Madras High Court
T.G.Ruthramani vs The Member Secretary on 14 March, 2018
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.03.2018 CORAM The HON'BLE MR.JUSTICE M.VENUGOPAL AND The HON'BLE MR.JUSTICE S.VAIDYANATHAN Writ Petition No.32938 of 2017 & WMP.No.36310 of 2017 T.G.Ruthramani, Secretary, Poonamallee Nanbargal Nagar Veettu Manai Urimaiyalargal Nalasangam, Poonamallee, Thiruvallur District, Chennai-56. ...Petitioner Vs
1.The Member Secretary, Chennai Metropolitan Development Authority, Thalamuthu Natarajan Maligai, Egmore, Chennai-8.
2.The Commissioner of Municipal Administration, Chepauk, Chennai-5.
3.The District Collector, Thiruvallur District, Thiruvallur.
4.The Commissioner of Municipality, Poonamallee, Chennai-56. ...Respondents PETITION under Article 226 of The Constitution of India praying for the issuance of a Writ of Mandamus forbearing the respondents from interfering in any manner by way of putting up any construction of building or any structure in order to put up a garbage dumping yard in the Open Space Reservation area (OSR) situated in S.Nos.443/1 of Poonamallee Village, which was gifted to the 4th respondent by the Poonamallee Nanbargal Nagar Veettu Manai Urimaiyalargal Nalasangam vide Doc.No.5877 of 1992 dated 27.10.1992 and consequently direct the 4th respondent herein to preserve the park as it is.
For Petitioner : Mr.M.R.Jothimanian for Mr.K.Balu For Respondent-1 : Mr.C.Johnson For Respondents 2 & 3 : Mr.A.N.Thambidurai, SGP For Respondent-4 : Mr.P.Srinivas Order of the Court was made by M.VENUGOPAL,J Heard the learned counsel for the petitioner and the learned counsel for the respondents.
2. According to the petitioner/Nala Sangam, there are 126 members in Poonamallee Nanbargal Nagar Veettu Manai Urimaiyalargal Nalasangam, Poonamallee and all the members are the house owners in the same area known as 'Nanbargal Nagar' in Poonamallee from 1992 onwards. They obtained layout approval for a total extent of 13.39 acres comprising of S.Nos.442/1A, 1B, 443/1, 2, 444 and 445/1, 2 of Poonamallee village from the then Madras Metropolitan Authority in its approval No.149/1992 dated 11.11.1992.
3. The stand taken by the petitioner is that the the authorized layout was divided into house site plots and as per the Rules and Regulations in force and in accordance with the conditions of the first respondent/Chennai Metropolitan Development Authority (the then Madras Metropolitan Development Authority), an adequate area of about 1 acre and 33 cents was set apart for public purposes namely for public park, construction of school, community hall, etc. As a matter of fact, all 126 members of the petitioner/ Nala Sangam jointly executed a gift deed in regard to the extent of 1 acre and 33 cents (approximately 57,934 sq.ft.) to and in favour of the then Executive Officer, Town Panchayat, Poonamallee - the predecessor in office of the present Commissioner of Municipality, Poonamalee, Thiruvallur District/ fourth respondent vide Doc.No.5877 of 1992 registered on the file of the Sub-Registrar, Poonamallee on 27.10.1992.
4. To put it more pin-pointedly, the said gift deed pertains to an area of 4,125 sq.ft., situated in S.No.443/1 of Poonamallee Village, exclusively earmarked for the purpose of park in the aforesaid layout. The learned counsel for the petitioner projects an argument that the aforesaid area, approved by the first respondent/Chennai Metropolitan Development Authority for the purpose of setting up a park in the layout, is being used as a park with proper compound for several years ever since the Nanbargal Nagar Neighbourhood came up in this area. Now, the residents of Nanbargal Nagar, Poonamallee and the general public of the area are utilizing the park for various recreational purposes and health activities and the children are using the play materials in the park, which is helpful for the development of children. Apart from that, the park is useful for youngsters, aged persons, housewives, etc., for taking a walk in the morning or in the evening and for holding recreational and family meetings. Besides this, they are in possession and enjoyment of the park without any interruption from any source from the year 1992 onwards.
5. According to the petitioner, on 05.12.2017, the fourth respondent/ Municipality officials came to the park and caused an inspection to put up a garbage dumping yard in the park. To the shock and surprise of the petitioner, the fourth respondent/Municipality started demolishing the compound wall and constructing spacious buildings in the park, which had affected elderly persons, children, women, etc., of Nanbargal Nagar and the public are not able to use the park gifted by the petitioner/Sangam to the fourth respondent. In short, the members of the petitioner/association are undergoing extreme difficulties in using the park because of the sudden and shocking activities of the construction undertaken by the fourth respondent.
6. At this juncture, the learned counsel for the petitioner brings to the notice of this Court that the petitioner/association came to know, based on the discreet enquiry, that the fourth respondent/Municipality had secretly planned to put up a garbage dumping yard in the park and immediately, they made a representation to the fourth respondent to stop the construction activities in the park and not to put up any garbage dumping yard, since it is interfering with the rights of the residents of the area to enjoy the benefits of the park. However, the fourth respondent/Municipality had turned deaf ears to the petitioner's genuine and reasonable request and the fourth respondent/Municipality is carrying on the construction activities without any let up.
7. It comes to be known that the park is located in S.F.No.443/1 of Poonamallee village in the 19th ward of Poonamallee Municipality and this is catering to the recreational and other facilities to the residents of Nanbargal Nagar, Vasanthapuri Nagar, Sai Nagar, Rajeswari Nagar, etc., of the area. Initially, it was informed by the fourth respondent and his men that a meditation hall was going to be put up for the use and benefit of the public in the area. However, the fourth respondent/Municipality had surreptitiously changed the plan and is taking action to put up a garbage dumping yard.
8. In this connection, the learned counsel puts forward a strenuous argument that time and again, this Court, in several judgments, repeatedly held that the area reserved for the purpose of public park should be utilized for the public purposes and should not be diverted for any other purpose opposed to the welfare of the public. In reality, according to the petitioner/ Sangam, the public park is a gift of modern civilization and it is a significant factor for the improvement of the quality of life and it is also an essential feature of modern planning and development and it greatly contributes to the improvement of social ecology.
9. The pith and substance of the plea taken by the petitioner/Nala Sangam is that there is no valid reason for the fourth respondent in putting up a garbage dumping yard in the park located in the middle of the thickly populated residential area of Poonamallee Municipality. The petitioner/ association made a representation to the fourth respondent also on 12.12.2017 requesting to stop all the construction activities of putting up a garbage dumping yard in the park. But, the fourth respondent/Municipality failed to consider the petitioner's representation favourably. Hence, the present writ petition is filed seeking the relief of Mandamus to restrain the respondents from interfering in any manner by way of putting up any construction of building or any structure in order to put up a garbage dumping yard in the open space reservation area situated at S.No.443/1 of Poonamallee village, which was gifted to the fourth respondent by the petitioner/Nala Sangam vide document No.5877 of 1992 dated 27.10.1992. Further, the petitioner has sought for a consequential direction to the fourth respondent to preserve the park as it is.
10. Per contra, it is the submission of the fourth respondent/ Municipality that the petitioner/Sangam had purchased house plots in Layout Approval No.PPD/LO.No.149/1992 dated 13.11.1992 and as per the said layout, streets and park site have been marked out. Out of 147 plots, less than 50 sites are now occupied by houses. The school site is also vacant and there is no development in the same.
11. The learned Standing Counsel for the fourth respondent/ Municipality raises a preliminary objection on the ground of availability of effective alternate remedy by means of recourse to the remedies under the provisions of the Environment Protection Act whereby an application can be filed before the National Green Tribunal, Southern Zone. Moreover, the said Tribunal is an expert and specified body for addressing all environmental issues. Therefore, according to the fourth respondent/Municipality, the above writ petition filed by the petitioner is, per se, not maintainable.
12. It transpires from the counter affidavit filed by the fourth respondent/Municipality that several applications are pending in regard to dumping of wastes in the Municipal Compost Yard in S.No.629, Poonamallee village and S.No.56, Adhiyamarndhanallur village where the existing dump yard is situated. In view of the problem of handling the huge volume of wastes by simple open dumping, various steps were taken and the Solid Waste Management Rules, 2016 were notified in this regard. The State Government, following the said Rules, issued various directions for handling of wastes by particular processes suited for the concerned Local Bodies as per the local requirements and conditions. Furthermore, the disposal of wastes is now only to be done in source segregated manner by individual residents and the non bio degradable wastes are to be disposed in public receptacles only on certain days.
13. In this connection, it cannot be brushed aside that the said Rules were notified in the Gazette and an application was filed before the National Green Tribunal, Southern Zone Bench and the same was also disposed of by the Tribunal with a specific direction not to dump the solid wastes in S.No.56, Adhiyamarndhanallur Village, which was a water body. Another land in S.No. 629 of the same village adjoining lands was also in use for several years as a dump yard and due to objections raised and Application No.63 of 2013, the said dump yard has been directed to be closed.
14. The learned Standing Counsel for the fourth respondent/ Municipality points out that the park site in the layout, which has been referred to is now vested with them and that they, in furtherance of their duties to collect and properly dispose of the solid wastes, set up 9 micro compost plants in Poonamallee municipal area. That apart, the common solid waste management plant in partnership with Avadi and Thiruverkadu municipalities situated in Avadi municipal area is under construction. The said combined plant will take care of the bio non degradable and other solid wastes for processing into fuel and other recyclable uses.
15. With a view to process the highly decomposable wastes such as kitchen and vegetable wastes collected in each surrounding area, small micro compost plants are being set up by them throughout Poonamallee town. As of now, nine plants are to be established including that of the plant in the park site in question. Out of other eight locations, seven plants are completed and one is under construction. Moreover, there are no facilities in the said playground that were created by the petitioner or association of residents of the layout. The entire playground, according to the fourth respondent/ Municipality, is in disuse.
16. The learned Standing Counsel for the fourth respondent/ Municipality, by referring to the Municipal Solid Waste Management Rules, 2016, proceeds to point out that 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 set up within a small geographical area, so that the highly bio degradable wastes such as vegetables, 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 for agriculture. The other bio degradable 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 in the site.
17. Besides this, it is the case of the fourth respondent that the non bio degradable waste is to be disposed only on Wednesdays and that such non bio degradable waste is handled separately and disposed properly, which process is possible only by segregation, so that the non bio degradable waste that are left out in the streets of the residential areas will not spread any odour. 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 for use as manure.
18. 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.
19. The total area available as a park site, according to the fourth respondent, measures an extent of 1.01 acres or 44,403 sq.ft. The micro compost yard is only of an extent of 1,500 sq.ft., which is less than 3% of the total area. Further, over the rest of the park site, the fourth respondent/ Municipality had already undertaken the development of the park with compound wall, walking path, green cover, children's play equipment. In short, the micro composting facility is to occupy only meagre portion of the playground. The micro composting facility will 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. Apart from that, there will be a small storage room for the safe storage of the packaged manure before disposal.
20. The learned Standing Counsel for the fourth respondent/ Municipality lastly submits that after successful completion of the micro composting centre, the dumped waste in the open ground will not be accepted and only segregated bio degradable waste will be taken to the micro compost centre and it will be processed with proper scientific technology and disposed. There will not be any dumping or accumulation of the waste. Further, the project undertaken at present is identical to that of the micro compost plants undertaken in Pammal Municipality, which was the subject matter of W.P.No.26581 of 2017 and the said writ petition was rejected by this Court by order dated 22.1.2018. The construction work has already been fully completed even before filing of the present writ petition and as on date, only the establishment of the attendant structures of the compost pits and processing shed is to be completed.
21. In reply, the learned counsel for the petitioner has relied upon the decision of the Division Bench of this Court in the case of Sri Devi Nagar Residences Welfare Association Vs. Subbathal [reported in 2007 (3) LW 259] wherein the relevant portions read as follows :
"(i) Respondents 1 to 3 shall utilise the entire area reserved for public purpose within a maximum period of six months from the date of receipt of copy of this order;
(ii) If respondents 1 to 3 could not maintain the park within the time stipulated above, the Corporation, as a custodian of public interest, shall develop the area as a Park with the cooperation of respondents 1 to 3, with whom the title and possession would continue to remain;
(iii) The Corporation shall not collect any property tax;
(iv) The Corporation shall give access to the general public including the residents of the locality; and
(v) The Corporation is at liberty to collect necessary funds from the plot owners, who purchased the plots in the impugned layout for maintenance of the park."
22. Apart from the above decision, One of us (SVNJ), while sitting singly, in the decision in the case of M.S.Rangarajan Vs. Pammal Municipality [WP.No.26581 of 2017 dated 22.1.2018], held as follows :
"16. Though the petitioner has raised genuine issues as regards pollution of all sorts due to the setting up of Micro Compost Plan in the Playground, this Court opines that the garbage that is dumped in and around the layout and playground, will be collected by the workers of Micro Compost Yard and segregated into bio-gradable wastes and non-bio-degradable wastes, to ensure that the place is neat. As regards pollution, the 1st respondent/Municipality, in paragraph 9 of its counter affidavit, has clearly stated that the composting will be carried out in hermetically constructed tubs using bricks and concrete of proper specifications for water proofing and will be self-contained to prevent any spread of decaying matter or leachate into the surrounding environment.
17. Private lawns or public parks are not a luxury, as they were considered in the past. Public Park is a gift of modern civilization and that reservation of vacant land as an open land is in conformity with the rules and regulations for formation of the layout and is meant for public use and enjoyment and it cannot be disputed that Open Space Reserve is treated as lung space.
18. The Apex Court has categorically held that where open space is preserved and earmarked in the plan for development of a planned town, the authorities cannot ignore the public interest and allot the same for construction of godowns, thereby causing environmental hazards. Ecology has been completely destroyed by human beings by encroaching OSR, playgrounds, river bunds, lakes, etc. But the official respondents must ensure that the waste has to be disposed of in a scientific manner. In a developing country, technicalities should not be a bar for development.
19. When a public park is a gift of modern civilization, Open Space Reserve is the lung space and setbacks are for the purpose of rain harvest, Micro Compost Yards are essential for disposal of the waste, 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 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."
23. The aforesaid order dated 22.1.2018 in W.P.No.26581 of 2017 is referred to in the order in W.P.No.34061 of 2018 dated 06.3.2018 [G.Raja Vs. State of Tamil Nadu & others].
24. Further, the Division Bench judgment dated 12.4.2007 of this Court made in W.A.Nos.156 of 2000 and 45 of 2003, relied on by the learned counsel for the petitioner, does not support the case of the petitioner; instead, it is against him. As per the said decision, public purpose is paramount. Public interest means general interest of the public, at large. Setting up of a Micro Compost Yard is of public importance. If the public place is converted into a hospital, the same is bad, as has been held in the case of Bangalore Medical Trust Vs. B.S.Muddappa [reported in 1991 (4) SCC 54].
25. In modern days, construction of Micro Compost Yard in a small portion of the public place cannot be said to be against public interest, when vegetable waste and garbage are thrown on the roads and vacant sites of private property. In the 21st Century, if setting up of Compost Yard is opposed, when admittedly the same is not against public interest, the persons, who are opposing these welfare/good activities, are certainly doing disservice to the community at large. When the Government comes forward with these kinds of benevolent acts, they are to be whole heartedly welcomed by the Homo sapiens.
26. On a careful consideration of the respective contentions and in view of the fact that the construction work had been fully completed even before the filing this writ petition and what remains now is only establishment of the attendant structures of the compost pits and in view of the fact that the processing shed is to be completed, this Court is of the considered view that the relief as sought for by the petitioner from this Court to restrain the respondents from interfering in any manner by way of putting up any construction of building or any structure in order to put up a garbage dumping yard in the Open Space Reservation area (OSR) situated in S.No. 443/1 of Poonamallee Village, which was gifted to the 4th respondent by the Poonamallee Nanbargal Nagar Veettu Manai Urimaiyalargal Nalasangam and consequently the further relief sought for to direct the 4th respondent herein to preserve the park as it is, cannot be acceded to by this Court to meet the ends of justice. 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.
27. In fine, the writ petition is dismissed. No costs. Consequently, the connected WMP is also dismissed.
28. 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, against the erring officials,/delinquents/deviants (who are in charge of that place during the relevant period), appropriate departmental action shall be initiated for their failure to maintain their absolute integrity coupled with devotion to duty and thereby rendering themselves of unbecoming of members of the services.
14.03.2018 Index : Yes Internet : Yes Speaking Order : Yes RS M.VENUGOPAL,J AND S.VAIDYANATHAN,J RS To:
1.The Member Secretary, Chennai Metropolitan Development Authority, Thalamuthu Natarajan Maligai, Egmore, Chennai-8.
2.The Commissioner of Municipal Administration, Chepauk, Chennai-5.
3.The District Collector, Thiruvallur District, Thiruvallur.
4.The Commissioner of Municipality, Poonamallee, Chennai-56.
WP.No.32938 of 2017& WMP.No.36310 of 2017 14.03.2018