Hon'ble Dr. KOTHARI, J.—The defendant-appellant, Rajasthan Medicare Relief Society, Bikaner has preferred this second appeal against the decree of the suit filed by the plaintiffs-respondents Rajesh Gulati and Vivek Sharma, who challenged the levy of registration fees of Rs.5/- for indoor patients and Rs.2/- for outdoor patients in Government Hospital at Bikaner known as P.B.M. Hospital, which was imposed by the appellant-Society, a Society registered under the provisions of Societies Registration Act, 1958, inter alia, on the ground that the same amounted to public nuisance as envisaged under Section 91 of Civil Procedure Code. 2. The learned trial court of Additional Civil Judge (Senior Division) No.4, Bikaner dismissed the suit No.57/2001 -Rajesh Gulati & another vs. State of Rajasthan & others on 12.01.2005 by a 16 pages judgment, holding that the defendant – Rajasthan Medicare Relief Society was entitled to charge the said Registration fees, as it was incorporated to provide the diagnostic facilities in the said hospital and other Government hospitals at various places in the State of Rajasthan at concessional rates or subsidized rates and to recoup the deficit, inter alia, was also entitled to charge the said registration fees from all the indoor and outdoor patients, while exempting those who are incapable of paying such Registration fees being Below Poverty Line or in the categories of widows, accidental cases, arrested persons or senior citizens over 70 years of age etc. 3. The first appeal filed by the plaintiffs, however, came to be allowed by the learned First Appellate Court of Additional District Judge No.2, Bikaner, who allowed the Appeal No.63/2008 – Rajesh Gulati and another vs. State of Rajasthan and others by its judgment dated 04.04.2009 and decreed the suit and held that the defendant – Society was not entitled to charge the said registration fees. 4. Being aggrieved by the said Appellate Court's Judgment and Decree, the defendant – Rajasthan Medicare Relief Society has preferred this Second Appeal before this Court under Section 100 of Civil Procedure Code. 5. By the consent of the learned counsels, the appeal was heard finally at the admission stage and is being disposed of by this Judgment. 6. 4. Being aggrieved by the said Appellate Court's Judgment and Decree, the defendant – Rajasthan Medicare Relief Society has preferred this Second Appeal before this Court under Section 100 of Civil Procedure Code. 5. By the consent of the learned counsels, the appeal was heard finally at the admission stage and is being disposed of by this Judgment. 6. The substantial question of law, which arises in the matter and is being considered is as under: “Whether the appellant-defendant Society is entitled to charge registration fees from indoor and outdoor patients in P.B.M. Hospital, Bikaner and whether such registration fees amounts to a public nuisance within the meaning of Section 91 of Civil Procedure Code ?” 7. Learned counsel for the appellant-defendant, Mr. J.P. Joshi, Senior Advocate urged that the defendant-Society is registered with the Corpus Fund provided by the State Government and the objective of the said Society is to provide diagnostic facilities at the Government Hospitals at concessional rates to poor people and the appellant – Society is governed by the Societies Registration Act, 1958. He urged that the exemption to poor people and patients of specified categories like widows, orphans or persons which are living Below Poverty Line, the registration fees in question was granted and the appellant – Society was authorised to collect such registration fees from all indoor and outdoor patients under its order dated 28.12.1996 (Ex.A/5) and the State Government had duly authorised to constitute the said Societies at various places in the State of Rajasthan under the Circular Ex.A/1 dated 16.09.1995. He urged that the fees in question is being charged to subsidize and recoup the cost of concession or discount provided on diagnostic facilities provided to the patients coming to such Government Hospitals like Blood Test, Cat Scan, Ultra-sonic (Sonography), MRI etc. and under the bye-laws, the defendant Medicare Society, which is funded by the State Government, is entitled to charge such registration fees under Rule 3 of the Finance Rule in Part-2 of the Rules of 2007, published by the Health and Welfare Department of the State Government. and under the bye-laws, the defendant Medicare Society, which is funded by the State Government, is entitled to charge such registration fees under Rule 3 of the Finance Rule in Part-2 of the Rules of 2007, published by the Health and Welfare Department of the State Government. He urged that the defendant – Society is not a profit making institution and the objectives of the Society are to provide medical assistance to the various patients in the Government Hospitals and to recover the cost, besides charging subsidized rates from the indoor and outdoor patients, who require such diagnostic facilities, the registration fees from all the indoor and outdoor patients, except persons belonging to poor category and specified categories, is charged to recover such deficit of finance and consequently the learned Appellate Court has erred in reversing the well-reasoned judgment of the trial court and decree the suit for injunction under Section 91 of Civil Procedure Code. 8. Assailing such order of the First Appellate Court, Mr. J.P. Joshi, urged that the charging of the registration fees for regulating the entries of the patients, cannot amount to public nuisance in any manner or by any stretch of imagination and consequently, the learned Appellate Court has grossly erred in decreeing the suit and injuncting the appellant-defendant not to charge such fees. However, he submitted that under the interim orders of this Court granted on 26.05.2009 by a co-ordinate Bench of this Court, the present procedure in providing relief namely charging of the aforesaid registration fees is continuing and he submitted that the same deserves to be upheld. 9. Learned Additional Advocate General, Mr. R.L. Jangid, Senior Advocate supported the contentions of Mr. J.P. Joshi and submitted that levy of registration fees is valid and duly authorised by the State Government and, therefore, the suit filed by the plaintiffs-respondents, deserves to be dismissed. 10. On the other hand, learned counsel for the plaintiffs – respondents, Mr. 9. Learned Additional Advocate General, Mr. R.L. Jangid, Senior Advocate supported the contentions of Mr. J.P. Joshi and submitted that levy of registration fees is valid and duly authorised by the State Government and, therefore, the suit filed by the plaintiffs-respondents, deserves to be dismissed. 10. On the other hand, learned counsel for the plaintiffs – respondents, Mr. S.D. Vyas, supported the impugned judgment and decree of the First Appellate Court and while assailing the locus of the Appellant – Society, who has preferred this appeal through its President, Principal and Controller of the P.B.M. Medical Hospital, Bikaner, he urged that the said Society even did not file its written statement before the Trial Court and nor anyone appeared in the witness box on its behalf and, therefore, the decree cannot be assailed by it, particularly through the Principal and Controller of the Medical College. He also submitted that the registration fees in question, charged from all the indoor and outdoor patients, is neither a fees nor a tax and the defendant – Medicare Society is not entitled to charge either. He submitted that by an Office Order Ex.A/5 dated 28.12.1996, the said registration fees could not be charged by the defendant – Society and it definitely amounts to public nuisance. He submitted that under the Constitution, the State Government is under obligation to provide free medical aid to all the patients, therefore, charging of the entry fees in the form of registration fees from all the indoor and outdoor patients, cannot be justified. He also submitted that the patients, who require the diagnostic facilities provided by the defendant – Society, are even otherwise paying the requisite fees for such facility availed by them and, therefore, there is no justification for charging the said registration fees. He, therefore, strongly supported the decree and judgment of the First Appellate Court and submitted that the present second appeal of the defendant – Society really does not involve any substantial question of law and even if one arises, the same deserves to be answered against the defendant – Society. 11. I have heard learned counsels at length and perused the record and judgments of the two courts below. 12. 11. I have heard learned counsels at length and perused the record and judgments of the two courts below. 12. The question relating to registration fees charged from the indoor and outdoor patients @ Rs.5/- and Rs.2/-per person respectively, deserves to be examined in the light of the objective, constitution and character of the defendant – Medicare Relief Society. 13. A perusal of the bye-laws of the Society, which is registered under the provisions of Societies Registration Act, 1958, indicates that the said Society has been constituted to provide medical relief to the patients in Government Hospitals at concessional rates and to operate the Drug Stores to provide medicines at subsidized rates and to provide free medicines to specified categories of poor people living Below Poverty Line, widows, Senior Citizens, Orphans etc. The said Society has been mainly funded by the State Government itself and Clause 10 of its bye-laws, permits it to collect donations, fees, grant-in-aid and other aids from other sources, besides government subsidy for carrying out its objectives. Clause 12 provides for regular audit of its account maintained. Thus, it can be seen that this Medicare Society is not a private profit making organisation, but is a Society, which works on no profit no loss basis and is intended to provide concessional medical assistance to the patients, who visit or are admitted in the Government Hospitals. The charging of the registration fees from outdoor and indoor patients at nominal rate of Rs.2/- and Rs.5/- per person respectively is obviously to regulate the entry into the Government Hospitals and also to recoup the deficit on account of concessional rates for diagnostic facilities provided by the defendant – Society. It is like a toll tax, charged from all vehicles passing through the toll roads to recoup the cost. The Society is not expected to run on deficit nor the State Government is expected to provide all the funds required for providing the diagnostic facilities. It is like a toll tax, charged from all vehicles passing through the toll roads to recoup the cost. The Society is not expected to run on deficit nor the State Government is expected to provide all the funds required for providing the diagnostic facilities. It is true that the Government has the constitutional duty to provide free medical aid and treatment to its citizens, but at the same time, the diagnostic facilities provided through advance plant and machinery, equipments, which cost heavily, the finance incurred for such plants and machineries have to be taken care of and short-fall besides the fund provided by the State Government, can be permitted to be recouped through persons, visitors, indoor and outdoor patients, who are availing the services in the Government Hospitals. 14. The fees in question is not only nominal, but the poor class of people have already been exempted from such levy and, therefore, it cannot be said to be atrocious or unreasonable levy of fees for which there is no quid pro quo. It has been well settled by various judgments of Hon'ble the Supreme Court that while determining the validity of such levy of fees, the mathematical equation of fees paid and benefit derived, need not be established and in the absence of any such mathematical equation also, the fees levied does not partake the character of tax. If such services are provided for levy of fees, the quid pro quo exists and the levy cannot be struck down. In the present case, admittedly the facilities provided by the appellant – Society in the form of diagnostic facilities in the Government Hospitals at concessional rates and the objectives for which it has been created, are not in dispute. The fact is that they are providing such facilities at concessional rates, therefore, passing on the part of the burden and deficit on indoor and outdoor patients who visit such Government Hospitals, cannot be said to be an unreasonable levy, much less a “public nuisance” requiring its redressal in a Court of Law within the meaning of Section 91 of Civil Procedure Code. 15. 15. The learned trial court in Para 17 of its judgment had rightly observed that if such registration fees is not charged, the defendant – Society would not be able to provide the diagnostic facilities at the concessional rates and in that case, the patients, who require such diagnostic facilities, would be deprived of the same and, therefore, the registration fees in question, which goes to meet the part of the cost of providing such diagnostic facilities, cannot be said to be unconstitutional in law and consequently, the contention of the plaintiffs that such registration fees, appears to be “Jajiya” a tax imposed in “Mughal Regime”, was rightly rejected by the learned trial court. The learned trial court also found that the defendant – Society was under the full control of the State Government itself and was largely funded by the State Government and was not a private profit making organisation. 16. The learned First Appellate Court, however, went off the track while assigning its own reasons in para 13 of its judgment and upholding the contentions of the plaintiffs, that the State Government was liable to provide free medical aid in the Government Hospitals. The learned Appellate Court failed to appreciate that if the registration fees for recovery of the deficit of the defendant – Society to provide diagnostic facilities on concessional rates was not allowed, the very purpose of establishing such a society with State fund would be frustrated. 17. It is well settled that even the State Government is entitled to charge tax as well as fees for the services provided by it. While the receipts in the nature of tax goes in general reserves and is used for benefit of public, the fees has a relation to the levy and service provided by the collecting agency. There is a thin-line difference between the tax and fees. In the present case, such registration fee from indoor and outdoor patients does not convert the character of fees into tax; or that in the absence of any specific quid pro quo, the levy of fees itself is liable to be struck down. As a matter of fact, the quid pro quo or the services provided are apparent and clearly established by various Circulars and Notifications and bye-laws. The levy of registration fees, therefore, cannot be said to be a public nuisance by any stretch of imagination. As a matter of fact, the quid pro quo or the services provided are apparent and clearly established by various Circulars and Notifications and bye-laws. The levy of registration fees, therefore, cannot be said to be a public nuisance by any stretch of imagination. Section 91 of Civil Procedure Code provides that in the case of a public nuisance or other wrongful act affecting, or likely to affect the public, a suit for a declaration and injunction can be filed by the Advocate – General or with the leave of the Court, by two or more persons. The term “Public Nuisance” is further defined in Section 268 of Indian Penal Code that a person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage. 18. A levy of registration fees from the indoor and outdoor patients in Government Hospitals, firstly, cannot be said to be an act or an illegal omission which causes any common injury. As aforesaid, the levy of fees is to recoup the deficit or the concession provided by the defendant – Society in the diagnostic facilities availed by the patients. Neither the members of the public can be said to dwell or occupy the Government Hospitals nor the levy of such registration fees can be said to be causing any injury or danger or annoyance to the persons, who may have occasion to use any public right. The citizens and patients have a right to visit Government Hospitals for treatment, but their entry can always be checked and made subject to registration fees or entry fees. 19. Such entry fees and registration fees may be even justified to recoup the administrative or maintenance cost or to avoid frivolous and unnecessary elements to enter such public premises. It may be good for security reasons also. 19. Such entry fees and registration fees may be even justified to recoup the administrative or maintenance cost or to avoid frivolous and unnecessary elements to enter such public premises. It may be good for security reasons also. In this context, it may also be observed that these days extra and unnecessary flow of people in the Government Hospitals for allegedly looking after one patient has caused unsavory incidents like beating up of doctors and nursing staff on various occasions on such visitors' perceived notion of lack of care on the part of doctors and nurses. They cannot wait to sue hospital administration for damages or for criminal offence but would take the law in their hands and beat Doctors and Nurses and damage hospital and other public property. While in private hospitals, not more than one or more than two attendants would be allowed that too subject to payment of entry fees, large number of relatives and friends visiting for one patient in Government Hospitals, is the order of the day. Such visitors, whose presence is not really and essentially required there, not only crowd these places unduly and over-burden the infrastructure but several practical problems arise in the administration of the Government Hospitals and that's why the poor sanitation condition and cleanliness in such Government Hospitals, has even become causes to be driven to the courts of law in Public Interest Litigations. In the context of these kind of situations, the imposition of nominal registration fees from indoor and outdoor patients and even visitors for regulating entry, cannot be held to be unjustified, unreasonable or illegal levy, much less a public nuisance requiring redressal at the hands of the Courts of Law. 20. In the context of these kind of situations, the imposition of nominal registration fees from indoor and outdoor patients and even visitors for regulating entry, cannot be held to be unjustified, unreasonable or illegal levy, much less a public nuisance requiring redressal at the hands of the Courts of Law. 20. While the constitution, character and justification of the defendant – Society itself is not in doubt and such Society charges such registration fees uniformly from all people, who are indoor and outdoor patients at the Government Hospitals to provide the diagnostic facilities at concessional rates to the patients in the State of Rajasthan; and as learned Additional Advocate General pointed out that in Jodhpur also vide orders dated 31.03.2011, the fees of Rs.5/- per outdoor patient and Rs.10/- for per indoor patient is being charged w.e.f. 01.04.2011, this Court is inclined to hold that the levy of such registration fees by the defendant Society, was absolutely legal and permissible in law and, therefore, while the trial court was justified in dismissing the suit brought by the plaintiffs – respondents, the learned First Appellate Court has clearly fallen into an error in decreeing the suit and injuncting the defendant – Society against such levy of registration fees. 21. The following extracts from the relevant bye-laws of the defendant – society and the Circulars issued by the State Government, Medical and Health Department, are given below, which establish that the defendant – society is a non-profit making society and is under the control of the State Govt. itself. 21. The following extracts from the relevant bye-laws of the defendant – society and the Circulars issued by the State Government, Medical and Health Department, are given below, which establish that the defendant – society is a non-profit making society and is under the control of the State Govt. itself. jktLFkku ljdkj funs'kky; fpfdRlk ,oa LokLF; lsok,a] t;iqj Øekad 950 fnukad % 25-04-07 jktLFkku esfMds;j fjyhQ lkslk;Vh jkT; ljdkj }kjk miyC/k djkbZ tk jgh fpfdRlk lsokvksa dks l`n`<+ ,oa vk/kqfud cukus gsrq ,d vjktdh; Lok;r'kk"kh ¼ autonomous½ laLFkk gS ftldk eq[; mís'; fpfdRlky; ds ek/;e ls jksfx;ksa dks cktkj nj ls de eqY; ij vPNh xq.koÙkk dh tkap lqfo/kk;sa]mipkj lqfo/kk;sa] nokbZ;ka ,oa vU; lkexzh miyC/k djkuk gSA xjhch js[kk ls uhps thou ;kiu djus okys vukFk] ykokfj'k] fo/kok] dSnho 65 o"kZ ls vf/kd vk;q okys ofj"B ukxfjdksa dks ;s lHkh lqfo/kk;sa fu%'kqYd miyC/k djkbZ tk,xhA bu mís';ksa dh iwfrZ gsrq mä lkslk;Vh fpfdRlky; ds fodkl ds lkFk lkFk lHkh jksxh mUueq[k lsokvksa dks lqn`<+ ,oa fodflr djsxhA blds vfrfjä dkWVst okMZ] MhyDl okMZ] vkWijs'ku fFk;sVj] lkbZfdy LVS.M] dSUVhu ,oa fpfdRlky; dh vU; lqfo/kkvksa dk Hkh /;ku j[ksaxhA** jktLFkku ljdkj funs'kky; fpfdRlk ,oa LokLF; lsok,a] t;iqj Øekad 951 fnukad % 25-04-07 leLr la;qä funs'kd ¼tksu½ leLr eq-fp- ,oa Lok- vf/kdkjh leLr izeq[k fpfdRlk vf/kdkjh leLr fp-vf/k-izHkkjh] lkeq-lsok-dsUnz@izk-Lok-dsUnz fo"k; % jktLFkku esfMds;j fjyhQ lkslk;Vh] la'kksf/kr fu;ekoyh-2007 mijksä fo"k; esa ys[k gS fd izns'k ds ukxfjdksa dks vk/kqfud LokLF; ijh{k.k ,oa mipkj dj lqfo/kk fcuk fdlh O;o/kku ds miyC/k djkus gsrq jkT; tu lgHkkfxrk ;kstuk ds vUrxZr o"kZ 1997 ls jkT; esa esfMds;j fjyhQ lkslk;fV;ksa dk xBu fd;k x;k FkkA jktLFkku jkt; izFke jkT; Fkk tgka ij ;g vuwBh ;kstuk loZizFke 'kq: dh xbZA mä lks;k;Vh dk eq[; mís'; xjhch js[kk ls uhps thou ;kiu djus okys ejhtksa] vukFk] ykokfj'k] fo/kok] dSnh o 65 o"kZ ls vf/kd vk;q okys ofj"B ukxfjdksa] nq?kZVukxzLr ejhtksa dks lHkh fpfdRlk lqfo/kk,a ,oa uSnkfud tkWps fu%'kqYd miyC/k djkuk gSA bl ;kstuk dh lQyrk ,oa mi;ksfxrk dks ns[krs gq, jkT; ljdkj }kjk izkFkfed LokLF; dsUnz Lrj ij esfMds;j fjyhQ lkslkbfV;ksa dk xBu fd;k x;k gSA le; le; ij leh{kkRed cSBdksa esa vf/kdkfj;ksa }kjk esfMds;j fjyhQ lkslkbVh ds lapkyu esa dbZ izdkj dh dfBukbZ;ksa dh ppkZ dh tkrh jgh gSA mu lHkh dfBukbZ;ksa dk lek/kku dj ^^jktLFkku esfMds;j fjyhQ lkslkbVh la'kksf/kr fu;ekokyh 2007** dk izdk'u djok dj vko';d dk;Zokgh gsrq fHktokbZ tk jgh gS rkfd esfMds;j fjyhQ lkslkbVh dk dk;Z lqpk: :i ls lEikfnr fd;k tk ldsA ¼MkW- ,e-,y- tSu½ funs'kd¼,M~l@vLirky iz'kk-½ fp- ,oa Lok- lsok;sa] jkt-] t;iqj** Hkkx-1% lkekU; fu;e fu;e-1 lkslkbVh dk uke % lkslkbVh dk uke jktLFkku esfMds;j fjyhQ lkslkbVh gksxk] ;g lkslkbVh ftl fpfdRlky; esa gksxh ml fpfdRlky; dk uke lkFk esa fy[kk tk;sxkA fu;e-2 iath—r dk;kZy; ,oa dk;Z{ks=% iath—r dk;kZy; ,oa dk;Z{ks= ml fpfdRlky; esa gksxk ftlds fy;s lkslkbVh cuh gS ,oa dk;Z{ks= Hkh ogh fpfdRlky; gksxkA lkslkbVh ds mís'; % jktLFkku esfMds;j fjyhQ lkslkbVh] jkT; ljdkj }kjk miyC/k djkbZ tk jgh fpfdRlk lsokvksa dks lqn`<+ ,oa vk/kqfud cukus gsrq ,d vjktdh; LokL;r'kklh ¼ autonomous½ lg;ksxh laLFkk gS] ftldk eq[; mís'; fpfdRlky; ds ek/;e ls jksfx;ksa dks mfpr ewY; ij vPNh xq.koÙk dh tkWp lqfo/kk,W] mipkj lqfo/kk,sa] nokbZ;kW ,oa vU; lkexzh miyC/k djuk gSA xjhch js[kk ls uhps thou ;kiu djus okys] vukFk] ykokfjl] fo/kok] dSnh o 65 o"kZ ls vf/kd vk;q okys ofj"B ukxfjdksa dks ;g lHkh lqfo/kk,sa fu%'kqYd@de ewY; ij miyC/k djkbZ tk,xhA bu mís';ksa dh iwfrZ gsrq lkslkbVh fpfdRlky; ds fodkl ds lkFk lkFk lHkh jksxh mUueq[k lsokvksa dks lqn`<+ ,oa fodflr djsxhA blds vfrfjä dkWVst okMZ] MhyDl okMZ] vkWijs'ku fFk;sVj] lkbZfdy LVs.M] dSUVhu ,oa fpfdRlky; dh vU; lfo/kkvksa dk /;ku j[ksxhA** Hkkx-2% foÙkh; fu;e fu;e-1 izLrkouk esfMds;j fjyhQ lkslkbVh ,d Lok;Ùk'kklh laLFkk gS vr% jkT; ljdkj ds lkekU; foÙkh; ,oa ys[kkfu;e] Ø; laca/kh vkns'k ,oa izfrca/k bl ij ykxw ugha gksaxsA lkslkbVh ds leLr foÙkh; dk;Z lkslkbVh }kjk cu;s x;s fu;eksa ds vUrxZr fu"ikfnr fd;s tkosaxsA vko';drk iM+us ij lkslkbVh bu fu;eksa esa f'kfFkyrk iznku dj ldrh gSA fu;e-2 lkekU; fl)kUr lkslkbVh dk ewy mís'; fpfdRlky; ds ek/;e ls jksfx;ksa dh vPNh tkWp ,oa mipkj lqfo/kk;sa miyC/k djkuk gSA jkT; ljdkj }kjk fofHkUu lsokvksa gsrq miyC/k djkbZ xbZ /ku jkf'k ds iwjd ds :i esa lkslkbVh fofHkUu L=ksrksa ls vk; vftZr djsxh vkSj mldk mi;ksx iw.kZr;k jksfx;ksa ds fgr esa gh gksxkA vr% lkslkbVh dk iz;kl gksuk pkfg;s fd vk; esa fujUrj o`f) ds lkFk lkFk vuqi;ksxh O;; ij vadq'k yxsA vk; vkSj O;; esa lEiw.kZ ijnf'kZrk izdV gksuk pkfg;sA fu;e-3 vk; ds L=ksr lkslkbVh fuEufyf[kr L=ksa ls vk; vftZr djsxh %& 1- vkmVMksj o baMksj jksxh iathdj.k 'kqYd] vkxUrqd ikl 'kqYd vkfnA 1- fofHkUu lk/kkj.k ,oa fo'ks"k tkWpksa ij 'kqYdA 2- fofHkUu lsokvksa tSls lthZdy vkWijs'ku vkbZ-lh-;w- vusd izdkj dh FkSjsih ,oa vU; fof'k"V lsokvksa ij 'kqYd 3- dkWVst okMZl~@Lis'ky@jSu clsjk@vfrfFk x`g vkfn dk fdjk;kA 4- esfMds;j Mªx LVksj ls izkIr vf/k'ks"k jkf'kA ywM vkbZVeksa ds vfrfjä vko';d nokvksa dh nqdku Hkh vLirky esa [kksyh tk ldsxhA 5- lkbZfdy LVs.M] dsUVhu] ,l-Vh-Mh- cwFk vkfn ls lafonk jkf'kA 6- nqdkuksa] vkWfMVksfj;e o vU; ifjlEifÙk;ksa dk fdjk;kA 7- fofHkUu tekvksa ij C;ktA 8- fufonk QkeZ foØ; jkf'k] c;kuk ,oa lqj{kk tCr jkf'kA 9- vuqi;ksxh lkeku dh uhykeh ls izkIr jkf'kA 10- nku]jktdh; vuqnku ,oa fofHkUu foÙkh; laLFkkvksa tSls] cSa] vkj-,Q-lh- ukckMZ vkfn ls _.kA 11- ch-vks-Vh- ij e'khu yxkuk vkSj dsUVhu pyokukA 12- futh uflZax dkWystksa ds izf'k{k.kkfFkZ;ksa ls fy;k tkus okyk 'kqYdA 13- gSYFk ba';ksjsal izkIr iquZHkj.k fcyksa dh jkf'kA 14- jk"Vªh; xzkeh.k LokLF; fe'ku ls izkIr vuVkbZM Q.MA 15- lkslk;Vh }kjk LFkkuh; Lrj ij fodflr vU; L=ksrA fu;e-4 vk; dk mi;ksx lkslkbZVh viuh vk; dk mi;ksx jksxh lsokvksa dk vf/kd izHkko'kkyh ,oa lqn`<+ cukus esa djsxhA vr% ftu lsokvksa esa jkT; ljdkj }kjk vkoafVr ctV mi;kZIr gks vFkok otV miyC/k ugha gks muds fy;s vfrfjä jkf'k ds :i esa lkslkbZVh O;; djsxhA lkslkbZVh dqy okf"kZd vk; ftlesa vuVkbZM Q.M Hkh lfEefyr gS dk O;; fuEu izdkj djus ds fy;s vf/k—r gksxh%& 1- ch-ih-,y- dkMZ/kkjh ejhtksa gsrq nokbZ;ksa ,oa tkap ij@gSYFk bUlksjsUl gsrq nokbZ;ka 25 izfr'kr 2- ch-ih-,y- Js.kh ds vfrfjä fo'ks"k xjhc ejhtksa ds mipkj ij 5 izfr'kr 3- 65 o"kZ ls vf/kd vk;q ds ofj"B ukxfjdksa ds mipkj ,oa uSnkfud tkapksa ij 20 izfr'kr 4- fpfdRlky; dh lQkbZ] j[kj[kko ,oa vU; lqfo/kkvksa bR;kfn ij 20 izfr'kr 5- tkap lkexzh] dsfedYl] ,Dl-js] lhVh Ldsu] lksuksxzkQh fQYel ,oa midj.kksa dh ,-,e-lh-] bR;kfn gsrq 25 izfr'kr 6- vkikrdkyhu fLFkfr ,oa ?kkrd fcekfj;ksa ds jksfx;ksa dks fu%'kqYd okgu lqfo/kk miyC/k djkus ds fy;s 5 izfr'kr mä vuqikr esa O;; fofHkUu xfrfof/k;ksa ij izkFkfedrk ds vk/kkj ij lkslkbZVh dh lgefr ls gksxkA 1- fofHkUu tkapksa gsrq lkexzh tSls ,Dl-js fQYel] lh-Vh- fQYel] fdV~l o dsfedYl vkfnA 2- fofHkUu e'khuksa ,oa midj.kksa dh ejEer ,oa j[kj[kkoA 3- u;s midj.kksa ,oa e'khuksa dh [kjhnA 4- fofHkUu jksxh lsokvksa tSls Vªksyh lsok] lqj{kk] fctyh] ikuh o lQkbZ vkfn ij jkT; ljdkj ls izkIr jkf'k ls vfrfjä O;; ijA 5- fpfdRlky; QfuZpj ¼iyax] yksdj vkfn½ dk;kZy; QuhZpj] fyuu] ,;jdaMh'kulZ] dqyj] ia[kksa] vkfn dh [kjhn ,oa j[kj[kkoA 6- dksVst okMZ~l @ vfrfFk Hkou] vkWfMVksfj;e] jsu clsjk vkfn ds Hkou] QuhZpj ,oa vU; lkexzh dk j[kj[kkoA 7- fpfdRlky; Hkou dk j[kj[kko] uo fuekZ.k ,oa ifjofrZr@ifjo/kZuA 8- esfMdy dkWyst }kjk iznÙk jksxh lsokvksa ij O;;A 9- foHkkxk/;{kksa }kjk NqV iqV lkeku@ejEer vkfn ij O;;A 10- lkslkbVh }kjk fu;qä deZpkfj;ksa dk osru@ekuns;A 11- dk;kZy; O;;] LVs'kujh ,oa Mkd O;;A 12- _.k HkqxrkuA 13- dkWji'k q.M gsrq cprA 14- cxhpk rFkk isM ikS/kksa ds j[kj[kkoA 15- vU; dksbZ O;; tks jksxh lsokvksa dks lqn`<+ ,oa izHkko'kkyh cuk;s] lkslkbVh dh lgefr ij fd;k tkosxkA 16- lnL; lfpo :i;s 100 izfrekg** fu;e-12 fu%'kqYd lqfo/kk,sa fuEufyf[kr Jsf.k;ksa ds jksfx;ksa dks lHkh tkWp ,oa lsok 'kqYdksa ij ls eqä @ lcflVh j[kk tkosxkA tc rd lkslkbVh ds ikl izpu cpr u gks ljdkj bu lqfo/kkvksa dh HkjikbZ djsxhA 1- xjhch js[kk ds uhps thou ;kiu djus okys jksxh ¼ch-ih-,y- dkMZ /kkjd½ 2- LorU=rk lSukuh] HkwriwoZ lSfud ,oa esfMdksyhxy dSlst 3- ykokfjl] dSnh] vlgk;] vR;Ur xjhc jksxh ,oa nq?kZVukxzLr jksxhA 4- 65 o"kZ ls vf/kd mez ds ¼vk;dj u nsus okys½ jksxh] fo/kok] ¼vk;dj u nsus okyh½A 5- fofHkUu jk"Vªh; dk;ZØeksa tSls jk"Vªh; vU/krk fuokj.k dk;ZØe] jk"Vªh; ifjokj dy;k.k dk;ZØe] jk"Vªh; ,M~l fu;a=.k dk;ZØe ds vUrxZr dh tkus okyh lk/kkj.k tkWpsA fu;e-13 dS'k dh lqj{kk ds'k pSLV ¼Mcy ykWd flLVe½ o izfrfnu ds dS'k dks mlh fnu cSad esa tek djokukA fu;e-14 vk;dj lkslkbVh dh gksus okyh vk; pwafd ykHk dekus gsrq ugha gS bl vk; dk mi;ksx jksfx;ksa dh lsokvksa esa O;; fd;k tkrk gS blfy, vk;dj /kkjk 10¼22,½ ds vUrxZr lkslkbVh dh vk; vk;dj ls eqä gSA bl gsrq gj o"kZlacaf/kr vk;dj vf/kdkjh dk;kZy; esa vk;dj fjVZu izLrqr djuk vko';d gSA lkslkbVh }kjk izkIr fd;s x;s nku ij vk;dj NwV gsrq /kkjk 80 th ds vUrxZr vk;dj vk;qä dks fu/kkZfjr esas vkosnu djuk gksxkA fu;e-15 vads{k.k lkslkbVh dk vads{k.k pkVZM ,dkmUVsUV }kjk fd;k tk;sxk ftldh fu;qfä dk;Zdkfj.kh }kjk dh tk;sxhA pkVZM ,dkmUVsUV }kjk izLrqr vads{k.k izfrosnu izfro"kZ twu ekg esa dk;Zdkfj.kh dh cSBd esa izLrqr djuk gksxk ,oa vads{k.k izfrosnu dh ikyuk fjiksVZ Hkh mä cSBd esa izLrqr djuh gksxhA pkVZM ,dkmUVsUV ds izfrosnu ij lnL; ,oa ,d izkf/k—r lnL; gLrk{kj djsaxsA** 22. The contention of the learned counsel for the respondents – plaintiffs, Mr. S.D. Vyas about locus of the defendant – Society, who has preferred this second appeal through Principal and Controller of the Medical College, also deserves to be negatived because any authorised Officer of the defendant – Society, which is a Semi Government Organisation and a Society duly registered under the provisions of the Act of 1958 and such question having not been raised before the learned courts below, cannot be permitted to be raised at this stage, nor this Court is inclined to throw out the present second appeal on this ground. Equally devoid of merit is the contention of the learned counsel for the plaintiffs – respondents that the levy is in the nature of tax and there is no sanction of law behind that and, therefore, it violates Article 265 of the Constitution because such levy is supported by the bye-laws and even by an administrative office order, it could be imposed so long as such levy met the objective of the society and is supported by its bye-laws, which in the present case as noticed above does support such levy. Therefore, when such registration fees is charged at various Government Hospitals within the State of Rajasthan, where the defendant – Society provides such medical facilities at concessional rates and even with an exemption to poor class of people and other specified categories like widows, orphans etc., the conten-tion that there is no sanction behind such levy, cannot be accepted. This Court is clearly of the opinion that the levy is not in the character of tax, but is a fees, which has sufficient quid pro quo behind it and is, therefore, justified. 23. This Court is clearly of the opinion that the levy is not in the character of tax, but is a fees, which has sufficient quid pro quo behind it and is, therefore, justified. 23. While dealing with a custom's duty case, the Karnataka High Court (Per Hon'ble T.S. Thakur, J, as his Lordships, then was) in the case of The Medical Relief Society of South Kanara,Manipal, Dakshina Kannada and Others reported in (1999)111 ELT 327 (Kar.), it was held that when exemption from customs duty was granted on import of medical equipment, on the condition that 40% of outdoor patients below family income of Rs.500/- per month or/is would be given free medical treatment, the learned Single Judge held that it is only in case the hospital satisfies the Central Government or the Directorate General of Health Services that it fulfills the conditions stipulated that can result in the grant of an exemption certificate in its favour. According to the respondents, the petitioner-hospitals did not satisfy the requirement of 40% outdoor patients being treated free nor do they satisfy the requirement of keeping at least 10% of all its beds reserved for patients with a family income of less than Rs.500/- per month. The obligation to provide free treatment is a continuing obligation, the failure whereof at any stage would entitle the respondents to not only withdraw the exemption certificates, issued earlier, but also take coercive steps for the recovery of customs duty payable on the equipment imported. To quote the relevant extract, “Two decisions of the Supreme Court that deal with the true import of the notification need be noticed at this stage. In Mediwsll Hospital and Health Care Private Limited v Union of India and Others ( AIR 1997 SC 1623 ), a diagnostic centre was aggrieved of the refusal of an exemption certificate on the ground that the notifications did not envisage any benefit in favour of such centres run on purely commercial lines. The Supreme Court held that the respondents having extended benefit of exemption under the notification to similar other centres, denial of the same to the petitioner would fall foul of Article 14 of the Constitution. More importantly, the Court declared the obligation to provide free treatment to 40% outpatients and all indoor patients with a family income of less than Rs, 500 per month to be a continuing obligation. More importantly, the Court declared the obligation to provide free treatment to 40% outpatients and all indoor patients with a family income of less than Rs, 500 per month to be a continuing obligation. In order to ensure that the benefit reached the deserving, the authorities were asked to monitor the same and to take appropriate action if there was a default in the discharge of that obligation. The following passage from the said decision is in this connection apposite.- "While, therefore, we accept the contentions of Mr. Jaitley, learned senior Counsel appearing for the appellant that the appellant was entitled to get the certificate from respondent 2 which would enable the appellant to import the equipment without payment of customs duty but at the same time we would like to observe that the very notification granting exemption must be construed to cast continuing obligation on the part of all those who obtained the certificate from the appropriate authority and on the basis of that to have imported equipments without payment of customs duty to give free treatment at least to 40 per cent of the outdoor patients as well as would give free treatment to all the indoor patients belonging to the families with an income of less than Rs. 500/- p.m. The competent authority, therefore, should continue to be vigilant and check whether the undertakings given by the applicants are being duly complied with after getting the benefit of the exemption notification and importing without payment of customs duty and if on such enquiry the authorities are satisfied that the continuing obligations are not being carried out then it would be fully open to the authority to ask the person who have availed of the benefit of exemption to pay the duty payable in respect of the equipments which have been imported without payment of customs duty". 24. The writ petition challenging the impugned recovery of custom duty denying the exemption since the conditions were not fulfilled, was thus dismissed by the Karnataka High Court. 25. 24. The writ petition challenging the impugned recovery of custom duty denying the exemption since the conditions were not fulfilled, was thus dismissed by the Karnataka High Court. 25. In slight contrast, in an Income Tax matter under Section 10(22A) granting exemption to hospitals running without profit motive, the Bombay Bench Income Tax Tribunal in its decision in National Health Education Society vs. Assistant Director of Income Tax (2000) 70 ITD 330 (Mum), learned Judicial Member (Shri R.V. Easwar, JM., now the Hon'ble Sitting Judge, Delhi High Court) held that exemption cannot be denied to assessee hospital, if the hospital is not run on commercial lines and where large number of patients were treated free of charge or at concessional rates, and for a number of years, the assesse suffered deficits and sustained only through donations, it could not be denied the exemption merely because there was some incidental profits in a particular year, which were also redeployed for the charitable objectives of the Hospital / Trust. The case in hand was of P.D. Hinduja Hospital of Mumbai. The relevant extract is quoted below: “8. The primary question before us for all the years is whether the income of the hospital is exempt under section 10(22A). In order to get the exemption, two conditions have to be satisfied: The hospital or other institution for the treatment of patients should exist solely for philanthropic purposes; and it should not exist for purposes of profit. These two conditions have come up for consideration recently before the Kerala High Court in CIT vs. Pulikkal Medical Foundation (P.) Ltd. (1994) 210 ITR 299(Ker). In this decision, Hon'ble Justice John Mathew referred to the dictionary meanings as well as the meanings given in certain authorities to the word 'philanthropy' and held as follows: (page 310). "Thus on an understanding of the meaning of the words 'philanthropic purposes', it is clear that the establishment and running of a hospital by the assessee is a philanthropic purpose." Immediately thereafter, His Lordship proceeded to consider the question whether the hospital existed solely for philanthropic purposes and not for purposes of profit. "Thus on an understanding of the meaning of the words 'philanthropic purposes', it is clear that the establishment and running of a hospital by the assessee is a philanthropic purpose." Immediately thereafter, His Lordship proceeded to consider the question whether the hospital existed solely for philanthropic purposes and not for purposes of profit. It is noteworthy that in that case also, the rejection of the claim for exemption was based on two grounds: firstly that the hospital was being run on commercial lines and that by itself was an indication that it was being run for purposes of profit (see page 311) and secondly that existence for a philanthropic purpose would require a scheme for extending free consultation facility to the poor patients. These very two objections, as we have noticed earlier, have been taken by the assessing officer in the present case also. So far as the first objection is concerned, the Kerala High Court referred to the judgment of the Supreme Court in Addl CIT vs. Surat Art Silk Cloth Mfrs. Association (1980) 121 ITR 1 (SC) and held that merely because the assessee is running the hospital on commercial lines, it will not be disentitled to the exemption under section 10(22A), as long as the dominant purpose is a philanthropic one and the purpose of earning profit is to spend it for the achievement of the main philanthropic purpose by re-deploying the profits in the same institution or another similar institution. It is noteworthy that in the context of section 11, the Supreme Court has, in the decision cited supra relied on by the Kerala High Court, held that the charitable organization is not required to carry on its activities in such a manner that it does not result in any profit, which would be an impractical task for the persons incharge of the trust. As regards the second condition, the Kerala High Court held (page 314) that free treatment to the poor and needy cannot be the sole philanthropic activity of a hospital because eleemosynary is not one of the essential ingredients of philanthropy. 9. Hon'ble Justice Narayana Kurup wrote a separate judgment agreeing with His Lordship Justice John Mathew. As regards the second condition, the Kerala High Court held (page 314) that free treatment to the poor and needy cannot be the sole philanthropic activity of a hospital because eleemosynary is not one of the essential ingredients of philanthropy. 9. Hon'ble Justice Narayana Kurup wrote a separate judgment agreeing with His Lordship Justice John Mathew. In the separate judgment, His Lordship observed that the expression "philanthropic purpose" assumes importance because the section requires that the hospital or institution should not exist for purposes of profit and that though the expression is popularly used, its legal connotation was not properly understood. According to His Lordship, the legislature must be presumed to have used the expression with an altogether different intention qua charity, as otherwise there was no need to bring about an amendment (in 1970) incorporating the word 'philanthropy' in section 10(22A). His Lordship then referred to the English decision in Macduff vs. Macduff (1896) 2 Ch. 451 (CA), wherein the view taken was that philanthropy had nothing to do with charity and there were certain purposes which, though not charitable, would nevertheless be philanthropic, indicating goodwill towards mankind or a great portion of them. After referring to the judgment, His Lordship concludes the judgment by saying that the assessee was entitled to succeed even if it is found that the beneficial fallout of the philanthropic activity carried on by it is not confined to the poor alone. 10. It will be thus seen that neither the absence of a scheme for treating the poor patients free of charge nor the earning of profits was, by itself, considered fatal to the claim of exemption in respect of the income of a hospital. We however hasten to clarify that the decision should not and cannot be understood as giving a fiat or license to profiteering in the guise of running a hospital because Their Lordships have cautioned that the earning of the profits should only be incidental to the carrying out of the dominant purpose and whatever profit that was earned should be redeployed in the same institution or in a similar institution. 26. 26. These citations have been relied upon to hold that the charitable and non-profit making character of Semi Government or charitable hospitals or Medicare Relief Society cannot be denied the exemptions, concessions or the power to regulate their finance by charging registration fees etc., as are the facts in present case, unless their basic character of being “No profit making” is lost and they work for profit making objective or on commercial lines and they continue to exist and to work for the larger benefit of public. 27. Hon'ble Supreme Court of India in Paschim Banga Khet Mazdoor Samity and others vs. State of West Bengal and another reported in 1996 AIR SC 2426, held that failure of Government Hospitals to provide timely emergency medical treatment to person in need, results in violation of his right to life and, therefore, in such cases, compensation can be given in exercise of jurisdiction under Article 226 and 32 of the Constitution of India. Dealing with requirement of funds, in Para 16, the Hon'ble Court observed that it is true that financial resources for providing such facilities are required but at the same time, the aforesaid constitutional obligation cannot be ignored. The said judgment highlights the need for Government Hospitals to be well equipped to provide all necessary medical help in emergent cases and recognizes the need of arrenging adequate financial resources for providing the necessary medical and diagnostic plants, machineries and equipments. Thus, it indirectly supports the defendant society for supporting its financial strength by charging such registration fees, which is impugned by the plaintiffs in the present case. To quote for ready reference, Paras 9 and 16 from the judgment are quoted below : “9. The Constitution envisages the establishment of a welfare state at the federal level as well as at the state level. In a welfare state the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare state. The Govt. discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail those facilities. Art. 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The Govt. discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail those facilities. Art. 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The Government hospitals run by the State and the medical officers employed therein are duty bound to extend medical assistance for preserving human life. Failure on the part of a Govt. hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Art. 21. In the present case there was breach of the said right of Hakim Seikh guaranteed under Art. 21 when he was denied treatment at the various Govt. hospitals which were approached even though his condition was very serious at that time and he was in need of immediate medical attention. Since the said denial of the right of Hakim Seikh guaranteed under Art. 21 was by officers of the State in hospitals run by the State the State cannot avoid its responsibility for such denial of the constitutional right of Hakim Seikh. In respect of deprivation of the constitutional rights guaranteed under Part III of the Constitution the position is well settled that adequate compensation can be awarded by the court for such violation by way of redress in proceedings under Arts. 32 and 226 of the Constitution.” 16. It is no doubt true that financial resources are needed for providing these facilities. But at the same time it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done. In the context of the constitutional obligation to provide free legal aid to a poor accused this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. (See : Khatri (II) vs. State of Bihar, 1981 (1) SCC 627 at p. 631). The said observations would apply with equal, if not greater, force in the matter of discharge of constitutional obligation of the State to provide medical aid to preserve human life. In the matter of alloca-tion of funds for medical services the said constitutional obligation of the State has to be kept in view. The said observations would apply with equal, if not greater, force in the matter of discharge of constitutional obligation of the State to provide medical aid to preserve human life. In the matter of alloca-tion of funds for medical services the said constitutional obligation of the State has to be kept in view. It is necessary that a time-bound plan for providing these services should be chalked out keeping in view the recommendations of the Committee as well as the requirements for ensuring availability of proper medical services in this regard as indicated by us and steps should be taken to implement the same.” 28. Recently on 28th June, 2012, the American Supreme Court by a 5:4 majority upheld the validity of Patient Protection and Affordable Care Act 2010 and Chief Justice Roberts, tilting the balance in favour of validity of Act, observed at Part C at page 33 of the judgment, as under. The judgment citation as given on Internet site is 567 U.S. (2012) in the case of National Federation of Independent Business, et al., Petitioners vs. Kathleen Sebelius, Secretary of Health and Human Services, et al. “The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many respects. The “(s)hared responsibility payment,” as the statute entitles it, is paid into the Treasury by “tax-payer(s)” when they file their tax returns. 26 U. S. C. §5000A(b). It does not apply to individuals who do not pay federal income taxes because their household income is less than the filing threshold in the Internal Revenue Code. §5000A(e)(2). For taxpayers who do owe the payment, its amount is determined by such familiar factors as taxable income, number of dependents, and joint filing status. §§5000A(b)(3), (c)(2), (c)(4). The requirement to pay is found in the Internal Revenue Code and enforced by the IRS, which—as we previously explained—must assess and collect it “in the same manner as taxes.” Supra, at 13–14. This process yields the essential feature of any tax:it produces at least some revenue for the Government. United States vs. Kahriger, 345 U. S. 22, 28, n. 4 (1953). Indeed, the payment is expected to raise about $4 billion per year by 2017. Congressional Budget Office, Payments of Penalties for Being Uninsured Under the Patient Protection and Affordable Care Act (Apr. 30, 2010), in Selected CBO Publications Related to Health Care Legislation,2009–2010, p. 71 (rev. United States vs. Kahriger, 345 U. S. 22, 28, n. 4 (1953). Indeed, the payment is expected to raise about $4 billion per year by 2017. Congressional Budget Office, Payments of Penalties for Being Uninsured Under the Patient Protection and Affordable Care Act (Apr. 30, 2010), in Selected CBO Publications Related to Health Care Legislation,2009–2010, p. 71 (rev. 2010). It is of course true that the Act describes the payment as a “penalty,” not a “tax.” But while that label is fatal to the application of the Anti-Injunction Act, supra, at 12–13, it does not determine whether the payment may be viewed as an exercise of Congress’s taxing power. It is up to Congress whether to apply the Anti-Injunction Act to any particular statute, so it makes sense to be guided by Congress’s choice of label on that question. That choice does not, however, control whether an exaction is within Congress’s constitutional power to tax.” The said ratio of American Supreme Court decision of “shared responsibility Payment” being upheld also clearly helps the case of appellant-defendant Medicare Relief Society before this Court, when it enforces payment of registration fees by able indoor and outdoor patients excluding BPL Category. 29. Consequently, the present second appeal filed by the defendant – Society deserves to be allowed and the same is accordingly allowed. The judgment and decree of the First Appellate Court dated 04.04.2009 is set aside and the judgment and decree of the Trial Court dismissing the suit is restored. The Civil Suit No.57/2001 – Rajesh Gulati and another vs. State of Rajasthan & others is consequently dismissed. No order as to costs.