Review Petition (Lodging) No. 67 of 2010,Writ Petition (PIL) No. 3132 of 2004

20th June, 2013

Petitioner Counsel: Mr. A.V. ANTURKAR, i/b. Mr. S.B. DESHMUKH
Respondent Counsel: Ms. GEETA SHASTRY, Mr. J.P. SEN, a/w Mr. R.P. CARVALHO i/b. FEDERAL & RASHMIKANT, Mr. JAMSHED MESTRY

Cases Cited:
National Housing Co-operative Society Ltd. Vs. State of Rajasthan & Ors., (2005) 12 SCC 149 [Para 4]

JUDGMENT

SMT. SADHANA S. JADHAV, J. :- The Petitioners herein by way of this Review Petition are seeking the relief of modification of the Scheme approved by this Hon'ble Court (Coram : R.M.Lodha & S.A. Bobade, JJ.) to Section 41AA of the Bombay Public Trust Act, 1950 in Writ Petiton (PIL) No.3132 of 2004). Pursuant to the Scheme approved by this Court, the Charity Commissioner issued a Circular on 31st August 2006 for implementation of the Scheme approved by this Court. It was directed by this Court that the Scheme would come into operation with effect from 1.9.2006. The Petitioners had filed Writ Petition No.10500 of 2009 praying therein a relief that the Scheme cannot be made applicable to the Petitioner-Trust. The prayer clause (a) reads as follows:-

"(A) That this Honourable Court be pleased to hold that the Scheme framed by this Honourable Court in Writ Petition (PIL) No.3132 of 2004 dated 17th August 2006 is not applicable, to the Petitioner herein, since the Petitioner is not "State Aided Public Trust" within the meaning of S. 41AA(4)(a) of Bombay Public Trusts Act, 1950 and be pleased to restrain the Respondent No.1 and Respondent No.3 from implementing the said Scheme to the Petitioner herein.

2. By an order dated 7th January, 2010, this Court had allowed the Petitioner to withdraw the Petition with liberty to adopt appropriate remedy. The Petitioner approached the Assistant Charity Commissioner seeking the relief that the Scheme approved by this Court, which is now read into Section 41AA is not applicable to the Petitioner-Trust. The Assistant Charity Commissioner by an order dated 1.10.2010, had directed the Petitioner to comply with the entire directions formulated by the High Court, failing which legal action would follow. According to the learned Counsel for the Petitioner, it is in these circumstances that the Petitioner is constrained to approach this Court seeking the reliefs as prayed for therein.

3. The learned Counsel for the Respondent No.2-State and Respondent No.12 have raised a preliminary objection about the maintainability of the Review Petition, especially as the Petitioners were not party to the original Writ Petition and further that they had withdrawn Writ Petition No.10500 of 2009.

4. The learned Counsel for the Petitioner, in order to substantiate his locus, has placed reliance on the Judgment of the Apex Court in the case of National Housing Co-operative Society Ltd. vs. State of Rajasthan & Ors. reported in (2005) 12 SCC 149 and has placed implicit reliance on paras 4 and 6 of the said Judgment and they read as under :-

"4. We are of the view that the High Court has misconstrued the decision in Kunhayammed v. State of Kerala where this Court has categorically held that when a special leave petition is dismissed by a non-speaking order, the High Court could be moved by way of a petition for review (vide para 18 of the judgment).

6. In our view, the decision relied upon does not support the contention. Indeed, para 8 of the decision makes it clear that a person not impleaded as a party has a right to file a special leave petition as well as to file an application for review. It is true that the word "or" has been used. But that word, in the light of the decision of this Court in Kunhayammed v. State of Kerala must be read as "and". In the circumstances, the appeal is allowed. The impugned decision of the High Court is set aside. The matter is remanded back to the High Court. The High Court will now hear the review application of the appellant on merits."

5. The present respondent No.1 had taken out a Notice of Motion No.249 of 2005 which was heard along with the Chamber Summons which was disposed of by this Court by an order dated 15th April, 2009 (Bilal Nazki and Smt. V.K. Tahilramani, JJ). This Court had further granted liberty to the hospitals aggrieved by the Scheme to seek reconsideration before the Competent Authority. The order of this Court dated 15.4.2009 reads as follows :-

"If any of the hospitals wants any reconsideration of the issue under this clause of the Scheme, they are at liberty to approach the authority competent to decide under the scheme.

2. Petition is disposed of accordingly. In view of the disposal of the petition, Notice of Motion Nos. 249 of 2005, 367 of 2005, 370 of 2005, 386 of 2005 and Chamber Summons Nos. 185 of 2005, 210 of 2005, 392 of 2007 and 245 of 2006 taken out in the Petition, are also disposed of."

Hence, the present Review Petition is being heard and considered by this Bench as V.K.Tahilramani, J was a party to the order dated 15th April, 2009 by which the hospitals were given liberty to approach the Competent Authority

6. According to the Counsel for the petitioner, the Assistant Charity Commissioner has not considered sub-section (4) of Section 41AA of the Bombay Public Trusts Act, 1950 (hereinafter for short "BPT Act) which reads as follows :-

S. 41AA. Power of Charity Commissioner and State Government to issue directions in respect of hospitals, etc., to earmark certain beds etc. for poorer patients to be treated free of charge or at concessional rates :

(4) For the purposes of this section, -

(a) "State-aided public trust" means a public trust exclusively for medical relief or for medical relief and other charitable purposes, which maintains a hospital (including any nursing home or maternity home), dispensary or any other centre for medical relief and which -

(i) has received any grant of land or building, either on ownership basis or on lease or leave and licence, at a nominal or concessional rate, from the State Government or the Central Government or any local authority; or

(ii) has been given by the State Government any exemption or permission to continue to hold any vacant land under Section 20 or 21 of the Urban Land (Ceiling and Regulation) Act, 1976 (XXXIII of 1976);

(iii) has been given any concession or exemption or relaxation of a substantial nature from the Development Control Rules by any competent authority for the purposes of the trust; or

(iv) has received any loan or guarantee or any nonrecurring grant-in-aid or other financial assistance from the State Government, the Central government or any local authority,"

According to the Counsel, it is clear that hospitals who have received land on ownership, lease or leave and license on a nominal or concessional rate from the State or Central Government would come within the purview of State aided public trust and that the petitioners are not covered under sub-section (4)(a)(i) of Section 41AA of the BPT Act as they have not received any such grant. Similarly, they are not covered under sub-section (ii) of Section 41AA as it pertains to land.

7. The learned Counsel appearing for the Assistant Charity Commissioner has filed an affidavit in reply stating therein in para 2 that the petitioners in addition to the Scheme formulated by this Court would BE covered under sub-section (iii). Paras 2 and 3 read as under :-

"2....The BPT Act, does not distinguish State Aided Charitable Hospital and other General Charitable Hospitals under Section 41AA of BPT Act. State Aided Public Trust means a Public Charitable Trust exclusively for medical relief or for other charitable purposes which maintains a hospital, including any nursing home or maternity home, dispensary or any other centre for medical relief, and which (I) has received any grant of land or building either on ownership basis or on lease or leave and license basis, at a nominal or concessional rate from the State Government or the Central Government or any local authority etc. Section 41-AA sub-section 4(iv) states that, State Aided Public Trust means a public trust exclusively for medical relief and maintaining hospital, nursing home, medical centre for medical relief, and which has received any loan or guarantee or any non-repaying grant-in-aid or other financial assistance or receiving any recurring grant-in-aid or other financial assistance from the State Government, central Government or any local authority." I therefore say that the other financial assistance from the State Government, Central Government or any other local authority will include exemption granted under Section 58(II) of the Bombay Public Trust Act and the concession given by the State Government by virtue of sales tax or under the Electricity Act or any other concession under any other Act to such type of Trusts.

3. Under Section 58 of the Bombay Public Trust Act, Public Trust is required to make contribution to the Public Trust Administrative Fund. The said payment is to be made annually at the rate or rates not exceeding 5% of the gross annual income or gross annual collection or receipts as the case may be, as may be notified from time to time by State Government by Order published in the Official Gazette. Under Section 58(2) exemption from payment of contribution by the Public Trust which are exclusively for the purpose of advancement and propagation of education or exclusively for the purpose of water conservation or for purpose of development for forests, horticulture or agriculture or exclusively for the purpose of welfare of Schedule caste, Schedule Tribes, de-notified tribes, nomadic tribes or women or exclusively for the purpose of medical relief etc. In respect of State of Maharashtra, as per Government Notification No. 10012/P dated 15.5.1974, all hospitals registered under the provisions of the BPT Act, 1950, are exempted from making payment of contribution to Public Trust Administrative Fund. Hence under Section 58(II) all Public Charitable Trusts registered under the BPT Act enjoy exemption from payment and in view of the financial assistance in form of exemption granted to the BPT, makes the Trust come within the purview of the definition of Section 41-AA, Clause 4 of Sub-Section (iv). 'Shri Seva Medical Foundation' is running a hospital, nursing home, maternity home as a Public Trust, exclusively for medical relief, having annual expenditure of more than Rs. 5 lakhs. In view of Section 41-AA Clause-4 sub-section (iv) read with Section 58(II) of BPT Act, the scheme as contemplated under Section 41-AA is applicable to the Trust of the Petitioner, i.e. Shri Seva Medical Foundation."

8. The learned Counsel appearing for the Assistant Charity Commissioner further submits that the financial assistance contemplated under sub-clause (iv) is applicable to the present Petitioner as it speaks of grant-in-aid or other financial assistance from the State or Central Government. This financial assistance includes exemption granted under Section 58(II) of BPT Act and the concession given by the State Government by virtue of Sales Tax Act or under the Electricity Act. That the Petitioner is running a hospital having annual expenditure of more than Rs.5 lakhs and, therefore, Section 41-AA clause (iv) of sub-section (4) read with Section 58(II) of the BPT Act, the Scheme is applicable to the Trust of the Petitioner.

9. It is further submitted by the Respondent that the contentions raised by the review petitioner were considered by this Court at the time of hearing of the Writ Petition No.3132 of 2004 and further by an order dated 15th April, 2009 also this Court had considered the status of the hospitals which were aggrieved by the Scheme formulated by this Court and, therefore, the contentions raised in the review petition need not be considered.

10. The Respondents have rightly urged before us that the review petitioners ought to have challenged the order of the Assistant Charity Commissioner before the appropriate forum. Initially, although the Scheme was to take effect from 1.9.2006, the Petitioner had approached this Court by filing Writ Petition in the year 2009 which was allowed to be withdrawn in 2010. At present, the Scheme formulated by this Court is being implemented and, therefore, the Review Petition is not maintainable. It is also brought to the notice of the Court that the Scheme formulated by this Court contemplated constitution of Monitoring Committee at all levels including District level. It is clear from the record and submissions of the learned Counsel that the Petitioners have not approached the Monitoring Committee. It is not the case of the Petitioner that the Monitoring Committee has not been constituted pursuant to the directions of this Court.

11. We do not see any error apparent on the face of the record to consider the contentions raised in the Review Petition. The grounds raised in Writ Petition No.10500 of 2009 are para materia raised in the present Review Petition. Writ Petition No.3132 of 2004 was filed in the nature of public interest litigation. The Court had considered the interest of the public at large and had formulated a Scheme for making grant-in-aid meaningful for the weaker sections of the community. The Scheme was formulated on the principle that the public interest litigation was an arm of the legal movement intended to bring justice within the reach of the poor masses. The petitioners are in fact seeking the relief of exemption from the Scheme under the garb of review petition, which cannot be entertained in the larger interest of the society.

12. So far as review is concerned, the legal position is that a review of an earlier order is not permissible unless the Court is satisfied that material error manifest on the face of order undermines its soundness or results in miscarriage of justice. A review of a judgment is an extreme step and cannot be resorted to unless there is a glaring omission or addition which would thwart the established principles of law.

13. The Scheme is formulated by the Division Bench of this Court after considering the relevant provisions of the Bombay Public Trust Act, 1950 and the need for modification of Section 41AA in the larger interest of society. We are of the considered opinion that the Scheme formulated by this Court does not call for any interference.

Hence, the Review Petition stands dismissed with no order as to costs.

Review petition dismissed.