Gauhati High Court
M/S. Medicure Centre vs The State Of Assam And 8 Ors on 18 February, 2026
Page No.# 1/11
GAHC010209552018
undefined
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6508/2018
M/S. MEDICURE CENTRE
A PROPRIETORSHIP CONCERN OF MRS. SARASWATI MALPANI HAVING
ITS PRINCIPAL PLACE OF BUSINESS AND NURSING HOME AT
RAJAMAIDAN ROAD, JORHAT IN THE DIST. OF JORHAT, ASSAM, AND IS
REPRESENTED BY THE AUTHORIZED,
REPRESENTATIVE AND THE SON OF IT SPROPRIETOR DR. ABHIK
MALPANI, SON OF DR. SHYAM SUNDAR MALPANI, R/O MARWARI PATTY,
JORHAT IN THE DIST. OF JORHAT, ASSAM, PIN - 785001.
VERSUS
THE STATE OF ASSAM AND 8 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
REVENUE AND DISASTER MANAGEMENT DEPARTMENT.
2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
REVENUE AND DISASTER MANAGEMENT DEPARTMENT.
3:DISTRICT DISASTER MANAGEMNT AUTHORITY
JORHAT
REP. BY ITS CHAIRPERSON
DISTRICT DISASTER MANAGEMENT AUTHORITY
JORHAT
OFFICE OF THE DEPUTY COMMISSIONER
JORHAT.
4:THE DEPUTY COMMISSIONER JORHAT/CHAIRPERSON
DISTRICT DIASASTER MANAGEMENT AUTHORITY
JORHAT
Page No.# 2/11
OFFICE OF THE DEPUTY COMMISSIONER
JORHAT.
5:THE JOINT DIRECTOR
HEALTH SERVICES JORHAT
OFFICE OF THE JOINT DIRECTOR HEALTH SERVICE
JORHAT.
6:THE CHAIRMAN
JORHAT MUNICIPAL BOARD
JORHAT.
7:THE DEPUTY DIRECTOR
TOWN AND COUNTRY PLANNING JORHAT.
8:THE CIRCLE OFFICER
JORHAT EAST REVENUE CIRCLE
JORHAT.
9:THE SENIOR STATION OFFICER
FIRE BRIGADE SERVICE
JORHAT
Advocate for the Petitioner : MR G N SAHEWALLA, MD. ASLAM,MR D SENAPATI,MR. M
SAHEWALLA
Advocate for the Respondent : GA, ASSAM, B GOGOI,SC.HEALTH,MR H K SARMA,SC, J M
B,SC, REVENUE BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR JUDGMENT & ORDER (CAV) Date : 18-02-2026 Heard Mr. G.N. Sahewalla, learned Sr. counsel assisted by Ms. K. Bhattacharya, learned Page No.# 3/11 counsel for the petitioner. Also heard Mr. A. Bhattacharya, learned standing counsel, Revenue Department, Assam appearing for the respondent Nos. 1 to 4, Ms. D. Bora, learned standing counsel, Health & Family Welfare Department, Assam appearing for the respondent No. 5, Mr. H. Sarma, learned counsel representing respondent Nos. 6 & 7 and Mr. G. Bokolial, learned Govt. Advocate, Assam for respondent Nos. 8 & 9.
2. The petitioner in the present proceeding has presented a challenge to an order dated 14-09-2018, issued by the District Commissioner, Jorhat directing for closure of a Nursing Home operated by the petitioner w.e.f. 17-09-2018, by invoking the provisions of Disaster Management Act, 2005 (in short "the Act of 2005").
3. The petitioner is a proprietorship firm and is operating a medical nursing home unit since 1986 in the name and style "M/s Medicure Centre". It is projected that when the said Nursing Home of the petitioner was so set up, there was no regulations in place governing such health establishments. Thereafter, on the enactment of the Assam Health Establishment Act in the year 1993, it is projected that the petitioner had complied with the norms laid down, therein, for operating its Nursing Home. It is further projected that all requisite licenses/ permissions were obtained by the petitioner No. 1 for the purpose of operating the said Nursing Home.
The Director, Pollution Control Board vide order dated 15-06-1998, had directed for closure of the said nursing home on the ground that the Effluent Plant as constructed by the petitioner was not functioning satisfactorily and also on the ground of insufficient parking space. The petitioner being aggrieved had approached this Court by way of instituting a writ petition being C.R. No. 4070/1998. A Coordinate Bench of this Court vide order dated 19-08- Page No.# 4/11 1998 suspended the closure notice dated 15-06-1998, subject to the condition that the petitioner shall ensure that the shortcomings as noticed in the said closure notice dated 15- 06-1998 were removed within a period of 04 (four) months. Thereafter, this Court on being apprised that the petitioner had met the shortcomings as noticed in the closure notice dated 15-06-1998, proceeded to dispose of the said writ petition vide order dated 27-05-2004 by observing that the shortcomings involved were rectified by the petitioner and that the discharge of effluents from the petitioner's unit was found to be satisfactory. The orders impugned in the said writ petition also came to be interfered with, however, liberty was granted to the Pollution Control Board to inspect the premises of the petitioners' unit to satisfy itself with regard to the measures that have been claimed to be taken by the petitioner and to take appropriate steps accordingly. Subsequent to the disposal of the said writ petition vide order dated 27-05-2004, the petitioner was operating its unit without any interference from any authority. Subsequently, vide a show-cause notice dated 28-05-2018, the District Commissioner, Jorhat required the petitioner to take corrective measures with regard to the anomalies detected by inspection team constituted in the matter and thereafter, to submit action taken report within 05 (five) days on receipt of the notice. It is projected that the inspection report referred to in the show-cause was, however, not furnished to the petitioner.
The petitioner, thereafter, vide communication dated 02-06-2018 submitted the action taken report. Upon submission of the said report, no further action was taken in the matter. Thereafter, vide order dated 04-06-2018, the District Commissioner, Jorhat ordered for an enquiry in terms of the provisions of Clinical Establishment Act, 2010, with regard to functioning of the Nursing Home as set up by the petitioner. An inspection, accordingly, was carried out, however, the report, thereof, was also not furnished to the petitioner. Basing on Page No.# 5/11 the said report, the District Commissioner, Jorhat required the petitioner to submit explanations with regard to the anomalies noticed in the said inspection report, with regard to functioning of the Nursing Home of the petitioner. The petitioner responded to the said communication vide communication dated 02-06-2018 and furnished detailed explanations with regard to the anomalies highlighted in the show-cause notice dated 28-05-2018.
Thereafter, personnel from the District Administration had carried out measurements in the premises of the said Nursing Home to determine its floor area. The officials of the Fire Emergency, Jorhat without any prior notice also visited the Nursing Home premises of the petitioner and caused an inspection, although the inbuilt firefighting/ fire prevention & fire safety measures certificates was renewed by the competent authority on 20-07-2018. It is in the said background that the District Commissioner, Jorhat, had issued the impugned closure notice dated 14-09-2018 to the petitioner. The said notice was issued by the District Commissioner, Jorhat in his capacity as the Chairman, District Disaster Management Authority, Jorhat.
Being aggrieved, the petitioner has instituted the present writ petition.
4. Upon institution of the present writ petition, this Court vide order dated 18-09-2018, on noticing the factual matrix involved, noted that the order was passed by the District Commissioner, Jorhat taking the aid and assistance of the Disaster Management Act, 2005 (in short "the Act of 2005"). It was further noticed that the impugned order did not disclose of any emergency arising requiring the District Commissioner to pass the impugned order, accordingly, this Court proceeded to stay the effect and operation of the order dated 14-09- 2018. This Court further required the Secretary, District Legal Services Authority (DLSA), to Page No.# 6/11 cause an inspection of the premises of the petitioner and submit a report to the Court on the issues raised by the District Commissioner in the order dated 14-09-2018. The Secretary, DLSA, thereafter, inspected the premises of the petitioner and submitted a report covering the issues raised in the impugned order dated 14-09-2018. The said report was accordingly, taken on record.
5. Mr. G.N. Sahewalla, learned Sr. counsel for the petitioner by reiterating the facts noticed, hereinabove, and the developments taking place after filing of the present writ petition, by referring to the order dated 14-09-2018, has submitted that the same was so passed by the District Commissioner in his capacity as the President, District Disaster Management Authority, Jorhat. He further submits that the provisions of the Disaster Management Act of 2005 was invoked for closure of the Nursing Home of the petitioner.
6. Mr. Sahewalla by referring to the provisions of the Disaster Management Act, 2005, more particularly, Section 25, thereof, has submitted that the constitution of the District Disaster Management Authority has been set out, therein, and the District Magistrate or Deputy Commissioner, as the case may be, has been designated as the Chairman of the said authority. By referring to the provisions of Section 26 of the Act of 2005, Mr. Sahewalla submits that the Chairperson of the District Authority has been empowered, in addition to presiding over the meetings of the District Authority to exercise and discharge such powers and functions of the District Authority, as the District Authority may delegate to him. It is further submitted that Sub-Section (2) of Section 26 of the Act of 2005 also empowers, in case of an emergency, to exercise all or any of the powers of the District Authority, however, he submits that the exercise of such powers shall be subject to ex post facto ratification of the District Authority.
Page No.# 7/11
7. Mr. Sahewalla submits that the order dated 14-09-2018 has not been demonstrated to have been issued basing on any delegation or power upon the District Commissioner by the jurisdictional District Disaster Management Authority. He further submits that the respondents have not brought on record, in the present proceeding, any material highlighting that the impugned order dated 14-09-2018 was subsequently ratified by the District Disaster Management Authority, Jorhat. Accordingly, Mr. Sahewalla submits that on the said issue itself, the order dated 14-09-2018 would be required to be interfered with. He submits that the nursing home premises of the petitioner is being operated strictly in accordance with the provisions of the law governing the operation of such Nursing Home and with all necessary licenses and permissions. He submits that the licenses and permissions requisite for operation of the said Nursing Home are being renewed from time to time and the same are valid as on date.
8. In the above premises, Mr. Sahewalla submits that the impugned order dated 14-09- 2018 cannot sustain judicial scrutiny and would require interference with by this Court.
9. Mr. A. Bhattacharya, learned counsel appearing for the respondent Nos. 1 & 2, on instruction, submits that the Nursing Home of the petitioner has been found to be operating with the requisite license and permissions from the competent authority. The learned counsel for the other respondents have also submitted that this Court would proceed to consider the issues arising in the writ petition in the light of the provisions of the said Act of 2005.
10. I have heard the submissions of learned counsel for the parties and have also perused the materials available on record.
11. The rival contentions of the learned counsel for the parties have brought to the Page No.# 8/11 forefront an issue as to whether the order dated 14-09-2018, was an order issued invoking the provisions of the Act of 2005, if so, whether the provisions of the said Act has been duly complied with.
12. This Court has meticulously perused the order dated 14-09-2018. A perusal of the said order revels that, therein, certain violations with regard to the operation of the said Nursing Home set up by the petitioner was highlighted, basing on the reports, submitted after the inspections carried out by the teams constituted for the purpose. The District Commissioner basing on the said report had arrived at a conclusion that the operation of the said Nursing Home had created inconvenience to the persons living in the neighborhood. It was further concluded that there is a possibility of major accident occasioning on account of functioning of the Nursing Home and to avoid any untoward accident, the nursing home was mandated to be closed down. Having drawn the said conclusions the Deputy Commissioner & President, District Disaster Management Authority, Jorhat, proceeded by invoking the provisions of Section 30(2)(xxiii), Section 34(c) read with the provisions of Section 30(iii)(xx) and Section 34(b)(m) to direct the Joint Director, Health Services, Jorhat and Chairman, Jorhat Municipal Board to close down the said Nursing Home w.e.f. 17-09-2018. It was further stipulated that the Joint Director, Health Services, Jorhat before implementing the order would ensure transfer of patients undergoing treatment in the said Nursing Home to other hospitals.
13. The order dated 14-09-2018 has admittedly been issued invoking the provisions of the Act of 2005. The Disaster Management Act, 2005, under the provision of Section 30 stipulates the powers and functions of the District Authority. A perusal of the provisions of Section 30 would reveal that it is the District Authority which is vested with the powers to ensure that the area in the district, vulnerable to disasters, are identified and measures for the prevention Page No.# 9/11 of disasters and the mitigation of its effects are undertaken by the departments of the Governments at the district level as well as by the local authorities. Section 2(f) of the Act of 2005 defines "District Authority" to mean the "District Disaster Management Authority"
constituted under Sub-Section (1) of Section 25 and Sub-Section (2) of Section 25 stipulates that the Collector or District Magistrate or District Commissioner of the concerned district would act as the ex officio Chairperson of the said District Authority. Sub-Section (1) of Section 26 of the Act of 2005 mandates that the Chairperson of the District Authority shall, in addition to presiding over the meetings of the District Authority, exercise and discharge such powers and functions of the District Authority, as the District Authority may delegate to him. Sub-Section (2) of Section 26 of the Act of 2005 further empowers the Chairperson of the District Authority, in the case of an emergency, to exercise all or any of the powers of the District Authority, however, with the caveat that the exercise of such powers shall be subject to ex post facto ratification by the District Authority.
14. A perusal of the order dated 14-09-2018 would reveal that the same was so passed by the Deputy Commissioner in his capacity as the President of the District Disaster Management Authority, Jorhat. As noticed, hereinabove, the said order has also not been demonstrated by the Deputy Commissioner to have been so done in discharge of such powers and function of the District Authority, as the District Authority may have delegated to him. Further the materials brought on record does not disclose that an emergency had arisen in the matter requiring the Deputy Commissioner to exercise powers under Sub-Section (2) of Section 26 of the Act of 2005. Further the materials brought on record also does not reflect that the said order dated 14-09-2018 was subsequently ratified by the District Disaster Management Authority, Jorhat. In absence of an emergency existing, being permissible to be culled out Page No.# 10/11 from the materials available on record, necessitating passing of the order dated 14-09-2018, this Court is of the considered view that the pre-requisites for exercise of powers by the President/ Chairperson of the District Disaster Management Authority, Jorhat under the provisions of Sub-Section (2) of Section 26 of the Act of 2005 is not borne out in the matter. Accordingly, the existence of an emergency being sine qua non for the purpose of exercise of the powers by the Chairperson of the District Authority in terms of Sub-Section (2) of Section 26 of the Act of 2005, the same being clearly absent in the present case, this Court is of the considered view that the order dated 14-09-2028 was so passed by the District Commissioner, Jorhat acting as the Chairperson/ President of the District Disaster Management Authority, Jorhat, on his own volition. Accordingly, the said order is held to be so passed without jurisdiction. The order dated 14-09-2018 having been concluded by this Court to have been so issued without jurisdiction, the same would mandate interference by this Court.
15. Another factor which would require consideration by this Court is that the steps taken in the matter by the District Administration leading to the closure of the Nursing Home operated by the petitioner is projected to be the various inspection reports submitted by Committees constituted in the matter, however, it is seen that such reports were never furnished to the petitioner before passing of the said order dated 14-09-2018. It is seen that the petitioner was prejudiced from effectively contesting the show-causes issued to him in the matter in absence of the relevant documents basing on which such show-cause notices were issued to the petitioner. On the face of the records a violation of the provisions of the principles of natural justice is clearly apparent.
16. For the reasons, as cited hereinabove, this Court proceeds to set aside the order dated 14-09-2018. Having interfered with the order dated 14-09-2018, this Court directs the Page No.# 11/11 respondent authorities to permit the petitioner's Nursing Home to be operated. However, liberty is provided to the respondent authorities including the District Disaster Management Authority, Jorhat, to monitor the operation of the Nursing Home of the petitioner and in the event, it is found that the petitioner has violated any of the provisions of law mandated for the operation of the said Nursing Home, it would be open to the respondent authorities to take action. However, such action, in the event it is so taken, should be taken strictly in accordance with law.
17. With the above observations and directions, the present writ petition stands disposed of.
JUDGE Comparing Assistant Gobinda Digitally signed by Gobinda Prasad Sarma DN: c=IN, o=Personal, postalCode=781026, l=Kamrup Metro, st=Assam, street=HOUSE NO 396 BIRKUCHI, Birkuchi No.2, Chandrapur Prasad Assam India 781026 OPPOSITE RAGHUNATH CHOUDHURY HINDI SCHOOL, title=2165, 2.5.4.20=6928da6102aa078c3f0a167d2edfd91f b1b69cf5496e925e109d715bae326785, serialNumber=69de98d4f8795174293359cc3e Sarma 5ab3a2480fc7e847f928726a048502c9ebcf15, [email protected], cn=Gobinda Prasad Sarma Date: 2026.03.02 17:19:33 +05'30'