Jaago Nehru Nagar Residents Welfare Association v. Commissioner of Police

3.3) The Petitioners made several complaints to the Police Control Room on phone number 100, when they noticed the noise pollution from the said loudspeakers were unbearable and in excessive volume for long hours during the day and night time. However, the police attached to Chunabhatti and Nehru Nagar Police Station did not take necessary steps to prevent the said noise pollution for the reasons best known to them. That, many a times the complaints were given via Twitter (a social networking site that allows users to post, share, and reply to short messages) to Mumbai Police by tagging the highest Police Authorities. However, there is no response or any legal action taken by the Police Department in that behalf.

3.4) That, on 4th July 2020 written complaint signed by six citizens was given to the Senior Inspector of Respondent Nos.[4] & 5, with a request to register F.I.R. against the offenders for committing the offence of noise pollution by violating Noise Pollution Rules and other laws. However, no action is taken thereof. It is the contention of the Petitioners that, the Respondent Nos.2, 4 & 5 i.e. the Police Authorities, refused to entertain their complaints on the ground that, the said noise pollution caused by the use of loudspeakers cannot be stopped, as the loudspeakers are fitted in a ‘masjid’ i.e. a religious place and therefore police cannot stop the noise pollution, as it is a sensitive matter related to religion and advised the Petitioners to withdraw the complaint by expressing their inability to stop noise pollution.

3.5) It is the case of the Petitioners that, refusal by Police Authorities to stop the noise pollution emitted from the loudspeakers fitted in the said religious places is contrary to the Rules framed under the Noise Pollution Act. That, use of loudspeakers without permission from the concerned Authority is illegal. It is contended that, the use of loudspeakers and amplifiers five times daily for 365 days without permission from the concerned Authorities against all necessary and relevant Rules is illegal and objectionable.

3.6) That, the complaint of the Petitioners dated 30th September 2020 to the Assistant Commissioner of Police, Nehru Nagar Division, with a request to take action against the violators for creating noise pollution by using loudspeakers without permission in high volume is not properly addressed. The information obtained from the public information officer of Nehru Nagar Division of Mumbai Police under the Right to Information Act, 2005, reveals that, no permission was granted to any of the masjids to use loudspeakers in the jurisdiction of Respondent Nos.[4] & 5 Police Stations. The Petitioners also addressed a written complaint dated 17th December 2020 to the Commissioner of Police, Mumbai i.e. the Respondent No.1 herein, however it was of no avail.

3.7) That, due to the use of loudspeakers / amplifiers in high volume and the failure of police machinery to take necessary action against the offenders by registering necessary cases against them, many citizens in the Nehru Nagar area have fallen ill. The Police Officers attached to Respondent Nos. 4 & 5 Police Stations gave illusive answers and failed to act upon the complaints of the Petitioners and others. That, the Respondent Nos.[1] to 5 are Police Authorities and are bound to take cognizance of the complaints of citizens. The non action by the Respondents itself speaks the poor state of affairs of law enforcement agency and therefore the Petitioners are constrained to file present Petition under Article 226 of the Constitution of India.

4) Shri Hemrajsingh A. Rajput, Deputy Commissioner of Police, Zone-VI, Chembur, Mumbai, i.e. the Respondent No.2 herein, has filed Affidavits dated 8th February 2023 and 8th November 2023. In his Affidavits, the said Respondent has stated that, after receipt of complaint dated 4th July 2020 addressed to the Senior Police Inspector(s) of Nehru Nagar Police Station and Chunabhatti Police Station, the police called the office bearers of respective masjids, wherein the said persons stated that, two loudspeakers which were installed on their mosques were removed and they maintained the volume of sound in appropriate level. Their detailed statements were recorded by the police. That, the Petitioners therefore posted a message on their “Twitter Account” addressing to the Twitter Account of Bombay Police as, “This loud noise is at 05.00 AM the one masjid near Kurla bus depot has been silenced. I suppose action has been taken these twits I request you Mumbai police to stop the loudspeaker in the kureshi nagar Kurla east”. That, the Petitioners have thus appreciated the steps adopted by Mumbai Police. That, in the year 2021, after completion of lockdown, necessary instructions in respect of volume of loudspeakers were given to the office bearers of the concerned masjids. That, the office bearers of (1) Sunni Kabrasthan Masjid and (2) Jamait-Ul-Qureshi Masjid, which comes under the jurisdiction of Chunabhatti Police Station had asked for permission to use the speakers on their mosques and hence they were granted permission only for “Azaan” on certain terms and conditions regarding decibels and time limit etc. as per the Guidelines of the Hon’ble Apex Court. That, in the year 2022, the office bearers of (1) Bilali Masjid, (2) Noorani Masjid, (3) Raza Jama Masjid, (4) Sunni Raza Masjid, Railway Phatak, (5) Madersha Masjid Darool Hadis, which comes within the jurisdiction of Nehru Nagar Police Station had asked for permission to continue the speakers on their mosques. Hence, they were granted permission on the condition of keeping the sound level upto prescribed limits of decibels, as there is residential area in the vicinity. It is stated that, the said permission was given on step by step basis and was reviewed periodically as and when applied for the same. That, after receipt of complaint dated 30th September 2020 addressed to the Senior Inspector of Police, Chunabhatti Police Station, with a grievance of noise pollution caused due to use of loudspeakers at religious structures, the Police Authorities initiated action. The concerned Police Stations, i.e. Chunabhatti Police Station and Nehru Nagar Police Station, conducted various meetings of office bearers of the concerned masjids and apprised them about the permissible level of sound as per the Guidelines of the Hon’ble Apex Court, High Court as well as Noise Pollution Rules, 2000 under the Environment (Protection) Act and the concerned persons were apprised of the permissible level of the sound within the particular zones. That, with respect to the complaints made by Mr. Akshay Kulkarni, necessary steps to check the decibel level of loudspeakers on the said masjids was adopted by the police. The permission to continue with the speakers on the mosques within the jurisdiction of Nehru Nagar Police Station was granted on the condition of keeping the sound level upto prescribed limits of decibel, because the said masjids are within the vicinity of residential zone. The said permissions were granted as per the Guidelines of the High Court. In para No.16 of Affidavit dated 8th February 2023 the Respondent No.2 has narrated various remedial measures for preventing noise pollution from the masjids within the jurisdiction of the said two Police Stations.

4.1) In his Affidavit dated 8th November 2023, the Respondent No.2 has elaborately stated the steps adopted for implementing all the directions issued by this Court in paragraph No. 94(iv) passed in PIL No. 173 of 2010. It is stated that, two Police Officers were appointed at the said two Police Stations to take cognizance of the noise pollution on the complaint(s) made by the Petitioners and/or other persons. That, with regard to the issue involved in the present Petition, noise pollution from the mosques within the jurisdiction of Chunabhatti and Nehru Nagar Police Stations, from the period of 2022-2023 till the date of affirming the said Affidavit, 92 times the spots near the masjids were verified by the special team with the help of decibel meter and the readings were accordingly recorded. It was revealed that, almost all the days the noise levels was within the prescribed levels and whenever it was revealed that, there was any violation as prescribed, the concerned Police Station has taken action by submitting proposal to the Maharashtra Pollution Control Board for lodging complaints and for taking cognizance by the concerned Court. That, on 8th March 2023 it was found that the officials of Bilali mosque had caused noise pollution and accordingly upon a proposal to the Maharashtra Pollution Control Board, a complaint came to be filed before the learned Metropolitan Magistrate, 34th Court, Vikhroli, Mumbai, bearing C.C. No. 34/SW/2023 and the trial Court has taken cognizance of it. To the said Affidavit, the Respondent No.2 has annexed a chart indicating the decibel level recorded by the police on various occasions to support the contentions that the decibel limit of noise within the periphery of the said masjids was within prescribed limits. The Respondent No.2 has annexed to the said Affidavit dated 8th November 2023, two reports dated 4th January 2023 and 2nd November 2023 submitted by the concerned Police Officers reporting that, Sunni Raza Masjid and Madarsa within the jurisdiction of Nehru Nagar Police Station and Kabrasthan Masjid situated within the jurisdiction of Chunabhatti Police Station had caused sound pollution on the dates and time mentioned in the said reports.

5) After considering the fact that, the issue of noise pollution is involved in the present Petition, by Order dated 5th September 2023 we directed the Petitioners to implead Maharashtra Pollution Control Board (for short, “M.P.C.B.” and accordingly by an amendment, the M.P.C.B. is impleaded as Respondent No.7.

5.1) Mr. Shetye, learned counsel appeared for Respondent No.7, MPCB and with his usual fairness assisted this Court. He pointed out the relevant provisions from the said Act and the Noise Pollution Rules. He tendered across the bar a brief note in respect of Noise Pollution.

6) Mr. Mhatre, learned counsel appearing for Petitioners submitted that, though the law relating to noise pollution has been well crystallized and specific directions have been issued thereof, the Respondents Police Authorities, are not implementing the provisions of the said Act and the Rules framed thereunder in its proper letter and spirit. That, it is the reason the said mosques are in blatant violation of law of the land are committing noise pollution through the loudspeakers or public address system fixed in the precincts of the said mosques. He submitted that, refusal by the police to stop the noise pollution emitted from the loudspeakers fitted in the said mosques is contrary to the Rules framed under the said Act, as without permission from the Authority the use of loudspeakers is illegal. That, the use of loudspeakers/amplifiers or public address system 5 times a day throughout the year without permission from the Competent Authority against all norms is illegal and highly objectionable. He invited our attention to the Orders dated 30th July 2014 and 28th August 2015 passed by this Court in Criminal Public Interest Litigation No. 20 of 2015 (Filing No.39 of 2014), wherein this Court has specifically directed that, if necessary permission is not obtained by the users of loudspeakers for religious functions, then the police was directed to take adequate steps for removal of those loudspeakers. It was directed that, all the religious structures belonging to all the religions are not permitted to use the loudspeakers without seeking permission of the Competent Authority. He pointed out that, even while granting permission for use of loudspeakers, specific terms and conditions have been imposed by the Competent Authority / Police Department. Condition No. 10 thereof specifies that, the police have right to revoke a licence in case of breach of terms and conditions of the licence given to use loudspeakers. He submitted that, the Petitioners reside in a residential zone and the decibel limit of noise ambient air quality standard in respect of the noise or the decibel limit of noise in residential area during day time is 55 decibels and at night time it is 45 decibels. That, all the said mosques are emitting noise pollution throughout the day and night in utter defiance of the provisions of the said Act and the Rules framed thereunder. He submitted that, under Section 38 of the Maharashtra Police Act, the Police Authority is having power to prohibit continuance of music, sound or noise and has also power, either to rescind, modify or alter any Order issued by it granting permission for use of loudspeakers. That, in his Affidavit dated 8th February 2023, the Respondent No.2 has admitted that, the Petitioners reside in ‘Residential Area’ as contemplated under the schedule appended to the said Rules. He submitted that, in his Affidavit dated 8th February 2023 the Respondent No.2 has made false statement that, the loudspeakers on the said masjids / mosques were not in use at the time of visit of the Police Authority. That, the reading recorded by the police, mentioned in the chart annexed at page 93 to the Affidavit dated 8th November 2023 by Respondent No.2 is an eyewash. The Petitioners are the sufferers due to the blatant violation of noise pollution emitted by the said mosques in their vicinity. That, due to this continuance of noise pollution, the police are bound to take action under Section 36 the Maharashtra Police Act read with Rule 7 of the said Rules. He submitted that, the police are also duty bound to follow the directions and/or guidelines issued by this Court in the case of Mahesh Vijay Bedekar (supra). He submitted that, as the police have failed to take necessary steps under the said Act and the Rules framed thereunder, necessary action against the Respondent Nos.[2] to 5 be initiated by directing Respondent No.6. He therefore prayed that, the present Petition may be allowed.

7) Mr. Shetye, learned counsel appearing for Respondent No.7, M.P.C.B. pointed out, the various provisions of the said Act. He submitted that, in view of sub Rule (4) of Rule 5 of Noise Pollution Rules, the noise level at the boundary of the public place, where loudspeaker or public address system or any other noise source is being used shall not exceed 10 dB(A) above the ambient standards for the area or 75 dB(A) whichever is lower. He submitted that, as per the chart annexed to the Affidavit dated 8th November 2023 filed by the Respondent No.2, it appears that, the decibel limit of noise was within the purview of Rule 5(4) of the said Rules. He submitted that, on the basis of complaints lodged by the Petitioners and receipt of information from the police, till date three complaints have been filed before the trial Court by the Respondent No.7. The said three complaints are as under. Sr. No. Case No. Name of the Parties 1 Case NO. 34/SW/2023 M.P.C.B. Vs. Bilali Masjid, Jagruti Nagar, S.G. Barve Road, Nehru Nagar, Kurla (E.), Mumbai.

2 Case NO. 52/SW/2023 M.P.C.B. Vs. Nurani Masjid, S.G. Barve Road, Nehru Nagar, Kurla (E.), Mumbai.

3 Case NO. 53/SW/2023 M.P.C.B. Vs. Sunni Rajja Masjid & Madarsa, Sable Nagar, Near Railway Phatak, Nehru Nagar, Kurla (East), Mumbai. In view of his submissions, he requested this Court to pass necessary Orders in the interest of justice.

8) Mr. Yagnik, learned A.P.P. appearing for Respondent Nos.[1] to 6 submitted that, the Respondent No.2 has filed Affidavits dated 8th February 2023 and 8th November 2023. He submitted that, the charts annexed to the Affidavit dated 8th November 2023 indicating the reading of noise level recorded by the police at the time of prayers has been correctly stated. That, the deviation in the noise level / ambient air quality mentioned therein is within the parameters as prescribed under Rule 5(4) of the said Rules. Upon a query by this Court, he fairly conceded to the fact that, the Reports dated 2nd November 2023 and 4th January 2023 (page 104 and 106 to Petition) are infact submitted by the concerned Police Officer to the Respondent Nos.[5] & 7 respectively. That, Sunni Raza Masjid and Madrasa so also the Kabrastan Masjid had infact violated the provisions of said Rules by committing noise pollution. He submitted that, this Court may suggest the Government to direct all the persons using loudspeakers or a public address system to have inbuilt auto fixation of decibel level. That, there is a little gray area in the Noise Pollution Rules and in the provisions of the Maharashtra Police Act. That, even if the application of a person is rejected, the concerned person may file an application on successive occasions by giving undertaking and therefore such applications are entertained. He submitted that, in the Affidavits of the Respondent No.2 correct data is placed on record and nothing is suppressed from this Court. He therefore requested this Court to pass necessary Orders in the interest of justice.

9) In rejoinder to the arguments of the learned counsel for Respondents, Mr. Mhatre, learned counsel for Petitioners submitted that, till the suggestions given by the learned A.P.P. are implemented, the complaints filed by the Petitioners be registered as F.I.R.. That, in view of the provisions of Section 38 read with Section 136 of the Mumbai Police Act, a fine of Rs.5,000/- can be imposed every day upon the violators i.e. the said masjids / mosques mentioned in the Petition.

10) The Hon’ble Supreme Court in the case of Church of God (Full Gospel) In India Vs. K.K.R. Majestic Colony Welfare Association & Ors., reported in AIR 2000 SC 2773: 2000 AIR SCW 3089, while considering the questions involved therein, in para Nos.[2] & 12 has held as under:- (2) The questions involved in this appeal are that in a country having multiple religions and numerous communities or sects, whether a particular community or sect of that community can claim right to add to noise pollution on the ground of religion? Whether beating of drums or reciting of prayers by use of microphones and loudspeakers so as to disturb the peace or tranquility of neighbourhood should be permitted? Undisputedly no religion prescribes that prayers should be performed by disturbing the peace of others nor does it preach that they should be through voiceamplifiers or beating of drums. In our view, in a civilized society in the name of religion, activities which disturb old or infirm persons, students or children having their sleep in the early hours or during day-time or other persons carrying on other activities cannot be permitted. It should not be forgotten that young babies in the neighbourhood are also entitled to enjoy their natural right of sleeping in a peaceful atmosphere. A student preparing for his examination is entitled to concentrate on his studies without their being any unnecessary disturbance by the neighbours. Similarly, old and infirm are entitled to enjoy reasonable quietness during their leisure hours without there being any nuisance of noise pollution. Aged, sick, people afflicted with psychic disturbances as well as children up to 6 years of age are considered to be very sensible to noise. Their rights are also required to be honoured. (12) In the present case, the contention with regard to the rights under Article 25 or Article 26 of the Constitution which are subject to “Public order, morality and health” are not required to be dealt with in detail mainly because as stated earlier no religion prescribes or preaches that prayers are required to be performed through voice amplifiers or by beating of drums. In any case, if there is such practice, it should not adversely affect the rights of others including that of being not disturbed in their activities. We would only refer to some observations made by the Constitution Bench of this Court qua rights under Articles 25 and 26 of the Constitution in Acharya Maharajshri Narendra Prasadji Anand Prasadji Maharaj v. The State of Gujarat & Others, [(1975) 1 SCC 11: AIR 1974 SC 2098]. After considering the various contentions, the Court observed that “no rights in an organized society can be absolute. Enjoyment of one’s rights must be consistent with the enjoyment of rights also by others. Where in a free play of social forces it is not possible to bring about a voluntary harmony, the State has to step in to set right the imbalance between competing interests”. The Court also observed that “a particular fundamental right cannot exist in isolation in a water-tight compartment. One Fundamental Right of a person may have to coexist in harmony with the exercise of another Fundamental Right by others also with reasonable and valid exercise of power by the State in the light of the Directive Principles in the interests of social welfare as a whole”.

11) The Hon’ble Supreme Court in the case of In Re Noise Pollution – Implementation of the Laws for Restricting use of Loudspeakers and High Volume Producing Sound Systems: Forum, Prevention of Envn. and Sound Pollution Vs. Union of India & Anr., reported in AIR 2005 SC 3136: 2005 AIR SCW 3525, in para Nos.9, 10 & 86 has held as under:- (9) Article 21 of the Constitution guarantees life and personal liberty to all persons. It is well settled by repeated pronouncements of this Court as also the High Courts that right to life enshrined in Article 21 is not of mere survival or existence. It guarantees a right of persons to life with human dignity. Therein are included, all the aspects of life which go to make a person's life meaningful, complete and worth living. The human life has its charm and there is no reason why the life should not be enjoyed along with all permissible pleasures. Anyone who wishes to live in peace, comfort and quiet within his house has a right to prevent the noise as pollutant reaching him. No one can claim a right to create noise even in his own premises which would travel beyond his precincts and cause nuisance to neighbours or others. Any noise which has the effect of materially interfering with the ordinary comforts of life judged by the standard of a reasonable man is nuisance. How and when a nuisance created by noise becomes actionable has to be answered by reference to its degree and the surrounding circumstances, the place and the time. (10) Those who make noise often take shelter behind Article 19(1) (a) pleading freedom of speech and right to expression. Undoubtedly, the freedom of speech and right to expression are fundamental rights but the rights are not absolute. Nobody can claim a fundamental right to create noise by amplifying the sound of his speech with the help of loudspeakers. While one has a right to speech, others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody can claim that he has a right to make his voice trespass into the ears or mind of others. Nobody can indulge into aural aggression. If anyone increases his volume of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels then the person speaking is violating the right of others to a peaceful, comfortable and pollution-free life guaranteed by Article 21. Article 19(1)A cannot be pressed into service for defeating the fundamental right guaranteed by Article 21. We need not further dwell on this aspect. Two decisions in this regard delivered by High Courts have been brought to our notice wherein the right to live in an atmosphere free from noise pollution has been upheld as the one guaranteed by Article 21 of the Constitution. These decisions are Free Legal Aid Cell Shri Sugan Chand Aggarwal alias Bhagatji v. Govt. of NCT of Delhi and others, AIR (2001) Delhi 455 (D.B.) and P.A. Jacob v. Superintendent of Police, Kottayam, AIR 1993 Kerala 1. We have carefully gone through the reasoning adopted in the two decisions and the principle of law laid down therein, in particular, the exposition of Article 21 of the Constitution. We find ourselves in entire agreement therewith. (86) A noise disturbance, as defined by the ordinance, is any sound that is unpleasant, annoying, or loud; abnormal for the time or location; and prejudicial to health, comfort, property, or the conduct of business. Under the ordinance, it is unlawful to create a noise disturbance anywhere during "quiet hours," including multi-family buildings and townhouses. The "nuisance provision" prohibits some noise disturbances anywhere at any time.

12) The Hon’ble Supreme Court in the case of Forum, Prevention of Envn. and Sound Pollution Vs. Union of India & Ors., reported in 2005 AIR SCW 5890, in para No.9 has held as under:- (9) Looking at the diversity of cultures and religions in India, we think that a limited power of exemption from the operation of the Noise Rules granted by the Central Government in exercise of its statutory power cannot be held to be unreasonable. The 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 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.

13) The scheduled prescribed under Rule 3(1) and 4(1) of the Noise Pollution (Regulation and Control) Rules, 2000 reads as under:-

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) Leg* Day time Night Time (A) Industrial Area 75 70 (B) Commercial Area 65 55

(C) Residential Area 55 45

(D) Silence Zone 50 40

1. Day time shall mean from 6.00 a.m. to 10.00 p.m.

2. Night time shall mean from 10.00 p.m. to 6.00 a.m. [***] Omitted by S.O. 2555(E), dated 10-8-2017 (w.e.f. 10-8-2017)

4. Mixed categories of areas may be declared as one of the four above mentioned categories by the competent authority. *dB(A) Leq denotes the time weighted average of the level of sound in decibels on Scale A which is relatable to human hearing. A “decibel” is a unit in which noise is measured. “A”, in dB(A) Leq, denotes the frequency weighting in the measurement of noise and corresponds to frequency response characteristics of the human ear. Leq: It is an energy mean of the noise level over a specified period.

14) Section 38 of the Maharashtra Police Act gives power to prohibit, etc. continuance of music, sound or noise to the concerned Authority. Section 38 of the said Act reads as under:-

38. Power to prohibit, etc. continuance of music, sound or noise (1) If the Commissioner or [Superintendent] is satisfied from the report of an officer in charge of a Police Station or other information received by him that it is necessary to do so in order to prevent annoyance, disturbance, discomfort or injury or risk of annoyance, disturbance, discomfort or injury to the public or to any persons who dwell or occupy property on the vicinity, he may, by a written order issue such directions as he may consider necessary to any persons for preventing prohibiting, controlling or regulating- (a) the incidence or continuance in or upon any premises of-

(i) any vocal or instrumental music,

(ii) sounds caused by the playing, beating, clashing, blowing or use in any manner whatsoever of any instrument, appliance or apparatus or contrivance which is capable of [producing or reproducing sound], or (b) the carrying on, in or upon, any premises of any trade, avocation or operation resulting in or attended with noise. (2) the authority empowered under sub-section (1) may, either on its own motion, or on the application of any person aggrieved by an order made under sub-section (1) either rescind, modify or alter any such order. Provided that before any such application is disposed of, the said authority shall afford to the applicant an opportunity of appearing before it either in person or by pleader and showing cause against the order and shall, if it rejects any such application either wholly or in part, record its reasons for such rejection.

14.1) Section 136 of the Maharashtra Police Act prescribes penalty for contravening rules, etc., made under section 38 of the Act. It states that, whoever disobeys any direction lawfully made under section 38 or abets the disobedience thereof shall, on conviction, be punished with imprisonment for a term which may extend to three months or with fine which may extend to [five thousand rupees] or with both.

14.2) Section 70 of the Maharashtra Police Act, prescribes enforcement of orders issued under Section 37, 38 or 39 of the said Act. Section 70 of the said Act reads as under:-

70. Enforcement of orders issued under sections 37, 38 or 39 - Whenever a notification has been duly issued under section 37 or an order has been made under section 38 or 39 it shall be lawful for any Magistrate in a District or Police Officer to require any person acting or about to act contrary thereto to desist or to abstain from so doing, and in case of refusal, or disobedience, to arrest the person offending. Such Magistrate or Police Officer may also seize any object or thing used or about to be used in contravention of such notification, or order as aforesaid, and the thing seized shall be disposed of according to the order of any District Magistrate having jurisdiction at the place. (Underline emphasised)

14.3) Section 149 of the Maharashtra Police Act prescribes penalty for opposing or not complying with directions given under Section 70. Section 149 of the said Act reads as under:

149. Penalty for opposing or not complying with direction given under section 70 - Whoever opposes or fails forthwith to comply with any reasonable direction given by a Magistrate or a Police Officer under section 70 or abets opposition thereto or failure to comply therewith, shall, on conviction, be punished with imprisonment for a term which may extend to one year but shall not except for reasons to be recorded in writing by less than four months and shall also be liable to fine.

15) In the case of Mahesh Vijay Bedekar Vs. State of Maharashtra & Ors., reported in 2016 (6) ABR 533, the Division Bench of this Court was considering the issue, about failure of all the Authorities of State of Maharashtra to implement the Noise Pollution (Regulation and Control) Rules

2000. This Court has in detail considered the provisions of the said Act and the Rules framed thereunder and apart from other decisions of various High Courts, has in detail considered the aforenoted decisions of the Hon’ble Supreme Court. It is held therein that, no religion has ever permitted violation of law for celebrating religious festivals. That, in the said group of Petitions which came up before the said Bench, it was demonstrated that, the Noise Pollution Rules were mostly violated when there are political rallies and religious festivals. It has been held that, use of loudspeakers is not an essential part of any religion and therefore the protection under Article 25 of the Constitution of India is not available. It is further observed that, we are a secular State under our Constitution. That, after all the State of Maharashtra is a land of father of our Constitution. That it is this State, which has taught rational thinking to the nation. The Division Bench in the case of Mahesh Vijay Bedekar (supra) after referring to and relying upon aforestated three decisions and all other relevant decisions of various High Courts, in para Nos. 80, 81, 82 & 89 has held as under:

80) In view of the authoritative pronouncement of law by the Apex Court in the case of Church of God (Full Gospel) in India v. K.K.R. Majestic (2000) 7 SCC 282: (AIR 2000 SC 2773), no religion or religious sect can claim that the of use loudspeakers or similar instruments for prayers or for worship or for celebrating religious festivals is an essential part of religion which is protected under Article 25. We hold that there is no fundamental right to use loudspeakers or similar instruments under Article 19(1)(a) of the constitution. On the contrary, the use of such instruments contrary to the Noise Pollution Rules will be a violation of fundamental rights of citizens under Article 21 of the Constitution as well as fundamental right of citizens of not being forced to listen something which they do not desire to listen.

81) As far as the directions given by the Apex Court in the case of Noise Pollution (V) In re, are concerned, we have already held that the State is bound to comply with the said directions. We are fortified by the view taken by the Apex Court in the case of Balwant Singh v. Commr. of Police (2015) 4 SCC 801: (AIR 2015 SC (Supp) 474, paras 27 and 28). “23. In our considered view, in the light of the authoritative pronouncement rendered by this Court on the issue of noise pollution in Noise Pollution (5), In re [Noise Pollution (5), In re, (2005) 5 SCC 733]: (AIR 2005 SC 3136), it is not necessary for this Court to again deal with the same issue except to issue appropriate directions for its compliance.

24. We, accordingly, direct the respondents to ensure strict compliance with the directions contained in paras 174 to 178 of the judgment of this Court in Noise Pollution (5), In re [Noise Pollution (5), In re, (2005) 5 SCC 733], and for ensuring its compliance, whatever remedial steps are required to be taken by the State and their department(s) concerned, the same be taken at the earliest to prevent/check the noise pollution as directed in the aforesaid directions.” (Underline supplied)

82) We must record here that in the written submissions filed in PIL No.173 of 2010, a fair stand has been taken by the State Government as regards interpretation of Rule 6 of Noise Pollution Rules. Though such a stand is taken, the perusal of the orders passed from time to in this group of Petitions shows there is hardly any implementation made by the State Government of the Noise Pollution Rules. In fact, time and again, this Court was required to issue very stringent directions to the State Government. The one of the main reasons for the failure is that adequate numbers of meters for measuring noise levels are not available with the State. The Noise Pollution Rules came into force in the year 2000. The orders passed in PIL No.173 of 2010 will reveal that till August 2016, the State Government has not even procured the requisite number of meters. Therefore, this Court was required to issue a direction to the State Government to collect data from various police officers as regards their requirement of meters. The order dated 4th January, 2016 records that the learned Government Pleader made a statement that there were very few meters available in the State and in fact the requirement of the State was of 1843 meters. It shows that there is never any serious effort made by the State Government for implementation of the Noise Pollution Rules for last 16 years. Therefore, under the order dated 4th January, 2016 a direction was issued to the State Government to grant necessary approval for acquiring 1843 meters. Time of three months was granted to procure 1843 meters. The said time expired on 3rd April, 2016. This Court found that no steps were taken to procure the meters within the stipulated time and that is why this Court was compelled to issue a notice of contempt to Shri K.P. Bakshi, Additional Chief Secretary, Home Department. Notwithstanding the disposal of the main Petition, the notice of contempt will remain pending as the direction to acquire requisite number of meters will continue to operate. Even as of today, the meters have not been procured. The learned AGP tendered across the Bar a letter dated 11th August, 2016 addressed by the Additional Director General of Police to the Additional Chief Secretary of the Home Department. The said letter records that a period of 60 days will be required for supply of the said meters. In short, the meters will be available only at the end of September, 2016. Right from the year 2014, very elaborate interim orders were passed by this Court in PIL No.173 of 2010 including detailed orders passed on 13th March, 2015 and 24th June, 2015. Notwithstanding the said orders, even requisite number of meters are not yet procured. We must note that these orders were passed for implementation of the directions issued by the Apex Court and the Noise Pollution Rules. The approach of the State Government has been very casual. The result of this gross delay in procuring meters is that during two important festivals of Dahi Handi and Ganapati of the year 2016, adequate number of meters will not be available with the police machinery. This inaction has to be deprecated.

89) The provision is similar to Rule 8 of Noise Pollution Rules. Under Section 38 of the Maharashtra Police Act, the power is conferred to the Commissioner of Police and Superintendent of Police to order prevention or prohibition of music sound or noise. On receiving a report/complaint of nuisance created by music or sound or instrumental noise, the Officer incharge of the concerned Police Station the same communicate the said report immediately to the Commissioner of Police or the Superintendent of Police to enable to the said authority to take immediate action under Section 38 of the Maharashtra Police Act.

15.1) In para No. 93 thereof, the Court has summarized its important/main conclusions and in sub-para Nos. (ii), (vi), (vii), (xv), (xvii), (xx) & (xxi) has held as under:-

(ii) In view of sub-rule (1) of Rule 5, a loudspeaker or a public address system shall not be used except after obtaining written permission from the authority as prescribed in clause (c) of Rule 2 of the said Rules. We clarify that if a license for use of loudspeaker or public address system is required under any other provision of law such as Maharashtra Police Act, 1951, or the Rules framed thereunder, a loudspeaker or public address system shall not be used without obtaining such a license as well. Even after grant of written permission, the person holding the permission is duty bound to maintain the noise level as prescribed by the Schedule and subrules (4) and (5) of Rule 5 of the Noise Pollution Rules. (vi)The noise level at the boundary of a public place defined under clause (i) of Rule 2 will have to be maintained as provided in subrule (4) of Rule 5, even if a license is granted under sub-rule (1) of Rule 5 to use loudspeaker in the public place. By way of illustration, we may state that in case of an open ground covered by clause (i) of Rule 2 in respect of which a license has been granted under sub-rule (1) of Rule 5 which is situated in the residential area, in view of sub-rule (4) of Rule 5, maximum level of noise during the day time and night time can be 65 dB(A) and 55 dB(A) respectively.

(vii) Under sub-rule (5) of Rule 5, if privately own sound system and sound producing instrument is used in private place, at the boundary of private place, the noise level cannot be more than 5 dB(A) above the prescribed noise standard specified for the area as provided in the Schedule. Thus, in case of residential area, in the day time, the noise level cannot exceed 60dB(A) at the boundary of private place.

(xv) Even if a loudspeaker or public address system (as distinguished from privately owned sound system) is used within the precincts of the hospitals, educational institutions and Courts, wherever permission under sub-rule (1) of Rule 5 is needed, the same shall be mandatory and condition precedent for its use. Needless to add that even if a permission is granted and if such instruments are used in the precincts of hospitals, educational institutions and courts, the same are subject to all other provisions of the Noise Pollution Rules and, therefore, noise levels at the boundary shall be as provided in sub-rules (4) and (5) of Rule 5 which are applicable to the silence zones. The prohibition in clauses (i) to (iv) of Rule 6 will not apply to completely covered and closed premises within silence zone, but the said premises will be governed by all the Rules incorporated in the Noise Pollution Rules including sub-rules (4) and (5) of Rule 5.

(xvii) In view of Section 15 of the Environment Protection Act, whoever fails to comply with or contravenes provisions of the Noise Pollution Rules, all orders or directions issued thereunder is liable for penalty. Such noncompliance or contravention attracts imprisonment for a term which may extends to five years and fine which may extends to one lakh. Thus, noncompliance of the Noise Pollution Rules or contravention of the Noise Pollution Rules shall attract penalty under Section 15 of the Environment Protection Act and therefore, it is the duty of all the Authorities of the State to ensure that the offences under Section 15 are registered.

(xx) The power under Section 8 shall be in addition to the power of the Commissioner or the Superintendent of Police as the case may be under Section 38 of the Maharashtra Police Act, 1951 and the power of the District Magistrate to take action in accordance with Section 133 of the Code of Criminal Procedure, 1973.

(xxi) We hold that all places of worship of all religions are bound by the provisions of the Noise Pollution Rules and no religion or sect can claim fundamental right of using loudspeakers or public address systems or instruments creating noise as a part of right conferred by Articles 19(1)(a) and 25 of the Constitution of India.

15.2) The decision in the case of Mahesh Vijay Bedekar (supra) has attained finality as the Special Leave Petition filed by the State of Maharashtra against the said decision has been dismissed.

15.3) The principles of law enunciated by the Division Bench of this Court in the case of Mahesh Vijay Bedekar (supra) have been referred to, relied upon and affirmed by the Full Bench of this Court in the case of Ajay Marathe Vs. Union of India and Others, reported in 2018 (4) Mah.L.J. 770.

15.4) The law relating to Noise Pollution as contemplated under the Environment (Protection) Act, 1986 and the Noise Pollution (Regulation and Control) Rules, 2000 is well elucidated by this Court in the decision of Mahesh Vijay Bedekar (supra), as reproduced above and has attained finality in view of the dismissal of the SLP preferred by the State before the Hon’ble Supreme Court. Its repetition is hereby avoided for the sake of brevity.

16) Perusal of the Environment (Protection) Act, 1986 indicates that, there is no provision for lodgment of First Information Report and it is the reason Section 19 prescribes that, no Court shall take cognizance of any offence under this Act except on a complaint made by the Authorities mentioned therein. Section 15 of the Act provides for penalty or contravention of provisions of the said Act, Rules, Orders and directions issued under the said Act.

17) In view thereof, though the Petitioners have prayed for a direction for lodgment of a crime, in the absence of any provision specifying the same under the said Act and/or Rules, we are unable to accede to the request of the Petitioners. However, taking into consideration the vital issue involved in the present case, i.e. noise pollution caused on account of use of microphones and loudspeakers to recite ‘Azaan’ or other religious discourses in daily basis in the vicinity of the Petitioners and not following the directions issued by this Court in the case of Mahesh Vijay Bedekar (supra), we have entertained this Petition.

18) Mumbai is a cosmopolitan City, obviously there are persons of different religions in every part of the city. The very fact that the Petitioners have filed the Petition to direct the State authorities to implement the Orders of the Apex Court as well as several Orders of this Court would evince that, there has been a deliberate violation of the Orders. Noise is a major health hazard on various aspects. No one can claim that his rights are affected in any manner if he is denied a permission to use loudspeaker. It is in public interest that such permissions should not be granted. By denying such permissions, rights under Article 19 or 25 of the Constitution of India are not at all infringed. Use of loudspeakers is not an essential part of any religion.

19) It is the specific case of the Petitioners that, the said masjids / mosques mentioned in the Petition are committing noise pollution thereby disturbing the peace and tranquility in their locality, which is being constantly disturbed during the use of microphones and loudspeakers to recite ‘Azaan’ and other religious discourses by the offenders on a daily basis. It is the further contention of the Petitioners that, since the Respondent Nos.[1] to 6 are willfully and deliberately not taking any action against the perpetrators of the noise pollution and violators of law, therefore the trustees or managers of the said mosques are brazenly on a daily basis committing noise pollution in the vicinity of the Petitioners.

20) It may be noted here that, to his Affidavit dated 8th November 2023, the Respondent No.2 has annexed two reports dated 4th January 2023 (page 106) and 2nd November 2023 (page 104). The said two reports are pertaining to Kabrastan Masjid situated within the jurisdiction of Chunabhatti Police Station and Sunni Raza Masjid situated within the jurisdiction of Nehru Nagar Police Station. As per the said two reports, the said masjids were emitting noise level upto 98.[7] decibels and 79.[4] decibels respectively. The said reports are submitted by the Police Officers attached to the concerned Police Stations. It is thus apparent that, there is substance in the allegations of the Petitioners and therefore there is no reason to disbelieve the grievance of the Petitioners that, the loudspeakers / public address systems put up by the said mosques are creating noise pollution. As noted earlier, the law relating to noise pollution and the steps to be adopted by the law enforcing agencies is well elucidated by this Court in the case of Mahesh Vijay Bedekar (supra).

21) According to us, it is the bounden duty of the Respondent Nos.[1] to 6 that, they must and should enforce the law by adopting all the necessary measures, as may be prescribed by the provisions of law. In a democratic State, there cannot be a situation that, a person / group of persons/ association of persons would say that, it will not follow or adhere to the law of the land and the law enforcers would be meek or silent spectators to it.

22) It is well settled by the Hon’ble Supreme Court in the case of Church of God (Full Gospel) In India (supra) that, undisputedly no religion prescribes that prayers should be performed by disturbing the peace of others nor does it preach that they should be through voice-amplifiers or beating of drums. That, in a civilized society in the name of religion, activities which disturb old or infirm persons, students or children having their sleep in the early hours or during day-time or other persons carrying on other activities cannot be permitted.

23) As per the schedule appended to the Noise Pollution Rules, the ambient air quality standards in respect of noise i.e. the decibel limit in Residential Area during ‘day-time’ must be at the most 55 decibels and during ‘night-time’ must be 45 decibels. According to us, this limit of 55 or 45 decibels is a cumulative limit of all the loudspeakers / voice amplifiers / public address systems or other sound emitting gadgets. Thus, in the vicinity of the Petitioners if one or more number of religious places are using loudspeakers or public address systems, it is not the individual ambient air quality limit of 55 decibels or 45 decibels, but it is in all the cumulative sound level of all the loudspeakers / voice amplifiers / public address system or other sound emitting gadgets, which are in use at one point of time. The law does not permit that, every individual loudspeaker will emit 55 or 45 decibels of noise aggregating to more than what is prescribed under the said Rules. That would amount to frustrating the intention of Legislature.

24) As held in the case of Mahesh Vijay Bedekar (supra) in addition to the Police sending the complaint(s) to the Respondent No.7 for lodging it before the Court of competent jurisdiction, the Police are bound to take action under Section 38 read with 136 of the Maharashtra Police Act on every default or breach committed by the user of loudspeakers / voice amplifiers / public address system or other sound emitting gadgets, if it is notice either by them or brought to their notice by any citizen that, the Noise Pollution Rules are being violated.

25) The Police under the Mumbai Police Act are having powers under Sections 38, 70, 136 & 149 of the Maharashtra Police Act and it is necessary for the Respondents-Police Authorities to use it for proper implementation of the Environment (Protection) Act and the Noise Pollution Rules, 2000.

25.1) In our view under Section 136 of the Mumbai Police Act, an imposition of fine of Rs.5,000/- a day or Rs.18,25,000/- for 365 days and payment thereof may perhaps not be a deterrent for those blatantly violating the said laws of the land. The violators do it as a matter of right and the complainants, often individuals are hapless and helpless victims of these obnoxious use of loudspeakers and/or amplifiers.

25.2) We take a judicial note of the fact that, generally people / citizens do not complain about the things until it becomes intolerable and a nuisance. We are of the view that, without requiring identification of the complainant, the Police Authorities must act on such complaints, more so to avoid such complainants being targets or ill will and developing hatred.

26) We therefore direct the State to consider to direct all the concerned to have inbuilt mechanism to control decibel level in their emitting gadgets used by any religious place / structure / institution, irrespective of religion. The State may also seriously consider to issue directions for calibration and/or auto-fixation of decibel limit of emitting gadgets used by any or all the religions in their respective places of prayers or worship.

26.1) The Respondent No.1 also to direct all the concerned Police Officers to use the decibel level measuring mobile application for checking the decibel levels. These applications are easily available on internet and would assist in monitoring the noise levels. Thus, loudspeakers and amplifiers or other equipment or gazettes which produce offending noise, one detected as violating the law or in defiance of the directions issued by the concerned Police Authorities can seize the said equipment/s under Section 70 of the Maharashtra Police Act. The Police are bound to implement Sections 38, 70, 136 and 149 of the Maharashtra Police Act, as may be required in view of the fact situation of each case.

27) In the case, the Petitioner lodges a complaint with the local Police Station, it will be the duty of the concerned Police Station to consider the said complaint as per the provisions of law under the Maharashtra Police Act and the Environment (Protection) Act and to forward the said complaint to the Respondent No.7. The Police may also withdraw permissions granted to the said trusts / institutions for use of loudspeakers, if repeated violation of the provisions of said Noise Pollution Rules are brought to their notice.

28) The Petitioners or such complainants of the noise pollution in the Petitioners area are entitled to file a representation with the Respondent No.2, Dy. Commissioner of Police, who will consider the representation of such concerned person and pass appropriate Orders / directions in accordance with law after notice to all concerned parties against whom allegations for making noise pollution are made.

29) The Respondent No.1 – The Commissioner of Police to give directions to all his subordinates and may caution the concerned persons violating the law in the following manner:- (1) Once a citizen of any locality raises a complaint with the Police against any religious structure or otherwise causing noise pollution, the Police will without seeking / verifying identification of the person complaining thereof and if has received identification shall not disclose the identity of the complainant to the offender and to adopt following steps:- (a) At the first instance caution the alleged offender. (b) On a subsequent occasion, complaint/s received against same offender, the Police to impose a fine under Section 136 of the Maharashtra Police Act, on the concerned religious structure and may recover it from its Trustees and/or Manager and warn the Trustees and Manager/s with further stricter action in case of receipt of complaints in future.

(c) If any further complaint/s are received pertaining to the same religious structure on the next occasion, the Police shall adopt steps as contemplated under Section 70 of the Maharashtra Police Act, to seize the loudspeakers and/or amplifiers from the concerned religious structure and thereafter may proceed to cancel the licence issued in favour of the concern structure permitting to use loudspeakers and/or amplifiers. (2) As noted above, the police are bound to take action under Sections 38, 70, 136 and 149 of the Maharashtra Police Act, against the violator/s of the Noise Pollution Rules, 2000 and in addition thereof, to also file complaint/s under the provisions of Environment (Protection) Act, against the Trustees or Manager/s responsible for administering or running the concerned religious place and all those persons responsible for operating the loudspeakers/amplifiers.

30) Petition is partly allowed and disposed off in above terms. ( SHYAM C. CHANDAK, J. ) ( A.S. GADKARI, J. )

SHIVAHAR KUMBHAKARN