Bombay High Court
Municipal Corporation Of Greater ... vs Pandurang Patil on 30 January, 2020
Author: R.I. Chagla
Bench: S.C. Dharmadhikari, R.I. Chagla
Sherla V.
pil.217.2009_IA_901.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE
INTERIM APPLICATION NO.1 OF 2019
IN
PUBLIC INTEREST LITIGATION NO.217 OF 2009
Municipal Corporation of Greater Mumbai ... Applicant
IN THE MATTER BETWEEN:
Pandurang Patil ... Petitioner
Vs
Municipal Corporation of Greater Mumbai &
... Respondents
Others
Mr.Anil Y. Sakhare, Senior Advocate, with Mr.Joel Carlos, Mr.Vinod
Mahadik for the Applicant - Municipal Corporation of Greater
Mumbai
Mr.T.N. Subramanian with Mr.Paritosh Jaiswal, Mr.Vighnesh
Kumar i/b Ashok Purohit & co. for Respondent No.4 in IA/1/2020
Mr.R.S. Apte, Senior Advocate, with Mr.P.P. Kakade, Government
Pleader, with Mr.B.V. Samant, AGP, for State
CORAM: S.C. DHARMADHIKARI &
R.I. CHAGLA, JJ.
DATED: JANUARY 30, 2020 P.C.:
1. This application seeks extension of time to comply with the order passed by this Court. The order initially passed is of Page 1 of 12 pil.217.2009_IA_901.doc 2.4.2013 and thereafter, there are numerous extensions granted.
Our attention is invited to the order dated 9.4.2019.
2. That extended the time till 31.12.2019. We are mindful of the fact that the Environment (Protection) Act, 1986 envisages protection of environment and by reducing pollution. One of the reasons for pollution is the waste generated in cities and metro cities, particularly like Mumbai. Management of such waste is an enormous task. The Solid Waste Management Rules, 2016 have been promulgated in exercise of powers conferred by sections 3, 6 and 25 of the Environment (Protection) Act and in supersession of the Municipal Solid Waste (Management and Handling) Rules, 2000. It is not just a change in nomenclature but what was initially restricted to municipal solid waste management is now encompassing the solid waste management as a whole. Now what is contemplated by the Rules of 2016 and the definitions in Rule 3, particularly of the term 'solid waste' has not been noticed. That reads thus:
"46. "solid waste" means and includes solid or semi-solid domestic waste, sanitary waste, commercial waste, institutional waste, catering and market waste and other non- residential wastes, street sweepings, silt removed or collected form the surface drains, horticulture waste, Page 2 of 12 pil.217.2009_IA_901.doc agriculture and dairy waste, treated bio-medical waste excluding industrial waste, bio-medical waste and e-waste, battery waste, radio-active waste generated in the area under the local authorities and other entities mentioned in rule 2;"
3. The word 'transportation' is defined in Rule 3 clause 52 and the word 'treatment' is defined in Rule 3 clause 53 which read as under:
"52. "transportation" means conveyance of solid waste, either treated, partly treated or untreated from a location to another location in an environmentally sound manner through specially designed and covered transport system so as to prevent the foul odour, littering and unsightly conditions;"
"53. "treatment" means the method, technique or process designed to modify physical, chemical or biological characteristics or composition of any waste so as to reduce its volume and potential to cause harm;"
4. Now, every local body is required to comply with these Rules and their obligations are set out in Rule 15. For compliance of Rule 15, it will be necessary to notice it in its entirety. Now, the term 'local authorities' and 'village panchayats' have also been understood by law to include the local body. The term 'local body' is defined in Rule 3 clause 30 for the purpose of the Solid Waste Management Rules, 2016 to mean and include the Municipal Corporation, Nagar Nigam, Municipal Council, etc. Therefore, Page 3 of 12 pil.217.2009_IA_901.doc whatever may be the nomenclature, by which they are called in different States and Union Territories, these local authorities have this obligation and duty.
5. It is possible that while performing such duties and obligations, the local authorities have constraints of finances, staff as also the facilities and infrastructure at their disposal. They have to look for private participation. The facilities envisaged by the Solid Waste Management Rules, 2016 require setting up of infrastructure and for that, it is not possible for the local bodies or authorities to arrange finances departmentally. The manpower and finances required to cater to the waste management in cities which have a population of over 1 crore is, therefore, limited and the management of solid waste is necessarily with private participation. Private participants are not easily coming forward, for they may have a commercial interest in mind. That requires continued discussions, deliberations and negotiations with them. All this takes time and prima facie, setting deadlines for the same, would be a mockery of the Environment (Protection) Act, 1986 and the Solid Waste Management Rules, 2016. While it is true that the Act is as old as 1986 and the Rules have also entered their 4 th Page 4 of 12 pil.217.2009_IA_901.doc year, though they are, according to the learned Counsel appearing for Respondent No.4, a mere improvement of the Rules of 2000, still, we cannot be oblivious of the fact that when the Court sets time limits or deadlines, on occasions, it is beyond the control of the local body to comply with the same. The orders of the Court setting such deadlines and recording personal undertakings of senior officials of local bodies therefore necessitate filing of applications seeking extension of time. Everybody is scared of the law of contempt and which is very easily invoked by parties. All this serves no purpose. Parties like the PIL petitioner and Respondent No.4 ought to be aware that without public participation and cooperation, it will not be possible to reduce pollution. The pollution control measures require equal participation of the members of public. We find that despite measures to sensitise the population, little has been achieved in terms of collection, transportation and treatment of the solid waste. Thus, in these circumstances, we note the contents of the further affidavit tendered on the previous occasion by Mr.Sakhare, learned Senior Counsel appearing for the Municipal Corporation.
6. In this further affidavit, it is stated by the Municipal Page 5 of 12 pil.217.2009_IA_901.doc Corporation of Greater Mumbai that it appointed the consultant M/s.Tata Consulting Engineering Ltd. in February, 2016 for development of Waste to Energy Project at Deonar, Mumbai. Prospective bidders' meet was organised in June, 2016 by this Consultant alongwith Municipal Corporation of Greater Mumbai. The Consultant has prepared a Detailed Project Report and tender documents as per the discussions and meetings with the Municipal Corporation. The Municipal Corporation has appointed environment Consultant, namely, M/s.Fine Enviro Engineers, in October, 2016 for obtaining various environmental clearances required for this project. Initially, global E-tenders, for development of 3000 Tonnes Per Day capacity Waste to Energy project at Deonar dumping ground, were invited on 25.10.2016. Thereafter, two pre-bid meetings were held in November, 2016 and March, 2017, so as to provide clarifications to the bidders regarding tenders and to get adequate response. There were workshops held regarding submission of E-tenders in May and July, 2017. Since a number of queries were raised, it is evident that there was poor response. On the due date i.e., 7.11.2017, no bid was received. Thereafter, another attempt was made to fine tune the whole process. The Municipal Corporation of Greater Mumbai Page 6 of 12 pil.217.2009_IA_901.doc published a procurement plan on 25.1.2018 on its website and invited suggestions, opinions and feedback from prospective bidders with regard to the scope of work. Thereafter, 14 prospective bidders submitted their suggestions.
7. We have to note that these are mere suggestions and a result of dialogue, deliberations, discussions and a continued process of engaging and involving private players. Nothing concrete could emerge in terms of filing of a tender and investment of financial resources of private parties. That is how, it has been stated that again tenders were invited on 4.4.2018. Once again, pre-bid meetings were held and queries were raised. The clarification process consumed the entire year of 2018. Once the time limit to forward tenders came to be extended on not one but two occasions, the result was three bids were received. The procedure to be followed in terms of the guidelines of the Central Vigilance Commission ("CVC") requires the process to be transparent, fair and non-arbitrary. There were technical presentations and the Expert Committee included experts from Indian Institute of Technology and National Environmental Engineering Research Institute. The presentations were before Page 7 of 12 pil.217.2009_IA_901.doc this Committee of Experts. The process underwent a technical evaluation and thereafter the financial bids were opened. The whole process consumed time. Now, the matter has reached the stage of approval of the Standing Committee. It is expected to give a letter of acceptance. We are informed by Mr.Sakhare, on instructions from the official present in Court, that the Standing Committee is to meet today and would take a call. That is why Mr.Sakhare says that the time be extended till June, 2023.
8. While we do not accede to this request straightaway and note the objections of Respondent No.4 thereto, we do not wish to tie the hands of all the players involved in the process. It would mean that not only Municipal Corporation of Greater Mumbai will do a haphazard job but the technical experts and members of several committees set up to advise the Municipal Corporation would lose interest and may withdraw from the assignments. This is a matter where global tenders are invited. This is a matter where the Municipal Corporation is not the only implementing agency. The Government of Maharashtra has also to lend its assistance by not only issuing the necessary clearances and approvals but offering land so that the Solid Waste Management Page 8 of 12 pil.217.2009_IA_901.doc Rules, 2016 are complied with. The Government of Maharashtra firstly gave only an in-principle approval to allot 52.10 hectares of land at village Karavle near Taloja, Taluka Ambernath, District Thane. Out of this land, 39.90 hectares is Government land whereas 12.20 hectares is of private ownership. Now, various meetings have been held so as to acquire this private land. The private land has several structures constructed and occupied by human beings. These persons have to be resettled and rehabilitated. On occasions, it is seen that cash compensation is not an offer entirely acceptable. Some insist on a home or house being provided or land being provided so as to build and shift their residential accommodation. These project affected persons have thus seized the opportunity to object to the proposals. It is, therefore, a time consuming process. Land acquisition in terms of the new law cannot be an overnight exercise. It only partly solves the vexed problems. Acquisition of land in terms of the 2013 law is bound to take time. The title does not vest in the State automatically but it has to first comply with the provisions of the law for such vesting and absolute title and right to the private property.
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pil.217.2009_IA_901.doc
9. These aspects had to be noted by us and we cannot be accused of simply borrowing or copying statements in the affidavit and additional affidavit of the Municipal Corporation.
10. We have carefully noted the provisions of the Act and the Solid Waste Management Rules, 2016. A paper compliance or a hasty job will only defeat the mandate of these Rules and frustrate the Environment (Protection) Act, 1986 as a whole. We are mindful of the ground realities and possibly nothing of the above has been noted in the earlier orders of this Court. The order of 2.4.2013 was before the enactment of Solid Waste Management Rules, 2016. After the Solid Waste Management Rules, 2016, which are comprehensive in nature, are enacted and brought into force, it is compliance with these Rules that is expected from the Municipal Corporation. We will, therefore, have to give time to the Municipal Corporation to show its bonafides.
11. Mr.Sakhare, learned Senior Counsel appearing for the Municipal Corporation, on instructions, states that at the next hearing of this Interim Application, he will place on record two aspects of the matter which, according to him, are vital and crucial. Page 10 of 12
pil.217.2009_IA_901.doc Firstly, he would give us a broad indication as to how the Tonnage Per Day of the Solid Waste collected and transported to Deonar dumping ground (the facility to be closed) would be reduced. He would submit that the Municipal Corporation is equally aware of and obliged to enforce and implement the law. It knows its duties and obligations under the law and the Rules. He submits that the action plan of periodical reduction in such transportation to Deonar dumping ground, would be placed on the next date. That would not only reduce the pressure on that facility but would enable the State and the Corporation to devise measures to remove the already collected and treated waste accumulated at Deonar so that hopefully, some day, they will be able to see the ground or the land beneath the dump. Secondly, Mr.Sakhare would submit that the Corporation will place on record the steps taken in furtherance of the tender process and the successful bidder being given the necessary time. Presently, on approximation, Mr.Sakhare says that a bidder, who is successful and to whom the contract is to be awarded, would require about three years and more to make fully functional the facility at the allotted land. He would require time for upgradation of the existing facilities and to set up a complete plant at the remaining site at Deonar. In the meanwhile, the Corporation Page 11 of 12 pil.217.2009_IA_901.doc has arranged for increasing the capacity of the existing facility at Kanjur dumping ground.
12. To our mind, we must be aware of these realities and now, the entire process includes taking measures so as to control pollution at Deonar dumping ground. To test the bonafides and to allow several Departments within the Corporation and the State Government to work in complete coordination and cooperation, we place this matter on 22.6.2020. Let the Municipal Corporation file an affidavit of compliance with the aforesaid statements latest by 27.3.2020. In the meanwhile, we direct the Registry not to register any matter as a Public Interest Litigation concerning the dumping of Solid Waste Management in the city of Mumbai.
(R.I. CHAGLA, J.) (S.C. DHARMADHIKARI, J.)
Digitally
signed by
Vishwanath
Vishwanath S. Sherla
S. Sherla Date:
2020.02.03
17:26:05
+0530
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