BALWANT SINGH Vs. COMMNR. OF POLICE & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 10024 of 2014, Judgment Date: Nov 07, 2014
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 10024 OF 2014
(Arising out of S.L.P.(c) No. 24317 of 2013)
Dr. Balwant Singh Appellant(s)
Versus
Commissioner of Police & Ors. Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted
2. This appeal arises out of an order dated 21.05.2013 passed by the
Division Bench of the High Court of Judicature for Rajasthan at Jaipur
Bench, Jaipur in D.B. Civil Special Appeal (Writ) No. 378 of 2013 which
arises out of an order dated 25.02.2013 passed by the learned Single Judge
in S.B. Civil Writ Petition No. 2273 of 2013.
3. By impugned order, the Division Bench disposed of the appeal filed by
the appellant herein in the light of the assurance given by the State to
settle the controversy raised by the appellant in the writ petition/appeal.
4. Dissatisfied with the impugned order, the appellant has filed this
appeal by way of special leave before this Court.
5. This Court issued notice to the respondents. On being served, learned
counsel for the respondents filed counter affidavit on behalf of the
respondents.
6. Heard learned counsel for the parties.
7. In order to appreciate the issue involved in this appeal, it is
necessary to mention the facts in brief.
8. The appellant (writ petitioner) is the resident of Jaipur
(Rajasthan). He retired as Director General of Police in March 1995. To
settle after retirement, the appellant constructed his house in a
residential colony opposite to Vidhyut Bhawan in Jyoti Nagar in Jaipur
city. The locality and, in particular, the location of the appellant's
house is very near to “Vidhan Sabha" (State Assembly Building).
9. The appellant to his misfortune noticed that very frequently,
thousand/hundreds of people belonging to political/non-political parties
would gather on the road approaching to Vidhan Sabha, which is in front of
his house, with agitated mood and would undertake their “Protests March” or
"Dharna" or "Procession" for ventilating their grievances. The protestors
then would use indiscriminately loudspeakers by erecting temporary stage on
the road and go on delivering speeches one after the other throughout the
day which sometimes used to continue for indefinite period regardless of
time. Since there used to be a gathering of thousand/hundreds of people,
the demonstrators would indiscriminately make use of the compound walls of
nearby houses including that of the appellant’s house to ease themselves
frequently at any time.
10. In order to regulate such events and to maintain law and order
situation, the State and Police Administration used to put barricades and
depute hundreds of police personnel to see that no untoward incident
occurs. These barricades used to be installed just in front of the gates of
the houses of the residents including the appellant's house. The police
personnel like others would also use the walls of the residential houses
including that of the appellant's house to ease and nobody was in a
position to tell them not to do such activities in front of their houses.
The appellant also noticed that these activities had gained considerable
momentum making living of the residents of that area a miserable one
because neither they were in a position to stay comfortably and peacefully
inside the house or do any work due to constant noise pollution nor were in
a position to come out of their house due to constant fear of insecurity
and restrictions put by the State.
11. The appellant was one of the most affected persons whose living in
his house had become impossible due to these activities and finding no
solution to the problem faced, compelled him to first approach the
Commissioner of Police and make an oral complaint but finding that no
action was taken, filed a written complaint on 21.11.2011 (Annexure P-1).
12. In the complaint, the appellant narrated the aforementioned
grievances in detail and requested the Commissioner of Police to take
immediate effective remedial steps to prevent such events.
13. Since the Commissioner of Police did not take any action on the
complaint, the appellant, on 06.03.2012, filed a complaint before the
National Human Rights Commission (NHRC), New Delhi under the provisions of
the Human Rights Commission Act, 2005 (hereinafter referred to as “the
Act”). The NHRC forwarded the appellant's complaint to the Rajasthan State
Human Rights Commission (RSHRC) for taking appropriate action in accordance
with law. The RSHRC, on receipt of the complaint, registered the same
being Petition No. 12/17/1720 and by order dated 24.09.2012 partly allowed
the appellant's petition and directed the Additional Home Secretary to
order the concerned officials to effectively stop interference with the
right of the appellant herein to lead an independent and peaceful life and
ensure that :
“1. The crowd of demonstrators does not assemble, on both roads opposite
to the petitioner’s house during the assembly sessions.
2. The demonstrators are not allowed to use high powered loudspeakers
during day and night.
The road is not closed after stopping traffic and traffic movement is
maintained in a sustained and orderly manner.
The policemen are stopped from urinating in the proximity of the wall of
the petitioner’s house from the side of the M.L.A.’s complex during the
Assembly Sessions.
No barricading is done on the road opposite to, and near, the house of the
petitioner.”
14. Despite issuance of the aforementioned directions, the State did not
ensure its compliance and on the other hand, some miscreants attacked the
appellant’s house and hence out of disgust, the appellant was compelled to
file writ petition being S.B.Civil Writ Petition No. 2273 of 2013 before
the High Court of Rajasthan Bench at Jaipur, seeking appropriate reliefs by
issuance of writ of prohibition/mandamus against the State and its
authorities to protect the interest of the appellant, his property and his
peaceful living.
15. Learned single Judge, by order dated 25.02.2013 disposed of the
appellant's writ petition observing that since the State has already taken
all necessary steps in the light of the directions given by the RSHRC in
their order dated 24.09.2012 and hence no more orders are called for in the
writ petition.
16. Learned Single Judge, in the concluding part of his order, observed
as under:
“……..I am of the considered view that no order on the reliefs prayed for by
the petitioner be passed as the State Government has already taken all
requisite action within its powers to ensure that the peace and quiet of
the petitioner living in his residential house at Jyoti Nagar locality in
proximity to Vidhan Sabha is not unduly disturbed. It would be expected
that measures detailed by the Additional Advocate General in his
submissions before this Court would be implemented strictly.”
17. The appellant, felt aggrieved, filed intra court appeal before the
Division Bench of the High Court out of which this appeal arises. The
Division Bench, by impugned order, more or less on the same lines on which
the learned Single Judge had disposed of the writ petition, decided the
appellant's appeal.
18. The Division Bench in the concluding part of their order observed as
under:
“In view of that assurance extended on behalf of the State
Government, the learned single Judge has already reached the conclusion
that the directions issued by the Human Rights Commission, Rajasthan in its
order dated 24.9.2012, have substantially been complied with. At this
stage, the Division Bench of this Court cannot give further direction in
the appeal. The State Government obviously shall also comply with such
order and act in conformity with assurance given before the single Bench
and take special care to ensure that peace and quiet of the petitioner,
living in his residential house at Jyoti Nagar locality in proximity to
Vidhan Sabha is not unduly disturbed.”
It is against the aforementioned order of the Division Bench, the appellant
(writ petitioner) has filed this appeal.
19. The respondents have filed their counter affidavit. The State, on
affidavit, has stated that it is their duty to ensure that no harm, injury,
damage or inconvenience/nuisance of any nature is caused to the life and
property of any citizen on account of any action and activities of other
person(s) or/and State authorities and all personal/fundamental/property
rights guaranteed and recognized in law to every citizen are protected to
enable him to lead a meaningful life with dignity and peace and to also
enjoy his property. It is further stated that in compliance to the order
passed by RSHRC, the State has issued directions for ensuring its
compliance which are as under:
“a. Deputy Commissioner of Police has been put in charge of the area
in order to ensure law and order in and around the residence of the
petitioner.
b. Barricading at appropriate distance from the residence of the
petitioner so that the movement of the residents as well as of the
petitioner is not restricted as such and also because of the demonstration
in specific. When the legislative assembly is in session barricading is
done at least 60 feet away from the residence of the petitioner.
c. Mobile public toilets (two vehicles) have been placed by the Rajasthan
Municipal Corporation in the concerned area so that hygiene is maintained
in and around the area which has been affected by regular demonstration.
Further all cautions have been taken that the public uses such facilities
and neither police personnel on duty nor the demonstrator may spoil the
walls of the petitioner by urinating.
d. Prior permission as per the Rules are being given by the office of
Deputy Commissioner of Police, Jaipur (South) to the demonstrators and
District Collector is directed to ensure that while giving permission for
demonstration it may also check that no instruments are allowed which may
violate the Rules or cause noise pollution.”
20. It is with this background, the question arises as to whether the
directions issued so far need any further modification and if so, to what
extent.
21. The law on nuisance is well settled. Nuisance in any form as
recognized in the law of Torts - whether private, public or common which
results in affecting anyone's personal or/and property rights gives him a
cause of action/right to seek remedial measures in Court of law against
those who caused such nuisance to him and further gives him a right to
obtain necessary reliefs both in the form of preventing committing of
nuisance and appropriate damages/compensation for the loss, if sustained by
him, due to causing of such nuisance. (See - Ratanlal Dhirajlal - Law of
Torts by G.P.Singh - 26th Edition pages-621,637,640).
22. We may, at this stage, consider apposite to take note of law laid
down by this Court in Noise Pollution(V), In Re - Implementation of the
Laws for restricting use of loudspeakers and high volume producing sound
systems, (2005) 5 SCC 733, as in our considered view, it has a material
bearing over the issue, which is the subject matter of this appeal.
23. This Court while entertaining the PIL filed by one Organization
called "Forum, Prevention of environmental and sound pollution" had the
occasion to examine the issue in relation to nuisance of noise pollution
caused to the people at large due to use of equipments/apparatus/articles
etc. The noise pollution caused generates different kinds of sounds
thereby constantly creates irritation and disturbance to the people. Since
it was a continuing wrong all over the country and hence, this Court, in
great detail, examined the issue in the light of the citizens rights
guaranteed under Articles 19(1), 21 and 25 of the Constitution of India,
read with all laws/rules/regulations relating to pollution, including penal
laws governing this issue.
24. Chief Justice R.C. Lahoti (as His Lordship then was), speaking for
the Bench in concluding para of the order, issued directions to all the
States directing them to ensure that noise pollution caused due to use of
various apparatus/ articles/ activities must be curbed and controlled by
resorting to methods and modes specified in several rules/regulations
dealing the subject. These directions are extracted herein below:
“XII. Directions
It is hereby directed as under:
(i) Firecrackers
174. 1. On a comparison of the two systems i.e. the present system of
evaluating firecrackers on the basis of noise levels, and the other where
the firecrackers shall be evaluated on the basis of chemical composition,
we feel that the latter method is more practical and workable in Indian
circumstances. It shall be followed unless and until replaced by a better
system.
2. The Department of Explosives (DOE) shall undertake necessary research
activity for the purpose and come out with the chemical formulae for each
type or category or class of firecrackers. DOE shall specify the
proportion/composition as well as the maximum permissible weight of every
chemical used in manufacturing firecrackers.
[pic]3. The Department of Explosives may divide the firecrackers into two
categories— (i) sound-emitting firecrackers, and (ii) colour/light-emitting
firecrackers.
4. There shall be a complete ban on bursting sound-emitting firecrackers
between 10 p.m. and 6 a.m. It is not necessary to impose restrictions as to
time on bursting of colour/light-emitting firecrackers.
5. Every manufacturer shall on the box of each firecracker mention details
of its chemical contents and that it satisfies the requirement as laid down
by DOE. In case of a failure on the part of the manufacturer to mention the
details or in cases where the contents of the box do not match the chemical
formulae as stated on the box, the manufacturer may be held liable.
6. Firecrackers for the purpose of export may be manufactured bearing
higher noise levels subject to the following conditions: (i) the
manufacturer should be permitted to do so only when he has an export order
with him and not otherwise; (ii) the noise levels for these firecrackers
should conform to the noise standards prescribed in the country to which
they are intended to be exported as per the export order; (iii) these
firecrackers should have a different colour packing, from those intended to
be sold in India; (iv) they must carry a declaration printed thereon
something like “not for sale in India” or “only for export to country AB”
and so on.
(ii) Loudspeakers
175. 1. The noise level at the boundary of the public place, where
loudspeaker or public address system or any other noise source is being
used shall not exceed 10 dB(A) above the ambient noise standards for the
area or 75 dB(A) whichever is lower.
2. No one shall beat a drum or tom-tom or blow a trumpet or beat or sound
any instrument or use any sound amplifier at night (between 10.00 p.m. and
6 a.m.) except in public emergencies.
3. The peripheral noise level of privately-owned sound system shall not
exceed by more than 5 dB(A) than the ambient air-quality standard specified
for the area in which it is used, at the boundary of the private place.
(iii) Vehicular noise
176. No horn should be allowed to be used at night (between 10 p.m. and 6
a.m.) in residential area except in exceptional circumstances.
(iv) Awareness
177. 1. There is a need for creating general awareness towards the
hazardous effects of noise pollution. Suitable chapters may be added in the
textbooks which teach civic sense to the children and youth at the
initial/early-level of education. Special talks and lectures be organised
in the [pic]schools to highlight the menace of noise pollution and the role
of the children and younger generation in preventing it. Police and civil
administration should be trained to understand the various methods to curb
the problem and also the laws on the subject.
2. The State must play an active role in this process. Resident Welfare
Associations, service clubs and societies engaged in preventing noise
pollution as a part of their projects need to be encouraged and actively
involved by the local administration.
3. Special public awareness campaigns in anticipation of festivals, events
and ceremonial occasions whereat firecrackers are likely to be used, need
to be carried out.
The abovesaid guidelines are issued in exercise of power conferred on this
Court under Articles 141 and 142 of the Constitution. These would remain in
force until modified by this Court or superseded by an appropriate
legislation.
(v) Generally
178. 1. The States shall make provision for seizure and confiscation of
loudspeakers, amplifiers and such other equipment as are found to be
creating noise beyond the permissible limits.
2. Rule 3 of the Noise Pollution (Regulation and Control) Rules, 2000 makes
provision for specifying ambient air-quality standards in respect of noise
for different areas/zones, categorisation of the areas for the purpose of
implementation of noise standards, authorising the authorities for
enforcement and achievement of laid down standards. The Central
Government/State Governments shall take steps for laying down such
standards and notifying the authorities where it has not already been
done.”
25. We note with concern that though the aforesaid directions were issued
by this Court on 18.07.2005 for ensuring compliance by all the States but
it seems that these directions were not taken note of much less
implemented, at least, by the State of Rajasthan in letter and spirit with
the result that the residents of Jaipur city had to suffer the nuisance of
noise pollution apart from other related peculiar issues mentioned above so
far as the appellant's case is concerned.
26. Needless to reiterate that once this Court decides any question and
declares the law and issues necessary directions then it is the duty of all
concerned to follow the law laid down and comply the directions issued in
letter and spirit by virtue of mandate contained in Article 141 of the
Constitution.
27. In our considered view, in the light of the authoritative
pronouncement rendered by this Court on the issue of noise pollution in the
case of Noise Pollution (V), In Re (supra), it is not necessary for this
Court to again deal with the same issue except to issue appropriate
directions for its compliance.
28. We, accordingly, direct the respondents to ensure strict compliance
of the directions contained in Para 174 to 178 of the judgment of this
Court in Noise Pollution (V), In Re (supra), and for ensuring its
compliance, whatever remedial steps which are required to be taken by the
State and their concerned department(s), the same be taken at the earliest
to prevent/check the noise pollution as directed in the aforesaid
directions.
29. Now so far as the disturbance created by the police/state
officials/people at large in the appellant’s peaceful living in his house
is concerned, in our considered view, they do result in adversely affecting
the appellant’s rights guaranteed under Article 21 of the Constitution as
held by this Court in Noise Pollution (V), In Re (supra) and also in
Ramlila Maidan Incident in Re, (2012) 5 SCC 1. The RSHRC and the writ
Court were, therefore, justified in entertaining the complaint under the
Act and the writ petition under Article 226 of the Constitution of India
and in consequence justified in giving appropriate directions mentioned
above while disposing the appellant's complaint/writ petition.
30. We, however, note that the State was right on their part in not
contesting the appellant's complaint/writ petition by raising
technical/legal grounds finding the appellant's grievance made in his
complaint to be genuine and then rightly came out with remedial suggestions
to deal with the situation arising in the case.
31. Indeed, this reminds us of the subtle observations made by Justice
M.C. Chagla, Chief Justice of Bombay High Court in Firm Kaluram Sitaram Vs.
The Dominion of India, AIR 1954 Bombay 50, wherein while deciding the case
between the citizen on the one hand and State on the other, the learned
Chief Justice in his distinctive style of writing reminded the State of
their duty towards the citizens while contesting his rights qua State and
made the following observations.
“….we have often had occasion to say that when the State deals with a
citizen it should not ordinarily rely on technicalities, and if the State
is satisfied that the case of the citizen is a just one, even though legal
defences may be open to it, it must act, as has been said by eminent
judges, as an honest person……….”
32. We are in complete agreement with the aforementioned statement of law
laid down in Firm Kaluram Sitaram (supra) as far back as in 1954. In our
considered view, the Constitution, inter alia, casts a duty on the State
and their authorities to ensure that every citizen's cherished rights
guaranteed to him under the Constitution are respected and preserved, and
he/she is allowed to enjoy them in letter and spirit subject to
reasonable restrictions put on them, as dreamt by the framers of the
Constitution. Intervention of the Court is called for at the instance of
citizen when these rights are violated by fellow citizens or by any State
agency.
33. We have perused the steps suggested by the State in their counter
affidavit and find that if the steps suggested by the State are implemented
in letter and spirit and further the implementation is observed in its
proper perspective by the State and its authorities from time to time
coupled with any other good suggestions, if noticed, while implementing the
suggestions, then most of the problems presently being faced by the
appellant and many others like him in the concerned area(s) would be
reduced to a large extent.
34. We, accordingly, direct the respondents to ensure strict compliance
of the conditions/steps mentioned in Paras 5 (a) to (d) of the Counter
Affidavit extracted above and while ensuring its compliance, if the
respondents consider that it needs some amendment(s) for ensuring better
implementation then in such eventuality, the same be done in the larger
interest of the residents of the concerned area and equally for the
benefits of the residents of different parts in the State. Needless to say,
while implementing the directions, its objective should always be to ensure
that the rights of the citizens are not affected adversely by any kind of
nuisance as mentioned above.
35. In view of the foregoing discussion and the directions contained
above, the appeal succeeds and is allowed in part. Impugned order stands
modified to the extent mentioned above.
……………………………………………………J.
[FAKKIR MOHAMED IBRAHIM KALIFULLA]
...............................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
November 07, 2014.
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