Kerala High Court
Anil Kumar P.K vs The State Of Kerala on 20 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 20TH DAY OF JANUARY 2021 / 30TH POUSHA, 1942
WP(C).No.28165 OF 2020(S)
PETITIONER:
ANIL KUMAR P.K
AGED 49 YEARS
S/O.MUNDAN, PALAKKAL KANDI HOUSE, PARIYAPURAM P.O.,
MALAPPURAM 676 302
BY ADVS.
SRI.T.D.SUSMITH KUMAR
SRI.C.SIVADAS
RESPONDENTS:
1 THE STATE OF KERALA
REP.BY SECRETARY TO GOVERNMENT, GOVERNMENT REVENUE
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001
2 THE REVENUE DIVISIONAL OFFICER
TIRUR, MALAPPURAM - 676 101
3 THE SECRETARY
TANUR MUNICIPALITY, TANUR, MALAPPURAM - 673 302
4 THE ASSISTANT EXECUTIVE ENGINEER
P.W.D ROADS DIVISION, TIRUR, MALAPPURAM - 673 302
5 SENIOR ENVIRONMENTAL ENGINEER
KERALA STATE POLLUTION CONTROL BOARD, PERINTHALMANNA
ROAD, MALAPPURAM 676 505
6 CIRCLE INSPECTOR OF POLICE
TANUR POLICE STATION, TANUR, MALAPPURAM 676 505
7 SUPERINTENDENT OF POLICE
MALAPPURAM - 673 001
SRI TEK CHAND, SENIOR GOVERNMENT PLEADER FOR R1,R2,
R4, R6 AND R7,
SRI.HARISH R MENON, STANDING COUNSEL FOR R3,
SRI T.NAVEEN, STANDING COUNSEL FOR R5
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.28165 OF 2020(S) 2
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.
2. 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 1 st 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, 3 rd 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.
3. 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 4 th 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 3 rd 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 4 th 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.
4. 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 3 rd 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.
5. 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."
6. 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."
7. 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 2 nd 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).
8. It is stated by the 3 rd respondent in the statement that, without giving
opportunity to the Municipality to properly put forward the case, 3 rd 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).
9. It is also stated that, the entire proceedings before the 3 rd 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 3 rd 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.
10. 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 3 rd respondent is not
stacking any such waste materials in the said area. The photographs
evidencing the same is produced herewith as Exhibit R3(c).
11. 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.
12. 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.
13. 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.
14. 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.
15. 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 "
15. 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.
16. 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.
S.MANIKUMAR
CHIEF JUSTICE
SHAJI P.CHALY
smv JUDGE
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE JUDGMENT DATED
23.1.2004 IN W.P(C) NO.26801 OF 2003 ON THE
FILE OF THIS HON'BLE COURT
EXHIBIT P2 THE PHOTOGRAPHS PERTAINING TO THE SAID OPEN
DUMPING ON THE PREMISES OF THE SAID
BUILDING. (SIX NUMBERS)
EXHIBIT P3 THE COPY OF THE JUDGMENT DATED 21.6.2019 IN
WP(C) NO.10067 OF 2019 ON THE FILE OF THIS
HON'BLE COURT, DOWNLOADED FROM THE OFFICIAL
WEBSITE OF THE HON'BLE HIGH COURT OF KERALA
EXHIBIT P4 THE TRUE COPY OF PETITION DATED 4.9.2020
PREFERRED BY THE PETITIONER TO THE 3RD AND
4TH RESPONDENT, ALONG WITH ITS TRUE
TRANSLATION
RESPONDENTS' EXHIBITS
EXHIBIT R3(a) THE TRUE COPY OF JUDGMENT PASSED BY THIS
HON'BLE COURT ON 21.6.2019 IN W.P.(C)
NO.10067/2019
EXHIBIT R3(b) THE TRUE COPY OF JUDGMENT IN W.P.(C)
NO.27636/2019 DATED 29.10.2019.
EXHIBIT R3(c) THE PHOTOGRAPHS EVIDENCING THE FACT OF NON-
STACKING OF ANY WASTE MATERIALS.
EXHIBIT R3(d) THE TRUE COPY OF THE QUOTATION SUBMITTED BY
WASTE MANAGEMENT COMPANY DATED 28.10.2020
WITH ENGLISH TRANSLATION
EXHIBIT R3(e) THE TRUE COPY OF HE CERTIFICATE ISSUED BY
THE ASSISTANT ENGINEER DATED 15.1.2021
EXHIBIT R3(f) THE RELEVANT PAGE NO.7 OF THE TANUR
MUNICIPALITY COUNCIL MEETING NOTICE DATED
15.1.2021 WITH ENGLISH TRANSLATION
