Madras High Court
Shanmuga Hospital & vs ) The Commissioner on 1 November, 2017
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.11.2017
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P.No.27875 of 2017
&
W.P.M.P.Nos.29890 & 29891 of 2017
and
W.P.No.27817 of 2017
&
W.P.M.P.No.29812 of 2017
Shanmuga Hospital &
Salem Cancer Institute,
Rep., by its Managing Director,
Dr.P.S.Panneer Selvam,
No.24, Sarada College Road,
Salem - 636 007 .. Petitioner in W.P.No.27875/2017
S. Sundaresan .. Petitioner in W.P.No.27817/2017
Vs.
1) The Commissioner,
Corporation of Salem,
Salem District. .. Sole Respondent in
W.P.No.27875/2017
2) The District Collector,
Salem District,
Salem. .. 1st Respondent in
W.P.No.27817/2017
3) The Commissioner,
Salem Municipal Corporation,
Salem. .. 2nd Respondent in
W.P.No.27817/2017
W.P.No.27875/2017: Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, to call for the records pertaining to the impugned notice of the respondent dated 22.10.2017 passed in F1/14152/2015 issued under the Tamil Nadu Public Health Act 1939 and quash the same.
W.P.No.27817/2017: Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorari, calling for the records of 2nd respondent in F1/14152/2015 dated 25.10.2017 and quash the same.
For Petitioner in
W.P.No.27875/2017 : Mr.M.Thamizhavel
For Petitioner in
W.P.No.27817/2017 : Mr.V.Manohar
For Respondent/s : Mr.S.Diwakar,
(In both W.P.'s) Special Government Pleader
C O M M O N O R D E R
Before going into the judgment, I would like to quote the lyrics of a song written by the famous Tamil Poet Thiru.Pattukottai Kalyanasundaram, for the Tamil film 'Thirudathe', in which Late Thiru. M.G.Ramachandran, the former Chief Minister of Tamil Nadu, acted as a Hero, as it is relevant to the case on hand.
"jpUldha; ghh;j;J jpUe;jhtpl;lhy;.
jpUl;il xHpf;f KoahJ"
2. As the issue involved in both Writ Petitions is one and the same, the cases are taken up for disposal by a common order.
3. The petitioner - Shanmuga Hospital & Salem Cancer Institute, Salem has come up with the Writ Petition in W.P.No.27875/2017 challenging the notice, dated 22.10.2017 issued by the respondent-Commissioner, Corporation of Salem, Salem, vide proceedings in F1/14152/2015 under the Tamil Nadu Public Health Act, 1939. The case of the petitioner - Hospital is that the respondent - Commissioner, Corporation of Salem has invoked various provisions under Sections 3(25), 41(1)(2)(4), 83(1) and 84(1) of Tamil Nadu Public Health Act, 1939 (hereinafter referred to as 'Act') and straight away imposed a penalty of Rs.10,00,000/- (Rupees Ten Lakhs only) as fine amount, without carrying out any inspection or issuing prior notice, calling for an explanation and asking the petitioner to rectify the unhealthy situations prevalent in that place. The petitioner - Hospital further stated that if any nuisance is caused and the same is brought to the attention of the Authority concerned under the Act, a notice has got to be issued and explanation has to be called for and if no remedial steps are taken, the Authorities are entitled to impose fine as contemplated under the Act. Therefore, according to the petitioner - Hospital, the impugned notice issued by the respondent is arbitrary and violative of the provisions of the Act.
4. The petitioner-Sundaresan has come up with the Writ Petition in W.P.No.27817/2017 challenging the notice, dated 25.10.2017 issued by the second respondent-Commissioner, Salem Municipal Corporation, Salem vide proceedings in F1/14152/2015 under the Tamil Nadu Public Health Act, 1939. The case of the petitioner-Sundaresan is that the Commissioner, Salem Municipal Corporation, Salem has invoked various provisions under Sections 3(25), 41(1)(2)(4), 83(1) (2) (a) (b), 84(1) (2), 85, 87 and 134(1) of the Act and Section 269 of Indian Penal Code, 1860 and straight away imposed a penalty of Rs.15,00,000/- (Rupees Fifteen Lakhs only) as fine amount, payable within a period of 5 days in the Government Treasury, without carrying out any inspection or issuing prior notice, calling for an explanation and asking the petitioner to rectify the unhealthy situations prevalent in that place. The petitioner further stated that if any nuisance is caused and if the same is brought to the attention of the Authority concerned under the Act, a notice has got to be issued and explanation has to be called for and if no remedial steps are taken, the Authorities are entitled to impose fine as contemplated under the Act. Therefore, it is his contention that the impugned notice issued by the second respondent is arbitrary and violative of the provisions of the Act.
5. Learned Special Government Pleader appearing for the respondents in both the Writ Petitions, submitted that as the petitioners have caused nuisance, more particularly, taking note of the fact that 'Dengue', a communicable disease, which is transmitted from one person to another through mosquitoes, is on the rise and is likely to be an epidemic, respondents have invoked Section 83 of the Act.
6. For the sake of convenience, Sections 83, 84, 85 and 88 of the Tamil Nadu Public Health Act, 1939 are extracted as under:
"Chapter - IX - Mosquito Control
83. Prohibition of mosquito breeding in collections of water:
(1) If the provisions of this section have been extended to any local areas, no person or local authority shall, after such extension -
(a) have, keep, or maintain within such area any collection of standing or flowing water in which mosquitoes breed or are likely to breed, or
(b) cause, permit, or suffer any water within such area to form a collection in which mosquitoes breed or are likely to breed, unless such collection has been so treated as effectively to prevent such breeding.
Explanation: Troughs used for cattle and in frequent use shall not, until the contrary is proved, be deemed to be collections of water in which mosquitoes breed of are likely to breed.
(2) The natural presence of mosquito larvae in any standing or flowing water shall be evidence that mosquitoes are breeding in such water.
84. Treatment of mosquito breeding places:
(1) The Health Officer may, by notice in writing, require the owner or the occupier of any place containing any collection of standing or flowing water in which mosquitoes breed or are likely to breed, within such time as may be specified in the notice, not being less than twenty-four hours, to take such measures with respect to the same, or to treat the same by such physical, chemical or biological method, being measures or a method approved by the Director of Public Health, as the Health Officer may consider suitable in the circumstances.
(2) If a notice under sub-section(1) is served on the occupier, he shall, in the absence of a contract, expressed or implied, to the contrary, be entitled to recover from the owner the reasonable expenses incurred by him in taking the measures or adopting the method of treatment, specified in the notice and may deduct the amount of such expenses from the rent which is then, or which may thereafter be, due from him to the owner.
85. Health Officer's powers in case of default: If the person on whom a notice is served under section 84 fails or refused to take the measures, or adopt the method of treatment, specified in such notice within the time specified therein. the Health officer may himself take such measures or adopts such treatment and recover the cost of doing so from the owner or occupier of the property, as the case may be, in the same manner as if it were a property tax.
88. Power of Health Staff to enter and Inspect premises : For the purpose of enforcing the provisions contained in this Chapter, the Health Officer or any of his subordinates not below the rank of Health or Sanitary Inspector may, at all reasonable times, after giving such notice in writing as may appear to him reasonable, enter and inspect any land or building within his jurisdiction; and the occupier or the owner, as the case may be, of such land or building shall give all facilities necessary for such entry and inspection and supply all such information as may be required of him for the purpose aforesaid."
7. In both the writ petitions, respondents, by invoking Section 83 of the Act (cited supra), have asked the petitioners in both the writ petitions to ensure cleanliness, so that breeding of mosquitoes is avoided. If the petitioners fail to take remedial action to restore the situation in the area in question, then the respondents are entitled to impose fine. According to the learned Special Government Pleader, the petitioner in W.P.No.27875 of 2017 has been imposed with a fine of sum of Rs.10,00,000/- vide impugned order dated 22.10.2017 for violation of the provisions of the Act, which has also been admitted by the petitioner-Hospital. It is stated by the learned counsel for the petitioner in W.P.No.27875 of 2017 that the petitioner-Hospital has paid a sum of Rs.2,00,000/- on 26.10.2017 vide SL.No.0009192, out of the total amount of Rs.10,00,000/- imposed as fine.
8. Heard the learned counsel on either side and perused the material documents available on record.
9. It is no doubt true that mosquito menace is a prevalent one and it carries various viruses and several persons are affected with Dengue fever. A Minister of the State of Tamil Nadu has given a statement that Dengue has been curtailed. The fact that there is curtailment shows that Dengue is prevalent. The severity of Mosquito menace in the State was demonstrated by the sitting Judges of the Madurai Bench of Madras High Court by asking the staff to zap down scores of mosquitoes with an electric racket, right on the Judges' Dais in the centrally air-conditioned Court Hall No.1. The Judges have also posed a question about the Western countries which have become free of mosquitoes.
10. The enactment of the Tamil Nadu Public Health Act received the assent of the Governor as early as 28.02.1939, to ensure that there should be a provision for advancing public health in the State of Tamil Nadu. This Act defines the type of effluents and discharges, apart from ensuring the cleanliness in and around the places in the State of Tamil Nadu, so that no health hazard is caused to any of the individuals. Whenever any nuisance is brought to the attention of an official, he has got powers to take appropriate action against the nuisance created. But for exercising this function, a notice is required to be given to the person who has caused the nuisance and if that person cannot be found, the owner or the occupier of the premises in which the nuisance arose, or still continues, shall be served with notice.
11. It is very unfortunate that the residents throw garbage in the open drains, thereby causing health havoc to the environment we live and they also dump garbage in plastic bags and throw them on the roads, despite dustbins being provided. Due to rains, the city has reshaped with water-logged roads and clogged drains, which are all breeding sites of mosquitoes. The State has become a virtual breeding ground for mosquitoes, play ground for stray cattle, dogs and pigs, etc. Even though, the authorities are taking steps to curtail further menace, residents should co-operate to save themselves from health hazards, as many of the citizens are violators of law. In this State, many think laws are made only to break/violate. For example, when a person from India goes to Singapore, he is able to throw used cups, cans etc., only in dust bins. But, unfortunately, as soon as he lands in India, he feels that the open place itself is a dustbin.
12. The city has watched the public throwing garbage into the dust bin while traveling in a motor cycle and invariably, it falls on the road, rather falling in the dust bin. At this juncture, I am reminded of a judgment of the Kerala High Court in the case of Niyamakendram vs. Secretary, Corporation of Kochi made in W.A.No.174 of 1997, wherein the Court has observed that it was aware of the fact that it will be exposing itself to the charge that the Court has assumed the role of a "garbage supervisor", but the brunt of that cross is worth bearing, having regard to the ultimate benefit it may bring to the people. It is high time to remind that the public as also the public authorities shed their ego about the Court verdicts passed in public interest, which must be accepted in the right spirit, bearing in mind the paramount consideration of health and well-being of the people, as imperatively implicit in the right to life guaranteed under Article 21 of the Constitution of India. Accordingly, the Corporation officials should ensure that garbages are collected in bio-degradable bags separately by the collecting persons on a daily basis from home/commercial establishments to prevent the accumulation of wastage on the sides of roads leading to water stagnation. Every citizen should ensure that they put degradable and non-degradable waste in separate bio-degradable covers at home, so that there will not be any difficulty in disposing of the same with Garbage Collecting Persons.
13. Taking note of the fact that the monsoon has arrived, the possibility of stagnation of water on the roads and other places, cannot be ruled out. In view of this, there is chance of mosquito breeding, leading to health hazards. All honest citizens should come forward to remove encroachments on their own, as several illegal regularizations have taken place that has blocked the water channels, storm water drains, etc and in some cases, this Court is also a party to it by attempting to regularize the buildings contrary to the Statute, even though the Apex Court has passed several verdicts to remove encroachments. It must be remembered that in the first page of 'The Hindu' newspaper dated 14.11.1985, it was reported that owing to heavy rainfall and floods, the then Chief Minister M.G.Ramachandran had shifted his residence to a hotel, because of the encroachment in the water bodies and unauthorized constructions.
14. According to the Act, each and every individual is responsible for taking stringent measures in eradicating mosquitoes. In case of default, the onus is on the authority concerned and he has to adopt measures and later recover the cost from the defaulters. Even if a Statute does not provide for an opportunity of hearing to the defaulters, fair play and justice are said to have been rendered only if the principles of natural justice are followed.
15. Mosquito menace is man made; Authorities turn blind eye to construction of buildings that are in violation of Act, and Rules and pave way for encroachments. These constrict the water line, thereby making no space for water flow. Actual lake areas, ponds and water channels are being clogged by buildings everywhere, for which the authorities are to be blamed. Even, where colonies are developed according to layouts, there are severe violations and the authorities allow violations. There is a chain effect for every man-made-wrong. Buildings have become cramped without set back, roads are narrowed because of encroachments, water bodies carry houses, commercial complexes and Courts, etc., all contributing to stagnation of water everywhere in the city. Every single factor attribute to the negative impact of civic life.
16. Though this Court cannot see beyond the case, it is imperative to look at the cause of action for every case. Many of us do not value the importance of set back in houses and complexes, which is important for the mother Earth, and also it does not allow stagnation of water. The area meant for set back is to ensure that water seeps in and such a provision has to be given in each and every building apart from the fact that fire extinguisher reaches the spot during emergency through the set-back area.
17. The reason behind the mosquito menace, when analyzed, traces back to the above given facts. In case of absentee landlords, the land/house is used as a dump yard by the neighbour, which aggravates and attracts mosquitoes. In that case, neighbours, who spoil the premises should be liable for prosecution. In many cases, though the building is constructed without deviation and very much according to the plan, the road is raised over a period of time and as a result, the ground level of the buildings goes down and pave way for water stagnation.
18. An opportunity for defence should be given to comply with the requirements of the Act within a time frame and if admittedly, steps are not taken, it is open for the Authorities concerned to proceed with those persons, who are responsible for creating health hazards. The Act also empowers the authorities to impose fine for breach of any of the provisions of the said Act or its Rules or for any continuous offence(s) being committed, as could be seen from Section 134(2), which is extracted as under:
"134. Penalties for offences against Act, etc:
..... (2) Whoever after having been convicted of -
(a)contravening any of the provisions of this Act specified in the first and second columns of Schedule II; or
(b) contravening any rule or order made under any of the provisions so specified; or
(c) failing to comply with any direction lawfully given to him, or any requisition lawfully made upon him under or in pursuance of any of the said provisions.
Continues to contravene the said provision or the said rule or order, or continues to fail to comply with the said direction or requisition, shall be punished for each day after the previous date of conviction during which he continues so to offend, with fine which may extend to the amount mentioned in that behalf in the fourth column of the said schedule."
19. The term "conviction" used in the said provision cannot be confined to conviction by a Court of law. The imposition of fine by the Authorities under the Act also amounts to "conviction". The sum and substance of the enactment is that all the citizens of the State of Tamil Nadu have to ensure that a clean atmosphere is prevalent and that if there is any violation, they should be taken to task. According to the petitioner, they have not violated any of the provisions of the Act and even assuming it tobe so, the respondent ought to have informed the petitioner in writing and asked for an explanation and should have also inspected the site and thereafter appropriate action could have been taken. If, after service of notice, on whom the notice was served, remedial measures are not taken within the time stipulated therein, the Authority mentioned in the Act is empowered to take appropriate measures and recover costs from the owner or the occupier of the property.
20. In this case, a reading of the impugned notice shows that no prior opportunity was given before imposition of fine. Admittedly, there is violation of principles of natural justice, as the fine amount is directly imposed upon the petitioner and not in accordance with the Statute and that the respondents in both the writ petitions have not followed the procedures contemplated under the Act. Hence, the orders impugned in both the Writ Petitions are interfered with and the same are set aside. The Writ Petitions are allowed.
21. The contents of the impugned notice may be taken as a show cause notice, now being issued under Section 83 (cited supra). If remedial measures are not taken by the petitioners in both the writ petitions, the respondents in both the writ petitions are empowered to proceed further against the petitioners in accordance with law. The petitioners in both the writ petitions shall reply to the impugned order now being treated as a show cause notice within a period of 24 hours from the date of receipt of a copy of this order and if no reply is received within the time stipulated, it is open to the respondents in both the writ petitions to inspect the premises and take photographs and videographs, in order to establish the stance.
22. The learned counsel for the petitioner in W.P.No.27875 of 2017 made a submission that their Hospital consists of separate Intensive Care Units for cancer patients and that the Hospital is maintained in good condition and there are patients who are undergoing treatment for Dengue.
23. The petitioner is directed to rectify the defects pointed out by the authorities and maintain the Hospital neat and tidy, as an unhealthy atmosphere will not only affect patients, but also the attendants, staff and other members of the Hospital. The respondents are directed to restore water supply to the petitioner/Hospital, taking into account the welfare of the in-patients.
24. Before parting with the case, this Court would like to list down the suggestions that are widely advised by the Authorities/ Government, regarding the prevention of the epidemic "Dengue" and eradicating mosquitoes and the same are enlisted as under:
(i) There is a variety of fish namely 'Minnows', which will eat the larvae of mosquitos and earnest measures should be adopted to nurture these kind of fishes;
(ii) The place where we live should be kept neat and tidy without giving any room for stagnation of water, more particularly, when the fact remains that Dengue virus mosquito will breed only in pure water;
(iii) Any water container, over head tank etc. should be covered;
(iv) Any rubber material need not be allowed to get the water stagnated in it;
(v) Coconut shells should be disposed of in an eco-friendly manner;
(vi) Flour grinding stones should be kept topsy-turvy;
(vii) Citizens should ensure that a hygienic atmosphere is created in and around their living place;
(viii) Storm water drain should not be encroached. If encroached, it would create water-logging on the streets, which gives rise to breeding of mosquitoes;
(ix) Throwing of garbage near the houses, more particularly, in the absence of neighbours, would render the area a place for mosquito breeding;
(x) Mere blaming the Government is not appreciable, though it is true that the Government machinery is also expected to be vigilant and effective, especially in rainy days;
(xi) The local bodies should ensure providing chlorinated water to the people in the locality to avoid contagious diseases;
(xii) Mosquito repellents, more particularly herbal repellents should be put to use to stay away from mosquitos.
25. It is made clear that the aforesaid suggestions are only illustrations and not exhaustive.
26. It is not enough to say that "everybody is human being" but everyone should prove that they are being humane. The Tamil lyrics quoted in the beginning of this judgment is not only applicable to theft of money or property, but also applicable to environmental violators/encroachers, as every citizen has the moral responsibility of keeping his surroundings clean.
No costs. Consequently, connected miscellaneous petitions are closed.
01.11.2017 Speaking order Index : Yes Internet: Yes Note to Registry:
Issue copy of this order on or before 13.11.2017.
sts/aeb To:
1) The Commissioner, Corporation of Salem, Salem District.
2) The District Collector, Salem District, Salem.
3) The Commissioner, Salem Municipal Corporation, Salem.
S.VAIDYANATHAN,J.
sts/aeb Common Order in W.P.No.27875 of 2017 & W.P.No.27817 of 2017 01.11.2017