1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26.04.2011 CORAM: THE HON'BLE MS. JUSTICE K. SUGUNA and THE HON'BLE MR. JUSTICE A. ARUMUGHASWAMY W.P. (MD) No.908 of 2011 & M.P.(MD) Nos.1 & 2 of 2011 W.P. (MD) No. 3661 of 2011 & M.P. (MD) Nos.1 & 2 of 2011 P. Muthuvel Petitioner in both the writ petitions vs. 1 Tamil Nadu Pollution Control Board represented by its Chairman Chennai 600 002 2 The District Collector Ramanathapuram Ramanathapuram District 3 The District Environmental Engineer Tamil Nadu Pollution Control Board No.6/26, Gangai Street Madurai Road Virudhunagar – 1 4 The Revenue Divisional Officer Ramanathapuram Ramanathapuram District 5 The Commissioner Keezhakarai Municipality Keezhakarai Ramanathapuram District 6 The Executive Officer Thillaiyenthal Village Thirupullani Union Ramanathapuram District 7 M.K.M. Abdul Malik Respondents in WP No.908/11 1 Tamil Nadu Pollution Control Board represented by its Chairman Chennai 600 002 2 The District Collector Ramanathapuram Ramanathapuram District https://hcservices.ecourts.gov.in/hcservices/ 2 3 The District Environmental Engineer Tamil Nadu Pollution Control Board No.6/26, Gangai Street Madurai Road Virudhunagar – 1 4 The Revenue Divisional Officer Ramanathapuram Ramanathapuram District 5 The Commissioner Keezhakarai Municipality Keezhakarai Ramanathapuram District 6 The Executive Officer Keezhakarai Municipality Ramanathapuram Taluk Ramanathapuram District 7 The Executive Officer Thillaiyenthal Village Thirupullani Union Ramanathapuram District Respondents in W.P.No.3661/11 W.P. No.908 of 2011: Writ Petition filed under Article 226 of the Constitution of India seeking a writ of mandamus forbearing the respondent no.5 from dumping the wastes of the Keezhakarai Municipality in Survey Nos.98/2 and 87/2 in the Panchayat situated at Pallamorekulam Village, Pallamorekulam Group, Keezhakarai Sub-Registration District Ramanathapuram District and consequently direct the respondent no.6 to remove and safely dispose of the already dumped waste in the Keezhakarai Municipal Area. W.P. No.3661 of 2011: Writ Petition filed under Article 226 of the Constitution of India seeking a writ of certiorari calling for the records pertaining to the impugned order in Lr.No.DEE/TNPCBd/VNR/F Municipal Solid Wastes 1441/RMD/08 dated 11.07.2008 on the file of the respondent no.3 and quash the same as illegal. For petitioner Mr. T. Lajapathy Roy in both the WPs For RR 1 & 3 in Mr. Raman Laal both the WPs For RR 2,4 & 7, 6 Mr. M. Rajarajan in WP No.908/11 Govt. Advocate For RR 2,4 & 7 Mr. M. Rajarajan, Govt. Advocate in WP No.3661/11 https://hcservices.ecourts.gov.in/hcservices/ 3 For R5 in Mrs. S. Srimathy WP No.908/2011 For RR 5 & 6 in Mrs. S. Srimathy WP 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 mandamus forbearing the respondent no.5 from dumping the wastes of Keezhakarai Municipality in Survey Nos.98/2 and 87/2 in Thillaiyenthal Panchayat situated at Pallamorekulam Village, Pallamorekulam Group, Keezhakarai Sub-Registration District, Ramanathapuram District and consequently direct the respondent no.6 to remove and safely dispose of the already dumped waste in the Keezhakarai Municipal Area, W.P. No.3661 of 2011 is filed calling in question, the order dated 11.07.2008 passed by the third respondent, viz., the District Environmental Engineer, Tamil Nadu Pollution Control Board, Madurai in and by which Keezhakarai Municipality is given No Objection Certificate for the setting up of a waste processing facility at R.S. No.87/2, Pallamorekulam Group, Thiruppullani Village, Ramanathapuram Taluk, Ramanathapuram District. These two writ petitions have been filed by one P.Muthuvel in his capacity as the Vice President 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 Municipal Solid Wastes (Management and Handling) Rules, 2000, ("the Rules" for short) other Municipality cannot construct a building for solid waste management system and in the event of any untoward incident taking place in the plant, the said Municipality wherein the plant is located, is answerable and hence, the plant should not be allowed to be erected. ii) Before No Objection Certificate was issued by the Pollution Control Board to the fifth respondent Municipality, the petitioner was not given opportunity to put forth his case and thus, the principles of natural justice have been violated; hence, the No Objection Certificate which is under challenge has to be set aside. iii) The area in question where the plant is to be erected is nearby a water body which is against the relevant rules and this aspect has not at all been considered by the Pollution Control Board; hence, on this score also, the No Objection Certificate given by the Pollution Control Board has to be set aside and the proposal given by the fifth respondent Municipality has to be rejected. https://hcservices.ecourts.gov.in/hcservices/ 4 3. The Commissioner of Keezhakarai Municipality who is the fifth respondent in both the writ petitions has filed counter affidavit stating that a proposal has been sent to the Government to put up a Solid Waste Management System and the same has been approved; under "ekf;F ehnk jpl;lk; 2010-2011", the Government has sanctioned a sum of Rs.20 lakhs to put up compound wall to an extent of 470 ms. and even No Objection Certificate has been obtained from Tamil Nadu Pollution Control Board for setting up of the waste processing facility; hence, they should not be prevented from constructing a plant in the gifted area in Survey No.87/2 and 98/2 in Thillaiyenthal Panchayat and the writ petitions have to be dismissed. 4. The contention of the fifth respondent Municipality as well as the Pollution Control Board based on which they seek dismissal of the writ petitions are as under: i) The site in question has been inspected and No Objection Certificate has been granted by the Tamil Nadu Pollution Control Board for erection of plant in the site in question; hence, the apprehension of the petitioner is not only imaginary but also baseless. ii) As per the Rules, there is no bar for construction of a plant in other Municipality and as such, the petitioner cannot prevent the erection of plant in Thillaiyenthal Panchayat. 5. Heard the learned counsel for the respective parties. 6. The main ground of attack of the petitioner is that as per Rule 4 of the Rules, a Municipality cannot be allowed to construct a plant in other Municipality to dump wastages in that area. Rule 4(1) and also Rule 9 of the Rules which are relevant for consideration run as under: "4. Responsibility of municipal authority: (1) Every municipal authority shall, within the territorial area of the municipality, be responsible for the implementation of the provisions of these rules, and for any infrastructure development for collection, storage, segregation, transportation, processing and disposal of municipal solid wastes. 9. Accident reporting: When an accident occurs at any municipal solid wastes collection, segregation, storage, processing, treatment and disposal facility or landfill site or during the transportation of such wastes, the municipal authority shall forthwith report the accident in Form V to the Secretary in charge of the Urban Development Department in metropolitan cities, and to District Collector or Deputy Commissioner in all other cases." https://hcservices.ecourts.gov.in/hcservices/ 5 7. A conjoint reading of the above two provisions would clearly indicate that territorial jurisdiction of every Municipality has been specifically mentioned. The second aspect of the matter is that if any untoward incident takes place in a particular Municipality, only the particular Municipality where the plant is situated, is responsible for the said untoward incident. Thus, these provisions make it amply clear beyond any reasonable doubt that the Municipality where the plant is to be erected is responsible for any untoward incident. 8. The next aspect which has to be looked into is that according to the petitioner, he was not heard by the Pollution Control Board before No Objection Certificate was issued to the fifth respondent Municipality. Undisputedly, the yard suggested by the fifth respondent is situated only in the petitioner Panchayat, viz., Thillaiyenthal Panchayat. Admittedly, the inspection of the fifth respondent Municipality carried out by the Pollution Control Board was not intimated to Thillaiyenthal Panchayat and No Objection Certificate was also issued behind the back of Thillaiyenthal Panchayat. 9. Now, during the course of arguments, a sketch has been produced before this Court which clearly shows that Oorani is also situated in the site in question. Hence, we are of the considered view that it would only be in the fitness of things to set aside the No Objection Certificate already granted by the Pollution Control Board to the fifth respondent Municipality and to remit the matter back to the Pollution Control Board for consideration afresh. 10. It is also to be pointed out at this juncture that the fifth respondent, in the counter affidavit filed, has averred that in the event of the fifth respondent being allowed to erect the plant in the site in question, Thillaiyendal Panchayat also can use the said plant. This stand of the fifth respondent is recorded. 11. In view of the foregoing discussion, the No Objection Certificate already granted to the fifth respondent Municipality by the Pollution Control Board is set aside and the matter is remitted back to the 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 respondent Municipality's application with regard to issuance of No Objection Certificate within a period of three weeks from the date of receipt of a copy of this order. 12. Further, since it is the stand of the petitioner that the site in question where the plant is to be erected, is nearby a water body, before carrying out the above exercise, the Pollution Control Board shall 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 in question, in the event of erection of plant in the site in question. 13. With the aforesaid directions, both the writ petitions stand disposed of. No costs. Consequently, connected Miscellaneous Petitions in M.P. (MD) Nos.1 & 2 in both the writ petitions stand closed. https://hcservices.ecourts.gov.in/hcservices/ 6 14. Now, coming to M.P. No.4 of 2011 in W.P. (MD) No.908 of 2011, it is filed by the seventh respondent in the writ petition seeking an order of interim injunction restraining Keezhakarai Municipality from dumping wastage in and around the sea or sea-shore adjacent to Keezhakarai Town. 15. After the filing of the above petition, we find that the wastage has been cleared by Keezhakarai Municipality. Hence, there is no need to pass any order in this petition. Nevertheless, Keezhakarai Municipality is restrained from dumping wastage in future also in the sea or sea-shore which 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 To 1 The Chairman Tamil Nadu Pollution Control Board, Chennai 600 002. 2 The District Collector Ramanathapuram, Ramanathapuram District. 3 The District Environmental Engineer Tamil Nadu Pollution Control Board No.6/26, Gangai Street, Madurai Road, Virudhunagar – 1. 4 The Revenue Divisional Officer Ramanathapuram,Ramanathapuram District. 5 The Commissioner Keezhakarai Municipality,Keezhakarai, Ramanathapuram District. 6 The Executive Officer Thillaiyenthal Village Thirupullani Union, Ramanathapuram District. 7 The Executive Officer Keezhakarai Municipality Ramanathapuram 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.15328 Common Order in W.P. (MD) Nos.908 and 3661 of 2011 26.04.2011 cad RJ/29.4.11 (IT) 6p/13c https://hcservices.ecourts.gov.in/hcservices/