The Bombay High Court issued certain directions and disposed of a Public Interest Litigation (PIL) filed with a prayer to issue appropriate directions to the Respondents to ensure completion of a hospital in Kausa Mumbra locality falling within the municipal limits of the Municipal Corporation of Thane .
A prayer has also been made to issue a direction to institute an inquiry into the causes of delay in completing the said hospital project and further into the alleged excess expenditure incurred by the Corporation in the said project and to take requisite action against the Officers responsible for such excess expenditure, which according to the Petitioners, appears to have been incurred without the sanction of law.
A study conducted by the Tata Institute of Social Sciences (TISS) in the year 2014 into the health conditions of the citizen living in KausaMumbra highlights the urban paradox wherein on one hand, it has areas that reflect economic prosperity while, on the other, it has areas that are characterized by sub-standard housing and non-availability of amenities to serve basic human needs which is detrimental to the well-being of the inhabitants. The study further highlights that urban slum residents of the area exhibit poorer health characteristics which indicates presence of structural conditions that shape inequalities in health and illness affecting the poorer, especially the vulnerable sections of the society such as infants, young children, elderly and women.
The study also reveals that the four pillars of health, which include promotive, preventive, curative and rehabilitative services delivered by Health Personnel and their support structures are weak in Kausa-Mumbra.
With the insertion of Part IX-A in the Constitution of India on 1st June 1993, the Municipalities or the Urban Local Governance bodies in the country have acquired a constitutional status. Part IX-A not only strengthens the municipalities by raising them to a constitutional status but it also bestows certain responsibilities upon them. Article 243-W mandates the Legislature of a State to vest in the Municipalities, by making law, certain powers, authority and responsibilities which include performance of functions and implementation of schemes as may be entrusted to the Municipalities including those in relation to the matters listed in Twelfth Schedule. One of the functions enlisted in the Twelfth Schedule is “Public Health, sanitization conservancy and solid waste management”. Thus, it becomes a constitutional function and duty of every Municipality to implement the schemes entrusted to it including the schemes in relation to public health as well.
Realizing the statutory and constitutional functions entrusted to the Corporation, a decision was taken in the year 2008 to sanction construction of a 100 bedded hospital in Kausa-Mumbra with an estimated budget of Rs.10 Crores, however, though long period of 15 years has elapsed, the hospital has yet not become fully functional.
It has been averred in the PIL Petition that a fresh proposal to set-up the hospital was approved at an estimated revised cost of Rs.37 Crores and further that a plot comprising of an area of 4.18 Hector was also earmarked/reserved for the said purpose. Further assertion made in the PIL Petition is that no action could be taken for construction of the hospital, and the estimated cost of the hospital was increased to Rs.54.36 Crores and accordingly a resolution to the said effect was passed by the General Body of the Corporation on 20th February 2014.
Pointing out certain alleged irregularities in the process of allotment of work relating to the construction of the hospital, it has been stated by the Petitioners that as against the budget estimate of Rs.54.36 Crores, the work order dated 27th August 2014 was issued for Rs.139.04 crores which has resulted in substantial increase in expenditure, however, the hospital has yet not become functional.
The Division Bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor noted that duty of the State as cast by Article 47 of the Constitution of India has to be taken aid of for giving full meaning to right to life enshrined as fundamental right under Article 21 of the Constitution of India. Right to life does not mean mere animal existence, it will encompass in it the right to live with dignity and if any citizen is deprived of affordable public health services, right to life with dignity cannot be ensured, it will rather be compromised.
Considering a large part of the population of Kausa-Mumbra locality belonging to the disadvantaged and economically weaker sections of the society it becomes duty of the Court to ensure that the citizens of Kausa-Mumbra enjoy the facility of affordable public health services so that their right to life with dignity can be ensured. The study conducted by the TISS, as noticed above, leads us to observe that health of the people of Kausa-Mumbra locality is a cause of grave concern for the Court as also the public authorities. The provisions of Article 243-W read with Twelfth Schedule and Article 21 read with Article 47 of the Constitution of India and various other provisions contained in MMC Act, thus, cast a duty on the municipality i.e. Thane Municipal Corporation to provide public health-care system in a way which is affordable and accessible to all irrespective of their socio-economic condition.
At this juncture, the Court referred to Resolution No.750, dated 3rd March 2022 passed by the Respondent Corporation which in no uncertain terms reflects the resolve of the Municipal Corporation to in fact discharge the duty cast upon it and provide free medical services for the poor and to those who do not have yellow and orange ration card and also other patients, who are habitants of Thane Municipal Corporation area. The relevant portion (from a translated copy) of the said Resolution has already been referred by us above in paragraph 19 of this judgment.
Thus, in view of the aforesaid resolution, the Court held that it is incumbent upon the Corporation to translate the aforesaid Resolution into action. This would therefore necessarily mean that the Corporation would have to ensure that any medical facility and/or public health-care system which is to be evolved by the Municipal Corporation is to necessarily provide free medical aid/treatment for the poor within the Thane Municipal Corporation limits. The fact that the hospital is to be run on the basis of a PPP model would not make any difference since (a) the same is admittedly a Municipal Hospital built entirely from public funds and (b) the Resolution itself provides that the Municipal Corporation will reimburse the private partner as per the fixed rate ascertained by the Municipal Committee.
However, the exception being taken by the Petitioners to the decision of the Respondent Corporation to run the hospital on PPP model, in the Court’s considered opinion, is not tenable. It is a policy matter, decision in respect of which has to be necessarily left to the Corporation and such a decision, since falls in the executive realm, need not be interfered with by the Court.
The PIL petition is disposed of by the High Court with the following directions:
“a) The Respondent – Corporation is directed to run the subject hospital ensuring that the decisions taken by it as embodied in its Resolution No.750 dated 3rd March 2022 are complied with in letter and spirit.
b) Any Agreement entered into by the Respondent – Corporation to run the Hospital on a PPP model would therefore necessarily have to be in conformity with Resolution No. 750 dated 3rd March 2022 to the extent that the same would inter alia require free medical services to be given to the poor and those who do not have yellow and orange cards and other patients.
c) The Petitioners are permitted to make an appropriate application / representation to the Principal Secretary of the State Government in the Department concerned in respect of the alleged irregularities said to have been committed in the process of construction of the hospital building which allegedly has resulted in cost escalation and favouritism causing unnecessary burden on the State exchequer, as averred in the PIL Petition, which shall be considered and an appropriate decision which may be warranted under Law, may be taken by the State Government at its discretion.”