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pmwIN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8306 OF 2015
North Goa District Advocates Association and Ors. … Petitioners
Versus
The High Court of Bombay and Goa and Ors. … Respondents
Mr. Aspi Chinoy, Senior Advocate with Mr. Gaurish Agni, Mr. Omkar Warange, Mr. David Rao and Mr. Abid Ali i/by Mr. Ameya Sudhir Tamhane, for the Petitioners.
Mr. D.J. Kambata, Senior Advocate a/w Mr. M.S. Karnik, for the Respondent Nos.1 and 3.
Mr. A.N.S. Nadkarni, Senior Advocate (the Advocate General of the State of Goa) a/w Mr. Manish Salkar, AGP for Respondent No.2.
Mr. Ashwin D. Bhobe, for Respondent No.4.
CORAM : A.S. OKA & A.R. JOSHI, JJ.
JUDGMENT RESERVED ON : 26th AUGUST, 2015
JUDGMENT PRONOUNCED ON : 8th SEPTEMBER, 2015
JUDGMENT (PER A.S. OKA, J.):
. There is a District Court of North Goa at Panaji at Goa.
There are at present six Courts in Civil and Criminal Courts building at
Panaji which includes two Courts of the District Judges and four Civil
and Criminal Courts. The High Court Administration decided to shift all
the four Civil and Criminal Courts from the Civil and Criminal Courts
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building at Panaji to the 3rd, 4th , 5th and 6th floors of the building
known as “Spaces” (for short “the new building”) at Patto Plaza, Panaji.
The challenge is to the notice dated 24th July, 2015 published by the
learned Principal District and Sessions Judge, North Goa, Panaji Court
by which he declared that all the four Civil and Criminal Courts
presently housed in the Civil and Criminal Courts building at Panaji will
start holding sittings in the new premises in the new building with
effect from 10th August, 2015. The present Petition has been filed by
the North Goa District Advocates' Association, the Panjim Lawyer's
Forum and two other members of the Bar who are the office bearers of
the said Associations. We must note here that a Writ Petition under
Article 32 of the Constitution of India was filed by the Petitioners before
the Apex Court for the same relief. Under the order dated 10 th August,
2015, the said Petition was permitted to be withdrawn by the Apex
Court with liberty to file a Petition under Article 226 of the Constitution
of India before this Court at Bombay. Accordingly, the present Petition
has been filed.
2. The learned Senior Counsel appearing for the Petitioner
pointed out that the existing Civil and Criminal Courts building at
Panaji which houses the District Court of North Goa is in a sound
condition. He invited our attention to the photographs of the said
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building placed on record. He pointed out that there are two Courts of
the District and Sessions Judge in the said building and four Civil and
Criminal Courts. He urged that way back in the year 2009, a large plot
of land at Merces, Panaji has been already allotted by the Government
of Goa for construction of a new District Court complex of North Goa
District which can accommodate 20 Courts. He pointed out that
notwithstanding the assurances given from time to time regarding
commencing and completing the construction of new District Court
complex, no steps have been taken by the Government of Goa to even
commence the construction of the new Court complex. He pointed out
the order dated 26th August, 2009 passed by a Division Bench of this
Court at Goa in a PIL which directed the State Government to provide a
plot of land admeasuring about 20,000 square meters at Merces, Panaji
and accordingly the plot has been allotted. He pointed out that plans of
the new District Court complex were ready in the year 2011 and in fact
in the meeting held between Hon'ble the Chief Minister of Goa and the
Hon'ble Chief Justice of this Court it was agreed that the construction
of the District Court complex will be commenced by the end of the year
2013 and will be completed by the end of 2014. He urged that no steps
have been taken in that behalf. He pointed out that the said new
building was hurriedly acquired by the Government of Goa in which
four floors have been allotted to the Civil and Criminal Courts. He
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pointed out that admittedly there exists a garbage dump in the
immediate proximity of the said new building. He pointed out the
photographs to show how close the open garbage dump is to the said
new building. He urged that the open garbage emits foul odour. He
pointed out that the garbage dump has uncovered heaps of composted
material. He pointed out that there is no provision for leachate
collection which causes health hazard. He invited our attention to
copies of inspection reports of the Goa State Pollution Control Board.
He also invited our attention to the direction dated 12th January, 2015
issued by the Goa State Pollution Control Board in respect of the said
garbage dump which shows the extent of nuisance created by the
garbage dumb. He pointed out that there is a public library in the
vicinity of the said new building which cannot be used due to foul
odour emitted by the garbage. He pointed out that there are various
public offices in the area of the said new building. He pointed out that
complaints have been made by the Commissioner of Income Tax, BSNL,
Officers of the Passport Office and the Manager of LIC about the
nuisance and health hazard created by flies and foul smell.
3. He urged that he is conscious of the limitations on the
power of the Writ Court to interfere with the purely administrative
decisions. He pointed out that he is not calling upon this Court to go
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into the question of suitability of the premises in the said new building
for establishing Courts. He submitted that the very decision of shifting
the four Civil and Criminal Courts in an area which is known for the
nuisance created by garbage dump is itself arbitrary for more than one
reason. He urged that when the existing Courts are properly functioning
in the existing building and when a new Court complex can be easily
constructed within a short time on the allotted plot, there was no hurry
to shift the Civil and Criminal Courts to the new building. He pointed
out that rent of approximately Rs.5 Crores per year will be payable by
the Government of Goa in respect of the premises in the said new
building. He also submitted that on the ground floor of the existing
Civil and Criminal Court building, there is a storage of muddemal and
other articles which can be conveniently shifted to the new building
instead of shifting the Courts. He urged that the existing six Courts have
sufficient place in the existing building and more space can be created
by shifting the old record and muddemal articles in the premises
available in the new building. He urged that when Writ Court exercises
its power to test the administrative decision on the touchstone of
arbitrariness, there cannot be any difference between an administrative
decision of the High Court and administrative decision of any other
agency and instrumentality of the State. Lastly, he invited our attention
to the newspaper reports appearing in February and August, 2015 in
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leading newspapers in Goa showing that the garbage dump in the area
is creating unbearable stink which is causing respiratory problems and
affecting the health of those who are working in the area. He urged
that even going by the stand of the Goa State Pollution Control Board,
in near future, there is no possibility of the garbage dump at Patto Plaza
being shifted to another place. He, therefore, urged that intervention of
the Writ court is necessary.
4. The learned Advocate General of Goa submitted that the
four floors which have been made available to the Court in the new
building are fully airconditioned. He pointed out that the Government
of Goa has spent a sum of about Rs.4 Crores on airconditioning, on
internal changes and on providing modern furniture therein. He urged
that some of the Judges of this Court including the Hon'ble the Chief
Justice have inspected the said new building and have approved the
same. He invited our attention to the affidavit of Shri Prashant Goyal,
the Law Secretary, Government of Goa. He pointed out that all steps
have been taken by the Government of Goa to commence construction
of new Court complex for North Goa in Merces, Panaji. He invited our
attention to the statements made in the said affidavit. He stated that
the Government of Goa has entrusted the work of construction of new
District and Subordinate Court complex at North Goa at Merces to the
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Goa State Infrastructure Development Corporation (for short “GSIDC”).
He urged that after completing all the formalities, the work order is
likely to be issued by 15th January, 2016 and the construction will be
completed within a period of 24 months from the date of issue of the
work order. He invited our attention to the affidavit of Shri Levinson J.
Martins, the Member Secretary of the Goa Pollution Control Board. He
stated that all possible steps have been taken by the Pollution Control
Board to abate the nuisance created by the garbage dump. He pointed
out that the Corporation of City of Panaji (for short “CCP”) acquired a
land which is away from commercial establishments and residential
habitation for the purposes of setting up 'Dry Recyclable material
sorting center and composting stations'. He pointed out that the work
at the said site commenced in December, 2014 but by order dated 5 th
March, 2015 the National Green Tribunal has granted an order of
statusquo. He submitted that but for the order of statusquo, the said
facility would have been operational by now and the use of the plot at
Patto Plaza as a dumping ground would have been completely stopped.
He urged that the decision to shift the Courts to the said new building is
of the year 2013 and the Petitioners were all along aware of the same.
He urged that the Petition deserves to be dismissed only on the ground
of gross delay which is not explained.
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5. The learned counsel appearing for the CCP relied upon an
affidavit of Shri Sanjit Rodrigues, the Commissioner of CCP, in which it
is pointed out that all steps were taken to develop a new site which
could not be developed due to adinterim order passed by the National
Green Tribunal. He pointed out the steps taken to maintain the site at
Patto Plaza.
6. Shri Khambata, the learned Senior Counsel representing
the High Court Administration invited our attention to the present
status of existing Court building at Panaji. He pointed out from the
documents annexed to the Petition that in the year 2013 itself the
Petitioners were aware of the decision to shift four Courts to the said
new building. He pointed out that out of the six Courts in the existing
building, four Civil and Criminal Courts will be shifted to the said new
building. He pointed out that one Court of adhoc District Judge is
situated in another building known as Velho building which is required
to be vacated. He stated that the said Court will be shifted to the
existing building. He stated that there is a possibility that one existing
Court at Ponda will be shifted to the existing building and probably one
or two newly appointed Judges will be accommodated in the existing
building. He pointed out that the existing building is very congested as
well as inconvenient whereas the four floors in the said new building
are fully airconditioned and the air conditioning will protect the
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members of the Bar, litigants and Judges from foul odour and alleged
nuisance. He urged that the decision to shift four Courts is based on the
consideration of all the relevant factors and a Writ Court cannot go into
the issue of the suitability of the premises in the said new building for
the use as a Court.
7. We have given careful consideration to the submissions. In
PIL No.6 of 2009, a Division Bench at Goa by order dated 26 th August,
2009 directed the Government of Goa to allot a land admeasuring
20,000 square meters at Merces (for short “Merces land”) for
construction of the Court complex to accommodate the District, Civil
and Criminal Courts at Panaji. There is a letter dated 28th March, 2012
addressed by the learned Principal District and Sessions Judge, North
Goa to the Principal Chief Engineer of the Public Works Department of
Government of Goa in which it was recorded that there was an
assurance that the work of construction of new District Court complex
on Merces land would be completed by 31st May, 2012. Action Taken
Report was requested to be submitted by the Principal District Judge.
Thereafter, there is a continuous correspondence made by the Principal
District Judge with the Principal Chief Engineer. On 20th October, 2012,
the Principal District Judge of North Goa, Panaji addressed a letter to
the Law Secretary of the Government of Goa making a grievance about
the failure to commence construction on the Merces land.
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8. A meeting was held on 21st March, 2013 between the
Hon'ble Chief Minister of Goa and the Hon'ble Chief Justice in which it
is recorded that the plans of the District Court complex have been
approved. Minutes of the meeting annexed to the Petition record that
the work would be commenced by the end of May 2013 and would be
completed by the end of May, 2014. Thereafter, there were letters
addressed by the North Goa District Advocates' Association in the year
2013 to the Hon'ble the Chief Justice making various grievances
including a grievance that no progress has been made in construction of
Court building on Merces land though foundation stone was laid in
November, 2009. As we have noted above, even as of today, the
construction of the building has not commenced. The situation which
has arisen today is mainly due to the gross delay on the part of the
Government of Goa in the matter of the commencing the construction
of the Court Complex at Merces. If construction of the Court complex
would have been completed as per the assurances given from time to
time, the situation which has arisen today would not have arisen.
Therefore, we propose to issue appropriate directions to ensure that the
new Court Complex on Merces land becomes functional within the time
fixed by this Court.
9. As far as the construction of the building of Merces land is
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concerned, we may make useful reference of the law laid down by this
Court in the decision dated 7th & 13th August, 2015 in the case of New
Bombay Advocates Welfare Association and another Vs. State of
Maharashtra and others (PIL No.239 of 2010) wherein this Court has
held that it is the constitutional obligation of the State to construct the
Court buildings and to provide all basic infrastructure therein to the
citizens so that the citizens are in a position to exercise their
fundamental right of having access to expeditious justice. This Court
has held that financial constraints or administrative constraints is no
ground to delay the construction of Court buildings. In the present case,
the Government of Goa has completely failed to perform its
constitutional obligation.
10. It will be necessary to make a reference to statements on
oath made by Shri Prashant Goyal, Law Secretary of Government of
Goa in paragraph Nos. 5 to 8, which read thus :
“5. I say that the Hon'ble High Court of Bombay, at Bombay
vide letter dated 21/7/2014, conveyed its approval of
the Revised Plans of the construction of new District
and Subordinate Courts Complex of North Goa, at
Merces, TiswadiGoa to the Principal District & Sessions
Judge, North Goa, at Panaji. I say thereafter the
Principal District & Sessions Judge forwarded the said
approval of the Hon'ble High Court of Bombay, at
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Bombay to the office of the Chief Architect, Public
Works Department for further necessary action on
05/08/2014. In the meanwhile, the Government of Goa
has accorded approval and entrusted the work of
construction of new District and Subordinate Courts
Complex of North Goa, at Merces, TiswadiGoa to the
Goa State Infrastructure Development Corporation (for
short GSIDC).
6. I say that vide letter dated 13/3/2015, the Principal
District & Sessions Judge addressed a letter to the Law
Department, with a request to make a provision of an
amount of Rs.70.00 crores in the Budget. Vide order
dated 11/6/2015, an amount of Rs.1,67,82,000/ was
sanctioned to GSIDC towards the development of
infrastructure facilities, by the Law Department.
7. I say that I have been informed by the GSIDC that M/s.
Shrikhande Consultants Pvt. Ltd., Vashi, Navi Mumbai,
have been appointed as Consultants for construction of
new District and Subordinate Courts Complex of North
Goa, at Merces, TiswadiGoa after following the tender
process. I say that the appointment of the Consultant
was made on 1/6/2015. I say that the Power Point
Presentation of the Final Revised Plan has been given to
the Hon'ble Chief Justice of Hon'ble High Court of
Bombay on 20/08/2015. The Hon'ble Chief Justice has
given further suggestions and recommendations. The
same needs to be incorporated and therefore it is likely
to cause further delay in the tendering process.
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8. I say that the work of preparation of estimates and
preparation of Tender is being carried out by the GSIDC
and as informed by GSIDC, shall be completed
tentatively by 30/10/2015. I say that as informed by
GSIDC, the scrutiny and tendering of the project
after obtaining statutory approvals shall be
tentatively be done by 30/11/2015. The opening and
finalization of Technical and Financial bids and
issuance of work order shall be completed
tentatively by 15/01/2016. I say that the duration
for construction of new District and Subordinate
Courts Complex of North Goa, at Merces, Tiswadi
Goa is likely be 24 months from the date of issue of
the Work Order.”
(emphasis added)
11. Thus, the assurance is to complete the construction within
two years from 15th January 2016. We accept the aforesaid statements.
The last assurance given by the Government was to complete the
construction by the end of May 2014. Hence, not only that the
construction of the building will have to be completed on or before 15 th
January 2018, the same will have to be completed in all respects by that
date so that its effective and actual use can start from 16 th January
2018. Thus, within this outer limit, all the internal work will have to be
completed. We propose to direct the Government of Goa to submit
periodical reports on the progress of construction on Merces land after
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every three months along with the photographs. We propose to monitor
the work to ensure that it is completed within the stipulated time. The
total outlay for the construction of the Complex at Merces is Rs.70
Crores. We must note that any delay in completion of the construction
will put enormous burden on the public exchequer as the rent of
approximately Rs.5 Crores per year is payable in respect of the
premises in the new building.
12. Now, we come to the challenge to the decision to shift four
Courts to the new building. There was a representation dated 11th May,
2013 made by the North Goa District Advocates' Association containing
several grievances including the one of the failure to commence
construction on the Merces plot. The opinion of the learned Principal
District Judge on the said representation was sought by this Court. By a
letter dated 11th July, 2013 (Exhibit P18), the learned Principal District
Judge submitted the opinion to the Registrar of this Court. In the said
letter, the learned Principal District Judge stated that the Hon'ble the
Chief Minister of Goa in his recent visit to the District Court at Panaji on
15th June, 2013 has given an assurance to allot an area of
approximately around 900 square meters on the fourth and fifth floors
of the said new building pending construction of the District Court
complex on Merces land. It records that the Hon'ble Chief Minister
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stated that the construction of the new building would be completed in
three months. The Principal District Judge recorded an opinion that if
the Government agrees to allot three floors of the said building, the four
Courts presently working at Panaji can be shifted there and the Court of
Adhoc District Judge which is presently housed at Velho building can
be shifted to the Civil and Criminal Court building at Panaji. The letter
records that the owner of the Velho building has written a letter that the
lease of the Court premises in the said Velho building has expired and
he does not desire to continue the lease. There is a letter dated 8 th
August, 2013 (Exhibit P19) addressed by the North Goa District
Advocates' Association to the Principal District Judge of North Goa in
which there is a reference to the proposal of the Hon'ble the Chief
Minister of offering premises in the said new building at Patto Plaza. In
the said letter, a grievance is made that the Association has not been
taken into confidence. The letter is signed by the third Petitioner herein
in his capacity of the President of the said Advocates' Association.
Hence, it can be said that the Petitioners were aware of the said
suggestion on 8th August, 2013 which came from the Government.
13. At this stage, we must note that on 25th February, 2013 a
notice of Expression of Interest (Exhibit P38) was published by the
Government stating that to accommodate various Government Offices,
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the Government of Goa intends to acquire on hire purchase, a suitable
office space admeasuring 6,000 to 7,000 square meters in a commercial
zone in and around Panaji, Taleigao and Porvorim for a period of three
years extendable to six years. Expression of Interest was invited from
the owners of the commercial premises. The order dated 18th December,
2013 (Exhibit P34) passed by the Government of Goa is annexed to the
Petition which shows that a proposal was received from M/s. Apex
Computers and Engineering Services offering the said new building at
the monthly rent of Rs.60,74,152.57 and in addition the premises on
the fifth and seventh floor in building Kamat Towers in Patto Plaza were
also offered. Thereafter, M/s. Apex Computers and Engineering Services
submitted a revised offer by reducing the rent. The said order records
that the concurrence was shown by the Finance Department of the
Government of Goa on 17th June, 2013 and 3rd December, 2013. By the
said order, the Government accepted the bid submitted by M/s. Apex
Computers and Engineering Services. We have stated in the earlier
paragraph that the Hon'ble Chief Minister in his visit to the District
Court at Panaji on 15th June, 2013 assured to give two floors of the said
new building to the Court. On that date, even the concurrence of the
Finance Ministry to the proposal of M/s. Apex Computers and
Engineering Services was not received. In fact, the order of the State
Government accepting the bid was passed on 18th December, 2013.
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Apart from the bid of M/s. Apex Computers there were two other bids
received as mentioned in order dated 18th December, 2013. As early as
on 15th June, 2013 the Hon'ble Chief Minister offered the said premises
in the new building nearly six months before the decision was taken by
the Government of Goa to accept the offer in respect of the said new
building. The Lease was executed on 17th January, 2014 which provided
that the monthly rent in respect of the new building will be
Rs.42,92,904.80 inclusive of taxes with annual increase of 3.5%. It
records that the tenancy commenced with effect from 1st November,
2013 (even before order dated 18th December, 2015 was passed). There
is another interesting aspect. The order of allotment of the third to sixth
floors in the said new building to the Civil and Criminal Courts was
made by the General Administration Department of the Government of
Goa on 18th November, 2013 (Exhibit P20) even before the offer was
accepted by the Government. The possession appears to have been
handed over on 27th November, 2013 by M/s. Apex Computers and
Engineering Services (and not by Government of Goa) to the Principal
District Judge at Goa (see Exhibit P22). The correspondence made by
the learned Principal District Judge, North Goa which is annexed to the
Petition does not state that the possession was taken over with the
express approval of this Court. Much can be said about the whole
process undertaken by the Government of Goa. It is not necessary for us
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to deal with this aspect in any further as this action of the Government
of Goa is not under challenge in this Petition.
14. The said order of allotment dated 18th November 2013 was
communicated to the Registrar General of this Court by the Principal
District Judge of North Goa in which it was stated that the steps were
being taken to take possession of the said premises in the new building.
The possession appears to have been handed over on 27 th November,
2013 by M/s. Apex Computers and Engineering Services to the Principal
District Judge at Goa. A resolution (Exhibit P23) was passed on 17 th
December, 2013 by the second Petitioner strongly objecting to shifting
of any of the Courts at Panaji to the said new building. On 31st
December, 2013, the first Petitioner addressed a letter (Exhibit P24) to
the Principal District Judge of North Goa raising an objection to the
shifting of the Court premises to the new building. Similar letter of
protest was addressed by the second Petitioner Association to the
learned Principal District Judge of North Goa on 3rd January, 2014.
Neither in the aforesaid Resolution nor in the said letter, the Petitioners
have made a grievance that the new building is close to the dumping
ground of garbage. It appears that a meeting was convened by the
Principal District Judge of North Goa in the chamber on 10 th January,
2014 when the President of the first Petitioner was requested to attend
the meeting. It appears that there was one more meeting in the
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chamber of the learned Principal District Judge, North Goa on the
subject of plans for erecting partitions and modification of the third to
sixth floors of the said new building. The plans were approved and
directions were issued to the Government Architect. On 21st May, 2014,
the Principal District Judge of North Goa submitted an opinion (Exhibit
P36) to this Court that the premises in the new building are suitable for
housing the four Courts. In the said opinion the learned Judge has not
stated that the garbage dump is very close to the new building.
Thereafter, by letter dated 15th June, 2015 the first Petitioner again
recorded the protest with the learned Principal District Judge of North
Goa.
15. Thus, it appears that as of 17th December, 2013 the second
Petitioner was aware of the decision taken to shift the Courts to the new
building. As of 31st December, 2013 even the first Petitioner was aware
of the said decision. Thereafter, steps were taken to carry out internal
work in the four floors allotted in the new building. As stated earlier,
the possession of the four floors was already handed over to the
Principal District Judge, North Goa on 27th November, 2013. It is only
when the notice was issued by the Principal District Judge on 24 th July,
2015 of actual shifting of Courts that the Petitioners approached the
Apex Court by filing a Writ Petition under the Article 32 of the
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Constitution of India. In the meanwhile, necessary internal work was
carried out in the premises in the said new building. The learned
Advocate General of Goa claims that a sum of Rs.4 Crores was spent on
the said work. In the circumstances, there is a great deal of merit in the
submission made by the learned Advocate General of Goa as well as the
learned Senior Counsel for the High Court Administration on the issue
of delay. Moreover, the four Courts will be shifted to the said new
building only on temporary basis till the new Court complex at Merces
is ready.
16. The main contention raised in the Petition as regards the
nuisance and health hazard created by the garbage dump near the new
building will have to be considered. On this aspect we must consider
the affidavit of Shri Levinson J. Martins, the Member Secretary of the
Goa Pollution Control Board. In paragraphs 10 and 11 of his affidavit,
he has stated thus :
“10. I respectfully state that in so far as the present matter is
concerned, the Goa State Pollution Control Board has
already issued directions to the CCP. I state that the
GSPCB is also monitoring the situation continuously,
so that the odour emanating therefrom is reduced, if
not completely eliminated. I respectfully state that the
Patto area has various establishments such as primarily
Government offices, corporate offices, Labour Court,
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tourism complex, bus stand, State Information
Commission under the RTI Act, SBI offices of various
professionals such as lawyers etc, apart from State and
Central Government offices as also the hotels/
restaurants and other eateries. In this view of the
matter the GSPCB continuously monitor's. I
respectfully state that the GSPCB would also issue
directions to the CCP to handle the garbage
composting over the weekends and over holidays
wherein the Courts are not functional so that the
odour which is emanating can be reduced. I state
that this respondent has also issued directions to the
city corporation to ensure that the odour emanating
therefrom is controlled if necessary by setting up
and engaging certain technology including odour
control technology which may be available in this
regard. I state that presently the GSPCB has already
issued directions to the city corporation to cover the
waste dump which is laying at site which is not
visible from the adjoining buildings. Covering of the
waste dump will also reduce the general pollution.
11. I state that as of now until the alternate facility at Patto
which is mentioned in the earlier part of the affidavit
becomes functional, it will not be possible to issue
directions for closure of the facility as it is the only
available facility and public interest requires such
facility to be functional. I state that the CRZ authorities
have indeed cleared the project where the other facility
is bound to come up. And therefore it would be in the
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interest of justice if the matter before the NGT is heard
at the earliest and the order is vacated so that the plant
could become operational at the said site.”
(emphasis added)
17. What is stated in the said paragraphs shows that there is an
issue of the odour emanating from the dumped garbage and therefore,
the affidavit talks about taking measures to reduce the emanating
odour. It also suggests that complete elimination thereof may not be
easily possible. There is a direction issued to the Corporation of City of
Panaji to cover the waste dump which is lying on the site so that is not
visible from the adjoining buildings. The latest photographs produced
by the Petitioners along with rejoinder show that a huge garbage dump
is seen very close to the new building. There is an affidavit filed by the
Commissioner of the Corporation of City of Panaji. Paragraph 8 of the
said affidavit reads thus :
“8. I say that the waste brought at the Municipal Solid
Waste Processing site of Respondent no.4 situated near
SBI building, EDC Patto, Panaji, Goa presently is
between seven to 8 metric tones per day. I say that the
said waste is treated as aforesaid at Municipal Solid
Waste Processing site of Respondent no.4 situated
near SBI building, EDC Patto, Panaji, Goa however
the same is in excess of the existing infrastructure
Build at the said site. I say that the Respondent no.4
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therefore urgently requires the proposed site in
property bearing P.T. Sheet no.56, Chalta no.6 of City
Survey of Panaji at the earliest to overcome the issues of
waste processing within the jurisdiction of Respondent
no.4, however the Respondent no.4 is unable to
proceed with activities on account of the Order passed
by National Green Tribunal (Western zone), Pune.”
(emphasis added)
18. Thus, it is an admitted position that the facility at Patto
Plaza receives solid wastes of 7 to 8 metric tones every day which is in
excess of the capacity of the existing infrastructure build at the site.
19. The Petitioners have annexed several complaints made by
the officers of the Government Departments like the Commissioner of
IncomeTax, Passport Office as well as public sector undertakings like
BSNL and LIC regarding the nuisance and health hazard caused due to
dumping in the Patto Plaza area. The said offices are at Patto Plaza in
the area of the said new Building. There are large number of newspaper
reports on which reliance is placed. The directions were required to be
issued by the Goa State Pollution Control Board on 28th July, 2014
under Section 5 of the Environment (Protection) Act, 1986 (for short
“the said Act of 1986”) to the CCP regarding the dumping site. What is
noted in the said direction are various deficiencies such as foul odour
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emanating from the site. There are puddles of leachate/stagnant water
in the area. There is no cover provided for the composting material. A
copy of the inspection report is also annexed to the said directions.
Thereafter, there is a further direction issued by the Pollution Control
Board on 12th January, 2015. It refers to the earlier direction issued on
28th July, 2014. It is based on inspection carried out on 23 rd October,
2014. The contents of the observations made during the inspection
carried out on 23rd October, 2014 read thus :
“1.There is a heap of composted manual stacked at the
entrance of shed covered with sirpoline.
2. No covering is provided for the composted material
and birds were observed on the heaps.
3. Slight foul odour was emitted at the site at the time of
inspection. A copy of the inspection report dated
23/10/2014 is enclosed herewith.”
(emphasis added)
Thereafter, directions were issued which read thus :
“1. Provide concrete platforms for stacking the composting
waste behind SBI Building, Patto, PanajiGoa.
2. To provide drains to collect leachate generated behind SBI
Building, Patto, PanajiGoa, which should be connected to a
leachate collection tank.”
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20. Thus, the issue raised by the Petitioners regarding the
pollution and nuisance created by the garbage dump and generation of
foul odour is not without any basis. There is a substance in the said
grievance.
21. However, the four Courts will be shifted to the said new
building only as a temporary arrangement and the same will be brought
to the proposed new Court complex on Merces land. Secondly, it is too
late in the day to interfere with the decision of shifting four Courts for
temporary period especially considering the finding recorded earlier on
the aspect of gross delay in approaching the Court. Thirdly, there is an
assurance given by the Goa State Pollution Control Board in paragraph
10 of the affidavit of its Member Secretary to take all necessary steps.
Moreover, we are informed that all the four floors in the new building
are airconditioned. Inconvenience, if any, which is likely to be caused
to the Members of the Bar and Litigants can be minimized by directing
the Goa State Pollution Control Board to make frequent site visits and
to take statutory action of issuing directions and ensuring the
compliance thereof. Moreover, if construction of the new Court complex
is not completed within the time specified in the affidavit of the State
Government, appropriate directions can be always issued in appropriate
proceedings. Hence, we are of the view that no interference can be
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made mainly on the ground of delay and on the ground that the shifting
of Courts will be on temporary basis only till January 2018. The other
two factors are the steps assured to be taken by the Pollution Control
Board and the fact that all the four floors are airconditioned.
22. We may record here that High Court Administration will
have to consider whether instead of shifting all the four Courts it is
possible to shift the record and muddemal to the new building so that
instead of four Courts, only one or two Courts can be shifted. The
question whether more space can be created in the existing building by
shifting the muddemal and other articles will have to be considered by
the High Court Administration. From the photographs produced by the
learned counsel for the High Court Administration it appears that the
condition of the existing building is not at all bad.
23. We propose to issue a direction to submit periodical status
reports on the construction of the Court Complex at Merces. We propose
to grant liberty to the Petitioners to file a fresh Petition for the same
relief in the event the Construction is not completed within the time
stipulated by this Court and in the event the nuisance created by the
garbage dump is not substantially abated till the expiry of the aforesaid
period.
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24. Hence, we pass following order:
ORDER
(I) The Petition is rejected with no order as to costs;
(II) We direct the Government of Goa to complete the
Construction of the Court complex at merces in all respects
till 15th January 2018. The Construction shall be completed
in such a manner that the actual use of the Building can be
commenced on 16st January, 2018 ;
(III) The Government of Goa shall submit quarterly reports to
this Court on the progress made in the construction of the
Court complex. Photographs shall be submitted along with
the report. The Government shall serve copies of the
reports to the Petitioners;
(IV) The Goa State Pollution Control Board shall submit the
quarterly reports to this Court on the steps taken by it for
reducing/preventing the nuisance created by the garbage
dump. The Pollution Control Board shall serve copies of the
reports to the Petitioners;
(V) The first of such reports shall be filed before the end of
January 2016;
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(VI) If the Construction of the Court Complex on Merces land is
not completed on or before 15th January 2018 and if the
nuisance caused by the garbage dump continues till then, it
will be open to the Petitioners to file a fresh Petition
seeking appropriate reliefs;
(VII) The High Court Administration to consider whether the
muddemal and other record can be shifted to the new
building instead of shifting total four Courts to the new
building so that more space can be created in the existing
building to accommodate the Courts;
(VIII) For considering the compliance reports, the Petition shall
be placed for directions on 2nd February 2016.
(A.R. JOSHI, J ) (A.S. OKA, J )
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Mr. Gaurish Agni, Mr. Omkar Warange, Mr. David Rao i/by Mr. Ameya Sudhir Tamhane, for the Petitioners.
Mr. M.S. Karnik, for the Respondent Nos.1 and 3.
25. After the Judgment is pronounced, the learned counsel
appearing for the Petitioners invited our attention to the order of the
Apex Court and submitted that the arrangement provided therein
continued during the pendency of this Petition. He, therefore, seeks
continuation of the same arrangement. The learned counsel appearing
for the High Court Administration states that this Court may consider
the prayer in accordance with law after taking into consideration the
stand taken by the High Court Administration. None appears for the
Government of Goa and other parties.
26. Considering the order of the Apex Court as well as the
directions issued by this Court, we direct that the actual sittings of the
Courts in the new building shall not be commenced for a period of three
weeks from today. We make it clear that in the meanwhile the High
Court Administration is free to consider the aspect which is set out in
Clause VII of the operative part of the Judgment.
(A.R. JOSHI, J ) (A.S. OKA, J )
Certified to be true and correct copy of the original signed Judgment/order.
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