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CASE NO.: Appeal (civil)  4533 of 2004

PETITIONER: Sheikh Ikram Sheikh Israil & Ors

RESPONDENT: State of Maharashtra & Ors

DATE OF JUDGMENT: 12/04/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

       Challenge in this appeal is to the order passed by a  Division Bench of the Bombay High Court.   

       Background facts in a nutshell are as follows:

Appellants are residents of Bhandara since the time of  their forefathers. They are engaged in the business of  manufacturing brass utensils.  Undisputedly they carry on the  same business in their respective houses.            On 18.7.2003 the Superintendent of Police, Bhandara  issued notices to the appellants directing them to stop their  business within two days from the date of receipt of the order,  failing which suitable legal action would be taken.  The  reasons disclosed in the notice were that in the process of  preparing brass utensils, noise pollution is created which  affects the neighbours, teachers and students around and  nearby the houses of the appellants.  The appellants took the  stand that they were in business before the opening of the  school in the vicinity of their houses and there cannot be any  complaint of noise pollution against them.  On that basis the  writ petition was filed impugning order of the Superintendent  of Police.  Reply affidavit was filed by the said Superintendent  of Police as respondent No. 3 in the writ petition indicating  that the mechanical power is used in the production of brass  utensils as it facilitates pressing, embossing, spinning, cutting  and buff polishing.  It was stated that because of the aforesaid  activities noise pollution in the vicinity is caused and the area  being thickly and densely populated area, it was causing  annoyance in addition to noise pollution.  The Superintendent  of Police had called for a report from the Maharashtra  Pollution Control Board, Nagpur (in short the ’Board’) who had  also suggested that the noise level in the area is very high and  amounted to nuisance.

In view of the above position, the writ petition was  dismissed.

In support of the appeal learned counsel for the  appellants submitted that the noise pollution level was low  and there was marginal variation and, therefore, the notice  issued by the Superintendent is without any basis.

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Learned counsel for the State of Maharashtra, the Board  and the applicants for intervention supported the order. It appears that earlier a writ petition was filed in the  Nagpur Bench of the High Court.  In that case applications for  interventions were filed on behalf of the school and some local  residents. The writ petition was disposed of granting liberty to  the parties to place the materials in support of their respective  stands before the concerned authorities.  The Noise Pollution  (Regulation and Control) Rules, 2000 (in short the ’Rules")  have been framed in exercise of powers conferred by clause (ii)  of sub-section (2) of Section 3, sub section (1) and clause (b)  and sub Section (2) of Section 6 and Section 25 of the  Environment (Protection) Act, 1986 (in short the ’Environment  Act’) read with Rule 5 of the Environment Protection Rules,  1986 (in short the ’Environment Rules’).

Rules 3, 4 and 6 of the Rules read as follows:

"(3) Ambient air Quality standards in respect of noise for  different areas/zones 1) The ambient air quality standards in respect of noise  for different areas/zones shall be such as specified in the  schedule annexed to these rules. 2) The State Government may categorize the areas into  industrial, commercial, residential or silence areas/zones for  the purpose of implementation of noise standards for different  areas. 3) The State Government shall take measures for  abatement of noise including noise emanating from vehicular  movements and ensure that the existing noise levels do not  exceed the ambient air quality standards specified under these  rules. 4) All development authorities, local bodies and other  concerned authorities while planning developmental activity or  carrying out functions relating to town and country planning  shall take into consideration all aspects of noise pollution as a  parameter of quality of life to avoid noise menace and to  achieve the objective of maintaining the ambient air quality  standards in respect of noise. 5) An area comprising not less than 100 metres around  hospitals, educational institutions and courts may be declared  as silence area/zone for the purpose of these rules. 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. 6) Consequences of any violation in silence zone/area :- Whoever, in any place covered under zone/area commits  any of the following offence, liable for penalty under the  provisions of the Act :- (I) Whoever, plays any music or used any sound  amplifiers, (ii) Whoever, beats a drum or tom-tom or blows a horn  either musical or pressure, or trumpet or beats or sounds any  instrument, or (iii) Whoever, exhibits any mimetic, musical or other  performances of a nature to attract crowds." In the Gazette of India : Extraordinary (Part II)  it has  been notified as under: Ambient Air Quality Standards in respect of Noise.

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Area  Code Category of  area/zone Limit in db(A) leq* Day Time        Night Time 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 from600 a.m. to 10 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 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. *.  dB(A) Leq denotes the time weighed 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 hearing. Leq: It is an energy mean of the noise level over a  specified period.

The Government of Maharashtra also has empowered the  concerned authority for prohibiting the continuance of music  or noise and the power includes prevention, prohibition,  control or regulation of the carrying on in/or upon any  premises of trade, avocation or operation or process resulting  in/or attended with noise.

Learned counsel for the appellant submitted that they  should be given an opportunity to reduce the noise level and  remedial measures can be taken and suggestions in this  regard shall be placed for consideration of the authorities.

In the circumstances we direct that the appellants are  permitted to give a concrete proposal as to how they shall  ensure sticking of the norms within two months.  The proposal  shall be dealt with a decision to be taken within three months.   

The appellants may, if so advised, and as contended  move the authorities for making available alternative site.  The  feasibility by such a request shall be duly considered by the  authorities.

For a period of three months the interim orders, passed  by this Court on 15.12.2003, shall be continued.  By giving  this interim protection it shall not be considered as if we have  expressed any opinion on the merits of the case.  

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The appeal is accordingly disposed of.  No costs.