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Judgment
By this Application, the Applicant has raised substantial issue relating to noise pollution, ultimately degrading environment, within premises of MTDC (Maharashtra Tourism Department Corporation). The Maharashtra Tourism Department Corporation will be referred hereinafter as "MTDC". It is case of the Applicant is that he resides in proximity of the MTDC and has to suffer noise pollution created during the course of ceremonies like marriages, reception parties, birthday parties, etc organized at the lawn of the MTDC, from time to time which are let out by MTDC or for use of temporary occupants, licensees with consent of the MTDC office.
The Applicant says that since long many years the residents are facing intense noise pollution in the area which aggravates annoyance, irritation and disturbance in the normal life of the public members notwithstanding the fact that there is a school within 100 metres distance from the MTDC and therefore, noise pollution within the silence zone ought not to be permitted. The school called Nutan Vidyalaya is a medium primary school and the students are disturbed due to high decibel noise created during the morning session of the school hours due to parties organized at the lawn of the MTDC. The MTDC has no authority to permit the occupants to give the lawn or any other area for use of the reception parties, marriage parties or any such activities involving likelihood of noise pollution. The unbearable and uncontrolled illegal activities of the MTDC give rise to illegal noise pollution which ought to be controlled by the authority, namely, Pollution Control Board and the Police concerned. Though, complaints were made yet no due cognizance was taken and the unbearable noise was being created within the premises of the MTDC since long. Thus, the unbearable noise is the reason for submission of the Application and moreover, probable future continuation of the noise pollution on the basis of the precautionary principle is also one of the ground on which the Applicant relies. Consequently, the Applicant seeks mandatory injunction against the MTDC to stop giving any permission for use of the premises to allow the marriage parties or other reception parties, etc in which noise is created which causes disturbance to nearby residents and further more penalty of Rs.1,00,000/- is also sought to be imposed for remedial measures.
MTDC denied causing of noise pollution by itself or the licensee. According to the MTDC, the premises is given to the licensee for a period of 10 years from the date of execution of the agreement in order to manage the Resort which is meant for tourists. The purpose, in fact is to provide comfort, food and other amenities to the tourists who flock in Aurangabad to visit nearby historical places like Ellora and Ajanta including other some places worth visiting. The tourists, who occupy the premises for short duration, normally do not have intention to use the lawn for reception, marriage functions or other such activities and it is very uncommon that the noise pollution is generated within the MTDC area. Therefore, the MTDC sought dismissal of the Application.
The stand of concessionaire/licensee is identical. It is stated that the tourists will not normally occupy lawn because for short time it is allowed to be used. It is contended that the lawn is not separately leased-out nor any amount is collected from the person, who is not a tourist, for the use of the lawn. It is also contended that there is no permission to use premises of the lawn to organize parties, reception and like activities and in any case, no noise exceeding the permissible decibel is generated due to such activities. It is denied that the school students or the devotees for nearby temple have faced any disturbance due to the activities held within the premises of the MTDC. The licensee (contractor) of the MTDC, therefore, emphatically denied all the material averments of the Application and submitted that the allegations of the Applicant regarding noise pollution are illusory, unfound and unsustainable. In this issue of the matter, the licensee (contractor) sought dismissal of the Application.
The reply affidavit of Respondent No.5 is filed through Ms. Mayuri Purushottam Pawar, Police Sub Inspector, Kranti Chowk Police Station, Aurangabad. Her affidavit discloses that relief of declaration sought against MTDC is in the form of injunction to which the Police authorities have nothing to do. It is denied that high decibel noise is allowed to be used within the premises of MTDC at any functions. It is further submitted that on January 22nd, 2014 DCP, Zone-I received complaint of the Applicant which was inquired into. That complaint Application was duly investigated. The Police Sub-Inspector however, admits that MTDC Resort is situated within the residential area and the programmes conducted in the MTDC areas, if found to be illegal, will be duly controlled and proper action will be taken against the defaulter/polluter.
We have heard learned Advocates for the parties. We have also gone through the entire record. The Municipal Corporation has placed on record the map which shows that minimum distance between the MTDC and the Nutan Vidyalaya is about 60 metres. However, the actual distance shown in the maps appears to have been alleged by the MTDC/contractor is shown 100 metres. Thus, the MTDC/contractor also disputes correctness of the map which is authenticated by Municipal Corporation. The map is submitted by Shri Ramesh Pawar who is Additional Commissioner at Municipal Corporation, Aurangabad.
The points which are required to be thrashed out and addressed are as follows:-
(i) Whether it is proved that the use of lawn in the MTDC leads to noise pollution from time to time?
(ii) Whether it is proved that the noise pollution requires to be controlled in view of Section 20 of the National Green Tribunal Act, 2010 on the basis of "precautionary principle" and probability of future continuity of noise pollution?
(iii) Whether the stand taken by the Police authority is acceptable and proper?
(iv) Whether the Pollution Control Board has failed to take proper care of the complaints made by the Applicant, in case the pollution at the MTDC lawn was noticed and was brought to its notice by the Applicant, who had purchased the noise measurement meter by which decibels were recorded by him?
(v) Whether the MTDC has any authority, in the eyes of law to allow the tourists to use the annex lawn for use of reception, marriage or other programmes?
(vi) Whether legal consent of the Pollution Control Board for renting of the hotel activity by MTDC including use of sound amplifying machinery and other activities is necessary?
Before we proceed to deal with the factual matrix, it would be proper to consider the legal issues as regards the meaning of "Silence zone" within the parameters of the Noise Pollution (Regulation and Control) Rules, 2000. The explanation of Silence zone is particularly related to zoning of city area or township under the Noise Pollution (Regulation and Control) Rules, 2000 as per the Schedule (E) under Regulation 3 appended thereto. The particular definition is brought into effect on November 22nd, 2000 as -
"Silence zone is an area comprising not less than 100 metres around hospitals, educational institutions, courts, religious places or any other areas which is declared as such by the competent authority."
The definition of ambient air quality standards and restrictions in the use of the timing is also ensued in the Schedule appended to the said Rules. Silence zone is basically an area comprising not less than 100 metres around hospitals, educational institutions, courts or other places which are declared as such by the competent authority, including religious places. Thus, as per the Rules, 100 metres minimum distance is the criteria which is set out to determine Silence zone from the religious place, institutional areas of education, courts and other places which are declared as such by the competent authority. Obviously, the Silence zone is not given any restricted meaning under the Rules but it is a zoning allowed to be carried out by the competent authority irrespective of existence of location of a religious place, educational institute, hospitals or courts. The above four places are considered as the places from which Silence zone is to be maintained under the Rules irrespective of such declaration by the competent authority.
The map placed on record is an authenticated Municipal Corporation map. The communication accompanied by the map shows that the education institute by name Nutan Vidyalaya is of 60 metres from the Holiday Camp. It follows that the area of MTDC is within the Silence zone and naturally it must fall within domain of Noise Pollution (Regulation and Control) Rules, 2000 as stated above. The MTDC cannot disregard the Rules under the Schedule appended to the Noise Pollution (Regulation and Control) Rules, 2000.
It is worthwhile to mention that in Application No.34/2011 decided before the National Green Tribunal, Principal Bench, New Delhi in the case of "Supreme Court Group Housing Society and another Vs. All India Panchayat Parishad and others", the Principal Bench gave certain directions as regards actions which are required to be taken by the authorities. We do not wish to set out those actions and borrow the same for the present purpose. We only refer it to the present case in order to demonstrate that the Principal Bench of National Green Tribunal also in a similar case held that pollution being wrongful contamination of the environment which causes material injury to right of an individual, noise can well be regarded as a pollutant when high decibels noise is caused. The high decibels noise may have ill-effect on the health of a person. It may also effects the passersby and patients admitted in the hospitals. The intention of laws related to pollution is to ensure abatement of pollution not in respect of only air and water but of any kind of pollution. The pollution is a generic term used under the Environment (Protection) Act which is an umbrella Act. The noise pollution, particularly stated, causes ill-effect on the social life, peaceful and dignified life to which a person is entitled under the Article 21 of the Constitution. Any such constitution right cannot be trampled by extraneous forces including the noise pollution.
Now, it is not necessary to consider each and every issue separately but we may make it very clear that the agreement between MTDC and the licensee (contractor) clearly shows that it was agreed between them that the licensee will not use the Resort for any other purposes than to make available accommodation to the tourists. The terms of the agreement show that the purpose of the contract is chiefly to provide food and beverages in the Resort. The MTDC intended to provide a comfortable stay and arrangement of catering of services of like food, beverages to the occupiers of the rooms to whom it was to be rented out by the contractor. The MTDC received compensation for use of the premises. The location of the MTDC is admittedly in the proximity of Railway Station in order to facilitate use of the Resort to the tourists who would arrive/travel by railways (train). Thus, the MTDC aimed to provide the facility to the tourists who could pay for the amenities available at the Resort.
Terms of the agreement of license categorically show that the licensee was not permitted to use the premises for any other purposes like holding of conferences, meetings, functions at mutually agreeable charges that too only after giving the licensee sufficient advance notice in writing of the licensor's intention of such temporary use. Even for such purposes, the parties, namely MTDC and the contractor agreed that the use by the contractor which was to be permitted to the third party, namely the occupier shall not exceed 15 days in one year. By no stretch of imagination, this term under the license/agreement did never allow use of the premises for holding of functions like marriages, reception and birthday parties or like parties which could generate noise and affect its nearby areas. The relevant clause of the agreement may be reproduced for ready reference:-
"(l) ........... Provided that the Licensor shall have the right to use the said Resort only for short duration for purposes of holding conferences, meetings, functions at mutually agreeable charges and that too only after giving to the Licensee sufficient advance notice in writing to the Licensor's intention of such temporary use. Such use shall not exceed 15 days in any one year."
Needless to say, use of the premises/lawn of the MTDC could not be leased-out/permitted to any third party by the licensee for holding of marriage/reception/birthday parties or light functions. The real dispute which was raised by Respondent No.1 in paragraph No.10 of the written affidavit of Vaishali Chavan was that the use of loudspeakers, firecrackers, music bands and DJ etc. was not allowed to be used beyond permissible limit as to when such functions were held. It is further stated that the basic purpose of Respondent No.1 is to promote tourism and Respondent No.1 always acted within the framework of agreement dated May 9th, 2007. The show cause notice was issued by Respondent No.1 (MTDC) to Respondent No.2 regarding breaches of the terms of the agreement but the same were duly replied on May 20th, 2015 and thereafter, the Respondent No.1 did receive a satisfactory reply from Respondent No.2 and therefore, the cause of action against Respondent No.1 does not arise.
The main contesting Respondent in this case is Respondent No.2. He filed reply affidavit dated August 17 th, 2015 alleging that the Applicant has made baseless and vague allegations in the Application. He contended that the Application is barred by limitation as the Application is not filed within the prescribed period of limitation and because of the fact that no other complaint is received in the context of the alleged noise pollution. Secondly, the contention of Respondent No.2 is that the Applicant made false complaint against him to the Police and Municipal Authorities which was found to be untrue.
According to the Respondent No.2 it is specifically alleged as below:-
"10. ....... as per the policy of M.T.D.C., it can permit for providing the accommodation of resort along with the permission to use the premises for wedding under the head "Wedding Tourism". I say that, therefore, I am using the premises of the respondent No.1 strictly in accordance with the provisions of law, rules and regulations and terms of license. I say that, whenever under the head wedding tourism, the tourist who approached me I immediately get the form filled in from all concerned tourists in which there is clause by virtue of which the said tourist is supposed to obtain all sorts of permission including the permission for using brass band, so also firing crackers, etc. and after the said tourist obtains necessary permission from the concerned police authority for the purpose of brass band and for firing crackers, then and then only I am providing the premises of the respondent No.1 to such tourists..........."
Not only he collectively attached copies of said permissions (Exhibit R-1) along with the written affidavit, he is candid enough in admitting that he allowed use of the premises for the activities like marriages, receptions including use of band etc. as to when Police permitted use of DJ sets, bands and other instruments. Perusal of the copies of the Applications and permissions go to show that so-called tourists were using the premises for more than 15 days, though the activity of marriage may for single day. The Police also granted permissions for use of DJ sets/bands as per the norms as for the noise rules. The Police however, allowed using of the equipments like DJ sets and the loud speakers during permissible hours.
Coming to the role of Police authorities (Respondent No.5), it is rather reprehensible to see as to how response is given to a complaint made by common person or even a person who may be influential. The Applicant appears to have filed a complaint to the Police on various occasions. For example, he filed a complaint dated January 21st, 2014 in which he stated that there was nuisance due to noise pollution and senior inmates and residents of Pagaria colony made compliant like himself. He forwarded that complaint to the Police, Inspector Kranti Chowk, Police Station Aurangabad. The said complaint dated January 22nd, 2014 was apparently directed to be inquired by the D.C.P. Zone I and was forwarded to the concerned Police Station and report of the Police Inspector, Police Station Kranti Chowk was directed to be submitted to the said office. What was the inquiry held? The first report dated February 14th, 2014 shows that Police investigated the fact that the area falls within the Pagaria residential colony. This was never the question which needed any investigation. The Police made inquiry with 17 Applicants and about what kind of questions were asked to them? These 17 Applicants were asked by the Police of higher rank that at what time the noise pollution causes nuisance and when they have measured the sound decibels, by which instrument and what was the nature of reading. The investigation could not give any result on this aspect and it is obvious because how anybody can expect a common person to regularly keep a watch of such activities and will measure the sound decibels. The Police informed that on February 20th, 2014 and prior to that there was no programme in MTDC and therefore, sound decibels could not be measured. However, sound decibels measured during the certain period when the functions were organized appears to have not been measured with the help of Pollution Control Board, though the local Police station was specifically directed to monitor the noise levels, as per the permission given by the higher Police officials.
We are sorry to say that the complaints of Applicant were mishandled by the Police authorities and the Pollution Control Board also failed to duly exercise its authority to examine the issue. Nay, Pollution Control Board Officer (Respondent No. 3) did not even take care to see as to whether the MTDC was required to obtain consent to establish STP and other facilities by taking due permission of the Pollution Control Board. The complaints were just forwarded to Municipal Corporation and Police without any investigation. Perusal of Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 clarifies the legal position. For clarification of the understanding we may quote the provision itself:
"25. Restriction on new outlets and new discharges. - [(1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board, -
(a) establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage); or
(b) bring into use any new or altered outlet for the discharge of sewage; or
(c) begin to make any new discharge of sewage:"
The mandate of the pollution law is therefore, breached by the authorities as well as the licensee (contractor). It is the stand of the licensee (contractor) that under the terms of the contract he was entitled to allow the use of the premises by the tourists for wedding parties. We are surprised and for the first time came across the term "Wedding Tourism" as used in paragraph No.10 of the written affidavit filed by Respondent No.2, which is alien to the law of the terms of the agreement between Respondent No.1 and 2. Though Respondent No.2 claims that it is the policy of MTDC to promote such "Wedding Tourism", no such policy is placed on record.
Under these circumstances, there is no escape from the conclusion that the lawn was being given for illegal activities like wedding ceremonies/reception, etc. and that the use of DJ sets/bands and loud speakers in the area, obviously, gave rise to the noise which went beyond the permissible limit. The Applicant himself had purchased the equipment to measure the sound decibels and used to make complaints on the basis of the sound decibels which he had measured with the use of the equipment. The Pollution Control Board did not take care to verify his complaint nor the Police took any serious view of the complaints and the Municipal Corporation was a mute spectator of his complaint. The licensee (contractor) assumes that whatever activities he was doing were permissible under the terms of the agreement and his stand was supported by Respondent No.1 (MTDC). Thus, the authorities themselves are active participants to the noise pollution in the area and are also likely to cause further environmental degradation and ought to be penalized on "Polluter Pay Principle" basis because of the principle underlying in Section 20 of the National Green Tribunal Act, 2010 which also envisages "precautionary principle". We must give direction that henceforth MTDC not only at Aurangabad but elsewhere will stop such illegal activities and particularly so-called "Wedding Tourism" which concept is likely to be rather radically imbibed by other institutions. Though, the Respondent No.2 is at fault yet we do not fully blame Respondent No.2 because he was given understanding that whatever he was doing was under the terms of the agreement and therefore, his contribution to the penalty for remedial purpose would be the same as like that of the authorities.
From total of the aforesaid discussion, the Application deserves to be allowed and is accordingly allowed. We direct as follows:-
(i) The Respondents shall cumulatively deposit an amount of Rs.5,00,000/- (Rupees Five Lakhs only) in the account of the Collector, Aurangabad in two equal installments, which shall be paid within 04 (four) months. They shall also pay an amount of Rs.5000/- each to the Applicant towards cost of the litigation.
(ii) The amount deposited with the Collector, Aurangabad shall be utilized for improvement of the environment such as awareness about noise pollution, particularly in schools, gardening, if appropriate land is available or in the forest land, if the Forest Officer is so agreeable, as per Rule 36 read with 37 of the National Green Tribunal (Practices and Procedure) Rules, 2011.