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MUMBAI: A Bombay High Court division bench on Thursday refused to recuse itself from hearing noise related matters after the State government alleged one of the judges is "harbouring serious bias' against it.

Justice Abhay Oka and Justice Riyaz Chagla , however, deferred the hearing till 3 pm as the State's application to the chief justice for clubbing and transfer of all matters will be heard before that.

Following the August 10, 2017 Central amendment to the Noise Pollution ( Regulation and Control) Rules , the bench was examining whether it will affect implementation of the High Court's directions issued in the August 2016 judgment in which it held that that areas not less than 100 meters around of hospitals, educational institutions, courts and religious places are deemed silence zone. The amendment held that an area cannot be considered a silence zone unless it is notified by the State government.

Advocate General Ashutosh Kumbhakoni had submitted that in view of the amendment the direction regarding deemed silence zones cannot be enforced and that it will notify new silence zones. On Wednesday, the bench informed the AG that the August 2016 judgment shall continue to operate with full force until it is challenged. The AG returned in the afternoon session to state that the State government will move the court for modification of the order but directions issued for silence zones were operable. The bench said it refuses to accept the stand of the State that silence zones don't exist.

When the court assembled today Kumbhakoni submitted the application dated August 24 for transfer made on instructions of Vijay Patil, deputy secretary, Home Department. "In the said letter it is stated that one of the two judges (Justice A S Oka) is harbouring serious bias in the matter against the State machinery," the bench noted

The court said it had expressed only a prima facie view to enable the AG to take instructions and to address the court further.

"We are shocked to record all this. We follow consistent tradition of making prima facie observations to the counsels of parties in order to ensure the best is brought out of them," it noted.

The judges recorded all that transpired in the hearing since the past two day and said it they will not deal with whether there is substance in allegation of bias. But that mentioned that the State should have had respect for the high office of the advocate general who is a constitutional functionary. "Suffice to say, by this conduct the State government has made the position of the advocate general, who is leader of the bar and who is officer of the court first, most awkward," it added.

The court also recorded submissions of advocates representing petitioners on whose public interest litigation the August 2016 judgment was passed. Advocate Birendra Saraf for NGO Awaaz Foundation, said this is nothing but "to make Ganpati festival a fait accompli and to ensure lots of noise is made in all silence zones." Senior advocate S M Gorwadkar, representing Dr Mahesh Bedekar of Thane, said it is "not just motivated but politically motivated." Senior advocates Anil Anturkar for Ajay Marathe who has challenged the constitutional validity of the August 10, 2010 amendment to the Noise Pollution (Regulation and Control) Rules 2000 said the court should put its foot down and deal with such allegations."It indicates test of times to come."

