The power under Article 226 cannot be used to act against the statutory prohibition.

The prayer in the writ petition is to quash part of the order in Ext.P2 rejecting the request for use of loud speaker from 6 p.m. on 29.1.2005 to 6 a.m. on 1.2.2005 on the occasion of the annual Theyyam Festival. The further prayer is for directing the second respondent to grant permission for using loud speakers from 6 p.m. on 29.1.2005 to 6 a.m. of 1.2.2005.

2. The complaint of the petitioner is that Theyyam is performed in a remote village area and all the people who are the devotees without any objection wanted the loud speaker to be used for conveniently enjoying the cultural programmes apart from hearing the Thottampattu and Drum beating. It is stated that this year programmes are consisting of Mimics, Ganamela and Opera of Adhimuthachan to be performed by Thiruvithankoor Nadakavethy, Kottayam. Ext.P1 is the programme notice. Learned counsel for the petitioner submits that Ext.P2 application was made for permission only for three days to the second respondent through the third respondent and the third respondent rejected the application. Learned counsel for the petitioner relies on the decision reported in Forum for the Prevention of Environmental and Sound Pollution v. Union of India (2004(1) K.L.T. 134) to contend that the Government has ample power to grant permit for using loud speaker during night hours for a limited period and purposes. Learned counsel for the petitioner would further contend that the order is non-speaking and he would also rely on Rule 5(1) and (3) of the Noise Pollution (Regulation and Control) Rules, 2000. Learned counsel contends that the Government has power under sub-rule (3) to permit the use of loud speakers in the night hours on or during any cultural or religious occasion of a limited duration not exceeding 15 days in all during a calendar year. A perusal of Rule 5 of the Rules will show that the contention of the petitioner cannot be accepted. Sub-rule (1) of Rule 5 makes it clear that the loud speaker or a public address system shall not be used except after obtaining written permission from the authority. Sub-rule (2) casts an embargo against the use of loud speaker during night, which is shown in the statute itself as 10 p.m. to 6 a.m. except in the cases of closed premises for communication. Examples are given, namely, auditorium conference rooms, community halls and banquet halls. Sub-rule (3) no doubt acts as a proviso to sub-rule (2). This if for the reason that despite the embargo against the use of loud speaker during night, that is, between 10 p.m. and 6 a.m. power is vested with the State Government to permit use of loud speakers during night hours which is confined to 10 p.m. to 12 midnight on or during any cultural or religious occasion of a limited duration not exceeding fifteen days. The contention of the learned counsel for the petitioner would appear to be that since the word ‘or’ is used in sub-rule (3), it means that night hours as defined as 10 p.m. to 12 midnight need not necessarily limit the power in respect of a cultural or a religious occasion. This argument has only to be reject for, it is clear that the power to relax the rigour of sub-rule (2) is available to the State Government only in respect of a cultural or religious occasion of a limited duration not exceeding 15 days and it is in respect of such a cultural or religious occasion that Government has power to relax the limitation embedded in sub-rule (2) against the use of loud speaker or public address system during night. In other words, the relaxation of the embargo in sub-rule (2) is limited to 10 p.m. and 12 midnight and that too for a period of 15 days in a calendar year. To put it differently, the right to use loud speaker or a public address system cannot be given under the Rules for use beyond 12’o clock in the night even on a religious or cultural occasion. If that be so, the contention of the petitioner that the petitioner is entitled to use the loud speaker beyond 12’o clock in the n