( 1 ) THE petitioners, engaged in the business of manufacturing Diesel Generators (hereinafter referred to as DG Set) which are being sold and used in India, have prayed for issuance of a writ, order or direction in the nature of certiorari, inter alia, to quash Rule 2 (c) of the Environment (Protection) Second Amendment Rules, 2002 contained in the notification dated 17. 5. 2002 published in Extra Ordinary gazette Part-II.

( 2 ) THE Competent Authority in exercise of powers conferred by Sections 6 and 25 of the Environment (Protection) Act, 1986 (hereinafter referred to as the Act) made the rules known as The Environment (Protection) Rules, 1986 (hereinafter referred to as the Rules ). By the aforesaid notification in exercise of the powers conferred under Sections 6 and 25 of the Act the Rule making authority, made the rules, known as The Environment (Protection) Second Amendment Rules, 2002 (hereinafter referred to as the Amended Rules ). By the said amendment, noise limit of generator sets run with diesel came to be re-determined or fixed. Relevant part of Clause (1) of Entry 94 as inserted by the aforesaid Amended rules reads as under:- noise limit for diesel generator sets (upto 1000 KVA) manufactured on or after the 1st July, 2003. The maximum permissible sound pressure level for new diesel generator (DG) sets with rated capacity upto 1000 KVA, manufactured on or after the 1st July, 2003 shall be 75 db (A) at 1 metre from the enclosure surface. The diesel generator sets should be provided with integral acoustic enclosure at the manufacturing stage itself. The implementation of noise limit for these diesel generator sets shall be regulated as given in paragraph 3 below.

( 3 ) READING the Amended Rules, it is clear that the noise from diesel generator set must be controlled by providing an acoustic enclosure or by treating acoustically at the manufacturing stage. The limits are to be regulated by the State Pollution Control boards and the State Pollution Control Committees. Amended Rule 3. 1 refers to diesel generator sets upto 1000 KVA rated out put, manufactured or imported in India on or after 1st July, 2003. Rule 3. 2 mandates every manufacturer to have a valid certificate. Agencies for certification are also appointed by Rule 3. 6.

( 4 ) LEARNED counsel for the petitioners submitted that rules are violative of the provisions contained in Articles 14, 19 and 21 of the Constitution of India in so far as it fixes standard noise limit of 75 db (A) for all diesel generator sets up to 1000 KVA irrespective of location for use and capacity. The duty to provide integral acoustic enclosure for these generator sets upon the manufacturers is also violative of the fundamental rights, as aforesaid. It was further submitted that Section 7 of the Act prohibits emission or discharge of environmental pollutants in excess of the standards. Section 7 of the Act reads as under:- No person carrying on any industry, operation or process shall discharge or emit or permit to be discharged or emitted any environmental pollutant in excess of such standards as may be prescribed.

( 5 ) ACCORDING to learned counsel for the petitioners, this section would come into play only when diesel generator sets are put to use and not before that. It is open, according to learned counsel for the petitioners, for a consumer to purchase a generator set and it is for him to use the same in such a way which may not exceed the noise level prescribed. He may purchase the accessories from the market or may prepare himself and use the same so as to reduce the noise level so as to bring the same as per standard. If the consumer is not providing acoustic enclosure or such other device to the D. G. Set so as to bring the noise level within the permissible limits, then its use by a consumer is prohibited. According to the submission made by learned counsel for the petitioners, possession of diesel generator set without acoustic enclosure is not prohibit