Interlocutory Order v. Intermediate Order

 

(Thomas P. Joseph, Advocate, Kottayam)

 

The nature of an order framing charge against the accused has often been a point of controversy, particularly after the enactment of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code', for brevity). The question is whether the order is interlocutory, attracting the bar of revision under S.397(2) or it partakes, the nature of a final order. The various High Courts have expressed divergent views on it, all based on the decision, of the Supreme Court in V.C. Shukla v. State (AIR 1980 SC 962). In Jayaprakash v. State (1981 KLT 100) and Sarojini Amma v. Sarojini (1987 (2) KLT 520) the view taken by the Kerala High Court, relying on the decision of the Supreme Court referred to supra, is that such an order is purely interlocutory. But the Madhya Pradesh High Court has taken the view (1988I JR Vol.15 P.67) that the order is intermediate and the bar under S.397(2) of the Code does not apply. In Abdullakutty's case (1982 KLT 861) Chandrasekhara Menon J., doubting the view taken in 1981 KLT 100, held that an order framing charge is not interlocutory. The latest decision on the point is in N.K. Narayanan v. Vidhyadharan (1989 (2) KLT 613/1989 (2) KLI 439) where Sreedharan, J., relying on AIR 1978 SC 47 and AIR 1980 SC 962 and dissenting from 1987 (2) KLT 520, has ruled that the bar of revision under S.397(2) of the code does not apply to an order framing charge as it is not interlocutory.

 

The word, 'interlocutory order' has not been defined in the Code. In AIR 1978 SC 47, Untwalia, J., said that an order rejecting the plea of the accused on a point, which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order. In that decision, approval has also been given to the decision in AIR 1977 S.C. 2185. It has however to be noted that the facts involved in those cases were not similar to the one in N.K. Narayanan's case.

 

For a better appreciation of the points decided in AIR 1978 S.C.47, it is necessary to refer to some of the decisions referred to therein. In Kuppuswami Rao v. King (AIR 1949 FC 1) the accused was charged for certain offences, and after examination of some witnesses, he raised an objection relating to the very jurisdiction of the Court, on the ground of want of sanction from the Governor. In that decision, Lord Esher was quoted thus: "if their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purpose of these rules, it is final. On the other hand, if the decision, if given in one way, will finally dispose of the matter in dispute, but if given in the other, will allow the action to go on, then, I think, it is not final, but interlocutory".

 

In Parameshwari v. State (AIR 1977 SC 403), challenge was against an order under S.94 of the Code, directing a person, not party to the proceedings, to produce documents in Court. That order was held to be an intermediate order. The distinction made in that case was that if the order is against a party to the proceedings, he could always challenge it in due course if the final order goes against him, but that cannot be said of a person who is not a party to the proceedings. It was further observed that the meaning had to be considered separately in relation to the particular purpose for which is required to be interpreted and that no single test can be applied to determine whether an order is final or interlocutory. Having regard to the facts involved in that case, the order was held to be not interlocutory.

 

In Amar Nath and others v. State (AIR 1977 SC 2185) it was again a case of the accused challenging the order of the criminal Court, issuing process to him. It was argued that the Magistrate had issued summons in a mechanical way without applying judicial mind. Fazal Ali, J. speaking for the Division Bench held that "steps in aid of the pending proceedings", such as summoning the witnesses, adjourning the cases, etc. may amount to interlocutory orders, and that orders which are ‘matters of moment and which affect or adjudicate the rights of the accused.......cannot he said to be interlocutory orders". Applying these principles, the order issuing summons to the accused was found to be not interlocutory. It was however, on the definite finding that the order, issuing summons to the accused, did involve a decision regarding the rights of the accused.

 

In AIR 1978 SC 47 (Madhulimaye's case), the accused challenged the order framing charges against him, rejecting his objection concerning the very jurisdiction of the Court to take cognizance of the complaint, as according to him, there was no proper sanction from the Government as required under S.199(4) of the Code. The challenge was therefore not merely to framing of the charges, but concerning the very jurisdiction of the Court, as well.

 

In V.C. Shukla's case (AIR 1980 SC 962) the order involved, was that of the Special Judge, appointed under the Special Courts Act, 1979, framing charge against the accused. It was argued that the appeal is not maintainable under S.11(1) of the said Act, as the order is interlocutory. Then previous decisions in AIR 1949 FC1, AIR 1977 SC 403, AIR 1977 SC 2185 and AIR 1978 SC 47 were considered. It may be noted that in all those decisions - excepting the one in AIR 1977 SC 403 where the order related to direction to a person not party to the proceedings - challenge was to the very jurisdiction of the Court. This aspect was taken note of by Fazal Ali, J. also when he observed at P.969 of AIR 1980 SC thus: "......Before proceeding further, it may be observed that the objection taken by the appellant in the aforesaid case (in AIR 1978 SC 47) related to the root of the jurisdiction of the Sessions Judge, and if accepted would have rendered the entire proceedings void ab initio. The case before this Court was not one based on allegations of fact on which cognizance was taken by a trial court and after having found that a prima facie case was made out, a charge was framed against the accused. Even so, the ratio decided, in the aforesaid case was, in our opinion absolutely correct and we are entirely in agreement with the learned Judges constituting the Bench that the order of the Sessions Judge framing charges, in the circumstances of the case, was not merely an interlocutory order, but partook the nature of a final order........"  It has to be remembered that approval to the decision in AIR 1978 SC 47 was made in the circumstances of the case, the circumstance being that the order under attack related to the very "root of the jurisdiction" of the Court. On the argument that the order framing charge affected the person's liberty substantially, it was held by Fazal Ali. J. thus: (at page 970 of AIR 1980 SC)"..........there can be absolutely no doubt regarding the correctness of the observations made by Chandrachud, J. This decision, however, is no authority for holding that an order framing charge is not an interlocutory order.........". The argument that the order is a matter of moment and therefore it cannot be said to be interlocutory also did not find favour with the court (see P.971 of AIR 1980 SC). It was unequivocally held that "the order impugned framing charge is purely an interlocutory order as it does not terminate the proceedings but the trial goes on until it culminates in acquittal or conviction...... the other side of the picture is that if the special court refused to discharge the accused and framed charges against him, then the order would be interlocutory, because the trial would still be alive". The inescapable conclusion which emerges is that an order that does not terminate the proceedings or finally decide the right of the parties, is interlocutory.

 

One does not forget that the decision (in AIR 1980 SC 962) was made in relation to an order of the special Judge appointed under the Special Court's Act, 1979, or that having regard to the object of the said Act, the word, "interlocutory order" in S.11(1)of that Act, could not be given a wider meaning as that word occurring inS.397(2) of the Code, carries. But, it has also to be noted, that in either case, the order framing charge does not terminate the proceedings, but the trial goes on until it culminates in acquittal or conviction. If so, the effect of such an order, be it under the Special Courts Act or the Code can only be the same - by such order, the Magistrate only holds that there is ground to presume that the accused has committed an offence triable under this chapter......". It neither affect nor adjudicate the rights of the accused. It is worthwhile to note the view expressed by D. A Desai, J. (concurring with Fazal Ali, J. in AIR 1980 SC 962) considering Ss. 239 and 240 of the Code, that an order framing charge is "made in the course of proceeding conducted according to procedure prescribed in Chapter XIX. Without anything more, it would be an interlocutory order...". Referring to the argument that the order is a matter of moment, that it affect the right of the accused and therefore it is not interlocutory, it was thus held (atp.1005):......."......it does not make the order framing charge anything other than an interlocutory order. The order framing charge even after applying the ratio of the later decisions would not be an order other than an interlocutory order. It would be unquestionably an interlocutory order."

 

The ratio which emerges from the above decisions is that whether an order is interlocutory or not depends on the facts of each case, and if it does not relate to the root of the jurisdiction of the court, but is only a step in aid of the pending proceedings, it is surely an interlocutory order. Framing of charges is only a step in aid of the pending proceedings. It does not affect or adjudicate the right of the accused.

 

In N.K. Narayanan's case, there was no challenge to the jurisdiction of the court; the issue of summons to the accused was not under attack, and the only plea was that there was no sufficient material before the Magistrate to frame charge against the accused. The order impugned, applying the ratio of the decisions of the Supreme Court, in my humble opinion, is purely interlocutory. The view taken in 'N.K. Narayanan's case' requires reconsideration.

Rent Control Petition by or Against a Firm

 

(By Susheela R. Bhatt, Advocate, Ernakulam)

 

Is a petition by or against a firm in the firm name alone maintainable under the Rent Control Act? The question sprang up many a times before our High Court. But it appears, that the answer to the question is still beset with conflicting approaches.

 

In Chhotelal Pyarelal v. Shikkarchand (AIR 1984 SC 1570) the Supreme Court had held that under the CP. and Berar Letting of Houses and Rent Control Order (1949) a petition is not maintainable in the firm name since the Code of Civil Procedure does not apply to the proceedings under that Act. The ratio laid down is that the firm is merely a compendious name for the partners constituting it and it is only by virtue of the provisions of Order XXX of C.P.C. that a firm can sue and be sued in its own name.

 

It is important to note that Order XXX of the Code of Civil Procedure as such is not applicable to the Rent Control Court and the Appellate Authority under the Kerala Act also. Yet, it is held in Javerilal Kalyanji v. Mis. Sheth Brothers & others (1989 (2) KLT 555 : 1989 (2) KU 445) that the ratio in Chhotelal is not applicable to the proceedings under the Kerala Act because of the ambit of the definition of the word 'landlord'. In the definition of the term 'landlord' the legislature has used the expression 'person'. After taking note of the fact that the expression 'person' is not defined under the Kerala Act, the court took resort to S.2(26) of the Interpretation and General Clauses Act, 7 of 1125 to hold that the term 'landlord' must be taken to include a firm as well. Adopting and applying the same reasoning for construing the meaning and ambit of the expression 'person' used in the definition of the word 'tenant' under the Kerala Act, it is to be reasonably resolved that a petition against a firm for eviction, in the firm name is maintainable under the provisions of the Kerala Act. The ratio in Javerilal's case is based on the reasoning mentioned below:

 

"The Supreme Court in Chhotelal Pyarelal's case (AIR 1984 SC 1570) was not dealing with such a situation when they held thin no application for eviction could be maintained against a firm in the firm name when Order XXX did not apply lo the proceedings. The provisions of the Kerala Act noted above are clear pointer that a petition could be maintained under the Act in the firm's name". (1989 (2) KLJ 555 at page 560)

 

The approach and reasoning reflected in Javerilal's case was adopted and accepted by the court in Vinod Kumar v. Mohammed Rasheed (1991 (2) KLT 16 at page 17 paragraph 3). The decision in Javerilal's case is cited before the court which decided Vinod Kumar's case.

 

Maintainability of a petition for eviction in the firm's name under the provisions of the Kerala Act was again canvassed before a Division Bench of our High. Court in Sreenivasa Kamath v. Anantha Kamath & Sons (1992 (1) KLT 190). Contention raised on behalf of the tenant was that the landlord is a firm and eviction petition filed in the firm name is not maintainable. Chhotelal Pyarelal's case (AIR 1984 SC 1570) was cited as a precedent. The Division Bench held that the contention is tenable and consequently set aside the order of eviction.

 

It is unfortunate that the decision is Javerilal Kalyanji's case (1989 (2) KLT 555:1989 (2) KLJ 445; and Vinod Kumar's Case (1991 (2) KLT 16) were not brought to the notice of the Division Bench which decided Sreenivas a Kamath's case. That apart it is doubtful whether the decision in Sreenivasa Kamath's case has the effect of overruling the decisions in Javerilal Kalyanji and Vinod Kumar. While discussing the question of maintainability of the petition the court has observed:

 

"No serious argument was advanced by counsel for the respondent controverting the position that in the firm name a petition can (not?) be filed under the Act."

 

The Court, therefore, assumed that a petition for eviction in the firm name is not maintainable.

 

Dealing with exceptions to the Rule of stare decisis it is stated by Rupert Cross in 'Precedent in English Law' (page 144) thus:

 

"In some cases the court makes no pronouncement on a point with regard to which there was no argument, and yet the decision of the case as a whole assumes a decision with regard to the particular point. Such decisions are said to be'sub silentio'and they do not constitute a precedent."

 

The Supreme Court in M/s. Good Year India Ltd. v. State of Haryana (AIR 1990 SC 781 at 796) has said that "A decision on a question which has not been argued cannot be treated as a precedent."

 

Again in State of U.P. v. Synthetics And Chemicals Ltd. (1991) 4 SCC 138 at page 163). the Supreme Court has stated thus:

 

"Here again the English Courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of Sub silentio. 'A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind' (Salmond on Jurisprudence 12th Edn. page 153)."

 

Viewed in the light of these principles the decision of our High Court in Sreenivasa Kamath's case (1992 (1) KLT 190) on the point regarding the maintainability of the petition in the firm name, appears to be sub silentio and hence can be considered as an exception to the rule of stare decisis.

 

It may be that the ratio of the decision in Javerilal’s case requires reconsideration.

 

In Haji P. Mammu v. Abdu Rahiman Basha (l986 KLT 1250), the letting out of the building in question was in favour of the firm Messers Haji P. Mammu., One of the grounds urged to evict the tenant was the 'need of the landlord for own occupation' under S. 11 (3) of the Kerala Act. The tenant took the defence based on the 2nd proviso to S. 11 (3) of the Kerala Act. Availability of the said defence was canvassed against on the premises that the tenant is a firm and hence is not a natural person. The said contention was disposed of by the Division Bench holding that the firm name is a compendious name for all the partners of the firm and that the defence under 2nd proviso to S.ll(3) "would be applicable to the partnership". In coming to the said conclusion the Division Bench relied on the decision of the Supreme Court in M/s.Madras Bangalore Transport Company (West) v. Inder Singh & others (AIR 1986 SC 1564). In this case the contention that the old firm and the new firm were different legal entities and therefore the occupation by the new firm amounted to subletting by the old firm was repelled by the Supreme Court with the observation:

 

"This contention is entirely without substance. A firm unless expressly provided for the purpose of any statute which is not- the case here, is not a legal entity. The firm name is only a compendious way of describing the partners of the firm. Therefore occupation by a firm is the occupation by its partners. Here the firms have a common partner. Hence the occupation has been by one of the original tenants........."

 

In the light of the trend of the decisions stated above, it has to be again considered by the court whether a firm is a person for the purpose of the Kerala Act.

 

It may not be out of place to point out that the ratio in Chhotelal's case was pressed into service before the Supreme Court in Shah Phoolchand Lalchand v. Parvathi Bai ((1989) 1 SCC 556). The Court rejected the contention in the following words:

 

"In our view it is not open to Mr. Nayar to raise this contention at this stage at all. This contention is not one which would have been fatal to the eviction petition. Had this contention been raised in the trial court or even in the first appellate court, itwould have been open to the respondent to amend the eviction petition and join the partners as respondents. In the aforesaid decision in Chhotelal Pyarelal Case relied upon by Mr. Nayar, the objection to the maintainability of the petition was raised at the earliest stage and was wrongly negatived by the trial court."

 

Narration of the facts in Javerilal's case (vide paragraph 10 of the judgment) disclose that the objection regarding maintainability on the basis of the ratio in Chhotelal, was raised for the first time at the stage of Revision. In Vinodkumar's Case (1991 (2) KLT 16) the said contention was raised before the execution court. Whether the contention was raised, from the very beginning of the proceedings in Sreenivasa Kamath's case is not clear from the facts set out in the decision. Whatever that be it is submitted that the contention falls in the realm of procedure and as a matter of caution, is it not better to implead both the firm and its partners in a petition under the Rent Control Act?

Muslim Women (Protection of Rights on Divorce) Act 1986 ~ Whether a Money Minting Machinery?

 

(By Samji David, Advocate, Trivandrum)

 

The historic decision of the Supreme Court in the Shahbano Case (AIR 1985 SC 945) led the Central Government to enact the Muslim Women (Protection of Rights on Divorce) Act, 1986. The purpose was not to deprive a divorced woman from claiming maintenance, but to entitle her for the same. Section 3 of the Act allows a divorced woman to realise reasonable and fair provision and maintenance during the iddat period and mahr or dower from her husband.

 

The definition of divorced woman according to Section 2(a) is "a Muslim woman who was married according to Muslim Law, and has been divorced by, or has obtained divorce from her husband in accordance with Muslim Law". This definition recognises divorce at the instance of the wife and hence it should no longer a unilateral act. That is, to claim the benefit of Section 3, it is immaterial how the divorce came into being.

 

Section 125of the Criminal Procedure Code, 1973, empowers a divorced wife to claim maintenance till her re-marriage or the death of either parties. Moreover the capacity of the wife to maintain herself would be a material factor in determining that claim. But under the present Act, a Muslim woman would be entitled to get a lumpsum amount as reasonable and fair provision for maintenance. There is no question of regular payments as being done in Section 125 of the Cr. P.C. The reason is that under Muslim Law, marriage is considered as a contract and the dissolution of it would make the parties strangers.. Of course re-marriage would disentitle a divorced woman from claiming the maintenance but it is noteworthy that she may be able to get her claim immediately since Section 3(3) of the Act prescribes a time limit for disposing such applications. Any how, she may be at liberty to arrange another marriage after receiving the maintenance amount in lump. This maintenance can be claimed by any divorced woman irrespective of her affluence. In Aharnmed's case (1990 (1) KLT 172) an unsuccessful attempt was made to prevent an affluent woman from claiming maintenance from her former husband. The court observed that even millionaire wife who lives in luxury and affluence is entitled to claim the benefit of Section 3. The object of the provision is to equip the woman, whoever she may be or her position may be, with a legal right. But to a cunning and ambitious woman, the section may be a way to richness, because the Act neither restrict re-marriage nor limit the number of times a woman can claim maintenance. A woman may, after receiving fair maintenance amount in lump, marry another man with the same motive of claiming maintenance. Is it a lacuna in the Act or machinery for minting money?

Noise Pollution - A Nuisance Only?

 

(Valsamma Paul, M.A., LLM., Applied Economics, University of Cochin)

 

Environmental pollution is assuming dangerous proportions all the through the globe, as a result of industrialization and urbanization, upsetting the ecological balance and affecting the health and development of human beings. The acuteness of the problem has arrested the attention of all. Environmental pollution comprises not only pollutions of water, air and soil but also of noise. In our country, some attention has been paid to water, air and soil pollution. But no attention is being paid to the ever-increasing problems of noise pollution either at the State or the Central Government level.

 

Man's progress through the ages has been accompanied by noise -producing activities. The discovery of metals and the attendant noises of beating, hammering and forging marked the first stage of noise pollution. With the invention of gun powder, humanity witnessed its second stage. The Industrial Revolution and the development of railways and the internal combustion engine heralded the noise-polluted environment of the present century. Concentration of both man and machine in cities further accentuated the damage to the ears [1]. Noise pollution is spreading in multifarious directions with the development of science, technology and high-speed means of transport. It may be due to alarm bells, radio, television, loudspeakers, school-bells, motor vehicles, aeroplanes, trains, industrial machineries, artillery practice by armed forces and a lot of other objects, which produce noise of varying magnitude [2].

 

What is noise?

 

In acoustics, it has been described as sound without agreeable musical quality or as an unwanted or undesired sound. According to this definition, the sound of church bells may be music to some and noise to others. Usually, noise is a mixture of many tones combined in a nonmusical manner [3]. In law, noise may be defined as an excessive, offensive, persistent or startling sound [4].

 

It is said that what makes a sound a noise is a matter of psychology rather than acoustics. It may often be influenced by subjective factors such as familiarity and personal attitude. For example, loud music may still be considered melodious by an appreciative listener. On the other hand, extremely weak sounds and screeches can be a disturbing noise to some persons [5].

 

Noise Pollution

 

Pollution, from a legal point of view, is the wrongful contamination of the atmosphere, or of water, or of soil, to the material injury of the right of an individual. Noise, as pollutant, produces contaminated environment, which becomes a nuisance and affects the health of a person, his activities and mental abilities. Noise pollution is unwanted sound 'dumped' into the atmosphere, notwithstanding the adverse effects it may have on living and non-living things [6].

 

Noise pollution was previously confined to a few special areas like factory or mill. But today it engulfs every nook and corner of the globe, reaching its peak in urban areas.

 

Sources of noise pollution

 

Sources of noise are numerous. But they may be broadly classified as:

 

(1) Industrial and (2) Non-industrial.

 

Industrial sources

 

In industries, noise is a by-product of energy conversion. Cotton mills, foundries and many other industries, where big machines are working at a high speed, have high noise pollution.

 

Non-industrial sources

 

Sources of non-industrial noise pollution can further be divided into the following categories.

 

(a) Loud speakers

 

Loudspeakers are used on occasions like religious festivals for hours together with the maximum pitch. It goes without saying that the disturbance caused thereby to the residents of the locality is immeasurable.

 

(b) Automobiles

 

Automobiles contribute towards noise pollution, because of unregulated blowing of horns and use of defective silencer - pipes. It has become a fashion to remove silencer - pipes from motorcycles and scooters.

 

(c) Trains

 

In India, steam engines are commonly used by railways. It results in a lot of noise. The introduction of fast trains has substantially increased the quantum of noise pollution.

 

(d) Aircrafts

 

The higher the speed of an aircraft is, the greater the level of noise pollution is. The noise of supersonic aircrafts can break window panes, crack plaster and shake buildings [7].

 

(e) Construction work

 

Huge machines, which produce much noise, are used these days in construction work.

 

(f) Projection of satellites in space

 

A new source of noise pollution is satellite programme by various countries. Satellites are projected into space with the aid of high explosive rockets. Application and use of these rockets produce deafening noise at the time of 'lifting off a satellite.

 

(g) Radio. Microphones

 

Radio and microphones can cause noise pollution, if they are switched on with high volume. The interest of the youth of the present in western music and dance leads to noise pollution.

 

The list of the sources of noise pollution, noted above, is not exhaustive. The number of items in the list is doubling with the speed of industrial and technological advancement.

 

Measurement of noise levels

 

A decibel is considered to be the standard unit for the measurement of noise. 30 decibels denotes the whispering range. 50-55 decibels may delay or interfere with sleep. 60 decibels is the level of normal talk. 90-95 decibels may cause irreversible changes in the automatic nervous system. 150-160 decibels proves fatal to some animals [8].

 

Effects of noise pollution

 

Noise is one of the main pollutants of the environment, causing various hazardous consequences to human life. The ill-effects of noise pollution are classified as follows:--

 

(i) Psychological

 

Exposure to high-level noise results in many behavioural changes in human beings. Noise causes irritation, which results in learning disabilities. It thus leads to poor attention and concentration. That is why the performace of the children of schools situated in busy areas of a city is very poor.

 

Noise can cause tension and strain. Housewives working in kitchen equipped with electric appliances fall easy victims to headache, because of the disturbing noise.

 

Physiological

 

The effects of noise on human body are very serious. With the increase of noise pollution, deafness, sleeplessness, diseases of the heart and mind are on the increase. Constant exposure to noise can produce stomach ulcer by reducing the flow of gastric juice and changing its acidity. It is said that it may even lead to abortions [9].

 

High noise levels can cause physiological disturbances even in animals. Several birds have been observed to have stopped laying eggs [10]. Apart from this, animals and birds migrate to quieter places, because of the intolerable effects of noise.

 

Personological effects

 

If the injurious effects of noise persist, they cause stable maladaptive reactions in the individual disturbing his total personality make-up. The lowered performance level among children may develop a feeling of inadequacy and lack of confidence in them. This may jeopardize their personological development as a growing child [11].

 

Legal control of noise

 

Many countries have enacted specific legislations to control noise pollution. For example, in England there is Noise Abatement Act 1960. Noise Pollution and Abatement Act 1970 regulates control and abatement of noise in U.S. A In India, there is no law, which exclusively deals with problems of noise and its control. We have only some stray provisions here and there in different laws, which are discussed below:-

 

(a) Noise control under the Law of Torts

 

Under the Law of Torts, a civil suit can be filed claiming damages for nuisance. Nuisance, as a tort, means an unlawful interference with a person's use or enjoyment of land, or some right over, or in connection with it. So it is the duty of every person, living in a particular locality, not to make any unreasonable noise so as to allow neighbours to live in peace.

 

(b) Noise control under the Law of Crimes

 

Section 268 of the Indian Penal Code [12] recognises noise as public nuisance. But courts consider noise pollution as too insignificant to be taken notice of under the Indian Penal Code. Even if the courts take noise pollution seriously, the provisions of the Penal Code are inadequate to cope with the increasing menace of noise pollution.

 

(c) Noise control under the Motor Vehicles Act. 1939

 

This Act empowers State governments [13] to frame rules for the upkeep of mo tor vehicles and control of noise produced by them. But a close examination of the motor vehicles rules made by various States reveals that there is nothing substantial in them to control noise pollution except perhaps some control of 'horns' and 'silencers' producing noise. So, the power conferred by this Act has not been fully utilised by the Governments towards making effective regulatory provisions to control noise pollution.

 

(d) Noise control under Industrial Laws

 

It is really surprising that no industrial law has provided protection to the workers from noise pollution except the Factories Act, 1948. S.11(i) of the Act reads:

 

"Every factory shall be kept clean and free from effluvia arising from any drain, privy or other nuisance, and in particular........."

 

This section does not specifically provide for protection from noise pollution. But the use of the word 'nuisance' implies it. It is, therefore, the statutory duty of factories to provide adequate measures for the control of noise pollution.

 

It is interesting to note here that section 35 of the Act underlines the need for protection to eyes of employees. But curiously enough, there is no provision to protect ears.

 

(e) Railways Act. 1890

 

Though the noise pollution, caused by the railway engines, is immense, the Act of 1890 does not, in any way, curb it but affords statutory protection to the engines. As a result, railway engines are at liberty to produce as much noise as they can.

 

(f) The Aircraft Act, 1934

 

The Central Government is empowered by this Act [14] to make rules for manufacture, possession, use, operation, sale, import or export of any aircraft. The Act, thus, confers power on the Central Government for the regulation of air transport services and control of noise pollution caused by aeroplanes.

 

(g) The Bihar control of the Use and Play of Loudspeakers Act, 1955

 

This is a pioneering State Government legislation, having as its object the control of noise pollution [15] caused by loudspeakers.

 

These scattered legal provisions can by themselves do little in bridling the mounting horse of noise pollution. Therefore, other supplementing avenues have to be explored for extirpating the problem.

 

Conclusions and suggestions

 

Noise can be controlled by the following measures.

 

(1) Noise control at source

 

Regular repairs of the machinery can reduce noise to a great extent. Noise level can also be lowered, if the noise source is screened by thick walls and other noise absorbing materials. If noise is inevitable despite the adoption of the above devices, then listeners may be induced to wear ear plugs or noise - reducing cushions or helmets.

 

(2) Proper planning of cities can be a long way in retarding noise pollution. Industrial areas and aerodromes should be located far away from the residential areas.

 

(3) Noise pollution caused by railway engines can be reduced, if steam engines are replaced by electric/diesel engines. Railway tracks should not, as far as possible, be allowed to pass through residential zones.

 

(4) No doubt, the Motor Vehicles Act., 1939 assembles certain restrictions on noise produced by horns. It also requires a silencer to be fitted in every motor vehicle. But it has failed to mention the limit of noise, which a vehicle may be entitled to produce. Therefor, this limit should be prescribed. Efforts should be motivated to manufacture better automobile engines with low noise like 'Maruti Car'. Planting trees on sides of roads can diffuse the noise caused by the traffic.

 

(5) Industrial laws are devoid of specific noise pollution control provisions except the implied provision in Factories Act, 1948 [16]. Therefore, specific provisions should be incorporated to protect the workers from noise pollution.

 

(6) In India, most of the persons are unaware of the disastrous effects of noise pollution and their control. To make the people aware of the reality, wide publicity should be given by TV, Radio and Newspapers etc.

 

(7) Loudspeakers and other noise-producing activities should be completely banned (except in emergencies) during sleeping hours.

 

(8) Special bonus or tax relief should be given to those people who insulate their factories and manufacture low-noise machinery.

 

(9) Noise free zones should be formed around all schools, colleges, hospitals, telephone exchanges. Arrangements should be made to erect noise abatement zones, where noise pollution is very high to reduce it to the optimum minimum.

 

(10) Excessive noise may be treated as a form of assault and battery and actionable as such.

 

(11) Punishment should be in the form of fine and attachment of the source of noise pollution.

 

(12) Above all, a comprehensive legislation to control noise pollution has to be enacted.

 

But these suggestions can bear fruit only in the sunshine of a judiciary, which is fully aware of the hazards of noise pollution and ready to interpret the rules liberally in favour of the claimants in the light of the changing circumstances. The courts may now have no difficulty in treating noise pollution as a breach of legal duty actionable under the law in view of the fundamental duty of every citizen to protect and improve the natural environment enshrined in Art. 51A(g) [17] of the Constitution.

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Footnotes:

1 R. Kumar, Environmental Pollution and Health Hazards in India (1987), Pp.176-177.

2. R.K. Sapru, Environment Management in India (Vol.11) (1987), p.86.

3. Encyclopaedia Britannica (Vol.16), (1768), p.480.

4. Id.,480B.

5. R.K. Sapru, Op. Cit.p.86.

6. R.K. Sapru, Op. Cit. (Vol.1), p.125.

7. R.K. Sapru, Op.cit. (Vol.II), P.88.

8. Supra, n.6, p.126.

9. Supra, n.6, p.128.

10. Hollywood Silver Fox, Farm Ltd. v. Emmet t (1936) 2 K.B., 468

11. Supra, n.2, p.90.

12. S.268 reads: "A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger, or annoyance to the public or to the people in general, who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right."

13. See sections 21J, 41,68,70 and 111 A of the Motor Vehicles Act, 1939.

14. See section 5 of the Aircraft Act, 1934.

15. Section 3 of the Bihar Control of the Use and Play of Loudspeakers Act, 1955 reads:

"No person shall use and play a loudspeaker

(a) Within such distance as may be prescribed from a hospital or a building in which there is a telephone exchange or

(b) Within such distance as may be prescribed from any educational institution......"

16. See section 11(1) of the Factories Act, 1948.

17. It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.

Environment and the Indian Constitution

 

(Valsamma Paul, MA., LL.M., Applied Economics, University of Cochin.)

 

India is one of the very few countries of the world, which have enshrined in its Constitution a commitment to environmental protection and improvement. But the Constitution of India, as originally adopted in 1950, did not contain any definite provision for the protection of environment. However, one could locate an indirect reference in Article 47, which reads:

 

"The State shall regard the raising of the level of nutrition and the standard of Irving of its people and the improvement of public health as among its primary duties........"

 

For the improvement of public health, it is necessary that the State should be able to provide pollution - free environment.

 

It was in the year 1976, that it was thought necessary to make a direct provision for the protection of environment in the Constitution. This was done by the Forty-second amendment of the Constitution, effected in that year by the insertion of Articles 48 A and 51 A(g), which are reproduced below:--

 

Article 48 A:-"The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country".

 

Article 51A(g):—"It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures."

 

Thus the Constitution makes two-fold provisions. On the one hand, it gives directive to the State for the protection and improvement of environment. On the other hand, it casts on every citizen the duty of protecting and improving the natural environment.

 

The words 'protect' and 'improve' in Article 48A are very meaningful in the sense that the State is obligated not only to endeavour to preserve the environment but also to improve its quality. Article 48A provides a positive and dynamic connotation so that the State may deliberately take steps and impose restrictions on the use of resources, which adversely affect the environment. It further clarifies that the State is not forced to protect and improve the environment, but merely shall endeavour to do so [1].

 

It is true that Article 48 A is a directive principle and thus not enforceable through courts. Yet its directive character does not dilute its significance and the obligation of the State to protect and improve environment [2].

 

Environmental Legislative Powers

 

Article 246 of the Constitution deals with the subject matter of laws made by Parliament and the Legislatures of States. Parliament and the legislature of any State have exclusive powers to make laws with respect to any of the matters enumerated in List I (Union list) and List II (State list) in the seventh schedule to the Constitution respectively. Parliament and Legislature of any State have power to make laws with respect to any of the matters enumerated in List III (Concurrent list) of the said schedule.

 

Environmental legislative powers are available under all the three lists as below:--

 

List I - Union list

 

Entry 52 -- Industries

Entry 53 -- Regulation and development of oil fields and mineral resources.

Entry 54 -- Regulation of mines and mineral development.

Entry 56 -- Regulation and development of inter-State rivers and river valleys.

Entry 57 -- Fishing and fisheries beyond territorial waters.

 

List II-State list

 

Entry 6 -- Public health and sanitation

Entry 14 -- Agriculture, protection against pests and prevention of plant diseases.

Entry 17 -- Water, that is to say, water supplies, irrigation and canals.

Entry 18 -- Land, that is to say, rights in or over land.

Entry 21 -- Fisheries

Entry23 -- Regulation of mines and mineral development subject to the provisions of List I.

Entry 24 -- Industries, subject to provisions of List I.

Entry 25 -- Gas and gas-works.

 

List III - concurrentlist

 

Entry 17 A -- Forests

Entry 17 B -- Protection of wild animals and birds

Entry 20 -- Economic and social planning.

 

Thus, akin to other Federal States, India's national environmental policy must take shape within the context of divided jurisdiction between the Federal and State governments. In addition to the separate federal and State jurisdictions, there exists a concurrent list of legislative powers, which includes items such as population control and family planning, social welfare, regulation of industries, forests and the protection of wildlife and birds. The concurrent list appears to give superior power to the federal government, although State governments have executive authority over the management of these items [3].

 

It cannot be forgotten that entries in the three lists are liable to generate jurisdictional problems between the Central and the State governments. For example, regulation of inter-state transportation, shipping and navigation, exploration and extraction of mineral resources, and atomic energy fall within the jurisdiction of the Federal government. But the State governments have legislative authority for ownership, management and the use of natural resources such as water and land.

 

It goes without saying that the aforesaid provisions are wide enough to empower the government to do all that is necessary to do by legislative and administrative action to protect human environment. No doubt, Part IV of the Constitution, which refers to directive principles of State policy are not judicially enforceable. But Article 31C provides:--

 

"Not withstanding any contained in Article 13, no law giving effect to the policy of the State towards securing [all or any of the principles laid down in Part IV] shall be deemed to be void on the ground that it is inconsistent with, or takes away, or abridges any of the rights conferred by (Article 14 or Article 19) (and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy)".

 

Therefore, it is clear that environmental legislation designed to realize the objective mentioned above is immune from judicial attack on the ground of conflict with some fundamental rights included in Part III of the Constitution, so the governments can go ahead bravely along the path of churning out fruitful environmental legislation. But it equally needs to be realized that the laws do not possess self-propelling mechanism. If laws are not put into action, they remain dormant and bring justice to none [4].

 

Probably, no other Constitution makes specific provisions in regard to environmental pollution. The Constitution of India has taken the lead. It is hoped that with the backing of the Supreme Court and High Courts, the Constitutional imperatives will become meaningful in controlling environmental pollution. The trinity of State must make full effort to ensure cleaner environment - the legislature by enacting the laws, the executive by effective implementation of them and the judiciary by acting as a vigilant and meaningful watchman of both the legislature and the executive. At the same time, the citizens must realize that the surroundings belong to them and that they must keep them neat and clean. If the State and the citizens perform their respective Constitutional duties, the problem can be controlled largely, if not wholly.

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Footnotes:

1 Shekhar Singh. Environmental Policy in India (1984). p.50.

2 R.K. Sapru, Environment Management in India (Vol.1), (1987), p.76.

3 Supra, n.1, p.51.

4 Supra, n.2, p.65.