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2010 DIGILAW 194 (CHH)

Ashok Kumar Gupta v. State of Chhattisgarh

2010-08-05

SATISH K.AGNIHOTRI

body2010
ORDER Satish K. Agnihotri, J. 1. W.P. Nos. 1241, 1348 and 1794 of 2002 involve the common question of law and facts and, as such, they are being disposed of by this common order. 2. Challenge in these batch of petitions is to the letter dated 13-3-2002 (Annexure P-l) whereby according to the learned Counsel appearing for the petitioners, the petitioners, who are not admitting any in-patient or not maintaining a hospital or nursing home, have been directed to obtain license under the provisions of the Mental Health Act, 1987 (for short "the Act, 1987"). 3. Case of the petitioners, in short, is that the petitioners are Psychiatrists and according to the petitioners, they are having clinics and are not running psychiatric hospitals or psychiatric nursing homes and, as such, they are not required to obtain license. Even the impugned letter dated 13-3-2002 is also clear on this aspect that psychiatric hospitals or psychiatric nursing homes are required to obtain license from the Competent Officer. Despite the clear language of the letter, the authorities are raiding all the clinics including those clinics where in-patients are not admitted and are not running psychiatric hospitals or psychiatric nursing homes, directing them either to close or obtain license from the Competent Officer. Thus, these petitions. 4. Shri Pali, learned Counsel appearing for the petitioners, submits that psychiatric hospital or psychiatric nursing home is defined under Section 2 (q) of the Act, 1987. Shri Pali further submits that except Dr. Prakash Narayan Shukla (petitioner No. 3 in W.P. No. 1241 of 2002), who is running psychiatric nursing home, all other petitioners are not having either the psychiatric hospitals or psychiatric nursing homes, as defined under the provisions of the Act, 1987. Thus, the petitioners are not required to obtain any license under the provisions of the Act, 1987. The requirement of the license is also contemplated under the provisions of the Act, 1987 in case of psychiatric hospitals or psychiatric nursing homes. 5. Shri Bhatia, learned Deputy Government Advocate appearing for the State, submits that the psychiatrist, who has clinic or does not run psychiatric hospital or psychiatric nursing home, is also required to obtain license from the Competent Officer. 5. Shri Bhatia, learned Deputy Government Advocate appearing for the State, submits that the psychiatrist, who has clinic or does not run psychiatric hospital or psychiatric nursing home, is also required to obtain license from the Competent Officer. Shri Bhatia, placed reliance upon the direction of the Supreme Court passed in W.P. (C) No. 334 of 2001 In Re : Death of 25 Chained Inmates in Asylum Fire in Tamil Nadu v. Union of India and Ors. 6. Shri Marhas, learned Counsel appearing for the Medical Council of India and Shri Pradhan, learned Counsel appearing for the Union of India, fairly submit that all the psychiatrists are not required to obtain license under the provisions of Sections 6 and 7 of the Act, 1987 unless they establish or maintain a psychiatric hospital or psychiatric nursing home. The basis of running of psychiatric hospitals or psychiatric nursing homes is for treatment of mentally in-patient not an out patient. Shri Pradhan, relying upon the averments made in Para 9 of the return, further submits that the State Mental Health Rules, 2002 of Chhattisgarh has not been received by the Central Government [as required under Section 94(2) of MHA, 87] for their approval. 7. I have considered the submissions made by the learned Counsel appearing for the respective parties, perused the pleadings and the documents appended thereto. 8. Para 2 (iii) of the order dated 12-4-2002 passed by the Supreme Court in the case of In Re : Death of 25 Chained Inmates in Asylum Fire in Tamil Nadu (supra), reads as under: 2. (iii) How many unregistered bodies, by whatsoever name called, purporting to offer psychiatric/mental health care exist in the State on date of this order and whether any of them comply with minimum standards and are entitled to grant of license and if not, whether steps have been taken to close down the same. 9. The reliance of Shri Bhatia is misplaced. Either it is not understood by the officers properly or they are misdirected. There is no requirement in this para to ask for license from all the psychiatrists, contrary to the provisions of the Act, 1987. The Supreme Court was considering the matter wherein there were in-patients in the hospital and no care was taken, which led into the death of 25 inmates. There is no requirement in this para to ask for license from all the psychiatrists, contrary to the provisions of the Act, 1987. The Supreme Court was considering the matter wherein there were in-patients in the hospital and no care was taken, which led into the death of 25 inmates. In the case on hand, the clinics do not admit any in-patients for treatment or for convalescent. It is only for advise given to out-patients. 10. Section 6 of the Act, 1987 provides for establishment or maintenance of psychiatric hospitals or psychiatric nursing homes only with licence. Section 7 provides for application for licence and Section 8 provides for grant or refusal of licence. In all the cases, only psychiatric hospitals or psychiatric nursing homes are required to obtain a licence, as the same cannot be established or maintained without proper licence granted under the provisions of Sections 6 and 7 of the Act, 1987. 11. Section 2(q) of the Act, 1987 defines the psychiatric hospitals or psychiatric nursing homes, which reads as under: 2. (q) 'psychiatric hospital' or 'psychiatric nursing home' means a hospital or, as the case may be, a nursing home established or maintained by the Government or any other person for the treatment and care of mentally ill persons and includes a convalescent home established or maintained by the Government or any other person for such mentally ill persons; but does not include any general hospital or general nursing home established or maintained by the Government and which provides also for psychiatric services. 12. According to the response filed by the Union of India as well as Medical Council of India, it is also clear that the license is required only by psychiatric hospitals or psychiatric nursing homes, as defined under Section 2 (q) of the Act, 1987. Thus, it is made clear that all clinics, which are not admitting in-patients for treatment or for convalescent, would not be required to obtain license under the provisions of the Act, 1987. Thus, the Government cannot force any psychiatrists, who are not having the above conditions, to obtain license from the Competent Officer, which is illegal and unauthorized. 13. With the aforesaid observations and directions, all the writ petitions stand disposed of.