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CASE NO.: Appeal (civil)  7284 of 2005

PETITIONER: Jaslok Hospital & Research Centre

RESPONDENT: Union of India & Others

DATE OF JUDGMENT: 31/10/2007

BENCH: ASHOK BHAN,H.S. BEDI & V.S. SIRPURKAR

JUDGMENT: J U D G M E N T AND

CIVIL APPEAL NO(S). 5054 of 2007 (Arising out of SLP(C ) No. 17577 of 2006)

Keki Byram Grant                                                 ....Appellant(s)

                                       - Versus -

Union of India & Others                              ....Respondent(s)

BHAN, J.

1. Leave granted in special leave petition No. 17577 of 2006.

2. This judgment shall dispose of Civil Appeal No.7284 of 2005  and the Civil Appeal arising out of SLP) No. 17577 of 2006.

3. C.A. No.7284/2005 is directed against the judgment and  order passed by the High Court of Judicature at Bombay in CWP  No. 2613 of 2004 dated 17th December, 2004 whereby the High  Court has dismissed the writ petition filed by the appellant.

4. The Civil Appeal arising out of SLP) No.17577 is directed  against the order dated 21st September, 2006 passed by the same  High Court in Writ Petition No.5594/2006.   

5. The latter case has been dismissed by the High Court on the  basis of the findings recorded in the order dated 17th of  December, 2004 passed in WP No.2613/2004 M/s. Jaslok Hospital  and Research Centre v. Union of India & Ors.

6. As the point involved in both the appeals is identical, the  appeals are taken up for disposal together by this common  Judgment.

7. For the convenience of reference, the facts are taken from  C.A. No.7284/2005.

8. The appellant obtained Customs Duty Exemption Certificate  (for short ‘CDEC\022), from the Directorate General of Health  Services (DGHS), for import of various hospital equipments  under Notification No.64/88-Cus. Dated 1st  March, 1988 (for  short \023the Notification\024).  CDECs issued to the appellant

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relate to import of medical equipments for the period between  1988 and 1994.  The CDECs certified that the appellant was  covered under para 2 of the Table annexed to the Notification.   The same reads as under: \023TABLE         1.      All such hospitals as may be certified  by the said  Ministry of Health and Family  Welfare, to be run or substantially aided  by such charitable organization as may be  approved, from time to time, by the said  Ministry of Health and Family Welfare.

       2.      All such hospitals which may be  certified by the said Ministry of Health  and Family Welfare, in each case, to be run  for providing medical, surgical or  diagnostic treatment not only without any  distinction of caste, creed, race, religion  or language but also, -

               (a)     free, on an average, to at least  40 per cent of all their outdoor  patients; and                   (b)     free to all indoor patients  belonging to families with an income  of less than rupees five hundred per  month, and keeping for this purpose at  least 10 per cent of all the hospital  beds reserved for such patients; and  

               (c )    at reasonable charges, either on  the basis of the income of the  patients concerned or otherwise, to  patients other than those specified in  clauses (a) and (b).\024

9. The said CDECs were cancelled/withdrawn by the  Directorate General of Health Services (DGHS) vide its  communication bearing No. Z.37024/13/92-MG dated 14th  November, 2000 addressed to the Chief Executive Director  of the appellant, on the ground that the appellant- hospital had failed to comply with the conditions laid  down in para 2 of the Table annexed to the Notification  extracted above.

10. After about three years, the appellant made a  representation to the Secretary, Ministry of Health and  Family Welfare on 24th September, 2003, seeking  categorization under para 1 (extracted below) instead of  para 2 of the Table annexed to the Notification.           \0231.  All such hospitals as may be certified by the said  Ministry of Health and F amily Welfare, to be run or substantially aided by such charitable  organization as may be approved, from time  to time, by the said Ministry of Health and  Family Welfare\024

11. The said representation came to be rejected by the  DGHS vide its order dated 18th March, 2004.

12. Against the rejection of its aforesaid representation,  the appellant filed the Writ Petition in the High Court,  challenging the communication dated 14th November, 2000  issued by the DGHS, canceling / withdrawing the CDECs  granted to the appellant, and the order dated 18th March,

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2004, declining to categorize the appellant under para 1  of the Table annexed to the Notification.  During the  course of hearing before the High Court, Counsel for the  appellant did not press  the prayer for setting aside the  communication dated 14th November, 2000 and confined the  challenge only to the order dated 18th March, 2004 passed  by the DGHS.

13. Till the year 2003, the appellant accepted and was  rather satisfied of its being categorized under para 2 of  the Table annexed to the Notification.  It was only after  the withdrawal/cancellation of the said CDECs by the  communication dated 14th November, 2000 and, that too,  after a lapse of almost three years, that the appellant  made a representation to the Secretary to the Ministry of  Health and Family Welfare for being categorized under para  1 of the Table annexed to the Notification.          14.  The representation of the appellant, as stated above,  was rejected by the DGHS on the ground that the State  Government had recommended the appellant\022s case only under  para 2 of the Table annexed to the Notification which,  inter alia, stipulates that the hospital has to provide  free treatment to 40 per cent of the outdoor patients and  to all indoor patients whose income is less than Rs.500/-  per month.

15. The High Court, by the impugned order, has upheld the  order passed by the DGHS.  It has been held that the order  passed by the DGHS is not based on irrelevant or  extraneous considerations.  That the appellant could not  claim change in the categorization after having enjoyed  the benefit under para 2 of the Table annexed to the  Notification for about fifteen years.  During the said  period of fifteen years, the appellant did not raise any  grievance with regard to its non-categorization under para  1 of the said Table and its categorization under para 2  thereof.

16. Counsel for the appellant contends that the appellant  was entitled to claim change in the categorization and the  DGHS has erred in holding that the appellant was not  entitled to claim change in its categorization from para 2  to para 1 of the Table annexed to the Notification.  In  support of his submission, the learned Counsel had relied  upon a judgment of this Court in the case of Share Medical  Care v. Union of India & Ors. [(2007) 4 SCC 573] wherein  it has been held, thus:

               \023In the instant case, the ground which  weighed with the Deputy Director General  (Medical), DGHS for non-considering the  prayer of the appellant was that earlier,  exemption was sought under category 2 of  exemption notification, not under category  3 of exemption notification and exemption  under category 2 was withdrawn. This is  hardly a ground sustainable in law. On the  contrary, well settled law is that in case  the applicant is entitled to benefit under  two different Notifications or under two  different Heads, he can claim more benefit  and it is the duty of the authorities to  grant such benefits if the applicant is  otherwise entitled to such benefit.

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Therefore, non-consideration on the part of  the Deputy Director General (Medical), DGHS  to the prayer of the appellant in claiming  exemption under category 3 of the  notification is illegal and improper. The  prayer ought to have been considered and  decided on merits. Grant of exemption under  category 2 of the notification or  withdrawal of the said benefit cannot come  in the way of the applicant in claiming  exemption under category 3 if the  conditions laid down thereunder have been  fulfilled. The High Court also committed  the same error and hence the order of the  High Court also suffers from the same  infirmity and is liable to be set aside.\024

17.     Without going into the question regarding  applicability or otherwise of the decision referred to  above, we are of the view that the appellant is not  entitled to the relief sought for.  The appellant had  given up its challenge to the communication dated 14th  November, 2000 cancelling/withdrawing the CDECs issued to  the appellant for having violated the conditions laid down  for grant of exemption.  The effect of the communication  dated 14th November, 2000 is that the appellant is not  entitled to the exemption under any of the clauses of the  aforesaid Notification on or after 14th November, 2000.    The representation made by the appellant after a lapse of  three years of the cancellation / withdrawal of the CDECs  cannot be entertained, as the change of its category would  not arise as the appellant\022s categorization under para 2  of the Table annexed to the Notification had already been  withdrawn.  Such a change could only be possible if the  appellant had applied for change of its categorization  before the issuance of the communication of the DGHS dated  14th November, 2000 withdrawing / cancelling  the CDECs.

18. Apart from this, the change of categorization was  sought after a lapse of three years of the withdrawal /  cancellation of the CDECs.  Such a representation could  not be entertained after a lapse of three years at the  sweet will of the appellant.  The representation filed by  the appellant in 2003, seeking change of category from  para 2 to  para 1 of the Table annexed to the  Notification, is clearly an after-thought in order to  overcome the failure on the part of the appellant to  comply with the conditions laid down in para 2 of the  Table annexed to the Notification.  The same could not be  entertained after such a lapse of three years of the  communication dated 14th November, 2000.  

19. In the Appeal arising out of SLP) No. 17577 of 2006,  the representation was filed after a lapse of four years  of the withdrawal/cancellation of the CDECs, which, as  held in the preceding paragraphs, could not have been  entertained and the High Court has rightly upheld the  order of rejection of the change of categorization.

20. For the reasons stated above, we are not inclined to  interfere with the orders passed by the High Court.  The  Civil Appeals are, therefore, dismissed with no order as  to costs.