Madras High Court
N.Shanmugham vs The District Collector on 10 December, 2018
Author: Subramonium Prasad
Bench: S.Manikumar, Subramonium Prasad
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
ORDER RESERVED ON : 12.09.2018
ORDER PRONOUNCED ON : 10.12.2018
CORAM:
THE HON'BLE MR. JUSTICE S.MANIKUMAR
and
THE HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
W.P.No.18569 of 2018
W.M.P.21914 of 2018
N.Shanmugham ... Petitioner
Vs.
1. The District Collector,
Thiruvallur District,
Thiruvallur – 602 001.
2. The Commissioner,
Avadi Municipality,
Avadi, Chennai – 54.
(R2 – amended as per order dated 14.08.2018
by SMKJ & SPJ in W.P.No.18569 of 2018)
3. The Thasildar,
Avadi Taluk, Avadi.
4. The Commissioner of Land Administration,
Ezhilagam Building,
Chepauk, Chennai – 5. ... Respondents
PRAYER: Writ Petition has been filed under Article 226 of the Constitution
of India, praying in the nature of Writ of Mandamus forbearing the
respondents from any manner putting up construction or altering the nature
of water body in S.No.645/5, measuring 19 acres, Ward No.14,
http://www.judis.nic.in
2
Thirumullaivaayal Village, Avadi Taluk, Tiruvallur District.
For Petitioner : Mr.Syed Aejez
for Mr.N.A.Nissar Ahmed
For 1st, 3rd & 4th
Respondents : Mr.T.N.Rajagopalan
Government Pleader
For 2nd Respondent : Mr.P.Srinivas
Standing Counsel for Municipality
-----
ORDER
SUBRAMONIUM PRASAD, J.
The instant Public Interest Litigation has been filed for a Writ of Mandamus forbearing the respondents from any manner putting up construction or altering the nature of water body in S.No.645/5, measuring 19 acres, Ward No.14, Thirumullaivaayal Village, Avadi Taluk, Tiruvallur District.
2. The petitioner would contend that the property in S.No.645/5 measuring 19 acres Ward No.14, Thirumullaivaayal Village, Avadi Taluk, Tiruvallur District, is classified as “Ambattur Aeri Ulvai”. According to him, the respondents are taking steps to construct a public waste dumping yard, which is contrary to law. The petitioner has contended that the public waste dumping yard is on the tank bed. The petitioner has submitted that if http://www.judis.nic.in 3 the water bodies are encroached or converted for any other purpose, storage of water would be affected and also the environment.
3. The 4th respondent, the Commissioner of Land Administration, Ezhilagam Building, Chepauk, Chennai, filed a Counter Affidavit. According to the 4th respondent, the proposed yard is not on the tank bed. It is only in Aeri Ulvai, which is not a tank bed. The construction is not under the water body. In any event, it is submitted that 75% of the Aeri Uluvai has various structures. The relevant portion of the Counter reads as under:-
"5. Thereafter, in order to find a solution to the recurring problem of the accumulation of solid wastes, the Government of Tamil Nadu had devised various methods for the reduction in the solid wastes being taken to the landliff sites. The methods of Bio Methanation and Micro Composting of Wastes was suggested as an additional means of solid waste disposal in addition to the processing the MSW centres. While the MSW centres process the waste and convert it into Refuse Derived Fuel (RDF), the Micro composing centres will convert the Vegetable and Food waste in to Manure by compositing. In the case of Bio-methanation plants, the fast decomposing vegetable wastes from the markets and other bulk generators, such as Hotels are used to generate Bio-gas for running Gas Engines which in turn generate Electricity in small scales for captive use in Street lights and Municipal Offices and Kitchens of the Food centres.
6. In the case of the Micro Compost Centres (MCCs for brevity), the fast decomposing Food wastes form domestic households are taken to the nearest MCC and they are put in to Concrete Tubs and mixed with Effective Microbe Solution to enable faster decomposition compared to the natural process. This makes the waste to decompose within about 14 days. Thereafter the Compost is taken out of the tubs and used as Manure either in the parks of the Municipal area and even given http://www.judis.nic.in 4 free of cost to Agriculturists registered with the District Agriculture Centre.
7. With regard to Avadi, the 17 MCC facilities have been sanctioned and the same have also been completed and put to use. The said MCCs are thus taking care of a daily quantum of 46 Tons of Solid waste at present per day thus reducing the need to landfill the same.
8. As the Vegetable and household waste are fast decomposing, the MCCs have to be essentially established in such a manner as to cater to the immediately surrounding area, where the waste can be brought to the MCC immediately on collection itself. Therefore for the Avadi Municipality having 48 wards, 17 numbers of MCCs have been sanctioned and constructed. The MCC that is the subject matter of the present Writ Petition caters to the Ward Numbers 13 & 14 of Avadi Municipality.
9. Since for above two wards there was no other suitable site, such as Park of open space or Municipal Land, the site in S.No.645/5 was chosen. It is vested with the Revenue Department and the same is classified as Eri Ulvai. In other words, it is catchment area for the Ambattur Lake. The total extent of the said Poromboke land is 19 Acres. Out of this, the area required for the MCC is only 4500 square feet, which is a very miniscule extent. Further most of the said poromboke lands are encroached by various persons and developments have come up in the same.
10. Due to lack of any other suitable land in close proximity to the residential localities in Ward Numbers 13 % 14, the said location in S.No.645/5. The tender was published on 28.08.2017. Work order dated 04.09.2017 was issued to the successful Tenderer Mrs.Bathmavathi and she has also started the work on November 2017 and the work has been completed in February 2018 at an estimated cost of Rs.30.00 Lakhs. The petitioner having kept quiet all along has come forward with the present Writ Petition belatedly and without clean hands.
11. The averments of the petitioner in Para 3 & 4 are denied. There is no proposal to create a dumping yard in the land chosen and it is only a processing centre and there will not be any permanent dumping of garbage. In fact, the Garbage dumping is not done by the Local bodies after the advent of the Solid Waste Management Rules 2016. As required in the same, the entire quantum of waste generated in the Municipal Area, should be http://www.judis.nic.in 5 processed and converted in to usable mateirals such as RDF and Manure, apart from Gas by means of Bio-methanation plants.
12. In this regard, it is submitted that the Solid Waste Management Rules have also set out that in the case or processing of Solid Waste not exceeding 5 tons per day, the said Rules have excluded the said processing facilities and only the facilities handling more than 5 tons per day have been imposed with the restrictions of getting the requisite approvals and permissions.
13. It is humbly submitted that, the land in question is not a Water body as it is and it is only a catchment area for the Ambattur Lake. This land has been in fact encroached to an extent of more than half of its area by various houses and other developments. In the said land there is a Temple, Mosque, Private Hospital, Shops, Residences and a Pumping Station belonging to this respondent. There are in fact 5 streets running across the land, namely Anna Street, Tholkapiar Street, Thembaavan Street, Natesan Street. It is bounded by the Railway Lines and the adjacent Railway Car Shed Street. All the above developments are on the lands that were previously classified as Eri Ulvai. The Eri Ulvai that is in both T.S.No.71 in Ward D Block 118 and T.S.No.65 in Ward D Block 121. The part of the land in question is in T.S.No.71.
18. The Ambattur Lake is in the adjacent Ambattur Taluk and the Eri Ulvai is in the Thirumullaivoyal Village in Avadi Taluk. At present the establishment of the MCC will serve the public interest of disposal of the Solid wastes and prevent the same from reaching the Landfill sites and thus put the said Solid waste to better uses. Without the MCCs it is not possible to reduce the quantum of the Solid wastes that are dumped in the landfill sites and left to the vagaries of nature. The erstwhile practice of open dumping has been done away with and the decaying waste is properly processed in to Manure and put effective use. For this Public purpose the small part of the catchment area is being put to use that too at the higher reaches of the same. Further sufficient safeguards are in place to prevent the solid wastes from reaching the Water Body. Further the entire process is being done in an enclosed environment and there is no possibility of the processed or unprocessed waste reaching the environment. The structure as such consists of Concrete Platform with an enclosure of Steel sheet roofing and low level walls all around. Between the Wall that is about 3 feet in height and the roof only Grills and mesh have been provided for natural aeration and lighting of the http://www.judis.nic.in 6 structure. Further since the vegetable waste in immediately sorted in a conveyor belt and sprayed with the EM solution and then ground up into composting process is done in water proof concrete Tubs and the entire process is time bound where the waste that is dumped on one day is disposed off in sealed bags as Manure. Thus there is no harm to the environment due to the operation of the MCC. In fact the operation of the MCC ensures that the fast decaying Solid waste is completely processed and is not left to rot and cause nuisance to the Public.
19. As 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 Compositing Facility. The Micro Composting facility 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- degrable waste is handled separately and disposed of properly which process is possible only by segregation so that the non-bio- degradable waste that are left out in the street of the residential areas will not spread any odour. 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 packaged and subsequently disposed of for use as manure. In most cases, the Manure is used in the Park of the Municipality itself as a method of encouraging the green cover in the park site.
21. These MCC 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 odour or insects from the waste. There will not be any http://www.judis.nic.in 7 dumping or accumulation of waste apprehended by the petitioner.
22. The composting will be carried out in hermetically construct tubs using 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 tubes from the elements a roof has to be provided over the structure which will also consist only of easily removable Zinc Sheets.
26. 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 wastes that have been collected prior to the construction of the MCCs. processing has been set out to be the integrated solid waste facility at Sekkadu used along with other Local Bodies namely Tambaram and Pallavaram. The integrated facility will handle non bio-degradable waste and the bio-degradable materials will be processed at the 17 Micro Composting Centres within the Municipal limits.
27. 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 varios apprehensions of the Writ Petition are all misconceived and without proper understanding of the waste disposal facility.
28. 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 taken to the micro compost centre and it will processed 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 Eri Ulvai is only due to the fact that there is no other land available within the Municipal limit.” http://www.judis.nic.in 8
4. Heard the learned counsel appearing for both parties and perused the materials available on record.
5. Having a proper waste management 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. Similar issues have been raised before this Court in 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 http://www.judis.nic.in 9 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 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 http://www.judis.nic.in 10 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.
6. 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, 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.”
7. 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 http://www.judis.nic.in 11 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 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. http://www.judis.nic.in 12
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 http://www.judis.nic.in 13 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.
8. The cause of construction of the compost yard is for a valid public purpose. It is for the Municipality to decide where the compost yard should be situated. There is nothing on record to indicate that it is on the tank bed. There is nothing to show that Aeri Uluvai is classified as a part of tank bed and therefore, no construction is permitted. The Counter http://www.judis.nic.in 14 specifically stated that even railway bridges and railway lines have been constructed on the area. The area, therefore, cannot be classified as tank bed. The Court cannot run the Government.
9. The issue of disposal of the solid waste and garbage is taking enormous proportions. The available land is shrinking fast and no land is available. The Municipality cannot dump garbage into another Municipality.
In view of the shrinking space, it is for the Municipality to earmark/locate proper area for the purposes for establishing such places for dumping. The Court cannot close its eyes to the fact that wherever there is no proposal to establish Solid Waste Management Plant, residents of the area raised disputes. The construction of the Solid Waste Management Plant is for a public purpose. It is for the benefit of the locality. The Counter quoted supra categorically brings out the scientific method, which is being put to use for construction of such plants. The Solid Waste Management Rules, 2016, in detail explain as to how areas are demarcated and how this Plants have to be maintained. The Pollution Control Board monitors the functioning of such plant. It is not for the Court to decide as to which area should be used or not, for the purpose of establishing Plants, if there is no violation.
The facts stated in the counter that the proposed Plant is not on the tank http://www.judis.nic.in 15 bed, are not controverted in the rejoinder.
10. In the Public Interest Litigation, we are not inclined to interfere with the establishment of the Solid Waste Management Plant, which is for public purpose. In the result, 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.)
10.12.2018
asi/pkn
Index : Yes
Internet : Yes
Speaking Order : Yes/No
To
1. The District Collector,
Thiruvallur District, Thiruvallur – 602 001.
2. The Commissioner, Avadi Municipality, Avadi, Chennai – 54.
3. The Thasildar, Avadi Taluk, Avadi.
4. The Commissioner of Land Administration, Ezhilagam Building, Chepauk, Chennai – 5.
http://www.judis.nic.in 16 S.MANIKUMAR, J.
and SUBRAMONIUM PRASAD, J.
asi/pkn W.P.No.18569 of 2018 W.M.P.21914 of 2018 10.12.2018 http://www.judis.nic.in