K.N.Neelakantan Namboodiri vs State of Kerala.
Reported in ILR 2004 (1) Kerala 634 = [2004]15 ILD 346
Justice A.K.Basheer (J)] Affirmed in Division Bench.
JUDGMENT
A.K. Basheer, J.
1. These three Original Petitions raise an interesting common question. Therefore they are being disposed of through this common judgment.
2. Are the Police Officials justified in initiating prosecution against stage carriage operators for using air horn? This is the issue involved in these cases.
3. Petitioners are stage carriage operators, their Association and some of the drivers working in stage carriages.
4. Relevant facts may be briefly noticed: The transport vehicles which are being used by the stage carriage operators are fitted with "air brake system". The operation of the system is as follows: Whenever the engine is started, the compressed air generated by the engine gets collected in chambers called 'service reservoirs' through an air intake valve. These reservoirs are connected to the wheel drums through pipes. When the brake pedal is operated, compressed air is released through these pipes to the wheel drums. Constant air pressure has to be maintained at all times in the service reservoirs. Air cannot be allowed to bleed from the pipes which may result in automatic operation of the brake system. In order to avoid this, an outlet has been provided through a service circuit which is connected to the combination switch on the steering wheel assembly. This service circuit is used to operate air horn system. It is contended by the petitioners that this air horn system is an unavoidable part and parcel of the air brake system which is fitted with all the heavy transport vehicles that are being manufactured by M/s. Leyland Limited or M/s. Telco.
5. In other words, the contention is that air horns which are being used by the vehicles is not an extra or additional device used by the vehicle owners. It is an integral part of the air brake system which is considered to be the most efficient. It is, further pointed out that the air horns which are fitted to transport vehicles are invariably those manufactured by reputed concerns such as ELGI and ROOTS. They conform to ISI standards. Any failure or leakage in the system results in bleeding of air which automatically operates the spring brakes, thus immobilising the vehicle. In short, the thrust of the argument is that the dual line brake system used in these vehicles carries with it the air horn system. Therefore its use in the vehicle cannot be prohibited.
6. Petitioners submit that the Police officials have been registering cases against stage carriages for using air horns. Officials insist for removal of the air horns. Drivers are served with Motor Vehicle Check Report/Notice to appear before the local Magistrate's Court. In some of these notices the provision of law which are allegedly violated are not even mentioned.
7. Petitioners have filed these Original Petitions challenging the prosecution notices issued by the Police Officers for using air horns in the vehicles. One such notice issued by the Police Officer who intercepted one of the vehicles has been placed on record as Ext.P3 in O.P. No. 233.5/99. The notice is under the caption "M.V. Check Report & Notice". The offence noted is: "used air horns".
8. It is contended by learned counsel for the petitioners that the officials have been intercepting all the vehicles which are using air horns and they are being prosecuted. The prosecution initiated by the officials is totally illegal and unsustainable. It is not authorised under the Motor Vehicles Act and Rules or any other law. It infringes the rights of the stage carriage operators guaranteed under Articles 14, 19(1)(g) and 21 of the Constitution. It is also violative of the rights guaranteed to citizens under Article 300A of the Constitution. Petitioners or their employees cannot be prosecuted under any of the provisions of the Motor Vehicles Act or the Indian Penal Code. It is clearly an abuse of power and is totally ultra vires Section 208 of the Motor Vehicles Act.
9. In view of the contentions raised above, it is necessary to refer to the relevant statutory provisions. Rule 119 of the Central Motor Vehicles Rules deals with horns:
Reduction of noise
"119. Horns:-
(1) On and after expiry of one year from the date of commencement of the Central Motor Vehicles (Amendment) Rules, 1999, every motor vehicle manufactured shall be fitted with an electric horn or other devices conforming to the requirements of IS:1884-1992, specified by the Bureau of Indian Standards for use by the driver of the vehicle and capable of giving audible and sufficient warning of the approach or position of the vehicle.
(2) No motor vehicle shall be fitted with any multi toned horn giving a succession of different notes or with any other sound producing device giving an unduly harsh, shrill, loud or alarming noise.
(3) Nothing contained in Sub-rule (2) shall prevent the use on vehicles used as ambulance or for fire-fighting or salvage purposes or on vehicles used by police officers or officers of Motor Vehicles Department in the course of their duties or on construction equipment vehicle of such sound signals as may be approved by the registering authority in whose jurisdiction such vehicles are kept."
Rule 119 provides that every motor vehicle shall be fitted with an electric horn or other device conforming to the requirements specified by the Bureau of Indian Standards. The above rule prohibits multi toned horn which gives a succession of different notes or any other sound producing device giving an unduly harsh, shrill, loud alarming noise. However, ambulances, fire fighting vehicles etc. are permitted to use sound signals that are approved by the registering authority.
10. Petitioners contend that Rule 19 does not prohibit use of air horns. The interdiction or prohibition is only against use of multi toned horn. It is therefore urged that no action can be taken against the owners/drivers of vehicles who use air horns in their vehicles. This contention is wholly unsustainable.
11. It is true that there is no specific reference to air horn in the Rules and its use is not prohibited either under the Act or the Rules. But Rule 119 stipulates that every motor vehicle shall be fitted with an electric horn or other device for use by the driver of the vehicle and capable of giving audible and sufficient warning of the approach or position of the vehicle. Sub-rule (2) further mandates that no motor vehicle shall be fitted with any multi toned horns giving a succession of different notes or with any other sound producing device giving an unduly harsh, shrill, loud or alarming noise. This sub-rule makes it abundantly clear that any sound producing device which generates or lets out an unduly harsh, shrill, loud or alarming noise cannot be used in a vehicle.
12. Environmental pollution is undoubtedly one of the biggest and most menacing hazards to human existence. In this country the problem has been more acute during the last few years because of rapid industrialisation, population gro wth, urbanisationetc. etc. After the Stockholm Conference in 1972, detailed plans were chalked out to tackle the problems of water pollution, air pollution and noise pollution which were identified as the three most important branches of environmental pollution. Thus "The Water (Prevention and Control of Pollution) Act, 1974", "The Air (Prevention and Control of Pollution) Act, 1981" and "The Environment (Protection) Act, 1986" were enacted by the Central Government.
13. Section 2 of the Environment (Protection) Act, 1986 (the Act of 1986 for short), defines "environment" as under:
"2(a). "environment" includes water, air and land and the inter-relationship which exists among and between water, air and land and property".
14. Section 3 of the Act empowers the Central Government to take necessary measures to protect and improve the quality of the environment and also to prevent, control and abate environmental pollution. While Section 5 gives power to the Central Government to issue directions to any person, officer or authority in the exercise of its powers and performance of its functions under the Act, Section 6 provides that the Government may make rules to regulate environmental pollution.
15. Section 6(1) and 2(b) may be noticed:
"6. Rules to regulate environmental pollution:-
(1) The Central Government may, by notification in the Official Gazette, make rules in respect of all or any of the matters referred to in Section 3.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:
(a)..........
(b) the maximum allowable limits of concentration of various environmental pollutants (including noise) for different areas;
.........
........."
16. It is an accepted fact that ambient noise levels in public places have been on the increase. Sources and reasons for such sporadic increase are many and variegated. It was noticed by the Central Government that "industrial activity, construction activity, generator sets, loud speakers, public address systems, music systems, vehicular horns and other mechanical devices have deleterious effects on human health and the psychological well being of the people". It was also found that necessary steps have to be taken "to regulate and control noise producing and generating sources with the objective of maintaining the ambient air quality standards in respect of noise." Thus the Noise Pollution (Regulation and Control) Rules, 2000 (for short, the Rules, 2000) were framed by the Central Government in exercise of the powers conferred by Clause (ii) of Sub-section (2) of Section 3, Sub-section (1) and Clause (b) of Sub-section (2) of Section 6 andSection 25 of the Environment (Protection) Act, 1986 read with Rule 5 of the Environment (Protection) Rules, 1986.
17. Ambient air quality standards in respect of noise for different areas/zones are specified in the schedule annexed to the above Rules. Rule 3 which deals with ambient air quality standards reads as follows:
"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 may categorise the areas into industrial, commercial, residential or silence areas/zones for the purpose of implementation of noise standards for different areas.
(3) The State Government shall 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 these rules.
(4) All development authorities, local bodies and other concerned authorities while planning development activity or carrying out functions relating to town and 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 hospitals, educational institutions and courts may be declared as silence area/zone for the purpose of these rules."
Sub-rule (3) of Rule 3 mandates that the Government shall 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. Sub-rule (4) also obligates all development authorities, local bodies etc. to consider all aspects of noise pollution as a parameter of quality of life to avoid noise menace.
18. Rule 4 provides that the nose levels in any area/zone shall not exceed the ambient air quality standards in respect of noise as specified in the Schedule. Sub-rule (2) of Rule 4 further provides that it is the responsibility of the authority, which includes the District Magistrate, Police Commissioner or any other officer designated by the State Government to enforce noise pollution control measures and due compliance of the ambient quality standards in respect of noise.
19. Restrictions on the use of loud speakers/public address system are provided under Rule 5. Consequence of any violation in silence zone/area is stipulated in Rule 6. Similarly, Rule 8 empowers the authority to prohibit or prevent annoyance, disturbance etc. to the public that may be caused through sounds caused by playing, clashing, blowing or use of any instrument including loudspeakers, public address systems etc. The Schedule which is referred to in Rules 3 and 4 is extracted hereunder:
SCHEDULE (See Rules 3(1) and 4(1)) Ambient Air Quality Standards in respect of Noise Area Code Category of Area/Zone Limits in dB(A) Leq Day time Night time (A) Industrial Area (B) Commercial Area (C) Residential Area (D) Silence Zone
20. Reference to the above Rules has been made in extenso to stress the fact that law making authority has framed rules to maintain ambient air quality standards in respect of noise on the roads and public places.
21. In this context it is pertinent to note that Rule 120(2) of the Central Motor Vehicles Rules, 1989 also fixes noise standards for all vehicles including two wheelers, cars, commercial vehicles etc. The table in Rule 120 is extracted hereunder:
Category of Vehicles Maximum Permissible Noise Levels Two-wheelers (Petrol driven) ----------80dB(A)
All passenger cars, all petrol driven three wheelers and diesel-driven two-wheelers 82dB(A) Passenger or Light Commercial Vehicles including three-wheeled vehicles fitted with diesel engine with gross vehicles weight up to 4000 Kgs.------------85dB(A)
Passenger or Commercial vehicles with gross vehicle weight above 4000 Kgs. and upto 12000 Kgs. --------------89dB(A)
Passenger or Commercial vehicles gross vehicle weight above 12000 Kgs.----------------91dB(A)
22. Rule 120(2) specifies the maximum permissible noise level for different category of vehicles. The noise levels range between 80 and 91 dB(A). Thus, it is clear that maximum permissible noise levels in different areas/zones have been fixed under "the Rules, 2000". Similarly, the vehicles cannot exceed the limits of noise level fixed under the Motor Vehicles Rules, 1989. Therefore, the contention of the petitioners that Police/Transport authorities are not entitled or empowered to take action against use of air horns is wholly untenable.
23. As noticed earlier, ambient air quality standards in respect of noise for different areas/zones have been specified in the schedule annexed to Rule 3 of the Rules, 2000. In the silence zone the maximum limit is 50 dB(A) during day time. For the industrial area it is 75 dB(A) and for the commercial area it is 65 dB(A). Rule 4 mandates that it is the responsibility of the authority including Police or any other officers authorised by the State Government for the purpose, to enforce noise pollution control measures. It is the duty of the State Government and the machinery thereunder to maintain ambient air quality standards in different areas. The Rules admit of no ambiguity. Rr.4 and 8 specifically stipulate the responsibility and power of the authorities concerned in this regard.
24. Learned counsel for the petitioners fairly conceded that the air horns may produce a decibel sound in excess of 100 which is well above the permissible limit. However, Mr. Anil Sivaraman, learned counsel for the petitioners submits that the Motor Vehicles Act and the Rules do not prohibit use of air horns in the stage carriages. Hence the action of the Police/Transport Offices cannot be countenanced. I do not agree. There is no merit in the contention of the petitioners that however shrill, harsh, loud or alarming the noise may be, the transport vehicles cannot be prevented from using air horns.
25. There is no denial of the fact that noise pollution, like any other, is a menace to the society. It ravages the peace and tranquility in the environment. It harms the mental and physical health of the people. Small children who are subjected to this pernicious torture and cruelty suffer the most. The after-effects of high decibel sound on the growth and development of a child will be disastrous.
26. It is submitted by the learned Government Pleader that no statutory provision sanctions use of air horns in transport or any other vehicles. It is also pointed out that respondents had received several complaints from members of the public regarding the indiscriminate use of air horns by private buses and other transport vehicles. It was noticed by the Police and Transport authorities that indiscriminate and uncontrolled use of air horns in transport vehicles has increased to alarming proportions. It was in the above circumstances that steps were taken to prevent use of air horns in those vehicles.
27. It is further contended by the learned Government Pleader that the prosecution initiated against the erring vehicle owners/drivers is in conformity with the Statute. There may be a few instances where the charging officer might have omitted to mention the relevant section of the Statute under which the offender was charged. It does not mean that no offence is committed. Though the above contention cannot be accepted, the fact remains that the offender is given due notice of prosecution. He can appear before the competent court and defend himself. Section 208of the Motor Vehicles Act provides for a summary disposal of cases involving offences other than those specified by the Government in Rule 164 of the Central Motor Vehicles Rules. It is also contended that whoever contravenes any provision of the Act, Rules, etc. for which no penalty is provided, is liable to pay fine under Section I77 of the Act. Learned Government Pleader contends that even in the absence of any specific provision to levy penalty for an offence in violation of any of the provisions of the Act, Rules, Regulation, Notification etc., an offender can be charged underSection 177 of the Act. He contends that Ext.P3 and similar memos/notices are legal. I find considerable force in the contention. The action of the authorities cannot be faulted. It is legally valid and sustainable. I do not find any reason to interfere with the prosecution initiated against the erring owners/drivers of these vehicles.
28. The other contention raised by the learned counsel for the petitioners is that the right guaranteed under Article 14, 19(1)(g) and 21 of the Constitution have been violated. I am unable to agree. Petitioners have not pointed out any substantial ground or reason on the basis of which they have made such an averment in the Original Petition. No arguments were advanced before me on this point. I find no merit in any of the contentions raised by the petitioners in these Original Petitions.
29. However, from the foregoing discussions it is clear that the Central Government is empowered to take necessary measures to protect and improve the quality of the environment and also to prevent, control and abate environmental pollution by virtue of the power conferred under Section 3 of the Environment (Protection) Act, 1986. Section 6 of the Act invests with the Central Government the power to frame rules to regulate environmental pollution in respect of all or any of the matters referred to in Section 3. The Noise Pollution (Regulation and Control) Rules, 2000 were framed by the Central Government in exercise of the powers conferred by Section 3, 6 and 25 of the Environment (Protection) Act, 1986 read with Rule 5 of the Rules. Clause (3) of Rule 3 of the Rules mandates that the State Government shall 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. The developmental authorities, local bodies, etc. are also bound to 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.
30. In view of the above, I have no hesitation to hold that the State Government and its officers are empowered to take action to regulate noise pollution and maintain ambient air quality standards in respect of noise. In the circumstances, the State Government is directed to take appropriate necessary action to implement the mandates contained in the Noise Pollution (Regulation and Control) Rules, 2000. Necessary orders shall be issued by the Government in this regard.
31. The Police and Transport authorities shall ensure that effective and appropriate action is taken forthwith to abate noise pollution that is being caused by use of air horns. No vehicle shall be permitted to use air horns. Strict compliance shall be ensured and necessary instructions shall be issued by the Government to its officers in this regard forthwith.
The Registry shall send a copy of this judgment to the Chief Secretary, Government of Kerala.
The Original Petitions are disposed of with the above directions.