1 caa-1456.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY. APPELLATE JURISDICTION. CIVIL APPLICATION NO. 1456 OF 2011 IN APPEAL FROM ORDER (ST.) NO. 26139 OF 2011 Bengal Club. ... Org.Plaintiff. V/s. Municipal Corporation of Greater Mumbai. ... Respondent. And Wecom Trust. ... Applicant. Nikhil Sakhardane with Sandeep Aole, Kaustav Talubdar, Anindiya Basarkod i/b. Udwadia & Udeshi for the applicant. Ms.Mamta Sadh with Anirban Roy i/b. Roy’s Law Firm for the plaintiff. Ms.K.K.Soran for the respondent. CORAM: R.M.BORDE, J. DATED : 30th September 2011. P.C. : This is an application for leave to file appeal from order against the order passed by the City Civil Court in the notice of motion in L.C.Suit No.1837/2011 dated 12th September 2011. While allowing notice of motion, the City Civil Court granted temporary mandatory injunction in favour of the plaintiff and directed defendant therein to 2 caa-1456.11 permit the plaintiff to perform Durga Puja on the leasehold area of 14,080 sq.yards from 2nd October 2011 to 6th October 2011 and Kali Puja from 26th October 2011 to 27th October 2011. The said interim order passed by the City Civil Court is subject to certain limitations and conditions prescribed in the order. 2. The applicant herein states that they have presented PIL o. 116/2009 in this Court seeking various reliefs amongst others to restrain State of Maharashtra and Commissioner of Police from granting any loudspeaker permission in Shivaji Kridasthan as well as in the vicinity of Shivaji Park area between 10.00 p.m. to 6.00 a.m. on any day or time and further to declare Shivaji Park as a silence zone. The Division Bench of this Court, while passing interim order dated 5th May 2010 made following observations: 4. The question is after the State Government has issued a Notification pursuant to the power conferred upon it to notify the area which has to be declared as silence zone, is it open to the local authority and the Commissioner to exclude the educational institutions and religious shrines. In our opinion, the Rules do not confer such power on the Municipal Commissioner. The Commissioner would only be the authority to notify the silence zone in terms of the Rules. Under the Rules the State Government has also issued G.R., which has not made any distinction between the Nursery or Primary School and other schools or between major shrine and shrine which is not considered by the Commissioner as major. Considering this affidavit by the State Government we are clearly of the opinion that Shivaji Park would fall within the silence zone and considering that the Police Authorities cannot issue any license for 3 caa-1456.11 loudspeakers for being used in that area during the time when they cannot be used. 5. We, however, find in the affidavit of Shri Narayan V. Pai in para 4(f) it is set out that the State Government has reserved Shivaji Park every year for the Republic Day and Maharashtra Day function and similarly on 6th December every year the Corporation grants permission on account of Mahaparinirvan Din of Dr. Babasaheb Ambedkar for a period of two days. Considering the importance of these three functions, in our opinion there can be to some extent some relaxation the use of the park in so far as those events are concerned and on those days the restriction would be exempt. 6. However, we make it clear that it is for the State Government if at all it decides to amend the notification to apply its mind. At any rate neither the Corporation nor the Municipal Commissioner can read down the said Notification. We further make it clear that this is subject to other contentions raised by the petitioner that the use of Shivaji Park cannot be used for any functions other than as a playground. In the light of that there will be interim relief in terms of prayer clauses h(i) and (ii) subject to what has been explained earlier. Stand over to 16th June, 2010. 3. It is the contention of the applicant that at the request of the applicant certain restrictions are imposed in respect of use of Shivaji Park area for recreation and other purposes. The order dated 5th August 2010 is also pointed out. In paragraph-6 of the said order, the 4 caa-1456.11 Division Bench of this Court ordered that the respondents are restrained from granting any permission for entry and parking of private vehicles/ trucks, tempos etc. inside Shivaji Park, except for the purposes of cleaning the play ground and for its maintenance. 4. The original plaintiff intends to hold Durga Puja and Kali Puja on the part of the area of the Shivaji Park and with that object tendered suit in the City Civil Court being L.C.Suit No.1837/2011. The substantial prayers contained in the suit are as follows: “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 admesauring 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 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. 5 caa-1456.11 5. It is the contention of the applicant that it is an interested party and in any sense aggrieved party as such entitled to be impleaded in the suit. The interim order is passed by the City Civil Court in absence of the applicant/ appellant and, as such, the applicant is entitled to maintain appeal from order challenging the order passed by the City Civil Court. Reliance is also placed on the judgment of the Apex Court in the case of Farhd K. Wadia v. Union of India, (2009) 2 SCC 442 wherein in paragraphs- 13, 14 and 15 the Apex Court observed as under: 13. Whereas the public interest litigation was filed by Dr. Yeshwant Trimbak Oke & Ors. contending that noise pollution created by reason of use of loudspeakers be curbed in the areas which have been and should be declared as silence zone, the purported public interest litigation was filed by the appellant herein to seek an exception therefor. 14. The High Court in the earlier public interest litigation, being Writ Petition No. 2053 of 2003, admittedly passed an order of injunction. If the said order was required to be modified or clarified and/or relaxation was to be prayed for and granted in regard to Rang Bhavan, the appellant should have filed an application in the said proceeding. An independent public interest litigation to obtain a relief which would be contrary to and inconsistent with the order of injunction passed by the court was not maintainable. Inter alia, the doctrine of comity or amity demands the same. 15. It was not that the appellant was not aware of the said order. As indicated hereinbefore, the premise on which the appellant's application was rejected was the said order dated 25.09.2003 passed in the said Writ Petition No. 2053 of 2003. 6 caa-1456.11 6. Considering the ratio laid down by the Apex Court and considering the facts and circumstances of the present case, in my opinion, the applicant can maintain appeal from order raising exception to the order passed by the City Civil Court. Civil application is, therefore, allowed. Leave is granted to the applicant to present appeal from order raising exception to the interim order passed by the City Civil Court. (R.M.BORDE, J.)