IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.04.2010
Coram
THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO
AND
The HONOURABLE MR.JUSTICE K.K.SASIDHARAN
W.P.No.8001 of 2007
& M.P.No.1 of 2007
K.Vennimalai : Petitioner
vs.
1. State of Tamil Nadu
by Secretary to Government
Pollution Department
Fort St.George
Chennai-600 009.
2. The Commissioner
Corporation of Chennai
Rippon Buildings, Chennai-3.
3. The Chairman
Pollution Control Board
Guindu, Chennai-32.
4. Veeran J. Metha
5. Deputy Commissioner of Police
Washermanpet. : Respondents
PRAYER:- Petition filed under Article 226 of the Constitution of India praying to issue a writ of Mandamus directing the respondents herein to take suitable action against the fourth respondent by disposing of the representation dated 8.1.2007 forthwith.
For Petitioner : Mr.C.T.Mohan
For Respondents : Mr.G.Desingu
Spl.G.P. for RR1 and 5
Mr.R.Ramanlaal for R3
Mr.N.R.Chandran, Senior Counsel
for M/s. Hema Muralikrishnan for R4
----------
O R D E R
K.K.SASIDHARAN, J
The petitioner seeks a writ of Mandamus directing the Pollution Control Board to take suitable action against the fourth respondent on the basis of his representation dated 8 January, 2007 to abate the noise pollution caused on account of the activities carried on by the fourth respondent.
THE BACKGROUND FACTS:-
2. The petitioner is a resident of the house bearing Door No.5/2 Veeraraghavan Street, New Washermanpet, Chennai. The adjacent property bearing Door No.6 was purchased by the fourth respondent. After such purchase the existing building was demolished and the fourth respondent started to run a pipe-yard wherein day in and day out, iron pipes were being unloaded causing heavy noise and disturbance to the adjacent owners as well as other occupiers in Veeraraghavan Street. Though requests were made time and again to the fourth respondent to put an end to the sound pollution, he was not agreeable for taking remedial measures. Because of the unbearable noise emanated from the unloading operation carried on by the fourth respondent, the life of the petitioner and the other neighbouring owners become miserable.
3. Though complaints were preferred to the Corporation of Chennai , local inspector of police and the Pollution Control Board, they have not taken follow up action which made the petitioner to file this writ petition.
4. The fourth respondent in his counter affidavit contended that he has been doing business in G.I. and P.V.C. Pipes and fittings and it would take only 90 100 minutes for unloading and as such, it does not create any kind of noise pollution as alleged by the petitioner. The area is predominantly semi-commercial and as such, there is no merit in the contention raised by the petitioner that commercial activities cannot be conducted in the area. The Chennai Corporation has issued licence to run the business and it was issued only after satisfying that the fourth respondent has complied with the statutory requirements. In fact, in the very same street, there is a godown of Kancheepuram Society, besides three other iron and steel scrap dealers, out of which, two of them are carrying on gas cutting of iron and steel. Those premises are located about four buildings away from the house of the petitioner. There are other business concerns in the very same street besides a liquor outlet and the petitioner appears to have no grievance against those commercial establishments. In order to abate the sound menace, acoustic measures have been taken by providing high roof along with necessary rubber padding and therefore no noise pollution is created. Since no unbearable noise was created on account of the unloading activity, there is absolutely no necessity for providing travelling pulleys, forklift trucks and other mechanized equipements. The business has been carried on since 2006 very peacefully and without any disturbance and as such the apprehension raised by the petitioner has no basis.
5. The Pollution Control Board originally filed a counter affidavit on 12 July, 2007 wherein they have stated that noise pollution was not continuous and it was intermittent and it depends on the frequency at which pipes were dropped, while loading and unloading. They have also stated that exposure to noise may cause health effects like blood pressure and could lead to cardiac problem and as such, the operation have to be mechanized by providing travelling pulleys, forklift trucks and other mechanized equipments. Similarly necessary padding and rubberized flooring should be provided to reduce the noise generated from pipe handling operations. They have also stated that it was not possible to reduce the noise to the acceptable level and as such the activities should be relocated to a place away from habitation.
6. The Pollution Control Board, as per their communication dated 16 February, 2007 called upon the fourth respondent to mechanize their operation by providing travelling pulleys, forklift trucks and other mechanized equipments besides providing padding and rubberized flooring.
7. The premises of the fourth respondent was inspected by the officials of the Pollution Control Board and a report was submitted on 5 January, 2010. In the said report, the Pollution Control Board noted that the noise emanated from the loading and unloading of pipes contribute to the maximum values and during inspection it was observed that receptor resident was getting annoyed due to noise pollution. The survey report further revealed that the noise level exceeded the permissible level of 55 dB(A) when the pipe loading and unloading activities took place in the premises of the fourth respondent.
8. The Pollution Control Board conducted further inspection and submitted a report on 19 March, 2010. As per the said report, inspection was conducted on 15 March, 2010. The noise level survey was conducted in the presence of the writ petitioner and the fourth respondent. The noise level recorded during the survey was found to be slightly above the standards prescribed for residential area. When compared to the earlier survey, there was reduction in noise level since loading was conducted by a slow process. The loading was carried on under the direction and supervision of the owner under controlled conditions, which would be unlikely when the workers load on their own. The pipes were slided gently and allowed to drop from the other end in a controlled manner. The inspection team found that the noise was instantaneous and it is arising from manual operations. The report also gives an indication of the noise pollution and the effects of such pollution.
9. The fourth respondent has filed his objections to the said report. Besides disputing certain factual averments, the fourth respondent has also stated that he would not carry on the activities of loading and unloading near the residence of the petitioner and it would be done in the concrete building owned by him.
DISCUSSION:-
10. The principal grievance in the writ petition is on account of the recurring noise generated by the fourth respondent due to loading and unloading activities involving G.I. Pipes in his premises situated very close to the residence of the petitioner.
11. The complaint of noise pollution in the case on hand started as early as in the year 2007. The petitioner and some of the other local people appears to have given a complaint to the Pollution Control Board complaining of noise pollution caused by the activities carried on by the fourth respondent at his premises at Door No.6, Veeraraghavan Street, New Washermanpet, Chennai. The complaint preferred by the petitioner on 14 February, 2007 was examined by the Pollution Control Board. The Board inspected the premises and on the basis of the materials gathered during the time of inspection, issued a notice to the fourth respondent on 16 February, 2007. The Board as per proceedings dated 16 February, 2007 directed the fourth respondent to mechanize his operations by providing travelling pulleys, forklift trucks and other mechanized equipments. The fourth respondent was also instructed to provide padding and rubberized flooring to ensure that no noise is generated from pipe handling operations. In fact, the Pollution Control Board also indicated in the said proceedings that in case the petitioner is unable to reduce the noise by providing proper materials and taking acoustic measures, he has to take effective steps to re-locate the activity.
12. Though the fourth respondent received the proceeding dated 16 February, 2007 there was no follow up action on his part to abate the noise pollution. The fourth respondent appears to have no concern even for the directions issued by the Pollution Control Board. The indifferent attitude of the fourth respondent is evident from the counter affidavit filed during the month of November, 2009. The fourth respondent is very firm in his counter affidavit that there is absolutely no necessity for providing travelling pulleys, forklift trucks and other mechanized equipments. The fourth respondent has further contended that taking into consideration the various parameters of the area and the location, it is very difficult to provide such mechanized equipments. Therefore, the fourth respondent is determined to continue the loading and unloading activities involving heavy G.I.pipes unmindful of the noise pollution created on account of such activities.
13. The Pollution Control Board once again inspected the premises of the fourth respondent and submitted a report on 19 March, 2010. During the time of such inspection, the fourth respondent himself was present and in view of his specific direction, workers were loading and unloading the G.I. pipes very gently, so as to demonstrate that no amount of noise was generated during the activities. The report of the Pollution Control Board gives a clear indication that the loading activities were done on the date of inspection under controlled conditions, which would unlikely to continue when workers load the materials on their own. The fourth respondent has no case that he would be present in the site on all occasions, when the activities of loading and unloading are done in his premises. The reports of inspection conducted in the year, 2007 as well as in the year 2010 clearly demonstrated that the fourth respondent has no concern about noise pollution and his only concern is to do business unmindful of the danger to the peaceful life of the adjacent residents.
14. The term "life" used in Article 21 of the Constitution of India should be given a meaningful definition. Everybody has got a right to enjoy the rights guaranteed by the Constitution including the right to do "trade" guaranteed under Article 19(1)(g) of the Constitution of India. However enjoyment of such rights should not be at the cost of others. While enjoying the rights, there is a corresponding duty to respect the rights of others. In a society governed by Rule of Law, everybody should honour the rights of others. The attempt should be to strike a balance.
15. The right guaranteed to the fourth respondent to carry on his trade or business should be in harmony with the right of the petitioner to lead a peaceful life. The right under Article 21 is not subservient to the right under Article 19(1)(g) of the Constitution of India. The right of freedom guaranteed under Article 19(1)(g) is subject to clause (6) of Article 19 which clearly indicates the checks and balance on the exercise of such right. The Pollution Control Laws contain reasonable restrictions in the conduct of trade and business. Therefore traders like the fourth respondent cannot be heard to say that he is not bound by the reasonable directions given by the Pollution Control Board.
16. The fourth respondent has to exercise the option either to take precautionary measures or to close the activities as suggested by the Pollution Control Board for the purpose of avoiding noise pollution. The petitioner is interested only to abate the noise pollution so as to enable him to lead a peaceful life in the neighbourhood. The petitioner has no demand that the business activities should be stopped once for all. His grievance is only on account of the noise generated from the activities carried on by the fourth respondent. The report submitted by the Pollution Control Board as well as their counter affidavit speaks volumes about the noise generated on account of the activities conducted by the fourth respondent in his premises. Therefore we are of the view that the apprehension raised by the petitioner in the writ petition appears to be genuine, which requires immediate consideration. We are also of the opinion that one more opportunity should be given to the fourth respondent to comply with the directions issued by the Pollution Control Board in their proceedings dated 16 February, 2007.
17. Accordingly, we direct the fourth respondent to comply with the directions given by the Pollution Control Board in their proceedings dated 16 February, 2007 in its letter and spirit. The fourth respondent is given four weeks' time from the date of receipt of a copy of this order to comply with those directions. After such compliance, the Pollution Control Board should be informed of the steps taken to abate the noise pollution. The Pollution Control Board will inspect the premises thereafter to verify as to whether the noise was still unbearable or it was reduced. The petitioner should also be given an opportunity to make his submissions. In case the fourth respondent fail to comply with the directions dated 16 February, 2007 within the time granted by this Court, it is open to the Pollution Control Board to pass appropriate orders to stop the loading and unloading activities carried on by the fourth respondent in his premises at Door No.6, Veeraraghavan Street, New Washermanpet, Chennai.
18. The writ petition is disposed of with the above directions. No costs.
Tr/
To
1. State of Tamil Nadu
by Secretary to Government
Pollution Department
Fort St.George
Chennai-600 009.
2. The Commissioner
Corporation of Chennai
Rippon Buildings, Chennai-3.
3. The Chairman
Pollution Control Board
Guindu, Chennai-32.
4. Deputy Commissioner of Police
Washermanpet
No comments:
Post a Comment