C. Yusuf Haji v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE SHAJI P.CHALY** **THURSDAY, THE 01ST DAY OF OCTOBER 2020 / 9TH ASWINA, 1942** ## **WP(C).No.20618 OF 2020** ## **PETITIONER:** **C. YUSUF HAJI AGED 72 YEARS, S/O. B.AHAMED HAJI, R/AT SHERIFA MANZIL, KANHANGAD KADAPPURAM, KASARGOD DISTRICT - 671 315. BY ADVS. SRI.SURESH KUMAR KODOTH SRI.K.P.ANTONY BINU** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 003. 2 THE DISTRICT COLLECTOR, KASARGOD, 671 123, (EX-OFFICIO CHAIRMAN, COVID 19, DISTRICT LEVEL CORE COMMITTEE). 3 THE DISTRICT MEDICAL OFFICER, KASARGOD, KANHANGAD 671 315. SRI.ARAVINDAKUMAR BABU, SR. GP FOR RESPONDENTS** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C):20618/2020 -:2:- ## **JUDGMENT** Dated this the 1[st] day of October, 2020 ## **Manikumar, CJ** Being aggrieved by the decision of the respondents to convert the Government District Hospital, Kasaragod at Kanhangad, into an exclusive Covid hospital, instant public interest writ petition is filed seeking for the following reliefs: - “i) Issue a writ of mandamus directing respondents to desist from taking any action to make the District Government Hospital at Kanhangad an exclusive COVID-19 treatment centre; - ii) Issue writ of certiorari or any other writ to quash Exhibit-P1 order dated 28.09.2020 passed by the District Medical Officer, Kasaragod, respondent No.3, and to declare it as illegal. - iii) Issue a further direction to the respondents to continue to provide treatment and medical services from the Government District Hospital.” 2. Facts leading to the filing of instant writ petition are that petitioner is a resident of Kanhangad Village. As a member of the District Hospital Development Committee and the Kanhangad Town Development Action Committee, the Merchants Association etc., he is engaged in public and social activities. 3. Petitioner has stated that the Government District Hospital is the only hospital in Kasaragod, which provides specialist medical services W.P.(C):20618/2020 -:3:- ranging from Cancer care and Dialysis to Orthopaedic and Ante-natal care and secondary health care services. The hospital was initially started, upgrading the erstwhile Taluk Hospital, Kanhangad, and in the year 2004, it was shifted to the new building. It has the strength of treating 360 patients as inpatients, besides, providing service to 10001500 outpatients daily. 4. Petitioner has further stated that with the formation of the Managing Committee, in terms of Section 173A of the Kerala Panchayat Raj Act, 1994, the hospital was brought under the administration of the District Panchayat. With the alarming surge in the number of cases infected with corona virus in the district, two hospitals were established by the Government, exclusively for Covid treatment, but failed to provide the required staff and health care infrastructure. Consequently, they are functioning only as First Line Treatment Centres (FLTC), which really serve no purpose, as patients with asymptomatic and mild symptoms would opt to stay at home. 5. Petitioner has further stated that the absence of secondary health care services in both the hospitals apparently has forced respondents 2 and 3 to make the District Hospital an exclusive Covid hospital. Although some alternatives were suggested to mitigate the hardship of the patients, not affected with corona virus, the decision to W.P.(C):20618/2020 -:4:- covert the Government District Hospital, Kanhangad, as an exclusive Covid hospital, would only result in deprivation of medical services, particularly, critical care. 6. The petitioner has further contended that if the decision is implemented, it would have serious consequences and deleterious impact on the life of people. In such circumstances, this Public Interest Litigation is filed, raising the following grounds: - A. Exhibit-P1 decision taken by the respondents to convert the Government District Hospital into exclusive Covid Treatment Centre is ex facie illegal, arbitrary, and liable to be declared as such by this Court under Article 226 of the Constitution of India. - B. The obligation cast upon the State to protect the life of citizens cannot be abdicated and the inviolable right to medical services and care to preserve life available to people is not available to be infracted upon, through arbitrary and irrational administrative fiats. - C. Administrative action, which have the consequences of taking away the right of proper medical care and treatment, would not stand the scrutiny of law in the touchstone of Article 21 of the Constitution. The reason in Exhibit-P1 is wholly attributable to the failure of the Government to provide health care infrastructure and staff in the hospitals established for the purpose. - D. As held by the Hon'ble Apex Court in **Pramanand v.** W.P.(C):20618/2020 -:5:- **Union of India,** AIR 1989 SC 2039, right to life enshrined in Article 21 of the Constitution of India necessarily encompasses the obligation of the State to provide medical aid to the citizens. In **PKBM Smithy v. State of WB,** 1996 KHC 482, the Hon'ble Supreme Court stated that providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare State. Right to health and medical care is the facet of Article 21 of the Constitution. The State is constitutionally obliged to provide free medical treatment to those who cannot afford to pay for such services. The alternative measures suggested to mitigate cessation of multi specialised services also becomes meaningless. 7. Based on the above, learned counsel for the petitioner made submissions. 8. Heard learned counsel for the parties and perused the material available on record. 9. Exhibit-P1 proceedings of the District Medical Officer, Kasaragod, (3[rd] respondent), reads thus: “Proceedings of the District Medical Officer, Kasaragod (Health), Kanhangad Sub: Covid-19 - Conversion of District hospital, Kanhangad as Covid hospital-Orders issued. - Ref: Decision of the Core Committee meeting held by the District Collector on 11.09.2020. ## - Order No. C3 7014/2020/GMO (Health) Kanhangad, W.P.(C):20618/2020 -:6:- ## dated 28.09.2020. As per reference cited, it is hereby ordered to make the District Hospital an exclusive Covid hospital. The heads of institutions concerned, as shown appended to this order shall make necessary arrangements to implement this. Sanction is hereby accorded to shift the swab collection centre presently working in District hospital to Government Higher Secondary School, Department of Gynaecology, OP & IP, Labour room, operation theatre to Laxmi Megan Hospital, Kanhangad. ## Dr. Ramdas A.V. ## District Medical Officer (Health), Kasaragod Kanhangad” 10. First of all, this writ petition seemed to have been filed solely on the basis of a newspaper report. Though the petitioner has claimed to be a public interest litigant, no efforts have been taken by him to find out the facilities available in the hospitals and the staff structure. Except a newspaper report, no other document is filed in support of the contentions raised. ## 11. In **Guruvayur Devaswom Managing Committee & Anr. v.** **C.K.Rajan & Others** [(2003) 7 SCC 546], the Hon'ble Supreme Court has summarised the principles with respect to filing a Public Interest Litigation and they are reproduced: “(i) The Court in exercise of powers under Article 32 and Article 226 of the Constitution of India can entertain a petition W.P.(C):20618/2020 -:7:- filed by any interested person in the welfare of the people who is in a disadvantaged position and, thus, not in a position to knock the doors of the Court. The Court is constitutionally bound to protect the fundamental rights of such disadvantaged people so as to direct the State to fulfill its constitutional promises. [See S.P. Gupta v. Union of India, People's Union for Democratic Rights v. Union of India (1982) 2 SCC 494, Bandhua Mukti Morcha v. Union of India and Others (1984) 3 SCC 161 and Janata Dal v. H.S.Chowdhary (1992) 4 SCC 305)] (ii) Issues of public importance, enforcement of fundamental rights of a large number of the public vis-a-vis the constitutional duties and functions of the State, if raised, the Court treats a letter or a telegram as a public interest litigation upon relaxing procedural laws as also the law relating to pleadings. [See Charles Sobraj v. Supdt., Central Jail, Tihar, New Delhi (1978) 4 SCC 104 and Hussainara Khatoon and Others v. Home Secretary, State of Bihar (1980) 1 SCC 81)] (iii) Whenever injustice is meted out to a large number of people, the Court will not hesitate in stepping in. Articles 14 and 21 of the Constitution of India as well as the International Conventions on Human Rights provide for reasonable and fair trial. In Mrs. Maneka Sanjay Gandhi v. Rani Jethmalani (AIR 1979 SCC 468), it was held: "2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperiling, from the point of view of W.P.(C):20618/2020 -:8:- public justice and its attendant environment, is necessitous if the court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner’s grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances.” [See also Dwarka Prasad Agarwal (D) By Lrs. and Anr. v. B.D. Agarwal and Ors. (2003) 5 SCALE 138] (iv) The common rule of locus standi is relaxed so as to enable the Court to look into the grievances complained on behalf of the poor, the depraved (sic), the illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right. [See Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India, AIR 1981 SC 344, S.P. Gupta (supra), People's Union for Democratic Rights (supra), Dr. D.C. Wadhwa (Dr) v. State of Bihar (1987) 1 SCC 378 and BALCO Employees' Union (Regd.) v. Union of India and Others [(2002) 2 SCC 333] (v) When the Court is prima facie satisfied about variation of any constitutional right of a group of people belonging to the disadvantaged category, it may not allow the State or the Government from raising the question as to the maintainability of the petition. (vi) Although procedural laws apply to PIL cases but the question as to whether the principles of res judicata or principles analogous thereto would apply depends on the nature of the petition as also facts and circumstances of the case. [See Rural Litigation and Entitlement Kendra v. State of U.P., 1989 Supp (1) SCC 504 and Forward Construction Co. v. W.P.(C):20618/2020 -:9:- Prabhat Mandal (Regd.), Andheri and others (1986) 1 SCC 100] (vii) The dispute between two warring groups purely in the realm of private law would not be allowed to be agitated as a public interest litigation. (See Ramsharan Autyanuprasi v. Union of India and Others 1989 Supp (1) SCC 251) (viii) However, in an appropriate case, although the petitioner might have moved a court in his private interest and for redressal of personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice. (See Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi and Others (1987) 1 SCC 227). (ix) The Court in special situations may appoint a Commission, or other bodies for the purpose of investigating into the allegations and finding out facts. It may also direct management of a public institution taken over by such Committee. (See Bandhua Mukti Morchai, Rakesh Chandra Narayan v. State of Bihar (1989) Suppl 1 SCC 644 and A.P. Pollution Control Board v. Prof. M.V. Nayudu (1999) 2 SCC 718). In Sachidanand Panday and Another v. State of West Bengal and others [(1987) 2 SCC 295], this Court held,- “61. It is only when courts are apprised of gross violation of fundamental rights by a group or a class action on when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this Court, should leave aside procedural shackles and hear such petitions and extent its jurisdiction under all available provisions for remedying the hardships and miseries of the need, the underdog and the neglected. I will be second to none in extending help when such is required. But this does mean that the doors of this Court are always open W.P.(C):20618/2020 -:10:- for anyone to walk in. It is necessary to have some self-imposed restraint on public interest litigants." 12. This Court in the unreported judgment dated 30.06.2020 in ## **B. Radhakrishna Menon v. State of Kerala and Ors.** [W.P.(C) No.12109 of 2020], at paragraph 45, held thus: “45. Placing reliance on the above decisions, the learned Senior Government Pleader submitted that a public interest writ petition which lacks bona fides, lack of particulars satisfying the requirements of a PIL, deserves to be dismissed with costs. Having regard to decisions considered in **Mythri Residents Association** **v. Secretary, Tripunithura Municipality and Others,** [2019 KHC 832], it has been summarised by the journal thus: “(1) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations. (2) Instead of every individual Judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the rules prepared by the High Court is sent to the Secretary General of this Court immediately thereafter. (3) The Courts should prima facie verify the credentials of the petitioner before entertaining a PIL. (4) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL. (5) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition. (6) The Courts should ensure that the petition which involves larger public interest, gravity and urgency must be given W.P.(C):20618/2020 -:11:- priority over other petitions. (7) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation. (8) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations. (9) The misuse of public interest litigation is a serious matter of concern for the judicial process. (10) Both this Court and the High Courts are flooded with litigations and are burdened by arrears. (11) Frivolous or motivated petitions, ostensibly invoking the public interest detract from the time and attention which courts must devote to genuine causes. (12) This Court has a long list of pending cases where the personal liberty of citizens is involved. (13) Those who await trial or the resolution of appeals against orders of conviction have a legitimate expectation of early justice. (14) It is a travesty of justice for the resources of the legal system to be consumed by an avalanche of misdirected petitions purportedly filed in the public interest which, upon due scrutiny, are found to promote a personal, business or political agenda. (15) This has spawned an industry of vested interests in litigation. (16) There is a grave danger that if this state of affairs is allowed to continue, it would seriously denude the efficacy of the judicial system by detracting from the ability of the court to devote its time and resources to cases which legitimately require attention. (17) Worse still, such petitions pose a grave danger to the credibility of the judicial process. (18) This has the propensity of endangering the credibility of W.P.(C):20618/2020 -:12:- other institutions and undermining public faith in democracy and the rule of law. (19) This will happen when the agency of the court is utilised to settle extra-judicial scores. Business rivalries have to be resolved in a competitive market for goods and services. (20) Political rivalries have to be resolved in the great hall of democracy when the electorate votes its representatives in and out of office. (21) Courts resolve disputes about legal rights and entitlements. (22) Courts protect the rule of law. (23) There is a danger that the judicial process will be reduced to a charade, if disputes beyond the ken of legal parameters occupy the judicial space.” ## 13. Public interest writ petition purely on the basis of newspaper report is not maintainable. On the said aspect, let us consider a few decisions. (i) In **Laxmi Raj Shetty and Ors. v. State of Tamil Nadu** reported in (1988) 3 SCC 319, the Hon'ble Supreme Court held as under: “32...............We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliened. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under Section 81 of the Evidence Act to a newspaper report cannot be treated as proved of the facts reported therein. 33. It is now well-settled that a statement of fact contained in a newspapers is merely hearsay and therefore inadmissible in evidence in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact reported. The accused should have therefore produced the persons in whose presence W.P.(C):20618/2020 -:13:- the seizure of the stolen money from appellant No. 2's house at Mangalore was effected or examined the press correspondents in proof of the truth of the contents of the news item. The question as to the admissibility of newspaper reports has been dealt with by this Court in **Samant N. Balakrishna v. George Femandez and Ors.** [1969] 3 SCR 603. There the question arose whether Shri George Femandez, the successful candidate returned to Parliament from the Bombay South Parliamentary Constituency had delivered a speech at Shivaji Park attributed to him as reported in the Maratha, a widely circulated Marathi newspaper in Bombay, and it was said: “A newspaper report without any further proof of what had actually happened through witnesses is of no value. It is at best a secondhand secondary evidence. It is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible.” (ii) In **Vikas Vashishth v. Allahabad High Court** reported in (2004) 13 SCC 485, the Hon'ble Supreme Court held as under: "At the very outset, we put it to the petitioner that a bare perusal of the petition shows that it is based entirely on newspaper reports and asked him whether before filing the petition he has taken care to verify the facts personally. His answer is in the negative. In the writ petition all the 21 High Courts have been included as respondents and Union of India has also been impleaded as the 22[nd] respondent. We asked the petitioner what has provoked him to implead all the High Courts as respondents and he states that it is his apprehension that similar incidents may occur in other High Courts though there is no factual foundation for such appreciation. 5. After affording the full opportunity of hearing, we are satisfied that what purports to have been filed as a public interest litigation is nothing more than a "publicity W.P.(C):20618/2020 -:14:- interest litigation". It is writ large that it has been filed without any effort at verifying the facts by the petitioner personally." (iii) In **Rohit Pandey v. Union of India** reported in (2005) 13 SCC 702, Hon'ble Apex Court held as under: "1. This petition purporting to be in public interest has been filed by a member of the legal fraternity seeking directions against the respondents to hand over the investigation of the case pertaining to recovery of light machine gun, which is said to have been stolen from the army according to reports published in two newspapers, to the Central Bureau of Investigation for fair investigation to ensure that the real culprits who are behind such theft of army arms and ammunition endangering the integrity and sovereignty of the country may be brought to book and action may be taken against them in accordance with law. The only basis for the petitioner coming to this Court are two newspaper reports dated 25-1-2004, and the other dated 12-2-2004. This petition was immediately filed on 16-2-2004 after the aforesaid second newspaper report appeared. On enquiry from the learned counsel, we have learnt that the petitioner is a young advocate having been in practice for a year or two. The Union of India, the State of Uttar Pradesh and the Chief Minister of the State of Uttar Pradesh, have been arrayed as party respondents. In the newspaper reports, there is no allegation either against the Union of India or against the Chief Minister. 2. We expect that when such a petition is filed in public interest and particularly by a member of the legal profession, it would be filed with all seriousness and after doing the necessary homework and enquiry. If the petitioner is so public-spirited at such a young age as is so professed, the least one would expect is that an enquiry would be made from the authorities concerned as to the nature of investigation which may be going on before filing a petition that the investigation be conducted by the Central Bureau of Investigation. Admittedly, no such measures were taken by the petitioner. There is nothing in the petition as to what, in fact, prompted the petitioner to approach this Court within two-three days of the second publication dated 12-2-2004, in the newspaper Amar Ujala. Further, the W.P.(C):20618/2020 -:15:- State of Uttar Pradesh had filed its affidavit a year earlier i.e. on 7-10-2004, placing on record the steps taken against the accused persons, including the submission of the charge-sheet before the appropriate court. Despite one year having elapsed after the filing of the affidavit by the Special Secretary to the Home Department of the Government of Uttar Pradesh, nothing seems to have been done by the petitioner. The petitioner has not even controverted what is stated in the affidavit. Ordinarily, we would have dismissed such a misconceived petition with exemplary costs but considering that the petitioner is a young advocate, we feel that the ends of justice would be met and the necessary message conveyed if a token cost of rupees one thousand is imposed on the petitioner." (iv) In **Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra and Ors.** reported in (2007) 14 SCC 281, the Hon'ble Supreme Court held as under: “18. Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. (See State of Maharashtra v. Prabhu (1995) ILLJ 622 SC, and Andhra Pradesh State Financial Corporation v. GAR Re-Rolling Mills and Anr. [1994] 1 SCR 857. No litigant has a right to unlimited draught on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. [See Dr. B.K. Subbarao v. Mr. K. Parasaran (1996 CriLJ 3983)]. Today people rush to Courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in Courts and among the public. 19. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that Courts are flooded with large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have W.P.(C):20618/2020 -:16:- been indicated by this Court in large number of cases, yet unmindful of the real intentions and objectives, Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. It is also noticed that petitions are based on newspaper reports without any attempt to verify their authenticity. As observed by this Court in several cases newspaper reports do not constitute evidence. A petition based on unconfirmed news reports, without verifying their authenticity should not normally be entertained. As noted above, such petitions do not provide any basis for verifying the correctness of statements made and information given in the petition. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with costs as afore-stated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the Courts.” 14. There cannot be any quarrel that right to life enshrined in Article 21 of the Constitution of India, encompasses the obligation of the State to provide adequate medical facilities to the people. Grievance of the petitioner that in the other hospitals, medical facilities are available, cannot be a ground to assail the correctness of the decision to covert the Government District Hospital, Kanhangad, as an exclusive Covid hospital, which is a necessity. 15. Judicial notice can be taken that the number of COVID-19 patients are on the increase and in particular, more in Kasaragod district. They require immediate treatment. They are to be housed and treated, keeping in mind the directives issued by the Central/State governments from time-to-time and the Covid Protocol. Decisions to declare W.P.(C):20618/2020 -:17:- Government District Hospital, Kanhangad, cannot be said to be an arbitrary decision, warranting interference under Article 226 of the Constitution of India. In the light of the above discussion and decisions, instant writ petition is dismissed. Sd/- **S.Manikumar, Chief Justice** Sd/- **Shaji P.Chaly Judge** **vpv** W.P.(C):20618/2020 -:18:- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF ORDER DATED 28.09.2020 ISSUED BY 3RD RESPONDENT, ALONG WIITH TRANSLATION. EXHIBIT P2 TRUE COPY OF NEWS ITEM CARRIED IN THE INDIAN EXPRESS DAILY DATED 25.9.2020.** /true copy/ P.A. to Judge