Bhaskar Bhattacharya, J.:— This mandamus-appeal is at the instance of a writ petitioner and is directed against the order dated 16th July, 2004 passed by a learned Single Judge by which His Lordship dismissed the writ application on the ground that the writ petitioner had no locus standi to maintain the said writ application.
2. Being dissatisfied, the writ petitioner has come up with the present mandamus appeal.
3. The facts giving rise to the filing of the present mandamus appeal may be summed 3, up thus:
(a) Sumanta Mukherjee, the son of the present appellant, met with an accident on 14th January, 2001 at 8:10 a.m and was immediately taken to the Ruby General Hospital. According to the appellant, the Hospital authority insisted on depositing a sum 3 of Rs. 15,000/- for the treatment of his son. The said Sumanta Mukherjee had a Mediclaim policy with the New India Assurance Company Limited and promised to pay the said amount but the Hospital authority, after starting initial treatment, refused to continue with the same, for non-payment of the amount, as a result, he was removed to the National Medical College and Hospital where the said Hospital authority declared him “brought dead”.
(b) The present appellant lodged a complaint before the Police authority but according to him, no step was taken against the Hospital authority.
(c) The appellant came to know from the report published in the newspapers that the Ruby General Hospital had violated the provisions of the West Bengal Clinical Establishments Act, 1950 (hereinafter referred to as the Act) and a notice was issued by the Health Department thereby directing that the Hospital be closed. It also appeared in the daily newspapers on 30th May, 2002 that the State Health Minister refused to renew the licence to the said authority for violation of the provision of the Act. Subsequently, the Hospital authorities were directed to give an undertaking that they would not return any critical patient and on such undertaking, the State respondent decided to renew their licence temporarily for every three months.
(d) It further appeared that the Principal Secretary to the Government of West Bengal gave a hearing to the Hospital authority and thereafter, on accepting the undertaking given by one Sajal Dutta on behalf of Ruby General Hospital, allowed the prayer of the Hospital and permitted them to function further.
(e) In the writ application, the appellant prayed for mandamus directing the State respondent to enforce the order of cancellation of licence of Ruby General Hospital and further commanding them to withdraw the order of renewal granted on 11th June, 2002 and to take step in terms of Section 7 of the said Act. The provision contained in Section 4-A of the Act was also claimed to be ultra vires the Constitution of India.
(f) Prior to the filing of the present writ application, the appellant filed a Public Interest Litigation before the Division Bench of this Court being W.P No. 10313(W) of 2002 but on 2nd August, 2002 the learned counsel for the appellant withdrew the said Public Interest Litigation without prejudice to the right of his client to file appropriate writ application in the proper forum. The Division Bench accepted the said prayer and the Public Interest Litigation was dismissed as withdrawn.
(g) The petitioner thereafter filed the writ application out of which the present appeal arises and the learned single Judge by the order dated 16th July, 2004 rejected the writ application as not maintainable.
4. Being dissatisfied, the appellant has come up with the present mandamus appeal.
5. Mr. Bhattacharya, the learned advocate appearing on behalf of the appellant strenuously contended before us that the learned single Judge erred in law in holding that the present writ application is not maintainable. Mr. Bhattacharya submits that his client also filed a claim for compensation against the Hospital authority before the Consumer Forum and ultimately, the National Forum directed the Ruby General Hospital Authority to make payment of Rs. 10,00,000/- as compensation and on an appeal filed by the Hospital authority before the Apex Court, the same was enhanced to Rs. 15,00,000/-. Mr. Bhattacharya contends that the negligence on the part of the Hospital authority being thus proved, it was the duty of the State respondent not to renew the licence as the same will endanger the life of other citizens in future.
6. Mr. Bhattacharya contends that apart from his client's right to claim damages, he has also right to see that no licence is further granted to the Hospital authority. He, thus, prays for setting aside the order impugned and passing necessary order on merit.
7. Mr. Pal, the learned senior counsel appearing on behalf of the Hospital authority, however, has disputed the aforesaid contention of Mr. Bhattacharya and has contended that even if it is assumed for the sake of argument that there was some negligence on the part of the Hospital, the appellant has been paid compensation and as such, he has no right to pray for cancellation of the license. Mr. Pal submits that for the said incident of negligence, even if it is assumed to be proved, the licence of a Hospital cannot be cancelled unless there is repeated violation of law laid down in the Act. Mr. Pal, however, contends that in this case, his client is specifically disputing the allegation of negligence made by the writ petitioner. He, therefore, supports the order passed by the learned Trial Judge.
8. After hearing the learned counsel for the parties and after going through the materials on record we find that the order passed by the learned single Judge is quite justified in the facts of the present case. In order to maintain a writ-application under Article 226 of the Constitution of India at the instance of an individual, it must be proved that such an individual has a legal or fundamental right in his favour and that by the action or inaction of a “State” within the meaning of Article 12 of the Constitution of India, such right has been infringed. The writs in the nature of habeas corpus, Quo warranto and the Public Interest Litigation are the exceptions to the aforesaid principle. (See: State of Orissa v. Ram Chandra reported in AIR 1964 SC 685).
9. In the case before us, in the West Bengal Clinical Establishments Act, 1950, the public in general or any individual in particular, has not been given any authority to intervene in the matter of grant of licence of a Hospital unlike the provisions of the Advocates Act and the Bengal Medical Act in the matter of removal of names of the Advocates or the Medical Practitioner respectively from the rolls maintained by the Councils on the ground of professional or other misconduct. Here, there is no provision of hearing a complainant who has been affected by the negligent act of the Hospital in the matter of grant or renewal of licence to such a Hospital nor is there any provision of giving hearing, even if, somebody of his own comes forward alleging violation on the part of the Hospital authority in performing the statutory duties enjoined under the Act. In such a situation, in our view, an ordinary writ application is not maintainable as even by the illegal grant or renewal of licence to a Hospital, no legal right of the writ petitioner has been infringed.
10. However, we are quite conscious that in the case of violation of the provisions contained in the Act, if the State authority ignores such provision, a Public Interest Litigation is maintainable provided the criteria of maintaining such an application are satisfied by the writ petitioner in a given situation. The present one being not a Public Interest Litigation, the learned single Judge rightly held that the petitioner had no locus standi to maintain the same. At this juncture, Mr. Bhattacharya submits that even at this stage his client will not be able to file a fresh Public Interest Litigation as he had already withdrawn the previous one on the assumption that the present writ application is the appropriate one.
11. In our view, the apprehension expressed by Mr. Bhattacharya is a baseless one; if a regularly constituted Public interest Litigation is withdrawn on the basis of concession of a learned advocate due to misconception of law, such concession being one on a pure question of law, is not binding upon the litigant (See: Tripura Goods Transport Association v. Commissioner of Taxes reported in (1998) 2 SCC 264 : (AIR 1998 SC 465). Therefore, if the writ petitioner is otherwise entitled to maintain a Public Interest Litigation, he can file such application and the prior order of permission of withdrawal, if really passed on the basis of concession of law by a learned advocate, cannot stand in his way at the subsequent stage. Mr. Pal, however, seriously disputed the fact that the previous Public Interest Litigation was withdrawn on the basis of erroneous conception of law. Since, we are not called upon to decide all these questions, we refrain from commenting whether at the instance of the appellant a Public Interest Litigation on the present dispute is maintainable or whether at the time of withdrawal of the previous writ application, the same was withdrawn really on the basis of misconception of law.
12. We, thus, find no merit in this appeal and the same is accordingly dismissed. In the facts and circumstances, there will be, however, no order as to costs.
Prabuddha Sankar Banerjee, J.:— 13. I agree.
Appeal dismissed.