Dr. Rashidullah Khan & Ors v. Government of NCT Delhi

RAJIV SAHAI ENDLAW, J NOVEMBER 16, 2015 "gsr/bs"

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 16th November, 2015. + W.P.(C) 7403/2015 & CM No.13650/2015 (for stay) DR. RASHIDULLAH KHAN & ORS ..... Petitioners Through: Ms. Tasneem Ahmadi with Mr. Pramod Kumar, Advs. Versus GOVERNMENT OF NCT DELHI ..... Respondent Through: Mr. Anuj Aggarwal, Adv. with Ms. Hema Kolhe, Dy. Director & Ms. Alka, Head Clerk (AYUSH) CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The nine petitioners being the members of the Delhi Bharatiya Chikitsa Parishad (DBCP) constituted vide Notification dated 11th September, 2011 for a period of five years under the Delhi Bharatiya Chikitsa Parishad Act, 1998 have filed this petition impugning the order dated 16th July, 2015 of the respondent Government of NCT of Delhi (GNCTD) of dissolution of the said Parishad in exercise of powers under Section 32 of the said Act. 2. Notice of the petition was issued and considering the contention of the counsel for the petitioner that as per Section 32 a new Parishad has to be constituted within six months of dissolution, counter affidavit was directed to be positively filed within 10 days and rejoinder permitted to be filed before today and the matter listed today for hearing. 3. Though counter affidavit was not filed but the counsel for the respondent has handed over the counter affidavit in Court and which is taken on record. He also states that the entire records have been brought for perusal of this Court. 4. Though the counsel for the petitioner had no opportunity to go through the counter affidavit but opted to argue the matter and after hearing also it appears that there is really no need to go through the counter affidavit or to give an opportunity for filing the rejoinder. The counsels have been heard. 5. The counsel for the petitioner has argued i) that for an action under Section 32 of the Act, the decision has to be of the appropriate government; ii) it is the appropriate government which is to be of the opinion that the Parishad or its President or Vice President have failed to exercise or has exceeded or abused any of the powers conferred upon them by or under the Act and such failure, excess, abuse or incapacity is of a serious character; iii) the appropriate government has to give a notice to the Parishad / President / Vice President to remedy the said abuse / excess / failure; iv) the appropriate government has the option to either remove the President or the Vice President or dissolve the Parishad; v) the appropriate government, as per Section 2(g) of the Act, is the Lieutenant Governor of Delhi as referred to in Clause (1) of Article 239AA of the Constitution; vi) there is no failure on the part of the Parishad to remedy the failure / abuse / excess; vii) that instead of removing the President who was guilty, the extreme step of dissolution of the Parishad has been taken; viii) that the failure to remedy was not of a serious character; ix) attention in this regard is invited to the show cause notice. 6. As far as the first of the aforesaid contentions is concerned, it is not the case of the petitioners that the subject matter is protected under Clause (1) of Article 239AA of the Constitution. It is also not the case that the Lieutenant Governor, in exercise of power under Section 32 of the Act, is to act eo-nomine or in his personal individual capacity. In the absence thereof, even if the decision is of the Council of Ministers of the Legislative Assembly of Delhi and is merely approved by the Lieutenant Governor, the same would not constitute any ground of challenge. Moreover, the counsel for the respondent, from the file, has demonstrated that the Lieutenant Governor was consulted in the matter and the action of dissolution has the approval of the Lieutenant Governor. 7. The facts are not in dispute. 8. The respondent, on 27th April, 2015 issued a notice to show cause under Section 32 supra to Sh. R.S. Chauhan, President of the Parishad, directing compliance with the following dir