HIGH COURT OF ORISSA: CUTTACK W.P.(Crl.) No.864 of 2010 In the matter of an application under Articles 226 and 227 of the Constitution of India. -------- Smt. Padmabati Pradhan, aged about 48 years, Proprietor of M/s. Grand Fabricators, W/o. Bhubanananda Pradhan, Resident of Plot No.407/2019, Garage Chhak, Lewis Road, P.S. Lingaraj, Old Town, Bhubaneswar-751002, Khurda & Another … Petitioners. -Versus- Commissioner of Police, Bhubaneswar-Cuttack, At/P.O. Bhubaneswar, Khurda & Others … Opp. Parties. For Petitioners : M/s. Santosh K. Pattnaik, U.C. Mohanty, D.P. Das, P.K. Pattnaik, D. Pattnaik & S.K. Pattnaik. For Opp. Parties : Government Advocate M/s. Bibhu P.Tripathy, J.K. Parija, R. Acharya, S. Hidayatula, T. Barik & N. Barik (For Caveator) ---------- P R E S E N T: THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Heard and disposed of on 03.11.2010 B.N.MAHAPATRA, J This Writ Petition has been filed with a prayer to quash the order dated 03.09.2010 (Annexure-15) passed by O.P. No.1-the Commissioner of Police, Bhubaneswar-Cuttack, At/PO/Dist: Khurda in Crl. M.C. No.373/10 under Section 32 of the Orissa Urban Police Act, 2003 (for short “OUP Act”) by which O.P. No.1 directed the petitioners to close down their Fabrication Unit within sixty days from the date of receipt of the impugned order and I.I.C., Lingaraj P.S. has been directed to ensure compliance of the impugned order. 2. The facts and circumstances of the case leading to the present Writ Petition in a nut shell are that the petitioner-Padmabati Pradhan, W/o Bhubanananda Pradhan has been running a large size Fabrication Unit over Plot No.1466 (part) and 396/1845, sub-plot No.A/1, Mouza: Rajarani, Unit-36, near Garage Chhak, Lewis Road, Bhubaneswar-2. The case of the private opp. parties is that the fabrication unit of the petitioner is functioning in the residential zone causing annoyance, disturbance and discomfort etc. to the private respondents residing in the vicinity. Earlier Addl. District Magistrate, Bhubaneswar heard their application and made a spot visit and measured the sound level produced by the petitioner-Unit and found it to be higher than the permissible sound level of 55 dB for residential area. The Addl. District Magistrate, Bhubaneswar passed an interim order dated 24.06.2006 directing the petitioner to reduce the sound level. On 08.09.2006 the said authority conducted a surprise visit to the spot to verify whether the interim order was carried out or not and found that the sound level produced was 88.2 dB. Finally, the Addl. District Magistrate, Bhubaneswar passed an order directing the petitioner to restrict the sound level within the 55 dB. Being aggrieved, petitioner moved this Court vide W.P.(C) No.1492 of 2008 and this Court vide 2 its order dated 15.09.2008 in the said writ petition upheld the order of the A.D.M. and directed the petitioner to maintain the permissible noise level by using modern techniques or to shift the Fabrication Unit from the residential area. Since the petitioner failed to comply with the order of this Court, the opp. parties filed the above Crl. Misc. Case No.373/10 before the Commissioner of Police, Bhubaneswar-Cuttack (O.P. No.1). Opp. Party No.1 directed the I.I.C., Lingaraj PS to enquire into the allegations of the opp. parties and submit a report. In his report dated 20.05.2010, I.I.C., Lingaraj PS intimated that in obedience to the order of this Court the petitioners were sensitized to reduce the noise level. O.P.No.1 also issued notice to the petitioner to show cause as to why appropriate order under O.U.P. Act would not be passed against her as she was causing annoyance, disturbance and discomfort in the locality. Pursuant to said show cause notice, the petitioner filed the reply stating therein that in view of the specific order passed by this Court in W.P.(C) No.1492 of 2008 there is no need to proceed with the instant proceeding and pursuant to the direction of this Court, the petitioner has taken steps to reduce the noise level substantially. It was further stated that the residential area is disturbed more by the sound produced on NH-203 than the sound emitted from the Fabrication Unit. The O.P. No.1 constituted a technical committee. The said Committee submitted its report. With the consent of the petitioners and the opp. parties, a meeting was held with the scientists of State Pollution Control Board (for short ‘the Board’) and both the petitioners and the opp. parties have attended the said meeting. O.P. No.1 after hearing 3 the learned counsel for both the parties and analyzing the technical report as well as deliberation with the scientists of the Board came to the conclusion that the noise level of the residential area during operation of the Fabrication Unit is on the higher side and issued the above direction. Hence, this writ petition. 3. Mr. S.K.Pattnaik, learned counsel appearing for the petitioners challenges the impugned order of O.P. No.1 on various grounds. Mr. Pattnaik, basically submits that the maximum noise level presently recorded was 63.6 dB which is below 65 dB. Therefore, no case for submitting complaint is made out. Power under Section 32 of the O.U.P. Act is not available to be exercised to enforce the order of the Addl. District Magistrate which was passed under the Rule 2(c) of the Noise Pollution (Regulation and Control) Rules, 2000 (for short, “the Rules, 2000”) and the same has overriding effect on any other law in view of Section 24 of the Environmental Protection Act, 1986. Therefore, it is argued that the impugned order is without jurisdiction. O.P. No.1 has not acted in accordance with the provisions of Rules, 2000. The unit of the petitioner is a registered S.S.I. unit in Bhubaneswar which has been functioning from 1986. The petitioner has also obtained the licence and certificate for setting up of the Fabrication unit. The land of the petitioners is located in a busy commercial area of Bhubaneswar town near Garage Chhak. There were other shop rooms in the said locality. O.P. Nos.3 to 7 have no locus standi to initiate any proceeding seeking implementation of the order passed by the A.D.M., Bhubaneswar. One Sri Ganeswar Rout has a long standing civil 4 dispute with the petitioners. He is trying to harass the petitioners by way of the complaint made before the A.D.M., Bhubaneswar in 2004 and filing the present Criminal Misc. Case No.373 of 2010. The measurement of the noise level of the area has not been properly made by different authorities. The sound measurement report is not correct. O.P. No.1 has not taken into consideration Rule 7 of the Rules, 2000. Mr.Pattnaik has submitted that the impugned order has been passed without jurisdiction and thus it is arbitrary, illegal, perverse and is in violation of the principles of natural justice. Mr. B.P. Tripathy, learned counsel appearing for the private opposite parties supports the impugned order passed by opposite party No.1 under Annexure-15. 4. It is not in dispute that the petitioners are running a Fabrication unit which causes annoyance, disturbance and discomfort to the inhabitants residing in the said vicinity. Petitioners’ stand that the said unit is situated in a busy commercial area is not substantiated by any material on record. On the other hand, the Secretary, Bhubaneswar Development Authority, vide order passed under Section 91(1) of the Orissa Development Authorities Act, 1982 (for short, ‘the Act 1982’) has declared the Fabrication Unit of the petitioners as unauthorized and directed the petitioner to remove the same. This Court in W.P.(C) No.1492 of 2008 also confirmed the order of the A.D.M., Bhuabneswar and directed the petitioner to maintain the noise level by using modern techniques or to shift the fabrication unit. While the matter was pending before the Commissioner (O.P. No.1) he took various steps to find out whether the unit 5 of the petitioners causes annoyance, disturbance or discomfort to the inhabitants of the vicinity. He had conducted an enquiry through the I.I.C., Lingaraj P.S. A technical committee was constituted consisting of Sri Suresh Kumar Mohapatra, OPS, ACP/Zone-V, Bhubaneswar, two scientists of the State Pollution Control Board and I.I.C., Lingaraj P.S. The Committee was entrusted with the task of monitoring the noise level in the vicinity of the industrial unit during different points of time in a day and to submit a report. The Technical Committee submitted their report to the opposite party No.1. When the objection was raised by the petitioners to the technical report stating that the measurement was not made properly, a meeting was held with the scientists of the Board which was attended by counsel for both the parties. After hearing learned counsel for the parties and after analyzing the technical report and deliberations made with the scientists of the Board, the O.P. No.1 came to the conclusion that the noise level of the petitioners’ Fabrication Unit in the residential area during the period of its operation is beyond the permissible limits and therefore directed the petitioner No.1 to close down her Fabrication Unit within sixty days from the date of receipt of his order. 5. At this juncture, it is felt necessary for us to reproduce relevant portion of the impugned order. “Upon perusal of records, hearing the learned counsels and analyzing the technical report as well as deliberations with the scientists of State Pollution Control Board, it is evident that the noise level of the residential area, during operation of the fabrication unit, is on the higher side in spite of specific direction to the contrary of Hon’ble High Court. During the course of 6 hearing, though the learned counsel for the OPs submitted that in pursuance of the above order, there has been substantial reduction of noise level, not a single document was placed before the Court in support of the steps taken to reduce the noise level or use of modern technique to that effect. The Technical Committee consisting of senior Police Officers and Scientists of State Pollution Control Board measured the noise level as per laid down procedure and in a professional manner in presence of both parties and found the same much beyond the permissible limit in a residential area. Notwithstanding the objections raised by the learned counsel for the OPs about correctness of the measurement, no evidence has been submitted to bring home the allegation that the measurement was not done in an appropriate and correct manner. In fact during the explanatory session held by the Court in presence of the learned counsels of the parties, the Scientists of State Pollution Control Board satisfactorily explained all queries and elaborately described the procedure followed for reaching their result. In the background of the above, the Court accepts the report of Technical Committee as procedurally correct and professional in nature. It is hence evident that the fabrication unit located at Plot No.396/1845 (Pt), Plot No.409 (Pt) and Plot No.407 (Pt) in Mouza Rajarani, PS: Lingaraj, Bhubaneswar is generating noise which is beyond the permissible limit in a residential area. The report of Technical Committee also provides that the order of the Hon’ble High Court in WP (Crl.) No.362/07 and WP(C) No.1492/08 is yet to be complied by the OPs in letter and spirit. In the background of the above and by virtue of powers conferred u/s 32 of Orissa Urban Police Act, 2003 (Act 8 of 2007), the undersigned is satisfied that it is necessary to issue direction to the OPs in respect of carrying of their trade or operation of the fabrication unit, which is resulting in excessive noise, thereby causing annoyance, disturbance and discomfort to the petitioners who dwell or occupy property in the vicinity. It is hence ordered that the OPs shall close down the fabrication unit within 60 (sixty) days from the date of receipt of this order. 7 IIC, Lingaraj PS is directed to serve this order on both parties and ensure compliance to the order passed by this Court.” Perusal of the impugned order shows that the O.P. No.1-Commissioner in letter and spirit has followed the order of this Court dated 15.09.2008 passed in W.P.(C) No.1492 of 2008. 6. Before parting with this judgment, we have to observe that paramount public interest in this case cannot be lost sight of. In the present case, on the one hand larger interest of the inhabitants of the locality is involved and on the other hand, individual interest of the petitioners, who are running a large scale Fabrication Unit in residential area. Needless to say that due to the noise created by the petitioner’s fabrication unit, the people residing in the nearby residential area cannot live peacefully, enjoy their sound sleep; students cannot properly prosecute their studies, and the senior citizens and ailing persons are deprived of passing their normal life. Ultimately, all the inhabitants of the locality are the victims of such noise pollution. 7. In view of the above, we do not find any illegality or infirmity in the impugned order passed by O.P. No.1 warranting interference by this Court. 8. In the result, the writ petition is dismissed, as the same is devoid of merit. No order as to costs. ……………………... B.N.Mahapatra, J. 8 …....……………….. Chief Justice 9 Orissa High Court, Cuttack Dated 3rd November, 2010/sss/skj