{"id":155540,"date":"2006-01-21T00:00:00","date_gmt":"2006-01-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dharma-medical-and-research-vs-government-of-india-on-21-january-2006-2"},"modified":"2015-03-11T15:01:22","modified_gmt":"2015-03-11T09:31:22","slug":"dharma-medical-and-research-vs-government-of-india-on-21-january-2006-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dharma-medical-and-research-vs-government-of-india-on-21-january-2006-2","title":{"rendered":"Dharma Medical And Research … vs Government Of India on 21 January, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
Dharma Medical And Research … vs Government Of India on 21 January, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDATED: 21\/01\/2006  \n\nC O R A M  \n\nTHE HON'BLE MR.A.P.SHAH, THE CHIEF JUSTICE         \nAND  \nTHE HON'BLE MRS.JUSTICE PRABHA SRIDEVAN           \n\n\nW.P.NO.4535 of 2004  \nand W.P.No. 276 of 2005 \nAND  \nW.P.M.P.Nos.22033 and 311 of 2005   \n\n\nDharma Medical and Research Charitable  \nTrust, No.31, III Cross Street,\nEllaiamman Colony, Teynampet,  \nChennai-600 086 rep.by its Chairman \nand Managing Trustee              ... Petitioner in both\n                                      the writ petitions\n-Vs-\n\n1. Government of India, rep.by\n   Secretary to Government,\n   Ministry of Health, New Delhi.       ... R1 in WP.276\/2005\n\n2. The State of Tamil Nadu, rep.\n   by Secretary to Government,\n   Health and Family Welfare\n   Department, Fort St.George,\n   Chennai-600 009.                      ... R2 in WP.276\/2005\n\n3. Central Council of Indian Medicine,\n   61-65, Institutional Area,\n   Janakpuri, New Delhi-110 058.                ... R1 in WP.4535\/2004\n                                                    R3 in WP.276\/2005\n\n\n4. The Tamil Nadu Dr.M.G.R.Medical  \n   University, Chennai,\n   P.B.No.1200, No.69, Anna Salai,\n   Guindy, Chennai-600 032 rep.\n   by its Registrar.                      ... R2 in WP.4535\/2004\n                                              R4 in WP.276\/2005\n\n5. The Controller of Examinations,\n   The Tamil Nadu Dr.M.G.R.Medical \n   University, Chennai,\n   P.B.No.1200, NO.69, Anna Salai,\n   Guindy, Chennai-600 032.               ... R3 in WP.4535\/2004\n                                                R5 in WP.276\/2005\n\n6. The Commissioner & Director of\n   Indian Medicine & Homeopathy, \n   Anna Hospital Campus, \n   Arumbakkam, Chennai.                   ... R6 in WP.276\/2005\n\n\nPRAYER in WP.4535 of  2004  :    Petition  filed  under  Article  226  of  the\nConstitution   of  India  praying  to  issue  a  writ  of  mandamus  directing\nrespondents 2 and 3  therein  to  enroll  the  following  35  students,  viz.,\nK.Samraj,    B.Vikesh,    K.Sivasankari,   S.Sharmial   Priya,   B.Kalpa,   A.\nSilambarasan,  N.Vithya  Vani,   R.Susila,   M.Gnanasundari,   E.Suganya,   S.\nSharmila,   D.Deepa,   S.Umadevi,   R.Saranya,   M.S.Rajmohan,  G.Suganya,  P. \nArunmozhi, V.Aruljothi, S.Suganya,  R.Jeeva  Gladys,  S.Sathya,  S.Jamunarani,\nP.Sankarananth,   N.Kayalvizhi,   S.Hariharan,   S.Radha,   P.Mangala   Sudar,\nS.Vengatesan, M.Ananthu, K.Saranya,  P.Kanimozhi,  K.Shobana,  K.    Sripriya, \nJ.Carl Lewis and A.Manjari admitted to the BSMS Course in the Velumailu Siddha \nMedical  College,  Sriperumbudur  during the Academic Year 2 003-2004 and pass \nsuch further orders.\n\nPRAYER in WP.276  of  2005  :    Petition  filed  under  Article  226  of  the\nConstitution  of  India  praying to issue a writ of certiorarified mandamus to\ncall for the records relating  to  the  impugned  proceedings  of  the  fourth\nrespondent  in Rc.No.4143\/Affln.II(2)\/00, dated 08.11.2004, quash the same and\ndirect the fourth respondent to enroll and register the names of the following\n39 students, viz.,1) Kaviarasi, K.  2) Hemalatha, A., 3) Balamurugan, S.    4)\nTamil Selvi, N.  5)  Chitra,  S.    6)  Barakath, J.  7) Uma Maheswari, K.  8)\nKishore, G.  9) Velmurugan, P.  10) Arun Shankar, M.   11)  Thiruvarul  Kamala\nArumugam P.S.  12) Banurekha,  B.    13) Keerthiya, M.  14) Niranjana, N.  15)\nP.Santhya 16) E.Sujitha 17)  M.Deepa  18)  M.Saranya  19)  S.Kamalakannan  20)  \nJ.Padmavathi 21) A.  Poobathi Pandian 22) R.Rasa Kumar 23) R.Mangaleswaran 24)   \nD.Beula  25)  Teinkle  Pon  Seenu  26)  S.Vinoth  Ram Prasad 27) J.Malathi 28)\nR.Porchelvi 29) M.Mahalakshmi 30) P.Ranjani 31) R.Ramesh Kumar  32)  S.Jaseema    \nParveen  33)  M.Vignesh  34)  M.Balaji  35)  R.Parthiban 36) G.Sunil Kumar 37)\nT.Valarmathi 38) S.Jansi Rani and 39) M.Swarna admitted to the 1st  Year  BSMS \nCourse  in  Velumailu  Siddha  Medical College, Sriperumbudur for the Academic\nYear 2004-2005 and pass such further orders.\nW.P.4535 of 2004: \n\n!For appellant ::  Mr.V.Selvaraj\n\n^For respondents ::  Mr.V.T.Gopalan, Additional\n                Solicitor General assisted by\n                Mr.T.Arunan for R1\n                Mr.AR.L.Sundaresan for RR2&3\n\nWP.276 of 2005: \n\nFor appellant ::  Mr.V.Selvaraj\n\n\nFor respondents ::  Mr.V.T.Gopalan, Additional\n                Solicitor General assisted by\n                Mr.T.Arunan for RR1 and 3\n                Mr.P.S.Sivashanmugham,\n                AGP for R2\n                Mr.AR.L.Sundaresan for RR4&5\n\n:O R D E R \n<\/pre>\n
(ORDER OF THE COURT WAS MADE BY THE HONOURABLE
\nTHE CHIEF JUSTICE)   <\/p>\n
        These petitions by Dharma Medical  Research  and  Charitable  Trust  (
\nhereinafter  referred as to as the Trust) relate to admissions to its Siddha
\nMedical College at Sriperumbudur in Kancheepuram District.  By G.O.Ms.No.24 of
\nthe State Government, Health and Family Welfare Department  dated  01.02.2000,
\nthe  Trust  was permitted to start the said Siddha Medical College in the name
\nVelumailu Siddha Medical College subject to certain conditions.  The  number
\nof admission  was  fixed  as  30  students  per  year.   One of the conditions
\nprescribed was to obtain prior approval  of  the  Central  Council  of  Indian
\nMedicine, New  Delhi ( hereinafter referred to as the Central Council).  The
\nCentral Council vide letter dated 31.07.2001 granted approval to the Trust  to
\nstart  BSMS  Degree  Course  from  the  Academic  Year  2001-2002,  subject to
\naffiliation from the University and permission of the  State  Government,  and
\nfixed the  intake  capacity  as  30  students.   The Tamil Nadu Dr.MGR Medical
\nUniversity, Chennai, the second respondent in W.P.No.4535\/04 vide  its  letter
\ndated  31.08.2001,  granted provisional affiliation for the Trust for starting
\nBSMS Degree Course from the Academic Year 2001-200 2  with  an  intake  of  30
\nstudents.\n<\/p>\n
        2.   On 09.05.2002, the Visitors of the Central Council carried out an
\ninspection of the petitioner institution to assess  the  available  facilities
\nfor  teaching and practical training at the institution and granted permission
\nfor conducting BSMS degree course with an intake capacity of 40  students  for
\nthe Academic Year 2002-2003 vide its letter dated 01.08.2002, and also granted
\npermission  subsequently  for  the  Academic  Year 2003-2004 vide letter dated
\n18.7.2003, subject to permission of State Government and affiliation from  the
\nUniversity.   As  against  the  intake  of  40 students, the Trust admitted 35
\nstudents during the  Academic  Year  2002-2003  and  39  students  during  the
\nAcademic Year  2  003-2004.    The  Tamil  Nadu  Dr.MGR  University refused to
\nregister more than 30 students on the ground that the intake capacity fixed by
\nthe University was only 30 students.  According  to  the  University,  as  per
\nStatute 57 of the Affiliation of Siddha Medical College Statutes framed by the
\nUniversity,  no  Siddha  Medical  College  shall  apply  to the University for
\nincreasing the seats until the first batch of students  successfully  complete
\nthe  course  and leave the college and the BSMS Course of study so obtained is
\nrecognised by the Central Council, and after obtaining  the  full  affiliation
\nfrom the  University.    As  the  petitioner institution had not completed the
\ncourse and also the institution had not applied for grant of full  affiliation
\nfor  BSMS  Degree  Course,  the University sent only 30 enrolment forms to the
\ncollege for registering the candidates in BSMS Degree course.\n<\/p>\n
        3.  Aggrieved by the action of the University, the  Trust  filed  W.P.
\nNo.4535  of  2004  seeking  a  Mandamus to direct the University to enroll the
\nstudents admitted by the Trust.  During the pendency of the writ petition, the
\nIndian Medicine Central Council Act,  1970  was  amended  by  Act  52\/02,  and
\nfurther amended by Act 58\/03.  By the Amendment Act, Sections 13A, 13B and 13C
\nwere inserted  in  the Indian Medicine Central Council Act, 1970.  Section 13A
\ndeals with admission of a new medical college or opening of a  new  or  higher
\ncourse  of  study or training and to prescribe that this can be done only with
\nthe previous permission of the Central Government obtained in accordance  with
\nthe provisions  of  the  said  section.    According to the petitioner that by
\nvirtue of the amended provision, the  Central  Legislation  has  occupied  the
\nentire  field  and the State Legislation must be treated to have been rendered
\ninoperative and, as a result, the University has no right to  fix  the  intake
\ncapacity  of  a medical college, and the Central Government alone is competent
\nto fix the admission for the institution.  It is  alleged  by  the  petitioner
\nthat though the Central Council fixed and continued the intake capacity of the
\npetitioner  institution  as  40  students,  still  the University continued to
\nmaintain the intake capacity for the Academic Year 2004-05 as only 30 students
\nand not 40.  The petitioner, therefore, filed W.P.No.276 of  2005  seeking  to
\nquash  the  communication  of  the  University dated 8.11.04 and to direct the
\nUniversity to enroll and register the names of the students  admitted  by  the
\ninstitution for the Academic Year 2004-05.\n<\/p>\n
        4.   Now  the  question  that  arises for consideration is whether the
\nUniversity was right in restricting the  intake  capacity  of  the  petitioner
\ninstitution  to 30 students, in spite of the fact that the Central Council had
\naccorded intake capacity of 40 students?  The further question is what is  the
\nrole  of  the  University  in  the matter of establishing medical colleges and
\nfixing the intake capacity?  Sub-section (5)  of  Section  5  of  the  Medical
\nUniversity Act empowers the University to affiliate colleges to the University
\nas  affiliated colleges within the university area under conditions prescribed
\nand withdraw such affiliation.  By proviso to sub-section (5) of Section 5  of
\nthe  Medical  University  Act,  it  is  provided  that  no  college  shall be
\naffiliated to the University  unless  the  permission  of  the  Government  to
\nestablish such college has been obtained and the terms and conditions, if any,
\nof  such  permission  have been complied with. The claim of the University is
\nthat by virtue of sub-section (5) of Section 5 of the Medical University  Act,
\nthe  University  is  empowered  to  lay  down  the terms and conditions of the
\naffiliation, and the Statutes framed by the  University  are  binding  on  the
\ncolleges.   The  said  claim  is  disputed  by  the  Trust  on the ground that
\nsubsequent to the enactment of the State Act, the Parliament has  enacted  the
\nCentral  Act  whereby  Section  13A  has  been inserted in the Indian Medicine
\nCentral Council Act, 1970, and the said provision deals with establishment  of
\na  new  medical  college  or  opening  of  a  new or higher course of study or
\ntraining and prescribes that notwithstanding anything contained  in  the  said
\nAct  or any other law for the time being in force, no person shall establish a
\nmedical college except with the previous permission of the Central  Government
\nobtained in  accordance with the provisions of the said Section.  According to
\nthe Trust, Section 13-A introduced by the amendment Act,  would  prevail  over
\nthe provisions of Section 5(5) of the Medical University Act introduced by the
\nState  Act as under sub-section (1) of Section 13A only the Central Government
\nhas the power to fix the admission capacity in relation to any course of study
\nor training, including the post graduate course of  study  or  training  in  a
\nmedical college.\n<\/p>\n
5.   In  the  instant  case,  both the State Act and the Central Act have been
\nenacted in exercise of the powers conferred by Entry 25 of List  III.    Since
\nParliament  and  State  Legislatures  are  empowered  to make laws on the same
\nsubject, the possibility of repugnancy between a law made by Parliament and  a
\nlaw made by a State Legislature under Entry 25 of List III cannot be excluded.
\nArticle  254  of  the  Constitution  makes a provision for dealing with such a
\nsituation.  Article 254 (1) gives overriding effect to the provisions of a law
\nmade by Parliament, which Parliament is competent to enact or to any provision
\nof any existing law in respect of one of the matters enumerated  in  List  III
\nand  if  a  law  made  by  the  legislature  of  the State is repugnant to the
\nprovisions of the law made by Parliament, the law made by the  legislature  of
\nthe State  is to be treated as void to the extent of repugnancy.  Under Clause
\n(2), the law made by the legislature of a State with respect  to  one  of  the
\nmatters  enumerated in List III will prevail over the provisions of an earlier
\nlaw made by Parliament or an existing law with respect to that matter  if  the
\nlaw  made  by the legislature of the state has been reserved for consideration
\nby the President and has received his assent.    The  proviso  to  clause  (2)
\ncurtails  the ambit of clause (2) by providing that Parliament can enact a law
\nwith respect to the same matter on which the State legislature  has  made  the
\nlaw  and by such law Parliament can add to, amend, vary or repeal the law made
\nby the legislature of a State.\n<\/p>\n
        6.  In Deep Chand v.  State of U.P, AIR<\/a> 1959  SC  648,  while  dealing
\nwith Article 254 of the Constitution, the Supreme Court has held thus:  –\n<\/p>\n
“Repugnancy  between  two statutes may thus be ascertained on the basis of the
\nfollowing three principles:\n<\/p>\n
        (1) Whether there is direct conflict between the two provisions;
\n        (2) Whether Parliament intended to lay  down  an  exhaustive  code  in
\nrespect of the subject-matter replacing the Act of the State legislature; and
\n        (3)  Whether  the law made by Parliament and the law made by the State
\nlegislature occupy the same field.”\n<\/p>\n
7.   It  is  thus  clear  that  the  test  of  two   legislations   containing
\ncontradictory provisions  is not the only criterion of repugnancy.  Repugnancy
\nmay arise between two enactments even though obedience  to  each  of  them  is
\npossible  without  disobeying  the  other  if  a  competent legislature with a
\nsuperior efficacy  expressly  or  impliedly  evinces  by  its  legislation  an
\nintention to cover the whole field.  Therefore, what has to be seen is whether
\nin enacting Section 13A of the Indian Medicine Central Council Act, Parliament
\nhas evinced an intention to cover the whole field relating to establishment of
\na new College of Indian Medicine in the country.\n<\/p>\n
        8.   At  this  stage,  it  is  necessary  to  notice the provisions of
\nSections 13A, 13B and 13C inserted in the Indian Medicine Central Council Act,
\n1970 by the Amendment Act 52 of 2002 and further substituted by the  Amendment
\nAct 58  of  2003.   Sections 13A, 13B and 13C, as substituted by the Amendment
\nAct 58 of 2003, read as follows:-\n<\/p>\n
 “13A.  (1) Notwithstanding anything contained in this Act or  any  other  law
\nfor the time being in force, –\n<\/p>\n
a)no person shall establish a medical college; or\n<\/p>\n
b)no medical college shall –\n<\/p>\n
i.open a new or higher course of study or training,<\/p>\n
ii.  including a post-graduate course of study or training, which would enable
\na  student  of such course or training to qualify himself for the award of any
\nrecognised medical qualifi-cation; or<\/p>\n
iii.  increase its admission capacity in  any  course  of  study  or  training
\nincluding a post-graduate course of study or training,
\nexcept  with  the  previous  permission  of the Central Government obtained in
\naccordance with the provisions of this section.\n<\/p>\n
        Explanation 1.  – For the purpose of this section,  “person”  includes
\nany University or a trust, but does not include the Central Government.\n<\/p>\n
        Explanation 2.    –  For  the  purpose  of  this  section,  “admission
\ncapacity”,  in  relation  to  any  course  of  study  or  training,  including
\npostgraduate  course  of  study  or  training, in a medical college, means the
\nmaximum number of students as may be fixed by the Central Government from time
\nto time for being admitted to such course or training.\n<\/p>\n
        (2) Every  person  or  medical  college  shall,  for  the  purpose  of
\nobtaining permission under sub-section (1), submit to the Central Government a
\nScheme  in  accordance  with the provisions of sub-section (3) and the Central
\nGovernment  shall  refer  the  scheme  to  the   Central   Council   for   its
\nrecommendations.\n<\/p>\n
        (3)  The  scheme referred to in sub-section (2), shall be in such form
\nand contain such particulars and be preferred in such manner  and  accompanied
\nwith such fee, as may be prescribed.\n<\/p>\n
        (4)  On  receipt  of  a  scheme  from  the  Central  Government  under
\nsubsection (2), the Central Council may obtain such other particulars  as  may
\nbe  considered  necessary  by  it  from  the  person  or  the  medical college
\nconcerned, and thereafter, it may, –\n<\/p>\n
(a)if the scheme is defective and does not contain necessary particulars, give
\na reasonable opportunity to the person or medical college concerned for making
\na written representation and it shall  be  open  to  such  person  or  medical
\ncollege to rectify the defects, if any, specified by the Central Council;\n<\/p>\n
(b)consider   the  scheme,  having  regard  to  the  factors  referred  to  in
\nsub-section (8) and submit it to the  Central  Government  together  with  its
\nrecommendations thereon within a period not exceeding six months from the date
\nof receipt of the reference from the Central Government.\n<\/p>\n
        (5)  The  Central  Government  may,  after  considering the scheme and
\nrecommendations of  the  Central  Council  under  sub-section  (4)  and  after
\nobtaining,  where  necessary,  such  other  particulars  as  may be considered
\nnecessary by it from the person or medical college concerned and having regard
\nto the factors referred to in sub-section (8), either approve the scheme  with
\nsuch conditions, if any, as it may consider necessary or disapprove the scheme
\nand any such approval shall constitute as a permission under sub-section (1);\n<\/p>\n
        Provided that no scheme shall be disapproved by the Central Government
\nexcept  after  giving  the  person  or  medical college concerned a reasonable
\nopportunity of being heard:\n<\/p>\n
        Provided further that nothing in this sub-section  shall  prevent  any
\nperson  or  medical  college whose scheme has not been approved by the Central
\nGovernment to submit a fresh scheme and the provisions of this  section  shall
\napply  to  such scheme as if such scheme had been submitted for the first time
\nunder sub-section (2).\n<\/p>\n
        (6) Where, within a period of one year from the date of submission  of
\nthe  scheme  to  the  Central  Government  under  sub-section (2), no order is
\ncommunicated by the Central  Government  to  the  person  or  medical  college
\nsubmitting  the  scheme,  such scheme shall be deemed to have been approved by
\nthe  Central  Government  in  the  form  in  which  it  was  submitted,   and,
\naccordingly,   the   permission   of  the  Central  Government  requred  under
\nsub-section (1) shall also be deemed to have been granted.\n<\/p>\n
        (7) In computing the time-limit specified in sub-section (6), the time
\ntaken by the person or medical college concerned  submitting  the  scheme,  in
\nfurnishing  any  particulars  called  for  by  the  Central Council, or by the
\nCentral Government, shall be excluded.\n<\/p>\n
        (8) The Central Council while making its recommendations under  clause\n<\/p>\n
(b)  of  sub-section  (4)  and  the Central Government while passing an order,
\neither approving or disapproving the scheme under sub-section (5), shall  have
\ndue regard to the following factors, namely.-\n<\/p>\n
        (a)  Whether  the  proposed  medical  college  or the existing medical
\ncollege seeking to open a new or higher course of study or training, would  be
\nin  a  position  to  offer  the  minimum  standards  of  medical  education as
\nprescribed by the Central Council under section 22;\n<\/p>\n
        (b) Whether the person seeking to establish a medical college  or  the
\nexisting  medical  college  seeking to open a new or higher course of study or
\ntraining  or  to  increase  its  admission  capacity  has  adequate  financial
\nresources;\n<\/p>\n
        (c)  Whether  necessary  facilities  in  respect  of staff, equipment,
\naccommodation,  training,  hospital  or  other  facilities  to  ensure  proper
\nfunctioning  of  the  medical college or conducting the new course of study or
\ntraining or accommodating the increased admission capacity have been  provided
\nor would be provided within the time-limit specified in the scheme;\n<\/p>\n
        (d) Whether adequate hospital; facilities, having regard to the number
\nof  students  likely  to  attend  such  medical  college or course of study or
\ntraining or the increased admission capacity have been provided  or  would  be
\nprovided within the time-limit specified in the scheme;\n<\/p>\n
        (e) Whether any arrangement has been made or programme drawn to impart
\ntraining  to  students  likely to attend such medical college or the course of
\nstudy or training by persons having recognised medical qualifications;\n<\/p>\n
        (f) the requirement of manpower in the field  of  practice  of  Indian
\nmedicine in the medical colleges;\n<\/p>\n
        (g) any other factors as may be prescribed.\n<\/p>\n
(9)  Where  the  Central  Government  passes  an  order  either  approving  or
\ndisapproving a scheme under this  section,  a  copy  of  the  order  shall  be
\ncommunicated to the person or medical college concerned.\n<\/p>\n
        13B.   (1)  Where  any  medical  college  is  established  without the
\nprevious  permission  of  the  Central  Government  in  accordance  with   the
\nprovisions  of  Section  13A,  medical qualification granted to any student of
\nsuch  medical  college  shall  not  be  deemed  to  be  a  recognised  medical
\nqualification for the purposes of this Act.\n<\/p>\n
        (2) Where any medical college opens a new or higher course of study or
\ntraining  including  a  post-graduate  course of study or training without the
\nprevious  permission  of  the  Central  Government  in  accordance  with   the
\nprovisions  of  section  13A,  medical qualification granted to any student of
\nsuch medical college on the basis of such  study  or  training  shall  not  be
\ndeemed to be a recognised medical qualification for the purposes of this Act.\n<\/p>\n
        (3)  Where any medical college increases its admission capacity in any
\ncourse of study or training without the previous  permission  of  the  Central
\nGovernment   in  accordance  with  the  provisions  of  section  13A,  medical
\nqualification granted to any student of such medical college on the  basis  of
\nthe  increase in its admission capacity shall not be deemed to be a recognised
\nmedical qualification for the purposes of this Act.\n<\/p>\n
        13C.  (1) If any person has  established  a  medical  college  or  any
\nmedical  college  has  opened  a  new or higher course of study or training or
\nincreased the admission capacity on or before the commencement of  the  Indian
\nMedicine  Central  Council  (Amendment)  Act,  2003,  such  person  or medical
\ncollege, as the case may be, shall seek, within a period of three  years  from
\nthe said commencement, permission of the Central Government in accordance with
\nthe provisions of Section 13A.\n<\/p>\n
(2)  If  any  person  or  medical  college,  as the case may be, fails to seek
\npermission under sub-section (1), the provisions of section 13B  shall  apply,
\nso far as may be, as if permission of the Central Government under section 13A
\nhas been refused”.\n<\/p>\n
        9.  Section 13A(1) prescribes that no person shall establish a medical
\ncollege except with the previous permission of the Central Government obtained
\nin accordance  with the provisions of the said section.  Similar permission is
\nrequired for opening a new or higher  course  of  study  or  training  or  for
\nincrease  in  the  admission  capacity  in  any  course  of  study or training
\nincluding a post-graduate course of study or training in  a  medical  college.
\nSub-clause  (2)  requires  that every person or medical college shall, for the
\npurpose of obtaining permission under sub-section (1), submit a scheme to  the
\nCentral  Government  in accordance with the provisions of sub-section (3), and
\nthe Central Government shall refer the scheme to the Central Council  for  its
\nrecommendations.   Sub-section  (3)  provides that the scheme shall be in such
\nform and contain  such  particulars  and  be  preferred  in  such  manner  and
\naccompanied with  such  fee,  as  may be prescribed.  Sub-sections (4) and (5)
\nprescribe  the  procedure  for  dealing  with  the  scheme  submitted  by  the
\ninstitutions.   Sub-section  (6)  provides  that where, within a period of one
\nyear from the date of submission of the scheme to the Central Government under
\nsub-section (2), no order is communicated by the  Central  Government  to  the
\nperson  or  medical college submitting the scheme, such scheme shall be deemed
\nto have been approved by the Central Government in the form in  which  it  was
\nsubmitted  and, accordingly, the permission of the Central Government required
\nunder sub-section (1) shall also be deemed to have been granted.  Sub-sections
\n(7) to (9 ) are not material for the purpose of these petitions.\n<\/p>\n
10.  It would thus be clear that in enacting Section 13A, Parliament has  made
\na complete and exhaustive provision covering the entire field for establishing
\na new  medical  college and for its continuance.  No further scope is left for
\nthe operation of the State Legislation  in  the  said  field  which  is  fully
\ncovered by  the law made by the Parliament.  As per sub-section (1) of Section
\n13A read with Explanation 2, inserted by the Amendment Act  52  of  2002,  the
\nadmission capacity has to be fixed by the Central Government from time to time
\nfor being  admitted to such course or training.  Therefore, the University had
\nclearly erred in denying sanction to the petitioner college for the intake  of
\n40 students which has been duly approved by the Central Council.\n<\/p>\n
11.   In  Thirumuruga  Kirupananda Variyar Thavathiru Sundara Swamigal Medical
\nEducational & Charitabel Trust v.  State of TamilNadu, (1996)  3  SCC  15  the
\nSupreme Court  considered  the provisions of Dr.M.G.R.  Medical University Act
\nin the context of the provisions  of  Section  10-A  of  the  Indian  Medicine
\nCouncil  Act,  1956,  as  inserted by Indian Medicine Council (Amendment) Act,
\n1993 which are pari materia with the provisions of Section 13A of  the  Indian
\nMedicine Central  Council  Act.   The Supreme Court held that though Section 5
\n(5) of the Medical University Act, relates to  affiliation  of  colleges,  the
\nproviso  inserted  therein deals with establishment of a college and imposes a
\ncondition that for the purpose of affiliation of a college, permission of  the
\nState Government  to  establish the college is necessary.  In other words, the
\nsaid proviso that has been inserted by the State Act, in pith  and  substance,
\nis  a  provision relating to the establishment of a college and merely because
\nit is placed in a  provision  relating  to  affiliation  of  colleges  to  the
\nUniversity,  the  said  proviso would not cease to be a provision dealing with
\nestablishment of a college.  However, in Section 10-A, Parliament has  made  a
\ncomplete  and  exhaustive provision covering the entire field for establishing
\nnew medical colleges in the country.    No  further  scope  is  left  for  the
\noperation of the State Legislation in the said field which is fully covered by
\nthe law  made by the Parliament.  The fact that the State Act has received the
\nassent of the President would be of no avail because the  repugnancy  is  with
\nthe  Central  Act  which  was enacted by Parliament after the enactment of the
\nState Act.  Although the Central Act does not expressly amend  or  repeal  the
\nState  Act  but  the  effect  of the non obstante clause in sub-section (1) of
\nSection 10-A which gives overriding effect to the provisions of  Section  10-A
\nover  anything  contained in the Indian Medical Council Act, 1956 or any other
\nlaw for the time being in force, is to render inapplicable, and thereby repeal
\nimpliedly, the proviso inserted in sub-section (5) of Section 5 of the Medical
\nUniversity Act, in the matter of establishment of a new medical college in the
\nState of Tamil Nadu and its affiliation by the Medical University.\n<\/p>\n
12.  Similar is the view taken by the Supreme  Court  in  Medical  Council  of
\nIndia v.    State  of Karnataka, AIR<\/a> 1998 SC 2423, where the Supreme Court has
\nheld that it is the Medical Council\/Dental Council  which  can  prescribe  the
\nnumber  of  students  to  be  admitted  in Medical courses\/Dental courses in a
\nmedical college or institution.  The Supreme Court further held that it is the
\nCentral Government alone which can direct increase in the number of admissions
\nbut only on the recommendation of the Medical Council.  Universities  and  the
\nState Government of Karnataka had no authority to allow increase in the number
\nof admissions  in  the medical colleges in the State.  The State Acts, namely,
\nKarnataka Universities Act and Karnataka Capitation  Fee  Act  must  therefore
\ngive  way  to  the Central Act , namely, the Indian Medical Council Act, 1956.
\nNo medical college can admit any student in excess of its  admission  capacity
\nfixed  by  the  Medical Council subject to any increase thereof as approved by
\nthe Central Government.  Sections 10A, 10B and 1 0C of the Medical Council Act
\nwill prevail over Section 53(10) of the State  Universities  Act  and  Section
\n41(b) of the State Capitation Fee Act.\n<\/p>\n
        13.   The  law  laid  down  by the Supreme Court with reference to the
\nprovisions of the Medical Council Act is squarely applicable  to  the  medical
\ncolleges governed by the Indian Medicine Council Act, 1970, and the University
\nclearly  exceeded its jurisdiction in insisting that the intake capacity could
\nnot be raised without complying with the Statutes framed by the University.\n<\/p>\n
        14.  Mr.AR.L.Sundaresan, learned counsel appearing for the Tamil  Nadu
\nDr.M.G.R.  Medical University, however, raised totally a new contention, which
\ndoes not find place in the counter affidavit filed by the University, that the
\nsanction  of  intake capacity by the Central Council is not in accordance with
\nSection 13A and, therefore,  the  University  is  not  bound  to  follow  such
\npermission granted  by  the Central Council.  The argument of Mr.Sundaresan is
\nthat as per Section 13A, substituted by Amendment Act 58 of 2003,  the  intake
\ncapacity has to be fixed by the Central Government and the Central Council had
\nno  power  to  fix  the intake capacity and on this ground alone, the sanction
\ngranted by the Central Council is vitiated.\n<\/p>\n
        15.  We find no merit in the submission of  the  learned  counsel  Mr.
\nSundaresan.   The intake capacity was sanctioned by the Central Council of the
\npetitioner College vide letter,  dated  01.8.2002,  which  was  prior  to  the
\nintroduction  of the Amendment Act 58 of 2003 and thereafter the same capacity
\nhad been continued.  Section 13C inserted by the  Amendment  Act  58  of  2003
\nprovides  that  if any person has established a medical college or any medical
\ncollege has opened a new or higher course of study or  training  or  increased
\nthe  admission  capacity  on or before the commencement of the Indian Medicine
\nCentral Council ( Amendment) Act, 2003, such person or medical college, as the
\ncase may be, shall seek,  within  a  period  of  three  years  from  the  said
\ncommencement,  permission  of  the  Central  Government in accordance with the
\nprovisions of Section 13A.  The petitioner institution has already submitted a
\nScheme, as contemplated under Sub-section (2) of Section 13A, to  the  Central
\nCouncil  and,  therefore,  the  submission  that  the  intake capacity was not
\nproperly sanctioned cannot be accepted.\n<\/p>\n
        16.  In the result, the writ petitions  are  allowed.    The  impugned
\nresolution of the University, dated 08.11.2004 is set aside and the University
\nis  directed  to  enroll and register the names of the petitioner s students,
\nsubject to the fulfilment of their eligibility conditions, provided  they  are
\nwithin the  sanctioned  intake capacity of 40 students.  We make it clear that
\nthis order will not preclude the University from carrying on  inspection  with
\nregard to the infrastructural facilities of the institution for the purpose of<\/p>\n
continuance  of provisional affiliation and for grant of final affiliation and
\ntaking  appropriate  decision  in  that  behalf  in   accordance   with   law.
\nConsequently, the connected miscellaneous petitions are closed.  No costs.\n<\/p>\n
Js\/pv<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Dharma Medical And Research … vs Government Of India on 21 January, 2006 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21\/01\/2006 C O R A M THE HON’BLE MR.A.P.SHAH, THE CHIEF JUSTICE AND THE HON’BLE MRS.JUSTICE PRABHA SRIDEVAN W.P.NO.4535 of 2004 and W.P.No. 276 of 2005 AND W.P.M.P.Nos.22033 and 311 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-155540","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nDharma Medical And Research ... vs Government Of India on 21 January, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dharma-medical-and-research-vs-government-of-india-on-21-january-2006-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dharma Medical And Research ... vs Government Of India on 21 January, 2006 - 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