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1 (J) Application No.53/2015(WZ)
BEFORE THE NATIONAL GREEN TRIBUNAL (WESTERN ZONE) BENCH, PUNE
APPLICATION NO.53/2015(WZ) CORAM:
Hon’ble Shri Justice V.R. Kingaonkar (Judicial Member)
Hon’ble Dr. Ajay A. Deshpande (Expert Member)
B E T W E E N:
Mr. Vivek Sheshrao Dhakne, Age 36 years, Occupation : Service, R/at 6, Pagariya Colony, Station Road, Aurangabad – 431 001.
……Applicant
A N D
1. Maharashtra Tourism
Development Corporation, Railway Station Road, Bansilal Nagar Area, Aurangabad-431 001.
2. Mr. Vishal Shravan Ingale,
Age : Adult, Occupation : Business, R/at Post Shivani, Taluka Akola, Dist. Akola. And MTDC Resort, Railway Station Road, Bansilal Nagar Area, Aurangabad – 431 001.
2 (J) Application No.53/2015(WZ)
3. Maharashtra Pollution Control Board, Paryavaran Bhavan, A-4/1, MIDC Area, Chikalthana, Near Seth Nandlal Dhoot Hospital, Jalna Road, Aurangabad – 431 001.
4. The Commissioner,
Aurangabad Municipal Corporation, Aurangabad-431 001.
5. The Commissioner of Police, Mill Corner, Aurangabad-431
001. 6. The State of Maharashtra,
Through its Chief Secretary, 3rd Floor Mantralaya, Mumbai-32.
…..Respondents Counsel for Applicant : Mr. Asim Sarode Adv. & Associates.
Counsel for Respondents : Vaishali Chavan, Regional Manager, Pune for Respondent
No.1
Mr. A.D. Shinde Adv. for Respondent No.2
Ms. Supriya Dangare Adv. for Respondent No.3
Mr. O.C. Sirsat, Legal Advisor, Mr. J.M. Murkute Adv. for
Respondent No.4
Date: December 9th, 2015
3 (J) Application No.53/2015(WZ)
ORAL JUDGMENT 1. By this Application, the Applicant has raised
substantial issue relating to noise pollution, ultimately
degrading environment, within premises of MTDC
(Maharashtra Tourism Department Corporation). The
Maharashtra Tourism Department Corporation will be
referred hereinafter as “MTDC”. It is case of the Applicant
is that he resides in proximity of the MTDC and has to
suffer noise pollution created during the course of
ceremonies like marriages, reception parties, birthday
parties, etc organized at the lawn of the MTDC, from time
to time which are let out by MTDC or for use of temporary
occupants, licensees with consent of the MTDC office.
2. The Applicant says that since long many years
the residents are facing intense noise pollution in the area
which aggravates annoyance, irritation and disturbance
in the normal life of the public members notwithstanding
the fact that there is a school within 100 metres distance
from the MTDC and therefore, noise pollution within the
silence zone ought not to be permitted. The school called
Nutan Vidyalaya is a medium primary school and the
students are disturbed due to high decibel noise created
during the morning session of the school hours due to
parties organized at the lawn of the MTDC. The MTDC
has no authority to permit the occupants to give the lawn
4 (J) Application No.53/2015(WZ)
or any other area for use of the reception parties,
marriage parties or any such activities involving likelihood
of noise pollution. The unbearable and uncontrolled
illegal activities of the MTDC give rise to illegal noise
pollution which ought to be controlled by the authority,
namely, Pollution Control Board and the Police
concerned. Though, complaints were made yet no due
cognizance was taken and the unbearable noise was
being created within the premises of the MTDC since
long. Thus, the unbearable noise is the reason for
submission of the Application and moreover, probable
future continuation of the noise pollution on the basis of
the precautionary principle is also one of the ground on
which the Applicant relies. Consequently, the Applicant
seeks mandatory injunction against the MTDC to stop
giving any permission for use of the premises to allow the
marriage parties or other reception parties, etc in which
noise is created which causes disturbance to nearby
residents and further more penalty of Rs.1,00,000/- is
also sought to be imposed for remedial measures.
3. MTDC denied causing of noise pollution by itself
or the licensee. According to the MTDC, the premises is
given to the licensee for a period of 10 years from the date
of execution of the agreement in order to manage the
Resort which is meant for tourists. The purpose, in fact is
5 (J) Application No.53/2015(WZ)
to provide comfort, food and other amenities to the
tourists who flock in Aurangabad to visit nearby historical
places like Ellora and Ajanta including other some places
worth visiting. The tourists, who occupy the premises for
short duration, normally do not have intention to use the
lawn for reception, marriage functions or other such
activities and it is very uncommon that the noise
pollution is generated within the MTDC area. Therefore,
the MTDC sought dismissal of the Application.
4. The stand of concessionaire/licensee is
identical. It is stated that the tourists will not normally
occupy lawn because for short time it is allowed to be
used. It is contended that the lawn is not separately
leased-out nor any amount is collected from the person,
who is not a tourist, for the use of the lawn. It is also
contended that there is no permission to use premises of
the lawn to organize parties, reception and like activities
and in any case, no noise exceeding the permissible
decibel is generated due to such activities. It is denied
that the school students or the devotees for nearby temple
have faced any disturbance due to the activities held
within the premises of the MTDC. The licensee
(contractor) of the MTDC, therefore, emphatically denied
all the material averments of the Application and
submitted that the allegations of the Applicant regarding
6 (J) Application No.53/2015(WZ)
noise pollution are illusory, unfound and unsustainable.
In this issue of the matter, the licensee (contractor)
sought dismissal of the Application.
5. The reply affidavit of Respondent No.5 is filed
through Ms. Mayuri Purushottam Pawar, Police Sub
Inspector, Kranti Chowk Police Station, Aurangabad. Her
affidavit discloses that relief of declaration sought against
MTDC is in the form of injunction to which the Police
authorities have nothing to do. It is denied that high
decibel noise is allowed to be used within the premises of
MTDC at any functions. It is further submitted that on
January 22nd, 2014 DCP, Zone-I received complaint of the
Applicant which was inquired into. That complaint
Application was duly investigated. The Police Sub-
Inspector however, admits that MTDC Resort is situated
within the residential area and the programmes
conducted in the MTDC areas, if found to be illegal, will
be duly controlled and proper action will be taken against
the defaulter/polluter.
6. We have heard learned Advocates for the parties.
We have also gone through the entire record. The
Municipal Corporation has placed on record the map
which shows that minimum distance between the MTDC
and the Nutan Vidyalaya is about 60 metres. However,
the actual distance shown in the maps appears to have
7 (J) Application No.53/2015(WZ)
been alleged by the MTDC/contractor is shown 100
metres. Thus, the MTDC/contractor also disputes
correctness of the map which is authenticated by
Municipal Corporation. The map is submitted by Shri
Ramesh Pawar who is Additional Commissioner at
Municipal Corporation, Aurangabad.
7. The points which are required to be thrashed
out and addressed are as follows:-
(i) Whether it is proved that the use of lawn in
the MTDC leads to noise pollution from time to
time?
(ii) Whether it is proved that the noise pollution
requires to be controlled in view of Section 20 of the
National Green Tribunal Act, 2010 on the basis of
“precautionary principle” and probability of future
continuity of noise pollution?
(iii) Whether the stand taken by the Police
authority is acceptable and proper?
(iv) Whether the Pollution Control Board has
failed to take proper care of the complaints made by
the Applicant, in case the pollution at the MTDC
lawn was noticed and was brought to its notice by
the Applicant, who had purchased the noise
measurement meter by which decibels were
recorded by him?
8 (J) Application No.53/2015(WZ)
(v) Whether the MTDC has any authority, in the
eyes of law to allow the tourists to use the annex
lawn for use of reception, marriage or other
programmes?
(vi) Whether legal consent of the Pollution
Control Board for renting of the hotel activity by
MTDC including use of sound amplifying machinery
and other activities is necessary?
8. Before we proceed to deal with the factual
matrix, it would be proper to consider the legal issues as
regards the meaning of “Silence zone” within the
parameters of the Noise Pollution (Regulation and
Control) Rules, 2000. The explanation of Silence zone is
particularly related to zoning of city area or township
under the Noise Pollution (Regulation and Control) Rules,
2000 as per the Schedule (E) under Regulation 3
appended thereto. The particular definition is brought
into effect on November 22nd, 2000 as –
“Silence zone is an area comprising not less
than 100 metres around hospitals,
educational institutions, courts, religious
places or any other areas which is declared
as such by the competent authority.”
The definition of ambient air quality standards and
restrictions in the use of the timing is also ensued in the
Schedule appended to the said Rules. Silence zone is
9 (J) Application No.53/2015(WZ)
basically an area comprising not less than 100 metres
around hospitals, educational institutions, courts or
other places which are declared as such by the competent
authority, including religious places. Thus, as per the
Rules, 100 metres minimum distance is the criteria which
is set out to determine Silence zone from the religious
place, institutional areas of education, courts and other
places which are declared as such by the competent
authority. Obviously, the Silence zone is not given any
restricted meaning under the Rules but it is a zoning
allowed to be carried out by the competent authority
irrespective of existence of location of a religious place,
educational institute, hospitals or courts. The above four
places are considered as the places from which Silence
zone is to be maintained under the Rules irrespective of
such declaration by the competent authority.
9. The map placed on record is an authenticated
Municipal Corporation map. The communication
accompanied by the map shows that the education
institute by name Nutan Vidyalaya is of 60 metres from
the Holiday Camp. It follows that the area of MTDC is
within the Silence zone and naturally it must fall within
domain of Noise Pollution (Regulation and Control) Rules,
2000 as stated above. The MTDC cannot disregard the
10 (J) Application No.53/2015(WZ)
Rules under the Schedule appended to the Noise Pollution
(Regulation and Control) Rules, 2000.
10. It is worthwhile to mention that in Application
No.34/2011 decided before the National Green Tribunal,
Principal Bench, New Delhi in the case of “Supreme Court
Group Housing Society and another Vs. All India
Panchayat Parishad and others”, the Principal Bench gave
certain directions as regards actions which are required
to be taken by the authorities. We do not wish to set out
those actions and borrow the same for the present
purpose. We only refer it to the present case in order to
demonstrate that the Principal Bench of National Green
Tribunal also in a similar case held that pollution being
wrongful contamination of the environment which causes
material injury to right of an individual, noise can well be
regarded as a pollutant when high decibels noise is
caused. The high decibels noise may have ill-effect on the
health of a person. It may also effects the passersby and
patients admitted in the hospitals. The intention of laws
related to pollution is to ensure abatement of pollution
not in respect of only air and water but of any kind of
pollution. The pollution is a generic term used under the
Environment (Protection) Act which is an umbrella Act.
The noise pollution, particularly stated, causes ill-effect
on the social life, peaceful and dignified life to which a
11 (J) Application No.53/2015(WZ)
person is entitled under the Article 21 of the Constitution.
Any such constitution right cannot be trampled by
extraneous forces including the noise pollution.
11. Now, it is not necessary to consider each and
every issue separately but we may make it very clear that
the agreement between MTDC and the licensee
(contractor) clearly shows that it was agreed between
them that the licensee will not use the Resort for any
other purposes than to make available accommodation to
the tourists. The terms of the agreement show that the
purpose of the contract is chiefly to provide food and
beverages in the Resort. The MTDC intended to provide a
comfortable stay and arrangement of catering of services
of like food, beverages to the occupiers of the rooms to
whom it was to be rented out by the contractor. The
MTDC received compensation for use of the premises. The
location of the MTDC is admittedly in the proximity of
Railway Station in order to facilitate use of the Resort to
the tourists who would arrive/travel by railways (train).
Thus, the MTDC aimed to provide the facility to the
tourists who could pay for the amenities available at the
Resort.
12. Terms of the agreement of license categorically
show that the licensee was not permitted to use the
premises for any other purposes like holding of
12 (J) Application No.53/2015(WZ)
conferences, meetings, functions at mutually agreeable
charges that too only after giving the licensee sufficient
advance notice in writing of the licensor’s intention of
such temporary use. Even for such purposes, the parties,
namely MTDC and the contractor agreed that the use by
the contractor which was to be permitted to the third
party, namely the occupier shall not exceed 15 days in
one year. By no stretch of imagination, this term under
the license/agreement did never allow use of the premises
for holding of functions like marriages, reception and
birthday parties or like parties which could generate noise
and affect its nearby areas. The relevant clause of the
agreement may be reproduced for ready reference:-
“(l) ……….. Provided that the Licensor shall
have the right to use the said Resort only for
short duration for purposes of holding
conferences, meetings, functions at mutually
agreeable charges and that too only after
giving to the Licensee sufficient advance
notice in writing to the Licensor’s intention of
such temporary use. Such use shall not
exceed 15 days in any one year.”
Needless to say, use of the premises/lawn of the MTDC
could not be leased-out/permitted to any third party by
the licensee for holding of marriage/reception/birthday
parties or light functions. The real dispute which was
raised by Respondent No.1 in paragraph No.10 of the
13 (J) Application No.53/2015(WZ)
written affidavit of Vaishali Chavan was that the use of
loudspeakers, firecrackers, music bands and DJ etc. was
not allowed to be used beyond permissible limit as to
when such functions were held. It is further stated that
the basic purpose of Respondent No.1 is to promote
tourism and Respondent No.1 always acted within the
framework of agreement dated May 9th, 2007. The show
cause notice was issued by Respondent No.1 (MTDC) to
Respondent No.2 regarding breaches of the terms of the
agreement but the same were duly replied on May 20th,
2015 and thereafter, the Respondent No.1 did receive a
satisfactory reply from Respondent No.2 and therefore, the
cause of action against Respondent No.1 does not arise.
13. The main contesting Respondent in this case is
Respondent No.2. He filed reply affidavit dated August
17th, 2015 alleging that the Applicant has made baseless
and vague allegations in the Application. He contended
that the Application is barred by limitation as the
Application is not filed within the prescribed period of
limitation and because of the fact that no other complaint
is received in the context of the alleged noise pollution.
Secondly, the contention of Respondent No.2 is that the
Applicant made false complaint against him to the Police
and Municipal Authorities which was found to be untrue.
14 (J) Application No.53/2015(WZ)
According to the Respondent No.2 it is specifically alleged
as below:-
“10. ……. as per the policy of M.T.D.C., it
can permit for providing the accommodation
of resort along with the permission to use the
premises for wedding under the head
“Wedding Tourism”. I say that, therefore, I
am using the premises of the respondent
No.1 strictly in accordance with the
provisions of law, rules and regulations and
terms of license. I say that, whenever under
the head wedding tourism, the tourist who
approached me I immediately get the form
filled in from all concerned tourists in which
there is clause by virtue of which the said
tourist is supposed to obtain all sorts of
permission including the permission for using
brass band, so also firing crackers, etc. and
after the said tourist obtains necessary
permission from the concerned police
authority for the purpose of brass band and
for firing crackers, then and then only I am
providing the premises of the respondent
No.1 to such tourists………..”
Not only he collectively attached copies of said
permissions (Exhibit R-1) along with the written affidavit,
he is candid enough in admitting that he allowed use of
the premises for the activities like marriages, receptions
including use of band etc. as to when Police permitted
use of DJ sets, bands and other instruments. Perusal of
15 (J) Application No.53/2015(WZ)
the copies of the Applications and permissions go to show
that so-called tourists were using the premises for more
than 15 days, though the activity of marriage may for
single day. The Police also granted permissions for use of
DJ sets/bands as per the norms as for the noise rules.
The Police however, allowed using of the equipments like
DJ sets and the loud speakers during permissible hours.
14. Coming to the role of Police authorities
(Respondent No.5), it is rather reprehensible to see as to
how response is given to a complaint made by common
person or even a person who may be influential. The
Applicant appears to have filed a complaint to the Police
on various occasions. For example, he filed a complaint
dated January 21st, 2014 in which he stated that there
was nuisance due to noise pollution and senior inmates
and residents of Pagaria colony made compliant like
himself. He forwarded that complaint to the Police,
Inspector Kranti Chowk, Police Station Aurangabad. The
said complaint dated January 22nd, 2014 was apparently
directed to be inquired by the D.C.P. Zone I and was
forwarded to the concerned Police Station and report of
the Police Inspector, Police Station Kranti Chowk was
directed to be submitted to the said office. What was the
inquiry held? The first report dated February 14th, 2014
shows that Police investigated the fact that the area falls
16 (J) Application No.53/2015(WZ)
within the Pagaria residential colony. This was never the
question which needed any investigation. The Police
made inquiry with 17 Applicants and about what kind of
questions were asked to them? These 17 Applicants were
asked by the Police of higher rank that at what time the
noise pollution causes nuisance and when they have
measured the sound decibels, by which instrument and
what was the nature of reading. The investigation could
not give any result on this aspect and it is obvious
because how anybody can expect a common person to
regularly keep a watch of such activities and will measure
the sound decibels. The Police informed that on February
20th, 2014 and prior to that there was no programme in
MTDC and therefore, sound decibels could not be
measured. However, sound decibels measured during the
certain period when the functions were organized appears
to have not been measured with the help of Pollution
Control Board, though the local Police station was
specifically directed to monitor the noise levels, as per the
permission given by the higher Police officials.
15. We are sorry to say that the complaints of
Applicant were mishandled by the Police authorities and
the Pollution Control Board also failed to duly exercise its
authority to examine the issue. Nay, Pollution Control
Board Officer (Respondent No. 3) did not even take care
17 (J) Application No.53/2015(WZ)
to see as to whether the MTDC was required to obtain
consent to establish STP and other facilities by taking
due permission of the Pollution Control Board. The
complaints were just forwarded to Municipal Corporation
and Police without any investigation. Perusal of Section
25 of the Water (Prevention and Control of Pollution) Act,
1974 clarifies the legal position. For clarification of the
understanding we may quote the provision itself:
“25. Restriction on new outlets and new discharges. – [(1) Subject to the provisions of
this section, no person shall, without the
previous consent of the State Board, -
(a) establish or take any steps to establish
any industry, operation or process, or any
treatment and disposal system or any
extension or addition thereto, which is likely
to discharge sewage or trade effluent into a
stream or well or sewer or on land (such
discharge being hereafter in this section
referred to as discharge of sewage); or
(b) bring into use any new or altered outlet
for the discharge of sewage; or
(c) begin to make any new discharge of
sewage:”
16. The mandate of the pollution law is therefore,
breached by the authorities as well as the licensee
(contractor). It is the stand of the licensee (contractor)
that under the terms of the contract he was entitled to
18 (J) Application No.53/2015(WZ)
allow the use of the premises by the tourists for wedding
parties. We are surprised and for the first time came
across the term “Wedding Tourism” as used in paragraph
No.10 of the written affidavit filed by Respondent No.2,
which is alien to the law of the terms of the agreement
between Respondent No.1 and 2. Though Respondent
No.2 claims that it is the policy of MTDC to promote such
“Wedding Tourism”, no such policy is placed on record.
17. Under these circumstances, there is no escape
from the conclusion that the lawn was being given for
illegal activities like wedding ceremonies/reception, etc.
and that the use of DJ sets/bands and loud speakers in
the area, obviously, gave rise to the noise which went
beyond the permissible limit. The Applicant himself had
purchased the equipment to measure the sound decibels
and used to make complaints on the basis of the sound
decibels which he had measured with the use of the
equipment. The Pollution Control Board did not take care
to verify his complaint nor the Police took any serious
view of the complaints and the Municipal Corporation
was a mute spectator of his complaint. The licensee
(contractor) assumes that whatever activities he was
doing were permissible under the terms of the agreement
and his stand was supported by Respondent No.1
(MTDC). Thus, the authorities themselves are active
19 (J) Application No.53/2015(WZ)
participants to the noise pollution in the area and are
also likely to cause further environmental degradation
and ought to be penalized on “Polluter Pay Principle”
basis because of the principle underlying in Section 20 of
the National Green Tribunal Act, 2010 which also
envisages “precautionary principle”. We must give
direction that henceforth MTDC not only at Aurangabad
but elsewhere will stop such illegal activities and
particularly so-called “Wedding Tourism” which concept
is likely to be rather radically imbibed by other
institutions. Though, the Respondent No.2 is at fault yet
we do not fully blame Respondent No.2 because he was
given understanding that whatever he was doing was
under the terms of the agreement and therefore, his
contribution to the penalty for remedial purpose would be
the same as like that of the authorities.
18. From total of the aforesaid discussion, the
Application deserves to be allowed and is accordingly
allowed. We direct as follows:-
(i) The Respondents shall cumulatively deposit an
amount of Rs.5,00,000/- (Rupees Five Lakhs
only) in the account of the Collector,
Aurangabad in two equal installments, which
shall be paid within 04 (four) months. They
20 (J) Application No.53/2015(WZ)
shall also pay an amount of Rs.5000/- each to
the Applicant towards cost of the litigation.
(ii) The amount deposited with the Collector,
Aurangabad shall be utilized for improvement of
the environment such as awareness about noise
pollution, particularly in schools, gardening, if
appropriate land is available or in the forest
land, if the Forest Officer is so agreeable, as per
Rule 36 read with 37 of the National Green
Tribunal (Practices and Procedure) Rules, 2011.
….…………….………………., JM (Justice V. R. Kingaonkar)
…...….…….…………………….,EM (Dr. Ajay.A. Deshpande) PUNE Date : 9th December, 2015. mk
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