Maharashtra Chamber Of Housing ... vs The Municipal Corporation Of ...
2017 Latest Caselaw 2209 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION
                 REVIW PETITION (LODGING) NO.3720 OF 2017
                                  IN
                       CIVIL APPLICATION NO.221 OF 2013
                                  IN
                  PUBLIC INTEREST LITIGATION NO.217 OF 2009



 Maharashtra Chamber of Housing Industry.                    ..        Petitioner
        Vs
 The Municipal Corporation of Greater Mumbai 
 and Others.                                                 ..        Respondents
        -

Shri Aspi Chinoy, Senior Advocate along with Shri Vineet Naik, Senior Advocate, Shri Dhawal J. Mehta, Ms. Jasmine Kachalia and Shri Krishna B. Moorthy i/b Wadia Ghandy & Co for the Petitioner. Shri A.Y. Sakhare, Senior Advocate along with Shri Sunil Sonawane, Ms. Komal Punjabi and Shri Vinod Mahadik for the Respondent No.1- BMC.

Shri Paritosh Jaiswal along with Shri Nikunj Mehta, Shri Ashok Purohit and Shri Tejas Gokhale i/b Ashok Purohit & Co for the Respondent No.4.

-

                                CORAM  :        A.S. OKA &  C.V. BHADANG, JJ

                                DATED    :      4TH MAY 2017

 P.C.

1. The submissions of the learned counsel appearing for the

parties were heard yesterday. On the basis of the order dated 16 th

August 2016 passed by the Apex Court in the Special Leave Petition

filed by the Review Petitioner, the present Petition is filed for seeking a

relief of vacating the restraints imposed by Sub-clauses (a) and (c) of

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Clause (i) of Paragraph 30 of the judgment and order dated 26 th & 29th

February 2016 passed by this Bench1.

2. With a view to appreciate the submissions made across the

bar, it will be necessary to make a brief reference to the factual details

of the case.

3. The order dated 26th & 29th February 2016 has been passed

by this Court on Civil Application No.221 of 2013 taken out by the

Mumbai Municipal Corporation (for short "the said Corporation") for

seeking extension of time to comply with the directions issued by this

Court in the judgment and order dated 2 nd April 2013 in Public Interest

Litigation No.217 of 2009 and other connected matters. The directions

under the judgment and order dated 2nd April 2013 were issued

virtually by consent of all the parties. The directions are essentially for

ensuring compliance with the provisions of the Municipal Solid Waste

(Management and Handling) Rules, 2000 ( for short "the MSW Rules").

The relevant portion of the directions needs to be reproduced here for a

ready reference. The order dated 2 nd April 2013 has been passed in

terms of the minutes of the order. Clauses 7 to 15 of the minutes of the

order which are relevant read thus:-

1 In Civil Application No.221 of 2013 along with Civil Application No.110 of 2015 in PIL No.217 of 2009.

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"Draft Minutes of the Order

Re: Local authorities which do not have the land fill sites/dumping ground :

7.(a) The authorized officer / local authority shall take steps for acquisition of notified / designated site for this purpose either in the Regional Plan or the Development Plan within a period of two weeks either under the provisions of Land Acquisition Act, 1894, Maharashtra Regional & Town Planning Act, 1966 or by mutual agreement with land owners.

(b) The process of selection and acquisition of sites including taking possession shall be completed expeditiously and not later than six weeks in accordance with, the guidelines prescribed in the Government Resolution dated 5th October 2012, Annexure-1 as well as GR dated 26th August, 2003.

(c) The selection of site shall also take into consideration appropriateness and suitability of site from viewpoint of CRZ Notification, EIA Notification and other Environmental Laws including Forest Laws as applicable.

(d) Wherever the Local Authority has an approved authorized site for land fill / dumping, the local authority shall immediately take steps to make it operational for that purpose within a period of 4 weeks.

(e) On selection, identification and acquisition of sites, the local authorities shall make the appropriate application not later than two weeks after taking possession of site, to the Pollution Control Board under Rule 6 of MSW Rules for authorization.

(f) The MPCB shall process the application and grant the authorization in accordance with the provisions of Air Act and Water Act and MSW Rules 2000 preferably within a period of two weeks end not later than from receipt of application complete in all respects.

(g) On the aforesaid compliances the site shall be used by the concerned local authorities for land fill

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/dumping strictly in accordance with the MSW Rules 2000 and authorization granted by MPCB.

(h) The Nodal Officers/Authorized Officer shall monitor periodically the operation of such sites and compliance with MSW Rules and MPCB authorization on fortnightly basis and make report and take remedial measures to ensure compliance.

(i) In case there are no designated / notified sites the State Government shall assist such Local authority to identify, select and acquire the requisite site and notify or designate the same for land fill / dumping of MSW. The State Government shall initiate steps for this purpose preferably within two weeks from this order and complete the process as per statutory provisions for designation of the site.

(j) In case the site designated within the area of local authorities is encroached upon the local authorities shall initiate action for removal of encroachment within two weeks, including but not limited to, in accordance with the relevant Municipal law or the Maharashtra Land Revenue Code as the case may be for eviction of such unauthorized encroachers. In the event of such actions being taken no Court or authority in the State shall entertain any application or proceedings or suit in respect of such eviction and any such proceeding shall be filed only in this Court.

(k) In case there are any proceedings pending / orders passed in respect of any sites within the jurisdiction of Local Authority, such authority shall immediately take steps to get the stay orders vacated and / or bring it to the notice of this Court for appropriate directions.

Re: Local authorities which have inadequate facilities:

8.(a) The local authority will assess the need for the sites by taking into account the existing population and growth of population upto atleast next 30 years.

(b) The local authorities shall take steps for selection, identification and acquisition of additional sites by

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following the directions in the preceding paragraph under the heading "Re : Local authorities which do not have the land fill sites / dumping grounds."

Re: The Local authorities which have facilities which are non-compliant with MSW Rules 2000 and MPCB authorization:

9. The MPCB shall make report in respect of each of the designated dumping site within jurisdiction of all Municipal Corporations, Municipal Councils and Panchayats to ensure Compliance with MSW Rules and these directions and directions of the Supreme Court. This exercise to be completed within a period of 8 weeks.

10. All dumping sites which do not comply with MSW Rules and other governing applicable laws and these directions and the sites which are not designated as per rules shall be discontinued and closed within a period of three months or an acquisition of new site whichever is earlier.

11. All sites which have exceeded their capacity shall be closed down as per procedure under MSW Rules.

Re: The Local authorities which do not have waste processing facilities:

12. The Local authorities shall take steps for treatment of solid waste in accordance with MSW Rules either through themselves or through an identified agency.

13. The Municipal Corporations and Councils shall adopt measures as per Schedule III of MSW Rules to ensure :

(i) Segregation of Municipal Solid Wastes

(ii) Setting up facilities for processing biodegradable wastes by composting, vermi composting, anaerobic digestion or any other biological processing

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(iii) Eventual elimination of landfilling requirements for biodegradable wastes

(iv) The State Government shall take decision on the pending proposals / applications made by the local authorities for grant of lands on lease or otherwise, or grant of NOC etc. within a period of 45 days from date of this order.

(v) The Local authorities which have not made such applications shall do so within a period of 4 weeks to the State Government and the State Government shall take a decision thereon within 45 days thereafter.

14. Sites for Composting, Vermi Composting etc.

(i) These sites shall also comply with these directions and MSW Rules (Schedule IV)

(ii) MPCB shall prescribe cap on storage of wet garbage to be treated at these sites so that the site does not become a dumping ground

(iii) These sites shall also comply with the Rules for storage of garbage as permitted by MPCB under MSW Rules

(iv) In the event of non-compliance of these directions MSW Rules and parameters as regards, storage of wet garbage limit of storage and operation of composting or vermi compost plant, the same shall be closed down and shall not be re-

operated until MPCB reports remedial measures and its compliance.

15. General :

Action Plan for Treatment and Processing of Solid Waste

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Sr. Action Plan Details Time Schedule No

1. To develop mechanism for Within 2 months after collection, segregation (at possession of land source / site) & transportation to processing facility & landfill site.

2. Settling up and Commissioning of Waste Processing Facility

(a) Selecting of technology Within 2 months after possession of Land

(b) Preparation of Detailed Within 2 months after Project Report selection of technology

(c) Obtaining clearance from Within 4 months MCZMA / MOEF from submission of the proposal by the ULB

(d) Inviting tenders and Within 2 months after appointment of Agency obtaining clearance from MCZMA/MOEF

(e) Issuance of Work Order Within 1 month with the time frame & necessary conditions by Municipal Authority

(f) Settling of MSW Within 18 months processing facility & making it from the date of work operational order

3. Development & Commissioning Within 12 months of secured landfill site after possession of land

4. Closure of cell & its monitoring After exhausting for at least next fifteen years as capacity of the per Rules. existing cell.

5. Improving of existing facility

(a) Closure of existing dump Within 16 months site if required as per MSW Rules.

(b) Setting up and Within 24 months commissioning of waste processing facility if not available at existing site.

(c) Improvement in the Within 6 months existing waste processing facility

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and secured landfill site in accordance with the MSW Rules.

(d) Development of new Within 12 months secured landfill site at existing site if not available.

6. (a) Application for As per Rules Authorization by Municipal Authority (Rule 4(2))

(b) Grant of a authorization As per Rules." for processing facility & landfill site. (Rule 6(2))

4. Admittedly, the said Corporation did not comply with the

directions issued by this Court in the judgment and order dated 2 nd

April 2013 and in particular the action plan incorporated in Clause 15

thereof. In fact, the order of which modification is sought by this Review

Petition notes that repeatedly extension of time was granted to the said

Corporation. The said order notes that time limit provided by the MSW

Rules to set up disposal and processing facility in the City of Mumbai

expired 12 years prior to the date of the said order.

5. Civil Application No.221 of 2013 was filed by the said

Corporation for seeking extension of time to comply with the order

dated 2nd April 2013. We may note here that in the said order, this Court

by relying upon the affidavit filed by the said Corporation on 2 nd March

2015 accepted that as of that date, in the City of Mumbai, there was a

daily generation of 9,400 Metric Ton (MT) of municipal solid waste and

approximately 1,000 MT of construction waste. The affidavit notes that

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the generation of municipal solid waste is likely to touch 10,000 to

11,500 MT per day. The admitted position recorded in the said order is

that there is only one proper processing facility in the City situated at

Kanjur which has the processing capacity of only 3,000 MT of municipal

solid waste per day. What is recorded in the said order on the basis of

the admitted position is that there was a daily generation of 9,400 MT

of municipal solid waste in the City and for processing this quantity,

there was only one proper facility which has capacity of nearly 3,000

MT of solid waste per day. Thus, quantity of 6,400 MT of solid waste

per day was being dumped illegally. Several assurances were given by

the said Corporation by filing an affidavit dated 10 th February 2016 of

Shri Ajoy Mehta, the Municipal Commissioner. The assurances are noted

in Paragraph 11 of the said order. One of the assurances noted in the

said order was that an additional site will be allotted at Mulund near

Airoli Bridge which is an area of 32.77 Hectares. It is recorded therein

that the process of demarcation thereof will be completed by the month

of April 2016 and thereafter, a compound wall will be constructed. The

assurance given was that by the end of the year 2019, the first phase of

waste to energy processing will commence thereon which will take care

of the quantity of 2,000 MT per day. It is also noted that another site is

allotted by the State Government at Village Karvale Khurd, Taluka

Ambarnath, District Thane. The order records that the process of

removal of encroachment on the said site was going on.

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6. Paragraphs 19 to 24 of the said order are material which

record thus:-

"19 As of today, neither the said Municipal Corporation nor the State Government have come out with any solution whatsoever for ensuring that the quantity of solid waste generated in the city every day should not increase. As stated earlier, the affidavit of the Chief Secretary indicates that the State Government is more worried about the impact of imposing any restraint on the new constructions in the city on the real estate industry. At this stage, we must note that while dealing with the similar issue concerning the Kalyan Dombivali Municipal Corporation (KDMC), this Court has imposed restraints on the grant of building permissions till the facilities are created in terms of the MSW Rules. It is true that the learned Advocate General may be right in making a submission that comparison cannot be made between the city of Mumbai and city of Kalyan Dombivali for various reasons.

20 Finding that the KDMC did not abide by the provisions of the MSW Rules, this Court in a PIL passed an interim order preventing grant of development permissions in the city. The Division Bench found that there was no possibility of the Municipal Authority of complying with the MSW Rules. In another case relating to the Municipal Corporation of the city of Thane, there was an assurance given by the Municipal Corporation that the facilities in terms of the MSW Rules will be created by the end of October 2017 which will cater the need of the entire quantity of the municipal solid waste created every day. Though while admitting the petition concerning the Municipal Corporation of the city of Thane, this Court has not imposed restrictions on the grant of development permissions, it was made clear in the order that if it is found that the Municipal Corporation is not abiding by the assurances, a drastic order imposing restrictions will be passed.

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                  21       In the present case,  we have already held that at 
                           the   commencement   of   the   year   2015,     the 

generation of the municipal solid waste in Mumbai was about 10,400 MT (including the building waste) per day and today, it may be of the quantity of at least 11,000 MT per day. Today, only 3000 MT per day is being processed in terms of the MSW Rules which will be at the highest increased to 8,000 MT per day by the end of the year 2019. By that time, the per day generation of solid waste in the city may in all probability reach 15,000 MT.

22 We have also pointed out that out of the lands handed over by the State Government, the land at village Karvale has substantial encroachments upon it. In fact, in the earlier affidavit of the Chief Secretary, the stand taken was that the Municipal Corporation of City of Mumbai should remove the encroachments. However, when it was pointed out by this Court that the said Municipal Corporation cannot exercise statutory powers outside its territorial jurisdiction, now the State Government has made a statement that it will take up the work of removal of the encroachments. An area of 12 Hectare is not yet acquired and placed in the possession of the said Municipal Corporation.

23 There are large number of constructions going on in the city. But there is absolutely no possibility of the said Municipal Corporation complying the MSW Rules as well as the binding directions in the judgment and order of this Court dated 2nd April 2013 in near future. In fact, during last few years, the State Government has amended DCR providing for grant of more and more FSI. The State Government is encouraging unsustainable growth. Thus, there is a gross breach on the part of the Municipal Corporation of the statutory provisions of the MSW Rules. Moreover, there is a gross breach of the order passed by this Court on 2nd April 2013 in the PIL. As observed earlier, in

fact, this is a fit case where this Court ought to have rejected the Application for grant of extension of time and initiated penal action under section 13 of the said Act against all those who are

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responsible for the violations. Thus, in the city of Mumbai, the citizens are exposed to pollution thereby violating their fundamental rights under Article 21 of the Constitution.

24 The consequences of the failure to abide by the MSW Rules are writ large on record. We have already made extensive reference in this order to the recent incidents of huge fire at Deonar dumping ground. In the affidavit filed on record by Shri Rajkumar Sharma on behalf of the intervenors, the disastrous effects of the fire on the people living in the proximity of the Deonar site have been brought on record. The fire increased the pollution in the entire city to an alarming level. Local residents were affected by respiratory deceases. The local Schools were required to be kept closed for few days. The learned senior counsel representing the intervenors pointed out that even on Saturday, 27th February 2016 there was a fire on the Deonar dumping ground. The learned senior counsel further pointed out the earlier orders passed by this Court and the proceedings of the Advisory Committee constituted under the orders of this Court in another Writ Petition. What is recorded in the minutes of the meeting of the Advisory Committee appointed by this Court, which was held way back on 3rd May 2011, is very disturbing. The earlier contractors who were appointed by the Municipal Corporation i.e. M/s.Tatva Global Environment (Deonar) Limited pointed out in the meeting that the entire area of Deonar dumping ground has been divided into various zones by the anti-social elements operating inside the dumping ground. It is further pointed out that the Closed-Circuit Television Cameras (for short "CCTV cameras") installed at the site are not working. There is no police protection around said site and there are breaches in the compound wall. We have already observed in the earlier part of this order that the fire at Deonar dumping ground has posed a major danger to the health of the citizens. The Air Quality Index figures placed on record show that due to smoke generated by the Deonar fire,

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alarming readings of air quality index were recorded in the city."

(underlines supplied)

7. In Paragraph 25 of the said order, a finding has been

recorded that the quantity of at least 7,400 MT of solid waste is being

illegally dumped everyday in the City of Mumbai. Thereafter, this Court

proceeded to consider the prayer made by the said Corporation for

extension of time. In Paragraph 28 of the said order, this Court

observed thus:-

"28. We are conscious of the fact that in the city of Mumbai there are large number of re-development projects which are going on and the occupants of the existing premises might have vacated their respective premises. Therefore, for the time being, we do not propose to impose any restrictions on the grant of the proposals/Applications for the re-development projects including the construction of sale component buildings. However, the restrictions will have to be imposed on consideration of fresh proposals/ Applications submitted for new construction of the buildings for residential or commercial purposes. The restrictions will have to be imposed on the implementation of the provisions of the DCR for grant of additional FSI which will be incorporated hereafter by amending the DCR. After imposing the restrictions as a condition for grant of extension of time, we propose to grant liberty to the State Government to apply for modification of the order after making compliances. The State Government will have to amend the DCR to give effect to the directions issued on 15th February 2016 under section 154 of the MRTP Act. The facilities for processing the bio-degradable waste will have to be created in the city by the said Corporation in terms of the said directions. Moreover, the said Corporation or the State Government will have to undertake a scientific study of the assessment

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of the impact of the constructions which are likely come up in the city during the period of at least ten years from now on the generation of the municipal solid waste. Another compliance which can be made is by immediately providing additional lands on which facilities can be set up in terms of the MSW Rules so that by the end of the year 2019, the facilities will be sufficient to take care of quantity of 15,000 MT per day of municipal waste."

(Underlines supplied)

8. Therefore, for the reasons recorded as stated above, the

time granted to the said Corporation to comply with the directions

contained in the judgment and order dated 2 nd April 2013 was extended

till 30th June 2017 subject to conditions incorporated therein. Clause (i)

of Paragraph 30 of the said order reads thus:-

"(i) The Mumbai Municipal Corporation is hereby granted time till 30th June 2017 to comply with the directions contained in the Judgment and order dated 2nd April 2013 passed in Writ Petition No.1740/1998 and other connected matters including PIL No.217 of 2009. Within the extended time, the Mumbai Municipal Corporation shall establish all the facilities in terms of the directions issued in the judgment and order dated 2nd April 2013 which will be capable of processing municipal solid waste of the quantity of at least 11,000 MT per day. Needless to state that the said facilities shall be strictly in accordance with the MSW Rules. The prayer for extension of time is granted as above, subject to the following conditions:

(a) The development permissions/IOD shall not be granted by either the said Municipal Corporation or the State Government on the Applications/proposals submitted from 1 st March 2016 for construction of new buildings for residential or commercial use including Malls, Hotels and Restaurants. Such Applications shall be processed, but the IOD

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and/or commencement certificate shall not be issued. It is obvious that in view of this restraint, no once can take advantage of deeming provisions in the DCR and MRTP Act. Needless to state that this condition will not apply to all the redevelopment projects covered by the clauses (5), (6), (7), (8), (9) and (10) of the DCR No.33. This condition will not apply to the buildings proposed to be constructed for the hospitals or educational institutions. The condition shall not apply for consideration of the proposals for repairs/reconstruction of the existing buildings which do not involve use of any additional FSI in addition to the FSI already consumed. These restrictions shall apply only to the Applications/proposals submitted from tomorrow i.e 1st March 2016;

(b) The State Government and/or the Municipal Corporation shall undertake a scientific assessment of impact on the generation of the municipal solid waste including construction waste in the city by construction of new buildings and new development projects. The study shall include the assessment of the impact of the constructions likely to come up in the city for a period of at least 10 years. The State Government shall also take all the steps for the implementation of the directions in the circular issued on 15 th February 2016 in accordance with section 154 of the MRTP Act;

(c) Even if there is an amendment of the DCR made hereafter providing for grant of additional FSI in the city, the benefit of the same shall not be extended to the building proposals/ Applications for development permissions including for the re-development projects submitted from tomorrow;

(d) Immediate steps shall be taken for amending the Development Control Regulations not only for giving effect to the directions issued in terms of the Circular dated 15 th February

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2016 but also for incorporating the suggestions in paragraph- 2.2 of the additional affidavit of Shri Swadheen Kshatriya dated 15th February 2016."

(underline supplied)

9. There were comprehensive directions issued for monitoring

and maintenance of the site at Deonar. The modification/vacation of

the directions issued in terms of Clauses (a) and (c) above have been

sought by this Review Petition.

10. We may note here that in this Review Petition, the said

Corporation has filed an affidavit of Shri Siraj Ahmed Abdul Khalique

Ansari. If the affidavit is carefully perused, it appears to be an admitted

position that it will be impossible for the said Corporation to comply

with the directions contained in the order dated 2 nd April 2013 within

the extended time. The stand taken in Paragraph 15 thereof is that the

municipal solid waste generation as on the date of filing of the said

affidavit (i.e. 17th April 2017) is 8,600 MT per day which does not

include the construction waste. Even if we proceed on the footing that

the said statement is correct, then the only conclusion which can be

drawn is that the quantity of 5,600 MT of solid waste per day is being

illegally dumped in the sense that there is only one developed site in

the City at Kanjur which has processing capacity of 3,000 MT per day.

Interestingly, in the said affidavit, it is now disclosed that as far as the

additional site at Mulund near Airoli Bridge is concerned, the State

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Government could not hand over the possession of the said site as there

is an ongoing dispute between the State Government and Salt

Commissioner of Union of India about the title. Thus, even

demarcation of the said site is not completed. As regards the site at

Village Karavale, near Taloja, what is stated is that a joint measurement

of the site is still in progress. It also records that a part of the land is

encroached upon. It is stated that it is only after removing

encroachments and after acquisition of private land admeasuring 14

Hectares that necessary proposal for setting up facility of processing

municipal solid waste including construction and demolition material

will be processed.

11. In the said affidavit, the said Corporation has relied upon

the provisions of the Solid Waste Management Rules, 2016 (for short

"the MSW Rules of 2016") which came into force on 8 th April 2016.

Without even making an Application for seeking extension of time or

modification of the order dated 2nd April 2013, there is a vague prayer

made in the affidavit-in-reply that a permission be granted to the said

Corporation to implement the MSW Rules of 2016.

12. Before we proceed to deal with the submissions made

across the bar, we may note here that as of today, the order dated 2 nd

April 2013 passed by this Court in Writ Petition No.1740 of 1998 along

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with other connected PILs/WPs (PIL No.217 of 2009) which is virtually

a consent order, continues to operate and there is a gross breach

committed by the said Corporation of the directions contained therein.

Though technically, the time to comply with the directions has already

been extended till 30th June 2017, as noted earlier, the affidavit filed by

the said Corporation indicates that compliance will not be made within

the time extended by this Court.

13. The present Review Petition is filed by the Maharashtra

Chamber of Housing Industry. The learned senior counsel appearing for

the Review Petitioner relied upon the Construction & Demolition and

De-silting Waste (Management and Disposal) Rules, 2006 (for short

"the C&D Disposal Rules"). He relied upon the copies of various

Intimations of Disapproval (IOD) granted by the said Corporation

showing that the Construction and Demolition Waste (for short "C&D

Waste") is not being dumped at Deonar or any other site but is being

dumped at the sites specifically mentioned by the said Corporation

while granting development permissions. He submitted that the

attention of this Bench was not invited to the provisions of C&D

Disposal Rules when the order sought to be reviewed was passed. He

also invited our attention to the Construction and Demolition Waste

Management Rules, 2016. He submitted that the order dated 2 nd April

2013 has been essentially passed for enforcing the performance of the

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obligation of various Planning Authorities under the MSW Rules of

2000. He invited our attention to the MSW Rules of 2016 which were

brought into force on 8th April 2016. He pointed out that now the MSW

Rules are no more in force. Inviting our attention to Rule 22 which

contains time frame for implementation of the MSW Rules of 2016, he

urged that the time frame provided therein has not yet expired. He

would, therefore, submit that the very basis of the order sought to be

modified does not survive as the MSW Rules of 2000 can no longer be

implemented. He urged that there is no basis for the conclusion drawn

by this Court that new construction which may be carried out in the

City will increase population density and will result into increase of

generation of solid waste. He urged that if the constraint imposed on

new construction is not removed, the slum dwellers and poor people in

the City will not be in a position to acquire the premises in the buildings

constructed by the members of the Petitioner. He submitted that now it

is no longer necessary to comply with the provisions of the MSW Rules

of 2000. Lastly, he urged that the order sought to be modified was

passed without notice to the persons likely to be affected by the said

order. He urged that C&D waste is not being illegally dumped. It is

being dumped at the sites mentioned in the Development Permissions

granted by the said Corporation.

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14. The learned counsel appearing for the Intervenors opposed

the prayer made in this Review Petition. By relying upon the said MSW

Rules of 2016, he urged that any omission as regards the compliance

with the MSW Rules of 2000 is not saved by the new Rules and,

therefore, compliance with the MSW Rules of 2000 will have to be

made. The learned senior counsel appearing for the said Corporation

invited our attention to the affidavit to which we have already made a

reference. He pointed out the steps taken by the said Corporation for

implementation of the orders of this Court.

15. We have carefully considered the submissions. Even if we

assume for the sake of argument that the C&D Disposal Rules are being

implemented, the same will take care of C&D waste which according to

the stand taken by the said Corporation in its affidavit filed on 2 nd

March 2015 is approximately 1,000 MT. As per that affidavit, the

generation of solid waste other than construction waste was 9,400 MT

per day. The stand taken in the affidavit dated 17 th April 2017 to which

we have made a reference is that the generation of municipal solid

waste is approximately 8,600 MT per day. As we have noted earlier, in

terms of the order of this Court and in terms of the MSW Rules, there is

only one facility which could take care of quantity of 3,000 MT per day.

Therefore, even assuming that C&D Disposal Rules are being

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implemented, quantity of 5,600 MT of Municipal Solid Waste

(excluding C&D waste) is being illegally dumped every day in the City.

16. In Paragraph 24 of our order dated 26 th & 29th February

2016 to which we have already made a reference, we have noted the

consequences of the failure to abide by the order of this Court passed

on 2nd April 2013 which is the consent order. Right to live in a pollution

free environment is guaranteed under Article 21 of the Constitution of

India. Obviously, one of the objects of passing the order dated 2 nd April

2013 was to protect and enforce the said right of citizens. Even going

by the stand taken by the said Corporation, the scenario which emerges

today is that the quantity of at least 5,600 MT of solid waste per day is

being illegally dumped in the City presumably at Deonar site which

does not comply with the requirements set out in the order of this Court

dated 2nd April 2013 and municipal solid waste as well as the MSW

Rules of 2000.

17. Therefore, the argument based on C&D Disposal Rules does

not impress us at all and the same is not a ground to modify the

directions issued in the order of this Court.

18. Now, we turn to the MSW Rules of 2016 which have been

brought into force on 8th April 2016. In Civil Application No.221 of

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2013, this Court was concerned with the issue of extension for grant of

time to comply with the order dated 2nd April 2013. One of the main

basis of the said order is the complete failure of the said Corporation to

implement the said directions. Going by the stand taken by the said

Corporation, there is no possibility of the said Corporation completing

the implementation of the said directions in near future. Going back to

Clause 15 of the minutes of the order, the time frame provided for

setting up of municipal solid waste processing facility has expired long

back. The time frame fixed for closure of existing dumping sites as

required by the MSW Rules of 2000 has also expired long back. The

argument of the Review Petitioner which represents the builders and

developers seems to be that in view of the applicability of MSW Rules of

2016, it is not necessary for the said Corporation to comply with the

order of this Court dated 2nd April 2013 which has attained finality.

This argument cannot be accepted. None of the parties have moved this

Court for modification of the order dated 2 nd April 2013. Therefore,

only on the basis of the applicability of the MSW Rules of 2016, no

modification can be made with the order of this Court. The directions

issued under the order dated 2nd April 2013 have been issued to ensure

that the major cities in the State are free from pollution.

19. Another argument was that even if the members of the

Review Petitioner are permitted to proceed ahead with the construction

sng 23 revptn-3720.17

of new buildings, there is no data available to show that it will increase

the generation of municipal solid waste per day. We must note here

that the observations made in the order are based on the judicial notice

taken by this Court of several factors. In any case, the said Corporation

has not come forward to place the data on record to show that the

conclusion drawn in the said order is incorrect and that even if

construction of large number of new buildings is permitted, it will not

result into increase in generation of municipal solid waste. In fact, in

the order of this Court which is sought to be reviewed, this Court

directed thus:-

"(b) The State Government and/or the Municipal Corporation shall undertake a scientific assessment of impact on the generation of the municipal solid waste including construction waste in the city by construction of new buildings and new development projects. The study shall include the assessment of the impact of the constructions likely to come up in the city for a period of at least 10 years."

Till today, no such study has been made. Without any such study being

made, it is not possible to accept the argument of the Review Petitioner.

20. An interesting feature of the stand taken by the said

Corporation must be noted here. The said Corporation by relying upon

the Draft Plan prepared by the Mumbai Metropolitan Regional

Development Authority (MMRDA) has come out with a case that the

population of the City of Mumbai is likely to increase by 2021 but is

sng 24 revptn-3720.17

likely to decrease by the year 2031. The paragraph 15 of the affidavit

reads thus:

"15. In the earlier Affidavit filed by MCGM, it has been stated on behalf of the MCGM that there is approximately 9400 M.T generation of Municipal Solid Waste per day. However, gradually with time, due to decentralization, segregation of dry waste and wet waste, reduction of debris material mixed with MSW by way of debris on call system, the MSW generation as on today is approximately 8600 M.T per day. Hence the generation of MSW which is required to be processed in dumping ground has gradually on the contrary reduced. The reduction of MSW is due to the reasons stated hereinabove which includes zonal collection and transport system, steps taken to increase house to house collection, steps taken to increase segregation at source, promotion of public awareness for segregation & public littering and weight management system."

21. Thus, even going by the stand taken by the said

Corporation, till the year 2021, the population of the City will grow and

there will be only a marginal decrease by 2031. In fact, it was for the

said Corporation to place the data on record which will show that even

if new construction activities in the City are undertaken, it will not

result into generation of more municipal solid waste.

22. Very interesting argument was canvassed by the learned

senior counsel appearing for the Review Petitioner. The argument was

that the slum dwellers and the poor people residing in the City can

easily acquire premises in the buildings which may be constructed by

the developers and builders in the City of Mumbai and that residential

sng 25 revptn-3720.17

accommodation in new buildings in the distant suburbs of Mumbai will

be available at the cost of approximately Rs.2 lakhs. We do not think

that any reasons are required to be recorded for rejecting this

submission outright. A judicial notice will have to be taken of the fact

that even a single room structure in a slum in a distant suburb in the

City may not be available on ownership basis at the said cost.

23. Another issue which was canvassed was that there was no

notice given to the owners, builders and developers. This Court was

dealing with the Application made by the said Corporation for grant of

extension of time. This Application was adjourned from time to time by

passing ad-interim orders of extension. It is not possible for us to

accept that the members of the Review Petitioner or at least some of

them were not aware of the provisions of the MSW Rules of 2000 and

the order dated 2nd April 2013. The conditions have been imposed

while considering the prayer of the said Corporation for grant of

extension of time. Therefore, there was no occasion to give notice to

the developers, builders or owners in the City of Mumbai. We may note

here that the members of the Review Petitioner are builders and

developers. They never came forward to take up the issue of compliance

of the MSW Rules of 2000 or orders of this Court.

sng 26 revptn-3720.17

24. There is one more factual aspect which needs to be noted

which is recorded in the order of which a review is sought in Paragraph

27 thereof. This Court has noted the concern expressed by the Chief

Secretary of the State Government that the real estate industry will

suffer if restrictions are imposed on the development. The learned

counsel appearing for the said Corporation pointed out that nearly 80%

to 85% development proposals received by the said Corporation are in

respect of the redevelopment projects. There is no restriction or

embargo imposed by the order of this Court on permitting the re-

development projects. The building permissions which were already

granted remain unaffected by our order. Clause (i)(a) of the directions

contained in our order dated 2nd April 2013 reads thus:-

"(a) The development permissions/IOD shall not be granted by either the said Municipal Corporation or the State Government on the Applications/proposals submitted from 1st March 2016 for construction of new buildings for residential or commercial use including Malls, Hotels and Restaurants. Such Applications shall be processed, but the IOD and/or commencement certificate shall not be issued. It is obvious that in view of this restraint, no once can take advantage of deeming provisions in the DCR and MRTP Act.

Needless to state that this condition will not apply to all the redevelopment projects covered by the clauses (5), (6), (7), (8), (9) and (10) of the DCR No.33. This condition will not apply to the buildings proposed to be constructed for the hospitals or educational institutions. The condition shall not apply for consideration of the proposals for repairs/reconstruction of the existing buildings

sng 27 revptn-3720.17

which do not involve use of any additional FSI in addition to the FSI already consumed. These restrictions shall apply only to the Applications/proposals submitted from tomorrow st i.e 1 March 2016 ".

(Underline supplied)

25. We are, therefore, of the view that no case is made out for

reviewing or modifying that part of the order by which an embargo has

been put on the new construction projects in the City. No reliefs can be

granted in this Review Petition and the same is rejected with no order

as to costs.

26. Civil Application in Review Petition does not survive and

the same is disposed of.

  (C.V. BHADANG, J)                                                   ( A.S. OKA, J )