State Of Rajasthan vs C.R.D. Healthcare Private Ltd. ...
2021 Latest Caselaw 17470 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Spl. Appl. Writ No. 1159/2019

1. State of Rajasthan, Through Chief Secretary Medical and Health Department, Secretariat, Jaipur.

2. The Director, Rajasthan Public Health And Medical Department, Ministry Of Health And Family Welfare, Government Of Rajasthan, Jaipur.

3. Additional Director (Administration), Medical And Health Service, Rajasthan, Jaipur.

4. Chief Medical And Health Officer, Barmer (Rajasthan)

----Appellants Versus C.R.D. Healthcare Private Ltd. Jaipur, (Changed Teh name Brzee Care Private Limited) CHC Gudamalani, District Barmer (Rajasthan) Through Its Director.

                                                                    ----Respondent


For Appellant(s)            :    Mr. Pankaj Sharma, AAG with
                                 Mr. Deepak Chandak, AGC
For Respondent(s)           :    Mr. Sidharth Joshi,
                                 Mr. Khet Singh

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE SUDESH BANSAL

Judgment

23/11/2021

This appeal has been filed by the State Government to

challenge the judgment of the learned Single Judge dated

21.12.2018.

The respondent-original petitioner is a company registered

under the Companies Act. The State Government had entered

into an agreement with the original-petitioner on 25.05.2015 for

running the Community Health Centre at Gudamalani (for short,

'CHC') on PPP basis for a period of five years. The agreement

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contained detailed terms and conditions and bilateral obligations

of the two sides. This agreement contained an arbitration clause

providing that in case of dispute arising between the parties, the

same will be referred for arbitration.

It appears that the State authorities were not satisfied with

the manner in which the CHC was being managed by the

petitioner. First notice, therefore, came to be issued on

12.08.2016, in which it was conveyed to the petitioner that the

complaints of proper facilities not being provided at the CHC have

come to light in a public interest litigation filed before the High

Court. Second, notice was issued on 24.08.2016 conveying to the

petitioner that the CHC is being run in contravention of the terms

and conditions of the agreement and several facilities for medical

treatment promised have not yet been provided. The petitioner

should explain the short-comings before 31.08.2016. The

petitioner responded to these notices under letter dated

29.08.2016 and refuted the allegations. Unmoved by such

explanation, the State authorities issued an order dated

03.10.2016 cancelling the agreement of the petitioner. The

petitioner thereupon approached the High Court. Before the High

Court, the State filed a reply suggesting that there were

allegations of over-charging for treatment also. The learned Single

Judge by the impugned order allowed the writ petition. The

learned Single Judge was of the opinion that the petitioner was

providing proper health care facilities and recorded that the

Government authorities have virtually admitted that after the

revocation of the agreement, the State authorities had failed to

provide medical facilities at the CHC as comparable to what the

petitioner was offering. It was also recorded that during such

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period, no female nurse was posted at the CHC in the last two

years. In the opinion of the learned Single Judge, this amounted

to utter failure on the part of the State Government to provide

health care facilities to the citizens in the remote areas. The

learned Single Judge rejected the stand of the State Government

that the CHC was not properly functioning and there were many

short-comings on the part of the petitioner. The allegation of

over-charging was also not accepted.

In our opinion, the court in the writ petition had limited

jurisdiction to examine the issues. Firstly, there was an arbitration

clause in the agreement between the parties. This does not mean

that the writ petition was not maintainable. It is a question

whether in the face of such arbitration clause, the petition should

be entertained. Secondly, several issues were in the realm of

disputed questions of fact. Thirdly, on the premise that after the

petitioner's agreement was terminated, the State Government

failed to provide comparable medical services, was not borne out

from any material on record and in any case, cannot be the

consideration for setting aside the order of cancellation of the

agreement. Lastly, these are principally the issues in the realm of

commercial and contractual relations of the State with the private

individuals. If the petitioner was of the opinion that the

cancellation of the agreement was not based on correct facts and

which resulted into loss of capital investment or loss of

prospective income, the petitioner had to file an appropriate

proceeding before the competent court.

Learned counsel for the petitioner submitted that the

petitioner may consider filing appropriate proceedings and in

which the question of limitation may be viewed from the angle

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that the petitioner was bona fide pursuing the remedy before the

competent court. With this aspect of the matter, we offer no

comments.

Before closing, it is recorded that in any case, the State

Government cannot retain the machinery which the petitioner may

have installed at his own cost. It is therefore, directed that if the

petitioner has installed the machinery at his own cost, the State

Government shall return the same within four weeks from today.

With the aforesaid observations and directions, the appeal is

disposed of. The impugned order dated 21.12.2018 stands set

aside.

                                   (SUDESH BANSAL),J                                        (AKIL KURESHI),CJ


                                   82-MohitTak/-









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