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2018 (7) TMI 2318
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....NCT of Delhi to Sitaram Bhartia and the Foundation of Cancer Research imposing condition of providing free treatment to 10% indoor patients and 25% to outdoor patients of poor strata of the society. The decision was taken in the light of the decision of Delhi High Court in Social Jurists case (supra) which was referred by this Court in Special Leave Petition [Civil] No.18599 of 2007 vide order dated 1.9.2011 in which this Court observed that 25% OPD and 10% IPD have to be given treatment free of cost. Said patients should not be charged with anything. However, the concerned hospital could make the arrangements of the cost either by meeting the treatment/medicines cost from its funds or resources or by way of sponsorships or endowments or donations. As the respondents-hospitals were not a party, they have questioned imposition of said conditions in the impugned order by filing writ applications. The High Court has quashed the imposition of conditions hence, the appeals have been preferred. 2. The factual matrix reflects that the Government of India in the year 1949 took a decision to provide all possible help to the hospitals by allotting land to the hospitals and schools at highly....
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....have to pay a premium at the rate of 25,000 to 35,000 per acre, plus ground rent @ 15% on the premium per annum, that would be obviously too high. Hence, it was agreed that the premium chargeable on land allocated to charitable institutions in Delhi should vary from Rs.2000/to Rs.5000/per acre. Facts relating to Mool Chand Khairati Ram Trust : 4. In the year 1927 one Lala Kharaiti Ram of Lahore made a Will with a codicil registered at Lahore by which Moolchand Khairati Ram Trust was constituted by Lala Kharaiti Ram with the name of his father Shri Moolchand. The relevant clauses of the Will are extracted hereunder : "(8) After meeting the above-mentioned allotments the following instructions shall be observed with regard to the property of every description that may remain after my death:- (a) All the remaining property of every description shall constitute a Trust known as Moolchand Kharaiti Ram Trust, Lahore, the objects of which shall be as follows:- (1) Imparting education in and preaching Sanskrit according to Sanatan Dharm Methods, and (2) Devising means for imparting education in and improving the Ayurvedic System of Medicine and preaching the same. In order to ga....
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.... only insistence could be that the institution should be run without any profit motive and not that the institution be required to provide free treatment to any specified number of patients. The DDA (Disposal of Developed Nazul Land) Rules, 1981 are not applicable in the case of Trust. Clause 14 of the lease deed did not authorize the Government to impose such conditions. That the decision of Social Jurists case (supra) is not applicable as in that case there was either conditions of allotment, or the stipulations in the lease deed under which the hospitals were obliged to provide access to significant percentage of the IPD and OPD facilities. Right to carry on any occupation, trade or business is fundamental under Article 19(1)(g) as such, such restriction could have been imposed by enacting a law under Article 19(6) of the Constitution of India by Parliament or the State legislature. Such condition could not have been imposed by executive feat in exercise of power under Article 162. In the decision in Social Jurists (supra) which has been affirmed by this Court, the Trust was not a party. The condition of lease could not have been altered unilaterally. This Court while dismissing....
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....urpose of the charitable institution it was not open to imposing such riders by executive order. There was no condition of free care in the 1949 policy. Unilateral amendment of the lease deed could not have been made. The decision of Social Jurists (supra) is not applicable as 20 hospitals were dealt with in the said decision. There was no stipulation regarding free care in the allotment letters/lease deeds. The order is without jurisdiction. Hence, the writ petition was filed in the High Court. Facts regarding Sitaram Bhartiya Institute of Science & Research: 9. Sitaram Bhartiya Institute of Science & Research was a registered society. On 30.3.1984, it applied for allotment of land admeasuring 3 acres for establishing a multidisciplinary research complex in New Delhi. On 22.10.1984 the DDA allotted land admeasuring 1.52 acres @ Rs.6 lakhs per acre. Request was made by the said society to charge at the concessional rate that was declined on 20.11.1984. On 2.9.1985 lease deed was signed by which a consideration of Rs.8,76,000/for 1.46 acres was transferred to the petitioner. The case of Social Jurists (supra) was filed in the High Court. The writ petition was disposed of by the H....
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....admeasuring 2331 sq. yds. was allotted vide allotment letter dated 25.2.1972 at the rate of Rs.5000/per acre and ground rent at the rate of 5% per annum. 13. Sitaram Bhartiya Institute of Science & Research was allotted 1.52 acres of land at the rate of Rs.6/lakhs per acre on 22.10.1984 followed by lease deed dated 2.9.1985 in respect of another plot of 1.46 acres for a consideration of Rs.8,76,000/. The Government of Delhi with the approval of Lt. Governor of Delhi constituted a Committee headed by Mr. Justice A.S. Qureshi to review the existing free facility extended by the charitable hospitals and various other hospitals which had been allotted land at concessional terms/rates by the Government. Amongst other measures the Committee opined as under: "1. Most of the representatives of the hospital submitted that 25% of beds earmarked for poor patients were excessive since the cost of medicines was too high. It was agreed that it should not be more than 15% in any case, but 10% would be ideal. Therefore, the Committee recommended 10% indoor beds free for poor patients for all purposes including medicines and consumables. The free treatment services should be available to 25% of t....
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....eferred. Social Jurists, a civil rights group has filed Civil Appeal Nos.31573158 of 2017 against the judgment and order passed in the case of Moolchand Kharaiti Ram Trust and others. Other appeals have been filed by Union of India/NCT of Delhi. Rival Submissions 20. It was urged by Mr. Sandip Sethi, learned Additional Solicitor General on behalf of the appellants that the High Court erred in allowing the writ applications. The condition of providing 10% IPD and 25% OPD free medical treatment to poor strata of the society cannot be considered to be a restriction in terms of Article 19(6) of the Constitution of India putting fetters on the right of the respondent hospitals to carry on their trade and profession under Article 19(1)(g) of the Constitution of India. The direction has been issued in terms of the policy of allotment in public interest which must override the business interest of an individual. The High Court erred in holding it to be a restraint under Article 19(6) which can be imposed only by a legislation. It was within the competence of the Government to pass Government Order to implement the recommendations of Mr. Justice A.S. Qureshi Committee. The respondents Moo....
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....al. 24. It was also urged that the definition of 'charitable' as given in Income-tax Act would not govern the field in the present case. Word 'charitable' is to be seen in the legal sense. Word 'charitable' is used and has been relied upon in the Law Lexicon by P. Ramanatha Aiyar, 2nd Edition, 1997, which defines the 'charitable' as under: "includes every gift for a general public use, to be applied consistent with existing laws, for benefit of an indefinite number of persons, and designed to benefit them from an educational, religious, moral, physical or social standpoint." 25. On the other hand, learned senior counsel appearing on behalf of the respondents-hospitals contended that legal obligation of a person can be created by an agreement or statutory law and in no other manner. The court cannot pass an order on account of sympathy in contravention of the settled law as the function of this court is to protect and preserve the rule of law which has been held to be basic feature of the Constitution in the case of Kesavananda Bharti. In the case of Moolchand Khairati Ram Trust, in the Will, the executor of the Will by which he created the Trust, never intended that fre....
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....Act. The Executive power referred to in Articles 73 and 298 of the Constitution did not empower the State to unilaterally amend the terms of a perpetual lease deed granted by it. The fundamental rights cannot be abridged by an executive order. Decision in Social Jurists (supra) is distinguishable. There was no similar stipulation in the lease deeds of respondents. Judgment of the High Court in Social Jurists (supra) was faulty to the extent that it imposed a condition of free care on hospitals in whose lease deeds there was no such condition. It was not open to the court to first create a law or an obligation and then seek to enforce it. Charity would not mean free services to be provided. Medical relief itself is a charitable purpose. It would not mean that it cannot charge for services provided by it. Though while seeking allotment by the missionaries as charitable society, do not get actuated by a profit motive. Surplus income is also utilized for charitable purpose for providing medical care. The fact that the land was allotted on concessional rates would not confer any right on the Government of India to unilaterally amend the lease deed. There was no provision for free care i....
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....No profit no loss condition would not mean that it was allotted on a concessional basis. Respondent No.1 is a self-supporting society, is doing medical research also. In case free medical treatment is provided it would diminish the respondent's ability to invest in research. Populist and misplaced policies could not have been framed or imposed. Similar arguments have been raised by the Foundation for Applied Research in Cancer. 28. Following questions arise for consideration: 1. Whether by virtue of fact that Moolchand Kharaiti Ram Trust and St. Stephens Hospital have obtained the land for charitable purposes at a concessional rate, it was open to the Government to impose a condition of 10% in IPD and 25% in OPD services to be provided free of cost to patients of economically weaker sections? 2. Whether in view of the condition No.7 of the allotment letter issued in the case of Sitaram Bhartiya Institute and Foundation for Applied Research in Cancer, the imposition of the aforesaid condition of free treatment was permissible? 3. Whether the imposition of aforesaid conditions amounts to restriction under Article 19(6) to carry on profession, trade or business under Articl....
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....tion and charitable trust in common parlance. 32. The Black's Law Dictionary, Ninth Edition defines 'charitable', 'charitable purpose', 'charitable corporation' and 'charitable trust' thus: "Charitable - Dedicated to a general public purpose, usu. for the benefit of needy people who cannot pay for benefits received. Charitable purpose - The purpose for which an organization must be formed so that it qualifies as a charitable organization under the Internal Revenue Code - Also termed charitable use. Charitable corporation - A nonprofit corporation that is dedicated to benevolent purposes and thus entitled to special tax status under the Internal Revenue Code. - Also termed eleemosynary corporation. Charitable trust - A trust created to benefit a specific charity, specified charities, or the general public rather than a private individual or entity. Charitable trusts are often eligible for favorable tax treatment. If the trust's terms do not specify a charity or a particular charitable purpose, a court may select a charity. - Also termed public trust; charitable use." 33. In Webster's New World Dictionary, the expressions of 'charitable' and 'charity' are defined thus: "C....
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....y's Laws of England while dealing with the meaning of charity, has discussed the matter thus: "502. Meaning of "charity". Since the Charities Act, 1960 provides no statutory definition of what purposes are and what are not charitable, all the cases previously decided on the subject are still relevant. The legal meaning of "charitable purposes" is said to be precise and technical, and the phrase is a term of art, but it is probably incapable of definition. The popular use of the expressions "charity", "charitable", "charitable objects" and "charitable purposes" does not coincide with their technical legal meaning according to the law of England. The word "charitable", when used in its legal sense, covers many objects which a layman might not consider to be included under that word, but it excludes some benevolent or philanthropic activities which a layman might consider charitable. Charitable uses or trusts form a distinct head of equity, and it is the court's duty to determine whether particular purposes are charitable. To be charitable a purpose must satisfy certain tests; it must either fall within the list of purposes enumerated in the preamble to the ancient statute of ....
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....rities that a purpose is not charitable unless it is directed to the public benefit so that the element of public benefit is the necessary condition of legal charity. There are two distinct elements in this requirement: the purpose itself must be beneficial and not harmful to the public, and the benefit of the purpose must be available to a sufficient section of the public. The line of distinction between purposes of a public and a private nature is fine and practically incapable of definition." 38. The benefit to the poor is one of the essential requirements of charity. The concept has been discussed in paragraph 509 of Halsbury's Laws of England, which reads thus: "509. Benefit to rich as well as poor. An object may be charitable in the legal sense notwithstanding that it will benefit the rich as well as the poor, but it is difficult to believe that a trust would be held charitable if the poor were excluded from its benefits." 39. In Incorporated Council of Law Reporting for England and Wales vs. AG (1971) 3 All ER I029, CA, it was observed that when a purpose has been proved to be of general public welfare or beneficial to the community, it will be held to be charitable unle....
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....by the payment of fees does not prevent its being a charitable corporation. In paragraph 707, the following discussion has been made: "707. Hospital supported partly by fees. Not all hospitals are charitable institutions, for there may be hospitals run commercially, with a view to the profit of private individuals, or hospitals the services of which are not available to a sufficient section of the public. The mere fact that a hospital is supported by the payment of fees does not prevent it's being a charitable corporation, and the same is true of schools. Furthermore, the Charity Commissioners have the power to authorize the committee of management of a voluntary hospital to provide facilities for paying patients in certain circumstances." 42. In the Law Lexicon, the Encyclopedic Law Dictionary by P. Ramanatha Aiyer, the discussion has been made with the help of certain decisions and dictionaries, with regard to charitable, charitable object, charitable purpose, charity and charitable trust of public nature, relevant parts of which are reproduced hereunder: "Charitable. Having the character or purpose of a charity. The word "charitable", in a legal sense, includes every gi....
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....ecause the committee would be bound to keep within the ambit of charity, and if they go beyond the legal boundary, they can be controlled by the Court. 43 Bom LR 1027 = 1942 Bom 61. The definition includes relief of the poor. Relief of the poor by itself would not be a charitable object unless it involved an object of general public utility. Relief for the poor relations of the settlor or donor will not be a charitable purpose within the definition. Trustees of Gordhandas Govindram Family Charity Trust v. Commissioner of Income Tax, AIR 1952 Bom 346. [S. 4(3)(i) Income Tax Act 1992] 'Charitable purpose' - the dominant purpose of a State Bar Council is to ensure quality service of competent lawyers to the litigating public, a spread legal literacy, promote law reforms and provide legal assistance to the poor, such purpose is the advancement of the object of general public utility and it will be a charitable purpose. C.I.T. Bombay v. Bar Council of Maharashtra, AIR 1981 SC 1462, 1467. [Income Tax Act (43 of 1961), Ss. 2(15) and 11.] Charity. "In the broadest sense charity includes whatever proceeds from a sense of moral duty or from humane feelings towards others, uninfluen....
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....nition of charitable purposes, to be a charitable purpose, it must satisfy certain tests. It must be for the public benefit and available to a sufficient section of the community. The reference to charity should be construed in their technical legal sense. For income tax purpose, the charity may be defined in the Act and in that light, the interpretation of the Act has to be made. Public benefit is an essential ingredient of charitable activities. There are two distinct requirements, the purpose itself must be beneficial and not harmful to the public. In paragraph 509 of Halsbury's Laws of England, it has been discussed that it is difficult to believe that a trust would be held charitable if the poor are excluded from its benefits. 44. The cypres doctrine has been discussed in paragraph 696 of Halsbury's Laws of England. The said doctrine can be clearly pressed into service in the instant matter when the Government land has been allotted to the hospitals even if the mode of giving charity was not specified. It can be specified later on and the Court is not powerless to enforce that purpose of the charitable trust, of which the particular mode of the application had not bee....
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....resaid definition. 47. The charity in the broadest sense includes whatever proceeds from a sense of moral duty or from humane feelings towards others uninfluenced by one's own advantage or pleasure. In its widest sense, denotes all the good affections men ought to bear towards each other; in its most restricted and common sense, relief of the poor. In the Mahommedan Law, the charity has a more general import than under the English Law. A wakf of property by a Mahommedan to defray the expenses of the poor, the fakirs, the orphans, the needy and the indigent and to defray the expenses of good deeds, creates a trust for public purposes of a charitable nature. In common parlance, the word charity means giving to someone in any necessitous circumstances and in law, it means a giving for public good. 48. In P.C. Raja Ratnam Institution vs. Municipal Corporation of Delhi & Ors., 1990 (Supp) SCC 97, wherein this Court considered the definition of 'charitable purpose' under Section 115 (4) (a) of the Delhi Municipal Corporation Act, 1957, the school in question was run by a Society. It was claimed that it was a nonprofit making registered society and its object was to organize and run....
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....mption to lands and buildings occupied and used by a society for charitable purpose. It was held that conditions for applicability of the tax exemption were firstly on the society must be charitable and not earn a profit. This Court considered the meaning of charitable purpose for imparting education sans an element of public welfare not per se charitable. Secondly, society must be supported wholly or in part by voluntary contribution and lastly, society must utilize its income in promoting its object and must not pay any dividend or bonus to its members. This Court observed that the tax liability of a registered society running recognized private unaided school should be considered in the light of the above conditions. Transfer of funds by the school to the society even in the name of contribution would amount to transfer by the society itself and, therefore, cannot be considered for the purposes of the exemption. It was also observed that where running of school by the society generating positive income from the fees and donations received from the students/parents, the activity of the school was not for a charitable purpose but for commercial purpose. The conditions of charitabl....
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....e corporation itself or relieves it of a burden or furthers its objects or powers." Thus, it is apparent from the aforesaid discussion that the charitable object would be served if it is not to earn a profit. 50. The medical and legal professions stand on a different pedestal in the matter of fulfilling the obligations towards the society. They are not meant to be for commercial activity which by and large has become a bitter reality of the day. 'Free treatment' to economically weaker sections is a normal obligation by very nature of charity, and it was also contended on behalf of the hospitals that the medical treatment itself is regarded as charitable one. The question arises when medical profession is charitable, what meaning is to be given to charity and whether by virtue of commercial gains only by giving treatment, it would still retain charitable character in its true meaning. Charity in common parlance is a relief to the poor and needy. 51. What may be proper for others in the society, may still be improper for members of the legal profession. The same ethical standard applies with equal force to the medical profession. Medical profession deals with the life of huma....
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....mself pure in character and be diligent in caring for the sick; he should be modest, sober, patient, prompt in discharging his duty without anxiety; conducting himself with propriety in his profession and in all the actions of his life." It lays down in an unequivocal term that the medical profession has to render service to humanity; reward or financial gain is a subordinate consideration. The doctor is supposed to be noble in all actions of his life. 54. Under Regulation 1.2.1 it is the duty of the member of the medical profession to make available to the patients the benefits of their professional attainments. Regulation 1.2.1 is extracted hereunder: "1.2.1 The principal objective of the medical profession is to render service to humanity with full respect for the dignity of profession and man. Physicians should merit the confidence of patients entrusted to their care, rendering to each a full measure of service and devotion. Physicians should try continuously to improve medical knowledge and skills and should make available to their patients and colleagues the benefits of their professional attainments. The physician should practice methods of healing founded on a scientifi....
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....ed the land at a concessional rate, the other two hospitals, namely, Sita Ram Bhartia Institute of Science & Research and Foundation for Applied Research in Cancer have also obtained land at a lower predetermined rate, not at market rate. It was not by way of a public auction that they have received the land. Besides in the cases of Sita Ram Bhartiya Institute of Science & Research and Foundation for Applied Research in Cancer, clause 7 was inserted in the allotment letters to the effect that "The DDA reserves its right to alter any terms and conditions on its discretion." 58. It was contended on behalf of Sita Ram Bhartia Institute of Science & Research and Foundation for Applied Research in Cancer that their request for allotment of land at concessional rate had been turned down. It was urged on behalf of the State that DDA (Disposal of Developed Nazul Land) Rules, 1981, in particular Rules 3 to 6 and 20 indicate that the land was allotted to the charitable institutions at predetermined rates and not on market rates. The allotment of land to aforesaid two institutes was at predetermined rates. The predetermined rates are nowhere close to the market rates. As per the DDA Rules, l....
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....mount, laws of procedure whether in statutes or otherwise, which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way, and there is an obligation upon the doctor to treat the injured victim on his appearance before him either by himself or being carried by others. It has also been observed by this Court that the effort to save the person should be the top priority not only of the medical professional but even of the Police or any other person who happens to be connected with the matter or who happens to notice such an incident or a situation. Apprehensions that the doctor will have to face police interrogation and stand as a witness in court and face all the harassments, should not prevent them from discharging their duty as medical professionals to save a human life and to do all that is necessary. 62. In Paschim Banga Khet Mazdoor Samity (supra), this Court has observed that the Constitution envisages the establishment of a welfare State. In a welfare State, the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations under....
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.... Hospital run by the Missionaries admittedly for charity, are questioning the very conditions for which they have come into being and it appears with the passage of time they have lost the very purpose of their establishment. In our opinion they should have welcomed the conditions imposed by the Government, considering their objectives and for the purpose, they have obtained the land. Two other hospitals, namely, Sita Ram Bhartia Institute of Science & Research and Foundation for Applied Research in Cancer also cannot wriggle out of their such obligations. 65. Even when the purpose of the charitable activity is not defined, it is open to the court to define it. The decision of the Government cannot be said to be foreign to the purpose for which land is held. Thus, the action of the State cannot be said to be unauthorized, illegal or arbitrary in any manner whatsoever and is in furtherance of the very objectives for which the medical profession exists. It is very unfortunate that by and large the hospitals have now become centers of commercial exploitation and instances have come to notice when a dead body is kept as security for clearance of bills of hospitals which is per se ille....
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....roper treatment due to lack of financial means. It is apparent from the policy decision dated 10.6.1949 and also the provisions contained in section 2 of the Charitable Endowments Act, 1890 that running of hospitals is regarded as a charitable activity. The further rider in policy was that such institution claiming allotment should be secular and of noncommunal character. 68. The Arts and Crafts Society and other nonprofit making bodies were also included under the term 'charitable institution' with the rider that the institution should be run for the good of the public without any profit motive. It was contended on behalf of the hospitals that the aforesaid condition is not applicable to hospitals and would apply to Arts and Crafts Association, and there was no specific stipulation with respect to providing free treatment in the letter of allotments and lease deed. In our opinion, the rider that the Arts and Crafts institution should be run for good of the public, without any profit motive is primarily applicable to the charitable institutions like hospitals etc. then it has been only specified as an obligation to Arts and Crafts institution etc. too. As such there would be a....
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....edent. 70. It is apparent that in the case of Moolchand Kharaiti Ram Trust and St. Stephens Hospital, the lands were allotted for charitable purposes under the Scheme of the year 1949, as further modified, thus, the policy under which they had obtained lease deed would also be a relevant document and of paramount importance for entitlement to hold the land for purpose as specified in the policy, as that is the basic document governing the rights of the parties, and the terms and conditions of lease deed, would be supplemental to the main objective of the policy. The lease deed can supplement not supplant the main policy or rules as the case may be under which the allotment has been obtained and lease deed has been executed. 71. In our considered opinion, not only by the policy that prevailed in 1949, the land at concessional rates for charitable purposes, had been obtained and free treatment being as stipulated in the order dated 02.02.2012 issued by the Government of India, is within the realm of the policy under which allotment had been made at highly concessional rates in the heart of Delhi and the Delhi Development Authority Rules framed in 1981. They cannot wriggle out of th....
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....red under the Societies Registration Act, 1860 (21 of 1860) or such institution is owned and run by the Government or any Local Authority, or is constituted or established under any law [for the time being in 69 force or it is a company, firm or trust for the purpose of establishment of hospital or dispensary]; (c) it is of non-profit making character; (d) it is in possession of sufficient funds to meet the cost of land and the construction of buildings for its use; and (e) allotment to such institution is sponsored or recommended by a [Department of the Government of National Capital Territory of Delhi] or a Ministry of the Central Government: [Provided that in case of allotment to a company, firm or trust for the purpose of establishment of hospital or dispensary by tenders or auction, as the case may be, such company, firm or trust, as the case may be, shall not be required to be sponsored by a Department of the Government of National Capital Territory of Delhi or a Ministry of the Central Government.]" 74. It is apparent from Rule 5 that allotment of lands to the charitable institutions would be at predetermined rates and not on market rates. According to Rule 20 above....
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.... to the Court to create a law or an obligation and then seek to enforce it. The statement in the factual matrix has no legs to stand and we are conscious that we are not trying to create any new obligation. It was a self-created obligation on missionaries to do charity for which they exist while obtaining the land and Court is duty bound to enforce it. By the stipulation in the question of free treatment, the policy rules of allotment have been given a shape that is enforceable and cannot be termed to be a new imposition not contemplated initially. 77. On behalf of Moolchand Kharaiti Ram Trust, Will has been relied upon to indicate the purpose of creation of Trust. It is apparent that Moolchand Kharaiti Ram Trust was created by a Will executed by Lala Kharaiti Ram resident of Lahore in 1927. The Will was produced for perusal. The objects of the creation of Trust were imparting education in and preaching Sanskrit according to Sanatan Dharam methods; and, secondly, for devising means for imparting education in and improving the "Ayurvedic system of medicine" and preaching the same. In order to achieve the latter object, it was not prohibited to take help from the English or Yunani o....
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.... be placed on their right to run the institution by providing the manner in which they must run their hospitals by providing free treatment to a particular percentage of patients, this could only be done by enacting a 'law' under Article 19(6) of the Constitution. It was further contended that 'law' is clearly defined in Article 13 of the Constitution as 'statutory law' which has a foundation in a legislation enacted either by the Parliament or State Legislatures. Reliance has been placed on Kharak Singh v. State of U.P. (1964) 1 SCR 322 in which this Court observed that the provisions contained in Police Regulations had no statutory basis but were merely executive or departmental instructions and that they could therefore not be "a law" which the State was entitled to make under Article 19(2) to (6) to regulate or curtail Fundamental Rights nor would it constitute a procedure established by law in furtherance of Article 21 of the Constitution and if any action under those executive instructions violated the Fundamental Rights of a person, the person concerned would be entitled to relief from the courts. 81. Reliance has also been placed on Bijoe Emmanuel & Ors. v. State of Kerala....
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....atutory basis but were merely executive or departmental instructions framed for the guidance of the police officers. They would not, therefore, be "a law" which the State is entitled to make under the relevant Clauses (2) to (6) of Article 19 in order to regulate or curtail fundamental rights guaranteed by the several sub-clauses of Article 19(1), nor would the same be "a procedure established by law" within Article 21. The position, therefore, is that if the action of the police which is the arm of the executive of the State is found to infringe any of the freedoms guaranteed to the petitioner the petitioner would be entitled to the relief of mandamus which he seeks, to restrain the State from taking action under the regulations. 17. The two circulars on which the department has placed reliance in the present case have no statutory basis and are mere departmental instructions. They cannot, therefore, form the foundation of any action aimed at denying a citizen's Fundamental Right under Article 19(1)(a). Further it is not possible to hold that the two circulars were issued 'in the interest of the sovereignty and integrity of India, the security of the State, friendly rela....
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....and place of business and live and remain in another place wholly unfamiliar to him may operate seriously to his prejudice, and may on that account be unreasonable. xx xxx. (5) xx xx Counsel for the State while conceding that if S. 3(1)(b) was, because it infringed the fundamental freedom of citizens, void before the proclamation of emergency, and that it was not revived by the proclamation, submitted that Art. 358 protects action both legislative and executive taken after proclamation of emergency and, therefore any executive action taken by an officer of the State or by the State will not be liable to be challenged on the ground that it infringes the fundamental freedoms under Art. 19. In our judgment, this argument involves a grave fallacy. All executive action which operates to the prejudice of any person must have the authority of law to support it, and the terms of Art. 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take, but for the provisions contained in Part III of the Constitution. Article 358 does not purport to invest the State with arbit....
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....x 7. We are therefore of the view that the order made by the State in exercise of the authority conferred by S. 3(1)(b) of the Madhya Pradesh Public Security Act 25 of 1959 was invalid and for the acts done to the prejudice of the respondent after the declaration of emergency under Art. 352 no immunity from the process of the Court could be claimed under Art. 358 of the Constitution, since the order was not supported by any valid legislation." 83. For deciding the aforesaid submission pivotal question arises whether imposition of condition tantamounts to a restriction imposed within the purview of Article 19(6) of the Constitution. In our considered opinion the High Court has erred in law in holding that such stipulation could have been imposed only by a statutory law. In our considered opinion, it is not a restriction on the right to carry on medical profession, the medical profession has obligated itself by such conditions by very nature of its professional activity and when the State land is being held which is for the public good with no profit motive, such land is held for the charitable purpose of public good. The charitable purpose would include, as already discussed, the....
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....nd on common law basis. 86. The right to carry on the medical profession has not been restricted, however, what was enjoined upon the respondent-hospitals to perform otherwise had been given a concrete shape. Thus, it was permissible to issue circular in the exercise of power under Article 162 of the Constitution. It was urged on behalf of hospitals that they were doing a charitable work at their own, thus, it could not be said to be a restriction within the meaning contemplated under Article 19(6) for which a law was required. No new restriction has been imposed for the first time under Article 19(6) of the Constitution of India, as such in our opinion, there was no necessity for enacting a law, such guidelines could be issued under the executive powers. 87. In Rai Sahib Ram Jawaya Kapur & Ors. v. The State of Punjab (1955) 2 SCR 225= AIR 1955 SC 549, this Court observed that it is open to the State to issue executive orders even if there is no legislation in support thereof provided the State could legislate on the subject in respect of which action is taken. There can be executive orders in the absence of legislation in the field. This Court has observed: 85 "7. Article 73 o....
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....ed on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them. On the other hand, the language of article 162 clearly indicates that the powers of the State executive do extend to matters upon which the state Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlies article 73 of the Constitution. These provisions of the Constitution, therefore, do not lend any support to Mr. Pathak's contention. xxx xxx xxx 12. It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily, the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ o....
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....by the State Legislature and due Appropriation Acts were passed. For the purpose of carrying on the business the Government do not require any additional powers and whatever is necessary for their purpose, they can have by entering into contracts with authors and other people. This power of contract is expressly vested in the Government under article 298 of the Constitution. In these circumstances, we are unable to agree with Mr. Pathak that the carrying on of the business of printing and publishing textbooks was beyond the competence of the executive Government without a specific legislation sanctioning such course." 88. In U. Unichoyi & Ors. v. State of Kerala, AIR 1962 SC 12, in which notification issued by the Government of Kerala was questioned that wages prescribed were something above the minimum wages, the fixation was questioned on the ground that it affected the rights of the industries to carry on their activities under Article 19(1)(g) of the Constitution. The submissions were rejected following the earlier decisions of this Court in Bijay Cotton Mills Ltd. v. State of Ajmer, AIR 1955 SC 33. This Court observed that when a Committee consisting of representatives of t....
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....tract violated the fundamental right guaranteed under Art. 19(1)(g) of the Constitution. This challenge was repelled by Mukherjea, J., as he then was, who again spoke for the Court. The learned Judge held that the restrictions were imposed in the interest of the general public and with a view to carry out one of the directive principles of State policy as embodied in Art. 43 and so the impugned sections were protected by the terms of Cl. (6) of Art. 19. In repelling the argument of the employers' inability to meet the burden of the minimum wage rates it was observed that "the employers cannot be heard to complain if they are compelled to pay minimum wages to their labourers even though the labourers on account of their poverty and helplessness are willing to work on lesser wages, and that if individual employers might find it difficult to carry on business on the basis of minimum wages fixed under the Act that cannot be the reason for striking down the law itself as unreasonable. The inability of the employers may in many cases be due entirely to the economic conditions of those employers." It would thus be seen that these two decisions have firmly established the validity of t....
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....ed limit on the number of shows which a licensee can hold in a day. The rule does not prohibit exhibition of cinematograph films instead it regulates it by providing that instead of five shows only four shows should be exhibited in a day. In Narender Kumar v. Union of India, (1960) 2 SCR 375, this Court held that a law made in the public interest prohibiting a business would be valid as the 'prohibition' is only a kind of 'restriction'. The expression "restriction" includes "prohibition" also. Rule 41-A, however, does not take away the licensees' right to carry on business of exhibiting cinematograph films. It merely regulates it. No rule or law can be declared to be unreasonable merely because there is reduction in the income of a citizen on account of the regulation of the business. In our opinion, Rule 41- A does not place any unreasonable restriction on the appellants'/petitioners' fundamental right guaranteed to them under Article 19(1)(g) of the Constitution." 90. In T.V. Balakrishnan v. State of T.N. & Ors., 1995 Suppl. 4 SCC 236, wherein Rules 1A (3)(b), 2, 3(ii) and 7(4) of Tamil Nadu Timber Transit Rules, 1968 had been questioned on the ground of ....
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....t and they will not be able to sustain themselves. This Court observed that the intention in starting day and night store within the campus has direct nexus with the public interest particularly with that of patients and that the policy decision of the Government in absence of rules and regulations was not liable to be interfered with. This Court has observed thus: "5. Learned Counsel appearing for the appellants vehemently urged before us that the said advertisement inviting applications for settling the shop to have a medical store inside the hospital premises was issued in pursuance of the Government policy and with the sole object to make the medicines available to the patients even at odd hours and, therefore, the High Court should not have interfered with the administrative decision of the Government taken in the public interest. We find considerable force and much substance in these submissions. 6. In the aforesaid background the question arises whether, in the absence of any rule or regulation to the contrary, can the power of the State be abridged on the basis of an individual interest of certain trader, even to the extent of restricting the State's capacity to adv....
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....t observed that the role of Article 14 in ushering in healthy social order by providing equal opportunities to all citizens to make fundamental rights meaningful and life worth living should also consider the role of Article 38 in securing and protecting social, economic and political justice and in the case of economic legislation presumption of constitutionality arises in favour of legislation. It is empowered to make experiments on economic legislation having regard to various socioeconomic aspects. Court should not adjudge crudities and inequities arising from economic legislation. With respect to human rights and fundamental freedom, in the Universal Declaration of Human Rights, democracy, development, and respect for human rights, this Court has observed thus: "15. In Valsamma Paul v. Cochin University, (1996) 3 SCC 545, a Bench of this Court has held that human rights are derived from the dignity and worth inherent in the human person. Human rights and fundamental freedoms have been reiterated in the Universal Declaration of Human Rights. Democracy, development, and respect for human rights and the fundamental freedoms are interdependent and have mutual reinforcement. Artic....
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....rate conditions. Tillers of the soil being in unorganised sector, their voice is scarcely heard and was not even remotely voiced in these cases. Their fundamental right to cultivation is as a part of right to livelihood. It is a bastion of economic and social justice envisaged in the Preamble and Article 38 of the constitution. As stated earlier, the rights, liberties, and privileges assured to every citizen are linked with corresponding concepts of duty, public order, and morality. Therefore, the jural postulates form the foundation for the functioning of a just society. The fundamental rights ensured in Part III are, therefore, made subject to restrictions i.e., public purpose in Part IV Directives, public interest or public order in the interest of general public. In enlivening the fundamental rights and the public purpose in the Directives, Parliament is the best Judge to decide what is good for the community, by whose suffrage it comes into existence and the majority political party assumes governance of the country. The Directive Principles are the fundamentals in their manifestos. Any digression is unconstitutional. The Constitution enjoins upon the Executive, Legislature, a....
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....nufacturers Association & Ors. (1999) 6 SCC 247 constitutional validity of the policy of the Government of the State of Punjab was challenged whereby directions issued to the purchasing authorities that certain medicines used in the government hospitals and dispensaries were to be purchased from public sector manufacturers only was quashed by the High Court while allowing writ petition. Whereas Rajasthan High Court has dismissed a similar writ petition. Both the matters were decided by this Court. This Court relied upon the decision in Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 (quoted above) and observed that such restriction could be imposed by framing policy by exercising powers of the State under Article 162 of the Constitution. Therefore, the contention of the appellants in regard to creation of monopoly and violation of the fundamental rights under Articles 19(1)(g) and 19(6) was turned down. This Court has observed thus: "16. It is clear from the various judgments referred to above that a decision which would partially affect the sale prospects of a company, cannot be equated with creation of monopoly. In Ram Jawaya Kapur AIR 1955 SC 549 and Naraindas&#....
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.... these civil appeals and set aside the judgment and order of the Punjab and Haryana High Court dated 3-6-1988 made in Civil WP No. 6144 of 1987. Consequently, the said writ petition stands dismissed. No costs." (emphasis supplied) 95. In our considered opinion such stipulation for free treatment does not amount to restriction under Article 19(6) on the right enshrined under Article 19(1)(g) and even otherwise it was not necessary to enact a statutory provision by the Government in view of existing liability as per policy/rules/statutory provisions as to ethical standards and other statutory provisions in force. In Reference to question No.4 - decision in Social Jurists v. Govt. of NCT 96. In the decision rendered by Delhi High Court in Social Jurists, A Lawyer Group v. Government of NCT of Delhi, (supra), there were 20 hospitals as respondents. Out of these 20 hospitals, 18 hospitals were allotted land by Delhi Development Authority (DDA) and in the case of Veerawali and Vimhans hospitals, the land was allotted by Land and Development Office (L&DO). The Head of L&DO allotted the lands to the aforesaid two hospitals on concessional rates. Out of remaining 18 hospitals, 16 hosp....
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.... political, semipolitical organizations and local bodies for remunerative, semi-remunerative or unremunerative purposes at the premia and ground rent in force immediately before the coming into force of these rules, or at such rates as the Central Government may determine from time to time. Rule 20 (a) (i) provides that no allotment of Nazul land to public institution, referred to in Rule 5 shall be made unless, according to the aims and objects of public institution, it directly subserves the interests of the population of the Union Territory of Delhi. Rule 20 (c) provides that public institution should be a nonprofit making character. There is no such stipulation running contrary to the aforesaid provisions. The condition of free patient treatment to the poor with reference to Delhi Development Authority (Disposal of Developed Nazul Land) Rules, 1981, was examined by the High Court of Delhi, the relevant portion is extracted hereunder: "56. The condition of 25% free patient treatment to the poor thus is a condition which has been imposed in furtherance to the policy of the Government which in turn is in strict consonance to the spirit contained in Rules 5 and 20 of the Rules an....
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....rata of the society should not be required to pay any charges. The relevant part of the report of the committee reads as under: "1. Most of the representative of the hospital submitted that 25% beds earmarked for poor patients were excessive since the cost of medicines was too high. It was agreed that it should not be more than 15% in any case, but 10% would be ideal. Therefore, committee recommended 10% indoor beds free for poor patients for all-purpose including medicines and consumables. The free treatment services should be available to 25% of total OPD patients. This condition should be applicable to all the hospitals that have been allotted land by the govt. xxx xxx xxx 3. The free treatment should be totally free and not partly free and should be uniform for all hospitals that have been allotted land by the Government. 4. It is also suggested that all those institutions should provide the free services to the extent of 10% also who have not been allotted Government land. Even Nursing Homes should provide 5% of their beds for poor and needy patients. 5. In consideration of persistent violation of expressed and implied terms by the institutions, the allotment of land ....
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....s are dismissed. 25% OPD and 10% IPD patients have to be given treatment free of cost. The said patients should not be charged with anything. But that will not come in the way of the concerned hospital making its own arrangements for meeting the treatment/medicines cost, either by meeting the cost from its funds or resources or by way of sponsorships or endowments or donations." 102. Thereafter, the Government of India on 2.2.2012, issued the impugned order with respect to the policy of free patient treatment to indigent/poor persons of Delhi to be followed by the private hospitals allotted land by Land & Development Office on concessional rates. The said order is reproduced hereinbelow: "Government of India Ministry of Urban Development Land & Development Office Nirman Bhawan, New Delhi No.L&DO/L-II-B-18(107)/2012/42-47 Dated 2/2/2012 Order SUB: Policy of free patient treatment to indigent/poor persons of Delhi to be followed by the private hospitals allotted land by Land & Development Office on concessional rates - regarding. Land & Development Office, Ministry of Urban Development, Govt. of India had allotted land to the registered societies and trusts on concessio....
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....ercentage of patients will not be liable to pay any expenses in the hospital for admission, bed, medication, treatment, surgery facility, nursing facility, consumables, and non-consumables etc. The hospital charging any money shall be liable for action under the law and it would be treated as a violation of the orders of the court. The Director/M.S./member of the trust or the society running the hospital shall be personally liable in the event of breach/violation/default. ii. The hospital shall maintain the records which would reflect the name of the patient, father's/husband's name, residence, name of the disease suffering from, details of expenses incurred on treatment, the facilities provided, identification of the patient as poor and its verification done by the hospital. iii. The hospital shall also maintain details of reference from Government hospital and the reports submitted by the private hospital to Government hospital in the form of feedback of treatment provided to the patient. The records so maintained shall have to be produced to the Inspection team, constituted by the Delhi High Court, as and when required for its verification and quarterly details shoul....
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....n the complete details of treatment provided and the expenditure incurred thereon. xi. The criteria of providing free treatment would be such persons who have no income or have income below Rs.4,000/- per month for the time being which can be revised from time to time. xii. Besides admission of the patient referred from Govt. hospitals, the hospital shall also provide OPD/IPD/Casualty treatment free to the patients directly reporting to the private hospitals and would inform the nearest Govt. hospital and to the DHS within two days of his/her admission. xiii. The patients admitted in any other manner, not covered by the above guidelines shall not be entitled for claiming compliance of the conditions imposed. xiv. As per directions of the court, all the hospitals stated in the judgment and/or all other hospitals identically situated shall strictly comply with the term of free patient treatment to indigent/poor persons. xv. No benefits shall be applicable to such hospitals that had provided free treatment fully or partially in the past with the higher conditions as applicable for that time with regard to any set off of the expenses or otherwise on that ground. xvi. The ab....
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....t at all applicable to the Trust. We have examined the case thoroughly and we find that condition of free treatment had been the primary objective, which would be applicable to hospitals in question and to all other similarly situated hospitals, whether they were party to the aforesaid decision or not. The decision rendered in Social Jurists (supra) would be applicable to similarly situated institutions having been rendered in the public interest institution and affirmed by this Court by a reasoned order. 104. It is not the case of unilateral imposition of the condition of free treatment on the hospitals. The inquiry was conducted, hospitals were heard and evidence was recorded by Justice Qureshi Committee and thereafter recommendation made in the report had been accepted. The hospitals were required to show cause. Pursuant thereto, the reply had been filed. Thus, the decision cannot be said to be unilateral. 105. It is apparent that before imposing the conditions in lease deeds, a High Level 10Member Committee for hospitals in Delhi was constituted, headed by Mr. Justice A.S. Qureshi regarding the working of the hospitals and nursing homes in Delhi, to review the existing free t....
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....e very few patients. There were only 4 or 5 Ayurvedic patients in the ward on 21.3.2001. The manufacturing of Ayurvedic medicines is also considerably reduced. After noting in detail the statements of various witnesses working in the hospital, and after analysing them, the Committee has found that the Moolchand Kharaiti Ram Hospital has acted not only contrary to the wishes of its founder but also violated the terms and conditions regarding free treatment to the poor, openly both in letter and spirit. The management of hospital does not consider it to be a charitable hospital at all. The land would not have been allotted to Trust if it was not charitable. Be that as it may, nonetheless the land has been allotted for charitable purpose to the hospital. Their stand was that the word 'poor' was not defined in the lease deed or anywhere else, was adversely commented upon. Some adverse comments were also made with respect to the interpolation in the Will. We are not considering the aforesaid question of interpolation in the instant matter as nothing turns on it. The Committee observed that if the hospital was not saved immediately it may be too late because it appears to be in the proce....