TMI Blog2018 (7) TMI 2318X X X X Extracts X X X X X X X X Extracts X X X X ..... n in and improving the Ayurvedic system of medicine and preaching the same. In order to achieve the latter object, it was not prohibited to take help from the English or Yunani or any other system of medicine and according to need, one or more than one Ayurvedic Hospital may be opened. It was contended that it was not in the deed of the Trust to impart free medical aid. The ground raised and what is contained in the Will is against the very purpose for which the Moolchand Kharaiti Ram Hospital is being run. When its object was of improving the Ayurvedic system of medicine only as is apparent from the material on record that at present the said activities had been confined to one room and the changed main activity is an Allopathic system of medicine which was not at all the intendment of the creator of the Trust. We leave the matter at that in these proceedings. However, having obtained the land for charitable purposes for the hospital, for no profit and for the public good, whatever system of medicine is being administered, it can be obligated with such charitable rider of free treatment as envisaged in the impugned order issued by the Government. Similarly, St. Stephens Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... costs. - Arun Mishra, J. JUDGMENT 1. The question involved in the appeals is with respect to the validity of Circular issued by the Government of NCT of Delhi (GNCTD) on 2.2.2012 whereby it intimated the hospitals to implement the judgment of Delhi High Court with regard to free treatment to the weaker sections of the society in terms of the judgment dated 22.3.2007 in the case of Social Jurists v. Government of NCT of Delhi Ors. Thereafter, the Land Development Officer (in short, L DO') passed an order dated 2.2.2012 wherein it was stated that the Government of India had taken a policy decision that all the hospitals which have been provided land by L DO have to strictly follow the policy of providing free treatment as provided in it. That the said conditions were applicable to Moolchand Hospital and St. Stephens Hospital as they were allotted land by L DO. Communication on similar lines was issued by Government of NCT of Delhi to Sitaram Bhartia and the Foundation of Cancer Research imposing condition of providing free treatment to 10% indoor patients and 25% to outdoor patients of poor strata of the society. The decision was taken in the light of the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c. 2) The first safeguard was unanimously accepted. It was understood that an institution of secular and non-communal character was one which did not discriminate against any class of people on any ground while making an admission. It was also agreed that institutions like Arts and Crafts Society and other non-profit making bodies should be included under the term Charitable Institution . The test should be that the institution should be run for the good of the public without any profit motive. 3. It was also deliberated upon on 10.6.1949 that what should be premium and ground rent chargeable to a charitable institution. As per the policy laid down by the Government of India in the letter of the Department of Education, Land, dated 25.7.1943, the premium charged was too high, to be easily payable by any charitable institution much less by any displaced institution from Pakistan. According to that formula, any charitable institution will have to pay a premium at the rate of 25,000 to 35,000 per acre, plus ground rent @ 15% on the premium per annum, that would be obviously too high. Hence, it was agreed that the premium chargeable on land allocated to charitable institutions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as formally executed between the President of India and Moolchand Kharaiti Ram Trust which was to be effective from 17.4.1951 for a period of 99 years. In this lease deed also, there was no such condition regarding free treatment to any patient. Thus, it was not open to the Government to impose the obligation of providing free medical treatment by an executive order. The policy of 1949 regarding institution should be run for the good of the public without any profit motive was applicable to other institutions like Arts Crafts Society and not to hospitals. At the most, the only rider in the policy was that the institution would be run for the good of the public without any profit motive. This policy/test was to be applied at the time of allotment of land and only such institutions were to be allotted land which in the opinion of the Government fulfilled the said criteria. Since the policy has not been converted into law by enactment of an Act by the legislature, only insistence could be that the institution should be run without any profit motive and not that the institution be required to provide free treatment to any specified number of patients. The DDA (Disposal of Developed N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ospital : 8. In the case of St. Stephen hospital, it was averred by the hospital that it was established in the year 1885 by a group of missionary women in Chandni Chowk, Delhi. In 1908 it moved to its present location to Tees Hazari, Delhi. Land admeasuring 1.37 acres, 2331 sq.yds. and 1.29 acres was allotted to it by L DO vide allotment letters dated 12.6.1970, 25.2.1972 and 19.1.1976 for its additional requirements. Subsequent to the agreement, the lease deeds were signed and perpetual lease deeds were executed. There was no such condition in the allotment letters/lease deeds for providing free care/treatment to the patients. The hospital having regard to its objective has always been providing substantial treatment to the needy. In the writ petition, the order passed by L DO on 2.2.2012 was questioned regarding the condition of free care as part of the terms and conditions of the lease deed. Same has been allowed by the High Court. Though land had been obtained for purpose of the charitable institution it was not open to imposing such riders by executive order. There was no condition of free care in the 1949 policy. Unilateral amendment of the lease deed could not have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as filed in the High Court. Moreover, similar are the facts of Foundation for Applied Research in Cancer. The stand of the Government: 10. On behalf of the State it was contended that the stand of the Government was that as per the policy decision taken in the year 1949, it was decided to allot the land at concessional rates i.e. @ Rs.2000/to Rs.5000/per acre to the institutions which was far lesser than the already prevailing concessional rate of Rs.25,000/to Rs.30,000/per acre fixed vide letter dated 25.7.1943. 11. In the case of Moolchand Khairati Ram Trust vide allotment letter dated 17.4.1951 land was allotted at the rate of Rs.2000/to Rs.5000/per acre and ground rent @ 5% on the premium per annum. Thereafter, a lease deed was executed for 99 years on 24.4.1968 in favour of Moolchand Khairati Ram Trust. 12. St. Stephens hospital was similarly allotted 1.37 acres of land vide allotment letter dated 12.6.1970 which was followed by lease deed dated 3.7.1970, whereafter, further land admeasuring 2331 sq. yds. was allotted vide allotment letter dated 25.2.1972 at the rate of Rs.5000/per acre and ground rent at the rate of 5% per annum. 13. Sitaram Bhartiya Insti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10% of IPD patients have to be given treatment free of cost. The said patients should not be charged with anything. 17. Thereafter the GNCTD came out with a Circular on 20.1.2012 intimating hospitals to implement the directions of the High Court with regard to free treatment in terms of judgment dated 2.3.2007. Land Development Officer passed an order in this regard to follow the policy. Similar letters were issued to Sitaram Bhartiya and Foundation for Applied Research in Cancer. 18. The Foundation for Applied Research in Cancer was allotted a plot admeasuring 0.9 acres @ Rs.28,50,000/per acre provisionally with annual ground rent at 2.5% per annum, the premium was revised to Rs.39,00,000/per acre on 22.10.1991. In August 1992, it represented to the Lt. Governor that as per notification dated 11.09.1991, the price of the land allotted to it was fixed at Rs.3,25,000/and sought a refund, however, the request was declined. 19. The High Court of Delhi had allowed the writ applications, hence, the appeals have been preferred. Social Jurists, a civil rights group has filed Civil Appeal Nos.31573158 of 2017 against the judgment and order passed in the case of Moolchand Kharait ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Research in Cancer, there was a stipulation in the lease deed under clause 7 as under: 7. The DDA reserves its right to alter any terms and conditions on its discretion. The Government was well within its powers to impose the condition in terms of the aforesaid clause. 22. It was also urged that Sunder Lal Jain Charitable hospital had challenged the said order by preferring a special leave petition that was dismissed by this Court on 1.9.2011 by a speaking order. Thus, the issue had attained finality and it was incumbent upon the hospitals in question to provide free services to the poor. 23. Sitaram Bhartia Institute of Science Research and Foundation for Applied Research in Cancer were given land as per the DDA, 1981 Rules, in particular Rules 3, 4, 5, 6 and 20 at concessional rates. The predetermined rates are nowhere close to market rates. A bare reading of the rules would reflect that a separate process is given for the sale of plots by auction or tender. Thus, allotment of land at predetermined rates is also concessional. 24. It was also urged that the definition of charitable as given in Income-tax Act would not govern the field in the present case. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-hospitals as they were not parties to the said decision and this Court could not have issued such directions without hearing them. Contempt petition filed in the High Court against the Trust for violating decision in Social Jurists (supra), was dismissed. As a matter of fact allotment was made at the market rates prevailing in 1951. Free services are being provided in the hospital since 1958 at its own level. 26. In the case of St. Stephens hospital similar arguments have been raised, apart from that it was urged by learned senior counsel that though charity is being performed by the missionaries as such conditions could not have been imposed by the appellants. There was no such stipulation in the allotment letters/sale deeds. The interpretation of the lease deed made by L DO was impermissible. Unilaterally such conditions could not have been imposed. It could have been done by enacting statutory law. The conditions were impermissible, arbitrary and violative of Article 14. The lease deeds are not governed by the provisions of the Government Grants Act. The Executive power referred to in Articles 73 and 298 of the Constitution did not empower the State to unilaterally amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ease deed should not be canceled, and it was informed to the Commissioner, Institutional Branch, DDA that it was pursuing its mission of research in healthcare and medicine. The clinical/hospital portion generates valuable research data and funds which enable respondent No.1 to finance research activities. It was further contended that there were three categories, government organisations, charitable organisations and other institutions, for the purposes of allotment of land. Other institutions were allotted land at the zonal variant rates that were the rate paid by the respondent. There was no such condition. The condition would have serious financial consequences as entire feasibility and viability would have to be worked out, whether it would be economically viable to undertake the project at all or not. Such unconscionable, unreasonable and arbitrary condition could not have been imposed. Some of the medicines are very expensive. Its cost cannot be borne by the hospital and it cannot form part of free medical treatment except possibly in Government hospitals. No profit no loss condition would not mean that it was allotted on a concessional basis. Respondent No.1 is a self-suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be provided to the poor and needy. Reliance has been placed on the definition of charity in Charitable Endowment Act, 1890 and Income Tax Act, 1961. The policy decision taken in 1949, did not envisage free treatment to the patients. In the allotment letter, there was no such condition that free treatment shall have to be provided to the patients belonging to economically weaker sections of the society at the hospital. The lease deed was executed for 99 years. The only condition was that the institution should be run for the good of the public without any profit motive. The aforesaid condition was not applicable to the hospitals, even if it was applicable, the only rider was that it should run without any profit motive. The free treatment was not envisaged in the aforesaid expression. 31. It was urged that the hospital by itself is a charitable institution. It carries out obligation and stipulations of free treatment at its own level. In order to appreciate the submission made, we deem it appropriate to consider the meaning of charitable, charitable purpose, charitable corporation and charitable trust in common parlance. 32. The Black s Law Dictionary, Ninth Edition def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The requirement that an institution is subject to the control of the High Court in the exercise of the court's jurisdiction with respect to charities is satisfied if the institution is subject to that jurisdiction in any significant respect. It does not have to be subject to that jurisdiction which the court only exercises over charities and not over other trusts or other corporate bodies, and it is sufficient if the court could restrain the institution from applying its property ultra vires or in breach of trust. The Charities Act 1960 establishes a register of charities and it is the duty of the charity trustees of any charity which is required to be registered to apply for registration. The effect of registration is that an institution is for all purposes other than rectification of the register conclusively presumed to be or to have been a charity at any time when it is or was on the register of charities. The Act does not provide that an institution which, if it were a charity, would be required to be registered, but which is not registered, is for that reason, not a charity. 35. Again, the Halsbury s Laws of England while dealing with the meaning of charity, has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny the less charitable because it is being carried on without any regular organization by a person who may discontinue it at any time. Such an activity would come within the statutory definition of charity as a trust or undertaking. 36. The charitable trust can be enforced by the Court, which knows about what charitable purposes are. In the Halsbury s Laws of England, the following discussion has been made in this regard : 504. Purposes must be exclusively charitable. To be a charity in law, a trust or institution must be established for purposes which are exclusively charitable; a charitable trust can be enforced by the court at the suit of the Attorney General, for the court knows what are charitable purposes and can apply the trust property accordingly, but a trust for benevolent purposes cannot be so enforced and is therefore void for uncertainty. 37. Public welfare is one of the essential requirements of legal charity, which has been discussed in Halsbury s Laws of England in paragraph 505, which is extracted hereunder: 505. Public benefit essential . It is a clearly established principle of the law of charities that a purpose is not charitable unless it is di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibed, the court, in the exercise of this jurisdiction, can carry out the charitable intention as though the particular direction had not been expressed at all. However, where the particular mode of application prescribed by the donor was the essence of his intention, which may be shown by a condition or by particularity of language, and that mode is incapable of being performed, there is nothing left upon which the court can found its jurisdiction, so that in such circumstances the court has no power to direct any other charitable application in place of that which has failed. Where the particular mode of application does not exhaust a gift, these principles apply to the surplus. There can be no question under English law of a cypres application of property subject to trusts which are not charitable in law. 41. It has also been observed in the Halsbury s Laws that not all hospitals are charitable institutions, for there may be hospitals run commercially, with a view to the profit of private individuals or hospitals, the services of which are not available to a sufficient section of the public. The mere fact that a hospital is supported by the payment of fees does not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... z. c. 4, S. 1, or is within what has been called the equity of the statute, but there is perhaps not one person in a thousand who knows what is the technical and legal meaning of the word charity . Per Lord CAIRNS in Dolan v. Macdermott, (1868) 3 Ch App 678. This term has the legal technical meaning given it by English law. Commissioners of Income Tax v. Pemsel, (1891), App Cas 532; and see Cunnack v. Edwards, (1896) 2 Ch 679 (CA). [In the Income Tax Act, 1842 (5 6 Vic. c. 35), sch. A, S. 61] Charitable purposes in S. 4 of the Income-tax Act would include relief of the poor, education, medical relief and the advancement of any other object of general public utility . Trusts for the benefit of the inhabitants of a particular locality are regarded as charitable, but trusts for the benefit of a particular political party or for the advancement of particular political purposes or opinions are not regarded as charitable. A gift for such purposes as a particular individual or individuals may consider to be charitable is not a good charitable purpose although a gift for such charitable purposes as the managing committee of a trust may think fit would be good, because the commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a trust for public purposes of a charitable nature. (32 All 499 = 7 ALJ 420=6 IC 188.) In common parlance, the word charity' means a giving to some one in necessitous circumstances and in law it means a giving for public good. A private gift to one's own self or Kith and Kin may be meritorious and pious but is not a charity in the legal sense. Fazlul Rabhi v. State of West Bengal, AIR 1965 SC 1722, 1727. [West Bengal Estates Acquisition Act, 1953 (1 of 1954), S. 6(1)(i)] A benevolence, specially to the poor [S. 378, ill. (n), I.P.C.] 43. From the aforesaid discussion, it is apparent that charitable is the public purpose for the benefit of the needy people, who cannot pay for benefits received. The Internal Revenue Code may define it separately for its purposes what is charitable so as to claim the benefit under the Act. The charitable trust is a trust which is for the benefit of general public. Charitable is a kind and generous in giving money or other help to those in need as defined in Webster s New World Dictionary and Black s Law Dictionary. The Halsbury s Laws of England discussed the meaning of charity, which provides that if there is no statutory definitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and fulfill the purpose by undertaking charitable activities and give it the real meaning by giving free services as envisaged in the policy. The claim of the hospitals that they are undertaking charity at their own level cannot be used as a shield to the performance of charity in an organized way. The very spirit of the argument that as they do charity, it cannot be fastened upon them, is self-destructive and tends by its tenor to negate unjust obstruction created in the path of real charity 46. The definition of charitable purpose as defined in the Charitable Endowments Act, 1890 is extracted hereunder: 2. Definition . In this Act charitable purpose includes relief of the poor, education, medical relief and the advancement of any other object of general public utility, but does not include a purpose which relates exclusively to religious teaching or worship. It is apparent from the definition that charitable purpose includes relief of the poor, education and medical needs. As per the provisions of the Charitable Endowments Act, 1890, relief of the poor and medical relief is included as such conditions which had been imposed are clearly within the parameters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t pay any dividend or bonus to its members. Explanation- Charitable purpose includes relief of the poor, education and medical relief but does not include a purpose which relates exclusively to religious teaching; The argument is well founded. The test of 'charitable purpose' is satisfied by the proof of any of the three conditions, namely, relief of the poor, education, or medical relief. The fact that some fee is charged from the students is also not decisive inasmuch as the proviso indicates that the expenditure incurred in running the society may be supported either wholly or in part by voluntary contributions. Besides, the explanation is in terms inclusive and not exhaustive. The impugned judgment must, therefore, be held to be erroneous. The question in the aforesaid case was altogether different with respect to the meaning of charitable purpose as defined under Section 115 (4) (a). 49. In Municipal Corporation of Delhi vs. Children Book Trust , (1992) 3 SCC 390, this Court considered the provisions of Section 115(4)(a) of Delhi Municipal Corporation Act, 1957 and dealt with the question of charitable purpose, context of property tax in respect of land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , education has acquired a wider meaning. If education is imparted with a profit motive, to hold, in such a case, as charitable purpose, will not be correct. We are inclined to agree with Mr. B. Sen, learned counsel for the Delhi Municipal Corporation in this regard. Therefore, it would necessarily involve public benefit. 78. The rulings arising out of Income Tax Act may not be of great help because in the Income Tax Act charitable purpose includes the relief of the poor, education, medical relief and the advancement of any other object of general public utility. The advancement of any other object of general public utility is not found under the Delhi Municipal Corporation Act. In other words, the definition is narrower in scope. This is our answer to question No. 1. xxx xxx xxx 85. The last aspect of the matter is utilisation of the income in promoting its objects and not paying any dividend or bonus to its members. The learned counsel for the appellant and the intervenor would urge that on the basis of Cane (Valuation Officer) vs. Royal College of Music , (1961) 2 QBD 89, the position in the instant case is the same. At page 121 the following observation is found: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose of running the hospital, the Government is within its right to impose such an obligation. 53. The nobility and obligation of the medical profession have also found statutory recognition in the form of regulations framed by the Medical Council of India in the exercise of the power conferred under section 20A read with section 33(m) of the Indian Medical Council Act, 1956. The Medical Council of India with prior approval of the Central Government has made the regulations relating to the standards of professional conduct and etiquette and code of ethics for registered medical practitioners. Chapter 1 whereof contains the code of medical ethics. Part B of Regulation 1.1 deals with the character of a physician. Regulation 1.1.1 provides that the institution shall uphold the dignity and honour of the profession. Regulation 1.1.2 is self-explanatory and the same is extracted hereunder: 1.1.2 The prime object of the medical profession is to render service to humanity; reward or financial gain is a subordinate consideration. Whosoever chooses his profession, assumes the obligation to conduct himself in accordance with its ideals. A physician should be an upright man, instructed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. 56. Under Regulation 2.1 it is provided that in the case of emergency the physician must treat the patient. No physician shall arbitrarily refuse treatment to a patient. At the time of registration, the medical practitioner has to submit a declaration that I solemnly pledge myself to consecrate my life to service of humanity and that I will maintain the utmost respect for human life from the time of conception. And he is dutybound to maintain all means in his power to honour the noble provisions of the medical profession and he has to abide by the regulations framed by the Medical Council of India. Considering the object of the statutory rules also, medical profession owes a duty to serve the poor and havenots, irrespective of financial status, they have to treat everybody equally with respect to social standing and economic disparity, that cannot be achieved without free treatment to the needy. 57. When the Government land has been allotted to the hospitals, they would not be doing free service but being a recipient of Government largesse at concessional rates and continue to enjoy it, they owe a duty to act in public interest. In our opinion, not only Moolchand K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate has to ensure the basic necessities like food, nutrition, medical assistance, hygiene etc. and contribute to the improvement of health. Right to life includes right to health as observed in State of Punjab Ors. v. Mohinder Singh Chawla Ors . (1997) 2 SCC 83. Right to life and personal liberty under Article 21 of the Constitution also includes right of patients to be treated with dignity as observed by this Court in Balram Prasad v. Kunal Saha Ors . (2014) 1 SCC 384. Right to health i.e., right to live in a clean, hygienic and safe environment is a right under Article 21 of the Constitution as observed in Occupational Health and Safety Association v. Union of India Ors ., AIR 2014 SC 1469. The concept of emergency medical aid has been discussed by this Court in Pt. Parmanand Katara v. Union of India Ors . (1989) 4 SCC 286. In Paschim Banga Khet Mazdoor Samity Ors. v. State of West Bengal Anr. (1996) 4 SCC 37, right to medical treatment has been extended to prisoners also. 61. In Parmanand Katara (supra) this Court has observed that every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... level of nutrition and the standard of living and to improve public health. It is also one of the fundamental duties enshrined in Article 51A(h) to develop the scientific temper, humanism and the spirit of inquiry and reform. It would be inhuman to deny a person who is not having sufficient means or no means, the lifesaving treatment, simply on the ground that he is not having enough money. Due to financial reasons, if treatment is refused, it would be against the very basic tenets of the medical profession and the concept of charity in whatever form we envisage the same, besides being unconstitutional would be violative of basic human rights. In our opinion, when the State largesse is being enjoyed by these hospitals in the form of land beside it is their obligation by the very nature of the medical services to extend the reciprocal obligation to the public by providing free treatment as envisaged in the impugned order. In case they want to wriggle out of it and not to comply with it, they have to surrender the land and orge out the benefit which they have received by virtue of holding the Government land in an aforesaid manner. 64. It is regrettable that the land had been obt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts who require godly approach and helping hand of doctors. Every prescription starts from Rx, not from the amount of bill. Being big commercial international hospitals in and around Delhi, they are not above the ethical standards which they have to maintain at all costs even by extending financial help to the havenots. 67. The poor cannot be deprived of the treatment by the best physician due to his economic disability in case he requires it. It is the obligation on the medical professionals, hospitals, the State and all concerned to ensure that such person is given treatment and not deprived of the same due to poverty. That is what is envisaged in the Constitution also. On the making of a doctor, the State spends and invests a huge amount of public money and it is the corresponding obligation to serve the needy and the treatment cannot be refused on the ground of financial inability of the patient to bear it. To such an extent, the right and moral obligation can be enforced and that precisely has been done by issuance of the impugned directions to provide free treatment in IPD and OPD to economically weaker sections of society. They have suffered so long and benefit has not pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of which the land is held and even otherwise in the case of two other institutes i.e. Sita Ram Bhartia Institute of Science Research and Foundation for Applied Research in Cancer, as they are holding the Government land for the hospital purpose and research functions in the hospital, the allotment was also made at a predetermined rate and not by way of auction and considering the specific stipulation in clause 7 of the lease deed and considering the aforesaid other aspects, and it being charitable activity, it was open to the Government to obligate them by providing free medical treatment. 69. It is apparent that decision in Social Jurists (supra) has been rendered on the basis of the terms and conditions contained in the allotment letters as well as stipulations made in the lease deeds. Some representations were made relating to free treatment. The High Court, hence in Social Jurists (supra), opined that it was not necessary to incorporate each and every condition in the lease deed and other corresponding documents would also be seen and it was not only contractual but statutory, and public law obligation enjoined upon the hospitals to fulfil condition of free tre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lotment of Nazul land to certain public institutions.- The Authority may allot Nazul land to schools, colleges, universities, hospitals, other social or charitable institutions, religious, political, semi-political organisations and local bodies for remunerative, semi-remunerative or unremunerative purposes at the premia and ground rent in force immediately before the coming into force of these rules, or at such rates as the Central Government may determine from time to time. [Explanation.- For the purpose of this rule the expression hospitals do not include the hospitals/dispensaries established by a company, firm or trust as referred to in Sub-rule (2) of Rule (4).] 20. Allotment to certain public institutions. - [***] No allotment of Nazul land to public institution referred to in Rule 5 shall be made unless - (a) according to the aims and objects of that public institution - (i) it directly subserves the interests of the population of the Union Territory of Delhi; (ii) it is generally conducive to the planned development of the Union Territory of Delhi; (iii) it is apparent from the nature of work to be carried out by that public institution, that the same c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contention raised on behalf of Moolchand Kharaiti Ram Trust to the effect that this Court cannot proceed to make an order on account of sympathy in contravention of settled law and it will seriously damage the credibility of this institution. In our view, it is wholly impermissible submission. The Trust cannot be permitted to wriggle out of its obligation unjustly and unfairly. Originally the Trust was set up for pure charity. In raising such unworthy and untenable submission, Trust has lost its main objective and assumed a commercial character and it is regrettable that it has to be reminded of its responsibility by the Court for the purpose for which it exists and having obtained the land on a particular basis, is observed only in breach thereof. The adverse remarks in the report of Justice Qureshi Committee with respect to the institution cannot be brushed aside on the sole ground that comments recorded in Justice Qureshi's report were based on the statement made by disgruntled employees of the hospitals, who were in dispute with the management of the hospital. 76. Learned senior counsel appearing on behalf of St. Stephens Hospital has also relied on the decision rende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive admittedly is to provide the charitable services free of charge but it has also become more or less a commercial venture as in the case of other hospitals inter alia involved in the instant matter, how such provision for charity is opposed is beyond comprehension, is it charity versus charity. They have to abide by the just and reasonable legal conditions for free treatment which are constitutionally envisaged also. 79. It was also urged on behalf of Moolchand Kharaiti Ram Hospital that though nine acres of land was allotted at Lajpat Nagar, it was not a prime locality at the relevant time and the land was given at the market rate. The submissions are wholly baseless and against the record and cannot be countenanced. The record belies the same. In Reference to question No.3 relating to Article 19(1)(g) and 19(6): 80. It was contended on behalf of the respondents/hospitals that imposition of such a stipulation for free treatment tantamounts to imposing restriction on the right enshrined in Article 19(1)(g) of the Constitution which confers a Fundamental Right on all citizens of India to practice any profession or to carry on any occupation, trade or business in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to all citizens freedom of speech and expression and to Article 19(2) which provides that nothing in Article 19(1)(a) shall prevent a State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by Article 19(1)(a) in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence. The law is now well settled that any law which may be made, under Clauses (2) to (6) of Article 19 to regulate the exercise of the right to the freedoms guaranteed by Article 19(1)(a) to (e) and (g) must be 'a law' having statutory force and not a mere executive or departmental instruction. In Kharak Singh v. State of U.P. AIR 1963 SC 1295, 1299, the question arose whether a police regulation which was a mere departmental instruction, having no statutory basis could be said to be a law for the purpose of Article 19(2) to (6). The Constitution Bench answered the question in the negative and said: Though learned counsel for the respondent started by attempting such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... breach of public tranquillity and does not confine itself to those forms of demonstrations which might lead to that result. Examining the action of the Education Authorities in the light of Kharak Singh v. State of Uttar Pradesh and Kameshwar Prasad v. State of Bihar (supra) we have no option but to hold that the expulsion of the children from the school for not joining the singing of the National Anthem though they respectfully stood up in silence when the Anthem was sung was violative of Article 19(1)(a). 82. Reliance has also been placed on State of M.P. Anr. v. Thakur Bharat Singh , AIR 1967 SC 1170 wherein it was pointed out that the executive power of the State under Article 162 being only an executive power and not a legislative power anything done in exercise of executive power under Article 162 does not become law under the Constitution. This Court in the factual matrix of the case that executive order was issued during an emergency was pending under Article 19. It was contended that Article 358 protects action of both legislative and executive. The decision in the aforesaid case was not supported by Article 358 of the Constitution. It was observed: (4). Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction to the study of the Law of the Constitution , 10th Edn., at p. 202 the expression rule of law has three meanings, or may be regarded from three different points of view. It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the Government. At p. 188 Dicey points out : In almost every continental community the executive exercises far wider discretionary authority in the matter of arrest, of temporary imprisonment, of expulsion from its territory, and the like, than is either legally claimed or in fact exerted by the government in England : and a study of European politics now and again reminds English readers that wherever there is discretion there is room for arbitrariness and that in a republic no less than under monarchy discretionary authority on the part of the government must mean insecurity for legal freedom on the part of its subjects. We have adopted under our Constitution not the continental system but the British system under which the rule of law prevails. Ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 84. The hospitals nowadays have five-star facilities. The entire concept has been changed to make commercial gains. They are becoming unaffordable. The charges are phenomenally high, and at times unrealistic to the service provided. The dark side of such hospitals can be illuminated only by sharing obligation towards economically weaker sections of the society. It would be almost inhuman to deny proper treatment to the poor owing to economic condition and when hospitals claim that they are doing charity at their own level, we find impugned order dated 2.2.2012 is simply an expression to the aforesaid activity which has been given a channelized form. 85. We are of the considered opinion that there was no necessity of enacting a law, as the policy/rules under which the land has been obtained, the hospitals were obligated to render free treatment as the land was allotted to them for earning no profit and held in trust for public good. Similar is the provision in the rules of 1981 and apart from that the regulations framed by the Medical Council of India also enjoins upon the medical profession to extend such help and in view of the object of the hospitals, trust, and missionarie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny law made by Parliament upon the Union or authorities thereof. Thus, under this article, the executive authority of the State is executive in respect to matters enumerated in List II of Seventh Schedule. The authority also extends to the Concurrent List except as provided in the Constitution itself or in any law passed by the Parliament. Similarly, article 73 provides that the executive powers of the Union shall extend to matters with respect to which the Parliament has power to made laws and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or any agreement. The proviso engrafted on clause (1) further lays down that although with regard to the matters in the Concurrent List the executive authority shall be ordinarily left to be State it would be open to the Parliament to provide that in exceptional cases the executive power of the Union shall extend to these matters also. Neither of these articles contain any definition as to what the executive function is and what activities would legitimately come within its scope. They are concerned primarily with the distribution of the executive power betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is it's retaining the confidence of the legislative branch of the State. The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact, the carrying on or supervision of the general administration of the State. xxx xxx xxx 17. Specific legislation may indeed be necessary if the Government require certain powers in addition to what they possess under ordinary law in order to carry on the particular trade or business. Thus when it is necessary to encroach upon private rights in order to enable the Government to carry on their business, a specific legislation sanctioning such course would have to be passed. 18. In the present case it is not disputed that the entire expenses necessary for carrying on the business of printing and publishing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Mukherjea, J., as he then was, who spoke for the Court. The learned Judge observed that the Legislature undoubtedly intended to apply the Act to those industries only where by reason of unorganised labour or want of proper arrangements for effective regulation of wages or for other causes the wages of labourers in a particular industry were very low. He also pointed out that conditions of labour vary under different circumstances and from State to State and the expediency of including a particular trade or industry within the schedule depends upon a variety of facts which are by no means uniform and which can best be ascertained by a person who is placed in charge of the administration of a particular State. That is why the Court concluded that in enacting S. 27 it could not be said that the Legislature had in any way stripped itself of its essential powers or assigned to the administrative authority anything but an accessory or subordinate power which was deemed necessary to carry out the purpose and the policy of the Act. 11. In the same year another attempt was made to challenge the validity of the Act in Bijay Cotton Mills Ltd. v. State of Ajmer (1955)-1 SCR 752; ((S) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue which is clearly concluded by the decisions of this Court. Therefore, we will proceed to deal with the present petition, as we must, on the basis that the Act under which the Committee was appointed and the notification was ultimately issued is valid. 89. In Minerva Talkies, Bangalore Ors. v. State of Karnataka Ors . 1988 Suppl. SCC 176 in which Rule 41A of the Karnataka Cinemas (Regulation) Rules, 1971 came to be questioned as violative of Article 19(1)(g) of the Constitution of India. The argument that the income would be reduced as such the rule was prohibitive not restrictive, this Court rejected the submission of violation of Article 19(1)(g) and observed thus : 12. The appellants /petitioners' contention that restriction under Rule 41-A is unreasonable is founded on the premise that Rule 41-A is not regulatory in nature instead it totally prohibits exhibition of cinematograph films for one show and its impact is excessive as it reduces appellants /petitioners' income to the extent of one-fifth. The appellants/petitioners have no unrestricted fundamental right to carry on business of exhibiting cinematograph films. Their right to carry on business is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carried away by lorries; and on raids conducted in places like Mettupalayam, Tambaram and elsewhere large stocks of illicit timber having been found in saw-mills and with dealers, the impugned rules, which insist on a Form II pass to accompany during every movement of timber, and hammer mark being affixed on the transported timber, are absolutely necessary for the protection and management of forest wealth in the State of Tamil Nadu. Hence, the impugned rules are not violative of Article 19(1)(g). 5. Having found that the rules were regulatory and not prohibitive, the High Court also rejected the argument based on Articles 301-304 of the Constitution of India. So far as the enhancement of fee is concerned, the High Court examined the scheme and operation of the rules and came to the conclusion that the State Government was providing sufficient services to the timber merchants at every check-point and as such the principle of quid pro quo was satisfied. 91. In State of Orrisa and Anr vs. Radheyshyam Meher Ors . AIR 1995 SC 855 = 1995 (1) SCC 652 the question which arose for consideration was about the power of the State Government in the absence of rule or regulations to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of an emergency to go out to purchase the medicines. There may be patients having an attendant who may not find it convenient or safe to go out of the campus to purchase the medicines in the night hours. In these facts and circumstances, the paramount consideration should be the convenience of the patients and protection of their interest and not the hardship that may be caused to the medical store keepers who may be having their shops outside the hospital campus. Thus the intention of the appellants to open a medical store within the hospital campus is to salvage the difficulties of the patients admitted in the hospital and this object of the appellants has direct nexus with the Public Interest particularly that of the patients and, therefore, the High Court should not have interfered with the decision of the State Government to settle the holding of a medical store in the Hospital premises. However, if the respondents so choose, they may keep their medical stores also open day and night. Consequently, the impugned order could not be sustained. 92. In Dalmia Cement (Bharat) Ltd. v. Union of India 1996 (10) SCC 104, compulsory packing of specified commodities with jute pac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rotection of laws to all persons. Equality before law is a correlative to the concept of rule of law for all-around evaluation healthy social order. Directives set forth social principles to eliminate inequalities in income, in status and opportunity and to provide facilities and opportunities to every citizen to make the fundamental rights meaningful and the life of every citizen worth living and at its best, with the dignity of person and fraternity, lest they remain empty vessels and teasing illusions to majority population. xxx xxx xxx 21. Article 38 of the Constitution enjoins the State to strive to promote the welfare of the people by securing and protecting, as effectively as it may, the social order in which justice - social, economic and political - shall, inform all the institutions of the national life striving to minimise inequalities in income and endeavour to eliminate inequalities in status, facilities, opportunities amongst individuals and groups of people residing in different areas or engaged in different avocations. As stated earlier, agriculture is the mainstay of rural economic and empowerment of the agriculturists. Agriculture, therefore, is an industry. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rian social order and prevent exploitation. 22. Social Justice, therefore, forms the basis of progressive stability in the society and human progress. Economic justice means abolishing such economic conditions which remove the inequality of economic value between man and man, concentration of wealth and means of production in the hands of a few and are detrimental to the vast. Law, therefore, must seek to serve as a flexible instrument of socio-economic adjustment to bring about peaceful socio-economic revolution under rule of law. The Constitution, the fundamental supreme lex distributes the sovereign power between the Executive, the Legislature, and the Judiciary. The three instrumentalities, within their play endeavour to elongate the constitutional basic structure built in the Preamble, Fundamental Rights and Directives, namely, establishment of an egalitarian social order in which every citizen receives equality of opportunity and of status, social and economic justice. The Court, therefore, must strive to give harmonious interpretation to propel forward march and progress towards establishing an egalitarian social order. 93. This Court has observed that above economic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions or public sector undertakings being in public interest, will not be construed as arbitrary so as to give rise to a contention of violation of Article 14 of the Constitution. xxx xxx xxx 19. For the above reasons, we are of the opinion that the High Court was right in coming to the conclusion that by the impugned policy, there was no creation of any monopoly nor is there any violation Of Articles 14, 19(1)(g) or 19(6) of the Constitution. In view of the above, we are of the 103 opinion that these appeals should fail and the same are dismissed accordingly. No costs. CA Nos. 3723 and 3744 of 1988: 20. These appeals are preferred against the judgment and order of the High Court of Punjab and Haryana dated 3-6-1988 made in Civil WP No. 6144 of 1987 wherein the High Court was pleased to allow the writ petition filed by the respondents in these civil appeals, quashing the policy decision of the State of Punjab whereby the State had directed its authorities concerned to purchase certain medicines from the public sector undertakings only. We have today in CA Nos. 4550- 51 of 1989 held that a similar policy decision issued by the State of Rajasthan does not amount to cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any document, the hospitals had in furtherance to the letter of allotment accepted the terms and conditions of the letter including this condition and (a) paid the money demanded in terms of the letter of allotment and (b) took possession thereof, without any protest or reservation. 48. In other words, a party's right had to be controlled in accordance with the terms of letter of allotment and, therefore, a complete contract existed between the parties. The terms and conditions of the letter of allotment empowered the authorities to add or impose such other conditions which the allottee was obliged to agree having taken benefit thereof. The terms and conditions of the Lease Deed certainly does not contain the condition of free treatment to poorer sections of the Society but the same was part of the letter of allotment itself and they would be applicable to the allotments mutatis mutandis particularly when there is no conflict between them and they duly are supplement to each other. 97. The High Court of Delhi also referred to Rules 5 and 21 of the Delhi Development Authority (Disposal of Developed Nazul Land) Rules, 1981. Rule 5 deals with rules of premium for allotment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Union of India and v. Jain Sabha, New Delhi (supra), the Supreme Court had clearly held that an offer extended by an allotment letter/revised offer once accepted, would bind the parties and that for reconsideration of the action, the allottee could only make a request to the authorities for a sympathetic consideration and cannot breach the terms of the allotment. The Court specifically observed as under: .....The allotment of land belonging to the people at practically no price is meant for serving the public interest i.e., spread of education or other charitable purposes; it is not meant to enable the allottees to make money or profiteer with the aid of public property. 98. The High Court held that it was not open to hospitals to wriggle out of their contractual, statutory and public law obligation. There was no scope for reading and confining the rights and obligations of the parties in isolation. 99. The recommendation made in the report of Justice Qureshi Committee was also considered by the High Court of Delhi, the relevant part is extracted hereunder: 66. The Lieutenant Governor of Delhi had constituted a special committee being Justice Qureshi Commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntation should be strictly enforced and in the event of default, strict action should be taken. The High Court in Social Jurists (supra) has further observed with respect to land in Delhi and allotment of vital assets thus: 95. No right exists without any obligation and no obligation can be dissected from the duty tagged with it. Right should correlate to a duty. The wider interpretations given to Article 21 read with Article 47 of the Constitution of India are not only meant for the State but they are equally true for all who are placed at an advantageous situation because of the help or allotment of vital assets. Such assets would be impossible to be gathered in a city like Delhi where the land is not available in feet, much less in acres, which the State at the cost of its own projects had provided land at concessional rates to these hospitals. The principle of equality, fairness, and equity would command these hospitals to discharge their obligations of free patient treatment to poor strata of Delhi. 101. The aforesaid decision in Social Jurists (supra) was questioned before this Court by way of several special leave petitions filed by Dharamshila Hospital Researc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cre to 5 hospitals, namely (1) Sir Ganga Ram Hospital, (2) Mool Chand Khairati Ram Hospital, (3) St. Stephen's Hospital, (4) Veeranwali International Hospital (Delhi Hospital Society)/PRIMUS ORTHO and (5) R.B. Seth Jassa Ram Hospital (initial allotment of land was made by DDA and after that an additional strip of land 773 sq. yds. was allotted by L DO), during the period 1951 to 1976 in accordance with the said policy and at the rate of Rs.10,000/- per acre to one hospital namely VIMHANS as per the prevailing concessional rate in 1981 keeping in mind that these hospitals were genuinely charitable in nature and would provide free treatment for the poor patients and function for the welfare of the public. Out of these 6 hospitals, the lease deed of two hospitals namely, Veeranwali International Hospital (Delhi Hospital Society)/PRIMUS ORTHO and VIMHANS had the free treatment condition to the extent of 70% of total beds whereas, in respect of remaining four hospitals, conditions for free treatment have not been provided. 3. The Govt. of NCT of Delhi has issued guidelines for the provision of Free Treatment facilities to patients of EWS category in private hospitals in pursuance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in advance. vi. In case of any change in the nodal person, the same should also be intimated within 24 hours to Govt. Hospitals and DHS, the list of which shall be provided shortly. vii. The establishment of the referral desk should be ensured within two weeks from the issue of this letter and the Director/In charge of the hospital shall be personally liable in the event of default. viii. The hospital shall send daily information of availability of free beds to the DHS, GNCTD twice a day between 9 AM 9.30 AM and at 5 PM-5.30 PM on all working days and also to the concerned nearby Govt. hospital to which the private hospital is proposed to be linked for general and for specialized purposes. The details of geographical linkage, the telephone numbers/fax numbers and the name of the nodal officer of Govt. hospitals shall be intimated shortly. In case no information is received within the stipulated time from the private hospitals then it shall be presumed that the beds are available in private hospitals and the patient referred shall be accommodated. ix. The patient referred by Govt. hospitals or directly reporting to the private hospital shall be admitted if required, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction against violators/defaulters under the provisions of Contempt of Court Act read with Article 215 of the Constitution of India. 4. The Hon ble Supreme Court of India while dismissing the bunch of Special Leave Petitions in the SLP Civil No.18599/2007 vide its order dated 1.9.2011 has ordered that: 25% OPD and 10% IPD patients have to be given treatment free of cost. The said patients should not be charged anything. But that will not come in the way of the concerned hospital making its own arrangements for meeting the treatment/medicines cost, either by meeting the cost from its funds or resources or by way of sponsorships or endowments or donations. 5. The Hon'ble Supreme Court has affirmed the aforesaid directions passed by the Hon'ble High Court of Delhi. The Government of India has taken a policy decision on the basis of the judgment passed by the Hon'ble Supreme Court that all the six hospitals which have been provided land by Land Development Office must strictly follow the policy of providing treatment free of cost to 25% OPD and 10% IPD patients. The Government of India further incorporates the aforesaid conditions mentioned in the para 3 (i) to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and persistent refusal of the management of Moolchand Kharaiti Ram Hospital to send a reply to the questionnaire and to submit the documents which they were required to submit at the end of the enquiry. The first visit made to Moolchand Kharaiti Ram Hospital was on 16.1.2001 and the second on 21.3.2001. Various other hospitals were also visited. The Committee observed that there was no legal, social or moral justification for allowing such moneymaking commercial concerns. The land was allotted for a charitable purpose and to do charitable service which has now been totally replaced by exploitative commercial hospitals. 106. With respect to Moolchand Kharaiti Ram Hospital, Justice Qureshi Committee has discussed the matter in extensive details. It has been observed that initially the Trust was truly charitable. It was granted 9 acres of prime land situated on the Ring Road in Lajpat Nagar in South Delhi. Initially the hospital continued to serve as a free Ayurvedic hospital for patients in OPD and IPD sections. It also carried on the research for Ayurvedic medicines. Later on the trustees decided to introduce Allopathic treatment also. The Allopathic Section has been upgraded wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at a contempt petition was filed by Union of India, which was dismissed on the ground that the hospitals in question were not impleaded as a party to the writ petition, that does not help the hospitals in question. We have examined the matter on merits in the present case afresh unfettered by previous decision and have found Government's order dated 2.2.2012, to be absolutely proper. 108. Reliance has also been placed on Delhi Development Authority Anr. v. Joint Action Committee Allottee of SFS Flats Ors ., (2008) 2 SCC 672, wherein it was held that novation of contract cannot be done unilaterally, and the new terms must be brought to the knowledge of the offeree and his acceptance thereto must be obtained. It was further observed that when a contract has been worked out, a fresh liability cannot be thrust upon a contracting party and it was beyond the scope of the original terms contained in the offer letter and the allotment letter, in which the imposition of extra charges was not contemplated. In factual matrix being different decision has no application to the instant case as it was stipulated right from the beginning in the policy/rules that land to such institutio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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