Pravinchandra M. Patel and 1 vs Director of Gujarat Cancer Andresearch Institute and 4 -Respondents

Honourable Mr. Justice K.S. Jhaveri

By way of these Letters Patent Appeals, the appellants - original petitioners have challenged the common judgment and order dated 28.01.2003 passed by the Learned Single Judge in Special Civil Application Nos.12074, 12438, 12437 & 3397 of 2001 respectively whereby the Learned Single Judge dismissed all these writ petitions filed by the appellants - original petitioners.

The issue raised in Special Civil Application No.8964 of 2003 is identical to the issue raised in the above mentioned Letters Patent Appeals. Hence, this Court vide order dated 17.09.2004 directed the said writ petition to be heard along with all these Letters Patent Appeals.

Learned counsel for the appellants has submitted that the judgment of the Division Bench of this Court in the case of C. A. Shah v. Gujarat Cancer and Research Institute, Ahmedabad reported in Dr. C.A. Shah Vs. Gujarat Cancer and Research Institute, has not considered the points which are required to be considered. However, the learned Single Judge in paragraph 4 & 5 of the impugned judgment has observed as under :-

Mr. Hasurkar made an attempt to convince that after the decision of the Division Bench of this court, there are certain other judgments of the Apex Court and he also made submissions that certain aspects regarding the functioning of the Institute were not brought to the notice of the Division Bench when the aforesaid judgment was rendered. I am afraid I can not accept such contention. So far as the subsequent judgments of the Apex Court are concerned, it is true that if the judgment is impliedly or expressly overruled, the matter can be examined. However, law on such questions is settled in as much in each case it will have to be examined as to whether the Board is under the control of the Govt. Same was the law earlier when the Division Bench decided the case in 1992 and is the law even today. When the Division Bench has examined the case of the very institute and has found that it is not a "State" within the meaning of Article 12 of the Constitution of India, such re-examination, in my view, would not be permissible sitting as a single judge of this court. Hence, all these petitions are not maintainable since the respondent-Institute is not a "State" within the meaning of Article 12 of the Constitution of India.

Mr. Hasurkar has also made an attempt to contend that the power of this court under Article 226 of the Constitution can be exercised even against the private parties. It is true that the power can be exercised but the law is that such a private party or person should be discharging a statutory duty or a public function. Running of Cancer Hospital, in my view, can not be said to be discharging a statutory function or public duty.

Furthermore, in a recent decision of the Full Bench of this Court in the case of Rambhai Ishwarbhai Patel and Another v. Gujarat State Fertilizers and Chemicals Limited reported in 2011 (2) GLR 1197 where the question referred to the Full Bench was whether the Gujarat State Fertilizers and Chemicals Limited (GSFC) is an indstrumentality of the "State" within the meaning of Article 12 of the Constitution of India. The view taken by the Full Bench of this Court is that GSFC is not an instrumentality of the State though majority shareholding was by the State Government.

In view of the above referred latest judgment, we are of the considered opinion that the view taken by the Dr. C.A. Shah Vs. Gujarat Cancer and Research Institute, is just and proper. Subsequently, directly or indirectly, this view is not diluted by this Court by the Apex Court. In that view of the matter, the view taken by the Learned Single Judge is just and proper and there is no substance in these Letters Patent Appeals and writ petition.

Learned counsel Mr. S.P. Hasurkar appearing for the appellants has vehemently argued and tried to persuade us to make a reference. But in view of the aforesaid reasons and in view of the latest judgment of the Full Bench of this Court, we are not inclined to refer to the matter. We do not find any merit in these matters and all the Letters Patent Appeals as well as Special Civil Application as well as Civil Application are accordingly dismissed. There shall be no order as to costs.