HIGH COURT, BOMBAY
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O.O.C.J.
PIL WRIT PETITION NO 124 OF 2006
Gaurang R Vora â¦.. Petitioner
v/s
State of Maharashtra & ors â¦. Repondents
Mr Zuben Behram Kamdin with Mr Bharucha i/by M/s Wadia Ghandy & Co. for petitioner.
Mr Niranjan Pandit, AGP for Respondent Nos 1, 2 & 4.
Mr Rajiv Chavan awith Ms Anamika Malhotra i/by Mr Pankaj Kapoor for Respondent No 5.
CORAM : H.L. GOKHALE &
J.P. DEVADHAR, JJ
DATED : 5TH October 2006
P.C. :
1. This Writ Petition has been filed to control the noise pollution. The petitioner has sought various prayers in that behalf, though he has principally sought enforcement of the order passed by the Supreme Court in Re : Noise Pollution (V) vs. Union of India & anr. Reported in 2005 (5) B.C.R. 553. The matter was heard by us earlier and since the festival of Navratra was round the corner, we passed an interim order on 21st September 2006 recording the submissions of the petitioner and the very positive attitude of the State Government and the Police Commissioner with respect to the problem arising out of use of loudspeakers and the instruments causing noise pollution.
2. Mr Pandit, learned AGP, tendered to us a copy of the circular issued to various Police Stations drawing attention to the orders of the Court and that the loudspeakers will not be permitted between 10 pm and 6 am which were exempted by the State Government in its; notification viz. Ashtami and Navami, being two days of Navratri. The matter was thereafter adjourned to todayâs date.
3. Mr Kamdin, learned Counsel appearing for the petitioner, has now impressed upon the Court the necessity to control the noise pollution arising out of bursting of the firecrackers. He has drawn our attention to the aforesaid judgement of the Apex Court and has particularly referred to the discussion in the judgment from paragraph 126 onwards which is with respect ot the maximum sound level that should be permissible for firecrackers. The Apex Court has referred to Rule 89 of the Environment (Protection) Rules, 1986 which records that the manufacture, sale or use of firecrackers generating noise levels exceeding 125 dB(AI) or 145 dB © pk at 4 meters distance from the point of bursting shall be prohibited. In para 135 of the judgment, the Apex Court has referred to the affidavit of the Department of Explosives which in sub-para (iv) (i) of it recorded that the permissible sound level of 125 dB (AI) notified under the Rules is taken as the guideline for purpose of implementation by the Department of Explosives. Thereafter the Apex Court has discussed two methods for control of noise pollution by firecrackers and has arrived at that the method of fixing the permissible chemical composition is a better method so that the particular parameter is achieved. The court has directed in para 143 that keeping inmind the limit of 125 dB (AI) as the maximum permissible limit, every manufacturer should on the box of each firecracker mention details of itâs chemical contents as also its permissible noise limit.
4. Mr Kamdin, therefore, makes a request that he may be permitted to join the Association of Firecrackers and Distributors as also a couple of major distributors and manufacturers of the firecrackers. We rant leave to amend. These persons will be joined under Order I Rule 8 of the Code of Civil Procedure, 1908 to represent the manufacturers and distributors. Amendment be carried out on or before 7th October 2006 and the added parties may be served on or before 10th October 2006. Matter to be listed on 13th October 2006 to consider this aspect.
5. The other submission of Mr Kamdin was that as far as the time limits for bursting firecrackers in concerned, it has been restricted and bursting firecrackers is not permitted beyond 10 pm and until 6 am in the morning. He has drawn our attention to the discussion in para 149 onwards in the aforesaid judgement. Mr Chavan, learned Counsel appearing for the Central Governement, has also drawn our attention to the stand taken by the Central Government before the Apex court that the Government of India was of the opinion that there should be no relaxation of the timelimit of burstingof firecrackers. The Apex Court thereafter observed in para 149 as follows:
âRelaxation of restriction on bursting of crackers from 10 pm to 6 am shall not be given as it is night time. During the night time, people sleep and the high levels of noise has deleterious effects on the health and well being of the people.â
This position has been reiterated by the Court in para 155 where it has observed as follows:
âIn our opinion the total restriction on bursting firecrackers between 10 pm and 6 am must continue without any relaxation in favour of anyone.â
Thereafter, in para 160, the Court has observed as follows:
âIf at all the people feel if necessary to burst firecrackers they can choose and go for such firecrackers which on being burst emit colours or lights mainly and produce very little or no sound.â
Then in para 174 of the judgment, while giving itâs directions the Court has specifically directed in para 4 as follows:
â4. There shall be a complete ban on bursting sound emitting firecrackers between 10 p nad 6 am. It is not necessary to impose restrictions as to time on bursting of colour/light emitting firecrackers.â
6. In para 175 of the aforesaid judgment, there is a discussion with respect to loudspeakers. Mr Kamdin has very fairly drawn our attention to Rule 5 of the Noise Pollution (Regulation & Control) Rules, 2000 where under sub Rule (3) the State Government can permit use of loudspeakers or public address system during night hours i.e. between 10 pm and 12 midnight on or during any cultural or religious festive occasion of a limited duration not exceeding fifteen days in all during a calendar year. He has rightly emphasized that Rule 5 is basically about restrictions on the use of loudspeakers /public address system which prevents public address system and loudspeakers between 10 pm and 6 am except in closed premises. Under sub-rule (3) this relaxation is permissible with respect loudspeakers or public address system.
7. The notification issued by the State Government mentions two days of Divali i.e. Dhantryodashi and Laxmipoojan as the dates on which this relaxation is available. Obviously that relaxation will be available only with respect to the loudspeakers and public address system.
8. Mr Pandit, learned AGP, submitted that the firecrackers should be treated as permitted during these two days and that this is the manner in which Divali is very much celebrated. Religious and cultural traditions of the citizens include bursting of firecrackers and that is how it is desired by the State government that such a relaxation be permitted. He, however, fairly accepted that the notification does not state any such relaxation by mentioning firecrackers specifically.
9. Mr Kamdin appearing for the petitioner drew our attention to an order dated 28th October 2005 passed by the Apex Court subsequent to the aforesaid judgment in Appeal (Civil) No 3735 of 2005 Forum, Prevention of Environment & Sound Pollution) where also this very question of limted power under sub-rule (3) came up for consideration before the Apex Court and the Court in terms observed that the State Governments have this limited power of relaxation of the noise rule on 15 days. There is no mention of firecrackers in any way and the same could not be in that judgment inasmuch as the rule itself is principally for use of loudspeakers and public address system. The submission of Mr Kamdin is, therefore, right that under the law there is a clear prohibition on sound-emitting firecrackers throughout the year between 10 pm and 6 am. This is also clear from the order of the Apex Court in the case of noise pollution which has been referred to above.
10. From what is stated above, in our view, the State Government and the Police Commissioner ought to take appropriate steps to inform the citizens that use of firecrackers is not permitted even on the two days i.e. Dhantrayodashi and Laxmipoojan beyond 10 pm. The relaxation is available only with respect to loudspeakers and public address system between 10 pm and 12 midnight on the aforesaid two days, but that is not for the use of the sound-emitting firecrackers. We expect the State Government and the Police Commissioner to widely publicize the order passed by the Apex Court as also these directions for the knowledge and information of the citizens so that the noise pollution on account of sound-emitting firecrackers does not take place during the ensuing Divali.
11. Matter to stand over to 13th October 2006.
(P.L. GOKHALE, J)
(J.P. DEVADAR, J.)