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1999 Supreme(Cal) 586
High Court Of Calcutta
S. B. SINHA, RONOJIT KUMAR MITRA
IN RE : BANNING OF MANUFACTURE OF FIRE WORKS. - Appellant
Versus
STATE - Respondent
C. O. 4303 (W) Of 1995
Decided On : 10/14/1999
B.MUKHERJEE, DEBATOSH KHAN, G.P.SHAW, GOUTAM MUKHERJI, J.BAGCHI, KALYAN CHAKRAVARTY, Laxmi Gupta, M.C.Das, P.K.DUTT, P.K.GHOSH, RANANJAY CHATTERJI, S.N.MUKHERJEE, SOUMENDRA GHOSH, T.Ghosh, V.Bhatia
The court has the power to make law and that the Pollution Control Board has the authority to regulate noise pollution.
Headnote:
FIRE WORKS - MANUFACTURE, STORAGE AND TRANSPORTATION - BANNING - VALIDITY - POLICE ACT, 1861 - SECTION 144 - INDIAN EXPLOSIVES ACT, 1884 - SECTION 5 - WEST BENGAL POLLUTION CONTROL BOARD - POWER TO REGULATE NOISE POLLUTION - AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 - SECTION 2(a) - ENVIRONMENT (PROTECTION) ACT, 1986 - SECTION 2(a) - COURT'S POWER TO MAKE LAW - FUNDAMENTAL RIGHT TO MANUFACTURE, SELL AND DEAL WITH FIRE WORKS - REASONABLE RESTRICTIONS - PUBLIC INTEREST - BALANCE OF CONVENIENCE.
Fact of the Case:
The West Bengal Pollution Control Board and the Commissioner of Police, Calcutta issued notifications and circulars banning the manufacture, storage, transportation, trading, sale, discharge, and use of fireworks generating noise levels above 65 decibels. The petitioners, manufacturers, and dealers of fireworks, challenged the validity of these notifications and circulars, arguing that they violated their fundamental right to manufacture, sell, and deal with fireworks and that the restrictions imposed were unreasonable and arbitrary.
Finding of the Court:
The court held that the petitioners did not have a fundamental or inherent right to manufacture, sell, and deal with fireworks that create sound beyond permissible limits. The court further held that the restrictions imposed by the notifications and circulars were reasonable and necessary to protect the public interest, considering the potential for devastating fires, accidents, and noise pollution caused by fireworks. The court also held that the court has the power to make law and that the Pollution Control Board had the authority to regulate noise pollution under the Air (Prevention and Control of Pollution) Act, 1981, and the Environment (Protection) Act, 1986.
Issues: 1. Whether the petitioners have a fundamental or inherent right to manufacture, sell, and deal with fireworks that create sound beyond permissible limits? 2. Whether the restrictions imposed by the notifications and circulars are reasonable and necessary to protect the public interest? 3. Whether the court has the power to make law? 4. Whether the Pollution Control Board has the authority to regulate noise pollution?
Ratio Decidendi: 1. The court held that the petitioners did not have a fundamental or inherent right to manufacture, sell, and deal with fireworks that create sound beyond permissible limits. The court reasoned that the right to manufacture, sell, and deal with fireworks is not a fundamental right guaranteed by the Constitution and that it can be reasonably restricted in the interest of public health, safety, and welfare. 2. The court held that the restrictions imposed by the notifications and circulars were reasonable and necessary to protect the public interest. The court considered the potential for devastating fires, accidents, and noise pollution caused by fireworks and found that the restrictions were necessary to prevent such harm. 3. The court held that the court has the power to make law. The court reasoned that the power to make law is inherent in the judicial function and that it is necessary for the court to be able to adapt the law to changing circumstances. 4. The court held that the Pollution Control Board has the authority to regulate noise pollution. The court reasoned that the Pollution Control Board is a statutory body created under the Air (Prevention and Control of Pollution) Act, 1981, and the Environment (Protection) Act, 1986, and that it has the power to regulate noise pollution under these statutes.
Final Decision: The court dismissed the petitions and upheld the validity of the notifications and circulars issued by the West Bengal Pollution Control Board and the Commissioner of Police, Calcutta.
( 1 ) AN application has been filed before this Court, on behalf of the Commissioner of Police and the Deputy Commissioner of Police, inter alia, for a direction upon the manufacturer of fire works banning, manufacture, storage and transportation of banned fire works within the State of West Bengal, Pradesh Adarshabadi Byabsayye Samity, Mridula Narula and Virendra Kumar Narula have also filed applications and/or affidavits wherein a prayer have been made for allowing them to transport the fire works manufactured by them to other States.
( 2 ) WITH a view to consider the prayers made in the respective applications, it is necessary to note the following fact.
( 3 ) A division bench of this Court in C. O. No. 4303 (W) of 1995 by an order dated 1-4-96 reported in (1996 (100) Cal WN 617) placed certain restrictions on the use of miscrophones and loudspeakers throughout the State of West Bengal under the Police Act. By reason of an order dated 30th September, 1996 Pollution Control Board was directed to take suitable measure "to stop creating sound pollution by any means other than the miscrophones such as user of electric air horn of public vehicles, fireworks and other sources of sound nuisance. "
( 4 ) ON or about 28-10-98 the Member Secretary, West Bengal Pollution Control Board by a Memo provided that the fire works generating a noise above 65 decibels in the ambient atmosphere would be unfit for manufacturing, trading and use. A writ petition was filed which was marked as writ petition No. 2725 of 1996 but a learned single Judge of this Court by an order dated 1-11-96 refused to pass an interim order. Thereafter a Notification was issued by the Commissioner of Police, Calcutta on 2-11-96 purportedly in conformity with the orders passed in C. O. No. 4303 (W) of 1995 prohibiting manufacture, possession, transportation, trading, sale, discharge and use of fire works generating noise level above 65 db.
( 5 ) ON or about 19-3-97 this Court also passed an order relating to monitoring of use of microphones, air-horns and banned fireworks in the said C. O. No. 4303 (W) of 1995. On or about 7-5-97 this Court directed that no permission should be given by the police authorities for manufacturing sound making crackers and other fire works and no licence should be granted without obtaining permission from the Pollution Control Board. However, an application for modification was filed by the manufacturer of fire works and by an order dated 23-5-97, the order dated 7-5-97 was modified stating :-"by our order dated 7th May, 1997 on the basis of a Report submitted by the police authorities we observed that by putting a simple level that "not for Sale in West Bengal", would not serve the purpose as there is very chance of the packages and the stocks being diverted in the State of West Bengal for use. It was directed that a constant check is necessary for the purpose of ascertaining the correct position so that no such fire works are manufactured or stored or sold to be used in the State of West Bengal. Accordingly on the prayer made by Mr. Kapoor it is made clear that the manufacturing of fire works is banned for the purpose of using it in the State of West Bengal but it can be sold to outside West Bengal. It can also be manufactured for the purpose of export outside the State of West Bengal and for that purpose Mr. Kapoor on behalf of his client undertakes that the entire production of fire works is exported putting a level on the same and maintaining a register of manufacturers and name of the person to whom it is sold and exported outside the West Bengal so that the same can be verified if any occasion arises. The police authorities shall have the liberty to ensure that none of the banned fire works are sold within the State of West Bengal but are in fact being sold outside the State of West Bengal. The West Bengal Pollution Control Board and the police authorities are directed to see that the order passed by this
