Kodangi Pommanayakar v. The District Collector
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 14.12.2023 CORAM :
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL AND WMP(MD)No.11506 of 2023 in WP(MD)No.13652 of 2023 and WMP(MD)Nos.25327, 25328 of 2023 in WP(MD)No.29311 of 2023 W.P(MD)No.13652 of 2023 KodangiPommanayakar ... Petitioner vs.
1. The District Collector, Karur District, Karur.
2. The Revenue Divisional Officer, Revenue Divisional Office, Kulithalai, Karur District.
3. The Tahsildar, Taluk Office, Kulithalai, Karur District.
4. The Commissioner, Kulithalai Municipality, Kulithalai, Karur District.
... Respondents Page No.1 of 19
Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus, directing the 1st respondent, to take action under Rule 5(2) of The Municipal Solid Wastes (Management and Handling) Rules, 2000 against the 4th respondent for violating the aforesaid Rules and running Garbage and dumping yard and storing drainage water at the survey Nos.104/2B an extent of 2-35.20 Ares and 105/3A2 an extent of 1-22.00 Ares - Patta No.2137 situated at Komali Parai, Sathyamangalam Revenue Village, Kulithalai Taluk, Karur District.
For Petitioner : Mr.R.Murugappan For R1 to R3 : Mr.P.Thilak Kumar, Government Pleader For R4 : Mr.AN.Ramanathan, Standing Counsel W.P(MD)No.29311 of 2023 Pommanayakar @ Kodangi Pommanayakkar ... Petitioner vs.
1. The District Collector, Karur District, Karur.
2. The Revenue Divisional Officer, Revenue Divisional Office, Kulithalai, Karur District.
3. The Tahsildar, Taluk Office, Kulithalai, Karur District.
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4. The Commissioner, Kulithalai Municipality, Kulithalai, Karur District.
5. The Chairman, Head of the Department, Tamil Nadu Pollution Control Board, No.76, Mount Salai, Guindy, Chennai-32.
6. The District Environmental Engineer, Tamil Nadu Pollution Control Board, Karur, Karur District.
... Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari, to call for the records of the 6th respondent's impugned consent order No.2304149951165 dated 24.03.2023 issued in favour of the 4th respondent and quash the same. For Petitioner : Mr.R.Murugappan For R1 to R3 : Mr.P.Thilak Kumar, Government Pleader For R4 : Mr.AN.Ramanathan, Standing Counsel For R5 & R6 : Ms.M.Sudharani for Mrs.Vijayalakshmi Natarajan C O M M O N O R D E R [Order of the Court was made by M.SUNDAR, J.] This common order will now dispose of the captioned two 'Writ Petitions' [hereinafter 'WPs' in plural and 'WP' in singular for the Page No.3 of 19
sake of brevity, convenience and clarity] and the captioned three 'Writ Miscellaneous Petitions' [hereinafter 'WMPs' in plural and 'WMP' in singular for the sake of brevity, convenience and clarity]. 2.
This common order has to be read in conjunction with and in continuation of earlier proceedings made yesterday [13.12.2023] in W.P(MD)No.29311 of 2023 and WMP(MD)Nos.25327 & 25328 of 2023 thereat which reads as follows:
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3.
The aforementioned proceedings captures all essentials that are imperative for appreciating this common final order and therefore we are not setting out the same again. Suffice to say that aforementioned 13.12.2023 proceedings shall now be read as integral part and parcel of this common final order. This also means that short forms, short references and abbreviations used in the earlier proceedings dated 13.12.2023 will continue to be used in the instant common final order also for the sake of brevity, convenience and clarity. 4.
Before we proceed further, we deem it appropriate to write that pursuant to aforementioned earlier proceedings made yesterday, captioned two main WPs and WMPs thereat have been tagged and listed together as one item in the cause list today. The same set of counsel for the respective parties as captured in the previous proceedings made yesterday are before us today.
5.
We shall refer to 'WP(MD)No.13652 of 2023' as 'I WP' and we shall refer to 'WP(MD)No.29311 of 2023' as 'II WP' for the sake of convenience and clarity.
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6.
I WP has been filed with a Mandamus prayer seeking a direction to the District Collector to take action under Rule 5(2) of The Municipal Solid Wastes (Management and Handling) Rules, 2000, against 4th respondent for allegedly violating the rules by running said plant. This Court deems it appropriate to record that there are two more writ petitions on the same subject but the same have been disposed of. Aforementioned two writ petitions are W.P(MD)No.1195 of 2023 [filed by the same petitioner who has filed captioned PIL] and W.P(MD)No. 2792 of 2023 filed by one Thiru.Jeganathan. Prayer in both these writ petitions i.e., W.P(MD)Nos.
1195 of 2023 and 2792 of 2023 are same as they pertain to a prayer for a Mandamus to the jurisdictional District Collector and jurisdictional Revenue Divisional Officer to take action under Section 133(b) of 'The Code of Criminal Procedure, 1973 (2 of 1974)' [hereinafter 'Cr.P.C' for the sake of brevity and clarity]. W.P(MD)No.1195 of 2023 along with WMP(MD)No.1104 of 2023 thereat was disposed of by another Coordinate Hon'ble Division Bench in and by order dated 23.01.2023 which reads as follows: Page No.
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7.
W.P(MD)No.2792 of 2023 along with WMP(MD)No.2549 of 2023 thereat was disposed of by a Hon'ble Single Judge in and by order dated 16.02.2023 which reads as follows: Page No.11 of 19
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8.
This Court having captured the entire gamut of facts now turns to alternate remedy aspect which has been captured in clause (v) of paragraph 6 of proceedings made yesterday which is now being read as Page No.13 of 19
integral part and parcel of this common final order. This takes us to Section 28 of Water Act. Section 28 of Water Act is captioned as 'Appeals' and it talks about appeal by any person aggrieved by an order made by TNPCB under Sections 25, 26 or 27 [to be noted, in the case on hand, impugned order has been made under Section 25 of Water Act]. Be that as it may, as regards the appellate authority, sub-section (2) of Section 28 of Water Act says that the State Government shall appoint an appellate authority consisting of single person or three persons. In the case on hand, learned Government Pleader Mr.P.Thilak Kumar and learned Standing Counsel for TNPCB Ms.M.Sudharani representing the counsel on record Mrs.
Vijayalakshmi Natarajan submit in one voice that the State Government has constituted a Hon'ble appellate authority under the Chairmanship of Hon'ble Mr.Justice M.GOVINDARAJ(Retired) with two technical members vide G.O(Ms)No.95, Environment, Climate Change and Forest [EC-1] Department, dated 23.05.2022 and the present address of appellate authority of TNPCB is as follows: 'Hon'ble Mr.Justice M.GOVINDARAJ (Retired), Chairman, Chateau D ampa, 4th Floor No.37, Nelson Manickam Road, Aminjikarai, Chennai-600 029.'
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9.
We deem it appropriate to relegate the entire matter to aforementioned appellate authority for PIL petitioner to file an appeal as, (a) the matter turns heavily on facts; and (b) technicalities are involved.
10.
In the interest of completion of facts, we also deem it appropriate to capture the fact that as regards I WP, the prayer talks about Survey No.104/2B admeasuring an extent of 2.35.20 Ares and Survey No.105/3A2 admeasuring an extent of 1.22.00 Ares [Patta No.2137] situate at Komali Parai, Sathyamangalam Revenue Village, Kulithalai Taluk, Karur District. As regards II WP, survey numbers have been captured in paragraph 2 of aforementioned earlier proceedings dated 13.12.2023.
11.
As regards the appeal, one of the points that is urged by learned counsel for PIL petitioner is that impugned order has been made by District Environmental Engineer, TNPCB, Karur but Section 25 of Water Act mandates that an order under Section 25 of Water Act should be made only by TNPCB and this aspect has been captured in paragraph 3 of earlier proceedings dated 13.12.2023.
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12.
We express no opinion on this aspect of the matter and we make it clear that if PIL petitioner chooses to file an appeal before aforementioned appellate authority under Section 28 of Water Act, the same shall be entertained by treating the impugned order as an order under Section 25 of Water Act. It will be open to PIL petitioner to raise aforementioned points and it will be open to TNPCB and the other respondents to meet the same and it is for the appellate authority to take a call on the same.
13.
In the light of the narrative thus far, as we have relegated the matter to aforementioned appellate authority under Section 28 of Water Act, we make it clear that we have not expressed any view or opinion on the merits of the matter and therefore, Hon'ble appellate authority shall consider the appeal [if filed] in accordance with Section 28 of Water Act on its own merits and in accordance with the procedure adumbrated in Section 28 of Water Act and the appeal shall be heard on its own merits and in accordance with law untrammeled by this order which has been made for limited purpose of relegating the matter to appellate authority and give a closure to captioned two WPs and captioned three WMPs. Page No.16 of 19
14.
Captioned WPs and WMPs are disposed of with aforesaid observations and preservations of rights in the aforesaid manner. We make it clear that all the rights and contentions of PIL petitioner as well as respondents are preserved for being canvassed before Hon'ble appellate authority. There shall be no order as to costs. (M.S., J.) (R.S.V., J.) 14.12.2023 Index : Yes : Yes bala To
1. The District Collector, Karur District, Karur.
2. The Revenue Divisional Officer, Revenue Divisional Office, Kulithalai, Karur District.
3. The Tahsildar, Taluk Office, Kulithalai, Karur District.
4. The Commissioner, Kulithalai Municipality, Kulithalai, Karur District.
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5. The Chairman, Head of the Department, Tamil Nadu Pollution Control Board, No.76, Mount Salai, Guindy, Chennai-32.
6. The District Environmental Engineer, Tamil Nadu Pollution Control Board, Karur, Karur District.
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M.SUNDAR, J.
and R.SAKTHIVEL, J.
bala COMMON ORDER MADE IN DATED : 14.12.2023 Page No.19 of 19