Case: Bharmal Medical Store and Ors Vs. State of Madhya Pradesh and Ors

Navin Sinha, J.1. Leave granted.2. The questions involved in these appeals being common, there being a minor variation in facts, they have been heard together and are being disposed by a common order. Suffice to observe, that in the limited nature of the controversy, we propose to take notice of the facts only to the extent necessary for purposes of the present order.3. Both the Appellants are lessees of the State Government for the shop premises situated within the compound of the District Hospital, Ujjain, Civil Hospital, Nagda, Khachrod, Mahidpur, Badnagar etc. They have been asked in 2013 to vacate the shop premises and shift from the Civil Hospital compound. The justification is the formulation of a Government Scheme i.e. Sardar Vallabh Bhai Patel Nishulka Aushadhi Vitaran Yojna for supply of free essential drugs to all classes of patients by the Government. It is not in dispute that the shop premises was constructed by the authorities and does not fall in the category of an unauthorized construction. It was settled with the Appellants by open bid in 2000/2001. The lease period has long since expired and the lease has not been renewed.4. Learned Counsel for the Appellants submits that the notice to vacate the shops in the hospital premises is arbitrary. No show cause notice with an opportunity to convince the authorities not to order removal was provided. Closure of the shop will infringe the fundamental rights of the Appellants Under Article 19(1)(g) of the Constitution. The supply of generic medicines by the State Government will not be disturbed by the medicine shops being operated by the Appellants. The presence of the shops would only aid availability of medicines to the patients.5. Learned Counsel for the State submitted that the medicine shops were permitted at a time when patients had to procure medicines on their own. With the advent of the new scheme for supplies of medicines by the Government, there exists no need for medicine shops within the hospital premises. In fact, the shop premises can be better utilized to facilitate supply of free medicines by the Government itself to the patients. The lease has long expired and no steps have been taken for renewal by the Appellants.6. We have considered the submissions. The laudable objective of the Government to ensure availability of free medicines to the patients in the civil hospital premises will have to be balanced with the competing interests of the Appellants to earn their livelihood. If peaceful coexistence is possible, there is no reason why the shop premises should be shut down and the Appellants be asked to vacate. The Respondents in their counter affidavit have acknowledged the existence of a large number of medicine shops immediately outside the premises of the government hospital, to contend that it was sufficient to take care of the needs of patients. It is but a tacit admission by the Respondents, for the need to have private medical shops in the vicinity for the convenience of the patients. Without further speculation, it would naturally be so for myriad reasons such as availability of timely supplies, logistics, nature of medicines required, etc. There can also be times when availability of a particular brand medicine may be a compelling necessity without awaiting government supply to be replenished. If for such eventualities a private medical shop is countenanced by the Respondents at the gate of the hospital it is difficult to appreciate their insistence for removal of the Appellants. We are, therefore, unable to sustain the notice directing the Appellants to vacate, and which in any event, has been ordered without an opportunity to the Appellants for presenting their case and convincing the authorities not to remove them.7. The shop premises, as observed above, are not unauthorized structures, but leases have long expired and no steps have been taken by the Appellants for renewal of their leases. The rent was Rs. 300-400/-. At the time of initial settlement also, it was done with the Appellants on the basis of open bid.

Decision reasoning: 1[ds]6. We have considered the submissions. The laudable objective of the Government to ensure availability of free medicines to the patients in the civil hospital premises will have to be balanced with the competing interests of the Appellants to earn their livelihood. If peaceful coexistence is possible, there is no reason why the shop premises should be shut down and the Appellants be asked to vacate. The Respondents in their counter affidavit have acknowledged the existence of a large number of medicine shops immediately outside the premises of the government hospital, to contend that it was sufficient to take care of the needs of patients. It is but a tacit admission by the Respondents, for the need to have private medical shops in the vicinity for the convenience of the patients. Without further speculation, it would naturally be so for myriad reasons such as availability of timely supplies, logistics, nature of medicines required, etc. There can also be times when availability of a particular brand medicine may be a compelling necessity without awaiting government supply to be replenished. If for such eventualities a private medical shop is countenanced by the Respondents at the gate of the hospital it is difficult to appreciate their insistence for removal of the Appellants. We are, therefore, unable to sustain the notice directing the Appellants to vacate, and which in any event, has been ordered without an opportunity to the Appellants for presenting their case and convincing the authorities not to remove them7. The shop premises, as observed above, are not unauthorized structures, but leases have long expired and no steps have been taken by the Appellants for renewal of their leases. The rent was Rs. 300-400/-. At the time of initial settlement also, it was done with the Appellants on the basis of open bid.