Between vs Chief Executive Officer
2021 Latest Caselaw 5099 HP

                                              1

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                       ON THE 29th DAY OF OCTOBER, 2021

                                          BEFORE




                                                                       .

                HON'BLE MR. JUSTICE AJAY MOHAN GOEL





                        FIRST APPEAL FROM ORDER No. 221 of 2021
       Between:-
        FREEDOM HOME WELFARE
        SOCIETY,   V.P.O.  KINNU,




        TEHSIL BHARWAIN, DISTRICT
        UNA,     THROUGH      ITS
        PRESIDENT RAKESH KUMAR.
                                           ...APPELLANT

       (BY M/S SUNEET GOEL & RAGHAV GOEL, ADVOCATES)

       AND

       CHIEF EXECUTIVE OFFICER,
       MENTAL HEALTH AUTHORITY,


       H.P. STATE, SHIMLA-5.
                                                          ....RESPONDENT

       (BY SHRI ASHOK SHARMA, ADVOCATE




       GENERAL, WITH M/S ADARSH SHARMA
       AND   SANJEEV  SOOD,   ADDITIONAL





       ADVOCATE GENERALS)
       Whether approved for reporting? Yes.
_________________________________________________





                This petition coming on for hearing this day, the Court passed the
following:


                                          JUDGMENT

By way of this appeal filed under Sections 69 and 83 of the

Mental Health Care Act, 2017, the appellant herein has assailed Annexure

A-11, i.e., office order dated 07.10.2021, passed by the Senior Medical

Superintendent HHMH & Rehab-cum-CEO, H.P. State Mental Health

Authority, Shimla-5, which reads as under:-

"OFFICE ORDER

.

Whereas Freedom Home Welfare Society was provisionally registered at Sr. No. 063 dated 28.12.2019

with HP SMHA and subsequently renewed on dated 28.12.2019 at Sr. No. 063 to run SUD treatment and rehabilitation centre at VPO Kinnu, Tehsil Bharwain, District Una (H.P.)-177109.

And whereas Chief Medical Officer, Una, vide letter No. HFW-UNA-(NMHP-MHEC)-2020/14875 r dated 5.10.2021 has recommended closure on the basis of

inspection carried out on 20.09.2021.

You are therefore directed to close down your operations within 7 days and shift the patients to their

families. And De-addiction and rehabilitation services carried out in said SUDs treatment and rehabilitation centre shall be considered as unlawful and shall be

accordingly dealt under MHCA-2017.

Sr. Medical Supdt.HHMH & Rehab-cum-CEO H.P. State Mental Health Authority, Shimla-5"

2. Brief facts necessary for the adjudication of the present petition

are as under:-

Petitioner-Society was registered provisionally under the

provisions of The Mental Healthcare Act, 2017 (hereafter referred to as 'the

2017 Act') as a Mental Health Establishment in terms of the provisions of

Sections 65 and 66 thereof w.e.f. 28.12.2019 (Annexure P-2). Thereafter,

the said provisional registration was renewed for a period of twelve months

vide order dated 28.12.2020 (Annexure A-3). In other words, the petitioner-

Society was permitted to operate as a Mental Health Establishment up to

.

27th December, 2021. In the interregnum, on the basis of a general

complaint received against the functioning of such like Institutions, the

petitioner-Institute was inspected by the Chief Medical Officer, Una

alongwith his Team Members on 20th September, 2021 and based upon said

visit, he submitted his report dated 5th October, 2021, which has led to the

issuance of impugned order.

3. Learned counsel for the petitioner has primarily argued that the

impugned order is not sustainable in the eyes of law, as the same has been

issued without following the procedure, which is laid down under the 2017

Act for cancellation of registration. He has drawn the attention of the Court

to the provisions of Section 68 of the Act and has submitted that the

statutory provisions contained therein, which are mandatory in nature and

which have to be followed before cancellation of the registration, have not

been followed and result thereof is that the impugned office order is

rendered void abinitio. Accordingly, a prayer has been made that the appeal

be allowed and the impugned order be quashed and set aside

4. Defending the order, learned Advocate General has argued that

as the mandate of the Act was not being followed by the Institutions,

including the petitioner-Institution, accordingly, they were inspected by the

Chief Medical Officer and based upon the report of the said officer,

appropriate office order was passed by the authority envisaged under the

Act, as the same was in the larger interest of the patients, who were

undergoing treatment in such like Institutions. He further submitted that the

.

act was undertaken by the authority concerned without any discrimination,

as the same parameters were applied for all the Institutions and whereever

the infirmities were found, appropriate action was taken. On these basis, he

has stated that there is no infirmity in the impugned order and the appeal

being without merit, be dismissed.

5. I have heard learned counsel for the parties and also gone

through the impugned order as well as other documents on record.

6. The Mental Healthcare Act, 2017 has been brought into force in

place of The Mental Health Act, 1987 with the aim to provide for mental

healthcare and services for persons with mental illness and to protect,

promote and fulfill the rights of such persons during delivery of mental

healthcare and services and for matters connected therewith or incidental

thereto.

7. Chapter-X of the said Act deals with Mental Health

Establishments. Section 65 thereof provides that no person or organization

shall establish or run a mental health establishment unless it has been

registered with the Authority under the provisions of this Act. Section 66 of

the Act provides for procedure for registration, inspection and inquiry of

mental health establishments. Section 67 provides for audit of mental health

establishment and Section 68 thereof provides for inspection and inquiry

and the same reads as under:-

            "Section 68.         Inspection          and    inquiry-(1)         The




                                                                        .

Authority may, suo motu or on a complaint received from any person with respect to non-adherence of minimum

standards specified by or under this Act or contravention of any provision thereof, order an inspection or inquiry of any mental health establishment, to be made by such person as may be prescribed.

(2) The mental health establishment shall be entitled to be represented at such inspection or inquiry.

(3) The Authority shall communicate to the mental

health establishment the results of such inspection or inquiry and may after ascertaining the opinion of the mental health establishment, order the establishment to

make necessary changes within such period as may be specified by it.

(4) The mental health establishment shall comply with

the order of the Authority made under sub-section(3).

(5) If the mental health establishment fails to comply with the order of the Authority made under sub-section

(3), the Authority may cancel the registration of the mental health establishment.

(6) The Authority or any person authorized by it may, if there is any reason to suspect that any person is operating a mental health establishment without registration, enter and search in such manner as may be prescribed, and the mental health establishment shall co-

operate with such inspection or inquiry and be entitled to be represented at such inspection or inquiry."

8. Section 69 of the Act provides that any mental health

.

establishment aggrieved by an order of the Authority refusing to grant

registration or renewal of registration or cancellation of registration, may,

within the period of thirty days from such order, prefer an appeal to the High

Court in the State.

9. Now, a perusal of Section 68 of the Act demonstrates that in

terms thereof, the Authority prescribed under the Act may, suo motu or on a

complaint received from any person with respect to non-adherence of

minimum standards specified by the Act or with regard to contravention of

any provision thereof, order an inspection or inquiry of any Mental Hhealth

Establishment, to be made by such person as may be prescribed. This

Section further provides that a Mental Health Establishment shall be entitled

to be represented at such inspection or inquiry. It further provides that the

authority shall communicate to the Mental Health Establishment the result of

such inspection or inquiry and may after ascertaining the opinion of the

Mental Health Establishment, order the establishment to make necessary

changes within such period as may be specified by it. Section further

provides that the Mental Health Establishment shall comply with the order of

the Authority and in case it fails to comply with the order, then the Authority

may cancel the registration of the Mental Health Establishment.

10. As has already been mentioned hereinabove, the petitioner-

Institution was visited by the Chief Medical Officer on 20.09.2021 alongwith

team members. This was done in compliance to letter, dated 10.09.2021,

.

issued by the CEO, HPSMHA, Shimla. From the perusal of the inspection

report, it is not evident as to whether the Mental Health Establishment was

permitted to be represented during inspection or not. Be that as it may, the

fact of the matter remains that after the petitioner-Institution was visited by

the Authority concerned alongwith the team members and inspection report

dated 05.10.2021 was prepared, on the basis of which, the impugned order

has been passed. The inspection report admittedly was never

communicated to the petitioner-Society nor any instructions were issued to

the petitioner-Society to comply with the shortcomings, as stood pointed out

in the inspection report. In other words, the provisions of Sub-sections(3) &

(4) of Section 68 of the Act stand flagrantly violated while passing the

impugned order by the Authority, as no opportunity of being represented or

being heard or rectifying the purported shortcomings was given to the

petitioner-Institution before passing the impugned order.

11. This Court is of the considered view that as the respondents

have failed to comply with the provisions of Section 68 of the 2017 Act, the

subsequent order, which was passed by the appropriate authority, but

natural, is void abinitio and not sustainable in law.

12. When the Act prescribes a procedure to be followed before

arriving at a conclusion, then that procedure has to be mandatorily followed,

especially in those cases where the final order is penal in consequences

and nature. In this case, the final order has grave civil consequences. It is

penal in nature and, therefore, the provisions which are enshrined in

.

Section 68 to safeguard the interests of the Mental Health Establishments

have to be followed before passing an order envisaged under Sub-

section(5) of Section 68 of the Act, which admittedly was not done in this

case.

13. In view of the observations made hereinabove, this appeal is

allowed and order, dated 07.10.2021, passed by the Sr. Medical Supdt.

HHMH& Rehab-cum-CEO, H.P. State Mental Health Authority, Shimla, is

quashed and set aside, but with the observation that as the order has been

set aside on technical ground, the Authority shall be at liberty to proceed

against the appellant, in accordance with law afresh. Miscellaneous

applications, if any, also stand disposed of.

(Ajay Mohan Goel)

Judge October 29, 2021 (bhupender)