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2022 DIGILAW 1643 (BOM)

Pandurang Ananta Naik v. State of Goa

2022-07-07

M.S.SONAK, R.N.LADDHA

body2022
JUDGMENT 1. Heard the learned counsel for the parties. 2. Mr. Pereira learned Senior Advocate for the petitioners submitted that the Panchayat should not be allowed to proceed with the works of the establishment of MRF in the open space on the following grounds: "(a) The open space was the private property of the petitioners since the petitioners have, to date, not transferred the same to the Panchayat or the State Government; (b) The Panchayat has not obtained any permission to establish MRF. In any case, the approvals so obtained are null and void and, therefore, no approvals in the eyes of the law; (c) The technical approval dtd. 13/12/2019 has been issued by the Executive Engineer, PWD, who is not competent authority for the issue of such approval; (d) The Goa State Pollution Control Board's (GSPCB) approval dtd. 4/12/2019 expired on 4/12/2020. Therefore, as of date, there is no approval for the establishment of MRF; (e) The Panchayat issued the work order on 21/1/2021. Therefore, the Panchayat cannot rely on the amended regulations of 2021 that entered into force only in November 2021; (f) Even the amended regulations of 2021 require the Panchayat to obtain permission from various authorities that are not obtained; (g) The Deputy Town Planner, by communication dtd. 3/6/2022, has directed the Panchayat to stop the work of MRF. Therefore, the Panchayat cannot proceed with such work." 3. Mr. Pereira, however, submitted that the petitioners are not pressing the challenge to Resolution No.4(1) dtd. 13/9/2019 passed by the Panchayat for establishing the MRF. 4. Mr. Nigel Da Costa Frias, learned counsel for Village Panchayat of Issorcim (Respondent No.3), submitted that many of the petitioners, including the original owners of the developed property, had signed an affidavit cum irrevocable no objection certificate on 18/12/2018 for the use of open space for public utilities only. He submits that based on such affidavit cum irrevocable NOC, which was forwarded to the Panchayat under the subject "Gift Deed," the petitioners obtained a final NOC for sub-division of the plot. He submitted that the petitioners cannot now renege on this document and prevent the Panchayat from using a tiny portion of the open space for utilities. 5. Mr. Nigel Da Costa Frias submitted that this Court is monitoring a Public Interest Litigation for providing Solid Waste Management Facilities in the entire State of Goa. He submitted that the petitioners cannot now renege on this document and prevent the Panchayat from using a tiny portion of the open space for utilities. 5. Mr. Nigel Da Costa Frias submitted that this Court is monitoring a Public Interest Litigation for providing Solid Waste Management Facilities in the entire State of Goa. Directions have been issued to various Panchayats and Municipalities to set up the MRF. The Panchayat has obtained permission from multiple authorities, and no illegality is involved. He, therefore, submitted that this petition may be dismissed. 6. Mr. Faldessai learned Additional Government Advocate appears for the State and the Planning Authority. Accordingly, he adopted Mr. Costa Frias's submissions and urged the dismissal of this petition. 7. Mr. Pavithran appears for GSPCB, and Mr. Nikhil Pai appears for the Planning and Development Authority. Both endorsed Mr. Costa Frias's submissions and urged dismissal of this petition. 8. The rival contentions now fall for our determination. 9. The record bears out that at least the first six petitioners, original property owners, tendered an Affidavit cum irrevocable No Objection Certificate to the Panchayat, possibly in place of executing a Gift Deed. Even the covering letter dtd. 24/12/2018, by which the Affidavit cum irrevocable No Objection Certificate was forwarded to the Panchayat, bears the subject "Gift Deed." This affidavit cum irrevocable NOC refers to open space admeasuring approximately 6994 square meters and states that the petitioners shall have no objection of whatsoever nature for the Government to use and utilize the open space for public utilities only. Based on this document, the petitioners obtained a final NOC for the sub-division of the plots acquired by them. 10. There is no dispute that the MRF which the Panchayat is establishing is on a small portion of this open space admeasuring 150 square meters, which corresponds to less than 1(one) percent of such open space. Also, there was no serious dispute that this small MRF is a public utility. 11. The petitioners, having furnished and/or benefited from the Affidavit cum irrevocable No Objection Certificate dtd. 18/12/2018, cannot now go back on their commitments and question the Panchayat establishing MRF on a tiny portion of this open space. Also, there was no serious dispute that this small MRF is a public utility. 11. The petitioners, having furnished and/or benefited from the Affidavit cum irrevocable No Objection Certificate dtd. 18/12/2018, cannot now go back on their commitments and question the Panchayat establishing MRF on a tiny portion of this open space. The Goa Land Development and Building Construction Regulations, 2010 (the said Regulations) in clause 12.4(d) provides that open spaces can be used to install public utilities, provided such installations do not cover more than 5% of each of the open space. In the present case, the public utility covers less than 1 (one) percent of the open space. 12. The work order, in this case, was initially issued on 21/1/2021. However, the Panchayat's affidavit explains that no work could be undertaken under such order due to the Covid-19 pandemic and lack of NOC from the Naval Authorities. Therefore, the fresh work order was issued on 23/2/2022 even though the same may have been styled as an extension order. Thus, at least on the date of the issue of the work order dtd. 23/2/2022 under which the works commenced, the Goa Land Development and Building Construction (Amendment) Regulations, 2021 had entered into force. 13. The amended Regulations of 2021 inserted clause 3.11 A concerningtheDevelopmentPermission/Technical Clearance/Completion Order concerning public projects. This regulation commences with non obstante clause and makes the following provisions about the Material Recovery Facility. "(ii) In case of Material Recovery Facilities and Solid Waste Management Structures of the Municipal Council/Corporation/Village Panchayats/Goa Waste Management Corporation (GWMC), the concerned Municipal Council/Corporation, Engineer/Assistant Engineer of Directorate of Panchayats, Assistant Manager having Engineering specialization of the Goa Waste Management Corporation, as the case may be, shall grant the Technical Clearance/Development Permission and Completion Order". 14. The Panchayat has explained in its affidavit that the Director of Panchayats had already approved and administratively sanctioned the construction of MRF on 17/2/2020. Mr. Costa Frias explains that since the Directorate of Panchayats does not have the technical expertise, all issues are referred to the Public Works Department. Accordingly, the Panchayat obtained technical approval from the Executive Engineer - VIII, PWD. Therefore, it is clear that the MRF installation has the necessary support from the Directorate of Panchayats and Executive Engineer, PWD. 15. The petitioners' contention that the Panchayat has no permissions from any authorities is patently incorrect. Accordingly, the Panchayat obtained technical approval from the Executive Engineer - VIII, PWD. Therefore, it is clear that the MRF installation has the necessary support from the Directorate of Panchayats and Executive Engineer, PWD. 15. The petitioners' contention that the Panchayat has no permissions from any authorities is patently incorrect. The petition, possibly without research, proceeds on the basis that the Panchayat had commenced the establishment of MRF without any permissions from any authorities. The Panchayat however produced multiple permissions/approvals from the Authorities, including the Naval Authorities, PWD etc. 16. After the permissions/approvals were produced, the petitioners, without through any formal challenge have attempted to pick holes and contend that such permissions/approvals are not permissions/approvals ' in the eyes of law'. Assuming such contention is tenable, the grounds in support of such contention are far from sufficient to stall a small public utility that the Panchayat is setting up for the benefit of all residents in the locality, including the petitioners. 17. Regarding GSPCB's approval, the record states that the Panchayat applied for renewal. However, the GSPCB, by its communication dtd. 7/7/2021, informed the Panchayat that the approval would be granted only after the MRF is erected/constructed as per the template of the Goa Waste Management Corporation. 18. The GSPCB's communication dtd. 7/7/2021 reads as follows: "No.8/37/S/21-PCB/18556/Tech/6180 To, The Secretary, Village Panchayat of Velsao Pale-Issorcim, Mormugao- Goa. Date:- 7/7/2021 Sub: Construction/setting up of Material Recovery Facility. Ref:- 8/37/S/21-PCB/18556/TECH/1465 dtd. 29/4/2021 Sir, In continuation to the Boards letter as referred above, I am directed to inform you that the approval will be granted only after the Material Recovery Facility in Survey No.11/48, 46, 47, 48 (Issorcim) is erected/constructed as per the template of Goa Waste Management Corporation. Yours faithfully, Sd/- ( Sanjeev Joglekar) Sr. Environmental Engineer For Goa State Pollution Control Board." 19. The Deputy Town Planner's letter dtd. 3/6/2022 had only required the Panchayat to furnish approval/documents, if any, pertaining to the construction of MRF and, until then, to stop the construction work at the site. The Panchayat produced the necessary approval/documents and continued construction work at the site after that. The Planning Authorities have no issues with the course adopted by the Panchayat. 20. The Panchayat, in this case, is establishing an MRF in pursuance of general directions issued by this Court for compliance with the Solid Waste Management Rules and Regulations. The Panchayat produced the necessary approval/documents and continued construction work at the site after that. The Planning Authorities have no issues with the course adopted by the Panchayat. 20. The Panchayat, in this case, is establishing an MRF in pursuance of general directions issued by this Court for compliance with the Solid Waste Management Rules and Regulations. The establishment of such MRF is a public utility, and the same is also in the public interest. This facility would mainly cater to solid waste generated, among other things, by the petitioners. The facility will also benefit other residents of the locality. The NIMBY ( not in my backyard) possibly motivates this petition. The MRF is being installed on a portion admeasuring hardly 150 square meters corresponding to less than 1(one) percent of the open space when the regulations permit the user up to 5%. Mr. Costa Frias pointed out that this is not some large installation, but instead, this is a small installation put up at the estimated cost of Rs.20.00 lakhs or thereabouts. 21. In Ramniklal N. Bhutta and another Vs State of Maharashtra and others (1997) 1 SCC 134 , the Hon'ble Supreme Court has held that the Court should keep larger public interest in mind while exercising discretionary jurisdiction under Article 226. Such jurisdiction has to be exercised only in furtherance of interests of justice and not merely on making out of a legal point. In the present case, no substantial legal point has also been made out to stall the establishment of MRF, which is admittedly a public utility. The petitioners after issue of an irrevocable no objection certificate seek to now backtrack from the representation they held out. The discretionary jurisdiction under Article 226 cannot be exercised in such circumstances and that too, to stall the establishment of a relatively small public utility. 22. In Sanjay Kumar Shukla Vs Bharat Petroleum Corporation Limited and others (2014) 3 SCC 493 , the Hon'ble Supreme Court held that the Court should be vigilant against agitation of private disputes under writ jurisdiction when there is no improper exercise of power on part of public authority concerned. The power is to be exercised only when justified by public interest upon having due regard to relevant facts. The power is to be exercised only when justified by public interest upon having due regard to relevant facts. The Court held that delay in inevitable judicial process could work in different ways like deprivation of intended benefit of service or facility to public, escalating costs burdening public exchequer and abandonment of half completed works and projects due to ground realities in fast changing economic/market scenario. 23. For all the above reasons, we do not think that the petitioners have made out any case to warrant interference with the Panchayat establishing an MRF in a small portion of the said property. 24. This petition is liable to be dismissed and is accordingly dismissed. However, there shall be no order for costs.