Madras High Court
E.S.Aadithiyan vs The District Collector on 11 December, 2018
Author: Subramonium Prasad
Bench: S.Manikumar, Subramonium Prasad
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
ORDER RESERVED ON : 28.08.2018
ORDER PRONOUNCED ON : 11.12.2018
CORAM:
THE HON'BLE MR. JUSTICE S.MANIKUMAR
and
THE HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
W.P.No.8048 of 2018
and W.M.P.No.10032 of 2018
E.S.Aadithiyan ... Petitioner
Vs.
1. The District Collector,
Kancheepuram District,
Kancheepuram – 631 501.
2. The Commissioner,
Pammal Municipality, Pammal,
Kancheepuram District,
Chennai – 600 075. ... Respondents
PRAYER: Writ Petition has been filed under Article 226 of the Constitution
of India, praying in the nature of Writ of Mandamus to forbear the
respondents from construction, altering the nature, course and use of lands
comprised in Survey No.148 at Viswesapuram Layout, Pammal Village
marked for “Public Park”, in any manner or for any purpose and
consequently direct the respondents to restore and maintain the lands in
the condition and manner it existed prior to commencement of work by the
respondents.
http://www.judis.nic.in
2
For Petitioner : Mr.S.Sai Sathya
For 1st Respondent : Mr.T.N.Rajagopalan
Government Pleader
For 2nd Respondent : Mr.P.Srinivan
Standing Counsel
ORDER
SUBRAMONIUM PRASAD, J.
The instant Public Interest Litigation has been filed for a Writ of Mandamus forbearing the respondents from construction, altering the nature, course and use of lands comprised in Survey No.148 at Viswesapuram Layout, Pammal Village marked for “Public Park”, in any manner or for any purpose and consequently direct the respondents to restore and maintain the lands.
2. The Writ Petitioner is a resident of Viswesapuram, Kancheepuram district. The approved layout for Viswesapuram was made in the year 1972. The said layout had designated the area comprised in S.No.148 as a Public Park. The said lands are classified as a “Primary Residential Area”. It is stated that the respondent authorities are now constructing a Municipal Solid Waste Management Plant/ Transfer Station in http://www.judis.nic.in 3 the said area without any permission. It is stated that it is not open to the Municipality to utilise the area earmarked for park for the purpose of Solid Waste Management Plant. It is stated that they had purchased the land with an idea that there will be a park, which could be used for children to play and for the old to relax in the park. It is stated that the construction of the Municipal Solid Waste Management Plant would cause nuisance to the persons living in the area.
3. The Municipality has filed its Counter Affidavit. In the counter, it is stated that though the layout approval in S.No.148 in Viswesapuram Village was earmarked for park, it has not been used as a Park and that the relevant portion of the Counter reads as under:-
11. In fact several Applications are pending with regard to the dumping of wastes in the Municipal Compost yard in Survey No. 151 Pammal Village where the existing dump yard is situated as the problem of handling the huge volume of wastes was not possible by simple open dumping, the various steps have been taken towards the proper disposal of the solid wastes and the Solid Waste Management Rules 2016 have been notified in this regard. Following the said rules the State Government has also issued various directions for the handling of wastes by particular processes suited for the concerned Local bodies as per the local requirements and conditions. The disposal of wastes is now only to be done in source segregated manner by the individual residents and the non-biodegradable wastes are to be disposed in public receptacles only on certain days. The required Solid Waste Bye-law following the 2016 Rules has also been notified in the District Gazette. An application had http://www.judis.nic.in 4 been filed before the National Green Tribunal, Southern Zonal Bench and the same has also been disposed of by the Tribunal with a specific direction not to dump the solid wastes in the S.No.151, Pammal Village, and the work of restoring the adjoining lands that are belonging to the private persons have been directed to be restored to their original status. Due to the objections raised and the Application filed by some of the plot owners adjacent to S.No.151, the further Dumping in said yard has been directed to be closed. After this, the entire daily collection of garbage is being taken to the common Integrated Solid Waste Plant at Venkatamangalam for processing into Refuse Derived Fuel.
12. It is submitted that the Park site in layout that has been referred to is presently vested with this respondent and this respondent in furtherance of its duties to collect and properly dispose off the Solid wastes has set up 7 Micro compost plants in the Pammal Municipal area. This apart the common solid waste Management Plant in partnership with Pallavaram, Tambaram, Sembakkam is not under operation.
The said combined plant with take care of the bio non degradable and other solid wastes for processing into fuel and other recyclable uses.
13. The averments of the petitioners in the para 3 are denied and stated that the land reserved for the park has been lying vacant without any use. Now in order to process the highly decompostable wastes such as kitchen and vegetable wastes collected in each surrounding area, small Micro Compost Plants are being set by this respondent throughout the Pammal Town. As of now 7 plants are to be established including that of the Plant in the Park site in question. Of the seven locations, 6 Plants are completed and one is under construction.
14. It is submitted that till date, there are no facilities in the said playground, that were created by the petitioner or association of residents of the layout. The entire park was in disuse. The claim of the petitioner in his affidavit as if the Respondent herein is going to dump garbage in the park site is a uninformed and careless statement.
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15. The purpose of gifting the Park site, to this respondent is for the use of the site for the Public benefit. In fact, the Park site is actually being developed as a recreational facility at a cost of Rs 25 Lakhs and the said work is part of the project to provide for the Micro Compost Plant at the park site. The total extent of the park site is 1760 Square meters and the extent of the MCC is 331 Square meters, which is about 1 sixth of the total area of the park and it is a meagre extent compared to benefits the said facility will have on the overall environment.
16. It is submitted that as per the requirements of the Solid Waste Management Rules 2016 the authorities such as the respondent herein are bound to collect and dispose of solid waste generated within the municipal area using various methods permissible in the said rules.
17. The Bio-Degradable and non-biodegradable waste should be collected separately at source and properly disposed of. The said rules require that all Bio-degradable waste such as vegetable and house hold waste are to be processed using composting on windrows, platform and disposal of the end products as manure or other re-used materials.
18. The non-biodegradable materials are to be handled by Solid Waste Management facilities wherein the solid waste is properly handled for reuse and recycling and only the inert waste that are not more than 10% of the total solid waste is to be sent for land fill. In the Pammal Municipal area the total generation of Solid Waste per day is 50 Metric Tons (MT) from 21wards. On segregation the bio- degradable organic waste of about 24 MT per day is to be disposed off by the process of composting or windrow process. Since the rule requires segregation at source and the vegetable waste is highly de compostable the said source and vegetable waste is highly de compostable the said wastes are required to be handled and processed within a short time from the collection in ensuring proper reuse of the waste and to prevent unnecessary accumulation.
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19. A per the said Municipal Solid Waste Rules 2016 it is required for the local body to set up Municipal Solid Waste handling facility as well as Micro Composting Facility. The Micro Composting facilities are to be setup within a small geographical area so that the highly bio-degradable wastes such as vegetable, fruits, food waste can be reused by means of micro composting where the end-product, namely manure can be effectively used for gardening and also agricultural users. On the other hand non-biodegradable waste will be handled separately for reuse and recycling which is already segregated at source by way of primary collection and there will not be any dumped garbage's in the site. Further as per the above rules, the solid waste management bye laws have been notified and solid waste is to be segregated and separately deposited by the individual households. The non- bio-degradable waste are to be disposed only on Wednesday's and such non-bio-degradable waste is handled separately so that the non-bio-degradable waste that are left out in the streets of the residential areas will not spread any adour. The bio-degradable waste is separately handled and subjected to composting using enzymes and inoculum.
20. After the process of composting in the Micro Compost Plants, Odourless manure is produced within an enclosed place and is mixed with soil and packaged and subsequently disposed of for use as manure. In most cases, the Manure is used in the park itself as a method of encouraging the green cover in the park site.
21. The Pammal Municipality has been divided into 7 Zones for the purpoe of establishing micro-composting facility and one such facility has been started in the part site within the layout Visvesapuram. These facilities will serve for the proper disposal of the household wastes collected within the short distance of a few hundred meters. The Primary collection of the solid waste for transportation to the micro compost plant will be by-means of non-polluting electric vehicles. The waste collected from the surrounding area will be brought to the composting facility and it will be immediately put into the composting process and there will not be any odour or insects from the waste. There will not be any dumping or accumulation of waste apprehended by the petitioner.
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22. 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. In-order to protect, the said tubs from the elements a roof has to be provided over the structure which will also consist only of easily removable Zinc Sheets.
23. It is submitted that the area required for setting up the micro composting facility is less than 331 Sq.M. On the other hand the total area available as a park site is to extent of 1760 Square Meters or about 18,938 Square feet. The Micro compost yard is only of an extent of 3562 square feet, which is a very meagre extent compared to the total area. Further over the rest of the park site, this respondent has already undertaken the development of the Park with Compound wall, walking path, green cover, Children's play equipment, etc. has been provided.
24. The project of construction of the MCCs in the Pammal Municipality has been granted Administrative Sanction in the proceedings of the Commissioner of Municipal Administration dated 21-2-2018 and Technical Sanction Dated 21-2-2018. Resolution Number 240 dated 31-1-18 was passed sanctioning the construction of the MCCS in various localities, including ward No 7. Initially the site in Nandhanar Street was chosen and Resolution No 183 dated 31-8-2017 was passed. Since there was huge public outcry in the said Street, alternate site was chosen in S.No.148, Visvesapuram and the present site was chosen. This site is near the existing Compost Yard in S.No. 151. In the 4 other sites also in view of the objections of the Public, the location was changed and the Resolution Number 240 dated 31-1-2018 was passed. If all the residents object to the establishment of the MCCs, then it is not possible to implement the project that is aimed at alleviating the situation of the Municipality that is at present suffereing from lack of proper facilities for the disposal of the Solid Wastes. After the disposal of the previous Writ Petitions relating to the SBI colony and Jain Housing site, the 6 out of 7MCCs have been completed and http://www.judis.nic.in 8 are in operation.
25. The Micro composting facility is to occupy only meagre portion of the park site. Over the rest of the Park, this respondent has established the proper recreational facility for the use of the residents and it will consist of paved walk ways, children's play equipment, sports facilities, volley ball court, etc. The Micro composting facilities will also consist of public convenience for the residents as well as the workers engaged in the composting facilities to prevent any open defecation in the area. This apart there will be small storage room for the safe storage of the packaged manure for storage before disposal.
27. After the notification of the 2016 Municipal Solid Waste Rules the State Government has directed the implementation of the same by various methodologies. The Steering Committee formed under the said Rules after extensive deliberations has formulated various methodologies suited for individual Local Bodies and as per the same for the respondent herein the proper methods for disposal of segregated solid waste has been derived as Micro Composting and waste processing. The waste processing has been set out to be the integrated Micro Solid Waste facility at Venkatamangalam used along with other Local Bodies namely Tambaram and Pallavapuram. The integrated facility will handle non bio-degradable waste and the bio-degradable materials will be processed at the 7 Micro Composting Centres within the Municipal limits.
28. There will not be any inconvenience to the residents who are living even right adjacent to the Micro Compost Plant as the process itself involves odourless technology and disposal of packaged of end product. The said Micro Composting Method is already successfully implemented in Trichy and Vellore Corporation areas in much more highly populated localities. The various apprehensions of the Writ Petition are all misconceived and without proper understanding of the waste disposal facility.
30. After successful completion of Micro Compost Centre the dumped waste in the open ground will not be accepted. Only segregated bio degradable waste will be http://www.judis.nic.in 9 taken to the micro compost centre and it will process with proper scientific technology and disposed of and there will not be any dumping or accumulation of waste. Without the said facility the handling of the solid waste generated by the residents will be impossible. Further the establishment of the Micro Compost Plant in the Park site is only due to the fact that there is no other land available within the Municipal limit. Of the 7 Micro Composting Plant 1 is situated in Park site of the petitioners layout, and other 6 in similar layouts.
4. Heard the learned counsel appearing for both sides and perused the materials available on record.
5. The Counsel for the petitioner states that the area which has been earmarked for a park cannot be used for any other purpose.On the other hand, the learned counsel for the Municipality would contend that due to urbanization there is hardly any land left for use as a compost yard. It is argued that it is also one of the primary responsibilities of local Administrative Authorities to ensure proper management of waste generated by different categories of waste producers (house holds, commercial centres, institutions, industries, etc.,) It is contended by the learned for the Municipality that over the years the quantum of waste generated has increased in geometric progressions owing to increase in urbanization, population growth, change in life style etc.,. It is stated that http://www.judis.nic.in 10 the total extent of the park site is 1760 sq mtrs and the extent of the Micro Compost Centre is only 331 sq mtrs which is about one sixth of the total area of the park. It is also argued that efforts are being taken to ensure that the park is maintained properly. In fact in the counter it is mentioned that even before the commencement of the Micro Compost centre the park site has been without any maintenance or upkeep and the same has been in disuse and the Municipality is developing the same into a park at a cost of Rs.25 lakhs. It is stated that in the said park already compound wall and grills have been erected. It is also stated that apart from this, footpath and green belts and play equipments will be installed.
The learned counsel for the Municipality also contended that the writ petition should not be entertained in view of the alternate remedy available to the petitioner to approach the National Green Tribunal established under the National Green Tribunal Act.
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 http://www.judis.nic.in 11 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 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 http://www.judis.nic.in 12 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 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 http://www.judis.nic.in 13 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, 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.
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 http://www.judis.nic.in 14 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, 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 http://www.judis.nic.in 15 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, 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 http://www.judis.nic.in 16 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 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.
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10. 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.)
11.12.2018
asi/pkn
Index : Yes/No
Internet : Yes/No
Speaking Order : Yes/No
To
1. The District Collector,
Kancheepuram District,
Kancheepuram – 631 501.
2. The Commissioner,
Pammal Municipality, Pammal,
Kancheepuram District,
Chennai – 600 075.
http://www.judis.nic.in
18
S.MANIKUMAR, J.
and
SUBRAMONIUM PRASAD, J.
asi/pkn
W.P.No.8048 of 2018 and
W.M.P.No.10032 of 2018
.12.2018
http://www.judis.nic.in