REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   7131      OF 2008 [Arising out of SLP (Civil) No. 22939 of 2004]

Farhd K. Wadia …Appellant

Versus

Union of India & Ors. …Respondents

J U D G M E N T  

S.B. SINHA, J :

1. Leave granted.

2. Whether  musical  functions  in  an  open  theatre  being  Rang  Bhavan

should be allowed to be carried on or not despite the fact that it is situate

within  100  meters  of  an  educational  institution  and  a  hospital,  is  the

question involved in this appeal which arises out of a judgment and order

dated 16.08.2004 passed by a Division Bench of the Bombay High Court in

Writ Petition No. 2257 of 2004.

3. The basic fact of the matter is not in dispute.

Rang  Bhavan  is  an  institution  owned  and  run  by  the  State  of

Maharashtra.  It is the only open theatre in the city of Mumbai.  It is let out

on  hire  for  the  purpose  of  holding  music  and  cultural  programmes.   It

charges a meagre amount for allowing private parties to hold functions.  It

has a sitting capacity of 4000 persons. It is stated that the world’s greatest

artists, both Western and Indian, have performed therein.   

Dr. Yeshwant Trimbak Oke & Ors. filed a public interest litigation

for a direction to the State to curb noise pollution in general in the city of

Mumbai and particularly during the festive season of Navratri and Ganesh

Utsav.   

4. On or about 25.09.2003, an order was passed by a Division Bench of

the Bombay High Court, directing:

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“(1) pending  hearing  and  final  disposal  of  this petition, i.e., Writ Petition No. 2053 of 2003, no loudspeaker  permission  be  granted  in  respect  of “Silence  Zone”  as  defined  and  discussed  in  the Noise  Pollution  (Regulation  &  Control)  Rules, 2000, as amended from time to time.

(2) Pending  hearing  and  final  disposal  of  the petition,  the  respondents  are  directed  to  issue loudspeaker  permission  verifying  and  certifying before  granting  permission  that  the  loudspeaker will not be used in a designated Silence Zone.

(3) The  authorities  will  also  ensure implementation and observance of the conditions mentioned in the permission.

(4) It is also clarified that in case the petitioners point out that there is violation at any place, the authorities  will  take  appropriate  action  in accordance with law.”

5. A  review  application  was  filed  thereagainst  by  the  State  of

Maharashtra.  The submission made by the learned Advocate General for

the State therein as recorded by the High Court in its order dated 19.12.2003

is as under:

“4. The  learned  Advocate  General  submitted that  reading  Noise  Pollution  (Regulation  and Control)  Rules,  2000  (hereinafter  referred  to  as “the Rules”) with the Schedule thereto, it is clear

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that  the  silence  zone  which  has  been  defined  in Note to the Schedule would not include hospitals, educational institutions, Courts, religious places or any other  area which  is  declared  as  such by the Competent  Authority,  but  the  prohibition  under Rule 6 would apply to  the areas  comprising  not less than 100 metres around such institutions.”

On the said review petition, it was held:

“7. So  far  as  first  point  is  concerned,  in  our opinion, direction issued by us on September 25, 2003 is clear.  Prima facie, it appears to us that the provisions  of  the Rules would apply to “an area comprising not less than hundred metres around” hospitals,  educational  institutions,  Courts, religious  places  or  any  other  area  which  is declared as such by the competent  authority.   In our  view,  this  would  be  in  consonance  with  the phraseology  used  in  clause  (i)  of  Rule  6  which totally prohibits playing of “any music” or using of  “any  sound  amplifiers”.   Had  it  been  the intention of  the Rule  making authority,  it  would not have used the expression “an area comprising not  less  than  100  metres  around  hospitals, educational  institutions,  Court,  religious  places, etc.   Moreover,  such  interpretation  would  also permit  activities  within  those  institutions  in accordance with law.

8. At  the  same  time,  however,  the apprehension  voiced  by  the  learned  Counsel  for the  Petitioners  has  also  been  taken  care  of.   It cannot  be  considered  that  with  regard  to  such organizations, institutions, etc. there is neither any

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standard nor limit whatsoever.  In respect of such institutions also, the general provisions laid down in  Rule  5  which  place  restriction  on  the  use  of loud speaker/ public address system would apply.”

6. While the said order was operating, the appellant made an application

to  book  Rang  Bhavan  from  13th to  15th August,  2004  in  regard  to

performance of Western Cultural Music.  The said application was rejected

by the State by an order dated 02.06.2004, stating:

“By the order of the Hon’ble High Court, Mumbai, dated  25/09/2003  under  the  Noise  Pollution (Control  &  Regulation)  Rules  2000,  the  use  of loudspeakers  in a silence zone has been banned. Also the Senior Inspector of Police, Azad Maidan Police Station, Mumbai has in accordance with the direction of the Hon’ble High Court, informed in writing  that  the  use  of  loudspeakers  during cultural  programmes  at  Rangbhavan  will  not  be permitted.

For  the  above-mentioned  reasons,  your  request vide  your  letter  dated  01/05/2004  to  book  Rang Bhavan for 3 days, i.e., on the 13th, 14th and 15th of August, 2004 is denied…”

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7. The  Directorate  of  Cultural  Affairs  in  a  letter  dated  09.07.2004

addressed to the Secretary, Power Productions, also stated:

“You are hereby informed that, in accordance with the  Hon’ble  High  Court’s  order  no.  2503  dated 25/09/2003,  Rangbhavan,  Dhobi  Talao,  Mumbai, the open air theatre comes under the silence zone and  hence  the  use  of  loudspeakers  has  been banned.   For  the above-mentioned  reasons,  your request cannot be considered.”

8. Contending that the said Rang Bhavan had been lying closed for the

past  few  years  and  the  directions  issued  by  the  High  Court  are  not  in

consonance with the rules governing noise pollution framed by the State of

Maharashtra,  a  writ  petition  was  filed  by  the  appellant  herein.   It  was

furthermore  pointed  out  that  some  educational  institutions  and  hospitals

have also been using loud speakers.   

In the said writ petition, the following prayers were made:

“(a) that this Hon’ble Court be pleased to issue a writ  of  certiorari  or  any  other  appropriate  writ, order or direction in the nature of certiorari calling for  the  records  and  proceedings  relating  to  the obtaining of permission to host the Independence Rock  Concert  in  the  Rang  Bhavan  from Respondent Nos. 2 and 3 and after satisfying itself

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of the legality of the same to quash and set aside the impugned order dated 09.07.2004…;

(b) that this Hon’ble Court be pleased to issue a writ  of  prohibition  or  a  writ  in  the  nature  of prohibition or any other appropriate writ, order or direction restraining the Respondents, their agents, servants and employees from acting in any manner in  furtherance  of  the  impugned  order  dated 09.07.2004…;

(c) that this Hon’ble Court be pleased to issue a writ  of  mandamus  or  a  writ  in  the  nature  of mandamus or any other appropriate writ, direction or  order  compelling  the  Respondents  to  issue appropriate orders exempting Rang Bhavan from falling  within  the  silence  zone  and  further directing the Respondents to permit Rang Bhavan to  stage  concerts  and  other  cultural  and  musical functions on its premises;

(d) that this Hon’ble Court be pleased to issue a writ  of  mandamus  or  a  writ  in  the  nature  of mandamus or any other appropriate, writ, direction or order  directing the Respondents  to  permit  the Petitioner to hold the Independence Rock Festival on its premises on such suitable dates between 6 p.m. to 9 p.m. subject of course to the availability of such premises on such suitable dates; (e) that this Hon’ble Court be pleased to declare that Rang Bhavan does not fall within the silence zone  so  as  to  be  precluded  from  utilization  of loudspeakers  in  hosting  cultural  and  musical events.”

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9. As noticed hereinbefore, the said writ petition has been dismissed.

10. Mr.  S.  Ganesh,  learned  senior  counsel  appearing  on  behalf  of  the

appellant, drawing our attention to the relevant rules, would contend that as

no silence zone has been notified in terms of the statutory rules, the High

Court committed a serious error in passing the impugned judgment.

It was urged that,  in any event,  an exemption should be granted in

respect of Rang Bhavan having regard to the fact that it is not possible to

hold a musical event at any other place in the city of Mumbai at such cheap

rates.   

The State of Maharashtra, the learned Senior Counsel pointed out, has

also been supporting the cause of the appellant.

11. Dr. R.G. Padia,  learned Senior Counsel  appearing on behalf of the

Union of India, on the other hand, submitted that the cause of action for

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which  the  appellant  filed  the  writ  petition  being  rejection  of  one-time

request, the writ petition became infructuous.   

Our  attention  has  furthermore  been  drawn  to  various  orders  and

judgments passed by this Court in regard to control and regulation of noise

pollution to contend that as the validity of the rules framed by the Central

Government  has  been  upheld  by  this  Court,  no  interference  with  the

impugned judgment is called for.

12. Appellant  is the Chief  Executive Officer of ‘Power Productions’,  a

leading  Audio  Studio  in  Mumbai.   He  does  soundtracks  for  movies,  ad

films, etc.  He is said to be a concert promoter in India for over 18 years.

He  in  the  said  writ  petition  questioned  the  validity  of  the  order  dated

09.07.2004 passed by the respondents.

Dr. Yeshwant Trimbak Oke & Ors., who had filed the public interest

litigation being Writ Petition (PIL) No. 2053 of 2003, were not impleaded

as parties in the proceedings.  An application for modification of the order

passed therein had also not been filed in the second public interest litigation.

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13. Whereas  the  public  interest  litigation  was  filed  by  Dr.  Yeshwant

Trimbak Oke & Ors. contending that noise pollution created by reason of

use of loudspeakers be curbed in the areas which have been and should be

declared as silence zone, the purported public interest litigation was filed by

the appellant herein to seek an exception therefor.

14. The High Court  in  the earlier  public  interest  litigation,  being  Writ

Petition No. 2053 of 2003, admittedly passed an order of injunction.  If the

said order was required to be modified or clarified and/or relaxation was to

be prayed for and granted in regard to Rang Bhavan, the appellant should

have filed an application  in the said proceeding.   An independent public

interest  litigation  to  obtain  a  relief  which  would  be  contrary  to  and

inconsistent  with  the  order  of  injunction  passed  by  the  court  was  not

maintainable.  Inter alia, the doctrine of comity or amity demands the same.

15. It was not  that  the appellant  was not  aware of  the said  order.   As

indicated  hereinbefore,  the  premise  on  which  the  appellant’s  application

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was rejected was the said order dated 25.09.2003 passed in the said Writ

Petition No. 2053 of 2003.

The State of Maharashtra felt itself and in fact was bound by the order

dated 25.09.2003 and as such filed an application for modification in the

said Writ Petition No. 2053 of 2003, which, as noticed hereinbefore, was

not allowed.   

We fail to understand as to on what premise the writ petition could

have been entertained by the High Court.  We are constrained to opine that

the writ petition was filed to achieve a purpose indirectly which could not

be achieved directly.  The High Court,  therefore,  cannot  be said to  have

committed any error in passing the impugned judgment.

16. The Noise Pollution (Regulation and Control) Rules, 2000 (for short

“the Rules”) have been framed by the Central Government in exercise of its

power conferred by clause (ii) of sub-section (2) of Section 3, sub-section

(1) and clause (b)  of  sub-section (2)  of  Section 6 and Section 25 of  the

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Environment (Protection) Act, 1986 read with Rule 5 of the Environment

(Protection) Rules, 1986.

“Area/Zone” has been defined to mean all areas which fall in either of

the four categories given in the Schedule annexed to the Rules.   

“Educational institution” and “hospital” have been defined in Rules 2

(e) and 2(f) of the Rules in the following terms:

“(e) "educational  institution"  means  a  school, seminary,  college,  university,  professional academies, training institutes or other educational establishment,  not  necessarily  a  chartered institution  and  includes  not  only  buildings,  but also all grounds necessary for the accomplishment of  the  full  scope  of  educational  instruction, including those things  essential  to  mental,  moral and physical development;

(f) "hospital"  means  an  institution  for  the reception  and  care  of  sick,  wounded,  infirm  or aged persons, and includes government or private hospitals, nursing homes and clinics.”

Sub-rule (5) of Rule 3 of the Rules reads as under:

“(5) An area comprising not less than 100 meters around  hospitals,  educational  institutions  and

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courts may be declared as silence area/zone for the purpose of these rules.”

Rule 5 of the Rules reads as under:

“5. Restrictions on the use of loudspeakers/public address  system.—(1)  A loudspeaker  or  a  public address  system  shall  not  be  used  except  after obtaining written permission from the authority.

(2) A loudspeaker or a public address system shall not be used at night (between 10.00 p.m. to 6.00 a.m.) except in closed premises for communication within,  e.g.  auditoria,  conference  rooms, community halls and banquet halls.

(3)  Notwithstanding  anything  contained  in  sub- rule  (2),  the  State  Government  may,  subject  to such  terms  and  conditions  as  are  necessary  to reduce noise pollution, permit use of loudspeakers or  public  address  systems  during  night  hours (between  10.00  p.m.  to  12.00  midnight)  on  or during any cultural or religious festive occasion of a limited duration not exceeding fifteen days in all during a calendar year.”

Ambient  air  quality  standards  in  respect  of  noise  for  silence  zone

have been prescribed in the Schedule.  Note 3 appended thereto, however,

reads as under:

“3. Silence Zone is an area comprising not less than  100  metres  around  hospitals,  educational

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institutions,  courts,  religious  places  or  any other area which is  declared as such by the competent authority.”

17. Contention that the State Government has not declared the said zone

as a silence zone, in our opinion, is  besides the point.   The High Court,

while passing its interim order dated 25.09.2003, did not state that silence

zone was required to be declared, but passed the order of restraint in respect

of silence zone, as ‘defined and discussed in the Rules’.  The parties thereto

and particularly the State of Maharashtra understood the said order in that

light.

18. 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 golden.  It is

considered to be one of the human rights  as noise is  injurious to human

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health which is required to be preserved at any cost.  [See Noise Pollution,

Laws & Remedies by Justice Bhagabati Prosad Banerjee]

19. The Calcutta High Court in several judgments and in particular in Om

Birangana  Religious  Society v.  State  of  West  Bengal [decided  on  11th

August, 1998] issued various directions; some of them being:

“(a) there  will  be  complete  ban  on  the  use  of horn  type  loud-speakers  within  city  residential areas and also prohibit the use of play back of pre- recorded music etc. through such horn type loud- speakers unless used with sound-limiter.

(b) In  cultural  functions  which  are  live functions, use of such pre-recorded music should not  be  used  excepting  for  the  purpose  of announcement  and/  or  actual  performance  and placement  of  speaker  boxes  should  be  restricted within  the  area  of  performance  facing  the audience.  No sound generating devise should be placed outside the main area of performance.

(c) Cultural  programmes  in  open  air  may  be held  excepting  at  least  before  three  days  of holding  Board/  Council  Examinations  to  till examinations are completed in residential areas or areas where educational institutions are situated.

(d) The distance of holding such functions from the silence zones should be 100 meters and in so far as Schools, Colleges,  Universities, Courts are

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concerned,  it  will  be treated as silence zones till the end of  the  office  hours  and/  or  the teaching hours.   Hospitals  and  some  renowned  and important  Nursing  Homes  will  be  treated  as silence zones round the clock.”

[See Noise Pollution, Laws & Remedies by Justice Bhagabati Prosad

Banerjee, pages 327-328]

20. This  Court  has  also  taken  suo  motu  cognizance  as  regards  noise

pollution.  It passed various orders from time to time in Noise Pollution, In

Re. v.  Union of India and  Another, which are reported in [(2005) 5 SCC

727], [(2005) 5 SCC 728], [(2005) 5 SCC 730] and [(2005) 5 SCC 731].   

21. A detailed judgment was rendered by a Division Bench of this Court

in the said writ petition, which has since been reported in [(2005) 5 SCC

733].  Several guidelines had been issued therein by this Court in exercise

of its jurisdiction under Articles 141 and 142 of the Constitution of India.

Therein, the decision of the Calcutta High Court in Om Birangana Religious

Society v. State of West Bengal [(1996) 100 CWN 617] has been taken note

of.   

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As regards loudspeakers and amplifiers, it was directed:

“171. Loudspeakers  and  amplifiers  or  other equipment  or  gadgets  which  produce  offending noise once detected as violating the law, should be liable  to  be  seized  and  confiscated  by  making provision in the law in that behalf.”

22. The  matter  again  came up  before  this  Court  and  an  order  passed

therein  has  been  reported  in  [(2005)  8  SCC  796].   The  validity  of  the

statutory rules framed by the Central Government and in particular Rule 5

amended by notification bearing No. S.O. 1088 (E) dated 11.10.2002 was

taken note of.  The decision rendered by this Court reported in [(2005) 5

SCC 733] was clarified.  This Court noticed that the constitutional validity

of sub-rule (3) of Rule 5 of the Rules had been upheld by the Kerala High

Court by an order dated 14.03.2003 whereagainst an appeal was filed.  The

hearing of  the  civil  appeal  was,  therefore,  directed to  be re-opened.   An

interim order was passed that until further orders, Rule 5 of the Rules, as

reproduced therein, would continue to remain in operation.  The said appeal

was  thereafter  taken  up  for  hearing  by  a  Bench  of  this  Court.   It  was

disposed of on 28.10.2005.  This Court held that the Rules framed by the

Central Government were not unreasonable, stating:

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“…The power to grant exemption is conferred on  the  State  Government.  It  cannot  be  further delegated.  The  power  shall  be  exercised  by reference  to  the  State  as  a  unit  and  not  by reference  to  districts,  so  as  to  specify  different dates  for  different  districts.  It  can be reasonably expected  that  the  State  Government  would exercise the power with due care and caution and in the public interest. However, we make it clear that the scope of the exemption cannot be widened either  by  increasing  the  number  of  days  or  by increasing the duration beyond two hours. If that is attempted  to  be done,  then  the  said  sub-rule  (3) conferring power to grant exemption may be liable to be struck down as violative of Articles 14 and 21 of the Constitution. We also make it clear that the State Government should generally specify in advance, the number and particulars of the days on which  such  exemption  will  be  operative.  Such specification  would  exclude  arbitrariness  in  the exercise of power.  The exemption, when granted, shall not apply to silence zone areas. This is only as  a  clarification  as,  this  even  otherwise  is  the position of law.

23. The  State  Government  is  bound  also  by  the  order  of  this  Court

besides the order passed by the High Court.  If any order of relaxation and/

or modification is required to be passed, it is only to be passed by this Court

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and the Bombay High Court in the aforementioned two writ petitions.  A

separate writ petition, in our opinion, thus, was not maintainable.   

24. For the reasons aforementioned, there is no merit in this appeal.  It is

dismissed accordingly.  In the facts and circumstances of the case, however,

there shall be no order as to costs.

………………………….J. [S.B. Sinha]

..…………………………J.     [Cyriac Joseph]

New Delhi; December 05, 2008

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