Elayasherril Kudumba Yogam v. Deputy Superintendent of Police, Chengannur and S.I. of Police, Noornad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 18TH DAY OF SEPTEMBER 2017/27TH BHADRA, 1939** ## **WP(C).No. 33243 of 2009 (A)** **----------------------------** ## **PETITIONER :** **---------------------** **ELAYASHERRIL KUDUMBA YOGAM, NOORNAD, REPRESENTED BY ITS PRESIDENT G.JAYADEVAN, ERAMAKUZHI MURI, NOORNAD VILLAGE.** ## **BY ADVS.SRI.RINNY STEPHEN CHAMAPARAMPIL SMT.ASHA ELIZABETH MATHEW** **RESPONDENT(S):** **---------------------------** **1. THE DEPUTY SUPERINTENDENT OF POLICE, CHENGANNUR.** **2. S.I. OF POLICE, POLICE STATION, NOORNAD-690 504.** ## ***ADDL.R3 IMPLEADED** ***ADDL.R3: K.RAJAKUMARAN,** **S/O.KRISHNAN, AGED 59, SOCIAL ACTIVIST, RESIDING AT KUNHAVILAYIL, ERUMAKUZHI, NOORNAD.P.O., ALAPPUZHA-690 504.** ***ADDL.R3 IS IMPLEADED AS PER ORDER DATED 19/2/2010 IN IA.NO.2114/2010.** **R1 & R2 BY GOVERNMENT PLEADER SMT. A.C.VIDHYA R3 BY ADV. SRI.R.AZAD BABU** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 33243 of 2009 (A)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE JUDGMENT DATED 05/06/08 IN WP(C) NO.15862/08 OF THIS HON'BLE COURT.** - **P2 COPY OF THE JUDGMENT DATED 22/10/08 IN WP(C) NO.28133/08 OF THIS HON'BLE COURT.** - **P3 COPY OF THE REPORT DATED 18/11/08 OF THE 4TH RESPONDENT** - **P4 COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT** - **P5 COPY OF THE NOTICE ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT** ## **RESPONDENT'S EXHIBITS:** **R3(A) IN IA.NO.2114/2010 COPY OF THE JUDGMENT DATED 17/2/2009 IN WP(C) NO.3944/09 OF THIS HON'BLE COURT.** - **R3(A) COPY OF THE SRO NO.289/2002 DATED 20/4/2002 PUBLISHED IN THE KERALA GAZETTE.** ## **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 33243 of 2009 (A) -----------------------------------------Dated: 18[th] September, 2017 ## **J U D G M E N T** The petitioner is aggrieved with Ext.P5 notice issued by the Sub Inspector of Police. 2. The petitioner is a temple, the Committee of which was using loud speakers in the premises. There was a proceeding initiated against the petitioner under the Noise Pollution (Regulation and Control) Rules, 2000 ('Noise Rules of 2000' for short). A Crime was also registered and the sound system was seized. The petitioner was before this Court, challenging the proceedings in a writ petition, which was disposed of by Ext.P1. In Ext.P1 it was found that the petitioner would be entitled to use the sound system only if it does not offend the stipulation regarding the maximum decibel ## **W.P.(C) No. 33243/2009** **-2-** level. The sound system used by the petitioner then, having been seized in the crime; it was found that the petitioner could purchase a new sound system and use it in accordance with the Rules. The petitioner was also directed to satisfy the 2[nd] respondent, the Deputy Superintendent of Police (Dy.S.P.), as to the use of sound system being within the permissible limits. 3. The petitioner was again before this Court with another writ petition, in which it was complained that the Pollution Control Board (PCB) is not cooperating and it is for the PCB to measure the sound level and decide on whether it is within the limits. Ext.P2 is the judgment passed, in which there was a direction to the PCB to inspect the premises of the petitioner and record the sound levels. Ext.P3 is a report of the PCB, pursuant to Ext.P2, wherein it was found that the speakers in operation near the front gate ## **W.P.(C) No. 33243/2009** **-3-** of the temple was within the ambient sound level standards in a residential area, during the day time. The petitioner was then issued with a notice at Ext.P5 which is impugned herein. The petitioner was also granted an interim order in the above writ petition, which is in force till date. 4. The first objection by the petitioner is that the Sub Inspector has absolutely no jurisdiction to issue such a notice. The Noise Rules of 2000 defines 'authority' to be an officer authorised by the Central Government or the State Government and includes a District Magistrate, Police Commissioner or any other officer not below the rank of Deputy Superintendent of Police. The learned Counsel for the petitioner also relies on the decision in **Suresh and Others v. State of Kerala – 2007 (3) KHC 963** which held that under the Noise Rules of 2000, a complaint before the **-4-** ## **W.P.(C) No. 33243/2009** jurisdictional Magistrate under the Noise Rules of 2000 can only be by an officer not lower to the rank of Dy.S.P. Hence, the Sub Inspector could not have proceeded against the petitioner under the Noise Rules of 2000. 5. The petitioner submits that, as of now, there is absolutely no problem and the petitioner is using the sound system without any obstruction. However, the fact remains that the petitioner has not produced any permission granted by the Dy.S.P. Even by Ext.P1 it was specifically directed that the petitioner could satisfy the 2[nd] respondent Dy.S.P. of the sound level being within the ambient sound level standards. It is also to be noticed that Rule 5(1) of Noise Rules of 2000 speaks of loud speaker or a public address system to be used only after obtaining written permission from the authority. ## **W.P.(C) No. 33243/2009** **-5-** 6. It is submitted that a representation was made before the Dy.S.P. for such a grant, which is not still considered. The Dy.S.P. has filed a counter affidavit before this Court, contending that the temple is situated in a silent zone and even, as per Ext.P3 report of the PCB, the sound level recorded is higher than the permitted ambient sound level, for a silent zone. The Dy.S.P. also submits that it is based on Ext.P3 report that there was a refusal to grant the permit. 7. Since there was a stay in force all these years, it is thought fit that the writ petition be disposed of setting aside Ext.P5, but, reserving the authority of the Dy.S.P. to proceed against the petitioner, if at all, the ambient sound levels are found to be exceeding that permitted. The petitioner also would be entitled to make a fresh application before the Dy.S.P., which shall be done within a period of two weeks. If such an ## **W.P.(C) No. 33243/2009** **-6-** application is filed, the Dy.S.P. shall consider it, if necessary, after getting a report from the PCB and pass orders, which shall govern the matter thereafter. The writ petition is disposed of. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 19/9/17