Madhya Pradesh High Court
Mohd. Aslam vs The State Of Madhya Pradesh on 21 February, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 W.P. No.3671/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 21st OF FEBRUARY, 2024
WRIT PETITION No. 3671 of 2024
BETWEEN:-
MOHD. ASLAM S/O MOHD. ISRAEL, AGED
ABOUT 55 YEARS R/O B-16 INDRA VIHAR
COLONY, AIRPORT ROAD, BHOPAL (M.P.)
THROUGH HIS SON MOHD. AMAN S/O
MOHD. ASLAM AGED ABOUT 26 YEARS R/O
B-16 INDRA VIHAR COLONY AIRPORT RAOD
BHOPAL (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAJESH MAINDIRETTA - ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH
THROUGH ITS PRINCIPAL SECRETARY
DEPARTMENT OF HELATH AND
FAMILY WELFARE VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)
2. APPROPRIATE AUTHORITY, HUMAN
ORGAN TRANSPLANT COMMITTEE
GANDHI MEDICAL COLLEGE
AUTONOMOUS SOCIETY, BHOPAL
THROUGH ITS CHIEF EXECUTIVE
OFFICER (MADHYA PRADESH)
3. APOLLO SAGE HOSPITALS, E-8
EXTENSION ARERA COLONY, BHOPAL
THROUGH CHIEF EXECUTIVE
OFFICER (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SWAPNIL GANGULY - DEPUTY ADVOCATE GENERAL)
............................................................................................................................................
This petition coming on for admission this day, the court passed the
following:
2 W.P. No.3671/2024
ORDER
Counsel for petitioner has filed the service report in the shape of
taking documents on record alongwith receipt of Apollo Sage Hospitals
and report given by Spandan hospital, where Angioplasty of petitioner
was done.
2. None appears for respondent No.3.
3. Looking to the urgent nature of litigation, this Court does not
think it appropriate to adjourn the matter awaiting for the appearance of
respondent No.3.
4. This Petition under Article 226 of Constitution of India has been
filed seeking following reliefs:
1. Mandamus - directing the Respondent no.2 to
instruct Respondent no.3 to immediately perform
the kidney transplant operation of the petitioner.
2. The Respondent no.3 be directed to perform the
kidney transplant taking into consideration the
critical condition of the Petitioner.
3. And/or grant any other relief as deemed fit by this
Hon'ble High Court."
5. It is submitted by counsel for petitioner that petitioner is a patient
of chronic kidney disease i.e. kidney failure. He has to undergo kidney
transplant operation and for that he has already obtained permission
under Transplantation of Human Organs and Tissues Act, 1994. The
kidney transplant operation is required to be performed at Apollo Sage
Hospitals. The condition of petitioner is critical. The son of petitioner,
namely; Mohd. Aman is regularly persuading respondent No.3 for
performing kidney transplant. However, respondent No.3 is not giving
any positive response to petitioner and his family members.
6. On 16.02.2024, while issuing a notice to respondent No.3,
following order was passed:
"Shri Rajesh Maindiretta - Advocate for the
petitioner.
Shri Swapnil Ganguly - Deputy Advocate
General for respondent nos.1 and 2/State.
By this petition under Article 226 of
Constitution of India, the petitioner is seeking a
direction to respondent no.3 to conduct the liver
transplant.
It is the case of petitioner that in spite of all
clearances given by all the competent authorities, the
respondent no.3 is not conducting the operation.
However, in paragraph 5.8 of the writ petition it is also
mentioned that the petitioner has suffered a heart
ailment on 08.01.2024 and was hospitalized in
Spandan Hospital, Bhopal and angioplasty was
conducted and two stents were implanted in one artery
of the heart wherein there was 70% blockage.
Be that whatever it may be.
Whether the patient is fit for undergoing the
major surgery or not, has to be decided by the treating
doctors and this Court cannot substitute its opinion
thereby giving a complete go bye to the medical
satisfaction of the treating doctors.
It is submitted by Shri Swapnil Ganguly that on
his request the respondent no.2 had a discussion with
the respondent no.3, who has informed that because of
the recent angioplasty done on the petitioner, he is on
certain medications for heart ailment. For conducting
the liver transplant, withdrawal of that medicines
would be necessary and in case if medicines relating
to heart ailment are withdrawn then there will be
remote chances of his survival.
The primary opinion given by the respondent
no.2 to Shri Swapnil Ganguly after having a
discussion with the treating doctor appears to be
correct because in case of heart ailment, generally a
blood-thinner is given, which has to be stopped before
carrying out any surgery.
Be that whatever it may be.
Since the petitioner is interested to avail all
medical options for survival of the petitioner,
therefore, by keeping the questions open that (i)
whether the private hospital is the State under Article
12 of Constitution of India against which a mandamus
can be issued and (ii) whether this Court can issue any
mandamus against the satisfaction of the treating
doctors, issue notice to the respondent no.3.
The counsel for petitioner submitted that he is
ready to serve the respondent no.3 by Humdust notice.
Accordingly, on payment of process fee during
the course of day, office is directed to prepare the
Humdust notice and handover it to Shri Rajesh
Maindiretta, Advocate latest by tomorrow.
The petitioner shall serve the Humdust notice on
or before 19.02.2024 and shall submit the
acknowledgement of receipt of notice and shall also
file the affidavit of service.
List this case on 21.02.2024.
Once again it is clarified that the petitioner shall
be required to clarify the following aspects :-
1. Whether a private hospital is a State within
the meaning of Article 12 of Constitution of India?
2. Whether this Court can compel the treating
doctor to conduct operation/surgery by issuing a
mandamus?"
7. Therefore, before proceeding with the case, this Court is required
to adjudicate as to whether a private hospital is a 'State' within the
meaning of Article 12 of Constitution of India thereby making itself
amenable to the writ jurisdiction under Article 226 of Constitution of
India or not?
8. The aforesaid question is no more res integra. The Supreme Court
in the case of Ramkrishna Missionn and Another Vs. Kago Kunya
and Others reported in AIR 2019 SC 5570 has held as under:
"29. More recently in K.K. Saksena v. International
Commission on Irrigation & Drainage , (2015) 4 SCC
670, another two-Judge Bench of this Court held that a
writ would not lie to enforce purely private law rights.
Consequently, even if a body is performing a public
duty and is amenable to the exercise of writ
jurisdiction, all its decisions would not be subject to
judicial review. The Court held thus :
"43. What follows from a minute and careful
reading of the aforesaid judgments of this Court
is that if a person or authority is "State" within
the meaning of Article 12 of the Constitution,
admittedly a writ petition under Article 226
would lie against such a person or body.
However, we may add that even in such cases
writ would not lie to enforce private law rights.
There are a catena of judgments on this aspect
and it is not necessary to refer to those
judgments as that is the basic principle of
judicial review of an action under the
administrative law. The reason is obvious. A
private law is that part of a legal system which is
a part of common law that involves relationships
between individuals, such as law of contract or
torts. Therefore, even if writ petition would be
maintainable against an authority, which is
"State" under Article 12 of the Constitution,
before issuing any writ, particularly writ of
mandamus, the court has to satisfy that action of
such an authority, which is challenged, is in the
domain of public law as distinguished from
private law."
Thus, even if the body discharges a public function
in a wider sense, there is no public law element
involved in the enforcement of a private contract of
service.
30. Having analysed the circumstances which were
relied upon by the State of Arunachal Pradesh, we are
of the view that in running the hospital, Ramakrishna
Mission does not discharge a public function.
Undoubtedly, the hospital is in receipt of some
element of grant. The grants which are received by the
hospital cover only a part of the expenditure. The
terms of the grant do not indicate any form of
governmental control in the management or day to day
functioning of the hospital. The nature of the work
which is rendered by Ramakrishna Mission, in
general, including in relation to its activities
concerning the hospital in question is purely
voluntary.
31. Before an organisation can be held to discharge a
public function, the function must be of a character
that is closely related to functions which are
performed by the State in its sovereign capacity. There
is nothing on record to indicate that the hospital
performs functions which are akin to those solely
performed by State authorities. Medical services are
provided by private as well as State entities. The
character of the organisation as a public authority is
dependent on the circumstances of the case. In setting
up the hospital, the Mission cannot be construed as
having assumed a public function. The hospital has no
monopoly status conferred or mandated by law. That it
was the first in the State to provide service of a
particular dispensation does not make it an "authority"
within the meaning of Article 226. State Governments
provide concessional terms to a variety of
organisations in order to attract them to set up
establishments within the territorial jurisdiction of the
State. The State may encourage them as an adjunct of
its social policy or the imperatives of economic
development. The mere fact that land had been
provided on a concessional basis to the hospital would
not by itself result in the conclusion that the hospital
performs a public function. In the present case, the
absence of State control in the management of the
hospital has a significant bearing on our coming to the
conclusion that the hospital does not come within the
ambit of a public authority.
32. It has been submitted before us that the hospital
is subject to regulation by the Clinical Establishments
(Registration and Regulation) Act, 2010. Does the
regulation of hospitals and nursing homes by law
render the hospital a statutory body? Private
individuals and organizations are subject to diverse
obligations under the law. The law is a ubiquitous
phenomenon. From the registration of birth to the
reporting of death, law imposes obligations on diverse
aspects of individual lives. From incorporation to
dissolution, business has to act in compliance with
law. But that does not make every entity or activity an
authority under Article 226. Regulation by a statute
does not constitute the hospital as a body which is
constituted under the statute. Individuals and
organisations are subject to statutory requirements in a
whole host of activities today. That by itself cannot be
conclusive of whether such an individual or
organisation discharges a public function. In Federal
Bank [Federal Bank Ltd. v. Sagar Thomas, (2003) 10
SCC 733] , while deciding whether a private bank that
is regulated by the Banking Regulation Act, 1949
discharges any public function, the Court held thus :
"33. ... in our view, a private company
carrying on banking business as a scheduled
bank, cannot be termed as an institution or a
company carrying on any statutory or public
duty. A private body or a person may be
amenable to writ jurisdiction only where it may
become necessary to compel such body or
association to enforce any statutory obligations
or such obligations of public nature casting
positive obligation upon it. We don't find such
conditions are fulfilled in respect of a private
company carrying on a commercial activity of
banking. Merely regulatory provisions to ensure
such activity carried on by private bodies work
within a discipline, do not confer any such status
upon the company nor put any such obligation
upon it which may be enforced through issue of
a writ under Article 226 of the Constitution.
Present is a case of disciplinary action being
taken against its employee by the appellant
Bank. The respondent's service with the Bank
stands terminated. The action of the Bank was
challenged by the respondent by filing a writ
petition under Article 226 of the Constitution of
India. The respondent is not trying to enforce
any statutory duty on the part of the Bank."
(emphasis supplied)
33. Thus, contracts of a purely private nature would
not be subject to writ jurisdiction merely by reason of
the fact that they are structured by statutory
provisions. The only exception to this principle arises
in a situation where the contract of service is governed
or regulated by a statutory provision. Hence, for
instance, in K.K. Saksena [K.K.
Saksena v. International Commission on Irrigation &
Drainage, (2015) 4 SCC 670 : (2015) 2 SCC (Civ)
654 : (2015) 2 SCC (L&S) 119] this Court held that
when an employee is a workman governed by the
Industrial Disputes Act, 1947, it constitutes an
exception to the general principle that a contract of
personal service is not capable of being specifically
enforced or performed.
34. It is of relevance to note that the Act was enacted
to provide for the regulation and registration of
clinical establishments with a view to prescribe
minimum standards of facilities and services. The Act,
inter alia, stipulates conditions to be satisfied by
clinical establishments for registration. However, the
Act does not govern contracts of service entered into
by the hospital with respect to its employees. These
fall within the ambit of purely private contracts,
against which writ jurisdiction cannot lie. The sanctity
of this distinction must be preserved.
35. For the above reasons, we are of the view that the
Division Bench of the High Court was not justified in
coming to the conclusion that the appellants are
amenable to the writ jurisdiction under Article 226 of
the Constitution as an authority within the meaning of
the Article.
36. For the reasons that we have adduced above, we
hold that neither the Ramakrishna Mission, nor the
hospital would constitute an authority within the
meaning of Article 226 of the Constitution.
37. Before concluding, it would be necessary to also
advert to the fact that while the learned Single Judge
had come to the conclusion that the appellants are
"State" within the meaning of Article 12, the Division
Bench has not accepted that finding. The Division
Bench ruled, as we have noticed earlier, that the
appellants do not fall within the description of "State"
under Article 12. This finding has not been challenged
before this Court by the State of Arunachal Pradesh.
38. Even otherwise, we are clearly of the view that the
tests which have been propounded in the line of
authority of this Court in Ajay Hasia v. Khalid Mujib
Sehravardi [Ajay Hasia v. Khalid Mujib Sehravardi,
(1981) 1 SCC 722 : 1981 SCC (L&S) 258] , Pradeep
Kumar Biswas v. Indian Institute of Chemical
Biology [Pradeep Kumar Biswas v. Indian Institute of
Chemical Biology, (2002) 5 SCC 111 : 2002 SCC
(L&S) 633] and Jatya Pal Singh v. Union of
India [Jatya Pal Singh v. Union of India, (2013) 6
SCC 452 : (2013) 2 SCC (L&S) 617] support the
conclusion of the High Court that the appellants are
not "State" within the meaning of Article 12 of the
Constitution of India."
9. Thus, it is clear that respondent No.3, which is a private hospital,
cannot be made amenable to the writ jurisdiction and under these
circumstances, this Court cannot issue any mandamus to respondent
No.3 in any manner.
10. Although, after holding that respondent No.3 is not amenable to
writ jurisdiction this Court should not comment further but it is
submitted by counsel for petitioner that instead of issuing mandamus to
respondent No.3, respondent No.3 may be suggested that as and when
general condition of petitioner comes within the permissible parameter
where his kidney transplantation is permissible, then petitioner may be
granted liberty to request the doctors to perform operation.
11. In the writ petition itself, it was mentioned that petitioner had
recently undergone an Angioplasty on 08.01.2024 and according to
petitioner, the hospital where the Angioplasty was done has given a
certificate that kidney transplantation is to be done under supervision of
Cardiologist. However, counsel for petitioner alongwith the application
for taking documents on record has filed the fitness certificate from
Cardiologist for renal transplant, which reads as under:
"SPANDAN HOSPITAL
FITNESS FROM CADIOLOGIST FOR RENAL
TRANSPLANT
1. The kidney transplant of the patient, i.e. Mohammad
Aslam, may be done after 2 months under special
circumstances from the date of angioplasty.
2. The blood thinning medicines currently being
administered to the patient will have to be withdrawn 5
days prior to the date of the transplant under the
supervision of medical experts and will have to be kept
withdrawn for 5 days from the date transplant. Or as
adjust by Transplant Surgeon/Nephrologist.
3. The blood thinning medicines will have to be taken by
the patient for his lifetime and risks associated with the
withdrawal of blood thinning medicines will not change
materially with the lapse of time.
4. The functioning of the kidney can improve only after
the transplant and there is no alternative available to the
patient for dialysis in case of any problem in the perm
catheter, the transplant is the only option available to
the patient.
5. Patient can be taken for transplant with very high risk
consent, considering Age and Comorbidies."
12. From the above mentioned certificate, it is clear that it is nowhere
mentioned that in case the blood thinner is withdrawn for a particular
period for the purposes of kidney transplantation, then it will not have
any adverse effect on the functioning of the heart. On the contrary,
clause 3 of the certificate shows that blood thinning medicines will have
to be taken by the patient for his lifetime and risks associated with the
withdrawal of blood thinning medicines will not change materially with
the lapse of time.
13. Be that whatever it may be.
14. This Court is not a medical specialist. Even otherwise, this Court
cannot substitute its opinion by discarding the opinion of treating
doctor. Treating doctor is the best judge to decide as to whether the
operation like kidney transplantation is possible or not?
15. Under these circumstances, this Court even otherwise cannot issue
any suggestion to the treating doctor to carry out the operation even
contrary to his medical satisfaction.
16. Under these circumstances, this Court is of considered opinion
that not only this writ petition against a private hospital is not
maintainable but even this Court cannot issue any suggestion to treating
doctors to take a decision contrary to their medical satisfaction.
17. Accordingly, petition fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
SR*
Date: 2024.02.22 16:59:46 +05'30'
