Madras High Court
C.Palanisamy vs The District Collector / President on 23 December, 2020
Equivalent citations: AIRONLINE 2020 MAD 2219
Author: N.Kirubakaran
Bench: N.Kirubakaran, B.Pugalendhi
W.P.(MD)No.17512 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.12.2020
CORAM:
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
AND
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P.(MD)No.17512 of 2020
1.C.Palanisamy
2.P.Rajaram
3.A.Prema
4.P.Ramasamy
5.Stephen
6.R.Mumthaj Begums
7.S.Mohammed Miyakhan : Petitioners
Vs.
1.The District Collector / President,
District Rural Development Agency,
Collectorate,
Tiruchirappalli – 620 001.
2.The Block Development Officer,
Thiruverumbur Panchayat Union,
Thiruverumbur,
Tiruchirappalli – 620 013.
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W.P.(MD)No.17512 of 2020
3.The President,
Krishnasamudhram Village Panchayat,
Thiruverumbur,
Tiruchirappalli – 620 014. : Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
seeking a Writ of Certiorarified Mandamus calling for the records culminated in
the impugned proceedings No.A7/0097/2020 dated 01.09.2020, on the file of the
1st respondent and quash the same and forbear the respondents from otherwise
utilizing the lands comprised in S.F.No.618, situated at Ezhil Nagar,
Semmangulam Village, Kishnasamudram Village Panchayat, Tiruverumbur Taluk,
Tiruchirappalli District, for any other purpose sans as play field as approved in the
DTP LP No.34/85.
For Petitioners : Mr.Shangar Murali
For Respondents : Mr.M.Muthugeethaiyan,
Special Government Pleader for R.1
Mr.M.Karuppanan,
Government Advocate for R.2
*****
ORDER
(Order of the Court was made by B.PUGALENDHI, J.) The petitioners, residents of Ezhil Nagar and Officers Town, Thiruverumbur, Tiruchirappalli District, have filed this writ petition as a public interest litigation as against the order of the first respondent / District Collector in No.A7/0097/2020, dated 01.09.2020, permitting the second respondent / Block 2/14 http://www.judis.nic.in W.P.(MD)No.17512 of 2020 Development Officer to set up a Micro Composite Center (MCC) at S.No.618, Ezhil Nagar of Krishnasamuthiram, to an extent of 0.50 cents.
2. The grievance of the petitioners is that the proposed place of 0.50 cents in S.No.618 is part of an approved layout, segregated as a play field. Therefore, the residents of Ezhil Nagar have made objections to the first respondent not to convert the play field as a garbage centre, which would be injurious to their health. But the first respondent, in utter negation to the terms and conditions of the approved layout and by violating the Tamil Nadu Town and Country Planning Act, 1971 and the Tamil Nadu Panchayat Building Rules, 1997, passed the impugned order dated 01.09.2020, permitting a Private Company to set up a BIO-Digestor to incinerate the garbage and to use the place as a garbage dumping yard.
3. It is their further case that the dumping of garbage would cause water and air pollution and the first respondent has permitted the private company to establish the dumping yard, without obtaining permission from the Pollution Control Board under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981. 3/14 http://www.judis.nic.in W.P.(MD)No.17512 of 2020
4. The learned Counsel appearing for the petitioners would submit that once a place is segregated and earmarked as a park, play field or an open field in the layout, the said place shall not be utilized for any other purpose, as per the provisions of the Tamil Nadu Parks, Play Fields and Open Spaces (Preservation and Regulation) Act, 1959. But the first respondent, by floating all the norms and the Act, has passed the impugned order as against the welfare of the residents of Ezhil Nagar.
5. In support of his arguments, the learned Counsel has enclosed certain photographs of the proposed site and has also relied upon the decision of the Hon'ble Supreme Court in Bangalore Medical Trust v. B.S.Muddappa and Others, reported in (1991) 4 SCC 54, that open space reserved for public park in development scheme duly approved cannot be converted for any other purpose. He has also relied upon yet another decision of the Hon'ble Supreme Court in Virender Gaur and Others v. State of Haryana and Others, reported in (1995) 2 SCC 577.
6. Mr.M.Muthugeethaiyan, learned Special Government Pleader appearing for the first respondent would submit that having a proper waste management is 4/14 http://www.judis.nic.in W.P.(MD)No.17512 of 2020 one of the biggest challenges being faced by them, in view of the rapid urbanization. He would further submit that no doubt, parks / open field, being the lung space, have to be taken care of, but, at the same time, they have to take care of the disposal of the wastes.
7. This Court has heard the submissions of Mr.M.Karuppanan, learned Government Advocate appearing for the second respondent also.
8. When an identical issue as to the conversion of park into a micro compost yard came up for consideration in W.P.Nos.26704 of 2017, etc., batch, in the case of Janakar and Others v. The Commissioner, Hosur Municipality, a learned Single Judge of this Court, by order dated 08.11.2017, has held as follows:
“12. ... It is true that whenever an Open Space Reserve (OSR) place is identified as a park, no construction can be made in it, but however, it cannot be stated that a portion of the area cannot be used as a compost yard. When the citizens want the Government to remove the garbage, there should be a place for dumping the garbage and clearing it.
13. ... ... ... It is made clear that whenever a site is identified, the people will raise objections and in that process, good efforts to clear the garbage is being stalled as contended by the first respondent-Municipality.
The contention that the respondents can take the garbage to some other 5/14 http://www.judis.nic.in W.P.(MD)No.17512 of 2020 place, cannot be accepted, as the Municipality's efforts to dump the garbage in another place, may be objected to by the residents in that area. As pointed out by the respondents, if the petitioners want to maintain healthy atmosphere, and if they should not face any health hazard, then they must come forward to use the compost yard for removing the garbage and other waste. The contention that the compost yard should be removed and taken to some other place, cannot be accepted in the facts and circumstances of the case. However, at the best, the petitioners can do so without preventing the compost yard being constructed in a portion of the park and they should ensure that the area is litter-free zone and regular fogging operations and other measures are being taken care of by the Municipality. If there is no activity for a day on account of any other reason, there is possibility of infectious and contagious diseases being spread.
14. Though the relief sought for by the petitioners cannot be granted, when the compost yard comes, the respondents shall ensure that it is cleaned twice a day and fogging the zone is also done, more particularly during sunset to avoid mosquito breed. That apart, the residents in the area shall also cooperate in keeping with the wastage in different forms, namely degradable and bio-degradable forms of segregation of waste. Though this Court would suggest that the Corporation/Municipality concerned shall provide degradable wastage disposal bags to each and every house, as there is possibility of scam in that process, this Court is avoiding such observation. The respondents must also be aware that the provisions of the Tamil Nadu Public Health Act are not only applicable to the residents, but 6/14 http://www.judis.nic.in W.P.(MD)No.17512 of 2020 also applicable to the Municipal authorities. If any defects are pointed out by means of videograph or photograph by the residents with regard to the improper maintenance of the compost yard, the officers will be liable to pay costs and face prosecution as per law.”
9. In the case of M.S.Rangarajan Vs. Pammal Municipality, [W.P.No. 26581 of 2017, decided on 22.01.2018], a learned Single Judge of this Court has held as follows:
“17. Private lawns or public parks are not a luxury, as they were considered in the past. Public Park is a gift of modern civilization and that reservation of vacant land as an open land is in conformity with the rules and regulations for formation of the layout and is meant for public use and enjoyment and it cannot be disputed that Open Space Reserve is treated as lung space.
18. The Apex Court has categorically held that where open space is preserved and earmarked in the plan for development of a planned town, the authorities cannot ignore the public interest and allot the same for construction of godowns, thereby causing environmental hazards. Ecology has been completely destroyed by human beings by encroaching OSR, playgrounds, river bunds, lakes, etc. But the official respondents must ensure that the waste has to be disposed of in a scientific manner. In a developing country, technicalities should not be a bar for development.
19. When a public park is a gift of modern civilization, Open Space 7/14 http://www.judis.nic.in W.P.(MD)No.17512 of 2020 Reserve is the lung space and setbacks are for the purpose of rain harvest, Micro Compost Yards are essential for disposal of the waste, so that it will not endanger the health of the citizens, more particularly, children, who are likely to be affected on account of mosquitoes, flies, etc, which cause air borne and water-borne diseases. When citizens want development, certainly, they will have to co-operate for the betterment of the environment and ensure that no pollution is caused on account of their attitude in disposing of the waste from their respective residence. Though, strictly speaking, Development Rules have come into effect in 1975 and that the layout in question was approved in 1972, there is no hard and fast rule that there cannot be any development at all.
20. Residents/citizens cannot expect the authorities to identify a different place far away from the place of residence to have a Compost Yard and that there is a possibility of the residents of that area to object for setting up of a Compost Yard for disposal of the waste which are not generated from their residence.
21. Now that the Government has come up with effective policies in segregation of wastes of all kinds, people are expected to welcome such measures and must co-operate with the authorities in maintaining a healthy environment. Even though garbage bins are set up in every street, it is painful to see people throw garbage near the bin and not into the bin. From stone-age, we have come to the modern era. Certainly development is required for our betterment and hence, technicalities should not come in the way that may be detrimental to the development of the Society.” 8/14 http://www.judis.nic.in W.P.(MD)No.17512 of 2020
10. A Division Bench of this Court in N.Shanmugham v. District Collector and Others, reported in 2018 SCC OnLine Mad 11537, has held as follows:
“9. The issue of disposal of the solid waste and garbage is taking enormous proportions. The available land is shrinking fast and no land is available. The Municipality cannot dump garbage into another Municipality. In view of the shrinking space, it is for the Municipality to earmark/locate proper area for the purposes for establishing such places for dumping. The Court cannot close its eyes to the fact that wherever there is no proposal to establish Solid Waste Management Plant, residents of the area raised disputes. The construction of the Solid Waste Management Plant is for a public purpose. It is for the benefit of the locality. The Counter quoted supra categorically brings out the scientific method, which is being put to use for construction of such plants. The Solid Waste Management Rules, 2016, in detail explain as to how areas are demarcated and how this Plants have to be maintained. The Pollution Control Board monitors the functioning of such plant. It is not for the Court to decide as to which area should be used or not, for the purpose of establishing Plants, if there is no violation. The facts stated in the counter that the proposed Plant is not on the tank bed, are not controverted in the rejoinder.
10. In the Public Interest Litigation, we are not inclined to interfere with the establishment of the Solid Waste Management Plant, which is for public purpose. In the result, this Writ Petition is dismissed.” 9/14 http://www.judis.nic.in W.P.(MD)No.17512 of 2020
11. The first and foremost contention of the learned Counsel for the petitioners is that once a place is earmarked as a park or play field or an open field in the approved layout, the said place shall not be utilized for any other purpose.
But, on a perusal of the photographs enclosed by the petitioners in the typedset of papers, would expose that the area itself is surrounded with Karuvelam (prosopis juliflora), without any maintenance and it is neither used as a park nor as a play field.
12. Be that as it may, as has been held by a Division Bench of this Court in Sri Devi Nagar Residences Welfare Association and Another v. Subbathal and others, in [W.A.Nos.156 of 2000 and 45 of 2003, decided on 12.04.2007], public purpose is paramount. Public interest means general interest of the public, at large. Setting up of a Micro Compost Centre is of public importance. If a land reserved for public purpose is converted into a Hospital, the same is bad, as has been held by the Hon'ble Supreme Court in Bangalore Medical Trust's case, referred to by the petitioners, which is not the case herein.
13. In fact, even according to the petitioner, this layout was approved in the year 1985 and as per the layout, this place was donated to the Panchayat. In the 10/14 http://www.judis.nic.in W.P.(MD)No.17512 of 2020 year 1985, when the layout was prepared, scientific advancements were not available and there was hardly any need for composite centres. But, from the year 1985, we have come across rapid urbanization, which necessarily warrants a technique to dispose the wastes. It is the need of the hour and it requires for a scientific management to clear the garbage. Under the Solid Waste Management Rules, 2016, the Micro Composite Centres were established in the Panchayats to reduce the dumping of Garbage in the nearby Municipalities and Cities. These Composite Centres are established with an advanced scientific technology, by converting the garbage as a manure, which can effectively be used for agriculture purposes and gardening purposes.
14. A reading of the impugned order would disclose that a Private Company, namely, Environmental Solutions, Coimbatore, M/s.CPR Kamproducs India Pvt., Ltd., Chennai, was entrusted with the work to convert 3 tons of garbage into manure, with a technology, namely, BIO-Digestor. This instrument, BIO-Digestor, is installed by the private company, free of cost and on certain conditions, viz., they have to take care of the maintenance for a period of three years and after the expiry of three years period, they have to hand over the instrument to the Panchayat.
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15. The proposed place has been identified after inspection by the Assistant Executive Engineer, Tiruchirappalli Rural Sub Division, with an object to establish the Micro Composite Centre. As stated supra, though the place was earmarked as a play field, it has not been utilized for that purpose so far and the petitioners, public interest litigants, have also not taken any steps to maintain the area either as a park or as a play field.
16. That apart, the petitioners have not come up with any materials to show that these Micro Composite Centres are injurious to health and / or it would create any bad odour to the residents. In the absence of any such materials, this Court is not inclined to accede the same. At the same time, this Court directs the first respondent / District Collector to ensure clean and healthy atmosphere for the residents of that area. The first respondent shall take all measures and precautions that the Micro Composite Centre is not causing any health hazard or spreading of any bad odour to the nearby residents, who are residing in that place for more than 3.5 decades. The first respondent shall also ensure that the Composite Centre is cleaned regularly and fogging of the zone is also done regularly. 12/14 http://www.judis.nic.in W.P.(MD)No.17512 of 2020 With the above observations, this writ petition is dismissed. No costs.
[N.K.K.,J.] [B.P.,J.]
23.12.2020
Index : Yes / No
Internet : Yes
gk
To
1.The District Collector / President,
District Rural Development Agency,
Collectorate,
Tiruchirappalli – 620 001.
2.The Block Development Officer,
Thiruverumbur Panchayat Union,
Thiruverumbur,
Tiruchirappalli – 620 013.
13/14
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W.P.(MD)No.17512 of 2020
N.KIRUBAKARAN, J.
AND
B.PUGALENDHI, J.
gk
W.P.(MD)No.17512 of 2020
23.12.2020
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