Madras High Court
K.Anguraj vs The District Collector on 10 December, 2018
Author: Subramonium Prasad
Bench: S.Manikumar, Subramonium Prasad
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
ORDER RESERVED ON : 19.09.2018
ORDER PRONOUNCED ON : 10.12.2018
CORAM:
THE HON'BLE MR. JUSTICE S.MANIKUMAR
and
THE HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
W.P.Nos.12930, 12856 & 23269 of 2018
and W.M.P.Nos.15177, 15109 & 27154 of 2018
W.P.No.12930 of 2018
K.Anguraj ... Petitioner
Vs.
1. The District Collector,
District Collectorate, Salem – 1.
2. The Revenue Divisional Officer,
Attur, Salem District.
3. The Deputy Director,
(Public Health & Service)
and Preventive Disease Department,
Salem District.
4. The Commissioner,
Narasingapuram Municipality,
Attur Taluk, Salem District. ... Respondents
W.P.No.12856 of 2018
M. Senthilkumar ... Petitioner
Vs.
1. The District Collector,
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District Collectorate,
Salem – 1.
2. The Revenue Divisional Officer,
Attur, Salem District.
3. The Deputy Director,
(Public Health & Service)
and Preventive Disease Department,
Salem District.
4. The Commissioner,
Narasingapuram Municipality,
Attur Taluk, Salem District. ... Respondents
W.P.No.23269 of 2018
R. Rajalingam ... Petitioner
Vs.
1. The District Collector,
Salem District, Salem.
2. The Commissioner,
Narasingapuram Municipality,
Narasingapuram – 636 108,
Salem District.
3. The Executive Engineer,
Salem Housing Unit,
Tamil Nadu Housing Board, Salem.
4. The Tamil Nadu Pollution Control Board,
Guindy, Chennai – 32. ... Respondents
(R4 – Suo-motu impleaded as per Court order dated 14.09.2018 by SMKJ &
SPJ in W.P.No.23269 of 2018)
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PRAYER in W.P.No.12930 of 2018: Writ Petition has been filed under
Article 226 of the Constitution of India, praying in the nature of Writ of
Mandamus to direct the respondents to consider the petitioner's
representation dated 12.05.2018 and consequently direct the respondent
shift the proposal to put up a garbage dumping yard in Rangabala Nagar,
Narasingapuram Village, Attur Taluk, Salem District.
PRAYER in W.P.No.12856 of 2018: Writ Petition has been filed under
Article 226 of the Constitution of India, praying in the nature of Writ of
Mandamus to direct the respondents to consider the petitioner's
representation dated 14.05.2018 and consequently direct the respondent
shift the proposal to put up a garbage dumping yard in S.No.216,
Narasingapuram Village, Attur Taluk, Salem District.
PRAYER in W.P.No.23269 of 2018: 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 converting the land, earmarked
as Park into Yard, situated at Survey No.216/1B, Narasingapuram Village,
Attur Taluk, Salem District.
W.P.Nos.12930 & 12856 of 2018
For Petitioner : Mr.S.N.Subramani
For 1st to 4th
Respondents : Mr.M.Loganathan
Government Advocate
for Mr.M.Elumalai
Government Advocate
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For 5th Respondent : Mr.Rita Chandrasekar
Standing Counsel for TNPCB
W.P.No.23269 of 2018
For Petitioner : Mr.A.E.Ravi Chandran
For 1st & 2nd
Respondents : Mr.M.Loganathan
Government Advocate
for Mr.M.Elumalai
Government Advocate
For 4th Respondent : Mr.Rita Chandrasekar
Standing Counsel for TNPCB
For 3rd respondent : No appearance
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COMMON ORDER
SUBRAMONIUM PRASAD, J.
The instant Public Interest Litigations are for a Writ of Mandamus directing the respondents to consider the petitioner's representations and consequently, direct the respondent to shift the proposal to put up a garbage dumping yard in Rangabala Nagar, Narasingapuram Village, Attur Taluk, Salem District. Since the issue is same/common in all the writ petitions, they are being dealt with by a common judgment.
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2. It is the case of the petitioners that there are about 2000 people and 250 families residing in Narasingapuram Village. The Government have allotted a park area in S.No.113/90 to Rangabala Nagar. The petitioners would submit that the Commissioner, Narasingapuram Municipality, Attur Taluk, is proposing to construct a dumping yard in the area earmarked for park. The people residing in the area have opposed the same by conducting peaceful agitation, but their pleas had not been considered by the Municipality. The petitioners have therefore, filed the instant Writ Petitions.
3. The Narasingapuram Municipality has filed a Counter Affidavit stating that Narasingapuram is a second grade municipality and population in about 26000. The average generation of the municipal solid waste in Narasingapuram Municipality is about 9.6 MT/day. In order to tackle the increasing volume of solid waste, which is the result of increasing economic growth, urbanization and industrialization, a project report was prepared for the management of decentralized Micro Compost Plant in accordance with Solid Waste Management Rule 2016 to cover (i) Waste segregation (ii) Collection (iii) Transportation (iv) Processing and (v) Disposal. The project costs about Rs.196.45 lakhs. The Municipality has stated that the http://www.judis.nic.in 6 construction of Micro Compost Centre work in ward No.13 (Old TNHB) with the processing capacity of 3.00TPD including a compound wall and approach road work is in progress. Tender was called on 14.03.2018 and work order was issued on 10.04.2018. It is stated that at present drilling of bore well work is completed, the compound wall work is completed, Micro compost shed work is physically completed up to the roof level and now the work is fixing of A.C.sheets for roof and construction of masonry tub work are in progress.
4. It is stated that the park is an extent of 29620.80 sq.ft and only an extent of 4260.00 sq.ft is being taken for Micro Compost Plant. It is therefore submitted that only 3.44 % of the area is taken up for providing a Micro compost centre. It is stated in the counter affidavit that only tree leaves fallen and segregated, degradable waste from the surrounding localities of the park site are proposed to be collected and scientifically processed in the Micro compost centre to prepare manure to the farmers to be given to them at free of cost. It is also stated that only a small area of the park is being used and only degradable waste would be taken such as vegetable waste, tree leaves and other kitchen wastes collected from the households would be taken into compost yard for being converted into manure.
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5. Heard the learned counsel appearing for parties and perused the materials available on record.
6. The learned counsel appearing for the petitioner has relied on Bangalore Medical Trust Vs B.S.Muddappa & others, (1991) 4 SCC 54, wherein the Supreme Court of India did not permit allotting a land reserved for a park for the purpose of construction of a hospital. Similarly, reliance was placed on R.K.Mittal and others Vs. State of Uttar Pradesh, (2012) 2 SCC 232, wherein again the Hon'ble Supreme Court of India did not permit the change of land use by holding that the decisions taken by development authority must confirm with the master plan and no decision can be taken to change land use without amending the master plan. The learned counsel for the petitioner also relied on Purushottam Vs State of Karnataka, (2014) 3 SCC 721, wherein the Supreme Court of India did not permit the diversion of a land earmarked as a public park to residential colony. 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, http://www.judis.nic.in 8 commercial centres, institutions, industries, etc.,) It is contended by the learned counsel 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 argued that only a small area of the park is being utilized for the compost yard and that too for converting tree leaves and household wastes into manure. It is also argued that whenever any area is identified for compost centre, the people living nearby oppose the move.
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. The Municipalities therefore cannot be found 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 http://www.judis.nic.in 9 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 encroachment made in the area earmarked for park as per the site plan of the Tamil Nadu Housing Board, Phase VIII New ASTC HUDCO, Hosur, approved by the Director of Town and Country Planning. In the above said case, the learned Judge has categorically observed that no one can encroach the public place earmarked and the residents have to maintain the public amenities such as street, park or road earmarked at the time of approving the plan. When once the land has been developed into housing plots, it is the duty of the Commissioner of the Municipality to maintain the street, road, or park and such other public amenities without any encroachment. What has been stated is that private parties are not supposed to encroach on the land. It is true that whenever an Open Space Reserve (OSR) place is identified as a park, no construction can be made in it, but however, it cannot be stated that a portion of the area cannot be used as a compost yard. When the citizens want the Government to remove the garbage, there should be a place for dumping the garbage and clearing it.
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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 Health Act are not only applicable to the residents, but also applicable to the Municipal authorities. If any defects are http://www.judis.nic.in 11 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, 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.
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 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 http://www.judis.nic.in 12 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 public use and enjoyment and it cannot be disputed that Open Space Reserve is treated as lung space.
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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 http://www.judis.nic.in 14 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.
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.
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12. Accordingly, these Writ Petitions are dismissed. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.
(S.M.K., J.) (S.P., J.)
10.12.2018
asi/pkn
Index : Yes
Internet : Yes
Speaking Order : Yes/No
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S.MANIKUMAR, J.
and
SUBRAMONIUM PRASAD, J.
asi/pkn
To
1. The District Collector,
District Collectorate, Salem – 1.
2. The Revenue Divisional Officer,
Attur, Salem District.
3. The Deputy Director,
(Public Health & Service)
and Preventive Disease Department,
Salem District.
4. The Commissioner,
Narasingapuram Municipality,
Attur Taluk, Salem District.
5. The Executive Engineer,
Salem Housing Unit,
Tamil Nadu Housing Board, Salem.
6. The Tamil Nadu Pollution Control Board,
Guindy, Chennai – 32.
W.P.Nos.12930, 12856 & 23269 of 2018
and W.M.P.Nos.15177, 15109 & 27154 of 2018
10.12.2018
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