writ of Habeas Corpus, calling for the entire records of the respondents leading to the detention of the father of the petitioner, namely P.Vijayakumar under Act 14 of 1982 as goonda vide detention order

IaN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated :  5-3-2010

Coram

The Honourable Mr.Justice ELIPE DHARMA RAO
and
The Honourable Mr.Justice N. PAUL VASANTHAKUMAR

H.C.P.No.2079 of 2009


V. Jagadeeskumar ...  Petitioner

Vs.

1. The Government of Tamil Nadu,
rep.by its Secretary,
Prohibition & Excise Department,
Fort St. George,
Chennai  600 009.

2. The Commissioner of Police,
Egmore,
Chennai  600 008. ...  Respondents

This petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of Habeas Corpus, calling for the entire records of the respondents leading to the detention of the father of the petitioner, namely P.Vijayakumar under Act 14 of 1982 as goonda vide detention order No.BDFGISSV/310/2009 dated 17.9.2009 on the file of the second respondent and quash the same as illegal and consequently direct the respondents to set the father of the petitioner at liberty from the Central Prison, Puzhal, Chennai.


For Petitioner : Mr.B. Kumar,
Senior Counsel
for Mr.J.Srinivasan

For Respondents :   Mr.Kumaresan,
Public Prosecutor,
assisted by
Mr.V.Balasubramanian,
Addl. Public Prosecutor


O R D E R
N. PAUL VASANTHAKUMAR, J.
This writ petition is filed challenging the detention order dated 17.9.2009 passed against the detenu P.Vijayakumar under Act 14 of 1982 by the Commissioner of Police, Egmore, Chennai-8, second respondent herein.
2. In the grounds of detention, 27 ground cases are relied on against the detenu to pass the detention order under Section 2(f) of Tamil Nadu Act 14 of 1982.  According to the petitioner, originally cases were registered for the offence under Section 420 IPC, which were subsequently altered into Sections 406, 307, 506(ii) IPC, Sections 3, 4 and 5 of the Drug and Magic Remedies (Objectionable Advertisements) Act, 1954, read with Section 328 IPC and also under Section 30 of the  Arms Act, read with Section 307 IPC as well as under Sections 40, 49-B read with 51(1) Proviso of the Wild Life Protection Act, 1972.  Out of the above said 27 cases, bail had been granted in favour of the detenu in six cases by the learned Principal Sessions Court, Chennai and by this Court and in the remaining 21 cases, the detenu moved bail applications before the learned Principal Sessions Judge, Chennai, and all the 21 bail applications were pending at the time of passing the order of detention.
3. The main grounds of attack on the order of detention in the petition as well as arguments advanced by the learned Senior Counsel for the petitioner are that this Court in Crl.O.P.No.15913 and 15914 of 2009 by order dated 24.8.2009 already prohibited the detenu from practising Siddha and Ayurvedic Medicines and therefore there is no pressing necessity to pass the order of detention by the Detaining Authority and non-consideration of the above aspect vitiates the detention order on the ground of non-application of mind.  The detenu being a registered Medical Practitioner, registered his name with the Tamil Nadu Siddha Medical Council from 7.9.1998, can effectively be prohibited from practise, either by suspending the registration or otherwise under the Indian Medical Council Act, 1970, by the competent authorities, if there is any violation in his medical practice, and non-consideration of the above aspect by the Detaining Authority vitiates the order of detention.  The allegation that the detenu cheated the patients by promising cure after receiving large sums of money cannot be treated as disturbance of public order as tempo of the Society was not affected in any locality.  The documents sought for by the detenu for submitting his effective representation having not been furnished, the further continuance of detention order is impermissible.  The detenu having been already prevented from practise, as he has been confined in prison, there is no further need to pass the detention order to prevent his alleged activities.
4. The second respondent filed counter affidavit wherein it is stated that till the date of detention order, the detenu was found to be involved in 27 cases.  The representation sent on behalf of the detenu was considered by the first respondent on time.  The detenu having been found acting in the manner prejudicial to the maintenance of public order and to prevent him from indulging in such activities in future, he was detained under Act 14 of 1982 on public interest.  The grounds of detention were informed to the detenu's wife on 18.9.2009 by post, the very next day of passing of the order of detention.  For the representation of the detenu, detailed remarks were sent by the second respondent to the first respondent without any delay, which was rejected by the first respondent.  Insofar as the alleged alteration of the charges, the Investigating Officer, during the course of investigation, came to know about the further developments based on which charges were altered. Though bail applications were ordered in six cases, insofar as other 21 cases are concerned bail applications are pending, which are likely to be ordered on similar footing and therefore there is an imminent possibility of coming out on bail by the detenu.  The activities of the detenu were prejudicial to the maintenance of public order as he gave false interview through electronic media and the public at large were made to believe his false promise and thereby cheated number of persons, who are innocent patients and at last when some of the innocent victims requested to return the money after they did not get cured, they were threatened with dire consequences by showing pistol, which created panic among the general public.  Only to prevent the indulgence in such further activity, the order of detention was passed against the detenu.
5. The learned Senior counsel appearing on behalf of the detenu submitted arguments in the light of the submissions made supra by citing various decisions in support of his submissions.
6. The learned Public Prosecutor also relying upon the counter affidavit as well as the documents, made his submissions and cited decisions in support of his contentions.
7. From the above pleadings it has to be ascertained as to whether the order of detention of the detenu is vitiated in any manner.
8. The detenu is a Medical Practitioner, registered his name with the Tamil Nadu South Medical Council, Chennai.  In the grounds of detention it is stated that in the year 2007, the detenu gave an interview in Jaya TV (Tamil TV Channel) that he will cure all diseases including brain ailment in his Travancore Raja Vaidyasalai at No.42, Karpagambal Nagar, Mylapore, Chennai-4, and after watching the same, one Janakiraman, contacted him in his Vaidyasalai for curing his disease affected child and the detenu demanded a sum of Rs.13,86,000/- for treatment, and told the said Janakiraman that the patient should take Thanga Baspam and Deer meat for six months.  In January, 2008, the said Janakiraman, believing the words of the detenu, paid Rs.6 lakhs and at that time the detenu informed the said Janakiraman that he had made ready Thanga Baspam and if the balance amount of Rs.7.86 lakhs is paid, he will get the Deer meat and thereafter the treatment could be started.  The balance sum of Rs.7.86 lakhs was also paid by the said Janakiraman during March, 2008 and even after one month, the detenu informed that the medicine was not yet made ready and that the said Janakiraman can contact him after one month.  During 2008, when Janakiraman further approached the detenu for treatment, he gave false reasons and thereby he developed doubts and requested the detenu to return the money.  At that time the detenu threatened the said Janakiraman that if the said incident is reported to anyone, he will kill him.  Due to the fear and danger to life he did not complain to the Police at that time.  The said Janakiraman, having seen newspapers and TV news that the detenu was arrested by the police on the basis of the complaint given by another person, has  also lodged a complaint, which was registered as crime No.405 of 2009 of the Central Crime Branch under section 406, 420, 307 and 506(ii) IPC.
9. During the course of investigation, the detenu was arrested and remanded to judicial custody and thereafter at the request of the police, the detenu was given in police custody for six days.  During   investigation, the police recovered documents, sample medicines, pistol, etc., and thereafter the case was altered into one under the above said offences.  While the detenu was in Central Prison, the Central Crime Branch registered three more cases in Crime Nos.386/2009, 395/2009 and 402/2009 for similar offences and earlier also 22 cases were registered against the detenu in crime Nos.664/2009, 680/2009, 685/2009, 695/2009, 718/2009, 719/2009, 720/2009, 721/2009, 731/2009, 750/2009, 751/2009, 759/2009, 760/2009, 772/2009, 773/2009, 802/2009, 803/2009, 804/2009806/2009, 824/2009, 825/2009 and 830/2009 on the file of E-1 Mylapore Police Station.  The detaining authority taken note of the bail order granted by this Court in Crl.O.P.Nos.13913 and 13914 of 2009 as well as the bail granted in four other cases and that in the remaining cases also the detenu moved bail applications and the same are pending.  It is also recorded in the detention order that even in the said cases in which bail applications were moved, the detenu is likely to come out on bail and if he comes out on bail it will be prejudicial to the maintenance of public order and normal recourse to criminal law would not have the desired effect to effectively prevent the detenu from indulging in such activity and therefore he is to be detained under Section 2(f) of the Act 14 of 1982.

10.  The contention of the learned Senior Counsel for the detenue insofar as the bail order imposing condition by this Court is concerned, we are of the view that the Detaining Authority was aware of the said order which is also referred to in the grounds of detention.  Further, the said order nowhere prohibits the detenu from giving false promise through media.  Hence the contention with regard to non-application of mind on the part of the Detaining Authority insofar as that aspect is concerned, cannot be sustained.
11.  Insofar as the contention with regard to the non-supply of alleged documents demanded by the detenu is concerned, the representation was considered by the first respondent.  The prejudice caused due to the non-supply of any particular document, is not specifically pointed out by raising additional grounds.  Hence we are rejecting the said contention raised by the learned Senior Counsel appearing on behalf of the detenu.
12.  In the ground case No.8, viz., in crime No.721 of 2009 on the file of the E-1 Mylapore Police Station, a statement under Section 161 of Cr.P.C. from one Tmt.Umamaheswari is recorded, which is found at page Nos.214 to 218.  In the said statement it is stated that while she was imparting treatment for her second son in August, 2005, she stayed at Chennai and she watched a programme in Jaya T.V. and Vijay T.V., which telecasted the propaganda of the detenu and believing the same, she was induced to impart treatment for her son.  She met the detenu along with her husband, her father and one of her relatives by name Iyanarappan for the treatment of her second son and handed over a sum of Rs.18 lakhs to the detenu on various dates.  In the year 2007 the detenu induced to give Deer meat treatment.  In the said statement it is further stated that the detenu killed one deer on 18.2.2007 in the presence of Tmt.Umamaheswari and her brother and cooked the deer meat with some other meat and started treatment for her son.  The above statements clearly reveal that there is substance in the charge registered against the detenu under sections 3, 4 and 5 of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 and under Sections 40, 49-B read with 51(1) Proviso to Wild Life Protection Act, 1972.
13.  With regard to the contention that the detenu had not acted in the manner prejudicial to the public order and even assuming that he had cheated number of persons, subject to proof, will not be prejudicial to the public order, and same has to be ascertained on the facts of this case.

14.  With regard to the demand and acceptance of huge money by the detenu on the ground that he will cure the disease of any kind and making promises in the name of the God and to return the money if not cured through the programmes telecasted in the electronic media, is an inducement of the public at large.  Several persons across the State, believing the words of the detenu, allegedly paid huge amounts to the detenu and actual payment made by some of them on being demanded back, the detenu threatened them with dire consequences by showing pistol.  Thus, the act of the detenu is having a wider ramification from among the public at large and therefore his acts of making false promise to cure any kind of disease through electronic media and cheating large number of innocent people across the State and collecting huge money and when demanded for return of the money, threatening them with dire consequences by showing pistol, are definitely coming within the purview of the disturbance of public order and really affecting the tempo of the Society, though not restricted in a particular locality.
15.  It is an admitted fact that some section of the society is fond of one or other TV Channel and the said TV Channel viewers form a class by themselves, though not definite.  Giving false promise to cure any disease like a magician and alluring people to meet him for treatment on payment of huge sum, is definitely affecting the tempo of the society, thus attracting   the meaning of "disturbance of public order".  The said action of the detenu cannot be treated as merely cheating particular individual, but should be treated as cheating the community at large, or at least a cross section of the Society.
16.  The allegation made against the detenu is that he is indulging in activities prejudicial to the maintenance of public health and public order by way of advertisement in electronic media by giving false promise and collecting huge sums of money by inducing the patients.  The said activity, prejudicial to the maintenance of public health, will definitely come under the meaning of disturbance of public order.
(a)  In the decision reported in (1995) 3 SCC 237 (Mustakmiya Jabbarmiya Shaikh v. M.M.Mehta), 'public order' and 'law and order' are explained by the Supreme Court in paragraph 9, which reads thus,
"9. Further, sub-section (1) of Section 3 of the Act confers power on the State Government and a District Magistrate or a Commissioner of Police under the direction of the State Government to detain a person on being satisfied that it is necessary to do so with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The explanation attached to sub-section (4) of Section 3 reproduced above in the foregoing para contemplates that public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities of any person referred to in sub-section (4) directly or indirectly, are causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health. Sub-section (4) of Section 3 also provides that for the purpose of Section 3, a person shall be deemed to be acting in any manner prejudicial to the maintenance of public order when such person is a dangerous person and engaged in activities which affect adversely or are likely to affect adversely the maintenance of public order. It, therefore, becomes necessary to determine whether besides the person being a dangerous person his alleged activities fall within the ambit of the expression public order. A distinction has to be drawn between law and order and maintenance of public order because most often the two expressions are confused and detention orders are passed by the authorities concerned in respect of the activities of a person which exclusively fall within the domain of law and order and which have nothing to do with the maintenance of public order. In this connection it may be stated that in order to bring the activities of a person within the expression of acting in any manner prejudicial to the maintenance of public order, the fall out and the extent and reach of the alleged activities must be of such a nature that they travel beyond the capacity of the ordinary law to deal with him or to prevent his subversive activities affecting the community at large or a large section of society. It is the degree of disturbance and its impact upon the even tempo of life of the society or the people of a locality which determines whether the disturbance caused by such activity amounts only to a breach of law and order or it amounts to public order. If the activity falls within the category of disturbance of public order then it becomes essential to treat such a criminal and deal with him differently than an ordinary criminal under the law as his activities would fall beyond the frontiers of law and order, disturbing the even tempo of life of the community of the specified locality.  In the case of Arun Ghosh v. State of W.B. ((1970) 1 SCC 98 : 1970 SCC (Cri) 67) this Court had an occasion to deal with the distinction between law and order and public order. Hidayatullah, C.J. (as he then was), speaking for the Court observed that public order would embrace more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquillity. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. It has been further observed that the implications of public order are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Again in the case of Piyush Kantilal Mehta v. Commissioner of Police (1989 Supp (1) SCC 322 : 1989 SCC (Cri) 438) this Court took the view that in order that an activity may be said to affect adversely the maintenance of public order, there must be material to show that there has been a feeling of insecurity among the general public. If any act of a person creates panic or fear in the minds of the members of the public upsetting the even tempo of life of the community, such act must be said to have a direct bearing on the question of maintenance of public order. The commission of an offence will not necessarily come within the purview of public order which can be dealt with under ordinary general law of the land."

(b)  In (2004) 7 SCC 467 (Commissioner of Police v. C.Anita), the meaning of 'law and order' and 'public order' were discussed and held as follows:
"7. ........  The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression law and order is wider in scope inasmuch as contravention of law always affects order, public order has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of law and order and public order is one of the degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of the public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting public order from that concerning law and order. The question to ask is:
Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed?
This question has to be faced in every case on its facts."
The said decision is reiterated in (2008) 9 SCC 89 (K.K.Saravana Babu v. State of Tamil Nadu)(para 28).
  17.  Interference in preventive detention orders by the Courts in habeas corpus petitions was considered by the Supreme Court in the decision reported in 1992 Supp (1) SCC 496 : 1990 SCC (Cri) 301 (Additional Secretary to the Government of India v. Alka Subhash Gadia).  The grounds on which the Courts may interfere in the detention orders are held to be very limited, which read thus,
(i) that the impugned order is not passed under the Act under which it is purported to have been passed,

(ii) that it is sought to be executed against a wrong person,
(iii) that it is passed for a wrong purpose,
(iv) that it is passed on vague, extraneous and irrelevant grounds,
or
(v) that the authority which passed it had no authority to do so.
Or any other contingency like the above said five conditions, which was reported in the decision reported in (1994) 6 SCC 14 : 1994 SCC (Cri) 1580 (Subhash Muljimal Gandhi v. L.Himingliana).
18.  In the decision reported in (2008) 2 SCC (Cri) 128 (State of Maharashtra v. Bhaurao Punjabrao Gawande), the preventive detention and scope of judicial review is explained in paragraphs 36 to 39, which read thus,
"Preventive detention: necessary evil
36. Liberty of an individual has to be subordinated, within reasonable bounds, to the good of the people. The framers of the Constitution were conscious of the practical need of preventive detention with a view to striking a just and delicate balance between need and necessity to preserve individual liberty and personal freedom on the one hand and security and safety of the country and interest of the society on the other hand. Security of State, maintenance of public order and services essential to the community, prevention of smuggling and blackmarketing activities, etc. demand effective safeguards in the larger interests of sustenance of a peaceful democratic way of life.
37. In considering and interpreting preventive detention laws, courts ought to show greatest concern and solitude in upholding and safeguarding the fundamental right of liberty of the citizen, however, without forgetting the historical background in which the necessityan unhappy necessitywas felt by the makers of the Constitution in incorporating provisions of preventive detention in the Constitution itself. While no doubt it is the duty of the court to safeguard against any encroachment on the life and liberty of individuals, at the same time the authorities who have the responsibility to discharge the functions vested in them under the law of the country should not be impeded or interfered with without justification (vide A.K. Roy v. Union of India, Bhut Nath Mete v. State of W.B., State of W.B. v. Ashok Dey and ADM v. Shivakant Shukla).



Subjective satisfaction: scope of judicial review
38. Subjective satisfaction being a condition precedent for the exercise of the power of preventive detention conferred on the executive, the court can always examine whether the requisite satisfaction is arrived at by the authority; if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad.
39. A court cannot go into correctness or otherwise of the facts stated or allegations levelled in the grounds in support of detention. A court of law is the last appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based. That, however, does not mean that the subjective satisfaction of the detaining authority is wholly immune from judicial reviewability. By judicial decisions, courts have carved out areas, though limited, within which the validity of subjective satisfaction can be tested judicially."
From the perusal of the above judgment it is evident that subjective satisfaction should be arrived at by the Detaining Authority and the sufficiency of the materials to arrive at subjective satisfaction cannot be gone into by the Courts on the ground of judicial review of the detention order.
19.  Here in this case, the conditional bail granted by this Court in two cases; the grant of bail in four cases by the Principal Sessions Court, Chennai; and pendency of bail petitions in respect of 21 other cases, are all taken into consideration, apart from the likelihood of release of the detenu in these cases and thereafter only subjective satisfaction was recorded by the Detaining Authority to prevent the indulgence of such activity viz., giving advertisement through electronic media and alluring public in general to get treatment for their diseases from the detenu by paying  huge sums, in violation of the Wild Life Protection Act, 1972; Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954; and the provisions of the Indian Penal Code.  As noticed by us, the conditions imposed in the bail orders are not permanent conditions and are subject to modification at any time, on the request of the detenu by filing appropriate application.  Hence there cannot be any effective prevention of the detenu from indulging in such further activities for a considerable period of time.
20.  In the decision reported in (2004) 8 SCC 591 (State of U.P. v. Sanjai Pratap Gupta), the Supreme Court held 'it is not the number of Acts that matters while ordering preventive detention, what has to be seen is the effect of the Act on the even tempo of life, the extent of its reach upon the society and its impact.'
21.  In (2006) 2 SCC 664 (T.V.Sravanan v. State), the Supreme Court held that for recording the satisfaction of imminent possibility of coming out on bail by the detenu, materials are to be available on record and in the absence of availability of such records, the order can be treated as without due application of mind.
22.  The decision cited by the learned Senior Counsel for the petitioner in Criminal Appeal No.2121 of 2009 dated 13.11.2009 is in respect of preventing the detenu from indulging in smuggling activities, against whom already confiscation of passport was ordered.  Therefore, in that case the Supreme Court was satisfied that the contention of the detenu that the detenu was already effectively prevented and therefore no further detention order was necessary.
23.  In the light of our above findings, we are of the view that there is no infirmity in the order of detention passed against the detenu and no case is made out to interfere with the order of detention dated 17.9.2009.
There is no merit in the habeas corpus petition and the same stands dismissed.











vr

To

1. The Secretary to Government,
Prohibition & Excise Department,
Fort St. George, Chennai  600 009.

2. The Commissioner of Police,
Egmore,
  Chennai 600 008

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,

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.

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
    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
     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

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  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.

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
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 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 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 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 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:-
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 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 India also fixed the cut-off date for establishing the solid waste disposal facility.  The time granted by the Government of India expired as early as in the year 2003. Even now most of the municipalities are following the conventional method of disposal of wastes.

21. The Municipalities of Poonamallee, Valasaravakkam, Ambattur, Thiruverkadu and Maduravoyal and Porur Panchayat were not in a position to establish their solid waste processing plant on account of various reasons including the non-availability of unobjectionable site.  It was only in such circumstances they have joined together and made an application before the Government to permit them to establish a common solid waste processing plant.  Accordingly, the Government initiated steps. The Collector of Thiruvallur having found that a suitable  poramboke land was available in Kuthambakkam panchayat, submitted a report before the Government for allotting about 70 acres of poramboke land for this public purpose.  Though the District Collector has not strictly followed the mandatory provisions of Section 134 of the Tamil Nadu Panchayats Act before passing the order, the background facts  clearly shows that there was substantial compliance.

22. Section 134(3) of the Tamil Nadu Panchayats Act, 1994 permits the Collector to exclude certain lands from the operation of the Act and to modify or cancel such exclusion by way of further notifications.  However, there is a mandatory condition that before issuing such notification  for exclusion or modification or cancellation, the village panchayat should be consulted.  In a matter like this, consultation cannot be taken as  consent. However, it does not mean that consultation is an empty formality.
23. Since the poramboke land has been in the possession of the  panchayat, naturally, they exercise certain rights in respect of those lands. The property has been used only for public purpose. Therefore before resuming possession of such porambokes from the panchayat, Law requires that consultation should be made with the concerned panchayat. However in the case on hand, effective consultation made by the District Collector was only after granting entry permission by the Government as per G.O.Ms.No.78 dated 23 February, 2009. Therefore  mandatory consultation process was not resorted to by the District Collector before recommending the case to the Government.  However in view of the larger public interest involved in establishing garbage disposal plant and the developments which have taken place subsequently, coupled with the statement made by the learned Advocate General, we are of the view that no interference is called for in the action taken by the Collector culminating in issuing the order by the Government.

24. The challenge made to the "no objection certificate" issued by the Tamil Nadu Pollution Control Board is liable to be rejected for the simple reason that no right would accrue to the local bodies on the basis of such No objection Certificate.  The "No Objection Certificate" was issued only for the purpose of proceeding further. The Municipalities and the panchayat would be in a position to establish the common solid waste management system only after the grant of permission by the Environmental Assessment Authority. Therefore everything depends upon the approval to be given by the Environmental Assessment Authority. In fact the Tamil Nadu Pollution Control Board has clarified the position that their No Objection Certificate is only tentative and the ultimate authority is only the Environmental Assessment Authority.  The writ petition challenging the "No Objection Certificate" is therefore closed with the above observation with regard to its nature and application.

25. Though the order of the Collector dated 10.3.209 was made only after the Government Order in G.O.Ms.No.78 dated 23 February, 2009, there are indications about the objection submitted by the President of the Panchayat and the report of the District Collector.  In such circumstances, we are of the view that no interference is called for in the order passed by the Government in G.O.Ms.No.78 dated   23 February, 2009 as well as the order passed by the District Collector dated 10 March, 2009.

26. The Environmental Impact Assessment notification, 2006 clearly shows that common solid waste management facility requires environmental clearance from the Environmental Impact Assessment Authority. Before giving such clearance, the Environmental Impact Assessment Authority is expected to conduct a study including the impact of the project on the water, air, noise, biological and land environment. The authority is also expected to study the negative impacts and in the event of coming to a conclusion that remedial measures should be taken it has to give such suggestions in the form of Environment Management Plan.

27. When the environmental issues and the threat which would be caused to the ecology were taken up by the learned counsel for the petitioner, the learned Advocate General submitted that such issues can be raised before the Environmental Assessment Authority. The learned Advocate General further submitted that it was open to the panchayat and the other affected parties to appear before the authorities during the course of public hearing and they are free to express their opinion.  However, the learned counsel for the Panchayat expressed her reservations and serious concern with respect to the way in which the public hearing had been conducted by the authorities in cases like this. According to the learned counsel, often the grievances of the affected parties were not considered and the public hearings are only a make belief affair.
28. The public consultation is a mandatory procedure in the process of environmental clearance. However, it was submitted at the bar that the public hearing is now more or less a "ritual" and the affected persons were never given audience to express their views. In fact, in a similar matter in W.P.No.18888/1998, an affidavit was filed by a practising lawyer of this Court in W.P.M.P.No.302/2010, in respect of a public hearing and the way in which supporters in favour of a particular project denied entry to the local people to attend the public hearing and the steps taken to restrain those local affected persons, who managed to enter the premises from opening their mouth. Therefore, we are constrained to indicate the importance of public hearing and the need to ascertain the views of the affected persons by the authorities before issuing the environmental clearance.

29. The notification issued by the Ministry of Environment and Forest dated 14 September 2006 is a compendium of Regulations dealing with assessment of Environmental impact. The notification contains categorization of projects and activities. All projects included in Category "A" to the schedule appended to the notification including expansion and modernization of existing projects requires mandatory prior environmental clearance from the Central Government through its Ministry of Environment and Forests, on the recommendations of an Expert Appraisal Committee constituted by the Central Government. Similarly, all projects or activities included in Category "B1" require prior environmental clearance from the concerned State / Union Territory Environmental Impact Assessment Authority. Application seeking prior environmental clearance shall be made in the prescribed statutory format.

30. The process of environmental clearance involves screening of applications, scoping, public consultation and appraisal.

31. The process of public consultation is an essential part of the environmental clearance process. The notification dated 14 September 2006 contains the provisions regarding public consultation. It reads thus :-
III Stage (3)  Public  Consultation :-
(i) "Public Consultation" refers to the process by which the concerns of local affected persons and others who have plausible stake in the environmental impacts of the project or activity are ascertained with a view to taking into account all the material concerns in the project or activity design as appropriate. All Category "A" and Category "B1" projects or activities shall undertake Public Consultation, except the following :-
(a) modernization of irrigation projects (item 1(c)(ii) of the Schedule).
(b) All projects or activities located within industrial estates or parks (item 7(c) of the Schedule) approved by the concerned authorities, and which are not disallowed in such approvals.
(c) expansion of roads and highways (item 7(f) of the schedule) which do not involve any further acquisition of land.
(d) all building/ construction projects/Area Development projects and Townships (Item 8).
(e) all Category B2 projects and activities.
(f) all projects or activities concerning national defence and security or involving other strategic considerations as determined by the Central Government.

(ii) The Public Consultation shall ordinarily have two components comprising of:-
(a) a public hearing at the site or in its close proximity  district wise, to be carried out in the manner prescribed in Appendix IV, for ascertaining concerns of local affected person;
(b) obtain responses in writing from other concerned persons having a plausible stake in the environmental aspects of the project or activity.
(iii) The public hearing at, or in close proximity to, the site(s) in all cases shall be conducted by the State Pollution Control Board (SPCB) or the Union Territory Pollution Control Committee (UTPCC) concerned in the specified manner and forward the proceedings to the regulatory authority concerned within 45 (forty five) of a request to the effect from the applicant.
(iv) In case the State Pollution Control Board or the Union Territory Pollution Control Committee concerned does not undertake and complete the public hearing within the specified period and/or does not convey the proceedings of the public hearing within the prescribed period directly to the regulatory authority concerned as above, the regulatory authority shall engage another public agency or authority which is not subordinate to the regulatory authority, to complete the process within a further period of forty five days.
(v) If the public agency or authority nominated under the sub paragraph (iii) above reports to the regulatory authority concerned owing to the local situation, it is not possible to conduct the public hearing in a manner which will enable the views of the concerned local persons to be freely expressed, it shall report the facts in detail to the concerned regulatory authority, which may, after due consideration of the report and other reliable information that it may have, decide that the public consultation in the case need not include the public hearing.
(vi) For obtaining responses in writing from other concerned persons having a plausible stake in the environmental aspects of the project or activity, the concerned regulatory authority and the State Pollution Control Board (SPCB) or the Union Territory Pollution Control Committee (UTPCC) shall invite responses from such concerned persons by placing on their website the summary EIA report prepared in the format given in Appendix IIIA by the applicant along with a copy of the application in the prescribed form, within seven days of the receipt of a written request for arranging the public hearing.  Confidential information including non-disclosable or legally privileged information involving Intellectual Property Right, source specified in the application shall not be placed on the web site.  The regulatory authority concerned may also use other appropriate media for ensuring wide publicity about the project or activity. The regulatory authority shall, however, make available on a written request from any concerned person the  Draft EIA report for inspection at a notified place during normal office hours till the date of the public hearing.  All the responses received as part of this public consultation process shall be forwarded to the applicant through the quickest available means.
(vii) After completion of the public consultation, the applicant shall address all the material environmental concerns expressed during this process, and make appropriate changes in the draft EIA and EMP. The final EIA report, so prepared, shall be submitted by the applicant to the concerned regulatory authority for appraisal.  The applicant may alternatively submit a supplementary report to draft EIA and EMP addressing all the concerns expressed during the public consultation."

32. Appendix IV of the notification contains the detailed procedure for conduct of public hearing. It reads:-
"PROCEDURE FOR CONDUCT OF PUBLIC HEARING:
1.0 The Public Hearing shall be arranged in a systematic, time bound and transparent manner ensuring widest possible public participation at the project site(s) or in its close proximity District  wise, by the concerned State Pollution Control Board (SPCB) or the Union Territory Pollution Control committee (UTPCC).

2.0 The Process:
2.1 The applicant shall make a request through a simple letter to the Member Secretary of the SPCB or Union Territory Pollution Control Committee, in whose jurisdiction the project is located, to arrange the public hearing within the prescribed statutory period.  In case the project site is extending beyond a State or Union Territory, the public hearing is mandated in each State or Union Territory in which the project is sited and the applicant shall make separate requests to each concerned SPCB or UTPCC for holding the public hearing as per this procedure.
2.2 The applicant shall enclose with the letter of request, at least 10 hard copies and an equivalent number of soft (electronic) copies of the draft EIA Report with the generic structure given in Appendix III including the Summary Environment Impact Assessment report in English and in the local language, prepared strictly in accordance with the terms of reference communicated after Scoping (Stage -2 ).  Simultaneously the applicant shall arrange to forward copies, one hard and one soft, of the above draft EIA Report along with the Summary EIA report to the Ministry of Environment and Forests and to the following authorities or offices, within whose jurisdiction the project will be located:
(a) District Magistrate/s
(b) Zila Parishad or Municipal Corporation
(c) District Industries Office
(d) Concerned Regional Office of the Ministry of Environment and Forests.

2.3 On receiving the draft Environmental Impact Assessment Report, the above mentioned authorities except the MoEF, shall arrange to widely publicize it within their respective jurisdictions requesting the interested persons to send their comments to the concerned regulatory authorities. They shall also make available the draft EIA Report for inspection electronically or otherwise to the public during normal office hours till the Public Hearing is over.  The Ministry of Environment and Forests shall promptly display the Summary of the draft Environmental Impact Assessment report on its website, and also make the full draft EIA available for reference at a notified place during normal office hours in the Ministry of Delhi.
2.4 The SPCB or UTPCC concerned shall also make similar arrangements for giving publicity about the project within the State/Union Territory and make available the Summary of the draft Environmental Impact Assessment report (Appendix III A) for inspection in select offices or public libraries or panchayats etc.  They shall also additionally make available a copy of the draft Environmental Impact Assessment report to the above five authorities/offices viz., Ministry of Environment and Forests, District Magistrate etc.

3.0 Notice of Public Hearing:
3.1 The Member Secretary of the concerned SPCB or UTPCC shall finalize the date, time and exact venue for the conduct of public hearing within 7(seven) days of the date of receipt of the draft Environmental Impact Assessment report from the project proponent, and advertise the same in one major National Daily and one Regional Vernacular Daily. A minimum notice period of 30 (thirty) days shall be provided to the public for furnishing their responses;
3.2  The advertisement shall also inform the public about the places or offices where the public could access the draft Environmental Impact Assessment report and the Summary Environmental Impact Assessment report  before the public hearing.
3.3   No postponement of the date, time, venue of the public hearing shall be undertaken unless some untoward emergency situation occurs and only on the recommendation of the concerned District Magistrate the postponement shall be notified to the public through the same National and Regional vernacular dailies and also prominently displayed at all the identified offices by the concerned SPCB or Union Territory Pollution Control Committee.
3.4   In the above exceptional circumstances  fresh date, time and venue for the public consultation shall be decided by the Member-Secretary of the concerned SPCB or UTPCC only in consultation with the District Magistrate and notified afresh as per procedure under 3.1 above.

4.0  The Panel:
4.1   The District Magistrate or his or her representative not below the rank of an Additional District Magistrate assisted by a representative of SPCB or UTPCC, shall supervise and preside over the entire public hearing process.

5.0  Videography:
5.1   The  SPCB or UTPCC shall arrange to video film the entire proceedings.  A copy of the videotape or a CD shall be enclosed with the public hearing proceedings while forwarding it to the Regulatory Authority concerned.

6.0  Proceedings:
6.1   The attendance of all those who are present at the venue shall be noted and annexed with the final proceedings.
6.2  There shall be no quorum required for attendance for starting the proceedings.
6.3   A representative of the applicant shall initiate the proceedings with a presentation on the project  and the Summary EIA report.
6.4   Every person present at the venue shall be granted the opportunity to seek information or clarifications on the project from the applicant. The summary of the public hearing proceedings accurately reflecting all the views and concerns expressed shall be recorded by the representative of the  SPCB or UTPCC and read over to the audience at the end of the proceedings explaining the contents in the vernacular language and the agreed minutes shall be signed by the District Magistrate or his or her representative on the same day and forwarded to the  SPCB/ UTPCC concerned.
6.5    A statement of the issues raised by the public and the comments of the applicant shall also be prepared in the local language and in English and annexed to the proceedings.

6.6  The proceedings of the public hearing shall be conspicuously displayed at the office of the Panchayats within whose jurisdiction the project is located.  Office of the concerned Zila Parishad, District Magistrate, and the  SPCB or UTPCC.  The  SPCB or UTPCC shall also display the proceedings on its website for general information, Comments if any, on the proceedings which may be sent directly to the concerned regulatory authorities and the applicant concerned.

7.0  Time period for completion of public hearing:
7.1  The public hearing shall be completed within a period of 45 (forty five ) days from date of receipt of the request letter from the applicant.  Therefore the  SPCB or UTPCC concerned shall sent the public hearing proceedings to the concerned regulatory authority within 8 (eight) days of the completion of the public hearing.  The applicant may also directly forward a copy of the approved public hearing proceedings to the regulatory authority concerned along with the final Environmental Impact Assessment report or supplementary report to the draft EIA report prepared after the public hearing and public consultations.
7.2  If the  SPCB or UTPCC fails to hold the public hearing within the stipulated 45 (forty five) days, the Central Government in Ministry of Environment and Forests for Category "A" project or activity and the State Government or Union Territory Administration for Category "B" project or activity at the request of the SEIAA, shall engage any other agency or authority to complete the process, as per procedure laid down in this notification."

33. The public consultative process is therefore an essential component in the process of environmental impact assessment. It is essentially an embodiment of the principles of natural justice. The importance of conducting public hearing in a peaceful atmosphere with opportunity to all the local affected persons and others, who have plausible stake in the environmental impacts of the project is evident by the fact that the notification wanted the District Magistrate or any other officer not below the rank of an additional District Magistrate to supervise the conduct of public hearing. Similarly, while conducting appraisal of the application and the documents submitted by the applicant for environmental clearance, the Expert Appraisal Committee has to consider the out come of the public consultations, including report of public hearing proceedings. Therefore, public hearing occupies a pivotal position in the matter of environmental impact assessment.

34. When the notification itself indicates the manner and method of conducting public hearings, the statutory authorities are expected to conduct the hearing by giving reasonable opportunity to all the local affected persons and others who have interest in the particular project or activity. Such public hearings should not be a make belief affair, just to comply with the requirements of the notification. It is the responsibility of the District Magistrate or officers of equal status to see that all the affected persons are given audience. The panel of officers conducting the public hearing must remember that such hearings are conducted only to record the views of the affected parties. The statutory panel should hear the views of the affected persons and not those who have assembled in the meeting hall at the behest of the developer with a hidden agenda to block or prevent the opposition to the project. The regulation therefore provides for recording the attendance of those who are present at the venue and such attendance registers should be forwarded with the minutes of proceedings. Therefore, the attempt should be to conduct the hearing in an open and transparent manner with opportunity to express even the dissenting views without fear. The authorities owe a duty to the society to conduct such meetings in the manner prescribed by the Statute and if necessary, by taking police assistance. The minutes of the hearing should contain a true note of what has transpired in the meeting. Such positive steps on the part of the statutory authorities would inspire confidence in the affected people.

35. The consultative process is an essential facet of the environmental impact assessment study and therefore, any violation of the mandatory procedure in the matter of conducting public hearing and recording the views or objections of the affected persons would give the aggrieved a cause of action to challenge the legality and correctness of the public hearing proceedings, without waiting for the final outcome of the impact assessment proceedings.

36. The learned counsel for the Kuthambakkam Panchayat by placing reliance on the application submitted by the Municipalities before Environmental Impact Assessment Authority submitted that the required particulars were not furnished by the local bodies and as such, the petitioner is in darkness with respect to the distance between the proposed solid waste management station and the water body and other natural streams. However, the learned Advocate General fairly submitted that all necessary details would be submitted before the Environmental Assessment Authority, so as to enable the authority to conduct a detailed study in the matter before issuing environmental clearance.

37. Though we are of the view that no interference is called for in the order passed by the Government in G.O.Ms.No.78 as well as the order passed by the District Collector dated 10 March, 2009, we make the legal position clear that before taking action under Section 134 (3) of the Tamil Nadu Panchayats Act, the concerned panchayat should be consulted.


Disposal :-
38.  In the result, we issue the following directions.
(i) The concerned Panchayat and the Municipalities are directed to approach the Environmental Impact Assessment Authority with full particulars of the proposed common Solid Waste Management Plant.

(ii) The Environmental Impact Assessment Authority is directed to give a copy of the application submitted by the Municipalities and Panchayat for granting prior environmental clearance in the matter of establishing the solid waste management Plant to the panchayat so as to enable the petitioner to submit their views or objections in the matter.

(iii) The Kuthambakkam Panchayat and the local affected persons should be given an opportunity to offer their comments during the public hearing.

(iv) The environmental and ecological aspect of the project should be evaluated by the statutory authority before granting clearance.


(iv) In case the Environmental Impact Assessment Authority rejects the application for prior environmental clearance, liberty is given to the Kuthambakkam Panchayat to approach the Government for cancellation of the allotment to respondents 7 to 12, in view of the statement made by the learned Advocate General.

39.  The Writ Appeal and the writ petitions are disposed of as indicated above. Consequently, the connected miscellaneous petitions are also closed. No costs.









Tr/

To

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 Chairperson
    The Tamil Nadu Pollution Control Board
    76, Anna Salai, Chennai-60 032.


4. The Collector
    Thiruvallur District.
5. The Executive Authority                                                                                                                            
    Kuthambakkam Panchayat
    Thiruvallur District.

6. 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.

14.Airports Authority of India
     Rajiv Gandhi Bhawan
     Saftharjung Airport
     New Delhi