Case Note & Summary
The petitioner, Dr. Shivraj Chhotulal Pataria, is the sole proprietor of Shivraj Hospital, which was granted a certificate of registration under Section 5 of the Bombay Nursing Home Registration Act, 1949, valid until 31.03.2022. Before the expiry of the certificate, the Brihanmumbai Municipal Corporation (BMC) permanently sealed the hospital and cancelled its registration by an order dated 02.07.2021, citing criminal cases registered against the petitioner. The petitioner challenged this action by way of a writ petition before the Bombay High Court. The main legal issue was whether the cancellation and sealing were valid without compliance with Section 8(1) of the Act, which requires a show-cause notice and an opportunity of hearing. The petitioner argued that no show-cause notice or hearing was given, and that the sealing of an immovable property was impermissible under Section 102 of the Code of Criminal Procedure, 1973, relying on the Supreme Court's decision in Nevada Properties Private Limited Through its Directors Vs. State of Maharashtra & Anr. The BMC contended that the action was taken in larger public interest due to serious allegations. The court analyzed the provisions of Section 8(1) of the Act and found that the BMC had not issued any show-cause notice or provided a hearing before taking the drastic action. The court held that the impugned order was arbitrary and illegal, and quashed the same. The court directed the BMC to consider the petitioner's application for renewal of registration afresh, after giving a reasonable opportunity of hearing to the petitioner, and to pass a reasoned order within four weeks. The petition was allowed in those terms.
Headnote
A) Administrative Law - Natural Justice - Show-Cause Notice - Section 8(1) Bombay Nursing Home Registration Act, 1949 - The court held that before cancelling registration or sealing a hospital, the authority must issue a show-cause notice and grant a hearing as mandated by Section 8(1) of the Act. Failure to do so renders the action arbitrary and illegal. (Paras 7-8)
B) Criminal Procedure - Sealing of Immovable Property - Section 102 Code of Criminal Procedure, 1973 - The court observed that sealing of an immovable property like a hospital is not permissible under Section 102 CrPC, relying on the Supreme Court's decision in Nevada Properties Private Limited Through its Directors Vs. State of Maharashtra & Anr. (Paras 5, 8)
C) Medical Law - Hospital Registration - Cancellation - Bombay Nursing Home Registration Act, 1949 - The court quashed the order of cancellation of registration and permanent sealing of the hospital, directing the respondent to consider the petitioner's application for renewal of registration afresh after giving a hearing. (Paras 8-9)
Issue of Consideration
Whether the cancellation of registration and permanent sealing of the petitioner's hospital without issuing a show-cause notice and providing an opportunity of hearing as required under Section 8(1) of the Bombay Nursing Home Registration Act, 1949 is legal and valid.
Final Decision
The impugned order dated 02.07.2021 cancelling the registration and permanently sealing the hospital is quashed and set aside. The respondent is directed to consider the petitioner's application for renewal of registration afresh, after giving a reasonable opportunity of hearing to the petitioner, and pass a reasoned order within four weeks from the date of the judgment. Rule is made absolute in those terms.
Law Points
- Natural justice
- show-cause notice
- opportunity of hearing
- Section 8(1) Bombay Nursing Home Registration Act
- 1949
- sealing of immovable property
- Section 102 CrPC
- Nevada Properties case
Case Details
2023 LawText (BOM) (07) 45
Writ Petition No.3664 of 2022
Sunil B. Shukre, Rajesh S. Patil
Mr. Aabad Ponda, Senior Advocate a/w. Mr. Jugal Kanani, for the Petitioner; Mr. Anoop Patil a/w. Mr. V.V. Mahadik, for Respondent-BMC; Mr. Abhay Patki, Addl. GP a/w. Mr. Ajit Shastri, AGP for Respondent No.1
Dr. Shivraj Chhotulal Pataria
Brihanmumbai Municipal Corporation & Ors.
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Nature of Litigation
Writ petition challenging the cancellation of registration and permanent sealing of a hospital.
Remedy Sought
The petitioner sought quashing of the order dated 02.07.2021 cancelling registration and sealing the hospital, and a direction to renew the registration.
Filing Reason
The petitioner's hospital was permanently sealed and its registration cancelled without any show-cause notice or opportunity of hearing, allegedly due to criminal cases registered against the petitioner.
Previous Decisions
The learned Single Judge of the Bombay High Court granted conditional bail to the petitioner in all eight criminal cases on 05.04.2023, observing that there was no prima facie involvement of the petitioner in the offences.
Issues
Whether the cancellation of registration and permanent sealing of the hospital without issuing a show-cause notice and providing an opportunity of hearing as required under Section 8(1) of the Bombay Nursing Home Registration Act, 1949 is legal and valid.
Whether the sealing of an immovable property like a hospital is permissible under Section 102 of the Code of Criminal Procedure, 1973.
Submissions/Arguments
Petitioner: The action of sealing and cancellation of registration is arbitrary and illegal as no show-cause notice under Section 8(1) of the Act and no opportunity of hearing was given. There is no prima facie involvement of the petitioner in the criminal cases, as observed by the Single Judge while granting bail. Sealing of immovable property is not permissible under Section 102 CrPC as per Nevada Properties case.
Respondent-BMC: The action was taken in larger public interest due to serious criminal allegations against the petitioner. The sealing was based on police information and was necessary to protect public interest.
Ratio Decidendi
Before cancelling registration or sealing a hospital under the Bombay Nursing Home Registration Act, 1949, the authority must comply with Section 8(1) which mandates a show-cause notice and an opportunity of hearing. Failure to do so renders the action arbitrary and illegal. Additionally, sealing of an immovable property like a hospital is not permissible under Section 102 CrPC.
Judgment Excerpts
The petitioner has challenged the legality and correctness of the impugned order of cancellation of registration of the petitioner's hospital and its permanent sealing made as per order dated 02.07.2021.
The action of sealing and cancellation of registration of the petitioner's hospital is arbitrary and illegal as no show-cause notice, which is required to be given in terms of Section 8(1) of the Act, 1949 and no opportunity of hearing as required under the law, was issued and given to the petitioner.
We find that the impugned order has been passed without issuing any show-cause notice to the petitioner and without giving any opportunity of hearing to the petitioner. This is in clear violation of the principles of natural justice and the mandatory requirement of Section 8(1) of the Act, 1949.
Procedural History
The petitioner filed a writ petition before the Bombay High Court challenging the order dated 02.07.2021 passed by the Brihanmumbai Municipal Corporation cancelling the registration of Shivraj Hospital and permanently sealing it. The petition was heard on 11.07.2023 and allowed.
Acts & Sections
- Bombay Nursing Home Registration Act, 1949: 5, 8(1)
- Code of Criminal Procedure, 1973: 102
