Court No. - 1 Case :- MISC. BENCH No. - 2015 of 1997 Petitioner :- Smt. Saira Begum Respondent :- State Of U.P.And Others. Petitioner Counsel :- A.K.Tewari,Shyam Singh Respondent Counsel :- C.S.C.,N.A.Siddiqui,R.K.Srivastava Hon'ble Pradeep Kant,J.
Hon’ble Shabihul Hasnain,J.
Heard Sri Anil Kumar Tewari, Senior Counsel, for the
petitioners, Sri A.K. Bhatnagar for the State and Sri Nazim
Ali Siddiqui for Zila Panchayat.
This matter is pending in this Court since the year 1997. The
State Government has not filed any counter- affidavit despite
the case being listed number of times nor has been able to
produce provincialisation order in respect of Qaiserganj
hospital.
The questions involved in this petition are, whether after the
permission granted by the State Government on 9.4. 1996 to
the Zila Panchayat for construction of shops over an area of
70 x 12 ft. on two plots adjacent to the gate of the hospital
saying it to be the land of the Zila Panchayat, the Chief
Medical Officer could have restrained the construction of
such shops on the ground that the Qaiserganj hospital was
taken over by the State Government, therefore, in the
provincialisation order, the said land must have been included
and therefore, it should be the land of the State Government
and not of Zila Panchayat.
It was on account of this observation made in the letter of
C.M.O. Dated 14.5. 1997 that this Court granted time on
various occasion to the State Government to produce the
provincialisation order, if any of the hospital in question, but
till date the same has not been brought on record.
We, therefore, proceed to decide the writ petition drawing
inference against the observation made by the C.M.O. in this
regard, in the absence of any provincialisation order being put
on record.
It so appears that the Qaiserganj Hospital was taken over by
the State Government sometimes in the year 1956- 57 and
hence the Zila Panchayat, as it then was, made a request to
the State Government for return of certain land (which is the
land in question) for construction of shops so as to provide a
market. On this request, which is evident from the letter dated
11.3.1958 contained as annexure no. 1 to the counter-
affidavit, direction was given to the Director, Medical and
Health, U.P. and to Civil Surgeon, Bahraich to look into the
matter and give comments.
On 8.2.1958 a letter was written by the Secretary to the Govt.,
Public Health Department, to the Deputy Commissioner,
Bahraich making request to transfer the said portion of the
land under the control of the Board in accordance with law so
that necessary action may be taken in this regard. The C.M.O.
Vide letter dated 20.3. 1958 made several suggestions and
gave reasons for requirement of the land for the hospital also.
It was, thereafter, that the matter remained under
consideration and lastly on 9.4. 1996 the State Government
gave permission to the Zila Panchayat for construction of the
shops on both the sides of the gate on a parti land having
dimension of 70 x 12 ft.
Learned counsel for the petitioner has drawn the attention of
this Court to the fact that a public interest litigation was
earlier filed challenging the said permission for raising of
construction of the shops aforesaid, which was dismissed and
thereafter C.M.O. Bahraich wrote a letter to the Deputy Chief
Medical Officer on 12.5. 1997 saying that reference be had to
the permission granted by the State Government allowing the
construction of the shops over the land in question and that of
a note to the effect that the public interest litigation filed
against such sanction has been dismissed on
25.4.1997,therefore, necessary cooperation be extended to the
Zila Panchayat for construction of those shops.
Prior to the aforesaid letter of the C.M.O. dated 12.5. 1997,
since the C.M.O. was creating some obstacle in raising
construction, therefore, the State Government issued D.O.
letter on 5.5. 1997 taking cognizance of the aforesaid conduct
of the C.M.O. directed that no hurdle should be created in the
construction of the shops and if any obstacle is created then it
would result into financial loss to the Zila Panchayat, which
is not in its interest.
However, soon thereafter on 14.5. 1997, purportedly in reply
to the D.O. Letter dated 5.5. 1997, the C.M.O. again
restrained the Zila Panchayat from constructing the shops
saying that the land in question must have been vested in the
State Government as a result of the provincialisation of the
hospital and therefore, the shops cannot be allowed to be
constructed.
On 17.12.1996 also the State Government wrote a letter to the
District Magistrate, Bahraich that action be taken in
pursuance of the permission granted on 9.4. 96 and the same
be communicated to the State Government. Again on 2.1. 97
the District Magistrate in response to the aforesaid letter
addressed a letter to the C.M.O. that he may extend
cooperation in the matter of construction of the shops.
Thus, despite the permission granted by the State
Government on 9.4. 96 and repeated directions being issued
in the form of Demi Official letters and circulars, the C.M.O.
though on 12.5. 97 agreed when the challenge to the aforesaid
sanction could not succeed in the writ petition filed as public
interest litigation and directed that full cooperation be given
in making the shops by the Zila Panchayat but within two
days, he passed the order impugned.
The question is, whether there is provincialisation order of
the Qaiserganj dispensary now hospital and whether under
the said order, land in question also stood transferred to the
State Government or that said land still belongs to Zila
Panchayat as has been observed by the State Government in
its permission, would be of little significance in view of the
fact that the State Govt. is supposed to have knowledge of all
the facts and had consciously granted permission to the Zila
Panchayat to make shops over the land in question. This
permission was granted on 9.4. 96. Attention has also been
drawn to the letter dated 25.6. 97, which has been written by
the Director, Medical Health to the C.M.O. saying that the
land belonged to the Govt. and the Govt. has granted
permission to the Zila Panchayat for construction of the
shops, therefore, necessary cooperation be extended.
The fact, therefore, remains that the permission granted by
the State Government has never been revoked nor cancelled,
rather no opposition has been put forward in the writ petition
also on behalf of the State Government, who has not filed any
counter- affidavit . The only counter- affidavit, which has
been filed, is of C.M.O. opposing the writ petition. Zila
Panchayat has filed the counter- affidavit, which supports the
plea of the petitioner.
Even accepting otherwise for the argument sake that the land
stood transferred to the State Government,the State Govt. was
still competent to grant permission for raising such shops/
construction and if such permission is granted by the State
Govt., the officers of the State Govt. may be the Chief
Medical Officer, cannot take a stand, which is directly in
opposition to the order of the State Government. It was for
the State Govt. to consider as to whether permission should
be granted for raising construction of shops in question or not
to grant permission. The State Govt. not only granted
permission after considering the views expressed by the
C.M.O. as far back on 20.3. 58 but repeatedly directed the
C.M.O. and required the District Magistrate to see that no
obstacle is created by the C.M.O. in the matter of
construction of shops but even then the C.M.O. did not allow
the Zila Panchayat to undertake construction.
In the absence of any resistance by the State Govt. in the
matter of construction of the shops over the land in question,
coupled with the fact that the permission has been granted by
the State Govt., itself, which has never been revocked, there
cannot be any authority or right vested with the C.M.O. to
oppose such construction. The order passed by the C.M.O.
dated 14.5.1997 is ,therefore, liable to be quashed, rather his
order for not making construction of the shops, runs contrary
to the permission granted by the State Govt, which cannot be
sustained.
The order passed by the Chief Medical Officer dated
14.5.1997 is, hereby, quashed.
Writ petition is allowed with costs.
Order Date :- 13.1.2010
Sadiq