mst 1 WP.2152.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO.2152 OF 2010 Bengal Club and another Petitioners versus State of Maharashtra and others Respondents WITH PIL WRIT PETITION NO. 116 OF 2010 WITH NOTICE OFMOTION NO.479 OF 2010 IN PIL WRIT PETITION NO.116 OF 2010 Wecom Trust and others Petitioners versus The Union of India and others Respondents Mr.Shailesh Shah with Mamta Sadh and A.Roy i/by Roys' Law Firm for petitioners. Mr.M.D.Naik, AGP for respondent no.1. Mr.K.K.Singhvi, Sr.Adv. with Geeta Joglekar and Vidya Gharpure for respondent no.2. Mr.D.D.Madon, Sr.Adv. with Soumya Srikrishna i/by Udwadia and Udeshi& Co. for appellants in Notice of Motion No._____/2010. Mr.H.V.Mehta for respondent no.1. Union of India in PIL No. 116/09. mst 2 WP.2152.10 CORAM : MOHIT S. SHAH, C.J. AND DR. D.Y. CHANDRACHUD, J. DATE : 29th September 2010 P. C. : 1. By this petition under Article 226 of the Constitution of India, the petitioner no.1 Bengal Club, which is a public charitable trust under the Bombay Public Trust Act and its office bearers, have prayed for a declaration that during the subsistence of the Vacant Land Tenancy granted by respondent no.2 to petitioner no.1 of a portion of Shivaji Park Ground and upon petitioner no.1 complying with the necessary statutory provisions relating to noise pollution, petitioner no.1 is fully entitled to organize Durga Puja and Kali Puja upon the said portion of Shivaji Park admeasuring about 11,400 sq.yards surrounding the land on which Bengal Club Pavilion admeasuring 2,640 sq.yards is situate. The petitioners have also prayed for quashing of a letter dated 6th September 2010 of the respondent Municipal Corporation refusing to grant permission to petitioner no.1 club to organize the Durga Puja and Kali Puja for 2010. The petitioners have prayed for a direction to the concerned Departments to grant the petitioners permission for organizing the said Pujas for 2010 on the aforesaid portion of Shivaji Park ground. 2. The petitioners' case is that they were the tenants on a plot of land adjoining Keluskar Road; that in 1949 the petitioners surrendered the said land and in lieu thereof, the petitioner club was allotted by the respondent Municipal Corporation a plot of mst 3 WP.2152.10 land admeasuring about 11,400 sq.yards in Shivaji Park area. The said land admeasuring 11,400 sq.yards was allotted to the petitioner on tenancy basis and the petitioner club took over the possession thereof on 21st December 1949. That by letter dated 19th March 1950 the respondent Corporation notified the rent to be paid by the petitioner club in respect of the aforesaid plot of 11,440 sq.years in Shivaji Park and for adjustment of the deposit paid in respect of the Keluskar Road plot towards the deposit payable in respect of the plot of 11,440 sq.yards. By letter dated 1st May 1950 the respondent Corporation redetermined the rent for the said land. The petitioners further relied on the endorsement made by the concerned official of the respondent Corporation on the letter dated 9th May 1950 that no portion of the land let out to the petitioner be allowed to use of any other club or individual. The same was intimated by letter No.EASR/4847 to the petitioner club. By letter dated 2nd May 1952, the respondent Corporation allotted an additional plot of 2,640 sq.yards to the east of plot of 11,640 sq.yards in Shivaji Park to the petitioner club which allotment was done on tenancy basis. The said additional plot was handed over to the petitioner club on 13th March 1956. The petitioners claim that the petitioner club is the tenant in respect of plot of 14,080 sq.yards. 3. Despite this, the issue raised in the present petition is about petitioners' right to organize Durga Puja for seven days and Kali Puja for three days. 4. The challenge in the present petition is to the communication dated 6th September 2010 (Exhibit-L) by which mst 4 WP.2152.10 the respondent Municipal Corporation has rejected the petitioners' application dated 24th June 2010 (Exhibit-G). The application is rejected on the ground that under the provisions of Section 37(A) of the Maharashtra Regional and Town Planning Act ("MRTP Act" for short), Shivaji Park area cannot be permitted to be used for any non sporting activity for more than 30 days in a year and that the Public Interest Litigation No.116 of 2009 claiming appropriate directions is pending before the Bombay High Court. 5. The petitioners have also produced orders dated 5th May 2010 and 5th August 2010 passed by this Court in PIL No.116 of 2009. 6. The learned counsel for the petitioners submits that the petitioner club and its members are not strangers to the Shivaji Park but the petitioner club has been granted tenancy rights in respect of 14,400 sq.yards land. The petitioners require permission to use the said land for 7 days for Durga Puja and 3 days for Kali Puja i.e. from 11th to 17th October 2010 and 5th to 7th November 2010 respectively. It is, therefore, submitted that the petitioners are not seeking permission to use any portion of the Shivaji Park area for a period exceeding 30 days which is the stipulated period under section 37(A) of the MRTP Act. 7. The learned counsel for the respondent Municipal Corporation submits that if the land is not used for any sporting activity but for a cultural programme/activity, it will result into noise pollution, though Shivaji Park area is declared as a silent zone as per the order of this Court dated 5th May 2010 in PIL No.116 of mst 5 WP.2152.10 2009. 8. It is further submitted by the learned counsel for the respondent Municipal Corporation that by another order dated 5th August 2010 this Court has restrained the Municipal Corporation from allowing any portion of the Shivaji Park ground to be used for entry and parking of private vehicles/trucks etc. except for purposes of cleaning of the playground and its maintenance and, therefore, granting permission to the petitioner club would result into violation of the aforesaid directions already issued. 9. The learned counsel for the petitioners in PIL Writ Petition No.116 of 2009 opposes the prayers made in the present petition and submits that since one portion of the other side of Shivaji Park is being used for non sporting activities for more than the stipulated number of days, there will be a violation of the statutory provisions, if the respondent Municipal Corporation grants permission to the petitioner club. It is further submitted that apart from the noise pollution of the announcements and nuisance created by parking of the vehicles, the citizens in the area and those using the Shivaji Park area for sporting activities and for other permissible activities like morning walkers, will suffer nuisance on account of litter during such festivals. 10. The learned counsel for the petitioners submits that in order to allay the apprehensions voiced by the learned counsel for the Municipal Corporation and the petitioners in PIL Writ Petition No. 116 of 2009, the petitioner club and its office bearers i.e. the petitioner nos.2 to 4 herein undertake that the petitioners will not mst 6 WP.2152.10 use loud speakers in the playground except for the purposes 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 is submitted that as the petitioners are going to organize the entertainment progremmes in a closed auditorium, there will be no possibility of any noise pollution. It is submitted that no entertainment or cultural programme will be held in the open space outside the auditorium. 11. The learned counsel for the petitioners further submits that the petitioners undertake that no vehicles will be allowed to enter and park in the Shivaji Park ground or any of its portion. 12. The learned counsel for the petitioner club further states that about 40 temporary stalls will be put up on the land which the petitioners are occupying and they will ensure that the litter will be cleared off from day to day. The petitioners will engage a private agency round the clock for this purpose. It is submitted that a few vehicles will be brought on the ground only for the purposes of bringing and taking out the idols on the first and last days of the Durga Puja and Kali Puja. 13. In view of the above statements, we direct the respondent no.2 Municipal Corporation to permit the petitioners to perform Durga Puja and Kali Puja from 11th to 17th October 2010 and 05th to 07th november2010 respectively. We further direct the petitioners to abide by all the statements made by them as recorded above. mst 7 WP.2152.10 14. We make it clear that the above directions are given only because the respondent no.2 Municipal Corporation has created Vacant Land Tenancy in respect of 14,400 sq.yards of land in favour of petitioner club in the area of Shivaji Park ground in lieu of land of Keluskar road as far back as in the year 1949-50. Moreover, the total area of Shivaji Park is about 1,44,000 sq.yards of which the petitioners are in occupation of only 14,400 sq.yards. 15. The Notice of Motion No._____ of 2010 filed in this petition by the petitioners in PIL Writ Petition No.116 of 2009 is allowed and the said PIL petitioners are permitted to join as parties. 16. The writ petition is accordingly disposed of in above terms. CHIEF JUSTICE DR. D.Y.CHANDRACHUD, J.