Dismissed

M.G.M.Nagar Nala Munnetra v. The Commissioner

Madras HC11 Dec 2018WP/12779/2018

Case brief

AI extract

What is this about?

In a PIL, the Madras High Court dismissed a petition seeking to stop the construction of a Micro Compost Plant in a park area for waste management. Balancing public interest in waste disposal with park maintenance, the court held that a small portion of the park could be used legally, subject to strict maintenance and cleanup measures.

What did the court decide?

Petition dismissed; no order as to costs. Municipality directed to maintain the park and ensure cleanliness of the compost yard.

M.G.M.Nagar Nala Munnetra Vs The Commissioner — Environment and Pollution | Madras HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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ORDER RESERVED ON : 24.09.2018
ORDER PRONOUNCED ON : 11.12.2018
CORAM:
THE HON'BLE MR. JUSTICE S.MANIKUMAR
and
THE HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
W.P.No.12779 of 2018
and W.M.P.No.14997 of 2018
M.G.M.Nagar Nala Munnetra Sangam,
Plot No.14, MGM Nagar,
Rajaji Salai,
Thiruvallur - 602001. ... Petitioner
Vs.
1. The Commissioner,
Municipal Authority,
Ezhilagam-Chepauk
Chennai 5.
2. The District Collector,
Thiruvallur District,
Thiruvallur.
3. The Municipal Commissioner,
Thiruvallur District,
Thiruvallur.

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... Respondents

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PRAYER: Writ Petition has been filed under Article 226 of the Constitution of India, praying in the nature of Writ of Mandamus directing the respondents herein to stop the construction and dumping the wastages of plastic or house hold articles done by the 3rd respondent herein in the park area of the residential area at MGM Nagar, Rajaji Salai, Thiruvallur, Thiruvallur District 602001 compromised in Survey No.439/1 (3).

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For Petitioner :Mr.R.Ramesh For Respondent :Mr.S.Kamalesh Kannan

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Government Advocate for R1 & R2

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For Respondent :Mr.P.Srinivas Standing Counsel for R3

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O R D E R

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SUBRAMONIUM PRASAD, J.

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The instant Public Interest Litigation has been filed for a Writ of Mandamus directing the respondents herein to stop the construction and dumping the wastages of plastic or house hold articles done by the 3rd respondent herein in the park area of the residential area at MGM Nagar, Rajaji Salai, Thiruvallur, Thiruvallur District 602001 compromised in Survey No.439/1 (3).

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The Writ Petition has been filed by M.G.M.Nagar Nala Munnetra Sangam. The President of the sangam has sworn the affidavit. It is the contention of the petitioner that the approved layout for MGM Colony was made in the year 1995. The said layout had designated the area in S.No.439/1(3) having an extent of 8.75 acres as a park. The writ petitioner states that the 3rd respondent / Municipality is taking steps to establish a Micro Compost Plant in the park. It is stated that the respondent authorities have conducted the Boomi Pooja for constructing a Municipal Solid Waste Management Plant/ Transfer Station in the said area without any permission. It is stated that it is not open to the Municipality to utilise the area earmarked for park for the purpose of Solid Waste Management Plant. It is stated that they had purchased the land with an idea that there will be a park, which could be used for children to play It is stated that the construction of the Municipal Solid Waste Management Plant would cause nuisance to the persons living in the area. It is stated that there is a School and about 6000 children are studying in the said school and there are about 500 families in the area. It is contended that the because of the Micro Compost plant there is a danger of diseases spreading the area. it is stated that despite objection by the residents, the Municipality is proceeding ahead with the construction of the Micro Compost plant.

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The Commissioner, Thiruvallur Municipality, respondent No.3 herein, has filed a Counter Affidavit. It is stated that the park is not being maintained and the same has been in disuse. It is stated that the population of the Municipality has increased manifold because of which the quantity of waste has increased. To handle the situation, various steps have been taken by the Municipality towards proper disposal of the waste as per the Solid Waste Management Rules 2016. In furtherance of the duty of the municipality to collect and properly dispose off the Solid wastes the Municipality has set up 4 Micro Compost Plant in the Thiruvallur Municipal area.

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This apart, for handling the garbage collected in Tiruvallur Town, the Solid Waste Management Plant facility has been constructed in an area called Nungambakkam. It is under the

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final stages of construction. The said facility will take care of bio non degradable and other solid wastes for processing in to fuels and other recyclable uses. The wet wastes, such as household food wastes and Market Vegetable wastes which are highly decomposable are to be handled by Micro Composting methods. In this regard, 3 Micro Compost Plant and 16 Mini Micro Compost Plants construction is in progress. It is also stated that the park is an area of 38720 sq ft out of which only 3000 sq ft has been earmarked for the Micro Compost Plant. It is stated that the waste collected from the surrounding area would be brought to the compost unit and would be subjected to a scientific process and there will be no odour and will not attract insects etc., as is apprehended by the petitioner.

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Heard the learned counsel appearing for both sides and perused the materials available on record.

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The learned counsel for the petitioners placed reliance on the judgments of the Hon'ble Supreme Court of India to contend that a place which is earmarked for parks cannot be converted and put to any other use. It is a submission that until and unless the master plan is not changed the land user cannot be changed. (Refer Medical Medical Trust Vs B.S.Muddappa & others, (1991) 4 SCC 54, R.K.Mittal and others Vs. State of Uttar Pradesh, (2012) 2 SCC 232, Purushottam Vs State of Karnataka, (2014) 3 SCC 721,) The counsel for the Municipality argued that the micro compost yard is being put to use in a scientific manner to ensure that the residential and commercial waste are converted into manure. It was stated that a tender notice dated 19.04.2018 was published and the bids were called for. Consequently, after evaluation of the bids, the work order was given to the best bidder on 18.05.2018. The selected contractor had started to store the materials for the construction at site.

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The Counsel for the petitioner states that the area which has been earmarked for a park cannot be used for any other purpose. On the other hand, the learned counsel for the Municipality would contend that due to urbanization there is hardly any land left for use as a compost yard. It is argued that it is also one of the primary responsibilities of local Administrative Authorities to ensure proper management of waste generated by different categories of waste producers (house holds, commercial centres, institutions, industries, etc.,) It is contended by the learned for the Municipality that over the years the quantum of waste generated has increased in geometric progressions owing to increase in urbanization, population growth, change in life style etc.,. It is stated that the total extent of the park site is 38,720 sq ft and the extent of the Micro Compost Centre is only 3000 sq ft which is about less than 10% of the total area of the park site. It is also argued that

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efforts are being taken to ensure that the park is maintained properly. In fact in the counter it is mentioned that even before the commencement of the Micro Compost centre the park site has been without any maintenance or upkeep and the same has been in disuse.

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The learned counsel for the Municipality also contended that the writ petition should not be entertained in view of the alternate remedy available to the petitioner to approach the National Green Tribunal established under the National Green Tribunal Act.

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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 in to dumping yard. It is also the duty of the Municipality to ensure that the parks are maintained properly and that the entire park is not converted into dumping yard. The majority of the park is being kept intact and only a small portion of the park is being utilized for the compost yard . Similar issues have been raised before this Court in the Writ Petitions challenging conversion of the park to micro compost yard. This Court, by its order dated 08.11.2017 in W.P.No.26704, 25653 and 26720 of 2017 in the case of Janakar Vs. The Commissioner, Hosur Municipality, Hosur, has observed as under:-

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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

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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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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.

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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

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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.

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Similarly, the Division Bench of this Court by its order dated 14.03.2018 in W.P.No.32938 of 2017 in the case of T.G.Ruthramani, Secretary, Poonamallee Nanbargal Nagar, Veettu Manai Urimaiyalargal Nalasangam, Poonamallee, Thiruvallur District, Chennai, Vs. The Member Secretary, Chennai Metropolitan Development Authority, Thalamuthu Natarajan Maligal, Egmore, Chennai, has observed as under:-

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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.

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This Court, by its order dated 22.01.2018 in the case of M.S.Rangarajan Vs. The Pammal Municipality, Pammal, Chennai, has observed as under:14. According to the 1st respondent/ Municipality, the playground in question was not maintained properly. As per the Municipal Solid Waste Rules, 2016, the local body is required to set up Municipal Solid Waste handling facility as well as Micro Composting Facility within a small geographical area, so that the highly biodegradable 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

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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.

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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.

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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 nonbio-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.

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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

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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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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.

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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 cooperate 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.

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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.

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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.

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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.

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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.

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As noticed in the above said judgments, it is the duty of the Municipal authorities to ensure that there is no nuisance created to the residents. The authorities shall ensure that the Municipal Solid Waste Management Plant/Transfer Station is to be cleaned twice a day and is to be done very regularly to avoid mosquitoes breeding in the portion of park. It is the duty of the authorities to ensure the park to maintain properly. The Municipality is directed to ensure that the remaining area of the park is developed into a well maintained park. It is also directed that footpath and green belts and play equipments should be installed in the park. If the park is not maintained, it will be taken as contempt of the orders of this Court.

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Accordingly, this Writ Petition is dismissed. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.

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s/d-
Assistant Registrar
True Copy
Sub-Assistant Registrar
pkn
To
1. The Commissioner,
Municipal Authority,
Ezhilagam-Chepauk
Chennai 5.
2. The District Collector,
Thiruvallur District,
Thiruvallur.
3. The Municipal Commissioner,
Thiruvallur District,
Thiruvallur.
+1 CC to Mr.R. Ramesh, Advocate sr 85224.
+1 CC to Govt. Pleader sr 86274.
+1 CC to Mr.P. Srinivas, Advocate sr 85994.
W.P.No.12779 of 2018
CNR(CO)
SP(03/01/2019)

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M.G.M.Nagar Nala Munnetra v. The Commissioner

Case brief

What is this about?

What did the court decide?

M.G.M.Nagar Nala Munnetra v. The Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

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