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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. OKA, ANOOP V. MOHTA, RIYAZ I. CHAGLA, JJ.
Ajay Marathe & Another - Petitioners
Versus
Union of India & Others - Respondents
Public Interest Litigation Stamp No. 24110 of 2017 with Writ Petition No. 9508 of 2017
Decided On : 01-09-2017
The impugned Rules, which sought to amend the Noise Pollution (Regulation and Control) Rules, 2000 (Principal Rules), were challenged on the grounds that they were ultra vires the provisions of the Environment (Protection) Act, 1986 (1986 Act) and the Environment (Protection) Rules, 1986 (1986 Rules), and that they violated the fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India.
Fact of the Case:
The Principal Rules were enacted under Clause (ii) of Sub-Section 2 of Section 3, Sub-Section 1 and Clause (b) of Sub-Section 2 of Section 6 and Section 25 of the 1986 Act read with Rule 5 of the 1986 Rules. The impugned Rules were brought into force by a notification dated 10th August 2017. The main contention of the petitioners was that the impugned Rules had the effect of taking away the basis of the Judgment and Order of the Court dated 10/11/12 and 16th August 2016 in P.I.L No.173 of 2010 and other connected petitions (Dr. Mahesh Bedekar vs. State of Maharashtra and others) (2016 SCC OnLine BOM 9422), which had attained finality as a Special Leave Petition filed by the State of Maharashtra against the said decision had been dismissed.
Finding of the Court:
The Court held that the impugned Rules were ex-facie unconstitutional and violative of the fundamental rights guaranteed under Article 21 of the Constitution of India. The Court found that the impugned Rules purported to exercise the power of imposing restrictions and prohibition under Rule 5 of the 1986 Rules by taking recourse to the rule-making power under the 1985 Act. However, the Court noted that there was no specific order passed by any authority of the Central Government dispensing with the requirement of notice by exercising power under Sub-rule 4 of Rule 5 of the 1986 Rules. The Court also held that the exercise of power was manifestly unreasonable and arbitrary as there was no prior publication made as required by clause (a) of Sub-Rule 3 of Rule 5 of the 1986 Rules.
Issues: 1. Whether the impugned Rules were ultra vires the provisions of the 1986 Act and the 1986 Rules? 2. Whether the impugned Rules violated the fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India?
Ratio Decidendi: 1. The Court held that the impugned Rules were ultra vires the provisions of the 1986 Act and the 1986 Rules as they purported to exercise the power of imposing restrictions and prohibition under Rule 5 of the 1986 Rules by taking recourse to the rule-making power under the 1985 Act, without following the procedure laid down in Rule 5 of the 1986 Rules. 2. The Court held that the impugned Rules violated the fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India as they were manifestly unreasonable and arbitrary, and there was no prior publication made as required by clause (a) of Sub-Rule 3 of Rule 5 of the 1986 Rules.
Final Decision: The Court granted ad-interim relief in terms of prayer clause (c) of Writ Petition No.9508 of 2017, staying the operation of the impugned Rules. The Court also declined to grant a stay of its order, but clarified that for a period of four weeks from the date of the order, there would be no prosecutions for violation of Rule 6 of the Principal Rules on the basis of incidents taking place from that date.
JUDGMENT :
A.S. Oka, J.
1. As per the administrative order passed by the Hon'ble Chief Justice by exercising powers under Rule 7 of the Bombay High Court Appellate Side Rules, 1960, these two petitions have been placed for disposal before this Bench and accordingly, as per the directions of the Hon'ble the Chief Justice issued on 27th August 2017, these petitions were listed before this Bench on 28th August 2017. On 29th August 2017 and today, we have heard the submissions of the learned Counsel appearing for the parties.
2. The challenge in these two petitions is to the validity of the notification dated 10th August 2017. By the said notification, the Noise Pollution (Regulation and Control) Amendment Rules, 2017 (hereinafter referred to as the “impugned Rules”) were brought into force by which the Noise Pollution (Regulation and Control) Rules 2000 (for short, “the Principal Rules”) have been amended. Considering the various contentions raised across the bar, we find that many important questions arise which are required to be finally decided. Hence, we issue Rule. The concerned Respondents waive service. Issue notice to the learned Attorney General of India, returnable on 6th October 2017, when these petitions will be fixed before this Bench for fixing a date for hearing.
3. We have heard the learned Counsel representing the rival parties at considerable length on the question of grant of interim reliefs. Civil Application (Stamp) No. 2472 of 2015 has been taken out by the applicants for intervention in P.I.L No. 24110 of 2017. The learned Counsel appearing for the applicants submitted that instead of filing a separate petition for challenging the impugned Rules, the applicants be ordered to be added as respondents. No party has challenged the locus of the applicants to make such an application. Accordingly, we allow the application in terms of prayer clause (a) and direct the petitioners in P.I.L to carry out amendment within a period of one week from the date on which this order is uploaded.
OVERVIEW AND BACKGROUND
4. Before making a brief reference to the submissions canvassed across the Bar, we must indicate the nature of the challenge. The Principal Rules were brought into force with effect from 14th February 2000. For framing the Principal Rules, a power has been exercised by the Central Government under Clause (ii) of Sub-Section (2) of Section 3, Sub-Section (1) and clause (b) of Sub-Section (2) of Section 6 and Section 25 of the Environment (Protection) Act, 1986 (for short, “1986 Act”) read with Rule 5 of the Environment (Protection) Rules 1986 (in short, “1986 Rules”). The relevant provisions of the unamended Principal Rules and the Schedule read thus:
“3. Ambient air quality standards in respect of noise for different areas/ zones.—
(1) The ambient air quality standards in respect of noise for different areas/zones shall be such as specified in the Schedule annexed to these rules.
(2) The State Government1 [shall categorize] the areas into industrial, commercial, residential or silence areas/zones for the purpose of implementation of noise standards for different areas.
(3) The State Government shall take measures for abatement of noise including noise emanating from vehicular movements and ensure that the existing noise levels do not exceed the ambient air quality standards specified under these rules.
(4) All development authorities, local bodies and other authorities concerned while planning developmental activity or carrying out functions relating to town and country planning shall take into consideration all aspects of noise pollution as a parameter of quality of life to avoid noise menace and to achieve the objective of maintaining the ambient air quality standards in respect of noise.
(5) An area comprising not less than 100 metres around hospitals, educational institutions and courts may be declared as silence
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