Dr. Ashish Subhash Agrawal vs The State Of Maharashtra Thr. ...
2021 Latest Caselaw 13127 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY


                                  NAGPUR BENCH, NAGPUR


                               WRIT PETITION NO. 2682 OF 2021


                 Dr. Ashish Subhash Agrawal,
                 Aged Major, Occupation : Doctor,
                 R/o Jalamb Naka, Khamgaon,
                 District Buldhana.                      ..... PETITIONER

                                        // VERSUS //

        1.       State of Maharashtra,
                 through its Secretary,
                 Public Health Department,
                 Mantralaya, Mumbai-32
        2.       The Collector & Chairman of Disaster
                 Management Authority, Buldhana.
        3.       The Tahsildar, Khamgaon,
                 District Buldhana
        4.       The Sub-Divisional Officer, Khamgaon
                 District-Buldhana
        5.       The Medical Superintendent,
                 General Hospital, Khamgaon,
                 District Buldhana                          ...RESPONDENTS
        =-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri Akshay A Naik, Advocate for petitioner.
        Ms. Nivedita Mehta, AGP for respondent nos. 1 to 5 / State.
        =-=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                                        CORAM : SUNIL B. SHUKRE AND
                                                ANIL S.KILOR, JJ.

DATED : 15th September, 2021.

ORAL JUDGMENT : (Per : Sunil B. Shukre, J.)

Rule. Rule is made returnable forthwith. Heard

finally by consent of the parties.

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2. The objections raised by the learned counsel for the

petitioner in the impugned order dated 28 th June, 2021, are as

follows :

i) The impugned order has been passed without

granting any opportunity of hearing to the petitioner.

ii) The two patients namely Siddharth Dabhade and

Jayshri Bobde were basically not admitted as Covid patients.

iii) Even if it is presumed, for the sake of argument

that the aforestated two patients were admitted as Covid

patients, the hospital of the petitioner could not have denied

admission and treatment to these two patients, in view of the

duty cast upon all the hospitals by the Co-ordinate Bench of this

Court at the Principal Seat headed by the Hon'ble Chief Justice,

when the Bench, in its order passed on 2 nd June, 2021 in Writ

Petition (Lodg) No. 10921 of 2021 in Wilson K. Jaiswal Vrs. The

State of Maharashtra and others, in paragraph 9, observed that

it is necessary that whosoever approaches the hospital

suspecting, as having been afflicted with Covid for treatment,

such person cannot be denied admission to that hospital and

treatment by that hospital, just because the hospital is not

recognized as a Covid Care Centre.

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        iv)              The order dated 2nd June, 2021 which approves the

circular dated 17th May, 2021 issued by the Chief Secretary that

no person shall be denied admission in the hospital for want of

with positive RTPCR test, directs the Government to take strict

action against those hospitals, medical centers which flout the

guidelines as contained in the directives of the Government of

India dated 8th May, 2021 and the circular dated 17th May, 2021

and therefore, it was mandatory for the hospital of the petitioner

to have immediately admitted the aforestated two patients

irrespective of the fact that they did not have with them any

positive RTPCR test report.

v) There was no power available with the Collector to

have passed the impugned order directing closure of the entire

hospital for an indefinite period. The Collector has no

jurisdiction to pass the impugned order.

vi) The hospital could not have been closed down by

the Collector during the period of validity of the registration

granted to the hospital under Section 5 of Maharashtra Nursing

Home Registration Act.

vii) The impugned order refers to the power available

to the Collector under Section 188 of the Indian Penal Code but,

the provision made in this Section being those relating to

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constitution of an offence, could not be resorted to for the

purpose of closing down the hospital.

3. It is seen from the impugned order that all these

objections though raised and though some of them were in the

nature of pure question of law, have not been considered in any

manner by the Collector and therefore, the impugned order has

to be held as the one which is passed without any application of

mind, which would make us to not uphold it . The writ petition

thus, deserves to be allowed and it is accordingly allowed.

4. The impugned order dated 28th June, 2021 is

hereby quashed and set aside. The matter is remanded back to

the Collector for taking an appropriate decision in the matter,

while dealing with each of the afore-stated objections, bearing in

mind the law applicable to the facts of the present case.

5. The order shall be passed within seven days from

the date of appearance of the petitioner before the Collector. The

petitioner shall appear before the Collector on 28th September,

2021 at 11 a.m.

6. If the order which is to be passed in pursuance of

the above referred directions, is adverse to the petitioner, same

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shall not take effect for a further period of two weeks from the

date of the passing of the order.

7. Rule is made absolute in the above terms. No order

as to costs.

                        JUDGE                                       JUDGE
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