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Judgment
Bakthavatsalam, J.—Writ Petition No. 4570 of 1993 is filed by Madras Hotels Associations represented by its Secretary and the prayer in
the writ petition is to the following effect :
..... to issue a writ of prohibition order or direction in the nature of a writ of prohibition prohibiting the respondents from ordering closure of the
eating house/restaurants/hotels run by the petitioners members by erroneously invoking the provisions of S. 113 of the Tamil Nadu Public Health
Act which applies only to cases of possibility of transmission of infectious diseases from persons employed in hotels and in no other situations.....
In all other writ petitions, cyclostyled orders of the third respondent in W. P. Nos.4548, 4568 and 4570 of 1993 is being questioned. The
impugned orders in these cases are dated 6-3-93 wherein the Health Officer, Corporation of Madras the third respondent has directed immediate
closure of eating establishments concerned, invoking the power under S. 113(2) of the Tamil Nadu Public Health Act, 1939. When the petitioners
came up to admission the counsel for the Corporation takes notice. By consent the writ petitions are taken up for hearing.
Since the issue raised in all these writ petitions is one and the same, it is enough to refer to the contentions and allegations raised in the writ
petition filed by the members of the petitioner Association in W. P. No. 4570 of 1993. It is alleged in the affidavit that on a surprise inspection on
the eating establishments run by the members of the petitioner association was carried out by the Director of Public Health and Health Officer,
Corpora- lion of Madras, Water Analytical Technician from King Institute, Guindy, Madras on 3-3-1993, collected samples of water from the
establishments of the petitioner association. It is alleged in the affidavit that while collecting the samples of water from the members of the petitioner
association, the procedure laid down under the Prevention of Food Adulteration Act, 1954 especially the procedure laid down under S. 11-B of
the Act, was not followed. It is alleged in the Affidavit that the respondents failed to follow the prescribed procedure in sending the water so
collected that the same has to be sent to public analyst only after following all the formalities and that it has not been followed in these cases. It is
also alleged in the affidavit that the members of the petitioner association were shocked and surprised to receive communications dated 6-3-1993,
which is impugned in these writ petitions in which the petitioner association was informed that it was found that the eating establishments run by the
petitioner association was in unhygienic and insanitary condition, that the analysis of drinking water of the eating establishments of the members of
the petitioner association by the Chief Water Analyst shows of poor quality and that all of which gives a reasonable suspicion to the possibility of
transmission of notified infectious disease from petitioner to the consumers. It is also stated in the affidavit that by the impugned cyclostyled orders,
certain eating establishments were sealed. It is alleged in the affidavit that the action of the Health Officer, Corporation of Madras, is ex facie,
arbitrary, illegal and liable to be quashed and that it is ultra vires the provisions of the Tamil Nadu Public Health Act and the Prevention of Food
Adulteration Act, 1954. It is also stated that it has been done in violation of the principles of natural justice. It is also alleged in the affidavit that the
impugned orders have been passed by the Health Officer, the third respondent herein by exercising powers under S. 113(2) of the Tamil Nadu
Public Health Act, 1939 and that on a perusal of the impugned order it is evident that the power cannot be traced, to the provisions of S. 113 of
the Act. It is also stated that in order to attract the provisions of the unhygienic should be in relation to the person employed in any hotel, viz. the
employees and that the impugned order is totally unrelated to the conditions prescribed under S. 113 of the Act. It is stated that the impugned
order has been passed on the ground that the water which was taken for analysis showed poor quality and gave a reasonable suspicion as to the
possibility of transmission of notified infectious disease. It is also alleged that this Section does not authorise the Health Officer, to direct closure of
the eating establishments, because in cases where an unwholesome food and unsound food are sold, then S. 112-A of the Act provides the power
to the Health Officer in regard to wholesome food and S. 108 of the Act prohibits sale of unsound food. It is also alleged in the affidavit that S.
113 of the Act will not attract and S. 113 of the Act would be attracted only in the event of there being reasonable suspicion as to the possibility of
transmission from any person who is employed. It is also alleged in the affidavit that the impugned order shows that there was not even prima facie
satisfaction or reasonable suspicion which could have occurred in the minds of the third respondent, and that the impugned order also shows that
all the employees and Associates working in the hotels run by the petitioners'' members were not examined medically. It is also stated that the
impugned order is violative of Arts. 114 and 19(1)(g) of the Constitution of India, and that it has greatly affected the very reputation of the
members of the petitioner association. It is also stated that the discretion exercised by the respondents directing closure of the eating establishments
is arbitrary and without jurisdiction.
In other writ petitions, almost similar allegations were made in the affidavits against the impugned orders which are cyclostyled orders.
I have heard Mr. R. Gandhi, the learned senior counsel appearing for the petitioner in W. P. No. 4453 of 1993, Mr. Mohan Parasaran, the
learned counsel appearing for the petitioners in W. P. Nos. 4548, 4568 and 4570 of 1993. Mr. Mohan Parasaran, the learned counsel contends
that the impugned order is as vague it could be, and it is a cyclostyled order. The learned counsel further contends that S. 113 of the Tamil Nadu
Public Health Act, 1939 will not attract to the facts of the cases on hand and that the Health Officer, has no power to pass such an order.
According to the learned counsel, in view of the impugned order, the petitioners in these cases are forced to close down their business and
incurred loss. The learned counsel refers me S. 112- A of the Act, where the power is vested with the Health Officer with regard to unwholesome
food and also of unsound food. According to the learned counsel, the impugned order has been passed under mis-conception of the Sections of
the Tamil Nadu Public Health Act and as such this order cannot stand scrutiny of this Court. The learned counsel also contends that the impugned
order, which is a cyclostyled order passed in all the cases, is in violation of the principles of natural justice and that the impugned order is highly
arbitrary and illegal, and has been passed without application of mind. It is also argued by the learned counsel that the impugned order offends Art.
14 of the Constitution of India. It is contended by the learned counsel, that the impugned order has to be set aside in all these writ petitions.
Mr. D. Murugesan, the learned counsel takes notice on behalf of the respondent Health Officer, Corporation of Madras. The learned counsel
for the Corporation contends that the power, which has been exercised by the Health Officer, Corporation of Madras can be traced on going
through Ss. 24, 112-A and 113 of the Tamil Nadu Public Health Act, 1939. The learned Counsel for the respondent Corporation contends that S.
113 of the Tamil Nadu Public Health Act, 1939 empowers the Health Officer to deal with carriers of disease handlong food. The learned counsel
for the Corporation contends that to safeguard the interests of the public from not taking food from carriers of disease, in the hotels and also from
preventing the contagious diseases from the carriers in hotels, such an action has been done by the Health Officer. According to the learned
counsel, a Committee has been constituted and it inspect various hotels and sufficient notices were given to the hoteliers on earlier occasions. The
learned counsel also contends that hoteliers were already informed to keep up the hotels in good sanitary condition and make use of good water.
The learned counsel also contends that in spite of such notices, it was found that the water is not fit for consumption and it is found of bad quality,
and as such the impugned order has been passed. The learned counsel mainly contends that as per Ss. 113(2) and 112-A of the Act, the Health
Officer has power to pass such an order, which is impugned herein. After arguing in length, the learned counsel fairly stated that the impugned
order in all these case can be set aside giving liberty to the Corporation to take any other action, against the petitioners.
I have considered the arguments of Mr. R. Gandhi, the learned senior counsel appearing for the petitioner in W. P. No. 4453 of 1993 and of
Mr. Mohan Parasaran, the learned counsel appearing for the petitioners in W. P. No. 4548, 4568 and 4570 of 1993 and also of Mr. D.
Murugesan, the learned counsel who appears on notice. Sub-section (2) of S. 113 of the Tamil Nadu Public Health Act, 1939 reads as follows:
When a reasonable suspicion arises as to the possibility of transmission of infection from any person who is employed in any of the places of
employment specified below, namely, an eating, drinking or catering establishment, hotel, tea-shop, coffee-house, cafe, restaurant, refreshment
room, mobile canteen, itinerant stall or a place or vehicle where food is sold or prepared or stored for sale or to which the public are admitted for
the consumption of any food, the Health Officer may require any or all of the following measures to be taken, namely:--
(i) the immediate exclusion of the employee from such place of employment;
(ii) the immediate closure of the business in such place of employment until no further danger or outbreak of disease exists in the opinion of the
Health Officer; and
(iii) medical examination of the employee and of his associates....."" Section 112-A of the Tamil Nadu Public Health"" Act, 1939 reads as follows:
Power of the Health Officer in regard to unwholesome food:-- (1) If any article intended for food appears to the Health Officer or to a person duly
authorised by him to be unfit for human consumption or is unwholesome or the utensil or vessel used in manufacturing, preparing or keeping such
article appears to be of such kind or in such state as to render the articles unwholesome or noxious, he may seize or take away or secure such
article or utensil or vessel in order that the same may be dealt with as hereinafter provided.
(2) No person shall remove or in any way interfere with an article, utensil or vessel seized, taken away or secured under subsection (1).
(3) Any article of food so seized, taken away or secured may with the consent of owner or person in whose possession it was found, be forthwith
destroyed in such manner as to prevent its being used for human food or exposed for sale and if the article is perishable, without such consent.
(4) Any expenses incurred in destroying any article of food under sub-sec. (3) shall be paid by the owner or person in whose possession it was at
the time when it was seized, taken away or secured.
(5) Articles of food seized, taken away or secured under sub-section (1) and not destroyed under sub-sec. (3) and utensils or vessels seized,
taken away or secured under sub-sec. (1) shall, as soon as possible be produced before a Magistrate.
(6) Whether or not any complaint is laid before a Magistrate of any offence under the Indian Penal Code (Central Act XLV of 1860) or under this
Act, if it appears to the Magistrate on taking such evidence as he thinks necessary that any such article is unwholesome or noxious or any such
utensil or vessel is of such kind or in such state as is described in sub-sec. (1). he may order the same.-
(a) to be forfeited to the local authority; and
(b) to be destroyed at the charge of the owner or any person in whose possession it was at the time when it was seized, taken away or secured in
such manner as to prevent the same being again exposed or hawked about for sale or used for human food or for the manufacture or preparation
of, or for keeping, any such articles as aforesaid.....
It is to be seen that in Chapter III of the Tamil Nadu Public Health Act, 1939 (hereinafter referred to as the ""Act"") ""water supply"" has been dealt
with. Sections 17 to 26 of the Act speaks of the same. Section 24 of the Act empowers the Health Officer to take action with regard to insanitary
sources of water supply. As such in my view, S. 24 of the Act will not apply to the facts of this Case. If sub-sec. (1) of S. 113 of the Act is looked
at, it empowers the Health Officer to examine any person engaged in selling, or in manufacturing or preparing for sale, or in any manner whatsoever
handling any article of food intended for sale. Sub-section (2) of S. 113 of the Act provides that when a reasonable suspicion arises as to the
possibility of transmission of infection from any person who is employed in any of the places, including hotel etc. The Health Officer may require
any or all of the measures, stated therein, to be taken. The measures to be taken by the Health Officer are set out in the said Sections are namely,
(i) the immediate exclusion of the employee from such place of employment (ii) the immediate closure of the business in such place of employment
until no further danger or outbreak of disease exists in the opinion of the Health Officer; and (iii) Medical Examination of the employee and of his
associates. As such, a careful reading of S. 113 of Act clearly shows that the Health Officer has no power to order the immediate closure of the
hotels on the facts of the cases on hand. The reasons given in all these cases are almost in a cyclostyled form and if the order is read, it is very clear
that the Health Officer has not at all applied his mind while passing the said orders in each case.
The next Section which empowers the Health Officer is S. 112-A of the Act. That too the power is only to seize the articles and then to destroy
the food. That is all. In my view, that Section also does not empower the Health Officer to pass an order like the one impugned herein. As such, I
am of the view that the contentions of Mr. R. Gandhi, the learned senior counsel and of Mr. Mohan Parasaran, the learned counsel appearing for
other writ petitioners have got to be accepted that the Health Officer, Corporation of Madras has no power to pass such an order, like the one
impugned herein, in view of the provisions of Ss. 113, 112-A and 24 of the Act, as they stand today.
That apart, the impugned orders produced before me, are cyclostyled orders and they themselves, ex facie, show the non-application of mind
on the part of the Health Officer while passing the impugned orders. The Health Officer may be anxious that the drinking water should be good in
all the hotels and the public should not consume water in insanitary condition and also they should not get any disease from persons who have
infectious diseases. But the fact remains that the Health Officer must have some power to order immediate closure of the hotels, under the Act.
The view I take that the Health Officer, has no power to order immediate closure of business as it stands today, the impugned orders are set
aside.
In so far as W. P. No. 4570 of 1993 is concerned, a writ of prohibition has been asked for, I do not think that such a prayer can be granted,
as prayed for. It is settled law that this Court can mould the prayer to suit the occasions and as such, a writ of mandamus is issued to the
respondents in this case, not to enforce the impugned order dated 6-3-1993 passed under S. 113 of the Act, against the members of the petitioner
association, since S. 113 will only apply when a reasonable suspicion arises as to the possibility of transmission of infection from any person who is
employed in any of the places of employment, i.e. in eating establishments. To that limited extent, the Writ Petition, in W. P. No. 4570 of 1993
stands allowed.
In so far as W. P. Nos. 4453, 4548, 4568 of 1993 are concerned, the impugned orders are set aside and the writ petitions are allowed.
However, it is open to the Health Officer of the Corporation of Madras to take appropriate action in law against the petitioners if he is so
advised. I am sure that the authorities concerned are aware of the provisions of the Tamil Nadu Public Health Act, 1939, Madras City Municipal
Corporation Act and also the Prevention of Food Adulteration Act, 1954, which empower them to take any action according to law, against the
petitioners. It is made clear that those writ petitions are allowed only on the question of law whether the Health Officer has power to order
immediate closure under S. 113 of the Act. However, there will be no order as to costs.
Petitions allowed.