Dismissed

R.Subramanian v. The Secretary to Government

Madras HC10 Dec 2018WP/12850/2018

Case brief

AI extract

What is this about?

The High Court dismissed a Public Interest Litigation challenging the Palladam Municipality's decision to establish a micro compost yard in a portion of an approved park. The court held that while parks are vital lung space, waste management is a greater public necessity when no alternate land is available, rejecting the petitioner's claim for a complete shutdown of the facility.

What did the court decide?

The Writ Petition was dismissed; no order as to costs.

R.Subramanian Vs The Secretary to Government — 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 : 10.12.2018

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CORAM:

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THE HON'BLE MR. JUSTICE S.MANIKUMAR and THE HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD

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W.P.No.12850 of 2018

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R. Subramanaian ... Petitioner
Vs.
1. The Secretary to the Government,
Directorate of Town and Country Planning,
Secretariate, St.George Fort,
Chennai.
2. The District Collector,
Tiruppur, Tiruppur District.
3. The Commissioner,
Palladam Municipality,
Palladam, Tiruppur District.
4. The Thashildar,
Palladam, Tiruppur District. ... 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 to direct the first respondent to consider the representation dated 12.05.2018 and pass further orders.

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For Petitioner : Mr.S.Nagarajan For 1^st , 2^nd & 4^th Respondents : Mr.S.Kamalesh Kannan Government Advocate

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For 3^rd Respondent : Mr.M.Elumalai Government Advocate

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https://hcservices.ecourts.gov.in/hcservices/

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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 is for a Writ of Mandamus directing the respondent No.1/Secretary to the Government, Directorate of Town and Country Planning, Secretariat, St.George Fort, Chennai, to consider the representation dated 12.05.2018 and pass further orders.

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The representation dated 12.05.2018 is against the decision of the Government to convert the land into a Solid Waste Management Area for dumping solid wastes. The translated version of the representation, which has been filed along with the typed set, reads as under:-

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“From:

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R.SUBRAMANIAM, (Age/72/2018) S/o.P.Rengasamy, Door No, 1-A, Ganapathinagar, Mangalam Road, Therkupalayam Pirivu, Narayanapuram, Palladam Municipalaity, Palladam Taluk, Tiruppur District And Ganapathy Nagar Resident and Common Village People, Therkupalayam.

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The Commissioner, Municipality Office, Palladam.

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Sub: Objection to from a Solid Waste Management System in the Park area – Reg.

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A layout was formed in the name and style of “GANAPATHY NAGAR” by dividing the land measuring about 4.40 acres situated at S.F. No.389/2A, 399/2B, 400/2B and 401/1B at Narayanapuram Village, Tiruppur District. My son Mr.Dhanajeyan in his name and others purchased the plot and constructed 9 terrace building after getting the approval from the Palladam Municipality and residing there. Most of the residents are senior citizens and got retirement from the private and Govt services and doing some business. We purchased the property with an aim to lead peaceful life after retirement and out children and grand children should enjoy the property with free air and free light and in sanitized manner. We purchased the property after seeing good environment and the layout plan which was approved by the Deputy Director of Coimbatore

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Rural Town and Country Planning vide No.10/2006 dated 06.03.2006 stating that the subject property is allotted for forming park and constructed the houses at Ganapathy Nagar. Some of plot owners are planning to construct the building and some of us are in position to sale the plot.

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I meekly submit that the officials of Palladam Municipality informed that they are going to construct the children part at the Reserved Site and was digging for basement work and doing several construction works. When it was questioned by the dwellers, the officials informed that they are forming children part and play ground. Thereafter, we are informed that they are forming small library and Yoga Training Centre. The dwellers of the Ganapathy Nagar also believed the same. To shock and surprise, we came to know that the officials of Municipality are going to start a Solid Waste Management System to separate the dust and debris in the reserve site.

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We purchased the plot and constructed at remote area to have a peaceful life. But, If Solid Waste Management System is done, it will affect the health of the residence of the area and residents will get respiratory and Asthma problem. The bad fragrance will come from the dumping place and Mosquito, flied and other insects will be produced and infection will be spread and we, old aged persons and children will be affected. Further the plot owners will be unable to sell the property. Further, the Bore well is formed on the eastern side of park area and water tank is formed on the western side the subject park area. Therefore, it will cause hazardous.

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There is number of unused land of Palladam Municipality and this place is not harmful to anyone. Besides, Poramboke Land measuring about more than 2 acres are situated at Narayanapuram, Therkupalayam and Palladam Municipality purchased 4 acres situated at Patchapalayam, Madhapur and Kethanur situated for the Municipality for above stated usage.

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Therefore, we, the people of dwellers of Ganapathy Nagar and Therkupalayam, are obediently requesting your goodselves that the Solid Waste Management centre should be formed at place which

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will not be a harmful anyone and the same should be not be formed in our area and the subject building should be altered either to form General Library, Integrated Child Development Centre or play ground and allow us to lead a peaceful healthy environment.

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Yours S/d

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Ganapathy Nagar Residence and Common Area people Therkupplayam.

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Place : Palladam Date : 12.05.2018

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Copy to

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Directorate of Town and Country Planning, Secretariate, Chennai.

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The District Collector,

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Office of the Collectorate, Tiruppur.

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Town and Country Planning Zonal Deputy Director, Township, Office of the District Collector, Thiruppur.

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The Thashildar, Thashildar Office, Palladam.”

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The facts stated in the Writ Petition are primarily repetition of the representation. It is the contention of the petitioner that the residents of the area had purchased the property after seeing the layout of Ganapathy Nagar, wherein, the area in question was shown as proposed park. It is the submission of the petitioners that they had an expectation that a park would be developed for the children to play and for old people to sit and relax. It is the submission that if the area is converted into Solid Waste Dumping Yard, there will be stench in the area and it could be impossible for persons residing in the area to live peacefully.

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The Commissioner, Palladam Municipality, respondent No.3 herein, has filed a Counter Affidavit. It is stated in the counter that the Municipality wants to set up a Micro Compost Centre. It is stated that, no doubt, the area had been earmarked for park, micro compost centre has been proposed to be constructed, as there is no other land available in Palladam Municipality. According to the Counter, only a portion of the park is being used for the micro compost centre. On a perusal of the counter, it is seen that there are about 50,000 families residing in Palladam Municipality and the garbage that is generated from the household and other commercial utilities in the locality touches 15 tonnes per day. It is stated in the Counter that before dumping the garbage in the area earmarked for park, the local body resorted to dump the garbage in dry

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wells, which could not percolate water. The area was selected because of the fact that no other alternate place is available. According to the counter, it is submitted by the 3^rd respondent, the Micro Compost Yard is a facility, where the garbage generated by the residents will be collected, segregated and scientifically treated to convert it into manure.

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It has been stated by the Hon'ble Supreme Court that the area, which is earmarked for park should not be converted for any other purpose. But, it is equally important to realise that there has to be an effective measure for disposing solid waste.

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It is stated that micro compost yard has been constructed measuring 30 X 16 feet at a cost of Rs.6.50 lakhs. It is stated that the solid waste management technology is being adopted to scientifically treat the garbage dumped in the facility. That apart, 15 metre path is provided for the solid waste management work.

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Heard the learned counsel appearing on 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 the compost centre has been completed at a cost of Rs.6,50,000/-. It is also stated that no other land is available in Palladam Municipality which can be used for compost yard facility.

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The Court cannot close its eyes to the fact that the people are dumping garbage in every open area that is available. Garbage has been dumped in the rivers going through cities, which is a major health hazard. The Court also cannot close its eyes or not take judicial notice of the fact that wherever a site is identified as a compost yard, the people residing in and around the locality has an objection. There is nothing on record to show that there is no other alternate land available for establishing the micro compost yard. The establishment of micro compost yard in the area would only help the residents to get the garbage segregated properly and will enable the Municipality to decompose the garbage.

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https://hcservices.ecourts.gov.in/hcservices/

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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 judgments relied on by the petitioners are not applicable to this case in hand. The land earmarked to park is not being converted in to hospitals or residential areas. In all those cases, there is nothing to show that there was no other land available to the Municipality as is the case here. 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.

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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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“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

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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 suggest that the Corporation/Municipality concerned shall provide degradable wastage disposal bags to each and every house, as there

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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:-

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“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 the 1st respondent/Municipality that the Micro Composting facility is to occupy only a

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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 land as an open land is in conformity with

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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

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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 micro compost yard is to be cleaned twice a day and is to be done very regularly to avoid mosquitoes breeding in the portion of park.

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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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Sd/-

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Assistant Registrar(CS-III)

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//True copy//

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Sub Assistant Registrar

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asi/pkn

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The Secretary to the Government, Directorate of Town and Country Planning, Secretariate, St.George Fort, Chennai.

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The District Collector, Tiruppur, Tiruppur District.

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The Commissioner,
Palladam Municipality,
Palladam, Tiruppur District.
4. The Thashildar,
Palladam, Tiruppur District.
+1cc to Mr.S.Nagarajan, Advocate SR.No.85650
W.P.No.12850 of 2018
RSI(CO)
GMY(24/01/2019)

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R.Subramanian v. The Secretary to Government

Case brief

What is this about?

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R.Subramanian v. The Secretary to Government

Case brief

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