BALWANT SINGH Vs COMMNR. OF POLICE .
Bench: FAKKIR MOHAMED IBRAHIM KALIFULLA,ABHAY MANOHAR SAPRE
Case number: C.A. No.-010024-010024 / 2014
Diary number: 21671 / 2013
Advocates: V. SIVASUBRAMANIAN Vs
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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
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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
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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
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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
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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,
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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
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high powered loudspeakers during day and night.
3. The road is not closed after stopping traffic and traffic movement is maintained in a sustained and orderly manner.
4. 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.
5. 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
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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.
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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
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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.
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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
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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
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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
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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.
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.
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(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 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
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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
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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
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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
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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
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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
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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
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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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