Bombay High Court
North Goa District Advocates ... vs The High Court Of Bombay And Goa Through ... on 8 September, 2015
Author: A.S. Oka
Bench: A.S. Oka, A.R. Joshi
1 wp-8306.15
pmw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8306 OF 2015
North Goa District Advocates Association and Ors. ... Petitioners
Versus
The High Court of Bombay and Goa and Ors. ... Respondents
Mr. Aspi Chinoy, Senior Advocate with Mr. Gaurish Agni, Mr. Omkar
Warange, Mr. David Rao and Mr. Abid Ali i/by Mr. Ameya Sudhir
Tamhane, for the Petitioners.
Mr. D.J. Kambata, Senior Advocate a/w Mr. M.S. Karnik, for the
Respondent Nos.1 and 3.
Mr. A.N.S. Nadkarni, Senior Advocate (the Advocate General of the
State of Goa) a/w Mr. Manish Salkar, AGP for Respondent No.2.
Mr. Ashwin D. Bhobe, for Respondent No.4.
CORAM : A.S. OKA & A.R. JOSHI, JJ.
JUDGMENT RESERVED ON : 26th AUGUST, 2015
JUDGMENT PRONOUNCED ON : 8th SEPTEMBER, 2015
JUDGMENT (PER A.S. OKA, J.):-
. There is a District Court of North Goa at Panaji at Goa.
There are at present six Courts in Civil and Criminal Courts building at Panaji which includes two Courts of the District Judges and four Civil and Criminal Courts. The High Court Administration decided to shift all the four Civil and Criminal Courts from the Civil and Criminal Courts 1 of 29 ::: Uploaded on - 08/09/2015 ::: Downloaded on - 08/09/2015 23:57:23 ::: 2 wp-8306.15 building at Panaji to the 3rd, 4th , 5th and 6th floors of the building known as "Spaces" (for short "the new building") at Patto Plaza, Panaji.
The challenge is to the notice dated 24 th July, 2015 published by the learned Principal District and Sessions Judge, North Goa, Panaji Court by which he declared that all the four Civil and Criminal Courts presently housed in the Civil and Criminal Courts building at Panaji will start holding sittings in the new premises in the new building with effect from 10th August, 2015. The present Petition has been filed by the North Goa District Advocates' Association, the Panjim Lawyer's Forum and two other members of the Bar who are the office bearers of the said Associations. We must note here that a Writ Petition under Article 32 of the Constitution of India was filed by the Petitioners before the Apex Court for the same relief. Under the order dated 10 th August, 2015, the said Petition was permitted to be withdrawn by the Apex Court with liberty to file a Petition under Article 226 of the Constitution of India before this Court at Bombay. Accordingly, the present Petition has been filed.
2. The learned Senior Counsel appearing for the Petitioner pointed out that the existing Civil and Criminal Courts building at Panaji which houses the District Court of North Goa is in a sound condition. He invited our attention to the photographs of the said 2 of 29 ::: Uploaded on - 08/09/2015 ::: Downloaded on - 08/09/2015 23:57:23 ::: 3 wp-8306.15 building placed on record. He pointed out that there are two Courts of the District and Sessions Judge in the said building and four Civil and Criminal Courts. He urged that way back in the year 2009, a large plot of land at Merces, Panaji has been already allotted by the Government of Goa for construction of a new District Court complex of North Goa District which can accommodate 20 Courts. He pointed out that notwithstanding the assurances given from time to time regarding commencing and completing the construction of new District Court complex, no steps have been taken by the Government of Goa to even commence the construction of the new Court complex. He pointed out the order dated 26th August, 2009 passed by a Division Bench of this Court at Goa in a PIL which directed the State Government to provide a plot of land admeasuring about 20,000 square meters at Merces, Panaji and accordingly the plot has been allotted. He pointed out that plans of the new District Court complex were ready in the year 2011 and in fact in the meeting held between Hon'ble the Chief Minister of Goa and the Hon'ble Chief Justice of this Court it was agreed that the construction of the District Court complex will be commenced by the end of the year 2013 and will be completed by the end of 2014. He urged that no steps have been taken in that behalf. He pointed out that the said new building was hurriedly acquired by the Government of Goa in which four floors have been allotted to the Civil and Criminal Courts. He 3 of 29 ::: Uploaded on - 08/09/2015 ::: Downloaded on - 08/09/2015 23:57:23 ::: 4 wp-8306.15 pointed out that admittedly there exists a garbage dump in the immediate proximity of the said new building. He pointed out the photographs to show how close the open garbage dump is to the said new building. He urged that the open garbage emits foul odour. He pointed out that the garbage dump has uncovered heaps of composted material. He pointed out that there is no provision for leachate collection which causes health hazard. He invited our attention to copies of inspection reports of the Goa State Pollution Control Board.
He also invited our attention to the direction dated 12 th January, 2015 issued by the Goa State Pollution Control Board in respect of the said garbage dump which shows the extent of nuisance created by the garbage dumb. He pointed out that there is a public library in the vicinity of the said new building which cannot be used due to foul odour emitted by the garbage. He pointed out that there are various public offices in the area of the said new building. He pointed out that complaints have been made by the Commissioner of Income Tax, BSNL, Officers of the Passport Office and the Manager of LIC about the nuisance and health hazard created by flies and foul smell.
3. He urged that he is conscious of the limitations on the power of the Writ Court to interfere with the purely administrative decisions. He pointed out that he is not calling upon this Court to go 4 of 29 ::: Uploaded on - 08/09/2015 ::: Downloaded on - 08/09/2015 23:57:23 ::: 5 wp-8306.15 into the question of suitability of the premises in the said new building for establishing Courts. He submitted that the very decision of shifting the four Civil and Criminal Courts in an area which is known for the nuisance created by garbage dump is itself arbitrary for more than one reason. He urged that when the existing Courts are properly functioning in the existing building and when a new Court complex can be easily constructed within a short time on the allotted plot, there was no hurry to shift the Civil and Criminal Courts to the new building. He pointed out that rent of approximately Rs.5 Crores per year will be payable by the Government of Goa in respect of the premises in the said new building. He also submitted that on the ground floor of the existing Civil and Criminal Court building, there is a storage of muddemal and other articles which can be conveniently shifted to the new building instead of shifting the Courts. He urged that the existing six Courts have sufficient place in the existing building and more space can be created by shifting the old record and muddemal articles in the premises available in the new building. He urged that when Writ Court exercises its power to test the administrative decision on the touch-stone of arbitrariness, there cannot be any difference between an administrative decision of the High Court and administrative decision of any other agency and instrumentality of the State. Lastly, he invited our attention to the newspaper reports appearing in February and August, 2015 in 5 of 29 ::: Uploaded on - 08/09/2015 ::: Downloaded on - 08/09/2015 23:57:23 ::: 6 wp-8306.15 leading newspapers in Goa showing that the garbage dump in the area is creating unbearable stink which is causing respiratory problems and affecting the health of those who are working in the area. He urged that even going by the stand of the Goa State Pollution Control Board, in near future, there is no possibility of the garbage dump at Patto Plaza being shifted to another place. He, therefore, urged that intervention of the Writ court is necessary.
4. The learned Advocate General of Goa submitted that the four floors which have been made available to the Court in the new building are fully air-conditioned. He pointed out that the Government of Goa has spent a sum of about Rs.4 Crores on air-conditioning, on internal changes and on providing modern furniture therein. He urged that some of the Judges of this Court including the Hon'ble the Chief Justice have inspected the said new building and have approved the same. He invited our attention to the affidavit of Shri Prashant Goyal, the Law Secretary, Government of Goa. He pointed out that all steps have been taken by the Government of Goa to commence construction of new Court complex for North Goa in Merces, Panaji. He invited our attention to the statements made in the said affidavit. He stated that the Government of Goa has entrusted the work of construction of new District and Subordinate Court complex at North Goa at Merces to the 6 of 29 ::: Uploaded on - 08/09/2015 ::: Downloaded on - 08/09/2015 23:57:23 ::: 7 wp-8306.15 Goa State Infrastructure Development Corporation (for short "GSIDC").
He urged that after completing all the formalities, the work order is likely to be issued by 15th January, 2016 and the construction will be completed within a period of 24 months from the date of issue of the work order. He invited our attention to the affidavit of Shri Levinson J.
Martins, the Member Secretary of the Goa Pollution Control Board. He stated that all possible steps have been taken by the Pollution Control Board to abate the nuisance created by the garbage dump. He pointed out that the Corporation of City of Panaji (for short "CCP") acquired a land which is away from commercial establishments and residential habitation for the purposes of setting up 'Dry Recyclable material sorting center and composting stations'. He pointed out that the work at the said site commenced in December, 2014 but by order dated 5 th March, 2015 the National Green Tribunal has granted an order of status-quo. He submitted that but for the order of status-quo, the said facility would have been operational by now and the use of the plot at Patto Plaza as a dumping ground would have been completely stopped.
He urged that the decision to shift the Courts to the said new building is of the year 2013 and the Petitioners were all along aware of the same.
He urged that the Petition deserves to be dismissed only on the ground of gross delay which is not explained.
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5. The learned counsel appearing for the CCP relied upon an affidavit of Shri Sanjit Rodrigues, the Commissioner of CCP, in which it is pointed out that all steps were taken to develop a new site which could not be developed due to ad-interim order passed by the National Green Tribunal. He pointed out the steps taken to maintain the site at Patto Plaza.
6. Shri Khambata, the learned Senior Counsel representing the High Court Administration invited our attention to the present status of existing Court building at Panaji. He pointed out from the documents annexed to the Petition that in the year 2013 itself the Petitioners were aware of the decision to shift four Courts to the said new building. He pointed out that out of the six Courts in the existing building, four Civil and Criminal Courts will be shifted to the said new building. He pointed out that one Court of ad-hoc District Judge is situated in another building known as Velho building which is required to be vacated. He stated that the said Court will be shifted to the existing building. He stated that there is a possibility that one existing Court at Ponda will be shifted to the existing building and probably one or two newly appointed Judges will be accommodated in the existing building. He pointed out that the existing building is very congested as well as inconvenient whereas the four floors in the said new building are fully air-conditioned and the air conditioning will protect the 8 of 29 ::: Uploaded on - 08/09/2015 ::: Downloaded on - 08/09/2015 23:57:23 ::: 9 wp-8306.15 members of the Bar, litigants and Judges from foul odour and alleged nuisance. He urged that the decision to shift four Courts is based on the consideration of all the relevant factors and a Writ Court cannot go into the issue of the suitability of the premises in the said new building for the use as a Court.
7. We have given careful consideration to the submissions. In PIL No.6 of 2009, a Division Bench at Goa by order dated 26 th August, 2009 directed the Government of Goa to allot a land admeasuring 20,000 square meters at Merces (for short "Merces land") for construction of the Court complex to accommodate the District, Civil and Criminal Courts at Panaji. There is a letter dated 28 th March, 2012 addressed by the learned Principal District and Sessions Judge, North Goa to the Principal Chief Engineer of the Public Works Department of Government of Goa in which it was recorded that there was an assurance that the work of construction of new District Court complex on Merces land would be completed by 31 st May, 2012. Action Taken Report was requested to be submitted by the Principal District Judge.
Thereafter, there is a continuous correspondence made by the Principal District Judge with the Principal Chief Engineer. On 20 th October, 2012, the Principal District Judge of North Goa, Panaji addressed a letter to the Law Secretary of the Government of Goa making a grievance about the failure to commence construction on the Merces land.
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8. A meeting was held on 21 st March, 2013 between the Hon'ble Chief Minister of Goa and the Hon'ble Chief Justice in which it is recorded that the plans of the District Court complex have been approved. Minutes of the meeting annexed to the Petition record that the work would be commenced by the end of May 2013 and would be completed by the end of May, 2014. Thereafter, there were letters addressed by the North Goa District Advocates' Association in the year 2013 to the Hon'ble the Chief Justice making various grievances including a grievance that no progress has been made in construction of Court building on Merces land though foundation stone was laid in November, 2009. As we have noted above, even as of today, the construction of the building has not commenced. The situation which has arisen today is mainly due to the gross delay on the part of the Government of Goa in the matter of the commencing the construction of the Court Complex at Merces. If construction of the Court complex would have been completed as per the assurances given from time to time, the situation which has arisen today would not have arisen.
Therefore, we propose to issue appropriate directions to ensure that the new Court Complex on Merces land becomes functional within the time fixed by this Court.
9. As far as the construction of the building of Merces land is 10 of 29 ::: Uploaded on - 08/09/2015 ::: Downloaded on - 08/09/2015 23:57:23 ::: 11 wp-8306.15 concerned, we may make useful reference of the law laid down by this Court in the decision dated 7th & 13th August, 2015 in the case of New Bombay Advocates Welfare Association and another Vs. State of Maharashtra and others (PIL No.239 of 2010) wherein this Court has held that it is the constitutional obligation of the State to construct the Court buildings and to provide all basic infrastructure therein to the citizens so that the citizens are in a position to exercise their fundamental right of having access to expeditious justice. This Court has held that financial constraints or administrative constraints is no ground to delay the construction of Court buildings. In the present case, the Government of Goa has completely failed to perform its constitutional obligation.
10. It will be necessary to make a reference to statements on oath made by Shri Prashant Goyal, Law Secretary of Government of Goa in paragraph Nos. 5 to 8, which read thus :-
"5. I say that the Hon'ble High Court of Bombay, at Bombay vide letter dated 21/7/2014, conveyed its approval of the Revised Plans of the construction of new District and Subordinate Courts Complex of North Goa, at Merces, Tiswadi-Goa to the Principal District & Sessions Judge, North Goa, at Panaji. I say thereafter the Principal District & Sessions Judge forwarded the said approval of the Hon'ble High Court of Bombay, at
11 of 29 ::: Uploaded on - 08/09/2015 ::: Downloaded on - 08/09/2015 23:57:23 ::: 12 wp-8306.15 Bombay to the office of the Chief Architect, Public Works Department for further necessary action on 05/08/2014. In the meanwhile, the Government of Goa has accorded approval and entrusted the work of construction of new District and Subordinate Courts Complex of North Goa, at Merces, Tiswadi-Goa to the Goa State Infrastructure Development Corporation (for short GSIDC).
6. I say that vide letter dated 13/3/2015, the Principal District & Sessions Judge addressed a letter to the Law Department, with a request to make a provision of an amount of Rs.70.00 crores in the Budget. Vide order dated 11/6/2015, an amount of Rs.1,67,82,000/- was sanctioned to GSIDC towards the development of infrastructure facilities, by the Law Department.
7. I say that I have been informed by the GSIDC that M/s.
Shrikhande Consultants Pvt. Ltd., Vashi, Navi Mumbai, have been appointed as Consultants for construction of new District and Subordinate Courts Complex of North Goa, at Merces, Tiswadi-Goa after following the tender process. I say that the appointment of the Consultant was made on 1/6/2015. I say that the Power Point Presentation of the Final Revised Plan has been given to the Hon'ble Chief Justice of Hon'ble High Court of Bombay on 20/08/2015. The Hon'ble Chief Justice has given further suggestions and recommendations. The same needs to be incorporated and therefore it is likely to cause further delay in the tendering process.
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8. I say that the work of preparation of estimates and preparation of Tender is being carried out by the GSIDC and as informed by GSIDC, shall be completed tentatively by 30/10/2015. I say that as informed by GSIDC, the scrutiny and tendering of the project after obtaining statutory approvals shall be tentatively be done by 30/11/2015. The opening and finalization of Technical and Financial bids and issuance of work order shall be completed tentatively by 15/01/2016. I say that the duration for construction of new District and Subordinate Courts Complex of North Goa, at Merces, Tiswadi- Goa is likely be 24 months from the date of issue of the Work Order."
(emphasis added)
11. Thus, the assurance is to complete the construction within two years from 15th January 2016. We accept the aforesaid statements.
The last assurance given by the Government was to complete the construction by the end of May 2014. Hence, not only that the construction of the building will have to be completed on or before 15 th January 2018, the same will have to be completed in all respects by that date so that its effective and actual use can start from 16 th January 2018. Thus, within this outer limit, all the internal work will have to be completed. We propose to direct the Government of Goa to submit periodical reports on the progress of construction on Merces land after 13 of 29 ::: Uploaded on - 08/09/2015 ::: Downloaded on - 08/09/2015 23:57:23 ::: 14 wp-8306.15 every three months along with the photographs. We propose to monitor the work to ensure that it is completed within the stipulated time. The total outlay for the construction of the Complex at Merces is Rs.70 Crores. We must note that any delay in completion of the construction will put enormous burden on the public exchequer as the rent of approximately Rs.5 Crores per year is payable in respect of the premises in the new building.
12. Now, we come to the challenge to the decision to shift four Courts to the new building. There was a representation dated 11 th May, 2013 made by the North Goa District Advocates' Association containing several grievances including the one of the failure to commence construction on the Merces plot. The opinion of the learned Principal District Judge on the said representation was sought by this Court. By a letter dated 11th July, 2013 (Exhibit P-18), the learned Principal District Judge submitted the opinion to the Registrar of this Court. In the said letter, the learned Principal District Judge stated that the Hon'ble the Chief Minister of Goa in his recent visit to the District Court at Panaji on 15th June, 2013 has given an assurance to allot an area of approximately around 900 square meters on the fourth and fifth floors of the said new building pending construction of the District Court complex on Merces land. It records that the Hon'ble Chief Minister 14 of 29 ::: Uploaded on - 08/09/2015 ::: Downloaded on - 08/09/2015 23:57:23 ::: 15 wp-8306.15 stated that the construction of the new building would be completed in three months. The Principal District Judge recorded an opinion that if the Government agrees to allot three floors of the said building, the four Courts presently working at Panaji can be shifted there and the Court of Ad-hoc District Judge which is presently housed at Velho building can be shifted to the Civil and Criminal Court building at Panaji. The letter records that the owner of the Velho building has written a letter that the lease of the Court premises in the said Velho building has expired and he does not desire to continue the lease. There is a letter dated 8 th August, 2013 (Exhibit P-19) addressed by the North Goa District Advocates' Association to the Principal District Judge of North Goa in which there is a reference to the proposal of the Hon'ble the Chief Minister of offering premises in the said new building at Patto Plaza. In the said letter, a grievance is made that the Association has not been taken into confidence. The letter is signed by the third Petitioner herein in his capacity of the President of the said Advocates' Association.
Hence, it can be said that the Petitioners were aware of the said suggestion on 8th August, 2013 which came from the Government.
13. At this stage, we must note that on 25 th February, 2013 a notice of Expression of Interest (Exhibit P-38) was published by the Government stating that to accommodate various Government Offices, 15 of 29 ::: Uploaded on - 08/09/2015 ::: Downloaded on - 08/09/2015 23:57:23 ::: 16 wp-8306.15 the Government of Goa intends to acquire on hire purchase, a suitable office space admeasuring 6,000 to 7,000 square meters in a commercial zone in and around Panaji, Taleigao and Porvorim for a period of three years extendable to six years. Expression of Interest was invited from the owners of the commercial premises. The order dated 18 th December, 2013 (Exhibit P-34) passed by the Government of Goa is annexed to the Petition which shows that a proposal was received from M/s. Apex Computers and Engineering Services offering the said new building at the monthly rent of Rs.60,74,152.57 and in addition the premises on the fifth and seventh floor in building Kamat Towers in Patto Plaza were also offered. Thereafter, M/s. Apex Computers and Engineering Services submitted a revised offer by reducing the rent. The said order records that the concurrence was shown by the Finance Department of the Government of Goa on 17th June, 2013 and 3rd December, 2013. By the said order, the Government accepted the bid submitted by M/s. Apex Computers and Engineering Services. We have stated in the earlier paragraph that the Hon'ble Chief Minister in his visit to the District Court at Panaji on 15 th June, 2013 assured to give two floors of the said new building to the Court. On that date, even the concurrence of the Finance Ministry to the proposal of M/s. Apex Computers and Engineering Services was not received. In fact, the order of the State Government accepting the bid was passed on 18 th December, 2013.
16 of 29 ::: Uploaded on - 08/09/2015 ::: Downloaded on - 08/09/2015 23:57:23 ::: 17 wp-8306.15 Apart from the bid of M/s. Apex Computers there were two other bids received as mentioned in order dated 18 th December, 2013. As early as on 15th June, 2013 the Hon'ble Chief Minister offered the said premises in the new building nearly six months before the decision was taken by the Government of Goa to accept the offer in respect of the said new building. The Lease was executed on 17 th January, 2014 which provided that the monthly rent in respect of the new building will be Rs.42,92,904.80 inclusive of taxes with annual increase of 3.5%. It records that the tenancy commenced with effect from 1 st November, 2013 (even before order dated 18 th December, 2015 was passed). There is another interesting aspect. The order of allotment of the third to sixth floors in the said new building to the Civil and Criminal Courts was made by the General Administration Department of the Government of Goa on 18th November, 2013 (Exhibit P-20) even before the offer was accepted by the Government. The possession appears to have been handed over on 27th November, 2013 by M/s. Apex Computers and Engineering Services (and not by Government of Goa) to the Principal District Judge at Goa (see Exhibit P-22). The correspondence made by the learned Principal District Judge, North Goa which is annexed to the Petition does not state that the possession was taken over with the express approval of this Court. Much can be said about the whole process undertaken by the Government of Goa. It is not necessary for us 17 of 29 ::: Uploaded on - 08/09/2015 ::: Downloaded on - 08/09/2015 23:57:23 ::: 18 wp-8306.15 to deal with this aspect in any further as this action of the Government of Goa is not under challenge in this Petition.
14. The said order of allotment dated 18 th November 2013 was communicated to the Registrar General of this Court by the Principal District Judge of North Goa in which it was stated that the steps were being taken to take possession of the said premises in the new building.
The possession appears to have been handed over on 27 th November, 2013 by M/s. Apex Computers and Engineering Services to the Principal District Judge at Goa. A resolution (Exhibit P-23) was passed on 17 th December, 2013 by the second Petitioner strongly objecting to shifting of any of the Courts at Panaji to the said new building. On 31 st December, 2013, the first Petitioner addressed a letter (Exhibit P-24) to the Principal District Judge of North Goa raising an objection to the shifting of the Court premises to the new building. Similar letter of protest was addressed by the second Petitioner Association to the learned Principal District Judge of North Goa on 3 rd January, 2014.
Neither in the aforesaid Resolution nor in the said letter, the Petitioners have made a grievance that the new building is close to the dumping ground of garbage. It appears that a meeting was convened by the Principal District Judge of North Goa in the chamber on 10 th January, 2014 when the President of the first Petitioner was requested to attend the meeting. It appears that there was one more meeting in the 18 of 29 ::: Uploaded on - 08/09/2015 ::: Downloaded on - 08/09/2015 23:57:23 ::: 19 wp-8306.15 chamber of the learned Principal District Judge, North Goa on the subject of plans for erecting partitions and modification of the third to sixth floors of the said new building. The plans were approved and directions were issued to the Government Architect. On 21 st May, 2014, the Principal District Judge of North Goa submitted an opinion (Exhibit P-36) to this Court that the premises in the new building are suitable for housing the four Courts. In the said opinion the learned Judge has not stated that the garbage dump is very close to the new building.
Thereafter, by letter dated 15th June, 2015 the first Petitioner again recorded the protest with the learned Principal District Judge of North Goa.
15. Thus, it appears that as of 17 th December, 2013 the second Petitioner was aware of the decision taken to shift the Courts to the new building. As of 31st December, 2013 even the first Petitioner was aware of the said decision. Thereafter, steps were taken to carry out internal work in the four floors allotted in the new building. As stated earlier, the possession of the four floors was already handed over to the Principal District Judge, North Goa on 27th November, 2013. It is only when the notice was issued by the Principal District Judge on 24 th July, 2015 of actual shifting of Courts that the Petitioners approached the Apex Court by filing a Writ Petition under the Article 32 of the 19 of 29 ::: Uploaded on - 08/09/2015 ::: Downloaded on - 08/09/2015 23:57:23 ::: 20 wp-8306.15 Constitution of India. In the meanwhile, necessary internal work was carried out in the premises in the said new building. The learned Advocate General of Goa claims that a sum of Rs.4 Crores was spent on the said work. In the circumstances, there is a great deal of merit in the submission made by the learned Advocate General of Goa as well as the learned Senior Counsel for the High Court Administration on the issue of delay. Moreover, the four Courts will be shifted to the said new building only on temporary basis till the new Court complex at Merces is ready.
16. The main contention raised in the Petition as regards the nuisance and health hazard created by the garbage dump near the new building will have to be considered. On this aspect we must consider the affidavit of Shri Levinson J. Martins, the Member Secretary of the Goa Pollution Control Board. In paragraphs 10 and 11 of his affidavit, he has stated thus :-
"10. I respectfully state that in so far as the present matter is concerned, the Goa State Pollution Control Board has already issued directions to the CCP. I state that the GSPCB is also monitoring the situation continuously, so that the odour emanating therefrom is reduced, if not completely eliminated. I respectfully state that the Patto area has various establishments such as primarily Government offices, corporate offices, Labour Court, 20 of 29 ::: Uploaded on - 08/09/2015 ::: Downloaded on - 08/09/2015 23:57:23 ::: 21 wp-8306.15 tourism complex, bus stand, State Information Commission under the RTI Act, SBI offices of various professionals such as lawyers etc, apart from State and Central Government offices as also the hotels/ restaurants and other eateries. In this view of the matter the GSPCB continuously monitor's. I respectfully state that the GSPCB would also issue directions to the CCP to handle the garbage composting over the weekends and over holidays wherein the Courts are not functional so that the odour which is emanating can be reduced. I state that this respondent has also issued directions to the city corporation to ensure that the odour emanating therefrom is controlled if necessary by setting up and engaging certain technology including odour control technology which may be available in this regard. I state that presently the GSPCB has already issued directions to the city corporation to cover the waste dump which is laying at site which is not visible from the adjoining buildings. Covering of the waste dump will also reduce the general pollution.
11. I state that as of now until the alternate facility at Patto which is mentioned in the earlier part of the affidavit becomes functional, it will not be possible to issue directions for closure of the facility as it is the only available facility and public interest requires such facility to be functional. I state that the CRZ authorities have indeed cleared the project where the other facility is bound to come up. And therefore it would be in the 21 of 29 ::: Uploaded on - 08/09/2015 ::: Downloaded on - 08/09/2015 23:57:23 ::: 22 wp-8306.15 interest of justice if the matter before the NGT is heard at the earliest and the order is vacated so that the plant could become operational at the said site."
(emphasis added)
17. What is stated in the said paragraphs shows that there is an issue of the odour emanating from the dumped garbage and therefore, the affidavit talks about taking measures to reduce the emanating odour. It also suggests that complete elimination thereof may not be easily possible. There is a direction issued to the Corporation of City of Panaji to cover the waste dump which is lying on the site so that is not visible from the adjoining buildings. The latest photographs produced by the Petitioners along with rejoinder show that a huge garbage dump is seen very close to the new building. There is an affidavit filed by the Commissioner of the Corporation of City of Panaji. Paragraph 8 of the said affidavit reads thus :-
"8. I say that the waste brought at the Municipal Solid Waste Processing site of Respondent no.4 situated near SBI building, EDC Patto, Panaji, Goa presently is between seven to 8 metric tones per day. I say that the said waste is treated as aforesaid at Municipal Solid Waste Processing site of Respondent no.4 situated near SBI building, EDC Patto, Panaji, Goa however the same is in excess of the existing infrastructure Build at the said site. I say that the Respondent no.4 22 of 29 ::: Uploaded on - 08/09/2015 ::: Downloaded on - 08/09/2015 23:57:23 ::: 23 wp-8306.15 therefore urgently requires the proposed site in property bearing P.T. Sheet no.56, Chalta no.6 of City Survey of Panaji at the earliest to overcome the issues of waste processing within the jurisdiction of Respondent no.4, however the Respondent no.4 is unable to proceed with activities on account of the Order passed by National Green Tribunal (Western zone), Pune."
(emphasis added)
18. Thus, it is an admitted position that the facility at Patto Plaza receives solid wastes of 7 to 8 metric tones every day which is in excess of the capacity of the existing infrastructure build at the site.
19. The Petitioners have annexed several complaints made by the officers of the Government Departments like the Commissioner of Income-Tax, Passport Office as well as public sector undertakings like BSNL and LIC regarding the nuisance and health hazard caused due to dumping in the Patto Plaza area. The said offices are at Patto Plaza in the area of the said new Building. There are large number of newspaper reports on which reliance is placed. The directions were required to be issued by the Goa State Pollution Control Board on 28 th July, 2014 under Section 5 of the Environment (Protection) Act, 1986 (for short "the said Act of 1986") to the CCP regarding the dumping site. What is noted in the said direction are various deficiencies such as foul odour 23 of 29 ::: Uploaded on - 08/09/2015 ::: Downloaded on - 08/09/2015 23:57:23 ::: 24 wp-8306.15 emanating from the site. There are puddles of leachate/stagnant water in the area. There is no cover provided for the composting material. A copy of the inspection report is also annexed to the said directions.
Thereafter, there is a further direction issued by the Pollution Control Board on 12th January, 2015. It refers to the earlier direction issued on 28th July, 2014. It is based on inspection carried out on 23 rd October, 2014. The contents of the observations made during the inspection carried out on 23rd October, 2014 read thus :-
"1.There is a heap of composted manual stacked at the entrance of shed covered with sirpoline.
2. No covering is provided for the composted material and birds were observed on the heaps.
3. Slight foul odour was emitted at the site at the time of inspection. A copy of the inspection report dated 23/10/2014 is enclosed herewith."
(emphasis added) Thereafter, directions were issued which read thus :
"1. Provide concrete platforms for stacking the composting waste behind SBI Building, Patto, Panaji-Goa.
2. To provide drains to collect leachate generated behind SBI Building, Patto, Panaji-Goa, which should be connected to a leachate collection tank."
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20. Thus, the issue raised by the Petitioners regarding the pollution and nuisance created by the garbage dump and generation of foul odour is not without any basis. There is a substance in the said grievance.
21. However, the four Courts will be shifted to the said new building only as a temporary arrangement and the same will be brought to the proposed new Court complex on Merces land. Secondly, it is too late in the day to interfere with the decision of shifting four Courts for temporary period especially considering the finding recorded earlier on the aspect of gross delay in approaching the Court. Thirdly, there is an assurance given by the Goa State Pollution Control Board in paragraph 10 of the affidavit of its Member Secretary to take all necessary steps.
Moreover, we are informed that all the four floors in the new building are air-conditioned. Inconvenience, if any, which is likely to be caused to the Members of the Bar and Litigants can be minimized by directing the Goa State Pollution Control Board to make frequent site visits and to take statutory action of issuing directions and ensuring the compliance thereof. Moreover, if construction of the new Court complex is not completed within the time specified in the affidavit of the State Government, appropriate directions can be always issued in appropriate proceedings. Hence, we are of the view that no interference can be 25 of 29 ::: Uploaded on - 08/09/2015 ::: Downloaded on - 08/09/2015 23:57:23 ::: 26 wp-8306.15 made mainly on the ground of delay and on the ground that the shifting of Courts will be on temporary basis only till January 2018. The other two factors are the steps assured to be taken by the Pollution Control Board and the fact that all the four floors are air-conditioned.
22. We may record here that High Court Administration will have to consider whether instead of shifting all the four Courts it is possible to shift the record and muddemal to the new building so that instead of four Courts, only one or two Courts can be shifted. The question whether more space can be created in the existing building by shifting the muddemal and other articles will have to be considered by the High Court Administration. From the photographs produced by the learned counsel for the High Court Administration it appears that the condition of the existing building is not at all bad.
23. We propose to issue a direction to submit periodical status reports on the construction of the Court Complex at Merces. We propose to grant liberty to the Petitioners to file a fresh Petition for the same relief in the event the Construction is not completed within the time stipulated by this Court and in the event the nuisance created by the garbage dump is not substantially abated till the expiry of the aforesaid period.
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24. Hence, we pass following order:
ORDER (I) The Petition is rejected with no order as to costs;
(II) We direct the Government of Goa to complete the Construction of the Court complex at merces in all respects till 15th January 2018. The Construction shall be completed in such a manner that the actual use of the Building can be commenced on 16st January, 2018 ;
(III) The Government of Goa shall submit quarterly reports to this Court on the progress made in the construction of the Court complex. Photographs shall be submitted along with the report. The Government shall serve copies of the reports to the Petitioners;
(IV) The Goa State Pollution Control Board shall submit the quarterly reports to this Court on the steps taken by it for reducing/preventing the nuisance created by the garbage dump. The Pollution Control Board shall serve copies of the reports to the Petitioners;
(V) The first of such reports shall be filed before the end of January 2016;
27 of 29 ::: Uploaded on - 08/09/2015 ::: Downloaded on - 08/09/2015 23:57:23 ::: 28 wp-8306.15 (VI) If the Construction of the Court Complex on Merces land is not completed on or before 15 th January 2018 and if the nuisance caused by the garbage dump continues till then, it will be open to the Petitioners to file a fresh Petition seeking appropriate reliefs;
(VII) The High Court Administration to consider whether the muddemal and other record can be shifted to the new building instead of shifting total four Courts to the new building so that more space can be created in the existing building to accommodate the Courts;
(VIII) For considering the compliance reports, the Petition shall be placed for directions on 2nd February 2016.
(A.R. JOSHI, J ) (A.S. OKA, J )
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Mr. Gaurish Agni, Mr. Omkar Warange, Mr. David Rao i/by Mr. Ameya Sudhir Tamhane, for the Petitioners.
Mr. M.S. Karnik, for the Respondent Nos.1 and 3.
25. After the Judgment is pronounced, the learned counsel appearing for the Petitioners invited our attention to the order of the Apex Court and submitted that the arrangement provided therein continued during the pendency of this Petition. He, therefore, seeks continuation of the same arrangement. The learned counsel appearing for the High Court Administration states that this Court may consider the prayer in accordance with law after taking into consideration the stand taken by the High Court Administration. None appears for the Government of Goa and other parties.
26. Considering the order of the Apex Court as well as the directions issued by this Court, we direct that the actual sittings of the Courts in the new building shall not be commenced for a period of three weeks from today. We make it clear that in the meanwhile the High Court Administration is free to consider the aspect which is set out in Clause VII of the operative part of the Judgment.
(A.R. JOSHI, J ) (A.S. OKA, J ) Certified to be true and correct copy of the original signed Judgment/order.
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