Silent zones: Chief Justice transfers matter to another bench after govt says judge harbours ‘serious bias’ against state machinery

On August 10, the Union of India issued a notification amending the Noise Pollution Rules, 2000. Under the amendment, the state government must declare areas as silence zones. The Maharashtra government held subsequently that until such an exercise is carried out, no ‘deemed silence zones’ would be in operation.

Written by Ruhi Bhasin | Mumbai | Published: August 25, 2017 1:23:52 am
bombay high court, indian express The Bombay High Court. (Files)

A day after a Bombay High Court bench headed by Justice A S Oka expressed its “prima facie” opinion against the state government’s view that no silence zones are currently operational in Maharashtra following amendment of the Noise Pollution Rules, Chief Justice Manjula Chellur Thursday transferred the matter to another bench after the state government claimed Justice Oka harboured a “serious bias” against the state machinery in relation to the matter.

On August 10, the Union of India issued a notification amending the Noise Pollution Rules, 2000. Under the amendment, the state government must declare areas as silence zones. The state government held subsequently that until such an exercise is carried out, no ‘deemed silence zones’ would be in operation.

On Wednesday, the bench said it prima facie did not agree with the state’s arguments and that existing silence zones would continue to be operational until previous orders passed by the court are modified to this effect.

Advocate General A Kumbhakoni argued against this and sought time till Thursday to continue proceedings in the matter. On Thursday, however, he tendered an application seeking that the matter be assigned to a bench on which Justice Oka is not a member. Drafted on instructions of Deputy Secretary (Home department) Vijay Patil, the application states: “It is humbly submitted that during the course of hearing Justice A S Oka has expressed such views which clearly demonstrate that the Honourable Judge is biased in subject matter of these petitions.”

The application referred to an affidavit by Awaaz Foundation saying no loudspeakers were used during the Dahi Handi festivities in Mumbai barring two cases. It also referred to newspaper reports that noise pollution was well under control during this year’s Dahi Handi. The application said the Judge had still remarked that there was hardly any compliance by the state machinery to the court’s order.

“These and such other aspects of the matter in general demonstrate that the Honourable Judge is somehow harbouring a serious bias in the subject matter of these petitioners against the state machinery. It is therefore prayed in the interest of fairness and justice that the matter be assigned to one and same Bench of this court of which the Honourable Judge referred is not a member,” reads the application.

When Advocate General Kumbhakoni informed the division bench of Justices A S Oka and Riyaz Chagla about the application, the bench expressed shock and said it does not intend to recuse itself from hearing the matter. “We are really shocked with the contents of the application. There is specific allegation against me that I am biased against the state government. But we won’t get provoked by such allegations,” Justice Oka said. “I will not recuse myself from hearing the petitions just because the government is levelling allegations against me,” he said.

The bench then directed the government to approach the Chief Justice and obtain an order on its application.
In the afternoon session, when the matter was called out, Justice Oka said, “All the matters have been transferred. We were told by the judicial registrar that the Chief Justice has passed the transfer order even before our order was placed before her.”

The petitions will now be placed before a division bench of Justices Anoop Mohta and G S Kulkarni. “This is the first time such allegations have been levelled against me in 14 years of my career,” said Justice A S Oka.

Justice Oka has been hearing a bunch of petitions relating to noise pollution rules. In 2016, he had passed an order saying an area of not less than 100 metres around hospitals, educational institutions and courts constitutes a silence zone and that no specific declaration to this effect was necessary. On Wednesday, he sought for silence zones to continue to be applicable through the festival season beginning with Ganpati on Friday He asked the state government to consider the same if it wanted to take a “fair stand” in the matter.

Other lawyers appearing for the petitioners, meanwhile, said the state’s application was malafide and that an attempt was being made to allow noise through use of loudspeakers during the Ganpati festival. Ganesh festivals, backed by various political parties, have petitioned the state government to relax noise pollution rules for the festival this year and also sought permission for loudspeakers within silence zones. In July, the state government had referred the matter to the Centre.

Meanwhile, the Bombay High Court was informed in July that representatives of Ganesh mandals had met Chief Minister Devendra Fadnavis. The mandals were seeking relaxation of the rules as 80 per cent of their venues fall in silence zones where the HC had banned use of loudspeakers through an order issued last year. Having heard the submissions, Justice Oka had said the government would face implications for non-compliance of court orders relating to noise pollution especially as the apex court had also confirmed High Court orders in this regard.

Chronology

August 17: The state government submits an affidavit informing the court about the amendment in Noise Pollution Rules, 2000 by the Union of India on August 10. According to the amendment, no area will be earmarked as a ‘silence zone’ until the government notifies it as one.

August 22: The state government clarifies its stand before a division bench headed by Justice A S Oka. Advocate General A Kumbhakoni says there are, for now, no “deemed silence zones” following the amendment in rules.

August 22: A petition challenging the amendment to the noise pollution rules is filed before another bench. The Centre seeks time to file its reply in the matter.

August 23: A Bench headed by Justice A S Oka says it does not agree with the state government’s contention that the court’s order previous relating to silence zones does not apply any more following amendment of the rules.

August 24: Govt submits an application seeking transfer of all matters relating to noise pollution to another bench claiming that Justice A S Oka is “harbouring serious bias” against the state. Chief Justice transfers matters to another bench.

Justice Oka’s observations on state govt on various matters

– In May 2016, the Bombay High Court upheld the ban on slaughter of beef in Maharashtra while allowing people to consume beef imported from other states. Justice A S Oka observed that a ban on imported beef was “an infringement of right of privacy, which is a fundamental right.” The Maharashtra government then approached the Supreme Court to appeal against the order.

– The Bombay High Court on January 28 this year declined permission to the state government to hold ‘Maharashtra Night’ on February 14 on the Girgaum Chowpatty beach-front. A division bench headed by Justice A S Oka observed that “it was not necessary to elaborate the adverse effects of such a large gathering on the beach”. The Supreme Court later gave the state government a nod for the event.

– In March 2017, terming the draft regularisation policy of the state government for unauthorised structures as “illegal,” a bench headed by Justice A S Oka rejected the policy that sought to regularise all illegal structures built prior to December 31, 2015. This was the second such draft regularisation policy that was rejected by the court in the past year.

ruhi.bhasin@expressindia.com

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