Bombay High Court
Association For Protection Of Civil ... vs The Municipal Commissioner, The ... on 29 January, 2024
2024:BHC-AS:4153-DB
24.22-PIL.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO. 24 OF 2022
1. Association for Protection of
Civil Rights (APCR)
District Thane, a chapter of the
(APCR), a Society registered
Under the provisions of the
Societies Registration Act, 1860
Having its address at
C/o Shop No.5, Bhagyashree Villa,
Ground Floor, Nr. Dudhnaka,
Kalyan (W), 421 301 Dist. Thane
Through it's District President
Niyaz Ahmed Shaikh, Advocate.
2. Abuzaid Javed Iraqui
Age about 36 years, Occu: Advocate
Having address at Dost Apartment,
B-Bldg., C-Wing, Flat No.29/30,
Kausa-Mumbra, Thane 400 612.
3. Abdul Jabbar Momin
Age about 29 years, Occ: Advocate
Having address at Shop No.5,
Panna Apt. Hira Panna CHS Ltd.,
Mumbra Market, Mumbra,
Thane 400 612.
4. Mr. Hanif Dawood Kamdar
Age about 55 years, Occu: Business
2nd Floor, R.No.205, Mazhar
Mansion, Behind Ameenabad Chawl,
Chandnagar, Kausa-Mumbra,
Dist. Thane 400 612. .. Petitioners
Versus
1. The Municipal Commissioner
The Municipal Corporation of the
City of Thane, Panchpakhadi,
Thane (West) 400 601.
1
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2. The State of Maharashtra
Through Deputy Secretary,
Ministry of Urban Development
Department, Mantralaya,
Mumbai 400 032.
3. M/s. Shayona Corporation
3/14 Ruchi Apartment,
Simpoli Road, Chikoowadi,
Borivali (W), Mumbai 400 092.
4. The City Engineer
(Civil Works Department),
The Municipal Corporation
of the City of Thane,
Panchpakhadi,
Thane (West) 400 601.
5. The Chief Accounts Officer
The Municipal Corporation of the
City of Thane, Panchpakhadi,
Thane (West) 400 601. ..Respondents
Mr. Yusuf Mucchala, Senior Advocate with Mr. Karim Pathan,
Ms. Rashda Ainapore, Mr. Arbaaz Shaikh, Fazal Shaikh
and Mr. Shane I. for the Petitioners.
Mr. Ram Apte, Senior Advocate i/by Mr. N. R. Bubna for
Respondent No.1 (Thane Municipal Corporation).
Mr. P. P. Kakade, Government Pleader with Mr. O. A.
Chandurkar, Additional Govt. Pleader and Mrs. R. A. Salunkhe,
AGP for Respondent No.2.
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
RESERVED ON : 16th JANUARY, 2024
PRONOUNCED ON : 29th JANUARY, 2024
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JUDGMENT [PER CHIEF JUSTICE]:
1. Heard learned Counsel representing the parties and
perused the records available before us on this Public Interest
Litigation Petition (PIL Petition).
2. This PIL Petition seeks interference of this Court in
exercise of its jurisdiction under Article 226 of the Constitution
of India with a prayer to issue appropriate directions to the
Respondents to ensure completion of a hospital in Kausa-
Mumbra locality falling within the municipal limits of the
Municipal Corporation of Thane (hereinafter referred to as the
Corporation). A prayer has also been made to issue a
direction to institute an inquiry into the causes of delay in
completing the said hospital project and further into the
alleged excess expenditure incurred by the Corporation in the
said project and to take requisite action against the Officers
responsible for such excess expenditure, which according to
the Petitioners, appears to have been incurred without the
sanction of law.
3. Having regard to the causes sought to be espoused in
this PIL Petition, we shall, first take up the issue surrounding
non-completion of the hospital project and the steps which
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are required to be taken by the Respondents to make it
functional so as to cater the public health care needs of the
population living in the Kausa-Mumbra locality.
4. A study conducted by the Tata Institute of Social
Sciences (hereinafter referred to as the TISS) in the year
2014 into the health conditions of the citizen living in Kausa-
Mumbra highlights the urban paradox wherein on one hand, it
has areas that reflect economic prosperity while, on the other,
it has areas that are characterized by sub-standard housing
and non-availability of amenities to serve basic human needs
which is detrimental to the well-being of the inhabitants. The
study further highlights that urban slum residents of the area
exhibit poorer health characteristics which indicates presence
of structural conditions that shape inequalities in health and
illness affecting the poorer, especially the vulnerable sections
of the society such as infants, young children, elderly and
women.
5. The study also reveals that the four pillars of health,
which include promotive, preventive, curative and
rehabilitative services delivered by Health Personnel and their
support structures are weak in Kausa-Mumbra. The study
concludes as under:
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"Health of people in Mumbra-Kausa reflects an impact of
variable intensities of joblessness, homelessness,
marginalization, morbidity, food insecurity and social
disarticulation. All of these are along with lack of access
to basic public services. This has led to families having
to bear economic burden of accessing private health-
care facilities. It is evident that health risks faced by
people of Mumbra-Kausa is associated with economic
hardship which lead to further disruption of social fabric
and a feeling of uprooting, alienation and psychological
trauma."
6. With the insertion of Part IX-A in the Constitution of
India w.e.f. 1st June 1993, the Municipalities or the Urban
Local Governance bodies in the country have acquired a
constitutional status. Part IX-A not only strengthens the
municipalities by raising them to a constitutional status but it
also bestows certain responsibilities upon them. Article 243-W
mandates the Legislature of a State to vest in the
Municipalities, by making law, certain powers, authority and
responsibilities which include performance of functions and
implementation of schemes as may be entrusted to the
Municipalities including those in relation to the matters listed
in Twelfth Schedule. One of the functions enlisted in Twelfth
Schedule is "Public Health, sanitization conservancy and solid
waste management". Thus, it becomes a constitutional
function and duty of every Municipality to implement the
schemes entrusted to it including the schemes in relation to
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the public health as well.
7. It appears that realizing the statutory and constitutional
functions entrusted to the Corporation, a decision was taken
in the year 2008 to sanction construction of a 100 bedded
hospital in Kausa-Mumbra with an estimated budget of Rs.10
Crores, however, though long period of 15 years has elapsed,
the hospital has yet not become fully functional.
8. It has been averred in the PIL Petition that a fresh
proposal to set-up the hospital was approved at an estimated
revised cost of Rs.37 Crores and further that a plot comprising
of an area of 4.18 Hector was also earmarked/reserved for
the said purpose. Further assertion made in the PIL Petition is
that no action could be taken for construction of the hospital,
and the estimated cost of the hospital was increased to
Rs.54.36 Crores and accordingly a resolution to the said effect
was passed by the General Body of the Corporation on 20 th
February 2014.
9. Pointing out certain alleged irregularities in the process
of allotment of work relating to the construction of the
hospital, it has been stated by the Petitioners that as against
the budget estimate of Rs.54.36 Crores, the work order dated
27th August 2014 was issued for Rs.139.04 crores which has
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resulted in substantial increase in expenditure, however, the
hospital has yet not become functional.
10. Taking note of the delay in construction of the hospital,
this Court passed an order in this PIL Petition on 27 th
September 2023, and with a view to ascertain the actual
position on the site, both in terms of the infrastructure and
the man power, appointed a Court Commission comprising of
an expert Doctor to be nominated by the Dean, J.J. Hospital,
one Civil Engineer to be nominated by the Secretary, Public
Works Department, Government of Maharashtra and Ms.
Meenaz Kakalia, a practicing lawyer of this Court. The
Commission was entrusted to conduct an inspection, interact
with the staff available in the hospital and prepare a report on
(i) stage of completion of the building giving details (ii) the
infrastructure facilities which are available (iii) the status of
the health-care services being provided currently by the
hospital (iv) to what use the existing structure of the building
can be put to so that new departments may be started
forthwith, and (v) the Commission while preparing the report
was also required to report as to what machines and medical
equipments have been procured and as to whether these
machines and equipments are being used.
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11. The Court appointed Commission submitted its report
stating therein that Swatantriay Sainik Hakim Ajmal Khan
Hospital (hereinafter referred to as the Hakim Ajmal Khan
Hospital) constructed by the Corporation is located over a
total area of approximately 1,00,000 sq.ft. As per the said
report, the construction of the hospital is complete and the
Full Occupancy Certificate was issued by the Corporation on
5th December 2022. The Commissioner's report further states
that the Corporation plans to establish a Multi-Specialty
Health-care Centre however, the hospital has not started
functioning yet and further that the Corporation has floated
tender to develop the Health-care Centre on "Finance,
Procure, Install, Commission and Operation" basis through
"Public Private Partnership" (PPP) model. The report further
states that this health center shall function under the
supervision of the Chhatrapati Shivaji Maharaj Hospital, run
by the Respondent Corporation.
12. The Court Commission's report also mentions that as per
the tender document, the private contractor will be required
to provide the following services (a) facilities which are
mandatory to perform cardiac, super specialty, multi-specialty
procedures (b) day-to-day clinical services i.e. out-patient, in-
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patient, operative, post operative, intensive care and
diagnostic facilities (c) emergency care for cardiac patients
and (d) treatment available under the State / Central
Government run schemes to every below poverty line (BPL)
patient from Maharashtra and (e) free OPD services.
13. As per the report, the tender for running the hospital on
PPP model has been awarded and the Corporation is in the
process of finalizing the terms of the agreement. It is also
reported that two Health-care facilities are being run in the
building of Hakim Ajmal Khan Hospital which were pre-
existing and have been moved from other locations in Thane
viz. M.M. Valley Urban Primary Health Centre and Mumbra
Maternity Home. Apart from this, a dialysis unit, sonography
center and integrated counselling and testing center are also
operated from the said building. The Court Commission
further reports that the construction of the hospital is
completed in all respects which is a ground floor plus one-
story structure and the Occupation Certificate by the
competent authority has also been issued. The report further
states that the building has been handed over to the Health
Department on 28th October 2022 by the Executive Engineer
of the Corporation and thereafter to the Manager, Estate
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Department of the Corporation on 8th February 2023. As per
the report, various basic infrastructure facilities are available,
however, the facilities required to run the hospital are yet not
installed, as the same would be the obligation of the operator.
14. As observed above, M.M. Valley Urban Primary Health
Center and Mumbra Maternity Home were pre-existing and
have been moved from other locations to Hakim Ajmal Khan
Hospital along with staff. As per the report, the Mumbra
Maternity Home in the hospital building started functioning
from 10th April 2022, however, the operation theatre, pre-
operative ward, post-operative ward and neo-natal intensive
care unit (NICU) are not functional. The Court Commission
also found that though the NICU designated area has pediatric
ventilators, warmers and monitors, they are not in use. The
report also mentions that though labour room is functional
and though it is said that certain investigations are being
carried out, however, no pathologist or micro-biologist were
found working. The report also states that the operation of
dialysis center has been outsourced to a private company
known as Apex Kidney Care which has 10 beds with 10
dialysis machines. The Court Commission's report prepared
on the basis of inspection carried out on the spot and
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deliberations held with various Officers and Corporation and
the Personnel in the hospital also contains photographs which
depict unused boxes of equipments and other unutilized
equipments and spaces available.
15. The Court Commission, thus, concludes that 100 bedded
hospital has yet not become operational and that Mumbra
Maternity Home and M.M. Valley Urban Primary Health Centre
were pre existing and have been moved to this hospital from
other locations and also that certain other Health-care
facilities are being provided, however, said facilities are not
part of 100 bedded hospital. The report also states that the
facilities available presently in the hospital utilize only about
25-30% area of the building while remaining area is yet to be
utilized. The Court Commission also reports that as per the
tender document it will be the obligation of the private
operator to provide trained staff and establish departments
such as surgery, OBGY, pediatrics, orthopedic, dentistry,
cardiology etc. The report further states that procurement of
medical equipments is also required to run the hospital, all of
which shall be the duty of the private operator. One of the
findings of the Court Commission in the report is that large
number of OPD patients serviced by the Urban Primary Health
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Center indicates that the residents of the area are in need of
proper Health-care facilities and will be accordingly benefited
from the hospital proposed to be set-up.
16. In response to the Court Commissioners' Report an
affidavit dated 25th November 2023 has been filed by the
Petitioner taking exception to the proposal to run the hospital
on PPP model. It has been stated that the actual intent of the
Respondent - Corporation is ultimately to privatize the
hospital and that it does not appeal to reason that after
spending huge amount of money the hospital would be
privatized. In the affidavit, it has further been averred by the
Petitioners that the Chhatrapati Shivaji Maharaj Hospital at
Kalwa, Thane, under whose supervision the subject hospital is
proposed to be run, provides free of charge facilities to all the
patients right from basic treatments to providing facilities of
testing and operations etc. It is the submission of the
Petitioners that for the benefit of public at large, the 100
bedded hospital should function on the lines of which the
Chhatrapati Shivaji Maharaj Hospital, Kalwa is running, that is
to say, the medical care facility should be provided free of
cost. It has been stated by the Petitioners pointing out to the
Court Commission's report where they have stated that the
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residents of the area are in need of proper health-care
facilities and that they shall be accordingly benefited from
hospital proposed to be set-up. The submission is that such
object of providing proper health-care services to the
residents of the area cannot be achieved unless the health-
care services are provided free of charge considering the
socio-economic status of the population at large living in the
vicinity of the hospital.
17. An additional affidavit dated 6th December 2023 has
been filed by the Dean, Chhatrapati Shivaji Maharaj Hospital,
Kalwa, Thane wherein it has been stated that vide Resolution
No.750, dated 3rd March 2022 of the General Body of the
Respondent Corporation it has been decided to run Freedom
Fighter Hakim Ajmal Khan Hospital on PPP model for want of
adequate funds and staff.
18. According to the said additional affidavit, citizens holding
yellow ration card, Annapurna ration card and orange ration
card shall not be charged any amount however, the citizens
who do not fall in these categories will be charged as per the
Mahatma Jyotiba Phule Jan Arogya Yojna (hereinafter referred
to as the "said Yojana") and that those who are not covered
under the said Yojana will be charged 79% of the Central
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Government Health Services scheme rates and the contractor
shall offer 21% discount. The affidavit further states that the
hospital shall be operational within 90 days from the date of
issuance of the work order as per the letter of the Contractor
and certain medical equipments shall also be procured. It
also states that the electrical ancillaries and medical
equipments such as monitors, beds, dialysis machines, CPAP
etc. which are lying in the hospital may be utilized once the
operation of the said hospital will commence by private
operator. As per the tender document the operator shall be
liable for the equipments, maintenance and other materials
required to run the hospital at full capacity at his cost. It is
also stated in the affidavit that the hospital will provide 1659
medical procedures covering almost all types of treatments
and surgeries covered by the health-care scheme of the
Government of Maharashtra known as Mahatma Jyotiba Phule
Jan Arogya Yojna and that all treatments covered under the
Central Government Health Scheme, Mahatma Jyotiba Phule
Jan Arogya Yojna as well as other treatments will also be
provided in the hospital. The affidavit further states that the
cash counter of the hospital will be managed by the
Respondent-Corporation which will ultimately result in better
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services to the patients and that the contractor will not be in a
position to discriminate between the patients. As per the said
affidavit, the rates to be charged for treatment and surgical
procedures are fixed as per the Government policy and will
not be left to the discretion of the contractor.
19. In response to the additional affidavit dated 6 th
December 2023 filed by the Dean of Chhatrapati Shivaji
Maharaj Hospital, Kalwa, an affidavit dated 20 th December
2023 has been filed by Petitioner No.2 stating therein that a
large population of Mumbra-Kausa constitute Lower Income
Group (LIG), Middle Income Group (MIG) and Economically
Weaker Sections (EWS) which remain uncovered by the State
sponsored Mahatma Jyotiba Phule Jan Arogya Yojna. Further
submission in the said affidavit is that the tender document
for PPP does not make any mention about the Mahatma
Jyotiba Phule Jan Arogya Yojna as spelt out in the affidavit
filed by the Corporation. According to the said affidavit, free
medical facilities are available only to the patients having
yellow and orange ration card, Annapurna Card and Antodaya
Card whereas, the resolution of Corporation dated 3 rd March
2022 was passed with the aim and object that the citizens
who do not have any card shall also get free medical services.
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Referring to the resolution dated 3rd March 2023 passed by
the Respondent Corporation it has been pointed out that the
said resolution contains the following:
"It will be mandatory to provide free medical services to
the partner for the poor and those who do not have
yellow or orange ration cards and other patients in the
Thane Municipal Corporation area and the
reimbursement will continue to be paid to the partner as
per the rates fixed by the Municipal Committee".
20. The affidavit also quotes the following extract from the
resolution of the Corporation dated 3rd March 2023:
"And the finance officer also issued issue no.1 st to 3rd
Chhatrapati Shivaji Maharaj Specialty, super Specialty
and General at Freedom Fighter Hakim Ajmal Khan
Hospital (Extension Center). (General) of a private
medical institution to provide medical service facilities
for a period of 30 years on PPP basis proposed strategic
decisions on selection and approval of Expression of
Interest (EOI) tenders is Also, According to the proposal
of the department, it will be mandatory to provide free
medical services to the partner for the poor and those
who do not have yellow and orange ration cards and
other patients in the municipal area and the
reimbursement according to the expenses incurred will
be paid to the partner as per the rate fixed by the
committee of Thane Municipal Corporation at the time
of payment. However, since it is necessary to provide
the required amount in the municipal budget for the said
refund amount, the department has given feedback on
submitting the proposal under the following terms and
conditions for the strategic decision of this General
Assembly, the public health department should take care
to resolve the said issues in their report."
21. It has, thus, been submitted on behalf of the Petitioners
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that the subject hospital should also be run on the model on
which the Chhatrapati Shivaji Maharaj Hospital, Kalwa is
running without interference of any private entity and that the
Chhatrapati Shivaji Maharaj Hospital is a Multi-Specialty
Hospital, free to all categories of patients in all aspects.
22. Mr. Mucchala, learned Senior Advocate representing the
Petitioners has laid much emphasize on Article 21 of the
Constitution of India as also he asserted Article 47 of the
Constitution of India, according to which, it is the duty of the
State to improve public health and that the State shall have
regard to raising of level of nutrition and the standard of living
and the improvement of public health as amongst its primary
duties. Reliance in this regard has been placed on the
judgments of Hon'ble Supreme Court in the case of Tamil
Nadu Medical Officers Association Vs. Union of India 1,
Union of India Vs. Moolchand Kharati Ram Trust2,
Paschim Banga Khet Mazdoor Samiti Vs. State of West
Bengal3, Sukh Sagar Medical College Vs. State of
Madhya Pradesh & Ors.4 and the judgment in the case of
Proper Treatment of Covid-19 Patients & Dignified
1 2021 (6) SCC568
2 2018 (8) SCC 321
3 1996 (4) SC 37
4 2021 (13) SCC 587
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Handling of Dead Bodies in the Hospitals5.
23. Learned Senior Counsel for the Petitioners has also
referred to Government Resolution dated 23rd August 2023
issued by the Department of Public Health, Government of
Maharashtra. Our attention has been drawn to the following
Government decision embodied in the Government Resolution
dated 23rd August 2023:
"Government decision :-
01. Examinations, services and treatment from
Government patients under the control of the Public
Health Department and medical services on public
private partnership basis (excluding the service charges
levied for supply of blood and blood components as per
the National Blood Policy) are approved for free
02. Examination and patient fees, services are free in
government hospitals under the auspices of the
department as reference no. 01 to ratify the
Government decision dated 28.12.2015 is coming
03. Services charged for supply of blood and blood
components as per National Blood Policy Charges will be
processed separately.
04. As per this Government decision treatment and
services have been made free of patient fee a notice to
this effect should be displayed on the facade/ board of
the hospital. Also the same The Commissioner, Health
Services should take action to give wide publicity to the
decision.
05. Strict action should be taken against those
concerned who are found to be charging patients by
misleading/cheating the patients/public after free
5 2021 (3) SCC 519
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examination and treatment services. The Commissioner,
Health Services should determine the procedure in this
regard.
06. The said government decision is effective from
August 15, 2023. The said Government decision Hon.
State Cabinet meeting held on August 3, 2023 subject
no. 9 is being issued pursuant to the approval given u/s.
07. The said Government decision has been made
available on the website of Maharashtra Government
www.maharashtra.gov.in and its reference number is
202308231324241917. This order is being authenticated
with digital signature.
By order and in the name of the Governor of
Maharashtra."
24. Emphasizing on point 4 of the afore-quoted Government
decision, which provides that treatment and services have to
be made free to the patients, it has been thus submitted by
Mr. Mucchala, learned Senior Advocate representing the
Petitioners that the subject hospital is also governed by the
said Government Resolution dated 23 rd August 2023 and
hence a direction be issued to the Respondent Corporation to
extend the facility of free of charge treatment to the patients
residing in the municipal limits of the Thane Municipal
Corporation.
25. Mr. Ram Apte, learned Senior Advocate representing the
Respondent Corporation has submitted that in fulfillment of its
duties to provide affordable public health-care, the
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Corporation had taken a decision to construct the hospital
which is complete so far as the building is concerned and to
run the hospital, as per the decision of the Respondent
Corporation, tenders were invited to run it on PPP model. He
has further stated that the tender process has been
completed and the Operator has also been selected, however,
on account of pendency of the proceedings of this PIL Petition
and in deference to this Court, the work order has not been
issued. He has further stated that if the work order is issued,
the hospital shall start functioning to its capacity within three
months. He has also argued that the facility of free medical
services and subsidized medical services will be provided as
per the details given in the affidavit dated 6 th December 2023
filed by the Dean of the Chhatrapati Shivaji Maharaj Hospital,
Kalwa. Submitting further he stated that the citizens holding
yellow ration card, Annapurna ration card and orange ration
card would not be charged any amount while they are
provided health-care benefits and medical aid however, those
citizens who do not fall under these categories will be charged
as per the Mahatma Jyotiba Phule Jan Arogya Yojana. He has
also stated that if the ailment to be treated is not covered
under the said Yojana, the patient will be charged 79% of the
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rates of the Central Government Health Scheme (CGHS) and
nearly 21% discount shall be offered by the Operator who will
be entrusted to run the hospital. Mr. Apte, learned Senior
Advocate has also submitted that the Government Resolution
dated 23rd August 2023 which, in certain cases, provides for
making available the treatment and medical services free, is
not applicable, as the same has been issued by the Public
Health Department of the State Government and not by the
Department of Urban Development which is the administrative
department so far as the municipalities in the State, including
Thane Municipal Corporation, are concerned.
26. According to Mr. Apte, learned Senior Advocate, in terms
of the provisions contained in Section 450A of the
Maharashtra Municipal Corporations Act, 1949 (hereinafter
referred to as the MMC Act) the State Government has been
vested with the power to issue instructions or directions as to
the matters of Policy to be followed by the Corporation in
respect of its duties and functions. He has further stated that
the State Government also enjoys the power to issue
directions in larger public interest and for implementation of
the policies of the Central Government or the State
Government and the National or the State level programmes
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and projects or schemes. Once any such directions or
instructions are issued, it shall be the duty of the Corporation
to give effect to the same, however, before issuing such
directions the Government is to give opportunity to the
Corporation to make representation within 15 days, as to why
such instructions or directions shall not be issued. He has,
thus, stated that any Government instructions or directions to
be binding on the Corporation needs to be issued by following
the procedure as prescribed in Section 450A of the MMC Act
and so far as the Government Resolution dated 23 rd August
2023 is concerned, no such procedure was followed. The
submission is, thus, that the Government Resolution dated
23rd August 2023 issued by the Public Health Department of
the State Government is not referable to Section 450A of the
MMC Act and as such, it is not binding on the Corporation.
27. Mr. Apte, learned Senior Advocate has, thus, argued that
the hospital to be run at Kalwa-Mausa will be governed by the
decision taken by the Corporation itself. He has also argued
that it lies well within the authority of the Corporation to
decide as to whether a particular activity (in this case running
a hospital) is to be undertaken by the Corporation by adopting
PPP model or otherwise and such a decision, which relates to
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policy making powers of the Corporation, is not liable to be
interfered with. He has, thus, prayed that the petition may be
dismissed and the hospital may be allowed to be run on the
PPP model as decided by the Respondent Corporation.
28. The decision to construct and run the hospital was taken
way back in the year 2008 by the Corporation. It has taken a
span of one and half decade for the Respondent Corporation
to complete its building. However, admittedly, apart from
running two units (i) Primary Health Center, and (2) Maternity
Home, which were pre-existing and were running outside the
subject hospital, the hospital is yet to be made functional. As
a result of such a delay, the cost is obviously bound to
escalate, burden of which will again have to be borne by the
tax payers. This situation cannot be appreciated.
29. As disclosed by the aforementioned study undertaken by
the TISS way back in the year 2014, admittedly, most of the
population living in Mumbra-Kausa area belongs to
disadvantaged and economically weaker sections of the
society and adequate and proper health-care system is not
available in the area. Non-availability of access to basic
health services, as per the TISS report, results in joblessness,
homelessness, further marginalization and food insecurity.
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The report also evidences that the health risks faced by the
people of the Kausa-Mumbra is associated with the economic
hardship which lead to further disruption of social fabric and
feeling of uprootedness, alienation and psychological trauma.
Thus, considering the present socio-economic condition of the
large number of population living in Kausa-Mumbra locality,
need of appropriate, affordable and adequate public health
system is greatly felt.
30. After inclusion of Part IX-A in the Constitution of India,
the Urban Local Bodies now bear greater responsibilities in
terms of the provisions contained in Article 243-W read with
Twelfth Schedule of the Constitution of India which, inter alia,
casts duty upon such Urban Local Bodies to provide the
facilities of public health as well. Article 47 of the Constitution
of India, though appears in Part-IV (Directive Principles of
State Policy), nonetheless it casts a duty on the State to
improve public health. Article 47 of the Constitution of India
is extracted hereinbelow:
"47. Duty of the State to raise the level of nutrition
and the standard of living and to improve public
health - The State shall regard the raising of the level
of nutrition and the standard of living of its people and
the improvement of public health as among its primary
duties and, in particular, the State shall endeavor to
bring about prohibition of the consumption except for
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medicinal purposes of intoxicating drinks and of drugs
which are injurious to health."
31. As has been laid down by the various pronouncements of
the Hon'ble Supreme Court and this Court, the fundamental
rights and directive principles constitute the "conscience" of
our Constitution. The settled law, by now, is while
determining the scope and ambit of fundamental rights
forming Part-III of the Constitution of India, the Courts are to
be guided by the Directive Principles of State Policy and the
Courts should attempt to give effect to both, Part-III and Part-
IV as much as possible. The said legal position has been
enunciated by the Hon'ble Supreme Court in the case of
Unnikrishnan Vs. State of Andhra Pradesh 6. Though
Unnikrishnan is a judgment rendered prior to insertion of
Article 21-A in the Constitution, which makes right to free and
compulsory education to all children aged between six to
fourteen years as their fundamental right, however, the first
declaration that Right to Free and Compulsory Education to
these children is a fundamental right was made in
Unnikrishnan. As to how Part-III and Part-IV of the
Constitution of India interplay, has been enumerated in
paragraphs 153 to 165 in Unnikrishnan which are extracted
6 1993(1) SCC 645
24.22-PIL.doc
hereinbelow:
Interplay of Parts III and IV:
153. This Court has also been consistently adopting the ap-
proach that the fundamental rights and directive principles
are supplementary and complementary to each other and
that the provisions in Part III should be interpreted having re-
gard to the Preamble and the Directive Principles of the State
Policy. The initial hesitation to recognise the profound signif-
cance of Part IV has been given up long ago. We may explain.
154. While moving for consideration the interim report on
fundamental rights, Sardar Vallabhai Patel described both the
rights mentioned in Parts III and IV as 'fundamental rights' --
one justiciable and other non-justiciable. In his supplemental
report, he stated:
"There were two parts of the report; one contains fun-
damental rights which were justiciable and the other
part of the report refers to fundamental rights which
were not justiciable but were directives."
155. This statement indicates the signifcance attached to
directive principles by the Founding Fathers. It is true that in
State of Madras v. Champakam Dorairajan [1951 SCC 351
: 1951 SCR 525 : AIR 1951 SC 226] fundamental rights were
held pre-eminent vis-a-vis directive principles but since then
there has been a perceptible shift in this Court's approach to
the interplay of fundamental rights and directive principles.
156. As far back as in 1958, in the Kerala Education Bill,
1957 [1959 SCR 995 : AIR 1958 SC 956] a Special Bench of
this Court speaking through S.R. Das, C.J., while affirming the
primacy of fundamental rights, qualifed the same with the
following observations:
"Nevertheless, in determining the scope and ambit of
the fundamental rights relied on by or on behalf of any
person or body the court may not entirely ignore these
Directive Principles of State Policy laid down in Part IV
of the Constitution but should adopt the principle of
harmonious construction and should attempt to give
effect to both as much as possible."
157. This is also the view taken in Mohd. Hanif Quareshi
v. State of Bihar [1959 SCR 995 : AIR 1958 SC 956] .
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158. In Kesavananda Bharati v. State of Kerala [(1973)
4 SCC 225 : 1973 Supp SCR 1] more than one learned Judge
adverted to this aspect. In the words of Hegde and Mukher-
jea, JJ.: (SCC pp. 502-03, paras 712, 713 and 716)
"The fundamental rights and the directive principles
constitute the 'conscience' of our Constitution .... To ig-
nore Part IV is to ignore the sustenance provided for in
the Constitution, the hopes held out to the Nation and
the very ideals on which our Constitution is built ....
[T]here is no anti-thesis between the fundamental
rights and the directive principles. One supplements
the other."
159. Shelat and Grover, JJ. in their judgment observed: (SCC
pp. 427 and 459, paras 533 and 596)
"Both Parts III and IV ... have to be balanced and har-
monised -- then alone the dignity of the individual can
be achieved .... They (fundamental rights and directive
principles) were meant to supplement each other."
160. Mathew, J. while adopting the same approach re-
marked: (SCC pp. 875-76, para 1700)
"The object of the people in establishing the Constitu-
tion was to promote justice, social and economic, lib-
erty and equality. The modus operandi to achieve these
objectives is set out in Parts III and IV of the Constitu-
tion. Both Parts III and IV enumerate certain moral
rights. Each of these Parts represents in the main the
statements in one sense of certain aspirations whose
fulflment was regarded as essential to the kind of soci-
ety which the Constitution-makers wanted to build.
Many of the articles, whether in Part III or Part IV, repre-
sents moral rights which they have recognised as inher-
ent in every human being in this country. The task of
protecting and realising these rights is imposed upon all
the organs of the State, namely, legislative, executive
and judicial. What then is the importance to be at-
tached to the fact that the provisions of Part III are en-
forceable in a court and the provisions in Part IV are
not? Is it that the rights reflected in the provisions of
Part III are somehow superior to the moral claims and
aspirations reflected in the provisions of Part IV? I think
not. Free and compulsory education under Article 45 is
certainly as important as freedom of religion under Arti-
cle 25. Freedom from starvation is as important as right
to life. Nor are the provisions in Part III absolute in the
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sense that the rights represented by them can always
be given full implementation ...."
161. Y.V. Chandrachud, J. (as he then was) put the same
idea in the following words: (SCC pp. 999-1000, para 2120)
"As I look at the provisions of Parts III and IV, I feel no
doubt, that the basic object of conferring freedoms on
individuals is the ultimate achievement of the ideals set
out in Part IV .... [M]ay I say that the Directive Principles
of State Policy should not be permitted to become 'a
mere rope of sand'. If the State fails to create condi-
tions in which the fundamental freedoms could be en-
joyed by all, the freedom of the few will be at the mercy
of the many and then all freedoms will vanish."
162. In State of Karnataka v. Ranganatha Reddy
[(1977) 4 SCC 471] Krishna Iyer, J. stated: (SCC p. 496, para
45)
"Our thesis is that the dialectics of social justice should
not be missed if the synthesis of Part III and Part IV is to
influence State action and court pronouncements."
163. In U.P. State Electricity v. Hari Shankar Jain
[(1978) 4 SCC 16 : 1979 SCC (L&S) 481 : AIR 1979 SC 65] it
was observed: (SCC p. 24, para 5)
"Addressed to courts, what the injunction (Article 37)
means is that while courts are not free to direct the
making of legislation, courts are bound to evolve,
affirm and adopt principle of interpretation which will
further and not hinder the goals set out in the Directive
Principles of State Policy. This command of the Consti-
tution must be ever present in the minds of the judges
while interpreting statutes which concern themselves
directly or indirectly with matters set out in the Direc-
tive Principles of State Policy."
This is on the view that the 'State' in Article 36 read with Arti-
cle 12 includes the judiciary as well.
164. In Minerva Mills Ltd. v. Union of India [(1980) 3
SCC 625 : AIR 1980 SC 1789] Chandrachud, C.J. quoted with
approval the simile of Granville Austin that Parts III and IV are
like two wheels of a chariot and observed that "to give abso-
lute primacy to one over the other is to disturb the harmony
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of the Constitution". The learned Chief Justice observed fur-
ther: (SCC p. 654, para 57)
"Those rights (fundamental rights) are not an end in them-
selves but are the means to an end. The end is specifed in
Part IV."
165. It is thus well established by the decisions of this Court
that the provisions of Parts III and IV are supplementary and
complementary to each other and that fundamental rights
are but a means to achieve the goal indicated in Part IV. It is
also held that the fundamental rights must be construed in
the light of the directive principles. It is from the above
standpoint that Question No. 1 has to be approached.
32. In State of Punjab and Ors. Vs. Ram Lubhaya
Bagga and Ors.7 the Apex Court has observed that "the
State can neither urge nor say that it has no obligation to
provide medical facility. If that were so, it would be ex facie
violative of Article 21. In State of Punjab and Ors. Vs.
Mohinder Singh Chawla and Ors.8 Hon'ble Supreme Court
has reiterated that "it is now settled law that right to health is
integral to the right to life. Government has a constitutional
obligation to provide health facilities. In V. Markendeya Vs.
State of A.P.9 the Hon'ble Supreme Court has observed that,
while considering the question of enforcement of fundamental
rights of a citizen it is open to the Court to be guided by the
Directive Principles to ensure that in doing justice, the
principles contained therein are maintained.
7 (1998) 4 SCC 117
8 (1997) 2 SCC 83
9 (1989) 3 SCC191
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33. Thus, it is now well settled that duty of the State as cast
by Article 47 of the Constitution of India has to be taken aid of
for giving full meaning to right to life enshrined as
fundamental right under Article 21 of the Constitution of
India. Right to life does not mean mere animal existence, it
will encompass in it the right to live with dignity and if any
citizen is deprived of affordable public health services, right to
life with dignity cannot be ensured, it will rather be
compromised.
34. In the light of the above discussion and also considering
a large part of the population of Kausa-Mumbra locality
belonging to the disadvantaged and economically weaker
sections of the society it becomes duty of the Court to ensure
that the citizens of Kausa-Mumbra enjoy the facility of
affordable public health services so that their right to life with
dignity can be ensured. The study conducted by the TISS, as
noticed above, leads us to observe that health of the people of
Kausa-Mumbra locality is a cause of grave concern for the
Court as also the public authorities. The provisions of Article
243-W read with Twelfth Schedule and Article 21 read with
Article 47 of the Constitution of India and various other
provisions contained in MMC Act, thus, cast a duty on the
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municipality i.e. Thane Municipal Corporation to provide public
health-care system in a way which is affordable and accessible
to all irrespective of their socio-economic condition.
35. At this juncture, we may refer to Resolution No.750,
dated 3rd March 2022 passed by the Respondent Corporation
which in no uncertain terms reflects the resolve of the
Municipal Corporation to in fact discharge the duty cast upon
it and provide free medical services for the poor and to those
who do not have yellow and orange ration card and also other
patients, who are habitants of Thane Municipal Corporation
area. The relevant portion (from a translated copy) of the said
Resolution has already been referred by us above in
paragraph 19 of this judgment. Thus, in view of the aforesaid
resolution, it is incumbent upon the Corporation to translate
the aforesaid Resolution into action. This would therefore
necessarily mean that the Corporation would have to ensure
that any medical facility and/or public health-care system
which is to be evolved by the Municipal Corporation is to
necessarily provide free medical aid/treatment for the poor
within the Thane Municipal Corporation limits. The fact that
the hospital is to be run on the basis of a PPP model would not
make any difference since (a) the same is admittedly a
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Municipal Hospital built entirely from public funds and (b) the
Resolution itself provides that the Municipal Corporation will
reimburse the private partner as per the fixed rate
ascertained by the Municipal Committee.
36. However, the exception being taken by the Petitioners to
the decision of the Respondent Corporation to run the hospital
on PPP model, in our considered opinion, is not tenable. It is
a policy matter, decision in respect of which has to be
necessarily left to the Corporation and such a decision, since
falls in the executive realm, need not be interfered with by
this Court.
37. For the discussion made and reasons given above, the
instant PIL petition is disposed of with the following
directions:
a) The Respondent - Corporation is directed to run
the subject hospital ensuring that the decisions taken by
it as embodied in its Resolution No.750 dated 3 rd March
2022 are complied with in letter and spirit.
b) Any Agreement entered into by the Respondent -
Corporation to run the Hospital on a PPP model would
therefore necessarily have to be in conformity with
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Resolution No. 750 dated 3rd March 2022 to the extent
that the same would inter alia require free medical
services to be given to the poor and those who do not
have yellow and orange cards and other patients.
c) The Petitioners are permitted to make an
appropriate application / representation to the Principal
Secretary of the State Government in the Department
concerned in respect of the alleged irregularities said to
have been committed in the process of construction of
the hospital building which allegedly has resulted in cost
escalation and favouritism causing unnecessary burden
on the State exchequer, as averred in the PIL Petition,
which shall be considered and an appropriate decision
which may be warranted under Law, may be taken by
the State Government at its discretion.
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
