Appellate Authority Can't Cure Jurisdictional Defect Of Original Authority: Karnataka High Court

The Karnataka High Court has made it clear that if the original jurisdiction is not exercised by a competent authority, the Appellate authority even though competent cannot cure the jurisdictional defect of the original authority.

“If the original Authority is corum non-judice, the competent Appellate Authority, by considering the appeal cannot breathe life into such original order and make it corum judice,” a single judge bench of Justice M Nagaprasanna has observed.

The bench thus quashed the order passed by Commissioner of Health and Family Welfare Services, affirming the licence cancellation of Gurushree High-Tech Multi Speciality Hospital for allegedly overcharging COVID-19 patients. It agreed with the petitioner's contention that the original order passed by the Deputy Commissioner is one without jurisdiction as it is not the Committee that can consider the grievances of any person. It was the Committee which is constituted under the Chairmanship of the Commissioner, BBMP, that ought to have taken note of the grievances and not the one that has taken note of, as the hospital comes within the jurisdiction of the BBMP.

Referring to Section 4 of the Karnataka Private Medical Establishments Act, 2007 Act which deals with Registration and Grievance Redressal Authority, the bench noted that on the onset of COVID-19, the State Government amended Section 4 by insertion of a proviso and constituting a different Committee for the medical establishments coming within the precincts of the BBMP.

“Section 4 has twin Committees, one in the section; the other in the proviso, have twin jurisdiction clearly demarcated. The Committee under Section 4 has its jurisdiction on every medical establishment in the State except the BBMP; the proviso renders jurisdiction to the Committee created in the proviso to the establishments coming within the precincts of the BBMP and nothing about the State.”

Similarly, noting that amended Section 16 of the Act created an Appellate Authority for considering appeals filed against orders passed by the Committee created in the proviso, the bench said “The illegality springs from the issuance of the show cause notice itself as it is issued by the 2nd respondent/District Health and Family Welfare Officer who is not the one who had to even consider the grievance or the direction of the Minister.”

Court said if the order that is passed by the Committee i.e the original order is considered qua the proviso to Section 4, it would unmistakably indicate that it is an order passed by the Committee which had no jurisdiction to do so. "Therefore, the order that is passed by the Committee is coram non-judice.”

On the question of whether the Appellate Authority, considering the appeal on its merits, and rejecting it, the defect of jurisdiction of the original Authority could be cured, the bench said,

“Merely because the petitioner files an appeal to the appropriate Authority against an order of the original Authority which was without jurisdiction and the Appellate Authority considering the appeal on its merit would not cure the want of jurisdiction of the original Authority. If the foundation is faulty, the superstructure of any amount of strength cannot cure the defect.”

“It is by now an hackneyed principle of law that if a statute prescribes performance of duties upon certain Authorities, those duties shall be performed only by those Authorities and none else, as error or jurisdiction always cuts at the root of the matter,” it said.

Allowing the petition it said “Since the Appellate Authority has considered the appeal on its merits, the original order has merged with the appellate order and since the original order was without jurisdiction, for the reasons indicated hereinabove, the appellate order is rendered unsustainable.”

Case Title: Gurushree High-Tech Multi Speciality Hospital And Commissioner For Health And Family Welfare And Chairman Appellate Authority & Others

Case No: WRIT PETITION NO. 729 OF 2023

Citation: 2023 LiveLaw (Kar) 194

Date of Order: 25-05-2023

Appearance: Advocate Manu Prabhakar Kulkarni A/w Advocates Shristi Widge, Sharan Balakrishna, Manoj J Raikar for petitioner.

HCGP Mahesh Shetty for R-1 TO R-3.

Advocate H Pavan Chandra Shetty for R4.

Click Here To Read/Download Order