Prayer : Writ Petition is filed under Article 226 of the Constitution of India, praying for a Writ of Certiorari, to call for the records on the file of the respondent in proceedings Nil, dated 11.06.2010 and subsequent notion in proceedings Na.Ka.2297/A2/2010, dated 29.07.2010 and quash the same, as illegal, incompetent and without jurisdiction.
O R D E R
1. Challenge in this writ petition, is to the competence of a Block Medical Officer, who exercised the power under the Tamil Nadu Public Health Act, 1939, and other provisions of the Act, and closed down a Hospital, named "Get Well", Tirukoilur. The Hospital, where treatment was given, began unwell on 11.06.2010, when it was found difficult in meeting out certain defects, alleged to be violations and consequently, sealed. Another proceeding impugned in this writ petition is to the order, rejecting the request of the petitioner to open the hospital.
2. According to the petitioner, he has completed bachelor of Homeopathy Medicine and Surgery from the Tamil Nadu Dr.M.G.R.Medical University, in April' 1998. He has enrolled with the Tamil Nadu Homeopathy Medical Council, a body created under the Homeopathy Central Council Act, 1973. He has also completed his Diploma in Pharmacy and registered with the Tamil Nadu Pharmacy council, a body constituted under the Pharmacy Act, 1948. He is a qualified Doctor, practicing in Indian Medicine and a registered pharmacist. He has been running a Hospital, in the name and style of "Getwell Hospital". Along with him, there were other qualified medical practitioners in the hospital. The Hospital has earned good reputation among the public.
3. That on 11.06.2010, the Block Medical Officer, Primary Health Centre, G.Ariyur, Tirukoilur Taluk, Villupuram District, respondent herein, sealed the premises, alleging violation of Medical Council Act. According to the petitioner, it appears to have been made on the basis of a complaint, which arose out of the death of a person, who had not even taken any treatment from him. According to him, a lady called Bagiyammal, aged about 60 years, in a serious condition, was brought from the bus stand, opposite to his hospital, with acute breathing problems. As she required specialized attention in a highly advanced institution, he advised her to be taken to some other hospital. The petitioner asked the ambulance driver to take the said Bagiyammal to Jawaharlal Nehru Institute of Medical Sciences and research, JIPMER, Pondicherry. It is the case of the petitioner that while taking her from Tirukoilur to Pondicherry, she expired. Thereafter, her body was taken to porikkal village, Tiruvannamalai District. Her relatives alleged as if she died due to his failure and therefore, seemed to have lodged a complaint. On that basis, the respondent has sealed the premises. The petitioner has been enlarged on anticipatory bail by the Criminal Court.
4. The petitioner has further submitted that the averments made in the counter affidavit of the respondent depicts the closed mind of the respondent, towards practitioners of Indian Medicine. According to the petitioner, along with him, there were other qualified medical practitioners, working in the Hospital, which includes, Dr.G.Santhosh Kumar, who has been awarded a degree by the Tamil Nadu Dr.M.G.R. Medical University, in February 2008. The petitioner's wife, Mrs.R.Anusha, a qualified nurse, who had received her nursing training from Lakshmibala Paramedical and Nursing Institute, Tiruvannamalai and registered as a nurse under Tamil Nadu Nurses and Midwives Act, 1926 on 23.07.2001, was also working in the hospital.
5. The petitioner's colleague, R.Indra Gandhi, has been certified as a physiotherapist by Tamil Nadu Dr.M.G.R. Medical University in February, 2009 and another person, Ms.Rathina is a qualified Medical laboratory Technician. She has studied the said course in the very same institute. The said Ms.A.Rathina is duly assisted by D.Menaka, who has received training and qualified herself as a Medical Laboratory Technician (X-ray) at NLC Ltd., Neyveli.
6. The petitioner has further submitted that action of the Block Medical Officer, Primary Health Centre, G.Ariyur, Tirukoilur Taluk, Villupuram District, respondent herein, is preventing the petitioner from practicing Indian Medicine, by sealing the Get Well Hospital, is contrary to the instructions given by the Principal Secretary to Government, Health Department, Government of Tamil Nadu, dated 15.06.2010.
7. According to him, when the Government of Tamil Nadu have issued instructions, permitting medical practitioners registered with the respective medical councils to prescribe drugs developed in Allopathy and also amended Drugs and Cosmetic Rules of 1945, it is not open t the respondent to contend that the petitioner is practicing allopathic medicine unauthorisedly, against the provisions of the Tamil Nadu Public Health Act. It his also his further contention that even assuming that oxygen was given to the deceased by him, that is not a very serious act and further contended that it is elementary that even a person who is unlettered and employed as attendant, in an ambulance is trained to give oxygen.
8. Though in the supporting affidavit to the writ petition, the petitioner has contended that the deceased was not treated, in the reply affidavit, he has submitted that a consent letter was given in the hospital before First Aid was administered. According to him, there is no provision under the Tamil Nadu Public Health Act, empowering the Block Medical Officer, to seal the premises on the ground that the death has occurred due to medical negligence. According to him, the action of the respondent is nothing but motivated by allopathy doctors, practising in Thirukoilur. According to him, no action can be taken by the respondent or the police officials, to seal the premises. It is his further contention that the on mere oral orders, unknown to law, premises cannot be sealed by taking away the rights of the petitioner to practice medicine. He further submitted that the action of the respondent only reflects official bias of allopathy against Indian Medicine.
9. In support of the above pleadings, Mr.Lakshmi Narayanan, learned counsel for the petitioner took this Court through the various certificates of registration of Doctors and Para-Medical staff, working in the Get Well Hospital, Thirukoilur. He also invited the attention of this Court to the statutory provisions of Public Health Act, letter of the Registrar, Tamil nadu Homoeopathy Medical Council, Chennai, dated 07.04.2010, instructions of the Principal Secretary to Government, Health and Family Welfare Department, in Lr.No.22715/IM-II-2/2010, dated 15.06.2010, regarding the action to be taken against the qualified Indian Medicine Doctors and further instructions, dated 16.06.2010.
10. Learned counsel for the petitioner also placed reliance on the orders in Contempt Petition No.775 of 2010, dated 23.07.2010, filed by the Tamil Nadu Siddha Medical Graduates Association, against the Director General of Police (Law and Order), Chennai and the order made in Crl.O.P.No.4909 of 2008, dated 13.08.2010, quashing the criminal case, against the Doctor, qualified in Indian Medicine. Lastly, he invited the attention of this Court to the Government Order in G.O.(Ms.)No.248, Health and Family Welfare (IM 2-2) Department, dated 08.09.2010 and submitted that the registered Medical Practitioners have a right to practice Allopathic system of medicine to the extent, as per the limitations imposed in the abovesaid letters and Government instructions and they are protected under Article 17(b) of the Indian Medicine Central Council Act, 1970 and that they are also competent to practice the modern scientific system of medicine for the purpose of the Drugs and Cosmetics Act, 1940 (Central Act 23 of 1940).
11. Referring to the provisions of the Public Health Act, Medical Council Act and the District Municipalities Act, mentioned in the notice, dated 08.07.2010, learned counsel for the petitioner submitted that none of the provisions cited in the notice empower the respondent to seal a hospital and therefore, the notice and further action, sealing the premises, are without jurisdiction and in such circumstances, it is always open to the petitioner to approach Public Law remedy, under Article 226 of the Constitution of India.
12. Learned counsel for the petitioner further submitted that when the Public Health Authorities have no jurisdiction to call for an explanation or seal any premises under the statutory provisions of any of the Acts, stated supra, their action is arbitrary and without jurisdiction. Reliance is also placed on a decision of this Court in W.P.No.7678 of 2010, dated 11.02.2011 [Tamil Nadu Siddha Medical Graduates Association v. Indian Medical Association].
13. Even though a representation has been submitted to the respondent, questioning the authority and assumption of police powers by the respondent, causing disrepute to the petitioner and others and also called upon him to remove the seal, thereby, enabling the petitioner to practice Indian form of medicine and to exercise his fundamental right, it is the submission of the learned counsel for the petitioner that it would not amount to acquiescence of jurisdiction, which is not conferred on the Block Medical Officer or any other authority under the statutory provisions of the Act, stated supra. He further submitted that the authority has failed to consider the representation in proper perspective.
14. The Block Medical Officer, Government Primary Health Centre, G.Ariyur, the respondent herein, in his counter affidavit, has submitted that it is for the petitioner to prove that in the Hospital, there were other qualified Doctors also. He has further submitted that the hospital was inspected, even on an earlier occasion i.e., on 09.04.2010. According to him, the petitioner himself has admitted in writing that he has prescribed allopathic drugs to patients, and he has also given written prescriptions, prescribing allopathic medicine. On the aspect of reputation and constant flow of patients, the respondent has submitted that the hospital has only burnt the pockets of the poor and gullible patients.
15.Denying the contention of the petitioner that the hospital was sealed, without any notice, the respondent has submitted that a Police complaint was lodged against the petitioner, complaining that on the administration of two injections by the petitioner, Mrs.Bakkiammal, aged 55 years, died instantly (within 5 minutes) and that the petitioner has forcibly sent the body in his own vehicle and that a FIR has been lodged in Cr.No.345/2010 on the file of Thirukoilur Police station, against him. This complaint has been filed by the grandson of the deceased Bakiammal. Subsequently on 11.06.2010, the hospital was inspected by a team, Dr.P.Subramanian, Block Medical Officer, Primary Health Centre, G.Ariyur, has preferred a complaint before the very same police station against the petitioner, as below:
The Block Medical Officer,The Inspector of Police,
Primary Health Centre,Police Station,
Complaint, dated 11.06.2010
Sub: Medicine A complaint received regarding
improper treatment given in the Getwell
Hospital Requesting to enquire the
complaint and to take action Regarding.
Ref: Telephonic Order, dated 11.06.2010 at
12.30 P.M., from the Assistant Director,
Health Works, Kallakurichi.
It was stated in the telephonic message cited under reference, that Mr.D.J.Santhosh Kumar, B.H.M.S., Doctor of the Getwell Hospital, which is situated near the Thirukoilur bus stand, had given wrong treatment to one Bakkiam Amma, W/o.Kattian Pillai, female, aged 55 years, and that she died in the hospital, yesterday, on 10.06.2010, while she was undergoing treatment. Therefore, on the basis of instruction, for conducting inspection of the said hospital and for taking appropriate action, the Committee, comprising of Medical Officers and Health Inspectors conducted the inspection of the said hospital on 11.06.2010 at 2.00 P.M.
In the inspection, it was found out that D.J.Santhosh Kumar, instead of giving treatment in Homeopathy, which he had studied, he gives allopathy medicines to the patients, thereby, engaging himself in alternative medicine and that without getting any permission, he has established the inpatient ward along with X-Ray, Lab, ECG and Physiotherapy and gives wrong treatment and thereby threatening in life of public. Therefore, it is requested that action may be taken against him immediately.
Government Primary Health Centre,
16.The respondent has denied that the hospital was sealed on the oral orders of the police and revenue authorities. He has further submitted that the petitioner himself has admitted in his own writing that he had given treatment by giving oxygen to the deceased. Whereas, before the Police, the complainant had given a statement that the Doctor gave two injections to the deceased. According to the complainant, on the administration of allopathic medicine, the patient died and that the petitioner forcibly disposed of the body in his own vehicle. Therefore, the respondent has denied the contention of the petitioner that the patient was advised to be taken, elsewhere for specialised treatment.
17.The respondent has further submitted that a thorough and transparent inspection of the hospital was undertaken and the premises were sealed for violation of the provisions of the Public Health Act and other laws of the State. He has further contended that under the Public Health Act, 1939, the Deputy Director of Health Services, Kallakuruchi, is empowered to do all such acts, for the purpose of enforcing the provisions of the Public Health Act, 1939.
18.The respondent has further submitted that Tamil Nadu Public Health Act deals with Public Health. The said Act cannot be called as British vintage. According to him, the statement of the petitioner dated 16.07.2010, would itself prove the falsity of the averments made in the writ petition. The contention that the petitioner did not treat the deceased, is contrary to his own statement, dated 11.06.2010. He also submitted that the contention of the petitioner that the deceased was able to walk from the bus stand and thereafter, on seeing her condition, he instructed her relatives to take her, for specialised treatment, is contraryto the Police complaint.
19.It is the further contented that when the petitioner practiced, allopathic medicine, which he was not authorised to do so, and for the violations noticed, the respondent is empowered to take appropriate action. After the police complaint and on the oral directions of the District Collector, Villupuram to the Deputy Director of Health Services, Kallakuruchi, who in turn, has directed the respondent to enquire, a team consisting of two Medical officers, Block Health Supervisor and Health Inspectors, inspected the hospital, in the presence of (1) Tahsildar, (2) Zonal Deputy Tahsildar, (3) Village Administrative Officer, Thirukoilur Town and (4) Inspector of Police, Arakandanallur Circle, (In-charge of Thirukoilur Circle) and having found that the hospital has violated statutory provisions and of the Tamil Nadu Public Health Act and other laws and caused nuisance within the definition of Section 42 of the Tamil Nadu Public Health Act, action has been taken to seal the Hospital.
20.The respondent has further submitted that the authorities under the Tamil Nadu Public Health Act, 1939, are empowered to seal any premises, which falls within the purview of the Act, if in such premises contravention of any of the provisions of the Public Health Act, affecting Public Health is found and other laws. He denied the contention that the petitioner has lost his practice, due to sealing of the Hospital premises. It is his further contention that the State or its officers are not acting against the interest of the qualified medical practitioners of Indian system of medicine. But the authorities .are duty bound to act on any health matter, where serious irregularities and contraventions are found.
21.According to him, the petitioner himself has admitted that the deceased was in a very bad condition, due to diarrhoea with chilness in the body and that he has suspected of Bronchial Asthma and airway obstruction and therefore gave oxygen to the deceased and that he also suspected low sugar. He further submitted that the petitioner has already submitted a reply t o the notice dated 08.07.2010 and that the department has considered the same and therefore, it is not open to the petitioner to approach this Court, assailing the jurisdiction of the authority. For the abovesaid reasons, he prayed for dismissal of the writ petition.
"Under the above circumstances, the institutionally qualified practitioners of Ayurveda, Siddha and unani, who are registered in the Tamil Nadu Board of Indian Medicine, Chennai are eligible to practice in the respective system with Allopathy based on the training and teaching they had in the Course. But they cannot exclusively do the practice in Allopathy Medicine."
"I am therefore to request you to instruct the Police Officers in the Districts not to intervene with the practice of Registered Practitioners of Siddha, Ayurveda, Unani and Naturopathy who are registered in the Tamil Nadu Siddha Medical Council and Tamil Nadu Board of Indian Medicine. If any of these ISM Doctors are exclusively doing practice in Allopathy Medicine, names of these Doctors may be intimated to the Council and the Government for taking action against them under the Tamil Nadu System of Medicine (Development and Registration of Practitioners) Act 1997 and Tamil Nadu Board of Indian Medicine Rules. The cases of the Doctors who are already under arrest may be reviewed with reference to the above clarification."
He followed the same with another Letter dated 16.06.2010. In this letter, he added,
"In this connection I am to state that the above instructions is also applicable to the Registered Medical Practitioners under Homoeopathy system"
22.Inviting the attention of this Court to the deficiencies and irregularities mentioned in the impugned proceedings, dated 08.07.2010 and 27.09.2010, copy of the contents of the police complaint, dated 11.06.2010, statement of the petitioner, dated 11.06.2010, report of the Police officer, dated 11.06.2010, the detailed report sent to the Deputy Director of Health Services, Kallakurichi, dated 11.06.2010 and the action taken by the respondent, to prevent any activity carried on by the qualified Doctors and others, detriment to the public health and particularly, when two deaths have been reported in the very same hospital, due to wrong treatment, widely reported in the press, learned Additional Government Pleader submitted that it is the duty of the Public Health authorities to take appropriate action in public interest.
23.Learned Additional Government Pleader further submitted that while considering the aspect of maintaining public health, the authorities under the Public Health Act, 1939, are competent to take appropriate action, which may include, even sealing of the premises. According to him, such action cannot be said to be violative of Fundamental Rights of the petitioner to practice medicine. He also submitted that a duly constituted team of two medical officers and others, as stated supra, inspected the hospital premises owned by the petitioner and finding that there were violations, besides taking cognizance of the criminal complaint, in compliance with the orders of the Deputy Director of Health Services, Kallakurichi, action was taken to seal the premises. For the abovesaid reasons, he prayed for dismissal of the writ petition.
Heard the learned counsel for the parties and perused the materials available on record.
24.The competence of the Block Medical Officer, Government Primary Health Centre, G.Ariyur, respondent herein, in sealing the premises, issuing the notice, dated 08.07.2010 and the reply, dated 29.07.2010, rejecting the request of the petitioner to remove the seal, are under challenge.
25.Pleadings disclose that on 10.03.2010, one Mrs.Backiammal, died. The alleged cause of death was due to wrong administration of medicine by the petitioner, who is a homeopathy Doctor. According to the petitioner, the District Administration, viz., the District Collector, has instructed the Deputy Director of Health Services, Kallakurichi, to look into the matter and take appropriate action. Pursuant to which, the Deputy Director of Health Services, Kallakuruchi has instructed the Block Medical Officer, over phone at 12.30 P.M., on 11.06.2010. Immediately, thereafter, a team consisting of two Medical officers, Block Health Supervisor and Health Inspectors inspected the hospital in the presence of (1) Tahsildar, (2) Zonal Deputy Tahsildar, (3) Village Administrative Officer, Thirukoilur Town and (4) Inspector of Police, Arakandanallur Circle, (In-charge of Thirukoilur Circle) and finding that there were violations of the statutes, the Hospital premises has been sealed in the presence of Police and Revenue Authorities.
26.After the inspection, the respondent has lodged a complaint, dated 11.06.2010 to the Inspector of Police, Arakandanallur Circle, Arakandanallur, stating that the petitioner, a Homeopathy Doctor, was not only practising allopathy system of medicine, but also running an hospital with X-Ray, Laboratory, ECG and Physiotherapy.
27.Material on record discloses that earlier on 09.04.2010, when the hospital was inspected, the petitioner himself has admitted that he had prescribed drugs in Indian Medicine to patients. He has also admitted that licence for pharmacy has been obtained in his name and that he has acquired qualification in Indian Medicine and B.Pharmacy. The petitioner has categorically admitted that one Mrs.Backiammal of Porikkal Village was brought to the hospital, in a bad shape and when persons accompanied her, requested him to give some treatment, taking into consideration of the physical condition and suspecting that the deceased would have suffered from bronchial asthma, oxygen has been given. He has also stated that when he suspected low sugar, he wanted to take blood for examination. Though he tried from both hands, blood did not come. It is the further version of the petitioner, at this time, the persons accompanied Mrs.Backiammal told him that they would take her to the house and she was sent in his ambulance. Whereas, it is also his version that he had advised them to take her to a specialized institution for better treatment. According to the petitioner, he had not given any injections, but only he tried to take blood for examination. It is his further statement that when the said Mrs.Backiammal was brought to the hospital, she was in a critical condition. Whether he had attempted to take blood for examination or administered injection is a question of fact, to be adjudicated in the proceedings taken against him.
28.According to the complainant, Mr.Satyamurthy, grandson of the deceased, Backiammal, on the previous day, i.e., on 10.06.2010, at 23.30 Hours, he has lodged a complaint with the Inspector of Police, Arakandanallur Circle, Thiruvannamalai Taluk, stating that on 10.06.2010, her grandmother was suffering from fever and hip pain for two days, she was taken to Get Well hospital for treatment and one Dr.Santhosh, had given two injections to his grandmother in hip and hand and within five minutes, she died in the hospital. There was froth, coming out from her mouth. He has also alleged that Dr.Santhosh had forced him to take the body in a Omni Van, owned by him. He has requested the Police to take action for the death caused due to the wrong treatment and in this regard, a criminal case in Cr.No.345/2010 has been registered.
29.The matter has been taken up for investigation and that the body has been sent to Post-mortem in Government Hospital, Thirukoilur. After the inspection by the team of Doctors and others, the Block Medical Officer, has appeared in person and lodged a complaint with the police, alleging that during inspection and enquiry, it was found that the petitioner had prescribed allopathic medicine. The complaint lodged to the police is extracted hereunder:-
"i) He was adviced by the Deputy Director of Health Services, Kallakkurichi.
(a) that one Mrs. Bakkiammmal died on 10.06.2010 due to the wrong treatment given by the petitioner DJ.Santhosh Kumar, B.H.M.S. in his hospital
(b) that to inspect the said hospital and to take appropriate action.
(c) that a team consisting Medical Officers of Ariyur Primary Health Centre, Health Inspectors and Block Health supervisor inspected the said premises on 11.06.2010 afternoon 2.00 p.m.
(d) that in the above inspection, it was found out that D.J.Santhosh Kumar, the petitioner herein not only practicing in Allopathic medicine instead of Homeopathy medicine, he is practicing in inpatient treatment by installing laboratory, X-ray, E.C.G., Physiotherapy facilities without permission from the concerned authorities, giving wrong treatment in an improper way.
(e) that a legal action may be taken against him."
30.In the hospital, the Police has found that there were advertisement Boards, allopathic medicines, injections and separate rooms for ECG, X-Ray and Lab. Plenty of allopathic medicines in many boxes, were also found in the store room. The police has examined six witnesses and obtained their statements.
31.Witness No.4, Satyamurthy, has given a statement to the Police, that after the Doctor administered injections, his grand mother fainted and died. The Police has prepared an observation mahazar, sketch and seized materials and having an arrived at a subjective satisfaction that the petitioner has committed certain offences under the Medical Council Act, altered the crime from Section 174 into offences under Sections 304 and 420 IPC read with Sections 15(2)(b) and 15(3) of Indian Medical Council Act, 1956 and submitted a report to the learned Judicial Magistrate, Thirukovilur. A report has also been sent in Rc.No.353/bgh/R/-2010, dated 11.06.2010, by the Block Medical Officer, Government Primary Health Centre, G.Ariyur, respondent herein, stating that after inspection, the place has been sealed.
32.The defects/violation noticed during inspection and the things to be rectified, as per the notice, dated 08.07.2010, are as follows:
Things to be rectified
1. Approval of the plan for the building, in which, you are running a hospital has not been obtained from the Town Panchayat.
1. Approval of the plan for the building of the hospital, shall be obtained from the Town Panchayat.
2. Permission, No Objection Certificate and approval have not been obtained from the Department of Health Department, for the plan of the Hospital.
2. Permission, No Objection Certificate and Approval shall be obtained for the plan of the hospital from the Public Health Department.
3. You are running a pharmacy in your hospital without obtaining permission from the Town Panchayat and without the licence from the food cell.
3. The hospital shall run with licence obtained from the Town Panchayat and food safety licence from the Health Department.
4. Without the permission of the Medical Department, you are running a hospital, as 24 hours hospital, with the facilities, like ECG, X-Ray, Physiotherapy, Laboratory and inpatient ward.
4. Permission shall be obtained for voluntarily running the hospital, without having qualified technicians.
5. You are operating ECG, X-Ray, Physiotherapy and Laboratory, without having proper technicians and doctors.
5. You should run ECG, X-Ray, Laboratory and Physiotherapy, by filling up the posts of qualified technicians and doctors.
6. You are causing danger to the life of patients, by giving allopath treatment and avoiding homeopathy medicine, which you have studied.
6. Proper explanation shall be submitted to the concerned medical department.
7. No facility of safe drinking water is provided to the patients.
7. Safe drinking water should be provided to the patients.
8. There is no sufficient toilet facility and the existing toilets in the hospital are not properly cleaned, but untidy and stinky.
8. The number of toilets for the patients and employees shall be increased and the said toilets shall be cleaned properly and periodically.
9. Number of bathrooms are not sufficient for the inpatients.
9. Sufficient number of bathrooms shall be constructed and properly maintained.
10. You are transmitting diseases to the public by discharging the solid and liquid wastes in a public place from the hospital.
10. Sufficient facilities should be provided for removing the solid and liquid wastes from the Hospital, without letting them in a public place.
11. There is no separate toilet or restroom for the staffs working in the hospital.
11. Rest rooms and toilets shall be constructed immediately.
12. There is no fire extinguisher in the hospital.
12. Fire existinguishers shall be instantly installed and certificate to that effect shall be obtained from the Station Fire Officer every year
13. You have not obtained an sanitation certificate from the health department, which should be obtained every year.
13. Every year the sanitary certificate should be obtained from the health department after rectifying all the defects.
33.Finding the abovesaid irregularities and contraventions of the provisions, the Block Medical Officer, has issued a show cause notice with specific directions that the defects/irregulaties have to be rectified within a period of 10 days from the date of receipt of the notice, failing which, appropriate action would be taken. Instructions have been given by the respondent for compliance of the above. In response to the notice, dated 08.07.2010, the petitioner has sent a representation, wherein, he has stated that he has set up the hospital, in the name and style of Get Well Hospital and due to hard work of his team, the hospital has earned a good reputation. He has also stated that since the hospital has been attending to the poor and needy in Thirukoilur, this has lead to heat burn of other medical form of practitioners and therefore, taking advantage of the complaint, the respondent has sealed the premises. He has charged the Block Medical Officer, as a person, acting against Doctors qualified in Indian Medicine and it is purely due to bias and indifferent attitude of allopathic doctors. He has also stated that the person referred to in the complaint, was not even his patient. Tress-pass has been alleged against the respondent. He has also alleged tampering of ECG and other machines. He has cautioned the the respondent for violation of directions of the Secretary to the Government, Health Department, Chennai, dated 15.06.2010 and called upon the respondent to remove the seal forthwith and upon failure to comply with the demand, warned the respondent that the action would be taken for the damages to the tune of Rs.10 Lakhs and that a complaint would be lodged against him, in a Court of competent jurisdiction.
34.Perusal of the explanation or representation, dated 16.07.2010, shows that none of the deficiencies pointed out by the Inspection Team with further instructions to rectify the same, have been adverted to in the representation/explanation. On the other hand, he had only questioned the authority of the respondent in taking action. Upon considering the same, the Deputy Director of Health Services, Kallakkurichi, by order, dated 09.07.2010, has rejected the request of the petitioner to remove the seal, on the grounds that a criminal case is pending and without any orders from the Court, the hospital cannot be opened.
35.Perusal of the notice, dated 11.06.2010 of the Block Medical Officer, shows that no sooner, the Deputy Director of Health Services, Kallakkurichi, instructed the Block Medical Officer, to conduct an enquiry, a team of officers consisting of two Medical officers, Block Health Supervisor and Health Inspectors with the presence of (1) Tahsildar, (2) Zonal Deputy Tahsildar, (3) Village Administrative Officer, Thirukoilur Town and (4) Inspector of Police, Arakandanallur Circle, (In-charge of Thirukoilur Circle), have inspected the hospital premises and during inspection, the petitioner was not found at the time. His whereabouts were not known. The criminal case registered under Section 174 Cr.P.C., has been converted into offences under Sections 304 and 420 IPC read with Sections 15(2)(b) and 15(3) of Indian Medical Council Act, 1956. Section 304 and 420 IPC are extracted hereunder:-
"304. Punishment for culpable homicide not amounting to murder:- Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend of ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
420. Cheating and dishonestly inducing delivery of property:- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is culpable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
36.Taking note of the fact that the hospital was running, without satisfying certain requirements which includes, permission from the Panchayat Union and Departments of Public Health and that the Hospital also contravened provisions of the Tamil nadu Public Health Act, and also taking note of the seriousness of the complaint, lodged against the petitioner, alleging death, due to wrong treatment, by prescribing allopathic medicines, the Block Medical Officer, in the presence of the abovesaid officials and general public, has sealed the premises. Thereafter, he has sent a detailed notice on 08.07.2010.
37.One of the contentions raised before this Court is that the petitioner, a Doctor, qualified in Homoeopathy, and also passed Diploma in Pharmacy and that as per the orders issued by the Court, dated 15.06.2010, is entitled to practice allopathic form of medicine, subject to certain limitations. Reliance has also been placed on the letter in Lr.No.168/TNHMC/10, dated 07.04.2010, addressed by the Tamil Nadu Homeopathy Medical Council to the District Collector; letter of the Principal Secretary to the Government, Health and Family Welfare, Chennai, in Lr.No.22715/IM-II-2/2010, dated 15.06.2010 and the orders of this Court in Contempt Petition No.775 of 2010, dated 23.07.2010, Crl.O.P.No.4909 of 2008, dated 13.08.2010 and the Government Order in G.O.Ms.No.248, Health and Family Welfare Department, dated 08.09.2010.
38.Letter No.168/TNHMC/10, dated 07.04.2010, of the Tamil Nadu Homoepathy Medical Council, Chennai, addressed to all the District Collectors, is with reference to the police harassment against the registered Homeopathy Doctors. In the said letter, the Council, at Paragraph 2, has stated as follows:
The Diploma/Degree Holders in Homeopathy and registered their names with this Council under class A are eligible to hold any appointment as Physician, Surgeon or any medical officer in any hospital, asylum, infirmary, dispensary, lying-in-hospital, Sanatorium or other similar institution of homeopathy only or of both homeopathy and modern medicine under Section 26(c) of the abovesaid Act, 1971. At the time of doing surgery and emergency case the Syringe, Saline bottle,Suture needies and other diagnosis equipments are needed which are covered under the syllabus prescribed by the Central Council of Homeopathy, New Delhi.
39.While appreciating the action taken by the Police authorities against quacks and bogus practitioners and taking note of the representation by the Tamil Nadu Homeopathy Medical Council and the Tamil Nadu Homeopathy Medical Associations, the Registrar, Tamil Nadu Homeopathy Medical Council, has requested the district Collectors, to issue necessary instructions to the Police authorities that before initiating any penal action against the registered Homeopathy Medical practitioners, they should consult the Registrar, whether the said medical practitioners have registered their names with the council and if so, such medical practitioners need not be harassed. In the case on hand, there is no necessity to verify from the Registrar of Homeopathy Council, as to whether, the petitioner had registered with the Council.
40.Taking note of the notification issued in F.No.28-5/2004-A7 (MM), dated 19.05.2004 and the orders of this Court in W.P.No.22155 of 2009, dated 05.01.2010 and W.P.No.30259 of 2009, dated 23.02.2010 and the further interim order in W.P.M.P.No.10746 of 2006 in W.P.No.9648 of 2006, dated 07.04.2006, the Principal Secretary to the Government, Health and Family Welfare Department, Chennai, has issued the following instructions,
I am therefore to request you to instruct the Police Officers in the Districts not to intervene with the practice of Registered Practitioners of Siddha, Ayurveda, Unani and Naturopathy, who are registered in the Tamil Nadu Siddha Medical Council and Tamil Nadu Board of Indian Medicine. If any of those ISM Doctors are exclusively doing practice in Allopathy Medicine, names of these Doctors may be intimated to the Council and the Government for taking action against them under the Tamil Nadu Act, 1997 and Tamil Nadu Board of Indian Medicine Rules. The cases of the Doctors, who are already under arrest may be reviewed with reference to the above clarification.
41.The said instructions have been subsequently reiterated in another letter in Lr.No.22715/IM 2(2)/2010-4, dated 16.06.2010 of the Principal Secretary to Government, Chennai. As there was an omission in the earlier letter to include Tamil Nadu Homeopathy Medical Council as registered practitioners, the subsequent instructions have been issued.
42.Contempt Petition No.775 of 2010 has been filed, for disobedience of the order, made in W.P.M.P.No.10746 of 2006 in W.P.No.9648 of 2006, dated 07.04.2006. The said petition has been filed by the Tamil Nadu Siddha Medical Graduates Association against the Director General of Police (Law and Order), Chennai. During the course of hearing, the Director of Police, Chennai, has produced a circular memo, dated 19.06.2010 in Rc.No.147472/Cr.IV(2)/2010, which reads as follows:
Rc.No.147472/Cr.IV (2)/2010 Office of the Director General of
Sub: Indian System of Medicine-Police
action against qualified Indian
Medicine Doctors-Instructions issued Regarding.
Family Welfare Department,
dt.15.06.2010 and 16.06.2010..............
In the reference cited, the Government have stated that the Police Department in the course of their action against the quacks has inspected the clinics run by the registered medical practitioners in Siddha, Ayurveda, Homeopathy and Unani and arrested some of them as if they had practiced Allopathy System of Medicine. The Government have informed that as per section 17(3) B of the Indian Medicine Central Council Act, 1970 the institutionally qualified practitioners of Siddha, Ayurveda and Unani Tibb Homeopathy are eligible to practice respective systems with modern scientific medicine including Surgery and Gynecology Obstetrics, Anesthesiology, ENT, Opthalmology etc based on the training and teaching.
2) Hence all Commissioners of Police/Inspectors General of Police, Deputy Inspector General of Police and Superintendents of Police are requested to instruct the Police Officers in the Cities and Districts not to intervene with the practice of registered practitioners of Siddha, Ayurveda, Unani, Homeopathy and Naturopathy who are registered in the Tamil Nadu Siddha Medical Council, Tamil Nadu Board of Indian Medicine and Tamil Nadu Homeopathy Medical Council. If any cases of the Doctors who are already under arrest may be reviewed with reference to the above clarification.
3) The letter from the Health & Family Welfare Department at 15.06.2010 is enclosed for perusal.
4) The instructions should be scrupulously followed.
5) Receipt of this Circular Memo may be acknowledged.
ADGP(Law and Order)
All Commissioners of Police in the Cities
All Inspectors General of Police in Zones
All Deputy Inspectors General of Police in Range.
All Superintendents of Police in the Districts.
/True Copy/Forwarded/By Order/
Personal Assistant (Admn)
43.In the light of the abovesaid circular, this Court in the above Contempt Petition, has passed the following orders:
4. In the light of the said circular, it is imperative that no proceedings can be initiated against any of those registered practitioners in Siddha, Ayurveda, Homeopathy and Unani, who are eligible to practice irrespective of the respective system also with Modern Scientific Medicine including Surgery and Gynecology Obstetrics, Anesthesiology, ENT, Opthalmology etc,. Such registration of the medical practitioners with Tamil Nadu Siddha Medical Council, Tamil Nadu Board of Indian Medicine and Tamil Nadu Homeopathy Medical Council as well as such of those qualified doctors who were recognised as such by the Madurai Kamaraj University and Tamil Nadu Dr. MGR Medical University who have been qualified respectively in the system of bachelor of Siddha Medicine and Surgery. If any action had been taken against such of those medical practitioners referred to above, it is needless to state that, such action should be dropped forthwith pending further orders in the writ petition.
44.In Crl.O.P.No.4909 of 2008, dated 13.08.2010 [Paramasivam v. State, by Inspector of Police, Krishagiri], the petitioner therein has prayed to quash the FIR.No.993 of 2007, dated 26.12.2006, registered against him. In the above case, FIR was lodged on the basis of a secret information and the police, upon investigation, conducted a raid in the premises of the petitioner therein and seized B.P.Apparatus, Stethoscope, Syringe and other apparatus. Taking note of the orders passed in the above Contempt Petition, dated 23.07.2010 and the Circular Memorandum, dated 19.06.2010, and on the facts and circumstances of the case, this Court has quashed the FIR.
45.G.O.Ms.No.248, Health and Family Welfare (IM 2-2) Department, dated 08.09.2010, reads as follows:
Indian System of Medicine Notification of Ayurveda, Siddha, and Unani Tibb Registered Medical Practitioners as persons practicing the modern scientific system of medicine under the Drugs and Cosmetics Rules, 1945 Orders Issued.
HEALTH AND FAMILY WELFARE (IM 2 -2) DEPARTMENT
G.O. (Ms) No. 248 Dated : 08.09.2010
Thiruvalluvar Aandu 2041
The following Notification will be published in the Tamil Nadu Government Gazettee .
WHEREAS, the rights of practitioners of Indian System of Medicine are protected under section 17(3) (b) of the Indian Medicine Central Council Act, 1970 (Central Act 48 of 1970) ;
AND WHEREAS, as per section 2 (1) (e) of the said Act, Indian Medicine means the system of Indian Medicine commonly known as Ashtang Ayurveda, Siddha or Unani Tibb whether supplemented or not by such modern advances, as the Central Council of Indian Medicine may declare by notification from time to time ;
AND WHEREAS , the Central Council of Indian Medicine in its Notification F.No.28-5/2004-AY.(MM), dated the 19th May 2004, has clarified that the word Modern Advances in clause (e) of section 2 (1) of the said Act as advances made in the various branches of modern scientific medicine in all its branches of internal medicine, surgery, gynaecology and obstetrics, anesthesiology, diagnostic procedures and other technological innovation made from time to time and declare that the courses and curriculum conducted and recognized by the Central Council of Indian Medicine are
supplemented with such modern advances ;
AND WHEREAS , the Central Council of Indian Medicine has improved and strengthened the syllabus of Indian Medicine by including subjects with regard to National Programmes like National Malaria Eradication programmes, Tuberculosis, Leprosy, Family Welfare Programme, Reproductive and Child Health Programme, Immunisation Programme, AIDS, Cancer etc;
Now, THEREFORE, under sub - clause (iii) of clause (ee) of rule 2 of the Drugs and Cosmetics Rules, 1945 the Governor of Tamil Nadu hereby declares every registered medical practitioner holding the qualifications specified in the second, third or fourth Schedule to the Indian Medicine Central Council Act, 1970 (Central Act 48 of 1970) and Part III of the Schedule to the Tamil Nadu Siddha System of Medicine (Development and Registration of Practitioners) Act , 1997 (Tamil Nadu Act 34 of 1997) and registered in the Medical Register of the State maintained under the aforesaid Acts, as a person practicing the modern scientific system of medicine for the purposes of the Drugs and Cosmetics Act, 1940 (Central Act 23 of 1940.)
(BY ORDER OF THE GOVERNOR)
PRINCIPAL SECRETARY TO GOVERNMENT
The Principal Secretary and Commissioner of
Indian Medicine and Homoeopathy,
Arumbakkam, Chennai 106.
The Works Manager,
Government General Press,
Chennai.- 2 (for publication of Notification in the Government Gazette)
Tamil Nadu Siddha Medical Council,
Arumbakkkam, Chennai 106.
Tamil Nadu Board of Indian Medicine,
Arumbakkkam, Chennai 106.
The Director General of Police,
// Forwarded / By Order //
46.First of all, the case on hand cannot be said to be an harassment by the police in summoning the petitioner to appear, in the name of any unnecessary enquiry or investigation by the Police. It is evident from the instructions of the Principal Secretary to the Government, Chennai, addressed to the Director General of Police, Chennai, in letter, dated 15.06.2010, that it was the grievance of the registered Sidha, Ayurveda and Unani Medicine Practitioners that the Police Department, in the course of investigation, against quacks, doing medical practice, in inspecting the clinics run by the registered medical practitioners in Siddha, Ayurveda and Unani, arrest them, as if they are practicing allopathy system of medicine. In the said letter, the Principal Secretary to Government, Health and Family Welfare Department, Chennai, has also informed the Director General of Police, Chennai, that the practitioners of Indian Medicine are protected under Section 17(3)(b) of the Indian Medicine Central Council Act,1970 and as per the abovesaid Section, institutionally qualified practitioners of Ayurveda, Siddha, Unani Tibb are also eligible to practice respective systems with Modern Scientific Medicine, including Surgery and Gynecology Obstetrics,Anesthesiology, ENT, Ophthalmology, etc., based on the training and teaching.
47.As stated supra, the petitioner has not alleged that there was any harrassment by the Police, on any previous occasion nor he was prevented from practicing the respective system of medicine with modern scientific medicine. The fact that the petitioner has been practicing allopathy form of medicine, has also been taken note of, but the combined reading of the defects noticed on 11.06.2010, read with the complaint, dated 11.06.2010, addressed to the Police, indicates that the practice in other form of medicine, cannot be said to be decisive factor, for sealing the premises. It is one of the facts brought to the notice of the police, by way of complaint. No doubt, subsequently after the registration of the criminal case, the Deputy Director of Health Service, Kallakurichi, has taken note of the same and refused permission to open.
48.Let me consider the objects of the Tamil Nadu Public Health Act, 1939. The proposal to introduce public health legislation in this Presidency has been under the consideration of the Government for many years. At one time, the view prevailed that it would be sufficient to make suitable additions and amendments to the Acts governing local bodies, namely, the Madras City Municipal Act, 1919, the Madras District Municipalities Act, 1920, and the Madras Local Boards Act, 1920, and amendments were drafted on that basis. It was however decided subsequently to introduce a compact, separate Bill containing such provisions as were essential for the advancement of public health, existing Acts being left unaltered as far as possible.
49.Some of the salient features of the Bill are as follows:-
* Effective provisions for securing proper drainage, and a sufficient number of public latrines, etc.;
* The prevention and abatement of nuisances;
* The reservation of areas for residential purposes; control over insanitary buildings and the abatement of overcrowding;
50.The Director of Public Health and his powers:- There is no provision in the existing law for the Director of Public Health exercising any statutory power of control and superintendence over the operations of local authorities. Such a power is considered necessary and is provided for by the Bill. Various functions have been specifically allotted to the Director under the Bill. In particular, the Director has been given a statutory right to recommend such measures as he may consider necessary for improving the public health administration in any local area or for safeguarding the public health, in such area, and the local authority concerned is laid under a statutory obligation to adopt such measures with a right, however, of making a reference to the Government if it disagrees with the Director's recommendation. The Government have also been given power to define the powers and duties of the Director as well as those of the members of his staff.
51.Health establishments of local authorities: Local authorities have been classified into (a) urban local authorities, and (b) others. Urban local authorities will consist of the Corporation of Madras, municipal councils, and panchayats specially notified by the Government. The Government have been given a discretionary power to compel the employment of Health Officers by local authorities which in their opinion should have such officers. The Health Officers will, in addition to the powers conferred on them by the Bill, exercise such of the powers and duties of the executive authority concerned in regard to public health matters, under the Madras City Municipal Act, 1919, the Madras District Municipalities Act, 1920, or the Madras Local Boards Act, 1920, as the Government may direct.
52.Prevention of nuisance: The easing of persons and the deposit of rubbish, etc., in streets, etc., have been prohibited. In the former case, the head of the family or household is to be held responsible for nuisances committed by members of the family or house-hold.
53.Police officers may arrest persons committing-in their view offences against the provisions of the Bill. Executive officers of local authorities and members of the public health establishment not below the rank of Sanitary Inspector may similarly arrest persons committing in their view offences against the provisions of the Bill or against the provisions contained in the City Municipal, District Municipalities, Local Boards, City Police, and Towns Nuisances Acts, which relate to public health matters. Arrested persons should not however be detained in custody for a period exceeding 24 hours without an order from a Magistrate.
54.Public Health Act came into force from 07.03.1939. Some of the provisions of the Tamil Nadu Public Health Act, 1939 and other statutes referred to in the notice, dated 08.07.2010 and some other provisions, which this Court deems it fit to consider, are as follows:
Tamil Nadu Public Health Act, 1939:
3(8) "Executive Authority" means the Commissioner, Chairman, President, Executive Officer or other functionary of the local authority concerned, who is vested with general executive powers under the Madras City Municipal Act, 1919, the Tamil Nadu District Municipalities Act, 1920, the Tamil Nadu Local Boards Act 1920, or the Tamil Nadu Village Panchayats Act, 1950, as the case may be.
3(9) "Executive Officer" means the paid officer, if any, of the local authority who is vested with general executive powers in the local area for which such authority is constituted under the Madras City Municipal Act, 1919, the Tamil Nadu District Municipalities Act, 1920, the Tamil Nadu District Boards Act, 1920, or the Tamil Nadu Village Panchayats Act, 1950 as the case may be.
3(26) 'Occupier" includes (a) any person for the time being paying or liable to pay to the owner the rent or any portion of the rent of the land or building or part of the same in respect of which the word is used or damages on account of the occupation of such land, building or part; and (b) a rent-free occupant.
3(29) "Owner" includes the person for the time being receiving or entitled to receive, whether on his own account or as agent, trustee, guardian, manager or receiver for another person or estate or for any religious or charitable purposes, the rent or profits of the property n connection with which the word is used.
4. Constitution of the Public Health Board. (1) As soon as may be after the commencement of this Act, the Government shall cause to be constituted for the State of Tamil Nadu a Public Health Board consisting of the following members, namely:
(a) The Minister for Public Health;
(b) the Minister for Local Administration;
(c) three Members of the Tamil Nadu Legislature nominated by the Government;
(d) the Surgeon-General with the Government of Tamil Nadu;
(e) the Director of Public Health;
(f) the Sanitary Engineer; and
(g) one other officer of the Government nominated by the Government.
7. Powers of the Director of Public Health to advise local authorities. The Director of Public Health may, from time to time as occasion requires, recommend for adoption, by any local authority, such measures as may be necessary for improving the public health administration in the local area, or for safe-guarding the public health therein:
Provided that if on account of financial or other reasons, any local authority is unable to carry out such measures, or if there is any difference of opinion between the local authority and the Director, the matter shall be referred to the Government whose decision shall be final.
33. Prohibition of occupation of new building without drains. No owner of any building constructed or reconstructed after the commencement of this Act in any urban local area shall occupy it, or cause or permit it to be occupied, until he has obtained a certificate from the Health Officer that the building has been provided with sufficient means of drainage.
34. Sullage or sewage not to be let out into streets:- No person having control over any building or land shall cause or allow-
(a) the water of any sink, sewer, latrine, or sanitary convenience, or any other liquid or other matter which is, or is likely to become, offensive, to run or drain into or to be thrown or put upon, any street or open space or to soak through any external wall; or
(b) any offensive matter from any sewer, latrine or sanitary convenience, to run, drain or be thrown into a surface drain in any street.
35. Injurious refuse not to be discharged into public drains. No person shall, save as may be generally or specially prescribed, throw, empty, or turn, or suffer or permit to be thrown, emptied or turned or to pass, into any public drain or into any drain communicating with a public drain
(a) any matter likely to injure the drain or to interfere with the free flow of its contents, or to affect prejudicially the treatment and disposal of such contents; or
(b) any liquid being refuse or stream or other liquid which is either alone or in combination with the contents of the drain, dangerous, or the cause of a nuisance, or prejudicial to health; or
(c) any explosive or inflammable substance.
38. New houses to be provided with sanitary conveniences. If in any local area any building intended for human habitation is constructed or is reconstructed after being pulled down to or below the ground floor, the owner thereof shall provide such sanitary conveniences and in such positions as the Health Officer may, by notice, require.
39. Additional sanitary conveniences. (1) If any building intended for human habitation without any sanitary convenience or if, in the opinion of the Health Officer, the sanitary convenience or conveniences provided therein are insufficient, having regard to the number of persons occupying the building, or are inefficient, or are objectionable on sanitary grounds, he may, by notice in writing require the owner of such building
(a) to provide such sanitary conveniences, or such additional sanitary conveniences and in such positions, as may be specified in the notice; or
(b) to make such structural or other alterations as may be specified in the notice.
(2) Every owner of the ground on which a group of six or more huts stands shall provide, such latrine accommodation, in such positions, and within such time as the Health Officer may, by notice, require, for the use of the inhabitants of such group of huts.
41. Certain things to be nuisances. Without prejudice to the generality of the definition of the expression "nuisance" contained in clause (25) of section 3, the following shall be deemed specifically to be nuisances for the purposes of this Chapter:-
(1) any premises in such a state as to be prejudicial to health or a nuisance;
(2) any pond, pool, ditch, gutter, water-course, water-trough, latrine, cesspool, drain or ashpit which is so foul or in such a state as to be prejudicial to health or a nuisance;
(3) any animal kept in such a place or manner as to be prejudicial to health or a nuisance;
(4) any accumulation or deposit of refuse or other matter which is prejudicial to health or a nuisance;
(5) any factory (not being a factory governed by the provisions of the Factories Act, 1934'), workshop or workplace, which is not provided with sufficient means of ventilation or in which sufficient ventilation is not maintained, or which is not kept clean or not kept free from noxious effluvia, or which is so over-crowded while work is carried on as to be prejudicial to the health of those employed therein;
(6) any fireplace or furnace which does not as far as practicable consume the smoke arising from the combustible used therein, and which is used for working engines by steam, or in any mill, factory, dye-house, brewery, bake-house or gas-work, or in any manufacturing or trade process whatsoever;
(7) any chimney sending forth smoke in such quantity as to be a nuisance; and
(8) any noise, vibration, dust, cinders, irritating smell or offensive odour produced by a factory, workshop or work place which is a nuisance to the neighbourhood.
42. Detection of nuisance. Every urban local authority shall (a) cause its local area to be inspected from time to time with a view to ascertain what nuisances exist therein calling for abatement under the powers conferred on such authority by this Act; and
(b) enforce the provisions of this Act in order to abate such nuisances.
43. Information regarding nuisance.- Any person aggrieved by a nuisance in any local area may give information to the same to the Health Officer or any other Officer of the public health establishment of the local authority.
44. Power to Health Officer to abate nuisance. If the Health Officer is satisfied, whether upon information given under section 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:
where the nuisance arises from any defect of a structural character, the notice shall be served on the owner of the premises; and
where the person causing the nuisance cannot be found and it is clear that the nuisance does not arise or continue by the act, default or sufferance of the owner or the occupier of the premises, the Health Officer may himself forthwith do what he considers necessary to abate the nuisance and to prevent a recurrence thereof.
45. Power of local authority to abate nuisance.-If the person, on whom a notice to abate a nuisance has been served under section 44, makes default in complying with any of its requirements within the time specified therein, or if the nuisance although abated within such time is, in the opinion of the local authority, likely to recur on the same premises, 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.
46. Provision regarding house rendered unfit for occupation by reason of nuisance.-Where a house or other building is, in the opinion of the Health Officer, unfit for human habitation by reason of a nuisance existing therein, he may apply to a Magistrate (not being a Magistrate of the third class) to prohibit the use of such house or building for human habitation until it is rendered fit therefor.
48. Powers of entry and inspection. The executive authority or any officer of the Public Health Department of the Government or of the local authority, not below the rank of Health or Sanitary Inspector, may enter and inspect any premises for the purpose of enforcing any of the provisions contained in this Chapter:
(a) no such entry shall be made between sunset and sunrise except when a nuisance is caused by anything done or omitted to be done in the premises between sunset and sunrise;
(b) no dwelling house shall be so entered without the consent of the occupier thereof unless he has received at least twenty-four hours previous notice of the intention to make such entry:
(c) sufficient notice shall, in every case, be given to enable the inmates of any apartment appropriated to women to withdraw to some part of the premises where their privacy may be preserved; and
(d) due regard shall be paid, so far as may be compatible with the exigencies of the purpose of the entry, to the social and religious usages of the persons residing in the premises.
50.Nuisance caused by act or omission outside local area. If a nuisance under this Act within, or affecting any part of, a local area, appears to be wholly or partly caused by some act or default committed or taking place outside such local area, the local authority may take or cause to be taken against any person in respect of such act or default any proceedings in relation to nuisances, authorized by this Act in the like cases and with the like incidents and consequences as if the act or default were committed or took place wholly within such local area.
51. Prohibition of the deposit of rubbish, etc., in street, etc. (1) No person shall deposit, or cause or suffer any member of his family or household to deposit any carcasses of animals, any dust, dirt, dung, ashes or refuse or filth of any kind, any animal matter, any broken glass earthenware or other rubbish, or any other thing which is or may be nuisance, in any street or in any arch under a street, or in any drain beside a street, or on any open space (not being private property) or on any quay, jetty or, landing place, or on any part of the sea-shore, or on the bank of any water-course except in such receptacles as may be provided or at such places, in such manner and at such hours as may be fixed by the Health Officer.
(2)No person shall ease himself, or cause, permit or suffer any member of his family or household to ease himself in any such street, arch, drain, open space, quay, jetty, landing place, sea-shore or bank aforesaid.
(3) Any person easing himself in any private open space shall immediately cover up the excreta with earth.
65. Power of entry of local officers to take preventive measures. (1) The Health Officer or any person authorised by him in this behalf may
(a) at all reasonable hours, inspect with or without assistants any place in which any notified disease is reported or suspected to exist, without notice in the case of factories, work-shops or workplaces, offices, business places and the like and after giving such notice as may appear to him reasonable in other cases, including dwelling houses; and
(b) take such measures as he may consider necessary to prevent the spread of such disease beyond such place.
(2) The powers conferred by sub-section (1) on the Health Officer may, in municipal areas, be exercised also by the executive authority or any person authorized by such authority.
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.
89. Notification of residential areas. (1) Every urban local authority shall, within one year from the commencement of this Act or within such further time as the Government may allow in the case of any such authority, notify in the prescribed manner the localities, divisions, wards, streets, or portions of streets in its local area which shall be reserved for residential purposes.
(2) An urban local authority may, at any time subsequent to the issue of a notification under sub-section (1), notify additional localities, divisions, wards, streets or portions of streets, as areas which shall be reserved for residential purposes.
(3) A notification issued under sub-section (1) or sub-section (2) may declare that operations in any factory, workshop or workplace in existence at the time when it comes into force, or that the continuance of any offensive trade carried on by any person at such time, shall be subject to such restrictions, limitations and conditions as may be specified in the notification.
90. Approval of Director of Public Health and of Director of Town Planning to be obtained for notification. (1) Before issuing a notification under section 89, the local authority shall
(a) obtain the approval both of the Director of Public Health and of the Director of Town-Planning in regard to
(i) the suitability of the areas proposed to be reserved for residential purposes; and
(ii) the restrictions, limitations and conditions, if any, proposed to be imposed under sub-section (3) of section 89; and
(b) publish in the prescribed manner for general information the situation and limits of the areas proposed to be reserved for residential purposes and the restrictions, limitations and conditions, if any, proposed to be imposed under sub-section (3) of section 89, and consider all objections received by it within six weeks of such publication.
(2) In the event of a difference of opinion between the local authority and the Director of Public Health or the Director of Town-Planning, the matter shall be referred to the Government whose decision shall be final.
91. Appeal against notification Any person aggrieved by the issue of a notification under section 89, may appeal to the Government whose decision shall be final.
92. Consequences of notifications. Upon the issue of a notification under section 89, the following consequences shall ensue, namely:
(a) The construction or establishment of any new factory, workshop or workplace, or the carrying on of any new offensive trade in the areas specified in the notification shall be absolutely prohibited:
Provided that the local authority may, subject to such restrictions, limitations and conditions, as may be prescribed, permit any such construction or establishment, if it is for the purpose of carrying on such cottage industry as the Government may, from time to time, by notification specify.]
(b) In the case of any factory, workshop or workplace in existence at the time when the notification comes into force or of any offensive trade in existence at such time, the restrictions, limitations and conditions, if any, specified in the notification, shall be observed in the areas aforesaid.
Explanation (1). If work in any factory, workshop, or workplace existing at the time when the notification under section 89 comes into force or any offensive trade carried on by any person at such time ceases to be carried on for a continuous period of not less than one year, the resumption of work in such factory, workshop, or workplace or of such offensive trade, as the case may be, shall, unless the Government otherwise order, be deemed to^be absolutely prohibited under clause (a).
Explanation. (2). -In the case referred to in Explanation (1), where the period exceeds six months but does not extend to one year, work in the factory, workshop or workplace or the offensive trade, as the case may be, shall not be resumed without the written permission of the Health Officer unless the Government otherwise order.
93. Extension of sections 89 to 92 to non-urban local authorities. The Government may, by notification, direct that the provisions of sections 89 to 92 shall apply to any non-urban local authority specified in such notification; and thereupon, the provisions of those sections shall apply to such authority as if it were an urban local authority and as if the reference to the commencement of this Act in sub-section (1) of section 89 were a reference to the date of publication of the notification under this section.
94. (1) No person shall erect a new building on any ground which has been filled up with faecal or offensive vegetable or offensive animal matter or upon which any such matter has been deposited, unless and until the Health Officer certifies that such matter has been properly removed by excavation or otherwise or has become or been rendered innocuous.
(2) Against the refusal of the Health Officer to issue a certificate under sub-section (1), an appeal shall lie to the Government whose decision shall be final.
95. Cleansing of Court, yard or passage used in common. (1) If any Court, yard or passage which is used in common by the occupants of two or more buildings, but is not a public street, is not regularly swept and kept clean and free from rubbish or other accumulation to the satisfaction of the Health Officer, he may cause such Court, yard or passage to be swept and cleansed.
(2) The local authority may recover any expenses reasonably incurred by the Health Officer under sub-section (1) from the occupants of the buildings which front or abut on the Court or yard, or to which the passage affords access, in such proportions as may be determined by the Health Officer.
96. Dwelling house unfit for human habitation to be vacated. (1) If any dwelling house or portion thereof appears to the Health Officer to be unfit for the purpose of human habitation, he may in cases not falling under section 46, apply to the local authority to prohibit the use thereof for such purpose, and such authority shall make an order prohibiting the use of such dwelling house or portion for human habitation until in the opinion of the Health Officer it is rendered fit therefor:
Provided that before making an order under this sub-section, the local authority shall give the owner and the occupier or occupiers, if any, concerned a reasonable opportunity of showing cause why it should not be made.
(2) When any order has been made under sub-section (1) the executive authority shall, cause a copy of the order to be comunicated to the owner as well as to every occupier concerned; and every such occupier shall be bound to cease to inhabit the dwelling house or portion thereof, as the case may bj, within thirty days after the communication of the order to him.
(3) The owner of any dwelling house or portion of a dwelling house in respect of which an order under sub-section (1) is in force, shall not let or occupy, or permit to be let or occupied, such dwelling house or portion, or any part thereof, as a human habitation.
98. Definitions. In this Part
(1) "tenement" means a dwelling house and includes
(a) any part of a dwelling house which is capable of separate occupation; and
(b) a students' hostel under public or recognised control, but does not include a dwelling house or part of a dwelling house, occupied by the owner thereof; and
(2) "landlord" means the immediate landlord of the occupier or occupiers of a tenement.
99. Duties of landlord. A landlord of a tenement
(a) shall maintain it in a habitable condition; and
(b) except temporarily on occasions such as marriages and the like, shall not cause or permit the tenement to be overcrowded:
Provided that no proceedings shall be instituted against the landlord in respect of any infringement by him of the provisions of this section, unless a notice in writing that the tenement is not in a habitable condition or that it is overcrowded, has been served upon the landlord or his agent by the Health Officer, and the landlord fails within such time as may be specified in such notice to take such steps as may be reasonably open to him for putting the tenement in a habitable condition or for securing the abatement of the overcrowding therein, as the case may be, including, if necessary the taking of legal proceedings for possession of the tenement.
100. Power to make rules The Government shall have power to make rules for determining
(a) whether a tenement or any class of tenements is or is not maintained in a habitable condition within the meaning of section 99; and
(b) whether a tenement or any class of tenements is or is not overcrowded within the meaning of that section.
112. Power of Health Officer to enter premises used for food trade. [(1)] The Health Officer or any person duly authorised by him may, without notice, enter any place at any time, by day or by night, where any article of food is being manufactured, prepared, exposed or stored for sale, and inspect such article and any utensil or vessel used for manufacturing, prepar-ing or containing the same.
(2) Samples of any article of food or any vessel or utensil, in which such articles of food are kept may be taken and examined by the Health Officer or any person duly authorized by him as often as may be necessary for the detection of unwholesomeness. If on such examination he finds any such article of food to be unwholesome, he may condemn it and forbid its sale.
(3) Whoever obstructs the Health Officer or person duly authorised by him in the discharge of his duties under this section shall be punishable with fine which may extend to one hundred rupees.
120. Sanitary arrangements, etc. The local authority within whose jurisdiction a fair or festival is held, or if it is held within the jurisdiction of two or more local authorities, and person or committee appointed by such local authorities jointly, shall make provision for
(1) the demarcation and preparation of the site of the fair or festival;
(2) the clearing and draining of the site;
(3) the disposition of the several parts of the fair or festival, including the alignment of roads within the site;
(4) the supply in sufficient quantities of water fit for drinking and cooking purposes for the use of persons resorting to the fair or festival and the proper preservation of such water;
(5) the accommodation of pilgrims and visitors, to such extent as may be practicable;
(6) the lighting of the fair or festival centre;
(7) the supply by suitable persons of wholesome food at reasonable rates, and 2[in such quantities as may be necessary], to persons resorting to the fair or festival and the proper supervision and inspection of all food prepared or offered for sale or stored or in course of transit within the fair or festival centre;
(8) the collection, removal and disposal of refuse, rubbish and sewage;
(9) the supply and maintenance of suitable latrines for the use of persons resorting to the fair or festival;
(10) the detection and segregation of cases of infectious disease and the prevention of the introduction and spread of such diseases;
(11) the employment of adequate medical staff, the provision of medical relief, and the furnishing of hospital accommodation both for general and isolation purposes; and
(12) such other purposes as may be prescribed.
122. Power to enter and seize unwholesome foods. (1) The Health Officer, or a Health or Sanitary Inspector of the local authority or of any of the local authorities concerned, or any officer of the Government or of any such local authority appointed by the Government in this behalf may
(a) enter and inspect any building or shop in the fair or festival centre which is a source of food supply:
(b) for the purpose of inspection, have access to any source of water-supply on such centre or within such distance there from as the Government may, by general or special order determine; and
(c) seize any food prepared or offered for sale or stored or in course of transit within the fair or festival centre which, he has reason to believe is unwholesome or unfit for human consumption, and destroy the same forthwith if, in his opinion, such food is of a perishable nature or the value thereof does not exceed three rupees.
(2) (a) Any officer seizing any food under clause (c) of sub-section (1) shall, if it is not destroyed under that clause, report the seizure to such authority or person as may be prescribed in that behalf.
(b) If the authority or person aforesaid is of opinion that the food is unwholesome or unfit for human consumption, such authority or person may, by order in writing, direct the food to be destroyed; and any expenses incurred in this behalf (including the cost, if any, of analysing the food or a sample thereof) shall be recoverable from the person from whom the food was seized as if it were a tax due from him to the local authority or any of the local authorities concerned.
(c) If the authority or person aforesaid is of opinion that such food is wholesome and fit for human consumption, the food shall be returned to the person from whom it was seized; and the cost, if any, of analysing the food or a sample thereof shall be borne by the local authority or local authorities concerned.
134. Penalties for offences against Act, etc:- (1) Whoever-
(a) contravenes any of the provisions of this Act specified in the first and second columns of Schedule I; or
(b) contravenes any rule or order made under any of the provisions so specified; or
(c) fails 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, shall be punished with fine which may extend to the amount mentioned in that behalf in the fourth column of the said schedule.
(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, 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.
Explanation:- The entries in the third column of Schedules I and II headed "Subject" are not intended as definitions of the offences described in the provisions specified in the first and second columns thereof, or even as abstracts of those provisions, but are inserted merely as references to the subject dealt with therein.
135.Penalty for preventing entry of executive authority or Health Officer. Every person who prevents the executive authority or the Health Officer or any person to whom the executive authority or the Health Officer has lawfully delegated his powers of entering on or into any land or building, from exercising his lawful power of entering thereon or thereinto, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
138. Cognizance of offences against the Act. No person shall be tried for any offence against the provisions of this Act, or of any rule, or by-law made under it, unless complaint is made within three months of the commission of the offence, by the police, or the executive authority or the Health Officer, or by a person expressly authorized in this behalf by the local authority, the executive authority or the Health Officer:
Provided that nothing contained in this section shall affect the provisions of the Code of Criminal Procedure, 1973, in regard to the power of certain Magistrates to take cognizance of offences upon information received or upon their own knowledge or suspicion.
139. Powers of Police Officers to arrest offenders against Act, etc. Any police officer who sees a person committing an offence against any of the provisions of this Act or of any rule or by-law made thereunder, may arrest such person, if his name and address are unknown to the officer and such person on demand declines to give his name and address or gives a name and address which the officer has reason to believe to be false.
140. Powers of executive officer and public health staff to arrest offenders against Act, etc. (1) The executive officer of a local authority or any member of the public health establishment of a local authority not below the rank of Health or Sanitary Inspector, who sees a person committing any of the offences specified in sub-section (2) in the area over which the local authority has jurisdiction may arrest such person, if his name and address are unknown to the executive officer or member aforesaid and such person on demand, declines to give his name and address or gives a name and address which such officer or member has reason to believe to be false. Any person so arrested shall be handed over to the officer in charge of the nearest police station, as expeditiously as possible.
(2) The offences referred to in sub-section (1) are
(a) offences against any of the provisions of this Act or of any rule or by-law made thereunder; and
(b) offences falling under any of the provisions of the Acts mentioned below, if such provisions are in force in the area over which the local authority has jurisdiction
(i) Chapters VII to XIII, both inclusive, of the Madras City Municipal Act, 1919 read with section 357 of that Act and Schedules VII and VIII thereto;
(ii) Chapters VII to XIII, both inclusive, of the Tamil Nadu District Municipalities Act, 1920, read with section 313 of that Act and Schedules VII and VIII thereto;
(iii) Chapters VIII to XI, both inclusive, of the Tamil Nadu Local Boards Act, 1920 read with section 207 of that Act and Schedules VIII and IX thereto;
(iii-a) Sections 79, 81, 82, 84, 85, 87, 88, 90 to 92 and 123 of the Tamil Nadu Village Panchayats Act, 1950, read with section 115 of that Act and Schedules I and II thereto;
(iv) Sections 53 and 73 of the Madras City Police Act, 1888;
(v) Clauses (9) and (11) of sections 3 and section 4 and 10 of the Towns Nuisances Act, 1889 and
(vi) Section 5 of the Tamil Nadu Prevention of Adulteration Act 1918.
144. Act to override other enactments. If any provision relating to public health contained in any other enactment in force in the State of Tamil Nadu is repugnant to any provision contained in this Act, the latter provision shall prevail and the former provision shall, to the extent of the repugnancy, be void.
TAMIL NADU PANCHAYATS ACT:
110. Duty of village panchayat to provide for certain matters. Subject to the provisions of this Act and the rules made thereunder, it shall be the duty of village panchayat, within the limits of its funds, to make reasonable provision for carrying out the requirements of the panchayat village in respect of the following matters, namely :
(a) the construction, repair and maintenance of all village roads, that is to say, all public roads in the village (other than those classified as National Highways, State Highways, major district roads and panchayat union roads) and of all bridges, culverts, road-dams and causeways on such roads ;
(aa) the extension of village-sites and the regulations of building ;
(b) the lighting of public roads and public places in built-up areas ;
(c) the construction of drains and the disposal of drainage water and sullage not including sewage ;
(d) the cleaning of streets, the removal of rubbish heaps, jungle growth and prickly-pear, the filling in of disused wells, insanitary ponds, pools, ditches, pits or hollows and other improvements of the sanitary condition of the village ;
(e) the provision of public latrines and arrangements to cleanse latrines whether public or private ;
(/) the opening and maintenance of burial and burning grounds ;
(g) the sinking and repairing of wells, the excavation, repair and maintenance of ponds or tanks and the construction and maintenance of water-works 1 [for the supply of water for drinking, washing] and bathing purposes ; and
(h) such other duties as the Government may, by notification, impose.
130. Fencing of buildings or lands and pruning of hedges and trees. Where a public road is vested in a panchayat union council or village panchayat, the commissioner* or executive authority may, by public notice, require the owner or occupier of any building or land near such road to
(a) fence the same to the satisfaction of the commissioner or executive authority;
(b) trim or prune any hedges bordering on such road so that they may not exceed such height from the level of the adjoining roadway as the commissioner or executive authority may determine ; or
(c) cut and trim any hedges or trees overhanging such road and obstructing it or the view of traffic or causing it damage; or
(d) lower an enclosing wall or fence which, by reason of its height and situation, obstructs the view of traffic so as to cause danger.
131. Prohibition against obstructions in or over public roads, etc. (1) No person shall, *except as permitted by rules made under this Act and except in accordance with the conditions imposed by any licence made requisite by such rules
(a) build any wall or erect any fence or other obstruction or projection or make any encroachment whatsoever, whether permanent or temporary, '[in or over any public road or any property vested in or belonging to or regulated or owned by, a village panchayat or panchayat union council] ;
(b) make any hole or deposit any matter '[in or upon any public road or any property vested in or belonging to or regulated or owned by, a village panchayat or panchayat union council] ;
(c) work a quarry in or remove stone, earth or other material from any place within twenty metres of a public road or of other immovable property vesting in or belonging to a village panchayat or panchayat union council, provided that nothing in this clause shall be deemed to apply to any work which, in the opinion of the Inspector, is done in connection with a bona fide agricultural operation ;
(d) erect any building over any drain or any part thereof;
(e) plant any tree on any public road or other property vesting in or belonging to a village panchayat or a panchayat union council; or
(f) fell, remove, destroy, lop or strip bark, leaves, or fruits from, or otherwise damage, any tree which is growing on any such public road or other property or on any poramboke land, the use of which is regulated by a village panchayat under section 134 or section 135 and the right to which has not been established by such person as vesting in or belonging to him.
(2) It shall be the duty of the Village Administrative Officer of every revenue village to report on encroachments on properties vested in village panchayats or panchayat union councils to the executive authority or the commissioner concerned and to the officer of the Revenue Department, and '[it shall be the duty of the executive authority or the commissioner concerned either suo motu or on obtaining a report from the Village Administrative Officer in this regard to institute proceedings under this Act] and secure the removal of the encroachments within such time as may be specified by the Government by general or special order. If the removal of the encroachments has not been secured within the period specified in such order, the officers of the Revenue Department shall institute proceedings under the Tamil Nadu Land Encroachment Act, 1905 (Tamil Nadu Act III of 1905) and secure such removal.
148. Licensing of private markets. (1) No person shall open a new private market or continue to keep open a private market unless he has obtained a licence from the village panchayat or panchayat union council, as the case may be, to do so. Such licence shall be renewed every year.
(2) (a) The village panchayat or panchayat union council, as the case may be, shall grant the licence applied for subject to such conditions as it may think fit as to supervision and inspection, sanitation, weights and measures to be used, rents and fees to be charged and such other matters *as may be prescribed.
(b) The village panchayat or panchayat union council, as the case may be, may, modify the conditions of licence to take effect from a specified date.
(c) The village panchayat or panchayat union council, as the case may be, may at any time, suspend or cancel any licence granted under clause (a) for breach of the conditions thereof.
(d) Any person aggrieved by an order of the village panchayat or panchayat union council under clauses (a), (b) or (c) may appeal against such order to the Inspector who may, if he thinks fit, suspend the execution of the order pending the disposal of the appeal.
(3) (a) Any person claiming to levy in a private market lawfully established prior to the coming into force of the Madras Local Boards Act, 1884 (Madras Act V of 1884) fees of the nature specified in sub-section (2) of section 147, shall apply to the Inspector for a certificate recognizing his right in that behalf; and the Inspector shall pass orders on such application after giving due notice to the village panchayat or panchayat union council, as the case may be, and considering any representations made by it.
(b) Any person aggrieved by an order of the Inspector refusing to grant a certificate under clause (a) may, within six months from the date of communication of such order, institute a suit to establish the right claimed by him, and subject to the result of such suit, the Inspector's order shall be final.
(4) When a licence granted under sub-section (2) does not permit the levy of any fee, it shall be granted free of charges; but when such permission is given, a fee not exceeding fifteen per cent of the gross income of the owner from the market in the preceding year shall be charged by the village panchayat or panchayat union council, as the case may be, for such licence.
(5) The village panchayat or panchayat union council, as the case may be, or any officer duly authorised by it may, close a private market which is unlicensed or the licence for which has been suspended or cancelled, or which is held or kept open contrary to the provisions of this Act.
149. Prohibition of sale in unlicensed private markets, etc. No person shall sell or expose for sale any animal or article
(a) in any public or licensed private market without the permission of the executive authority or commissioner or licensee, as the case may be, or of any person authorised by him, or
(b) in any unlicensed private market.
151. Prohibition against sale in public roads. The executive authority or commissioner may, with the sanction of the village panchayat or panchayat union council, as the case may be, prohibit by public notice or licence or regulate the sale or exposure for sale of any animal or article in or upon any public road or place or part thereof.
154. Public landing places and cart-stands, etc. Subject to such rules *as may be prescribed, the village panchayat may
(a) provide public landing places, halting places and cart-stands (which last expression includes stands for animals and vehicles of any description including motor vehicles) and levy fees for their use ; and
(b) where any such place or stand has been provided, prohibit the use for the same purpose by any person, within such distance thereof of any public place or the sides of any public road as the village panchayat may, subject to the control of the Inspector, specify.
156. Prohibition or regulation of the use of places for slaughtering animals and the licensing of slaughterers. The Government shall have power to make *rules for
(a) prohibiting or regulating the slaughter, cutting up or skinning of animals specified in the rules on all occasions not excepted therein, at places other than public slaughter-houses ;
(b) licensing person to slaughter animals specified in the rules for purposes of sale to the public ; and
(c) the inspection of slaughter-houses and of the meat therein and the payment of remuneration to the officers employed for such inspection.
159. Purposes for which places may not be used without a licence. (1) The Government may, by notification, specify the purposes which in their opinion, are likely to be offensive or dangerous to human life or health or property.
(2) The village panchayat may, with the previous approval of the prescribed authority, notify that no place within the limits of the panchayat village shall be used for any of the purposes specified in the notification issued under sub-section (1) without a licence and except in accordance with the conditions specified in such licence.
(3) No notification issued under sub-section (1) or sub-section (2) shall take effect until sixty days from the date of its publication.
(4) The village panchayat shall be the authority competent to grant the licence or to refuse to grant it.
160. Permission for construction of factories and the installation of machinery. No person shall, without the permission of the panchayat union council in panchayat villages
and except in accordance with the conditions specified in such permission,
(a) construct or establish any factory, workshop or workplace in which it is proposed to employ steam power, water power or other mechanical power or electrical power, or
(b) install in any premises any machinery or manufacturing plant driven by any power as aforesaid, not being machinery or manufacturing plant exempted by the rules.
162. Modification of the Tamil Nadu Places of Public Resort Act, 1888. Notwithstanding anything contained in the Tamil Nadu Places of Public Resort Act, 1888 (Tamil Nadu Act II of 1888), when the Government extend that Act to any village, or part thereof
(a) the authority to whom application shall be made for a licence under the Act in respect of any place or building to be used exclusively for purpose other than the holding of cinematograph exhibitions, and who may grant or refuse such licence, shall be the commissioner in the case of panchayat villages ;
(b) the appeal from the order of the commissioner granting, refusing, revoking or suspending a licence, shall lie to the panchayat union council;
(c) the income derived from fees on licences under this section shall, if received by the panchayat union council be credited to the funds of the village panchayats concerned.
245. General provisions regarding penalties specified in the Schedules. (1) Whoever
(a) contravenes any of the provisions of this Act specified in the first and second columns of Schedule II; or
(b) contravenes any rule or order made under any of the provisions so specified ; or
(c) fails to comply with any directions lawfully given to him, or any requisition lawfully made upon him under or in pursuance of any of the said provisions,
shall be punishable with fine which may extend to the amount mentioned in that behalf in the fourth column of the said Schedule."
55.Articles 21 and 47 of the Constitution of India read as follows:
"21. Protection of life and personal liberty:- No person shall be deprived of his life or personal liberty except according to procedure established by law.
47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health:- The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health."
56.'Public Health' Defined:- 'Public health is the science and the art of preventing disease, prolonging life, and promoting physical health and efficiency through organized State effort, by the sanitation of the environment, the control of infections, the educa-tion of the individual in principles of personal hygiene,the organisation of medical and nursing service for the early diagnosis and preventive treatment of disease, and the development of the social machinery which will ensure to every individual a standard of living adequate for the maintenance of health: It is the organizing of these benefits in such a fashion as to enable every citizen to realize his birthright of health and longevity'.
57.Section 44 of the Public Health Act, confers power on the Public Health Officer to abate nuisance, if he is satisfied, whether upon information given under this section 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.
58. Section 45 also confers powers on the local authority to abate nuisance. When there is an existence of nuisance, as defined under the Public Health Act, it should be the paramount consideration of the Health officer or Local Authority, either to direct the person causing nuisance to abate nuisance, by giving notice or to cause the nuisance abated by himself. If the person responsible for causing nuisance absconds or the authority is unable to serve the notice or delays the receipt of the notice and when the nuisance continues, the said authority shall take such steps, as may be necessary, to abate nuisances.
59.When the nuisance arises from any defect of a structural character, the notice shall be served on the owner of the premises; and when the person causing the nuisance cannot be found, the owner or the occupier of the premises can be instructed to abate nuisance or the Health Officer or Local Authority may himself forthwith do whatever, he considers necessary to abate nuisance and to prevent a recurrence thereof. Of course, for exercising the power under the Act, the competent authority under the Public Health Act or any other Acts, relating to public health and public care, has to arrive at a subjective satisfaction of the existence of nuisance, and abatement has to be done immediately. The only requirement for exercise of power, under Section 44 of the Act, is the existence of nuisance. It is not always necessary that the competent authority has to wait till the person causing nuisance abates nuisance.
60."Nuisance", as defined in Sub-Section 25 of Section 2 of the Act, includes any act, omission, place or thing which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell or hearing or disturbance to rest or sleep or which is or may be dangerous to life or injurious to the health or property of the public or the people in general who dwell or occupy property in the vicinity, or persons who may have occasion to use any public right.
61.Section 16 deals with authorization of Health Officer to perform the functions of executive authority in public health matters, notwithstanding anything contained in the Madras City Municipal Act, 1919, the Tamil Nadu District Municipalities Act, 1920, the Tamil Nadu Local Boards Act, 1920 (The Tamil Nadu Village Panchayats Act, 1950] the Tamil Nadu Prevention of Adulteration Act, 1918, and the Places of Public Resort Act, 1888. The Health Officer or the local authority shall perform such of the functions, and discharge such of the duties, of its executive authority in regard to public health matters under any of the provisions applicable to such local authority contained in the acts aforesaid, subject to such appeal and control as the Government may, by general or special order, determine.
62. The three essential components of negligence are as follows:
* The existence of a duty to take care, which is owed by the doctor to the complainant;
* The failure to attain that standard of care, prescribed by the law, thereby committing the breach of such duty;
* Damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant.
63.The above is the ordinary legal meaning of negligence. But for professionals such as medical practitioners, they must satisfy "Bolam test", as laid down by the Supreme Court. The name has been derived from a English case in Bolam vs. Friern Hospital Management Committee, [1957 All.ER 118], wherein, the Queen s Bench Division of the British Court held: A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. The Supreme Court in the case of Jacob Mathew vs. State of Punjab [(2005) 6 SCC 1], held that,
"The standard of care, when assessing the practice as adopted is judged in the light of the knowledge available at the time (of the incident), and not at the date of trial."
64.In State of Haryana v. Smt.Santra reported in 2000 (3) MLJ 98 (SC), wherein, at Paragraphs 10 to 13, while explaining the scope of negligence, with reference to skill, care and caution required to be taken by a member of medical profession, held as follows:
"10. Negligence is a `tort'. Every Doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. This is what is known as `implied undertaking' by a member of the medical profession that he would use a fair, reasonable and competent degree of skill. In Bolam vs. Friern Hospital Management Committee (1957) 2 All ER 118, McNair, J. summed up the law as under :
"The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he conforms with one of these proper standards, then he is not negligent."
11.This decision has since been approved by the House of Lords in Whitehouse vs. Jordon (1981) 1 All ER 267 (HL); Maynard vs. West Midlands Regional Health Authority (1985) 1 All ER 635 (HL); and Sidway vs. Bathlem Royal Hospital (1985) 1 All ER 643 (HL).
12. In two decisions rendered by this Court, namely, Dr.Laxman Balakrishna Joshi v. Dr.Trimbak Bapu Godbole & Anr [AIR 1969 SC 128] and A.S.Mittal v. State of U.P., [AIR 1989 SC 1570], it was laid down that when a Doctor is consulted by a patient, the former, namely, the Doctor owes to his patient certain duties which are (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; and (c) a duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his Doctor. In a recent decision in Poonam Verma vs. Ashwin Patel & Ors. (1996) 4 SCC 332 = AIR 1996 SC 2111 where the question of medical negligence was considered in the context of treatment of a patient, it was observed as under :
"40. Negligence has many manifestations - it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or Negligence per se, which is defined in Black's Law Dictionary as under : Negligence per se: Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes."
13.It was also observed that where a person is guilty of Negligence per se, no further proof is needed.
65.In Dr. Laxman Balkrishna Joshi vs. Dr. Trimbak Bapu Godbole reported in AIR 1969 SC 128, the Supreme Court at Paragraph 11, held as follows:
"11. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties viz. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires (cf. Halsbury's Laws of England 3rd Edn. Vol. 26 p. 17). The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency. But the question is not whether the judgment or discretion in choosing the treatment be exercised was right or wrong, for, as Mr Purshottam rightly agreed, no such question arises in the present case because if we come to the same conclusion as the High Court viz. that what the appellant did was to reduce the fracture without giving anaesthetic to the boy, there could be no manner of doubt of his being guilty of negligence and carelessness. He also said that he was not pressing the question whether in this action filed under the Fatal Accidents Act (13 of 1858) the respondents would be entitled to get damages. The question, therefore, is within a small compass, namely, whether the concurrent findings of the trial court and the High Court that what the appellant did was reduction of the fracture without giving anaesthetic to the boy and not mere immobilisation with light traction as was his case, is based on evidence or is the result of mere conjecture or surmises or of misunderstanding of that evidence."
66.In Vincent Panikurlangara vs. Union of India reported in (1987) 2 SCC 165, at Paragraph 16, the Supreme Court held as follows:
"16. A healthy body is the very foundation for all human activities. That is why the adage Sariramadyam Khaludharma Sadhanam . In a welfare State, therefore, it is the obligation of the State to ensure the creation and the sustaining of conditions congenial to good health. This Court in Bandhua Mukti Morcha v. Union of India [1984 (3) SCC 161] aptly observed: (SCC p. 183. para 10)
It is the fundamental right of everyone in this country, assured under the interpretation given to Article 21 by this Court in Francis Mullin case [Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608] to live with human dignity, free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of the workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State neither the Central Government nor any State Government has the right to take any action which will deprive a person of the enjoyment of these basic essentials.
While endorsing what has been said above, we would refer to Article 47 in Part IV of the Constitution. That article provides:
The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
This article has laid stress on improvement of public health and prohibition of drugs injurious to health as one of the primary duties of the State. In Akhil Bharatiya Soshit Karamchari Sangh v. Union of India [(1981) 1 SCC 246], this Court has pointed out that: (SCC pp. 308-09, para 123)
The fundamental rights are intended to foster the ideal of a political democracy and to prevent the establishment of authoritarian rule but they are of no value unless they can be enforced by resort to courts. So they are made justiciable. But, it is also evident that notwithstanding their great importance, the Directive Principles cannot in the very nature of things be enforced in a court of law.... It does not mean that directive principles are less important than fundamental rights or that they are not binding on the various organs of the State.
In a series of pronouncements during the recent years this Court has culled out from the provisions of Part IV of the Constitution these several obligations of the State and called upon it to effectuate them in order that the resultant pictured by the Constitution Fathers may become a reality. As pointed out by us, maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community and on the betterment of these depends the building of the society of which the Constitution makers envisaged. Attending to public health, in our opinion, therefore, is of high priority perhaps the one at the top."
67.In Virender Gaur vs. State of Haryana reported in 1995 (2) SCC 577, the Supreme Court, held as follows:
"The word "environment" is of broad spectrum which brings within its ambit "hygienic atmosphere and ecological balance". It is, therefore, not only the duty of the State but also the duty of every citizen to maintain hygienic environment. The State, in particular has duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. Environmental, ecological, air, water, pollution, etc. should be regarded as amounting to violation of Article 21. Therefore, hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environment. Environmental protection, therefore, has now become a matter of grave concern for human existence. Promoting environmental protection implies maintenance of the environment as a whole comprising the man-made and the natural environment. Therefore, there is a constitutional imperative on the State Government and the municipalities, not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote, protect and improve both the man-made and the natural environment."
68.In Consumer Education & Research Centre v. Union of India reported in 1995 (3) SCC 42, a three-Judge Bench of this Court held that the jurisprudence of personhood or philosophy of the right to life envisaged in Article 21 of the Constitution enlarges its sweep to encompass human personality in its full blossom with invigorated health which is a wealth to the workman to earn his livelihood, to sustain the dignity of person and to live a life with dignity and equality. The expression life assured in Article 21 does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to livelihood, better standard of living, hygienic conditions in the workplace and leisure facilities and opportunities to eliminate sickness and physical disability of the workmen. Health of the workman enables him to enjoy the fruits of his labour, to keep him physically fit and mentally alert. Medical facilities, therefore, is a fundamental and human right to protect his health. In that case health insurance, while in service or after retirement was held to be a fundamental right and even private industries are enjoined to provide health insurance to the workmen.
69.In Poonam Verma vs. Ashwin Patel reported in (1996) 4 SCC 332, the Supreme Court, while dealing with negligence, at Paragraphs 14 to 17, held as follows:
"14. Negligence as a tort is the breach of a duty caused by omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do. (See: Blyth v. Birmingham Waterworks Co. [(1856) 11 Exch 781]; Bridges v. Directors of North London Rly. [(1874) LR 7 HL 213]; Governor General in Council v. Saliman [ILR (1948) 27 Patna 207]; Winfield and Jolowicz on Tort.)
15. The definition involves the following constituents:
(1)a legal duty to exercise due care;
(2)breach of the duty; and
16. The breach of duty may be occasioned either by not doing something which a reasonable man, under a given set of circumstances would do, or, by doing some act which a reasonable prudent man would not do.
17. So far as persons engaged in the medical profession are concerned, it may be stated that every person who enters into the profession, undertakes to bring to the exercise of it, a reasonable degree of care and skill. It is true that a doctor or a surgeon does not undertake that he will positively cure a patient nor does he undertake to use the highest possible degree of skill, as there may be persons more learned and skilled than himself, but he definitely undertakes to use a fair, reasonable and competent degree of skill. This implied undertaking constitutes the real test, which will also be clear from a study and analysis of the judgment in Bolam v. Friern Hospital Management Committee [(1957) 2 All ER 118] in which, McNair, J., while addressing the jury summed up the law as under:
The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. I do not think that I quarrel much with any of the submissions in law which have been put before you by counsel. Counsel for the plaintiff put it in this way, that in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if a medical man conforms with one of those proper standards then he is not negligent.
70.While dealing with the practice of Doctors in other forms of medicine, at Paragraphs 23 to 28 and 30 to 42, the Supreme Court, held as follows:
"23. Respondent 1, at the relevant time, was practising at Bombay and admittedly he was also registered under the Bombay Homoeopathic Practitioners' Act, 1959, in which, Homoeopathy has been defined under Section 2(8) as under:
2.(8) Homoeopathy means the Homoeopathic system of medicine and includes the use of Biochemic remedies.
24. Practitioner has been defined in Section 2(12) while Registered Practitioner is defined in Section 2(16). Recognised Medical Qualification , according to Section 2(14-A) means any of the medical qualifications in Homoeopathy, included in the Second or Third Schedule to the Homoeopathy Central Council Act, 1973.
25. Registration of practitioners is dealt with in Chapter IV of the Act. Section 20 provides that the Registrar shall prepare and maintain a register of Homoeopathic practitioners for the State of Maharashtra in accordance with the provisions of the Act. The particulars which are required to be entered in this register and the persons possessing requisite qualifications, whose names would be entered therein, are indicated in other sub-sections of this section.
26. Sub-section (12)(a) of Section 20 provides as under:
20. (12)(a) Every registered practitioner shall be given a certificate of registration in the form prescribed by rules and shall practise Homoeopathy only. The registered practitioner shall display the certificate of registration in a conspicuous place in his dispensary, clinic or place of practice.
27. On registration, a person gets the right to practise. This section also provides that it shall be lawful for such person to use, after his name, the words Registered Homoeopathic Practitioner in full to indicate that his name has been entered in the register under the Act.
28. Under Section 23, the Maharashtra Council of Homoeopathy has been given the power to remove the name of any registered practitioner if he is found guilty of any misconduct. Explanation appended to Section 23(1) defines misconduct, inter alia, as any conduct which is infamous in relation to the profession.
30. The scheme of the Act, therefore, indicates that a person gets the right to practise in Homoeopathy on being registered as a medical practitioner. The certificate of registration issued to such practitioner requires him to practise in HOMOEOPATHY ONLY as is clear from the words AND SHALL PRACTISE HOMOEOPATHY ONLY used in sub-section (12)(a) of Section 20. Apart from the right to practice, other rights which become immediately available to a person on registration of his name are indicated in Section 28 which, inter alia, includes right to treat patients according to the Homoeopathic system of medicine.
31. Right to practise in Allopathic system of medicine as also the right to practise in Ayurvedic or Unani system of medicine is regulated by separate independent Central and local Acts. Indian Medical Council Act, 1956 deals, inter alia, with the registration of persons possessing requisite qualifications as medical practitioner in Allopathic system as also recognition of medical qualifications and examinations by Universities or Medical Institutions in India.
32. Section 15 of this Act provides that any person possessing any of the qualifications mentioned in the Schedule appended to the Act, may apply for the registration of his name. Sub-sections 2 and 3 of Section 15, which are extremely relevant, are quoted below:
15. (2) Save as provided in Section 25, no person other than a medical practitioner enrolled on a State Medical Register,
(a) shall hold office as physician or surgeon or any other office (by whatever designation called) in Government or in any institution maintained by a local or other authority;
(b) shall practise medicine in any State;
(c) shall be entitled to sign or authenticate a medical or fitness certificate or any other certificate required by any law to be signed or authenticated by a duly qualified medical practitioner;
(d) shall be entitled to give evidence at any inquest or in any court of law as an expert under Section 45 of the Indian Evidence Act, 1872 on any matter relating to medicine.
(3) Any person who acts in contravention of any provision of sub-section (2) shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
33. The impact of the above provisions is that no person can practise medicine in any State unless he possesses the requisite qualification and is enrolled as a medical practitioner on the State Medical Register. The consequences for the breach of these provisions are indicated in sub-section (3). If a person practises medicine without possessing either the requisite qualification or enrolment under the Act on any State Medical Register, he becomes liable to be punished with imprisonment or fine or both.
34. Apart from the Central Act mentioned above, there is the Maharashtra Medical Council Act, 1965 (46 of 1965) dealing with the registration of medical practitioners and recognition of qualification and medical institutions. Section 2(d) defines Medical Practitioner or Practitioner as under:
2. (d) medical practitioner or practitioner means a person who is engaged in the practice of modern scientific medicine in any of its branches including surgery and obstetrics, but not including veterinary medicine or surgery or the Ayurvedic, Unani, Homoeopathic or Biochemic system of medicine. (emphasis supplied)
35. It will be seen that the definition consists of two distinct parts; the first part contains the conclusive nature of phraseology and the latter part is the exclusionary part which specifically excludes Homoeopathic or Biochemic system of medicine. A register of medical practitioners is to be maintained in terms of the mandate contained in Section 16(1) of the Act. Under sub-section (3), a person possessing requisite qualification and on payment of requisite fee can apply for registration of his name in the aforesaid Register.
36. A combined reading of the aforesaid Acts, namely, the Bombay Homoeopathic Practitioners' Act, 1959, the Indian Medical Council Act, 1956 and the Maharashtra Medical Council Act, 1965 indicates that a person who is registered under the Bombay Homoeopathic Practitioners' Act, 1959 can practise Homoeopathy only and that he cannot be registered under the Indian Medical Council Act, 1956 or under the State Act, namely, the Maharashtra Medical Council Act, 1965, because of the restriction on registration of persons not possessing the requisite qualification. So also, a person possessing the qualification mentioned in the Schedule appended to the Indian Medical Council Act, 1956 or the Maharashtra Medical Council Act, 1965 cannot be registered as a medical practitioner under the Bombay Homoeopathic Practitioners' Act, 1959, as he does not possess any qualification in Homoeopathic system of medicine. The significance of mutual exclusion is relevant inasmuch as the right to practice in any particular system of medicine is dependent upon registration which is permissible only if qualification, and that too, recognised qualification, is possessed by a person in that system.
37. It is true that in all the aforesaid systems of medicine, the patient is always a human being. It is also true that Anatomy and Physiology of every human being all over the world, irrespective of the country, the habitat and the region to which he may belong, is the same. He has the same faculties and same systems. The Central Nervous system, the Cardio-Vascular system, the Digestive and Reproductive systems etc. are similar all over the world. Similarly, emotions, namely, anger, sorrow, happiness, pain etc. are naturally possessed by every human being.
38. But merely because the Anatomy and Physiology are similar, it does not mean that a person having studied one system of medicine can claim to treat the patient by drugs of another system which he might not have studied at any stage. No doubt, study of Physiology and Anatomy is common in all systems of medicines and the students belonging to different systems of medicines may be taught Physiology and Anatomy together, but so far as the study of drugs is concerned, the Pharmacology of all systems is entirely different.
39. An ailment, if it is not surgical, is treated by medicines or drugs. typhoid fever, for example, can be treated not only under Allopathic system of medicine, but also under the Ayurvedic, Unani and Homoeopathic systems of medicines by drugs prepared and manufactured according to their own formulae and pharmacopoeia. Therefore, a person having studied one particular system of medicine cannot possibly claim deep and complete knowledge about the drugs of the other system of medicine.
40. The bane of Allopathic medicine is that it always has a side-effect. A warning to this effect is printed on the trade label for the use of the person (doctor) having studied that system of medicine.
41. Since the law, under which Respondent 1 was registered as a medical practitioner, required him to practise in HOMOEOPATHY ONLY, he was under a statutory duty not to enter the field of any other system of medicine as, admittedly, he was not qualified in the other system, Allopathy, to be precise. He trespassed into a prohibited field and was liable to be prosecuted under Section 15(3) of the Indian Medical Council Act, 1956. His conduct amounted to an actionable negligence particularly as the duty of care indicated by this Court in Dr Laxman Joshi case [AIR 1969 SC 128] WAS BREACHED BY HIM ON ALL THE THREE COUNTS INDICATED THEREIN.
42. Negligence has many manifestations it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or negligence per se, which is defined in Black's Law Dictionary as under:
Negligence per se. Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes.
71.In Re. vs. Union of India [(2002) 3 SCC 31], the issue of rights of inmates of mental asylum was raised. This petition sought directions for implementation of provisions of Mental Health Act, 1987 to prevent another mishap of the kind in mental asylum in Tamil Nadu. In light of the provisions of Mental Health Act, Supreme Court issued following directions for its implementation:
(i) Every State and Union Territory must undertake a district-wise survey of all registered/unregistered bodies, by whatever name called, purporting to offer psychiatric/mental health care. All such bodies should be granted or refused licence depending upon whether minimum prescribed standards are fulfilled or not. In case licence is rejected, it shall be the responsibility of SHO of the concerned police station to ensure that the body stops functioning and patients are shifted to government mental hospitals.
(ii) Chief Secretary or Additional Chief Secretary designated by him shall be the nodal agency to coordinate all activities involved in implementation of the Mental Health Act, 1987, the Persons with Disabilities (Equal Opportunities, protection of rights and full participation) Act, 1995 and National Trust for Welfare of Persons with Autism, Cerebral Palsy, mental Retardation and Multiple Disability Act, 1999. He shall ensure that there are no jurisdictional problems or impediments to the effective implementation of the three Acts between different Ministries or Departments. At the Central level, Cabinet Secretary, Government of India or any Secretary designated by him shall be the nodal agency for the same purpose.
(iii) The cabinet Secretary, Union of India shall file an affidavit in SC within one month from the date of this order indicating:
a) The contribution that has been made and that is proposed to be made under Section 21 of the 1999 Act which would constitute corpus of the National Trust.
b) Policy of the central Government towards setting up at least one Central Government-run mental hospital in each State and union Territory and definite time schedule for achieving the said objective.
c) National policy, if any framed under Section 8(2)9b) of the 1995 Act.
d) In respect of the States/UT that do not have even one full-fledged State Government-run mental hospital, the Chief Secretary of the State/UT must file an affidavit within one month from date of this Order indicating steps being taken to establish such full-fledged State Government-run mental hospital in the State/UT and a definite time schedule for establishment of the same.
e) Both Central and State Governments shall undertake a comprehensive awareness campaign with a special focus to educate people as to provisions of law relating to mental health, rights of mentally challenged persons, the fact that chaining of mentally challenged persons is illegal and mental patients should be sent to doctors and not to religious places for treatment.
(iv) Every State shall file an affidavit stating:
a) Whether the state Mental Health Authority under Section 3 of the 1987 Act exists in the State and if so, when was it set up.
b) If it does not exist, the reason thereof and when such an Authority is expected to be established and operationalised.
c) The dates of meetings of those Authorities, which already existed, from the date of inception till date and a short summary of the decisions taken.
d) A statement that the State shall ensure that meetings of the Authorities take place in future at least once in every four months or at more frequent intervals depending on exigency and that all the statutory functions and duties of such Authorities are duly discharged.
e) The number of prosecutions, penalties or other punitive/coercive measures is taken, if any, by each State under the 1987 Act.
72.In Saarthak Registered Society and another vs. Union of India [(2002) 3 SCC 31] as a continuation to the above order, the Supreme Court passed the following directions:
1. Every State and Union Territory shall undertake an assessment survey and file the report on the following aspects:
a. Estimated availability of mental health resources including psychiatrists, psychologists, psychiatric social workers and nurses in both public and private sector
b. Type of Mental Health Delivery System available in the State including available bed strength, outpatient and rehabilitation services
c. An estimate of the Mental Health Services that would be required considering the population of the State and the incidence of mental illness
2. The Chief Secretary of each State and Administrator/Commissioner of every UT to file affidavit stating clearly,
a. Whether any minimum standards have been prescribed for licensing of Mental Health Institutions in the State/UT and in case such minimum standards have been prescribed
b. Whether each of the existing registered Mental Health Institutions in the State/ UT whether private or run by the State meet the basic minimum standards as on date of passing this order and if not, what steps have been taken to ensure compliance of licensing conditions
c. Number of unregistered bodies providing psychiatric/mental health care exist in the State and whether any of them comply with minimum standards.
d. Whether any mentally challenged person is found to be chained in the State.
3. The report on the Need Assessment Survey and affidavit was to be submitted to the Health Secretary, Union of India within a stipulated time. The Health Secretary was to compile them and present it to the Court.
4. Further Union of India was directed to:
a. Frame a policy and initiate steps for establishment of at least one Central Government run Mental Health Hospital in each State
b. Examine the feasibility of formulating uniform rules regarding standard of services for both public and private sector Mental Health Services
c. Constitute a committee to give recommendations on the issue of care of mentally challenged persons who have no immediate relatives or who have been abandoned by relatives.
d. Frame norms for non-government organizations working in the field of mental health and to ensure that the services rendered by them are supervised by qualified/trained persons.
5. All State Governments were also directed to frame policy and initiate steps for establishment of at least one State Government run Mental Health Hospital in each State.
6. Two members of the Legal Aid Board of each State were appointed to make monthly visit to such institutions to help the patients and their relatives in applying for discharge if they have been fully discharged.
7. Two members of the Legal Aid and Judicial Officer would explain their rights to patients and their guardians at the time of admission to the institutions.
8. Form a Board of Visitors as required under the Mental Health Act to every State or private institution at least once a month.
9. Envisage a scheme for rehabilitation process for people who are not having any backing or support in the community."
73.In Savita Garg vs. Director, National Heart Institute [2004 (8) SCC 56], the Appellant s husband was admitted to the National Heart Institute and according to the Appellant her husband died due to negligence of doctors and nurses treating him. The National Forum dismissed her case as she had not joined the treating doctors and nurses as parties to the case. She approached the Supreme Court. At Paragraphs 5, 13 to 16, held as follows:
"5. It is a common experience that when a patient goes to a private clinic, he goes by the reputation of the clinic and with the hope that proper care will be taken by the hospital authorities. It is not possible for the patient to know which doctor will treat him. When a patient is admitted to a private clinic/hospital it is the hospital/clinic which engages the doctors for treatment. In the present case, the appellant's husband was admitted to the best of the hospitals and it was not possible for the appellant to find out who was the best doctor and who was not. Normally, private clinics go by their reputation and people look forward for best treatment when they are run commercially. It is the responsibility of the clinics that they must provide the best of services when they charge for the services rendered by them. In case it is found that service rendered by the clinic or hospital, as the case may be, is not up to the mark and it involves some negligence on their part for which the patients suffer, then they are bound to reimburse them. They charge fees for the services rendered by them and they are supposed to bestow the best care. Looking at the present appeal, the whole claim petition was dismissed simply on the ground that the treating doctor was not impleaded as a party.
13. In the case of Collins v. Hertfordshire County Council [(1947) 1 All ER 633] while undergoing an operation, a patient in a county council hospital was killed by an injection of cocaine which was given by the operating surgeon in the mistaken belief that it was procaine. The operating surgeon had ordered procaine on the telephone, but the resident house surgeon (who was then unqualified) had misheard procaine as cocaine , and had told the pharmacist to dispense a mixture which was, in fact, lethal. The pharmacist dispensed the mixture without making further inquiry and without requiring the written instruction of a qualified person, and the operating surgeon had given the injection without checking that it was what he had ordered. The operating surgeon, the house surgeon and the pharmacist were all three in the full-time or part-time employment of the council. In an action by the patient's widow against the county council and the operating surgeon alleging that the death was the result of (a) the council's negligence in the conduct of their hospital, and (b) the operating surgeon's failure to exercise reasonable care, it was held as follows:
(i) The county council, in managing the hospital, was permitting a dangerous and negligent system to be in operation, and the operating surgeon and the house surgeon had failed to exercise reasonable skill and care.
(ii) The council were able to control the manner in which the resident medical officer performed her work and, therefore, the acts of the house surgeon done in the course of her employment were acts for which the council was responsible.
(iii) Although the operating surgeon was a part-time employee on the staff of the council, the council could not control how he was to perform his duties and was not responsible for his want of care.
14........In this case, the earlier decision in the case of Gold v. Essex County Council [(1942) 2 All.ER 237] came up for consideration. Lord Denning, J. speaking for himself observed that a hospital authority is liable for the negligence of doctors and surgeons employed by the authority under a contract for service arising in the course of the performance of their professional duties. It was observed as follows:
The hospital authority is liable for the negligence of professional men employed by the authority under contracts for service as well as under contracts of service. The authority owes a duty to give proper treatment medical, surgical, nursing and the like and though it may delegate the performance of that duty to those who are not its servants, it remains liable if that duty be improperly or inadequately performed by its delegates.
The plaintiff entered a hospital for an operation on his left hand, which necessitated post-operational treatment. While undergoing that treatment he was under the care of the surgeon who performed the operation, who was a whole-time assistant medical officer of the hospital, the house surgeon and members of the nursing staff of the hospital, all of whom were employed under contracts of service. At the end of the treatment it was found that his hand had been rendered useless. The trial Judge dismissed his action for damages for negligent treatment which he brought against the hospital on the ground that he had failed to prove any negligence. On appeal it was held that in the circumstances, the doctrine of res ipsa loquitur applied, and the onus lay on the hospital authority to prove that there had been no negligence on its part or on the part of anyone for whose acts or omission it was liable, and that onus had not been discharged.
15. Therefore, as per the English decisions also the distinction of contract of service and contract for service , in both the contingencies, the courts have taken the view that the hospital is responsible for the acts of their permanent staff as well as staff whose services are temporarily requisitioned for the treatment of the patients. Therefore, the distinction which is sought to be pressed into service so ably by learned counsel cannot absolve the hospital or the Institute as it is responsible for the acts of its treating doctors who are on the panel and whose services are requisitioned from time to time by the hospital looking to the nature of the diseases. The hospital or the Institute is responsible and no distinction could be made between the two classes of persons i.e. the treating doctor who was on the staff of the hospital and the nursing staff and the doctors whose services were temporarily taken for treatment of the patients. On both, the hospital as the controlling authority, is responsible and it cannot take shelter under the plea that as the treating physician is not impleaded as a party the claim petition should be dismissed. In this connection, a reference may be made to a decision of this Court in the case of Indian Medical Assn. v. V.P. Shantha [(1995) 6 SCC 651]. There the question had come up before this Court with regard to the provisions of the Consumer Protection Act, 1986 vis-`-vis the medical profession. This Court has dealt with all aspects of the medical profession from every angle and has come to the conclusion that the doctors or the institutes owe a duty to the patients and they cannot get away in case of lack of care to the patients. Their Lordships have gone to the extent that even if the doctors are rendering services free of charge to the patients in government hospitals, the provisions of the Consumer Protection Act will apply since the expenses of running the said hospitals are met by appropriation from the Consolidated Fund which is raised from taxes paid by the taxpayers. Their Lordships have dealt with the definition of service given in Section 2(1)(o) of the Consumer Protection Act, 1986, and have observed as follows: (SCC pp. 675-76, para 44)
The services rendered free of charge to patients by doctors/hospitals, whether non-government or government, who render free service to poor patients but charge fees for services rendered to other patients would, even though it is free, not be excluded from definition of service in Section 2(1)(o). The Act seeks to protect the interests of consumers as a class. To hold otherwise would mean that the protection of the Act would be available to only those who can afford to pay and such protection would be denied to those who cannot so afford, though they are the people who need the protection more. It is difficult to conceive that the legislature intended to achieve such a result. Another consequence of adopting a construction, which would restrict the protection of the Act to persons who can afford to pay for the services availed by them and deny such protection to those who are not in a position to pay for such services, would be that the standard and quality of services rendered at an establishment would cease to be uniform. It would be of a higher standard and of better quality for persons who are in a position to pay for such service while the standard and quality of such service would be inferior for persons who cannot afford to pay for such service and who avail the service without payment. Such a consequence would defeat the object of the Act. All persons who avail the services by doctors and hospitals who give free service to poor patients but charge fee for others, are required to be treated on the same footing irrespective of the fact that some of them pay for the service and others avail the same free of charge. Most of the doctors and hospitals work on commercial lines and the expenses incurred for providing services free of charge to patients who are not in a position to bear the charges are met out of the income earned by such doctors and hospitals from services rendered to paying patients. The government hospitals may not be commercial in that sense but on the overall consideration of the objectives and the scheme of the Act it would not be possible to treat the government hospitals differently. In such a situation the persons belonging to poor class who are provided services free of charge are the beneficiaries of the service which is hired or availed of by the paying class . Service rendered by the doctors and hospitals who render free service to poor patients and charge fees for others irrespective of the fact that part of the service is rendered free of charge, would nevertheless fall within the ambit of the expression service as defined in Section 2(1)(o) of the Act.
16. Therefore, the distinction between the contract of service and contract for service has been very elaborately discussed in the above case and this Court has extended the provisions of the Consumer Protection Act, 1986, to the medical profession also and included in its ambit the services rendered by private doctors as well as the government institutions or the non-governmental institutions, be it free medical services provided by the government hospitals. In the case of Achutrao Haribhau Khodwa v. State of Maharashtra [(1996) 2 SCC 634] their Lordships observed that in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in tort would be maintainable. Their Lordships further observed that if the doctor has taken proper precautions and despite that if the patient does not survive then the court should be very slow in attributing negligence on the part of the doctor. It was held as follows: (SCC p. 635)
A medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor. The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. But in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable.
74.In Robustaa (Hyglow Cafe), Chennai-600 010, rep. by its Partner N. Vishal Kumar v. Commissioner, Corporation of Chennai, Chennai-600 003 and Others reported in 2011 (8) MLJ 136, a restaurant, permitted using such "Hookah" in a residential locality. A notice was issued under Section 37 of the Chennai Municipal Corporation Act, noticing such a defect to be rectified. A reply was supplied by one Rukshan annexe association impleaded itself as the third respondent in this petition. They submitted that the petitioner had health hazards and environmental pollution. The petitioner restaurant contended that they have been maintaining the restaurant by following the rules and regulations of the Chennai City Municipal Corporation Act and the licensing conditions. After going through the materials available on record, the statutory provisions, Section 6(e) of the Tobacco Products Prohibition Act and Sections 279, 379-A and Sections 44 and 45 of the Public Health Act, empowering the health officers to abate nuisance and of the obligations of the State to provide protection and safeguard to a citizen under Article 47 of the Constitution of India and of the objects sought to be achieved by a Member State of the World Health Organization and the decision of the Supreme Court in Ashok Lanka's case [2006 (9) SCC 90], approved the action of the Chennai Corporation in sealing the petitioner's restaurant. However, this Court, having regard to the undertaking given by the petitioner therein that the restaurant shall not sell tobacco products in violation of the conditions of the licence and a further undertaking that the restaurant would discontinue the sale of Hookah. This Court has ordered the respondents 1 and 2 therein to remove the seal of the restaurant. Liberty has also been given to the respondents 1 and 2 to inspect the restaurant at regular intervals and if any violation of the conditions of licence or the relevant provisions of the Acts, Rules and Regulations or the undertaking is noticed, the authority can take action to cancel or suspend the licence. Thus, it could be seen from the above reported decision, the power of the competent authority to invoke sections 44 and 45 of the Public Health Act, read with Section 279 (2) of the Chennai City Municipal Corporation Act, has been approved. Some of the passages extracted in Robustaa (Hyglow Cafe)'s case, are worth reproduction,
"30 . The Directive Principles of State Policy as enshrined in the Constitution of India, enunciated under Article 47 provides that the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. In the above al background, it is to be examined as to what is the duty of the State in respect of improvement of public health and prohibition of intoxicating drinks and of drugs which are injurious to health and the public health is to be protected for the standard of living of the mankind.
31 . The World Health Organisation (WHO) in its 39th World Health Assembly, held on 15.5.1986, urged its member States of WHO which have not yet done so to implement the measures to ensure that effective protection is provided to non-smokers from involuntary exposure to tobacco smoke and to protect children and young people from being addicted to the use of tobacco. Therefore, the WHO urged the member States to consider in their tobacco control strategies, plans for legislation and other effective measures for protecting their citizens with special attention to risk groups such as pregnant women and children from involuntary exposure to tobacco smoke, discourage the use of tobacco and impose progressive restrictions and take concerted action to eventually eliminate all direct and indirect advertising, promotion and sponsorship concerning tobacco. India, being the Member State, this avowed object of the WHO has been taken into account for enacting certain comprehensive law, particularly, in the field of protection of public health, considering the need for expedient prohibition and accordingly, the legislation called The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 was enacted (for short, the Tobacco Products Prohibition Act ).
46. The power of the first respondent-Commissioner of Corporation of Chennai, provided under Section 279(2) of the CCMC Act and the power conferred upon the second respondent-Health Officer of the Corporation of Chennai by Section 44 of the Tamil Nadu Public Health Act, empowers them to proceed with the petitioner, if in the opinion of the Commissioner the premises covered thereby are not kept in conformity with the conditions of such licence or with the provisions of any by-law made under Section 349 relating to such premises and Section 44 of the Public Health Act empowers the Health Officer to prevent a recurrence thereof in case of any default in the nuisance being continued and not abated. Therefore, the impugned action of the respondents in sealing the premises in the occasion where the petitioner continued to run the Hookah Bar contrary to the grant of licence for running the restaurant, and thereby, causing harmful pollution and irritating unbearable chimney noise affects the life and health of all neighbouring residents as well as causing public nuisance, is justified."
75.In a given case, where there is a violation of any provision of Public Health Act or any other statutory provision under other Acts, by which, an Health Officer or any other competent authority, is authorised or empowered to enter, inspect and prevent or abate nuisance and if any illegality is noticed, inviting penal provisions, then such act or contravention of statutory provisions of the Act, should not be allowed to be continued until the person, causing nuisance, comes forward to abate. Public Health Officer or the Competent Authority has to take immediate steps to ensure that the nuisance is abated, otherwise, they would be allowing an illegality to continue. Further, if violations, apart from nuisance are noticed, the competent authorities under the Public Health Act or any other Act, can issue necessary notice, to call for explanation, from the violator, on the further action to be taken, under the Public Health Act and other laws. An Health Officer cannot be a silent spectator, until the nuisance is stopped, by the person causing nuisance. Provisions of the Public Health Act and other Acts, enjoin a duty on the competent authorities therein, to prevent and abate nuisance, when it is noticed. Such prevention and abatement cannot be restricted only to hotels, lodging houses, factories or any other places, covered under the Act, but it also includes all establishments, where public has access, involving public health. It cannot be restricted only to hospitals run by the Government or local bodies, the check and control of any activity affecting public health, should be extended to any place, including private hospitals, which is also a Health Establishment.
76.The very object of the Act is for protection of public health and public care and in the context of the specific purposes of enactment of the Public Health Act, no restriction can be placed, whether the hospital is run by an allopathic Doctor or a Medical practitioner, qualified in Indian Medicine. If nuisance exists and violations of the statutory provisions, in any place, where public health has to be maintained, all establishments are also amenable to the jurisdiction of a Health Officer. In such a view of the matter, action taken by the respondent, cannot be said to be solely due to the conflict of interest in the different form of practice of medicine. Whether an Health Officer is right in taking an extreme step of sealing an hospital depends upon the facts and circumstances of the case.
77.Sealing of the premises should not be done, purely based on any demand or for trivial violations. It affects the fundamental right of the citizen to practice any trade or business profession or occupation. When a Fundamental right is sought to be infringed, the discretion to be exercised by the authorities, under the Tamil Nadu Public Health Act, or any other statute, should be exercised with great caution and proper application of mind to the facts and circumstances. Discretion exercised in an arbitrary or capricious manner, would curtail the qualified medical practitioners of their right to practice medicine, or for that matter, any other trade or business. Merely because power is given to the authorities, there should not be any misuse or the allopathy doctors should not think, they are in an advantages position. English form of medicine has its own, value and it should be borne in mind, that Indian Medicine is recognised under the laws of this Country. The practice of Indian medicine also has to be respected.
78.In the case on hand, this Court is of the view that violations noticed by the Health officer cannot be said to be trivial or do not attract appropriate action. Practice of a particular form of medicine, is not prevented by the Police or Health Officer or any other competent authority, as the case may be. It is not a case of a raid conducted by the police or the Block Medical Officer, just to harass the petitioner and others, from practicing other form of medicine. No doubt, the instructions issued by the Principal Secretary to the Government, Health and Family Welfare, Secretariat, Chennai and for that matter, the decisions of this Court to permit the Doctors, qualified in Indian medicine, to practice the modern scientific system of medicine under the Drugs and Cosmetics Rules, 1945, subject to certain limitations.
79.The information received by the Block Medical Officer, respondent herein, through the Deputy Director of Health Services, Kallakurichi, under Section 43 of the Act, is the cause for constituting a team for inspection and when the whereabouts of the petitioner was not available to put him on notice, to abate the nuisance, as defined in T.N. Public Health Act, the respondent has sealed the hospital. Therefore, when a notice has been served, intimating the defects/violations pointed out, the petitioner has sent a representation, only questioning the authority.
80.When the said team inspected the hospital, they have found certain violations and arrived at a conclusion that the infractions attracted nuisance. It is well settled that the adjudication as to the correctness of an order has to be confined only with the decision making process and the reasons assigned. The test is confined as to whether the power exercised by the authorities under any Act, satisfies the test of reasonableness and fairness in the light of the intention behind the statutory provisions. Of course, negligence in all forms cannot give rise to prosecution. In the case on hand, violations have been noticed, under various provisions of the Tamil Nadu Public Health Act and other statutes. A person allegedly treated by the petitioner-Doctor has died and that the same has been reported to the Police and a crime under Section 174 IPC., has been lateron altered the offences under Sections 304 and 420 IPC read with Sections 15(2)(b) and 15(3) of Indian Medical Council Act, 1956.
81.Considering the objectives of the statutory provisions and the overall facts, it cannot be said that the competent authority had no material to arrive at a prima facie conclusion, regarding the violations and in particular, nuisance which means, any act, omission, place or thing which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell or hearing or disturbance to rest or sleep or which is or may be dangerous to life or injurious to the health or property of the public or the people in general who dwell or occupy property in the vicinity, or persons who may have occasion to use any public right. It cannot be said that the respondent has given undue importance, only to the allegation that the petitioner has practised some other form of medicine, other than Indian Medicine. Of course, the Courts have consistently held that under the guise of prevention of quacks and unqualified persons, the practice of Indian Medicine, by qualified medical officers, should be curtailed by Police, there cannot be any total prohibition that the Police cannot investigate into any complaint and take appropriate action and that the competent authorities under the Public Health Act, cannot take any action against establishments, causing nuisance or violate the provisions of the Public Health Act. Courts have also approved the guidelines and orders issued by the respective councils and the Secretary to the Government, Health and Family Welfare Department, allowing the qualified Doctors, to practice and prescribe medicines and to treat the patients, with certain limitations contained in the orders or directions issued by the respective Councils or the Government, as the case may be. However, on the facts and circumstances of this case, it cannot be said to be an intervention of any fundamental right or harrassment by the Police or Health Officers.
82.It is the specific case of the respondent that an information has been received by the Executive Authority and Health Officer, under Section 43 of the Act. It is the case of the respondent that District Administration, viz., The Collector, Villupuram has instructed the Deputy Director of Health Services, Kallakuruchi, to look into the matter, who in turn, has instructed the Block Medical Officer, respondent herein, to enquire and take action. Therefore, this Court is of the humble view that the judgments of the Supreme Court or the guidelines issued from time to time, cannot be made applicable to this case, where an inspection has been done, on receipt of an information.
83.It is not the case of the petitioner in the supporting affidavit that there was any interference from the police or the authorities under the Act nor there was any complaint by any Allopathic Doctor, to take action against the petitioner. At this juncture, it should be noted that the hospital seemed to have been established sometime back. Action in this case, has been taken on a specific complaint. Though the petitioner at one stage has contended that he had not even treated the deceased, in his statement before the authorities, he has admitted the fact of giving oxygen and attempted to take blood for examination. Thus there is a difference in his version regarding treatment.
84.In the typed set of papers filed by the respondent, there is an enclosure, with reference to a News Item said to have been published that in the very same hospital, death had been reported earlier, alleging negligence and that the hospital has been sealed and opened, thereafter. Right to hold and enjoy a property though a Constitutional right, but at the same time, while running a hospital, dealing with the life of many persons, involving public health and care, nobody can claim immunity from any action by the competent authorities under the statutory provisions, dealing with public health. Where it be an eating place, lodging house, factory or any establishment, including hospital, run by Government or local body or a private individual or body corporate, etc, to enforce the provisions under the Statutes, the authorities under the Public Health Act and other statutes are empowered to enter into the premises and cause inspection and appropriate action can be taken. Some of the violations attract even penal action. Having regard to the constitutional and statutory obligations, to enforce the provisions of the Act, particularly, Public Health Act, the action of the respondent in sealing the hospital premises cannot be said to be an arbitrary action, without jurisdiction warranting intervention.
85.The proactive measure taken by the respondent, when infringement to the statutory provisions have been noticed cannot be said to be an excess of jurisdiction. No doubt, action under the private law can be taken by the aggrieved for compensation or for penal action, that would not preclude the Public Health authorities from taking appropriate action to enforce the statutory obligations. When right to health and care has been declared as a Fundamental right, the provisions are meant to be enforced strictly. Cross practice, if prima facie found to have resulted in injury, danger, annoyance or offence to the sense of sight, smell or hearing or disturbance to rest or sleep or which is or may be dangerous to life or injurious to the health or property of the public or the people in general who dwell or occupy property in the vicinity, or persons who may have occasion to use any public right, is certainly a matter, for investigation, by the Police, subject to the limitations, provided for, as per the guidelines.
86.In the result, the writ petition is dismissed. No costs. Permanent sealing of a Hospital premises may affect the usage of building by the owner or occupier for any other lawful purpose. Therefore, if the petitioner intends to use the premises for some other lawful purpose, it is always open to him to make a representation to the Public Health authorities, who shall consider and take a positive decision.