Madras High Court
Kemban vs The District Collector on 16 April, 2019
Bench: S.Manikumar, Subramonium Prasad
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.04.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD
WP No.17 of 2019
and WMP No.12 of 2019
Kemban .. Petitioner
Vs.
1. The District Collector,
Tiruppur District.
2. The District Environmental Engineer,
Tamil Nadu Pollution Control Board,
Kumaran Road,
Tirupur - 641 601.
3. The Director of Town Panchayats,
Kuralagam,
Chennai - 600 108.
4. The Assistant Director of Town Panchayats,
Tiruppur District.
5. The Executive Officer,
Muthur Town Panchayath,
Kangayam Road,
Muthur, Tiruppur District. .. Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India,
issuance of a Writ of mandamus, directing the 5th respondent to remove the
dumping and compost yard forthwith from Muthur Weekly Market premises in
S.F.No.403 and 406/2 of Chinna Muthur Village, Kangayam Taluk, Tiruppur
District and consequently, forbear the respondents from dumping, operating or
expanding the dumping yard within the Muthur Weekly Market premises by
considering petitioner's representation dated 28.03.2018.
For Petitioner : Mr.R.Prabakar
http://www.judis.nic.in
2
For Respondents : Mr.E.Manoharan (for R1, R3 & R4))
Additional Government Pleader
Mr.C.Kasirajan (for R2)
Standing counsel for TNPCB
Ms.M.Lalitha (for R5)
Government Advocate
ORDER
(Order of this Court was made by SUBRAMONIUM PRASAD, J.) This writ petition, is for a writ of mandamus, directing the Executive Officer, Muthur Town Panchayath, Tiruppur District, 5th respondent herein to remove the dumping and compost yard, forthwith, from Muthur Weekly Market premises in S.F.No.403 and 406/2 of Chinna Muthur Village, Kangayam Taluk, Tiruppur District.
2. The petitioner is the resident of Muthur Village. The petitioner states that Muthur Weekly Market is functioning for a long time, on every saturdays.
It is the largest weekly market in Tiruppur District. Agriculturists in and around Muthur viz., Tiruppur, Karur, Erode, Coimbatore District, come to the market, to sell their products. The petitioner states that the weekly market is held in an area measuring an extent of 5 acres, situated in S.F.No.617 and 619 of Muthur Village and S.F.No.403 and 406/2 of Chinna Muthur Village. The petitioner states that around the weekly market there are about 100 houses.
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3. The petitioner states that the 5th respondent i.e., the Executive Officer, Muthur Town Panchayat, Muthur, Tiruppur District, initially started a small dump yard to dump garbage collected in the weekly market. The petitioner states that now the respondents have decided to have a compost yard in the place. It is contended that if a compost yard is established, it will result in spreading of diseases. He also states that foul smell is emanating from the compost yard.
4. This Court vide order dated 08.01.2019 restrained the respondents from dumping any garbage or waste and on notice, 5th respondent has filed the counter.
5. The 5th respondent has submitted that out of five acres of land, which has been used for the weekly market, only 5 cents is being used for the purposes of compost yard. The respondents state that the vegetable waste generated from the market and nearby house is segregated here and manure is produced from bio-degradable waste in the compost yard.
6. The 5th respondent further states that under the 12th Finance Scheme 2005-06, Rs.1.80 lakhs has been allotted for the purpose of construction of compost shed, compound wall and water tank room and purchase of collection vehicle and that the work has been completed. http://www.judis.nic.in 4
7. The 5th respondent has further submitted that under Solid Waste Management Scheme scheme (Package-IV) 2014-15, Rs.16.47 Lakhs was alloted for the purpose of construction of compost pad with leachate drain, leachate collection well and 1/3 area roofing and storage shed at compost yard in Muthur Town Panchayat and that the work has been completed.
8. It is also submitted by the 5th respondent that in order to ensure further protection, Rs.66 Lakhs have been alloted in the Solid Waste Management Scheme 2018-19, for the purpose of construction of Windrow Platform with Shed, Resource Recovery Shed, Light, Toilet etc., and the said process would make the area more eco-friendly and the composting process would not cause any inconvenience / pollution related problems to the general public.
9. The 5th respondent in the counter has further submitted that the use of the said area for the purpose of composting and providing organic manure will serve the promotion of agriculture and the agriculturists / farmers. The production of organic manure falls under white category and as such, the biodegradable waste collected per day is only around 400-500 kg and the same is converted to manure and used for agriculture purpose. The waste is segregated at the source and collected for composting. It is stated that there is a separate Solid Waste Dump Yard, 3 km from main Town, wherein other http://www.judis.nic.in 5 forms of waste, i.e., non bio-degradable waste, are brought and segregated and disposed. The 5th respondent submits that the area measuring an extent of 5 cents is only used for the purpose of composting agricultural and such other biodegradable waste produced in the Sandhai and Town area.
10. Heard the learned counsel for the parties and perused the materials available on record.
11. Having a proper waste management program is one of the biggest challenges which is being faced by any Municipality/Panchayat. Courts can take judicial notice of the increase in the industrial, commercial and residential waste. Due to rapid urbanization, virtually no space is available for dumping waste. Further, as stated by the respondents, there is a separate Solid Waste Dump Yard, 3 km from main Town, wherein other forms of waste, i.e., non bio-degradable waste, are brought, segregated and disposed of. Out of 5 acres, area measuring an extent of 5 cents is only used for the purpose of composting, that too, only agricultural and such other biodegradable waste produced in the Sandhai and Town area. The Panchayat therefore, cannot be found fault with for converting portions of weekly market into compost yard. It is also the duty of the Panchayat to ensure that the weekly market is maintained properly and that the entire area is not converted into dumping yard.
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12. Similar issues have been raised before this Court in the Writ Petitions challenging conversion of the park to micro compost yard. This Court, by its order dated 08.11.2017 in W.P.No.26704, 25653 and 26720 of 2017 in the case of Janakar Vs. The Commissioner, Hosur Municipality, Hosur, has observed as under:-
12. The relief sought for in these Writ Petitions is to remove the encroachment made in the area earmarked for park as per the site plan of the Tamil Nadu Housing Board, Phase VIII New ASTC HUDCO, Hosur, approved by the Director of Town and Country Planning. In the above said case, the learned Judge has categorically observed that no one can encroach the public place earmarked and the residents have to maintain the public amenities such as street, park or road earmarked at the time of approving the plan. When once the land has been developed into housing plots, it is the duty of the Commissioner of the Municipality to maintain the street, road, or park and such other public amenities without any encroachment. What has been stated is that private parties are not supposed to encroach on the land. 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. The compost yard in a small portion of the park, cannot be said to be an encroachment, as the Municipality has not encroached upon any private property. It is pointed out by the learned counsel for the petitioners that there is no alternative site identified for compost yard. 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 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 http://www.judis.nic.in to maintain healthy atmosphere, and if they should not 7 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 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.
13. Similarly, the Division Bench of this Court by its order dated 14.03.2018 in W.P.No.32938 of 2017 in the case of T.G.Ruthramani, Secretary, Poonamallee Nanbargal Nagar, Veettu Manai Urimaiyalargal Nalasangam, Poonamallee, Thiruvallur District, Chennai, Vs. The Member Secretary, Chennai Metropolitan Development Authority, Thalamuthu http://www.judis.nic.in 8 Natarajan Maligal, Egmore, Chennai, has observed as under:-
One cannot ignore a primordial fact that interests of individuals/sangam/society may not come in the way of the interest and welfare of the public. To put it succinctly, the interest and welfare of the society is paramount. This Court, also taking note of the detailed counter affidavit filed by the fourth respondent/Municipality and also the contentions projected on either side, holds that the present writ petition filed by the petitioner/Sangam sans merit.
14. This Court, by its order dated 22.01.2018 in the case of M.S.Rangarajan Vs. The Pammal Municipality, Pammal, Chennai, has observed as under:-
14. According to the 1st respondent/ Municipality, the playground in question was not maintained properly. As per the Municipal Solid Waste Rules, 2016, the local body is required to set up Municipal Solid Waste handling facility as well as Micro Composting Facility within a small geographical area, so that the highly bio-degradable wastes, such as vegetables, fruits and food waste can be reused by means of micro composting, where, the end-product viz.
manure can be effectively used for gardening and agriculture. It is the further case of the 1st respondent/Municipality that the Micro Composting facility is to occupy only a meagre portion of the playground with a Toilet for the workers engaged in the composting facilities to prevent open defecation in the area, apart from a small storage room for the safe storage of the packaged manure meant for disposal.
15. While making a layout, it is now mandatory to reserve 10% of the total land for public purpose excluding the land for streets and roads within the layout. But, the same has not been done in the case on hand, as the layout was approved earlier to the Development Rules. Though the petitioner contends that the setting up of Micro Compost Plant in the http://www.judis.nic.in playground in question is bound to create irrepairable 9 and non-reversible pollution of air, land, ground water, besides emanating unbearable, filthy and dangerous odour, it is the case of the 1st respondent/Municipality that the waste generated by the residents of the petitioner's layout and the immediately surrounding areas, are being dumped by them in and around the Playground space itself.
16. Though the petitioner has raised genuine issues as regards pollution of all sorts due to the setting up of Micro Compost Plan in the Playground, this Court opines that the garbage that is dumped in and around the layout and playground, will be collected by the workers of Micro Compost Yard and segregated into bio- gradable wastes and non-bio-degradable wastes, to ensure that the place is neat. As regards pollution, the 1st respondent/ Municipality, in paragraph 9 of its counter affidavit, has clearly stated that the composting will be carried out in hermetically constructed tubs using bricks and concrete of proper specifications for water proofing and will be self- contained to prevent any spread of decaying matter or leachate into the surrounding environment.
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 Reserve is the lung space and setbacks are for the purpose of rain harvest, Micro Compost Yards are essential for disposal of the waste, http://www.judis.nic.in so that it will not endanger the health of the citizens, 10 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.
22. In view of the above and taking into account the submissions of the 1st respondent/Municipality that the Micro Compost Yard, that is to be set up in the Playground in question, will be neatly maintained without any pollution and that only a meagre portion of the Playground is required for setting up of Micro Compost Yard, this Court finds no reason to interfere with the impugned tender notice published by the 1st respondent/Municipality.
23. It is made clear that if the Micro Compost Yard that is to be set up in the Playground in question is not maintained properly, the officials, who are in- charge of that place during the relevant period shall be dismissed from service, on the ground that the Officer http://www.judis.nic.in has failed to maintain absolute integrity, devotion to 11 duty and that he has done the work of unbecoming of a member of his service.
15. As noticed in the above said judgments, it is the duty of the Municipal authorities to ensure that there is no nuisance created to the residents. The authorities shall ensure that necessary arrangements have to be done regularly to avoid mosquitoes breeding in the portion of weekly market and also maintain hygiene and cleanliness. Further, as submitted in the counter, 5th respondent should make the area more eco-friendly and the composting process would not cause any inconvenience / pollution related problems to the general public.
16. Accordingly, this Writ Petition is dismissed. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
(S.M.K., J.) (S.P., J.) 16.04.2019 Index: Yes.
Internet: Yes ars http://www.judis.nic.in 12 S.MANIKUMAR, J.
AND SUBRAMONIUM PRASAD, J.
ars To
1. The District Collector, Tiruppur District.
2. The District Environmental Engineer, Tamil Nadu Pollution Control Board, Kumaran Road, Tirupur - 641 601.
3. The Director of Town Panchayats, Kuralagam, Chennai - 600 108.
4. The Assistant Director of Town Panchayats, Tiruppur District.
5. The Executive Officer, Muthur Town Panchayath, Kangayam Road, Muthur, Tiruppur District.
WP No.17 of 2019 and WMP No.12 of 201916.04.2019 http://www.judis.nic.in