Dismissed

Sairam Avenue First Cross Street Owners, v. The Department of Urban Development

Madras HC3 Apr 2019WP/8322/2019

Case brief

AI extract

What is this about?

This petition challenged the construction of a compost yard in a public park near residential areas and schools. The Court held that while waste disposal is essential, a limited portion of a park can be converted for this purpose provided strict hygiene and maintenance standards are met. The writ petition was dismissed.

What did the court decide?

The writ petition was dismissed. The Court directed that the compost yard must be cleaned twice daily, fogging operations conducted, and waste segregation enforced.

Sairam Avenue First Cross Street Owners, Vs The… — Environment and Pollution | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 03.04.2019

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CORAM:

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THE HONOURABLE MR.JUSTICE S.MANIKUMAR and

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THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD

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W.P.No.8322 of 2019

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and

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W.M.P.No.8866 of 2019

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Sairam Avenue First Cross Street Owners and Residents Welfare Association,

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(Regn.No.261 of 2016)

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Flat F1, Aabharana Apartments

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Plot No.6, Sairam Avenue I Cross Street Valasaravakkam, Chennai-600 087

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.. Petitioner

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Vs.

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1.The Department of Urban Development Represented by the Secretary in Charge State of Tamil Nadu, Secretariat Chennai - 600 009.

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2.The Tamil Nadu State Pollution Control Board Rep by its Secretary No.76, Mount Salai Guindy, Chennai-600 032

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3.Zonal Officer/Deputy Commissioner, Zone-11, Chennai Corporation, Valasaravakkam, Chennai-600 087

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4.The Commissioner, Corporation of Chennai Rippon Building, Chennai-600 003 .. Respondents

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Prayer: Writ Petition is filed under Article 226 of the Constitution of India, issuance of a Writ of Mandamus, forbearing the respondents from carrying on construction and operations of compost yard and any other operations of dumping or waste processing in the locality at Poothapedu School street in Ward No.151, Sector -34, Zone -11, Valasarawalkam, Chennai.

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

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Petitioner : Ms.M.Meenatchi

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For Respondents: Mr.Akhil Akbarali,

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Government Advocate for R1

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Mr.C.Kasirajan, Standing counsel for TNPCB for R2

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Mr.K.Soundararajan, Standing counsel for Greater Chennai Corporation

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for R3 and 4

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O R D E R

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(Order of this Court was made by S.MANIKUMAR, J.)

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Claiming himself to be a public interest litigant, Mr.S.Vairamuthu, Secretary, Sairam Avenue First Cross Street Owners and Residents Welfare Association, has filed the instant public interest litigation for a Mandamus, forbearing the respondents, from carrying on construction and operations of dumping or waste processing in the locality at Poothapedu School street in Ward No.151, Sector-34, Zone-11, Valasarawalkam, Chennai.

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Petitioner association caters to the welfare of the residents of the locality, comprising various houses including multi-storied buildings surrounded by Government School, Government Girls High School and a Government Primary Health Centre and striving hard to keep the area very neat and clean. During September, 2017, 4^th respondent Corporation had started construction of a compost yard at Poothapedu (Sairam Avenue), School street in Ward 151, Sector-34, Zone-11 where the petitioner association is situated for dumping waste and processing the same into manure which is done in a open yard spreading foul smell and causing various diseases. The said plot was used as a park by the local residents and children, schools are situated, adjacent to the said plot.

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Petitioner association has further contended that dumping and processing will cause foul smell leading to highly inconvenient and unhygienic conditions to the residents. The 4^th respondent has continued with the construction of the compost yard despite objections by the people of the locality and the process is in full swing. The plot in which the waste is to dumped and processed is adjacent to Government Schools and Primary Health Centre and there are houses all around the vicinity. The buildings are only 10 to 15 feet away from the said place. The dumping and processing of the waste will lead to great levels of pollution and inconvenience to the residents,

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children and staff in the school as well as to the patients visiting the health centre.

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Petitioner association has further submitted that they filed an application in A.No.221 of 2017 before the National Green Tribunal Chennai praying for a mandatory, as well as permanent injunction restraining the respondents from putting up the dumping or waste processing yard in the locality on the ground that the construction of the said yard by the respondents is without considering the residential buildings, schools and primary health centre. The proposed dumping yard does not come under the norms and regulations prescribed under the Solid Waste Management Rules, 2016, which says that such sites shall not be within a distance of 200 metres from habitation. Whereas, in this case, the respondents are putting up such construction within 30 feet from the habitations. Therefore, Corporation of Chennai without adhering to the said norms started had put up construction. The said application was admitted and notice was ordered to the respondents and the case is pending.

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Petitioner association has further contended that the third respondent has instructed his subordinate officers to continue with the construction and the same is going on from 07.03.2019. When enquired, the petitioner came to know that they have been instructed to complete the work. Even though the pendency of the case was informed, the third respondent did not heed to the request of the petitioner and construction is going on. In the abovesaid circumstances, the petitioner has filed the instant writ petition, for the prayer stated supra.

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Heard the learned counsel for petitioner and Mr.Akhil Akbar ali, Government Advocate for R1, Mr.C.Kasirajan, Standing counsel for R2 and Mr.K.Soundararajan, Standing counsel for R3 and 4.

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Learned counsel for the petitioner association 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 Corporation would contend that due to urbanization there is hardly any land left for use, as a compost yard. He further submitted 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.,) learned counsel for the Corporation submitted 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., and there is a necessity to build a compost yard.

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There are two options for this Court to deal with the writ petition.

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(i) to dismiss the writ petition, on the ground that the petitioner association has already approached the National Green Tribunal or (ii) without going into the merits of the case, since this Court has deal with similar issues, we deem it fit to consider the merits of the case, and dispose of the writ petition.

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Learned counsel for the Corporation also contended that the writ petition should not be entertained as the petitioner association has already approached the National Green Tribunal established under the National Green Tribunal Act and notice has been ordered to the respondents and that the case is pending before the Tribunal.

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Though the petitioner association, has move the National Green Tribunal, for reliefs, in as much the petitioner has sought for stated supra. 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 industrial, commercial and residential waste. As pointed out due to rapid urbanization, virtually no space is available for dumping waste. Municipalities and local bodies have therefore to balance the competing interests of having parks/ lung space, on one hand and dumping yards, on the other hand. Municipalities and local bodies therefore, cannot be found fault with for converting portion 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. 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

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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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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

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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 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 Hon'ble 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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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

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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 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

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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 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 Corporation/Municipal authorities to ensure that there is

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no nuisance created to the residents. 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 have come up with 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. We are now in the modern era and development is required for betterment and hence, technicalities should not come in the way to contend that construction of dumping yard could be detrimental to the development of Society. The authorities shall ensure that Municipal Solid Waste Management Plant/Transfer Station is cleaned up regularly, kept in hygienic condition.

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In view of the above, this Writ Petition is dismissed.
There shall be no order as to costs. Consequently, connected
miscellaneous petition is closed.
Sd/-
Assistant Registrar(CCC)
//True Copy//
Sub Assistant Registrar
dm/kpr
To
1.The Secretary
Department of Urban Development
State of Tamil Nadu, Secretariat
Chennai - 600 009.
2.The Secretary
Tamil Nadu State Pollution Control Board
No.76, Mount Salai
Guindy, Chennai-600 032
3.The Zonal Officer/Deputy Commissioner,
Zone-11, Chennai Corporation,
Valasaravakkam, Chennai-600 087
4.The Commissioner,
Corporation of Chennai
Rippon Building, Chennai-600 003