Margao Municipal Council vs Goa Foundation and Two Others

Heard Mr. Nadkarni, learned Senior Counsel appearing on behalf of the applicant and Ms. Norma Alvares appearing for the original petitioner-Goa Foundation/respondent No.1. Additional affidavit on behalf of the applicant is taken on record. This is an application by the Council, requesting the Court to modify its order dated 24th June, 2009, passed in the subject-writ petition and particularly the direction issued for reclaiming, screening and removal of dumped composted waste and construction of landfill at Sonsodo, Margao, Goa.

The Judgment and Order passed on 24th June, 2009, reads thus :

Rule returnable forthwith. Heard finally by consent and in view of orders of this Court dated 27.04.2009 and 05.05.2009.

Advocate Mr. Padiyar has filed additional affidavit of the Chief Officer of the respondent no.1, Municipal Council mentioning therein that the removal/reclaiming and screening of dumped composted waste and construction of landfill is to be completed by 31.01.2010. During the arguments, he has also clarified that this item in paragraph 6(B) of the affidavit deals with the question of disposal of accumulated waste over all these years which forms the subject matter of the present petition. He states that the said work is being entrusted to appropriate agency and that the agency has to complete that work by 31.01.2010.

Learned Advocate for the petitioner has pointed out that the annexures filed along with the additional affidavit nowhere expressly show that the work of removal of accumulated waste and the work of reclaiming the said site or construction of landfill has been handed over to any agency. According to the learned counsel, there is nothing before this Court to gather that the statement as made in the affidavit and as explained to this Court has actually been implemented.

In view of this argument, we have again heard learned Advocate Mr. Padiyar and he has explained that out of the two agencies, one agency has sought time of one year to complete the work while the other agency has sought eight months'' time. He further states that the petitioner has submitted a proposal in which it was expressed that the work could be completed within four months. He therefore, states that after examining these issues, the time schedule has been arrived at and disclosed in paragraph 6 of the affidavit.

In view of the subsequent arguments and the responsible statement made in affidavit, we accept the time schedule as given in paragraph 6(B). In other words, the respondent no.1 Municipal Council shall complete the work of reclaiming, screening and removal of dumped composted waste and construction of landfill by 31.01.2010.

In view of these directions, the petition is allowed in terms of prayer clause (i). No order as to costs.

According to the Counsel appearing for the applicant, this order mandates that the waste has to be treated only in the manner directed under the said order and particularly by the process mentioned therein. The applicant has pointed out that after the said order was passed, the applicant has taken several steps, all of which are enlisted in this application. From paras 2 onwards, it is contended that in terms of the Government of Goa''s decision of setting up of High Power Committee for solid waste management project at Sonsoso, the bids for carrying out the work in terms of the order were placed before it and the offer of M/s. Sociedade de Fomento Industries Pvt. Ltd., Margao, Goa came to be accepted. The work order was issued. A concession agreement has been executed and concessionaire was given 16 months'' time for completion of the entire project. The steps taken by the concessionaire are then enlisted.

It is stated that the apprehension of the applicant is genuine and the reason for seeking modification of the earlier order is that the original petitioner has filed a contempt petition being Contempt Petition No.8/2010, alleging violation of the directions issued in the Judgment and Order of this Court. Therefore, when the contempt petition was placed and some orders were passed, the applicants apprehended that the contempt petition would be proceeded with on the basis that they are in violation and in breach of the order, not only with regard to the time frame within which the same has to be implemented, but also with regard to the manner in which the work has to be carried out. It is stated that the work is going on at site. The meeting of 6th May, 2011 of the Monitoring Committee to discuss the status of the ongoing work is referred to in para 36 of this application. Prior thereto, several applications made for extension of time have been referred to. It is stated that the concessionaire informed the applicant that a sample of the composted dump was tested and it was found to contain heavy metals and as such, considering the possible contamination of the ground water in case of the composted waste being dumped at any given place, it was decided to bring this fact to the notice of the High Power Committee, constituted by the Government of Goa for setting up of solid waste management project at Sonsodo. The other option of capping of the accumulated waste was also discussed and it was decided to place this option before the High Power Committee. The correspondence in this regard was also placed before it and ultimately the High Power Committee decided that six members team of Monitoring Committee and the officials of the applicant should visit Gorai dump site and accordingly, visited the capped garbage and accumulated dump site at Gorai, Mumbai. Prior thereto, the work was reviewed by the High Power Committee. The Committee also considered the proposal of the concessionaire of capping of the existing site on the lines of Gorai. In terms of the directions by the High Power Committee, a consultant was requested to forward its opinion on the issue and particularly, the one raised by the concessionaire. The consultants expressed their willingness to undertake the required studies and advice. The consultant''s report confirms the fact that heavy metal was detected at site and considering the fact that the old garbage and waste has been dumped and that is lying for quite sometime, the entire waste could not be removed or reused. Equally, the percentages of Arsenic and heavy metal noted in some of the samples would necessitate making arrangement of capping, so that the waste does not endanger the life of the residents. The possible fallout of all this, according to the applicant, is that instead of the work of screening the wastes, segregating it, and then transporting it in terms of the Municipal Solid Waste Rules, 2000 would have to be reviewed and the capping of the garbage/waste, as has been done at Gorai Mumbai, should be explored as an option in terms of the report of the consultant. In such circumstances, finding that the order may present some difficulty for adopting such a course

This application has been opposed by Goa Foundation and Ms. Alvares appearing on their behalf urged that this is nothing but adopting a shortcut, so as to give go-bye to the order of this Court and the MSW Rules, 2000. She submits that if the report of the consultant is read in its entirety, it is apparent that the concessionaire selected by the applicant does not wish to carry out the task and the work assigned to it and particularly in terms of the MSW Rules, 2000. It is not as if the MSW Rules 2000 do not take care of any such contingencies. Presence of heavy metal in the waste itself has not been considered to be a hindrance or obstacle in treating the waste in terms of the schedule to the Rules and prior thereto, segregation and screening thereof. If the Rules are self contained and take care of the contingencies and events, then, in the garb of the consultants'' report they cannot be given a go-bye. All that the Court orders mandate is compliance with the MSW Rules. The mandate of these rules was not being adhered to, is apparent from the fact that the petitioners have been agitating these issues in several writ petitions.

Our attention is invited to an order passed in May, 2003 by a Division Bench of this Court and the subsequent orders right upto the orders on the applications that have been made for extension of time. If the consultant wants to find out way out, then the Council should assist him. She submits that merely because a landfill site is identified and available, does not mean that the garbage and waste dumped at the present site should be allowed to remain there without it being dealt with in terms of the MSW Rules. By referring to the consultant''s report, in some details, she submits that the presence of heavy metal and Arsenic is noted only in few samples. That does not mean that the substantive rules and the schedule thereto cannot be adhered to. The brief that the Council gave to the consultants was to suggest capping of the garbage dump site on lines of Gorai, Mumbai. That being the request and the brief for opinion, naturally the consultants also have studied the matter from that point of view. All this does not mean that the Rules have to be ignored. In such circumstances, she submits that this application cannot be termed as bonafide, but must be dismissed.

With the assistance of the learned Counsel appearing for the parties, we have perused the order passed on 24th June, 2009 as also the substantive orders in the writ petition. What we find from a reading of these orders is that the Municipal Councils in the State and Margao, in particular, despite clear directions of this Court from time to time, in Writ Petition No. 417/2002 and thereafter, in Writ Petition No.28/03, so also the State, as well as other concerned Authorities have failed to take steps to implement the Municipal Solid Wastes (Management and Handling) Rules, 2000. The said Rules are part of the Rules which could be framed and which are rather famed under the rule making powers conferred by the Environment (Protection) Act, 1986. The Rules themselves refer to Sections 3, 6 and 25 of the said Act. The rules are entitled "The Municipal Solid Wastes (Management and Handling) Rules, 2000". They apply to every municipal authority, responsible for collection, segregation, storage, transportation, processing and disposal of municipal solid wastes. Rule 3 contains several definitions. Framers of the Rules have been careful. The term "collection" (see rule (v)) is defined to mean lifting and removal of solid wastes from collection points or any other location. The work "composting" is defined to mean a controlled process involving microbial decomposition of organic matter. The term "disposal" is defined to mean final disposal of municipal solid wastes in terms of the specified measures to prevent contamination of ground water, surface water and ambient air quality. "Landfilling" means disposal of residual solid wastes on land in a facility designated with protective measures against pollution of groundwater, surface water, etc. Municipal solid wastes include commercial and residential wastes generated in a municipal or notified areas in either solid or semi-solid form excluding industrial hazardous wastes, but including treated bio-medical wastes. Each of these concepts having been taken from the Rules, we do not see how orders passed by this Court from time to time and particularly the order, of which modification is sought, present any difficulties to the applicants in carrying out their obligation and duties in terms of the Rules. It is not as if the Rules were framed without, in any manner, taking into account the nature of the wastes generated in the municipal areas. The Rules themselves have been framed in the year 2000, by which time there was urbanisation and sufficient advancement in science and technology had taken place. The nature of the waste generated, the quantity thereof were all present to the mind of the rule makers, and the question was despite these Rules being enacted and brought on the statute book, including the Act itself being in force from the year 1986, none of these statutory authorities and bodies had taken steps to comply with the same, the result of which was indisciplined and unorganised dumping of wastes by the residents in municipal localities and areas and complete ignorance thereof by the authorities. It is to activate the authorities by bringing to their notice that if the mandate of these rules is ignored, then, there will be risk to life and safety of the residents and that is the reason, this Court took up these matters and passed several orders and directions. We do not see how these orders would require modification to meet several contingencies and particularly the one which is brought to our notice by the applicant. By no stretch of imagination can these orders be read as contravening the Rules or the Act or that this Court has issued any direction ignoring them. All the directions that have been issued must be seen as directions to the authorities to comply with the Rules and beyond that there is nothing therein.

The judgment and order of 24th June, 2009 refers to the orders dated 27th April, 2009 and 5th May, 2009. It refers to an additional affidavit of the Chief Officer of the applicant-Council stating that the removal/reclaiming and screening of the dumped composted waste and construction of landfill will be completed by 31st January, 2010. The very affidavit that is referred to, including the statements therein is nothing, but an assurance of the Council that it will take steps in terms of these Rules and make necessary arrangements, so that the garbage and waste is treated. After this affidavit is referred to, the original petitioner''s Advocate pointed out to this Court that this affidavit no where states that the work of removal of accumulated waste and the work of reclaiming the said site or construction of landfill had been handed over to any agency. Thereupon, this Court heard both sides and at that stage, learned Advocate for the applicant pointed out that two agencies have been identified. They have sought certain time to comply with the orders. It is, in these circumstances, that the Court accepted the statement made in the affidavit and time schedule given in paragraph 6(B) of the affidavit. Time schedule, the assurance and the statement, all of which being part of the affidavit of the Municipal Council, that the Court included the same in its order and directed that the Council shall complete the work of reclaiming, screening and removal of dumped composted waste and construction of landfill within a particular time.

So read, we do not see how this order will present any problem, difficulties or obstacle, as apprehended by the Council or that if the Council desires to comply with the rules or take steps or measures in accordance therewith, the directions in the order would prevent them from doing so. The work that is referred to in the order is the very same which is contemplated by the Rules and the Schedule.

Ms. Alvares has invited our attention to the Rules and has contended that the Rules contemplate step by step treatment of the waste generated and use of the word "rejects" in the report is really a misnomer and the correct phrase would be "compost". We do not want to enter into this controversy as well. All that we do is, clarifying that the order passed on 24th June, 2009 must be seen as directions to the Council to comply with the Municipal Solid Waste Rules, 2000, including all Schedules appended thereto. Further the said order does not present any difficulty or problem in taking steps and measures as contemplated in the Rules, including, if necessary, capping of the garbage. If that is necessary, it will be only to treat the garbage and wastes generated prior to the Concession Agreement and till the landfill site is erected and made functional. If requisite steps in terms of the Rules have been taken and the waste and garbage generated prior thereto is the issue or presents difficulties, then, the treatment thereof can be by capping and that too if necessary and so advised. The Court does not possess any expertise in this field and, therefore, such issues and matters are left to the decisions of the officials who are incharge of the Municipal Solid Waste Management. In these circumstances, even for the treatment of the municipal waste and garbage dumped at the site in question, our orders and particularly the one passed on 24th June, 2009 shall not be construed as any obstacle, requiring any modification thereof. The application is, really, misconceived and with this clarification is disposed of. No costs.