Bombay High Court
Municipal Corporation Of City Of Thane ... vs Vinay Laxman Tatke on 16 March, 2018
Author: A.S. Oka
Bench: A.S.Oka, Riyaz.I.Chagla
1 cast8250
ssp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION ST.NO.8250 OF 2018 IN
WRIT PETITION NO.1740 OF 1998
Municipal Corporation of
City of Thane ...Applicant
In the matter between
Vinay Laxman Tatke ...Petitioner
vs.
State of Maharashtra & Ors. ...Respondents
Mr.Kishor S. Patil for the Petitioner
Mr.R.S.Apte, Senior Advocate a/w Mr.N.R.Bubna for
the respondent Nos.1 and 2 in the petition
and for the applicant
Ms Sharmila Deshmukh for respondent No.3
CORAM : A.S.OKA, &
RIYAZ.I.CHAGLA, JJ.
DATE : MARCH 16, 2018
ORAL ORDER (Per A.S. Oka, J.)
. Not on board. Taken on board by consent of the parties as today this Application was to be taken up for hearing.
1 A group of writ petitions including Writ Petition No.1740 of 1998 was disposed of by a Division Bench of this Court by Judgment and Order dated 2nd April 2013. The group of petitions included PIL No.217 of 2009 which pertains to the Mumbai Municipal Corporation. From the Judgment and order dated 2nd April 2013 in the said group it appears to us that the main issue involved in the said group was as regards the failure of the various municipal ::: Uploaded on - 18/04/2018 ::: Downloaded on - 21/05/2018 10:53:19 ::: 2 cast8250 corporations and local authorities such as municipal councils, Zilla Parishads to implement the provisions of the Municipal Solid Wastes (Management and Handling) Rules, 2000 (for short "MSW Rules"). It appears from the order dated 2nd April 2013 that by consensus of the State Government and all contesting parties, agreed minutes of the order were drawn and taken on record. The order was passed in terms of the minutes of the order. The minutes of the order incorporated in the order dated 2 nd April 2013 clearly indicate that the directions issued therein are binding on all the local authorities in the State including urban local authorities such as municipal corporations and municipal council. Time bound schedule was laid down by this Court for implementing the provisions of the MSW Rules. The time schedule was provided in clause 15 laying down an action plan. The averments made in the present civil application show that the applicant Municipal Corporation has not complied with the directions issued under the said Judgment and Order. It has not abided by the timeline provided in paragraph 15 of the minutes of the order and therefore, the prayer in the application is for extension of time to comply with the directions.
2 The magnitude of the problem faced by the applicant-Municipal Corporation while dealing with the solid waste generated in the city is clear from the admitted facts. Going by the paragraph 19 of the application, generation of solid waste in the city is of 800 M.T per day out which 426 M.T. is wet ::: Uploaded on - 18/04/2018 ::: Downloaded on - 21/05/2018 10:53:19 ::: 3 cast8250 waste and 375 M.T is dry waste.
3 At this stage, it will be necessary to make a reference to the affidavit of Shri N.H.Shivangi, Regional Officer of Maharashtra Pollution Control Board which is dated 11 th January 2018 filed in PIL 139 of 2015. Paragraph 7 of the said affidavit contains a factual statement that out of 800 M.T of solid waste generated per day, only 60 M.T of wet waste is being scientifically processed at 9 plants. The situation regarding dry waste is very disastrous. Page 34 of the application shows that the operational facility available for processing of dry waste can deal with the quantity of only about 12 M.T per day. Thus, on admitted facts it can be concluded that hardly 10% of the total generation of sold waste in the city per day is being dealt with in a scientific manner as provided under the MSW Rules. Thus, it is clear that there is hardly any compliance with the directions issued by this Court on 2nd April 2013. Perusal of the present application and in particular clause (a) of paragraph 19 shows that the Municipal Corporation is expecting that there will be increase in the generation of solid waste per day. In paragraph 20 of the present application, there is an undertaking given by the applicant that by October 2019, the first respondent will ensure compliance with the directions issued by this Court under the Judgment and order dated 2nd April 2013.
4 The submission of the learned senior counsel ::: Uploaded on - 18/04/2018 ::: Downloaded on - 21/05/2018 10:53:19 ::: 4 cast8250 for the applicant was that in view of the undertaking and in view of the efforts which have been already made and proposed to be made, this Court should grant extension of time as prayed. Certain reasons have been assigned for delay.
5 In view of the undertaking given by the applicant, indulgence deserves to be shown by granting extension of time. But appropriate conditions will have to be imposed which will ensure that the applicant abides by its undertakings. We hope and trust that the applicant and its officers have understood the seriousness of the situation which shows that as of today, there is no provision for scientifically and lawfully dealing with the 90% of the solid waste generated every day in the city. Moreover, the generation of waste is likely to increase even going by the averments made in the application.
6 A Division Bench of this Court to which one of us (A.S.Oka,J.) is a party had an occasion to deal with a similar situation arising in the case of city of Mumbai. As stated earlier, the group of petitions decided by the Judgment and Order dated 2 nd April 2013 included PIL No.217/2009 concerning the implementation of MSW Rules in relation to the city of Mumbai. As in the case of Thane Municipal Corporation, even the Mumbai Municipal Corporation also applied for extension of time. The request made by the Mumbai Municipal Corporation was decided by the Judgment and Order dated 29th February 2016 in ::: Uploaded on - 18/04/2018 ::: Downloaded on - 21/05/2018 10:53:19 ::: 5 cast8250 Civil Application No.221 of 2013 in PIL 217 of 2009. This Court noted the seriousness of the situation in the city of Mumbai. This Court noted that though about 9000 M.T of solid waste is being created in the city every day, only a quantity of 3000 M.T was being scientifically processed in the city of Mumbai. Thus, the percentage of sold waste processed scientifically was much higher than the percentage as far as the limit of the applicant Thane Municipal Corporation is concerned. In the said case, this Court expressed an opinion that strictly no case was made out for grant of extension of time. This Court observed that the extension of time will be granted only with the hope that all the Authorities will make sincere efforts to make compliance with the directions issued by this Court as well as MSW Rules. However, while granting extension of time, this Court imposed embargo on the new constructions in the city of Mumbai.
7 We cannot countenance a situation where on one hand, the local Authority will take its own time to comply with the requirements of MSW Rules and on the other hand, due to the construction of new buildings, quantity of solid waste generated in the city continues to increase.
8 We need not elaborate that if substantial part of the solid waste is not dealt with scientifically, it adversely affects environment and infringes the fundamental right of the citizens to live in pollution free environment which is guaranteed by ::: Uploaded on - 18/04/2018 ::: Downloaded on - 21/05/2018 10:53:19 ::: 6 cast8250 Article 21 of the Constitution of India. Only in view of the undertaking and only with a view to give an opportunity to all the Authorities to make concentrated efforts to comply with the directions issued by this Court that we are extending the time. However, if the Municipal Corporation does not comply with the directions issued by this Court within extended time, similar restrictions imposed by this Court by order dated 29 th February 2016 in the case of city of Mumbai will come into operation.
9 Considering the fact that we are imposing stringent conditions, we are not only extending the time till 31st October 2019 as prayed for but we are extending the time till 31st December 2019.
10 As directed in the case of the Mumbai Municipal Corporation, the State Government and/or the applicant Municipal Corporation will have to undertake scientific assessment of impact of generation of the municipal solid waste including construction waste in the city on the environment. We, therefore, propose to issue necessary directions in this behalf.
11 Accordingly, we dispose of the Civil Application St.No.8250 of 2018 by passing the following order:
(I) Undertakings in paragraph 20 of the application are accepted as the undertakings of the applicant-Municipal Corporation;::: Uploaded on - 18/04/2018 ::: Downloaded on - 21/05/2018 10:53:19 :::
7 cast8250 (II) We grant time to the applicant to comply with the directions contained in the order dated 2nd April 2013 till 31st December 2019. However, grant of extension will be conditional;
(III) If the applicant fails to comply with all the directions under the Judgment and Order dated 2nd April 2013 within the extended time, with effect from 1st January 2020 onwards, the applicant shall not grant any development permission under section 45 of the Maharashtra Regional and Town Planning Act,1966 for construction of new buildings for residential or commercial use including malls, hotels and restaurants. We make it clear that these restrictions will not apply to the projects of repairs and re-
construction of existing buildings under various schemes or under the DCR. This embargo will not apply to the buildings constructed by the local Authorities within the meaning of the MRTP Act, statutory Authorities and the Governments as well as to the construction of hospitals/clinics, buildings for educational purposes and Courts. The embargo will not apply to the construction of tenements by Public Authorities for rehabilitating the Project Affected Persons. Even if time fixed under clause (II) is further extended by this Court, notwithstanding the extension of time, the embargo will continue to apply from first ::: Uploaded on - 18/04/2018 ::: Downloaded on - 21/05/2018 10:53:19 ::: 8 cast8250 January 2020. This embargo will continue till substantial compliance is made by the applicant with the order dated 2nd April 2013;
(IV) We direct the applicant-Municipal Corporation to undertake scientific study for assessing the quantity of solid waste which is likely to be generated within the span of 25 years in future and the impact of generation of solid waste and construction waste on the environment;
(V) The applicant-Municipal Corporation may appoint any expert agency to do so;
(VI) We direct that the applicant-Municipal Corporation to file an affidavit setting out the steps taken for compliance with the aforesaid directions. Such affidavit shall be filed on or before 6th July 2018 and the civil application shall be listed on 13th July 2018 for considering the compliance.
(RIYAZ.I.CHAGLA,J.) (A.S.OKA,J.) ::: Uploaded on - 18/04/2018 ::: Downloaded on - 21/05/2018 10:53:19 :::