Madras High Court
B.Jaganmohan vs The District Collector on 15 March, 2019
Bench: S.Manikumar, Subramonium Prasad
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.03.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD
W.P.No.4438 of 2019
W.M.P.No.4499 of 2019
B.Jaganmohan .. Petitioner
Vs.
1. The District Collector,
Vellore District,
Vellore.
2. The Commissioner,
Arcot Municipality,
Arcot, Vellore District. .. Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India, issuance of a writ of Mandamus, directing the 2nd respondent not
to remove the park situated in T.S.No.10/3 & 10/4, in Block No.15, Ward-
D of the Arcot Town, Vellore District and not to put up or construct any
garbage dumping yard or any other releated unit/plant in the aforesaid
place.
For Petitioner : Mr.W.M.Abdul Majeed
For Respondents : Mr.Akil Akbarali
http://www.judis.nic.in
Government Pleader
2
ORDER
(Order of this Court was made by S.MANIKUMAR, J.) Instant public interest litigation has been filed for a writ of Mandamus, directing the 2nd respondent not to remove the park situated in T.S.No.10/3 & 10/4, in Block No.15, Ward-D of the Arcot Town, Vellore District and not to put up or construct any garbage dumping yard or any other releated unit/plant in the aforesaid place.
2. It is the case of the petitioner that he is a permanent resident of Rajagopalan Street, Arcot Town and abutting the Street, a park is situated in T.S.No.10/3 & 10/4, in Block No.15, Ward-D of the Arcot Town. Said Park is having an extent of 817.75 sq.mts and is situated in a busy locality. The nearby locality of Boopathy Nagar and Lakshmi Nagar are predominantly residential localities. Residents of these locality and people from various other localities throng the said Park for their morning and evening walks, physical fitness - exercises, children amusements. In fact, the Directorate of Town and Country Planning, while according approval to Boopathy Nagar lay-out, has given approval only on the basis that the said land with such measurement is allotted for Park. The purchasers of the plots in the said lay-out have also purchased their http://www.judis.nic.in 3 respective plots and constructed their houses, on those plots, only on the terms as found in the DTCP approved, in which the said land was allotted for Park. For all these years, residents of the locality as well as general public have been utilizing the said land only as a Park and the lung -
space in the heart of Arcot town.
3. While this being so, the Commissioner, Arcot Municipality, Arcot, Vellore District, 2nd respondent herein, suddenly seems to have drawn up some bizarre plan to raze down the Park and construct a garbage collecting yard for Arcot Town. Park serving as a lung- space for the residents in the heart of the sprawling Town for several decades, is suddenly tried to be converted into a garbage dumping ground, inviting all the health hazards and onslaught of diseases. Basis is not known.
Therefore, the petitioner has caused a legal notice on 21.01.2019 to the respondents and to the Director of Town and Country Planning as well as to the Chief Minister Special Cell. In this regard, general public of the locality has sent a joint representation, dated 22.01.2019 to the respondents herein, as well as to the other Authorities, requesting not to convert the Park area into a garbage dumping ground.
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4. However, on 22.01.2019, the Commissioner, Arcot Municipality, Arcot, Vellore District, 2nd respondent herein, her subordinates and official of the Municipality, suddenly came to the Park, with all the men and materials and started preparations to pull down the Park. Converting the Park into a garbage dumping ground would seriously affect the health of the residents of the locality, apart from causing severe damage to the air and water bodies in the locality. Municipality had completely lost sight of the fact that the said park is the only lung space in the vicinity and serves as a pollution reducer, life booster to several hundreds of people living in the locality and who were thronging the Park for their fitness portion. The 2nd respondent has also failed to see that the said plot has been allotted and reserved only for the purpose of park purpose and not otherwise. According to the petitioner, even the said land was gifted to the 2nd respondent only for the said purpose and therefore, the same cannot be put to any other purpose. Even funds have already been allotted for construction of garbage dumping yard. Hence, the present writ petition is filed, for the relief, as stated supra.
Heard Mr.W.M.Abdul Majeed, learned counsel appearing for the petitioner and Mr.Akil Akbarali, learned Government Advocate appearing for the respondents and also perused the materials available on record. http://www.judis.nic.in 5
5. Earlier, in a decision in M.G.M.Nagar Nala Munnetra Sangam v. The Commissioner, Municipal Authority [W.P.No.12779 of 2018, dated 11.12.2018], we considered a similar prayer to stop the construction and dumping wastages of plastic or house hold articles in a park, midst of a residential area and while dismissing the said writ petition, ordered as hereunder:
"9. Having a proper waste management program is one of the biggest challenges which is being faced by any Municipality. 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. The Municipalities have therefore to balance the competing interests of having parks/ lung space on one hand and dumping yards on the other hand. The Municipalities therefore cannot be found fault with for converting portions of parks in to dumping yard. It is also the duty of the Municipality to ensure that the parks are maintained properly and that the entire park is not converted into dumping yard. The majority of the park is being kept intact and only a small portion of the park is being utilized for the compost yard . 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 http://www.judis.nic.in Commissioner, Hosur Municipality, Hosur, has observed as 6 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.
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13. The compost yard in a small portion of 7 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 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 http://www.judis.nic.in fogging operations and other measures are being 8 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 http://www.judis.nic.in prosecution as per law."9
10. 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 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.
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 http://www.judis.nic.in geographical area, so that the highly bio-10
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 playground in question is bound to create irrepairable 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, http://www.judis.nic.in are being dumped by them in and around the 11 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.
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18. The Apex Court has categorically held 12 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, 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. http://www.judis.nic.in Though, strictly speaking, Development Rules 13 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 http://www.judis.nic.in Yard, that is to be set up in the Playground in 14 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 has failed to maintain absolute integrity, devotion to duty and that he has done the work of unbecoming of a member of his service."
11. 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 the Municipal Solid Waste Management Plant/Transfer Station is to be cleaned twice a day and is to be done very regularly to avoid mosquitoes breeding in the portion of park. It is the duty of the authorities to ensure the park to maintain properly. The Municipality is directed to ensure that the remaining area of the park is developed into a well maintained park. It is also directed that footpath and green belts and play equipments should be installed in the park. If the park is not maintained, it will be taken as http://www.judis.nic.in contempt of the orders of this Court.
1512. Accordingly, this Writ Petition is dismissed. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed."
6. Order made in W.P.No.12779 of 2018, dated 11.12.2018, squarely apply to the instant writ petition. Applying the same, instant Writ Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed.
(S.M.K., J.) (S.P., J.) 15.03.2018 Index: Yes/No Internet: Yes/No skm To
1. The District Collector, Vellore District, Vellore.
2. The Commissioner, Arcot Municipality, Arcot, Vellore District.
http://www.judis.nic.in 16 S. MANIKUMAR, J.
AND SUBRAMONIUM PRASAD, J.
skm W.P.No.4438 of 2019 W.M.P.No.4499 of 2019 15.03.2019 http://www.judis.nic.in