VIRENDRA KUMAR MAHESHWARI Vs. STATE OF M P

JUDGEMENT

(1.) Being aggrieved by the order, Annexure P-1, dated 24-4-2010 and Annexure P-6, dated 26-2-2010 passed by the Collector, District Gwalior directing closure of the Nursing Home, the petitioner has preferred this petition invoking extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India. It is the contention of the petitioner that on 26-2-2010 without affording due opportunity, preliminary order under Section 133 of Cr.PC was passed wherein four irregularities were shown. Those were of obstruction of the road due to having Gumties, two-wheeler vehicles and four wheeler vehicles causing nuisance to the inhabitants of the community. It was further said that the attendants of patients used to create nuisance by parking their vehicles in front of the gates and on denial create dispute with the residents. It was also said that the waste thrown in open place is spread by the animals in front of the house of various persons on account of not having dustbin available to keep such waste and proper arrangement for biomedical waste has not been done which is creating nuisance and having adverse impact on the health of the residents of the locality, however, directed to close the nursing home and to file reply.

(2.) In the preliminary order, the reference of the report of the Executive Magistrate, dated 23-2-2010 was made but the copy thereof was not supplied to the petitioner, however, reserving right to file a detailed reply on the allegations made in report, point-wise reply was submitted by him. It is stated in the reply that on 15 feet wide public road, the Municipal Corporation, Gwalior, vide order dated 5-2-2010 directed to grant parking facility to Ex-serviceman, namely, Ranveer Singh Chauhan, for two wheeler and four wheeler vehicles who is operating the said stand. The fact with respect to installation of Gumties creating public nuisance on the road, it is stated that the Gumties so found are none of the family members of the petitioner. "Pankaj Juice Centre" and "Deepak Tea Stall" are having no connection with the hospital of petitioner and the Municipal Corporation by issuing receipt is taking rent from those Gumties. It has not been explained in the notice that which type of public nuisance is caused to the inhabitants from these Gumties. In addition to the same, it is specifically said that the petitioner is not keeping his own four wheeler vehicles on the road. However, the public nuisance so alleged is not by the petitioner. It was further denied that the attendants were advised by the petitioner to park their vehicles in front of the houses of the neighbours to create nuisance, however, the said fact is incorrect. It is specifically averred that the petitioner's nursing home is one of the high-standard nursing home in Gwalior city having all the arrangements for the betterment of the general patients with cleanliness. In the operation theatre, in general and in special wards and also in ICU, proper dustbins arc available, however, issue of nuisance relates to safety so projected in the show-cause notice is incorrect. It is further said that the Pollution Control Board has issued the certificate, which is valid from 1-8-2008 to 31-7-2010 showing no pollution. It is also said that for the biomedical waste "Davis Surgico" has been given contract for removal of those wastes making payment as per the instructions of the G.R. Medical College Society, Gwalior, therefore, all the allegations so alleged are denied. Alongwith the said reply, affidavits of Shivkumar Dubey, Sunil Sikarwar, Shivcharan, Soni, Murari Kushwah, Poonam Shivhare, Dr. K.M. Rai, Dharmveer Mehta, Rajesh Pippal, Pradeep Shivhare, Rocky Savita, who are the residents of Lakshmibai Colony where the nursing home is situated, have been attached denying the public nuisance. It is further said that at present 90 patients are admitted who are haying serious ailments. In such circumstances, the order of closure of the nursing home may be recalled otherwise the persons who are already admitted shall suffer irreparable loss of their life.

(3.) After perusal of the reply, the comments of the Executive Magistrate have been sought for and thereafter final order (Annexure P-1), dated 24-4-2010 was passed. In the said order, the authority competent has referred four issues of the show-cause notice and also the other issues. The complainant has not been afforded opportunity to lead the evidence or prosecution witnesses have not been made available for cross-examination. The accused has also not afforded an opportunity to lead evidence as contemplated under the law and finally it is directed that on account of keeping two wheeler and four wheeler vehicles on the public road and not making proper arrangement of biomedical waste which is hazardous to health causing nuisance to the inhabitants, directed for closure of the nursing home within 48 hours by passing order (Annexure P-1).