IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.10.2009 CORAM: THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN W.P.Nos.10911 and 13757 of 2009 & M.P.Nos.1 and 2 in W.P.No.10911 of 2009 & M.P.No.1 of 2009 in W.P.No.13757 of 2009 P.Someshkandar ..Petitioner in W.P.No.10911 of 2009 Vijayan ..Petitioner in W.P.No.13757 of 2009 vs. 1. The District Collector, O/o The District Collector, Coimbatore. 2. The Asst. Director, Town Panchayat, Coimbatore District. 3. The Executive Officer, Chinnavedampatti Town Panchayat, Chinnavedampatti, Coimbatore. 4. Vijayan ..Respondents in W.P.No.10911 of 2009 1. The Executive Officer, Chinnavedampatti Town Panchayat, Chinnavedampatti, Coimbatore. 2. The District Collector/ The Inspector of Panchayat, Coimbatore District, Coimbatore-18. ..Respondents in W.P.No.13757 of 2009 https://hcservices.ecourts.gov.in/hcservices/ Writ Petition No.10911 of 2009 filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Mandamus, to direct the respondents 1 to 3 herein to act upon the petitioner's complaints, dated 5.1.2009, 14.4.2009 and 4.5.2009, thereby, removing the pig farm run by the fourth respondent at Vivekananda Road, Mekkalathottam, Subbanaicken Pudur, Chinnavedampatti, Coimbatore-6. Writ Petition No.13757 of 2009 filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorari, to call for the records pertaining to the order dated 17.7.2009 made in Na.Ka.No.7 of 2009 on the file of the first respondent herein and quash the same. For petitioner in W.P.No.10911 of 2009 : Mr.K.M.Vijayan, Senior Counsel for M/s.Fast Track Law Associates For petitioner in W.P.No.13757 of 2009 and for fourth respondent in W.P.No.10911 of 2009 : Mr.N.Manokaran For respondents 1 to 3 in W.P.No.10911 of 2009 and for respondents in W.P.No.13757 of 2009 : Mr.D.Sreenivasan, Addl.G.P. COMMON ORDER S.J.MUKHOPADHAYA,J As both the Writ Petitions relate to common pig farm run by Mr.Vijayan, the petitioner in W.P.No.13757 of 2009 and the fourth respondent in W.P.No.10911 of 2009, they were heard together and disposed of by this common order. 2. W.P.No.10911 of 2009 is filed by Someshkandar (hereinafter referred to as 'the petitioner') for a direction on the first and second respondents to decide his complaint, dated 5.1.2009 and reminders dated 14.4.2009 and 4.5.2009 filed thereto, thereby to remove the pig farm run by Mr.Vijayan (hereinafter referred to as 'the fourth respondent') in Vivekananda Road, Mekkalathottam, Subbanaicken Pudur, Coimbatore. 3. During the pendency of W.P.No.10911 of 2009, the Executive Officer of Chinnavedampatti Town Panchayat, Chinnavedampatti, Coimbatore, by notice dated 17.7.2009, having asked the fourth respondent-Vijayan to remove the pig farm, the other Writ Petition in W.P.No.13757 of 2009 has been preferred by the said fourth respondent-Vijayan. https://hcservices.ecourts.gov.in/hcservices/ 4. According to the petitioner-Someshkandar, as the pig farm is causing health hazard to the general public, the Executive Officer of Chinnavedampatti Town Panchayat, Chinnavedampatti, Coimbatore (hereinafter referred to as 'the Town Panchayat') rightly issued the impugned notice dated 17.7.2009, directing the fourth respondent- Vijayan to remove the pig farm. Further, the fourth respondent- Vijayan cannot run the pig farm without licence obtained from the Town Panchayat. 5. On the other hand, the stand taken by the fourth respondent-Vijayan is that no health hazard is caused to the general public due to the pig farm in question. All the time, reports were submitted by the concerned Doctors of the Health Department, giving chit in favour of the maintenance of the pigs in the farm. The further stand taken by the counsel for the fourth respondent-Vijayan is that the pig farm is being run since 1982 and the petitioner- Someshkandar, who is a builder, is constructing the multi-storey buildings nearby the pig farm and now asking to remove the pig farm from the area in question, which should not be permitted by the Court. 6. Learned counsel appearing for the parties relied on one or other provisions of law and facts in support of their claim. We have heard the learned counsel appearing for the parties and noticed the relevant facts and the provisions of law. 7. It appears that the fourth respondent-Vijayan is a certificate holder of the piggery unit issued by the Admiral Livestock Farm, Pollachi (Coimbatore District). The Government of Tamil Nadu, Department of Industries and Commerce, has also issued a certificate under Prime Minister's Rozgar Yojna Programme. He obtained loan under the Prime Minister Rozgar Yojna Programme from the Indian Overseas Bank and started the pig farm in the year 1982 on his own land. Eversince the commencement of the piggery unit, he maintained the unit without any health hazard. It appears that the Officers, such as Deputy Director of Health Services, Coimbatore also visited the fourth respondent-Vijayan's piggery unit on 26.6.1996 and issued a letter that the pig farm is very clean without any health hazard and the fourth respondent-Vijayan is maintaining the pigs as per law. It is also claimed by the fourth respondent-Vijayan that every three months, he is giving medicines to the pigs and periodically, those pigs are checked-up by the Veterinary Doctors, who have also given Certificates. The pig farm supplies the pigs to the Meat Product of India Limited, Kerala, a Government of Kerala undertaking. Even the All India Radio invited the fourth respondent for interview, by letter dated 4.10.1993. The allegation of the fourth respondent is that some persons like the petitioner, have purchased the properties nearby the piggery unit recently and they are forming lay-outs and they are sending petitions to different Departments to remove the piggery unit on the ground of health https://hcservices.ecourts.gov.in/hcservices/ hazard, though there is no such health hazard caused to any of the individuals. 8. The stand taken by the other respondents is that the Health Inspector, Government Primary Health Centre, Vellakinaru, Coimbatore, has submitted a report, vide letter dated 3.7.2009 to the Executive Officer of the Town Panchayat, stating that in view of the 'swine flu' which is causing in different States, the matter was investigated and it was found that foul smell emanates from the pig farm and the transmission of infectious disease may arise. It is in this background, the impugned notice has been issued on 17.7.2009 for removal of the pig farm from the locality in question. 9. While according to the petitioner-Someshkandar, licence is required to run a pig farm, per contra, the stand of the fourth respondent-Vijayan is that the pig farm having been opened in 1982, no licence is required to be obtained. 10. To decide the aforesaid issue relating to obtaining of licence to run a pig farm and the power of the authority to take steps with regard to the cattle farms like the pig farm, etc., if it causes health hazard, it is necessary to notice the relevant provisions of law, as discussed hereunder. 11. The Tamil Nadu District Municipalities Act, 1920, was originally applicable to the Municipalities. After the constitution of the Town Panchayats, Chapter I-B was inserted by the Tamil Nadu District Municipalities (Amendment) Act, 2006 (Tamil Nadu Act 18 of 2006), and under Section 3-AA, the State Government has been empowered to issue Notification, directing that any of the provisions of the Act and the Rules made under the Act or of any other enactment for the time being in force elsewhere in the State of Tamil Nadu, but not in the Panchayat Town, shall apply to that Town Panchayat to such extent and subject to such modification, additions and restrictions, as may be specified in the Notification. It appears that by Chapter I-A, the provisions relating to the Third Grade Municipalities were inserted by the Tamil Nadu District Municipalities (Amendment) Act, 1994 (Tamil Nadu Act 25 of 1994) and under Section 3-M of the said Chapter, a provision was made to apply the Act to the Third Grade Municipalities. In exercise of the powers conferred by Section 3-M, it further appears that the provisions of the Act, 1920, were extended to all the Town Panchayats in the State by G.O.Ms.No.75, M.A. & W.S. Department, dated 31.3.1995. However, it has not been made clear as to how the said G.O. can be construed to be an order issued under Section 3-AA of the Act, which was inserted by Chapter 1-B and thereby, it can be given effect to the Town Panchayats. https://hcservices.ecourts.gov.in/hcservices/ Chapter XII of Act, 1920, relates to licences and fees. Under section 245(1), the owner or occupier of any stable, veterinary, infirmary, stand, shed, yard, or other place in which quadrupeds are kept or taken in for purposes of profit, is required to apply to the Executive Authority for licence for opening of such place or the commencement of the year for which the licence is sought to be renewed. Under Section 245(2), the Executive Authority may, by, an order, and under such restrictions or regulations, grant or refuse to grant such licence. Under Section 245(3), no person shall, without or otherwise than in conformity with a licence, use any place for such a purpose. Chapter XVI of Act, 1920, relates to procedure and miscellaneous; regarding the licences and permissions, under Section 321(9-A), every application for licence or permission or for registration of the renewal of a licence or permission or registration, is required to be made not less than 30 and not more than 90 days before the commencement of the year or of such less period as is mentioned in the application. Under Section 338, the consequences of failure to obtain licences etc., or of breach of the same, have been prescribed and under Clause (a) to Section 338, in case of such breach, the Executive Authority may by notice, require a person so doing such act to alter, remove or as far as practicable, restore to its original state, the whole or any part of any property, movable or immovable, public or private, affected thereby, within a time to be specified in the notice. Under Clause (b) of Section 338, if no penalty has been specifically provided under the Act for so doing such act, the person so doing it shall be liable on conviction before a Magistrate to pay a fine not exceeding Rs.50/- for every such offence. 12. Referring to the aforesaid provisions, learned Senior counsel appearing for the petitioner-Someshkandar submitted that without the licence, the fourth respondent-Vijayan cannot run the pig farm. He referred to G.O.Ms.No.75, M.A. & W.S. Department, dated 31.3.1995 to show that the Act, 1920 has been made applicable for the Town Panchayats. From the aforesaid G.O., it appears that the same was issued in exercise of the powers conferred by Section 3-M of the Act, 1920, in the year 1995, whereas by Chapter I-B, the Town Panchayats have been inserted and have come into effect in 2006 and only under Section 3-AA, the Act, 1920 can be given effect to the Town Panchayats, thereby, it has not been made clear by either of the respondents as to how the said G.O., dated 31.3.1995 can be referred to for giving effect to the Town Panchayats, which were https://hcservices.ecourts.gov.in/hcservices/ inserted vide Chapter I-B, vide Tamil Nadu Act 18 of 2006 by the Tamil Nadu District Municipalities (Amendment) Act, 2006. 13. It will be evident from the impugned notice dated 17.7.2009 that the Executive Officer of the Town Panchayat has ordered to remove the pig farm not on the ground that the fourth respondent-Vijayan does not have any licence under the Tamil Nadu District Municipalities Act, but on the ground of safeguard of health of the general public and by the powers conferred under Section 61 of Chapter-7 of the Public Health Act, 1939. Therefore, the petitioner- Someshkandar cannot take a plea that because no licence has been obtained, the fourth respondent-Vijayan has been ordered to remove the pig farm. 14. The Tamil Nadu Public Health Act, 1939 was enacted to make provision for advancing the public health of the State of Tamil Nadu. Chapter VI deals with abatement of nuisance. Under Section 41 therein, certain things are prescribed to be nuisance. Under Section 41(3), any animal kept in such a place or manner, as to be prejudicial to health or a nuisance, has been prescribed to be a 'nuisance'. The Health Officer has been empowered to abate nuisance under Section 44. Whether upon information given under Section 43 or otherwise, of the existence of a nuisance, the Health Officer, by notice, require a 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. The local authority has also been empowered to abate nuisance under Section 45 and the person on whom a notice to abate nuisance has been served under Section 44, makes default in complying with any of its requirement within the time specified therein, or if the nuisance although abated within such time, is likely to recur on the same premises and for that, the local authority may arrange for the execution of any works necessary to abate the nuisance or to prevent its recurrence, as the case may be and may recover the cost from such person as if it were a tax due to the local authority. Thus, it will be evident that the Health Officer and the local authority are empowered to abate any nuisance including the nuisance if committed due to the animals kept in a place or manner as to be prejudicial to health of the public in general. Under the said provisions, it is always open to the Town Panchayat to take action against any person. https://hcservices.ecourts.gov.in/hcservices/ Under Section 61, provision has been made for prevention of infectious disease transmissible from animals. If in any local area, any infectious disease transmissible to man breaks out or is in the opinion of the Health Officer likely to break out, amongst cattle, or other animals, it shall be the duty of the Health Officer to recommend to the local authority the adoption of such measures as he may deem necessary for suppressing or mitigating the disease or for preventing the outbreak or threatened outbreak thereof; and the local authority shall consider such recommendations and take such action thereon as to it may seem suitable. It is under this provisions of the Act (Section 61), the impugned notice has been issued on 17.7.2009, directing the fourth respondent to remove the pig farm because of the health hazard. 15. In the present case, it appears that the petitioner- Someshkandar and the general public of the area, along with him, made application to the District Collector, Coimbatore on 5.1.2009, to remove the pig farm in question, spreading the diseases in the area. It was alleged that more than 100 pigs are being grown and due to the pig waste, the food for the pig, the wastes due to the butchering of the pig flesh, a foul smell always persist in the area and people are not able to eat their food. The matter was not taken up for a number of months and therefore, the petitioner-Someshkandar moved before this Court in the Public Interest. 16. After the institution of the complaint, the matter was taken up by the Office of the Regional Joint Director of the Animal Husbandry Department, Coimbatore and the Deputy Director, Office of Health Services, Coimbatore. Thereafter, the Health Inspector, Government Primary Health Centre, Vellakinaru, Coimbatore District, giving reference to "Swine Flu" and steps of preventive measures therein, by his letter dated 3.7.2009, referring to Sections 41, 43 and 45 of the General Health Act, 1939, informed the Executive Officer of Chinnavedampatti Town Panchayat, Coimbatore, that the fourth respondent-Vijayan is rearing 50 pigs and food waste was given as feed to them, because of which foul smell emanates and there is a chance of transmission of infectious diseases. For proper appreciation of the matter, the English translation of the letter dated 3.7.2009 is quoted hereunder: "From K.Vadivel, Health Inspector, Government Primary Health Center, Vellakinaru. To The Executive Officer, Chinnavedampatti Town Panchayat, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ Sir, Sub: Public Health--Swine Flu--Steps for preventive measures-Reg. Ref: 1) Na.Ka.No.4991/Aa2/09, dated 19.05.09 of the Office of the Regional Joint Director, Animal Husbandry Department, Coimbatore. 2) Na.Ka.No.1222/A8/09, dated 16.6.09 of the Deputy Director, Office of Health Services, Coimbatore. ----- From the above references, within the limits of the Primary Health Center, when a census was taken to check out for the presence and available number of pigs, came to know that in the following address a person is running a pig farm: R.Vijayan, S/o C.V.Raju, 10/A, Vivekanandar Road, Subbanaickenpudur, Chinnavedampatti, Coimbatore-641 006. He is rearing 50 pigs. Food wastes were given as feed to them, because of which foul smell emanates. Further transmission of infectious diseases may arise. Hence by below mentioned provisions of General Health Act, 1939, I request to remove the pigs to some other place. In General Health Act, 1939--Chapter 6, Sections 41, 43, 45, Animal kept under room custody or in a place causing grievances, hazards to the health can be evicted under Section 45. Moreover under Section 61 of the General Health Act, 1939, the local administrative body can execute the eviction of pigs towards prevention of the health hazards relating to that area. Hence it is recommended to evict the pigs found by using the above said Act. Sd/- K.Vadivel, Health Inspector, Government Primary Health Center, Vellakinar, Coimbatore-641 029. Place: Vellakinar Date : 03.07.2009" https://hcservices.ecourts.gov.in/hcservices/ 17. In view of the aforesaid letter dated 3.7.2009, the impugned notice dated 17.7.2009 was issued by the Executive Officer of the Town Panchayat, the English translation of which is quoted hereunder: "PROCEEDINGS OF THE EXECUTIVE OFFICER, CHINNAVEDAMPATTI TOWN PANCHAYAT IN THE PRESENCE OF Mr.P.Jagadeesan Na.Ka.No.7/2009 Date:17.07.2009 NOTICE Sub: Public Grievance Redressal Day Petition--Chinnavedampatti Town Panchayat--Pig Farm in the residential area--Removal and auction--Reg. Ref: 1. Letter of this Office Na.Ka.No.7/2009, dated 06.07.2009. 2. Opinion of the Government Advocate, dated 17.07.2009. ------ Under Reference 1, order has been issued directing you to remove the piggery farm causing health hazards to the general public within 7 days. But till date the piggery farm was not removed, because of which there is possibility of transmission of diseases to the general public. Hence notice is hereby given to you to remove the pig farm within 24 hours and report the same to this Office. Otherwise, in order to safeguard the health of the general public and by the powers granted under the Public Health Act, 1939, Chapter 7, Section 61, the pigs would be removed and auctioned on the same date and place. Sd/- Executive Officer, Chinnavedampatti Town Panchayat, Chinnavedampatti. To Mrs.V.Vimala and Mr.R.Vijayan, 10/5, Nanjukutti Layout, Subbanaickenpudur, Chinnavedampatti. https://hcservices.ecourts.gov.in/hcservices/ Copy: 1. Submitted to the District Collector, Coimbatore. 2. Submitted for information to the Assistant Director, Town Panchayats, Coimbatore. 3. The Inspector of Police, B9 Police Station, Saravanampatti Coimbatore." 18. From the subject matter of the letter dated 3.7.2009, it will be evident that the Health Officer kept in his mind the public health in view of the Swine Flu and the steps for preventive measures. Though such a reference of Swine Flu is given in the subject matter, only on the ground that the food waste is given to feed 50 pigs and foul smell emanates, it was opined therein that further transmission of infectious diseases may arise. The said letter was accepted as gospel truth by the Executive Officer of the Town Panchayat and he issued the impugned show cause notice dated 17.7.2009. 19. Section 3(14) of the Tamil Nadu Public Health Act, 1939, defines the 'Health Officer', which means 'the Health Officer employed by the local authority concerned and if there is no such Officer, the Health Officer of the District. It has not been made clear whether the Town Panchayat in question has appointed any Health Officer, nor it has been made clear as to whether the Health Inspector in question of the Government Primary Health Centre, Vellaikinaru, Coimbatore District, is the Health Officer of the District of Coimbatore. Therefore, there is a doubt with regard to the jurisdiction of the Health Inspector to give any finding under Section 43 of the Tamil Nadu Public Health Act, 1939. 20. Under Section 43 of the Tamil Nadu Public Health Act, 1939, information regarding the nuisance is to be given by any person to the Health Officer or other Officer of the Public Health Establishment of the local authority. In the present case, there is nothing on record to suggest that the petitioner-Someshkandar has given any information to the Health Officer of the Town Panchayat or to the Health Officer of the District or to any other Officer of the Public Health Establishment of the Town Panchayat. A representation dated 5.1.2009 was filed before the District Collector, Coimbatore. 21. Under Section 44 of the Tamil Nadu Public Health Act, 1939, even on information given under Section 43 or otherwise of the existence of a nuisance, the Health Officer has power to abate the nuisance, but for exercising such power, a notice is required to be given to the person by whose act or default or sufferance, the nuisance arises or continues or if that person cannot be found, the https://hcservices.ecourts.gov.in/hcservices/ owner or occupier of the premises on which the nuisance arises or continues. 22. There is nothing on record to suggest, including the letter dated 3.7.2009 that the Health Officer has given any notice to the fourth respondent-Vijayan, alleging that because of any act of him or default, sufferance or nuisance arose or continues in the pig farm. Similarly, there is no such document on record to show that the local authority has given any notice to the fourth respondent-Vijayan under Section 45 of the Tamil Nadu Public Health Act, 1939, alleging that the notice to abate nuisance has been served upon him under Section 44 and he is a defaulter in complying with any of its requirements within the time specified therein. Without following the procedures, the impugned letter dated 3.7.2009 was issued, followed by the impugned notice dated 17.7.2009 issued by the Executive Officer of the Town Panchayat. 23. Now, coming to what is the 'nuisance' committed by the piggery unit and keeping the animals in such piggery farm is prejudicial to the health of persons, have not been explained. Apart from the fact that it has not been made clear as to whether the Health Inspector is the "Health Officer" for the purposes of Section 3(14) of the Tamil Nadu Public Health Act, 1939, there is nothing on record to suggest that he has applied his mind to find out the 'nuisance' committed by the pig farm or the health hazard which may cause to the public in general. It has already been pointed out that only a reference of "Swine Flu" is given in the subject matter of the letter dated 3.7.2009, but no steps for preventive measures have been shown therein. 24. "Swine Flu" is a disease of recent origin, a communicable disease, transmitted from person to person. It has been declared as an "endemic" in many of the countries by the World Health Organisation (WHO) and also in the States in India. But no general guidelines or instructions have been brought to the notice of this Court purported to have been issued by the Central Government or State Government or by the District authorities with regard to the preventive measures to be taken from spreading endemics like Swine Flu, Bird Flu, Mad Cow Disease, etc., from the animals like the pigs in the pig farm, cattle farm, poultry, etc. Swine Flu does not all the time mean that the infection is generated from Swine. The infection can also be transmitted from person to person. 25. Swine influenza virus is common throughout pig populations worldwide. Transmission of the virus from pigs to humans is not common and does not always lead to human influenza, often resulting only in the production of antibodies in the blood. If transmission does cause human influenza, it is called zoonotic swine flu. People with regular exposure to pigs are