Poor Cancer patient moves Delhi High Court against Rajiv Gandhi Cancer Institute on denial of free treatment - Hearing tomorrow

IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P. (C) No.____ of 2015

IN THE MATTER OF:

RUKHSANA                                                           ..PETITIONER

VERSUS

RAJIV GANDHI CANCER INSTITUTE AND RESEARCH CENTRE & ORS.                                                   …RESPONDENTS

AND

IN THE MATTER OF:

Civil writ petition under Article 226 of the Constitution of India;

And

IN THE MATTER OF:

Impugned violation of the Fundamental and Human Right to life and medical aid of the petitioner, 45 year old Rukhsana, (CR No.185368), a patient of NHL-Diffuse Large B Cell Lymphoma Stage IV, a form of Cancer, as guaranteed to her under Article 21 of the Constitution of India read with Articles 38, 39, 41 & 47 of the Constitution of India;

And

IN THE MATTER OF:

Impugned dereliction by the Rajiv Gandhi Cancer Institute and Research Centre, respondent no.1 herein ("the respondent-Hospital") of its legal obligation to provide free treatment to the petitioner on account of land-allotment on institutional (concessional) rates by the respondent-DDA, as expressly spelt out in the mortgage-permission letter dated 29.06.1993 issued by the respondent-Delhi Development Authority (DDA) and on account of the petitioner's EWS status;

And

IN THE MATTER OF:

Impugned inaction on the part of the respondents to act upon the representations dated 08.06.2015 and 10.06.2015 requesting for free treatment to the petitioner;

And

IN THE MATTER OF:

Impugned inaction on the part of the respondent-DDA to proceed against the respondent-hospital despite the latter's continuing dereliction of its obligation to provide free treatment to the extent of 25% OPD and 10% IPD to EWS patients including the petitioner on account of land-allotment on institutional (concessional) rates by the respondent-DDA and in terms of the Division Bench Order dated 22.03.2007 of this Hon'ble Court in Social Jurist vs. Government of NCT of Delhi & ors. 140 (2007) DLT  698.

TO

THE HON'BLE CHIEF JUSTICE OF THE HIGH COURT OF DELHI AT NEW DELHI AND THE PUISNE JUDGES OF THE SAID HIGH COURT

The humble petition of the petitioner above-named

MOST RESPECTFULLY SHOWETH

1.                 That the present writ petition is directed against the impugned dereliction by Rajiv Gandhi Cancer Institute and Research Centre, the  respondent-Hospital herein, of its legal obligation to provide free treatment to the petitioner on account of land-allotment on institutional (concessional) rates by the respondent-DDA, as expressly spelt out in the mortgage-permission letter dated 29.06.1993 issued by the respondent-DDA and on account of the petitioner's EWS status, resulting in violation of the Fundamental and Human Right to life and medical aid of the petitioner, 45-year-old Rukhsana, a patient of NHL-Diffuse Large B Cell Lymphoma Stage IV, as guaranteed to her under Article 21 of the Constitution of India read with Articles 38, 39, 41 & 47 of the Constitution. It is further directed against the impugned inaction on the part of the respondents to act upon the representations dated 08.06.2015 and 10.06.2015 requesting for free treatment to the petitioner as well as the impugned inaction on the part of the respondent-DDA to proceed against the respondent-hospital despite the latter's continuing dereliction of its obligation to provide free treatment to EWS patients to the extent of 25% OPD and 10% IPD on account of land-allotment on institutional (concessional) rates by the respondent-DDA and in terms of this Hon'ble Court's DB Judgment & Order dated 22.03.2007 in W.P. (C) No.2866/2002 titled Social Jurist vs. GNCTD & ors. 140 (2007) DLT 698.

BRIEF FACTS

2.                 Brief facts of the case, so far as may be relevant for the purpose of the present writ petition, are given as under.

3.                 That the petitioner's husband works as a Cleaner in a shop and earns Rs.8, 000 a month. He is the sole earning member in the family. The petitioner holds a National Food Security Card in her name as a proof of her EWS status. It is submitted that the family-income limit for availing the EWS benefit at any identified private hospital has been linked to the minimum wages of an unskilled worker in the NCT of Delhi, which is presently Rs. 9,048 per month.

A true copy of the National Food Security Card of the petitioner demonstrating her EWS status is annexed hereto and marked as Annexure P-1.

4.                 That the petitioner had been experiencing symptoms of neck-swelling, weight loss, back-ache and difficulty to walk. She was taken to Dr. B.D. Attam Hospital, Ashok Vihar, New Delhi in January, 2015. She was kept on medication for some time and thereafter advised advanced examination of spine to determine the cause of swelling in neck. Accordingly, she underwent PET-CT on 24.04.2015, the findings whereof revealed a large mass in the cervical region.  Thereafter, she was taken to the respondent-Rajiv Gandhi Cancer Institute and Research Centre on 29.04.2015 where she was registered under CR No. 185368. Upon further examination, she was diagnosed as a case of high grade NHL-Diffuse Large B Cell Lymphoma Stage IV, a form of Cancer and advised to undergo Chemotherapy.

True copy of the medical record of the petitioner is annexed hereto and marked as Annexure P-2 colly.

5.                 That the petitioner underwent the first cycle of Chemotherapy between 02.05.2015 and 03.05.2015 and the second cycle between 25.05.2015 and 26.05.2015, remaining admitted in the respondent-hospital for the said periods. She was required to be re-admitted for third cycle of Chemotherapy on 15.06.2015 but the respondent-Hospital refused to entertain her as she did not have money to pay to the respondent-Hospital.

6.                 That the petitioner's husband has somehow managed to bear the cost of treatment so far, nearly Rs.1,50,000 by borrowing money from various sources. However, he is not in a position to afford further treatment in view of his poor financial condition.

7.                 That the petitioner is medically unattended at present and has no recourse to treatment. She is in a critical state and her condition is worsening with each passing day. The treatment given so far would be rendered futile and her life would be endangered unless the treatment is immediately resumed.

8.                 That the petitioner's husband has made a representation dated 08.06.2015 to the Medical Superintendant of the respondent-Hospital seeking free treatment for the petitioner. The petitioner's husband approached Sh. Ashok Agarwal, EWS monitoring Committee Member with a written representation dated 09.06.2015, who also wrote a letter dated 10.06.2015 to the Principal Secretary, Health, GNCTD to intervene in the matter, with copies thereof to the Medical Superintendent of the respondent-Hospital and the Vice-Chairman of the respondent-DDA. However, no response has been received to the said representations so far.

True copies of the said representation dated 08.06.2015 addressed to the Medical Superintendent, the representation dated 09.06.2015 addressed to Sh. Ashok Agarwal and the letter dated 10.06.2015 addressed to the Principal Secretary (Health) are annexed hereto and marked as Annexure P-3 colly.

9.                 It is submitted that the respondent-Hospital is obliged in law to provide free treatment to EWS patients to the extent of 10% IPD and 25% OPD in terms of the condition of providing free treatment as spelt out in the mortgage-permission letter dated 29.06.1993 issued by the respondent-DDA and vide the Division Bench judgment dated 22.03.2007 of this Hon'ble Court in Social Jurist vs. Government of NCT of Delhi & ors.140 (2007) DLT  698, upheld by the Hon'ble Apex Court vide its judgment dated 01.09.2011 in SLP No. 18599/2007 titledDharamshila Hospital & Research Centre vs. Social Jurist & ors.

The relevant para from the said Division Bench judgment is reproduced as under:

"91. A. All the 20 hospitals stated in this judgment and/or all other hospitals identically situated shall strictly comply with the term of free patient treatment to indigent/poor persons of Delhi as specified above i.e. 25% OPD and 10% IPD patients completely free of charges in all respects."

10.            It is submitted that the case of the respondent-hospital is identical to that of the other hospitals who were parties to the said legal proceedings. The respondent-Indraprastha Cancer Society ("the respondent-Society") was allotted three plots of land admeasuring 2 acres, 2331 sq. mts. & 1.5 acres at institutional/concessional rates of 19 lacs per acre with ground-rent @ 2.5% p.a. of the total premium, 19 lacs per acre with ground-rent @ 5% p.a. and 45 lacs per acre with ground-rent @5% p.a. respectively vide allotment-letters dated 12.03.1990, 15.11.1990 and 15.04.1994 respectively. Although no express condition of free treatment was imposed at the time of allotment, the respondent-DDA vide Clause 7 of the allotment-letter dated 12.03.1990 reserved its right to alter any terms and conditions in its discretion. The said clause is reproduced as under:

"7.    The DDA reserves its right to alter any terms and conditions on its discretion."

11.            That similarly, the respondent-DDA vide Clause (ix) of the allotment-letter dated 15.11.1990 reserved its right to impose additional conditions which were to be binding upon the allottee/respondent-Society. The relevant clauses (ix), (x) & (xi) of the said allotment-letter are reproduced as under:

"(ix)  That all other conditions as contained in the perpetual lease-deed to be executed in this behalf and any other terms/conditions imposed from time to time by the central Govt./Lt. Governor shall be binding upon the allottee. The format of the Lease Deed can be purchased from the office of D.D.A.

(x)      If the allottee violates any terms and conditions as mentioned above in the perpetual lease deed, the allotment shall be cancelled and possession of the land/plot with superstructure standing thereon if any, will be taken over by the Lessor (President of India)/DDA without any compensation to the Allottee.

(xi)     If the allotment is cancelled for breaches of any terms/conditions of the allotment, the possession of plot/land with building, if any will be handed over to the DDA by the Allottee on the date given in the cancellation notice."(Emphasis supplied)

12.     It is submitted that the respondent-DDA vide its letter dated 29.06.1993 granting permission to the respondent-Society to mortgage the two plots admeasuring 2 acres and 2331 sq. mts. in favour of HDFC Bank, expressly spelt out the condition of free treatment vide clauses 4 & 5 of the said letter.

The said clauses are reproduced as under:

"4.     A certain percentage of beds is reserved for the poor patients who are treated and given services free of cost and in the OPDs of which a minimum of 40% poor patients are attended to and given medical advice free of cost.

5.       The hospital shall provide a minimum 25% of the beds free of charge. In the case of a dispensary the facility to the community hall (sic) shall be totally free."

True copies of the relevant record pertaining to land-allotment to the respondent-hospital along with the mortgage-permission letter is annexed hereto and marked as Annexure P-4 colly.

13.     It is submitted that the above stipulation of providing free treatment as contained in the mortgage-permission letter dated 29.06.1993, when read in conjunction with the above-said directions of the Hon'ble High Court in its Judgment and Order dated 22.03.2007 makes it amply clear that the respondent-Hospital is under a permanent and binding obligation, enforceable in law, to provide free treatment to the extent of at least 10% IPD and 25% OPD patients belonging to EWS category.

14.     It is submitted that an Application being C.M no.15454/2008 in W.P. (C) 2866/2002 was filed by the petitioner therein Social Jurist seeking initiation of contempt proceedings against inter alia the respondent-Hospital for contempt of the Order dated 22.03.2007 of this Hon'ble Court (supra), however, the same was dismissed with the following observations:

"4.    The learned counsel representing these three hospitals have contended that since neither they were impleaded as a party to the writ petition nor were they given any opportunity of hearing before the orders dated 22.3.2007 and 17.7.2007 came to be passed, such orders cannot, in law, be applied to them. This is also their submission that since neither the letter of allotment issued to them nor the lease deed originally executed in their favour contained any stipulation to provide free treatment to any patient, they are not under any legal obligation to provide free beds and/or free treatment to any patient coming to their hospital. They have also drawn our attention to the order dated 10.8.2007 whereby this Court observed that further arguments were required to be addressed in respect of hospitals which did not have a stipulation in their lease deed or the allotment letter regarding free treatment. They have also pointed out that Moolchand Khairati Lal Trust Hospital and St. Stephan Hospital have already filed writ petitions challenging the action of the respondents. According to the learned counsel representing Rajiv Gandhi Cancer Institute and Research Centre, similar writ petition is proposed to be filed by the said hospital. The learned counsel for the respondents on the other hand submits that since the land to these hospitals was allotted at concessional rates and later a clause requiring them to provide free beds and free treatment to the poor patients has also since been inserted in the lease deed, they are under a legal obligation to comply with the orders passed by this Court on 22.3.2007 and 17.7.2007.

5.       In our view, considering the fact that these three hospitals were not impleaded as a party to the W.P.(C) 2866/2002 either initially or during pendency of the writ petition, no notice or opportunity of hearing was given to them before the said orders came to be passed, and this Court vide order dated 10.8.2007 acknowledged that further arguments were required to be addressed in respect of hospitals which do not have a stipulation in their lease deeds or the allotment letters regarding free treatment to the patients, no case for initiating proceedings for disobedience of the orders dated 22.3.2007 and 17.7.2007 by the aforesaid three hospitals is made out. This is not a case of a contumacious or willful disobedience of the orders of the Court. Initiation of contempt proceedings would not be justified where a person accused of disobedience has a bonafide case with respect to the applicability of the order alleged to have been disobeyed by him and it would be difficult to justify initiation of contempt proceedings against him. We, therefore, find no merits in CM 15454/2008, filed by the petitioner. The same is hereby dismissed."(Emphasis supplied)

True copies of the Orders dated 15.11.2002, 15.07.2004, the Judgment & Order dated 22.03.2007 and the Order dated 13.03.2013in W.P. (C) No.2866 of 2002 titled Social Jurist v. Government of NCT of Delhi & ors. And the Judgment of the Hon'ble Supreme Court dated 01.09.2011 in SLP No. 18599/2007 titled Dharamshila Hospital & Research Centre vs. Social Jurist & ors. are annexed hereto and marked asAnnexure P-5 colly.

15.     It is submitted that the respondent-Hospital/Society has not filed any petition on the above-said issue in this Hon'ble Court so far.

16.     It is submitted that the respondent-DDA in the above-said Writ Petition No. 2866/2002 titled Social Jurist vs. GNCTD & ors. had also endorsed the stand of the petitioner that the respondent-Hospital is obliged in law to provide free treatment to EWS patients in view of land-allotment at concessional rates and in terms of the mortgage-permission letter dated 29.06.1993. The stand of the DDA is summarized in its reply to an Application by the respondent-Hospital in the said writ petition.

          True copies of the said reply of the DDA and its rejoinder as filed by the respondent-Hospital are annexed hereto and marked as Annexure P-6 colly.

17.     It is submitted that the respondent-Hospital is blatantly sitting over and enjoying public land as a bounty without fulfilling its reciprocal/concomitant obligations much to the disadvantage of pubic exchequer and public good and in gross violation of the terms of allotment and the law of the land. It is pertinent to draw attention of this Court to the observations of the Hon'ble Supreme Court of India in Union of India v. Jain Sabha (1997) 1 SCC 164: 

          "11.   Before parting with this case, we think it appropriate to observe that it is high time the Government reviews the entire policy relating to allotment of land to schools and other charitable institutions. Where the public property is being given to such institutions practically free, stringent conditions have to be attached with respect to the user of the land and the manner in which schools or other institutions established thereon shall function. The conditions imposed should be consistent with public interest and should always stipulate that in case of violation of any of those conditions, the land shall be resumed by the Government. Not only such conditions should be stipulated but constant monitoring should be done to ensure that those conditions are being observed in practice."

18.     It is submitted that even dehors the obligation of the respondent-Hospital to provide free treatment to the petitioner as an EWS patient, the respondent-Government of NCT of Delhi is under a Constitutional obligation to provide free life-saving treatment to the petitioner in view of her inability to afford the cost of the same. The Hon'ble Supreme Court in Paschim Bangal Khet Mazdoor Samity & ors. vs. State of W.B. & anr. (1996) 4 SCC 37 has held that it is the Constitutional obligation of the State to provide adequate medical services to the people. Reiterating the same position, this Hon'ble Court in W.P. (C) No.7279 of 2013 titled Master Mohd. Ahmed (Minor) vs. AIIMS & ors. 208 (2014) DLT 199 has held vide its Judgment & Order dated 17.04.2014 that the State is under a duty in law to provide medical aid on fair, reasonable, equitable and affordable basis and that the State cannot allow a patient to die for want of money for treatment.      

 GROUNDS:

19.     The petitioner seeks to challenge the impugned inactions on the part of the respondents on the following grounds, inter alia:

A.               Because the impugned denial of free treatment to the petitioner by the respondent-Hospital is violative of the Fundamental and Human Right to life and medical aid of the petitioner, as guaranteed to her under Article 21 of the Constitution of India read with 38, 39, 41 & 47.

B.               Because the respondent-Hospital is bound in law to provide free treatment to the extent of 25% OPD and 10% IPD to patients belonging to the EWS category on account of land-allotment on institutional (concessional) rates by the respondent-DDA, as expressly spelt out in the mortgage-permission letter dated 29.06.1993 issued by the respondent-Delhi Development Authority (DDA) and in terms of this Hon'ble Court's DB Judgment & Order dared 22.03.2007 in W.P. (C) No.2866/2002 titled Social Jurist vs. GNCTD & ors. 140 (2007) DLT  698.

C.               Because the petitioner having a family-income of Rs.8,000 is entitled to free treatment under the EWS category at the respondent-Hospital.

D.               Because the respondent-DDA has failed to proceed against the respondent-hospital despite the latter's continuing dereliction of its obligation to provide free treatment to EWS patients to the extent of 25% OPD and 10% IPD on account of land-allotment on institutional (concessional) rates by the respondent-DDA.

E.                Because the petitioner presently has no access to treatment. She is in a critical state and her condition is worsening with each passing day. The treatment given so far would be rendered futile and her life would be endangered unless the treatment is immediately resumed.

F.                Because the respondent-Government of NCT of Delhi is even otherwise obliged in law to provide free life-saving treatment to the petitioner in view of her inability to afford the cost of the same. The Hon'ble Supreme Court in Paschim Bangal Khet Mazdoor Samity & ors. vs. State of W.B. & anr. (1996) 4 SCC 37 has held that it is the Constitutional obligation of the State to provide adequate medical services to the people. Reiterating the same position, this Hon'ble Court in W.P. (C) No.7279 of 2013 titled Master Mohd. Ahmed (Minor) vs. AIIMS & ors. 208 (2014) DLT 199 has held vide its Judgment & Order dated 17.04.2014 that the State is under a duty in law to provide medical aid on fair, reasonable, equitable and affordable basis and that the State cannot allow a patient to die for want of money for treatment.

G.                  Because the Hon'ble Supreme Court in Jain Sabha case has held that where public property is allotted to institutions at concessional rates, stringent conditions should be imposed upon the manner of its use and the adherence to those conditions should be closely monitored.

18.            That the petitioner has no other efficacious remedy except to approach this Hon'ble Court by way of the present writ petition.

19.     That the petitioner has not filed any other similar petition in this Hon'ble Court or in any other High Court in India or the Hon'ble Supreme Court of India.

PRAYER

In the premise aforesaid, it is most humbly prayed that this Hon'ble Court may be pleased to:

          i.            Direct the respondent-Rajiv Gandhi Cancer Institute and Research Centre to forthwith provide complete medical treatment to the petitioner free of cost in all respects; 

       ii.            Direct the respondent-DDA to proceed against the respondent-hospital for its continued dereliction of its obligation to provide free treatment to EWS patients; and

     iii.            Issue any such other orders or directions as this Hon'ble Court may deem fit in the interests of justice; and

     iv.            Allow the present writ petition with costs in favour of the petitioner.

ASHOK AGARWAL, ANUJ AGGARWAL, AARUSHI AGARWAL & NISHA TOMAR

Counsels for the petitioner

Ch. No.483, Block-II, Lawyers' Chambers

Delhi High Court, Delhi-03

M: 9811101923

Dated: 03.07.2015

New Delhi