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Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational & Charitable Trust Versus State of Tamil Nadu

1996 (2) TMI 573 - SUPREME COURT

Civil Appeal No. 3214 of 1996 - Dated:- 12-2-1996 - AGRAWAL, S.C. AND NANAVATI G.T. JJ. JUDGMENT: S.C. AGRAWAL, J. Special leave granted. These appeals by Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust (hereinafter referred to as 'the Trust') relate to the establishment of a medical college at Salem in the State of Tamil Nadu. The Trust has been formed for establishing various educational institutions and for other charitable purposes .....

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ical University, re-named as Dr. M.G.R. Medical University, (hereinafter referred to as 'the University') was established. Sub-section (5) of Section 5 of the Medical University Act empowers the University to affiliate colleges to the University as affiliated colleges, within the University area under conditions prescribed and withdraw such affiliation. On December 2, 1987, the Trust submitted an application to the University seeking affiliation to the University a medical college which .....

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ity refusing to entertain the application of the Trust for affiliation of the proposed medical college to the University. On the said Writ Petition, a learned single Judge (K. Venkataswamy J., as the learned Judge then was) passed an order, on April 13, 1989, with the consent of the parties, wherein it was recorded that the University would not insist on the prior permission of the Government and that the Trust would apply for affiliation in the prescribed form and the University would consider .....

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3 of 1990) in the Madras High Court against the said order of the University dated December 18. 1989. The said Writ Petition of the as allowed by a learned single Judge of the High Court (Somasundram J.) by order dated February 1, 1991 and the order dated December 18, 1989 was set aside on the ground that application for affiliation has been sent by post on October 30, 1989 and the requirement of statute 37 with regard to the period of limitation for submitting the application was complied with. .....

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rescribed that "no college shall be affiliated to the University unless the permission of the Government to establish such college has been obtained and the terms and conditions, if any, of such permission have been complied with". Similarly, a proviso was also inserted in sub-section (7) of Section 5 which prescribes that "no institution shall be approved by the University unless the permission of the Government to establish such institution has been obtained and the terms and co .....

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the University dated August 6, 1991. The said Writ Petition was allowed by a learned single Judge (Bakthavatsalam J.] by judgment dated February 7, 1992 and the order dated August 16, 1991 was quashed and the matter was remitted back to the University for reconsideration. The learned Judge was of the view that while rejecting the application for affiliation the University had taken irrelevant and extraneous considerations into account. Feeling aggrieved by the said judgment of the learned single .....

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ral Act No. 31 of 1993] (hereinafter referred to as 'the Central Act') which was brought into force with effect from August 27, 1992. By the Central Act, Sections 10A, 10B and 10C were inserted in the Indian Medical Council Act, 1956. Section 10A deals with the establishment of a new medical college or opening of a new or higher course of study or training and prescribes that this can be done only with the previous permission of the Central Government obtained in accordance with the prov .....

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the State Government was no longer necessary for establishing a medical college as required under Proviso to sub-section (5) of Section 5 of the Medical University Act. The Writ appeals filed by the State Government as well as by the Trust were disposed of by the High Court by the impugned judgment dated April 30, 1993 whereby Writ Appeal (W.A. No. 301 of 1992) filed by the State Government was allowed and the Writ Appeal (W.A. No. 387 of 992) filed by the Trust was dismissed. The High Court he .....

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pecial leave Petitions; Prayer for interim relief is rejected. Mr. P.R. Seetharaman, learned counsel, accepts notice on behalf of the respondents. In the mean time, it will be open to the petitioner to approach the Central Government and Indian Medical Council for necessary permission which shall be considered in accordance with law. Liberty to mention for an early hearing." Thereupon, the Trust submitted an application before the Medical Council of India (for short "Medical Council&qu .....

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permission are said to be necessary to obtain affiliation, it is necessary for the petitioner to know from which authority, sequentially, to commence with. We direct the petitioner to apply to the State Government for the requisite permission. If the application in this behalf is filed within three weeks from today, the State Government will dispose of the same within four weeks thereafter. If the State Government declined the permission, they shall state the reasons for doing so. The petitioner .....

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50 lakhs and appointment of teaching staff, non-teaching staff, professors, lecturers, etc. and purchase of equipment and providing other infrastructural facilities for the college. By order dated March 9, 1994, the State Government rejected the application of the Trust for the following reasons : "(a) There are three Private Medical Colleges functioning in the Tamil Nadu for which permission was given by the Tamil Nadu Government on 24.7.1985 and that after that date the Government have n .....

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on Minister of Health and Family Welfare, Government of India in his D.O. letter referred to the recommendations of the Central Council of Health and Family Welfare held in February 1988, that no Medical College should be allowed to be opened in any part of the country or no additions to the existing admission capacity in the Medical College should be permitted as the qualified Medical practitioners made available from the existing medical colleges were sufficient for the near future and that th .....

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nt besides under Annamalai University, Chidambaram. The annual intake of students in the said colleges are 1477. The number of qualifying doctors seeking employment on the live registers of Employment Exchange in the State as on 28.2.1994 are 2412. For recruitment of Doctors for the post of Assistant Surgeon in Tamil Nadu Medical Service for the 1992, for 378 vacancies, 4,631 candidates applied for appointment, taking into account of these and other factors set out above, the Government consider .....

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.2.1993, the Medical Council of India did write to the petitioner a letter of affiliation from the Dr. M.G.R. Medical University. Since the petitioner had not mentioned in their letter that they had applied to M.G.R. Medical University for obtaining affiliation. If an expert body like that Medical Council of India certifies that the petitioner establishment conforms to the requirements of Medical Council of India, more than half the battle is won. Therefore, we would first like to have the opini .....

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g regard shall be had to its letter dated March 15, 1994, addressed to the Secretary to the petitioner's Trust. The said report shall be submitted within six weeks from today. List the matter after eight weeks." Consequent to the said order passed by this Court on January 27, 1995, the Medical Council conducted inspection of the college on March 8 and 9, 1995 to assess whether the infrastructure provided by the establishment (Medical College) conforms to the norms of the Medical Council .....

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iversity also conducted an inspection and it is stated that the report of the said inspection takes the view that the college is eligible for being affiliated to the University as it has satisfied all norms laid down by the University for being affiliated. When the matter came before the Court, on August 30, 1995, the learned counsel for the Trust submitted that since the Trust has not obtained the necessary permission under Section 10A of the Central Act, the Trust would move for the said permi .....

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al Government and after considering the said application, the Government of India, Ministry of Health and Family Welfare, have sent a Letter of Intent dated December 12, 1995 to the Trust wherein it is stated : "2. The scheme submitted by the Secretary, Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational & Charitable Trust, Salem was referred to the Medical Council of India on the 17th October, 1995 for its recommendations. The Council had already appointed i .....

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ical Council of India and factors mentioned in section 10A of the Indian Medical Council Act, 1956, this Ministry has come to the conclusion that a 'Letter of Intent' for starting a new medical college at Salem by Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust, Salem may be issued. Hence, this letter of Intent. 4. This letter of Intent is subject to the fulfillment of the following conditions: (i) As per the Medical Council of India N .....

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wo performance bank guarantees one for a sum of ₹ 150 lakhs (for 100 admissions) for the establishment of the medical college and its infrastructural facilities and the second amount to ₹ 550 lakhs (for 700 beds) for establishment of teaching hospital and its infrastructural facilities as per Medical Council of India norms may be provided. (iii) A time-bound four years project completion report may be provided. (iv) Consent of affiliation with a recognised university is not insisted .....

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e letter dated December 12, 1995, the Trust submitted a representation dated January 6, 1996, before the State Government for grant of essentiality certificate/no objection certificate for the establishment of medical college at Salem. The said request of the Trust has been rejected by letter dated January 10, 1996 sent by the Secretary, Health and Family Welfare Department, State of Tamil Nadu, wherein it is stated : "In your representation dated 6.1.96, you have required the Government to .....

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tion of Section 13A in the Central Act, the question regarding grant of permission for establishing medical college by the Trust was considered by the State Government twice during the pendency of these appeals. The matter was first considered by the State Government on the basis of the application submitted by the Trust in pursuance of the order dated January 21, 1994 passed by this Court and by their letter dated March 9, 1994, the State Government refused to grant the permission. Thereafter, .....

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ment for the second time when a request was made by the Trust for issuing an essentiality certificate/no objection certificate as required by the Letter of Intent dated December 12, 1995 of the Central Government. The Said request was rejected by the State Government by letter dated January 10, 1996. The University has also conducted an inspection of the facilities available at the college proposed to be established by the Trust and appears to be satisfied about the college being eligible for be .....

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the State Act, which prescribes that "no college shall be affiliated to the University unless the permission of the Government to establish such college has been obtain and the terms and conditions for such permission have been complied with". The said claim is disputed by the Trust on the ground that subsequent to the enactment of the State Act, Parliament has enacted the Central Act whereby Section 10A has been inserted in the Indian Medical Council Act, 1956 and the said provision d .....

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r the proviso to Section 5(5) of the Medical University Act introduced by the State Act. It is, therefore, necessary to consider whether and, if so, to what extent the proviso to sub-section (5) of Section 5 of the Medical University Act is applicable in the matter of establishment of medical college in the State of Tamil Nadu. The answer to this question would depend on the scope and ambit of the legislative power of Parliament and the State Legislature in this field relating to establishment o .....

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rred concurrent power in respect of matters specified in Entry 25 of List III (Concurrent List). By the Constitution (Forty Second Amendment) Act, 1976, Entry 11 of List II has been deleted and Entry 25 in List III has been enlarged to cover matters which were earlier specified in Entry 11 of List II. In view of the said amendment, the legislative power in respect of education is now conferred exclusively on Parliament in respect of matters specified in Entries 63 to 66 of List I and concurrentl .....

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try 25 of List III (as amended) which reads as under : "25. Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour." Since Parliament and State Legislatures are empowered to make laws on the same subject, the possibility of repugnancy between a law made by Parliament and a law made by a State Legislature under the said legislative entry cannot be excluded .....

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, subject to Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to .....

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f a law made by Parliament which Parliament is competent to enact or to any provision of any existing law in respect of one of the matters enumerated in List III and if a law made by the Legislature of the State is repugnant to the provisions of the law made by Parliament, the law made by the Legislature of the state is to be treated as void to the extent of repugnancy. Clause (1) is, however, subject to clause (2). Under clause (2), the law made by the Legislature of a State with respect to one .....

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can add to, amend, vary or repeal the law made by the Legislature of a State. The provision corresponding to Article 254 was contained in Section 107 of the Government of India Act, 1935. The only difference between that provision and Article 254 is that there was no provision similar to the proviso to clause (2) of Article 254 in Section 107 of the Government of India Act, 1935. As a result of the proviso in Article 254, the legislative power of Parliament has been enlarged in the sense that i .....

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te of Tamil Nadu, has, however, submitted that since the State Act has received the assent of the President, it will prevail over the Central Act in view of clause (2) of Article 254 inasmuch as it has not been amended, varied or repealed by any subsequent law made by Parliament. Shri Sanghi has also contended that there is no repugnancy between the proviso to Section 5(5) of the Medical University Act and Section 10A of the Indian Medical Council Act because the requirement of both the provisio .....

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unless there is a direct conflict between them, as when one said "do" and other "don't", There is no true repugnancy, according this view, if it is possible to obey both the laws. For reasons which we shall set forth presently, we think that this is too narrow a test: there may well be cases of repugnancy where both laws say "don't" but in different ways. For example, one law may say,"No person shall sell liquor by retail, that is, in quantities of less .....

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B.K. Roy Chaudhury, AIR 1939 Cal. 628] In Deep Chand v. The State of Uttar Pradesh & Ors., (1959) 2 Supp. SCR 8, this Court, while dealing with Article 254 of the Constitution, has held : "Repugnancy between two statutes may thus be ascertained on the basis of the following three principles : (1) Whether there is direct conflict between the two provisions; (2) Whether Parliament intended to lay down an exhaustive code in respect of the subject matter replacing the Act of the State Legis .....

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he one supersedes the other. But two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying the other. The test of two legislations containing contradictory provisions is not, however, the only criterion of repugnancy, for if a competent legislature with a superior efficiency expressly or impliedly evinces by its legislation an intention to cover the whole field, the enactments of the other legislature whether passed before or after would b .....

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s no repugnancy between the proviso to Section 5(5) of the Medical University Act and Section 10A of the Indian Medical Council Act because both can be complied with, cannot, therefore, be accepted. What has to be seen is whether in enacting Section 10A of the Indian Medical Council Act, Parliament has evinced an intention to cover the whole field relating to establishment of new medical colleges in the country. Before we proceed to consider the ambit of the Central Act introducing Sections 10A, .....

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open for legislation by the State legislature. Shri Sanghi has placed reliance on the observations of this Court in J.P Unni Krishnan & Ors. v. State of Andhra Pradesh & Ors., 1993 (1) SCC 645, that the right to establish an educational institution does not carry with it the right to recognition or the right to affiliation, as the case may be, and that it is open to the State or the University according affiliation and recognition to impose such conditions as they think appropriate in th .....

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ate Act imposes a condition that "no college shall be affiliated to the University unless the permission of the Government to establish such college has been obtained and the terms and conditions, if any, of such permission have been compiled with". This would show that though Section 5(5) of the Medical University Act relates to affiliation of colleges the proviso inserted therein deals with the establishment of a college and imposes a condition that for the purpose of affiliation of .....

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l Act, 1956 by the Central Act which provides as follows : "10-A. Permission for establishment of new medical college new course of study, etc. - (i) Notwithstanding anything contained in this Act or any other law for the time being in force, a) no person shall establish a medical college; or b) no medical college shall i) open a new or higher course of study or training (including a post graduate course of study or training) which would enable a student of such course or training to qualif .....

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of this section, "admission capacity" in relation to any course of study or training (including a post graduate course of study or training) in a medical college, means the maximum number of students that may be fixed by the Council from time to time for being admitted to such course or training. 2) (a) (i) Every person or Medical college shall, for the purpose of obtaining permission under sub-Section (1), submit to the Central Government a scheme in accordance with the provisions of .....

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: (a) If the scheme is defective and does not contain any necessary particulars, give a reasonable opportunity to the person or college concerned for making a written representation and it shall be open to such person or medical college to rectify the defects, if any, specified by the Council; (b) Consider the scheme, having regard to the factors referred to in sub-Section (7), and submit the scheme together with its recommendations thereon to the Central Government. 4) The Central Government m .....

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approved by the Central Government except after giving the person of college concerned a reasonable opportunity of being heard : Provided further that nothing in this sub-Section shall prevent any person or medical college whose scheme has not been approved by the Central Government to submit a fresh scheme and the provisions of this section shall apply to such scheme as if such scheme has been submitted for the first time under sub-Section (2). 5) Where within a period of one year from the date .....

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time taken by the person or college concerned submitting the scheme in furnishing any particulars called for by the Council or by the Central Government shall be excluded. 7) The Council while making its recommendations under clause (b) of sub-Section (3) and the Central Government while passing an order either approving or disapproving the scheme under sub-Section (4) shall have due regard to the following factors, namely ; a) Whether the proposed medical college or the existing medical colleg .....

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Whether necessary facilities in respect of staff equipment accommodation and other facilities to ensure proper functioning to the medical college or conducting the new course of study or training or accommodating the increased admission capacity have been provided or would be provided within the time limit specified in the scheme; (d) Whether adequate hospital facilities having regard to the number of students likely to attend such medical college or course of study or training or as a result o .....

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er either approving or disapproving a scheme under this Section a copy of the order shall be communicated to the person or college concerned." According to the Statement of Objects and Reasons appended to the Bill, the object underlying the enactment of Section 10A is to curb the mushroom growth of medical colleges in the country. In the Statement of Objects and Reasons it is stated : ". it had been noticed that some State Governments were giving approval for the opening of new medical .....

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ical Council Act, 1956 by incorporating therein provisions for prior permission of the Central Government for establishing any new medical college and for starting any new or higher course of study in an existing medical college or increasing admissions capacity in any course of study of training including post-graduate course of study. The Bill seeks to replace the aforesaid Ordinance." Section 10A seeks to achieve this object by prescribing in sub-Section (1) that no person shall establis .....

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overnment a scheme in the prescribed form and the said scheme is to be referred to the Medical Council for its recommendations. Under sub-section (3), the scheme is required to be considered by the Medical Council having regard to the factors referred to in sub-section (7) and Medical Council submits the scheme together with its recommendations thereon to the Central Government. Sub section (4) empowers the Central Government, after considering the scheme and the recommendations of the Medical C .....

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een submitted and the permission of the Central government required under sub- section (1) shall be deemed to have been granted where no order passed by the Central Government has been communicated to the person or college within one year from the date of submission of the scheme to the Central Government under sub-section (2). The factors that are required to be taken into consideration by the Medical Council and the Central Government under sub-section (7) include the capacity to offer the min .....

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ive provision covering the entire field for establishing of new medical colleges in the country. No further scope is left for the operation of the State legislation in the said field which is fully covered by the law made by Parliament. Applying the tests said down by this Court, it must be held that the proviso to sub- section (5) of Section 5 of the Medical University Act which was inserted by the State Act requiring prior permission of the State Government for establishing a college are repug .....

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was enacted by Parliament after the enactment of the State Act. In view of the proviso to sub-Article (2) of Article 254 Parliament could add to, amend, vary or repeal the State Act. In exercise of this power Parliament could repeal the State Act either expressly or by implication. (See : Zaverbhai Amaidas v. The State of Bombay, (1955) 1 SCR 799, 809, Deep Chand v. State of U.P. [supra] at p. 51). Although the Central does not expressly amend or repeal the State Act but the effect of the non- o .....

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words, as a result of insertion of Section 10A in the Indian Medical Council Act, 1956 by the Central Act, with effect from August 27, 1992, the proviso the Section 5(5) of the Medical University Act has ceased to apply in the matter of establishment of a medical college in the State of Tamil Nadu and its affiliation to the Medical University and for the purpose of establishing a medical college permission of the Central Government has to be obtained in accordance with the provisions of Section .....

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increase of admission capacity in medical colleges Regulations, 1993' (hereinafter referred to as 'the Regulations') whereby a scheme for application for permission of the Central Government to establish a new medical college has been made. In the said scheme qualifying criteria for applying for permission to establish a new medical college have been laid down. One of the conditions that is required to be fulfilled by the eligible organizations is "that Essentiality Certificate .....

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ical college and the requirement of obtaining the prior permission of the State Government for establishment of a medical college cannot be insisted upon under the said proviso, a similar requirement has now been imposed by virtue of the qualifying criteria laid down in the scheme as framed by the Regulations and that this was also insisted upon by the Central Government in its Letter of Intent dated December 12, 1995. The submission of Shri Sanghi is that the State of Tamil Nadu has considered .....

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iality certificate from the State Government regarding desirability a feasibility of having the proposed college at the proposed location cannot be equated with obtaining prior permission of the State Government for establishing a new medical college as required under the proviso to Section 5(5) of the Medical University Act, for the purpose of granting the essentiality certificate as required under the qualifying criteria prescribed under the scheme, the State Government is only required to con .....

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vernment of India, but the State Government has refused to issue the said certificate by its order dated January 10, 1996. The only reason which has been given by the State Government for such refusal is that "the Government have not changed the policy of not permitting any private Trust or Management to start a Medical/Dental College". This would show that instead of considering the matter of grant of essentiality certificate on the basis of desirability and feasibility of having the .....

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he Trust cannot, therefore, be upheld. The question that arises is whether the State Government should again be directed to consider the matter of grant of essentiality certificate. On a careful consideration of the matter, we are of the opinion that since the Trust has already established the infrastructure for establishing a medical college and the reports of the inspection conducted by the Medical Council as well as by the University indicate that the facilities that are available are adequat .....

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