U’khand HC Directs Govt To Take Over Bhowali TB Sanatorium Land Leased Out To Emami Group For AYUSH Gram [Read Petition]

Govt told to take back possession of land transferred to Emami Group

 Calling it a classic case of the state permitting setting up of AYUSH Gram by misusing its power against the public interest in the name of promoting medico-tourism, the Uttarakhand High Court has set aside an order passed by the state government in the year 2010 by which a part of the land belonging to the chest institute at TB Sanatorium at Bhowali near Nainital was leased out to Emami Group for 35 years to build AYUSH Gram and a hotel.

A bench of Justices Rajiv Sharma and Lok Pal Singh quashed the 2010 order which was challenged by Mohammad Azam.

TB Sanatorium, Bhowali, is located at an altitude of 6,000 feet from the sea level.  It was established by the British regime in the year 1912.  Bhowali became a center of excellence for the treatment of tuberculosis with the establishment of X-ray plant in the year 1929.

For some time thereafter, it became ill-functional but in the year 2005, the state government decided to convert the sanatorium into a chest institute.  Between 2006 and 2007, equipment was purchased and installed but always remained out of order.

The TB Sanatorium is still working with the total working strength of more than 300 employees, out of which at least 227 reside in 155 quarters.  Surgeries were also carried out, but in 1963, these were abandoned. The machinery purchased by the department is lying idle.  The proposal made by Emami was tailor-made and the same has been blindly accepted by the state government to the detriment of larger public interest, according to the petition.

The petitioner informed the court that about 10 acres of land belonging to the institution was handed over to M/s Emami Group, Kolkata, for the establishment of AYUSH Gram and construction of a three-star hotel/resort. The remaining area of the sanatorium has become non-usable as a hospital.

The Department of Medical Health and Family Welfare transferred the land to AYUSH Department.  Thereafter, AYUSH Department gave the land on lease of 35 years to Emami on a consolidated rent of Rs. 2.50 crores.  This land also includes forest land.  The permission under the Forest Conservation Act was not obtained before giving land on lease to Emami, stated the petition.

In its counter-affidavit, the Uttarakhand government said the concept of AYUSH Gram has been developed/conceptualized to attract medico-tourism in the state.  The tourists will be provided specialized medical facilities in Ayurvedic, Homeopathic, Unani, Yoga and Siddha.  BPL card holders will be provided free medical facility in AYUSH Gram. Moreover, 10 per cent of the indoor bed facility will also be made available to BPL card holders.  Since 2004, TB patients are provided treatment under the National TB Control Programme through Directly Observed Treatment Short Courses (DOTs).  Under DOTs, the TB patients are treated/checked-up at the nearest hospital.

The bench noted that that the state government has undertaken to establish AYUSH Grams throughout the state and has chosen eight locations in districts Nainital, Pauri Garhwal, Champawat, Pithoragarh, Bageshwar, Almora and Uttarkashi, including the location at TB Sanatorium, Bhowali.  However, in the case of AYUSH Gram at TB Sanatorium, Bhowali, the state government decided to hand it over to a private company, though, in other locations, the entire management remained in the hands of the AYUSH Department.

“It will also be apt at this stage to take into consideration the subsequent developments. The State Government has taken a specific stand (in another PIL) to open the multi-specialty hospital at Bhowali on 13.6.2017.  Setting up of the multi-specialty hospital will require land, infrastructure and wherewithal,” noted the bench as it questioned the decision of the government to transfer the land to Emami.

“The respondent-State has acted unjustly, unfairly, unreasonably and in an arbitrary manner while entering into the agreement with the respondent no.8- M/s Emami Group, Kolkatta.

“It is a classic case where the respondent-State has tried to help the respondent no.8 (Emami) by misusing its powers. No cogent reasons have been given while accepting the financial bid of respondent no.8 practically on one sided sharing of profit. The term of the lease has been increased. The rigors of technical and financial bid have been diluted. The State has reserved only 15% beds, out of which 50% were reserved for BPL families. The respondent no.8 was free to charge, as per the market rates, as we have noticed hereinabove,” said the court.

“The endeavour of the State should have been to get the maximum percentage of revenue, even if, was on PPP mode instead of meagre 6.22%. The petitioner has alleged factual as well as legal malafides against the respondent-State for unduly favour for respondent no.8. Though, no names of the officers have been mentioned. The institution of AYUSH gram was permitted to be setup at T.B. Sanatorium, Bhowali. The machinery purchased for Chest Institute was ordered to be utilized in some other institution. There is non-application of mind by the members of the Committee, who has accepted the financial proposal. Whatever proposed by the respondent no.8 has been accepted by the officers of the State in an unreasonable manner,” the bench said.

“The officers of the State are accountable for their action while dealing with the State largess. It is a classic case whereby the respondent- State has permitted the setting up of AYUSH gram at the cost of public exchequer and that too against the public interest. The public interest would have been served better if at least 50% beds were reserved for BPL families on nominal charges and the State Govt. would have got at least 40% revenue. The respondent no.8 has been given free hand to charge whatever amount on 85% beds, even on market rates. It is clear from the agreement entered into between the parties that it was opening of health resort in the garb of AYUSH gram. The terms and conditions of the agreement are unconscionable and one-sided,” it noted.

“In view of the detailed observations and discussion made hereinabove, the writ petition is allowed.  Impugned order dated 28.7.2010 is quashed and set aside. With the result, the Concession Agreement dated 15.8.2010 is also quashed and set aside.  The respondent-State is directed to take possession over the property, in question, within three months from today,” ordered the bench.