1 srk nm-24-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.24 OF 2011 IN WRIT PETITION NO.2936 OF 2005 Abhay Jinsiwale and others. ... Petitioners Versus The State of Maharashtra and others. ... Respondents And Shibil Noamani Urdu High School ... Applicant Mr. A.A. Siddique for the petitioner. Mr.S.S. Phatak with Mr. T.R. Yadav for the petitioners. Ms. Smita Gaidhani, Assistant Government Pleader with Mr. D.A. Nalawade, Government Pleader for respondent Nos.1 and 3. Ms. Geeta Joglekar for for respondent No.2. CORAM : MOHIT S. SHAH, C.J. & S.J. VAZIFDAR, J. Thursday, January 20, 2011 P .C. Leave to make correction in the prayer clause. On 8th February, 2006, this Court had granted interim injunction in PIL Writ Petition No.2936 of 2005 in the following terms:- "Until further orders, respondent Nos.1,2 and 3 are restrained from using the land situated at Ismail Yusuf College Ground, Jogeshwari (East) for commercial activities and political programmes. The said ground shall only be used for the purposes of the College or for other Schools and Educational Institutions for playground and sports activities." 2 srk nm-24-11.sxw 2. The applicant herein has prayed for directions to respondent No.3 Ismail Yusuf College of Arts, Science & Commerce, Jogeshwari (East), Mumbai to allow the applicants to organize Mushaira on national integration with the collaboration of two institutions. 3. The applicant has also prayed for a direction to the respondent No. 2 Senior Inspect of of Police, Jogeshwari Police Station, Mumbai to provide necessary permission and all other assistance to organize Mushaira on national integration as indicated above. 4. As far as the first prayer is concerned, the learned Assistant Government Pleader states under instructions of respondent No.3 that in view of the aforesaid interim order, respondent No.3 cannot permit the applicant to organize Mushaira on the sports ground of respondent No.3 college. However, if this Court allows the applicant to organize national Mushaira on 26th January, 2011 on the college ground and if the applicant pays rent of the ground and deposits surety amount and takes guarantee of the safety of the playground from any kind of damage, then respondent No.3 has no objection in allowing the applicant to organize national Mushaira on the college ground. 5. It further appears to be the stand of respondent No.3 that in 1914 Mohd. Yusuf Ismail had donated Rs.8 lakhs requesting the then Government to establish a government college to spread higher education among the Mohammedan Youth. It is also the stand of respondent No.3 that respondent No.3 is a Government college. 6. The learned counsel for the petitioners in PIL Writ Petition No. 2936 of 2005 has, however, vehemently opposed the notice of motion and 3 srk nm-24-11.sxw submitted that the injunction order passed by this Court on 8th February, 2006 is in accordance with law and supported by judgments of this Court as well as of the Apex Court and, therefore, the applicant should not be permitted to use the play ground for holding Mushaira which is not an educational activity. Strong reliance is placed on the decision of the learned Single Judge of this Court in the case of C.R.Dalvi and others v. Municipal Corporation of Greater Bombay and others, 1987 Mh.L.J.373 in support of the contention that a plot of land reserved as a play ground under the development plan cannot be utilised for any purpose other than the play of children and similar recreational activities as there are not many open spaces in the city where children can play. Such playgrounds as there are should be kept available for them. It is also vehemently submitted that allowing the applicant to use the play ground for Mushaira will also result in violation of the Noise Pollution (Regulation and Control) Rules, 2000. It is stated that the playground in question is within less than 100 meters from two maternity hospitals, one school and this very college within the compound where Mushaira is proposed to be held. It is submitted that since the area in question is a silence zone, loud-speakers or public address system cannot be allowed to be used or permitted to be used during the night time. Strong reliance is also placed on the decision of the Apex Court in Farhd K. Wadia v. Union of India and others, (2009) 2 SCC 442 in support of the contention that no exception of the above rules can be granted to silence zone areas. 7. It is further submitted that there are several other open spaces where the applicant can organize Mushaira and, therefore, also this Court ought not to grant relaxation. 4 srk nm-24-11.sxw 8. On the other hand, the learned counsel for the applicant has submitted that the decision of the learned Single Judge in the case of C.R. Dalvi's case (supra) itself recognizes the exceptions because the Court had observed that for the functions organized on the occasion of Republic Day, Maharashtra Day and similar national events, the authorities may allow the playgrounds to be used for the purposes other than the sports activities. The learned counsel for the applicant submits that since the Mushaira is to be organized after school/college hours, there will be no question of interfering with the national activities of any school or college. As regards the writ petitioners' contention that the area in question is in silence zone, the learned counsel for the applicant submits that sub-rule (3) of Rule 5 permits the authorities to allow the use of loud-speakers or public address system subject to such terms and conditions as are necessary to reduce noise pollution during the night hours during any cultural or religious festive occasion of a limited duration not exceeding fifteen days in all during a calendar year. The State Government shall notify in advance the number and particulars of the days on which such exemption would be operative. It is stated that Republic Day i.e. 26th January is one of these 15 days when such permission for the use of loud- speakers during the night hours (10.00 p.m. to 12.00 midnight) can be granted. 9. Having heard the learned counsel for the parties, we find that as far as first prayer is concerned, the learned AGP has received specific instructions from respondent No.3 and having regard to the exception made by this Court in C.R. Dalvi's case that the playground may be permitted to be used for the purposes other than sports activities on the occasion of Republic Day and similar national events, we are of the view that the injunction dated 8th February, 2006 should not be allowed to come in the way of the applicant's application being considered by all the concerned authorities while considering 5 srk nm-24-11.sxw whether or not permission should be granted for holding Mushaira on the playground in question in the evening of 26th January, 2011. 10. Since it is for the concerned authorities exercising powers under the relevant laws to consider applications of the present applicant, it is not necessary for us to go into the merits of the rival contentions. The concerned authorities shall decide the applications in accordance with law. The notice of motion is, accordingly, disposed of after recording the statement of the learned AGP that if this Court allows the applicant for organizing national Mushaira on 26th January, 2011 on the college ground and if the applicant pays rent of the ground and deposits surety amount and takes guarantee of the safety of the playground from any kind of damage, then respondent No.3 has no objection in allowing the applicant to organize national Mushaira on the college ground and after observing that order dated 8th Feb. 2006 shall not come in the way of the applicant holding a Mushaira on national integration on 26th Jan. 2011. The parties may be provided an ordinary copy of this order duly authenticated by Court Associate. CHIEF JUSTICE S.J. VAZIFDAR, J. 6 srk nm-24-11.sxw