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case against MGM By Senior AAdvo care G. Rajagopal seek action against police officers

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IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Special Original Jurisdiction)

W.P. No. of 2024
G. Rajagopalan,
Senior Advocate
F – 3, Whispering Height,
132, St. Marys Road, Alwarpet,
Chennai – 600 018
… Petitioner
Vs.

  1. State of Tamilnadu
    Rep by its Secretary to Government,
    Home Department,
    Fort St. George, Chennai – 600 009
  2. The Commissioner of Police,
    Greater Chennai Police,
    No. 132, Commissioner Office Building,
    E.V.K. Sampath Road, Vepery,
    Chennai – 600 007
  3. Tamil Nadu Pollution Control Board,
    Rep by its Member Secretary,
    Corporate Office, TNPCB,
    No. 76, Mount Salai, Guindy,
    Chennai – 600 032
  4. Chennai Metropolitan Development Authority,
    Rep by its Member Secretary,
    Thalamuthu – Natrajan Maaligai,
    No.1, Gandhi Irwin Road, Egmore,
    Chennai – 600 008
  5. MGM Health Care Pvt. Ltd.,
    Rep by its Project Manager,
    New No. 72, Old No.54,
    Nelson Manickam Road, Aminjikarai,
    Chennai – 600 029
    … Respondents

AFFIDAVIT OF THE PETITIONER
I, G. Rajagopalan, Senior Advocate, S/o. Late Ganesa Iyer, aged about 64 years, residing at F – 3, Whispering Height, 132, St. Marys Road, Alwarpet, Chennai – 600 018 do hereby solemnly affirm and sincerely state as follows:

  1. I respectfully submit that I am a Senior Advocate practising before this Hon’ble Court as well as Supreme Court of India, I was enrolled as an Advocate in the year 1983 and was designated as a Senior Advocate in the year 2000 and I was the Additional Solicitor General of India between 2014 to 2020. I am seriously aggrieved by the action as well as inaction of the Respondents herein and hence filing the present Writ Petition praying for:
    a. A Writ of Mandamus directing the Respondents 1 – 4 to take action against 5th Respondent for seriously violating the Pollution norms while constructing their Hospital building at St Marys Road, Alwarpet, Chennai – 600 018.
    b. A Writ of Mandamus directing the 1st Respondent to take appropriate Disciplinary action against the Respondents 2 – 4 for their inaction in not taking any action against the 5th Respondent under the following circumstances.
  2. I respectfully submit that the 5th Respondent has undertaken the construction of a 10 floored Hospital on the western side about 150 metres from my residence and the Piling work commenced in the first week of July 2023. The noise created by the Piling operations were unbearable and the entire area was affected by the operations. There is a school adjoining the new construction building and several Residential Apartments and buildings and every one member of the area were seriously affected by the sound and vibration created by the Piling operation. Though I could have instituted this proceeding as a Public Interest Litigation on behalf of the entire community, since I am an aggrieved person myself, I have decided to file this Writ Petition in my individual capacity.
  3. I respectfully submit that I live in a building named Whispering Height, opposite to Raintree Hotel, St. Marys Road. 80% of occupants of the said building are all Senior Citizens aged about 70 years. Further I submit that my wife, aged about 61 years is an Accident victim and the right side of her face as well as a part of the right side of her body has been reconstructed and cannot withstand any serious sound or vibration created. My Office is also situated in the same building and on account of the Piling operations, I could not practically stay either in my office or in my residence as the Piling operations commence early in the morning and went beyond Midnight. In the circumstances, I sent a communication to the 5th Respondent i.e., MGM Healthcare Pvt. Ltd. dated 21.07.2023 objecting to the nature of sound created and also requested the 5th Respondent to follow the guidelines issued by this Hon’ble Court in a Judgment reported in 2002 (1) CTC 449 (Division Bench) wherein this Hon’ble Court had Injuncted the builder from proceeding with the Pile foundation on an account of serious vibrations created in the area. A copy of the communication sent by me along with the Judgment is enclosed herewith in the Typeset of papers.
  4. I respectfully submit that, in response to the communication sent by me in Mail as well as by Post, the 5th Respondent herein sent a communication dated 24.07.2023 and also met me in person and assured that the operations will be carried on without causing nuisance to the neighbourhood. The following undertaking were given by them dated 24.07.2023:
    i. The Boring Pile program will be completed in 3 months.
    ii. Heavy sound pile works will be restricted at night.
    iii. Concreting will have to be poured at night for construction.
    iv. We will make sure the disturbance to our neighbourhood is reduced considerably.
  5. In the circumstances, I avoided approaching this Court believing the statement made by the 5th Respondent. However, the sound and vibration increased day by day which necessitated me sending emails from time to time. For example, on 22.08.2023, I sent an Email complaining that the Drilling are being done upto 1AM in the morning and on 23.08.2023 the 5th Respondent assured that they would complete the Drilling work at the earliest as possible. A similar communication was sent on 31.08.2023 and an assurance was received on 01.09.2023. Since the Piling operations did not end after 3 months, a Mail was sent on 04.10.2023 for which a reply was sent by the 5th Respondent on 05.10.2023 stating that due to unexpected rain, the project got delayed and will complete the balance Pile work at the earliest possible. In response to their communication dated 05.10.2023, a reply was sent by me on 12.10.2023 which reads as follows:
    “Sir, you are not committing regarding the time frame for completion of Piling work. Your stand that the project was delayed due rain is not factually correct. Piling operations are going on without break over three months now. Even yesterday night the drilling was going on post 11:30PM and it resumed at 6:00AM. If the operations are going to proceed indefinitely, then don’t blame us if we take any action. Advice your contractor to complete it in a day or two. We are unable to bear the noise.”
  6. I respectfully submit that, thereafter a few representatives of the 5th Respondent came to my office and said that the entire Piling work would be completed by December and we were requested to bear for which I seriously objected. There were also a lot of complaints from the other residents of the building about the serious noise caused by the 5th Respondent. Infact the entire area has been complaining about this to various authorities from time to time since July 2023. Since the Piling operations did not stop even after December, I sent a representation to the 2nd, 3rd and 4th Respondent to take action in this matter. As far as the 2nd Respondent is concerned, it is the appropriate authority under the Noise Pollution (Regulation and Control) Rules, 2000 and who is bound to take action if the parameters are violated. Similarly, a representation was given to the Member Secretary of Tamil Nadu Pollution Control Board and as well as to the Member Secretary of Chennai Metropolitan Development Authority. Post the representation, no action was taken by Respondents 2 to 4 and the noise and vibration increased and the 5th Respondent were law onto themselves and not willing to bother about the Inconvenience caused to the entire area. In the circumstances, on 11.01.2024, a second representation was sent to the Commissioner of Police, the 2nd Respondent herein asking him to initiate action and also suggested an action to be initiated under Section – 133 of the Code of Criminal Procedure, 1973, under which action for abiding the nuisance can be initiated.
  7. I respectfully submit that though it is more than 2 weeks since the representations are given to the Respondents 2,3 and 4 and no action has been taken by them and it is impossible to stay in our residence, without any other alterative effect or remedy, I am approaching this Hon’ble Court for appropriate reliefs. I submit that approaching the National Green Tribunal in this case may not be adequate as the 2nd relief I seek in the present Writ Petition cannot be granted by the National Green Tribunal. In the circumstances, the Writ Petition is filed before this Court for following grounds:
    GROUNDS
  8. The 5th Respondent has no right to carry on the Piling operations violating the norms set out under the Noise Pollution (Regulation and Control) Rules, 2000. It is submitted that under the Schedule to the said rules, the Ambient Air Quality Standards have been prescribed and in respect of Residential area, it is 55 dB(A) Leq and 45 dB(A) Leq during the day and night time and the noise created exceeds above 100 during the day and night time thereby disturbing the Tranquillity of the entire area on an account of the action of the 5th Respondent, the entire area particularly me and the members of my family are seriously affected and are unable to sleep or work. I submit that on account of the fact that my wife’s face is reconstructed, she is frequently getting a headache because of the noise created by the 5th Respondent. The Respondents 2 – 4 should have taken action immediately upon the receipt of the representation and have been a silent spectator for over 7 months for the atrocities committed by the 5th Respondent. Hence the suitable directions are sought against the 5th Respondent.
  9. The Respondents 2 – 4 ought to have seen the law in this regard has been settled by a Division Bench of this Hon’ble Court reported in 2002 (1) CTC 449, and though it was brought to the notice of the authorities, no action has been taken in this regard. I have every reason to believe that the 5th Respondent is a very influential Hospital and has stage managed that no actions are taken against them. There has been a gross failure of duty on the part of the Respondent 2,3 & 4 and therefore, appropriate action should be taken against them also.
  10. I submit that I have a fair chance of success in the Writ Petition and if the 5th Respondent continue to operate in the same manner, serious prejudice would be caused to me and the members of my family and as well as to the other residents of the building and our rights under the Article – 21 are grossly violated. In the circumstances, I seek interim reliefs pending the disposal of the Writ Petition as follows:
    a. Injunction restraining the 5th Respondent, their men or agents in any way carrying out the Piling operations or any other operations in door no. St Marys Road between 6PM in the evening and 8AM in the morning.
    b. Injunction restraining the 5th Respondent from exceeding the Ambient Air Quality limit set out in Noise Pollution (Regulation and Control) Rules, 2000 during the day time, pending the disposal of the above Writ Petition.
  11. I respectfully submit that the authorities are bound to implement the law and cannot collude with the private parties to defeat the provisions of law. The representations sent by the citizens are not being respected at all by the officials and the time has come that a suitable Disciplinary action is taken against the officials who are not taking suitable actions within a reasonable time. The Respondents 2, 3 & 4 cannot plead innocence of the nature of activity which is going on in the area for more than 7 months and there is a gross neglection of duty on their part. There is a school situated in the adjoining premises of the premises in question and the Respondents are least bothered about the difficulties caused to the Children who are undergoing Education.
  12. In the circumstances stated above, the Petitioner prays that this Hon’ble Court may be pleased to:
    a. Issue a Writ of Mandamus or any other appropriate Writ or Order directing the Respondents 2 to 4 to take action against the 5th Respondent for violating the provisions of Noise Pollution (Regulation and Control) Rules, 2000 and other laws.
    b. Issue a Writ of Mandamus or any other appropriate Writ or Order directing the 1st Respondent to take action against the Respondents 2 – 4 for Dereliction of duty namely for not taking action against the 5th Respondent within a reasonable time.
    and pass such or other orders that this Hon’ble Court may deem fit and proper in the circumstances and thus render justice.
    BEFORE ME
    Solemnly affirmed at Chennai on
    this January 2024 and signed
    his name in my presence.
    ADVOCATE – CHENNAI

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