( 1 ) TWO matters were heard together. One is an application filed by Mohan Fire Works and Chandan Golcha carrying on the business under the name and style of Chandan Mal Golcha for addition of party respondents in the disposed of Writ Application in C. O. No. 4303 (W) of 1995 with a prayer for stay of the operation of the Memo No. 1039 dated 28th October, 1996 as well as Police Notification dated 2nd November, 1996 and to permit or allow manufacture, sell, dealing and/or trading and storing of fire works without any restriction and also to permit or allow bursting of fire works/caters of less than 90 db at 5 kilo metre distance from the site of bursting without any restriction whatsoever. The other one is a writ application filed by Burrabazar Fire Works Dealers' Association against the imposition of ban on certain items of noisy fire works on the ground that the same violates the fundamental rights of the fire works Dealers to carry on trade and business guaranteed under Article 19 (1) (g) of the Constitution of India.

( 2 ) ). As the same questions of fact and law involved, two cases were heard together and disposed of by a judgment. Though there is no scope for addition of party respondent in a disposed of writ application as the matter is heard along with another independent matter without formally adding them parties, their counsels were heard at length on the basis of the facts, figures and the law on the subject as the matter is of great public importance.

( 3 ) MR. S. K. Kapoor with Mr. Debol Banerjee appeared for the applicant Mohan Fire Works and Mr. Sakti Nath Mukherjee appeared for the writ petitioner Burrabazar Fire Works Dealers' Association.

( 4 ) IT was a contention of the learned Counsel appearing for the parties, is that neither the Pollution Control Board nor the Commissioner of Police have any authority and jurisdiction under the law to impose such a restriction or condition and that by imposing such ban on 3 manufacture, sell or use of certain items of fire works, their fundamental right to carry on trade or business guaranteed under Article 19 (1) (g) of the Constitution have been affected. The ban on certain items of fire works which were generating tremendous sound was stopped pursuant to a direction passed by this Court on 30th September, 1996 is to the following extent :"we also direct the Pollution Control Board to take suitable measures to stop creating sound pollution by means other than the microphones, such as user of electric, air horn in public vehicles, fire works and other sources of sound nuisance. The Police Authorities should also perform their duties in this connection for the purpose of controlling the sound pollution in the State with active collaboration and co-operation with the Pollution Control Board. "

( 5 ) THIS direction was issued by this Court in the background and in connection with the judgment of this Court in the case of Om Biraugana Religious Society v. State, reported in (1996) 100 Cal WN 617, where this Court explained the provision of Article 19 (1) (a) of the Constitution of India and it was held that within the scope and ambit of the provisions of Article 19 (1) (a) of the Constitution of India which provides Fundamental Rights of Citizens to Freedom of Speech and Expression and this right was only subject to restriction impossible under Article 19 (2) of the Constitution. It was held that freedom of speech and expression guaranteed under Article 19 (1) (a) of the Constitution of India by necessary implication, includes right not to listen and/or to remain silent. This right includes right to leisure, right to sleep, right to read and speak with others and even right to worship in his own way and that it was been held that sound is a known source of pollution and by means of sound through loud-speaker or others, citizens cannot be made captive listeners and which forced to hear something which his body or system cannot hear and which he does not like to hear or li

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