Bombay High Court
Mahesh Vijay Bedekar vs The State Of Maharashtra And Ors on 29 August, 2017
Bench: A.S. Oka
sng 1 pil-173.10-connectedmatters (1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
PUBLIC INTEREST LITIGATION NO.173 OF 2010
WITH
CIVIL APPLICATION NO.124 OF 2014
IN
PUBLIC INTEREST LITIGATION NO.173 OF 2010
WITH
CIVIL APPLICATION (ST) NO.18174 OF 2016
IN
PUBLIC INTEREST LITIGATION NO.173 OF 2010
Dr.Mahesh Vijay Bedekar ...Petitioner
V/s.
The State of Maharashtra and ors. ...Respondents
-
WITH
CONTEMPT PETITION NO.123 OF 2017
Dr.Taramati S. Pathak. .. Petitioner
Vs
Shri S.Babar, Sr. Inspector of Police and Ors. .. Respondents
-
WITH
CONTEMPT PETITION ST. NO.11339 OF 2017
WITH
CONTEMPT PETITION ST.NO. 35443 OF 2016
Hirali Foundation,
Through its Secretary & Trustee
Mrs.Sarita P. Khanchandani. .. Petitioner
Vs
Smt. Vijaya Kanthe,
Additional Municipal Commissioner & Others. .. Respondents
-
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sng 2 pil-173.10-connectedmatters (1)
CONTEMPT PETITION ST. NO.22665 OF 2017
Reena Richard .. Petitioner
Vs
The State of Maharashtra,
Through its Secretary and Others. .. Respondents
-
CONTEMPT PETITION ST. NO.24393 OF 2017
Ganpati Chawk Mitra Mandal,
Through its Vice President. .. Petitioner
Vs
the State of Maharashtra and Others. .. Respondents
-
PIL/173/2010 A/W CAIST/22565/2016 AND CAI/5/2017
Mr. S.M.Gorwadkar, Sr. Counsel I/b Mr. Sanjay H. Gangal for Petr.
Mr. A.A.Kumbhakoni, A.G. a/w Mr. A.B. Vagyani, G.P. and Mr.Manish
Pabale, A.G.P. & Mr. Akshay Shinde and Mr. R.S. Sawant, Asstt. AGP and
Ms. G.R. Golatkar, Asstt.AGP for R.Nos. 1(A) to 1(D)
Dr. Sadhna Mahashabde for R. No. 1(E)
Mr. D.A.Dube & Mr. Upendra Lokegaonkar for R. No.3
Mr. A.Y.Sakhare, Sr. Counsel a/w Mr. J.J. Xavier, Mrs. Vidya Gharpure &
Mr. Vinod Mahadik for Respondent No.11
Mr. Abhijit P. Kulkarni for R. No.14
Mr. Nikhil Chavan for Respondent No. 26
Mr. R.S.Apte, Sr. Counsel i/b Mr. N.R.Bubna for R.No. 2 & 16
Mr. Nitin Gangal for Respondent No . 5
Mr. Pramod G. Kathane for Respondent No. 9 & 17
Mr. A.S. Rao a/w Mr. Prashant Kamble for R. No.13
Mr. A.V. Anturkar, Sr. Counsel I/b Ms. Kalyani Tulankar for Intervener
Mr. N.P. Deshpande for M.P.C.B.
Ms. Priyanka Varavdekar for Amravati and Nagpur Municipal
Corporation
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CP/123/2017
Ms. Sucheta Dattatray Ghaisas for petitioner.
Mr. A.A.Kumbhakoni, A.G. a/w Mr. A.B. Vagyani, G.P. and Mr.Manish
Pabale, A.G.P. & Mr. Akshay Shinde and Mr. R.S. Sawant, Asstt. AGP and
Ms. G.R. Golatkar, Asstt.AGP for state
CPST/11339/2017
Mr. S.M. Gorwadkar a/w Mrs. Sana Yusuf Baugwala for Petitioner
Mr. A.S. Rao and Mr. Prashant Kamble for R. Nos. 2 & 7
CPST/35443/2016
Mrs. Sana Yusuf Baugwala for petitioner,
Mr. Nikhil Chavan for R. No.1
Mr. Nitin P. Deshpane for R. No.5
-
CPST/22665/2017
Ms. Reena Richard Petitioner in person
Mr. A.A.Kumbhakoni, A.G. a/w Mr. A.B. Vagyani, G.P. and Mr.Manish
Pabale, A.G.P. & Mr. Akshay Shinde and Mr. R.S. Sawant, Asstt. AGP and
Ms. G.R. Golatkar, Asstt.AGP for Respondent No.1
--
CPST/24393/2017
Mr. Abhijit Tikar for petitioner
Mr. A.A.Kumbhakoni, A.G. a/w Mr. A.B. Vagyani, G.P. and Mr.Manish
Pabale, A.G.P. & Mr. Akshay Shinde and Mr. R.S. Sawant, Asstt. AGP and
Ms. G.R. Golatkar, Asstt.AGP for Respondent No.1, 3,4 & 5
Mr. A.P. Kulkarni for R.No.2
--
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WITH
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO.85 OF 2007
Awaaz Foundation and another .. Petitioners
vs.
State of Maharashtra and others .. Respondents
--
PUBLIC INTEREST LITIGATION NO.74 OF 2007
WITH
NOTICE OF MOTION NO.118 OF 2010
WITH
PUBLIC INTEREST LITIGATION NO.83 OF 2010
Society for Fast Justice and Anr. ...Petitioners
V/s.
The State of Maharashtra & Ors. ...Respondents
--
WITH
WRIT PETITION NO.2053 OF 2003
Dr. Yeshwant Trimbak Oke & Ors ... Petitioners.
V/s
Union of India & Ors. ... Respondents.
-
WITH
WRIT PETITION NO.1503 OF 2005
A. P. Lewis ...Petitioner
V/s.
Union of India and Anr. ...Respondents
--
Shri A.A. Kumbhakoni, Senior Counsel along with Ms. Uma Palsule-
Desai, AGP for the State.
-
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WITH
WRIT PETITION NO.357 OF 2003
H.S.D'Lima ...Petitioner
V/s.
State of Maharashtra & Ors. ...Respondents
-
PIL/85/2007
Dr. Birendra Saraf a/w Mr. Rohan Cama & Mr. Shanay Shah, a/w Mr.
Ishwar Nankani a/w Ms. Gauri Memon, i/b. Nankani & Associates for
Petitioners
Mr. A.A.Kumbhakoni, AG a/w Ms Uma Palsule-Desai, AGP for
Respondent no. 1 State
Mr. A.Y.Sakhare, Sr. Counsel a/w Mr. J.J.Xavier, Mr. Vinod Mahadik &
Ms. Sharmila Modle for respondent No. 5 BMC
Mr. Upendra Lokegaonkar i/b Mr. N.R.Prajapati for Respondent UOI
Ms. Kiran Bagalia for respondent no. 4
Ms.Sadhna Mahashabde for Respondent No.2
WP/357/2003
Mr. Sagar Rane for petitioner in WP/357/2003
Mr.A.A.Kumbhakoni, AG a/w Ms Uma Palsule-Desai, AGP for
Respondent no. 1 State
WP 2053/03
Dr. Birendra Saraf a/w Mr. Rohan Cama & Mr. Shanay Shah a/w Mr.
Ishwar Nankani a/w Ms. Gauri Memon, i/b. Nankani & Associates for
Petitioners
Mr. Rui Rodrigues for respondent no. 1 UOI
Mr. A.A.Kumbhakoni, AG a/w Ms Uma Palsule-Desai, AGP for
Respondent 2 & 3 State
PIL74/07
Mr. A.A.Kumbhakoni, AG a/w Ms Uma Palsule-Desai, AGP for
Respondent no. 1 & 5 State
Ms. Sadhna Mahashabde for respondent no. 3
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PIL/83/2010
Mr. A.A.Kumbhakoni, AG a/w Mr. L.T.Satelkar, AGP for Respondent
No.1 & 6 to 9 State
Mr.D.P.Singh a/w. Mr. G.R.Sharma for Respondent Nos.3 & 4
Mr. C.M.Lokesh, for Respondent No.5
WP/1503/2005
Mr. A.A.Kumbhakoni, Sr. Counsel a/w Ms Uma Palsule-Desai,
AGP for the State
--
CORAM : A.S.OKA, &
RIYAZ I. CHAGLA,JJ.
DATE : 29TH AUGUST 2017
ORAL ORDER : ( PER A.S.OKA, J)
1. With great deal of anguish that we are dictating this order.
But the events which have happened are so extraordinary that we have
no choice in the larger interests of the Judiciary but to record those
extraordinary events.
2. Public Interest Litigation No.173 of 2010 and other
connected matters were disposed of by a Division Bench of this Court
(A.S.Oka & A.A.Sayed, JJ) by the judgment and order dated 10 th, 11th,
12th and 16th August 2016. It is a matter of record and it is an
undisputed fact that as per the administrative order passed by the
Hon'ble the Chief Justice on 18th November 2016, these disposed of
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Petitions were ordered to be placed for considering compliance before a
Division Bench of which one of us ( A.S. Oka, J) is a member. Several
orders were passed after the 18th November 2016 dealing with the issue
of implementation of the directions issued by this Court. As recorded in
the order dated 24th August 2017, the final decision in the matters was
substantially challenged by the State Government by way of a Special
Leave Petition before the Apex Court. The challenge failed and as of
today, the decision has become final.
3. On 22nd August 2017, these Petitions were listed before this
Bench for considering compliance of various directions. On that date,
an affidavit was filed by the State Government of Smt. Archana Shirke,
Under Secretary of the Environment Department placing on record a
copy of the Notification dated 10th August 2017. On the basis of the
said Notification, a contention was raised by the learned Advocate
General that the declaration granted in terms of Clause (xii) of
Paragraph 93 of the final judgment has become inoperative as there is
an amendment to the Noise Pollution (Regulation and Control) Rules,
2000. On 22nd August 2017, the submissions were heard for
considerably long time. We had heard the learned counsel representing
various parties as well as the learned Advocate General. Though the
submissions were substantially heard, the same were not concluded.
That is how the matters were ordered to be listed at 11.00 a.m on 23 rd
sng 8 pil-173.10-connectedmatters (1)
August 2017. What transpired on 23 rd August 2017 in this Court is
noted in detail in Paragraph 4 of our earlier order dated 24 th August
2017. Relevant part of the said paragraph reads thus:-
"4. ...As submissions were not concluded, the matters
were kept yesterday at 11.00 a.m. When the matters
were called out yesterday at 11.00 am, this Bench
made the learned Advocate General aware of the
prima facie view formed by this Court after hearing
the arguments at length on 22nd August 2017. Only
object of pointing out prima facie view before the
submissions were to be concluded was to give an
opportunity to the learned Advocate General firstly
to seek instructions from the State Government and
secondly to address the Court on the prima facie
view expressed by this Court. There is a consistent
practice followed by this Court to express prima
facie view so that best is brought out of the
members of the Bar. Prima facie view expressed by
this Court was that on the basis of the amendment
brought about by the notification dated 10th August
2017, the directions issued by this Court as regards
silence zone cannot be held to be inoperative and in
any event, the State Government will have to make
an application for review or modification of the final
Judgment. This Court also expressed a prima facie
view that since what is held in clause (xii) of paragraph
93 reproduced above was not based only on clause 3 of
the Schedule which has been deleted by the
amendment, in absence of any application for
modification, the oral plea of the learned Advocate
General cannot be considered. This Court also
expressed a prima facie view that if the submissions
of the learned Advocate General are correct, a part
of the Judgment will have to be modified which has
to be done by the same Bench which has passed the
final Judgment and Order as per Chapter XXX of the
Bombay High Court Rules and the corresponding
provisions of the Original Side Rules. This Court has
made it very clear to the learned Advocate General
that this Court was willing to hear him further on
his contention and the prima facie view expressed
was subject to his further submissions. However, he
sought time to take instructions. Thereafter, we
sng 9 pil-173.10-connectedmatters (1)
kept back the matters till 1.00 p.m. The matters
were taken at 1.10 p.m., when the learned Advocate
General stated before the Court what were his
instructions. He stated that the State Government
was willing to make an application for review. His
submission was that till the said application is filed
and considered, the State Government will proceed
on the basis of the statements made by Smt.Shirke
that no silence zone is in existence as per the
amended Noise Pollution Rules. However, he stated
that in case of city of Mumbai where earlier
declarations by the Mumbai Municipal Corporation
of silence zones have been made, the silence zones
will be taken up as guide lines. Therefore, he
continued further submissions till 2.00 p.m. The
submissions could have been over yesterday itself
and we would have decided the issue yesterday
itself. However, on the request made by the learned
Advocate General on the ground that he was
required to appear before the Full Bench headed by
the Hon'ble the Chief Justice, we thought it fit to
accommodate him. Therefore, we kept the matter
today for hearing the further submissions of the
learned Advocate General. If we would not have
expressed our prima facie view, the matter would
have been over yesterday in the first session of
yesterday itself."
(emphasis added)
4. There is one more event which is required to be noted. On
23rd August 2017, there was an administrative order passed by the
Hon'ble the Chief Justice by which Public Interest Litigation St.
No.24110 of 2017 was assigned to this Bench for hearing it along with
the connected disposed of matters. The challenge in the PIL was to the
Notification dated 10th August 2017 issued by the Central Government.
We have already noted what transpired upto 2.00 p.m on 23 rd August
2017.
sng 10pil-173.10-connectedmatters (1)
5. The extraordinary events started thereafter. When the
matters were called out on 24 th August 2017 at 11.00 a.m., the learned
Advocate General tendered a copy of a praecipe dated 24 th August 2017
(described in the order dated 24 th August 2017 as a letter") addressed
to Hon'ble Chief Justice which is on record and for convenience, we are
today marking the same as "P1" for identification. Though the learned
Advocate General stated that the praecipe was filed, he did not state on
24th August 2017 before this Bench that he had personally handed over
the same to the Hon'ble Chief Justice in her chamber before 11 a.m. on
that day. Yesterday, on a query made by the Court, he informed the
Court that the praecipe was personally handed over by him to the
Hon'ble Chief Justice by meeting her in Chamber before 11 a.m on 24 th
August 2017. It is not the case of the State that a notice was given to
rival parties of the fact that the Learned Advocate General was to move
the Hon'ble Chief Justice before the Court hours in her Chamber. In the
said praecipe, there were serious allegations of bias made against one of
us (A.S.Oka,J). The allegations of bias as can be seen from the
Paragraphs 9 and 10 of the said praecipe were made based on the prima
facie view expressed by this Bench on 23 rd August 2017 at 11.00 a.m
only for the sake of transparency and only to enable the learned
Advocate General and other counsel representing the parties to assist
the Court properly. We have already noted in our earlier order dated
sng 11pil-173.10-connectedmatters (1)
24th August 2017 that this Court followed the tradition of expressing
prima facie view only with a view to get proper assistance from the
members of the Bar. In Paragraph 9 of the praecipe, it is stated thus:-
"9. With utmost respect and with utmost regard
towards Hon'ble Shri Justice A.S.Oka (hereinafter for
the sake of brevity referred to as the Hon'ble Judge), it
is humbly submitted that during the course of
hearing the Hon'ble Judge has expressed such
views which clearly demonstrate that the Hon'ble
Judge is biased in subject matter of these
petitions."
6. In Paragraph 12 of the said praecipe dated 24 th August
2017, there were allegations of bias against one of us (A.S.Oka,J) of
harbouring a serious bias in the subject matter of these Petitions against
the State machinery. Paragraph 12 of the said praecipe reads thus:-
"12. These and such other aspects of the matter in
general demonstrate that the Hon'ble Judge is
somehow harbouring a serious bias in the subject
matter of these petitions against the State
Machinery in this matter."
7. The further part of the order dated 24th August 2017 is self-
explanatory as to what transpired after a copy of the praecipe was
tendered by the learned Advocate General. Paragraphs 5 to 9 of the
said order read thus:-
sng 12pil-173.10-connectedmatters (1)
"5. Yesterday, the Hon'ble the Chief Justice passed an
Administrative Order assigning the PIL
St.No.24110 of 2017 wherein the challenge is to
the notification dated 10th August 2017. Today,
when the matters were called out, the learned
Advocate General has placed on record a letter
dated 24th August 2017 signed by Shri Manish M.
Pabale, AGP addressed to the Hon'ble the Chief
Justice. The letter records that it was drafted on
the instructions of Shri Vijay Patil, Deputy
Secretary of the Home Department, Mantralaya.
In the said letter, it is stated that one of the two
Judges of this Bench (A.S.Oka,J.) is harbouring a
serious bias in the subject matter against the
State Machinery. Therefore, a prayer is made in
the said letter to club all the connected matters.
The learned Advocate General stated that when
the said letter was submitted, the State was not
aware of the order passed by the Hon'ble the
Chief Justice of assigning the PIL St.No.24110 of
2017 to this Bench. However, he states that
prayer in the application is for transfer of matters
on Board and all connected matters. The learned
counsel for the Union of India in PIL St.No.24110
of 2017 was at pains to point out that a matter
involving similar challenge is adjourned by four
weeks by another Bench.
6. We are shocked to record all this. As stated
earlier, we followed the tradition of expressing
prima facie view to the learned counsels
representing the parties only with a view to get
proper assistance from them. After the matters
were adjourned yesterday with a view to
accommodate the learned Advocate General, the
State has filed the letter dated 24 th August 2017
making serious allegations of bias against one of
us (A.S.Oka,J). We are not saying this to blame
the learned Advocate General. But we are saying
this for a different reason. The State should have
respect for the highest Office of the learned
Advocate General who is the constitutional
functionary. Suffice it to say that by this conduct
on the part of the State Government, they have
made the position of the learned Advocate
General most awkward. The Advocate General is
sng 13pil-173.10-connectedmatters (1)
the leader of the Bar who is the Officer of the
Court first. We are sorry to record that the State
Government has not bothered to even consider
the effect of such a prayer made today when the
matters were adjourned yesterday to
accommodate the learned Advocate General.
7. The law as regards recusal is well settled and
we may not restate it again. There is no
question of recusing ourselves from this
matter. However, as Hon'ble the Chief Justice
is moved with an application for transfer, we
deem it proper to defer the hearing of the
matters till 3.00 p.m. In the normal course,
we would have granted more time. But the
learned senior counsel representing the
petitioner in PIL St.No.24110 of 2017 is
pressing for grant of ad-interim relief.
Therefore, we direct that these matters shall
be kept at 3.00 p.m.
8. Without elaborating, in short, we also record
submissions made by Shri Anturkar, Shri
Gorwadkar and Shri Saraf that this action of
making allegations of bias and of applying for
transfer is completely malafide. The learned
counsel Shri Saraf also contended that this
attempt is made to make the whole issue
academic with a view to ensure that there is a lot
of noise pollution in coming Ganpati festival.
He also stated that this application is politically
motivated.
The Registrar (Judicial-I) to ensure that when
the said application/praecipe is placed before
the Hon'ble the Chief Justice, a copy of this
order is produced before the Hon'ble Chief
Justice."
(emphasis added)
8. After declining to recuse itself as per the settled law laid
down by the Apex Court, this Bench could have proceeded with the
sng 14pil-173.10-connectedmatters (1)
further hearing of the matters especially when there was no proper
transfer application made and the allegations of bias were not
supported by any affidavit. Since we were informed that the praecipe
was filed, we thought it fit to adjourn the matter till 3.00 p.m. As far as
the direction in Clause (9) of the said order dated 24 th August 2017 is
concerned, the direction to the Registrar (Judicial-I) was to place a
copy of the said order dated 24 th August 2017 along with said praecipe
before the Hon'ble the Chief Justice. The whole object was to ensure
that the Hon'ble Chief Justice is informed about the stage at which and
the manner in which the praecipe was moved. The praecipe did not
disclose the important and material fact that on 23 rd August 2017, the
matter was adjourned till 24 th August 2017 only for accommodating the
learned Advocate General. The Registrar (Judicial-I) was to comply with
the direction in paragraph 9 of the order only after the order was
corrected, signed and uploaded. We make it clear that we had not
directed our staff to inform the said Registrar about the passing of the
said order as the same was to be immediately signed in the afternoon
recess. The order was dictated clearly and loudly in the open Court.
Since the praecipe was handed over to the Hon'ble the Chief Justice
personally by the learned Advocate General in her chamber, naturally, it
was his duty or the Government Pleader's duty to immediately inform
the Hon'ble Chief Justice about passing of the said order, either by
mentioning before her Court or by filing a praecipe. That was not done.
sng 15pil-173.10-connectedmatters (1)
Yesterday, i.e. on 28th August 2017, the learned Advocate General stated
that as the leader of his team, he has accepted the said default on the
part of his entire team. The effect of this default was serious. We must
record here that in the afternoon recess on 24 th August 2017 at about 2
p.m, in the chamber of one of us (A.S.Oka, J), we received a copy of the
note submitted by the Registrar (Judicial-I) on the basis of the praecipe
dated 24th August 2017 submitted by the State Government and an
administrative order passed thereon of transfer of all the matters to a
Full Bench presided over by Hon'ble Shri Justice Anoop V. Mohta. The
Registrar (Judicial -I) did not point out to the Hon'ble Chief Justice the
fact that we had dictated the Order because he was not aware and the
State did not point out though its law Officers were aware of the said
fact.
9. When we resumed the Court work on 24 th August 2017 at
3.00 p.m, we found that most of the learned counsel in the matter were
present. Obviously because they were not even aware that the order of
transfer of the matters was already passed. We are not sure whether
the law officers of the State were aware of the order of transfer. We
give them a benefit of doubt. In the open Court, we had to point out to
the learned counsel representing the parties that the Hon'ble the Chief
Justice has already passed an order of transfer assigning all the matters
to a Full Bench. The parties were not given a notice by the State
sng 16pil-173.10-connectedmatters (1)
Government that the Hon'ble Chief Justice will be moved in her
Chamber before 11.00 a.m. Unfortunately, it was left to this Bench to
inform the parties about the transfer.
10. The allegations of bias, even assuming that they came from
the highest authority of the State, were completely baseless and not
even supported by an affidavit. In normal course, as we do, we would
have been justified in ignoring the allegations with all the contempt it
deserved as the same were not supported by an affidavit. However, in
this case, it is apparent from the record that the Hon'ble Chief Justice
acted upon the praecipe containing serious allegations of bias against
one of us (A.S.Oka,J) and passed an order of transfer of all the pending
matters which were specially assigned to the Bench headed by one of us
(A.S.Oka,J) and PIL St.No.24110 of 2017 which was specifically
assigned to this Bench on 23 rd August 2017. The transfer was to a Full
Bench. Therefore, these allegations of bias cannot be ignored as the
allegations of bias were the only basis of the prayer for transfer made by
way of a praecipe.
11. We may note here that yesterday in the morning before the
Court hours, the Registrar (Judicial-I) handed over a photocopy of the
administrative order dated 27th August 2017 passed by the Hon'ble the
Chief Justice which recorded that in supersession of the earlier order
sng 17pil-173.10-connectedmatters (1)
dated 24th August 2017 constituting a larger Bench, now all the matters
will be placed before a larger Bench presided over by one of us
(A.S.Oka,J) along with the Hon'ble Shri Justice Anoop V. Mohta and the
Hon'ble Shri Justice Riyaz I. Chagla. The Registrar (Judicial-I) orally
informed us that the Hon'ble the Chief Justice has telephonically
directed him to inform us that even the administrative order dated 27 th
August 2017 was subsequently modified by directing that the disposed
of Petitions which were pending before this Bench for reporting
compliance will be heard by this Bench and PIL St.No.24110 of 2017
which was assigned to this Bench as well as the Writ Petition No.9508
of 2017 which was assigned to the Bench headed by Anoop V. Mohta
will be heard by a larger Bench presided over by one of us (A.S.Oka,J)
along with the Hon'ble Shri Justice Anoop V. Mohta and the Hon'ble
Shri Justice Riyaz I. Chagla. In fact, the order dated 27 th August 2017
of the Hon'ble Chief Justice records that all the matters should be listed
on 28th August 2017.
12. Accordingly, the matters were listed. When these matters
were called out before this Bench on 28 th August 2017, we had certain
queries to make to the learned Advocate General. After answering the
said queries, the learned Advocate General tendered across the Bar
another praecipe dated 29th August 2017 which we mark as "P2" for
identification. It bears the signature of the learned Assistant
sng 18pil-173.10-connectedmatters (1)
Government Pleader. It records that the praecipe was drafted as per the
instructions of Shri Vijay Patil, Deputy Secretary to the Government of
Maharashtra. The praecipe makes very interesting reading. The
Paragraphs 2 to 4 of the said praecipe read thus:-
"2. The aforesaid request (b) was made contending
that ".....the Hon'ble Judge is somehow
harbouring a serious bias in the subject matter of
these petitions against the State Machinery in
this matter. The said contention was NOT
raised as an allegation against the Hon'ble
Judge personally but was limited specifically
and limited only as to the 'subject matter'
involved in the aforesaid group of matters.
The State itself holds the said Hon'ble Judge
individually with pride in the highest esteem and
has the highest regards and respect for him,
which is demonstrated by the State in various
matters decided by the said Hon'ble Judge, from
time to time where the State is a contesting party
or even otherwise.
3. However unfortunately, it appears that the said
intention of the State Government has been
widely misunderstood and misinterpreted and
has been projected as if the State Government is
against the judiciary in general and the Hon'ble
Judge in particular, which the State Government
never intended nor intends.
4. The State Government unconditionally
withdraws even the said contention raised in
paragraphs (9) and (12) of the original
Application and expresses regret to the said
Hon'ble Judge for the said contention and while
tendering an unqualified apology also hereby
expresses full faith and confidence in the said
Hon'ble Judge."
sng 19pil-173.10-connectedmatters (1)
13. After making very serious allegations of bias against one of
us (A.S.Oka,J) which could be certainly termed as scandalous, a stand
was taken that though it was alleged that a Judge is harbouring a
serious bias in the subject matter of these Petitions against the State
Machinery, there were no allegations made against the Judge. Within a
span of three days, a change was brought about which could be seen
from the said praecipe dated 28th August 2017. As stated earlier, the
praecipe proceeded on the footing that though there were allegations of
bias made in the praecipe dated 24 th August 2017, in fact, there were no
allegations made against the Judge. It is not for us to go into the
reasons why this U-turn is taken after three days. It is for the others to
draw appropriate inference. We informed the learned Advocate General
after reading the praecipe that the statements made therein and
apology tendered therein cannot be accepted for more than one reason.
The first and foremost reason was that apart from the allegations made
were scandalous and apart from the fact that the allegations interfered
with the due course of legal proceedings, the allegations were against
this august Institution which exists for last 155 years. The second
reason is that there was no affidavit filed by the appropriate authority
tendering unconditional apology. The third reason was that the
allegations of bias were so serious that the Hon'ble Chief Justice acted
upon the same and passed an order of transfer.
sng 20pil-173.10-connectedmatters (1)
14. Yesterday, the learned Advocate General stated that an
affidavit will be filed today tendering an unconditional apology. At that
time, we informed the learned Advocate General that it will be
appropriate and it will be perhaps obligatory for the State to disclose
the name of the decision making authority which took a decision to
instruct the learned Advocate General to make allegations of bias
against a sitting Judge of this Court. Today, an affidavit of Shri Vijay
Patil, Deputy Secretary to the Government on whose instructions earlier
documents were tendered in the Court has been filed. The affidavit does
not disclose the name or designation of the authority which took a
decision to make allegations of bias. The said affidavit dated 29 th
August 2017 is taken on record and marked "A1" for identification. The
Paragraph 2 of the affidavit reads thus:-
"2. As per the authorization and instructions given
to me by the State Government, the State Government
hereby unconditionally withdraws each and every
contention raised and/or allegation made against His
Lordship the Hon'ble Shri Justice A.S. Oka in the
Application dated 24.08.2017 and the State
Government expresses regret to His Lordship the
Hon'ble Shri Justice A.S.Oka for the said contentions
and/or allegations and while tendering an unqualified
apology to His Lordship the Hon'ble Shri Justice
A.S.Oka also hereby expresses full faith and confidence
in His Lordship the Hon'ble Shri Justice A.S.Oka."
sng 21pil-173.10-connectedmatters (1)
15. The Paragraph 2 of the said affidavit dated 29 th August
2017 makes the situation more serious as it is suggested that it is the
entire State Government which took a decision to make an allegation of
bias against one of us (A.S.Oka,J). The State Government, for obvious
reasons, has avoided to mention the name of the real decision making
authority.
16. As stated earlier, the allegations of bias were completely
unfounded and without any basis and the same were not at all
supported even by an affidavit by some officer. Now within a span of 3
to 4 days, the allegations of bias are being unconditionally withdrawn.
Yesterday, we had informed the learned Advocate General that what
was more worrying was the allegations and the manner in which these
allegations were made in the praecipe which adversely affected the
reputation of the Institution like Bombay High Court. Today, in the
affidavit in Paragraph 3, it is stated a separate affidavit is filed before
the Hon'ble the Chief Justice tendering an unconditional and
unqualified apology to the entire Institution of the High Court of
Judicature at Bombay. The Paragraph 3 of the said affidavit dated 29 th
August 2017 reads thus:-
"I say that a separate Affidavit is filed/tendered before
the Hon'ble the Chief Justice tendering an
unconditional and unqualified apology to this
sng 22pil-173.10-connectedmatters (1)
esteemed Institution i.e. The Hon'ble High Court of
Judicature at Bombay and the Hon'ble the Chief Justice
of this Hon'ble Court for all the acts of omission and/or
commission in this regard by the State Government as
also for all consequences thereof."
17. The Paragraph 2 of the affidavit dated 29 th August 2017
contains unconditional apology which we have already quoted.
18. In normal course, this Court would have been justified in
initiating an action under the Contempt of Courts Act against the
Officers of the State who were responsible for committing a criminal
contempt as making of such allegations and the manner in which the
same were made amount to criminal contempt. We are not doing so for
more than one reason. We will be guided by a very well-known opinion
expressed by the Lord Denning in the case of Regina v. Metropolitan
Police Commissioner ex. p. Blackburn 1 which is quoted with
appreciation and approval by the Apex Court in the famous decision in
the case of In Re S. Mulgaokar2. We are guided by the following
observations made by Lord Denning, which read thus:-
"Let me say at once that we will never use this
jurisdiction as a means to uphold our own dignity.
That must rest on surer foundations."
19. We must note here that with great deal of emphasis the
dignity of this august Institution rests on surer foundations. The second
1 (1968)2 WLR 1204
2 (1978)3 SCC 339
sng 23pil-173.10-connectedmatters (1)
reason why we are not initiating the action for criminal contempt is
obviously the unconditional withdrawal of allegations made against one
of us (A.S.Oka, J) and tender of an unconditional apology within few
days from the date on which the allegations of bias were made.
Yesterday, we made it very clear that we are not at all touchy about the
allegations made against one of us (A.S.Oka, J). The anguish expressed
by us yesterday was due to the impact of such reckless and scandalous
allegations made against an individual Judge on the entire institution of
the Bombay High Court. Now in the said affidavit, there is an
unconditional apology tendered to the entire Institution. The third
reason why we are not initiating action for Contempt of Court is
perhaps what is pointed out by the learned Senior Counsel Shri
A.V.Anturkar. He stated that a signal has gone loud and clear.
20. The fourth reason is a different reason with which few may
not agree. We are holding a constitutional office and we have taken an
oath under the Constitution. We are expected to show mercy and
magnanimity. Therefore, we are showing mercy by accepting the
unconditional apology.
21. The other issue which will remain is of enormous damage
which is caused to the Institution by the entire episode which started
from 24th August 2017. As stated earlier, we agree with what is stated
sng 24pil-173.10-connectedmatters (1)
by the learned senior counsel that now the message has gone clear and
loud that interference by any authority including anyone holding a very
high office with judiciary and any attempt to lower its dignity will not
be tolerated at all and will be strictly dealt with.
22. We, therefore, accept the apology tendered in the affidavit
of Shri Vijay Patil, Deputy Secretary on behalf of the Government of
Maharashtra. We also accept the statement made that the State
Government has unconditionally withdrawn each and every allegations
made against one of us (A.S.Oka, J ). Therefore, nothing further is
required to be done only as far as the allegations of bias are concerned.
23. Place this group of Petitions on 7th September 2017 under
the caption of "Directions" for considering compliance.
(RIYAZ I. CHAGLA, J) ( A.S. OKA, J )
