BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 29/07/2011

CORAM
THE HONOURABLE MR.JUSTICE VINOD K.SHARMA

W.P.(MD)No.2886 of 2006
and
WP.MP(MD)No.3153 of 2006

R.Vasantha Rajendran           ... Petitioner
			
Vs.

1.The District Superintendent of Police,
  Nagercoil,
  Kanyakumari District.

2.The Inspector of Police,
  Manavalakurichy Police Station,
  Manavalakurichy and P.O.
  Kalkulam Taluk,
  Kanyakumari District.

3.President,
  Natesar Alayam,
  Illathar Samudhayam,
  Manavalakurichy and P.O
  Kalkulam Taluk,
  Kanyakumari District.

4.Secretary,
  Natesar Alayam,
  Illathar Samudhayam,
  Manavalakurichy and P.O
  Kalkulam Taluk,
  Kanyakumari District.           ... Respondents

PRAYER

Writ Petition is filed under Article 226 of the Constitution of
India praying to issue a Writ of Certiorarified Mandamus, to call for the
records directing the respondents 1 and 2 to stop or control the noise pollution
caused by  respondents 3 and 4 by using amplifiers and loud speakers outside the
Natesar Alayam, Illathar Samudayam, Manavalakurichy, Kanyakumari District.

!For Petitioner	... Mr.K.Sreekumaran Nair
^For R1 and R2  ... Mr.D.Muruganandam
                    Additional Govt. Pleader
For R3 and R4   ... Mr.S.Subbiah

:ORDER

The petitioner has approached this court with a prayer, for issuance of a writ, in the nature of mandamus, directing the respondent Nos.1 and 2 to stop or control the noise pollution caused by the respondents Nos.3 and 4 by using amplifiers and loud speakers, outside the Natesar Alayam, Illathar Samudayam, Manavalakurichy, Kanyakumari District.

2.Para 3 of the affidavit filed in support of this petition reads as under:-

"I also filed a suit as O.S.No.161 of 2004 before the I Additional District Munsif, Eraniel against the Superintendent of Police, Nagercoil, the first respondent herein and others, to give effect to GO MS.No3845, dated 29.11.1977 and various other Government Orders. The suit was partly decreed. The learned District Munsif granted decree for mandatory injunction against the Superintendent of Police, Kanyakumari District, to implement GO MS.No.3845, dated 29.11.1977 with other amendments from time to time relating to sound pollution in the matter of playing music and songs using amplifiers and speakers in Natesar Alayam, Illathar Samudayam at Manavalakurichy giving opportunity to the President, Secretary and Treasurer to get necessary license within reasonable time."

3.In view of the fact that the petitioner already approached the civil court and decree was passed in his favour, which has attained finality. The petitioner instead of executing the decree, has filed this writ petition seeking a writ, in the nature of mandamus, which on the face of it, is not maintainable, specially when the execution proceedings have been stayed by this court, in a revision petition.

4.The learned counsel for the petitioner, vehemently contended that the Tamil Nadu Pollution Control Board has also issued instructions to the respondents to control the Noise pollution. The copy of the order passed, by Pollution Control Board, does not form part of the pleadings in the writ petition, therefore no notice of it can be taken. In any case, it is for the petitioner to workout his remedy under the Pollution Control Act, for violation of the order passed by the Pollution Control Board. This cannot be a basis to maintain the writ petition, after the suit was filed on the same cause of action, stood finally decided.

5.The learned counsel for the petitioner also placed reliance on the judgment of the Hon'ble Division Bench of this court, in the case of M.S.Appa Rao M.S. vs. Government of Tamil Nadu and another, [1995-1-L.W.319], to contend that this court can issue directions to control the pollution. The reliance on the judgment is totally misplaced as in the said case, there was no dispute on facts nor was a case where civil court had already decided the lis, as in the present case.

6.It has been fairly conceded by learned counsel for the petitioner that execution application was also filed to execute the decree, and the respondents herein have filed revision in this court, and the execution of the decree has been stayed. The jurisdiction under Article 226 cannot be invoked, to defeat the order passed by this court in exercise of revisional jurisdiction. This writ is nothing but misuse of the process of court.

7.The writ is totally misconceived, and deserves to be dismissed with costs.

8.Consequently, the writ petition is dismissed with costs being not competent.

9.The costs are assessed at Rs.10,000/- [Rupees Ten thousand only]. Connected Miscellaneous Petition is closed.

er