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Judgment
The time to repair the roof is when the sun is shining; so said President J.K.F. Kennedy. Taking umbrage that the waste treatment plant (anaerobic digester) has failed and with it the expertise involved in it, and in view of the oncoming IFFI (International Film Festival of India) the present application has been filed by the Corporation, Respondent no. 3 in Writ Petition No. 485/2004 for several reliefs, including for permission to dispose off the solid waste at the Curca site, temporarily which site was the subject matter of the said Writ Petition. The present application, therefore, has been filed for permission to use Curca site temporarily contending that the said site belongs to the Corporation and the Corporation has no other site, as use of make shift temporary sites have also been stopped. It is also stated that as the plant has failed, the composting stations cannot take the entire waste. It is stated that IFFI will also cause huge increase in solid waste and it is increasingly becoming difficult to cope up with the waste. It is also stated that the position is so desperate that very soon the applicant will be unable to even lift the waste generated by the Corporation and much less will be able to dispose of the same which will result in consequential problem to the capital city of Panaji including health problems. The applicant therefore has sought time to commence work at Curca site and has also sought the appointment of another environment agency to suggest the best feasible way to deal with the capping and closure plan of Curca site and until the work at Curca site commences, the Corporation be permitted to process and dispose of the solid waste at the said Curca site in accordance with MSW Rules. Shri Dessai, the learned Senior Counsel, appearing on behalf of the Corporation has submitted that on account of the failure of the waste processing plant at Patto, the applicant has been left no place to deal with the garbage and on account of the impending IFFI festival temporary arrangements are required to be made to dispose of the said garbage at the Curca site. Learned Senior Counsel further submits that in case the garbage is not disposed off it will create problems and will reflect badly on the State. Learned Senior Counsel submits that the site acquired at Bainguinim has not been handed over to the Corporation so far.
The application has been seriously objected to, particularly with reference to prayer ''c'' of the application by Smt. Norma Alvares, the learned Counsel on behalf of the petitioner contending that the order of this court dated 26/09/2006 has attained finality and cannot be modified by another Division Bench of the same Court. Learned Counsel has further submitted that the Corporation had set up composting stations with the help of voluntary workers and the same provide an answer to meet the needs of waste disposal faced by the Corporation. Learned Counsel also submits that the said voluntary workers have been distanced by the Corporation and the community is not taken into confidence for successful operation of the said composting stations. Learned Counsel further submits that the Corporation even till date has not complied with the immediate measures which were required to be taken pursuant to the order of this Court dated 9/07/2008 in Suo Motu Writ Petition No. 2/2007. Shri Joshi, the learned Counsel appearing on behalf of Goa State Pollution Control Board has also opposed the application and has submitted that measures for disposal of waste had to be in place by 31/03/2003 in terms of the said MSW Rules, 2000, but even then very little has been done by the Corporation in that direction. Shri Kantak, the learned Advocate General is not averse to giving some time to the Corporation.
There is no dispute that the site at Curca was used by the Corporation but not for disposal of waste or garbage in terms of the said MSW Rules, 2000, but only for dumping the same and on account of pollution problems created, made the Village Panchayat of Curca file the Writ Petition bearing No. 485/2004. At one stage that is on or about 16/08/2005 after an affidavit was filed by the Sarpanch of the Village Panchayat setting out that the site was exhausted and further dumping of garbage was not possible, restraint order came to be passed on 16/08/2005 against the Corporation from further dumping of waste at Curca site. Thereafter the said order was modified by order dated 28/12/005 when the Corporation was permitted to dispose of at the subject site 15 metric tones waste solid bio-degradable waste to be dealt in accordance with the said Rules. Subsequently, the Corporation decided to abandon the Curca site for the purpose of dumping/disposal of solid waste and on 26/09/2006 minutes of order were filed for capping the said garbage site and the work was entrusted to Goa State Urban Development Agency (GSUDA). The said minutes of order culminated in an order of this Court which reads as follows;
We have perused the Capping and Closure Plan of Municipal Solid Waste Dump prepared by Mahabal Enviro Engineers Pvt. Ltd. We have also perused the Affidavit dated 15/09/2006 filed by the Respondent No. 6
In view of the aforesaid development, the parties have arrived at a settlement by mutually acceptable "Minutes of Order" duly signed by the learned Counsel for the Applicant and the learned Counsel for Respondent Nos. 1, 2, 3 & 6. The same is taken on record and marked ''X'' for identification. The Writ Petition stands disposed of in terms of the said Minutes of Order.
The learned Counsel for the Respondent No. 3/Corporation of the City of Panaji categorically states on instructions from the Municipal Commissioner that the aforesaid site at Curca will not be used for dumping, storage or disposal of garbage at all. The learned Counsel states that the said site is likely to be used as a cattle pound.
Having regard to the facts and circumstances of the case, for strict compliance of the aforesaid "Minutes of Order" place the matter though dispose of, for directions on 11/12/2006 to ensure strict compliance of the same.
Although the work of capping was to be completed by 30/05/2007 as per minutes accepted by order dated 26/09/2006, nothing happened in that direction and it appears that the consultant M/s. Mahabal Enviro Engineers Pvt. Ltd. who was initially selected, to cap the site at Curca was given up and one Dr. S.R. Mahale was selected. Incidentally, it may be stated that it is the same Dr. S.R. Mahale who had designed the said plant at Patto which has failed and is not responding to the Corporations'' plea to set it right. Now, the Corporation seeks appointment of another expert by the Court. Needless to observe it is the statutory duty of the Corporation to deal with the garbage problem faced by it in terms of the MSW Rules, 2000 and if needed by appointing experts for the same and that duty cannot be placed on this Court as sought to be done by a virtue of prayer (a) of the application under consideration. One wonders whether experts are being appointed on the basis of their expertise or some other consideration. Nevertheless we are inclined to grant time to the Corporation of 5 months in terms of prayer (a) as the Counsel for the petitioner has given her no objection.
IFFI comes at this time of the year, every year for the last several years. The respondents'' plant, it is stated, failed in May, 2008 and therefore we find that there is nothing urgent in this application. Learned Counsel on behalf of the petitioner may be right in stating that the order dated 9/07/2008 in Suo Motu Writ Petition No. 2/2007 has not been complied with. The said order was regarding the immediate measures which were required to be taken by the Corporation and in case it was complied with nothing prevented the Corporation for making an averment in that regard. Till date no affidavit has also been filed of compliance of the said order in the said Suo Motu Writ Petition No. 2/2007. In case the said order was complied with and other composting stations successfully worked, we do not think that the Corporation would have been in predicament it claims to be. The said immediate measures were to be complied within one month from 9/07/2008 and the time was further extended on 8/10/2008 for a period of one month from that date. MSW Rules, 2000, as submitted by Shri Joshi, the learned Counsel on behalf of the Goa State Pollution control Board, had to be put in place by 31/03/2003 and yet no permanent arrangements appear to have been made by the Corporation as regards the disposal of solid waste in terms of the said Rules till date, and, the adage quoted hereinabove is in that connection.
The Apex Court in State of Uttar Pradesh Vs. Brahm Datt Sharma and Another, has stated that no miscellaneous applications can be filed in the writ petition to revive proceedings in respect of subsequent events after two years. It further stated that the High Court had no jurisdiction to entertain the application as no proceedings were pending before it. When the proceedings stand terminated by final disposal of the writ petition it is not open to the Court to reopen the proceedings by means of miscellaneous application in respect of a matter which provided a fresh cause of action. If this principle is not followed there would be confusion and chaos and finality of the proceedings would cease to have any meaning. After the Corporation gave a solemn undertaking that the Curca site will not be used for dumping, storage or disposal of garbage, this Court accepted the same and disposed of the petition. The Corporation as a public body cannot be allowed to go in circles. Having disposed of the said petition in terms of the undertaking given by the Corporation we are not inclined to open that issue again and open the Curca site for further disposal of solid waste/garbage by the Corporation. The Corporation had enough time to take necessary steps in terms of the said Rules. With the above observation, we proceed to reject the application in terms of prayer clauses (b), (c) & (d).