have produced the documents to show that he is the member of the organization and he is the present president of the organization and he has been authorized by the organization by Page 14 of 24 resolution to file an application, no such document has been seen filed. However, the fact that the organization was registered with name "Onakkur Paristhithi Samrakshana Paura Samithi" as per the documents produced and the brother of the person who now filed the application as a president viz., Anil V. Paul was the secretary of the organization at the time of its registration which is evident from the Annexure- A2 produced along with the application.
28) Further, in the case of environmental issues, the technicality regarding the locus standi to file application etc., will not stand in the way for the Tribunal to consider the application and pass appropriate orders. If there is any violation of environmental laws committed by the 3rd respondent or any substantial question of environment is raised that is being caused on account of the operation of the 3rd respondent unit affecting the health of the people, then the Tribunal can consider those aspects and pass appropriate orders by giving appropriate directions applying the „Precautionary Principle‟. Even assuming that the organization as such is not the organization registered as per Annexure - A1 & A2, but it will be seen from the seal affixed in the application that it was 'President - Onakkur Paristhithi Samrakshana Samithi' and not 'Onakkur Paristhithi Samrakshana Paura Samithi' as shown in the Certificate of Registration. Even if it is not a registered society under the Societies Registration Act, it can be treated as an application filed by the individual viz., Abraham Paul raising a substantial question of environment and as such, the application is maintainable.
29) So under such circumstances, we are not inclined to accept the submission made by the 3rd respondent that the application is not maintainable as such and in view of the non-production of the documents by the applicant to show that it was only a mistake and he was the president of the society which was registered as per the Annexure - A1, the interlocutory application [I.A. No.13 of 2021] to permit the applicant to amend the cause title cannot be allowed. So, we are disposing the I.A. No.13 of 2021 (SZ) with the above observation.
30) As regards the allegation of sound pollution is concerned, this Tribunal had directed the State Pollution Control Board to inspect the unit in question and submit a report. We cannot as such restrain the Page 15 of 24 3rd respondent from operating the unit, as they have obtained necessary consent from the State Pollution Control Board as early as in the year 2018 and also obtained necessary registration from the small scale industries and other departments and also from the Pampakuda Gram Panchayat and other necessary certificates and none of those certificates or permission were challenged by the applicant or any other person by process known to law. But at the same time, if there is any violation of conditions committed by the 3 rd respondent or any pollution has been caused on account of their operation to both air and water, then this Tribunal can consider the application and pass appropriate orders.
31) Further, the definition of the air pollutant under Section 2 (a) of the Air (Prevention and Control of Pollution) Act, 1981 says 'air pollutant' means, "Any solid, liquid or gaseous substance (including noise) (which was inserted by Act 47 of 1987 came into effect w.e.f.
01.04.1988) present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment" and the air pollution was defined under Section 2 (b) of the said Act that 'air pollution' means "the presence of any air pollutant in the atmosphere". So, this will go to show that increase in noise level which is beyond the prescribed limit will amount to air pollution and attracts the provision of the Air (Prevention and Control of Pollution) Act, 1981.
32) Further, the Noise Pollution (Regulation and Control) Rules, 2000 prescribes certain limits of Ambient Air Quality as provided under the schedule annexed to the Rules. Further, there were four categories of zone or area provided under the rules and Ambient Air Quality Standards were provided in respect of noise level in the schedule attached to the same and Rule 3 of the said Rules deals with this aspect and Rules 4, 5, 6 & 7 deals with the procedure and responsibility of the enforcement of the Noise Pollution Rules and the authority which will have to take steps as well. The schedule to the said Rules prescribing the Ambient Air Quality Standard is read as follows:-
"SCHEDULE Ambient Air Quality Standards in respect of Noise Area Code Category of Limits in dB(A) Leq * Area/Zone Page 16 of 24 Day Time NightTime (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. Night time shall mean from 10.00 p.m. to 6.00 a.m.
3. 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", in 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 specified period.
33) So, in a residential zone, the Ambient Air Quality that is permissible is 55 dB(A) in the day time and 45 dB(A) in the night time. Further, Rule 5 of the said Rules prescribes the upper limit of noise level that in any case it shall not exceed 10 dB(A) above the Ambient Noise Standards for the area or 75 dB(A) whichever is lower. Furthermore, Rule 7 of the said Rules deals with the complaint to be made to the authorities which says "(1) A person may, if the noise level exceeds the ambient noise standards by 10 dB(A) or more given in the corresponding columns against any area/zone (or, if there is a violation of any provision of these rules regarding restrictions imposed during night time,) make a complaint to the authority." So, a margin of 10 dB(A) has been permitted over and above the standard provided under the schedule so as to make it a noise level which is required to be taken cognizance by the authority for taking any action.
34) Further, in the decision reported in Farhd K. Wadia Vs. Union of India & Ors.1, the Hon'ble Apex Court has held that "Interference by the court in respect of noise pollution is premised on the basis that a citizen has certain rights being „necessity of silence', „necessity of sleep', „process during sleep' and „rest', which are biological necessities and essential for health. Silence is considered to be 1 (2009) 2 SCC 422 Page 17 of 24 golden. It is considered to be one of the human rights as noise is injurious to human health which is required to be preserved at any cost."
35) The same view has been reiterated by the Hon'ble Apex Court in the decision reported in In Re: Ramlila Maidan Incident 2 . In the above decision, it has been further observed that "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."
36) The powers under Rule 5 (3) of the Noise Pollution (Regulation and Control) Rules, 2000 was challenged and it was upheld by the Hon'ble Apex Court in the decision reported in In Re: Noise Pollution (5)3, In Re: Noise Pollution (7) and In Re: Forum, Prevention of Environmental and Sound Pollution Vs. Union of India & Anr.4 Further, in the decision reported in Church of God (Full Gospel) in India Vs. K.K.R. Majestic Colony Welfare Association 5 , the Hon'ble Apex Court has observed that the activities which disturbs the peace in the name of religion, cannot be permitted in a civilized society as rights are closely related to duties. The rights of babies, children, students, aged and mentally or physically inferred to be protected from noise pollution in the form amplified broadcast of prayers, music or religious recitations. It was also observed in the decision that though the religious recitations are required to be honoured more so as to regular exposure to noise leads to many kinds of medical problems, including high blood pressure, deafness and mental stress.
2(2012) 5 SCC 1 3 (2005) 5 SCC 733 4 (2005) 8 SCC 796 5 (2000) 7 SCC 282 Page 18 of 24
37) It was further observed in the decision cited (supra) that "the problem of noise pollution has become more serious with increasing trend towards industrialization, urbanization and modernization and is having many evil effects including danger to the health. It may cause interruption of sleep, affect communication, loss of efficiency, hearing loss or deafness, high blood pressure, depression, irritability, fatigue, gastro-intestinal 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." Even in that decision, it has been observed that if the music is also played with a tolerable sound, then it will be an enjoyable one, but if it exceeds the limit, then it will become a noise causing irritation to the people who are hearing the same.
38) These decisions have categorically stressed the need for regularizing the sound pollution which is likely to have great health impact and whenever it exceeds the prescribed limit provided, then appropriate action will have to be taken under the Air (Prevention and Control of Pollution) Act, 1981 as well as the Noise Pollution (Regulation and Control) Rules, 2000.
39) So, even if permissions were granted by the authorities to run an industry, the person who is running the industry has got an obligation to maintain the standard provided for ambient air standard. If any of the machineries are likely to produce noise, then it is for them to reduce the noise level, if it exceeds so as to affect the right of the people to have silence and considering its ill effect. If there is any violation of such rules, then it is for the authorities including the Pollution Control Board to take appropriate action against such units which are causing noise pollution.
40) In this case, on the basis of the directions of this Tribunal, the State Pollution Control Board had conducted the noise level test and submitted the report. It was seen from the report submitted by the Pollution Control Board that at the time when renewal of Consent to Operate was made on 03.07.2018, it was observed that the noise level monitoring was conducted near the residence of the complainant viz., Abraham Paul who is none other than the applicant herein and it Page 19 of 24 was found that the noise level obtained during inspection was above 70 dB (A). So, a direction was given to the industry to provide additional noise control measures so as to reduce the sound level and in compliance of the said direction, the unit reported vide letter dated 31.08.2018 that the following sound control measures have been provided to reduce the sound level:-
"1) All 65 ventilators on north side walls closed permanently.
2) 25 Nos. windows of the factory building having hinges on east side were replaced with fixed glazing.
3) Erected additional MS frame works to the entire length of the outer shed in northern side of the factory building and fitted with PP sheets.
4) Three entrance doors on north side wall of the factory shed were fitted with transparent PVC strip curtains.
5) Existing 5 Nos. air compressors (reciprocating type) installed on north side shed were replaced with four numbers new acoustically protected screw type air compressors.
6) Silencer of the DG set replaced with larger one 7) Planted 125 saplings of fast growing curtain plant outside building on northern side."
41) Thereafter, another inspection was conducted on 12.09.2018, at a distance of 1 meter outside the boundary of the unit on the northern side and the following sound level were noted:-
Base Sound level - 57.7 dB (A) Sound level during operations - 62.7 dB (A)
42) Since the sound level was within the permissible level, the renewal of Consent to Operate was granted. Further, it is also seen from the report that on the basis of the directions of this Tribunal, inspection was conducted on 19.01.2021 and the sound level was noted near the house of the applicant/Abraham Paul and observed that the sound level obtained during day time and night time exceeds the sound level prescribed for residential area, and direction was given to the industry to provide sound barrier wall of adequate height between the industrial shed and the boundary and to provide adequate sound absorbing panels in the northern side of the loom area and compressor room.
43) Subsequent report filed by the State Pollution Control Board dated 18.06.2021 will go to show that the sound level was within the permissible limit after providing additional control measures for abating the noise level by the unit. They also suggested for limiting the working hours. Further, it is seen from the report that there was some noise pollution caused on account of the operation of the unit Page 20 of 24 and directions were issued by the Pollution Control Board to abate the same and after compliance of the directions, the sound level has been brought down. But as observed by the Pollution Control Board, there is some necessity for providing restriction of operation of the unit and allowing the unit to work day and night is likely to cause health hazard in that locality. So, we feel that the 3rd respondent unit has to be restrained from operating the unit between 10:00 p.m. and 06:00 a.m.
44) In view of the detailed discussions and observations made above, we feel that the application can be disposed of by giving following directions:-
a. Though the application was filed by an organization which was not the one registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 as mentioned in the application, that will not prevent the Tribunal to consider the grievance in the application as the report of the Pollution Control Board shows that the person who claims to be a President of the Organization viz., Abraham Paul, is a resident very near to the unit and he is the person likely to be affected if the sound level exceeds and as such, the Tribunal hold that the application is maintainable in his individual capacity, though he is not able to maintain the application as a President of some society which is said to be registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955.
b. We restrain the 3rd respondent unit from operating the unit from 10:00 p.m. and 06:00 a.m. applying the „Precautionary Principle‟ and also considering the health of the people who are likely to be affected due to the possible sound pollution that is likely to be caused on account of the operation of the 3rd respondent unit.
c. The 3rd respondent is directed to provide all necessary pollution control mechanism as directed by the State Pollution Control Board so as to minimize the sound that is likely to be emitted from the unit during its operation so as to bring the sound level in tune with the standard provided Page 21 of 24 under the Noise Pollution (Regulation and Control) Rules, 2000.
d. The State Pollution Control Board is directed to monitor the operation of the 3rd respondent unit periodically and conduct periodical test with respect to ambient noise level standard and whenever it was found that it exceeded the standard provided, then they are directed to issue necessary direction to the 3rd respondent to take further pollution control mechanism to abate the noise pollution that is likely to be caused and if there is any violation found or non-compliance, then they are directed to take appropriate action against the 3rd respondent in accordance with law including imposition of environmental compensation as directed by this Tribunal in several cases of this nature.
45) The points are answered accordingly.
46) In the result, this Original Application is allowed in part and disposed of with the following directions:-
i. Though the application was filed by an organization which was not the one registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 as mentioned in the application, that will not prevent the Tribunal to consider the grievance in the application as the report of the Pollution Control Board shows that the person who claims to be a President of the Organization viz., Abraham Paul, is a resident very near to the unit and he is the person likely to be affected if the sound level exceeds and as such, the Tribunal hold that the application is maintainable in his individual capacity, though he is not able to maintain the application as a President of some society which is said to be registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955.Page 22 of 24
ii. We restrain the 3rd respondent unit from operating the unit from 10:00 p.m. and 06:00 a.m. applying the „Precautionary Principle‟ and also considering the health of the people who are likely to be affected due to the possible sound pollution that is likely to be caused on account of the operation of the 3rd respondent unit.
iii. The 3rd respondent is directed to provide all necessary pollution control mechanism as directed by the State Pollution Control Board so as to minimize the sound that is likely to be emitted from the unit during its operation so as to bring the sound level in tune with the standard provided under the Noise Pollution (Regulation and Control) Rules, 2000.
iv. The State Pollution Control Board is directed to monitor the operation of the 3rd respondent unit periodically and conduct periodical test with respect to ambient noise level standard and whenever it was found that it exceeded the standard provided, then they are directed to issue necessary direction to the 3rd respondent to take further pollution control mechanism to abate the noise pollution that is likely to be caused and if there is any violation found or non- compliance, then they are directed to take appropriate action against the 3rd respondent in accordance with law including imposition of environmental compensation as directed by this Tribunal in several cases of this nature.
v. Considering the circumstances, parties are directed bear their respective cost in the original application.
vi. The Registry is directed to communicate this order to the State Pollution Control Board and also to the Pampakuda Gram Panchayat for their information and compliance of directions.Page 23 of 24
47) With the above observations and directions, this Original Application is disposed of.
48) In view of the disposal of the original application and also observation made by this Tribunal in the earlier paragraphs of this Judgment, I.A. No.13 of 2021 (SZ) and I.A. No.91 of 2021 (SZ) are also disposed of accordingly without passing any separate orders, as those prayers were also considered by the Tribunal while disposing the matter.
Sd/-
Justice K. Ramakrishnan, J.M. Sd/-
Dr. Satyagopal Korlapati, E.M. O.A. No.262/2020 (SZ) I.A. No.13/2021 (SZ) I.A. No.91/2021 (SZ) 26th September 2022. Mn.
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