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Judgment
B. Akbar Basha Khadiri, J.—The petitioner has filed this Criminal OP. invoking the inherent jurisdiction of this Court u/s 482 of the Code of Criminal Procedure, to direct the fourth and fifth respondents to take action against the sixth respondent to abate pollution.
This petition has arisen in this way:-The petitioner is K.K.R. Majestic Colony Welfare Association. It is interested in the well being of the residents of K.K.R.Majestic Colony. The sixth respondent is a Church situate in the Colony. Some 15 to 20 persons gathered in the Church and used to sing songs by beating drums and playing other musical instruments which give rise to loud noise. The petitioner on behalf of the residents gave representations to various officials, but they were of no avail. They made a representation to the Pollution Control Board on 09.05.1996. The second respondent, Pollution Control Board sent their Engineers on 24.05.1996 and 26.05.1996 to measure the noise level. The Engineers measured the ambient noise level and reported, that it exceeds the standard level. On the basis of which, the third respondent submitted a report. Now, the petitioner seeks direction to respondent Nos. 4 and 5, the police officials to take appropriate action to abate the pollution.
The sixth respondent filed counter stating that it is a minority religious institution. The representative of the petitioner is a member of R.S.S. and he has an ill-feeling towards the religion of the sixth respondent and he is seeking to prevent the members of the church from offering their worship. According to the sixth respondent, the noise is caused due to plying of vehicles, since the place is very near to Madhavaram High Road, that the sixth respondent had not fixed any loud speakers outside the church premises, that they are not causing any noise pollution and that this petition has to be dismissed.
Heard both the sides. In Appa Rao, M.S. v. Government Of Tamil Nadu And Another (1995 Writ L.R.157), a Division Bench of this Court consisting of Their Lordships M.Srinivasan, (as he then was) and S.S.Subramani have issued certain guidelines relating to noise pollution. Their Lordships have referred to the provisions of Sections 41 and 71A of the Madras City Police Act, 1888 and Section 10 of the Madras Towns Nuisance Act''(1989). Their Lordships have also referred to G.O.Ms.No.3485, dated 29.12.1977 and referred to the conditions of licence for use of sound amplifiers in public and private places issued u/s 71(A) of the Madras City Police Act.
The conditions which have been mentioned in Page No. 161, of the decision cited supra, are as follows:-
(l)Amplifiers can be used only between 9 A.M. to 10.30 P.M. and for 3 hours at a time. The duration of 3 hours is relaxable under special circumstances.
(2)No extension speaker should be put up outside the premises for which the licence is issued. Relaxable in the case of temples, churches and mosque on some occasions.
(3)Only Box type speaker should be used.
(4)The volume should be such low that it is not heard outside the premises.
(5)If any misuse is noticed licence will be cancelled.
(6)The installation of loud speakers and mike sets for which the licence is issued should be done only by an electrical contractor having at least a valid "B" Contractor''s licence issued by the Electrical Licensing Board of the State and operated only by a person having a wireman competency certificate issued by the Electrical Licensing Board. Non compliance of the condition is not only punishable under the Madras City Police Act but also under the Indian Electricity Rules, 1956 for violation of Rule ?6 there of.
(7)No sound amplifier shall face and no person shall use a sound amplifier, within (prescribe the limits) of "hospital, place, of worship or an educational institution and (any other public institution which is in that locality and which may be mentioned here.
(8)Any police Officer on duty above the rank of Head Constable may require any party to stop using or remove any sound amplifier the using of which, may be a nuisance or cause obstruction and it shall be stopped or removed as the case may be immediately.
(9)Any Police Officer on duty above the rank of Head Constable may seize any sound amplifier or other instrument used in amplifying which has been or appears to have been used in contravention of any of the conditions stipulated.
(10) Loudspeakers should not be allowed tp be installed on towers and temple walls, churches and mosques, so as to face the surrounding streets and areas, should be installed within the precincts and turned inwards so that the music is audiable only within the precincts of the temple/church/mosque. Exemption will be given during the month of Ramzan when the calls of the Muazzine for prayers is traditionally made from the mosque tower.
It therefore follows that Their Lordships have given certain guidelines to the Government regarding abatements of noise pollution. The fifth guideline which has been mentioned in Page No. 167 in the decision cited supra, is as under:-
(5)A separate cell has to be set up in the office of the Commissioner of Police in the City of Madras and in the Office of the Superintendent of Police in each District, to receive complaints against violation of the conditions. Such cells shall have telephone connections and the telephone numbers shall be notified with due publicity so that any citizen who comes across violation of the conditions may contact the concerned cell and lodge a complaint. It shall be notified that any person may give a complaint regarding any such violation. The complaints, in what ever manner they are received, shall be entered in a register maintained for that purpose. Action must be taken immediately by the concerned authorities against the person who violates the conditions and the same must be entered in the register.
It therefore follows that in case of noise pollution, respondents 4 and 5 have the right and authority to take action.
Now, coming to the factum of noise pollution. Their Lordships have referred to the noise pollution as Aural Trespass. In fact in the decision cited supra, reference has been made to an earlier decision of Kerala High Court reported in P.A. Jacob Vs. The Superintendent of Police, Kottayam and Another, and extracted the following paragraphs from the decision to indicate how noise pollution amounts to Aural trespass:
(17)A person can decline to read a publication, or switch off a radio or television set. But, he cannot prevent the sound from a loudspeaker reaching him. He could be forced to hear what he wished not to hear.
That will be an invasion of his right to be let alone, to hear what he wants to hear, or not to hear what he does not wish to hear. One may put his mind or hearing to his own uses, but not that of another. No one has a right to trespass on the mind or ear of another and commit auricular or visual aggression. Limits, must be drawn for liberties, lest they turn into licence, and the antithesis of liberty in its true sense.
(19)Professions of rights, distanced from realities of life, would make liberties, unreal. The liberties of some, could prove to be the end of the liberties of others. The loquacious may silence the meek. The State must protect the mute, the unorganized and inarticulate, against onslaught of enthusiasm of the vocal or the vociferous. It is no use saying hosannas to freedom, unless such freedom is real. Real they will be, only if there is an ordered society, order to liberty, is what oxygen to life is. There is no basis to think that freedom and order are not compatible. They are complementary, Liberty will be lost in excess of anarchy, if there is no order. Regulation and suppression are not the same in purpose or result. Time it is to think, whether undisguised assertions of rights by some, have not imperiled rights of others. If one were to recognise right to protest by blocking roads and railways, it is recognition of a right, to deny rights of the peaceful citizens. Acorns of today, will grow into oaks of tomorrow.
(20)A loud speaker is a mechanical device, and it has no mind or thought process in it. Recognition of the right of speech or expression is recognition accorded to human personality, and not to a mechanical device. One may put his faculties to reasonable uses. But, he cannot put his machines to any use he likes. He cannot use his machines to injure others. Intervention with a machine, is not intervention with, or invasion of a human faculty or right, no mechanical device can be upgraded to a human faculty. A computer or a robot cannot be conceded the rights under Article 19 (though they may be useful to man to express on his faculties). No more, a loud speaker. The use of a loud speaker may be incidental to the exercise of the right. But, its use is not a matter of right, or part of the right. I am in no way, not in the least way, narrowing down free speech, nor, attempting to cabin, confine and crib a cherished right, while holding that mechanical aid is not a complement of human faculty, or its use the extension of a constitutional right. But, I consider that any measure of cosmetic surgery on the face of an aggressive act of aural aggression or trespass on the mind of another, will not make it resemble a right.
Referring to an English decision, reported in Bamford v. Turnley (31 Law Journal Queen''s Bench 286). Their Lordships extracted the same in paragraph 19 of their judgment cited supra, which reads as under:-
19.Learned Counsel for the petitioner drew our attention to a passage in ''Weir'' "A Case Book on Tort" 7th Edn., Page 416.
The author has extracted a part of the dissenting judgment rendered by Pollock, C.B., in Bamford v. Turnley (31 LJQ Bench 286). It was an action for damages from smoke and smell arising from the burning of bricks in the brick-works. The relevant part of the passage reads thus:-"Most certainly in my judgment it cannot be laid down as a legal proposition or doctrine, that anything which, under any circumstances, lessens the comfort or endangers the health or safety of a neighbour, must necessarily be an actional nuisance. That may be a nuisance in Grosvenor Square which would be none in Smith field Market, that may be a nuisance at midday which would not be so at midnight, that may be a nuisance which is permanent and continual which would be no nuisance if temporary or occasional only. A clock striking the hour, or a bell ringing for some domestic purpose, may be a nuisance, if unreasonably loud and discordant of which the jury alone must judge; but although not reasonably loud, if the owner, from some whim or caprice, made the clock strike the hour every ''10 minutes, or the bell ring continually. I think a jury would be justified in considering it to be a very great nuisance, in general, a kitchen chimney, suitable to the establishment to which it belonged could not be deemed a nuisance, but if built in an inconvenient place or manner, or purpose to annoy the neighbours, it might, I think, very properly be treated as one. The compromises that belong to social life, and upon which the peace and comfort of it mainly depend, furnish an indefinite number of examples where some apparent natural right is invaded, or some enjoyment abridged, to provide for the more general convenience or necessities of the whole community, and I think the more the details of the question are examined the more clearly it will appear that all the law can do is to lay down some general and vague proposition which will be no guide to the jury in each particular case that may come before them.
It therefore follows that aural trespass is also an offence. It is needless to point out that if an offence is committed the law enforcing authority should see that the offence is not repeated. They must see that it is abated.
The learned Counsel for the sixth respondent submitted that the sixth respondent is a minority institution offering prayers in the church. The sixth respondent has the fundamental right of worship and it camiot be interfered with.
In Vinayaga ChathurthiMadhya Kuzhu v. State Of Tamil Nadu (1997 M.L.J. (Crl.) 142), another Division Bench of this Court consisting of K.A.Swami, C.J. and AR.Lakshmanah, J., have pointed out that the rights guaranteed under Arts. 19 (l)(b), 25 and 26 of the Constitution cannot be claimed as absolute rights. Their Lordships have also pointed out that any right claimed as absolute right will not be exercisable as there will be no orderliness in exercising such a right and as a result thereof, it would affect the rights of the other persons who also enjoy similar rights, that Arts.25 and 26 open with the words ''subject to public order, morality and health,'' ''that temporary orders for prohibition of meeting or procession to prevent imminent breach of peace are held to be reasonable restrictions. So also placing a restriction that the noise level should not exceed certain decibels may not amount to putting restriction in the religious practice, because there is no interference with the rituals and rites carried on.''
The decision in Vinayaga Chathurthi Madhya Kuzhu case, cited supra, relates to a case where a right to take Vinayaga idol in procession by moving in a particular way was claimed, but Their Lordships have held that the right is not an absolute right, it is subject to regulation and imposition of restrictions. Therefore, if the sixth respondent is to make loud noise by way of singing songs and beating drums, direction to reduce the noise level may not amount to interference with religious practice.
It has been mentioned in the counter that the representation of the petitioner is a member of R.S.S. and he has a malicious desire to put an end to the prayers held in the church. Because a person belongs to a particular party, it cannot be said that he has the melicious intention of interfering with the religious practice and faith of another person. Perusal of complaint and other documents, and letters submitted contained in the typed-set of papers would go to show that at the time when the complaint was preferred, one Parimalasekaran was the President. One Shabbir, a Muslim, was the Vice-President, who had preferred the complaint, one Christopher, a Christian was the Secretary, the Joint Secretary was a Muslim, the Treasurer was a Christian and the General Advisor was a Hindu. The General Advisor later became the President of the Society. I do not find any tinge of malice and malicious wish to cause any hindrance to the free practice of religious faith of the sixth respondent by filing the petition. If the noise created by the sixth respondent exceeds the permissible decibels then it has to be abated. But the question whether the sixth respondent is making loud noise has to be gone into by the authorities concerned.
The Survey report submitted by the Pollution Control Board itself would go to show that the sixth respondent is not the sole contributor of the noise. It appears, the interference of noise was due to plying of vehicles on Madhavaram High Road also. The distance between the sampling point and the road is given in the Survey report dated 24.05.1998 and 26.05.1998. It appears that the noise level is more at Plot No.79 than that of the sixth respondent''s plot itself. The noise level is at 90.5 decibels in plot No.79 which lies to the north of the sixth respondent-Church, whereas within the church premises, the noise level is 80.8 decibels only. It appears, the noise is mostly caused by the vehicular traffic. In Appa Rao''s case (1995 Writ L.R. 157) cited supra. Their Lordships have also referred to the noise made by the vehicles. Their Lordships have also given directions for abatement of noise level made by the motor vehicles which have to be followed by respondent Nos.4 and 5. I feel, it would be expedient to issue directions to respondent Nos.4 and 5 to take necessary steps to control the noise level in the petitioner''s colony. The respondent Nos.4 and 5 are directed to follow the directions issued by the Division Bench of this Court in Appa Rao''s Case (1995 Writ L.R. 157) cited supra, and take necessary steps to bring down the noise level to the permitted extent by taking action against the vehicles which make noise and also by making the sixth respondent to keep their speakers at a lower level. Accordingly, orders are passed in this petition.