pmw Bombay High Court - Bar & Bench · Bombay High Court pmw ... Senior Advocate with Mr. Gaurish...

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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2015, the said Petition was permitted to be withdrawn by the Apex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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