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BEFORE THE NATIONAL GREEN TRIBUNAL,
CENTRAL ZONAL BENCH,
BHOPAL
APPLICATION No.08 of 2013 (P.B.84/2012 THC)
In the matter of :
Mahakoushal Shaheed Smarak Trust,
1104, Pt. Bhawani Prasad Tiwari Ward,
190, Gol Bazara, Jabalpur (MP). . . . . Applicant
Versus
1. State of Madhya Pradesh,
Through the Principal Secretary,
Urban Administration & Development Department,
Mantralaya, Vallabh Bhawan, Bhopal.
2. Collector Jabalpur,
District Jabalpur (MP).
3. Sub Divisional Magistrate,
City Kotwali Range, Jabalpur.
4. Station House Office,
Police Station,
Lordganj, Jabalpur. . . . . Respondents
Counsel for Applicant :
Shri R.G. Mahajan, Advocate appeared on behalf of Shri Arjun Sahay, Advocate. Counsel for Respondents :
Shri Sachin K.Verma, Advocate.
ORDER/JUDGMENT PRESENT:
Hon'ble Dr. Justice P. Jyothimani (Judicial Member) Hon'ble Dr. Ajay A. Deshpande (Expert Member) Order of the Tribunal Delivered by Hon'ble Dr. P.Jyothimani, Judicial Member
1. This application has been taken up by the Tribunal on receipt from the Hon'ble High court of Madhya Pradesh. The applicant has challenged the orders dated 04.03.2011 and 28.03.2011 passed by invoking the provisions of Madhya Pradesh Kolahal Niyantran Adhiniyam, 1985 (hereinafter referred to as "Adhiniyam") and Noise Pollution (Regulation and Control) Rules, 2000 (herein after referred as "Rules"). The Sub Divisional Magistrate under the impugned order has warned the applicant trust that if anybody defies the rule by making noise pollution in their premises, the trust will be held liable. The applicant trust which was created as per the trust deed dated 30.10.1947 was given a lease hold right by the Municipal Committee, Jabalpur, of the land to the extent of 10.34 acres subject to various conditions. The applicant trust, after obtaining the lease, is said to have put up the boundary wall and developed the same by making certain constructions which was inaugurated by the Late Prime Minister of India, Pt. Jawahar Lal Nehru. The land appurtenant to super structure in the form of a Bhawan put up by the applicant, is being given by way of license to third parties temporarily to organize social, cultural and religious functions. It is the case of the applicant trust that under the Adhiniyam which was enacted to control the noise pollution in the State of Madhya Pradesh, there has been some restriction regarding the use of loud music between 10:00 PM to 6:00 AM. In case of violation, the statute provides the same as a non cognizable and bailable offence. The Union Government, by virtue of the powers conferred under the Environment (Protection) Act, 1986, has also formulated the noise pollution rules, restricting the use of noise in public places, etc. It is the case of the applicant that when once the trust issues licence to third party for running social or cultural function, it is for the licensee to obtain necessary permission from the authority concerned for using the public address system. But the grievance of the applicant is that wherever the licensee who obtains licence from the authority concerned violates the provisions of Adhiniyam or the Noise Pollution Rules of Government of India, the Sub Divisional Magistrate namely, the Respondent No.3 2 use to issue orders like the impugned order to the applicant trust threatening the trust liable for the conduct of the licensee on the ground that the trust, being the licensor, is having overall control over the premises. In the said order, the Respondent No.3 SDM threats criminal action against the applicant trust for certain violation made or would be made by the licensee. The impugned orders are challenged contending inter alia that the Respondent No. 3 and 4 who have actually issued the licence to the licensee under ther provisions of Adhiniyam and/or rules cannot abdicate their legal obligation as per the Adhiniyam/Rule and impose liability on the applicant, that in as much as the applicant is not the violator, even under Adhiniyam, it cannot be proceeded with simply because it is in control of the premises and that the impugned order is intended to harass the applicant trust which has been constituted for the noble public purpose.
2. In the reply filed by the respondent, it is stated that not only the application is misconceived but the order dated 04.03.2011 has been passed pursuant to the directions issued by the Hon'ble High Court in Writ Petition No. 2199 of 2010 dated 17.02.2010, wherein the Hon'bleHigh Court has given the following directions :
"However, it is directed that concerned Sub Divisional Magistrate and Executive Magistrate shall ensure compliance of the order passed by the Collector dated 11.01.2010."
In order to implement the said order of the High Court, the impugned notice came to be issued and that is also in accordance with the Adhiniyam. It is the case of the respondents that as per Rule 8 of "Rules", the person who owns the premises in which noise pollution is committed also is responsible. Otherwise, it is the case of the respondents that the applicant being the owner of the premises, having control over the land has equal responsibility under Adhiniyam/rules to see that noise pollution is not committed by anyone. The Respondent No.3 and 4 being the lawful authorities are legally bound to discharge their duties as per the provisions of the Adhiniyam/Rules and therefore, there is no illegality or impropriety in the impugned order passed by the respondents. The respondents also rely upon the order passed by the Hon'ble High Court in the contempt proceedings, discharging them from such proceedings based on unconditional apology, to substantiate the contention that there is no malafide in passing 3 the impugned order.
3. The Learned Counsel appearing for the applicant has taken us to various provisions of the Adhiniyam as well as the Rules framed by the Government of India for regulating the noise pollution. According to him, under Section 2(a) of the Environment (Protection) Act, 1986, the definition "environment" includes 'air' and therefore, not only under the provisions of Adhiniyam, 1985, but also as per the Central Act namely the Environment (Protection) Act, 1986, the Respondent No. 3 and 4 being the legal authorities to enforce the provisions of the Act, have authority to issue impugned notice and while issuing such notice, they must have applied their minds to the fact that the intent of the Adhiniyam as well as the Rules in preventing noise pollution is in fact preventing the polluter from doing the same and by no stretch of imagination, the applicant can be deemed to be a polluter so as to make him liable. According to him, the noise pollution have been caused by the licensee which is personal in nature, liability cannot be vicariously imposed on the applicant, especially when the Adhiniyam proposed to impose the punishment by ways of penalty for violation. He would submit that in case of penal liability, there is no question of making vicarious liability of the applicant since the person who commits offence is liable to be punished and not any other person unless he is shown as an abettor. He would also rely upon the judgment of the Hon'ble Supreme Court of India, reported in AIR 1952 SC 16 to substantiate his contention that there is no vicarious liability in respect of penal action.
4. Repudiating such contention of the applicant, the Learned Counsel appearing for the Respondents would at the threshold raise an issue of maintainability of the application before this Tribunal. According to him, a wholesome reading of Adhiniyam, 1985 shows that it is a penal legislation and therefore, even if the applicant is aggrieve by the impugned order, his remedy is available before the criminal court, as per the Code of Criminal Procedure and not to the Tribunal. It is his contention that the Tribunal, having the limited powers in respect of environment issues covered in 7 Acts contemplated under Schedule I, cannot usurp the powers of criminal court.
5. However, when it was brought to his notice that the intention of the Adhiniyam, as 4 it is shown in Preamble, which is clear that it is to provide control over the noise pollution in the State of MP and therefore, imposing of punishment or penalty is only incidental and simply because the noise pollution is treated as non-cognizable and bailable offence and the penalty of Rs. 1,000/- is imposed, the entire Adhiniyam cannot be treated as a criminal legislature like Indian Penal Code, Criminal Procedure Code, etc., he has sought leave to permit him not to press the said contention. He has contended that when the scope of the Adhiniyam as well as Rules are to be taken into consideration, the intention of the law makers is to avoid pollution and in that process, anyone who is even remotely responsible should be made liable. He would state that as the owner of the premise, he has got more control over his licensee contractually and as and when his licensee has exceeded the limit, the applicant should have either cancelled the licence or cautioned him and in as much as such act has not been done, the applicant cannot get away with his responsibility attributing any motive on Respondent Nos. 3 &
4. He has also relied upon the judgment reported in 2012 (5) SCC I to substantiate his contention that the applicant can be made responsible under vicarious liability principle as per the intent and ambit of the Adhiniyam as well as Rules.
6. We have heard the Learned Counsels for the applicant as well as the respondents, referred to the provisions of Adhiniyam, Rules as well as the documents filed by both the sides and gave our anxious thought to the issues involved in this case.
7. The Madhya Pradesh KolahalNiyantranAdhiniyam, 1985 which is a State Act is prior in point of time and when compared with the Environment (Protection) Act, 1986, which is a Central Act, came into effect from May 1986 there are no contradiction. It is also nobody's case that there is any contradiction between the State and Central Act and therefore, it is not necessary for us to enter into the realm of the said aspect. The basic concept of both the Acts is to see that the environment is kept clean. While the Adhiniyam is restricting wholly in respected of the noise pollution, the Environment (Protection) Act, 1986, deals with the larger issues of environment. As submitted by the Learned Counsel for the respondents, the Environment (Protection) Act, 1986 defines "environment" under Section 2(a) which includes not only issue relating to water, air, land and also other living creatures, plants, micro organisms. It is relevant to extract the 5 said definition, which is as follows :
'2.(a) "environment" includes water, air and land and the interrelationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property'.
8. The Government of India, while formulating a separate Act for the purpose of prevention, control and abatement of air pollution, has passed the Air (Prevention and Control of Pollution) Act, 1981 in which the power of controlling air pollution has been intended to be entrusted to the Pollution Control Board. Section 2(a) of the Air Act, 1981while defining "air pollutant" also includes noise by virtue of an amendment inserted w.e.f. 01.04.1998. The term 'air pollutant' has been defined, as on date, under Air Act as follows :
'2. (a) "air pollutant" means any solid, liquid or gaseous substance 2[(including noise)]present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment;
9. Therefore, it is clear that under the Environment (Protection) Act, 1986 and Air (Prevention and Control of Pollution) Act, 1981 which are Central Acts they have entrusted the power to the prescribed authorities for effective control of pollution and environmental degradation. In continuation of the same, Rules were framed by the Government of India called as Noise Pollution (Regulation and Control) Rules, 2000 by which various regulatory measures, including maintenance of ambient air quality with respect to Noise levels to be maintained and authority who is responsible to supervise and implement the same have also been specifically mentioned. In the said Noise Pollution (Regulation and Control) Rules, 2000, in Rule 5 the loud speaker pollution level is explained in detail. It is relevant to extract the said provision for better understanding of the concept of noise pollution:
"5. Restriction on the use of loud speakers/public address system 2[and sound producing instruments]. - (1) A loud speaker or a public address system shall not be used except after obtaining written permission from the authority. 5
[(2) A loud speaker or a public address system or any sound producing instrument or a musical instrument or a sound amplifier shall not be used at night time except in closed premises for communication within, like auditoria, conference rooms, community halls, banquet halls or during a public emergency.] 6 1 [(3) Notwithstanding anything contained in sub-rule (2), the State Government may, subject to such terms and conditions as are necessary to reduce noise pollution, permit use of loud speakers or 2[public address system and the like during nights hours] (between 10,00 p.m. to 12.00 midnight) on or exceeding 3 fifteen days in all during a calendar year.] [The concerned State Government shall generally specify in advance, the number and particulars of the days on which such exemption would be operative.] 3 [(4) 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;] 3[(5) The peripheral noise level of a privately owned sound system or a sound producing instrument shall not, at the boundary of the private place, exceed by more than 5 dB (A) the ambient noise standards specified for the area in which it is used.]
10. Under the said "Rules", the authority for enforcement have also been specified as the local authority in the following definition namely 2(c):
'2.[(c) "authority" means and includes any authority or officer authorised by the Central Government, or as the case may be, the State Government in accordance with the laws in force and includes a District Magistrate, Police Commissioners, or any other officer not below the rank of the Deputy Superintendent of Police designated for the maintenance of the ambient air quality standards in respect of noise under any law for the time being in force;]'
11. Now, going to the provisions of the Adhiniyam, namely the State Act, the Adhiniyam in Section 2(d) explains the prescribed authority as follows:
"(d) 'prescribed authority' means the District Magistrate or such other authority or officer not below the rank of a NaibTehsildar as may be empowered by the District Magistrate in writing in this behalf."
12. However, the provision of the said Act, even though restricts the use of loud speakers between 10.00 PM to 6.00 AM, the contents thereof is not minute as that of the Central Noise Pollution Rules which is specific in nature. Be that as it may, on an overall reading of both, the Central Act and the State Act, we have absolutely no doubt that both the legislations are intended for the purpose of preventing noise pollution. It 7 goes without saying that provision of noise pollution is one of the noble causes which are being carried out by both the Governments. In fact, it helps not only old people who are required to have peaceful life but also patients undergoing treatment apart from the students who are required to concentrate on their education and by the indiscriminate use of loud speaker by various organizations, either by way of music, religious discourse or by way of any meeting common people who have fundamental right to life are affected. That being the main object of all the legislations, any approach has to be only on that basis. The contention of the Learned Counsel for the Respondent that the Adhiniyam is a penal legislation, has no basis, even though the Learned Counsel has realised the same and withdrawn the said submission at a later point of time. However, we are of the view that we have to examine that aspect also since it has raised an interesting issue. It is true that under Section 14 of the Adhiniyam, noise pollution is treated as an offence but as non-cognizable and bailable for which the penalty has been imposed under Section 15. It is relevant to extract the said provision as follows:
"Section 14. Offences to be non-cognizable and bailable. - all offences under this Act shall be non-cognizable and bailable.
Section 15. Penalty - (1) Whoever contravenes or attempts to contravene or abets the contravention of any of the provisions of this Act or the rules made thereunder shall be punished with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both. (2) Whoever after having been previously convicted of an offence punishable under sub-section (1) subsequently commits and is convicted of an offence shall be liable to twice the punishment which might be imposed on a first conviction under this Act."
13. It is significant to note that Section 15 which imposes penalty not only starts with the word 'whoever contravenes' which is wider in its amplitude and therefore, the intention of law makers is made very clear that they wanted include any person whether he is actually using noise pollution or who is allowing a person to do so as an abetter. An overall view of the Act makes it clear that the idea of the State Government in enacting of the said Adhiniyam is to control noise pollution in the State of Madhya 8 Pradesh. For the purpose of effective controlling, various provisions contemplating prohibition regarding the soft music, prohibition regarding loud music, restriction regarding use loud speaker, restriction regarding use of horn type loud speaker, operation of loud speaker, use of loud speaker in public premises for making announcement are made and ultimately it prohibits all noise in public interest which is categorically stated under Section 10 of the Act, which is as follows:
"10. Prohibition of any kind of noise in public interest. (i) Noise of any kind is prohibited between the hours of 11.00 PM and 6.00 AM.
(2) The prescribed authority, on being satisfied that in its opinion it is necessary in public interest so to do, by an order in writing, recording reasons therefore, prohibit noise of any kind in any place at any other time."
14. There are certain exemptions given in respect of noise on certain occasions like republic day, independence day, etc., apart from the traditional use in the religious places which requires permission and exemption from the prescribed authority. Even under Central Legislation, there is a limited provision for exemption. The said legislation, however, provides for such exemption on permissible dates as stated under Section 13 of the Act. Now, when any person contravenes the provisions of the Act, such contravention is treated as an non-cognizable and bailable offence and ultimately when the person who contravenes is brought to the criminal court, he will be imposed with the penalty of Rs. 1,000/-. Merely, because the penalty clause is provided in one of the provisions, one cannot treat it as a penal legislation. The idea being not to punish a person as a primary concept but to abate noise pollution. This, compared with any other legislations like Indian Penal Code wherein the offences are defined, followed by the punishment by way of sentence and therefore, the entire Act has been devoted for the purpose of offence and penalty and punishment. When that is not so, in respect of Adhiniyam, one cannot come to the conclusion that Adhiniyam is a criminal legislation and therefore, the remedy available to the applicant is by way of either criminal appeal or revision under Criminal Procedure Code.
15. Even assuming that the Adhiniyam is a criminal legislation, it cannot be said that the Tribunal has no jurisdiction. It is under the National Green Tribunal Act, 2010 enacted by the Government of India, the National Green Tribunal gets its jurisdiction as seen in Section 14(1) which is as follows:
"14. Tribunal to settle disputes -(1) The Tribunal shall have the jurisdiction over 9 all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I.
16. The NGT Act also incorporates the definition of 'environment' under Section 2(c) which is exactly in the same term as defined under the Environment (Protection) Act, 1986. Section 2(2) of the NGT Act, 2010, while defining the words which are left out in the definition section, in an elaborate sense includes those words defined in any other Acts related to environment even though such definition is not finding any place in any one of the seven Acts contemplated under Schedule I. This shows the intention of the law makers in giving wider meaning to the terms to be interpreted by the Tribunal in respect of the environment issues and therefore, it is relevant to extract Section 2(2), which is as follows:
"2.(2) The words and expressions used in this Act but not defined herein and defined in the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974), the Water (Prevention and Control of Pollution) Cess Act, 1977 (36 of 1977), the Forest (Conservation) Act, 1980 (69 of 1980), the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981), the Environment (Protection) Act, 1986 (29 of 1986), the Public Liability Insurance Act, 1991 (6 of 1991) and the Biological Diversity Act, 2002 (18 of 2003) and other Acts relating to environment shall have the meaning, respectively, assigned to them in those Acts.
17. The jurisdiction of NGT, which is both original and appellate, as per Chapter III of the NGT Act, 2010, however makes it clear that either it is a settlement of dispute as contemplated under Section 14 of the Act or in respect of payment compensation under the polluter pays principle under Section 15 of the Act or to decide as an appellate authority against any order passed by the competent authority under various Acts like Water Act, Air Act, the jurisdiction has been limited to environment issues covered under the Seven Acts mentioned in Schedule I, namely:
1) The Water (Prevention and Control of Pollution) Act, 1974;
2) The Water (Prevention and Control of Pollution) Cess Act, 1977;
3) The Forest (Conservation) Act, 1980; 4) The Air (Prevention and Control of Pollution) Act, 1981; 5) The Environment (Protection) Act, 1991; 6) The Public Liability Insurance Act, 1991; 7) The Biological Diversity Act, 2002.
18. In as much as the Air Act, 1981 and Noise Pollution Rules 2000 forms part of Schedule I and there is no contradiction between the Air Act, 1981, Noise Rules, 10 2000and the Adhiniyam, 1985 in respect of prevention of noise pollution, one cannot come to the conclusion that the Tribunal, will not have any jurisdiction to adjudicate upon the dispute in issue. Therefore, looking at any angle, the contention raised by respondent that the Tribunal does not have jurisdiction does not merit consideration and is liable to be rejected.
19. Now, coming to the next point as to whether the applicant being the licensor, in a position of the owner of the premises, is liable for the Act of the licensee. It is not disputed that between the applicant and different licensees to whom the applicant permit to organize functions from time to time, is purely contractual, but such contract cannot be against the provisions of any law. When the Adhiniyam, 1985contemplates a restriction on the use of noise pollution in any place and such place is issued licence by the applicant to a licensee by way of a contract, certainly the terms of law have to be read within the terms of contract between the parties in so far as it relates restriction regarding the noise pollution. Therefore, the applicant cannot escape his liability saying that even though he has let out his premises, he has not actually committed any noise pollution.
20. At the same time, one cannot ignore the fact that principal liability is on a person who violates the law and therefore, it is primarily the licensee who has violated and who must be primarily be held responsible. In fact, the licensor may not know the ambient quality which is to be maintained by the licensee, for, it is the licensee who obtains the permission from the authority concerned which is expected to impose restrictions regarding the level of noise to be maintained by him and in that process of issuing permission by the public authority, certainly licensor is not a party and therefore, one cannot impose full responsibility on the licensor and in our view the licensee is principally responsible which is also the intention of the Central Rule namely, the Noise Pollution (Regulation and Control) Rule, 2000 especially Rule 8 which is as follows:
"8.Power to prohibit etc. Continuance of music sound or noise - (1) of the authority is satisfied from the report of an officer in charge of a police station or other information received by him 4[including from the complainant] that it is necessary to do so in order to prevent annoyance, disturbance, discomfort or injury to the public or to any person who dwell or occupy property on the vicinity, he may, by a written order issue such directions as he may consider necessary to any person for preventing, prohibiting, controlling or regulating : -
a. The incidence or continuance in or upon any premises of -
(i) Any vocal or instrumental music,
11
(ii) Any manner whatsoever of any instrument including, loudspeakers {public address systems, horn, construction equipment, appliance or apparatus} or contrivance which is capable of producing or re- producing sound, or 2 [(iii) Sound caused by bursting of sound emitting fire crockers, or] b. the carrying on in or upon, any premises of any trade, avocation or operation or process resulting in or attended with noise.
(2) The authority empowered under sub-rule (1) may, either on its own motion, or on the application of any person aggrieved by an order made under sub-rule (1), either rescind, modify or alter any such order :
Provided that before any such application is disposed of, the said authority shall afford to the applicant 3[ and to the original complainant, as the case may be,] an opportunity of appearing before it either in person or by a person representing him and showing cause against the order and shall, if it rejects any such application either wholly or in part, record its reasons for such rejection.
21. At the same time, the applicant being the licensor is also covered under the definition of the 'occupier', under Section 2(f) of the Act which makes it abundantly clear that occupier is not only the person who is in possession but also who is in control of the premises. The term occupier defined under Section 2(f) is as follows:
'(f) "occupier", in relation to any factory or premises, means a person who has control over the affairs of the factory or the premises and includes, in relation to any substance, the person in possession of the substance;'
22. By applying the same, simply because the applicant has let out his portion to somebody by way of licence he cannot riggle out of the situation saying that he has no control over his licensee.
23. It was in Ramlila Maidan Incident, In Re, reported in (2012) 5 SCC Page 1, the Hon'ble Apex Court has held that right to sleep is a fundamental right which has to be read under Article 21 of the Constitution of India which ensures right to life. That was a case where by virtue of imposing Section 144 of Cr.P.C., a Dharna alleged to have been conducted by Yoga Guru, Baba Ramdev, was sought to be interfered in the night time when all the participants were fast asleep. While dealing with the order passed under Section 144 of Cr.P.C. by the Commissioner of Police or the Ministry of Home Affairs, the Hon'ble Justice Swatanter Kumar, Hon'ble Chairperson of National Green Tribunal speaking for the Supreme Court has observed as follows:
"85. From the record, it can reasonably be inferred that the Ministry of Home Affairs and Delhi Police were working in coordination and the police was keeping the Ministry informed of every development. There is some element of nexus between the Government's stand on the demands of Baba Ramdev, its decision in that regard and the passing of an order under Section 144 Cr. PC but, this by itself would not render the decision as that taken in bad faith. The decision of the Ministry or the police authorities 12 may not be correct, but that ipso facto would not be a ground for the Court to believe that it was a colourable and/or mala fide exercise of power.
24. His Lordship has also observed that a person who seeks to fight against the corruption and black money cannot be portrayed as threat to law and order.
"96. On these facts, it is the submission of Respondent 4 that it is ironic that persons fasting against failure of the Central Government to tackle the issue of corruption and black money have been portrayed as threats to law and order. Citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by an arbitrary executive or legislative action. The law prescribes no requirements for taking of permission to go on a fast. Respondent 4 suggests that in order to establish the truth of incident, an independent Commission should be constituted, based on whose report, legal action to be taken in such situations should be determined.
25. While holding that the trust under which Baba Ramdev has conducted Yoga Camp is equally guilty since in the guise of conducting Yoga Camp for which permission was obtained an indefinite fast was undertaken, it was held that the action taken as an emergency cannot be held to be malafide even though such action when the participants were sleeping without giving opportunity to them was uncalled for.
26. The Supreme Court has held, ultimately by relying upon the earlier judgment, Babulal Parate Vs. State of Maharashtra, AIR 1961 SC 884, that Section 144 Cr.P.C. cannot be resorted merely on imaginary ground or on the ground of tendency or a threat in para 177:
"177. It was for the police authorities or the administration to place on record the material to show that there was a genuine threat or reasonable bias of communal disharmony, social disorder and public tranquillity or harmony on the night of 04.06.2011. However, no such material has been placed before this Court. Right from Babulal Parate, this Court has taken a consistent view that the provisions of Section 144 Cr.PC cannot be resorted to merely on imaginary or likely possibility or likelihood or tendency of a threat. It has not to be a mere tentative perception of threat but a definite and substantiated one. I have already recorded that none of the authorities concerned, the their wisdom, had stated that they anticipated such disturbance to public tranquillity or imposition of a restriction under Section 144 Cr. PC as late as till 10.40 PM on 04.06.2011, which then was sought to be executed forthwith.
27. In the operative portion, while dealing with the similar situation of vicarious liability, the Hon'ble Apex Court has held that while a trust conducts a programme, it is not only the trust but also other members of the assembly for whose act the trust should take up the responsibility. The portion of the judgement which is relevant for the purpose is as follows:
"270. Once an order under Section 144 Cr.PC is passed by the competent authority and such order directs certain acts to be done on abstains (sic abstention) from doing certain acts and such order is in force, any assembly, which initially might have been a lawful assembly, would become an unlawful assembly and the people so assembled would be required to disperse in furtherance to such order. A person cannot only be 13 held responsible for his own act, but, in the light of Section 149 IPC, if the offence is committed by any member of the unlawful assembly in prosecution of a common object of that assembly, every member of such assembly would become member of the unlawful assembly."
28. Ultimately, the Hon'ble Supreme Court has given certain guidelines for the purpose of conducting of public meeting, dharna and agitation but it remains true as extracted above that the Hon'ble Supreme Court has also observed that once the trust has conducted a programme for the Act of everyone of its member and in that case few of the Members are found to have involved in brick batting, trust was made responsible. Even though the said observation may not be strictly applicable in the fact of the present case, the basic spirit of the order can be borrowed for our coming to the conclusion that the applicant being a trust cannot escape from its own obligation only because the trust itself has given licence to third party.
29. But unfortunately, referring to the impugned order of the Respondent No. 3 and 4 dated 04.03.2011, wherein the Respondent No. 3 has chosen to state that under the Adhiniyam, 1985 the applicant is also liable for the noise pollution committed by any person in its premises, has not acted as per the direction of the District Collector dated 11.01.2010. It is nobody's case that the impugned order has not been issued by the Respondent No.3 in accordance with the directives issued by the Collector dated 11.01.2010. In the said directions issued by the District Collector dated 11.01.2010, the collector has made it amply clear that the notice shall state specifically the extent of ambient air quality relating to noise as notified by the Government of India while delegating powers to the Respondent No.3. It is also relevant to point out that in the permission granted by SDM to the licensee of the applicant dated 24.12.2010, he has specifically mentioned the ambient air quality related to noise, but unfortunately in the impugned order there is nothing to show that the licensee has violated the condition relating to the ambient air quality relating to noise with any particular details. In the absence of such particulars, we are unable to understand as to how either the licensee of the applicant or applicant himself, as a trust, can be made responsible for an unspecified act. We are of the view that the impugned notice issued by the Respondent No. 3 and 4 are vague in nature and they cannot be complied with even by the licensee. In such view of the matter, while there is no doubt that both the applicant as well as licensee are 14 liable under State Act and Central Act, the impugned notice issued by the Respondent No. 3 and 4 cannot be sustained in the eye of law. Accordingly, we set aside the impugned notice issued by the Respondent No. 3 and 4, however, with liberty to the said respondents to act in future in accordance with the Acts as stated above with specific reference to the nature of violation to both the licensee as well as the licensor. While issuing such notices, the Respondent No. 3 and 4 shall follow the directions issued by the District Collector, Jabalpur dated 11.01.2010. Accordingly, we dispose of the above application in the following terms:
1) The impugned order of the Respondent No. 3 and 4 dated 04.03.2011 and 28.02.2011 stands set aside as they are not in accordance with the communication of the District Collector, Jabalpur dated 11.01.2010 and the relevant rules.
2) We make it clear that the petitioner, as the owner of the property and licensor, is also responsible alongwith licensee in the event of violation made by the licensee or any other person in future.
3) However, in future the responsibility of the licensor shall be, by way of intimating the concerned authorities about the misconduct by the licensee in violating the noise rules and the directions of the Collector and he shall also ensure that before he issues licence, the licensee gets prior permission from Prescribed Authorities for using the sound amplifier system. To the above extent, the applicant shall be liable.
4) The Respondent No. 3 and 4, in future, while giving such notices shall follow not only the directions of the District Collector but also give the exact nature of noise pollution effected by the person concerned, before taking any action as per the Adhiniyam, 1985 and rules.
30. While parting with, we are informed that no silence zone have been declared in the Jabalpur City under the provision of Noise Rules. In these circumstances, it is relevant to extract the said provision in Rules:
"3. Ambient air quality standards in respect of noise for different areas/zones - (1) The ambient air quality standards in respect of noise for different areas/zones shall be such as specified in the Schedule annexed to these rules.
(2) The State Government shall categorize the area into industrial, 15 commercial residential or silence areas/zones for the purpose of implementation of noise, standards for different area. (3) The State Government shall take measures for abatement of noise including the noise emanating from vehicular movements, blowing of horns, bursting of sound emitting fire crackers, use of loud speakers or public address system and sound producing instruments and ensure that the existing noise levels do not exceed the ambient air quality standards specified under these rules.
(4) All development authorities, local bodies and other concerned authorities while planning developmental activity or carrying our functions relating to town country planning shall take into consideration all aspects of noise pollution as a parameter of quality of life to avoid noise menace and to achieve the objective of maintaining the ambient air quality standards in respect of noise.
(5) An area comprising not less than 100 meters around hospital, educational institutions and courts may be declared as silence area / zone for the purpose of these rules.
Since, notification of Silence zones/areas and also, capacity to monitor the noise levels as per rules are essential for effective implemention of rules against noise pollution, we are of the view that the State Government of Madhya Pradesh shall notify the Silence Zones for the entire State of Madhya Pradesh at an earliest point of time in the public interest. As per the Noise Pollution (Regulation and Control) Rules, 2000, the State Government has legal obligation to categorize commercial, residential or silence zone for the purpose of implementation of noise standards for different area. The State Government being a competent authority shall, if not already, categorize the areas as per Rule 3 and publish with wide publicity within a period of 08 weeks from today.
(Dr. Justice P. Jyothimani) Judicial Member (Dr. Ajay A. Deshpande) Expert Member Central Zonal Bench, Bhopal May 14th, 2013 16