Manish Tiwari vs State Of ...
2021 Latest Caselaw 3196 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 11
 

 
Case :- MISC. BENCH No. - 5435 of 2021
 

 
Petitioner :- Manish Tiwari
 
Respondent :- State Of U.P.Thru.Prin.Secy.Medical & Health,Lucknow & Ors.
 
Counsel for Petitioner :- Shireesh Kumar,Vaibhav Pandey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajan Roy,J.

Hon'ble Saurabh Lavania,J.

Heard.

This is a writ petition under Article 226 of the Constitution of India challenging an order dated 12.01.2021 contained in Annexure No. 11 asking the petitioner to vacate the milk booth at present situated in the premises of Balrampur Hospital, Lucknow within 48 hours. He has also challenged another order dated 19th October, 2020, which has been passed in pursuance to the directions of this Court dated 18.01.2020 given in writ petition No. 34527 (MB) of 2019 filed by the petitioner alongwith some connected petitions, by which, the State Government has taken a decision not to permit milk booths etc. within the hospital premises.

Contention of counsel for the petitioner is that his agreement for running the parag milk booth in the premises of Balrampur Hospital, Lucknow is to expire on 31.03.2021. Further contention is that the impugned orders are not in tune with the observations/directions contained in the judgment dated 18.01.2020 passed in the aforesaid writ petition. He has invited our attention to the observations of the Court at page 46 of the paper book, wherein it has been stated that at least milk booth be permitted in the premises of the hospital as milk may be required for the patient also. It has further been observed in the said judgment that if it cannot be permitted within the premises, arrangement be made near the hospital premises so that without any difficulty the attendant/patient may get milk.

Learned counsel says that these observations have not been kept in mind. Firstly, the least that was required by the Government was to make provision for milk and milk products, which would have catered to the needs of the patients and their attendants. Secondly, he says if for some reasons, this arrangement was not to be made within the hospital premises, alternative arrangement should have been made near the hospital as directed by this Court, but this has also not been done. He says that apart from it, sale of milk and other products from the parag milk booth, which is run by the cooperative society of the State Government, is not a commercial activity and is not driven by profit motive but only commission is charged, some of which is shared by the Cooperative Society with the hospital itself and also with the Apex society.

The learned Additional C.S.C. has invited our attention to the same judgment albeit the concluding part, wherein, liberty was granted to the State Government either to allow the milk booth within the premises of the Government Hospital or not to allow the same.

Having heard the learned counsel for the parties and perused the records, while we do feel that provision for milk and milk products would have catered to the needs of the patients and their attendants but we find that in the earlier judgment, it was left open for the Government either to allow the milk booth within the premises of the Government Hospital or not to allow the same, however, with the rider that in the event it is decided not to allow milk booths within the hospital premises then the policy shall be implemented uniformly in all the Government Hospitals.

In the impugned order, we find a mention about availability of edible facilities within the hospital. This apart, the intent of the Government in this regard is that such activities, which have been termed as commercial activities, be not allowed within the hospital as it leads to crowding and rowdyism, therefore, to avoid unnecessary commotion, this decision has been taken. Now, the rights of the petitioner, if any, are qualified by the earlier judgment of this Court dated 18.01.2020. We may refer to the relevant portion of the said judgment, which is as under:-

"By virtue of the circular referred to above, the activities undertaken by the petitioners have been stopped despite an agreement and otherwise it is alleged that similar activities are permitted in few other government hospitals, thus a case of discrimination has been brought.

This Court took notice of the aforesaid and directed the standing counsel to come out with a proper policy decision and than to apply it on all the government hospitals without discrimination. It is with the observation that at least milk booth be permitted in the premises of hospital as milk may be required for the patient also. If it cannot be permitted within the premises, arrangement be made near the hospital premises, so that without any difficulty, the attendant/patient may get the milk.

In pursuant to the direction given by this Court in the batch of writ petitions, a favourable recommendation was made by the department. It is to allow the operation of milk booth with the rider that other than milk product, no other product would be sold. It is also that the policy/decision to apply without discrimination for all the government hospitals or the hospitals owned by the government. The matter is pending with the State Government, as stated by the standing counsel. The sufficient time to take a decision has already been given.

In view of the above, we disposed of these batch of writ petitions with a direction to the State Government take a final decision on the proposal send by the department and it would be within one month from the date of receipt of copy of this order.

It is made clear that if a decision is taken to allow operation of milk booths within the premises of government hospital, it should be with a rider that other than milk product, no other product would be sold by the booth holder. If the decision is taken by the government not to allow the operation of milk booths within hospital premises but near the hospital, it would be applied to all the government hospitals without discrimination and accordingly in case of adverse decision by the government, none would be allowed to operate even milk booth in the premises of the hospital. The strict compliance of the state government decision would thus be made.

In case of adverse decision by the State government, the petitioners would be at liberty to approach this court afresh."

On a perusal of the said observations/directions, we are not in doubt that it was open for the Government not to allow milk booth within the Government Hospital. However, while doing so, it was also required to ensure that such provision is made near the hospital to cater to the needs of the patients and their attendants. The learned counsel is right in saying that this aspect has not been taken into consideration. However, we are also of the view that as far as the hospital or the Principal Secretary Department of Medical and Health, Government of U.P. is concerned they may not on their own be competent to make a provision for such parag milk booth outside the hospital premises as it would depend as to the title of the land outside the hospital premises and other relevant facts and this may be in the domains of departments/authorities.

Nevertheless, such a proposal can certainly be initiated by the said Department and a considered decision can be taken at the competent level by the concerned Department/Authority /Corporation but on the initiative of the opposite party No. 1, so that the earlier judgment dated 18.01.2020 is followed in letter and spirit.

While we decline to interfere with the impugned orders in view of the reasons given therein, we are of the view that the opposite party No. 1 should initiate a process with the assistance of the concerned government hospital or any other authority in the government as also the local authorities who may have a role to play in this regard for providing necessary facilities such as milk and other edible items for the convenience of the patients and their attendants outside the government hospital premises as far as it may be feasible and permissible in law. It is made clear that if such facilities are already existing near the government hospital then fresh facilities unless required need not be provided, provided the existing facilities are sufficient to cater to the needs of the patients and attendants visiting the hospital. The opposite party No. 1 shall coordinate the aforesaid exercise and the concerned department/local authority as the case may be shall do the needful in this regard and inform the opposite party No. 1 accordingly. The aforesaid exercise shall be completed within six months.

With these observations/directions, the writ petition is disposed of.

Order Date :- 8.3.2021

Arun/-