SMT. MALA NAHAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioners, inhabitants of village Jayapur in the district of Ganjam, have filed this Review Petition with a prayer to review the order dated 28.3.2002 passed in Misc. Case No. 4373 of 2001 arising out of OJC No. 17410 of 1997.

(2.) The petitioners, in the garb of a public interest litigation filed the aforesaid writ application (OJC No. 17419 of 1997) praying inter alia for issuance of a Writ of Mandamus to Opposite Parties 1 and 2, i.e. the State of Orissa, represented through the Under Secretary to Government, Health and Family Welfare Department, and the Director of Health Services, Orissa, respectively to make the newly opened Primary Health Centre (for short 'PHC') at Jayapur under Aska Block functional and also for directing opposite party Nos. 2 and 5 (Director of Health Services and the Chief District Medical Officer, Ganjam, respectively) to depute a Doctor (medical officer), Pharmacist and other staff to the said P.H.C. Though Rule was issued, no counter affidavit was filed on behalf of the opposite parties. The writ application was disposed of by this Court on 19.1.1998 with the following observation:- "We, therefore, direct the Director, Health Services, Orissa, opposite party No. 1, and Joint Secretary to Govt, of Orissa, Health and Family Welfare Department, opposite party No. 4, to post doctor and necessary staff at the Primary Health Centre positively within a period of six weeks. Liberty is however granted to Joint Secretary, Health and Family Welfare Department to move the Court, if he is in difficulty in posting the doctor and Staff". The aforesaid order of this Court, however, was not implemented and a petition was filed by the petitioners for issuance of direction to the opposite parties to implement the same. This petition was registered as Misc. Case No. 9490 of 1998. On 15.12.1998 this Court disposed of Misc. Case No. 9490 of 1998 with the observation that no further orders could be passed in a disposed of Case. However this Court directed to treat the said petition (Misc. Case No. 9490 of 1998) as a petition for contempt and to list the same in the second week of January, 1999. This Court also directed the Government Advocate to obtain necessary instructions.

(3.) While matter stood thus, the opposite parties filed Misc. Case No. 4373 of 2001 with a prayer to modify the order dated 19.1.1998 passed in the writ petition. The said petition was supported by an affidavit sworn to by the Under Secretary to Government, opposite party No. 1, inter alia taking the stand that difficulties were experienced by the C.D.M.O. while implementing the order of this Court directing to run the P.H.C. at Jayapur due to conflict amount the villagers. It was further averred that the functioning of the P.H.C. at Jayapur had become impossible as a suit had been filed by one Lingaraj Das, being T.S. No. 26 of 199, challenging the decision to surrender one acre of land for the purpose of the said P.H.C. by the inhabitants of the Jayapur Grama Panchayat on the ground that the villagers had no title to surrender the said land. A petition for injunction had also been filed in the said suit for injuncting the State Authorities from putting up any construction on the aforesaid land pending disposal of the suit. It was also averred that the concerned Tahasildar had also issued on order of injunction restraining any construction over the land does not belong to Government. On the basis of the aforesaid averments, the opposite parties prayed that the P.H.C. might be directed to be opened to village Padhal as was decided by Government earlier, vide Annexure-3.