BHAGABATI PROSAD BANERJEE, J. - (1.) This matter was assigned by the Hon'ble Chief Justice before this Bench. The writ application has been filed by Moulana Mufti Syed. Md. Noorur Rehman Barkati, Imam and Khatib, Tipu Sultan Shahi Masjid, Dharamtala and Chairman Gharib Nawaz Educational and Charitable Society, Calcutta and eight others for a declaration that Rule 3 of the Environmental (Protection) Rules, 1986 vis a vis Schedule III of the said Rule do not apply in case of Mosques more particularly at the time of call of Azan from the Mosques and for the further declaration that Schedule III of the Environmental (Protection) Rules, 1986 is ultra vires Articles 14 and 25 of the Constitution. The petitioners also prayed for withdrawal of all conditions and restrictions which were notified by the Police and other authorities pursuant to the order passed in the case of Om Birangana Religious Society v. State, reported in 100 CWN 617. .
(2.) By the Judgment dated 1st of April, 1996, certain restrictions and conditions on the use of microphones in the State of West Bengal were imposed. One of the important conditions that was laid down was that there will be no user of any microphones between 9 p.m. to 7 a.m. except by the public authorities for discharging their emergent public duties and/or obligations and that the West Bengal Pollution Central Board was directed to maintain noise level register indicating the level of noise which could be permitted by use of microphones on any occasion or in any area. It was also directed that (i) The District Magistrate and other Officers would issue permission for use of microphone/loud-speaker subject to conditions and restrictions imposed by the West Bengal Pollution Control Board, and (ii) the person or persons or any business houses dealing with or letting or parting with or selling microphones/loud-speakers, shall be bound to seal the volume of the noise level according to the directions of the Pollution Control Board before letting or parting with or selling such apparatus for any purpose and in default thereof, they should not be premitted to deal with such items. So far as use of microphones and/or loud-speakers by any religious society or at any religious function is concerned, it could be used solely for the purpose of communicating the speeches and religious teachings and tenets to the persons who have attended such functions and it should not be operated in such a manner so as to give reasonable cause for annoyance to any persons in the vicinity. So far as public meeting is concerned, the same was directed to be use in such a manner and with such a volume which could not exceed the level fixed up by the Pollution Control Board which should be treated as registered level and that the volume should be regulated in such a manner so that it may reach all persons who joined the meeting in a particular area but not beyond that particular area, and it should not be operated in such a manner so as to give reasonable cause of annoyance to the persons in the vicinity. .
(3.) In this writ application, the petitioners case is that Namaz is the second pillar of Islam and occupies a permanent position among the practical duties of the Muslims. Muslims offer obligatory prayers in congregation in Mosques five times a day and offer prayer in common (Jammat) to isolated prayers. Azan is essential for all obligatory prayers and is called by Muezzin in loud voice to summon all Believers in Islam to prayers. .;