Madras High Court
No.10/2 vs The Government Of Tamilnadu on 1 April, 2019
Bench: S.Manikumar, Subramonium Prasad
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.04.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD
W.P.No.8833 of 2019
and
W.M.P.No.9398 of 2019
N.Pannagasayanan
Secretary,
Jayanagar Residents Welfare Association,
Registered under Societies Registration Act
bearing Registration No.235 of 2002,
No.10/21, Jaya Nagar East - West Road,
Tirupattur, Vellore District.
Pin Code : 635 601. .. Petitioner
Vs.
1.The Government of Tamilnadu
Represented by its Secretary
Municipal Administration and
Water Supply Department,
Fort.St.George, Chennai - 600 009.
2.The District Collector,
Vellore District.
3.The Commissioner,
Tirupattur Municipality,
Tirupattur Town, Vellore District. .. Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India, issuance of a Writ of Mandamus, forbearing the respondents from
http://www.judis.nic.in
converting the park site land measuring an extent of 14400 sq.ft in Survey
2
No.12, Block No.2 of Tiruppattur Town, Sivaraj Pettai, at Yahaya Lay out
Approval No.38 of 1976, Jaya Nagar, Tirupattur Town, Vellore District,
into a solid waste dumping yard or for any other purpose and to develop
and maintain the park.
Petitioner : Mr.S.Shanmugasundaram
For R1 and R2 : Mr.Akhil Akbarali,
Government Advocate
For R3 : Mr.P.Srinivas,
Standing Counsel for Municipalities
ORDER
(Order of this Court was made by S.MANIKUMAR, J.) Claiming himself to be a public interest litigant, Mr.N.Pannagasayanan, Secretary, Jayanagar Residents Welfare Association, has filed the instant public interest litigation for a Mandamus, forbearing the respondents, from converting the park site land measuring to an extent of 14400 sq.ft in Survey No.12, Block No.2 of Tiruppattur Town, Sivaraj Pettai, at Yahaya Lay out Approval No.38 of 1976, Jaya Nagar, Tirupattur Town, Vellore District, into a solid waste dumping yard or for any other purpose and to develop and maintain the park.
http://www.judis.nic.in 3
2. Petitioner has contended that Yahaya Lay out has been approved by the Commissioner, Tirupattur Municipality, the 3rd respondent herein, in Lay out Approval No.38 of 1976 in No. F1 1472 / 1976 dated 24.7.1976.
There are totally 96 number of residential plots in the aforesaid approved layout now known as Jaya Nagar and the residents have formed a registered association called as Jayanagar Residents Welfare Association in the year 2002. There are 53 number of houses in the aforesaid layout.
3. Petitioner has further submitted that in the aforesaid approved lay out, to an extent of 14400 sq.ft of land in Survey No.12, Block No.2 of Tiruppatur Town, has been earmarked as park site. The said park site has also been handed over to the Commissioner, Tirupattur Municipality, Vellore District/3rd respondent herein. The aforesaid place is being utilized as a park by the local residents, though the respondents did not take steps to develop the park. The local residents used to walk in the aforesaid park site and it is the only open space available to the local residents that is being used by them for recreational purpose. The children used to play in the open site.
4. Petitioner has further submitted that the petitioner's association executed a Gift Deed dated 29.03.2010 handing over the aforesaid 14400 http://www.judis.nic.in 4 sq.ft of park site land, to the 3rd respondent/Municipality and the same was registered, as Document No.3164 of 2010, in the office of the Sub -
Registrar, Tirupattur. Thus, the entire duty is on the respondents, to develop the same into a park for the use of local residents. But to the contrary, now the 3rd respondent, is collecting and dumping daily solid waste materials collected from house hold and making segregation of degradable waste and non-degradable waste with the help of the men working in the office of respondents 2 and 3. The same is highly objectionable to all the local residents. The same would cause serious health hazard to the local residents, who are staying nearby. Moreover, bad smell is also coming out of the same and the residents who are staying nearby are suffering a lot. He further submitted that due to the dumping of waste into park site on day to day basis, the local residents and children, are not able to utilize the park for walking and playing.
5. Petitioner has further submitted that several complaints were made by the local residents and the association to the respondents herein, no action was taken. The second and third respondents, are not heeding to the request of the petitioner and the local residents, that park should not be converted into a solid waste dumping yard. The respondents are duty bound to develop and maintain the park, as the lands is gifted http://www.judis.nic.in 5 for the aforesaid purpose only. In those circumstances, the petitioner has issued a legal notice dated 02.03.2018 through his advocate, to the respondents herein, asking them to stop the dumping of waste in the park site, to improve and maintain the park, but no action is taken. Therefore, the petitioner sent a representation dated 22.1.2019, to the Commissioner, Tirupattur Municipality, Vellore District, the third respondent herein, stating that it is illegal to dump waste materials in the park site. Though the same was acknowledged by the respondents, nothing happened. Hence, the petitioner has filed the instant writ petition, for the prayer stated supra.
6. On 29.03.2019, we ordered notice. For the prayer made in the writ petition, Mr.S.Shanmugasundaram, learned counsel for the petitioner, made submission.
7. On the averments, on instructions from the Commissioner, Tirupattur Municipality, Vellore District/3rd respondent herein, Mr.Akhil Akbarali, learned Government Advocate, submitted that out of 14400 sq.ft of land in Survey No.12, Block No.2 of Tiruppattur Town, Sivaraj Pettai, at Yahaya Lay out Approval No.38 of 1976, Jaya Nagar, Tirupattur Town, Vellore District, only 4300, sq.ft. of land alone is used for putting http://www.judis.nic.in 6 up a solid waste dumping yard, as per the rules, at a cost of Rs.61 lakhs.
Apart from the above site, there are three other places, where dumping yard is proposed. He submitted that in the remaining portion of the land, park would be maintained. He further submitted that this Court in similar cases, has permitted construction of dumping yards. For the above said reasons, prayed for dismissal of the writ petition.
8. Heard the learned counsel for the parties and perused the materials available on record.
9. Proceedings in Roc.No.18281/2018/DO1 of the Chief Engineer, Office of the Commissioner of Municipal Administration, Chennai, dated 27.09.2018, according technical sanction for construction of 4 Decentralized Micro Compost Centre at a cost of Rs.241.05 lakhs, under the Swatchh Bharat Mission-7th SHPC, Solid Waste Management Scheme 2018-19, is reproduced:-
PROCEEDINGS OF THE CHIEF ENGINEER, OFFICE OF THE COMMISSIONER OF MUNICIPAL ADMINISTRATION, CHENNAI-5 Present: Er.N.Natarajan, B.E., M.Tech., Roc.No.18281/2018/DO1, Dated:27.09.2018 http://www.judis.nic.in 7 Sub : Tirupattur Municipality - Swachh Bharat Mission-7th SHPC -
Construction of MCC (4 Nos.)- Solid Waste Management Scheme 2018-19 - Estimate Amount: Rs.241.05 Lakhs- Technical Sanction- Accorded- Regarding.
Read : 1. G.O.No.44 Municipal Administration and Water Supply department, (MAII) Dated: 24.02.2016
2.The Commissioner of Municipal Administration, Chennai Proceedings Roc No.22866/2018/P3 dated 23.08.2018.
3.The Commissioner, Tirupattur Municipality, Letter No.710/2018/E1 dated 23.08.2018
4.The Executive Engineer (Regional), Vellore Letter No.4481/2018/A3, dated 24.08.2018.
Order:
In the reference 3rd above, the Commissioner, Tirupattur Municipality has submitted the estimate for the following work sanctioned up under Swachh Bharat Mission-7th SHPC committee meeting held on 13.08.2018 for Construction of MCC and duly recommended and forwarded by the Executive Engineer (Regional) Vellore and requested to accord Technical Sanction. In the reference 2nd read above, Administrative Sanction has been accorded for the above said works by the Commissioner of Municipal Administration.
The estimate for the following works were scrutinized in this office with reference to the PWD and TWAD Schedule of Rates for the year 2018- 2019. In exercise of the powers conferred in the Government order 1st read above, Technical Sanction is hereby accorded for the following works with bill of quantities as per the details noted below subject to the following conditions.
Estimate Sl.No Name of wok Amount ER.No. (Rs.in Lakh) Construction of Decentralized Micro Compost Center 3 TPD Capacity at (Krishnagiri State Highway Road -
1 52.00 504/2018-19 Periyar Nagar) in Ward No.2 with necessary Compound Wall and approach Road in Tirupattur Municipality 2 Construction of Decentralized Micro 68.00 505/2018-19 http://www.judis.nic.in Compost Center 3 TPD Capacity at (Anna 8 Estimate Sl.No Name of wok Amount ER.No. (Rs.in Lakh) Nagar - Salem Road) in Ward No.2 with necessary Compound Wall and approach Road in Tirupattur Municipality Construction of Decentralized Micro Compost Center 3 TPD Capacity at (Rettaimalai Srinivasan Street) in Ward 3 60.05 506/2018-19 No.01 with necessary Compound Wall and approach Road in Tirupattur Municipality Construction of Decentralized Micro Compost Center 3 TPD Capacity at (Kovilur Road - Eggiya Layout) in Ward 4 61.00 507/2018-19 No.03 with necessary Compound Wall and approach Road in Tirupattur Municipality TOTAL 241.05 CONDITIONS:-
1. The works should be carried out as per the plan and Estimates approved by the Chief Engineer.
2. All guidelines stipulated in the Tamil Nadu Transparency in Tender Act 1998 and Rules 2000 should be followed. Tender should be invited following two cover system.
3. All works should be carried out as per TNBPC specifications.
4. The Executive Engineer (Regional), Vellore is permitted to accord design approval for the above work, and permitted to ascertain the structural design before execution.
5. Prior permission should be obtained from the Technical Sanction Authority for additional items/ additional quantities of works to be executed if necessary.
6. The Executive Engineer (Regional), Vellore is permitted to Test check the above works.
7. During execution of RCC works, concrete cubes should be http://www.judis.nic.in prepared and quality should be checked in the Government Engineering 9 Colleges / Authorized Laboratories and test certificates should be kept on record.
8. All the construction materials including cement, steel, water and aggregate, bricks, etc., for the above works should be tested in the Government owned / approved lab to ensure the quality and strength and test certificate should be obtained.
9. Completion report approval should be obtained from the Chief Engineer, O/o. CMA, Chennai-5 before making final bill.
10. Necessary register to be maintained for recovering the GST from the estimate and remitted to the concerned department.
11. The Work Should be entered in the asset register along with payment Sd/-N.Natarajan Chief Engineer.
To : The Commissioner, Tirupattur Municipality Copy to: The REE / RDMA Vellore Region // Forwarded by order// Assistant Executive Engineer"
10. Work order issued by Tirupattur Municipal Commissioner in Roc.No.710/2018/E1, dated 09.11.2018, is reproduced:-
jpUg;gj;Jhu; efuhl;rp Mizahsu; mtu;fspd; bray;Kiwfs;
Kd;dpiy:- jpUkjp/,uh/re;jpuh M.Com.,
e/f/vz;/710-2018-,1 ehs;/09/11/2018
bghUs;:- Jha;ik ,e;jpa jpl;lk; (jplf;fHpt[ nkyhz;ik gzp) ? jpUg;gj;Jhu;
efuhl;rp ? Ehz;Qqh cunrfupg;g[ ikak; mikf;Fk; gzpf;F gzp cj;jut[ tH';Fjy; rk;ke;jkhf/ ghu;it:- 1/ efuhl;rp epu;thf Mizau; brd;id mtu;fspd; fojk;
e/f/vz;/22866-201-P3 ehs;/20/08/2018 2/ ,e;efuhl;rpapd; efu kd;w jPu;khdk; vz;/182 ehs;/20/08/2018 3/ ,e;efuhl;rpapd; xg;ge;jg[s;sp mwptpg;g[ ehs; 03/10/2018 4/ j';fspd; xg;ge;jg;g[s;sp ehs; 22/10/2018 5/ j';fspd; Price bid xg;ge;jg;g[s;sp jpwf;fg;gl;l ehs; 07/11/2018 http://www.judis.nic.in 10 bghUs;:- Jha;ik ,e;jpa jpl;lk; (jplf;fHpt[ nkyhz;ik gzp) ? jpUg;gj;Jhu;
efuhl;rp ? Ehz;Qqh cunrfupg;g[ ikak; mikf;Fk; gzpf;F gzp cj;jut[ tH';Fjy; rk;ke;jkhf/ 6/ ,e;efuhl;rpapd; efu kd;w jPh;khdk; vz;/244 ehs; 09/11/2018 ????
cj;jut[ ,e;efuhl;rp vy;iyf;Fl;gl;l gFjpapy; Jha;ik ,e;jpah jpl;lk;. (jplf;fHpt[ nkyhz;ik gzp) 2018?19 epjpahz;od; fPH;fhQqk; gzp bra;a ghu;it 1?y; fhQqk; efuhl;rp epu;thf Mizau; brd;id mtu;fspd; fojj;jpd; go. ghu;it 2?y; fhQqk; efu kd;w jPu;khdj;jpy; mDkjp tH';fg;gl;Ls;sJ/ nkyk; ,g;gzpf;F ghu;it 3?y; fz;Ls;s ,e;efuhl;rpapd; xg;ge;jg;g[s;sp mwptpg;g[ fojj;jpd; go. ghu;it 4?y; fhQqk; 22/10/2018?k; njjpapy; xg;ge;jg[s;spapid ghu;it 6?y; fhQqk; ,e;efuhl;rpapd; efukd;w jPu;khdj;jpy; m';fPfupf;fg;gl;ljd; mog;gilapy; epge;jidfSf;Fl;gl;L bra;a ,jd; K:yk; gzp cj;jut[ tH';fg;gLfpwJ/ ntiyapd; tptuk; kjpg;gPL bjhif gzpKof;f (,yl;rj;jpy;) ntz;oa fhyk;
rpg;gk; IV thu;L vz; 3 (nfhtpYhu; nuhL vfpah ny mt[l;) gFjpapy; Ehz;Qqhapu; cu 61/00 45 ehl;fs; nrfupg;g[ ikak; cl;g[w rhiy kw;Wk;
Rw;WRtu; mikj;jy; gzp epge;jidfs;
1) ,e;j cj;jut[ fpilf;fg;bgw;wt[ld; ntiyapid bra;tjw;F xg;ge;j gj;jpuk;
U:/20-? kjpg;gs [ ;s Kj;jpiu jhspy; vGjp bfhLf;f ntz;Lk;/
2) ,g;gzpf;fhd nltzp bjhifapy; 2% rjtPjj;jpy; 1% rjtPjj; bjhif tunthiyahf neuoahfnth bjhifahf brYj;jg;gl;Ls;sJ/ kPj brYj;j ntz;oa 1% rjtPjk; bjhifapid gl;oay; bjhif tH';fg;gLk; bghGJ gpoj;jk; bra;ag;gLk;/
3) cupa fhyj;jpy; gzpia bra;J Kof;f jtwpdhy; jhkjkhFk; xt;bthU ehspw;Fk; Mizahsu; epu;zapf;Fk; mguhjj; bjhifia xg;ge;jjhuu; brYj;j ntz;Lk; my;yJ xg;ge;jj;ij uj;J bra;J Jiw K:ykhf kW xg;ge;jk; K:ykhfnth gzp nkw;bfhs;s epfGk; gl;rj;jpy; Vw;gLk; ,Hg;g[fisa[k; xg;ge;jjhuu; brYj;j ntz;Lk;/ jtwpdhy; j';fsJ nltzpj; bjhifianah my;yJ ,ju tiffspnyh gpoj;jk; bra;ag;gLk;. njitg;god; rl;l uPjpahf tN:ypf;f eltof;if vLf;fg;gLk;/
4) nkw;fz;l epge;jidfis kPwpdhy; xg;ge;jk; uj;j bra;a eltof;if vLf;fg;gLk;/
5) nkw;fhQqk; gzp xg;ge;j tpjpKiwfspy; bjuptpf;fg;gl;Ls;sthW vt;tpj http://www.judis.nic.in FiwghLfs; ,y;yhkYk;. xg;ge;j tpjpKiwfis kPwhkYk; ,Uj;jy; ntz;Lk;/ 11
6) muR kw;Wk; cau; mjpfhupfs; mt;tg;bghGJ gpwg;gpf;fg;gLk; cj;jut[fs; ,ju xg;ge;j tpjpf;s gpd;gw;wg;gLk;/
7) gzpfs; midj;Jk; Kof;fg;gl;l gpd; mYtyu;fSld; gl;oay;fis mDkjp bgwg;gl;l gpd; jhd; gl;oay; bjhif tH';fg;gLk;/
8) gzp Kot[ww; jk; xg;ge;j epWtdj;jpw;F tH';fg;gLk; gl;oay; bjhifapy; 5% rjtPjk; bjhif ghJfhg;g[j; bjhifahf gpoj;jk; bra;ag;gLk; vd;W bjuptpf;fg;gLfpwJ/ ,jpy; 2/5% rjtPjk; bjhif ntiy KGikahf bra;J Koj;jgpwF Kot[r; rhd;W bgw;wJk; jpUg;gp tH';fg;gLk;/ kPjp 2/5% rjtPjk; bjhif efuhl;rpapf; fzf;fpy; ,Ug;gjhf guhkupf;fg;gLk; ,e;j bjhif xU tUlj;jpw;F gpwF ve;jtpj jzpf;if jil FiwghLfSk; ,y;iy vd;w gl;rj;jpy; jpUg;gp tH';fg;gLk;/
9) jpl;l khdpak; murplkpUe;J fpilf;fg;bgw;w gpd;g[ jhd; gl;oay; bjhif tH';fg;gLk;/
10) gzp Jt';Fk; Kd; gzp eilbgWk; nghJk; Kot[w;w gpd;dUk; g[ifg;glk; vLj;Jf; bfhLf;f ntz;Lk;/
11) rpbkz;l; fhd;fPupl; gpshf; (Concrete cube) 7 ehl;fs;. 28 ehl;fs; Mfpatw;wpid vLj;J muR bghwpapay; fy;YhupfsplkpUe;J (Ma;t[ Tlj;jpy;) fhd;fPupl; bray;ghl;od; juKk; typika[k; (Compressive Strength of Concrete) kw;Wk; nrhjid rhd;wpjH; bgw ntz;Lk;/
12) midj;J ntiyfSk; TNSS tptuf;Fwpg;gpd; mog;gilapy; nkw;bfhs;sg;gl ntz;Lk;/
13) midj;J fl;Lkhd bghUl;fs;. rpbkz;l.; fk;gp. ePu; kw;Wk; midj;J bghUl;fSf;Fk; nkny Fwpg;gpl;Ls;sgo muR fy;YhupfsplkpUe;J muR m';fPfhuk; bgw;w Ma;t[ Tlj;jpy; juKk; typik kw;Wk; nrhjid rhd;wpjH; bgw;W efuhl;rp mYtyfj;jpy; rku;gpf;fg;gl ntz;Lk;/
14) midj;J ntiyfSf;Fk; mjd; fl;olj;jpd; jd;ikf;F Vw;g Stage by stage braw;bghwpahsu; ntYhu; mtu;fspd; nkbyhg;gk; (Test Cheque) bgwg;gl;l gpd;dnu gpy; bjhif tH';fg;gLk;/
15) nkw;go kjpg;gPl;oy; cs;sgo ,Uk;g[fs; (steel) midj;Jk; braw;bghwpahsu; mtu;fspd; Mnyhrid go cupa rhd;W bgw;w gpd;g[ jhd; Truss work bray;gLj;j ntz;Lk;/
16) Truss work ?y; cs;s midj;J ,Uk;g[ rhkhd;fSf;F Rivet Joint kl;Lnk gad;gLj;j gl ntz;Lk;/ njitg;gLk; gl;rj;jpy; kl;Lk; Welding bra;a ntz;Lk;/
17) kjpg;gPl;oy; cs;s gzpfis kl;Lnk bray;gLj;j ntz;Lk; kjpg;gPl;oy; ,y;yhj ve;j xU gzpapida[k; bra;a njit ,Ug;gpd; cupa mDkjp bgw;w gpd;dnu http://www.judis.nic.in gzpapid Jt';f ntz;Lk;/ 12
18) gzp bray;gLj;Jk; bghGJ ,lj;jpy; VnjDk; bghJkf;fsplkpUe;J Ml;nrgid Vw;gLk; gl;rj;jpy; efuhl;rp K:yk; khw;W ,lk; fhz;gpf;Fk; ,lj;jpy; gzpfs; bra;a ntz;Lk;/ Mizau;
jpUg;gj;Jhu; efuhl;rp
11. From the above it is under the Central Government Scheme, Construction of 4 Decentralized Micro Compost Centres have been proposed, resolution to the effect has been passed by the Municipality on 20.08.2018, technical sanction issued on 27.09.2018, tenders have been called for and finalised. Work order has been issued on 09.11.2018. Due procedure has been followed.
12. On the similar prayer, this Court in W.P.No.8048 of 2018, dated 11.12.2018, has ordered as hereunder:-
"6. 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 http://www.judis.nic.in compost yard . Similar issues have been raised before this Court in the 13 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 http://www.judis.nic.in residents in that area. As pointed out by the respondents, if the 14 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 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.
7. 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, http://www.judis.nic.in Secretary, Poonamallee Nanbargal Nagar, Veettu Manai Urimaiyalargal 15 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.
8. 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 http://www.judis.nic.in streets and roads within the layout. But, the same has not been done 16 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, 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 http://www.judis.nic.in environmental hazards. Ecology has been completely destroyed by 17 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. 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 http://www.judis.nic.in the modern era. Certainly development is required for our betterment 18 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 has failed to maintain absolute integrity, devotion to duty and that he has done the work of unbecoming of a member of his service.
9. 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. If the park is not maintained, it will be taken as contempt of the orders of this Court.
10. Accordingly, this Writ Petition is dismissed. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed."
http://www.judis.nic.in 19
13. Order made in W.P.No.8048 of 2018, dated 11.12.2018, squarely applies to the facts of this case. We are not inclined to issue a Writ of Mandamus. However it is made that the authorities should maintain the park. If the park is not maintained it will be treated as contempt of Court. Hence, writ Petition is dismissed. No Costs.
Consequently, the connected writ miscellaneous petition is closed.
(S.M.K., J.) (S.P., J.) 01.04.2019 Index: Yes / No Internet: Yes / No dm Note:
Issue order copy on 03.04.2019.
To
1.The Government of Tamilnadu Represented by its Secretary Municipal Administration and Water Supply Department, Fort.St.George, Chennai - 600 009.
2.The District Collector, Vellore District.
3.The Commissioner, Tirupattur Municipality, Tirupattur Town, Vellore District.
http://www.judis.nic.in 20 S. MANIKUMAR, J.
AND SUBRAMONIUM PRASAD, J.
dm W.P.No.8833 of 2019 and W.M.P.No.9398 of 2019 01.04.2019 http://www.judis.nic.in