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2015 (7) TMI 1032 - SUPREME COURT

2015 (7) TMI 1032 - SUPREME COURT - TMI - Refusal to renew permission for admitting students for the academic year 2015-16 in the MBBS Course - Held that:- From a bare reading of the provision contained in Article 19(1)(g) it is evidently clear that the citizens have been conferred with the right to practice any profession or carry on any occupation, trade or business, but such right is subject to the restriction and imposition of condition as provided under Article 19(6) of the Constitution. - .....

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tablish an educational institution but no citizen, person or institution has a right much less of fundamental right to affiliation or recognition.

From reading of Article 32, it is manifest that clause 1(i) of Article 32 guarantees the right to move the Supreme Court for an appropriate writ for the purpose of enforcing the Fundamental Rights included in Part-III of the Constitution. The sole object of Article 32 is the enforcement of Fundamental Rights guaranteed by the Constitution. .....

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llenged the decision of MCI and the Central Government refusing to grant permission or renewal to carry on their courses for the Academic Session 2015-16. The decisions are based on the inspection reports submitted by the teams of MCI. The jurisdiction of MCI or the Central Government to grant or refuse to grant permission has not been challenged. Hence, it is well within the jurisdiction of MCI which is statutory body to take a decision based on the inspection of the college to satisfy itself t .....

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inst assessee. - WRIT PETITION (C) NO. 441 OF 2015, WRIT PETITION (C) NO. 448 OF 2015 - Dated:- 23-7-2015 - M.Y. Eqbal & Arun Mishra, JJ. For the Petitioner : Mr. Shadan Farasat,Adv., Mr. Renjith B. Marar, Adv., Ms. Lakshmi N. Kaimal,Adv.,Ms. Anu Dixit Kaushik, Adv. For the Respondent : None JUDGMENT M. Y. EQBAL, J. Knocking the doors of this Court in the first instance under the garb of a petition under Article 32 of the Constitution, instead of approaching the High Court, for the enforceme .....

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permission. W.P. (Civil) No. 441 of 2015: 3. The petitioner institute was said to have been granted permission for admitting 150 students in the MBBS course for the academic year 2013-14 and permission was renewed for the academic year 2014-15. The petitioner applied for renewal of permission for the academic year 2015-16 pursuant to which the assessors from the MCI conducted an inspection on 12th and 13th December, 2014 and submitted a report dated 15.12.2014 in which no deficiencies were alle .....

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s were stated to have been absent on account of the imminent State Level PG Entrance Test. Another inspection was conducted on 7th February, 2015. The inspection report was alleged to have been inaccurate and signed in protest by the Dean. 5. The aforesaid report was considered by the Executive Committee of the MCI on 10th February, 2015 and it was decided not to recommend the renewal of the permission of the petitioner and the same was communicated to the Union Government, which sent letter dat .....

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ons, 1999. 6. Thereafter, the Union Government published a list on 17.06.2015 stating that the permission of the petitioner college for the academic year 2015-16 had not been renewed and a letter dated 15.06.2015 was sent to the petitioner informing the same. 7. The petitioner filed the present petition praying for declaring the second inspection conducted on 6th and 7th February, 2015 to be illegal and for directing the MCI to recommend the renewal of the approval of the petitioner college for .....

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tee of MCI after considering the inspection report recommended disapproval of the college. The Central Government directed the MCI to reconsider the matter. However, the MCI reiterated its stand of not recommending the renewal of permission for the sessions 2015-16. The petitioner has challenged the decision of the Medical Council of India. 9. We have heard Mr. Kapil Sibal, learned senior counsel appearing in W.P. (Civil) No.441 of 2015 and Mr. V. Giri, learned senior counsel appearing in W.P.(C .....

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this Court in Priyadarshini Dental College and Hospital vs. Union of India & Ors., (2011) 4 SCC 623. 11. Mr. V. Giri, learned senior counsel appearing in one of the writ petitions, advanced the same arguments for filing the writ petition before this Court under Article 32 of the Constitution instead of approaching the High Court. 12. Both the learned senior counsel, however, claimed their right guaranteed under Article 19(1)(g) of the Constitution of India. 13. At the very outset, we wish to .....

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y occupation, trade or business (2) - (3) - (4) - (5) - (6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or prevent the Stat .....

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have been conferred with the right to practice any profession or carry on any occupation, trade or business, but such right is subject to the restriction and imposition of condition as provided under Article 19(6) of the Constitution. 15. In Unni Krishnan's case, 1993 (1) SCC 645, the right guaranteed under Article 19(1)(g) has been elaborately discussed by the five Judges Constitution Bench. The Court held that imparting education cannot be treated as a trade or business. Trade or business .....

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undamental right to affiliation or recognition. Their Lordships observed:- "67. Even on general principles, the matter could be approached this way. Educational institutions can be classified under two categories: 1. Those requiring recognition by the State and 2. Those who do not require such a recognition. 67a. It is not merely an establishment of educational institution, that is urged by the petitioners, but, to run the educational institution dependent on recognition by the State. There .....

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xx xxx 72. Accordingly, it is held that there is no fundamental right under Article 19(1)(g) to establish an educational institution, if recognition or affiliation is sought for such an educational institution. It may be made clear that anyone desirous of starting an institution purely for the purposes of educating the students could do so but Sections 22 and 23 of the University Grants Commission Act which prohibits the award of degrees except by a University must be kept in mind." 16. Con .....

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rt-III of the Constitution. The sole object of Article 32 is the enforcement of Fundamental Rights guaranteed by the Constitution. It follows that no question other than relating to the Fundamental Right will be determined in a proceeding under Article 32 of the Constitution. The difference between Article 32 and 226 of the Constitution is that while an application under Article 32 lies only for the enforcement of Fundamental Rights, the High Court under Article 226 has a wider power to exercise .....

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is Court will not entertain that challenge in a proceeding under Article 32 of the Constitution. 19. In the case of Northern Corporation vs. Union of India, (1990) 4 SCC 239, a petition under Article 32 of the Constitution of India was moved by the transferee licence holder. The maintainability of the application under Article 32 of the Constitution of India was seriously objected by the Union of India. Writing the judgment, Hon'ble Sabyasachi Mukherjee, the then CJI, held:- "11. Howeve .....

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as such has no fundamental right to clear the goods imported except in due process of law. Now in the facts of this case, such clearance can only be made on payment of duty as enjoined by the Customs Act. In a particular situation whether customs duty is payable at the rate prevalent on a particular date or not has to be determined within the four corners of the Customs Act, 1962. The petitioner has no fundamental right as such to clear any goods imported without payment of duties in accordance .....

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edure envisaged under the Act had moved this Court for breach of fundamental right. This is not permissible and should never be entertained. In a matter of this nature where liability of a citizen to pay a particular duty depends on interpretation of law and determination of facts and the provision of a particular statute for which elaborate procedure is prescribed, it cannot conceivably be contended that enforcing of those provisions of the Act would breach fundamental right which entitle a cit .....

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theoretical basis that there is breach of the fundamental right. Whenever a person complains and claims that there is a violation of law, it does not automatically involve breach of fundamental right for the enforcement of which alone Article 32 of the Constitution is attracted. It appears that the facts of this nature require elaborate procedural investigation and this Court should not be moved and should not entertain on these averments (sic) of the Article 32 of the Constitution. This positi .....

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lf to do everything which even the High Court can do, this Court will not be able to do what this Court alone can do under Article 136 of the Constitution of India, and other provisions conferring exclusive jurisdiction on this Court. There is no reason to assume that the concerned High Court will not do justice. Or that this Court alone can do justice. If this Court entertains writ petitions at the instance of parties who approach this Court directly instead of approaching the concerned High Co .....

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if the seriousness of this aspect is not sufficiently realized. And this is no imaginary phobia. A dismissed government servant has to wait for nearly ten years for redress in this Court. Kashinth Dikshita v. Union of India, (1986) 3 SCC 229: (AIR 1986) SC 2118). A litigant whose appeal has been dismissed by wrongly refusing to condone delay has to wait for 14 years before his wrong is righted by this Court. Shankarrao v. Chandrasenkunwar, Civil Appeal No.1335(N) of 1973 decided on January 29, .....

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howing trust in the High Court by directing the litigants to approach the High Court in the first instance. Besides, as a matter of fact, if matters like the present one are instituted in the High Court, there is a likelihood of the same being disposed of much more quickly, and equally effectively, on account of the decentralisation of the process of administering justice. We are of the opinion that the petitioner should be directed to adopt this course and approach the High Court." 21. In .....

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etitions under Article 32 that the Punjab Government has in pursuance of their policy of nationalization of text books issued a series of notifications regarding the printing, publication and sale of these books and thereby ousted them from the business altogether. Dismissing the writ petition, a five Judges Constitution Bench, headed by the then Chief Justice observed:- "21. As in our view the petitioners have no fundamental right in the present case which can be said to have been infringe .....

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aid to be a right to property or to any interest in an undertaking within the meaning of Article 31(2) of the Constitution and no question of payment of compensation can arise because the petitioners have been deprived of the same. The result is that the petition is dismissed with costs." 22. In the case of Hindi Hitrakshak Samiti vs. Union of India, (1990) 2 SCC 352, a similar question relating to the maintainability of the writ petition under Article 32 of the Constitution came for consid .....

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rantees enforcement of Fundamental Rights but violation of Fundamental Right is the sine qua non for seeking enforcement of those rights by the Supreme Court. In order to establish the violation of fundamental right, the Court has to consider the direct and inevitable consequences of the action which is sought to be remedied or the guarantee of which is sought to be enforced. Where the existence of fundamental right has to be established by acceptance of a particular policy, or a course of actio .....

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lication of law would not amount to a violation of fundamental right. If the provisions of law are good and the orders passed are within the jurisdiction of the authorities, there is no infraction of fundamental right if the authorities are right or wrong on facts. 24. In the case of Ujjam Bai vs. State of U.P, AIR 1962 SC 1621=(1963) 1 SCR 778, before the seven Judges' Constitution Bench, a question came for consideration as to whether an assessment made by an authority under the taxing sta .....

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le ground that it is passed on a misconstruction of a provision of the Act or of a notification issued thereunder. Nor can the validity of such an order be questioned in a petition under Article 32 of the Constitution. The proper remedy for correcting an error in such an order is to proceed by way of appeal, or if the error is an error apparent on the face of the record, then by an application under Article 226 of the Constitution. It is necessary to observe here that Article 32 of the Constitut .....

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neous. I have, therefore, come to the conclusion that no question of the enforcement of fundamental right arises in this case and the writ petition is not maintainable." 25. Their Lordships further observed: "38. As I have said above, the submission of the learned Additional Solicitor General is well founded. It has the support of the following decisions of this Court which I shall now deal with. In Gulabdas v. Assistant Collector of Custom 1957 AIR(SC) 733, 736.) it was held that if t .....

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ry and consequently a higher Excise Duty was imposed. The petitioners feeling aggrieved by the order filed a petition under Article 32 and the objection to its maintainability was that the application could not be sustained because no fundamental right had been violated by the impugned order it having been properly and correctly made by the authorities competent to make it. The petitioner there contended that the goods imported, which were called &'Lyra&' brand Crayons were not c .....

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