Judgment :- 1. The counter petitioner in a petition filed by the Health Inspector, Primary Health Centre, Vadakkancherry under S.44 of the Travancore-Cochin Public Health Act, (Act XVI of 1955) before the Judicial Magistrate of II Class, Alathur, has filed this petition under S.482 of the Code of Criminal Procedure, to quash the proceedings. 2. The first respondent herein, the Health Inspector in the Primary Health Centre, Vadakkancherry filed a petition as aforesaid alleging that the petitioner herein, the proprietor and licensee of Kamala Vilas Hotel in Nem-mara Panchayat being run in building No. 2-530 as a licensee, is letting out sullage water from the hotel to the adjoining road that the hotel and the portions on the back of it are being kept in an unhygienic and insanitary condition and that public health is affected. He therefore prayed that an order may be passed prohibiting the petitioner from using the building for human habitation or conducting a hotel until nuisance is abated or the building is rendered fit therefor. The proceedings are challenged by the petitioner's counsel on three grounds, namely, I) that the proceedings are invalid, since the complaint was not preceded by a notice under S.42 of Act 16/1955, 2) that the Health Inspector is not competent to prefer a complaint and 3) the complaint is devoid of bona fides. 3. Chapter VI of Act 16/1955 (for short the Act) relates to abatement of nuisances. We are concerned only with S.39 to 44 in this chapter, S.40 makes it the duty of the local authority to cause its local area to be inspected from time to time with a view to ascertain existence of nuisance calling for abatement and to enforce the provisions of the Act in order to abate such nuisance. S.41 authorises any aggrieved person to give information to the officers of the local authority regarding the existence of any nuisance. 4. S.42 deals with power of health officer to abate nuisance. It states that if the Health Officer is satisfied about the existence of a nuisance, he may by notice, require the person committing the nuisance and if that person cannot be found, the owner or occupier of the premises where nuisance arises, to abate the nuisance and to execute such works and to take such steps as may be necessary for that purpose. Proviso (b) states that where a person causing the nuisance cannot be found and if the nuisance was not occasioned by the owner or occupier the Health Officer may himself abate the nuisance. 5. S.43 lays down that if the person to whom a notice under S.42 is served makes default in complying with the requirements of the notice within the time stipulated therein or if the nuisance although abated is likely to recur on the same premises, the local authority may arrange for the execution of any works necessary to abate the nuisance or prevent its recurrence and recover the cost from the person responsible for the execution. 6. S.44 reads thus: "44. Provision regarding bouse rendered unfit for occupation by reason of nuis-ance:-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." The main question in controversy is whether issuance of a notice under S.42 of the Act is a condition precedent to a successful application under S.44 of the Act. The learned counsel for the petitioner contended before me that the main duty of the Health Officer is to secure abatement of nuisance and if such abatement is likely to be delayed or rendered impracticable for some reason or the other, then alone the relief under S.44 can be asked for and in that view a notice under S.42 is a condition precedent for an application under S.44 of the Act. Learned Public Prosecutor on the other hand, contended that powers under S.42 and 44 of the Act exist in the alternative and it is open to the Health Officer to choose either the course under S.42 or alternatively the course under S.44 and therefore a notice under S.42 is not a condition precedent to action under S.44 of the Act. 7. It is necessary to analyse the scheme behind S.42 to 44 in order to resolve this controversy. When nuisance exists, abatement of such a nuisance is a paramount necessity so far as public health and public interest are concerned. 7. It is necessary to analyse the scheme behind S.42 to 44 in order to resolve this controversy. When nuisance exists, abatement of such a nuisance is a paramount necessity so far as public health and public interest are concerned. S.42 and 43 of the Act invest power in the Health Officer or the local authority, as the case may be, either to direct the nuisance to be abated or to cause the nuisance to be abated, as the case may be. This will show that what is primarily required in the face of a nuisance, is its abatement and nothing else. In order to secure an abatement of nuisance under S.42 and 43 of the Act a notice has to be issued to the person responsible for the nuisance or where he cannot be found to the owner or occupier of the premises. Such a notice must give specific direction to the addressee to abate the nuisance or to execute such works or take such steps as may be described in the notice. The addressee of the notice may abide by the direction contained in the notice issued under S.42 of the Act. Where he chooses either to ignore the notice or to act against it. power is vested in the local authority to intervene directly in the matter and to ex cute such works as are necessary, under S.43 of the Act. 8. When a Magistrate is moved under S.44 of the Act, the only order he can pass is to prohibit the use of a house or a building for human habitation until it is rendered fit therefor. The Magistrate has no jurisdiction to pass an order directing the counter - petitioner in an application under S.44 of the Act to abate the nuisance or to execute such works or to take such steps as may be necessary for that purpose. A successful application under S.44 of the Act does not and cannot result in abatement of nuisance, while a successful notice under S.42 of the Act or an action under S.43 of the Act will result in abatement of the nuisance. A successful application under S.44 of the Act does not and cannot result in abatement of nuisance, while a successful notice under S.42 of the Act or an action under S.43 of the Act will result in abatement of the nuisance. If we bear in mind this essential distinction between the result of an action under S.42 or 43 or the Act on the one hand and the result of action under S.44 of the Act on the other, it will be evident that action under S.44 of the Act cannot be treated as an action alternative to an action under S.42 or 43 of the Act. 9. A reading of these sections together will show that S.44 of the Act is intended to provide for a contingency where abatement of nuisance has been sought for under S.42 or attempt to abate nuisance is being made under S.43 of the Act and a situation exists either preventing or postponing the action of abatement. Other contingencies may also arise. In such a case, it is not as if the Health Officer or the local authority should remain helpless spectators being incapable of abating the nuisance or being unable to implement the notice under S.42. In cases of difficulty or delay, it is open to the Health Officer to step in and seek the assistance of the Magistrate to prohibit use of the building for human habitation until a particular contingency happens, that is, until it is rendered fit therefor. A building which is unfit for human habitation by reason of a nuisance existing therein can be rendered fit therefor only if the nuisance is abated. Nuisance can be abated only either by the person responsible for it responding favourably to the notice under S.42 of the Act or the authority acting directly after S.42 notice becomes fruitless under S.43 or proviso to S.42 of the Act. It is thus clear that the procedure under S.44 of the Act is intended only to cover a period or contingency or situation pending final abatement of nuisance. That being so, the contention of the learned Prosecutor that S.44 is independent of S.42 and that an application under S.44 need not be preceded by a notice under S.42 of the Act is not correct. That being so, the contention of the learned Prosecutor that S.44 is independent of S.42 and that an application under S.44 need not be preceded by a notice under S.42 of the Act is not correct. It is clear that a successful prosecution under S.44 of the Act must necessarily be preceded by a notice under S.42 of the Act. 10. It is admitted on both sides that the petition filed by the Health Officer in the instant case was not preceded by a notice under S.42 of the Act. There is absolutely no chance of the application before the Magistrate being allowed since it is inherently defective. Hence it is within the powers of this Court under S.482 of the Code to quash the proceedings. I do so. In this view it is unnecessary to consider the other questions raised by the learned counsel for the revision petitioner. Petition is allowed.