IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 22.04.2010 Coram: The Honourable Mr.Justice ELIPE DHARMA RAO AND The Honourable Mr.Justice K.K.SASIDHARAN W.P.Nos.10641 to 10643 of 2009, 15525 & 15526 of 2009 and Writ Appeal No.1100 of 2009 M.P.Nos.1 of 2009 (4 Nos.) , 2/2009 (5 Nos.) & M.P.No.3 of 2009 W.P.No.10641 to 10643 of 2009 S. Nandakumar ... Petitioner in all the three W.Ps Versus 1. The Secretary to Government of Tamil Nadu Department of Environment and Forest Fort St.George Chennai-600 009. 2. The Secretary to Government of Tamil Nadu Department of Revenue Fort St.George Chennai-60 009. 3. The Tamil Nadu Pollution Control Board Rep.by its Chairperson 76, Anna Salai Chennai-60 032. 4. The Collector, Thiruvallur District. 5. The Executive Authority Kuthambakkam Panchayat Thiruvallur District. https://hcservices.ecourts.gov.in/hcservices/ 6. Union of India rep.by Secretary to Government Ministry of Environment and Forests 6th Floor, C.G.O. Complex Paryavaran Bhavan, Lodhi Road New Delhi. 7. The Chief Engineer Public Works Department Thiruvallur District. 8. The Commissioner Ambattur Municipality Thiruvallur Distirct. 9. The Commissioner Maduravayal Municipality Thiruvallur District. 10. The Commissioner Tiruverkadu Municipality Thiruvallur District. 11. The Commissioner Valasaravakkam Municipality Thiruvallur District. 12. The Commissioner Poonamallee Municipality Thiruvallur District. 13. The Executive Officer Porur Town Panchayat Thiruvallur District. ..Respondents in all the three WPs W.P.Nos.15525 and 15526 of 2009 Kuthambakkam Panchayat Rep.by its President, P.Geetha Kuthambakkam Panchayat Office Amman Koil Street Kuthambakkam Centre Poonamallee Block Thiruvallur District-602 107. ..Petitioner in both W.Ps Versus 1. The Secretary to Government of Tamil Nadu Department of Environment and Forest Fort St.George https://hcservices.ecourts.gov.in/hcservices/ Chennai-600 009. 2. The Secretary to Government of Tamil Nadu Department of Revenue Fort St.George Chennai-60 009. 3. The Tamil Nadu Pollution Control Board Rep.by its Chairperson 76, Anna Salai Chennai-60 032. 4. The Collector Thiruvallur District, Thiruvallur. 5. Union of India rep.by Secretary to Government Ministry of Environment and Forests 6th Floor, C.G.O. Complex Paryavaran Bhavan, Lodhi Road New Delhi. 6. The Chief Engineer Public Works Department J.N.Road, Thiruvallur, Thiruvallur District. 7. The Commissioner Ambattur Municipality Ambattur, Thiruvallur Distirct. 8. The Commissioner Maduravayal Municipality Maduravayal, Thiruvallur District. 9. The Commissioner Thiruverkadu Municipality Thiruverkadu, Thiruvallur District. 10. The Commissioner Valasaravakkam Municipality Valasaravakkam, Thiruvallur District. 11. The Commissioner Poonamalle Municipality Poonamallee, Thiruvallur District. 12. The Executive Officer Porur Town Panchayat Thiruvallur District. 13. Airports Authority of India Rajiv Gandhi Bhawan https://hcservices.ecourts.gov.in/hcservices/ Saftharjung Airport New Delhi-110 03. ..Respondents in both WPs. W.A.No.1100 of 2009 Kuthambakkam Village Panchayat Rep.by its President, P.Geetha Kuthambakkam Poonamallee Taluk Thiruvallur District-602 107. ..Appellant Versus 1. State of Tamil Nadu rep.by its Secretary to Government Revenue Department Fort St.George, Chennai-600 009. 2. The Principal Commissioner and Commissioner of Land Administration Chepauk, Chennai-600 005. 3. The District Collector Thiruvallur District. 4. The Tahsildar Poonamallee Taluk Poonamallee, Thiruvallur District. 5. The Commissioner Ambattur Municipality Ambattur, Chennai-600 053. 6. The Executive Officer Thiruverkadu Gr.III Panchayat Thiruverkadu, Chennai-600 077. ..Respondents Prayer in W.P.No.10641 of 2009 Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records and quash the G.O.Ms.No.78 dated 23 February, 2009 issued by the second respondent, restrain respondents 1 to 4 and 7 to 13 from in any manner divesting the land in Survey No.820/1C from the fourth respondent Panchayat and from setting up the Solid Waste Management Facility at the said Survey No.820/1C or anywhere else in Kuthambakkam Village. Prayer in W.P.No.10642 of 2009 https://hcservices.ecourts.gov.in/hcservices/ Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records and quash the proceedings in 24325/2007/No.1 issued by the fourth respondent dated 10.3.2009 rejecting the objections of the Kuthambakkam Village and restrain respondents 1 to 4 and 7 to 13 from in any manner divesting the land in Survey No.820/1C from the fourth respondent Panchayat and from setting up the Solid Waste Management Facility at the said Survey No.820/1C or anywhere else in Kuthambakkam Village. Prayer in W.P.No.10643 of 2009 Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records and quash the letter No.TNPCB/SWM/32481 dated 29.10.2008 that "No Objection Certificate" issued by the third respondent for the proposed Solid Waste Management facility in Survey No.820/C in Kuthambakkam Village. Prayer in W.P.No.15525 of 2009 Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari to quash the letter No. TNPCB/SWM/32481 dated 29.10.2008 issued by the third respondent for the proposed Solid Waste Management facility in Survey No.820/C in Kuthambakkam Village after calling for the connected records. Prayer in W.P.No.15526 of 2009 Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus to quash the proceedings in 24325/2007/No.1 dated 10.3.2009 issued by the 4th respondent herein after calling for the records and consequently restrain the respondents from divesting the lands in Survey No.820/1C from petitioner Panchayat or change its land use for setting up the Solid Waste Management Facility for respondents 7 to 12. Prayer in Writ Appeal No.1100 of 2009 Writ Appeal against the order dated 8 April, 2009 in W.P.No.5668 of 2009. Writs Petitions filed under Article 226 of the constitution of India praying to issue a writ of Certiorari calling for the records of the 1st respondent relating to G.O.Ms.No.78 Revenue (jpK7) https://hcservices.ecourts.gov.in/hcservices/ Department dated 23.2.2009 and quash the same and (ii) Stay the operation of the G.O.Ms.No.78 Revenue (jpK7) Department dated 23.2.2009 of the 1st respondent granting enter upon permission to the 5th and 6th respondents in Survey No.820/1C of Kuthambakkam Village, Poonamallee Taluk, Tiruvallur District (in M.P.2/2009) pending WP No.5668/2009 respectively. . For Petitioner in W.P.Nos.10641 to 10643/2009 .. Mr.D.Nagasaila For Petitioner in W.P.Nos.15525 & 15526 of 2009 & For Appellant in W.A.No.1100 of 209 .. Ms.R. Vaigai, for Ms. S. Meenakshi For Respondents 1,2,4,5 & 7 in W.P.Nos.10641 to 10643 of 2009, RR 1,2,4 & 6 in W.P.Nos.15525 & 15526 of 2009 and RR 1 to 4 in W.A.No.1100 of 2009 .. Mr.P.S.Raman Advocate General Assisted by Mr.G.Desingu Spl.Government Pleader For R5 in W.A.No.1100 of 2009 For R7 in W.P.Nos.15525 & 15526 of 2009 and R8 in W.P.Nos.10641 to 10643 of 2009 .. Mr.P.Srinivas For R3 in W.P.Nos.15525 & 15526 of 2009 & W.P.Nos.10641 to 10643 of 2009 .. Mr.R.Ramanlal For R5 in W.P.Nos.15525 & 15526 of 2009 & R6 in W.P.Nos.10641 to 10643 of 2009 .. Mr.C.V.Ramachandra Murthy For RR 8 to 12 in W.P.Nos.15525 & 15526 of 2009 & RR 9 to 13 in W.P.Nos.10641 to 10643 of 2009 and R6 in W.A.No.1100 https://hcservices.ecourts.gov.in/hcservices/ of 2009 .. Mr.I.Paranthaman ***** COMMON JUDGMENT K.K.SASIDHARAN, J The substantial issue involved in all these writ petitions and connected writ appeal pertains to the decision taken by the Government of Tamil Nadu to allot an extent of 70 acres of land and the consequential entry permission given to the municipalities of Ambattur, Maduravoyal, Thiruverkadu, Valasaravakkam and Poonamallee and Porur Town Panchayat to establish their Solid Waste Management Plant in Kuthambakkam Village in the District of Thiruvallur. 2. The writ petitions in W.P.Nos.15525 and 15526 of 2009 and Writ Appeal No.1100 of 2009 are at the instance of Kuthambakkam Panchayat and Writ Petition Nos.10641 to 10643 of 2009 were preferred by a local resident of Kuthambakkam Panchayat. 3. Since the issue involved in all these matters are basically the same and the main grievance was on account of allotment of land in the possession of the panchayat for the purpose of establishment of Solid Waste Management station for other local bodies, the factual matrix as found in W.P.No.15525 of 2009 is taken to narrate the background facts. W.P.NO.15525 OF 2009 THE FACTS - THE CASE OF THE PETITIONER: 4. The petitioner is the President of Kuthambakkam Panchayat, which is stated to be a model village and nominated for the UN Habitat award and the recipient of commendation from the United Nations. 5. The Panchayat by name Kuthambakkam Panchayat, situated at Poonamallee Taluk, Thiruvallur District consists of seven hamlets and agriculture is the main source of livelihood for the villagers. There are about 1,195 families and more than 55% of them are Dalits and landless labourers. Nearly 1000 cattle of the villagers are dependant on 100 acres of common grazing land in the village. These live-stock also provide a substantial source of livelihood for the villagers at Kuthambakkam. For many of these families the cattle they possess is a major source of livelihood and being landless, they are entirely dependant on the common grazing lands. In the absence of these grazing lands, cattle cannot survive and the villagers would be left with no other economic sustenance. The revenue records of Kuthambakkam Village shows that an extent of 99.61 acres of land in Survey No.820/1C had been classified as grazing ground and the said https://hcservices.ecourts.gov.in/hcservices/ land is vested with the petitioner Panchayat as provided under Sections 132 and 134 of the Tamil Nadu Panchayats Act. The said land which is the communal property of the villagers of Kuthambakkam village is being administered by the petitioner for common benefit. The village is situated less than 50 metres from Chembarabakkam lake, which is a fresh water lake and is one of the main sources for supply of drinking water to Chennai City and its suburban areas. The entire Kuthambakkam and neighbouring area which consists of vast tracts of agricultural land, is the main catchment area for the Chembarambakkam lake. 6. While the matters stood thus, the Municipalities of Ambattur, Maduravayal, Tiruverkadu, Valasaravakkam, Poonamallee and Porur Town Panchayat appears to have approached the Government with a proposal for establishing a Municipal Solid Waste Generation Station. The local bodies were in need of adequate lands for establishing common Integrated Solid Waste Management and sanitary land fill facility. The Collector of Thiruvallur District identified the grazing land in Kuthambakkam village as the suitable site for setting up the proposed project and it was intended for all these local bodies. However before taking a decision by the Collector and the Government, no notice was issued to the Village Panchayat. 7. There is a prescribed procedure as contained under Section 134 of the Tamil Nadu Panchayats Act and Rules 3 and 4 of the Tamil Nadu Panchayats (Restriction and Control to Regulate the use of Porombokes in Ryotwari Tracts) Rules, 2000, in the matter of taking over the land for any other specific purpose. However the said procedure was not followed by the District Collector. In fact, when the petitioner and the other villagers came to know of the proposal through other sources, they have promptly approached the authorities. The Panchayat also passed a resolution against the proposal. In the meantime, the petitioner came to know that the Government has passed an order as per G.O.Ms.No.78 dated 23 February, 2009 conveying the land in favour of the local bodies. 8. The Government Order in G.O.Ms.No.78 dated 23 February, 2009 was challenged in W.P.No.5668 of 2009. When the matter was taken up for consideration, the Court having found that there were references about the objections raised by the Village Panchayat and the consideration of such objections by the Government, dismissed the writ petition. The said order is the subject matter in Writ Appeal No.1100 of 2009. 9. The petitioner preferred a writ petition in W.P.No.1230 of 2009 and the said writ petition was disposed of as per order dated 23 January,2009 directing the District Collector to consider and pass orders in respect of the objections raised by the petitioner against the assignment of land and establishment of the Integrated Solid Waste Management project. Accordingly, objections were considered by the District Collector, Thiruvallur and as per proceedings dated 10 March, 2009, the objections were overruled. The said order is the https://hcservices.ecourts.gov.in/hcservices/ subject matter in W.P.No.15526 of 2009. 10. The Tamil Nadu Pollution Control Board as per its proceedings dated 29 October, 2008 granted no objection certificate for the proposed Solid Waste Management Facility in Survey No.820/1C in Kuthambakkam Village. The said proceeding is challenged in W.P.No.15525/2009. The order passed by the Government in G.O.Ms.No.78 dated 23 February, 2009 is once again challenged at the instance of the petitioner in W.P.No.10641 of 2009. The order passed by the Collector dated 10 March, 2009 and the No Objection Certificate issued by the Pollution Control Board dated 29 October,2008 are the subject matter in W.P.Nos.10642 and 10643 of 2009 respectively again at the instance of the very same Villager of Kuthambakkam Panchayat. THE DEFENCE:- 11. The District Collector, Thiruvallur has filed a counter in answer to the contentions raised in all these writ petitions. The counter reads thus:- There is a proposal for alienation of 70 acres out of 99.66 acres of land in Survey No.820/1C of Kuthambakkam Village in favour of six local bodies namely, Poonamallee, Valasaravakkam, Maduravoyal, Ambattur, Tiruverkadu and Porur. When the authorities were considering this proposal, Kuthambakkam panchayat filed writ petition in W.P.No.1230 of 2009 and the said writ petition was disposed of with a direction to consider the objection submitted by the Panchayat. In the meantime, the Government as per G.O.Ms.No.78 dated 23 February, 2009 have granted entry permission in respect of 47 acres of land in Survey No.820/1C of Kuthambakkam Village pending issue of orders of alienation. The writ petition filed against the said proceeding was dismissed by the High Court. The objections raised by the Kuthambakkam Village against the proposal was considered by the revenue administration and as per proceedings dated 10 March,2009, those objections were rejected. The proposal was considered at the level of the District Administration as well as by the Government. It was found that only a portion of grazing ground in Survey No.821/C was intended to be used as a compost yard. The subject land is classified as Government Poramboke grazing land. The District Administration considered the proposal and the subject land was found to be suitable for establishing a common Solid Waste Management station. The Tamil Nadu Pollution Control Board granted "No Objection Certificate" for establishing the project. Before taking a decision by the Government, public notice was given by the Tahsildar, Poonamallee as per proceedings dated 3 July,2007. The Panchayat President and others raised objections and while forwarding the proposal, such objections were considered. It was only thereafter the Government passed an order in G.O.Ms.No.78 dated 23 February, 2009. In pursuance of the said Government Order, possession of the land was given to the concerned local body. The Solid Waste Management Plant would be established only after getting https://hcservices.ecourts.gov.in/hcservices/ necessary permission from the concerned statutory authorities and that too after taking appropriate safety measures. 12. The Revenue department in their counter justified the action taken by the Government to establish a common treatment plant in the subject property. The counter reads thus:- The proposal received from the six Muncipalities and one village panchayat for establishment of a common garbage management plant was considered by the Government along with the report received from the District Collector, Thiruvallur. The area earmarked for the proposed Solid Waste Management project does not form part of the catchment area of Chembarambakkam lake. Before recommending the matter, the District Revenue Officer inspected the site on 28 August, 2007 and the issue was considered at various levels in extenso and then only the Government has taken a decision to handover the land to the local bodies for establishing the common plant. The decision was taken in public interest and as such no interference is called for in the said decision. 13. The Tamil Nadu Pollution Control Board has filed a separate counter affidavit, which reads thus:- The Government of India has notified the Municipal Solid Wastes (Management and Handling) Rules, 2000 under the Environment (Protection) Act, 1986 to regulate the management and handling of municipal solid wastes. As per Schedule I, the Municipalities should have set up the waste processing and disposal facility by 31 December, 2003. The statute has also laid down the specifications and the measures to be taken for prevention of pollution by setting up of Municipal Solid Waste Processing Facility. Though the dead line for implementation of the Rule expired long back, the local bodies were not in a position to establish the facility on account of non-availability of suitable and sufficient land. It was only in such circumstances,Poonamallee, Valasaravakkam, Ambattur, Thiruverkadu and Maduravoyal Municipalities and Porur Panchayat initiated steps for establishing a common Municipal Solid Waste Plant. The site was inspected by the officials of the Pollution Control Board and a No Objection Certificate was issued on 29 October, 2008. As per EIA Notification 2006, Common Municipal Solid Waste Management Facility requires environmental clearance from State Environment Impact Assessment Authority. Therefore the No Objection Certificate issued by the Pollution Control Board was only for the purpose of acquiring the land for establishing the Solid Waste Management Facility and it was not an environmental clearance. THE ARGUMENTS:- 14. The learned counsel for the Kuthambakkam Panchayat made extensive submissions with respect to the violation of the mandatory provisions as contained under Section 134 of the Tamil Nadu Panchayats Act. According to the learned counsel, porambokes, which https://hcservices.ecourts.gov.in/hcservices/ includes grazing ground shall always vest with the local panchayat. The Collector can exclude the land only after completing the statutory formalities which includes consultation with the village panchayat. According to the learned counsel before passing the Government Order in G.O.Ms.No.78 dated 23 February, 2009, no kind of consultation was initiated by the District Collector with the village panchayat and therefore the order passed by the Government in G.O.Ms.No.78 is non est in law. The learned counsel by placing reliance on various judgments of the Supreme Court on environmental degradation and sustainable development contended that the subject land consists of water body and grazing land and as such, the very action in taking away the land for the purpose of Solid Waste Management Plant would ruin the environment. The learned counsel has taken us through various proceedings to justify her contention that even before considering the objections made by the panchayat and the local public, a decision was taken by the Government to hand over the site to the local bodies. The learned counsel has drawn our attention to the report of the expert team appointed by the Pollution Control Board and their finding that the subject site is not suitable for establishing a garbage disposal plant. The learned counsel also pointed out that the substantial issues raised by the panchayat were never considered in the matter before taking a decision by the Government and as such all the proceedings impugned in these writ petitions are liable to be quashed. The learned counsel has also made submissions with respect to the order passed by the learned Single Judge which is the subject matter in W.A.No.1100 of 2009. According to the learned counsel by placing reliance on certain observations made in the Government Order, the learned Single Judge was pleased to dismiss the writ petition. However, the basic issues raised by the panchayat remain unanswered and as such the order passed by the learned Single Judge also requires interference. 15. The learned counsel for the petitioner in W.P.Nos.10641 to 10643 of 2009 adopted the arguments of the learned counsel for the Village Panchayat. 16. The learned Advocate General appearing on behalf of the Government justified the action taken in public interest. According to the learned Advocate General, before issuing the order in G.O.Ms.No.78 dated 23 February, 2009, the objections submitted by the Village Panchayat as well as the villagers were considered and a reference to that effect is contained even in the impugned Government Order. According to the learned Advocate General, everything depends upon the clearance to be given by the Environmental Assessment Authority and the no objection certificate issued by the Pollution Control Board is only tentative in nature. The learned Advocate General made a statement before us that in case the Environmental Assessment Authority comes to a conclusion that the subject site is not fit for establishing the Solid Waste Management Plant, the land would be returned to the Kuthambakkam Panchayat. DISCUSSION:- https://hcservices.ecourts.gov.in/hcservices/ 17. The poramboke land which is the subject matter of these writ petitions vested with Kuthambakkam Panchayat and admittedly the land has been administered by the Panchayat for the benefit of the villagers. Section 134 of the Tamil Nadu Panchayats Act provides that the porambokes namely, grazing grounds, threshing floors, burning and burial grounds, cattle-stands, cart-stands and topes shall vest in the village panchayat and the panchayat shall have power to regulate the use of such porambokes. Section 134(3) authorises the Collector, after consulting the Village Panchayat to exclude the land from the operation of the Act. Section 134 reads thus:- "134. Village panchayat to regulate the use of certain porambokes in ryotwari tracts:- (1) The provisions of this section shall apply only in ryotwari tracts. (2) The following porambokes namely, grazing grounds, threshing floors, burning and burial-grounds, cattle-stands, cart stands and topes shall vest in the village panchayat, and the village panchayat shall have power, subject to such restrictions and control *as may be prescribed to regulate the use of such porambokes, provided the porambokes are at the disposal of the Government. (3) The collector, after consulting the village panchayat, may, by notification exclude from the operation of this Act, any poramboke referred to in sub-section(2), may also modify or cancel such notification. (4) The village panchayat shall also have power, subject to *such restrictions and control as may be prescribed, to regulate the use of any other poramboke which is at the disposal of the Government, if the village panchayat is authorised in that behalf by an order of the Government. (5) The village panchayat may, subject to such restrictions and control as maybe prescribed, plant trees on any poramboke, the use of which is regulated by it under sub-section (2) or sub-section (4). 18. There is no dispute that it was only in public interest the Government initiated action to allot 70 acres of poramboke land to the local bodies. However the fact remains that the land has all along being in the possession and enjoyment of the petitioner panchayat and it was only by way of the impugned Government order in G.O.Ms.No.78 it was sought to be taken out of their control. The https://hcservices.ecourts.gov.in/hcservices/ State was concerned about the problem of disposal of the garbage in six of its municipalities and one local panchayat. The State was expected to assist the local bodies in their efforts for effective garbage disposal. However the State should be equally concerned with the difficulties of the other local bodies whose lands are sought to be taken for the purpose of other Muncipalities or panchayats. The petitioner panchayat is only a custodian of the land and the ownership always vests with the State. However before the custodian is divested of its control, an opportunity should be given to offer their views. 19. The core question is as to whether the Government was justified in allotting its poramboke land to the local bodies for establishing the common Municipal Solid Waste Processing Station without making an effective consultation with the local panchayat. 20. The Municipalities and panchayats have taken action for waste processing and disposal. But it was not by way of a scientific method. The collection, storage, segregation, treatment and disposal of the Municipal Solid Wastes always posed serious questions to the Municipalities and other local bodies. Of late, it has become a burning issue. It was only in such circumstances, the Government of India has come up with the notification with respect to the disposal of the Municipal Solid Wastes. The Municipal Solid Wastes (Management and Handling) Rules, 2000 issued under the Environment and Protection Act,1986, seeks to regulate the management and handling of municipal solid wastes. The Municipal Authorities were given the task of collection, reception, storage, segregation, transportation, treatment and disposal of the municipal solid wastes and for the said purpose they have to set up waste processing and disposal facilities including landfills. The Government of