Research › Search › Judgment

J&K High Court · body

2002 DIGILAW 373 (JK)

Mohd. Yousuf Tarighami v. State Of J. &K.

2002-12-02

B.L.BHAT, T.S.DOABIA

body2002
1. Petitioner in writ petition 212/2001 represented and still represents Kulgam Constituency in the Jammu and Kashmir State Legislative Assembly. He has filed this litigation and has espoused the cause of the public which is likely to benefit the population of Kulgam Constituency in particular and the district of Anantnag in general. The second writ petition which has been ordered to be listed alongwith the writ petition 212/2001 has been filed on the same subject by the inhabitants of Kulgam. Both these writ petitions shall stand disposed of vide this common judgment. 2. The grievance as projected by the petitioner in OWP 212/2001 be noticed: 3. As per the petitioner, there was a persistent demand by the inhabitants of Kulgam in the district of Anantnag that the State Government should construct a sub-District Hospital. This was because of the multifarious problems faced by the local population of the said area. It was represented that it is inconvenient for the residents of Kulgam and the surrounding area to rush to the district hospital. According to the petitioner, they were not getting proper medical assistance even at the district level. As a matter of fact, the State administration agreed to have a sub-district hospital at Kulgam and some positive measures were taken in this regard; this was in the year 1997. This is adverted to in para 6 of the writ petition. Still later, a communication copy whereof is Annexure-A, was addressed by the Deputy Director, Health Service, Kashmir to the Deputy Commissioner for the district of Anantnag. The subject matter of this communication was to acquire land for construction of a Sub-district hospital at Kulgam. A perusal of this letter makes it apparent that there was a proposal to release a sum of Rs.50 lacs during the financial year 1997-98 and 1998-99, and as a matter of fact, it is mentioned that a sum of Rs.30 lacs stood released for purchase of land for Sub-District Hospital at Kulgam. Communication Annexure-A is relevant and is being reproduced below:- Sub:-Acquisition of land for Sub-District Hospital. Kulgam. Ref- Your letter No. 533-LA dl. 20-06-2000. Sir, On the above quoted letter and subject whereunder you have mentioned that only Rs.30.00 lacs have been released for purchase of land for Sub-District Hospital. Communication Annexure-A is relevant and is being reproduced below:- Sub:-Acquisition of land for Sub-District Hospital. Kulgam. Ref- Your letter No. 533-LA dl. 20-06-2000. Sir, On the above quoted letter and subject whereunder you have mentioned that only Rs.30.00 lacs have been released for purchase of land for Sub-District Hospital. Kulgam when Rs.50.00 lacs have been released during 1997-98 and 1998-99 vide order No. 24-DHSK-Plau 98-99 of 1998 dt.28-10-1998 and order No. 156-DHSK-Plan-97-98 of 1999 dt.03-02-1997. Under order No. 156-DHSK-Plan-97-98 of 1997 dated: 03-12-1997 Rs.40.00 lacs stand released for acquisition of land for Emergency Hospital Qazigund and Sub-District Hospital Kulgam (Rs.20.00 lacs each for Kulgam and Qazigund) and under order No. 24-DHSK-Plan-98-99 of 1998 dated: 28-10-1998 and Rs.30.00 lacs were released for Sub-District Hospital Kulgam only, which aggregates to Rs.50.00 lacs for Sub-District Hospital Kulgam for purpose of land. You are as such requested to meet out the expenditure accordingly and return the balance amount of Rs. 1.05 lacs. Yours faithfully, Sd/- (Dy. Director (P&S) Health Service, Kashmir." 4. Yet another communication dated: 14th July, 2000 is being adverted to. In this, the Director Health Service, Kashmir, has reiterated its decision to have a special allocation for five hospitals. The Sub-District Hospital at Kulgam is mentioned at Sr. No. 1. Another communication dt.20th July, 2000 has been placed on the record as Annexure-Bl. In this, the amount allocated for Sub-District Hospital, Kulgam is Rs. 600.00 lacs. The relevant entry is being reproduced below:- 3. Pry. Health Centres: (Tentative cost) (Rs. in lacs) (IT) Works ....... (d) Sub-Distt. Hosp. Kulgam 600.00" 5. Petitioner makes mention of another communication dated: 28th Oct. 1998. This has been placed on the record as Annexure-C, Vide this letter, sanction has been accorded for release of an amount of Rs. 30.00 lacs in favour of District Development Commissioner, Annulling, for acquisition of additional land measuring 46 kanals for Sub-District Hospital at Kulgam. Yet another communication dated: 1st Nov., 2000, has been relied upon by the petitioner. A perusal of the said communication makes it apparent that the Director Health Services was planning to construct a Sub-District Hospital at Kulgam and for this purpose 50 kanals of land, it is mentioned stands already acquired. This communication has been addressed to the Managing Director, Jammu and Kashmir Project Construction Corporation, Srinagar. A perusal of the said communication makes it apparent that the Director Health Services was planning to construct a Sub-District Hospital at Kulgam and for this purpose 50 kanals of land, it is mentioned stands already acquired. This communication has been addressed to the Managing Director, Jammu and Kashmir Project Construction Corporation, Srinagar. In this it has mentioned that the Project report is to be made available for the construction of Sub-District Hospital at Kulgam. Another communication of the same date i.e. 1st Nov. 2000 has been addressed to the District Development Commissioner, Anantnag, by the Director Health Services. Kashmir. This communication has been placed on the record as Annexure-F. This communication requires the District Development: Commissioner, Anantnag to handover the land which has been acquired for construction of Sub-District Hospital at Kulgam. It has further been mentioned in this letter that an amount of Rs. 50.00 lacs stands already paid by the concerned department. Reference may also be made to another communication dated: 18th Oct. 2000 (Annexure-G). This makes mention of the fact that a total amount of Rs. 50.00 lacs stands already released. This communication, in so far as relevant is being reproduced below:- "The Distt. Dev. Commissioner. Anantnag. No. PLG-319/2293-94 dated: 18-10-2000 Subject:- Acquisition of land for Sub-District Hospital Kulgam. ...... A total amount of Rs.50.00 lacs stands already released in your favour viz Rs. 20.00 lacs during 1997-98 vide order No. 150-DHSK-Plan-1997-98 of 1997 and Rs.30.00 lacs during 1998-99 vide order No. 24-DHSK-Plan-1998-99 of 1998 dated: 28-10-1998...." 6. The petitioner submits that when all these steps taken then why no concrete step so far as the construction of the said hospital is concerned has been taken is not understandable. It is precisely for this reason, he has invoked the jurisdiction of this Court. 7. So far as the connected writ petition i.e. OWP No. 213/2001 preferred by the inhabitants of Kulgam is concerned, the grievance as projected is the same. On 16th May, 2002, the Government Advocate had put in appearance. He was furnished with the copy of the petition and was directed to file reply to the writ petition. On 19th Sept. 2002, an interim order was passed by this Court. On 16th May, 2002, the Government Advocate had put in appearance. He was furnished with the copy of the petition and was directed to file reply to the writ petition. On 19th Sept. 2002, an interim order was passed by this Court. For facility of reference, this is being reproduced below:- "State is directed to place on record the following details:- a) When a decision was taken to erect a Hospital building for the people at large. b) When the plans were approved. c) When the State Government approached Financial authorities for financial aid. d) When the State is likely to acquire remaining land for the purpose of hospital. e) When the State is likely to commence the work of erection of hospital. After the details are furnished, we may call upon the State to furnish other details. The Stale shall also place on record the decision taken for payment of Rs.30.00 lacs to the land owners earlier. The State shall also place on record explanation as to why State though it fit to make payment of the amount to the land owners by private negotiations despite the fact that State had no fund to start with the erection of the building or even when State was not able to get possession of remaining land for construction of building. These details shall be placed on record on 25th instant without fail. The State shall also consider the responsibility for the cost of interest on the amount paid to the land owners because of non-planning of construction for the Hospital.� Yet another order was passed by this Court on 25th September 2002. This is also relevant and is reproduced below:- "Today before us an affidavit of Director. Health Service. Kashmir is placed on record. Reading the same it appears that on 06-10-1997 in a meeting of District Development Board presided over by Hon™ble Chief Minister a decision was taken to acquire land for construction of Sub-District Hospital at Kulgam. It is further stated that in the said meeting acquisition of land was approved and first instalment of Rs.20.00 lacs came to be provided by the Planning and Development Department for acquisition of land in the year 1997-98. The plans for construction of Sub-District Hospital were approved by the Director, Health Services, Kashmir, during the year 2001 -2002. It is further stated that in the said meeting acquisition of land was approved and first instalment of Rs.20.00 lacs came to be provided by the Planning and Development Department for acquisition of land in the year 1997-98. The plans for construction of Sub-District Hospital were approved by the Director, Health Services, Kashmir, during the year 2001 -2002. The Commissioner has come out with the case that on account of delay in acquiring the additional plot of land, plans could not be approved. It is further stated that out of 46 kanals and 19 marlas only 30 kanals have been acquired in the year 2001-02. As fund for 30 kanals alone were approved and the decision was taken in District Development Board meeting at Anantnag in the year 2001 for the construction of the Hospital, It is stated that State Government relies on the funds that may be provided by NABARD. It is also stated that sum of Rs.401.13 lacs will be required approximately for construction of Hospital and to acquire the additional land measuring 16 kanals and 19 marlas. Reading this affidavit, it clearly transpires that there is nothing like planning. Ordinarily, the decision will be taken to erect a particular building for which the plans are required to be made in advance. It is on the basis of the requirements, the plans will be prepared or approved and after the same are approved, further action is required to be taken. But in the instant case, decision was taken on 16-10-1997 for construction of Hospital and plans were approved in 2001-02. It appears that the State authorities acquired land and paid huge amount to some of the land owners, totalling Rs. 30.00 lacs in April-July 1998. The receipts are placed on record at Annexure-E to the writ petition. What was the urgency in parting with the funds when plans were not approved? Today what is the position of land is not known to the Department. That apart, learned Additional Advocate General appearing for the respondents has drawn out attention towards Annexure-G which is a letter dated: 18-10-2000 addressed to District Development Commissioner, Anantnag, by the Director, Health Services, Kashmir. On reading that it transpires that District Development Commissioner was informed about the fact that a sum of Rs. 50.00 lacs stands already released for acquiring the additional land in 1998-99. Thus, in all Rs. On reading that it transpires that District Development Commissioner was informed about the fact that a sum of Rs. 50.00 lacs stands already released for acquiring the additional land in 1998-99. Thus, in all Rs. 50.00 lacs were at the disposal of District Devetopment Commissioner, Anantnag. To our surprise about Rs.30.00 lacs, it is stated that on account of cash crunch of the State, grant of 30.00 lacs came to be lapsed. No date is indicated about lapse but one thing is certain that, if the State was not able to provide sufficient funds, there was no fun in parting with huge amount for purchase of land. Deponent, District Development Commissioner, Anantnag, Shri Bashir Ahmad Rounyal has Stated in his affidavit dated: 27-08-02 that sum of Rs. 30.00 lacs only were available and also paid to interested persons. It is also stated that possession of land was also delivered to the indenting department i.e. Health Services. State has not filed any affidavit indicating as to who is responsible for the cost of interest on the amount paid to the land owners and for non-planning of the construction. We adjourn this matter to Saturday i.e. 28-09-2002. Learned Advocate for the petitioner shall place on record the present position of the land. It was expected from the State to state before the Court the actual use of The land...." 8. The facts as enumerated above have been taken from OWP No. 212/2001. In this petition, objections have been preferred by respondents 1. 2, and 5. What is said in the objections be taken note of: 9. It is admitted by the respondent State that vide communication No. PLG/DHS/ 319/4224-31 dated: 1st February 2001, the Health Department through Director Health Services. Kashmir, requested the District Development Commissioner, Anantnag, to hand over the land to the department. It is stated that an amount of Rs. 50.00 lacs stood transferred to the District Development Commissioner, Anantnag. This is stated in para (i) of the objections. What is of serious concern is the stand taken in sub para (ii). It is submitted that District Development Commissioner. Anantnag has Stated that the funds to the time of Rs. 30.00 lacs stood lapsed due to cash crunch of the State. It is submitted that the Director Health Services, Kashmir requested the Administrative Department vide its letter dated: 24th July 2001 to arrange Rs. It is submitted that District Development Commissioner. Anantnag has Stated that the funds to the time of Rs. 30.00 lacs stood lapsed due to cash crunch of the State. It is submitted that the Director Health Services, Kashmir requested the Administrative Department vide its letter dated: 24th July 2001 to arrange Rs. 30.00 lacs on priority basis and place the same at the disposal of District Development Commissioner, Anantnag so that the land is acquired for the construction of the hospital. In para (iii), it is submitted that steps with a view to start construction of the building for the hospital would be taken only after the land is acquired and transferred to the Health Department. A further plea has been taken that the averments which remain un-replied be treated as ˜incorrect™. 10. So far as writ petition OWP No. 213/2001 is concerned, this as indicated above, has been preferred by the inhabitants of Kulgam in the district of Anantnag and they have made the same prayer as has been made by their elected representative. 11. It be seen that the need to have a hospital was found to be justified. The land which was required was indicated and the funds for the purpose of acquiring this land were allocated. Once the funds were altocated, then these should have been utilized for the purpose these were meant for. However, a reason has been given that on account of cash crunch of the State, the funds to the tune of Rs. 30.00 lacs stood lapsed. This plea of the respondents is not justified. Once the funds were made available for a particular purpose, then, as indicated above, these should have been used for that purpose only. As a matter of fact, this aspect of the matter stands noticed by this Court in the interim orders passed on 19th Sept. 2002 and 25th Sept. 2002, which stand reproduced above. After these orders were passed, no further stand has been taken by the State. There is thus merit in the submission made by the petitioners. The fact that respondent State had allocated a sum of Rs. 50.00 lacs in terms of the Annexures noticed above and which fact stands noticed in the interim order passed by this Court and more particularly in the order passed on 25th Sept. 2002, cannot be ignored. There is thus merit in the submission made by the petitioners. The fact that respondent State had allocated a sum of Rs. 50.00 lacs in terms of the Annexures noticed above and which fact stands noticed in the interim order passed by this Court and more particularly in the order passed on 25th Sept. 2002, cannot be ignored. It is settled law that when a communication is sent by a Competent Authority and it is made public and is duly published, then it assumes the shape of a Government order and it has to be observed in letter and spirit. The Supreme Court of India in the case reported as Bachitar Singh Vs. State of Punjab. AIR 1963 SC 395, has observed in categoric terms that for a valid order, communication of the same to the person concerned is a must. This aspect of the matter stands clearly established, and therefore, the communication addressed by the State Government to the subordinate therarchy shall have to be given effect to. Another aspect of the matter which is of equally importance is that once a decision has been taken by the competent authority, then that decision cannot be altered by an authority subordinate to it or for I lull matter even by any authority having coordinate jurisdiction. The view, expressed by the Privy Council in the case of Secretary™ of State AIR 1937 PC can be cited in this regard. What was observed is being quoted below:- "..... In these circumstances, the case becomes a case in which after Government officials duly competent and duly authorized in that behalf have arrived honestly at one decision, their successors in office, after the decision has been acted upon and is in effective operation, purport to enter upon a reconsideration of the matter and to arrive at another and totally different decision. It seems to require no demonstration that an order purporting to remove the appellant from the service at a lime when, .as their Lordships hold he had for some months duly and properly ceased to be in the service was a mere nullity and cannot be sustained. It follows that in their lordship™s view (he appellant had. and has every right to complain of the stoppage of the pension as a breach of the rules relating to pensions." 12. It follows that in their lordship™s view (he appellant had. and has every right to complain of the stoppage of the pension as a breach of the rules relating to pensions." 12. We would also like to draw the attention of respondents to the preamble of the Constitution of Jammu and Kashmir. The people of Stale of Jammu and Kashmir did resolve to secure for themselves justice in the social, economic and political fields. The social justice without proper provisions for health care would remain a mirage and a distant dream. Section 19 of the State Constitution provides that the State shall within the limits of its economic capacity and development, make effective provision for securing the health and strength of workers, men and women and the tender age of children are not abused. Section 19 sub-Section (b) is reproduced below:- "19. Right to work and to public assistance in certain cases.- The State shall within the limits of its economic capacity and development, make effective provision for securing- "(b) That the health and strength of workers, men and women and the tender age of children are not abused and that permanent residents are not forced by economic necessity to enter avocation unsuited to their sex, age or strength." 13. Section 21 provides a right to the children to have a happy childhood with adequate medical care and attention. Section 22 of the State Constitution deals with the rights of women. Sub-Section (b) deals with making provisions for adequate medical care. Section 24 enjoins upon the State, duly to improve public health. These provisions i.e. Sections 21, 22 (b) and 24 are being reproduced below :- "21. Rights of children.- The State shall strive to secure (a) to all children the right to happy childhood with adequate medical care and attention; and (b) to all children and youth equal opportunities in education and employment, protection against exploitation and against moral or material abandonment." 22. Rights of women.- The State shall endeavour to secure to all women- (a) ..... (b) the right to maternity benefits as well as adequate medical care in all employments......." 24. Duty of the State to improve public health. Rights of women.- The State shall endeavour to secure to all women- (a) ..... (b) the right to maternity benefits as well as adequate medical care in all employments......." 24. Duty of the State to improve public health. The State shall make every effort to safeguard and promote the health of the people by advancing public hygiene and by prevention of disease through sanitation, pest and vermin control, propaganda and other measures, and by ensuring widespread, efficient and free medical services throughout the State and, with particular emphasis, in its remote and backward regions." 14. When Section 19 confers upon the State Subjects a right and the only limit is that the State should have economic capacity and once the State demonstrates that it has an economic capacity, then, this right can be enforced. In the present case, the State did exhibit its economic capacity and wanted to construct a hospital. Funds were provided: they were, however, not utilized for the purpose they were so provided, Thus a right which came to vest in the petitioner and the inhabitants of Kulgam in the district of Anantnag stands violated. This requires to be enforced. 15. We are accordingly of the view: i/ That a valid decision was taken by the State Government to allocate funds to the extent of Rs. 50.00 lacs for the construction of a Sub-District Hospital at Kulgam and the land which was to be utilised for the hospital was clearly earmarked, and as a matter of fact, a sum or Rs. 30.00 lacs was to be spent for acquisition of land; ii/ That once a decision was taken by the State Government and that decision was communicated to the subordinate authorities and was made public, then that decision was supposed to be respected and it could not be altered by an authority subordinate to the authority which issued the order or for that matter, even by the authority which had issued the order; iii/ That the order is issued by the State Government, the rights of the citizens and the State Subjects are in a fluid situation but once a decision is taken then their rights stand crystalised and these can be enforced; iv/ That Section 19 (i) (b) clearly lays down that the health and strength of workers, men and women and tender age of children is to be protected. This Section is in the form a right and once this right got crystalised and came out of the bar envisaged by Section 19 and once the economic capacity of the State stood determined, then this right can well be enforced. The State is accordingly directed to fulfil its commitment and provide for the funds now. This shall be done within a period of two months from the date, a copy of this order becomes available to the State. Once the copy of this order becomes available, then a sum of Rs. 50.00 lacs would be made available to the concerned authorities for taking in hand the construction activity so far as the Sub-District Hospital at Kulgam is concerned. It is only after making a concrete provision in this regard, any other expenditure would be incurred for any development work in the district of Anantnag. It is also made clear that in case, these funds are not made available within the above stipulated period, then this much amount would be a charge on the State funds and this charge would discharged before any other amount is incurred by the State Government. The aforementioned directions have been given keeping in view the fact that the funds which were made available for a public purpose more than three years ago have not been utilized for that purpose and have been utilized for a purpose qua which no information has been given by respondents to this Court even though, positive directions were given in the interim orders passed by this Court. Disposed of accordingly.