Allowed

Sham-E-Husaini Institute of Nursing College, Hospital and Trauma Centre and Another v. State of U.P. and 2 Others

Allahabad HC5 Jan 2021WRIC/19763/2020

Case brief

AI extract

What is this about?

The High Court allowed the writ petition challenging the cancellation of hospital registration. The court held that the impugned order was passed ex parte, violating the principles of natural justice, and set aside the order, remanding the matter to the authority after ensuring a fair hearing.

What did the court decide?

The impugned order dated 7.11.2020 cancelling registration is set aside, and the matter is remanded to the authority to proceed after giving opportunities to stakeholders.

Sham-E-Husaini Institute of Nursing… — Pension and Retirement Benefits | Allahabad HC (2021)

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Court No. - 21

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Case :- WRIT - C No. - 19763 of 2020

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Petitioner :- Sham-E-Husaini Institute Of Nursing College, Hospital And Trauma Centre And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Varad Nath Counsel for Respondent :- C.S.C.

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Hon'ble Mahesh Chandra Tripathi,J. Hon'ble Sanjay Kumar Pachori,J.

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Heard learned counsel for the petitioners and Shri Sanjay Kumar Singh, learned Addl. Chief Standing Counsel for State respondents.

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Present writ petition has been preferred assailing the validity of the order dated 7.11.2020 passed by third respondent by which the petitioner's registration as hospital has been rejected.

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The record in question reflects that after establishment of petitioner hospital an application for its registration was submitted before respondent no.3 in the year 2011 and the same was granted by order dated 7.8.2012. The said registration was renewed from time to time without any break. From 2019 the registration was made online. The last renewal was made by respondent no.3 by order dated 22.7.2019 for a period of one year. Due to Covid-19 all the provisional registration were renewed by the respondent no.3 as per the policy framed by the State Government upto 31 December, 2020.

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It is contended that as per the provision contemplated under Section 23 of the Clinical Establishment (Registration and Regulation) Act, 2010 (in short "the Act") the petitioners are entitled for permanent registration after enforcement of the Uttar Pradesh Clinical Establishment (Registration and Regulation) Rules, 2016 (in short "the Rules") but the respondents instead of providing permanent registration continued the process of renewal of provisional registration. The proceeding under Section 10 of U.P. Regulation of Building Operation Act, 1958 (in short "the Act of 1958") has also been initiated against the petitioner. It is alleged that on the dictate of the State officers, the Prescribed Authority (Sub Divisional Magistrate, Ghazipur) by order dated 8.10.2020 directed for demolition of the construction in question within seven days. The limitation for filing appeal under Section 15 of the Act of 1958 has been prescribed as 30 days but the Prescribed Authority directed for demolition of construction within seven days. It is contended that similar action was taken

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against a person of similar district, who has approached this Court by way of Writ Petition No.16357 of 2020 in which the Court has taken cognizance in the matter and issued a general direction to the authorities for not demolishing the construction before expiry of limitation of appeal. The management of the petitioner management and hospital had also approached this Court by way of Writ Petition No.16393 of 2020 in which by order dated 14.10.2020 the demolition was stayed till disposal of stay application.

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It is contended that against the order dated 8.10.2020 the appeal was filed before the respondent no.2 but the same was dismissed on 23.10.2020 exparte . While dismissing the appeal the respondent no.2 directed the Prescribed Authority for execution of demolition. It is contended that in compliance of the order dated 23.10.2020 some portion of the petitioner hospital has been demolished. Ultimately vide order impugned dated 7.11.2020 the registration certificate of the petitioner has been cancelled with immediate effect.

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The petitioners have challenged the order impugned on the ground that while passing the order impugned, at no point of time, any opportunity has ever been extended to the petitioner and as such the same is hit by principle of natural justice.

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On the other hand, learned Addl. Chief Standing Counsel has submitted that once the petitioner hospital has been demolished there is no question of its registration. However, the fact that the order impugned has been passed exparte is not disputed by learned Addl. Chief Standing Counsel.

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The Court has proceeded to examine the record in question and find that the order impugned has been passed exparte and the same is hit by principle of natural justice.

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Hon'ble the Supreme Court in A.K. Kraipak Vs. Union of India (1969) 2 SCC 262 held that an unjust decision in an administrative enquiry may have more far reaching effect than a decision in quasi judicial enquiry. The purpose of the rules of natural justice is to prevent miscarriage of justice. The Court has referred the classic case of State of Orissa Vs. Dr. Binapani Dei AIR 1967 SC 1269; Supreme Court in Binapani Case (Supra) observed that if "there is power, duty to act judicially is implicit in the exercise of such power".

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The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fairplay in action." As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-

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judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. No doubt, the extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasijudicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement.

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In the aforesaid facts and circumstances, the order impugned cannot sustain and is accordingly set aside. The matter is relegated to the authority concerned to proceed further strictly in accordance with law but certainly after giving opportunity to all the stake holders in the matter.

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The writ petition stands allowed accordingly.

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The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

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The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

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Order Date :- 5.1.2021 SP/

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Digitally signed by Justice Mahesh Digitally signed by Justice Sanjay Chandra Tripathi Kumar Pachori Date: 2021.01.05 17:24:47 IST Date: 2021.01.05 17:26:21 IST Reason: Document Owner Reason: Document Owner Location: High Court of Judicature at Location: High Court of Judicature at Allahabad Allahabad

Sham-E-Husaini Institute of Nursing College, Hospital and Trauma Centre and Another v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

Sham-E-Husaini Institute of Nursing College, Hospital and Trauma Centre and Another v. State of U.P. and 2 Others

Case brief

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What did the court decide?

What the court decided

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