JUDGMENT :

(Moushumi Bhattacharya, J.)

1. The petitioner no.1 is in the business of providing healthcare services and is a "Clinical Establishment" as defined under section 2(c) of The West Bengal Clinical Establishments (Registration, Regulation and Transparency) Act, 2017 (“the Act”). The petitioners pray for a Declaration as well as for Mandamus with regard to certain Advisories and an Order dated 02.07.2021, issued by the respondent West Bengal Clinical Establishment Regulatory Commission. The petitioners pray that the impugned Advisories and the Order be declared as discriminatory, perverse and without jurisdiction and a Mandamus be issued commanding the respondent to recall and rescind the impugned Advisories and the Order.

2. The 26 impugned Advisories between 27.07.2020 and 07.09.2021 and the impugned Order dated 2.07.2021 were issued by the respondent Commission for fixation of rates and charges by Clinical Establishments (“CEs”) from patients in the State. The Advisories were meant for private hospitals and covers the petitioner no. 1.

3. According to learned counsel appearing for the petitioners, the impugned Advisories and Order were made without jurisdiction and are contrary to section 38(1)(iv) of the Act. Counsel submits that the power to issue Advisories is circumscribed by the Act and specifically section 38(1)(iv) thereunder. Counsel relies on the specific provision of section 38(1)(iv), giving power to the Commission to fix rates and charges and urges that the Commission cannot hence exercise those powers under residuary provisions of the Act to fix rates and charges for the CEs in the State. It is submitted that even if the impugned Advisories are considered to be administrative instructions, the power to issue such Advisories cannot be delegated to the Commission.

4. The learned AAAG appearing for the respondent Commission submits that the Act of 2017 is a social welfare legislation for the benefit of patients who are "service recipients" under section 2(w) of the Act. Counsel submits that the legislation was enacted to deal with the lack of transparency in the functioning of CEs and the exploitation of patients. Counsel relies on Union of India v. Moolchand Kharaiti Ram Trust; (2018) 8 SCC 321 as well as the Coordinate Bench decision in Dr. Md. Rezaul Karim v. State of West Bengal; AIR 2018 Cal 18. Learned counsel submits that the impugned Advisories should hence, be considered in the light of the legislative intent to tackle the problems of patients.

5. Counsel further submits that only a few of the 26 Advisories actually relate to fixation of rates and charges and that all the Advisories are in the nature of administrative instructions. It is submitted that the fixation of rates and charges were based on reports of expert committees appointed by the Commission and that the Commission has issued Advisories on the implied power to do all such acts which are necessary for execution of the authority given to the Commission by the Act. Counsel places section 38 to urge that the provision is wide enough to include the powers necessary for ensuring proper functioning of the duties of the Commission and that the entire gamut of the Advisories were issued not only under section 38(1)(iv) but under other provisions including sections 33, 38(1)(i), 38(1)(iii), 38(1)(v), 38(1)(vi) and 41 of the Act. Counsel submits that there is no impediment on the Commission carrying out the objectives as contemplated in the Act in the form of stop-gap measures till rules and regulations are framed by the State Government. It is also submitted that the State Legislature does not lack the legislative competency to regulate rates charged by private CEs and relies on Entries 6 and 66 of List II of the Seventh Schedule under Article 246 of the Constitution. Counsel concludes that the impugned Advisories/Order do not suffer from any infirmity, statutory or otherwise.

6. The decision of the Court is given under the following heads. The