Plea Seeking Modification Of U'khand HC Judgment On Maximum Loudspeaker Limit Referred To Third Judge

The plea seeking modification of a directive issued by the Uttarakhand High Court in its 2018 judgment setting maximum noise level for loudspeakers will be heard by a third Single judge, as the division bench gave split verdict on the issue.

Earlier, Live Law had reported that the High Court has modified the directive as the order authored by the  Chief Justice Ramesh Ranganathan uploaded in the High Court website showed names of both the judges of the division bench at its end.

Now another order authored by Justice Lok Pal Singh in the same matter, which also has the names of both the judges at its end, has been uploaded in the Website. Vide this order, Justice Singh has dismissed the modification application on the ground that the applicant, who was not the party to the proceedings, cannot maintain the modification/correction application for amendment of the judgment under Section 152 of the Code of Civil Procedure .

"Assuming that the applicant is an aggrieved person, then at the best he could have filed a review application before this Court u/s 114 r/w Order 47 Rule 1 of the Code. But in the present case instead of moving a review application, modification application has been filed u/s 152 CPC and that too by a stranger. As has been observed in the preceding paragraphs the criteria of section 152 and Section 114 read with Order 47 Rule 1 of the Code are entirely different thus the modification application is misconceived and is liable to be rejected on this ground also"

Justice Singh also questioned the Constitution of the bench. He observed:

Admittedly, the Division Bench of Hon'ble the Chief Justice and Hon'ble Justice R.C. Khulbe, while hearing WP(PIL) No.63 of 2020 had opined that the applicant should move a modification application seeking modification of judgment and order dated 19.06.2020, if he is aggrieved. On such advice, the applicant moved the present modification application, whereafter a Bench was constituted by Hon'ble the Chief Justice, comprising himself and me (Lok Pal Singh, J.). It is pertinent to mention that the judgment sought to be modified was delivered by the Division Bench comprising of Hon'ble Rajiv Sharma, ACJ and me (Lok Pal Singh, J.). In my firm opinion, Hon'ble Chief Justice by giving opinion to the applicant Munawar Ali in WP(PIL) no. 63 of 2020 to file modification application, has expressed his view to the effect that judgment and order dated 19.06.2020 is liable to be modified. In such a situation, Hon'ble the Chief Justice should not have constituted the present Bench comprising himself on the principle of natural justice "Nemo iudex in causa sua", i.e. no person shall be a judge in his own cause. Though Hon'ble the Chief Justice has no direct or indirect connection in the 26 matter but the fact remains that he has expressed his view at the time of hearing WP(PIL) no. 63 of 2020.

The Judge also expressed his displeasure about the statement made by counsel for the applicant that 'if a member of the Division Bench (Justice Lok Pal Singh) is not inclined to grant any relief to the applicant, the modification application should be dismissed'. The judge said that this statement amounts to withdrawal of his claim and disentitles the applicant for grant of any relief. While dismissing the application, the Judge observed:

"As soon as such statement was made by the learned counsel for the applicant, the application should have been dismissed at the threshold. Such statement of applicant's counsel amounts to abandonment of the claim and it would be considered as withdrawal of claim, as enshrined in Order 23 Rule 1 CPC."

Click here to Download/Read Order

Click here to Read/Download Order of Justice Lok Pal Singh