-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITIONS NO.417/2002 & 28/2003 WRIT PETITION NO.417/2002 1. Claudio Fernandes, resident of Shangrilla Royale Villa D-4, St. Xaviers, Sonsoddo, Raia, Salcete, Goa. 2. S.K. Kulkarni, resident of S-2, Prabhat Housing Co-operative Society Ltd., Amrutnagar, Gogol, Margao, Salcete, Goa. 3. Jayant Prabhu Desai, resident of Amrutnagar, Gogol, Margao, Salcete, Goa. 4. Shirish A. Pai Raiturcar, resident of "Anant", I Sapna Estate, Nar Manovikas School, Gogol, Margao, Goa. ..... Petitioners. Vs. 1. Margao Municipal Council, through its Chief Officer, Margao, Salcete, Goa. 2. The Goa State Pollution Control Board, through its Member Secretary, having Office at Patto, Panaji, Goa. 3. The State of Goa, through its Chief Secretary, Panaji, Goa. ..... Respondents. Mr. M.S. Sonak, Advocate for the petitioners. Mr. A.N.S. Nadkarni, Advocate General with Mr. H.D. Naik, Addl. Govt. Advocate for respondents. WRIT PETITION NO.28/2003 1. Saligao Civic and Consumer Cell (SCCC), a Society registered under the Societies Act, 1860 with Office at House No.7/108, Cruz Vaddo, Saligao, Goa represented by its President, Mr. Trevor Delaney. -2- 2. The Goa Foundation, represented by its Secretary, Dr. Claude Alvares, with registered Office at Rm.7, above Mapusa Clinic, Mapusa 403 5007, Goa. .... Petitioners. Vs. 1. The Director of Municipal Administration, Collector’s Building, Panaji, Goa. 2. The Mapusa Municipal Council, through its Chief Officer, Mapusa, Goa. 3. The Calangute Panchayat, through its Sarpanch, Calangute, Goa. 4. The Saligao Panchayat through its Sarpanch, Saligao, Bardez, Goa. 5. State of Goa, through its Chief Secretary, Secretariat, Panaji, Goa. 6. Goa State Pollution Control Board through its Member Secretary, Patto Complex, Panaji, Goa., .... Respondents. Mrs. Norma Alvares, Advocate for the petitioners. Mr. A.N.S. Nadkarni, Advocate General with Mr. S. Vahidulla, Addl. Govt. Advocate for respondents No.1 and 5. Mr. S.D. Padiyar, Advocate for respondent No.2. Mr. P.A. Kamat, Addl. Govt. Advocate for respondent NO.3. Mr. A.N.S. Nadkarni, Advocate General with Shri H.D. Naik, Addl. Govt. Advocate for respondent No.6. CORAM : F.I. REBELLO & P.V. HARDAS, JJ. DATE : JULY 30, 2003. ORAL JUDGMENT : ( Per REBELLO, J.) -3- Writ Petition No.417/2002 has been filed by the petitioners who are the Members of the "Sonsoddo Citizens Forum against Dumping at Sonsoddo". The Forum consists of members, who are the residents and other affected citizens from surrounding areas, and has been constituted with the object of pursuing with the concerned authorities the abatement of nuisance/pollution caused by the dumping of untreated garbage at the said dumping site at Sonsoddo. Respondent No.1 is the Municipal Council of Margao, which is using the said site for disposal of garbage. It is the contention of the petitioners that the dumped garbage includes bio-degradable wastes, non-bio-degradable wastes, consisting of polythene, PVC, Plastic etc., and the bio-medical/clinical wastes from hospitals, syringes, needles, damaged mercury based instruments, etc. The garbage also comprises of carcasses of dead animals, and night soils contents, including septic tank and other gutter wastes. The petitioners contend that all through out the day, burning of such decomposed unsorted dumped garbage emits thick noxious smoke which spreads to a radial distance of 2 to 3 kms. The petitioners contend that emission of these fumes and consequent inhaling of the same is causing severe inconvenience and health hazards to several persons residing around the dumping site area and causes skin allergies and various breathing problems. The polythene, PVC and other plastic materials dumped are blown over to the -4- adjoining private properties and residential areas. Considering the nature of the petition, it is really not necessary to go into the various averments in the petition as that can be the subject-matter of directions, considering the material which is on record and which will be adverted to in the course of the discussion. The main relief prayed for by the petitioners against the respondents is to direct the respondents to stop the dumping of garbage at the dumping site at Sonsoddo, Margao. Various interim reliefs were prayed for, which need not be considered at this stage. On behalf of respondent No.1, affidavits have been filed from time to time. It is pointed out that the Sonsoddo dumping site is being used as a dumping site for more than 50 years. Till about 10 years ago this site was an isolated place with no population around a radius of 2 kms. Respondent No.1 denies that on account of dumping there is any nuisance, health hazard, pollution or environmental degradation or that there is deliberate inaction and failure to discharge the statutory duties. It is pointed out that the Council during the pendency of the petition, has shifted approximately 13000 cubic metres of compost from the said site. It is, therefore, contended that the contention of the petitioners that there is no scope for continuing any further dumping is incorrect. The respondent No.1 council it is contended collects mostly mixed -5- garbage which contains 20 % to 30 % inorganic wastes. This inorganic waste is being sorted out at the dump site by the rag-pickers present at the site and most of the inorganic wastes like plastic, glasses, tins, etc., are being segregated at the site. Other allegations made in the petition have been denied. On behalf of respondent No.3, various affdavits have been filed. An additional affidavit has been filed on 7.7.2003. It is therein pointed out, that the Counsel for the petitioners in Writ Petition No.28/2003 had presented before this Court a copy of a Scheme for Environment Friendly Disposal of Municipal Wastes in Goa in accordance with the MSW Rules, 2000. In order to formulate the Government stand on the scheme, the Committee consisting of the Director of Municipal Administration, Member Secretary, Goa State Urban Development Agency, Director (Science, Technology and Environment), Commissioner, Corporation of the City of Panaji and the Chief Officers of Ponda and Mapusa Municipal Councils, was constituted and the Committee was asked to examine the scheme and submit its suggestions in the form of a Report to enable the Government to formulate its stand in the matter. The Committee has met and submitted its report to the Government on 30.6.2003 with recommendations under the Scheme. In the additional affidavit of July 21, 2003, it has been set out that the report -6- of the Committee was placed for consideration of the Government. The report has been approved and accepted by the Government with suggestions and views expressed by the said Committee in its report. 2. In Writ Petition No.28/2003 Petitioner No.1 is a citizens’ group located in the Village of Saligao. It has been involved in clean-up of the Village and has organized drives for removal of plastic from all village residences. It plays an active role in assisting the authorities in maintenance of the general cleanliness of the Village and takes up an active role in other public interest issues, including the removal of billboards. Petitioner No.2 is a Society, which has amongst other objects, the object to halt the ecological degradation of the environment and to formulate and implement programmes for the rehabilitation and development of the Goa environment and to restore ecological balance. It is pointed out that respondent No.1 the Director of Municipal Administration, is the authority designated under the Municipal Solid Waste (MSW) Rules, 2000 notified under the provisions of the Environment Protection Act, 1986. In this petition the main relief sought is basically to challenge the use of Survey No.47 of Calangute Village and Survey No.112 of Saligao Village of Bardez Taluka for the purpose of disposal of garbage, except in accordance with the procedure laid down under the MSW Rules, 2000 issued under -7- Sections 3, 6 and 25 of the Environment Protection Act, 1986. It is pointed that the survey numbers which have been notified for acquisition, are adjacent to each other and are located on the borders of Saligao and Calangute Villages. The proposed site is on a high plateau in the midst of a beautiful nature reserve, bounded with a social forest planted by the Forest Department of Goa and is bordered on the various sides by settlements . A valley begin at the edge of the plateau and is full of springs and wells from which the Villagers secure their water supplies. Reference is made to the Salmona Springs which has been developed for purposes of tourism and would be in danger of destruction if the site was used for unscientific dumping of garbage. The Village Panchayat of Calangute has been dumping garbage of the Village on the plots in question. Amongst the various reliefs sought are directions to the respondents to implement the provisions of the MSW Rules, 2000 in respect of dumping of garbage on the suit properties. The interim reliefs prayed for need not be adverted to. 3. During the pendency of these petitions before this Court, the Government had constituted a Committee in the matter of Solid Waste Management in the State of Goa. The Committee has noted that Goa is well known the world over, as a popular tourist destination due to its scenic beauty and unique -8- cultural diversity, having an area of 3,702 sq.Kilo. metres and population of about 12 lacs. It is, amongst others, the most urbanised and popular State in India, hosting a floating population of over 10 million due to its vast tourism potential. It has 14 Municipal Councils, of which 3 are ‘A’ Class and there are 188 Village Panchayats. The Committee has identified that one of the main problems of keeping the State clean, is the collection and disposal of garbage. The organic content in the garbage is about 70 per cent, Carbon/Nitrogen ratio being about 17, which makes garbage suitable for compositing. The density of garbage is 275 kg. per cubic metre. Moisture content is about 65 to 70 %. The garbage generated per day in three ‘A’ type Municipal Councils are in the region of 100 tonnes. General garbage in eight ‘B’ type Councils comes to about 80 tonnes per day. Three ‘C’ type Councils generate about a total of six tonnes of garbage per day. Thus the total amount of daily urban garbage in the Municipal areas comes to around 190 tonnes per day in Goa. The present system of collection, transportation and disposal of garbage is that the Municipal Councils provide garbage bins on the streets as per the need of the areas. The garbage from these bins are then collected by the Municipal workers, transported by Municipal trucks and disposed of by way of open dumping at the earmarked sites. There is no separation of biodegradable and non-biodegradable garbage carried out at source and -9- there is no system of door to door collection of garbage by Municipal workers. In majority of the Municipal Councils, garbage from the bins is collected once in a day. The bio-medical wastes has to be disposed off as per Bio-medical wastes (Management & Handling) Rules 1998. Prescribed authority under these rules is the Director of Health Services. 4. This Court by Order dated 13.12.1999 in PIL Writ Petition No.109/99 had directed the State Government to place before the Court, Schemes to deal with biodegradable garbage as well as non-biodegradable garbage and also control over manufacture, supply, collection and disposal of plastic bags as well as plastic bottles. A Committee was constituted. The terms and reference of the Committee, were as under (1) To examine the existing practices and its drawbacks in garbage collection and disposal in Municipal Areas and Village Panchayats with special reference to the Village Panchayats falling under the coastal Talukas. (2) To examine and suggest ways to improve sorting, collection, transportation and disposal of plastic bags as well as plastic bottle. (3) To review the power of local bodies and other authorities and suggest necessary modifications -10- to ensure an effective system of Solid Waste Management. . The Committee considered the directions issued by the Apex Court in the case of Almitra H. Patel and another vs. Union of India and ors. (1998) 2 SCCs. 416, wherein the Apex Court had directed constitution of a Committee to submit its report to the Apex Court. The Committee was in relation to Class I cities, having population of over one lakh. There are no such cities in Goa. A copy of the report has been received by the Government of Goa and some of the recommendations have been adopted . The Committee noted that a draft of the Municipal Solid wastes (Management and Handling) Rules, 1999 was notified and objections invited. At the time the report was submitted. Rules had not been notified. However, subsequent thereto, the Rules have been notified and are known as " Municipal Solid waste Management (Management and Handling) Rules, 2000 and apply to every Municipal Authority responsible for collection, segregation, storage, transportation, processing and disposal of solid waste. . The Committee noted that the State of Goa has enacted a legislation known as Goa Non-Biodegradable Garbage (Control) Act, 1996. Rules had been framed thereunder which had come into force on 1.1.1998. The Rules provide for dividing the Municipal areas -11- into various Garbage Management Zones and formation of Garbage/Waste Management Committees for each zone. In so far as Bio-Medical Waste. reference is made to the Notification dated 20.7.1998 framing Rules called the Bio-Medical Waste (Management and Handling) Rules, 1998 and which have come into force from 27.7.1998. The Director of Health Services has been notified as the prescribed authority. Vide Notification dated 17.9.1999, the Government has constituted an Advisory Committee for the purpose of the said Rules and the Director of Health Services, Government of Goa has been nominated as the Convener. The Goa Non-Biodegradable Garbage (Control) Act, 1996, provides for :- (1) Prohibition to throw garbage in public places, trains, sewage; (2) provision for placement for receptacles and place for deposit of non-biodegradable garbage; (3) Duty of owners and occupiers to collect and deposit non-biodegradable garbage; (4) Constitution of Garbage Management Zone; (5) Constitution of Garbage/Waste Management Committees; (6) Separation of bio-degradable and non-biodegradable garbage at source; and (7) Disposal of garbage/waste. . In so far as Hospitals, Nursing Homes, etc., are concerned, the provisions are as under : . (a) Not to throw any solid waste in their neighbourhood, on the streets, open spaces and vacant lands, into the drains or water bodies; -12- . (b) Not to dispose of the biomedical waste in Municipal dustbins or other waste collection or storage site meant for municipal solid waste. . (c) Store the waste as per the direction contained in the Government of India, Ministry of Environment Biomedical Waste (Management & Handling) Rules, 1998. . The Committee noted that the Committee constituted by the Apex Court, had made the following important recommendations : . (1) Separation of biodegradable and non-biodegradable garbage at source; . (2) Primary collection of waste from the door step/community bins. . (3) Street sweeping on all days irrespective of Sundays and holidays. . (4) Biodegradable waste must be processed by composting or any other appropriate biological processing. . The Committee noted as regards the plastic bags and plastic bottles, recycling of plastic bags is not economical and there is not even one recycling -13- unit in the State of Goa. As regards plastic bottles, no such recycling unit exists in Goa although there may be such units in the neighbouring District of Belgaum and Dharwad where efforts could be made to dispose of the plastic bottles through such units. It is noted by the Committee that Garbage Management Committees have been formed in some of the Municipal Councils and Village Panchayats. Goa Dairy receives empty milk bags and for 100 empty bags, one gets Rs.7/- back or a milk bag of 500 grams. But the scheme is only in some parts of Goa. The Committee also noted that there are Non-Governmental Organizations which are willing to assist to associate with the Municipal Councils and Village Panchayats for proper collection and disposal of waste. . In paragraph 31 of the report, the Committee has recommended that all Municipal Councils should adopt the manual on Municipal Solid Waste Management circulated by the Government of India. Proposals are given to segregation and collection of garbage at source, being bio-degradable waste, non bio-degradable waste and bio-medical waste. Recommendations are also given for storage of garbage from the household level when the garbage is collected, it has to be stored at the street level storage points, where there should be minimum two street bins provided by the Municipal Council, a green one for the bio-degradable waste and a black -14- for non-biodegradable waste and the inscription - should be in English and Devanagiri script. The Committee then deals with transportation and finally disposal of the garbage. The Committee has noted about functioning of one plant at Margao Sonsoddo, which as now come on record has subsequently, closed down. There is one plant functioning at Vasco-da-Gama. At the time the report was being prepared ,it was only a proposal. The Committee has noted that open dumping of the garbage or burning of the garbage should not be allowed. If there is no garbage treatment plant, the local authorities should resort to sanitary filling, that is, after each day of dumping of the garbage in a landfill site, either chemical spraying should be resorted to or the site should be covered by dumping lime and earth. At the disposal site, there should be a shed constructed by each Municipal Council to store the non-biodegradable material like plastic bags and plastic bottles. Periodically the plastic material should be recycled by sending it to recycling units outside the State of Goa with an aim not to generate revenue, but to get rid of the material, that too only with the condition that the agency should not be allowed to dump the material anywhere in Goa. . In so far as plastic material is concerned, the Committee noted that the best way to stop environment degradation by the discarded plastic material is to ban all manufacture of plastic carry -15- bags and bottles. As there are no powers in the State Government, there should be strict enforcement of the "Recycled Plastic Manufacture and Usage Rules, 1999". The plastic containment funds, created by the Government should be use to implement the provisions, particularly regarding ban on use of plastic recycled bags for carrying food articles and ensuring the manufacture and useb of only the bags of required thickness microns. The Department of Environment, as set out, should undertake an active campaign designed by professional advertising agencies regarding the harmful effects of the use of such material. 5. At the hearing of the petition, on behalf of the State Government, the learned Advocate General has made a statement that the Government of Goa has taken a decision to set up two garbage treatment plants, one in the District of North Goa and the other in the District South Goa, which is also reflected in the Affidavit dated 16.7.2003 of P. Krishnamurty, Secretary Urban Development. It was pointed out that the major problem faced is the selection of appropriate sites for the establishment of such disposal plants/garbage sites as earlier it had posed strong resentment from the public, whenever sites have been localized. Pursuant to the resolution passed by the Legislative Assembly on 14.2.2003, a House Committee was constituted. As directed by the House Committee, the Department of -16- Urban Development in consultation with the Town Planning and Science & Technology Department have located two sites, one in north Goa and the other in South Goa. The sites selected were visited by experts, who have expressed their satisfaction about suitability of the identified sites and which can be used for the next few decades. At the time of hearing, learned Advocate General has produced a Notification dated 30.7.2003, issued for acquiring land in the South Goa in Village Bendordem for the Waste Treatment Plant in the South Goa District. 6. General Directions. Based on what is stated above the following general directions: . (1) The public should be made aware of MSW Rules. Therefore,Respondent- State through the local bodies to initiate public awareness campaign and for that purpose, a Committee should be constituted for concentrated drive for creating awareness by conducting workshops, seminars, for making people aware that segregation of waste at household level is the key and all local bodies should implement the same. Further to study the segregation scheme being implemented. in Dona Paula and if feasible to replicate it in other local areas. . (2) Goa Doordarshan and All India Radio is -17- directed to broadcast messages on separation of wastes for a period of six months. Those operating FM Radio - in larger public interest, should also broadcast such message as to create awareness amongst the youth and the public. . (3) There is urgent need of Environmental and Ecological studies. Directions have also been issued by the Apex Court. In that light of the matter, the Director of Education is directed, in consultation with the Goa Board of Secondary and Higher Secondary School Education to provide for teaching of Environment and Ecology as a subject, in the Primary, middle and Secondary Schools which must include the subject as to how the waste at home and public places needs to be disposed off. . (4) As the Municipal Solid Wastes (Management and Handling) Rules, 2000 have already come into force, the Director of Municipal Administration, as the Specified Authority is directed to see that all the Municipal Councils in the State of Goa take steps to implement the Rules, within a period of six months from today. 7. Specific Directions. . (i) We have already adverted to the harmful effects of plastics on the environment. The Committee has noted that it would be in the larger public interest to ban the use of plastic itself, -18- however, has not recommended any steps, as according to the Committee - that would be not within the province of the State Government. From the report of the Committee, it is clear that the Government has framed Rules known as "Recycled Plastic Manufacture and Usage Rules, 1999" These rules should be strictly enforced and the Plastic Containment Fund should be used to implement the provisions, particularly the ban on use of plastic recycled bags for carrying food articles and further ensuring that manufactures use only bags of the required thickness in microns. Principle of ‘polluter pays’ has now been accepted as one of the key features in Environmental Protection Management,and forming a part of right to life under Article 21 of the Constitution of India. In these circumstances, we see no reason as to why those who market plastic bags/plastic bottles should not be called upon to contribute towards either setting up of a plastic recycling plant and/or for the purpose of collection and transportation and disposal of such waste. Those who pollutes the environment must also pay for its cleanliness. The State Government for that purpose is directed to submit a scheme to this Court within six months from today, to either charge a tax or a fee or the like, from those who market and sell plastic bags/plastic bottles and the like. The tax/fees/other charges should be reasonable and not oppressive. The Government should also considering the tourist industry which -19- has now become one of the main revenue source for the State to consider setting up of a recycling plant and running - either by itself or through a private operator both by its own contribution and from the tax/fees/charges recovered from those who market and sell products in plastic bags/plastic bottles and like. This must form part of the scheme which is to be submitted to this Court. . (ii) We further direct every Municipal Council to appoint a MSW Officer, specially Incharge of garbage management within a period of three months from today. . (iii) We further direct various Municipal Councils to have continuous programs for making public aware of garbage collection schemes for a period of six