Bombay High Court
Kalyan Dombivli Municipal ... vs Kaustubha Dattatraya Gokhale And ... on 25 April, 2016
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO. 79 OF 2015
IN
PUBLIC INTEREST LITIGATION NO. 182 OF 2009
Kalyan Dombivli Municipal
Corporation & Anr. ...Applicants
Vs.
Kaustubha Dattatraya Gokhale & Ors. ...Respondents.
WITH
CIVIL APPLICATION NO. 9 OF 2016
IN
PUBLIC INTEREST LITIGATION NO. 182 OF 2009
WITH
WRIT PETITION NO. 12212 OF 2015
WITH
CIVIL APPLICATION NO. 18 OF 2016
IN
PUBLIC INTEREST LITIGATION NO. 182 OF 2009
WITH
CIVIL APPLICATION NO. 30 OF 2016
IN
PUBLIC INTEREST LITIGATION NO. 182 OF 2009
WITH
CIVIL APPLICATION NO. 46 OF 2016
IN
PUBLIC INTEREST LITIGATION NO. 182 OF 2009
WITH
CIVIL APPLICATION NO. 47 OF 2016
IN
PUBLIC INTEREST LITIGATION NO. 182 OF 2009
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WITH
CIVIL APPLICATION NO. 48 OF 2016
IN
PUBLIC INTEREST LITIGATION NO. 182 OF 2009
WITH
CIVIL APPLICATION NO. 76 OF 2016
IN
PUBLIC INTEREST LITIGATION NO. 182 OF 2009
WITH
CIVIL APPLICATION NO. 86 OF 2015
IN
PUBLIC INTEREST LITIGATION NO. 182 OF 2009
WITH
CIVIL APPLICATION NO. 87 OF 2015
IN
PUBLIC INTEREST LITIGATION NO. 182 OF 2009
WITH
CIVIL APPLICATION NO. 88 OF 2015
IN
PUBLIC INTEREST LITIGATION NO. 182 OF 2009
WITH
CIVIL APPLICATION NO. 90 OF 2015
IN
PUBLIC INTEREST LITIGATION NO. 182 OF 2009
WITH
CIVIL APPLICATION NO. 159 OF 2015
IN
PUBLIC INTEREST LITIGATION NO. 182 OF 2009
WITH
CIVIL APPLICATION (STAMP) NO. 18480 OF 2013
IN
PUBLIC INTEREST LITIGATION NO. 182 OF 2009
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Mr. A. A. Kumbhakoni, Senior Advocate a/w Mr. A.S. Rao and Mr.
Prashant Kamble for the Applicant in CAI No. 79 of 2015 in PIL No.
182 of 2009.
Mr. Bharat Khanna for the Petitioners in PIL No. 182 of 2009.
Dr. Milind Sathe, Senior Advocate a/w Mr. Vishal Kanade, Mr. Rahul
Dwarkadas and Ms. Prachi Dhanani I/by Veritas Legal for the
Applicant in CAI No. 9 of 2016 in PIL No. 182 of 2009.
Dr. Milind Sathe, Senior Advocate a/w Mr. M.A. Kamdar I/by Kanga &
Co. for the Applicant in CAI No. 48 of 2016 in PIL No. 182 of 2009.
Mr. Janak Dwarkadas, Senior Advocate a/w Mr. Rahul Dwarkadas, Ms.
Prachi Dhanani I/by Veritas Legal for the Petitioner in WP No. 12212
of 2015.
Mr. G.S. Godbole a/w Mr. D.S. Patil and Mr. Akshay Petkar for the
Applicant in CAI No. 76 of 2016 in PIL No. 182 of 2009.
Mr. Ashish Sawant I/by Mr. P.L. Bhujbal for the Applicant in CAI No.
87 of 2015 in PIL No. 182 of 2009.
Mr. Sameer M. Mangaonkar for the Applicant in CAI No. 159 of 2015
in PIL No. 182 of 2009.
Mr. R.S. Apte, Senior Advocate a/w Mr. Kashyap Bhalerao for the
Applicant in CAI No. 47 of 2016 in PIL No. 182 of 2009.
Mr. Harshad Bhadbhade for the Applicant in CAI Nos. 18 of 2016, 30
of 2016, 46 of 2016 in PIL No. 182 of 2009.
Ms. Sharmila V. Deshmukh for Respondent Nos. 6 and 7 in PIL No. 182
of 2009.
Ms. Kiran Bhagalia I/by Ms. Chitra Phadke for Respondent No. 10 in
in PIL No. 182 of 2009.
Mr. P.G. Lad for Respondent No.11 in PIL No. 182 of 2009.
Mr. N.R. Prajapati for Respondent No.9 in PIL No. 182 of 2009.
Mr. V.N. Sagare, AGP for the Staste in PIL No. 182 of 2009.
CORAM : ANOOP V. MOHTA AND
A.A. SAYED, JJ.
DATE : 25 APRIL 2016.
ORAL ORDER (PER ANOOP V. MOHTA, J.):-
The Applicants-Original Respondent Nos. 2 and 3 have
taken out this Civil Application on 30 April 2015 for modification of
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order dated 13 April 2015, specifically clause (i) of the operative part,
passed by the Division Bench of this Court (Coram:- Naresh H. Patil &
V.L. Achliya, JJ.) in Public Interest Litigation (PIL) No. 182 of 2009,
filed by the Petitioners, The operative part of order dated 13 April
2015, is as under:-
"(i) By way of ad-interim measure, we direct Kalyan
Dombivli Municipal Corporation, its authorities and
the State Government not to sanction any
proposal/project for construction of building,
residential or commercial, until further orders.
(ii) We direct the State, Urban Development Department
to take appropriate steps to ensure that Kalyan
Dombivli Municipal Corporation complies with the
provisions of Municipal Solid Wastes (Management
and Handling) Rules 2000 and other relevant rules,
directions.
(iii) We direct State and Urban Development Department
to issue necessary direction in respect of the issues
raised in the petition and highlighted in the order
passed as above.
(iv) The State would also contemplate as to whether
necessary amendments are required to be brought in
to the relevant Legislation.
(v) We direct Maharashtra Pollution Control Board to
take effective steps directing the authorities to comply
with pollution control laws. The board shall take
action against the erring officers, if non compliance is
reported."
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2 The Applicants' prayers in this Civil Application are as
under:-
"(a) This Hon'ble Court be pleased to recall the order, dt.
13.4.2015 passed in the above PIL and quash the
directions contained in clause-1 of the said order viz.
not to sanction any proposal/project for construction
of building, residential or commercial until further
orders.
(b) This Hon'ble Court be pleased to issue appropriate
directions to the Government to implement the
directions of the Hon'ble Supreme Court in the case of
Ravi Developers.
(c) Any other suitable relief to which the Applicants may
be deemed entitled to, be kindly granted in favour of
the Applicants."
3 The Applicants have filed additional affidavit dated 17
June 2015, Affidavit in reply dated 17 June 2015, affidavits dated 3
June 2015, 15 July 2015, Additional affidavits dated 7 October 2015
and 2 March 2016, in support of their Application, which reflect the
progress and/or steps they have taken and intend to take to comply
with the directions contained in orders dated 2 April 2013/13 April
2015.
4 Various other Civil Applications are also taken out by the
Promoters, Developers and Owners of the property, as in view of the
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order passed by the Division Bench dated 13 April 2015, basically
clause (i), the Applicants have not sanctioned any proposal/project for
construction of buildings, residential or commercial. Those
Applications are also listed on Board today.
5 The learned Counsel for the Petitioners has tendered an
affidavit dated 25 April 2016, along with the photographs and
contends that inspite of the order passed by this Court, there is no
substantial progress and/or there are no compliances, as ordered to
the satisfaction of the Respondent-Maharashtra Pollution Control
Board (MPCB).
6 The learned counsel appearing for the MMRDA, on
instructions, makes statement that they have no objection for the
modification so sought by the Applicants, specifically with regard to
Clause-(i).
7 The learned counsel appearing for the MPCB also
submitted that there are no full and/or effective compliances of the
order/directions so issued by this Court from time to time, though
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there is some progress made by the Applicants towards the directions
so issued.
8 Heard the learned Senior Counsel appearing for the
Applicants, the Respondents and Intervenors.
9 Based upon the affidavits so placed on record by the
Applicants, a brief note is also placed on record by the learned Senior
Counsel for the Applicants showing steps which they have taken from
time to time, including the present status and the decision they have
taken for implementation of the orders/directions so issued. In
support of the averments, as well as, the submissions, as also reflected
in the brief notes the "adverse impact on the financial condition of
KDMC" because of the order passed by this Court on 13 April 2015 is
pointed out. Pending steps are also pointed out in this regard, which
are necessary for them to resolve, as early as possible for full
implementation of the directions so issued. The said brief note is
reproduced hereunder:-
": Brief Note :
(On behalf of KDMC : Corporation)
1. The original PIL inter-alia seeks closure of
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the existing dumping ground situate at Adhar Wadi
where presently the Municipal Solid Waste (MSW) is
being dumped and implementation of Municipal Solid
Waste (Management and Handling) Rules 2000.
Initially the present PIL was heard along with other
PILs of the similar nature involving several Municipal
Corporations. In this group a common order on the
basis of Minutes of Order was passed by the Hon.
Division Bench of this Hon'ble Court, on 02/04/2013,
containing several directions for implementation of the
MSW Rules including the direction to compulsorily
close the dumping grounds that were in operation in
breach of these Rules within the prescribed period from
the date of the order of the Hon'ble Court. The KDMC
has filed separate Civil Application seeking extension of
time to comply with these directions, which is presently
pending. The applicants have filed affidavits from time
to time therein bringing on record the updated
information as to the steps taken by the KDMC
towards securing compliance with the aforesaid
directions. Be that as it may.
2. In the meantime, the present PIL was
separated from the said group and this Hon'ble Court
on 13/4/2015 has passed a detailed order and has
issued various directions not only to the KDMC but
also to the State and its authorities. The KDMC has
impugned the said order by preferring appropriate
proceedings before the Hon. Supreme Court, which is
yet to be placed before the Hon. Supreme Court for its
consideration.
3. After the aforesaid order dated
13/04/2015, during the period of One full Year the
KDMC has taken numerous concrete irreversible steps
towards securing compliance of the MSW Rules as also
the directions issued by this Hon. Court from time to
time. In the light thereof the KDMC has filed the
present Civil Application seeking to vacate/recall only
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clause (i) of the aforesaid order dated 13/04/2015,
which reads thus :
(i) By way of ad-interim measure, we
direct Kalyan Dombivli Municipal
Corporation, its authorities and the State
Government not to sanction any
proposal/project for construction of
building, residential or commercial, until
further orders.
4. The KDMC has set out in detail in the said Civil
Application as also at least four affidavits filed in the
original PIL setting out therein in detail numerous
concrete irreversible steps towards securing compliance
of the MSW Rules as also the directions issued by this
Hon. Court from time to time. This note summarizes
the same.
5. At the outset, it may kindly be appreciated that
despite losing most precious time of about Four Months
in this one year, principally on account of following
facts and circumstances, the following substantial
progress is made :
a) Addition of 27 villages into the then existing
area of the KDMC the Government of Maharashtra.
b) General Municipal Elections were held in the
month of Sep./Oct. 2015. Consequently, a model code
of conduct was in operation, which prevented the
administration of the KDMC from taking any decisions
as also from effectively implementing the decisions
already taken.
c) After the elections, time of about one and half
month was taken to constitute various bodies of the
Corporation that are empowered by law to take the
requisite decisions, such as the Standing Committee
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etc.
29.04.2015: The District Level Committee granted
NOC for establishing Sanitary Land Fill (SLF) sites at
Barave and Manda. The site at Umberde has already
been authorized accordingly in 2008.
29.4.2015 The Corporation published RFP for Waste
to Energy plant at Umberde.
31.04.2015: The Chair Person of the Divisional
Committee directed the Corporation, to prepare Action
Plan to deal with the MSW.
02.06.2015: MPCB granted authorization to the
lands at Barave and Manda bearing No.
BO/MSWA/CC/218 for establishing SLF sites.
20.0 6
.2015:
the General Body of the KDMC approved
project for establishing 13 Bio-Gas plants.
19.09.2015 General Body resolved to approve Rag-
Picker Policy for effecting Segregation of Solid Waste in
to wet and dry waste.
21.08.2015 Corporation initiated tender process for
establishing Processing Plants & SLF sites at Barave
and Umberde. Similarly, tender process initiated for
effecting scientific closure of Adharwadi dumping
ground.
28.09.2015 General Elections for the Corporation
announced by the State Election Commission and the
Model code of Conduct came in to force.
8.10.2015 High Power Committee of the State Govt.
headed by the Chief Secretary assured that the funds
required for the projects will be provided under Swach
Bharat Mission.
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10.11.2015 Action plan dealing with 'segregation',
'processing' and 'disposal' of MSW submitted by KDMC
to the Committee headed by the Divisional
Commissioner and also to the MPCB for requisite
approvals as also necessary action at their end.
15.11.2015 Segregation of waste into dry and wet
stated at source itself in 14 out of 122 wards. These 14
wards have been declared as "bin less wards" as the
citizens are to keep and handover the MSW in a
segregated form. As the back end processing of the
waste so collected separately is not yet in place the said
project is not yet extended to other wards. Once such a
mechanism is in place similar project will be
implemented in rest of the wards in a phase manner.
03.12.2015 After completing the entire procedural
gamut, the Work Order for conducting "Environmental
Impact Assessment" for Umberde site issued to M/s
ABC Technologies.
14.12.2015 After completing the entire procedural
gamut, the Work Order for conducting "Environmental
Impact Assessment" for Barave site issued to M/s ABC
Technologies.
02.01.2016 KDMC issued tender for putting up a Bio-
Gas plant at Umberde and Tisgaon.
13.01.2016 Tender for Scientific Closure of
Adharwadi Existing Dumping Ground finalized on 8th
Call.
25.01.2015 Tender for Establishment of Processing
Plant and SLF site at Barave finalized on 6th call.
15.02.2016 Detailed Project Report (DPR) for raising
funds to the tune of about Rs. 114 Cr. under Swach
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Bharat Mission, for being utilized for the aforesaid
various projects, submitted to State Government.
22.02.2016 Letter of Acceptance issued for (i)
establishing SLF at Barave (ii) Scientific Closure of
existing dumping ground at Adharwadi and (iii)
establishing Umberde Bio-Gas plant.
29.02.2016 Pre feasibility report for Establishing SLF
at Umberde and Barave submitted to the State
Environment Assessment Committee.
10.03.2016 MPCB granted Authorization for
establishment of 13 Bio-Gas Plants (bearing No.
BO/MSWA/CC/131).
22.03.2016 DPR submitted on 15.02.2016 for raising
funds for to the tune of about Rs. 114 Cr. sanctioned
by the High Power Committee headed by the Chief
Secretary to GoM under the Swach Bharat Mission.
23.03.2016 Work order issued to M/s Aviplast for
establishing a Bio-Gas plant at Umberde.
31.03.2016 Presentation submitted/made before the
State Environment Assessment Committee (SEAC)
regarding Pre-feasibility report for Establishing SLF at
Umberde and Barave.
11.04.2016 Members of SEAC visited the said sites
before finalizing the pre-feasibility report and issuing
TOR.
21.04.2016 Work order issued for MSW Processing
Plant and SLF to be established at Barave.
: Present Status :
Segregation of Solid waste at source is going on in 14
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wards and therefore, the said 14 wards have become
"Dust Bin Less".
Corporation has deployed 70 "Ringer Bell Vans"(Ghant
Gadi), 22 Large Refuse Compactor, 22 Small refuse
Compactors,10 Dumper placer and 6 Dumpers (total
130 vehicals) for collection of Solid Waste.
Separate Treatment Plants for dealing with Bio
Medical Waste and Slaughter House waste are already
running successfully
Plastic recycling plant of 1 TPD is in operation.
: Adverse impact on the Financial Condition of
KDMC :
Sources for raising funds have been basically Octroi,
Municipal Taxes and income from grant of permissions
towards various developmental activities, such a
building permissions etc.
For almost last about a decade or so, the KDMC has
been having a Surplus fund of about 40 crores at the
end of every financial year.
For the first time in a decade, in FY 2015-6, due to the
Ad-interim order in issue, about Rs. 55 Crs.
outstanding bills of various contractors are due and
payable by the KDMC. Resultantly, the contractors
have starting doubting the financial capacity of the
KDMC to pay the bills regularly. This is the main
reason for abysmally low response to various tenders
taken out by the KDMC. The on-going works at the
hands the contractors have also slowed down, leaving
the KDMC toothless.
: Way Forward :
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Endeavour to extend the implementation of the scheme
of effecting segregation of waste (dry and wet) at
source to 50 wards by Dec 2016 and rest of the area by
May 2017.
Endeavour to commence Two Bio-Gas plants by Dec
2016, further 3 more Bio-Gas Plants by May 2017,
remaining 8 Bio-Gas Plants by Dec 2017.
Endeavour to commence the Processing of solid waste
and SLF site at Barave by Jan 2017.
Endeavour to scientifically close 1/4th of the existing
dumping ground at Adharwadi by Dec. 2016 and rest
by Dec.2017.
Finding out appropriate agencies for the remaining
works.
: Pending Issues :
1. Approval for establishing sites at Umberde and
Barave to be issued by the SEAC.
2. Timely Disbursement of Share of the State
Government and Central Government under Swach
Bharat Mission."
10 This Court has already noted that inspite of earlier orders
passed by this Court, after hearing both the parties, which are
reflected through the minutes of order dated 2 April 2013/13
September 2013, there were non-compliances by the Authorities,
including Applicants-KDMC, Urban Development Department,
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MMRDA, MPCB, therefore, ultimately constrained to pass the order
which is reflected above by this Court on 13 April 2015.
11 The reasons so recorded in order dated 13 April 2015
show the delay and inaction of the concerned authorities, inspite of
the directions so passed. Earlier also, such Application was filed for
modification of this order. But, it appears that as there were no
sufficient steps taken at that stage, no relief was granted in respect of
clause (i) on 5 May 2015.
12 We are in agreement with the reasons so expressed and
also the directions so issued at the relevant time. Therefore, we are
not disturbing the directions from (ii) to (v) so referred above.
However, in the interest of all as simultaneously development is
necessary and so also the effective steps have been taken, we are
inclined to modify clause (i) so referred above. The Applicants/Local
Authorities/Planning Authorities are also required to take steps to
circulate/publish awareness programmes/plans by all possible ways
and means. The condition to have such effective plans in
development/construction activities, may be insisted upon.
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13 On perusal of the aforesaid brief note and after hearing the
learned Senior Counsel for the Applicants, we find that the Applicants
have taken effective steps in furtherance of the order dated 2 April
2013 and order dated 13 April 2015. Prima facie it appears that the
Applicants are now making sincere efforts and seem serious about the
implementation of the provisions of the Municipal Solid Wastes
(Management and Handling) Rules 2000, which they are even
otherwise statutory obliged to follow. It is pointed out on behalf of
the learned Senior Counsel for the Applicants that stoppage of
development activities/constructions has severely affected the
financial flow of the Applicants and it is not only the Applicants, but
also the Promoters/Developers/Owners and persons who are awaiting
purchase of their respective premises as also the workers/ labourers
connected with the construction activities are affected. It is pointed
out that the Applicants and other persons are adversely affected by
clause (i) of the operative part of order dated 13 April 2015, which is
operating for more than a year and since the Applicants have made
substantial progress and compliances, it is necessary to modify the
said order as prayed in the Civil Application.
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14 In view of the above and in the interest of justice, we are
inclined to grant an opportunity to the Applicants to show their
bonafides and take all necessary steps and to take the matter to its
logical conclusion in the implementation the provisions of Municipal
Solid Wastes (Management and Handling) Rules 2000, and comply
with the orders passed by this Court. In the circumstances, at this
stage, by keeping this Civil Application pending, we modify the order
only to the extent of clause (i) of the operative part of the order dated
13 April 2015 and pass the following order:-
ORDER
a) The ad-interim order dated 13 April 2015 is modified
by permitting the Applicants-KDMC, State Government
and MMRDA and its Authorities to process and decide
the Application/proposal for construction of buildings,
residential and/or commercial in accordance with law.
(b) The Applicants-KDMC shall file periodical bi-monthly
progress Reports in the form of an Affidavit of the
Commissioner before this Court. The first of such
Report shall be filed by 15 June 2016.
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(c) It is made clear that, in the event, we are not satisfied
with the progress/progress Report, we would be
constrained to pass appropriate orders, including
reviving clause (i) of the operative part of the order
dated 13 April 2015.
(d) The State Expert Appraisal Committee (SEAC), is
directed to process the Application filed by the
Applicants expeditiously. Thereafter, the State
Environmental Impact Assessment Authority (SEIAA)
shall take further steps immediately and in accordance
with law.
15 Stand over to 22 June 2016, for directions (HOB).
(A.A. SAYED, J.) (ANOOP V. MOHTA, J.)
