TEAM CODE – L

29th M. C. CHAGLA MEMORIAL GOVERNMENT LAW COLLEGE

NATIONAL MOOT COURT COMPETITION

BEFORE THE HIGH COURT OF DHAURASHTRA

W.P. (CIVIL) NO. ___ OF 2022

IN THE MATTER OF

X, Y, Z, and Ors. …… PETITIONER

VERSUS

STATE OF DHAURASHTRA ……RESPONDENT

CHALLENGING THE VALIDITY OF PROVISO TO SUB-RULE (5) OF RULE 3

INSERTED BY THE NOISE POLLUTION (MANAGEMENT & CONTROL)
AMENDMENT RULES, 2015

MEMORANDUM ON BEHALF OF P E T I T I O N E R
 Table of Contents

LIST OF ABBREVATIONS..........................................................................................................1

INDEX OF AUTHORITIES...........................................................................................................3

STATEMENT OF JURISDICTION...............................................................................................6

STATEMENT OF FACTS............................................................................................................7

STATEMENT OF ISSUES........................................................................................................... 8

SUMMARY OF ARGUMENTS.....................................................................................................9

ARGUMENTS ADVANCED.......................................................................................................11

1. WHETHER THE PUBLIC INTEREST LITIGATION & WRIT PETITION FILED BY SILENT

FOUNDATION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIANA IS

MAINTAINABLE........................................................................................................................ 11

1.1 The Public Interest Litigation filed by Silent Foundation is Maintainable Under Article 226.

............................................................................................................................................... 11

1.2 The Writ Petition Filed by the Silent Foundation under Section 226 of the Indian

Constitution is Maintainable...................................................................................................13

2. WHETHER THE MECHANISM TO BE SET UP BY THE STATE GOVERNMENT TO

IMPLEMENT THE NOISE POLLUTION RULES IS VALID........................................................15

2.1 Whether loud speakers or a public address system should be permitted in silence zones?

............................................................................................................................................... 15

2.2 Whether the authorities must designate and map silence zones and identify boundaries

and put-up silence zone boards in areas falling within the said definition?.............................17
 2.3 Whether use of public address systems or loudspeakers be permitted, if such necessary

licenses / permissions are issued by the State Government, and can such permissions /

licenses be extended to use of public address systems or loud speakers in silence zones?..18

3.WHETHER THE IMPUGNED RULES ARE UNCONSTITUTIONAL OR NOT........................20

3.1 The State Legislature had passed this Impugned amendment Rules with Malafide

Intention:................................................................................................................................ 20

3.1.1 Presence of Personal Bias or an Oblique Motive.......................................................20

3.1.2 Administrative action is contrary to the objects, requirements and conditions of a

valid exercise of administrative power.............................................................................20

3.2 Use of Loud speaker is not a fundamental Right:.............................................................21

3.3 Violation of Article 14........................................................................................................23

3.3.1 No prior notice/ against public interest:......................................................................23

3.3.1 Absence of reasonable nexus:...................................................................................24

3.4 Violation of Article 21........................................................................................................25

4. WHETHER THE IMPUGNED RULES IS VALID BEFORE THE EYES OF LAW?.................30

4.1 Violation of fundamental rights guaranteed under the Constitution of India......................31

4.2 Violation of any provision of the Constitution of India.......................................................31

4.3 Failure to conform to the statute under which it is made or exceeding the limits of authority

conferred by the enabling Act.................................................................................................32

4.4 Manifest arbitrariness/unreasonableness (to an extent where the court might well say that

the legislature never intended to give authority to make such rules)......................................32

PRAYER.................................................................................................................................... 34
 LIST OF ABBREVATIONS
Paragraph

AIR All India Reporter

INDE
X OF
All Allahabad High Court

Anr Another

Bom Bombay High Court

HC High Court

SC Supreme Court

Ors Others

SCC Supreme Court Cases

UOI Union Of India

Art. Article

Cal Calcutta

Ed. Edition

Sec. Section

KER Kerala High Court

AUTHORITIES
1. People’s Union for Democratic Rights & Others v. Union of India & Others, (1982) 3
 SCC 235.

2. M. P. Singh v N. Shukla’s Constitution of India 704 (2019)

3. Gunwant Kaur and Ors. V Municipal Committee, Bhatinda and Ors (1969) 3 SCC

247

4. Vishwa Mallakhamb foundation v UOI 2019 SCC Bom 5432

5. Ajay Marathe v UOI, 2017 SCC Bom 8363

6. Church of God (Full Gospel) in India vs. K.K.R. Majestic Colony Welfare

Association and Others, reported in (2000) 7 SCC 282, the Hon'ble Supreme Court

7. Dr. Mahesh Vijay Bedekar v State of Maharashtra, 2017 SCC Bom 2180

8. Farhd K. Wadia v. Union of India, (2009) 2 SCC 442

9. State Of Bihar Etc. Etc vs P.P. Sharma, Ias And Anr, 1991 AIR 1260.

10. State Of Bihar Etc. Etc vs P.P. Sharma, Ias And Anr, 1991 AIR 1260

11. In Re: Noise Pollution AIR 2005 SC 3136.

12. State of Rajasthan v Chawla, 1959 AIR 544

13. In re noise pollution, (2005) 5 SCC 733

14. Farhd K. Wadia v. Union of India, (2009) 2 SCC 442

15. Burrabazar Fireworks Dealers Association v. Commissioner of police, AIR 1998 Cal

121

16. Ajitnath Co-opertaive Housing Soceity Ltd v State of Maharashatra, 2016 SCC Bom

11501

17. Indian Express Newspapers Pvt. Ltd. and others v Union of India and others AIR

1986 SC 515.

18. Jacob vs. Superintendent of Police. 1992(2) KLT 238.

19. Venu Vs Director General of Police. 1990(2) KLT 86.

20. Virender Singh Hooda vs State of Haryana, (2004) 12 SCC 588

21. Ajay Marathe vs. Union of India, 2017 SCC Bom 8363

22. Mandal Revenue Office v. Goundla Venkaiah and Another MANU/SC/0026/2010 :

(2010) 2 SCC 461, H.S. Vankani and Others v. State of Gujarat and Other

MANU/SC/0175/2010 : (2010)4 SCC 301.

23. Noise Pollution (V), IN RE MANU/SC/0415/2005 : (2005) 5 SCC 733, Para 10,11.

24. Free Legal Aid Cell Shri Sugan Chand Aggarwal v. Govt. of NCT of Delhi [AIR

2001 Del 455 : (2001) 93 DLT 28 (DB)

25. P.A. Jacobv. Supdt. of Police [AIR 1993 Ker 1]

26. Anirudh Kumar v. MCD MANU/SC/0311/2015 : (2015) 7 SCC 779

27. Justice K.S. Puttaswamy (Retd.), and Anr v. Union of India and Ors

MANU/SC/0911/2017

28. Shaikh Yusuf Bhai Chawala and others v. State of Maharashtra and others 2011(6)

Mh.L.J. 691

29. Lalit Kumar Modi v. Board of Control for Cricket in India and Others (2011)10 SCC

106

30. Sangeeta Balkrishna Kadam v. Balkrishna Ramchandra Kadam AIR 1994 BOM 1.

31. Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj v. State of Gujarat

[(1975) 1 SCC 11]

32. Indian Express Newspapers (Bombay) (P) Ltd.v. Union of India

[MANU/SC/0406/1984 : (1985) 1 SCC 641 : 1985 SCC (Tax) 121

33. State of Tamil Nadu and another v. P. Krishnamurthy and others

 MANU/SC/1581/2006 : (2006) 4 SCC 517 1953 AIR 375, 1954 SCR 1

34. Noise Pollution (V), IN RE (supra).

LEGAL DATABASES

(1) Manupatra

(2) SCC Online

LEGISLATIONS

(1) The Constitution of India, 1950

(2) Environment Protection Act, 1986

(3) Noise Pollution (Regulation and Control) Rules, 2000

 STATEMENT OF JURISDICTION
THE COUNSEL FOR THE PETITIONER, THE SILENT FOUNDATION AND OTHERS,
HEREBY HUMBLY SUBMIT TO THIS HON’BLE COURT’S JURISDICTION UNDER
ARTICLE 226 OF THE CONSTITUTION OF INDIANA.

226. Power of High Courts to issue certain writs

(1)  Notwithstanding anything in Article 32 every High Court shall have powers, throughout the
territories in relation to which it exercises jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto
and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and
for any other purpose

(2)  The power conferred by clause (1) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in relation
to the territories within which the cause of action, wholly or in part, arises for the exercise of
such power, notwithstanding that the seat of such Government or authority or the residence of
such person is not within those territories

(3)  Where any party against whom an interim order, whether by way of injunction or stay or in
any other manner, is made on, or in any proceedings relating to, a petition under clause (1),
without

(a)  furnishing to such party copies of such petition and all documents in support of the plea for
such interim order; and

(b)  giving such party an opportunity of being heard, makes an application to the High Court for
the vacation of such order and furnishes a copy of such application to the party in whose favour
such order has been made or the counsel of such party, the High Court shall dispose of the
application within a period of two weeks from the date on which it is received or from the date
on which the copy of such application is so furnished, whichever is later, or where the High
Court is closed on the last day of that period, before the expiry of the next day afterwards on
which the High Court is open; and if the application is not so disposed of, the interim order
shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand
vacated

(4)  The power conferred on a High Court by this article shall not be in derogation of the power
conferred on the Supreme court by clause (2) of Article 32.
 STATEMENT OF FACTS
 The State Government of Dhaurashtra organizes processions for idols (gods) during the
festivals. They issue license to various mandals to carry out such activities (processions,
erecting pandals, announcement, etc).
 Silent foundation, an NGO aims and works towards curbing noise pollution and works for
the benefit of natural resources by safeguarding them. During the procession in the 2012, it
was identified that there is violation of the noise Pollution (Management & Control) Rules,
1999. The data collected depicted the use of noise emanating instruments which was played
near the St. Berth Hospital & Medical Institute of cancer.
 Despite submitting the records of noise readings to the concerned authority, no actions were
taken. In furtherance, a letter was forwarded to the Ministry of Environment & Forest on
request of immediate actions. On being aggrieved by the inaction by the concerned
authorities, a PIL was filed before the High Court seeking implementation of Noise
Pollution Rules (Management & Control) Rules, 1999.
 The State Government, in its affidavit furnished the detailed action plan prepared in 2002
and argued to have not received any complaint from the Silent Foundation. On
recommendation of various measures by the Silent Foundation, the High Court issued notice
to the State Government to issue public notices/ advertisement & call upon the citizen/
interested parties to provide solutions.
 There were 15 intervention application which sought for identical relief. On the direction of
High Court, a committee was set up comprising the Environmentalist, activities and other
experts to formulate the steps to be undertaken by the State Government. On taking
cognizance of the report prepared by the committee after extensive research, the matter was
set for final hearing by listing the issues in concern.
 In the interregnum, the Noise Pollution (Management & Control) Rules, 1999 was amended
and one of the significant amendments was inserting a proviso to sub-rule (5) of Rule 3 of
the Rules, which reads thus: “Provided that, an area shall not fall under silence area or
zone category, unless notified by the State Government in accordance with sub-rule (2)”.
 Being aggrieved by the amendment, the Silent Foundations & other interveners filed a
Writ petition challenging the amendment.

STATEMENT OF ISSUES

ISSUE 1:

1. WHETHER THE PUBLIC INTEREST LITIGATION & WRIT PETITION FILED

BY SILENT FOUNDATION UNDER ARTICLE 226 OF THE CONSTITUTION
OF INDIANA IS MAINTAINABLE.

ISSUE 2:

2. WHETHER THE MECHANISM TO BE SET UP BY THE STATE

GOVERNMENT TO IMPLEMENT THE NOISE POLLUTION RULES IS
VALID.

ISSUE 3:

3. WHETHER THE IMPUGNED RULES ARE UNCONSTITUTIONAL OR NOT.

ISSUE 4:
4. WHETHER THE IMPUGNED RULES IS VALID BEFORE THE EYES OF LAW.

SUMMARY OF ARGUMENTS

ISSUE 1:

1. WHETHER THE PUBLIC INTEREST LITIGATION & WRIT PETITION FILED

BY SILENT FOUNDATION UNDER ARTICLE 226 OF THE CONSTITUTION
OF INDIANA IS MAINTAINABLE.

It is humbly submitted before this Hon’ble Court that the Present PIL and Writ Petition
challenging the impugned Rules is maintainable against the State of Dhaurashtra under
section 226 of Indiana Constitution. It is further submitted that the Impugned Rules is
violating Article 14 and 21 of the Indian Constitution and also it is ultra vires of the
Parent Act, and on the account of the same, relief is sought.

ISSUE 2:

2. WHETHER THE MECHANISM TO BE SET UP BY THE STATE

GOVERNMENT TO IMPLEMENT THE NOISE POLLUTION RULES IS
VALID.

It is humbly submitted before this Hon’ble court that the loud speakers can never be
permitted for usage within the silence zones and the State Government cannot be
provided with the sole discretion of issuing license for such usage within the silence
zones. Hence the Mechanism which was set up by the State to implement the Noise
Pollution Rules is not valid.

ISSUE 3:

3. WHETHER THE IMPUGNED RULES ARE UNCONSTITUTIONAL OR NOT.

 The impugned Rules have been enacted with a Mala Fide intention for furtherance of
Political Motive. Further the impugned Rules have been in violation of Article 14 and 21
of the Indiana Constitution. Hence the impugned rules are unconstitutional and is liable
to be struck down.

ISSUE 4:

4. WHETHER THE IMPUGNED RULES IS VALID BEFORE THE EYES OF

LAW.

The impugned Rules has not been enacted with legislative competence and is also
established to be unconstitutional violating the Fundamental Rights. Further the
impugned Rules fails to conform to the statute under which it is made or exceeds the
limits of authority conferred by the enabling Act and leads to manifest Arbitrariness and
hence the same is liable to be declared invalid before the eyes of law.
 ARGUMENTS ADVANCED

1. WHETHER THE PUBLIC INTEREST LITIGATION & WRIT

PETITION FILED BY SILENT FOUNDATION UNDER ARTICLE
226 OF THE CONSTITUTION OF INDIANA IS MAINTAINABLE.
Black’s Law Dictionary defines Public Interest as: “Something in which the public, the
community at large, has some pecuniary interest, or some interest by which their legal rights or
liabilities are affected. It does not mean anything so narrow as a mere curiosity, or as the
interests of the particular localities, which may be affected by the matters in question. Interest
shared by citizens generally in affairs of local, state or national Government.”1

The word ‘litigation’ means legal action, including all legal proceedings initiated in a Court of
law to enforce a right or seek a remedy. 2 In People’s Union for Democratic Rights & Others v.
Union of India & Others, the Hon’ble court defined Public Interest Litigation and observed that
“Public interest litigation is a cooperative or collaborative effort by the petitioner, the State of
public authority and the judiciary to secure observance of constitutional or basic human rights,
benefits, and privileges upon poor, downtrodden and vulnerable sections of the society.3”

1.1 The Public Interest Litigation filed by Silent Foundation is Maintainable Under
Article 226.
The counsel for the petitioners shall demonstrate that, in the present case, the conduct of the
concerned authority for noise pollution along with the Ministry of Environment and Forests has

1 Garner B.A., Black’s Law Dictionary, (9th ed., 2009).

2 www.jurisdictionary.com, (Last visited on 19th October, 2014).
3 People’s Union for Democratic Rights & Others v. Union of India & Others, (1982) 3 SCC 235.
affected the legal right of individuals to have a peaceful environment to live which is the actual
purpose of the Parent Act and the rules framed thereunder has been violated. Petitioners are not
directly affected by it, but as they work for the public interest and the act of authorities and state
government failed in the due execution of the rules is against the public interest at large.
Therefore, the petitioner is entitled to invoke the jurisdiction of the Court for relief, as a matter of
right.4

Any authority created under a statute falls within the definition of “State” under Article 12 of the
Constitution.5 Rule 2 of Noise Pollution Rules, 2000 defines what means an “authority.” The
usage of word authority and the procedural rule of seeking permission from the concerned
authority makes it clear that there is an authority responsible for enforcing all measures regarding
noise pollution.

The power to set up such authority is given in Noise Pollution Rules which is subordinate
legislation to the Environmental Protection Act, 1986. Hence, that “Authority” falls under the
meaning of “State” under Article 12 of Const. Ergo, a PIL / Writ may be issued against them.

According to the facts of the present case, noise emanating instruments were played around 2
a.m. to 3 a.m. in an area where St. Berth Hospital and the Medical Institute for Cancer were
situated. A procession was held in such a way by disturbing the general public at midnight along
with many patients in St. Berth Hospital and the Medical Institute for Cancer.

This affected the general public and patients in nearby hospitals severely. Silent Foundation
received no response in return after bringing this issue before the concerned authorities. Thus,
Silent Foundation filed a Public Interest Litigation before this High Court at Dhaurashtra to seek
implementation of the Noise Pollution Rules and appropriate directions against the concerned
authorities for strictly implementing the same.

Usage of such noise emanating instruments causes severe inconvenience to the general public in
such a way that their legal right is affected. In Noise Pollution Rules, rule 5 imposes restrictions
on the use of loudspeakers or public address systems and sound-producing instruments. This
violates the legal right of the public thereby affecting the public interest. Silent Foundation is not

4 INDIA CONST. art. 226

5 INDIA CONST. art. 12
being a direct victim but a representative of many complaints received by them and also works
on curbing noise pollution for the benefit of the public at large. Hence Silent Foundation can
bring a Public Interest Litigation before the Court.

1.2 The Writ Petition Filed by the Silent Foundation under Section 226 of the
Indian Constitution is Maintainable
The Court is empowered to i) issue a writ of mandamus and ii) further, to pass any directions or
orders or writs which may be necessary for doing complete justice in any cause or matter
pending before it.6 It has been held in long lines of cases, that a writ of Mandamus may be issued
to compel the performance of a duty of a public nature, which is not discretionary.7 A duty is of a
public nature if it is, inter alia, created by the constitution or a statute. 8 The counsel for the
petitioner shall demonstrate that the Respondent has failed to discharge such duties of a public
nature, properly.

Article 226 empowers the High Courts to issue writs like habeas corpus, mandamus, prohibition,
certiorari, and quo warranto or any of them for the enforcement of any of the violations of the
fundamental rights or any other purpose. The jurisdiction of the High Courts under Article 226 is
wider than that of the Supreme Court under Article 32.

This writ of mandamus petition is filed for the first time before this Hon’ble High Court of
Dhaurashtra, hence this petition cannot be rejected on the ground of res judicata. However, the
High courts while entertaining writ petitions has implemented certain self-imposed restrictions.
One of such restrictions exercised by the High Court while hearing writ matters is that they are
not inclined to entertain writ petitions involving “disputed questions of fact”.

The writ jurisdiction of the High Court under Article 226 of the Constitution is discretionary in
nature and it has the power to try cases involving disputes in law and disputes in facts. The court
has also held that in appropriate cases and extraordinary situations, the Hon’ble High Courts can
adjudicate on disputed questions of facts as well, under their writ jurisdiction.

6 INDIA CONST. Art. 226

7 M. P. Singh v N. Shukla’s Constitution of India 704 (2019)
8 Id.
This petition doesn’t completely focus on discussing the question of fact but to an extent it does,
merely because of this reason, the writ petition cannot be held as not maintainable. The high
court in a case dismissed the matter on the ground that a writ petition is not maintainable in cases
where there is a question of disputed facts.

This High Court order was then challenged before the Supreme Court, where it was held that the
High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely
because in considering the petitioner’s right to relief, “questions of fact” may fall to be
determined.9 By the said amendment rules the complete discretion of determining whether a
particular area falls under the silence zone or not is completely in the hands of the state
government and there are chances of declaring every area, not a silence zone which affects the
basic fundamental rights that are incorporated by the Constitution. Article 14 – Right to Equality
before law and Article 21 – Right to Protection of Life and Personal Liberty.

If the state government declares every area as not a silent zone, then the use of loudspeakers and
other noise emanating instruments will become high and it will lead to the Right to Protection of
Life and Personal Liberty. On the other hand, if many of the areas are declared a silent zone then
it becomes difficult for the public to practice their religious festivals, which thereby affects their
Right to Freedom of Conscience, Profession, Practice, and Propagation.

In the present case, it has been established that there has been no due procedure of law being
followed during the notification of the impugned rules. In either case, where all areas are
declared as not silent zones or most of the areas are declared as silent zones, there are
consequences over the fundamental rights of the public at large, which can be avoided by due
administrative procedure without any sort of functional flaws. On the other hand, there is a
MALA FIDE intention behind this amendment rule which makes it an advantage for the state
government not to declare any areas as silent zone and make the Ganesh Chaturthi festival
happen all over the state. By doing this, the Right to Protection of Life and Personal Liberty of
every individual will be affected, especially people who are hospitalized, students studying in
educational institutions, and other places which should not have such noise pollution at any cost.

9 Gunwant Kaur and Ors. V Municipal Committee, Bhatinda and Ors (1969) 3 SCC 247
Looking into the aspect of alternative remedies, there are no such remedies available either in
Parent Act or in the subordinate legislation i.e., Noise Pollution Rules or even in the amendment
rules. Therefore, with all the above reasons mentioned it is humbly submitted before this
Honorable High Court that the Writ Petition filed under Article 226 is Maintainable.

Nevertheless, in any case, even if the conditions required for the issue of any of the five high
prerogative writs, including mandamus are not satisfied, the HC still has the unfettered discretion
to mount an appropriate relief under Article 226 to suit the present case. It is not constrained by
the traditional, English law, definition of each of the high prerogative writs. Hence the Court is
well within its powers to issue the reliefs prayed for in this Writ Petition.

2. WHETHER THE MECHANISM TO BE SET UP BY THE STATE

GOVERNMENT TO IMPLEMENT THE NOISE POLLUTION
RULES IS VALID.

2.1 Whether loud speakers or a public address system should be permitted in

silence zones?
According to the Principle Rules ,“Silence zone is an area comprising not less than 100 metres
around hospitals, educational institutions, courts, religious places or any other area which is
declared as such by the competent authority.”10

In view of the clause (v) of Rule 6 of the Noise Pollution Rules, using loud-speaker or public
address system is an offense and therefore, a permission under Sub-Rule (1) of Rule 5 to use
loud-speaker or public address system in the open spaces in silence zone cannot be granted. On
plain reading of clauses (i) to(v) of Rule 6, the Prohibition provided therein is applicable to the
open spaces in the silence zone. In view of Rule 6, there is a complete ban on beating a drum or
using any sound amplifiers.11

Apart from prohibition on grant of license to use loud-speakers or public address systems in
silence zones, except in completely covered and enclosed places in silence zone, there is a
complete ban on beating a drum or tom-tom or on blowing a horn, either musical or pressure, or

10 Clause 3 of the schedule

11 Vishwa Mallakhamb foundation v UOI 2019 SCC Bom 5432
trumpet or beats or any instrument playing of any music, using any sound amplifiers, holding of
mimetic musical or other performances of a nature.

Even if a loud-speaker or public address system (as distinguished from privately owned sound
system) is used within the precincts of the hospitals, educational institutions and Courts,
wherever permission under Sub-Rule (1) of Rule 5 is needed, the same shall be mandatory and
condition precedent for its use.

Needless to add that even if a permission is granted and if such instruments are used in the
precincts of hospitals, educational institutions and courts, the same are subject to all other
provisions of the Noise Pollution Rules and, therefore, noise levels at the boundary shall be as
provided in Sub-Rules (4) and (5) of Rule 5 which are applicable to the silence zones.

The prohibition in clauses (i) to (iv) of Rule 6 will not apply to completely covered and closed
premises within silence zone, but the said premises will be governed by all the Rules
incorporated in the Noise Pollution Rules including Sub-Rules (4) and (5) of Rule 5.

Needless to add that if an open area forming part of the precincts of the hospitals, educational
institutions and courts, etc. is covered by silence zone of other hospitals or educational
institutions or courts, the prohibition provided in Rule 6 will also apply to open areas forming a
part of the precincts of such hospitals, educational institutions and courts.

Prima facie, it appears to us that the provisions of the Rules would apply to 'an area comprising
not less than hundred metres around' hospitals, educational institutions, courts, religious places
or any other area which is declared as such by the competent authority. In our view, this would
be in consonance with the phraseology used in clause (i) of Rule 6 which totally prohibits
playing of 'any music' or using of 'any sound amplifiers'.

Had it been the intention of the rule-making authority, it would not have used the expression 'an
area comprising not less than 100 metres around' hospitals, educational institutions, court,
religious places, etc.12 Moreover, such interpretation would also permit activities within those
institutions in accordance with law.

12 Ajay Marathe v UOI, 2017 SCC Bom 8363

It cannot be considered that with regard to such organisations, institutions, etc. there is neither
any standard nor limit whatsoever. In respect of such institutions also, the general provisions laid
down in Rule 5 which place restrictions on the use of loudspeaker/public address systems would
apply.

It is in public interest that such permissions should not be granted. By denying such permission,
rights under Article 19 or 25 are not at all infringed. Use of loud-speakers for celebrating a
religious festival is not an essential part of any religion. There arises a necessity to decide
whether a particular community or a sect can claim the right to cause noise pollution in the
silence zone on the ground/pretext of religion.

Whether the beating of drums or reciting of prayers by use of microphones and loudspeakers so
as to disturb the peace or tranquillity of the neighbourhood should be permitted. It is undisputed
that no religion prescribes that prayers should be performed by disturbing the peace of others nor
does it preach that they should be through voice amplifiers or beating of drums. 13 The areas have
been specifically categorised as silent zones for a specific objective.

Therefore, the grant of permission for the usage of loud speakers/public address system in silent
zones wouldn’t be in consonance with the intent of the legislature. Hence it is well settled that
the Government of Tumbai cannot grant permission for the use of the loud speaker/public
address system for the Ganesh Chaturthi festival in silence zones.

2.2 Whether the authorities must designate and map silence zones and identify
boundaries and put-up silence zone boards in areas falling within the said
definition?
On the plain reading of the sub-rule 5 of rule 5, there has been an established standard (100m)
which has been prescribed. This standard should be followed around hospitals, educational
institutions and courts. The phrase ‘by the State Government’ creates an ambiguity and
henceforth there is need for the Government to take appropriate measures to designate and map
zones and identify and put-up silence zone boards in areas falling within the said definition.

13 Church of God (Full Gospel) in India vs. K.K.R. Majestic Colony Welfare Association and
Others, reported in (2000) 7 SCC 282, the Hon'ble Supreme Court
The proviso under sub-rule 5 also provides a discretionary power to the State Government to
notify a particular area in the silence zone. The Rule 3 (2) cast an obligation on the State
Government to categorize the area in industrial, commercial, residential and silence zone for the
purpose of implementation of noise standards for different areas.14

2.3 Whether use of public address systems or loudspeakers be permitted, if such

necessary licenses / permissions are issued by the State Government, and can such
permissions / licenses be extended to use of public address systems or loud
speakers in silence zones?
In view of Sub-Rule (5) of Rule 3, silence zone comprises an area within the distance of 100
meters around hospitals, educational institutions, and Courts. As educational institutions,
hospitals and courts have been defined in Rule 2, for applicability of Sub-Rule (5) of Rule 3, it is
not necessary to have a specific declaration issued in respect of the silence zone around hospitals,
educational institutions and Courts.15

As it is clear from clause 3 of the Schedule, only in the event any other area or additional area
(over and above 100 meters) is to be declared as a silence zone, a specific declaration will be
necessary. On plain reading of Sub-Rule (5) of Rule 3, a silence zone means an area of 100
meters on all sides of precincts of educational institutions, hospitals, religious places and courts
and not the area within the precincts of the said institutions.

The power to grant exemption is conferred on the State Government. It cannot be further
delegated. The power shall be exercised by reference to the State as a unit and not by reference
to districts, so as to specify different dates for different districts. It can be reasonably expected
that the State Government would exercise the power with due care and caution and in the public
interest. However, we make it clear that the scope of the exemption cannot be widened either by
increasing the number of days or by increasing the duration beyond two hours.

If that is attempted to be done, then the said sub-rule (3) conferring power to grant exemption
may be liable to be struck down as violative of Articles 14 and 21 of the Constitution. We also
make it clear that the State Government should generally specify in advance, the number and

14 Noise Pollution Rules, 2000 Rule 3 (2).

15 Dr. Mahesh Vijay Bedekar v State of Maharashtra, 2017 SCC Bom 2180
particulars of the days on which such exemption will be operative. Such specification would
exclude arbitrariness in the exercise of power. The exemption, when granted, shall not apply to
silence zone areas. This is only as a clarification as, this even otherwise is the position of law.16

It is of the Apex Court in a case extensively considered by the Division Bench of this Court
while deciding the case of Dr. Bedekar. We have also referred to an interim order of 25th
September 2003 which operated till 16th August 2016 when Dr. Bedekar's case was decided.
Thereafter, what is held in clause (xii) of paragraph 93 of the said Judgment is operative. Thus,
the silence zones which were in existence at least for 14 years are sought to be taken away by the
impugned Rules in a manifestly arbitrary manner.17

We may note here that clause (xii) of paragraph 93 of the said judgment which is upheld by the
Apex Court holds that silence zone comprises of an area within the distance of 100 meters
around the hospitals, educational institutions and Courts and it is not necessary for the State to
declare any such area as a silence zone. Thus, from the year 2003, the view taken by the Court is
that the area falling within the distance of 100 meters around the hospitals, educational
institutions and Courts will be considered as a silence zone though it was not specifically
declared to be so by the State Government.

Now, the contention of the State of Maharashtra as well as the Central Government is that no
silence zone is in existence from the date of the impugned Rules. If that is the interpretation put
by the State Government to the amended Rules, ex-facie, the amended Rules will violate the
fundamental rights of the citizens under Article 21 of the Constitution of India.

The law of the land is well settled that there shall be prohibition for grant of permission to use
loud-speakers in respect of silence zones as "defined and discussed" in the Principal Rules as
amended from time to time, though there was no declaration of silence zones. 18 Hence no such
permissions / licenses be extended to use of public address systems or loud speakers in silence
zones.

16 Farhd K. Wadia v. Union of India, (2009) 2 SCC 442

17 Id.
18 Id.
Hence in the present case, the mechanism set up for implementing the Noise Pollution
Amendment Rules is not valid and liable to be declared in violation of the principles of law.

3.WHETHER THE IMPUGNED RULES ARE

UNCONSTITUTIONAL OR NOT.

3.1 The State Legislature had passed this Impugned amendment Rules with
Malafide Intention:
The determination of a plea of mala fide involves two questions, namely

 whether there is a personal bias or an oblique motive; and

 whether the administrative action is contrary to the objects, requirements and
conditions of a valid exercise of administrative power.19

3.1.1 Presence of Personal Bias or an Oblique Motive

In the present case, the State Government had promulgated this impugned Noise Pollution
Amendment Rules with an oblique motive to secure vote bank of the religious fanatics who are
solely campaigning for the political parties who act in interest of their Religious propaganda
irrespective of conflict with the interest of the society. Hence this impugned is ultra vires,
unconstitutional, being against the objective and basic structure of the Indian Constitution. 20

3.1.2 Administrative action is contrary to the objects, requirements and conditions of a valid
exercise of administrative power.

The object of the Parent Act is to protect the people from being aggrieved due to Noise pollution
emitted by usage of loudspeakers. Further the Act requires Rules which empowers protection of
the Silence zones from Noise Pollution and regulation of use of loudspeakers. But in the present
case, the administrative power of the State government has been exercised contrary to the
objects, requirements and conditions for furthering the intent of the Parent Act.

19 State Of Bihar Etc. Etc vs P.P. Sharma, Ias And Anr, 1991 AIR 1260.
20 State Of Bihar Etc. Etc vs P.P. Sharma, Ias And Anr, 1991 AIR 1260
3.2 Use of Loud speaker is not a fundamental Right:
People of this great country belong to different castes and communities, have belief in different
religions and customs and celebrate different festivals. We are tolerant of each other. There is
unity in diversity. If relaxation is allowed to one there will be no justification for not permitting
relaxation to others and if we do so the relaxation will become the rule. It will be difficult to
enforce the restriction.21

It cannot be said that public health does not demand control of the use of such apparatus by day
or the night or in the vicinity of hospitals or schools or offices or habituated localities. The power
to legislate relation to public health includes the power to regulate the use of amplifiers or
producers of loud noises when the right of such user, by the disregard of comfort of and
obligation to others, emerges as a manifest nuisance to them.22

It is submitted that the parliament, on ascertaining the disastrous effect of ‘noise pollution’ have
placed restrictions on the silence zones. Heavy noises are a threat to heart, cancer & patients in
the hospitals. Possible clinical manifestations of stress concomitant with noise are : (i) galvanic
skin response, (ii) increased activity related to ulcer formation, (iii)changes in intestinal motility,
(iv)changes in skeletal muscle tension, (v) subjective response irritability perception of loudness,
(vi)increased sugar, cholesterol & adrenaline, (vii)changes in heart rate, (viii)increased blood
pressure, (ix) increased adrenal hormones, (x)vasoconstriction.23

Not only might there be harmful consequences to health during the state of alertness, but research
also suggests effects may occur when the body is unaware or asleep. 24 These effects are likely to
occur to the patients in the hospital on relaxation of rules/ permission of the use of loudspeakers.
Even if the relaxations are granted for a few hours, it would still be a threat for the patients.

In the case of Farhd K. Wadia, the Supreme Court has held interference by the Court in respect
of the noise pollution is premised on “necessity of silence”, “necessity of sleep”, “process during
the sleep and rest” which are biological necessities and essential for health. The Court further

21 In Re: Noise Pollution AIR 2005 SC 3136.

22 State of Rajasthan v Chawla, 1959 AIR 544
23 In re noise pollution, (2005) 5 SCC 733
24 Id.
held “it is considered to be one of the human rights as noise is injurious to human health which is
required to be preserved at any cost”.25

It has been held that Art. 19(1)(g) of the Constitution of India does not guarantee the
fundamental right to carry on trade or business which creates pollution or which takes away that
communities safety, health and peace. A citizen or people cannot be made a captive listener to
hear the tremendous sounds.26 The use of loudspeakers, amplifiers and carrying out processions
or holding mega events, cultural programmes cannot be said to be an intergral part of the right to
freedom of religion.27

That apart, freedom guaranteed is freedom of expression of ideas; not freedom of modes of
expression. Freedom of press means not so much the freedom to put ink on newsprint, as it is the
freedom to circulate ideas or thoughts. Where it otherwise, even a tax on newsprint may be
constitutionally impermissible. It is not so, as held in the Indian Express case28.

Likewise, freedom to express one's views to an audience, is not freedom to stand where one
likes, or in the middle of a road or to use a loudspeaker. There may be matters incidental to the
exercise of a right. But, they are not rights, in themselves. Not all matters peripheral to the
exercise of a fundamental right, are part of that right. 29 Hence the law of the land is not inclined
to hold that the right to use a loudspeaker is a fundamental right in itself. Sound pollution is an
accepted danger, and indiscriminate use of loud-speakers cannot be permitted.30

It is submitted in the present case, that the impugned rules is evidently infringing the principles
of Indian constitution, two-fold namely:

 Violation of Article 14
 Violation of Article 21

25 Farhd K. Wadia v. Union of India, (2009) 2 SCC 442

26 Burrabazar Fireworks Dealers Association v. Commissioner of police, AIR 1998 Cal 121
27 Ajitnath Co-opertaive Housing Soceity Ltd v State of Maharashatra, 2016 SCC Bom
11501
28 Indian Express Newspapers Pvt. Ltd. and others v Union of India and others AIR 1986 SC 515.
29 Jacob vs. Superintendent of Police. 1992(2) KLT 238.
30 Venu Vs Director General of Police. 1990(2) KLT 86.
3.3 Violation of Article 14
The impugned Rules will not stand the test of Article 14 for two reasons. The first is that there is
no nexus between the impugned Rules and the object sought to be achieved by the impugned
Rules framed in exercise of powers under Rule 5 of 1986 Rules. Secondly, the exercise of power
is manifestly unreasonable and arbitrary as there is no prior publication made as required by
clause (a) of Sub-Rule 3 of Rule 5 of 1986 Rules.

The Act to the extent it takes away the appointments already made, some of the petitioners had
been appointed much before enforcement of the Act in implementation of this Court's decision,
would be unreasonable, harsh, arbitrary and violative of Article 14 of the Constitution. The law
does not permit the legislature to take back what has been granted in implementation of the
court's decision. Such a course is impermissible”.31

3.3.1 No prior notice/ against public interest:

Without prejudice to the said contention, It is urged that the impugned Rules are unconstitutional
being contrary to the provisions of 1986 Act and 1986 Rules. Further it is a colourable exercise
of powers.

It is submitted that the impugned Rules are violative of fundamental rights of the citizens under
Article 21 of the Constitution of India. It is urged that the impugned Rules lead to manifest
absurdity, absurd inconvenience and anomaly. The attention of the Hon’ble court is invited to the
fact that there is a non-compliance with the requirements of clause (a) of Sub-Rule 3 of Rule 5 of
1986 Rules.32

The provisions of clauses (a), (b) and (c) of Sub-rule (3) of Rule 5 of 1986 Rules are mandatory
in nature, in as much as, whenever it is intended to impose prohibition or restrictions as
contemplated by Rule 5, the Central Government is under a mandate to notify its intention to do
so in official gazette and in such other manner as it may deem fit. Only when the Central
Government is satisfied that it is in public interest to do so, it may dispense with the requirement
of prior publication of notice under clause (a) of Sub-Rule 3.33

31 Virender Singh Hooda vs State of Haryana, (2004) 12 SCC 588

32 Ajay Marathe vs. Union of India, 2017 SCC Bom 8363
33 Id.
And whereas, sub-rule (4) of rule 5 of the said rules provide that, notwithstanding anything
contained in sub-rule (3), whenever it appears to the Central Government that it is in public
interest to do so, it may dispense with the requirement of notice under clause (a) of sub-rule (3)
of rule 5." In this case, there is 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 1986 Rules.

It is humbly submitted that even if restricted meaning is given to the procedure established by
law, as the requirement of clause (a) of Sub-Rule 3 of Rule 5 of 1986 Rules of prior publication
of Rules for inviting objections and suggestions from the citizens has not been followed, the
procedure established by law has not been followed.

3.3.1 Absence of reasonable nexus:

Further the amendment brought out is manifestly arbitrary and unreasonable. Another submission
of the intervenors is that the amendment made by the impugned Rules will have to be read in
such a manner which would advance the scheme and purpose of the Principal Rules and not to
defeat the same and lead to absurdity.34

The courts strongly lean against any construction which tends to reduce a statute to futility.
The provision of a statute must be so construed as to make it effective and operative, on the
principle "ut res magis valent quam pereat". It is, no doubt, true that if a statute is absolutely
vague and its language wholly intractable and absolutely meaningless, the statute could be
declared void for vagueness. This is not in judicial review by testing the law for arbitrariness
or unreasonableness under Article 14; but what a court of construction, dealing with the
language of a statute, does in order to ascertain from, and accord to, the statute the meaning
and purpose which the legislature intended for it."

It is contended that the proviso added to Sub-Rule 5 of Rule 3 refers to a notification issued in
accordance with Sub-Rule 2 of Rule 3 though Sub-Rule 5 contemplates a declaration of silence
zone for the purpose of the Principal Rules. It is pointed out that Sub-Rule 2 of Rule 3, which is

34 Mandal Revenue Office v. Goundla Venkaiah and Another MANU/SC/0026/2010 : (2010) 2

SCC 461, H.S. Vankani and Others v. State of Gujarat and Other MANU/SC/0175/2010 :
(2010)4 SCC 301.
referred in proviso added to Sub-Rule 5 refers to categorization of an area into industrial,
residential and silence zones.

It is contended that the proviso to Sub-Rule (5) which refers to Sub-Rule 2 of Rule 3 uses the
word 'notified' though Sub-Rule 2 of Rule 3 talks about categorization and not a notification. The
submission is that the conjoint reading of Sub-Rule 5 of Rule 3 along with the proviso would
show that as area falling within the distance of 100 meters around the hospitals, educational
institutions and Courts is already declared as silence zone under the unamended Principal Rules,
the said areas will continue to be so even after coming into force of the impugned Rules.

The proviso added by way of the impugned Rules will apply only if some other area is to be
declared as a silence zone. Hence it is submitted that as the object of the Principal Rules and
1986 Act is to save citizens from noise pollution, such classification which is made does not
have any intelligible differentia and does not establish any rational nexus with the object sought
to be achieved. Therefore, it violates Article 14 of the Constitution of India.

3.4 Violation of Article 21

Article 21 of the Constitution guarantees life and personal liberty to all persons. It is well settled
by repeated pronouncements of this Court as also the High Courts that the right to life enshrined
in Article 21 is not of mere survival or existence. It guarantees a right of persons to life with
human dignity. Therein are included, all the aspects of life which go to make a person's life
meaningful, complete and worth living.

Human life has its charm and there is no reason why life should not be enjoyed along with all
permissible pleasures. Anyone who wishes to live in peace, comfort and quiet within his house
has a right to prevent noise as pollutant reaching him. None can claim a right to create noise
even in his own premises which would travel beyond his precincts and cause nuisance to
neighbours or others. Any noise which has the effect of materially interfering with the ordinary
comforts of life judged by the standard of a reasonable man is a nuisance. How and when a
nuisance created by noise becomes actionable has to be answered by reference to its degree and
the surrounding circumstances, the place and the time.35

35 Noise Pollution (V), IN RE MANU/SC/0415/2005 : (2005) 5 SCC 733, Para 10,11.

Those who make noise often take shelter behind Article 19(1)(a) pleading freedom of speech and
right to expression. Undoubtedly, the freedom of speech and right to expression are fundamental
rights but the rights are not absolute. Nobody can claim a fundamental right to create noise by
amplifying the sound of his speech with the help of loudspeakers. While one has a right to
speech, others have a right to listen or decline to listen.

Nobody can be compelled to listen and nobody can claim that he has a right to make his voice
trespass into the ears or mind of others. Nobody can indulge in aural aggression. If anyone
increases his volume of speech and that too with the assistance of artificial devices so as to
compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels,
then the person speaking is violating the right of others to a peaceful, comfortable and pollution-
free life guaranteed by Article 21 of the Indian Constitution36.

Article 19(1)(a) cannot be pressed into service for defeating the fundamental right guaranteed by
Article 21. We need not further dwell on this aspect. Two decisions in this regard delivered by
the High Courts have been brought to our notice wherein the right to live in an atmosphere free
from noise pollution has been upheld as the one guaranteed by Article 21 of the Constitution.37

In a recent decision in a case, the Apex Court reiterated the law laid down earlier. The position
can be summarized as under:-

(a) Article 21 of the Constitution guarantees life and personal liberty to all persons. It
guarantees a right of persons to live with human dignity. Therein are included, all
the aspects of life which go to make a person's life meaningful, complete and
worth living;
(b) Anyone who wishes to live in peace, comfort and quiet within his house has a
right to prevent the noise as a pollutant reaching him;
(c) Nobody can be compelled to listen and nobody can claim that he has a right to
make his voice trespass into the ears or mind of others; (d) If anyone increases his
volume of speech and that too with the assistance of artificial devices so as to
compulsorily expose unwilling persons to hear a noise raised to unpleasant or
36 Free Legal Aid Cell Shri Sugan Chand Aggarwalv. Govt. of NCT of Delhi [AIR 2001 Del 455 : (2001) 93 DLT
28 (DB)
37 P.A. Jacobv. Supdt. of Police [AIR 1993 Ker 1]
 obnoxious levels then the person speaking is violating the right of others to a
peaceful, comfortable and pollution-free life guaranteed by Article 21.
(d) The right to live in an atmosphere free from noise pollution is a part of Article 21;
and,
(e) The Apex Court recognized the noise as a pollutant which pollutes the
environment. In the same decision, the Apex Court accepted that noise is a major
health hazard. The Apex Court has set out eight instances of adverse impact of
noise on the health of human beings including its impact even on the unborn.38

It is submitted that the impugned Rules also violate the fundamental rights guaranteed by Article
21 of the Constitution of India. In the present case instead of imposing restrictions and
prohibition, by the impugned Rules, the prohibition is sought to be taken away and therefore, the
proposed amendment is not at all in public interest. The submission is that the exercise of the
Rule making power is far from being in public interest. The action of doing away with silence
zones is the violation of the rights under Article 21. Hence the impugned Rules offend
fundamental right to live peacefully and free from noise pollution.

It is contended that the procedure established by law as contemplated by Article 21 has to be

tested by referring to Article 14 of the Constitution of India. It is submitted that even if restricted
meaning is given to the procedure established by law, as the requirement of clause (a) of Sub-
Rule 3 of Rule 5 of 1986 Rules of prior publication of Rules for inviting objections and
suggestions from the citizens has not been followed, the procedure established by law has not
been followed.39

It is submitted that if interpretation of the State Government that no silence zone is in existence
after coming into force of the impugned Rules is accepted, it amounts to violation of Article 21
of the Constitution of India. It is quintessential to note that the impugned Rules are
unconstitutional as there is a vacuum created in the sense that there is no silence zone in
existence.40 It is contended that the Court always has a power to ensure that directions are issued

38 Anirudh Kumar v. MCD MANU/SC/0311/2015 : (2015) 7 SCC 779

39 Justice K.S. Puttaswamy (Retd.), and Anr v. Union of India and Ors MANU/SC/0911/2017
40 Shaikh Yusuf Bhai Chawala and others v. State of Maharashtra and others 2011(6) Mh.L.J.
691
so that the vacuum does not remain.41 It is urged that power to fill in the gap or the vacuum has
been exercised by this Court under Section 151 of the Code of Civil Procedure 1908.42

As stated earlier, in the impugned Rules, there is no recital that the Central Government is of the
opinion that it is in the public interest to dispense with the requirement of notice under Sub-Rule
(3) of Rule 5 of the 1986 Rules. The fifth recital in the impugned Rules merely refers to the
power which is conferred under Sub-Rule (4) of Rule 5 of 1986 Rules without recording that the
said power was in fact exercised.

Had the prior publication been made, the citizens could have pointed out the ill effects of the
proposed amendments and the fact that the same violate their fundamental rights under Article
21. In fact, in the light of the rights guaranteed under Article 21, no one is entitled to use loud-
speakers as a matter of right. From the submissions made across the Bar on behalf of the State
Government it appears to us that the State is under a misconception that in certain cases, by not
allowing the use of loud-speakers within distance of 100 meters from a Hospital, School/college
or Court, as the case may be, rights of handful of citizens will be affected.43

At this stage, we may make use of a recent decision of Bench of the Apex Court in case of
Justice A.N. Puttaswamy and others wherein the Apex Court has dealt with Article 21 of the
Constitution of India while examining whether right of privacy is a part of Article 21. In
paragraph 165 of the said decision, the Apex Court has held thus:- "When the validity of a law is
questioned on the ground that it violates a guarantee contained in Article 21, the scope of the
challenge is not confined only to whether the procedure for the deprivation of life or personal
liberty is fair, just and reasonable.

Substantive challenges to the validity of laws encroaching upon the right to life or personal
liberty have been considered and dealt with in varying contexts. A person cannot be deprived of
life or personal liberty except in accordance with the procedure established by law. Article 14, as
a guarantee against arbitrariness, infuses the entirety of Article 21.” In the present case it has
already been established that there has been no due procedure of law being followed during the
notification of the impugned Rules.

41 Lalit Kumar Modi v. Board of Control for Cricket in India and Others (2011)10 SCC 106
42 Sangeeta Balkrishna Kadam v. Balkrishna Ramchandra Kadam AIR 1994 BOM 1.
43 Supra 15.
A particular fundamental right cannot exist in isolation in a watertight compartment. One
fundamental right of a person may have to coexist in harmony with the exercise of another
fundamental right by others and also with reasonable and valid exercise of power by the State in
the light of the Directive Principles in the interests of social welfare as a whole.44

The inter-relationship between the guarantee against arbitrariness and the protection of life and
personal liberty operates in a multi-faceted plane. First, it ensures that the procedure for
deprivation must be fair, just and reasonable. Second, Article 14 impacts both the procedure and
the expression "law". A law within the meaning of Article 21 must be consistent with the norms
of fairness which originate in Article 14. As a matter of principle, once Article 14 has a
connection with Article 21, norms of fairness and reasonableness would apply not only to the
procedure but to the law as well."

In this case the norms of fairness and reasonableness have clearly been violated both in
accordance with the procedure and also the law as well. Hence the impugned Rules are clearly
violative of Article 14 and 21 of the Indian Constitution and are liable to be declared
unconstitutional and strike down.

4. WHETHER THE IMPUGNED RULES IS VALID BEFORE THE

EYES OF LAW?
The impugned rules in the present case is a Subordinate legislation which were framed by the
Central Government in exercise of the powers conferred by 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, 1977 (Parent Act) read with Rule 5 of the Environment
(Protection) Rules, 1977.

A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed
by a statute passed by a competent legislature. Subordinate legislation may be questioned on any
of the grounds on which plenary legislation is questioned. In addition it may also be questioned
on the ground that it does not conform to the statute under which it is made. It may further be
questioned on the ground that it is contrary to some other statute. That is because subordinate
44 Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj v. State of Gujarat [(1975) 1
SCC 11]
legislation must yield to plenary legislation. It may also be questioned on the ground that it is
unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is
manifestly arbitrary.45

Hence a subordinate legislation can be challenged under any of the following grounds:

● Lack of legislative competence to make the subordinate legislation.

● Violation of fundamental rights guaranteed under the Constitution of India.
● Violation of any provision of the Constitution of India.
● Failure to conform to the statute under which it is made or exceeding the limits of
authority conferred by the enabling Act.
● Repugnancy to the laws of the land, that is, any enactment.
● Manifest arbitrariness/unreasonableness (to an extent where the court might well
say that the legislature never intended to give authority to make such rules).46

The court considering the validity of a subordinate legislation, will have to consider the nature,
object and scheme of the enabling Act, and also the area over which power has been delegated
under the Act and then decide whether the subordinate legislation conforms to the parent statute.

Where a rule is directly inconsistent with a mandatory provision of the statute, then, of course,
the task of the court is simple and easy. But where the contention is that the inconsistency or
non-conformity of the rule is not with reference to any specific provision of the enabling Act, but
with the object and scheme of the parent Act, the court should proceed with caution before
declaring invalidity."

4.1 Violation of fundamental rights guaranteed under the Constitution of India.

Article 14 and 21 of the Indian Constitution has been clearly violated by the impugned rules and
the same has been established in Issue 3.3 and 3.4 of the memorandum. Hence the Noise
Pollution Amendment Rules is to be held invalid failing the test for validity.

45 Indian Express Newspapers (Bombay) (P) Ltd.v. Union of India [MANU/SC/0406/1984 : (1985) 1 SCC 641 :
1985 SCC (Tax) 121
46 State of Tamil Nadu and another v. P. Krishnamurthy and others MANU/SC/1581/2006 : (2006) 4 SCC 517
4.2 Violation of any provision of the Constitution of India.
The enactment of the impugned Rules clearly falls within the scope of the doctrine of colourable
legislation and is well-explained by the Supreme Court in the matter of K.C Gajapati Narayan
Deo vs. State of Orissa47, the court stated:

“If the constitution of a State allocates the legislative controls among diverse bodies, which have
to act within their respective domains marked by the constitution in certain legislative entries, or
if there are restrictions on the legislative power in the shape of Fundamental Rights, the query
arises as to whether the Legislature in a specific case has or has not, in the respect to the
subject-matter of the law or in the method of enacting it, transgressed the limits of its
constitutional authorities. Such transgressions may be patent, manifest or direct, but it may also
be masked, covert or indirect, or and it is to this latter class of cases that the expression-
colourable legislation has been applicable in judicial pronouncements.”

In the present case the state government had made this Amendment to the Principle rules with an
indirect transgression over the fundamental rights under Article 14 and 21 of the Indian
Constitution. Further it has been established that this impugned rule is a result of furtherance of
Political motive to secure vote bank of the religious fanatics who are solely campaigning for the
political parties who act in interest of their Religious propaganda irrespective of conflict with the
interest of the society. Hence the present case is in violation of the Constitutional Provisions and
it is a colourable legislation.

4.3 Failure to conform to the statute under which it is made or exceeding the limits
of authority conferred by the enabling Act.
There is no specific order passed by any competent authority recording its satisfaction in terms
sub-rule (4) of Rule 5 of 1986 Rules. Thus, there was a mandatory requirement of prior
publication permitting the members of the public to submit objections and suggestions, but the
same has not been complied with in this case. Thus, the exercise is ex-facie illegal being contrary
to Sub-Rule (3) of Rule 5 of the 1986 Rules. This has already been established in the Issue 3.3.1
of the Memorandum.

47 1953 AIR 375, 1954 SCR 1

4.4 Manifest arbitrariness/unreasonableness (to an extent where the court might
well say that the legislature never intended to give authority to make such rules)
We may note here that if the interpretation put by the State Government as well as Central
Government to the impugned Rules is correct, the effect of the amendment will be that as of
today, no silence zone exists in the State of Maharashtra as the State Government has not
declared any area as a silence zone acting upon the impugned Rules. Thus, the use of loud-
speakers and other prohibited activities as specified in Rule 6 of the Principal Rules can be
permitted within a distance of 100 meters from Courts, Hospitals, and schools/colleges. If such
permissions are granted, the same will violate fundamental rights under Article 21 of the
Constitution of India. 48

Even assuming that there was an exercise of powers under Sub-Rule (4) of Rule 5 of 1986 of
dispensing with prior publication under Sub-Rule (3) thereof, the said exercise of powers is ex-
facie against Public interest especially when the case of both the Governments is that the silence
zones under the unamended Principal Rules in terms of the decision of this Court in the case of
Dr. Mahesh Bedekar now no longer exist. In view of the fact that the right to lead a noise
pollution free life is a part of Article 21, the impugned Rules which purport to abolish all existing
silence zones cannot be said to have been framed in public interest. Surely, dispensing with the
requirement of prior publication is not at all in public interest.

Since the Noise Pollution Amendment Rules are clearly not in furtherance of the public interest
and the Parent Act never intended to vest such discretion to make the amendment to the Noise
Pollution Rules. Hence exercise of this unintended power to make the following Noise Pollution
Amendment Rules is creating manifest arbitrariness and hence the same is liable to be declared
as invalid before the eyes of law.

48 Noise Pollution (V), IN RE (supra).

 PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this
Hon‘ble Court be pleased to hold that:

● The Mechanism setup by the State for implementing the Noise Pollution (Management &
Control) Amendment Rules 2015, to be in violation of principles of law.
● The Noise Pollution (Management & Control) Amendment Rules 2015 in violation of the
Constitution of Indiana
● And correspondingly the Impugned Rules is clearly invalid before the Eyes of law and
shall be struck down with immediate effect.

AND/OR
Pass any other order it may deem fit, in the interest of Justice and Good Conscience.

All of which is most humbly and respectfully submitted.