1 caa(st)-26141.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY. APPELLATE JURISDICTION. CIVIL APPLICATION (ST.) NO. 26141 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 appellant. 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. : By this application, the applicant is praying for stay of the order passed by the City Civil Court in Notice of Motion in L.C.Suit No. 1837/2011 dated 12th September 2011. The original plaintiff presented the suit to the City Civil Court claiming the following substantial reliefs: 2 caa(st)-26141.11 “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. 2. In the pending suit, the plaintiff has also taken out notice of motion claiming interim orders i.e. temporary injunction directing defendant in the suit to permit the plaintiff to organize Durga Puja and Kali Puja in leasehold area of 14,080 sq.yd from 2nd October 2011 to 6th October 2011 and Kali Puja from 26th October 2011 to 27th October 2011. Considering the submissions made by the original plaintiff before the City Civil Court and considering the order passed by the Division Bench in the pending PIL matter permitting the plaintiff to perform Durga Puja in the leasehold area during last year, the City Civil Court allowed the notice of motion. The said order passed by the 3 caa(st)-26141.11 City Civil Court is subjected to challenge in the present appeal from order. 3. The appellant has pointed out the order dated 5th May 2010 passed by the Division Bench of this Court in PIL No.116 of 2009; wherein the Division Bench has observed thus: 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 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 4 caa(st)-26141.11 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. He has also pointed out order dated 5th August 2011 passed in the aforesaid PIL matter. Paragraph- 6 of the said order reads as under: 6. In the meantime, 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 plaintiff claims to be the tenant in respect of the vacant land admesuring 14,400 sq.yd. which is part of the Shivaji Park and tenancy rights have been created in respect of the said land in favour of the plaintiff club situated in Shivaji Park ground in lieu of 5 caa(st)-26141.11 acquisition of land at Keluskar road as far back as in the year 1949-50. The total area of Shivaji Park is about 1,44,000 sq.yards out of which the tenancy is created in favour of the plaintiff is respect of the land to the extent of 14,000 sq.yards. In the year 2010, a petition was presented under Article 226 of the Constitution of India by the plaintiff praying for declaration that during the subsistence of tenancy granted by the defendant to the plaintiff of the club premises and upon plaintiffs complying with the necessary statutory provisions relating to noise pollution, the plaintiff/ petitioner therein is fully entitled to organize Durga Puja and Kali Puja on the tenanted portion of Shivaji Park admeasuring 14,400 sq.yards. The prayer made by the plaintiff was considered by the Division Bench in its favour and order came to be passed on 29th September 2010. This Court while passing the order the order dated 29th September 2010 in W.P.No.2152/2010 the Division Bench has observed in paragraphs- 13 and 14 as under: 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. 4. 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. 6 caa(st)-26141.11 5. This year also the plaintiff intends to organize Durga Puja and Kali Puja and for that purpose presented suit seeking appropriate declaration and prayed for interim order before the City Civil Court. It is the contention of the appellant that suit and the notice of motion should not have been entertained by the City Civil Court as the subject matter of relief of declaration of Shivaji Park as silent zone is under consideration of the High Court in PIL No.116/2009. The appellant also invited my attention to the order of this Court dated 14th September 2011 passed in W.P.(Ldg.) No.1762/2011. The petition was moved by the petitioner for performing Ramlila on Shivaji Park. While disposing of the petition, this Court observed in para-5 of the order dated 14th September 2011 as under: 5. As regards the question of maintainability of the Writ Petition, we do find some substance in the submission made on behalf of the petitioner in PIL No.116 of 2009. However, having regard to the fact that this petition is being heard at this point of time we waive the requirement of the petitioners to file a separate Notice of Motion in the PIL, but we make it clear that henceforth this Court will not entertain separate Writ Petitions and whosoever seeks any such orders shall have to file separate Notice of Motion in the PIL No.116 of 2009. Reliane 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: 7 caa(st)-26141.11 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. Considering the directions issued by this Court in W.P. (LDG.)No.1762/2011 and considering the ratio laid down by the Apex Court in Farhd K. Wadia v. Union of India (supra), in my opinion, the City Civil Court should not have entertained the application for grant of interim relief. It is true that during year 2010 such permission was granted by the Division Bench of this Court, however, the appropriate remedy available for the plaintiff is to approach this court 8 caa(st)-26141.11 by tendering application in the pending PIL matter and secure appropriate orders. The submission that this Court may pass similar order which was passed last year is quiet appreciable. The order passed by the City Civil Court is also on similar lines. However, it cannot be overlooked that appropriate forum for praying for the order is the High Court and not the City Civil Court. 7. In the above view of the matter, the order dated 12th September 2011 passed by the City Civil Court in notice of motion in L.C.Suit No.1837/2011 stands stayed. It would be open for the plaintiff to approach this Court by presenting application in the pending PIL matter for securing appropriate relief. Civil application is disposed of. 8. At this stage, counsel appearing for the plaintiff seeks suspension of this order for few days so as to enable the plaintiff to approach this Court to seek necessary relief. This order stands suspended till Monday, 3rd October 2011. (R.M.BORDE, J.)