Topic: Sayeed Maqsood Ali V/s State of Madhya Pradesh
Sayeed Maqsood Ali V/s State of Madhya Pradesh
Equivalent citations: AIR 2001 MP 220, 2001 (3) MPHT 459 - Bench: D Misra – date of Judgment: 19 March, 2001
Dipak Misra, J.
1. Life is a glorious gift from God. It is the perfection of nature, a masterpiece of creation. It is majestic and sublime. Human being is the epitome of the infinite prowess of the divine designer. Great achievements and accomplishments in life are possible if one is permitted to lead an acceptably healthy life. It has been said "life is action, the use of one's powers" and powers one can use if he has real faith in life. The term 'life' as employed under Article 21 of the Constitution of India does never mean a basic animal existence but conveys living of life with utmost nobleness and human dignity - dignity which is an ideal worth fighting for and worth dying for. Life takes within its fold "some of the finer graces of human civilization which makes life worthliving". Right to live in its ambit includes right to health and health gives a serene and halcyon signification to life. It has been said that preservation of health is a duty and as per Herbert Spencer, "few seems conscious that there is such a thing as physical morality". While speaking about health thus spoke Izaak Walton ....... "for health is the second blessing that we mortals arc capable of; a blessing that money cannot buy". Reverence for life is a fundamental principle of morality and a life without good health is denial of life. The human body is regarded as the house of creative intelligence. The health of an individual enhances the quality of the collective and in a welfare state it is the bounden obligation of the State to see that people remain in a healthy society. It is to be borne in mind that even in the international sphere emphasis is laid on proper health and a right is enshrined providing security against sickness and disablement under Article 25 of the Universal Declaration of Human Rights. I have adverted to health and life as in the case at hand this Court is concerned with noice pollution which causes many a serious disorders and creates a dent in the fabric of society. C.S. Kerse in his book 'The Law Relating to Noise' has categorically stated that noise is undoubtedly psychologically and physiologically harmful as an invisible and insidious form and once hearing has been damaged by noise it can scareely ever be restored to wholeness. The learned author as also proceeded to state that noise causes loss of sleep, annoyance, nervous tension, heart disease, migraine and gastro-intestinal disorders, Recently, the Apex Court in the case of Church of God (Full Gospel) in India Vs. K.K.R. Majestic Colony Welfare Association and others, AIR 2000 SC 2773, expressed thus : "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, 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 effect 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."
Research has established that sudden loud sound can cause acute damage to the ear drum and to the tiny hair cells in the cochlea of the internal ear. It has also been proven that prolonged noise as that from the pounding machines in some industries may cause temporary or permanent deafness, by damaging organs of corti in the internal ear. Noise can cause positive harm in geriatric stage. In the case at hand, the petitioner, a cardiac patient who has undergone a coronary artery bypass surgery in the year 1996 has knocked at the doors of justice under Articles 226 and 227 of the Constitution of India to command the respondents to take action against the use of loud- speaker and other public address system under the provisions of the Noise Pollution (Regulation and Control) Rules, 2000 (hereinafter referred to as 'the Rules') and further not to allow the respondent No. 7 causing such disturbance affecting the public tranquillity which ordinary things are powerless to bestow.
2. The facts as have been undraped in the present writ petition are that the house of the petitioner is situate near Dr. Batalia Eye Hospital and by the side of Sindhi Dharamshala, Ghantaghar, Jabalpur. In the vicinity there are hospitals and educational institutions such as Siraj Ahmed Memorial Hospital, Dr. Batalia's Eye Hospital and Government Higher Secondary School. The Sindhi Dharamshala which is situate nearby accommodates various categories of people and many a religious function is held throughout the year. The Dharamshala also is given on rent for the purpose of holding marriages and other functions. In the Dharamshala loud-speakers are utilized where music is played at a very high pitch creating disturbance to the petitioner and other persons residing in the said locality. It is pleaded in the petition that due to the act of respondent No. 7 there is noise pollution and the petitioner's health is affected and though he has submitted various complaints and approached the authorities for stopping the said nuisance it has fallen in deaf ears. It has been setforth that Section 30 of the Police Act, 1861 confers powers on the authorities to take appropriate action against such persons who are responsible for noise pollution but no steps have been taken. The sphinx like silence has crumbled his hortative hopes in the administration. With these averments the prayers have been made as have been indicated hereinabove.
3. A preliminary reply has been filed by the respondents 2, 4 and 5 namely the State of M.P., M.P. State Pollution Board and the District Magistrate, Jabalpur, contending, inter alia, that the District Magistrate, Jabalpur has issued an order on 24-1 -2000 as contained in Annexure R-1 restraining/ prohibiting the use of public address system etc. under the provisions of the M.P. Noise Control Act, 1985 (hereinafter referred to as 'the 1985 Act') and, therefore, the grievance of the petitioner is mitigated.
4. A return has been filed by the respondent No. 7 highlighting that the affairs of Sindhi Dharamshala, Jabalpur are managed by 'Sindhi Sewak Sabha' an Association of Sindhi Community, Jabalpur. It is pleaded that the Dharamshala is let out to every community and sect of people for the purposes of marriages, sermons/lectures of religious leaders, Bhagwat and Ram Katha etc. It is also setforth that Dharamshala is provided free of charge to the Government when the occasion or situation so warrants. Various instances have been narrate in the return. According to the said respondent that whenever Dharamshala is let out a condition is imposed that no loud-speaker etc., will be played in the Dharamshala without the permission of the City Magistrate and at no point of time any one has been permitted to play the loud-speaker without the appropriate permission. Reference has been made to certain permissions to show that the permissions are granted on certain stringent conditions. It has been setforth that the volume of loud-speaker does not exceed the permissible limit and hence, the petitioner cannot put the blame on the management of the Dharamshala.
5. I have heard Mr. Manish Datt, learned counsel for the petitioner, Mr. P.D. Gupta, learned Dy. A.G. for respondents 2 and 5, Mr. P.K. Jaiswal, learned counsel for respondent No. 4 and Mr. R.N. Singh, learned Senior Counsel alongwith Mr. A.J. Pawar, learned counsel for respondent No. 7.
6. It is submitted by Mr. Datt that no institution or association has a right to affect the rights of an individual by creating noise which is impermissible in law on any kind of garb or disguise. It is urged by him that though the authorities have issued permissions from time to time they have not taken proper steps to see that the Rules in vougue are followed in letter and spirit and a citizen's right to live in peace and tranquillity is not affected.
Mr. P.D. Gupta, learned counsel for the State, per contra, has placed heavy reliance on the order passed by the Collector to show that appropriate steps have been taken under Section 18 of the M.P. Noise Pollution Act and the orders are passed in consonance with the provisions occupying the field.
Mr. P.K. Jaiswal, learned counsel appearing for the Pollution Board has submitted that the Board has apprised the State authorities to take appropriate action and it is upto the State authorities to see that Rules are followed.
Mr. R.N. Singh, learned Senior Counsel has canvassed that the Dharamshala only lets out the hall and area in question to the persons concerned in whose favour permissions are granted and if there is any violation it is open to the Law Enforcing Agency to take appropriate action.
7. To appreciate the rival submissions raised at the Bar it is apposite to refer to certain provisions of the 1985 Act. Section 2 (a) of the said Act defines "Loud music", Section 2 (b) defines "Loud speaker" and Section 2 (c) defines "Noise". Soft music has been defined under sub-section (f). Section 3 deals with Prohibition of soft music in certain cases. Section 4 deals with Prohibition of loud music. Section 5 stipulate General restrictions against the use of loud-speaker. Section 6 lays down the Restrictions on the use of horn-typed loud-speaker. Section 8 deals for use of loud-speakers for public purposes or making announcements and other provisions have been engrafted to control the noise and Section 18 confers powers on the District Magistrate to declare silence zones.
8. At this juncture it is apposite to state that the Central Government has enacted the Environment (Protection) Act, 1986 to provide for the protection of improvement of environment and matters connected therewith. Section 3 of the Act confers powers on Central Government to take measures to protect and improve environment. Section 6 authorises the Central Government to make Rules in respect of all or any of the matters referred to in Section 3. Section 25 authorises the Central Government to make Rules for carrying out for the purposes of the said Act. Rule 5 of Environment (Protection) Rules, 1986 vests powers with the Central Government to take into consideration certain factors while prohibiting or restricting the locations of industry and carrying on processes and operations in different areas. Relying on these provisions the Central Government has brought into existence the Noise Pollution (Regulation and Control) Rules, 2000. Certain amendments have been brought to the said Rule on 22-11-2000. The Rules 4, 5, 6 and 8 of the said Rules are relevant for our purpose. They read as under :
"4. Responsibility as to enforcement of noise pollution control
measures.-- (1) The noise levels in any area/zone shall not exceed the ambient air quality standards in respect of noise as specified in the Schedule.
(2) The authority shall be responsible for the enforcement of noise pollution control measures and the due compliance of the ambient air quality standards in respect of noise.
5. Restrictions on the use of loud-speakers/public address system.-- (1) A loud-speaker or a public address system shall not be used except after obtaining written permission from the authority.
(2) A loud-speaker or a public address system shall not be used at night (between 10 p.m. to 6.00 a.m.) except in closed premises for communication within e.g., auditoria, conference rooms, community halls and banquet halls.
6. Consequences of any violation is silence zone/area.-- Whoever, in any place covered under the silence zone/area commits any of the following offence, he shall be liable for penalty under the provisions of the Act:--
(i) whoever, plays any music or uses any sound amplifiers.
(ii) whoever, exhibits any mimetic, musical or other performances of a nature to attract crowds.
8. Power to prohibit etc. continuance of music sound or noise.-
(1) If the authority is satisfied from the report of an officer incharge of a police station or other information received by him that it is necessary to do so in order to prevent annoyance, disturbance, discomfort or injury or risk of annoyance, disturbance, discomfort or injury to the public or to any person who dwell or occupy properly on the vicinity, he may, by a written order issue such directions as he may consider necessary to any person for preventing, prohibiting, controlling or regulating :--
(a) the incidence or continuance in or upon any premises of-
(i) any vocal or instrumental music.
(ii) sounds caused by playing, beating, clashing, blowing or use in any manner whatsoever of any instrument including loud-speakers, public address systems, appliance or apparatus or contrivance which is capable of producing or re-producing sound, or
(b) the carrying on in or upon, any premises of any trade, avocation or operation or process resulting in or attended with noise.
(2) The authority empowered under sub-rule (1) may, either on its own motion, or on the application of any person aggrieved by an order made under sub-rule (1), either rescind, modify or alter any such order:
Provided that before any such application is disposed of, the said authority shall afford to the applicant an opportunity of appearing before it either in person or by a person representing him and showing cause against the order and shall, if it rejects any such application either wholly or in part, record its reasons for such rejection."
At this juncture it is apposite to reproduce the Schedule which has been framed under Rules 3 (1) and 4 (1) of the Rules : "Ambient Air Quality
Standards in respect of Noise :
Category or Area/Zone
Limits in Day Time
dB (A) Leq. Night Time
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) Silence zone is defined as an area comprising not less than 100 metres around hospitals, educational institutions and Courts. The silence zones are zones which are declared as such by the competent authority.
(4) Mixed categories of areas may be declared as one of the four above-mentioned categories by the competent authority."
In the amended Rule which is relevant for the present purpose is the sub-rule (2) of Rule 3 wherein "may categorize" has been substituted as "shall categorize" and in the Schedule to the Rule in Note 3 definition of silence zone has been substituted and the same reads as under:-- "Silence zone is defined as an area comprising not less than 100 metres around hospitals, educational institutions and Courts. The silence zones are zones which are declared as such by the competent authority."
9. The grievance of the petitioner is that while granting permission the Rules are given a go by and the instructions given by the Collector is not kept in view. It is also urged that the Rules framed by the Central Government have not at all kept in mind while issuing/granting permission. It is submitted by Mr. Datt that in the name of religion or social function or cultural activity there can be no violation of the command of the Rules. At this juncture, it is apposite to refer to the decision rendered in the case of Church of God (Full Gospel) (supra) wherein the Apex Court in Paragraphs 12 and 13 held as under :--
"12. In the present case, the contention with regard to the rights under Article 25 or Article 26 of the Constitution which are subject to "Public order, morality and health" are not required to be dealt with in detail mainly because as stated earlier no religion prescribes or preaches that prayers are required to be performed through voice amplifiers or by beating of drums. In any case, if there is such practice, it should not adversely effect the rights of others including that of being not disturbed in their activities. We would only refer to some observations made by the Constitution Bench of this Court qua rights under Articles 25 and 26 of the Constitution of Acharya Maharajshri Narendera Prasadji Anand Prasadji Maharaj Vs. The State of Gujarat, (1975) 1 SCC 11 : (AIR 1974 SC 2098). After considering the various contentions, the Court observed that "no rights in an organized society can be absolute. Enjoyment of ones' rights must be consistent with the enjoyment of rights also by others. Where in a free play of social forces it is not possible to bring about a voluntary harmony, the State has to step in to set right the imbalance between competing interests". The Court also observed that "a particular fundamental right cannot exist in isolation in a water-tight compartment. One Fundamental Right of a person may have to co-exist in harmony with the exercise of another Fundamental right by others also with reasonable and valid exercise of power by the State in the light of the Directive Principles in the interests of social welfare as a whole."
"13. Further, it is to be stated that because of urbanization or industrialization the noise pollution may in some area of a city/town might be exceeding permissible limits - prescribed under the rules, but that would not be a ground for permitting others to increase the same by beating of drums or by use of voice amplifiers, loudspeakers or by such other musical instruments and, therefore, rules prescribing reasonable restrictions including the rules of the use of loud-speakers and voice amplifiers framed under the Madras Town Nuisance Act, 1889 and also the Noise Pollution (Regulation and Control) Rules, 2000 are required to be enforced. We would mention that even though the Rules are unambiguous, there is a lack of awareness among the citizens as well as the Implementation Authorities about the Rules or its duty to implement the same. Noise polluting activities which are rampant and yet for one reason or the other, the aforesaid Rules or the rules framed various State Police Acts are not enforced, hence, the High Court has rightly directed implementation of the same."
10. In view of the aforesaid enunciation of law there remains no scintilla of doubt that the authorities are required to carry out the law in the field and see that there is no violation. It cannot be forgotten that excessive noise indubitably creates pollution. Every citizen is entitled under Article 21 of the Constitution to live in a decent environment and has the right to sleep peacefully at night. Not for nothing it has been said sleep is the best cure for waking troubles and the sleep of a labouring man is sweet. Sleep brings serenity. Lack of sleep creates lack of concentration, irritability and reduced efficiency. It cannot be lost sight of that silence invigorates the mind, energises the body and quitens the soul. That apart, the solitude can be chosen as a companion by a citizen. No one has a right to affect the rights of others to have proper sleep, peaceful living atmosphere and undisturbed thought. No citizen can be compelled to suffer annoying effects of noise as that eventually leads to many a malady which includes cardio vascular disturbance, digestive disorders and neuro psychiatric disturbance. At this juncture I may profitably refer to a Division Bench decision of the High Court of Calcutta rendered in the case of Moulana Mufti Syed Md. Noorur Rehman Barkati and others Vs. State of West Bengal, AIR 1999 Calcutta 15, wherein it has been held as under :-- "None can claim an absolute right to suspend other rights or it can disturb other basic human rights and fundamental rights to sleep and leisure. The argument that the Environmental (Protection) Act, Rules and the Schedule therein are ultra vires under Articles 14 & 25, is wholly misconceived as it had not resulted any discrimina- tion and so far as Sound Pollution is concerned, citizens have a right to be protected against excessive sound under Article 19(1)(a) of the Constitution."
At this stage I may proceed to state that silent air is full of freshness. Silence brings bliss, noise invites chaos. Diligent attempts are to be made to curb noise starting from the street to stratosphere. The present generation has to keep itself alive to the situation and build a healthy society. It can not afford to ponder like Hamlet "to be or not to be" or remain in a Parvati like situation 'na jajau na Tasthau'. The existing generation must remind themselves the message of a Latin poet "Death plucks my ears and says, Live - I am coming". Positive action is the call of the day, for to live is to act.
11. Keeping in view the totality of circumstances it is thought apposite to direct that the respondent No. 7 shall not let out the premises to such persons or associations or organisations who have not obtained permission from the competent authority with regard to use of loud-speakers/public address systems. The respondents 2,4,5 and 6 shall see to it that no function is carried out in violation of the Act and the Rules - Noise Pollution Rules, 2000 and if any body is found to be violating the Rules proper steps should be taken to book him as per law. All efforts are to be made that majesty of law is honoured by one and all and collective does not suffer from any individual aberration. Though this order is passed in connection with the grievance of the petitioner relating to the activities of respondent No. 71 think it apposite that a copy of the order be sent to the Chief Secretary of the State and to respondent No. 4 to see that the Rules are obeyed in letter and spirit and no citizen's right is affected. As the District Magistrate is regarded as an Authority as per the definition in clause (c) of Rule 2 the Chief Secretary shall send a copy of this order to the District Magistrates of all the districts in the State of Madhya Pradesh within a period of two months and file a compliance report before this Court. The District Magistrate shall see to it that Rules are followed in real spirit so that citizenary spirit does not face any disquieting situation.
12. Let a free copy of this order be handed over to Mr. P.D. Gupta, learned Dy. A.G. for the State for onward transmission of the same to the Chief Secretary of the State.
13. The writ petition is accordingly disposed of without any order as to costs.