Recently the Bombay High Court held that Brihanmumbai Municipal Corporation (BMC) cannot permanently seal any hospital registered under Bombay Nursing Home Registration Act, 1949.
Further, the bench comprising of Justice Sunil B. Shukre and Justice Rajesh S. Patil held that BMC under any law doesn’t have the power to sell such hospital. Further, the court was also the view that the hospital being an immovable property could not have been sealed under any provision of the Cr.P.C.
Brief Facts of the Case:
The petitioner, as the sole proprietor of Shivraj Hospital, held a valid certificate of registration under Section 5 of the Bombay Nursing Home Registration Act, 1949. However, before the expiration of the registration, the respondent Corporation permanently sealed the hospital and canceled its registration due to criminal cases registered against the petitioner.
Contentions of the Parties:
The petitioner's counsel, Mr. Ponda, argued that the sealing and cancellation of registration were arbitrary and illegal as no show-cause notice was given to the petitioner, as required by Section 8(1) of the Act. Mr. Ponda emphasized that there was no prima facie evidence implicating the petitioner in the alleged offenses. He referred to a previous court order granting conditional bail to the petitioner, which cast doubt on their involvement. Mr. Ponda further contended that sealing an immovable property like a hospital was not permissible under the Code of Criminal Procedure.
On the other hand, the counsel for the Corporation argued that due to the serious nature of the allegations and the potential impact on public interest, the sealing and cancellation of registration were justified. They claimed that the Corporation acted based on information received from the police, warranting immediate action against the hospital.
Observations by the Court:
The court noted that Section 8(1) of the Act clearly mandates the issuance of a show-cause notice before refusing or canceling the registration of a hospital. The notice must provide a minimum of one calendar month for the owner or proprietor to respond and state the grounds for the intended action. However, in the present case, no such notice was given to the petitioner.
The court also examined the legality of permanently sealing an immovable property under the provisions of the Act and the Code of Criminal Procedure. It found no provision authorizing the supervisory authority to seal a registered hospital, nor did the Corporation present any such provision in their arguments.
Additionally, the court considered the observations made by a learned Single Judge in a previous bail order, which found no prima facie evidence against the petitioner in the criminal cases. These observations further undermined the Corporation's claim that no show-cause notice was necessary.
Decision of the Court:
Based on the above observations, the court concluded that the Corporation's action was illegal, arbitrary, and devoid of authority. Consequently, it quashed the cancellation of the hospital's registration and ordered the immediate removal of the seal. However, the petitioner was instructed not to resume hospital operations without obtaining a renewed certificate of registration as required by the Act.
Case Title: Dr. Shivraj Chhotulal Pataria Vs. Brihanmumbai Municipal Corporation & Ors
Coram: Justice Sunil B. Shukre and Justice Rajesh S. Patil
Case No.: Writ Petition No.3664 OF 2022
Advocates of the Petitioners: Mr. Aabad Ponda, Senior Advocate a/w. Mr. Jugal Kanani, for the Petitioner.
Advocates of the Respondent: Mr. Anoop Patil a/w. Mr. V.V. Mahadik, for Respondent-BMC. Mr. Abhay Patki, Addl. GP a/w. Mr. Ajit Shastri, AGP for Respondent No.1.
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