Hoteliers Association Of Andaman And Nicobar Islands And ANR. v. The Chief Secretary And ORS.

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR ] *** WPA/169/2021 Hoteliers Association of Andaman and Nicobar Islands and another ...

Petitioners Vs.

The Chief Secretary & others ...

Respondents Mrs.Anjili Nag, Advocate ... for the petitioners Mr.Kishna Rao, Advocate ... for the respondents September 20, 2021 [GNC] Item No.6 Raising an environmental issue more particularly the noise emitted from the diesel generator sets installed by the Administration to cater the supply of electricity to the islanders. The present writ petition is filed seeking a mandamus to implement the order dated 29th December, 2020 passed by the Sub-Divisional Magistrate.

A proceeding under section 133 of the Code of Criminal Procedure is initiated at the behest of the petitioners and by an order dated 29th December, 2020 the Superintending Engineer, Electricity Department, Andaman and Nicobar Administration, Port Blair was directed to take necessary steps to close the windows and doors and cover the wall with sound proof material to ensure that the sound is well within the permissible limit. Though the caption of the order is a conditional order but the

tenet thereof does not suggest to be so. There is a clear stipulation in the said order that the said diesel generator sets must be secured in such a way that it does not emit noise beyond the permissible limit.

Mr.Rao is very much vocal in his submission that the said order is not final as the Sub-Divisional Magistrate has kept the said proceeding pending. My endeavour has failed to find out from the said order that the spirit thereof suggest so. The matter was kept pending for the simple reason that if the order is not complied with within a time frame, the said authority would appear on a specified date and explain why the same has not been complied with.

The entire global is combating with the menace of the pollution more particularly the noise pollution which has greater impact on the human life. It is a paramount duty of the Administration to provide the pollution free atmosphere to citizens. The right to life enshrined in the Constitution does not mean the right of mere sustenance but engulfed within itself a right to quality life. Even if the proceeding has been initiated under section 133 of the Code of Criminal Procedure yet the basic right enshrined in the Constitution cannot be whittled down taking technical plea that once a proceeding has been initiated the petitioners cannot chose to move the other forum. Equally, I am not unmindful of the fact that the electricity is

generated through the diesel generator sets and the islanders are benefitted therefrom. The disruption and dismantling of diesel generator sets would have the larger impact on the inhabitants of the said island and the manner in which the first three prayers are couched in the writ petition cannot be entertained or sustained. However, I find that the Sub-Divisional Magistrate has passed an innocuous order considering the mitigating circumstances and the right of the inhabitants of the islands to have a pollution free atmosphere. There is no difficulty or fetter on the part of the Administration to take suitable steps to avoid the emission of the noise pollution and the technology has also developed in this regard.

Without venturing to go further this Court feels that it would be just and proper that the authorities should take steps as directed by the Sub-Divisional Magistrate, South Andaman. Accordingly, the writ petition is disposed of directing the Superintending Engineer, Electricity Department, Andaman and Nicobar Administration, Port Blair to take steps in terms of the order of the Sub-Divisional Magistrate passed on 29th December, 2020 within three months from the date of communication of this order.

There shall be no order as to costs.

( Harish Tandon, J. )