State of Kerala v. Binoj K.B. and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI ``` ``` & ``` ## **`THE HONOURABLE MR.JUSTICE V.G.ARUN`** ``` TUESDAY, THE 7[TH] DAY OF NOVEMBER 2023 / 16TH KARTHIKA, 1945 ``` ## **`WA NO. 1935 OF 2023`** ``` AGAINST THE ORDER IN WP(C) 1550/2015 DATED 03.11.2023 OF HIGH ``` ## **`COURT OF KERALA`** ## **`APPELLANT/S:`** - `1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001` - `2 THE DISTRICT COLLECTOR ERNAKULAM, PIN - 682030` - `3 ADDITIONAL DISTRICT MAGISTRATE FORT KOCHI, ERNAKULAM., PIN - 682001` - `4 THE COMMISSIONER OF POLICE ERNAKULAM, PIN - 682016` - `5 THE SUB INSPECTOR OF POLICE MARADU, ERNAKULAM., PIN - 682004 BY ADVS. SRI.K.GOPALAKRISHNA KURUP, ADVOCATE GENERAL(AG-1) SHRI.V.MANU, SENIOR G.P.(GP-46)` ## **`RESPONDENT/S:`** - `1 BINOJ K.B AGED 40 YEARS S/O.BHUVANACHANDRAN, KAMBILLIL HOUSE, MOSQUE ROAD, NEAR KOTTARAM BHAGAVATY TEMPLE, MARADU P.O, MARADU VILLAGE, KANAYANNOOR THALUK, ERNAKULAM DISTRICT (REPRESENTED BY HIS POWER OF ATTORNEY SAJEEV K.B., S/O.BHUVNACHANDRAN, SOUPARNIKA (KAMBILIL), SRRA-17, 9/464A, SOCIETY ROAD, MARADU P.O., MARADU VILLAGE, KANAYANNOOR THALUK, ERNAKULAM DISTRICT, PIN - 682304` - `2 KUNJAMMA AUGUSTINE W/O.LATE P.A.AGUSTINE, PAZHAMPALLIL HOUSE, MUTHEDOM WARD, MARADU P.O, MARADU VILLAGE, KANAYANNOOR THALUK, ERNAKULAM DISTRICT., PIN - 682304` - `3 ROBY P.A S/O.LATE P.A.AGUSTINE, PAZHAMPALLIL HOUSE, MUTHEDOM WARD, MARADU P.O, MARADU VILLAGE, KANAYANNOOR THALUK,` ## **`WA NO. 1935 OF 2023`** ``` -2- ``` - `ERNAKULAM DISTRICT., PIN - 682304` - `4 REGHUNATH NAIR S/O.A.K.SUKUMARAN, KAMBILLIL HOUSE, MOSQUE ROAD, NEAR KOTTARAM BHAGAVATHY TEMPLE, MARADU P.O., MARADU VILLAGE, KANAYANNOOR THALUK, ERNAKULAM DISTRICT., PIN - 682304` - `5 P.C.ELIYAMMA CHACKO AGED 74 YEARS` - `D/O.P.I.CHACKO, PAZHAMPALLIL HOUSE, MUTHEDOM WARD, MARADU P.O., MARADU VILLAGE, KANAYANNOOR THALUK, ERNAKULAM DISTRICT., PIN - 682304` - `6 P.ASHOKAN AGED 57 YEARS` - `S/O.LATE SRI.PADMANABHAN, BLAIPADOM, OFF MOSQUE ROAD, MARADU P.O., ERNAKULAM., PIN - 682304` - `7 THE ENVIRONMENTAL ENGINEER KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, NEAR FIRE STATION, KADAVANTHARA ROAD, GANDHI NAGAR, ERNAKULAM, PIN - 682020` - `8 THE CHIEF CONTROLLER OF EXPLOSIVES SOUTHERN CIRCLE` - `CHENNAI, TAMIL NADU, PIN - 600001` - `9 THE DIRECTOR OF EXPLOSIVES REGIONAL OFFICE KAKKANADU, ERNAKULAM., PIN - 682037` - `10 MARADU MUNICIPALITY REPRESENTED BY ITS SECRETARY, MARADU, ERNAKULAM., PIN - 682304` - `11 MARATTIL KOTTARAM BHAAVATHY TEMPLE REPRESENTED BY ITS PRESIDENT, ADMINISTRATIVE COMMITTEE, MARATTIL KOTTARAM BHAGAVATHY TEMPLE, MARADU, KANNAYANUR TALUK, KOCHI , ERNAKULAM DISTRICT., PIN - 682304` - `12 N.S.S. KARAYOGAM NUMER - 1921 REPRESENTED BY ITS PRESIDENT, M.RADHAHKRISHNAN, NEAR SREEDEVI AUDITORIUM, MARADU, KANNAYANUR TALUK KOCHI - 682 304, ERNAKULAM DISTRICT., PIN - 682304` - `13 N.S.S KARAYOGAM NUMBER - 2068 REPRESENTED BY ITS PRESIDENT, POONITHURA, PETTAH, KANNAYANUR TALUK, KOCHI, ERNAKULAM DISTRICT., PIN - 682038` ``` WA NO. 1935 OF 2023 ``` ``` -3- ``` - `14 K.G.INDUKALADHARAN SO.GOVINDA MENON PRESIDENT, ADMINISTRATIVE COMMITTEE, MARATTIL KOTTARAM BHAGAVATHY TEMPLE, MARADU, KANNAYANUR TALUK, KOCHI, ERNAKULAM DIST., PIN - 682304` - `15 KUNDUVELI NANDAKUMAR S/O.MELETHU CHANDRASHEKHARA MENON, SECRETARY, MARATTIL KOTTARAM BHAGAVATHY TEMPLE, MARADU, KANNAYANUR TALUK, KOCHI , ERNAKULAM DIST., PIN - 682304` - `16 HARI KUMAR S/O.PADMANABHA MENON ALIS THANKAMONY, THREASURER, MARATTIL KOTTARAM BHAGAVATHY TEMPLE, MARADU, KANNAYANUR TALUK, KOCHI , ERNAKULAM DIST., PIN - 682304` - `17 THE SECRETARY MARATTIL KOTTARAM, VADAKKE CHERUVARAM, KANNAYANUR TALUK, KOCHI , ERNAKULAM DIST., PIN - 682304` - `18 THE SECRETARY SREE MARATTIL KOTTARAM BHAGAVATHY DEVASWOM, THEKKE CHERUVARAM, MARADU, KANNAYANUR TALUK, KOCHI , ERNAKULAM DISTRICT., PIN - 682304` - `19 DR.M.K. JOY AGED 68 YEARS S/O KRISHNAN, MUNNOORPILLY HOUSE, HIGH SCHOOL ROAD, MARADU P.O, PIN - 682304 BY ADV RAJAN T R ADV.R.SURAJ KUMAR; SC FOR PCB T. NAVEEN;SC CGC SUVIN R. MENON; SR. ADV. K.RAMAKUMAR` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WA NO. 1935 OF 2023 ``` ``` -4- ``` ## **JUDGMENT** ## **A.J.DESAI, C.J.** The State of Kerala is in appeal against the interim order dated 03.11.2023, in captioned Writ Petition (C) No.1550/2015, mainly on the ground that the impugned order passed by the learned Single Judge is beyond the scope of the writ petition and beyond the prayers made in the writ petition as well as the interim relief sought. 2. The writ petition came to be filed by the present respondent Nos. 1 to 6, under Article 226 of the Constitution of India, raising the issue regarding use of fire crackers in an indiscriminate and hazardous manner. The case of the original petitioners is that, in connection with the ‘Thalapoli’ festival held once in every year at the Marattil Kottaram Bhagavathy Temple, respondents 10 to 15 are creating air and noise pollution by the bursting of crackers and display of fireworks. The original petitioners are also aggrieved by ``` WA NO. 1935 OF 2023 ``` the inaction on the part of the State authorities as well as local bodies to stop the use of fire crackers, contrary to the decisions of Hon’ble Apex Court and also the orders of this Court. The original petitioners therefore prayed for a writ of mandamus directing respondent No.1, i.e., the State of Kerala, to ban the fire works in the 10[th] respondent temple and its premises. By raising several issues, the following prayers were made by the original petitioners: “(i) issue a writ of mandamus or any other writ, order or direction to respondent no.1 to ban the fireworks in the 10[th] respondent temple and its premises of Mangayil Government Higher Secondary School and Mangayil Lower Primary School. (ii) pass an order of injunction to respondents 10 to 17 to refrain from conducting fireworks in the 10[th] respondent temple and its premises of Mangayil Government Higher Secondary School and Mangayil Lower Primary School. (iii) issue a writ of mandamus or any other writ, order or direction to respondent nos. 1 and 2 to take immediate action on Exhibit P9 representation. (iv) such other reliefs that this Hon’ble court may deem ``` WA NO. 1935 OF 2023 ``` ``` -6- ``` fit and proper in the nature and circumstances of the case.” ## 3. The petitioners also sought an interim relief, which reads as under: “For such reasons stated in the Writ Petition and in the accompanying affidavit, it is most humbly prayed that this Hon’ble Court may be pleased to direct respondents 7 and 8 to refrain from granting permit to respondents 10 to 15 from carrying out any activities to conduct fireworks in and around the 10[th] respondent temple in connection with Thalappoli Festival which is scheduled to be conducted on 2[nd] and 3[rd] of March 2014, pending disposal of the above Writ Petition.” 4. It is submitted by the learned Advocates appearing in the present proceedings that the matter was listed on 03.11.2023. It appears from the record that affidavits and counter affidavits were not filed by any of the respondents. On 03.11.2023, the following order came to be passed by the learned Single Judge. “Petitioners have sought the intervention of this Court for preventing the bursting of the crackers in all the religious places situated in Kerala. It is contended that explosive licences are being issued by the District ``` WA NO. 1935 OF 2023 ``` ## **`-7-`** Collector under Explosive Rules. All the temple holders, except few, are not having any licences. Even if the licences are issued, they should not be issued, for bursting causes noise and air pollution also. Crackers are busted at odd hours disturbing peace. 2. This fact is not denied by the learned counsel representing the respondents as well as the fact that even this Court had also heard the noise of the crackers even after the midnight. 3. I thus direct the Deputy Collector with the Assistance of the Commissioner of Police, Cochin and other districts, to conduct raids in all religious places and take into possession of the crackers illegally stored in all religious places and issue instructions that henceforth onwards no crackers shall be burst in religious places at odd time as prima facie there is no commandment in any of the holy book to burst crackers for pleasing the God. 4. Let this order be circulated to all the District Collectors in Kerala for compliance. It is made clear that in case after todays order if it is found or reported bursting of crackers, court may be compelled to initiate contempt proceedings. ``` WA NO. 1935 OF 2023 ``` ``` -8- ``` State Counsel is directed to submit a report on this before the next date of hearing. Post this matter on 24.11.2023.” 5. The aforesaid order is under challenge in this appeal filed under Section 5 of the Kerala High Court Act, 1958. 6. Learned Advocate General appearing for the appellants vehemently submitted that the learned Single Judge has traveled beyond the scope of the writ petition and the prayers made therein. The issue involved in the writ petition is with regard to the use of fire crackers and fireworks in a particular temple and that too, for a particular festival. However, the learned Single Judge has passed a general order directing all the Deputy Collectors with assistance of Commissioners of Police to conduct raids in all religious places and seize the fire crackers illegally stored in those places. He would submit that such direction ought not to have been issued in the absence of any material or allegation being made by the petitioners in the writ petition. 7. He would further submit that the issue with regard to air pollution and noise pollution arising from the bursting of fire ``` WA NO. 1935 OF 2023 ``` ``` -9- ``` crackers have been dealt with by the Hon’ble Apex Court in **Forum,** _**Prevention of Environmental and Sound Pollution v. Union of India and Another[ 2005 (5) SCC 733]**_ . By taking us through paragraph Nos. 168 and 174 of the said decision, he would submit that the Hon’ble Supreme Court has issued various directions with regard to the time during which the fire crackers can be used and burst and that too, by keeping certain parameters including possession of appropriate licence to store and use the fire crackers. 8. He would submit that an application for clarification of the aforesaid judgment was filed before the Hon’ble Apex Court, which was disposed of by order dated 26.03.2007, clarifying that the restriction imposed in paragraph Nos.168 and 174 of the said judgment can be relaxed by the State authorities, if large number of people gather for the festival and ceremonies. He would further submit that, with regard to the 'Thrissur Pooram' festival in the State of Kerala, the display of fireworks was streamlined by passing an order dated 11.04.2019 in W.P.(C)No.728/2015. By taking us through this order, he would submit that the State is empowered to ``` WA NO. 1935 OF 2023 ``` ``` -10- ``` relax restriction imposed on the use of fire crackers in the temples as part of daily rituals. 9. By relying upon a decision of this Court in _**Chandran O.P.**_ _**v. Cochin Devaswom Board and Others [2012 (2) KHC 488],**_ the learned Advocate General would submit that a Division Bench of this Court has also passed directions with regard to the use of fireworks namely, ‘Adirvettu or Kadina’ in temples, for which licence is required. By relying upon another judgment of a Division Bench of this Court in a suo motu proceedings in **Re : v.** reported in **2016 (2) KHC 584** , the use of fire crackers and display of fireworks, for which licence is required, has been appropriately dealt with. 10. He therefore would submit that the learned Single Judge ought to have examined the case in detail before passing a blanket order directing the Government authorities to raid all religious places. As far as the further direction issued by the learned Single Judge that no fire crackers can be burst in religious places at any odd time, he would submit that, when the Hon’ble Supreme Court has clarified that fire crackers can be used during times other than the ``` WA NO. 1935 OF 2023 ``` ``` -11- ``` time prescribed, i.e. between 10 p.m. and 6 a.m., the State shall deal with each case separately on its own merit and may permit the use of fireworks in accordance with the directions/clarification issued by the Hon’ble Apex Court. He would further submit that paragraph No.2 of the impugned order also requires to be quashed and set aside, since the issue involved in the writ petition has nothing to do with the other temples in the State of Kerala. 11. Learned Advocate General submits that the State of Kerala has issued G.O.(Rt.)No.3212/2023/HOME dated 06/11/2023 with regard to use of fireworks during Deepavali festival and Christmas festival for the year 2023. By the said order the timing for use and bursting of fire crackers is restricted to two hours between 8 pm to 10 pm on Deepavali and between 11.55 pm to 12.30 a.m. on Christmas as well as New year . 12. The learned Advocate appearing for the original petitioners also submitted that he has filed the petition only with regard to the use of fireworks conducted once in a year in a particular festival and appropriate orders may be passed on the same. ``` WA NO. 1935 OF 2023 ``` ``` -12- ``` 13. Learned Senior Advocate appearing for the Karayogams, which are managing the temple, also submitted that the interim order is way beyond the scope of the writ petition. 14. We heard the learned Advocates appearing for respective parties. 15. As stated herein above, the writ petition filed in the year 2015 is with regard to the use of fireworks in a temple, contrary to the directions issued by the Hon’ble Supreme Court, the High Court of Kerala and the notifications issued by the State authorities. In our considered opinion, the learned Single Judge has traveled beyond the scope of the writ petition at an interim stage and has passed general directions, which should not have been passed. Therefore, we quash and set aside the impugned order, except the direction that “no fire crackers shall be burst in religious places at odd times”. We deem it appropriate to clarify the aforesaid direction based on the decision of the Apex Court in _**Forum,**_ _**Prevention of Environmental and Sound Pollution**_ (supra) , the relevant portion of which is extracted herein below. ``` WA NO. 1935 OF 2023 ``` ``` -13- ``` “174. 1. xxxxxxx 2.xxxxxx 3.xxxxx 4. There shall be a complete ban on bursting sound emitting firecrackers between 10 p.m. And 6 a.m. It is not necessary to impose restrictions as to time on bursting of colour/light emitting firecrackers. “ Accordingly, there shall be a ban on the use of fireworks between 10 p.m. and 6 a.m., unless the State authorities pass specific orders granting exemption to any particular religious place covered by the observations made by the Hon'ble Apex Court in the interlocutory order dated 26.03.2007 in **IN Re:Noise Pollution - Implementation of the Laws for Restricting use of Loudspeakers and High Volume Producing Sound System.** The writ appeal is thus allowed in part. However, it is made clear that the authorities may take steps with regard to the illegal possession of fire crackers at various places. We also direct all the respondents to file their counter affidavits before the learned Single Judge within a period of four weeks from today. The learned Single ``` WA NO. 1935 OF 2023 ``` ``` -14- ``` Judge will proceed with the writ petition in accordance with law. ``` Sd/- A.J.DESAI CHIEF JUSTICE Sd/- V.G.ARUN JUDGE ``` uu 07.11.2023