Bhabajiban Bhattacharya And Ors vs Mcd And Ors
2011 Latest Caselaw 4793 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+             W.P.(C) 6657/2011, CMs 13464/2011, 15988/2011,
              16283/2011 and 16284/2011.


                                                   Decided on 27.09.2011
IN THE MATTER OF :

BHABAJIBAN BHATTACHARYA AND ORS                    ..... Petitioners
                   Through: Mr. Kulbharat, Advocate with
                   Mr. Rohit Madan, Advocate

                    versus

MCD AND ORS                                                 ..... Respondents
                          Through: Ms. Mansi Gupta, Advocate for R-1 and
                          R-3/MCD with Mr. Alok Singh, Dy. Director
                          (Horticulture), MCD, Central Zone, Delhi.
                          Mr. Shoaib Haider, Advocate with Mr. Najmi
                          Waziri, Standing Counsel (Civil), GNCTD.
                          Mr. Joy Dip Bhattacharya, Advocate for R-4.
                          Mr. P.K. Maitra, Advocate for applicant in CMs
                          16283-16284/2011.

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?

     3. Whether the judgment should be
        reported in the Digest?

HIMA KOHLI, J. (Oral)

1. The present petition is filed by the petitioners praying inter alia for

directions to respondents No.1 and 3/MCD to not grant permission to any

Samiti or person for performing any Puja or any other function at the K-

Block Main Park (behind Purboshree Mahila Samiti), C.R. Park, New Delhi.

2. Counsel for the petitioners states that the petitioners are residents

of K-Block, C.R. Park, New Delhi, and have approached this Court for

seeking restraint orders against respondents No.1 and 3/MCD in view of

their apprehension that the respondent/MCD is in the process of granting

permission to respondent No.4, Chittaranjan Park Milan Samiti to conduct

Durga Puja in a park situated in K-Block, which has been developed by

the Residents Welfare Association (RWA) of the area by executing a MOU

with the Govt. of NCT of Delhi, whereafter grants-in-aid were granted by

the Govt. of NCT of Delhi to the RWA for meeting the expenses incurred

for maintaining and developing the park. He submits that after much

effort, the said park has been developed by the RWA as an ornamental

park and is now being put to use by the residents of the area for

recreational purposes. However, as per the petitioners, respondents No.1

and 3/MCD are seeking to destroy the beauty of the said park by granting

permission to respondent No.4 to perform Durga Puja, Kali Puja and

Saraswati Puja by holding the said functions in the park and thus

damaging the plants and saplings that have been planted in the park so

painstakingly.

3. Notice was issued on the present petition vide order dated

14.09.2011, while directing that till the next date of hearing, respondents

No.1 and 3/MCD would ensure that no party is permitted to use the

subject park for any public/private function. Pursuant to the aforesaid

notice, appearance is entered on behalf of respondent No.4, Chittaranjan

Park Milan Samiti. Counsel for respondents No.1 and 3/MCD, who was

present on the last date of hearing, states on instructions from Mr. Alok

Singh, Dy. Director (Hort.), MCD, Central Zone, New Delhi, that prior to

the last date of hearing, i.e., prior to 14.9.2011, an office order dated

12.09.2011 was issued by the Dy. Director (Hort.), MCD, Central Zone,

granting permission to respondent No.4 to perform Puja in the playground

area of the subject park, which comprises of 1/4th of the entire area of

the park. In support of the aforesaid submission, she hands over a copy

of the office order dated 12.09.2011, which is taken on record. A perusal

of the said office order shows that certain conditions have been imposed

on respondent No.4 as to the manner in which the arrangement for the

Puja may be made in the playground area of the park, apart from

imposing routine conditions for booking of such parks.

4. On a pointed query posed to the counsel for respondents No.1 and

3/MCD as to whether the park in question is a park specifically notified for

the purposes of booking in terms of the circulars issued by MCD in that

regard, the answer is in the negative. She justifies the issuance of the

office order dated 12.09.2011 by stating that various representations

were received from the RWA, K-Block RWA, C.R. Park, respondent No.4

and other associations regarding holding of Durga Puja in the aforesaid

park and only after conducting an inspection of the area alongwith the

Area Councillor and zonal staff of the Horticulture Department, it was

decided to grant permission to respondent No.4 to perform Puja in the

said park.

5. Considering the fact that the respondent/MCD has laid down a

policy for booking of parks for the purpose of holding public functions,

festivities and other functions, which is applicable only to those parks

which have been duly notified by MCD in that regard and further having

regard to the fact that the park, subject matter of the present petition is

admittedly not such a notified park, the issuance of the office order dated

12.09.2011 by the respondent/MCD is without any justification and in

derogation of its own Rules and regulations.

6. As for the submission of the counsel for respondent No.4 that the

RWA of the area has granted permission to his client to perform Durga

Puja in the park, the same would be of relevance only if that RWA would

have first approached respondent/MCD for getting the subject park

notified for the purposes of holding public functions, festivals etc. therein.

In the absence of any such notification issued by MCD, much less any

representation made by the RWA in that regard, this Court is not inclined

to accept the aforesaid submission made by the learned counsel for

respondent No.4.

7. In view of the fact that it is respondent/MCD's own case that the

office order was issued under some special circumstances and considering

the fact that admittedly, the park in question was never notified by the

respondent/MCD as per the guidelines for booking of parks issued under

circular dated 04.11.2010 and the applicable Rules, the office order dated

12.09.2011 could never have been passed. Office order dated 12.9.2011

issued by the respondent/MCD is unsustainable and consequently set

aside. Respondents No.1 and 3/MCD are directed to ensure that the park

is maintained as a recreational park and no public/private function is held

there. This however does not preclude the RWA from approaching the

respondent/MCD with a request to notify the subject park for the

purposes of holding social/religious functions, private/public functions etc.

in the future. If such an application is received by the respondent/MCD, it

shall consider the same as per its policy and rules framed in that regard

and take a decision thereon, after hearing all the stakeholders.

8. The petition is dismissed alongwith the pending applications, while

leaving the parties to bear their own costs.

HIMA KOHLI,J SEPTEMBER 27, 2011 'rkb'