Karnataka High Court
Manipal Hospital And Anr vs Union Of India & Ors on 19 July, 2011
Author: Ashok B Hinchigeri
Bench: Ashok B Hinchigeri
IN THE HIGH counm or KARNATAKL AT BANGALORE
mmnmrs mm mm DAY or FEBRUARY 1999
J V BEFORE 5 Ti
THE BDE'BLE MR.JHSTIGE-TIRATH'S.TKkKHEV fl flV
\%in»%Aw.P.no;?§§'§£¥8z:'[}
BETWEEN A:- V " %
'The Medical Reiief $3Qi9%g*9fa
South Kanara,A T '. ?; *;n 'qV~
a Society regieterefi under the ,~
societiesVReg1stra£1on,Act,186G
and.haHfing}1te_o£fibe.atjMan1pa1
Sri;T;$angag2ai§,"a
.. ...Pet1t1oner.
(IBy_SriaG.K;Sh€vgoor5[Adv., for petitioners
' in' W-Paws»-»7¢88/(98 (7731/98.7730/98»
-'u'% 28186987/9§;29115/98.29130/98,
A 33019/'93a&.E-'B105/96 8c 28589/98:
V Sii,B;?éerabhadrappa,Adv., for petitioners
1%n&%w%,1é%.uoa4.3910/98, 8c new/98) A
g* '1. She Union of India
"»' 'Bap; by Seeretany, .
_.Ministry o£.Hea1$h & Family
a Wfilfare, T
~ ';HimanavBhavan, V ' _
'~ Maulana Abdul Ka1am{Azaad Road,
New Delhi ~ 110 001.
2.
3.
440
5.
6.
$2 an
The Directorate of Health
Services,
Nirman~Bhavan, .
Maulana Abdul Kalam Azaad Road,
New Delhi s 110 001.
The Commissioner of Customs
Cen$raJ:Eevenuea Building
Queens Road,
Bangalore» 569 091.
ThexAssistant.eommissionar-ofi'--,' V,'"
flustoma, =. :" £ 5. v.' "
New--0ustom'House,
ranambur,
Mangalore~- 575«Q1o,
State~o£VKarnatak§;a_=,
Rep.Lby,S&e;e$ary*te'the
V Departmenfi cf H9a1%h7&}FémiIyV|
werlrare sem':L_:cesL.,,
Banga1ore._W_._ »
Health &:Fami1y Whlfarfi Services,
shnands Baa G1re;é,', ,V
333E31°T93x[Vja H
V'- ""' ' ' ...Reepondents.
LT.1;sr1M;vA$n:5k».V:iaa§5uafia111,smeesc for B-1. 8: %
1192 an '1%w..r;-ms ;'/488/98 .3731./98 .7730/93 ,
' v..f'4'8186-»_87/_'96,.2911'5/98 , 8c 2858 9/ 98:
iniz-e1'em zarru11~a,cGsc' to R-1 & R-V2
inn Jm=.Nes . 3016/98 an 14643/98:
's:i.Y;R.Sadaahiva neaay;cesc, for
siggu.K.aamegn,».aa1.e.A. for R-3 8: R.-4'
"Tfiia
in W.P.Nos_.7488/98,7731/9897730/98.
291/93, 8: 28589/98. ) V
V, .writ petition filed praying to direct R-1 & R-2
2L to consider the applications filed by the petitioner, for
xf gr$nt~of duty exemption certificates witb.respect to
;impgrta=made by the petitioner; etc.,
...5
- 3
In W.P.Nb;7488[1gg8,
BETWEEH :-
1.
2.
A NLD z
1.
Kaaturba Medical college,
Madhavnagar
Manipal 576 119
by its_Dean
Dre .1? 9R3-9 0
Manipal Academy of H1gher"E&u¢at1on_., '
Madhavnagar. I; '"w I .~.'"1 "*
Manipal 576.119.} '
by its Registrar,*« g
Dr.Sudhakar S.Nayak. »
V'a1;;:f§fifionefa.
Union of india; ? _.u'
Rep. by Seeretary,*-
Ministry of Heagth &:fi§&i1§
.¥h1£ar&, _1; .
i_Hirmana'Bui1d1ޤ;1 '%*
" ' Maz11ana<1'floul__ Kalam
'% Haw Delhi 110 001.
ga
"Hau1ana~£bul KéIamV£zaad Road,
new MhiL11wo1~
i{Th§?hi£ég%aré£é*bf Health Servibes
'§1xman'Ehavan,
Azad Eoéd;
'Staée1@fi"iarna&aka
"Rep. by 1ts.Secretary,
Dept$~af Health & Family wglrare
Services, ' '
__ 1:03 on 1' Road,
=EBanga1ore- 560 001.
The Director,
Health & Family Wblfare Services,
Anand Rao circle,
Bangalore-5601009.
' ...Respondenta.
...4
% _ 4 _
In w.P.no;§o1og1gga,
BETWEEN :4 '
1. Vokkaligara Sangha,.
Ey General Secretary,
.P111a Byrappa, V '
-a/o Patel, Appaji Gouda,
Bangalore.
2. K.I.M.S.Hospita1 & Raaeareh;""~=j»»"
Centre,' j"W"~. 1. _. v
K.R.Road, >_T_T _ _ L
V.Y.Puram RA'K " '= '. . ""
by its ma&1ca1 Superintendent, _ *%
Dr.L.Kr1shna. "'ua =_ V' g_.;»_V . ,
" ~_oV§'u~?etv'.§;.ti0ner§e
AAN n%§
1. Superintendent o£=3aatdm§g v
(Head Quartexa)(Preyenfiive),
' Quegn'sLRQad,'gV v=,_ ~~,'
Banga1ore;_ i'* "W
2.5The*ASé1ataflt%Cfimmiflsioner,
QfVcQ8t0mBx(Pf$V§nt1W8)
. . ' . '
V Banga1ere,'a
'3. Deputy D1rBctor~Genera1 (Medicine)
. Directérate General of Health Services
"Nirman_Buavan, %
New Delhi--- 11.
'a;4.»$he Stéie of Karnamaka, - L L .;r
, _by its Secretary, " '"
'+_Bepartment of Health & Family
._'Banga1ore.
* '5. The Director of Health & Family Wblfare
"~ Ananda Rao Circle,
'Bangalore.-
..o5
' ;.".Reepeynde-ntagy .
1. Kasturba ~1Med;ica1« College
Madhavanagar,
llanipal. 576 119
' by its Bean '
.Dr.P.I..N.R;ao.
2.. Manipal Academy of '»Hig_i1e.r' Eiinc-at'io'nf%..__ :3
L Mad-hananagar, I M, '
Manipal. 576 .1 19
by its Registrar
\ Drosudhakar
= ' '.";'.P[é4titioneré. _
1. Un.ion.._orfj_Ind1a .4 V .
Repigjoy Sec;re"tary'_ 7 "
.«--M14nai§t'ry' 91 ""vI_ea1'1:hv8c Family
We»1far'e,; "
»,N:i:cm.ana Bails': mg ,
' """ Eauléina Abnl Ka'i'a::fAzaad Road,
_ 10001.
2;, Tag -»D1ree1;_o":oate of Health Services
yflirrnvanfihavan, , ' '
Mm11aaa._.VA'm11 Ka'1am.Azaad Road,
EIe'w"Be1h'1 - 110 001. .
' V. 3; Sta.-te""-'df Karnatqka,
. .4 Rep. by it Secretary
Dept. of Health and Family
a V3 ifare Services,
-- --- H; S .Bui1d.ing,
' mOBOR .Ambedk8r _ROB.d,
" BANGALORE - 560 001.
V 4:. The Director, A .
Health &. Family Welfare Seruises,
;Anand Rao.,C1re1e_,
Bangalyere-560 909.
'C006
W.
BETWEEN:
.3-
1.
2.
an 6 an
In w.P.No.11:og1928,
Manipal Hospital,
98, Huston Bagh,
Airport Road, _
Bangaloren-55iQ.017 ~ "
Rep. by its Médiaal Super1n+"~' H
tendent, ; :xV}V g ._'- *"; w»~
Dr.R.Shiva Shankar. "
The Mééiégl né11e£.s5¢iéxy of
South Kanara, ' '~ r %
pa S9ciety"'3:eg1etereei iindéfr the
Secieties-Regiatrat1ou~Act, 1869
Van&uhav1ng"ita.b£f1ce at Manipal
Udup1.Bi§trio%f576 119
Rep. by its fisdretary
flraRa§dae_fl,Pa1q A7
"-W» ..;ret1t:onera.'
'fihifin of ihfiia
'%Rap;»bynSecretary
'fi 2 Kifiistry or Health &.
'»*Fami1y\Wb1£are,
47Eirmana~Bu11ding,
3.
'R°P9 by
Madlsna Abu1VKa1am Azad Road,
New Delhi - 119 991.»
The Directorate of Health Services
Nirman Bhavan, "
Mau1ana%Abu1'Ka1am~Azad Road,
New Be1h1-- 110 001. -~
State of Karnataka,
italseoretary 1 .
Dppt. of Health & Family Wb1fare'
Serv1ces,'~ \ '
M.S.Bu11d1ng, '
Dr.B.R.AmbedkarvRoad,
Bangalore-560 001.
..57
-7-
A 4. The-Director, 'V
Health & Family Wblfare
Services, T
Anand, Rae Circle ,
BANGALORE-560 O09.
-~ f;§;;Resfi§hd§fit§o
'
BETWEEN 's-- V
KIMS.Hospita1'&_Raaearch,Cenfire,
K.H Read' )7 _: _ ' , _
39-n3a--»1n;~e.*.
by its Med1cg1=Super1ntendont
.uo.%4§e3n1
0 . oPet1ti0ner0
_ .... __ ", *%,,Thé.¢6mmi§§iBner of Guatoma\
' " -- .. 1'; 'Customs House ,
"--aa>Qhanngi--~ 600001.
~,2a Assistant Commissioner of Custom:
. 'Graup-5l,.0ffioe.of-Commissioner
* of fiuatoms, '
Gherma 1-.1 .
3. Assistant Director-Genera1(HA)
Directorate of Health & Family.
Iblflre,
Nirman Bhavan,
~ NQW.
4. Deputy Director General of Health
Services, '
Nirman Bbavan,
New Delhi;
.;.Respondents.
0008
8
In 7w;1=.Ne,~ 2g11§g19g§.
&
_BE£|3_,jV?EEN' '_:-- L
V 11. The -Kaaturba Medical Gollege ,
A.N
2.
1%.
( Hangaloraéflnit)
Manipal 576 119
Udupi Biatriet
Rep. by the Dean.
Manipal Academy of Higha; Edueaiicn ?j,1
A Deemed-ta be Un1v¢raityt'fl 'A*:'--<
Madhavanagar, *. 1,*' 4."
Manipal 576 119.
by its Registrareu
*_:".;§§é§ifioners1
The»Union'o£-Indiav
Rep. by Secretary: .a_<;x_1
Ministry of Health & ; A"*
Family Wslfars . " A
Eirmana Ehawan,
'"Eaulana'Abflul'Ka1am
Lzééd Rbad,
k ngw. n¢1h;';4;111911001
'5'
C}.
_TS&rvicea;V*
1§hQ7fiireét6raté1Gefiera1 of Health
N1m'.~.m1Bh1&1rén',' 1
- Naulana Lbfi11Ka1am Azaad Road;
*NVevi'I13é1h§._"§;. 110 cm.
§né1domfiis§ioner of customs,
' Gentng1.Bevenuea Building
Queens Road. A
--,T'Bgrga1ore-5-60 001.
1f*1'4.iThé Commissioner of Customs
" Air cargo complex, _
1f=Méenambakam,
Chennai - 600 027.
...Respendenta.
oétg
1.
In"WaP;No;2.
" 189
% 3EmwEmu¢s-
Manipa1.Hosp1tg1;
98, Rustom Bagh,
Airpert'Road,
Bangalore ~ 560 017
' Officer 9
2»
Rep. by its Chief Executive_h_ =u*' n
Dr.Nesa Joseph. VVMW
The Medical Relief Seciety of"u »
South Knnaraé ;_ * w _~m;
a Society register§d.unaer the, g*»_H9
Societies Begistfation.Aet,'1860"g
and having its offiqe.at Hhnipal 3
Udupi District 576.119", -2%-
Rep. by i$g*Searat8rYs~.*_
Dr.Ram&asafi;Pa1s%*;; 'af. =
" flj ;..Pbt1tioners.
5flhe U§ibntdfT$fidia _*
Rap;1@y'Sacmeta:y
Tkminiatry or,Hea1tu~&°
ramz1y*we1ra:¢,M
* Nirmsna,Bhavan;
'Mau1anafAbu1"Ka1am Azaad Road,
'*_New Delhi »f11o 001.»
"flirman Bhawan,
=.uMsa1ana Abul Kalam
V-Naflffielhi - 110 001.
énexbifiedfioiate General of Health
Servieaage
Aazad Road,
ymfié Commissioner of customs
'. Gentral Revenues Building,
4.
'Qneena Road, A
Bangalore-560 001.
The-Gomissioner of Customs ". H¢
Air Gargo Complex, V '
Meenambakam,
Chennai - 600 027.
11
. :':nwv.1=.noa.v2ae1 5; 2810 ~-1
¢ m_.__mEN%=-
The Kasturba-Me&iea1.Go11ege,
Manipal V . ..u
D.K. 576 119 » . ,fI g.-gw
Rep. by 1ta.Direotor-(Purchase) 'guv "
Sri.T;Ranga»Pa1.
AvB*D's
2._
iflirman Bhavah,'a ;'
3'
1."
VA Ministry sf Health
:»Qg;fetitioher€Ha }
The Union of Indian' _
Rep. by Sasretary~_*» *,.
V&u VHH
Family Wblfar§;rL1,: '--"
Hirmana.Bhavan, *"',_, Hf g
Maulana.Abul.Ka1amuAzaad R936,
New Dvlhi - 11G»0O1;, '*.'
'35:' \ cvtfir anagtg of fiIé»a Serv ice 9
Mau1ana»Abu1"Ka1am~#2éad Road,
~ -.1§0!~fen D'e";2.ni --116 czaea ;
'$hé93b¢fii§§i§ner"of Customs
~6entra1kBeveuuea~Bui1ding,
'=LQueena~Road;W
"Bangg1or&e559 001.
' 1»
V "Customs,
v,NeW Gustam House,
V."anambur,
y' angalore - 575 010.
Th§"Asaist8nt Commieaioner~of
_ State of Karnatakag
'Rep. by its Sectetary to
the_Department of Health &
Family Whlfare Services,
M;SaBu11dinga,
Banga lore -1 .
C0012
- 12 -'
6. The Director,
H§a1$hm&gFami1y"W§1fare
sexv1¢ea,%
Amanda Rae Circle,
BangaJere., ' L
In w.P.No.2a582Zi2§e;-j%:»;% f7
BETWEEN"; $"
-1. Mani§a1THOspita1a'
98; .us$om;Bagh;j=.'
Airpart*R9ad,7 &.V y
'Banga1or6«560:017."<?
Rep, by its chief Exécfitive
0ffieer§MH_' ®_u»"E '=;*
Dz;H¢sajJoseph,'af,
2;°$h§»H§ai¢aip3§r;e:%$sc1ety:or
--,'sc%#h'Xan§ra;:""%} % '
=.Ta ségieiyfregiétered under the
%so¢¢¢t;eg Registration Act, 1350
uV"_ and fiéving"i%s Office at Manipal
°« Udup1 3i3fiiiot 576 119
"Rafi; by its Secretary
'~z Dr.Rém&as M.Pa1.
co .PetitfOn8rBo
ig Union of India
Rep;byLSecretary
Ministry of Health & Family
*wa1£are, Nirmana Building A
Mau1ana;Abu1%Ka1am Azaad Road,
New Delhi -- 110 001.
' ...13
' *£Qr GEEG_fiade by the Ist'p§titioner afresh, in accor-
"¢anc§Vw1th,;gw; etc.,
V A.n9unéehent'of order, the Court made the following
'"I9r&er 5
.13 '.
2. The-Directorateyef Health Serviees
Nirman_Bhavan, V
Maulanaufibul KalamnAzad Road,
HEN HEEHI - 110 001.
3. State of Kernataka
Rep. by its Sec:c~et:ai15i'*«. _
Dept. of Health & Family'
Welfare Servicee, A "-
M;S.Bu11d1ng{V-- "j
eDr.B.R.AmbedkareR9ed,
Ban'ga1or'<-'i-ef3'6€) .i)"(3)"1"..: 4
4. ThefiDirec§9rg_i : «e z%w
Heglu; -ac; 'ran:1;:.y._1v.e'[1;are'e« "
Aziagid'ézaé'---.t;e1£cv1§.,°._
V »' " ' a" ' 1 ...Beepondente.
g~ $h1eeweit'pef1tion filed praying to quash AnnexA
o§&e;edated.246«1998'by R-2, and direct the respondents
_ _Eheee writ petitions coming on for hearing,
the dame having-been heard and reserved fer pro»
...14'
14
ORDER'
Common queetiene of law arise for eoneideretion
in theee Petitione, which were heard together and
ehell etand diemoeed of by this order, The queetione
primarily relate to a true and correct interpretation,
of notification NOx6flfi88 dated 1st or n§r¢n,"1eee'
ieeued by the Central Government in exercise ¢r;;tej
mowere under $ec.2§ of the CuetemeTéct,i962_ end7 E
eligibility of the petitioners yfer the Wgrent Qf_V
exemption from payment of cuetpme duty»en'the; import
of medical equipmente*from'oute;de<the country. The
correctness ofi/ordereApeeeed.by' theE_reepondente on
the amnlicatiene, made "by the. fietftianere for the
grant_ot exemmti§n§certificeteeVanfl the withdrawal of
certiticetee already grented hae been aeeeiled on e
variety of Qreund:, _The challenge arieee ageinet the
following backdreeéfi'
.~.{F*e:»2<:;.O.1e«:».'e"L.!.nir:anVryf'Civil L,.it~ertie.~:sV in (:1 :,.J~m:,
Petition: filed in publie interee' betore the High
ueurt pf Delhi made eerioue.allegetione about what it
ya financial ecem involving euetom free,
'eimport. mf expensive medical equipment worth thoueend
jhroree 'on the beeie of cuetom duty exemption
_hqCertiticatee ieeued by the Directorate General of
15; . . i
~Health $cience$. These certiticatasr were according
to the pdtitioners, granted illegally with a View to
defraud the exchequar of a huge amount recoverable on
'th@ import of,such equipmant by a laT§8 _number at
hompitals establi3hed' in different part3 _of*,th@
Country. while the petition wa$_jW"
consideration before a Division Bench ht thé High
Court, thé Government of India hr ah*drder'dfit¢dd2®thi
of May 1996 appointed $ri 'KAWChandrambdii¢,
$c@retary, Miniatry of Héaith and Family wéifaré to'
conduct a preliminary enquiry as to thé~.yalidity of
the cerititicates i$$ued~by'thaifiiréctorate of Health
$ervic@$ from" timm to tima}' mg.ot refdrencd
for the enquirynentru$t$d to _$fg_ Chandramouli were
enlarged by the_High"C©drt by i£$ wrder datdd 23rd of
May 1996" i*The5,Committeé._was? among other a$pect8
ddtailed in_théjmpditi3d,tarm$ of referenme drawn um
by the Cdurt required tbaéxamine the validity of the.
c@rtiticateé~ granted dtd 19 different hogwitalt
*;including the pétiticner Manipal Hbdpitala Bangaldre.
i_%»'7T&WQYK ,was in due COUY$8, submitthd by ari
Chandramddii, which prima tacim found the acta of the
Officers Of Directorate General of Health $ervic@$
3"~, and Cqdtoms Department to, bé irr@$pon$ible and'
xnegiigtnt, The report did not rule nut larbd naald
'~}cdrruption in th@ i$$ue of the certificated. Kaeping
1%
in viaw the rahort and the fact that tha evasion of
duty involved ran into hundred3 of croreny the Court
by an order datad 18th of October 1996 conatitutad
two Committeea. Thn first Committeé comprining Sri S
D Mohile, Member, Central Board of Exci$e and Cugtoms
was r@quired to quantify the'amount_of custQm$ j&uty
foregone in canas where equipmant/machinfiry" w
relaased with or without 'DYQduC§iOfl ©f*h»Cu$tom3
.
exemption cartlficate under hotification °NfiQ6@/68 dated 1$t of March 1988 and to suggégt %t%n§M.t§E.be h taken -for collection of hthé» dut§n_hawahi¢ hy thn parties who had availed of Vthfi :$%$mpt£dn"'auailab1¢ under Athe notification}: hp nwhfihh hthéyh were not otherwiae entitleu; fhé~§eédnfln¢nmmittne cbmprising Dfficerg of the'§e§@n§$°:fi£ei1;§¢hce; Cantral Exnise, the Directqratér QT Hééith*$ervibe$ and the C81 wnra _¢on$tituted*.und$hh'thmt' Qvéréll $upervi$ion and ' which zmayh guidanc$"'ot _ Mr Padam "_Ro$ha (Retired) Director General, R$aéurity;1 3_%& K with the objant , of .identitying the' :ct$ of omi$$ion and commimnion of' the Dirnctoratw Aawnnral, Health of Health and Family whifara/Cuatnns D@partm@nt,or any othnr Department nava regulted in a long to the Exchequer hhfihdvuthns-rnasona tor' nuch actg of 0mn$$ion anfl 'w.wnmmi$$ion and to enquire whether cugtomg duty 17 exemption certitimatd had been is3ued b9 th8 Miniatry of Health and'Family walfard/directorate G@W@Yfll of Hdalth Sciences in accovdantd with _the termd and conditions laid down in the notification.lh Thfi Committed wag .al$o to.enquir@ into whethergdnyxgunh certificate8 had been i$$ued to persons,jwh0 wéré not I otherwise entitled to the game. and_ to vfind '¢wt' whether the concefned Indtitwtidhsahadgsdtisfiéd thei COflditiOfi3, sdbject to whinh the dkdmntidn frdn":ddty wad granted. Theda' §¢mmitt6§§'_%Qgfl§btem} thggn interim reporta from time tb time, dpdnlcdnsideration wh§Y80f, the CduVt'h§ an ondéf ddted 19thVAdtD@cember 199$ vdirected all pendind"nhpliddtidn$ for the grant of exemption ddftiticdtdd td he dégided in accordance with law5*'Eyléndthéfabrddfidatadwidt of May' 1997, the ?9HVt ediggdtfid the ¢l$§@$fil at all duch pending thrwithin Q @$YiOd of 3 months from thn Cr}
-3
-3 1*' HF ':
.« Q (''f' H. ':3 3 V:
date :of'the'séid.drdér=with a directidn to thfi Chief °%s'otHthé State GOV$Thm$flt$ to render all assiatanxd and to furnish the nacesgary 'intcfimatiQn,in rdgard to tha pending &fifiliC&tlOfl$ l".&#Péditidudly" 30 as to reach the Ministry of Health 'n,'thanfV31O days trdm the date of th$ orderi' Vlnatructiona were accordingly issued by the Govti of ilndia to all Chief $@cretarie$ in termd of aL letter n,dvat@ General, Health $@TViO@$ not later 1% datéd 30th of\ May i997 to doopatoh the roquisito "information in a proforma Forwarded to them under tho said letter so as to roach tho Miniotry within A10 dayo, Tho following paooago from the lottor is in this rooard rolovant:w'r _ jlh " In the meantimo, the High Court~of, Dolhi hao directed thio Ministry to enouroVf= the dioposal of the 112 applicationaaxforfi" exemption certificates, which are ponoino, oonoideration within the" ~next {three v_. _months, i.o. 'by. 30th] of" July'A1997g_ positively" For doing so,Fit1is'néce$sarV.3l to obtain the relevant' information _ahout.'*' the applicant, in the oreooribed proforma, _ 'duly portified by > tho Stato,AHoalth" Secretary himself/horselfl' Thin i'would obviate the poooibilitylaor,oortifioatoo being given routinely on hoo _haPP®nod "in tho past. In"aordor §to*;oxWodite tho mrocoos, the .High; Court of xDolhi hao dirootod tho State Governments through tho Chiof Soorotarieswi to<_ -sofibly tho Mini3try£Directorato~*Gonorol_ or Hoalth Sorvioeog (5GH$)'«rolovantt information in respect of.'béndin§,"aphllortionol Tho Court »_'ha$ further" ,dirooted that j in$truotionogohould_bo*i$$dod to tho Chiof fieorotarioo that thio information ohall be suopliod an£,ohould roach tho Ministry not lator than 10*days' from the roooipt of roquo$t,tor.su¢h_information" no directed by tho" Courtg_ 3 'copy of the relevant extract oontaining their dirootiono aro _, noloood herewith $0 that neceooary action ' 3i
-_u"n, no tahér by you personally to onouro §,il that there io no delay in the tranomisoion Vf' °»o¥qthoVinformation." -
T9 The. letter. aleo' gave inetruetione £0 the authoritiee to monitor the grant of the benefit by the beneficiary inetitutione to eneure that the eeme reached thoee eligible for the eame, It alee emphaeieed the need for making recommendatione1_eFter 'due and proper verification of the faete tQ_eueiQ the e__.:*+'i;.;:-_I~. Po w.
ieeue of eertificatee in a routine manner es had been' happening in the.haet. 'Individuel_time beund nflticeex were eleo ieeued by the Directerate fienerel of Heaith $ervicee to the Inetitutiohe concerned aekihg them to"; furnish information one mettere 'eet"-bufie in the notices, A copy each pf these nteticee waefforwarded even to the fitate Heaiih éeeretariee with therequeet that the reeponse.reeeiQ I from flhehinetitution duly verified 'anfl eertifled 'by xthe""Secretary; Health fiervicee figx be ferwerfied no the Directorate General of Health Servi ensure' cbmplienee =with7the directione ieeued by the Court.
Meet gr theee applications were rejected by the er Cemmittee in the Directorate of Health Servicee7'en7 the beeie cf whatever material. was 'V availebLe with it ae in most of_the casesthe reepenee 'F_rrem the fitate Government was delayed, In the caee 'nF"--Maninel 'Heepitel, Bangelore and Keeturba Medical 'within :55" stipulated 'period to 20 College, Menipelo and Kaeturbe Medical College, Mangelore, these applioatione' were rejected on different detee between 3rd of July'1997 to 23rd ofv July 1997, The delay in the reeponse from the State Government wee, it eppeare, brought to the notioe_ of .the Delhi 'High Court, who by order dated let gr' August 1997 directed that all euch oaeeee in. whiohl recommendations of the State "Government5 had been' reoeived- upto 8th of euguet ll1?97*\lshouloal7be reconsidered by the Committee,'; lConseouently§ thew request wee reeoneidered kin _the "light ;ot the. reoommendetione'of the $tate Government, who rejected the eeme for the second time by ordere that have been »ehallenQedA inl'theee"mwrjtf>§etition$ and to which I rehall hreeentlyfreferg *The Committee wee of the View that the lnetltutlone old ffi¢£} tor various. reaeone quelifig ;~(c%_ "the. ogent. 5% exemption under the exemption notitloetiQn1__Certificate$_elready ieeued as .ln the vooee hot,EKernatake Inetitute of Medical $oienoee (KIM$Q were aleo directed to be cancelled" '-$euerel,eontentione heve been urged on behalf ofo the..oeLitionere in theee Petitions in an ettempt v_ to demonetrate that the petitioners were eligible For " the grant of the exemption certificates and the "rejeotion of their 'applications by the reepondente 31 wax unfair anfi arbitrary, Before I deal with thenn aontentionn, it i3 nece$$ary to briafly refer to thfi exemwtimn notification in » order to properly .apmr@ciata lthe Scheme and the purmose underlying thn game,' The notification envi$ag@$' examption 'Qrn.all wquipment apparatus and appliance$ includinQ~$mére part$ and aCces$aries thereof, the import of whibh is' approved either generally or .in. each véafie "by; thé' Government of India or by thé Diremtoratfi Cenéral or Health $@rvice$ an e$$enti&l for gée 1n*anyW h0$pital; specified in the table apnunded tn thé nofification. The tabla below the ngtifiéntinn cla$$irie§ hofipltalg in four oiffernnt catégbrill .3 Q Cafiégbrywl deals with hoanitals certified" byd th§2_Mlh;$£ry of Health and Family Nelf§re;an béinQ run Qt nqbétantially aidad by such Charl@a§l§Vdrganféafiicnnlfié may be approved from to tifi$mh9*lh@ $§idlmihist}§Il Categoryw2 comwrigan hoswinalél 'whr5hlm&§*h§_0@rtified by the Mihi$tTY of Haalfih éhdlFamllQnwélfar@ in each cane to ba run or prhniding Médical, aurgical or diagnostic treatment 'without: any distinction of caate, creed, raca, gligifin br language and free on an average to 40% of the' outnépr matients and all indoor fiflfiififitfi with a family indome of lesg than Ral5OO/W per month, Inr /'I Catfigory a fall ho$nital3 which the Min$try of Health Rana Family welfare may having regard to the treatm@nt 22 availablo thoroin or_ the geographical \$ituation thereof or tho olago of pationta for whom _$uoh treatment is provided eithar' generally or in_eaoh oaoo oortify that tho hoopital even though it makes 3_ ohargo for tho ooid troatmont in novertheloofi rmn 'on no profitA basis and i8 do$orving of oxemption from payment of duty on the import of hoonital; &@Uihmént,' provided that the equipment 86 imported l3_rec§iQéd' by way. of a frog gift utrom :&ttdonor"_ahro$:At purchaaed out of the donation$.reoeifiéd in foreign' oxchango, V The 4th' and itho _onlQV other' category oomnrioea hO$pital§;K whioh "nffiw in tho hrocoss of being ootabliohed éndh in: roshoot not which tho Minigtry of _MeolthfHono:-Ffimigytghélfnre io of the opinion that»thoro'io_onz awhroprioto wrogramme for éotablinhmont L ot hgthétfihoaoital, that there are suttifiientxtnndfitondiothor--rooouroe$ worked for ouch o o$tabli$hmant- afimo that ~suoh hospital wonld be An a 3----to }---ta mooition to otart function no w thin a period of Ono and would_be,relatable to a hoopital opecifted or 3 roterrod' to above, Vhn '~he3oitéi$n é$tablished by the oetitionora in thigh bunch of Potitions claim to bo falling in oatogorywz r, of the ;table appended to the notification, It would \ _ 29 .therefore be profitablé to extract parawz of Ehw .table, whimh d¢al$ 'with- the $aid catagory in i'1'i>€1L'$T?$O3""'
"2. All $uch ho$pital$ which. may ha? certified by the gaid Ministry of Haalhhi and Family Nelfara, in each ca$e, to 'b$u_, run for providing medical, $urQic§I"Qra_ diagnostic treatment not only without 'anyflf' distinction of caste; creed,MH race; religion or language but also, W ' '"*'" "
(a) Free, on an'averag@; to at lea$t"=flO'g per cent of all their outdoor patientaj"
and r * '; ~¥AV
(b)! fr@e . to all': indoor". patient$ bhlonging to familia$ 'with an"income bf l@$$ than rupees five hundred 'per "m0nth, and keeping' for rhis purpoge at léast 10 percent of all the h$¢pital"héd$W reserved for such matianta; and " ~ "VV ' (0) at rgasonable Qhargéai éither an the ba$i§ iofgéthe =incbma'.p? "th@ patiantn * wi$ei"tw patientg other fi&¢_:in_¢1au$@s Ca) and Q bininvréuuingjhfihhe above would ahow that any §h03hitul=¢iaimihgibannfit undar tntegorywa fihall ."hayé=atfi= éstabliéhi to the gatigraqtion of the 'y§ag§rh@e§ti*§rj India and tha.Mini$try of Health and Fémil? Wéi¥§ré or the Directorate General or Health
-- 8@rvic@é_to the $aid Govarnment thatiw 24
1), It is a hospital, which provideo medical, .ourgioal or diagnostic treatment withoutany diotihotioh of caste, creed, race, religion or lahguago,
2) It is a hospital, which "on an _avéragoh orovideo 'ouch treatment to atloaot 40% of all log:
outdoor P&ti8htB. V _m~_
3) It is .a hospital, which profiidéé ouoh "L treatment to all indoor ;mationto_ bolofifiihg to
-familieo with an income of lééo than Rsu5OO oer month and koeps for that ouvooso afiloao£¥:10%_ of »all tho hogoital bedo re$orvod"for such patiohto and
a) Iiu io;a hoooi£al;»whioh oharoeo reasonable rates elfihor om tho b&$i$ ofufiho income or othorwiae from' $11: matiohtoawothét thah thooo givon free treatment in horhs of°oohdition Nosnzj and 3) above.
a" Ifi is only in case the hoopital satiofioo tho 'CohLfoQo_Qouérhmoht ov the Divootorate General of Hoalfih Seffiioos that it Fulfillo tho oohditioho 'Vstipolgfiool that can rooult Lin the grant of an Voxomptioh certificate in ito favour" According to ";fihé"~¥$$POfid@fit$, the oetitionerwhoopitals do not _ mu. m.
2% satiofy tho requirement of 40% outdoor pationto being treated tree nor do thoy satioty the requirement of keeping atloaot 10% of all its bodo rooorvod tor bpationto with a family inoomo of less than Ro,500/por month. The roopondonts argue that the obligationj to provide free treatment i$*a continuing obligation, Atho failure whereof at any otago would ontitlo¥"th&m"
to not only withdtaw the oxompitionuoortitioatooQ"
isouod earlier, but also to take oooroivé; $tofio_ for the revooery of customs duty payable on the eouiomonté imported,
-Two decisions 'of *tho}$uotomogCourt that deal with the true import "of *thoi notification need ho noticed at thi;*latégé," :in"dMtoIwatt HOSPITAL AND HEALTH cant n§tQ""tTofQ;;ws§ ' 'UNION or Iwoin. AND 0THER$"N(Rl§t 1§§7' fig 162$}; o diagnootio centre woo aggrioued of tho yergsgi of an exemption oortifioatd on the ground that tho notifioationo did not envisage any fbonefit"_in favour of such oontroo run on purely i-¢ommoroialylineollMThe Supreme Court ihold that tho :nto,_hgving oxtondod benefit of. exemption undo? thef notification to oimilar »othor oontreo, deniol* of tho samo to tho potitioner would Fall foul 4"_ of article 14 of the Constitution" More importantly, ixthoifiourt declared the obligation to provide trod as treatment to 40% outnatiente and all indoor pettente with a family income of leee than Re.5OO per mon$h to be a continuing obligation, In order to'eneure Vthet the benefit reached the deeerving, the authorities were aeked to monitor the same and ton oteke appropriate action if there was a.deFault;in'theg diecharge'ot that obligation. The following {pa§eag§i' from . the eaid decision ie*"in~&thie_'oonnection enpoeitexw "whileitherefore, wex_' acceptfll"'tH¢ oontentione of ,Mr. twfieitleyl learned eenior .oouneel *,appearingV Mfor the appellant that thefappellentawasuentitled to get the certificateJfromfreepondent No"2 which would enable the appellant to import the ,equipment without gayment of ouetome dut?.butfi at 'the =eame, time we would _likef_to= observe. that the very notification grantinguexemotion muet be odnetrued_:to oeet continuing obligation on the oert"ef.allathoee who obtained the oertifioete T, from the appropriate authorityirendr fin "tfie baeie of that to have imported equipmente without payment' of euetomeu duty" to give free treatment etleaet to 40 terzoent of the /out door watiente, as" well ae would give free , treetment" to all the indoor patients a-belonging to the femiliee with an inoome r_ of lees than Re 500/" him" The competent '=&uthority;_therefore, ehould continue to . be 'xuidilent and check whether the Kundehtakinge given by the applicants are , being" duly complied with after getting "the benefit of the exemption notification and importing without payment of ouetome T duty 'and it on such enquiry the '"geuthoritiee are eatiefied that the oontinuing obligatione are not being "carried out then it would be fully women w
-127'-
to the authority to ask the person who : have availed of the benefit of exemption to pay the duty payable in respect of the equipments which have --been imported without payment of customs duty."
The Court also read into the Scheme iof fthe exemption notification an obligation to publish in V the press informaltion regarding the availability; of' free treatment for the patients of the.presci{bed income group. The Court observed?» "It is 'needless to reiterate that all the persons incluoing.the 'appellant who had the benefit of importing the hospital equipment ,with exemption of customs duty under the,notification_should ynotify in the local hewspaper"every*month the total number~ of patients they have treated and the 40% or them are the indigent persons below= stipulated' income of Rs.500/e per month with fullHparticulars and address thereoff; which 'would-- ensure that the application to treat 40% of the parties free e of ' cost 'would continuously be fulfilled§= "In. the event of default; there* should be coercive official action ate perform their obligation undertaken by
-§all such persons. This condition becomes 'a part of the exemption order application _ and strictly be enforced by all concerned * including. the Police personnels when . complaints of nonwcompliance were made by V7the«findigent persons, on denial of such _' treatment in the concerned hospital or ' diagnostic centres, as the case may be." 'The other decision in FARIDABAD CT. scan CENTRE .vs. o e HEALTH SERVICES AND ornans (1997(7) dry SCC 752) arose out of a similar case, in which the Z83 $upreme Court while diemieeino the SLP filed by the Diagnostic Centre partly overruled the deoieion in Medlwell'e case in eo far ae the- eameb held' that refueel 0? a benefit extended to othere would amount to heetile dieorimation against the petitionerelnVThe Ceurt_held that it any euch benefit was founq to heue 2 been granted illegally or undeeervedly, there wee ne--J _queetion of lte retueal in other Ceeee,conetituting' hoetile discrimination" The Court lreoelleor "the* o 'oontention beeed on article _14 "an 'the Fellowing wordei "3" we fail ts eee_how article 14 can be attracted in caeee where }wrQhgl;ordere are ieeued in favour or" others; fwrong ordere cannot be Pfirfietuatfid with tbé helfi of Article 14 on the ba'Me that such wrong orders were eerlier.peeeed"_in"~fevour of eeme otherg eereene_and, therefore, there will be dieeriminationAegeinet* othere it correct erdr3e are °paeeed against them"
I" ffiéte ifi;thé#¢a8e'-of "Union of Indie (Rlyl Board} "v,'oJ>V. Gubhaiah the same learned Judge in hie judgment has observed in para 21 that the principle of equality enehrined=under"hrtiele 1% doee not enmly when 7 the*V torderw relied' upon is uneuetainable"in law and ie illegal" Such an erder oennot_form the beeie for holding that Lather embloyeee are dieoriminated *ega£net.under article 14" The benefit of *the_exemntion notitioetion, in the preeent . eeeegeeennetg therefore, be extended to {the betltioner on the ground that euoh benefit fhee been' wrongly extended to otherex°' with reeweot, the deoieion in Mediwell Hospital doee not lay down the .oorrect law on thie mointg"
29
The orders hanged by the respondents rotuoing the grant _of exemption certificates to the petitioners havo theroforo to be viewed in. the context of the roquiromentoi otipulatod in tho exemption notitioation flfi oxplainod_ and Qliouitotod by the twov judgments referred to abov@".»»' , - It ' Thoro io ono other dopo§t~mith which i,figet. deal at this otage $ince.thg gamé is Vcommon_ to all} the oaooou One of the reaooné; whioh tho rospondonto' have _ _m_'a.*, "._ ,* »' i/whi1e _retusing the bQnefit'o£ tho notitioation cited againot the petitionér$i;io; fihotirthey are not providing' any 'frog treotmont to tho indoor patients with tamiixdinoomo ot ieoo thon ho 500 per month" It 1% pointod out thot ghét is prodided by the hospitalo to~$ooh odtionto it hoot trédtmont, but only from oonoultation _énd,'waivor, of rogigtration and ward _chargeoKx»in.$o for odd oonoumabloo are oonoornody é (whothor: the ~$dmo into in the form of medicineoig 9 dinjédtihlo$,or othorwiao tho patient io naked to. t 1,nurohd§@L"[email protected] from the marhot for use in the L ho$nitai}V The hosnitalo on the other hand oontondod in that the notification did not envisage providing free '»xmou;cifi¢s and other consumable artioloo to tho indoor 'ndtiént$ admitted to the hoooital or to the outdoor 36 patiente treated Free. any 'interpretation making' supply or medioinee, it wee contended, would make the entire Scheme underlying the exemption unworkable and economically unviable for the _hoewitele, nfhe question therefore ie ae to what exactly do the woroe "medical, eurgioal or diagnostic treetment"_appea=,' in parewz of the notification mean, _i"
differently does , the term :"£reefiment7:iinoiuoe ° apolioation of remedies whether gfim*meoicali eurgieeih or dfagnoetio or "would in "be limited ,oniy». to ooneultation and advioe_tendereo to the petienfie, In the absence of any definition.or the term treatment either in the exemption notification of. ihe Cuetome not, there is ~no\ ootionj1bo£7fio give the word its ordinary meaning eeJQndere£oo& in common perelance, _Chembere HgQth,":entury° diotiQhery defines the word 'treatment'_aehunder;w>_"
TThe fleet eiorF_'menner of treating:
mgnagementf_ behavior to anyone: way or ewoiying remedies "
'A'SimilerlV;Bleck'e Law Dictionary givee the word 7treatmenif the Following meaning:
53 A bvoad term covering all the atem$' taken to effect a cure of an injury or disea$e= including examination and diagno$i3 a3 well as anplication of remedi@$»" .
_It would thun apmear that thw word trgatmenfi in not confinad only 'to Vexamination or diagnn$1$'H$ contended by the' respondents, but inclQ§e$~%£gb§¢l taken to effedt a cure for a deneasn or injnrgllluhnt"
is aignificant is that the expreésion is wldé 'én§qghQ' to inaludn the application Qf.femefli§§ to Lh&n@¢ne%sn and not just its diagno$ié;Jh It Vmdflld 'include medicines and therafiiug cehgifi¢r§u_ nenéénamy for gura, This interpré£étlonnliS fiénmndrted by the cgntext, in which the ;fiéfml:ha$;lhnen:ln§@d in thm nmtification gé algn the flnmp¢$gmnndé?lying'§he samel The word 'lnea£m%nf"'l§hpn§r3 hln the company of nxpr$3$idn$"'medi .,_','*§urglcél' and 'diagno8tic""
Tha expre$$ion _dlagnQ$i$"_immli@3 the _process of ldenti¥ying*§he;diseasé.by ,means of its symptomal Thn jekmresgibnfl diagnostim according to the l_Dictldnan§; mean$ di$tinguishlng or differentiating a ',lifi$ l$ymptomnn The diagnosis of the diséasé, "mayI* itslef involve a prolonged * " ~ and 37,nve:93'i;igjal;:j.c:>i"1Zrnaay in 'tLH"T1 COl"}1StfLl1L1lL€ EEC r::a.1"1; of u" the treatment to be given to the patient, Medical or 'and perhapg rightly ;that7;in.Vth&"current economim 'that xthat Vthoéa,i who Vfall in that '¢ategory ghould bn 'K$éti$fi@d with Free advi$e of a Uoctor in the 32 $urgical' treatment that any such diagnosia may indicate in what the notification nnuisagem and not . I ju$t the diagnogis or advice.
The ~wbrds u$ed in the notification~npnrt;hthn purpogn underlying the vexemption xxx u5§uesti§hg51§;_ wns to grunt exemption onltgt0~hQsnitni§;hwh§hexthéh prescribed nnrcentage of natitntg tfiom thé of fie§$¢at of the poor.$ection$ of theh Sdéittyh withv g _iamii%> income oft no morn than 9$@500¥n@r mnhth could gét tree treatment" _It was cnnténd9u*by Mr: X 'ShevQ%or acenario with the purchafiing powér 6? the ruwee on tha 'decline a ramily income at Ré}500/ i$ thn barest minimum for éurviual, fOné"éan even say that those withi that" Kine; bf" income For an entire family are living on the sdgg and may be a vaninhing specie"
what howevar i6 euidght from thw limit on thfi incomt hiaheuiby the authority i$suing the notification i$~ 3-'v "
t_had in mind thé poorent of the pear $$CtiOhS T"; fidciaty when a provision For axemption of duty on_imp¢rt pf equipment wa$ mada. The intention of the authority issuing the notifihation could never be 39 hospitals getting exemption and ehould even as indoor patients fetch their own medicinee or pay for the consumables. To attribute that intention to the Government_ would amount to frustrating the very purposes behind the grant not exemption; Ifdihah /' patient,-- who falle in the eligible category igfayggu « required to pay ,for the medicines _iend¢t=otheri"
consumable items ueed by the: hoepitei vhievtheir ° treatment. it would render any eueh treetment*ina the * 'hoepita1 a luxuary which dne";eanA"iiiafFord}"~~The notification _hae therefore_ "to-- 'be 'ainterbreted rationally in order efi? éngfliéflfflfiat the' Object underlying the same is Vedveneedi H dine Epredominant object behind .thof.gnent o¥'enié¥?W5§ion,-which ran into hundrede"of,:erereeeaif *not'hthoueende was to 'ensure that "thefapooteet'";n_ the .eociety have an advantage of.being,treated_Treev in euch hoepitale. colonel amount g »e _u .
The/xxxxxzmgunx 'offl duty "involved in the exemption could not oonoeivabiy be waived or given up by the .Ne9vernmentt Ronl§"« for purpose of providing free "ooneu1tetionwto»_euch 'patients. Viwed thus, the exoteeeioniflmediéel, surgical or diagnostic treatment Vd'in the exemption notification must be interpreted to
---fgwmeen treatment not only in the nature of providing
- gn _ admission and accommodation to the hospital, diagnoeis and investigation, but free-medicines and _consumablee aleo. -
It is time now to examine the oaee»or'each *one of the hospitals, who have filed theae.fietitione.in rthe context of the aboveu', MANIPAL HOSPITAL: eANeALoRs °--7 writ peti£iqns7,nq§2e1ee§e7/1996 filed by this Hospital,achai1eh'eeeij":.he._"va1raijiy?or an order dated 27th _$eptemberg»hui99éjiiieeued by the Assistant Commieeioner of Quetome'Mahdaiore, whereunder Cuetome Behdiiaezai dated 4th of October, 1991,-for a eum of Reg2;e1;32;467*Qd*nae enforced against the petitioner on V7account iof, its failure to produce relevant _ documents in connection with the import of Equipment i and calls upon the petitioner to pay an amount of Re. 'h3i}Q3;é?i$69.00 towards customs duty.
"fifiv writ Petition No.7730/1998 the petitioner uwoepital challenges the validity of an order dated '<;a29th of October, 1997, rejecting its applications for 7the grant of "Exemption Certificates" in respect of equipment indicated Vin the 'annexure to the said order. Similarly, writ Petition No.28589/1998 calls 35' in queetion an order of rejection dated 2nd of June,' 1998, L issued againet 'the 'petitioner Hoepital following Order dated 29th of October, 1997 challenged in w;p.No.773o/1998. writ» Petition No.29130/1998 filed by this Hospital .aeea:1e the validity of order dated 25th of August: Ieee; iieeued by the Deputy Director General _of ~Heelth::$erniceet_ cancelling the CDECe ieeded din ite fevour for the h equipment referred to in the,annexuree thereto, "ctlt would thus appear thefi the hetitj9fi$re? entitlement for the grant of the Exenhtionucertificetee has been ~determined by order tdeted2f2§th of October, 1997 éieeued by the Directorate eenerai or Health Services, which order hes been made a basie for rejection of "the other; efihlicetfeneh"ee_faleo for recall of the C.DtECe granted eeriiert, The enforcement of the Bond and_prooeedinde for the recovery of the Customs Duty« payab;er on: the yfififiort of the equipment which forms the subject mattee*¢+ writ petition No.2e1ee~e7/1996 fwou}d ,depend upon whether the petitioner is entitled "*;o»thetieeue of the Certificates for it was not "tdiebdtedfl that if the Certificates are declined the "Respondents would be entitled to enforce the Bond and "»xh reooéer the duty assessed against the petitioner. In its "order dated 29th of October, 1997, the Directorate General of Health $ervioee has held the petitioner Adieentitled to the issue of "Exemption a Certificate" on_more than one grounds. One' of them grounds is that since the Hospital only provides free admieeion and_ consultation to the inrflatiegte and levies ohargee for medioinee and _otherV=ooneumabiee, it ie ineffeot providino no free treatment to euoh7 patients. The other significant reason for denial of the certificate ie that Moepitai haeo notw maintained _any records indicating the--number«of indoor patients treated free and §0longind"toJifamiliee with income leae than Re.5OQ(Epim:tia New bade for euch.patienta have aooording'to the Reepohdente been-dreeerved ae required under ithg Notification." The faota'relevant to theee grounda} afe not édieputed. , The Hospital doee_not dispute thaL.the coat of drugs and materiale is 'oharged tooth, ercm outdoor and indoor patients. VThis is [evident "trom the proforma in iwhich the iffioepital hhaa .... -rurniehed the requisite information to 'vw_thang§mmittee appointed by the State Government. In *[_§fisQeg_£§ para 3A, the Hospital has given the figuree E_of 'that total _number_ of patients treated and the number of those patiente treated free during 1994,-95 Vu"& 96. Para 4(b) of the Vproforma required the % am Hospital to indicate the facilities/Services available in the Hospital, in answer to which it has produced the _ the information brochurel of the Hospital. Para 4(c) of the proforma Wis xfor our purposes 'relevant and may therefore» be emtracted 'together with the hoecitalg reeponee to the eeme ii 4(c) Facilities/services Free» : Coet of drugs and to OPD, Patiente referredgto_H ;'matecial$ are ¢h~: _ in (a)'above :~ '= I " areedi Registrar tion and Coneultaw Vtion.chergee are' ; firee.%, W $imilarly,T'~V.«_in_7re§;5i§(_ para "V4(h) or the proforma, the hospital has stated thus :~ 4(h) Facilities/Services pro» 3.: 10% of the beds ~ vided FREE ta indoor patients & available are in referred td_in clause Qdjabove' :the_free category 5 'vV"*v '3"-'v '-- v where beds, opera~ v, --., _. _ .« 5 tions/procedures ,v """ *~_'3 "%=--"v.*. "*~~" etc are free. For"
A"* " "V - economically weaw ker eectione concew seione are grantedw in the bills at the~ time of discharge.
In case of dialyeie Prosthetics, Cobalt therapy, dentures etc.only service chargee_ are free, actual material cost has to be met by the beneficiary."
free treatment given to both O.P.D. and inwpatiente does not include medicines. The --free treatment is limited 'even according to the The above would indicate that the so .called' '_ order, \the expression "Free Treatment" does not 'charges only.
38 petitioner ato lab investigations;/Ax~Raye, 'Bed oharges,and profeesional charges only. This position was not disputed by Mr Shivgoor Counsel appearing 'for the Hoepital in the oourse of his submiseione as indeed the same geuid not have been disputed in viewer of the} foilouifigd apecifia avermente made in para §;? of w.élNo,7?3dX19é8 go "Medicines _"and coneumableew cannot= be
-supplied Free to inpatients as the cost is prohibitive and there is no financial aid rfor }"suppl9ing Free" medicines. Further: euppi9,of"medicinee free is not a part of the conditions in AnnexurewB. No ' suchv Vpractioe . exists ) even. in vGovernment'hoepitale§z The poor patients ' are ; given, <ffree* diagnosis, lab iinvestigatione," Xefiays; bedé charges, _'profeseional'oharges inoluding service of gdoctoregx nursee" and para~medical staff, Vinetrument.charges and operation \theatre x, charges} Therefore, more than fair and ivg.reasonable.compliance of the conditions 'ie done by the petitioners. Further, the ',exaot*_'income of the patient cannot 'possibly be ascertained at- the time of .his*admieeion." ' ' ' ' l.\\i'~' Ae obeerved in the earlier part of thie imply investigation, diagnosis, X«Rays, or tBed Treatment impliesl application of remedies considered neceseary for curing rthe disease or" injury, lThe admitted position however » §. ' . ./2 < :
4
as V is that the hospital does not ' provide free itreatmentv in that eenee to either category of patients. according to .Mr Shevgoora it is not poeeible forV any hospital to do eofheoauee of the prohioitive cost involved in the eamei frhat is not ,in my opinion the question. .If*it'ie not ffot_ any reaeoni poeeible for" a mH0$Dl£éi _to provide free on it ie 2-*0' treatment as contemplatee By the'moti%icat. under no obligation to do eo,' pet haying -imported equipment it cannot eiaim exemption from Payment of duty on vthe groono that the Notification placee a condition impeeeipie of performance. As to_ what are ithe '¢$fi¢i§i§fieey&¢b5e§t to which an exemption ehoule:be'grantedgie*a matter that reete with the Government.xi"Ne' importer; of equipment can claim thet. ap particular condition impoeed by the V_ exemption "notification is far too stringent to be included in the same nor can an importer demand tha.t"~-..AV§n¢, conditions should be so liberally iii construed as to enable the free import of equipment lV,even7when the object underlying _the exemption lie ..oeteated by each an interpretation. Economic viability of a-hoepital.ie therefore no reason For either relaxing the conditione etipulated by the Notification or~. an' extravagantly ' liberal interpretation of the same. If the intention, was tea to grant exemption only to .euch hoepitale aee provide free Medical Treatment to the poorer sections of the Society, there is nor reason why those who do not eatiefy that reouirement should benefit from a conceeeion that was never meant for them. The Reepondente_ were "therefore perfectly Justified in declining vtb Farah: »the».éxemn;:on' certificates to _the oetitioner on the eroded that it did not qualif9 fer £he=eame} The second and an fedually important reaeon whioha.lende"witee1fy_ae;aafl"baeie For the impugned ordere§ of nréjection; "ion the fact lthat ' the fietitioner had neither reserved 10% of its Bede for "uatient$V§'vwithixa"?¥anily ;income of, lees than 'Re;500}nor were those to whom euoh indoor treatment Fwaev given; identifiable by reference to their "entertained and given such treatment. incomefll it was contended,by Mr 3hiVQOOTg that the reservation of the Bede was not neceeearv, eo long "=_":e_ patients who qualified for free treatment were It heobmitted that there was no material to ehow that even a single patient who' deeerved free indoor treatment had' been refused admission. at any rate so long ae free treatmeent wae provided to every one who ewae eligible for. the eame} argued the wee
- 41 -
learned Counsel, a reservation of Beds. was unnecessary, and a wastage . Wwhioh could prejudicially affect genuine patients visiting the Hospital for urgent medical treatment; "R The Notification mas already noticed_earlier 'ienvieages free treatment to. all Vindoor patients belonging to, families lwhoee. income is lees than Re.500/~p.m, ifihere is no limit on the number of such _batiem£e 'whifihj the ihoepital must treat in order to qu§;i%¥ foe §hu?%§mption. That is however only fine aspect;axThe"other requirement which is at eduellydiimoottant_ is that the Hospital must keep m" For the burpose of providing such treatment to that category_of patients at least 10% of the Hospital '.beds"neeerved, This" is evident from a careful 3' reading of the Notification. Such a reservation is '_l:by no means a pdrposelees requirement. Reservation _.of beds assumes importance keeping in view the fact rlthat the Hospital itself 'determines as to who should be admitted when and in which category. Given a choice the Hospital would, unless precluded from doing. so, prefer a patient who pays over one .924-;2 ..
who does not. There is therefore .a conflict between the interests of the hospital and its duty at all times which gets subdued if the; reservation is enforced. A reservation of"*lQ% of the Beds x would reduce the temptation which the Hosbitals may 'have for admitting payment«patientsa ;n55p%erarén¢e to the indigents seeking free-treatment"for once it is known that- beds reservedl for mfree matients cannot be used for a patient who says, such beds shall Ahave to be utllised for "Fee Patients" only. 'There is admittedlvlno,reserQation of Beds in the AV_the;Notification.
Petitifiner/W0$Hihallfihhich? means that an essential 'requirement_of"theflNotification is not satisfied. x"7; more importantly the Hospital has not been A« able to demonstrate that those to whom it claims to have" given 'free indoor treatment" really belonged to the class of patients referred to in para 2b of The Hospital has not maintained [AV 'ans record regarding the income of the patients ~admitted for free treatment. This is eoident trom r o7.Note 1 to para 3d of the proforma in which. the Hospital has stated thus :~ $9 "Note=1 Records' were not maintained due to nonwavailability of correct information regarding income of the patients, Hence total number of admission ehown will be Free including patients having income lesep*_'than RS.500/r" . i_'. >*~"
Mr Shivgoor, elearnedjmcuouneelh; ro§'; the petitioner Hoepital {died fio£4jn~£he°5eg%ee or his submissions dispute the wfact tenet ithere _wae no 'record indicating% "the iinoome lot the patient admitted for fTeeftreetment. There was not even a declaration itromiathe ipatient concerned regarding his income let elene g gertiticate to support the 'same, :Nc1satistactoey or transparent mechanism was disclosedfl '$;}j the iihospital for purpoees of lHWdetermining whether a patient being admitted for . ", treatment "weg{T;eally one belonging to the income group eligible for free treatment. while according u.to Mr shivgoor, it was the public Relations Officer ihiorflthe Hospital who determines on the basis ofc his V'.wysuojeotive satisfaction whether a patient deserves 'Free treatment'according to the inspectioni report; copy whereof was produced by Mr Ashok .Haranahalli, the decision whether a patient should be given free treatment' is taken by the consultant of 'the vhlsubmitted by the Assistant Director General (HA). 44 Hospital not necessarily on the basis of his income. Such being the case, thei Hospital wants this Court to believe 'that all 'those who were admitted as inpatients during the relevant period ie., 1994-9e belonged to the cat_fé'gel+j;y..:_o¢i:_oatients' with less than Rs.5OO/~income_everyVmonthl"ifori it is then alone that the Hospital can show that it has treated at least lbs oti the: Datiehtsdtof 'the 'eligible categorv. free. " Records For the relevant eligibility tot iiftheildfhpatients howsoever unsatistactorylgf The frecords reveal that a large number ef thosew who [were granted treatment are V ____ _working%_ae °dootors land Nurses in the petitioner hosoitall, There is no indication whatsoever in the ierecord as to why was a patient given Va free card for "Free Treatment". It is in that view difficult Kite accept. the contention urged on behalf of the Azhoshital that all the patients treated free' during "vithei*atorementioned tperiod should be deemed to be ~~:fie§e belonging to the lower income grouo. Mr i3Shivgoor, was .I must say fair enough to concede "that all those treated free did not belong to that category; According to him, the Hospital was for various reasons required to give free treatment to years were summoned "fora verifying} whether there really was. any-- process "of determination of the people holding high positions who expected to be - treated free and would even walk out without paying up the bill, Such aberrations argued Mr Shivgoor were a part of the eyetem in which the Hoenital was functioning and could not therefore be auoided. That may indeed be so. But then that ie"noajreé$on why all euch people who walk in and walk out of the, Hoepitale on the» strength Hofi the péeltione theyai .hold, the contacts they haee or the privileéeg they enjoy should be counted ae patiente treated free*in the ebecified income _group{ '.lIt4_would be a travereityl if ytreathentlgiuenato such influential and affluent claee of beoble were to be deecribed as charity fonly to ju§£ify_gfie grant of exemption from oaywent of duty to the_'Hoepital; what the Notification _hae. in Iyiew ie not a hospital who hampers thoee in high places but one who givee free treatment to those wfio find it difficult to eurvive Vlet alone afford the luxury of being treated in a .fl*pni§ete'hoebita1.' The refusal of the exemption l"*_applied"for by this hoepital and the withdrawal of lfi_thedfCDfiSce granted to it in the past cannot :*.theretore be found fault with.
gm A ' $6
-r 'e ic Co-- a e - n1 1 35 This Hospital \ has filed ;writ. Petition Noe.28019 and 28105/1996 for a mandamdedidireotine the Respondents to consider the aooiioetione For 'the grant of Exemption Certifioatee" in. regard "to"; imports made by it.
September, '_ 1996' ieeaued i'--_ l:'$'y ' ° Agzeieiant Commiseioner of rCustGneg'Mangaiore}nherebr a hond furniehed Vby the petitioner wee"=eodght to be enforced againet tit *hee} ei$od;been.aseailed. in w.P;No.7483/1993"~tn?s"wfi9e§i?ii§"has question dtheV:Qeliditfiiot"*order dated 12th of Septenher}JWii99?{}iirefieeting the petitioners' aoolioationek for vthe grant of CDECs in connection with the imports reierred to in the Annexure to the said order} Reimendamue directing the Respondente ;to_ consider' the applications of the petitioner VV afresh has $155 been prayed for.
' 3fThe primary question that arises. for u"ooneideration in all these petitions is whether the :A.,i petitioner hoepital was entitled to the' isauee of _ the exemption 'certificates applied for or secured by it keeping in view the requirements en :ordergfidetedV¢27thi ot=_:
called in".
prescribed 1/ ¢?
in the exemption notification. VA time bound Notice was issued to the petitioner~Hospital also and upon its Failure to provide the requisite information, the request for grant of the certificates fldeclinedi ,by the Committee constituted for the oureoee in terms of a decision taken on the zénd- cf" duly? 1997. That decision was llater mreQiemed.by_thek Committee-in the light of V'»thegdij9relc;>.ti-x2e" 7 by.", I the Delhi High Court_ in the Commfnteeys meeting held on 20th of August; @997. '=ére¢h linouts mede available to vthe ¢emmit£ée_ suhsequent to its earlier decision;"eleo did not in_ the opinion of the committee :meke:eny_imorodement in the case of the hosfiitefiji foe resort reoeihed by the Committee from the §g§£é~e§Qé:fim§n£7§f£er verification by its Officers pointed out the Following deficiencies =~ *h1)_ Nod instellation certificates regarding §the_equicment hed been furnished by the institution d"to7the»$tateWéovernment;-
l"t2l' Although 91 to 93% of its patient were useid to have been treated free yet upon a detailed lA:, verifickation it was found that the said treatment «Ce wae confined only to free consultation, everything else like investigation, purchase of medicines etc being.charged.
3) Each Tpetienti was' requiree'hte$,heyh; a Regi3tration~ fee of Re.1g43ithcuQh:«_certain, concessions are given to the_poor;petients "et 'the h time of their discharge:
4) No recorde_ were maintained er available tc shew that the inceme of {patients treated free whether in 'the ihpetient er egtnatient department \ was les$'then Re.5O¢7~pimift_W?
_ .... "%fifl the prcferma filied up by Institution" the ehove--Vbeeitimn*qis_--eubetantially reiterated.while deecribing_the facilities/Servicee offerred free to cOPD petiente, hthe'Hospital_has stated thus;~ "Coet of the drugs and materiale are r'i*gcher9éd. One time new Regietration chargee V'fef'Re§12/wcollected towards the ccet of the . file and other stationeriee." .
Similarly while ' "deecribing the facilities/services provided free etc indoor patients, the Hospital hae stated an under :~ \\ '$9 10% of the Beds available are in the free category where everything is free including diet, drugs, operations,o investigations etc for economically weaker sections. Concessions are granted in the bills at the time of discharge cost of dialysis, prosthetics, oobalta therapy. dentures etc. Only j"service, . charges are free. Actual material oostyvi' has to be met by the beneficiary;?j,"~ * Ina so far as the free treatment to patients with a family income less than Rs}3Qo/;"is:ooncerned, the Hospital admitst that no regards are maintained as to ,the income afi the ipefiiénté; granted free treatment; i.1t ghas tall the same claimed that 8W5 patients admitted in the year i994, 7,867 patients admitted ~iin 'the? year $995 and 8024. patients admitted during the year 1996, should be treated to be admissions granted to patients having a family income of' less Vthan vRs§500/"per month. In other srsords every patient to whom the Hospital has given ", frees treatment during the period aforewmentioned, '¢_:s§§e§o§§ihg to the hospital a patient with a la family income of Vless than Rs 500/~per month. In the absence of any record or satisfactory mechanism- A l*for determining the eligibility ofi the patient for "free treatment in the prescribed category; the Respondents were justified in. holding that the 59 Hospital had not established its entitlement to the grant of exemption certificates. es in the case of manipal Hospital, Bangalore, so also in the present case, the absence of any transparent and satisfactory method for determining the entitiement 'of those seeking free treatment, makes it"dif¥icult to count all those treated;e"FreeflViert .giVenz concessions at the time efA3their"dischange, ae_. patients belonging t9'the_fiO§rer sections got ithe Society having regard <in "eerticelat te the fact that a large ndmher Qf ed?" Pfitients are admittedly treated free ro%--$¢neidega£i§§§> other than their financial.statds¢~ : The _%igqf§s° idicated by the Hospital it f3§t apbear.toiineiude patients to whom concessions ihaeei teen isiven at the time of diecnef§§,t¥*ae*cté neat .18 the nature of ++ai oencessions has not heen indicated. In any event, a concession in the charges levied for treatment is fnot the" same thing as free treatment as envisaged abyVthe:exemetion Notification. Super added to this 3" is the feet that nfim%xtz¢kx'no Free treatment is Viprovided in certain disciplines like dialysis, prosthetics, cobalt_therapy, dentures ete., which imelies that the- Hospitals' free treatment / 5% programme is eelective and not available to a poor patient regardless of the speciality in which each treatment is needed.
In the outwpatient department,_ the .fleepital' is admittedly charging Registration tee'and ooet_ofr idrugs and materials. It ieWonly'eone@ltatien which is given free too the petiente.h*fhetziehepieenth'J from the Hoepital'e oenmyereion V¢xgfg§tadV£egr;igr and corroborated _by the report"otibrl§.B.8hamrao, Joint Director 5f.¢oué}g@e5; of Kernetata, a copy of Vwhoee communioation7Ideteojéfird of July, 1997, addreeeed to seoretatyitelggovernment, Health and Family~iHeffare bepartmentl flee placed on record by Mr harenahelli' xeeeuming therefore that the non fbrniehihg_ bf ,inetallation oertifioatee by the inetitution*fe_not of much consequence in so far ae the entitlement of the inetitution wee concerned, * yet; the failure of the institution to eatisfy the 'v, requirement of free treatment to indoor and outdoor Ht petiente was eufficient to_deny the benefit of the A,_exemption to 'it, The Hospital hae also admitted that it hae not published in any news paper 'or by iiaany other mode, xxE.information for the benefit of ithe general public ae to the availability 'of free 7 treatment for OPD and IPD patients. what is stated ufree treatment;
is?
is that statistical information is circulated among the staff members and_the public in the information §brochur which' is in the light ef the decision of the Supreme Court in Mediwelle' case V"not a» euffieient compliance 'with the *eentinuing obligation caet upon such hoepitale_5iniubfouiding Kgetutbemmedigeligglleeeiumenee;gteif writ Petit'izen.A :--No?.§»7":%f3'1V9f~1:}§'*:§3 'filed by this College challenges the ueiiditQe§fL¢fi order deted 13th of uetQber.i99?eieeued by the Director General1 of Health s§rQ1§ee§'Queieb3 the petitioner was held dieentitied£§9--theriseuewot the CDECS in reepect of the eauibMente'mentioned in the Annexure to' the order, » 'In "writ*i?etitioni No.29115/1998 , the pet;tiener hes bailed in queetion the validity to?
- en; order Kdeted 20th of August 1998, whereby CDECe i*5eeued in its favour and detailed int the Annexure ',acebw§an§ing the order have been withdrawn on the irgrcund"that the petitioner was not eligible For the uLeame} 53 There is no material difference either in the background in which the writ Petitions have been filed or the ground on which the CDECs have been refused by the reeecndente. The request fer ethe grant of exemption certificatee wae coneidered and turned down by the CDECe Committee in 'its;;¢éét:fie°» held on 22nd of July 1997. The matter wee ewaminbdu further -in the Committees meeting held_enw2ietTef August 1997, in which the fiommittee reiterated: its ; earlier view. The rejection order ieeued on 13th of October 1997 inter a1ia'jpeinte eut "that the College was not previdingitree treatment to 40% of the OPE) patient__e. /'fhe states that the informetienipreuided deee net state whether the free treatment 'g§§§fi;"by ithe lHoepital was to patiente Wwithi a de§m11§w income of leee than Re.5dQ/eer'mcnthf'_l rIn the,broferma furniehed by the College on V'_2nd 2ef_"epril 1993, the College has described the wxfacilitieefieervicee provided to free 090 patients 'in the tellowing worde=~ "All patients are given consultation, examination and advice Free of cost. In caee various investigations like laboratory, xwraye etc. are ,required, nominal charges are levied. Medicines r9 L 94 have to be ' purchased, while the prescription by Doctor would be free of cost. In case of poor batiente who are unable to pay, even investigation charges are made free hand they are helped with drugs free of cost, as far as poeeible.".~ It would appear from the above that the Colleee "
is not providing free treatment within the m§énifi§7§¢lf the exemption notification. Nhat~ is ion bite "own' ehowino free is consultation, examination and advioefif Investigations and medicines are ohargedaor have toh 'be purchased by 'the patiente,R'concevnedf b: 'The expression 'in case of Doorsbatienteg who are unable to Qax even investigation ohargee are;fiade vfree and age helped with 'drugs mft§ed.§f! ¢a§£° as far ae poeeible' ie_ euchl too. u§gqé;;t¢ 'be capable of understood as iafuniioffiiefilicy or practice followed by the College for broviding tteefldruge to the poor patienteq3 °fhe jedofiiyd at drugs is qualified by the words 'as far_dae 'ooeeible'. Even in regard to _inveetieation chatoee, it ie not stated that the same ;1are. freed for. thoee, who belong to the poorer seotione, kwhat is suggested is that 'they are made MVfree'{i whiche apparently means that euch charges are t, 'made free only on case to case basis not necessarily r:_for"the benefit of every patient. ee to what are the dfi§rfie""tixed efor this kind of concession is not ':dieoloeed nor ie any material produced to ehow that ~_the eo~called free treatment is made available to 5' 55 atleaet 40% of the total Out Door Patiente.. $uffioe it to say that the etatement made by the Hospital does not even make a claim to the effect that /ail Héauflfiax ie providing free treetment to 40% out Door Patients. The respondents were therefore justified in holding that the Institution did not eetiefe the 3 requirements of the exemption not§fioetion;af~b"
Even in regard 'Indoor Patiente', the fboeitiont is no better than what is"fii3eueeed in the geriier part of this Judgment while de%linQ_With the eaeee of the other\ two Hoepiteie.AtLijherefRie_ not even a euggeetion anywhere in hghet write eetition or the information furnfiehed by the Cotiege on the proforma that the Coiieée hes beefi gdoiighing any information for the.bene%it 5% the generei Wdblic regarding the aveilebilitr r¢+rfffee* treatment in ite Indoor and Outdoor Petient Deoertmente as required in termed of the decision of the Supreme Court in Mediwell'e oaee. hIn the totality of these ciroumetancee, therefore, I deee no_error in the View taken by the respondents to warrant interference.
.hH&;m§LHoewital and Reeearoh Centre, Bangelore 56 This Hospital hae in HP No.3010/98 aeeailed the. validity of order dated 12th of December 1997 ieeued- bye the Directorate General of Health Servieee refusing to ieeue the installation certificateex and reveking the CDECS already granted in its faheur en the ground that the Hospital does not eatiefej thee requirements of the exemetion notiticationif A demandv notice issued by the eeeietantAltémmleeienerflxef Cuetome. asking the rHoepital to aeay :aul"eumg"a§F, Rel86,15,252.44 towards cueteme duty--pagahle on thed medical equipment imported :by Hlt has, afeo been challenged beeidee Vafif order "dated 22nd of January 1998 ieeued bx_ the Wfiuperlntendent clef Customs, Bangalore detainlng the eah1pfié5t.;fi question for non payment of:" above. In up No.14643/19§8 thie.Heeplta1*hae challenged the order made §py_ the Jéeeietant_'dommieeioner of 'Customs, Chennai eenrirnine a degtaa 'of Re.14,53,564/b under $ec.28Q2) are the ttuetome Act, 1962 consequent upon J"atheeeet@tiener'e failure to produce an inetallation T eertififiateg and the revocation of the CDECe granted in ite favour,"
The petitioner claime to be what ie described Vlhy,ltfae a 'eubetantlally charitable Inetitution'l ":Anert from its own hospital it is utilieing the .5?
clinicel facilitee available in the general hospital at Jayanagar with\ a total' bed capacity of 340 patients. The' petitioner'e -case is that it» ie providing' 100% free service to Out patients visiting the Hospital besides providing free tteatmentwi;§a;1§y to 14% of the in patients with an income of less than ** R8.500/~ per month; The income of the Hoeoifialtigc "
alleged to be much lees than its expenditufeg'thefebyj Vmaking it a Charitable ,Institution. _»V;fnédi§ai equipment was imported b& {this Inetitutionw and exemption from payment of cuétcme "duty iclaimed in terms of certificatee 'ieeued }under 'the exemption notification. In response to the time 5oound notice issued to 4thie;"ihstitutionlt it "claimed in the proforma prouided;to it that it flhed treated during Vthe years 1994;19§E"and 199$ aii the patiente in the OPD Free of eny cheroe, ymhet is important is that the eowcalled itfeez treatment to OPD patiente is vlimited only to coneultatione, which impliee that all if othet"procedLree including medicines required for treetment of "euch patients is charged. In so Far as Indoor'patiente are concerned, the Hospital claims to 'have reeeryed'8O bede.repreeenting 10% of the total 'i* bed «etrength for patients belongino to Re.5OQ/W per i'month--income group. The Hoepital has admitted ethat l".it_ has not published eny information in the local 58 newepaoere regarding the availability of free treatment to OPD and IPD patients. For the yeare 1994,95, the Hospital claims to have admitted 1,200' patients in Re.500/~ per month income group, Wieéoo patients for the year 1995 and 1,600 patiente for the"
year 1996. On the basis of the information mficvidedfl by the Inetituticn and the Family"welfare _beeartmentI of the -Government of Karnataka,f the Wqueetionaorf granting Installation certification/or withdtaw§}_ ot the CDEC8 already iiesued 'te_ the inetitioner was considered by the Committee in ite_jmeetinev field on 16th of October 1997. $n'?heEJC9%mit#9? Nae of the opinion that the inetitdtion did not dbalify for the grant-of ekemhtion as the dfib eeééé mere treated free of coneultationtachareeedenlefil it is~aleo noted that in the rzvétlelv bylwlthe Institution besides a registration feel ot~xfiel;O)~ per patient;_ small procedures llike ECG, vyltra 'sound scanning, xwraye _were also'charded from the patients visiting the jam u?_0dtwRatient_ Department of the hoepital, The rate list éeeded b§wthe Hospital did not make any mention of ten? free ftreatment to any Datient either in the lV«_ Ont Patient or In Patient Department. In the latter blbemartment, the wards were classified 'into three .rcateeorieeg vizg, General, Semi Special and Special d'ane an admieeion fee of Re.25/was being charged even .'.
A:
V Re.15/per day per patient.
violativei of =thei principles of natural eubetence in gthet submission.
E9.
for the General .Nerd beeidesi a ward charge of Injections Vwere also chargeable both from the in and outpatiente even when b disposable needles and eyringee are brought byf the patient himself.
Committee dieentitled the petitioner from 3cleimin§"o' any exemption. The Committee accordingly recommended "
the revocation of the CDECe earlier i$eued't5,thel petitioner on 9th of March i992 andeisth ee¥:hOctober'i 1993. A formal order to that erfect folioued on 12th of December 1997; which ie under challenge in these proceedinge._ Mr. veerabhedreofia} Counsel appearing for.the petitioner, argued that the petitioner did not have an adequate notice or cpbortunitr to produce material in support of ite claim that it was eligible for the Qrant of [email protected] 'was in that sense- *r according to the leerned Counsel" I do not eee any In response to the Petiticner*efA7amplication for the grant r of .;netalletiony certificate, it was required by the u'Directorete of Health Services' letter dated 28thi of "yépri1.§1997 to furnish the requisite information '"aVinciuding a certificate from the Director of Health J These facte in the opinion oivthe;
juetice,'
66) Services of the State Government to the effect that the Institution/Hospital provided free medical, surgical and diagnostic treatment to all patients belonging to families with ' income less 'than Rs.500/per' month and to '40% of Outdooropatientsifi This was followed by a communication datedqz30th" of :' June 1997 from the Directorate once again"fiequiyingWV" the petitioner to furnish the requisite ainformationta in compliance with the direction issued by the Delhi High Court. By an order dated i7th offiju1§€1§?7 'the Directorate rejected :the request of the petitioner for installation certificates }partl§v_because the petitioner had afailed" to rprovideflithe requisite information. in the meantime, the "fitate Government appears to ihaee, sent u§.its=recommendations on the basis of the report or a Committee comprising Dr. V G Vijayalakehmi iandlootakshmanachar. The report and the information furnished by the petitioner in the Droforma"_besides "the" rate list forwarded .bY the 7 Committee thus prouided the basis for a second look at "theoupetitioner's claim in the Committees meetingi held on 16thfoF'October 1997. The entire exercise was not Koniy intended to see whether installation MC certificates applied for by the petitioner should be 4"issued¢t but also whether the ' petitioner was °«_discharging its continuing obligation in terms of_the' 63 exemption notification. ' The ' ieeue of the installation certificate was itself dependent upon the continued discharge of that obligation. Failure on the part of the petitioner to establish that it was discharging its obligation was thereforefbound to» result in not only the refueal "of the inetaliationf certificates applied. for by it; but also reepcation, d of the CDECs already granted. That ie p%e¢1eei;fih5£g happened in the instant vcaae.
information made available to it, the comnittee came to the conclusion that the ~petitioner twee not eligible for the 'grant i*§riljfi5§ Linetallation certificates or_eXemption'troh>flpavmentu of duty by reason of ite failure tpfleatiefr the requirements of the exemption notifioation,fi"The}xeaid decision was taken on the basis of the information provided by the petitioner .ae .aleodVtheI,report of the Committee' appointed by the State ,Government, the correctness . whereof has not"been disputed by the petitioners. It "LVie«ghereiore"difficult to see how having been granted an xopportunityf~to furnish the requisite information and phavino" availed of that opportunity, the. i=__ petitioner can possibly turn round and say that the idecieion wae violative of principlee of natural .tjuetice.
2>_'Baeedil;on_H}the on f L ?
'Mr, Veerabhadrappa next argued that the petitioner was actually providing a free medical treatment to all the Outdoor patients and that the contrary View taken by the -Committee fwasyi not:
Justified,- I see no merit in that submission'either;uu' The information furnished by the metitionefi to theg letate Government and verified byfl i£'"ciéaf1§__§£at§aQ that the sowcalled free treatment to OPD'oatients§wasil confined only to free consultationi";d'lhefe is no' explanation forthcomine from the P§£iti°né% as to why it did .not claim thefit f}e\. treatment included .medioine, investigations detc§J®_ in; the information furnished by it} if.it was actually iproviding those faciliti?§Vtp fth§ Roatientsgi the proforma filled up by thefi pé£iti¢q§}i snecifioally limits the free treatment to *freeqfconeultation' .only. 'This was found to be correct euen by the Committee appointed «yby _theli$tate Government and was corroborated by the V_ fgta list published by the Institution, according to :whi¢nl'eQagilm:hor. procedures, which usually form a part of the treatment for OPD patients are charged"
'Ihe Committee was in that view perfectly justified in {holding that the Institution was not satisfying one
-@;a3 - A of the basic requirements for the grant of exemption, in that it was not providing free treatment to 40% of its out patients.
If' the rate list published by the Inet'itut'ie"nu is seen and believed even the Indoor patients ara=' charged for the treatment _they ;§é£'€"
._r.a.
Institution. ' Assuming however "tthatp .an7lffrae treatment was given to the patients belonging to Htheifi prescribed income group, yet there is.nothing to show as to how the entitlement' of ,;he 'patients ie determinedlfor the same; -Mr4}lJeerabhadrappa in the course of his submissions produeed certain registers in order to ehow "that. patients "we+e granted free treatment oh the basis or their income. a perusal of the said register feveaie that almost every patients, who is ¢said' ted 5aqe--§aen given free treatment has declared his"monthly income to be Rs.50O/W. what is V the tasis for the said declaration is not available «in the +ec¢+d, How did the Hospital accept the 'statement ot the patient about his income is also not clear} Ncf procedure or mechanism is admittedly ' prescribed by the Hospital in this regard, It '7appegrs "from the entries made in the Register as h',though all such people to whom the Hospital has i" utreated free have invariably and as though n°lcthe h 64 mechanically declared the income at Rs.5OO/W. The Registers maintained and the entries made in-the same are totally unsatisfactory and unreliable to say the 'least. In the circumstances, the view taken bQ*7t5e.' respondents holding the petitioner to be~disentitled"e to the grant of an exemption does not, in my opinion,_ ' suffer from any error to warrant interferenceul Mr. gveerabhadrappa next argued that the demand for payment of' duty on the :§po+t_or eduipment was beyond the Period Prescribed_funderLA$ec.28 ot the Customs act, therefore "had -g5_ law; [He urged that Sec.28 empowered the Custgms euthorgties to issue a ' to .«"". »,¢ ..; . 2 =x » .
notice /mmx the *personV resmonslbie for such payment within a period pt one year tfiom the relevant date. The extended .pei:§a;"¢;§acr1bed for recovery of the duty in terms of proQisoFto subwsection (1) to $ec28 was, accordine»pc"the learned Counsel inapplicable as *f it Was not thfi Case at the respondents that there was any*:'collusion"- or any wilful, misstatement or suopression of Facts by the petitioner~importer._ Mr. Haranahalli on the other hand contendedi that the impugned orders of seizure of the equipment were referable to $ection 11i(o) of the Customs act, which reads thus:w I "confiscation of improperly imported A w_; goods, etc." The following goods brought;jW from _a place outside India shall beg "
liable to confiscationv i"""~ * M W '(a) to (n)w xxx xxx xxx (Q) any goods exempted; subject to*any<-, .
condition. from duty orFanyb prohibitionyl W in respect of the import thereof--under:
this Act or any other law.for*,the jtimel being in force, in respect of which the con ition is not observed unless the non observance of' the 'condition '; was sanctioned by the,nroper.offioer}fiy' A plainrreadinol'o.15A"vt.he'VabovigeA would show that goods, owhich*7are{eexembted-- from payment -of duty subject to any condition ate liable to be confiscated 'in case the conditions subject to which the same are o_exemp£§d Tfrom "duty _are not satisfied unless they L¢non«obse}Qance_ thereof sanctioned by 'the . proper o¥fiber;of,TheH;medical equipment in the instant case' was fimported' subject to the condition that the h*.xhpetitionets continuously discharge the obligation of» .broQiding a medical, surgical and diagnostic _ treatment to atleest 40% of its Outdoor Patients and O . "to Indoor Patients with a family income of less than All 66 Rs@500/per month. ' Failure, to >di$charge that. obligation was liable £0 exposé the equipment to Vconfiscation beéides entitliné the. resfiondent$,to recover the amount »ofV dutk payable on 'then ééne. .Proc§edings for recovefy of tnq exémpied §ustqn#:fiQtf"
or the confiscatipn of the equipment in £h3n§B5véfi cifcumstances does not fall féul sf Sec é§;" n' In, the result, these, Petipipns fai1.nnd:aré ° hereby dismissed with costs aé3§s$ed ét_RsL2,690/~ in each Petition.
Abid/(r 'Bj$*