A demand for a Government General Hospital instead of a Primary Health Centre was rejected as a matter for governmental decision. The court dismissed the writ petition, while observing that construction of the Urban Community Health Centre should be expedited.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.07.2019
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR and THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD
Writ Petition No.19209 of 2019
S.M.Vetrivel
...Petitioner
Vs
rep.by Principal Health Secretary,
Health and Family Welfare Department Secretariat, Fort St.George, Chennai 600 009.
Rural Health Services and Family Welfare Department, DMS Compound, Teynampet,
Chennai 600 006.
Tamil Nadu Slum Clearance Board, Kamarajar Salai, Chennai 600 005.
Writ Petition filed under Article 226 of The Constitution of India praying for the issuance of a Writ of Mandamus directing the respondents to construct a General Hospital in the site earmarked for Primary Health Centre, by the Tamil Nadu Slum Clearance Board, in their new scheme at Perumbakkam based on the representation dated 21.11.2017.
For Petitioner : Mr.R.Sankarasubbu for M/s.S.Deepika
For Respondents: Mr.E.Manoharan, Additional Government Pleader for R1 to R3 & R5 Mr.M.Rajasekar, Standing Counsel for TNSCB for R4 Mr.K.Soundara Rajan Standing Counsel for Chennai Corporation for R6
O R D E R
[Order was delivered by S.MANIKUMAR,J]
Mr.S.M.Vetrivel, a practising advocate, has sought for issuance of a Writ of Mandamus directing the respondents to construct a General Hospital in the site earmarked for a Primary Health Centre, by the Tamil Nadu Slum Clearance Board, in the new scheme at Perumbakkam based on his representation dated 21.11.2017. Supporting the prayer sought for, the petitioner has contended inter alia,
(i) The Slum Clearance Tenements and Slum areas were emerged in order to cater the need and service of the newly emerged IT Sector and the other Companies in the locality.
(ii) In all, there must be around 5 lakh and odd total population of Slum people live in Sholinganallur area/constituency. However there was not even a government Sub Centre, District Hospital, or Peripheral Hospital situated within Sholinganallur or around the radius of 15 kms of Sholinganallur. Being an emerging locality with transformation of rural to urban/semi urban, it is essential to provide health services as per the requirements of the population.
(iii) Due to the tremendous population growth in the above said area and most particularly, the emergence of more slum tenements, the locality becomes vulnerable to communicable diseases and accident prone area and the population unsurprisingly requires a general hospital with all modern facilities. The Sholinganallur stretch contains Perumbakkam, Chemmencherry, Sholinganallur, Kannagi Nagar and Ezhil Nagar, Kanthanchavadi, Periaeri and other areas are situated in between two high roads, such as GST and OMR and other main roads, where all the heavy vehicles
plying round the clock as the area is attached to IT Sector as well people are using the both the roads to reach the city and to exit the city, hence the same become a significant road for transport. As a result of it, several accidents took place near Perumbakkam and Kannagi Nagar where it is quite difficult for an ambulance to reach and also it is quite impossible to reach the General Hospital which is the only one possible for live saving. During the recent years, the death ratio of the victims is quite high both accidental and emergent condition taken from these areas, before they would reach Government General Hospital, they were declared brought dead as they reach the hospital not in time and there were no first aid given immediately as there was no Government Hospital situated in between, however plenty of private hospitals were surfaced everywhere in the nearby areas. At the same time, it is quite necessary to have a General Hospital in order to handle the emergency cases as well heath issues.
(iv) Various Representations were submitted with the respondents and other competent authorities requesting for the allotment of land and construction of a building for General Hospital in and around, Sholinganallur.”
Hospital Radius 1. Chettinad Hospital, Kelambakkam 15 Kms 2. Glenegals Global Hospital, Perumbakkam 8 Kms 3. Kamatchi Hospital, Pallikaranai 20 Kms 4. Apollo Hospital, Perungudi 15 Kms
(i) Several accidents taking place both at Perumbakkam and Kannagi Nagar @ Sholinganallur Village and in OMR which results in several death rate and physically disabled persons,
(iii) Distance of the other General Hospital. (iv) Enhancement of emergency and risk cases (v) The area has become an accidents prone area (vi) Time consumption for reach of ambulance services
(vii) Communicable disease prone area as well people and children are more vulnerable seasonal fevers
and other health risk.
(viii) Excessive density of population which was created by the Government itself, which is more vulnerable.
(ix) No ICU/emergency care units/first aid in case of any accidents such as fall from heights/electrical accidents/fire accidents and injuries caused by anti social elements. No provision for reaching ambulance immediate to the spots.
(x) Duty doctors are not available in primary health centre.
(xi) Rise and emergence of more private health sectors which cost effective.
Heard the learned counsel for the petitioner and perused the material on record.
Additional Greater Chennai Medical Officer/Joint Director, Medical Services Department, Greater Chennai Corporation, in his reply, dated 02.01.2018, has stated as under:-
"In the above referred letter, you have requested for the conversion in order the Chemmencheri Primary Health Center as the Government General Hospital to protect the Health of Poor people living in Chemmencheri and surrounding Area.
It is hereby informed that Greater Chennai Corporation Health Services Department, Chemmencheri Tsunami Nagar Area Primary Health Center has been functioning for 24 Hours with Thirty Beds facilities. Treatment has been provided by Special Doctors in this Centrer during the evening from 4.30 Hours till 8.30 Hours in Night (Monday to Friday). A Doctor is in duty during Night Hours.
Moreover the following Medical Services are provided in the Center.
Treatment for Minor Health issues.
Identifying Diabetics, Blood Pressure and providing treatment for all type of fevers (Malaria, Dengue)
Out Patient service for woman and Children Pregnancy period test, Online Registration
for Pregnancy
Providing PICME number Administering Vaccination for Pregnant Mothers, Blood Pressure and weight checkup.
Laboratory Test, Basic Test, such as finding Blood Group, Haemoglobin, Urine Test and 100 percent counseling and test for HIV, and Identify diabetics and hyper tension during pregnancy are all conducted in Highly Equipped Apparatus Lab at free of cost.
Ultra Sonogram Test (Scan) Test and Treatment for Tuber culosis ECG Test provided.
Moreover, Greater Chennai Corporation Health service Department Sholinganallur Zone has been undertaken construction work for building 24 Hours Urban Community Health Center with all facilities Hundred Beds for fast of 741 Lakhs and Injambakkam.
Similarly constructions works for building a 24 Hours Urban Primary Health Center has been undertaken in Perungudi Zone School Road, Sholinganallur constituency with all facilities including Hundred Beds at cost of 667 Lakhs.
Moreover construction of a 24 Hours Hospital is all facilities including Thirty Beds at cost of 482 lakhs in Kannagi Nagar Zone Fifty Sholinganallur constituency it is at final stage.
It is hereby informed that when the construction of the above said Hospitals completed and come into existence, the people living in the areas mention in your representation would get the special best Medical services."
of a Primary Health Centre into a Government General Hospital, is concerned, the Additional Greater Chennai Medical Officer/Joint Director, Medical Services Department, Greater Chennai Corporation, Chennai, has categorically stated that conversion is not feasible but, a 24 hours Urban Community Health Centre would be provided with all medical facilities.
(i) In Council of Civil Service Unions Vs. Minister for the Civil Service, reported in (1984) 3 All ER 935 Lord Diplock enunciated three grounds upon which an administrative action is subject to control by judicial review, viz. (i) illegality (ii) irrationality and (iii) procedural impropriety, as follows:
“By "illegality" he means that the decision-maker must understand correctly the law that regulates his decision- making power and must give effect to it, and whether he has or has not, is a justiciable question; by "irrationality" he means "Wednesbury unreasonableness". It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided, could have arrived at it; and by "procedural impropriety" he means not only failure to observe the basic rules of natural justice or failure to act with procedural fairness, but also failure to observe procedural rules that are expressly laid down in the legislative instrument by which the tribunal's jurisdiction is conferred, even where such failure does not involve any denial of natural justice."
(ii) The principle of "Wednesbury unreasonableness" or irrationality, classified by Lord Diplock as one of the grounds for intervention in judicial review, was lucidly summarised by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corpn., reported in (1948) 1 KB 223 = (1947) 2 All ER 680 as follows:
conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere."
(iii) In State of U.P. & Anr. Vs. Johri Mal, reported in (2004) 4 SCC 714, the Hon'ble Supreme Court has observed thus: "The scope and extent of power of the judicial review of the High Court contained in Article 226 of the Constitution of India would vary from case to case, the nature of the order, the relevant statute as also the other relevant factors including the nature of power exercised by the public authorities, namely, whether the power is statutory, quasi-judicial or administrative. The power of judicial review is not intended to assume a supervisory role or don the robes of the omnipresent. The power is not intended either to review governance under the rule of law or do the courts step into the areas exclusively reserved by the suprema lex to the other organs of the State. Decisions and actions which do not have adjudicative disposition may not strictly fall for consideration before a judicial review court."
(iv) In Rameshwar Prasad & Ors. (VI) v. Union of India & Anr., (2006) SCC 1, the Hon'ble Supreme Court observed thus, "A person entrusted with discretion must, so to speak, direct himself properly in law. He must call his attention to matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules he may truly be said to be acting unreasonably. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.
It is an unwritten rule of law, constitutional and administrative, that whenever a decision-making function is entrusted to be subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote."
(v) In Jayrajbhai Jayantibhai Patel v. Anilbhai Jayanitbhai Patel and Ors., reported in 2006 (8) SCC 200, the Hon'ble Supreme Court in Para 18 observed as under:-
"18. Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the
conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words, when a Court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the Court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decisionmaking process and not the decision."
The following passage from Professor Bernard Schwartz's book Administrative Law (Third Edition) aptly echo's our thoughts on the scope of judicial review:
"Reviewing courts, the cases are now insisting, may not simply renounce their responsibility by mumbling an indiscriminate litany of deference to expertise. Due deference to the agency does not mean abdication of the duty of judicial review and rubberstamping of agency action : [W]e must accord the agency considerable, but not too much deference; it is entitled to exercise its discretion, but only so far and no further."
Quoting Judge Leventhal from Greater Boston Television Corp. Vs. FCC, 444 F. 2d 841 (D.C.Cir. 1970), he further says:
"...the reviewing court must intervene if it "becomes aware...that the agency has not really taken a 'hard look' at the salient problems, and has not genuinely engaged in reasoned decision-making..."
(vi) In Ganesh Bank of Kurundwad Ltd. and others Vs. Union of India and others, reported in (2006) 10 SCC 645, the Hon'ble Supreme Court in Paras 50 and 51 observed as under:-
"50. There should be judicial restraint while making judicial review in administrative matters. Where irrelevant aspects have been eschewed from consideration and no relevant aspect has been ignored and the administrative decisions have nexus with the
facts on record, there is no scope for interference. The duty of the court is (a) to confine itself to the question of legality; (b) to decide whether the decision making authority exceeded its powers (c) committed an error of law (d) committed breach of the rules of natural justice and (e) reached a decision which no reasonable Tribunal would have reached or (f) abused its powers. Administrative action is subject to control by judicial review in the following manner:
(i) Illegality.- This means the decision-maker must understand correctly the law that regulates his decision- making power and must give effect to it. (ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
(vii) Professor De Smith in his classical work "Judicial Review of Administrative Action" 4th Edition at pages 285-287 states the legal position in his own terse language that the relevant principles formulated by the Courts may be broadly summarized as follows. The authority in which discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories: (I) failure to exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires.
(viii) The court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality and
procedural impropriety."
(vii) In All India Railway Recruitment Board v. K.Shyam Kumar reported in 2010 (6) SCC 614, the Hon'ble Supreme Court, held as follows:
“22. Judicial review conventionally is concerned with the question of jurisdiction and natural justice and the Court is not much concerned with the merits of the decision but how the decision was reached. In Council of Civil Service Unions Vs. Minister of State for Civil Service (1984) 3 All ER 935 the (GCHQ Case) the House of Lords rationalized the grounds of judicial review and ruled that the basis of judicial review could be highlighted under three principal heads, namely, illegality, procedural impropriety and irrationality. Illegality as a ground of judicial review means that the decision maker must understand correctly the law that regulates his decision making powers and must give effect to it. Grounds such as acting ultra vires, errors of law and/or fact, onerous conditions, improper purpose, relevant and irrelevant factors, acting in bad faith, fettering discretion, unauthorized delegation, failure to act etc., fall under the heading "illegality". Procedural impropriety may be due to the failure to comply with the mandatory procedures such as breach of natural justice, such as audi alteram partem, absence of bias, the duty to act fairly, legitimate expectations, failure to give reasons etc.
"By `irrationality' I mean what can now be succinctly referred to as "Wednesbury's unreasonableness", ....... It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
House of Lords re-examined the reasonableness of the exercise of the Home Secretary's discretion to issue a notice banning the transmission of speech by representatives of the Irish Republican Army and its political party, Sinn Fein. Court ruled that the exercise of the Home Secretary's power did not amount to an unreasonable exercise of discretion despite the issue involving a denial of freedom of expression. House of Lords however, stressed that in all cases raising a human rights issue proportionality is the appropriate standard of review.
(1) Proportionality may require the reviewing Court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions.
(2) Proportionality test may go further than the traditional grounds of review in as much as it may require attention to be directed to the relative weight accorded to interests and considerations.
(3) Even the heightened scrutiny test is not necessarily appropriate to the protection of human rights.
Lord Steyn also felt most cases would be decided in the same way whatever approach is adopted, though conceded for human right cases proportionality is the appropriate test.
"I consider that even without reference to the Human Rights Act, 1998 the time has come to recognize that this principle (proportionality) is part of English administrative law not only when Judges are dealing with Community acts but also when they are dealing with acts subject to domestic law. Trying to keep the Wednesbury principle and proportionality in separate compartments seems to me to be unnecessary
and confusing".
Lord Steyn was of the opinion that the difference between both the principles was in practice much less than it was sometimes suggested and whatever principle was applied the result in the case was the same.
"We have difficulty in seeing what justification there now is for retaining Wednesbury test ..... but we consider that it is not for this Court to perform burial rights. The continuing existence of the Wednesbury test has been acknowledged by House of Lords on more than one occasion. A survey of the various judgments of House of Lords, Court of Appeals, etc. would reveal for the time being both the tests continued to co-exist."
Human Rights Act, 1998 but demonstrated the movement away from the traditional test of Wednesbury unreasonableness towards the test of proportionality. But it is not safe to conclude that the principle of Wednesbury unreasonableness has been replaced by the doctrine of proportionality.
"24. While saying so, we are not oblivious of the fact that the doctrine of unreasonableness is giving way to the doctrine of proportionality.
"The Wednesbury doctrine is now in terminal decline but the coup de grace has not yet fallen, despite calls for it from very high authorities" and opined that in some jurisdictions the doctrine of unreasonableness is giving way to doctrine of proportionality."
State of Madhya Pradesh and Others v. Hazarilal, (2008) 3 SCC 273 and the Bench opined as follows:-
"Furthermore the legal parameters of judicial review have undergone a change. Wednesbury principle of unreasonableness has been replaced by the doctrine of proportionality.".
"Notwithstanding the apparent persuasiveness of these views the coup de grace has not yet fallen on Wednesbury unreasonableness. Where a matter falls outside the ambit of 1998 Act, the doctrine is regularly relied upon by the courts. Reports of its imminent demise are perhaps exaggerated." (emphasis applied).
"Proportionality works on the assumption that administrative action ought not to go beyond what is necessary to achieve its desired results (in every day terms, that you should not use a sledgehammer to crack a nut) and in contrast to irrationality is often understood to bring the courts much closer to reviewing the merits of a decision".
Writ Petition No.19209 of 2019
Kak(20/08/2019) Kak(10/09/2019)
1 issue framed by the court
Should mandamus issue to construct a Government General Hospital at the earmarked site or convert the Primary Health Centre into one?
Colour shows how this judgement treated each authority
Council of Civil Service Unions Vs. Minister for the Civil ServiceRelied on¶76
Council of Civil Service Unions Vs. Minister for the Civil Service, reported in (1984) 3 All ER 935
Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corpn.Relied on¶78
Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corpn., reported in (1948) 1 KB 223 = (1947) 2 All ER 680
State of U.P. & Anr. Vs. Johri MalRelied on¶83
State of U.P. & Anr. Vs. Johri Mal, reported in (2004) 4 SCC 714 · Who else cites this
Rameshwar Prasad & Ors. (VI) v. Union of India & Anr.Relied on¶84
Rameshwar Prasad & Ors. (VI) v. Union of India & Anr., (2006) SCC 1 · Who else cites this
Jayrajbhai Jayantibhai Patel v. Anilbhai Jayanitbhai Patel and Ors.Relied on¶86
Jayrajbhai Jayantibhai Patel v. Anilbhai Jayanitbhai Patel and Ors., reported in 2006 (8) SCC 200 · Who else cites this
Ganesh Bank of Kurundwad Ltd. and others Vs. Union of India and othersRelied on¶94
Ganesh Bank of Kurundwad Ltd. and others Vs. Union of India and others, reported in (2006) 10 SCC 645 · Who else cites this
All India Railway Recruitment Board v. K.Shyam KumarRelied on¶104
All India Railway Recruitment Board v. K.Shyam Kumar reported in 2010 (6) SCC 614 · Who else cites this
1 provisions across 1 enactments
S.M.Vetrivel
Government of Tamilnadu
The Director of Medical and Rural Health Services and Family Welfare Department
The Director of Public Health and Preventive Medicine
The Chairman, Tamil Nadu Slum Clearance Board
The District Collector, Kancheepuram District
S.MANIKUMAR
SUBRAMONIUM PRASAD
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
