NIAMATHULLA Vs. STATE OF KERALA

JUDGEMENT

(1.) GOVERNMENT of Kerala, decided to collect a fee of Rs. 2/-each from "out Patients" while issuing Out Patient tickets (O. P. tickets) at hospitals where the system Of modern medicine or Ayurveda is followed GOVERNMENT issued an order (No. G. O. Ms. 56/ 92/h & WD -- dated 21-4-1992) permuting such hospitals to collect the aforesaid fee from 1-6-1992. Petitioner styles himself as President of a voluntary association and he challenges the aforesaid government order in this original petition.

(2.) PETITIONER contends that improvement of health of public being a primary duty of the Government as recognized inart. 47 of the constitution it is wrong to collect such fees and Government should not try to make profit through government hospitals; and such collection of fees from poor citizens is contrary of public policy. Alternatively he contended that such collection, without authority of law, will hit Art. 265 of the constitution. Yet another contention put forward is that collect ion of fees from patients approaching the hospitals where modern medicine or Ayurveda is followed would offend Articles 14 and 15 of the constitution, inasmuch as hospitals following homoeopathic systems are exempted from collecting such fees. 2. Government tried to justify the collection on the premise that the fee so collected would be utilised for development of the health infrastructure status and also for providing a Reference Record of treatment for each outpatient. In the impugned Government Order necessary provision has been incorporated for crediting the amount collected by a hospital to the fund of "hospital Development Committee" where such committee is functioning. According to the government stand, T. B. and leprosy hospitals are exempted since such hospitals have a special role to play in the national programme as those diseases are to be "controlled as a national problem", besides the fact that number of hospitals far T. B. , leprosy and mental health would be too meagre. Similarly causality sections in hospitals are exempted from collecting fees since it is not practical to collect such fee from patients rushing to casuality units. Scheduled Castes/ Scheduled Tribes patients arc exempted because of their social backwardness.

(3.) TAX is different from fees. TAX is an imposition for public purpose without reference to any service rendered by the State for any specific benefit conferred on the taxpayer. The object of levy is to raise the revenue. (vide the Commissioner, Hindu Religious Endowments, Madras v. Sri lakshmindra Thirtha of Sri Shirur Mutt, 1954 SCR 1005 ). A fee is a payment levied to the services performed for the benefit of the individual while tax is paid for the common benefit conferred by Government on all citizens. A fee is a payment made for some special benefit enjoyed by the fee payer. Usually the fee would be proportional to the special benefit enjoyed. (Vide Hingir-Rampur Coal co. v. State of Orissa (AIR 1961 SC 459)), However a levy in the nature of fee does not cease to be so merely because there is an element of compulsion involved, nor even when it has no direct relation to the service rendered. (ideshri. Admar Mutt v. Commissioner, H. R. & C. E. Department. , AIR 1980 sci)The money raised through fees would be set apart or appropriated for the performance of the service for which it has been imposed. It is not merged in the general revenue of the State.