P. Muthuvel v. Tamil Nadu Pollution Control Board & Ors.

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 26.04.2011CORAM:THE HON'BLE MS. JUSTICE K. SUGUNAandTHE HON'BLE MR. JUSTICE A. ARUMUGHASWAMYW.P. (MD) No.908 of 2011 & M.P.(MD) Nos.1 & 2 of 2011W.P. (MD) No. 3661 of 2011 & M.P. (MD) Nos.1 & 2 of 2011P. MuthuvelPetitioner in both the writ petitionsvs.1Tamil Nadu Pollution Control Boardrepresented by its ChairmanChennai 600 0022The District CollectorRamanathapuramRamanathapuram District3The District Environmental EngineerTamil Nadu Pollution Control BoardNo.6/26, Gangai StreetMadurai RoadVirudhunagar – 14The Revenue Divisional OfficerRamanathapuramRamanathapuram District5The Commissioner Keezhakarai MunicipalityKeezhakaraiRamanathapuram District6The Executive OfficerThillaiyenthal VillageThirupullani UnionRamanathapuram District7M.K.M. Abdul MalikRespondents in WP No.908/111Tamil Nadu Pollution Control Boardrepresented by its ChairmanChennai 600 0022The District CollectorRamanathapuramRamanathapuram District https://hcservices.ecourts.gov.in/hcservices/ 23The District Environmental EngineerTamil Nadu Pollution Control BoardNo.6/26, Gangai StreetMadurai RoadVirudhunagar – 14The Revenue Divisional OfficerRamanathapuramRamanathapuram District5The Commissioner Keezhakarai MunicipalityKeezhakaraiRamanathapuram District6The Executive OfficerKeezhakarai MunicipalityRamanathapuram TalukRamanathapuram District7The Executive OfficerThillaiyenthal VillageThirupullani UnionRamanathapuram DistrictRespondents in W.P.No.3661/11W.P. No.908 of 2011:Writ Petition filed under Article 226 of the Constitution of Indiaseeking a writ of mandamus forbearing the respondent no.5 from dumpingthe wastes of the Keezhakarai Municipality in Survey Nos.98/2 and 87/2 inthe Panchayat situated at Pallamorekulam Village, Pallamorekulam Group,Keezhakarai Sub-Registration District Ramanathapuram District andconsequently direct the respondent no.6 to remove and safely dispose ofthe already dumped waste in the Keezhakarai Municipal Area.W.P. No.3661 of 2011:Writ Petition filed under Article 226 of the Constitution of Indiaseeking a writ of certiorari calling for the records pertaining to theimpugned order in Lr.No.DEE/TNPCBd/VNR/F Municipal Solid Wastes1441/RMD/08 dated 11.07.2008 on the file of the respondent no.3 and quashthe same as illegal.For petitionerMr. T. Lajapathy Royin both the WPsFor RR 1 & 3 inMr. Raman Laalboth the WPsFor RR 2,4 & 7, 6 Mr. M. Rajarajanin WP No.908/11Govt. AdvocateFor RR 2,4 & 7Mr. M. Rajarajan, Govt. Advocatein WP No.3661/11 https://hcservices.ecourts.gov.in/hcservices/ 3For R5 inMrs. S. SrimathyWP No.908/2011For RR 5 & 6 inMrs. S. SrimathyWP No.3661/2011- - - - -COMMON ORDER(Common Order of the Court was made by A. ARUMUGHASWAMY, J.)While W.P. No.908 of 2011 is filed seeking a writ of mandamusforbearing the respondent no.5 from dumping the wastes of KeezhakaraiMunicipality in Survey Nos.98/2 and 87/2 in Thillaiyenthal Panchayatsituated at Pallamorekulam Village, Pallamorekulam Group, KeezhakaraiSub-Registration District, Ramanathapuram District and consequentlydirect the respondent no.6 to remove and safely dispose of the alreadydumped waste in the Keezhakarai Municipal Area, W.P. No.3661 of 2011 isfiled calling in question, the order dated 11.07.2008 passed by the thirdrespondent, viz., the District Environmental Engineer, Tamil NaduPollution Control Board, Madurai in and by which Keezhakarai Municipalityis given No Objection Certificate for the setting up of a wasteprocessing facility at R.S. No.87/2, Pallamorekulam Group, ThiruppullaniVillage, Ramanathapuram Taluk, Ramanathapuram District. These two writpetitions have been filed by one P.Muthuvel in his capacity as the VicePresident of Thillaiyenthal Village Panchayat.2.The vehement contentions of the petitioner are as follows:i)As per Rule 4 and Rule 9 of the the MunicipalSolid Wastes (Management and Handling) Rules, 2000, ("theRules" for short) other Municipality cannot construct abuilding for solid waste management system and in theevent of any untoward incident taking place in the plant,the said Municipality wherein the plant is located, isanswerable and hence, the plant should not be allowed tobe erected.ii)Before No Objection Certificate wasissued by the Pollution Control Board to the fifthrespondent Municipality, the petitioner was not givenopportunity to put forth his case and thus, theprinciples of natural justice have been violated; hence,the No Objection Certificate which is under challenge hasto be set aside.iii)The area in question where the plant isto be erected is nearby a water body which is against therelevant rules and this aspect has not at all beenconsidered by the Pollution Control Board; hence, on thisscore also, the No Objection Certificate given by thePollution Control Board has to be set aside and theproposal given by the fifth respondent Municipality hasto be rejected. https://hcservices.ecourts.gov.in/hcservices/

43.The Commissioner of Keezhakarai Municipality who is the fifthrespondent in both the writ petitions has filed counter affidavit statingthat a proposal has been sent to the Government to put up a Solid WasteManagement System and the same has been approved; under "ekf;F ehnkjpl;lk; 2010-2011", the Government has sanctioned a sum of Rs.20 lakhs toput up compound wall to an extent of 470 ms. and even No ObjectionCertificate has been obtained from Tamil Nadu Pollution Control Board forsetting up of the waste processing facility; hence, they should not beprevented from constructing a plant in the gifted area in Survey No.87/2and 98/2 in Thillaiyenthal Panchayat and the writ petitions have to bedismissed.4.The contention of the fifth respondent Municipality as well asthe Pollution Control Board based on which they seek dismissal of thewrit petitions are as under:i)The site in question has been inspected and NoObjection Certificate has been granted by the Tamil NaduPollution Control Board for erection of plant in the site inquestion; hence, the apprehension of the petitioner is notonly imaginary but also baseless.ii)As per the Rules, there is no bar forconstruction of a plant in other Municipality and as such,the petitioner cannot prevent the erection of plant inThillaiyenthal Panchayat.5.Heard the learned counsel for the respective parties.6.The main ground of attack of the petitioner is that as per Rule4 of the Rules, a Municipality cannot be allowed to construct a plant inother Municipality to dump wastages in that area. Rule 4(1) and alsoRule 9 of the Rules which are relevant for consideration run as under:"4.Responsibility of municipal authority:(1)Every municipal authority shall, within theterritorial area of the municipality, beresponsible for the implementation of theprovisions of these rules, and for anyinfrastructure development for collection, storage,segregation, transportation, processing anddisposal of municipal solid wastes.9.Accident reporting:When an accident occurs at any municipal solidwastes collection, segregation, storage,processing, treatment and disposal facility orlandfill site or during the transportation of suchwastes, the municipal authority shall forthwithreport the accident in Form V to the Secretary incharge of the Urban Development Department inmetropolitan cities, and to District Collector orDeputy Commissioner in all other cases." https://hcservices.ecourts.gov.in/hcservices/

57.A conjoint reading of the above two provisions would clearlyindicate that territorial jurisdiction of every Municipality has beenspecifically mentioned. The second aspect of the matter is that if anyuntoward incident takes place in a particular Municipality, only theparticular Municipality where the plant is situated, is responsible forthe said untoward incident. Thus, these provisions make it amply clearbeyond any reasonable doubt that the Municipality where the plant is tobe erected is responsible for any untoward incident.8.The next aspect which has to be looked into is that according tothe petitioner, he was not heard by the Pollution Control Board before NoObjection Certificate was issued to the fifth respondent Municipality.Undisputedly, the yard suggested by the fifth respondent is situated onlyin the petitioner Panchayat, viz., Thillaiyenthal Panchayat. Admittedly,the inspection of the fifth respondent Municipality carried out by thePollution Control Board was not intimated to Thillaiyenthal Panchayat andNo Objection Certificate was also issued behind the back ofThillaiyenthal Panchayat. 9.Now, during the course of arguments, a sketch has been producedbefore this Court which clearly shows that Oorani is also situated in thesite in question. Hence, we are of the considered view that it wouldonly be in the fitness of things to set aside the No ObjectionCertificate already granted by the Pollution Control Board to the fifthrespondent Municipality and to remit the matter back to the PollutionControl Board for consideration afresh.10.It is also to be pointed out at this juncture that the fifthrespondent, in the counter affidavit filed, has averred that in the eventof the fifth respondent being allowed to erect the plant in the site inquestion, Thillaiyendal Panchayat also can use the said plant. Thisstand of the fifth respondent is recorded.11.In view of the foregoing discussion, the No ObjectionCertificate already granted to the fifth respondent Municipality by thePollution Control Board is set aside and the matter is remitted back tothe Pollution Control Board to issue notice to both sides, viz.,Keezhakarai Municipality and Thillaiyenthal Panchayat, hear them, re-inspect the site in question and dispose of the fifth respondentMunicipality's application with regard to issuance of No ObjectionCertificate within a period of three weeks from the date of receipt of acopy of this order. 12.Further, since it is the stand of the petitioner that the sitein question where the plant is to be erected, is nearby a water body,before carrying out the above exercise, the Pollution Control Boardshall examine as to whether the water body, as claimed by the petitioner,is in existence and whether it will affect the irrigation in the place inquestion, in the event of erection of plant in the site in question.13.With the aforesaid directions, both the writ petitions standdisposed of. No costs. Consequently, connected Miscellaneous Petitionsin M.P. (MD) Nos.1 & 2 in both the writ petitions stand closed. https://hcservices.ecourts.gov.in/hcservices/

614.Now, coming to M.P. No.4 of 2011 in W.P. (MD) No.908 of 2011, itis filed by the seventh respondent in the writ petition seeking an orderof interim injunction restraining Keezhakarai Municipality from dumpingwastage in and around the sea or sea-shore adjacent to Keezhakarai Town. 15.After the filing of the above petition, we find that the wastagehas been cleared by Keezhakarai Municipality. Hence, there is no need topass any order in this petition. Nevertheless, Keezhakarai Municipalityis restrained from dumping wastage in future also in the sea or sea-shorewhich is adjacent to Keezhakarai Town. With this direction, M.P. (MD) No.4 of 2011 is closed.Sd/-Deputu Registrar (L.A)/True Copy/Assistant Registrar To1The ChairmanTamil Nadu Pollution Control Board, Chennai 600 002.2The District CollectorRamanathapuram, Ramanathapuram District.3The District Environmental EngineerTamil Nadu Pollution Control BoardNo.6/26, Gangai Street, Madurai Road, Virudhunagar – 1.4The Revenue Divisional OfficerRamanathapuram,Ramanathapuram District.5The Commissioner Keezhakarai Municipality,Keezhakarai, Ramanathapuram District.6The Executive OfficerThillaiyenthal VillageThirupullani Union, Ramanathapuram District.7The Executive OfficerKeezhakarai MunicipalityRamanathapuram Taluk, Ramanathapuram District.+ 1 cc to The Special Government Pleader, SR No.15527+ 2 ccs to M/s.T.Lajapathi Roy, Advocate, SR Nos.15197, 15198+ 1 cc to Mr.R.Ramanlal, Advocate, SR No.15204+ 1 cc to M/s.S.Srimathy, Advocate, SR No.15328Common Order inW.P. (MD) Nos.908 and 3661 of 201126.04.2011cadRJ/29.4.11 (IT)6p/13c