H.K. Dastur vs W.S. Thirugnanasambandan, Sanitary Inspector, Division Nos. 93 and 94, Corporation of Madras, Madras 3

Natarajan, J.—The Petitioner, who is being prosecuted by the Sanitary Inspector, Division Nos. 93 and 94, Corporation of Madras, for

contravention of Bye-law Nos. 304 and 349 of the Madras City Municipal Corporation Act seeks a quashing of the proceedings against him on

the ground that the prosecution is not in accordance with law.

The Petitioner is the Managing Trustee of the Phil and Mary and Clubwalla Jadav Trust founded by late Mrs. Clubwalla Jadev under a

registered Trust Deed, dated 14th December, 1974. As per the Trust Deed, the Petitioner is to manage the Jambazaar Market at Triplicane and

distribute the income from the market to various social, religious and educational institutions.

The market is in the occupation of about 500 vendors who sell vegetables meat, etc., for the consumption of the public. The Sanitary Inspector

has filed this complaint against the Petitioner for contravention of the conditions of the licence issued for running the market. The contraventions

complained of are:

Walls are not lime washed and are not painted; 2. Drains and latrines are kept dirty and not re modelled and not washed with phenyls; 3.

Chicken slaughtering is done on the entrance of the lane; 4, Gangway shops are found; 5. Fish Stalls are kept in very bad condition; 6. Broken

Flooring is not cemented; 7, Haized dustbin with proper lid is not constructed.

The Petitioner''s contention is that he is unable to plaster the walls or even whitewash the premises as the occupants refuse to vacate the

premises even for a few days for the works being done. He had approached the police, the Public Health Authorities and the Corporation Staff to

render help in carrying out the repairs, etc., but all of them have pleaded their inability to help the Petitioner. When the Petitioner took steps to have

the occupants removed from the market for complying with the conditions of the licence, the vendors filed a suit O.S. No. 2381 of 1980 on the file

of the City Civil Court, Madras, and obtained an injunction against him in I.A. No. 7020 1980 and effectively restrained him from interfering in any

manner with their possession of the stalls. The Petitioner would then say that the Sanitary Inspector must have part taken action against the actual

offenders, viz.. the occupants of the market stalls, before filing prosecution against him. Lastly, the Petitioner has stated that he is always willing to

spend any reasonable amount to carry out the works, provided the authorities give him assistance to remove the vendors at least for a few days.

On these grounds, the Petitioner seeks quashing of the proceedings.

The learned Counsel for the Corporation opposes the prayer of the Petitioner for quashing the proceedings and contends that the Petitioner is a

licensee and therefore he is bound by the terms of the licence. Moreover, the counsel would say that the Petitioner is receiving rent or licence fees

in exercise of his. rights as the owner of the market, and in consequence thereof, he is also bound to keep the market neat and clean and if he fails

to do so he must face the consequences of prosecution.

It is no doubt true that the Petitioner, as Managing Trustee owning the market, has been issued a licence and the licence stipulated several

conditions. Under normal circumstances, the Petitioner can certainly be prosecuted for breach of the conditions of licence. But in the present case

the circumstances are peculiar and the situation is an abnormal one. Though the Trust owns the market, it does not occupy or actually run shops or

stalls, in the market. The stalls are run by the licensees of the Trust, who claim more or less permanent rights over the stalls. They are not willing to

vacate the stalls even for a few days for repairs being carried out and white washing the buildings. When the Petitioner attempted to remove them

for a short time in order to effect repairs to the building, the stall holders had filed a suit and obtained an order of injunction against the Petitioner.

In such circumstances, the Petitioner, though he represents the Trust which is the owner of the market, is in a helpless position. He has not

therefore voluntarily or wantonly contravened the conditions of the licence. In fact, he is prepared to carry out the works, if he is allowed to do so,

and if the corporation and police authorities will render help to him to remove the stallholders and make the premises available for the repair works

being carried out. These are days when tenants refuse to vacate the premises, even after the corporation or municipal authorities certify that the

building is in a dangerous state and is not fit for occupation and that the owner of the building should pull down the building. This position has to be

taken note of when the owners of buildings are prosecuted by the civil authorities for contravention of the provisions of the Municipalities Act, or

the conditions of any licence issued, to them. In fact, even the corporation authorities themselves cannot carry out the works departmentally in view

of the hostile attitude taken by the occupants of buildings, be they tenants, or licencees. Such being the case, it would be extremely unjust to launch

a prosecution against the owners of the building.

In this connection, it will be apposite to refer to Section 44 of the Tamil Nadu Health Act, 1939, which reads as under:

If the Health Officer is satisfied, whether upon information given u/s 43 or otherwise, of the existence of a nuisance, he may, by notice require the

person by whose act, default or sufferance the nuisance arises or continues, or if that person cannot be found, the owner or occupier of the

premises on which the nuisance arises or continues, to abate the nuisance and to execute such works and take such steps as may be necessary for

that purpose:

Provided that:

(a) where the nuisance arises from any defect of a Structural character, the notice shall be served on the owner of the premises; and

(b) where the person causing the nuisance cannot be found and it is clear that the nuisance does not arise or continue by the act, the defaulter

sufferance of owner or the occupier of the premises, the Health Officer may himself forthwith do what he considers necessary to abate nuisance

and to, prevent a recurrence thereof.

It may be seen from the Section that notice has to be sent to the person by whose act the default or nuisance is actually committed, and only if that

person cannot be found, the owner or occupier of the premises, wherein the nuisance arises or continues, to abate the nuisance or face the

consequences. Sub-clause (b) of the proviso further lays down that the Health Officer himself may do what he considers necessary to abate the

nuisance. The provision of Section 14 of the said Act could well be held to be applicable to the facts of the instant case also.

The Sanitary Inspector can call upon the concerned occupiers to rectify the defects found and if they fail to do so, the local authority itself may

arrange to carry out the work necessary to abate the nuisance. In such circumstances, the prosecution of the Petitioner for non-performance of

certain acts which the Petitioner is not able to do as a free Agent, is not proper and the lapses complained of cannot render the Petitioner liable for

prosecution.

The prosecution, in such circumstances, will clearly amount to an unjustifiable resort to the process of Court. Therefore, the petition has to be

allowed and the proceedings against the Petitioner in the case mentioned above will stand quashed.