1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Dist.: NASHIK PUBLIC INTEREST LITIGATION NO. 65 OF 2007 1. Bhaskar Raghunath Borade, ] Age 48 years, ] Residing at Pathardi Shivar, Gavlane Rd., ] Wadiche Ran, Borade Mala, Pathardi, Nashik ] 2. Sampatrao Santu Chumble ] 681, Pathardi Shivar, Gavlane Rd., ] Wadiche Ran, Pathardi, Nashik ] ...Petitioners Versus 1. Nashik Municipal Corporation, ] Nashik having its office at Rajiv Gandhi Bhavan ] Sharanpur Road (PO No.12), ] Nashik 422 002 ] 2. The State of Maharashtra, ] through the Secretary, ] Department of Public Health and Maintenance, ] Mantralaya, Mumbai 400 032 ] 3. Maharashtra Pollution Control Board, ] having its Regional Office at Udyog Bhavan, ] 1st Floor, Trimbak Road, MIDC Compound, ] Satpur, Nashik 422 006 ] 4. The Archaeological Survey of India ] Conservation Assistance -2, ] ASI Pandu Lana Case, Nashik 422 010 ] 5. National Environmental Engineering ] Research Institute, ] 2 having its office at Nehru Marg,Nagpur 440020 ] ...Respondents WITH PUBLIC INTEREST LITIGATION NO. 77 OF 2007 1. Narayan S/o Namdeo Yadav ] Age 50 years, Occ. Proprietor of ] Satish Industries, & Social Worker, ] R/o. A-3/2, Rathchakra Society, Indira Nagar, ] Nashik ] 2. Jagdish S/o Kondaji Navale, ] Age 35 years, Occ. Hotel owner & Service, ] R/o Pathardi Fata, Bombay-Agra Road, ] Nashik ] ...Petitioners Versus 1. The Municipal Corporation, ] Nashik, through its Commissioner ] Rajiv Gandhi Bhavan, Tilakwadi, ] Nashik ] 2. The State of Maharashtra, ] through the Secretary, ] Department of Public Health and Environment, ] Mantralaya, Mumbai 400 032 ] 3. The Maharashtra Pollution Control Board, ] having its Regional Office at Udyog Bhavan, ] 1st Floor, Trimbak Road, MIDC Compound, Satpur, Nashik 422 006 ] ...Respondents AND PUBLIC INTEREST LITIGATION NO. 190 OF 2007 1. Nivruti Ravaji Datir, ] 3 Age 51 years., Wadiche Ran, ] Pathardi Gavalane Road, ] Pathardi, Nashik 422 010 ] 2. Bakerao Tukaram Demese ] Age 42 yrs., Wadiche Ran, ] Pathardi Gavalane Road, Pathardi, ] Nashik 422 010 ] 3. Ashok Santu Chumble ] Age 38 yrs., Wadiche Ran, ] Pathardi Gavalane Road, Pathardi, ] Nashik 422 010 ] 4. Vishnu Murlidhar Demese ] Age 42 yrs., Wadiche Ran, ] Pathardi Gavalane Road, Pathardi, ] Nashik 422 010 ] 5. Tukaram Baban Chaudhari ] Age 40 yrs., Wadiche Ran, ] Pathardi Gavalane Road, Pathardi, ] Nashik 422 010 ] ...Petitioners Versus 1. The Municipal Corporation of the City of Nashik,] Rajiv Gandhi Bhavan, Tilakwadi, ] Nashik ] 2.The Secretary, ] Department of Public Health and Environment, ] Mantralaya, Mumbai 400 032 ] 3. The Maharashtra Pollution Control Board, ] having its Regional Office at Udyog Bhavan, ] 1st Floor, Trimbak Road, MIDC Compound, ] Satpur, Nashik 422 006 ] 4 4. The State of Maharashtra ] being a formal party, notice to be served ] upon the Additional Government Pleader, ] High Court (O.S.) (A.S.), Bombay, ] High Court at Bombay, P.W.D.Building, ] Ground Floor, Mumbai ] ...Respondents Mr. V.P. Sawant for the Petitioners in Public Interest Litigation No. 65 of 2007 Mr. P.G. Godhamgaonkar with Mr. V.N. Tayde for the Petitioners in Public Interest Litigation No. 77 of 2007 Mr. C.U. Kamdar i/by M/s. Pandya & Co. for the Petitioners in Public Interest Litigation No. 190 of 2007 Mr. P.M. Patil, Assistant Government Pleader, for Respondent No. 2 in Public Interest Litigation No. 65 of 2007 Mr. V.A. Gangal for Respondent No. 1 in Public Interest Litigations No. 65, 77 and 190 of 2007 Mr. S.N. Deshpande for Respondent No. 2 in Public Interest Litigation No. 65 of 2007 and Respondent No. 3 in Public Interest Litigation No. 77 of 2007. CORAM: B ILAL NAZKI and S.S. SHINDE, JJ. Date of reserving the judgment: 11-06-2008 Date of pronouncing: 07-08-2008 JUDGMENT (Per Bilal Nazki, J.):- P.I.L. No. 65 of 2007: This petition has been filed in public interest, bringing to the notice of the Court the alleged failure of the 5 respondents in taking suitable measures for handing and disposal of garbage waste in the City of Nashik. It also complains that the compost plant situate at Pathardi Shivar, Nashik, has become a source of pollution and also a threat to valuable Buddhist caves near it. In the light of this submission, the following prayers have been made in the petition:- “a. That this Hon'ble Court be pleased to issue a writ of mandamus or any other writ, order or direction in the nature of mandamus directing: i. The Respondent No. 4 to take suitable action against the Respondent No.1 for preserving of the Panav Lena Caves and protecting the said caves; ii. Respondent No.5 be directed to inspect the compost plant of the Respondent No.1 at Pathardi Shevar, Nashik and file its report in respect of the further compliances by the RespndentNo.1; iii. Respondent No.1 to shift the said compost plant presently situated at Pathardi Shevar, Nashik to another suitable site; iv. Directing Respondent No.1 to erect another compost plant at a suitable site away from inhabitation by the public so as to reduce the problems caused by the foul odour, leachate flow etc. due to excessive storing and dumping of garbage for treatment at the said compost plant at Pathardi Shivar, Nashik; (b) that pending the hearing and final disposal of the present petition, this Hon'ble Court be pleased to direct the Respondent No.5 to inspect the compost plant of the 6 Respondent No.1 at Pathardi Shivar, Nashik and file its report in this Hon'ble Court within such time as may be deemed fit by this Hon'ble Court; (c) that pending the hearing and final disposal of the present petition, this Hon'ble Court be pleased to direct the Respondent No.1 to appropriately destroy the solid waste collected at its Compost Plant situate at Pathardi Shivar, Nashik, within such time as may be deemed fit by this Hon'ble Court and further be pleased to restrain the Respondent No.1 from storing solid waste material / garbage at the said Compost Plant; (d) for costs; (e) for such further and other relief as may be deemed fit and proper by this Hon'ble Court.” 2. P.I.L. No.77 of 2007: This petition also relates to alleged failure of the respondents in protecting the environment within the municipal limits of Nashik, and specific grievances with regard to garbage processing plant. The reliefs claimed in this petition included a direction to stop operation of a fertiliser plant, which is processing the garbage of Nashik Municipal Corporation. This petition further refers to a report which was submitted to this Court in P.I.L. No. 47 of 2003. 3. P.I.L. No. 190 of 2007: This petition also relates to Nashik Municipal Corporation, and made similar prayers, including the prayer that the Compost Plant at Pathardi Shivar at Nashik should be closed. Thus, the petitions have been heard together. 7 4. When P.I.L. No. 47 of 2003 was entertained by the Court, a Bench of this Court passed an order on 8th February, 2006, after considering the pleadings and compliance report submitted to it. 5. We do not intend to go into the reports that were submitted in this Court, as these reports were considered by the Court and orders passed from time to time. By an order dated 8th February, 2006, the Court perused the Report submitted by the National Environmental Engineering Research Institute (NEERI) dated 23rd August, 2005. The Court considered, in the light of the report, as to which of the directions of the court had been carried out and which of the directions had not been carried out. After elaborately discussing the matter, the Court gave the final directions in the matter. These directions are as follows:- “(i) As regards provision of trenches around existing sanitary landfill site for leachate collection, time up to 31st March, 2006 is given for compliance. In respect of leachate collection and treatment at compost plant, we direct the Corporation to install leachate treatment plant as early as possible and in no case later than 31st August, 2006. (ii) As regards odour/smell/flies, further steps need to be taken by the Corporation to minimize the same and the Corporation shall henceforth ensure that odour at the compost plant site is at the minimum possible level. (iii) The Corporation shall adequately cover windrows by 8 constructing sheds and/or with soil/rejects of 1”-2” size by 31st March, 2006. (iv) The leachate samples showing very high BOD (23500 mg/l), COD (36902 mg/l), TDS (25,518 mg/l) require treatment before disposal in sewer line and we direct the Corporation to make necessary arrangement in that regard as early as possible and in no case later than 31st August, 2006. (v) The Corporation shall fully comply with the recommendation made by NEERI in respect of height of wall of leachate sump well to avoid floating matter entering into the well by 31st March, 2006. (vi) The uncovered sanitary landfill (SLF) shall be suitably covered as early as possible and in no case later than 31st August 2006. (vii) The recommendations made by NEERI for providing leachate collection system all around cells 1, 2 and 3 at SLR shall be complied with by 31st August, 2006. (viii) The recommendations made by NEERI at Sr. Nos. 10 and 11 which, in the opinion of NEERI, have not been complied with are also directed to be complied with by the Corporation.” 6. Thereafter, the cases got listed on many occasions. This Court noted on 27th February, 2008 that the directions given by the Court by order dated 8th February, 2006 had not been fully complied with, and it was conceded at the Bar that directions No. 3, 5 and 7 had not been complied. But the counsel for respondent No.1 mentioned that the directions would be carried out within a period of two 9 months. Although the Court had granted time by its order dated 8th February, 2006 to carry out the directions by 11th September, 2006, but the Court granted further two months' period with effect from 27th February, 2008. 7. Then the matters came up again on 2nd April, 2008. This Court examined whether the directions had been complied with or not in the light of an affidavit filed by respondent No. 1. Not being satisfied with the affidavit, the Court directed respondent No.1 to file a fresh affidavit in which “he shall deal with each of the directions given by this Court on 27th February, 2008, and specifically say whether the directions have been complied with or not, and for the directions which have not been complied with, according to him, he shall specify the time when he will complete it, and he shall also give an undertaking that he will be responsible for complying with the directions within that stipulated period, which he fixes himself.” 8. An affidavit was filed in terms of the order when the petitioners sought time of four weeks to file a reply to the affidavit. No reply-affidavit was filed by the petitioners in response. The Municipal Commissioner has filed an additional affidavit, in which reference has been made to the Compliance Report submitted on 8th September, 2006, in which respondent No.1 maintained that NEERI 10 recommendations No. 1 to 20 and 23 were complied with. Recommendations No. 21 and 22 had been partly complied with. As regards item No.21, it was contended in 2006 that 50% work had been completed, and due to heavy rains, it got hampered and would be completed. This was stated on 13th August, 2006. Regarding item No. 22, it had been maintained that this direction could not be carried out because it was not complied with, and presently, the site is closed and the adjacent land is used for disposal of waste in an unplanned manner. 9. The affidavit further states that directions No. 3, 5 and 7 were given by the Court by its order dated 27th February, 2008; and as far as direction No.3 is concerned, the Court had given two options. The first option was not possible due to financial constraints at that time. The second option of covering the windrows by soil / rejects of 1” - 2” size was adopted and the direction had been complied with. However, the arrangement made of covering was temporary in nature, but the covering on permanent basis was taken up when funds were made available by JNNURM (Jawaharlal Nehru National Urban Renewal Mission) for the said project, and a huge shed of 48,000 square metres was constructed. The Commissioner also said in the affidavit that the 11 work was going on on the project, and it would be completed by the end of June, 2008. However, he submitted that the date given for its completion might get delayed because of some disturbances which made the workers from Bihar and Uttar Pradesh leave the State. Direction No.5, according to the affidavit, has been complied with. Direction No.7 with respect to leachate collection system all around cells 1 to 3 at SLF (Sanitary Landfill Sites) was also complied with as early as on 6th September, 2006. The case of respondent No. 1, as such, was that all the directions given by this Court by various orders had been complied with, except that the permanent work of construction of site was in progress, and the construction of the shed had been delayed because of financial reasons. It is further submitted that this plant was not only a model plant for the State but a model for the entire country. 10. We are of the view that in view of this affidavit in which it has been categorically said by the Commissioner that all directions of this Court had been complied with, except one direction, and that direction was also being carried out, as the work, as per the direction, has been taken up and would be completed by the end of June, 2008, the petitions can be disposed of. However, the petitioners insisted that they would like to file a reply-affidavit. They were given time to file affidavit, but the affidavit, in reply to the affidavit of the Commissioner, was not 12 filed. 11. Another affidavit is filed termed as 'additional affidavit' by the petitioners in P.I.L. No. 77 of 2007. It is submitted that the Corporation had agreed to allow the petitioners to inspect the site. The matters were posted for 4th June, 2008. The petitioners moved an application on 31st May, 2008 before the Corporation for inspection. The inspection was also demanded by a letter dated 13th May, 2008, but by letter dated 2nd June, 2008, the Municipal Corporation intimated the petitioners that inspection could be made on 3rd June, 2008 at 11 a.m. As the hearing was to take place on 4th June, 2008, the petitioners thought that the respondent-Corporation was not interested in allowing the petitioners to inspect. This attitude of the Corporation was to hide the current state of affairs. We are not convinced by such a logic. If the petitioners wanted to inspect, and the respondents were fair enough to allow them to inspect on 3rd June, 2008, the petitioners could have inspected, prepared their reply and on 4th June, 2008, could have informed the Court that since they have inspected on 3rd June, they needed more time to file the reply. But we feel that they did not accept the offer of the Corporation only to prolong litigation. The petitioners wrote a letter on 30th May, 2008, which was immediately replied on 2nd June, 2008 in 13 following terms by the Executive Engineer:- “It is to inform you that the said requested inspection is granted on 3/6/08 at 11 a.m. The petitioner, the technical expert, Shri. Uday Khedkar may remain present. Please bring photo identity proof with you. Thanking you,” Instead of taking inspection, they wrote a letter on 2nd June, 2008, which reads as under:- “Sub: Inspection of the Garbage process plant at Pathardi, Shivar. Ref: PIL No.77 of 2007 – Narayan Namdav Yadav – V/s - Nashik Municipal Corporation and others. Dear Sir, Apropos the subject and reference, I have given my letter dated 30th May 2008 for inspection on 31st May 08. However, your Mr. Pawar informed that 31st May 08 is not possible and he has given the date of 3rd June 08. As 3rd June 08 is working for High Court, my counsel P.G. Godhamgaonkar will no be able to conduct the inspection on 3rd June 08. The next day of hearing in the matter is 4th June 08. Therefore, I request you to please permit us to carry out inspection on 7th June 08. A line in confirmation, granting permission shall be appreciated. Thanking you,” 14 This letter makes interesting reading. If the petitioners' contention was true that they wanted to inspect much before 4th June, 2008, as the case was listed on 4th June, they would not have sought another date of 7th June, 2008. The reason given was that 3rd June, 2008 was a working day, and their advocate was busy in the Court. It is true that people have right to information, but there is limit to interference in the affairs of the State and its organisation by private individuals. 12. The net result is that the petitioners did not file any affidavit, controverting the affidavit of the Commissioner dated 4th April, 2008. Therefore, we take it that the directions granted by this Court have been complied with, and, therefore, this Court disposes of these petitions. However, we make it clear that in case anybody has proof with him that the affidavit filed by the Commissioner on 4th April, 2008 is not true on which we are acting presently, he has always liberty to approach the Court in an appropriate proceeding. BILAL NAZKI, J. S.S. SHINDE, J. 15 7-8-2008 13. The judgment was pronounced by me on 7th August, 2008, after the file was sent back after signature of Mr. Justice S.S. Shinde, who is holding Bench at Aurangabad. 14. In the affidavit filed by respondent-Municipal Commissioner, on 4th April, 2008, it had been stated that Direction No.7 would be complied by 30th June, 2008. The learned counsel for respondent No.1 submits that this work has now been completed. Bilal Nazki, J.