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2007 DIGILAW 717 (DEL)

T. R. KURIAKOSE v. COMMISSIONER OF POLICE

2007-04-04

S.N.AGGARWAL, T.S.THAKUR

body2007
T. S. THAKUR, J. ( 1 ) THESE two petitions have been filed in public interest. They bring into focus a public nuisance allegedly causing tremendous inconvenience to the residents of Chittaranjan Park area on account of what is described by the petitioners as 'misuse of two Community Centres', one named ?chittaranjan bhavan? and the other called ? bangiya Samaj?. While Chittaranjan Bhavan is a two-storeyed building constructed over a site measuring around 1 acre, Bangiya samaj happens to be a four storeyed building constructed over an area measuring 0. 5 acres. The petitioners' grievance in the writ petitions primarily is that both the Community Centres which are being run by two Societies registered under the Societies Registration Act, 1860, respondents No. 5 and 6 in these petitions are being misused by the said societies causing grave inconvenience to the residents of the area and making their lives miserable on account of constant noise pollution and pollution arising out of holding of all types of functions leading to littering of food articles, garbage and other related problems. The petitioners have therefore prayed for a mandamus directing the Commissioner of police to ensure that the two societies mentioned above do not indulge in any activity which disturbs the peaceful living of the petitioners and the occupants of other properties in the vicinity of the two Community Centres. A further direction to the Police to take appropriate action against the Societies for causing bodily harm and mental torture to the petitioners and their family members has also been prayed for. A direction for constituting a public body to go into the question of noise and atmospheric pollution and problems of health hazards is also one of the prayers in the petition apart from other reliefs to which we need not advert at this stage. ( 2 ) THE respondents have contested the petitions and asserted that the two buildings referred to above are constructed over plots of land which were specifically set apart for Community Centres. The Counter Affidavit further alleges that the buildings constructed over the said two sites have been used for holding community functions only without there being any commercial angle to the same. The Counter Affidavit further alleges that the buildings constructed over the said two sites have been used for holding community functions only without there being any commercial angle to the same. It is alleged that two libraries set up by the Societies and housed in portions of the two buildings are being used by the Members of the Societies and the residents of the Chittaranjan Park area. The allegation that use of the buildings has resulted in any inconvenience, discomfort or torture to the residents of the area have been denied. It is alleged that the petition is motivated and is meant to prevent legitimate use of the buildings for purposes which are perfectly justified and legally permissible. ( 3 ) WE have given our anxious consideration to the submissions made at the bar and perused the record. The allegations made by the petitioners regarding the nature of the use to which the societies are putting the buildings and the reply to the same by the respondents give rise to seriously disputed questions of fact which cannot in our opinion be satisfactorily determined in the present extraordinary writ proceedings. Even so, learned counsel for the societies on instructions stated that the two buildings are not being used and shall not be used for any commercial purpose whatsoever and that even social events like marriage ceremonies, birthday parties and thread ceremonies etc. , the two buildings shall be allowed to be used only by those who are bonafide residents of the Chittaranjan Park area. He urged that during Durga Puja festival days, the Bengali community who is the predominant community residing in this area at times uses the two halls for displaying handicrafts, handlooms and sarees by artisans of different States for a period of no more than three weeks immediately preceding the Durga Puja. It was urged that except for the said period and for a period of five days during Posh Mela in the month of January every year, the buildings in question shall not be put to any commercial use. It was further stated by the learned counsel on instructions that the respondent societies shall not allow the use of any loudspeakers by those to whom the buildings may be offered for use for any social function or for purposes of the limited activities referred to above. It was further stated by the learned counsel on instructions that the respondent societies shall not allow the use of any loudspeakers by those to whom the buildings may be offered for use for any social function or for purposes of the limited activities referred to above. It is also stated that each one of the buildings has an in-house generator located on the roof. It was submitted by him that except the said two generators, no other generator shall be allowed to be used by anyone to whom the property may be offered for use for any social function. ( 4 ) INSOFAR as pitching of tents was concerned, learned counsel for the societies submitted that pitching of tents sometime becomes necessary to protect the food articles for those attending the functions but such tents will not in any case cover an area more than 200 to 300 Sq. Ft. He urged that the respondents would ensure that no inconvenience is caused to the petitioners or to other residents of the area on account of use of the properties and that the properties are used in keeping with the pollution control norms and other municipal bye-laws on the subject. ( 5 ) ON behalf of the petitioners, it was on the other hand submitted that while the limited use to which the respondent societies have agreed may resolve the petitioners' problem in part, the problem of nuisance would still continue on account of various other related issues like parking of cars, noise generated on account of gathering of large number of people in the area etc. It was submitted that the petitioners' right to prevent any such nuisance arising out of the said user by filing a suit should not be prejudiced and that the petitioners ought to be given the liberty to seek redress in appropriate proceedings before a competent court, if the need so arises. ( 6 ) IN the circumstances therefore and keeping in view the submissions made at the bar, we are of the view that the statements made by counsel appearing for the two societies has taken care of a substantial part of the grievance of the petitioners and thereby satisfied the spirit of Public Interest in which these proceedings were initiated. ( 6 ) IN the circumstances therefore and keeping in view the submissions made at the bar, we are of the view that the statements made by counsel appearing for the two societies has taken care of a substantial part of the grievance of the petitioners and thereby satisfied the spirit of Public Interest in which these proceedings were initiated. There are no doubt some areas which may still remain examinable keeping in view the exigencies of the situation and the use to which the properties are put but those areas cannot in our opinion be effectively provided for or regulated by orders passed in the present proceedings. The proper course for the petitioners would, therefore, be to seek redress in a proper suit before a competent Civil Court to take care of such grievances that may remain un-addressed or that would call for any curative or preventive action. The present writ petitions can, with these observations, be disposed of with the following directions : (i) The respondent Nos. 5 and 6 societies shall not allow the two community centres referred to earlier to be used for any commercial activity of any kind whatsoever; (ii) The respondents would however be entitled to allow the two properties to be used for holding marriage parties and social functions like birthday parties, thread ceremonies and other social functions provided such parties and events are organized by bonafide residents of Chittaranjan Park; (iii) Saree Mela or sale of merchandise by artisans for a period of three weeks immediately preceding Durga Puja held in September-October each year shall also be taken as a permissible use of the properties provided the requisite permissions, if any, are taken from the concerned authorities. So also the properties can be used for similar purposes for a period of one week in connection with Posh Mela to be held in January every year; (iv) The respondent societies shall not either themselves or through the users of the properties, allow any loudspeakers to be used or installed in the premises, nor shall any music be played after 10 P. M. (v) Respondents shall also not install or allow any outside Generator set in connection with the functions authorized hereinabove; (vi) The shamiyana required for any function shall not exceed 200 to 300 sq. Ft. in each of the two buildings. Ft. in each of the two buildings. (vii) The petitioners shall be free to institute appropriate legal proceedings to prevent any nuisance whether arising out of the user of the properties as indicated above or otherwise before a competent court in which event, the competent court shall be free to examine the matter and pass appropriate orders in accordance with law uninfluenced by the observations made in the body of this order. (viii) All interim orders already made in these proceedings shall stand vacated. (ix) Parties to bear their own costs.