ORDER
Vijender Jain, J.
1. Rule.
2. In this writ petition I am concerned with the grant of permission to start a Dental College. Petitioner claimed that in an arbitrary manner
grant of permission to start a dental college is being unduly delayed for extraneous reasons on account of mala fides of one member of the Dental Council of India. It is the case of the petitioner that after complying with the conditions of the respondents, they deposited requisite money along with the application to start the Dental College. Petitioner has alleged that it has incurred an expenditure of Rs. 3.5 crores for developing basic infrastructure. It is the case of the petitioner that after Dental Council of India was satisfied that the petitioner has complied with all the formalities, it appointed an Inspection Team to find out as to whether the requirement has been complied with by the petitioner or not. The Inspection Team found certain deficiencies and pointed out that: (1) built up area be increased upto 40,000 sq. ft. for 100 admissions annually; and (2) the Principal who had been appointed did not have enough teaching experience. The petitioner removed these defects and represented to the Dental Council that the same may be verified and permission may be granted.
3. Respondent No. 2-Dental Council appointed a second Inspection Team with two senior members of Dental Institutions for South India. The report was submitted by the second team on 30.12.1997, inter alia, stating that all the defects have been removed and the statutory permission may be granted to the petitioner.
4. In the writ petition serious allegations were made against one of the functionaries of the Dental Council of India. However, at the instance of this Court on 25.2.1999, the allegations were withdrawn against respondent No. 3
5. The petitioner has stated that in spite of the fact that report of second Inspection Team has stated that all the defects have been removed and the statutory permission be granted to the petitioner, still in a mala fide and vindictive manner the same was not granted.
6. Mr. Bhandare, learned senior counsel for the petitioner, has contended that the permission was applied for on 11.2.1997. It was mandatory that Central Government should have passed an order granting or refusing to grant permission after excluding the time taken by the petitioner to furnish particulars within a period of one year. He has contended that in view of this fact alone, permission is deemed to have been granted under Section 10A(5) of the Act.
7. Respondent No. 1, in this case, is Ministry of Health and Family Welfare, Government of India. Respondent No. 2 is the Dental Council of India, a statutory body established under Dentist Act, 1948. Third respondent was member of the Dental Council of India against whom allegations of serious nature were made in the petition.
8. It was the case of the petitioner that in view of the need of the population of Western Uttar Pradesh, the petitioner decided to launch an ambitious and noble project of establishing a Dental College and Hospital in the name of Bhagwan Mahavir Dental College and Hospital, Ghaziabad. It was contended that prior to 1993 there was no prescribed criteria or statutory requirement for establishment of new dental college in the private sector as the Dentist Act, 1948 was absolutely silent and only requirement was to secure necessary permission of the concerned State, followed by affiliation from the University to start the new dental college in private sector. This state of affair led to opening of a number of inferior and sub-standard dental colleges and serious need was felt to curb the menace of mushrooming growth of such colleges therefore, the Dentist Act, 1948 was amended by the Dentists (Amendment) Act, 1993.
9. Mr. Bhandare has contended that Section 10A, 10B and 10C of the Dentists (Amendment) Act, 1993 govern the opening of new Dental Colleges with mandatory and statutory provision to be followed by the applicant for seeking permission for establishment of new Dental College in terms of Section 10A(1). In pursuance of power conferred under Section 10A read with Section 20 of the Dentist Act, respondent made specific regulation called “The establishment of new Dental College Regulation 1993” providing, inter alia, eligibility and qualifying criteria for submission of the
scheme. Mr. Bhandare has challenged re-inspection fixed by the respondent no. 12.1.1998 as that was a handiwork of vested interest and non-compliance of illegal demand of the respondent. It is the case of the petitioner that on 1.4.1998 receipt of the sale-deed of the five acres of land was submitted to respondent No.1. Mr. Bhandare has contended that even if there was minor discrepancies, that should not prevent the respondents from granting permission to start the College as the scheme for establishment of any new college is a phased programme and the infrastructural facilities have to be provided within a period of four years from the date of grant of permission and in support of his submission has cited AL-Karim Educational Trust and another Vs. State of Bihar and others .
10. He has contended that the attitude of the respondent No. 2 has been negative and discriminatory and has pointed out that it would be clear from the report of the Dental Colleges especially Rama Dental College, Kanpur.
11. Keeping in view that a team of two inspectors was appointed by Dental Council of India and that team has submitted its report in favour of the petitioner that defects have been removed and there were serious allegations against respondent No. 3, in this background this Court directed the respondent to carry out the inspection of the college on 24.12.1998 from the names of inspectors given by respondent No. 2 along with the observer of the Dental Council of India. This team also submitted its report, inter alia, pointing out certain deficiencies.
12. To resolve the matter, and taking into consideration the fact that petitioner has spent considerable amount for the proposed college, it was in the interest of college as well as in the interest of justice, that the Court directed the petitioner to meet the President of Dental Council of
India on 4.3.1999 and try to sort out what more was required to be done in view of the report of the aforesaid Court Commissioners. This Court after considering at length on 27.5.1999 directed the respondent to consider recommending the case of the petitioner for admission to sixty students initially. As a matter of fact, the Court called the President of the Dental Council of India in order to find out the truth. The court passed a detailed Order on 27.5.1999. The same is reproduced below :
“I have heard the matter at length. On 25th February, 1999 it was observed by this court that the petitioners has spent sufficient amount for the proposed Dental College. However, in view of the report of the Court Commissioners pointing out certain deficiencies it was ordered that both the parties should sit across the table and sort out what was more required to be done, Keeping in view the report of the Court Commissioners. A meeting was fixed for 4.3.99. The Minutes of the Meeting has been filed on record in which it was mentioned that with regard to Items 10 to 13 further time was to be submitted by the petitioner to satisfy regarding staff position, attachment of 100 bedded hospital, Hospital accommodation. The Minutes of the Meeting were faxed to the petitioner by Fax on 24.3.99 by respondent No. 2. After receiving the said minutes the petitioners on the same day faxed to the respondent No.2 that the Minutes were not correctly recorded as President of respondent No. 2 was satisfied about the ownership of the freehold land measuring 7 Bigha 19 biswa 14-2/5 Biswasi, Pukhta (5 acres of land) and Item No. 10 to 13 were also perused by the President and President was fully satisfied. It seems that no reply was sent by respondent No. 2 to the aforesaid facts of the above fax of the petitioner. Mr. Bhandare, learned counsel for the petitioner contended that all the documents as required were already with the respondent No. 2. There is some controversy with regard to the built up area at the site in question. Mr. Jayant Bhusan, Learned counsel appearing for respondent No.1 has pointed out that the report of the Court Commissioners seems to be correct in view of the fact that area of 44.000 as stated by the petitioner could not have been built as first floor has not been built. On the other hand, Mr. Bhandare has contended that on the first floor out of four blocks, two blocks have been built and other two blocks are under construction. Mr. Bhandare has contended that the pplication of the petitioner is pending. Since January, 1997 considerable time and money has been spent. It would not be in the interest of the society that an institution which is going to impart dental education the recommendation in this regard is delayed by the respondent No. 2 flimsy grounds. In support of his submission he has also cited . Mr. Bhandare has also contended that without prejudice to his rights and contentions petitioner may be allowed to have necessary recommendation for 60 seats in the Dental College instead of 100 seats.
In view of the fax submitted by the petitioner on 24.3.99 controverting the minutes of the respondent and respondent No. 2 has not careed to reply to the said fax of the petitioner, it would be in the interest of justice that let the respondents consider recommending the case of the petitioner for admission to 60 students in accordance with law in the College in the initial stage. Mr. Bhasin prays six weeks time to consider the proposal.”
13. The matter was again heard on various dates and in view of the report submitted by the Court Commissioners and inability of the counsel appearing for respondent No. 2, i.e. Dental Council of India as to whether the provisions as made, were adequate in relation to the proposed college of the petitioner and the facilities were sufficient in respect of the sixty number of students, it was directed that some competent officer preferably the President be present in person to sort out the matter between the parties. On 6.8.1999, the Court recorded the following order :
“Dr. Bali, President of the Dental Council of India is present and states that Dental material should have a lab which could accommodate sixty students.
According to Dr. Bali, Prosthodontic lab and Dental Material lab are the same. Therefore, the capacity in the Dental Materials lab
should be of sixty students from the first year itself and the report that no provision of prosthodontic lab has been made is not correct in view of the report that lab for Dental Materials was in existence although only accommodate twenty five students.
Paras 7, 8 and 11 of the report.
It is stated by Dr. Bali that in terms of para 7 of the report though he does not have definite information that the equipment which was shown at the time of inspection of Court Commissioners, that may not be available now and that is why there was no relevant record egarding the purchase of the equipment and its entry in the Store Register.
In order to go to the bottom of the truth of the matter, it will be appropriate that a Court Commissioners be appointed to have spot inspection today itself.
14. Another Court Commission was appointed by this Court to be accompanied by the petitioner as well as the Secretary of the Dental Council of India, specifically to report as to whether the equipment whose photograph is shown in the photograph filed in the record exists in the lab or not. He was also directed to make an inventory of the books available in the library. He was directed to report whether there is provision of Central Store at the site in question or not. He was further directed to visit Yashoda Hospital and to enquire from hospital authorities regarding medical facilities and as to whether the petitioner has got the attachment facilities with the said hospital. He was also directed to report as to the distance of the attached hospital from the proposed college. The Commissioner was also directed to indicate in his report the actual sitting capacity in two lecture halls in view of Item No. 4 of the report. As these were the basic requirements for grant of admission for sixty students, which was pointed out by the President, the Court Commissioner filed his report and reported that he made inventory of the books available in the library and annexed the same with the proceedings. The relevant portion of the report of Court Commissioner is reproduced below :
“I visited the lecture halls to examine actual sitting capacity of the halls in view of item No. 4 of the report of previous court Commissioners. Firstly I visited lecturer room No. 2 which was adjoining by Bio-Chemistry lab and Human Physiology lab. The size of this hall was told to be 25 ft.x 35 ft. At that time 40 chairs with hand rest were lying in the said hall on the side of students, at reasonable distance. One table and one chair was kept for the teacher. In my opinion that said hall was sufficient to accommodate approx. 40-45 students.
Thereafter I visited lecture Room No. 1 which is adjoining seminar room and is in front of staff-room. The size of this room was told to be 25 ft. x 55 ft. At that time 100 chairs with hand rest were lying in the said room on the side of students. There was one chair and one table laying for the teacher. As the distance between the teacher’s table and the first row of chairs was not sufficient, I asked Dr. Jain to get the chairs lying in first row removed. Then I asked them to remove few more chairs so that the remaining chairs could be placed with reasonable gaps and actual sitting capacity of the hall can be ascertained. It was seen that after removing 20 chairs, the remaining 80 chairs were lying in the hall with reasonable gap between them. In my opinion about 80 students can be comfortably accommodated in this hall i.e. Lec ture room No. 2.
This Hon’ble Court had directed me to see whether the equipment whose photograph is shown in the photograph filed in the Court
exists in the lab or not. I asked Dr. Jain to produce the said photograph so that the equipment in lab could be compared, however, Dr. Jain told me that the said photographs were not available with him as the same have been filed in Court. In these circumstances, I asked him to arrange a photographer so that the photographs of equipments lying in the lab could be taken and the same could be compared with photographs filed on record. However, Dr. Jain was not able to arrange photographer due to short notice. Both Dr. Jain and Mr. A.L. Miglani suggested that the inventory of the equipments lying in the lab be prepared. As the said photographs were not available, I had no option but to inspect the labs and prepare the inventory of equipment lying there.
Firstly I visited Bio-Chemistry and Physiology lab and prepared the inventory of equipments lying there in Annexure-B to the
proceedings. Thereafter I visited Histology lab and prepared inventory of equipments lying there in Annexure-C to the proceedings. The equipments in the above labs were lying on labslabs/tables. Then I inspected Human Physiology lab and prepared inventory of the equipments in Annexure-D. I also inspected Dental material lab and Plaster room lab and prepared inventory of equipments lying there in Annexure-E to the proceedings. Dr. Jain told that certain equipments pertaining to Human Physiology lab, Dental material lab and Plaster room lab are stored in locked almirahs (one almirah of human Physiology lab and one almirah of dental material and plaster room labs). According to him keys of the said almirahs were not available and it was not possible to break the lock. I also inspected the Anatomy lab where only six dissection tables were lying but there were no equipments in this lab.
The inventory of equipments lying in the above noted labs is mentioned in Annexure R-2 to this report.
Mr. A.L. Miglani also wanted me to inspect certain other equipments i.e. the Dental chairs and Dental units of Dental O.P.D., however, Dr. P.S. Jain refused to show the same saying that the scope of the orders of the Hon’ble Court is limited to the inspection of equipments in lab only and that he had shown all the necessary equipments. According to him OPD report was not mentioned in earlier Commissioner’s report and was also not discussed in court on 6.8.1999.
I visited Yashoda Hospital to enquire from the hospital authorities regarding medical facilities available in the hospital and as to whether the petitioner has got the attachment facilities with the said hospital.
Firstly, I met Dr. Dinesh Arora, Medical Director of the Hospital, to enquire about the above noted facts, who also told that he was the owner of the Yashoda Hospital. According to him there are total 100 beds in the hospital out of which 10 beds are in I.C.U., 4 beds in C.C.U. 5 beds in Triages, 22 general beds, 40 beds in private/separate rooms, 4 Dylasis beds, 18 Paediatric beds. There are 42 consultants and 18 resident medical officers in hospital. The hospital has Gastroentrology, Neurology, Nephrology, Cardialoty, General hysician, Pulmoniary and Plastic Surgery, Urology etc. facilities. There are three Operation Theatres, X-ray, C.T. Scan, Ultra-sound,ECHO coloured doppler studies, vascular studies and all types of investigative and curative facilities in the hospital. There is a Dental department also. The hospital has three ambulance and the hospital staff comprises of 173 persons in different categories.
Dr. Arora also told that Bhagwan Mahavir Dental College is attached to his hospital for teaching and training of its students. The college has entered into a contract with his hospital about 2 years back for the said purpose and the arrangement can be continued till the petitioner desires. Dr. Arora showed a letter dated 11.9.97 (Ref. No. DC/97/1) addressed to petitioner wherein it has been confirmed that the clinical/para clinical and other facilities in hospital shall be available for training and teaching of the students of the petitioner clollage. The photocopy of the said letter supplied to me by Dr. Dinesh Arora is annexed herewith as Annexure R-3.
The above facts regarding medical facilities in hospital and arrangement of hospital with the petitioner was confirmed by Dr. Amit Rai, Physician to the Yashoda Hospital.
I inspected the hospital premises to confirm the medical facilities available in the hospital. On the basement there is a general OPD, waiting room and general ward has 21 beds. There is a chart on the wall displaying the names of faculty members which bears name of 42 Doctors. On ground floor there is CCU, ICU, Operation Theatre Endoscopy, Labour room, Computerised Pathology, Elis lab, X-ray Department, Ultrasound lab, C.T. Scan Centre etc. Mr. Jagdish, staff member of the hospital told that there are 10 beds in ICU and CCU and 4 emergency beds with complete facilities. On first floor there are 5 beds in ICU, 18 beds in private rooms and 12 beds in nursery. On second floor there are 21 beds in 19 rooms, a Dylasis unit having 4 beds and Physio Tharepy Department. The hospital has a lift also which was in working condition. I also saw 2 ambulance parked in hospital premises. Mr. Netu Arora Incharge of house keeping department told that the same belong to the hospital.
The Hon’ble Court had also directed me to report as to distance of the attached hospital from the proposed college. I had travelled by car along with Mr. P.S. Jain and Mr. A.L. Migilani while going from the proposed college to the Yashoda Hospital. As per the meter reading the distance travelled was 11 k.m. However, it is pertinent to mention that one road on the way was blocked due to truck accident which according to Dr. P.S. Jain was normal/shorter route to reach Yashoda Hospital from the proposed college. According to Dr. Jain if we would have travelled by the said route which was closed because of the truck accident, distance travelled would have been about 7 k.m. According to him there is another road also which is the shortest route and is only 4 k.m. but the same was closed these days.
I prepared rough proceedings of the visit which is enclosed herewith all its Annexures. The said proceedings and Annexures
were signed by Mr. A.L. Miglani and Dr. P.S. Jain as witnesses.
The report is accordingly submitted.”
15. In spite of aforesaid report, respondent No. 2 did not adopt an attitude of granting affiliation for sixty students, but kept on harping that
the petitioner did not have five acres of land, although, the petitioner has brought before the respondents sale-deed in respect of five acres of
land and has also mentioned that the said land situated in an institutional area. The Court passed an order on 23.8.1999. The order is reproduced below:
“After filing of the present petition this Court appointed Court Commissioners on 24th December, 1998. That report is placed on page 351 of the paper book. However, during subsequent hearings it was expressed from the side of the respondent that the equipments shown at the time of inspection by the previous Court Commissioner may not be available now. In order to satisfy, the
Court appointed another Court Commissioner to verify in physical presence of both the parties in terms of the order passed on 6th
August, 1999 as to what was the actual position at the site. The report has been submitted by the Court Commissioner.
Without going into various contentions of the parties and in view of the fact that the petitioner has applied on 11th January, 1997
and has invested a huge amount for the construction of the pro posed Dental College and from the perusal of the report, of the Court Commissionmers, prima facie, it appears that the most of the objections of the respondent have been met. Keeping in view the fact that an institution cannot be built in a day and an endeavour has to be made that there is no compromise with the basic requirements of imparting education in the field of which an institution is seeking recognition, conscious of the fact that in the country like ours, it has to be a sustained effort of voluntary organisations to come forward in the field of imparting scientific and medical knowledge to meet the everygrowing demand in these fields and limited resources at the disposal of the State.
On the other hand, it has also to be borne in mind that the requirements and the parameters which are sine qua non for
establishment of these kind of institutions and its requirement can not be compromised.
It is desired that Dental Council of India will not insist on the requirement of five acres of land at the time of granting permission for sixty students, as in the initial stage when application for grant of recognition was filed in January, 1997 request was considered by the Government of India de horse this requirement. Although it has been stated at Bar by Sh. Bhandare that the petitioner has got Sale Deed of land in conforming area for academic institution measuring five acres. Keeping in view the reports of the Court Commissioners as appointed by this Court on 24th December, 1998 and 6th August, 1999, the Dental Council of India is directed to give within two weeks as to what more is required to be done by the petitioner.”
16. Even after the expiry of two weeks time in terms of the aforesaid order as to what more was required to be down by the petitioner? Nothing concrete and specific came from respondent No. 2 but from the content and tenor of the affidavit which was filed by respondent No. 2 on 8.9.1999, respondent No. 2 came with the objection that the petitioner was required to own and possess five acres of land with built up area of 24,000 sq. ft. for sixty students for the First year and the petitioner does not own and possession five acres of land nor has a built up area of 24,000 sq. fts. It was further stated in the said affidavit that the petitioner did not have two halls to accommodate even sixty students. In paragraph 5 of the said affidavit, it was further mentioned that the laboratories purported to be for Psychology, Histopathology and dental materials was not sufficient enough to accommodate sixty students for First Year and as per the report dated 24.12.1998 of the Court Commissioner, only 25 students could be accommodated. It was further stated in the affidavit that as per the BDS Course and Regulations, the dental material is being tought from the First Year and curriculum comprises of 35 lectures and 30 practicals and clinical hours. Therefore, dental aterial cum Prosthodenal laboratory was must from the very first year. Thereafter in the affidavit it was further mentioned that the petitioner did not have the adequate library facilities and the facility in the laboratory was not sufficient. It was also stated that there was no playground and no hostel for the boys and girls. The respondent also stated that the petitioner did not have the required number of teaching staff nor the petitioner have any Principal-cum-Professor on the roll of the college.
17. Mr. Vinay Bhasin, learned counsel for respondent No. 2-Dental Council of India, has contended that criteria of eligibility was that minimum five acres of land with constructed area must be possessed by the applicant to set up the proposed dental college and in the absence of five acres of land, the petitioner did not fulfill the essential eligibility criteria. He further contended that opinion of the respondent No.2 cannot be substituted by the decision of any other third party. In support of his contention, he has cited Baba Mungipa M.C. & R.C.S.G. Forums Vs. Govt. of Tripura . Mr. Bhasin has further cited Krishna Priya Ganguly etc. Vs. University of Lucknow and others SCR 1984 (Vol.I) 302.
18. What emerges from the discussion is that respondent No. 1 after looking to the eligibility and qualifying criteria of the petitioner had forwarded application to respondent no. 2 for grant of permission. As a matter of fact, if the petitioner was lacking anything what is called essential criteria of not possessing five acres of land in their own name, their application ought to have been rejected out rightly instead of being forwarded by respondent No. 1 to respondent No. 2. In any event of the matter, the petitioner have got sale-deed (registered with the Sub-Registrar’s office) of five acres of land, in an institutional area. Apart from that the petitioner also possesses on lease two acres of land with constructed area to start the proposed college for at least sixty admissions annually in conformity with the requirement as I have discussed in detail in preceding paragraphs, particularly I have reproduced the orders passed by this Court on 27.5.1999, 6.8.1999 and finally the report of the last Court Commissioner. I am of the considered view that the objection for non-grant of permission to start college is not based on cogent reasons.
19. I do not see any substance in the objection of the respondent that two lecture halls cannot accommodate sixty students. In the report of the Court Commissioner dated 11.8.1999, it has been stated that the lecture halls can accommodate 80 and 45 students at a time. All the sixty students of First Year will not go simultaneously in one lecture hall. As per Court Commissioner’s report dated 24.12.1998 and 11.8.1999, the Department of Dental material has a separate plaster room (preclinical prosthetic) besides a dental material lab sufficient for teaching and training sixty students annually at the first instance.
20. In the matter of grant of affiliation it is ordinarily for the State after consulting the Dental Council of India to arrive at a decision.
However, if it is found that necessary permission to start the college is withheld, unreasonably or the decision is being prolonged for one reason or the other or deficiencies are pointed out for the sake of deficiency for the purpose of non-grant of permission that will neither be in the interest of the society in general nor in the interest of medical education in particular. The fact is that the petitioner has applied on 11.1.1997 and has invested a huge amount for the construction of the proposed dental knowledge and an endeavour has been made by the petitioner to fulfill the criteria. Mindful of the fact that the institution cannot be built in a day and an endeavour has to be made that there is no compromise with the basic requirement of imparting education in the field in which an institution is seeking recognition. Conscious of the fact that in a country like ours there has to be a sustained effort of voluntary organisations to come forward in the field of imparting scientific and medical college to meet the ever growing demand in these fields and limited resources at the disposal of the State. The luck-lustre approach of respondent No. 2 is not understandable. This Court has to emphasis once again that the requirements and the parameters of the expert bodies like respondent No. 2 are sine qua non for establishment of these kinds of institutions and same requirement cannot be diluted. However, in view of the order passed by this Court on 23.8.1999, nothing tangible has been shown by respondent No. 2 on the basis of which recognition can be withheld for sixty students annually. In AL Karim Educational Trust and another Vs. State of Bihar and others , the Supreme Court held as under :
“……………………
(h) It is impractical to insist, for a foolproof or absolute adherence to all requirements without regard to their importance or relevance, for the purpose of imparting education, in a practical way especially because the Institution has begun to function, students admitted to the Institution have taken the examination and the fate of good many number of students should not be hang in the balance in an unending or everlasting manner.
(i) In the final analysis, the question to be posed is whether there exists the minimal and satisfactory requirements to keep the matter going, and not whether better arrangements that will render the set-up more efficient and more satisfactory, should be insisted as “a wooden” rule.
(j) It may be that there are some minor deficiencies here and there which call for rectification. Time can certainly set right
such matters. What is required is a total, practical, overall view in the light of the latest tabular statement filed along with the affidavit dated 4.9.1995. Material placed before the court goes to show that there has been ‘substantial’ though not literal compliance with the deficiencies pointed out in the latest report dated 28.6.1995.
21. Although in Al Karim’s case (supra) the matter came up before the Supreme Court after post establishment stage. But the parameters and guidelines referred to above hold good even in the cases a new college is to be established.
22. Therefore, I direct respondent No. 2 to allow the petitioner to admit sixty students from the next academic year and grant permission thereof within a period of eight weeks. The petitioner is, however, directed to take further steps in order to have required number of the teaching staff as per paragraph 11 of the affidavit filed by respondent No. 2 dated 8.9.1999 within eight weeks, so that before the ensuing academic session, the required teaching staff is available in the college.
23. With these directions the writ petition is allowed. Rule is made absolute.