Madras High Court
R.Sekaran vs The District Collector on 21 February, 2019
Author: S.Manikumar
Bench: S.Manikumar, Subramonium Prasad
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.02.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD
W.P.No.1246 of 2019
and W.M.P.No.1399 of 2019
R.Sekaran .. Petitioner
Vs.
1. The District Collector,
District Collectorate,
Salem -1.
2. The Deputy Director,
(Public Health & Service and
Preventive Disease Department),
Salem District.
3. The Executive Engineer,
Tamil Nadu Pollution Control Board,
Salem.
4. The Commissioner,
Narasingapuram Municipality,
Attur Taluk, Salem District. .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of
India seeking a Writ of Mandamus directing the respondents to
consider the petitioners representation dated 03.10.2018,
consequently direct the respondent shift the proposal to put up a
http://www.judis.nic.in
2
garbage dumping yard in S.No.205, 5th Ward, Vinayagapuram,
Narasingapuram Municipality, Attur Taluk, Salem District.
For Petitioner : Mr.Kannan
For Respondents 1&2 : Mr.E.Manoharam
A.G.P.
For Respondent 4 : Mr.M.Loganathan
-----
ORDER
(Order of the Court was made by SUBRAMONIUM PRASAD, J.) A resident of Narasingapuram, Attur Taluk, Salem District has filed this public interest litigation for a direction to the Commissioner, Narasingapuram Municipality, Attur Taluk to shift the garbage dumping yard in S.No.205, 5th Ward, Vinayagapuram, Narasingapuram Municipality, Attur Taluk, Salem District.
2. Petitioner states that there are 500 families living in the 5th ward, Narasingapuram Municipality, Attur Taluk. The Government have earmarked a park in S.No.205 and children play in the park. It is stated that except for this park, there is no other park / playground available. Petitioner further states that http://www.judis.nic.in 3 the area had been developed by the Tamil Nadu Housing Board and this land has been given to the Municipality to maintain it as a public park. It is alleged by him that instead of using the area as a park, the Commissioner, Narasingapuram Municipality now proposes to construct a garbage dumping yard in the said area.
According to the petitioner, if garbage dumping yard comes up in the area, it would lead to spreading of contagious diseases like chickenguniya, swine flu, malaria, dengue fever and waterborne diseases and therefore the other authorities must be stopped from converting the park to a garbage dumping yard.
3. Heard the parties.
4. Learned counsel for the petitioner has reiterated the contentions made in the writ petition. Learned counsel appearing for the Corporation would state that the total area of the park site is 62460 Sq.ft. and out of which only 5322 Sq.ft. i.e.10% of the land has been used for the proposed Micro Compost Centre. The estimated cost of the Micro Compost Centre is about Rs.72.79 lakhs and it is being installed under Solid Waste Management Scheme under Swatch Bharath Mission Component. http://www.judis.nic.in 4
5. It is stated that technical sanction was accorded vide proceedings dated 13.02.2018 by the Chief Engineer, Office of the Commissioner of Municipal Administration, Chennai. Construction work has been completed. According to the learned counsel for the respondents the wet waste collected from the adjacent area would be brought into this composite yard and would be converted into manure.
6. Similar issues concerning the very same municipality have come up before this Court in W.P.Nos.12930 of 2018 etc., batch, (K.Anguraj Vs. The District Collector, Salem) wherein, this Court by an order dated 10.12.2018, has observed as under:
"7. 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. http://www.judis.nic.in The Municipalities therefore cannot be found 5 fault with for converting portions of parks into 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 judgments relied on by the petitioners are not applicable to this case in hand. The land earmarked to park is not being converted into hospitals or residential areas. The majority of the park is being kept intact and only a small portion of the park is being utilized for the compost yard and that too in which only vegetable waste, leaves of trees and household wastes would be converted to manure. It is also important to note that the provisions of the Solid Waste Management Rules,2016 does not apply to household waste and horticulture waste.
8. The issue raised in these writ petitions have already been raised before this Court in the case of Janakar Vs. The Commissioner, Hosur Municipality, Hosur in W.P.No.26704, 25653 and 26720 of 2017. The Writ Court on 08.11.2017, has passed following order:-
12. The relief sought for in these Writ Petitions is to remove the http://www.judis.nic.in encroachment made in the area 6 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 remove the garbage, there should be a 7 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 http://www.judis.nic.in hazard, then they must come forward 8 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 http://www.judis.nic.in shall also cooperate in keeping with 9 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."
9. Similarly, a 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, http://www.judis.nic.in Poonamallee, Thiruvallur District, Chennai, 10 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."
10. This Court, by 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 http://www.judis.nic.in Municipal Solid Waste Rules, 2016, the 11 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 http://www.judis.nic.in layout was approved earlier to the 12 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 http://www.judis.nic.in 1st respondent/ Municipality, in 13 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 http://www.judis.nic.in public interest and allot the same for 14 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 http://www.judis.nic.in of the waste from their respective 15 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 http://www.judis.nic.in stone-age, we have come to the 16 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 17 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 Micro Compost Plant 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."
7. This writ petition is also dismissed in terms of the above mentioned order dated 10.12.2018. Consequently, the connected miscellaneous petition is closed. No costs.
[S.M.K., J.] [S.P., J.] 21.02.2019 kk http://www.judis.nic.in 18 To
1. The District Collector, District Collectorate, Salem -1.
2. The Deputy Director, (Public Health & Service and Preventive Disease Department), Salem District.
3. The Executive Engineer, Tamil Nadu Pollution Control Board, Salem.
4. The Commissioner, Narasingapuram Municipality, Attur Taluk, Salem District.
http://www.judis.nic.in 19 S.MANIKUMAR, J.
AND SUBRAMONIUM PRASAD, J.
kk W.P.No.1246 of 2019 and W.M.P.No.1399 of 2019 21.02.2019 http://www.judis.nic.in