Madras High Court
C.Nalla Thangam vs Agasteeswaram Town Panchayat on 11 March, 2022
1 S.A.(MD)No.627 OF 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.03.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.627 of 2010
C.Nalla Thangam ... Appellant / Respondent /
Plaintiff
Vs.
Agasteeswaram Town Panchayat,
Rep. By its Executive Officer,
College Road,
Agasteeswaram Village,
Agasteeswaram Taluk,
Kanyakumari District. ... Respondent / Appellant /
Defendant
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Decree and Judgment dated 18.06.2008
made in A.S.No.73 of 2007 on the file of the Principal
Subordinate Judge, Nagercoil, reversing the Decree and
Judgment dated 16.11.2005 made in O.S.No.433 of 2002 on
the file of the II Additional District Munsif, Nagercoil.
For Appellant : Mr.P.Thiagarajan
For Respondent : Mr.R.Ragavendran,
Government Advocate.
***
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2 S.A.(MD)No.627 OF 2010
JUDGMENT
The plaintiff in O.S.No.433 of 2002 on the file of the II
Additional District Munsif, Nagercoil, is the appellant in this
second appeal.
2. The suit has been filed for permanent injunction
and mandatory injunction. The local body was shown as the
defendant. The local body was proposing to put up a public
toilet in the suit property. That necessitated filing of the said
suit. Based on the divergent pleadings, the trial Court framed
the necessary issues. The plaintiff examined himself as P.W.1
and two other witnesses were examined on his side. Ex.A.1 to
Ex.A.9 were marked. A Panchayat official was examined as
D.W.1. Ex.B.1 to Ex.B.4 were marked. An Advocate
Commissioner was appointed and his interim report, final
report and plan were marked as Ex.C.1 to Ex.C.3. After
consideration of the evidence on record, the trial Court by
judgment and decree dated 16.11.2005 decreed the suit as
prayed for. Aggrieved by the same, the local body filed A.S.
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No.73 of 2007 before Principal Sub Court, Nagercoil. By the
impugned judgment and decree dated 18.06.2008, the
decision of the trial Court was reversed and the appeal came
to be allowed and the suit came to be dismissed. Challenging
the same, this second appeal came to be filed.
3. The second appeal was admitted on 07.01.2011 on
the following substantial questions of law:-
“ 1. Whether the finding of the lower
appellate Court that the nuisance alleged by the
appellant herein / plaintiff was not proved is
perverse?
2. Whether the lower appellate Court has
committed an error in law in not considering the
absence of certificate from the Health Officer as
required under Section 33 of the Tamil Nadu Public
Health Act, 1939? ”
4. The learned counsel appearing for the appellant
reiterated all the contentions set out in the memorandum of
grounds and called upon this Court to answer the substantial
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questions of law in favour of the appellant and set aside the
impugned judgment and decree and restore the decision of the
trial Court.
5. Per contra, the learned Government Advocate
appearing for the local body submitted that the impugned
judgment and decree passed by the first appellate Court does
not call for any interference.
6. I carefully considered rival contentions and went
through the evidence on record.
7. The local body had admittedly spent public funds
and put up the public toilet. The suit property admittedly does
not belong to the appellant herein. The local body had put up
the toilet on the land belonging to the Panchayat. Merely
because a public toilet had been put up in the vicinity, the
appellant cannot complain that it constitutes nuisance and
that therefore, injunction could be granted. However, the
appellant is entitled to demand that the local body must
maintain the public toilet in a hygienic condition so that it
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does not pose health hazard to the persons residing in the
vicinity.
8. Under Section 37 of the Tamil Nadu Public Health
Act 1939, every local authority is obliged to provide public
sanitary conveniences. It is this statutory obligation that has
been discharged in this case. Hence, the trial Court could not
have granted the decree of injunction restraining the local
body from putting up the public toilet. Sections 42, 43, 44 and
45 of the Tamil Nadu Public Health Act are as follows:-
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 nuisance 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.
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43. Information regarding nuisance
Any person aggrieved by a nuisance in any local area
may give information of the same to the Health Officer or any
other Officer of the public health establishment of the local
authority.
44. Power of 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 :
Provided that-
(a) where the nuisance arises from any defect of a
structural character, the notice shall be served on the owner
of the premises ; and
(b) where the person causing the nuisance cannot be
found and it is clear that the nuisance does not arise or
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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 a tax due to the local authority. ”
Therefore, even while answering the first substantial question
of law against the appellant, the respondent / local body is
directed to maintain the suit public toilet in a hygienic
condition so that it is not a source of nuisance.
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9. The second contention of the learned counsel
appearing for the appellant is that without complying with the
requirement under Section 33 of the Tamil Nadu Public Health
Act, the local body could not have put up the suit public toilet.
Section 33 of the Tamil Nadu Public Health Act is as follows:-
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.
Section 33 of the Tamil Nadu Public Health Act applies only to
individuals and not to a local body. The second substantial
question of law is also answered against the appellant.
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12. The decision of the first Appellate Court is
sustained with the aforesaid directions. This second appeal is
dismissed. No costs.
11.03.2022
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1. The Principal Subordinate Judge,
Nagercoil.
2. The II Additional District Munsif,
Nagercoil.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.627 of 2010
11.03.2022
https://www.mhc.tn.gov.in/judis
