ASN 1 NMS-483 IN THE HIGH COURT OF JUDICATURE AT BOMBAY. ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.483 OF 2011 IN PUBLIC INTEREST LITIGATION NO.116 OF 2009 Wecom Trust & Ors. ..Petitioners Versus Union of India & Ors. ..Respondents And Bengal Club ..Applicants Mr. Nikhil Sakhardande, Sandeep Aole, mr. Nikhil Davare, Mr. Kaustan Talukdar i/by M/s. Udadia & Udeshi for the Petitioners in PIL/WP No. 116/2009. Ms. Mamta Sadh and i/b. Roys’ Law Firm for the Applicants in Notice of Motion No.483/2011. Mrs. Geeta Joglekar for the Respondent-BMC. Mr.M.D.Naik, AGP. for the State. Mr.H.V.Mehta for Respondent No.1. Mr.Deepika Paniya i/by Sharmila Deshmukh for Respondent No.4. CORAM: MOHIT S. SHAH, C.J. AND MRS. ROSHAN DALVI, J. DATED : 5 October 2011. ASN 2 NMS-483 P.C. The applicants claim to be the tenants of the vacant land tenancy granted by the Municipal Corporation for Greater Mumbai in respect of the portion of Shivaji Park ground admeasuring about 14,080 square yards surrounding the land on which Bengal Club Pavilion admeasuring 2640 square yards is situated. The applicants have been organizing Durga Puja and Kali Puja functions on the said land for the last about 40 years. Last year also, the applicant had prayed for directions in Writ Petition No.2152 of 2010 challenging the refusal by the Municipal Corporation to grant permission for organizing Durga Puja and Kali Puja on the aforesaid portion of the Shivaji Park ground by order dated 29 September 2010. This Court had directed the Municipal Corporation to grant permission to perform Durga Puja for 7- days and Kali Pooja for 3-days subject to certain conditions. 2 This year also the applicants applied for such permission but since it was refused on the ground that interim order was passed by this Court in PIL No.116 of 2009 and the applicants filed L.C.Suit No. 1837 of 2011 praying for the following reliefs. “(a) That this Hon’ble Court be pleased to declare that during the subsistence of the tenancy granted by the defendant to the plaintiff club of the Club premises being a portion admeasuring 14,080 square yards of the Shivaji Park Ground, Dadar, Mumbai, the plaintiff club is fully entitled to organize Durga Puja and Kali Puja in the Club Premises Veer Savarkar Marg, Shivaji Park, Dadar, Mumbai-400 028 in the manner and scale it deems fit without the necessity of any permission from the Defendant, subject to compliance with all concerned statutory requirements and obtaining of permissions from ASN 3 NMS-483 concerned authorities required as per law including those relating to erection of temporary pandals, safety, security, noise and environmental pollution; (b) That this Hon’ble Court be pleased to declare that for organizing Durga Puja and Kali Puja in the Club premises, the defendant cannot impose any additional conditions on the plaintiff Club, either akin to those imposed on the outsiders to the Shivaji Park grounds or otherwise.” 3 The applicants also filed Notice of Motion No.1837 of 2011 in the City Civil Court and by order dated 12 September 2011 City Civil Court allowed the Notice of Motion in the following terms:- “1 Notice of Motion is allowed. 2 Issue temporary mandatory injunction directing the defendants to permit plaintiff to perform Durga Puja and Kali Puja in leasehold area of 14,080 square yards on 2.10.2011 to 6.10.2011 and Kali Puja on 26.10.2011 to 27.10.2011. 3 The arrangement of Puja like making of order will not disturb remaining part of Shivaji Park area which is declared as silent zone. 4 The plaintiff will not use loud speakers except for the purpose of making urgent public announcement for safety of large number of people gathered. 5 The plaintiff shall organize entertainment programme in close auditorium. 6 Plaintiff shall take care that there be shall no possibility of noise pollution. ASN 4 NMS-483 7 No vehicle shall be allowed to enter and park in the Shivaji park ground or any of its portion. 8 The litter will be cleared off from day to day. 9 Few vehicles will be bought on the ground only for the purposes of bringing and taking out the idols on the first and last days of the Durga and Kali Puja.” 4 The writ petitioner in PIL No.116 of 2009 challenged the said order before the learned Single Judge of this Court by filing Appeal from Order Stamp No.26139 of 2011 and also prayed for stay of the said order of the City Civil Court by filing Civil Application Stamp No. 26141 of 2011. The learned Single Judge by order dated 30 September 2011 stayed the order dated 12 September 2011 of the City Civil Court but granted liberty to the applicants to move this Court by making an application in the pending PIL for securing the aforesaid relief. Hence, the applicants have moved this Notice of Motion. 5 It is the grievance of the PIL Petitioner that Shivaji Park ground should not be allowed for non sports activities and in view of the provisions of Section-37A of the Maharashtra Regional, and Town Planning Act, 1966 PIL-Petitioner contended that Shivaji Park ground has been declared as silence zone and therefore, loud speakers should not be allowed to be used. ASN 5 NMS-483 6 Last year this Court directed the Municipal Corporation to permit the applicants to organize Durga Puja and Kali Puja subject to various conditions including the condition that the applicants will not use loud speakers on the play ground except for the purpose of making urgent public announcements for the safety of large number of persons gathered there, such as announcement for security arrangement and other announcements. It was further directed that the entertainment programmes were to be organized in a closed auditorium so that there will be no possibility of any noise pollution. 7 The learned Single Judge has stayed the operation of the interim order dated 12 September 2011 of the City Civil Court only on the ground that it was not open to the applicants to file independent proceeding and that the applicants could have moved this Court by filing application in the pending PIL. 8 Having heard the learned counsel for the parties and particularly, having regard to the fact that the applicants Bengal Club are claiming to have tenancy rights in respect of the land in question under the vacant land tenancy granted by the Municipal Corporation and that such allotment was made as far as back in the year 1949, it would not be just and proper on the part of the respondent-Corporation to refuse to grant permission to organize Durga Puja and Kali Puja every year and to require the applicants to take out notice of motion in the pending PIL when this Court had already indicated the terms and conditions on which permission ought to be granted. Hence, only on the ground that the applicants’ claim tenancy rights in respect of the land in question under the vacant land tenancy granted by the Municipal Corporation as ASN 6 NMS-483 far as back in 1949, we direct the Municipal Corporation for Greater Mumbai to permit the applicants to organize Durga Puja for 7-days in a year and Kali Puja for 3 days every year subject to the following terms and conditions which were imposed by the City Civil Court. “1 The arrangement of Puja like making of order will not disturb remaining part of Shivaji Park area which is declared as silent zone. 2 The plaintiff will not use loud speaker except for the purpose of making urgent public announcement for safety of large number of people gathered. 3 The plaintiff shall organize entertainment programme in close a auditorium. 4 The Plaintiff shall take care that there be shall no possibility of noise pollution. 5 No vehicle shall be allowed to enter and park in the Shivaji park ground or any of its portion. 6 The litter will be cleared off from day to day. 7 Few vehicles will be bought on the ground only for the purposes of bringing and taking out the idols on the first and last days of the Durga and Kali Puja.” 9 It will be open to the Municipal Corporation to impose any additional conditions which may be required to be imposed at any given point of time looking to the exigency then prevailing. 10 It is clarified that every year the applicants will have to make application to the Municipal Commissioner for permission to use ASN 7 NMS-483 the land in question for organizing Durga Puja and Kali Puja and the Municipal Corporation for Greater Mumbai shall consider the same. But the application shall not be refused on the ground of pendency of the PIL and the interim orders passed therein. 11 Notice of Motion stands disposed of. (CHIEF JUSTICE) (ROSHAN DALVI, J.)