Farhd K. Wadia Vs.
Union of India & Ors.  INSC 2096 (5 December 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7131 OF 2008 [Arising
out of SLP (Civil) No. 22939 of 2004] Farhd K. Wadia ...Appellant Versus Union
of India & Ors. ...Respondents
S.B. SINHA, J :
musical functions in an open theatre being Rang Bhavan should be allowed to be
carried on or not despite the fact that it is situate within 100 meters of an
educational institution and a hospital, is the question involved in this appeal
which arises out of a judgment and order 2 dated 16.08.2004 passed by a
Division Bench of the Bombay High Court in Writ Petition No. 2257 of 2004.
basic fact of the matter is not in dispute.
Rang Bhavan is an
institution owned and run by the State of Maharashtra. It is the only open
theatre in the city of Mumbai. It is let out on hire for the purpose of holding
music and cultural programmes. It charges a meagre amount for allowing private
parties to hold functions. It has a sitting capacity of 4000 persons. It is
stated that the world's greatest artists, both Western and Indian, have
Dr. Yeshwant Trimbak
Oke & Ors. filed a public interest litigation for a direction to the State
to curb noise pollution in general in the city of Mumbai and particularly
during the festive season of Navratri and Ganesh Utsav.
or about 25.09.2003, an order was passed by a Division Bench of the Bombay High
3 "(1) pending
hearing and final disposal of this petition, i.e., Writ Petition No. 2053 of
2003, no loudspeaker permission be granted in respect of "Silence
Zone" as defined and discussed in the Noise Pollution (Regulation &
Control) Rules, 2000, as amended from time to time.
(2) Pending hearing
and final disposal of the petition, the respondents are directed to issue
loudspeaker permission verifying and certifying before granting permission that
the loudspeaker will not be used in a designated Silence Zone.
(3) The authorities
will also ensure implementation and observance of the conditions mentioned in
(4) It is also
clarified that in case the petitioners point out that there is violation at any
place, the authorities will take appropriate action in accordance with
review application was filed thereagainst by the State of Maharashtra. The
submission made by the learned Advocate General for the State therein as
recorded by the High Court in its order dated 19.12.2003 is as under:
"4. The learned
Advocate General submitted that reading Noise Pollution (Regulation and
Control) Rules, 2000 (hereinafter referred to as "the Rules") with
the Schedule thereto, it is clear 4 that the silence zone which has been
defined in Note to the Schedule would not include hospitals, educational
institutions, Courts, religious places or any other area which is declared as
such by the Competent Authority, but the prohibition under Rule 6 would apply
to the areas comprising not less than 100 metres around such
On the said review
petition, it was held:
"7. So far as
first point is concerned, in our opinion, direction issued by us on September
25, 2003 is clear. Prima facie, it appears to us that the provisions of the
Rules would apply to "an area comprising not less than hundred metres
educational institutions, Courts, religious places or any other area which is
declared as such by the competent authority. In our view, this would be in
consonance with the phraseology used in clause (i) of Rule 6 which totally
prohibits playing of "any music" or using of "any sound
amplifiers". Had it been the intention of the Rule making authority, it
would not have used the expression "an area comprising not less than 100
metres around hospitals, educational institutions, Court, religious places,
etc. Moreover, such interpretation would also permit activities within those
institutions in accordance with law.
8. At the same time,
however, the apprehension voiced by the learned Counsel for the Petitioners has
also been taken care of. It cannot be considered that with regard to such
organizations, institutions, etc. there is neither any 5 standard nor limit
whatsoever. In respect of such institutions also, the general provisions laid
down in Rule 5 which place restriction on the use of loud speaker/ public
address system would apply."
the said order was operating, the appellant made an application to book Rang
Bhavan from 13th to 15th August, 2004 in regard to performance of Western
Cultural Music. The said application was rejected by the State by an order
dated 02.06.2004, stating:
"By the order of
the Hon'ble High Court, Mumbai, dated 25/09/2003 under the Noise Pollution
(Control & Regulation) Rules 2000, the use of loudspeakers in a silence
zone has been banned.
Also the Senior
Inspector of Police, Azad Maidan Police Station, Mumbai has in accordance with
the direction of the Hon'ble High Court, informed in writing that the use of
loudspeakers during cultural programmes at Rangbhavan will not be permitted.
above-mentioned reasons, your request vide your letter dated 01/05/2004 to book
Rang Bhavan for 3 days, i.e., on the 13th, 14th and 15th of August, 2004 is
Directorate of Cultural Affairs in a letter dated 09.07.2004 addressed to the
Secretary, Power Productions, also stated:
"You are hereby
informed that, in accordance with the Hon'ble High Court's order no. 2503 dated
25/09/2003, Rangbhavan, Dhobi Talao, Mumbai, the open air theatre comes under
the silence zone and hence the use of loudspeakers has been banned. For the
above-mentioned reasons, your request cannot be considered."
that the said Rang Bhavan had been lying closed for the past few years and the
directions issued by the High Court are not in consonance with the rules
governing noise pollution framed by the State of Maharashtra, a writ petition
was filed by the appellant herein. It was furthermore pointed out that some
educational institutions and hospitals have also been using loud speakers.
In the said writ
petition, the following prayers were made:
"(a) that this
Hon'ble Court be pleased to issue a writ of certiorari or any other appropriate
writ, order or direction in the nature of certiorari calling for the records
and proceedings relating to the obtaining of permission to host the
Independence Rock Concert in the Rang Bhavan from Respondent Nos. 2 and 3 and
after satisfying itself 7 of the legality of the same to quash and set aside
the impugned order dated 09.07.2004...;
(b) that this Hon'ble
Court be pleased to issue a writ of prohibition or a writ in the nature of
prohibition or any other appropriate writ, order or direction restraining the
Respondents, their agents, servants and employees from acting in any manner in
furtherance of the impugned order dated 09.07.2004...;
(c) that this Hon'ble
Court be pleased to issue a writ of mandamus or a writ in the nature of
mandamus or any other appropriate writ, direction or order compelling the
Respondents to issue appropriate orders exempting Rang Bhavan from falling
within the silence zone and further directing the Respondents to permit Rang
Bhavan to stage concerts and other cultural and musical functions on its
(d) that this Hon'ble
Court be pleased to issue a writ of mandamus or a writ in the nature of
mandamus or any other appropriate, writ, direction or order directing the
Respondents to permit the Petitioner to hold the Independence Rock Festival on
its premises on such suitable dates between 6 p.m. to 9 p.m. subject of course
to the availability of such premises on such suitable dates;
(e) that this Hon'ble
Court be pleased to declare that Rang Bhavan does not fall within the silence
zone so as to be precluded from utilization of loudspeakers in hosting cultural
and musical events."
noticed hereinbefore, the said writ petition has been dismissed.
S. Ganesh, learned senior counsel appearing on behalf of the appellant, drawing
our attention to the relevant rules, would contend that as no silence zone has
been notified in terms of the statutory rules, the High Court committed a
serious error in passing the impugned judgment.
It was urged that, in
any event, an exemption should be granted in respect of Rang Bhavan having
regard to the fact that it is not possible to hold a musical event at any other
place in the city of Mumbai at such cheap rates.
The State of
Maharashtra, the learned Senior Counsel pointed out, has also been supporting
the cause of the appellant.
R.G. Padia, learned Senior Counsel appearing on behalf of the Union of India,
on the other hand, submitted that the cause of action for 9 which the
appellant filed the writ petition being rejection of one-time request, the writ
petition became infructuous.
Our attention has
furthermore been drawn to various orders and judgments passed by this Court in
regard to control and regulation of noise pollution to contend that as the
validity of the rules framed by the Central Government has been upheld by this
Court, no interference with the impugned judgment is called for.
is the Chief Executive Officer of `Power Productions', a leading Audio Studio
in Mumbai. He does soundtracks for movies, ad films, etc. He is said to be a
concert promoter in India for over 18 years. He in the said writ petition
questioned the validity of the order dated 09.07.2004 passed by the
Dr. Yeshwant Trimbak
Oke & Ors., who had filed the public interest litigation being Writ
Petition (PIL) No. 2053 of 2003, were not impleaded as parties in the
proceedings. An application for modification of the order passed therein had
also not been filed in the second public interest litigation.
the public interest litigation was filed by Dr. Yeshwant Trimbak Oke & Ors.
contending that noise pollution created by reason of use of loudspeakers be
curbed in the areas which have been and should be declared as silence zone, the
purported public interest litigation was filed by the appellant herein to seek
an exception therefor.
High Court in the earlier public interest litigation, being Writ Petition No.
2053 of 2003, admittedly passed an order of injunction. If the said order was
required to be modified or clarified and/or relaxation was to be prayed for and
granted in regard to Rang Bhavan, the appellant should have filed an
application in the said proceeding. An independent public interest litigation
to obtain a relief which would be contrary to and inconsistent with the order
of injunction passed by the court was not maintainable. Inter alia, the
doctrine of comity or amity demands the same.
was not that the appellant was not aware of the said order. As indicated
hereinbefore, the premise on which the appellant's application 11 was rejected
was the said order dated 25.09.2003 passed in the said Writ Petition No. 2053
The State of
Maharashtra felt itself and in fact was bound by the order dated 25.09.2003 and
as such filed an application for modification in the said Writ Petition No.
2053 of 2003, which, as noticed hereinbefore, was not allowed.
We fail to understand
as to on what premise the writ petition could have been entertained by the High
Court. We are constrained to opine that the writ petition was filed to achieve
a purpose indirectly which could not be achieved directly. The High Court,
therefore, cannot be said to have committed any error in passing the impugned
Noise Pollution (Regulation and Control) Rules, 2000 (for short "the
Rules") have been framed by the Central Government in exercise of its
power conferred by clause (ii) of sub-section (2) of Section 3, sub-section (1)
and clause (b) of sub-section (2) of Section 6 and Section 25 of the 12
Environment (Protection) Act, 1986 read with Rule 5 of the Environment (Protection)
has been defined to mean all areas which fall in either of the four categories
given in the Schedule annexed to the Rules.
institution" and "hospital" have been defined in Rules 2 (e) and
2(f) of the Rules in the following terms:
"educational institution" means a school, seminary, college,
university, professional academies, training institutes or other educational
establishment, not necessarily a chartered institution and includes not only
buildings, but also all grounds necessary for the accomplishment of the full
scope of educational instruction, including those things essential to mental,
moral and physical development;
means an institution for the reception and care of sick, wounded, infirm or
aged persons, and includes government or private hospitals, nursing homes and
Sub-rule (5) of Rule
3 of the Rules reads as under:
"(5) An area
comprising not less than 100 meters around hospitals, educational institutions
and 13 courts may be declared as silence area/zone for the purpose of these
Rule 5 of the Rules
reads as under:
on the use of loudspeakers/public address system.--(1) A loudspeaker or a
public address system shall not be used except after obtaining written
permission from the authority.
(2) A loudspeaker or
a public address system shall not be used at night (between 10.00 p.m. to 6.00
a.m.) except in closed premises for communication within, e.g. auditoria,
conference rooms, community halls and banquet halls.
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
loudspeakers or public address systems during night hours (between 10.00 p.m.
to 12.00 midnight) on or during any cultural or religious festive occasion of a
limited duration not exceeding fifteen days in all during a calendar
Ambient air quality
standards in respect of noise for silence zone have been prescribed in the
Schedule. Note 3 appended thereto, however, reads as under:
"3. Silence Zone
is an area comprising not less than 100 metres around hospitals, educational
14 institutions, courts, religious places or any other area which is declared
as such by the competent authority."
that the State Government has not declared the said zone as a silence zone, in
our opinion, is besides the point. The High Court, while passing its interim
order dated 25.09.2003, did not state that silence zone was required to be
declared, but passed the order of restraint in respect of silence zone, as
`defined and discussed in the Rules'. The parties thereto and particularly the
State of Maharashtra understood the said order in that light.
by the court in respect of noise pollution is premised on the basis that a
citizen has certain rights being `necessity of silence', `necessity of sleep',
`process during sleep' and `rest', which are biological necessities and
essential for health. Silence is considered to be golden. It is considered to
be one of the human rights as noise is injurious to human 15 health which is
required to be preserved at any cost. [See Noise Pollution, Laws & Remedies
by Justice Bhagabati Prosad Banerjee]
Calcutta High Court in several judgments and in particular in Om Birangana
Religious Society v. State of West Bengal [decided on 11th August, 1998] issued
various directions; some of them being:
"(a) there will
be complete ban on the use of horn type loud-speakers within city residential
areas and also prohibit the use of play back of pre- recorded music etc.
through such horn type loud- speakers unless used with sound-limiter.
(b) In cultural
functions which are live functions, use of such pre-recorded music should not
be used excepting for the purpose of announcement and/ or actual performance
and placement of speaker boxes should be restricted within the area of
performance facing the audience. No sound generating devise should be placed
outside the main area of performance.
programmes in open air may be held excepting at least before three days of
holding Board/ Council Examinations to till examinations are completed in
residential areas or areas where educational institutions are situated.
(d) The distance of
holding such functions from the silence zones should be 100 meters and in so
far as Schools, Colleges, Universities, Courts are 16 concerned, it will be
treated as silence zones till the end of the office hours and/ or the teaching
hours. Hospitals and some renowned and important Nursing Homes will be treated
as silence zones round the clock."
[See Noise Pollution,
Laws & Remedies by Justice Bhagabati Prosad Banerjee, pages 327-328]
Court has also taken suo motu cognizance as regards noise pollution. It passed
various orders from time to time in Noise Pollution, In Re. v. Union of India
and Another, which are reported in [(2005) 5 SCC 727], [(2005) 5 SCC 728],
[(2005) 5 SCC 730] and [(2005) 5 SCC 731].
detailed judgment was rendered by a Division Bench of this Court in the said
writ petition, which has since been reported in [(2005) 5 SCC 733]. Several
guidelines had been issued therein by this Court in exercise of its jurisdiction
under Articles 141 and 142 of the Constitution of India.
Therein, the decision
of the Calcutta High Court in Om Birangana Religious Society v. State of West
Bengal [(1996) 100 CWN 617] has been taken note of.
17 As regards
loudspeakers and amplifiers, it was directed:
Loudspeakers and amplifiers or other equipment or gadgets which produce
offending noise once detected as violating the law, should be liable to be
seized and confiscated by making provision in the law in that behalf."
matter again came up before this Court and an order passed therein has been
reported in [(2005) 8 SCC 796]. The validity of the statutory rules framed by
the Central Government and in particular Rule 5 amended by notification bearing
No. S.O. 1088 (E) dated 11.10.2002 was taken note of. The decision rendered by
this Court reported in [(2005) 5 SCC 733] was clarified. This Court noticed
that the constitutional validity of sub-rule (3) of Rule 5 of the Rules had
been upheld by the Kerala High Court by an order dated 14.03.2003 whereagainst
an appeal was filed. The hearing of the civil appeal was, therefore, directed
to be re-opened. An interim order was passed that until further orders, Rule 5
of the Rules, as reproduced therein, would continue to remain in operation. The
said appeal was thereafter taken up for hearing by a Bench of this Court. It
was disposed of on 28.10.2005. This Court held that the Rules framed by the
Central Government were not unreasonable, stating:
power to grant exemption is conferred on the State Government. It cannot be
further delegated. The power shall be exercised by reference to the State as a
unit and not by reference to districts, so as to specify different dates for
different districts. It can be reasonably expected that the State Government
would exercise the power with due care and caution and in the public interest.
However, we make it clear that the scope of the exemption cannot be widened
either by increasing the number of days or by increasing the duration beyond two
hours. If that is attempted to be done, then the said sub-rule (3) conferring
power to grant exemption may be liable to be struck down as violative of
Articles 14 and 21 of the Constitution. We also make it clear that the State
Government should generally specify in advance, the number and particulars of
the days on which such exemption will be operative. Such specification would
exclude arbitrariness in the exercise of power. The exemption, when granted,
shall not apply to silence zone areas. This is only as a clarification as, this
even otherwise is the position of law.
State Government is bound also by the order of this Court besides the order
passed by the High Court. If any order of relaxation and/ or modification is
required to be passed, it is only to be passed by this Court 19 and the Bombay
High Court in the aforementioned two writ petitions. A separate writ petition,
in our opinion, thus, was not maintainable.
the reasons aforementioned, there is no merit in this appeal. It is dismissed
accordingly. In the facts and circumstances of the case, however, there shall
be no order as to costs.