Savla & Associates vs National Capital Territory Of ...
2002 Latest Caselaw 1474 Del

JUDGMENT

A.K. Sikri, J.

1. The petitioner has brought the problem created by some car mechanics who were operating from the pavements/road in the close vicinity of the office premises of the petitioner and thereby causing nuisance. It is stated in the writ petition that the petitioner is a proprietary firm carrying on profession of Advocates & Solicitors. Its office is situated in the building facing the main Lajpat Nagar Market road called as Vir Savarkar road. It has at present five lawyers and supporting staff. The petitioner is carrying on its profession at this place for the past seven years. The building is situated next to the park maintained by the residents of the said area. In the month of February, 2002 the petitioner found that some car mechanics started carrying out repairing of cars/vehicles in the close vicinity of his office premises thereby creating a lot of noise and ruckus as heavy implements such a big iron hammers are used by them for denting and painting. Such hard hitting continuous hammering noise just below the office of the petitioner jolts the entire office staff of the petitioner out of concentration. Further, due to such consistent loud noise, the petitioner and its associates are unable to perform any work with concentration much less concentrate on doing any kind of research, read the judgments which form a very vital part of the profession of the petitioner. The nature of work done by the mechanics involves' overhauling of cars, denting, painting/repairing. The process of doing these works creates an unbearable and disturbing noise. The activity carried out by the mechanics is highly hazardous and creates nuisance to the associates working with the petitioner as well as to various other offices situated in the locality. The mechanics also park their vehicles which they have undertaken to repair in an obstructive manner. The junk cars are kept adjacent to the building where the petitioner's office is situated. On couple of occasions, the Delhi Traffic Police has challenged the vehicles of the petitioner and its associates due to these mechanics occupying the entire parking space available beneath the office of the petitioner.

2. According to the petitioner, they complained to the police station, Lajpat Nagar but as no action was taken even when they approached other respondents, the present petition was filed, inter alia, making a prayer to the effect that the respondents be directed to take steps in the matter and get the public land absolutely free of such encroachment made by the mechanics. In support of this prayer, the petitioner has pressed into service Article 48A of the Constitution of India which casts duty on the State to endeavor to protect and improve the environment as well as Article 51A of the Constitution of India which imposes as one of the fundamental duties on every citizen to improve the natural environment. The petitioner has also taken support of the provisions of the Noise Pollution (Regulation and Control) Rules, 2000 made under the Environment (Protection) Act, 1986 and particularly Rules 6 of the aforesaid rule which reads as under:

"6. Consequences of any violation in silence zone/area - Whoever, in any place covered under the silence zone/area commits any of the following offence, he shall be liable for penalty under the provisions of the Act:

(i) Whoever, plays any music or uses any sound amplifiers,

(ii) Whoever, beats a drum or tom-tom or blows a horn either musical or pressure, or trumpet or beats or sounds any instrument, or

(iii) Whoever, exhibits any mimetic, musical or other performance of a nature to attract crowds."

3. The petitioner also quotes the following observations made by the Supreme Court in the case of Church of God (Ful Gospel) in India v. K.K.R.M.c. Welfare Association :

"13. Further, it is to be stated that because of urbanization or industrialisation the noise pollution may in some area of a city/town might be exceeding permissible limits- prescribed under the rules, but that would not be a ground for permitting others to increase the same by beating of drums or by use of voice amplifiers, loudspeakers or by such other musical instruments and, therefore, rules prescribing reasonable restrictions and voice amplifiers framed under the Madras Town Nuisance Act, 1889 and also the Noise Pollution (Regulation and Control) Rules, 2000 are required to be enforced.

We would mentioned that even though the Rules are unambiguous, there is lack of awareness among the citizens as well as the implementation Authorities about the Rules or its duty to implement the same. Noise polluting activities which are rampant and yet for one reason or the other, the aforesaid Rules or the rules framed under various State Police Acts are not enforced. Hence, the High Court has rightly directed implementation of the same."

4. Upon notice being issued to the respondents, the official respondents appeared. Although no counter affidavit affidavit was filed on behalf of the respondent No. 5/MCD, when the matter came up for hearing on 15th July, 2002 the learned counsel for the MCD informed that encroachments had been removed. However, the counsel for the petitioner pointed out that although steps had been taken for removal of the encroachments yet the encroachers had returned back to the same place after sometime. IN these circumstances, the respondents were given two weeks' time to file the counter affidavits and the matter was adjourned for 19th August, 2002. Counter affidavit on behalf of the police departments, i.e., respondents 2 to 4 has been filed. Mr. Rajan Sabharwal, learned counsel for the MCD reiterated his earlier stand and submitted that the encroachers were removed and in support of this plea, even filed number of photographs. The learned counsel for the petitioner admitted that the MCD had taken steps but pointed out that the said encroachers would come back against after few days of the removal of encroachments. Mr. V.K. Shali, learned counsel appearing for the respondents 1-4 vehemently argued that once the encroachments were removed and the public land was made free from such encroachments from the mechanics, there was no point in keeping this writ petition pending. He drew out attention to the following averments in the counter affidavit filed on behalf of the respondents 2 to 4:

"That the petitioner in the writ petition has stated that appropriate direction be given to the respondents to get the public land absolutely free from encroachment from the mechanics and secondly to get the mechanics arrested for their illegal acts in pursuance of the complaint dated 6.3.2002.

That at the outset, it is stated that Lajpat Nagar is a residential colony developed by the Land & Development Office, Ministry of Rehabilitation as it was then called. People who had migrated from West Pakistan had been allotted these independent built-up houses. Most of these houses which were allotted, have been sold by the original allottees on account of the fact that there has been a steep rise in the prices of the land in South Delhi. Over a period of time the properties have also been subjected to commercial user in Lajpat nagar at large and thus the original residential character of the colony has ceased to exist.

That the deponent respectfully submits on account of this cessation of residential character or the locality, all types of commercial activities including the one which has been pointed out by the petitioner had started at various places' in Lajpat nagar area. However as and when a complaint is made to the police about any encroachment or violation of law, the same is dealt with in accordance with law. In the instant case, the grievance of the petitioner is against one specific mechanic conducts the repair jobs on the public pathway thereby not only obstructing the pedestrians but also causing noise pollution. It may be pertinent here to mention although the petitioner has filed this writ petition as a public interest litigation however it ceases to be so and petitioner becomes an interested person on account of the fact that he is interested in the arrest of a particular person/mechanic.

The grievance of the petitioner is that on account of the activities of the Mechanic, they are not able to concentrate on legal work. Be that as may, it is stated that the local police within the constraint of men and material and keeping in view the magnitude of the problem of encroachment has tried to maintain peace and tranquillity and kept the roads and the footpaths by the large from encroachment so that the pedestrians could move freely. In the instant case also after the complaint of the petitioner was received, action was taken and the vehicle of the Mechanic has been seized under Section 66 of the DP Act and deposited in the police Malkhana. Apart from this a case under Section 283 IPC has been registered for obstructive parking of vehicle at a public place. In addition to this, seven other vehicles have already been seized in joint raid with the MCD. Therefore, these actions which have been taken by the office of the answering respondent namely SHO Lajpat Nagar are only in pursuance to the complaint filed by the complainant.

5. In view of the aforesaid stand taken by the respondents 2-4 as well as the stand of the MCD noted above, it is not necessary to keep this writ petition pending. These respondents have categorically stated that as and when they find the encroachment, they are removing the same. According to the aforesaid affidavit, even vehicles of the mechanics had been seized under Section 66 of the Delhi Police Act and case under Section 283 of the IPC had been registered. It may not be appropriate for this court to keep on monitoring this writ petition. More so, when a solemn assurance is given by the respondents that they would ensure that no such encroachments take place in future and even if some persons venture to do so, immediate steps would be taken to remove them.

6. The writ petition is accordingly disposed of with the direction to the respondents to adhere to the aforesaid assurance and take necessary action as and when called for.