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Judgment
S. Manikumar, CJ
This Public Interest writ petition is filed by the petitioner seeking the following reliefs:
(I) to direct the 3rd respondent to stop dumping of municipal waste on the premises of the building in Survey No.152/1 and 153/1 of Tanur Village,
owned by the 1st respondent, which comprises shop rooms bearing Nos.16/1673 to 16/1684 of Tanur Municipality.
(ii) to direct the respondents to take all sorts of preventive measures for imminent collapse of the building and also pass any other order or orders
which are deemed fit and proper in the factual circumstances of the case.
Brief facts leading to the writ petition are as follows; petitioner is a public-spirited person, belongs to Tanur Municipality preferred this public
interest litigation for himself as well as for and on behalf of the general public of the locality, as a pro bono publico against (i) illegal and unscientific
dumping of Municipal wastes collected from all anthropogenic sources including bio-medical waste from Covid-19 quarantine centres, in the premises
of the commercial building owned by the 1st respondent, located at Uriyamkulam-Tanur Railway Station Road Junction in Survey No. 152/1 and 153/1
of Tanur Village of Tanur Taluk, (ii) illegal maintaining of the said building without demolished by the Secretary, Tanur Municipality, Malappuram, 3rd
respondent, in connivance with some persons, claimed to be the occupants therein; though the said building is in a dilapidated condition, by causing
imminent danger to the public at large.
According to the petitioner, the locality where the said building situated in the middle of the public road, is a highly commercial and institutional area
and crowded one, and is under the authority of the Assistant Executive Engineer, Public Works Department, Malappuram, the 4th respondent, as it is
declared as Major District Road in consonance with the Section 3(1) of the Kerala Highway Road Protection Act, 1999. The 3rd respondent
(erstwhile Tanur Grama Panchayat) has been making open dumping of Municipal waste including bio-medical waste emanating from Covid-19
quarantine Centres, h without utilising its own dumping yard admeasuring 80 Cents, even by denouncing the direction of this Court pursuant to the
Exhibit P-1 judgement dated 23-01-2004 of this Court. The said building was a commercial building, constructed around 50 years back, but owing to
lack of periodical maintenance for years, it is in a dilapidated and ruined condition by extending a real and imminent threat to life and property, since
there is every likelihood of collapse at any point of time. But the 3rd respondent in connivance with the certain persons claimed to be the tenants
overturning the Order in C.M.P No.8/2019 dated 06-12-2019 of the 4th respondent to demolish the said building in pursuant to the judgement of this
Court in WP(C) No. 10067 of 2019 dated 21-06-2019 preferred at the instance of an organization, produced as Exhibit P-3.
Petitioner submitted that even on 21-11-2020 the sunshade of one partition of the said building fell, fortunately no casualties occurred owing to the
incident as it happened during the early morning. On 04-09-2020, petitioner preferred, Exhibit P-4 petition to the 3rd and 4th respondents with the
narration of the gravity of the dreadful situation prevailing there owing to the Municipal dumping as well as the dilapidated situation of the said building,
with inter alia praying to take immediate measures to demolish the said building and request to stop dumping of Municipal waste forthwith, but with no
result and it is the sheer violation of Article 21 of the Constitution of India. In such a factual scenario, petitioner has no other remedy than to approach
this Court. Hence this writ petition.
On 16th December, 2020, when the matter came up for hearing, we recorded thus:
“Mr.Surin George Ipe, learned Senior Government Pleader, takes notice for respondent Nos.1, 2, 4, 6 and 7. Mr.Harish R.Menon, learned Standing
Counsel, takes notice for Tanur Municipality (respondent No.3). Mr.T.Naveen, learned Standing Counsel takes notice for Kerala State Pollution
Control Board (respondent No.5).
Mr.Harish R.Menon, learned Standing Counsel for Tanur Municipality submitted that the garbage, alleged to have been dumped, has been removed.
Post on 14.1.2021.â€
Thereafter on 14th January, 2021, we passed the following order:
“Though Mr.Susmith Kumar.T.D., learned counsel for the petitioner reiterated that the garbage is dumped on the premises of the building in
Sy.No.152/1 and 153/1 of Tanur village, owned by the first respondent, Mr.Harish R.Menon, learned Standing Counsel appearing for the Tanur
Municipality (respondent No.3) submitted that no garbage is dumped. As regards the second prayer seeking a direction to the respondents to take all
sorts of preventive measures for imminent collapse of the building, it is submitted by learned Standing Counsel appearing for the Tanur Municipality
that the building is not in a dilapidated condition requiring demolition.
Tanur Municipality is directed to file a statement/affidavit, as the case may be, with all supporting documents to substantiate the oral submissions made
above. Post on 20.1.2021.â€
A statement dated 16th January, 2021 has been filed by respondent No.3 refuting the allegations raised by the petitioner wherein it is submitted that
one Mr. Vadakkayil Bappu, a public spirited person as well as the Vice President of All Kerala Anti-corruption and Human Rights Protection Council
had filed a petition, CMP No.8/2019 before the 2nd respondent to initiate proceedings under Section 133 (1)(d)(IV) of Cr.pc, seeking demolition of the
building alleging threat to the life of the public. There after he filed WP(C) No. 10067/2019 before this Court for a direction to dispose of the complaint
preferred by him. This Court disposed of the above said writ petition on 21-6-2019, directing the RDO, Tirur to dispose of the petitions preferred by
the above said person. A true copy of the judgment passed by this Court on 21-6-2019 in WP(C) No. 10067/2019 is produced herewith as Exhibit
R3(a).
It is stated by the 3rd respondent in the statement that, without giving opportunity to the Municipality to properly put forward the case, 3rd
respondent preferred W.P.(C) No 27636/2019 before this Court seeking direction to the RDO, to give sufficient opportunity to the Municipality to put
forward the defence. This Court disposed of WP(C) No.27636/2019 directing the RDO to afford ample opportunity to the 3rd respondent to put
forward the case and also held that if it is felt that the structural stability of the building is to be assessed for completing the proceeding, the time limit
prescribed by the court for finalising the proceedings will not be an impediment. A true copy of the judgment in WP(C)No.27636/2019 dated 29-10-
2019 is produced herewith as Exhibit R3(b).
It is also stated that, the entire proceedings before the 3rd respondent were done in a hasty manner, resultantly ending in a final order under Section
138(2) of Cr.Pc. The final order passed by the 3rd respondent is under challenge in Crl.R.P. No.89/2020. This Court granted an interim order of stay
of the impugned final order in Crl.R.P. No.89/2020. The interim order is being extended from time to time and the petitioner is well aware of all these
proceedings. However, the petitioner has not mentioned the above said fact in the instant writ petition. The non-mentioning of the vital facts is
suppression of material facts. Under the guise of removing waste the petitioner wants to get a larger relief which is subjudice before this Court. The
entire proceedings mentioned above is sought to be sidelined and the petitioner wants to see that the building is demolished so as to get a proper view
and access to the shopping mall.
It is also stated in the statement that the averments in para 4 in the writ petition that 3rd respondent has been making an open dumping of waste in
an uninterrupted manner near the said building, even blatantly discarding the hue and cry of the general public etc. are not correct. The further
allegations are also not correct. It is submitted that as regards bio-waste, each residents are having their own disposal system with the help and aid of
the Municipality. The bio- waste are not collected and stacked by the Municipality. As regards the plastic and non- degradable wastes, the
Municipality has a organisation namely ""Harithakarma Sena"", involving around 51 members as workers, who collect the plastic and other degradable
wastes from the various residential areas situated within the Municipality and the same are taken to a Material Collection Facility Centre (MCF) from
where the recycling and rejected waste are sorted and separately sacked. These sacks are taken by the contractor, who is engaged in taking waste
material and is being transported in lorries. However during lockdown period, there were no transportation facilities and due to the non-availability of
workers some sacks were temporarily stacked on the back yard of the building and immediately after the lifting of lockdown, these materials were
removed from that area. Now 3rd respondent is not stacking any such waste materials in the said area. The photographs evidencing the same is
produced herewith as Exhibit R3(c).
It is submitted that at various intervals when waste is due for removal, quotations were called for from various agencies. Likewise on 28-10-2020
the quotation submitted by one waste management company was accepted and subsequently the entire waste materials were removed. Thereafter the
waste materials are not dumped in the said area. A true copy of the quotation submitted by Waste Management Company dated 28-10-2020 is
produced herewith as Exhibit R3(d). The waste stacked at various centers are collected and transported by the above said company.
The further allegation that portion of the sun shade of the building collapsed is denied. The weather proof board fixed for beautification on the
outer wall of the building fell down on 21-11-2020 and immediately steps were taken by this Municipality to do the needful. The Engineer as well as
the Overseer inspected the area and had reported that the projection board affixed on the outer slab of the ground floor area fell down and that the
causalities etc. projected in the writ petition are not correct.
It is true that a dumping yard having an extent of 80 cents was purchased by the 3rd respondent for using the same as a dumping yard to dump
mainly bio-wastes. As of now, disposal of bio-waste is not an issue within the Municipality. However, for processing plastic and non-degradable
wastes, machinery and incinerators are to be installed in a permanent building. The area is notified as Coastal Regulation Zone. So much so permission
to construct a permanent structure from the Government is very difficult. Moreover this area is thickly populated now and any attempt to dump or
stack waste in this area without proper processing facilities would only result in complications and law and order situations.
The further allegations in para 7 of the writ petition regarding the structural stability of the building are all denied. The entire attempt is at the
instance of the above said shopping mall owner, who has prevailed upon the local leaders of the present ruling out fit and is taking all efforts to see
that the building is somehow or other demolished. The Assistance Engineer of the Municipality had inspected the building on 15-1-2021 and has issued
a certificate stating that the structure of the building is found to be fit. A true copy of the certificate issued by the Assistant Engineer dated 15-1-2021
is produced herewith as Exhibit R3(e). Moreover the Council General Meeting of the 3rd respondent is scheduled on 19-1-2021 and a notice of the
meeting has been circulated by the Chairperson on 15-1-2021. Agenda No.17 in the notice is regarding the maintenance work to be taken urgently in
pursuance to the report of the Engineer, Revenue Inspector and Overseer of the Municipality. The relevant page No.7 of the Tanur Municipality
Council Meeting notice dated 15-1-2021 is produced as Exhibit R3(f). Hence, it is submitted that the writ petition is filed without any bonafides and the
relief sought for in the writ petition are not liable to be granted and therefore, seeks dismissal of the writ petition.
Supporting the averments that a contractor has been engaged for removing the waste, Exhibit R3(d) dated 28.10.2020 is also filed. The said
document reads thus:
“ ECOGREEN (Waste Management) Parappur Road, KOTTAKKAL Malappuram District, Kerala - 676 503 +919400337794,
+919037610583 [email protected] Date: 28-10-2020
QUOTATION
Secretary Tanur Municipality
Sub: Regarding Non degradable waste disposal, Sir,
We are ready to remove the non degradable waste collected by the Tanur Municipality from different wards as a part of the cleaning
programme and we are ready to remove the same for recycling in the most modern manner.
Ashraf K.
Kerala Ecogreen â€
In so far as the prayer against the respondents to take all sorts of preventive measures for imminent collapse of the building is concerned,
Mr.Harish R.Menon, learned counsel appearing for the Tanur Municipality, reiterated that the building is not in a dilapidated condition requiring
demolition and further added that a dispute is pending before this Court with a prayer to quash the order of the Revenue Divisional Officer, Tirur.
According to him, a dispute is pending between the Secretary, Tanur Municipality and All Kerala Anti- Corruption and Human Rights Protection
Council, represented by Bappu Vadakkayil and the prayer sought for, to take measures in a Public Interest Litigation is not maintainable.
We are in agreement with the averments made in the statement dated 16th January, 2021, by the 3rd respondent and also the above submission
made by the learned standing for the Tanur Municipality. In our considered view, nothing survives in the instant public interest writ petition for further
adjudication.
Writ petition is disposed of with the above observations.