HIGH COURT OF KERALA.
Justice Rajendra Babu and Justice C.N.Ramachandran Nair
Ahmed Koya vs Rajan.
Reported in 2002 (2) KLT 335 : ILR 2003 (3) Ker 425.
1. The Review Petitioners in all these cases were not parties in the common judgment in W.A No. 3125 of 2001 and O.P. No. 18197 of 2001 sought to be reviewed by them. They have filed petitions for leave to file Review Petitions, and the same were allowed by us. We have heard counsel for the review petitions and also counsel for the respondents, including the Government Pleader.
2. The petitioners are said to be engaged in the business of professional advertisement through loudspeakers. According to them, ever since the judgment in the Writ Appeal and the connected O.P., referred to above, by this Court, and a subsequent clarification in CMP No. 55608 of 2001 dated 13.11.2001, the police authorities are not permitting them to operate loud speakers for advertisement and commercial use because among other things in the impugned judgment this Court held that pending implementation of the Noise Pollution (Regulation and Control) Rules, 2000, hereinafter called the Rules, whereunder the State Government has to identify various zones in terms of R.3, the directions of the Deputy Inspector General of Police vide letter No. B1/8670/2000 / TR dated 22.7.2000 should be followed. The following are the directions issued by the Deputy Inspector General of Police pursuant to the judgment of this Court in O.P. Nos. 11016 and 26161 of 1998:
1.Public address system and loudspeakers should not be used at night between 9 P.M. to 6 A.M. except in closed.
2. Loudspeakers should be directed at the audience and not away from the audience.
3. Loudspeakers should not be allowed for advertisement and commercial activities.
4. The permitted strength of the power of the amplifier should be just adequate to cover the audience.
It appears from among the restrictions imposed, the petitioners are aggrieved by the third restriction, which prohibits use of loudspeakers for advertisement and commercial activities. Since the impugned judgment, the police authorities do not grant any permission to the petitioners to operate loudspeakers for advertisement and other commercial purposes.
3. The petitioners have produced common judgment of this Court in O.P. Nos. 19310 and 17851 of 2001 dated 3.7.2001 and the judgment in O.P. No. 23802 of 2001 dated 13.8.2001 whereunder this Court had directed the police authorities to consider the petitioners application for permission to use loudspeakers for advertisement and commercial purposes. In fact the latter judgment is issued following the former judgment. We have gone through the judgments and we find that all what this Court has directed is that the petitioners application for use of loudspeakers for advertisement and commercial purposes has to be considered by the concerned authorities in the light of the Rules. However, this Court never had occasion to consider whether the use of loudspeakers for commercial and advertisement purposes is consistent with the very object of prevention of noise pollution sought to be achieved under the Rules. In fact the judgment in W.A. No. 3125 of 2001 is against the judgment in O.P. No. 20982 of 2001 of the learned Single Judge of this Court wherein the learned Single Judge held that the directions of the Deputy Inspector General of Police including prohibition against use of loudspeakers for commercial and advertisement purposes, did not militate against the Rules. In other words, the prohibition issued by the Deputy Inspector General of Police only advances the object of controlling noise pollution by preventing the use of loudspeakers for commercial and advertisement purposes.However, while deciding the Writ Appeal and the connected O.P. this Court did not grant permission to the petitioners to operate loudspeakers for commercial and advertisement purposes by reversing the order of the Deputy Inspector General of Police, because it was felt that prima facie the restrictions imposed in the said order were consistent with the Rules. In any case, if at all the use of loudspeakers for commercial and advertisement purposes is to be permitted, the same cannot be done before the Government prescribes zones in terms of R.3 of the Rules. This Court way back on 5th November, 1992 in O.P. No. 9560 of 1988 held that the use of loudspeakers in street and vehicles must be avoided as far as possible, as this is the main source of sound pollution. It was further held that without prior permission, nobody should be permitted to use loudspeakers. It goes without saying that the use of loudspeakers for commercial and advertisement purpose especially in public gatherings to reach the maximum people defeats the very object of Noise Pollution Control Rules. Therefore we feel there is a self contradiction in the use of loudspeaker for advertisement and commercial purposes and control of noise pollution. The petitioners contend that the advertisement through loudspeaker is their profession and if the same is prohibited, they will be without any source of livelihood. We are unable to help the petitioners in this regard because if use of loudspeaker is permitted such as for advertisement then the noise pollution cannot be controlled and the object of the rules will be defeated. In any case, in the impugned judgment we have stated that the Government has to prescribe the zones in terms of R.3(2) of the Rules categorising the areas into industrial, commercial, residential or silence areas / zones for the purpose of implementation of noise standards for different areas. Counsel for the Pollution Control Board pointed out that the maximum noise permitted in all areas as contained in the schedule to the rules in terms of R.3(1) is in such a way that the use of loudspeakers for commercial and advertisement purposes virtually stands prohibited. On the other hand, counsel for the petitioners have pointed out that R.5 gives power to the Government to grant permission for use of public address system. They say that the only restriction is the one contained in R.5(2) of the rules. According to them, the prohibition for use of loudspeakers is between 10 P.M. to 6 A.M. and they are free to use the loudspeakers at other times. We are unable to agree with this contention. As contended by the respondents, if the use of loudspeaker for commercial and advertisement purposes produces sound over the levels prescribed under the schedule under R.3(1) and 4(1) then of course the petitioners are not entitled to any such permission for use of loudspeakers for commercial and advertisement purposes. In fact under R.3(3) there is a mandate on the State Government to take measures for abatement of noise including noise emanating from vehicular movements and ensure that the existing noise levels do not exceed the ambient air quality standards specified under the Rules. Further R.4(1) states that the noise levels in any area / zone shall not exceed the ambient air quality standards in respect of noise as specified in the schedule. The object of the rules appear to be strict control of noise levels and therefore the use of loudspeaker is not a rule but an exception. In other words, loudspeaker or public address system should not be generally used and used only as an exception, and the same should be permitted only in extreme cases of necessity. Of course a total prohibition is not visualised. We do not think that we should preemptly decide the circumstances and the purposes for which loudspeaker or public address system may be permitted and the conditions on which the same should be permitted. In any case the basic condition is categorisation of zones / areas in terms of R.3 by the Government. The petitioners contend that inspite of the impugned judgment dated 4.10.2001 by which six months time is granted to the Government, the Government has not done anything in respect of zoning of the area and the delay is causing great hardship to them, because they are not able to carry on their business. In view of the employeess strike the Government is not able to inform us as to the steps taken by them in the matter. Since Government has not come with the petition to extend time for compliance with the judgment, we do not propose to comment about this.However, we do not find any justification for granting permission to the petitioners to use loudspeakers for commercial and advertisement purposes, pending decision by the Government on the implementation of the Rules. However, we leave it open to the Government to decide the exceptional cases, if any for granting permission to use loudspeakers, and subject to the terms they may fix. We see no reason to interfere with the impugned judgment. Hence review petitions are dismissed.