High Court
Case Details
WP(C) 300/2013 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL) Sharma, J Heard Mr. H. Sarma, learned counsel for the petitioner. Also heard Mr. D . Saikia, learned AAG, Assam assisted by Mr. B. Gogoi, learned Standing Counsel, Health.
Legal Reasoning
2. The petitioner is aggrieved by the selection of the particular site for setting up a Model Hospital at Solalgaon in the district of lakhimpur for which NIT has been issued on 16.2.2013 (Annexure-G). According to the petitioner, the site which has been selected is not conducive for setting up of the Model Hospit al. In this connection, the petitioner has referred to the Annexure-B document r eceived through RTI. The petitioner has also referred to the report dated 16.11. 2012 (Annexure-E) submitted by the Joint Director-cum-Member Secretary, District Health Society, Lakhimpur to the Mission Director, NRHM, Assam. 3. s reflected in Annexure-B, are as follows :- The criteria for selection for construction of Model Hospital in a LAC i (cid:28)(i) One Model Hospital/CHC per each LAC. (ii) ness centre / hub of the Constituency. The Hospital will be located in nucleolus of the Constituency / the busi The Hospital will be in the National Highway / State Highway /State PWD (iii) roads having well connectivity from other places. Having electricity, water conn ection etc. (iv) The site should be free from flood and should not be low lying. 2). Salalgaon is not located centrally within the Telahi Development Block. The Xerox copy of the letter of the Deputy Commissioner, Lakhimpur is enclosed h erewith at Annexure-I for ready reference. 3) (cid:29) Report on Soil Testing done at Bosagaon site is enclosed at Annexure-II. 4. Vide Annexure-E letter dated 16.11.2012, the Site Verification Report fo r the proposed Model Hospital at Telahi block was submitted to the Mission Direc tor, NRHM, which interalia reads as follows :- (cid:28)2. Basagaon : It is under Madhya Telahi Gaon Panchayat. i. tion. Land is available, but low lying with respect to major building construc ii. Electricity available. Water Supply not available. Approach Road is not in proper condition. Nearest Health Institution is Panigaon Subsidiary Health Centre at a dis iii) iv. v. tance of 1.50 KM(Approx). 4. . i. n. Solal Gaon : It is under Madhya Telahi Block and Panigaon Gaon Panchayat Land is available, high land and sutiable for major building constructio ii. Electricity available. iii. Water Supply available. iv. oad and also near to Panigaon Police Station. Approach Road is good and Black Topping and 150.00 M from Panigaon PWD r v. tance of 3.00 KM (Approx). Nearest Health Institution is Panigaon Subsidiary Health Centre at a dis Considering all the technical points and other general requirements for a modal hospital including security of the health staffs who will be working at the heal th institute which may be upgraded to full-fledged hospital in future, Solal Gao n is the most suitable site. (cid:29) 5. ed to be suitable for setting up of the Model Hospital. If we go by the aforesaid report, it is the Solalgaon which was consider 6. However, by Annexure-C letter dated 17.11.2012, the Deputy Commissioner, Lakhimpur has conveyed to the Mission Director, NRHM that the site at Basagaon would be relatively more centrally located within the Telahi Development Block a nd would be able to cater a better number of patients in the concerned block are a. Accordingly, direction was issued to treat the Basagaon as the first preferen ce for the Model Hospital. Pursuant to the said recommendation, the site at Basa gaon has been selected for setting up of the Model Hospital, for which NIT has b een issued.
Legal Reasoning
7. Mr. H. Sarma, learned counsel for the petitioner submits that when the v erification report has preferred Solalgaon as the most suitable site, the Deputy Commissioner, could not have ignored the said report, so as to recommend the ot her site at Basagaon. According to him, such discretion exercised by the Deputy Commissioner and for that matter the concerned authority is arbitrary and requir ed to be interfered with. In this connection, he has referred to the decision of the Apex Court reported in (2012) 5 SCC 275 (Avishek Goenka Vs. Union of India and others), in which the Apex Court dealing with the judicial review in the mat ter of policy decision observed thus :- We have clearly stated that it is not for this Court to examine the meri (cid:28)22. t or otherwise of such policy and maters which have been determined by expert b odies having possessing requisite technical know-how and are statutory in nature . However, the Court would step in and direct the technical bodies to consider t he matter in accordance with law, while ensuring that public interest is safegua rded and arbitrary decisions do not prevail. (cid:29) 8. Mr. D. Saikia, learned AAG, Assam on the other hand submits that the pet itioner in his individual capacity cannot represent the Telahi Block. He submits that other people of the locality and / or the block having not made any grieva nce, the petitioner cannot raise any grievance without disclosing his interest i n the matter. He further submits that the verification report etc. are only rela ting to intermediary stage and not the final decision. He submits that the final decision is required to be taken, taking note of not only the verification repo rt but the convenience of the public and other related matters. Accordingly, a d ecision was arrived at to select Basagaon as the suitable place for setting up t he Model Hospital. Mr. Saikia, learned AAG, also placed reliance on the two deci sions of the Apex Court reported in (2001) 10 SCC 75 (Raj Shikshan Prasarak Mand al Vs. State of Maharashtra and others) and (1988) 4 SCC 364 (J.R. Raghupathy an d others Vs. State of AP and others). 9. In both the decisions, the Apex Court was concerned with the scope of ju dicial review in the matter of policy decision and exercise of discretionary pow er conferred by statute on Govt. In Raj Shikshan Prasarak Mandal (supra), the Ap ex Court was concerned with shifting of a School from one place to another and i t was observed thus :- (cid:28)3. & & & & & & & & & & & & &The shifting of the school from one place to the other or havi ng an ashram school at one place is not governed by any statutory rules and it i s in fact a policy decision of the Government. So long as the government decisio n is not actuated with any malice or is not the outcome of an arbitrary and whim sical act, the same should not be interfered with any a court of law under Artic le 226 of the Constitution of India. This being the position and on the relevant materials, the appropriate authority have considered the interest of the public at large and having allowed the shifting of the school from Mallapur to Ardahpu r, & & & & & & & & & & & & & & (cid:29) 10. While it is true that the verification report suggested that Solalgaon w as suitable site in preference to Basagaon but the authority while selecting Bas agaon as the suitable place, the most important aspect of the matter i.e. that i t is more centrally located within the Telahi Development Block and that the Mod el Hospital if set up there will be able to cater a greater number of patient, h as also been considered. Selection of site being within the expertise of the respondents, this Co 11. urt exercising writ jurisdiction cannot substitute the decision of the expert bo dy to issue a mandamus to the respondents to choose the site of petitioner’s cho ice for setting up of the Model Hospital.
Decision
12. ordingly the writ petition is dismissed. In view of the above, no relief can be granted to the petitioner and acc 13. There shall be no order as to costs.