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1996 (2) TMI 573 - SUPREME COURT

1996 (2) TMI 573 - SUPREME COURT - 1996 AIR 2384, 1996 (2) SCR 422, 1996 (3) SCC 15, 1996 (2) JT 692, 1996 (2) SCALE 103 - 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 o .....

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Dr. M.G.R. Medical University Act (hereinafter referred to as 'the Medical University Act') whereby Tamil Madu Medical 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 .....

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red. The Trust filed a Writ Petition (W.P. No. 2776 of 1989) in the Madras High Court against the said order of the University 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 .....

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on or before October 31, 1989 and it was received on November 7, 1989. The Trust filed another Writ Petition (W.P.No. 10453 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 .....

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m September 24, 1987, a proviso was inserted in sub-section (5) of Section 5 of the Medical University Act whereby it was prescribed 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 .....

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medical college by the Trust. The Trust filed a third Writ Petition (W.P. No. 13392 of 1991) challenging the said order of 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 ha .....

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on August 27, 1992. The said Ordinance was subsequently replaced by the Indian Medical Council (Amendment) Act, 1993 [ Central 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 prescr .....

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entire field and the State legislation must be treated to have been rendered inoperative and, as a result, the approval of 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 .....

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e petitions filed by the Trust were placed before this Court, the following order was passed :- "Issue notice on the Special 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.& .....

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this case, having regard to the circumstance that the petitioners has had to go to various authorities where sanctions and 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 w .....

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ard to the acquisition of 150 acres of land by the Trust for the medical college and making of endowment deposit of ₹ 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 N .....

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Medical graduates every year is considered adequate to meet the requirements of the country. (b) In February 1988, the Union 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 qualif .....

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in this State. (d) In Tamil Nadu, there are 9 Government Medical Colleges and Four Medical Colleges under private management 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, 4,63 .....

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for the State of Tamil Nadu and Mr. Navin Prakash, learned counsel for the Medical Council of India, it is ordered : On 15.2.1993, 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 r .....

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to this Court. It is open to the Medical Council of India to take the necessary inspection, if it so desires. In so deciding 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 ass .....

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he Trust also approached the University for inspection of the institution and that on the basis of the said request, the University 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 Tr .....

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plication. In accordance with the said order, the Trust submitted an application dated September 13, 1995, before the Central 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 refe .....

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ation of the Scheme, inspection report, directions of the Hon'ble Supreme Court of India and recommendations of the Medical 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. .....

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of India. This requirement of the State Government permission will be subject to the Supreme Court's directions. (ii) Two 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 .....

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ities by the Medical Council of India and after the bank guarantees are received in this Ministry." After receiving the 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, .....

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t a Medical College at Salem is rejected." From the aforesaid narration of facts, it would appear that after the insertion 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 passe .....

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feasibility of having the proposed medical college at the proposed location. The matter was considered by the State Government 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 .....

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t asserts its right on the basis of the proviso to sub-section (5) of Section 5 of the Medical University Act, inserted by 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 ena .....

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ith the provisions of the said Section. According to the Trust Section 10-A introduced by the Central Act would prevail over 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 .....

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power in respect of matters specified in Entry 11 of List II (State List) and Parliament and State Legislatures were conferred 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 educati .....

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erred by Entry 25 of List IlI. Therefore, the legislative entry which is relevant for the purpose of the present case is Entry 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 .....

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to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, 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 .....

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he law so made by the Legislature of the State." Clause (1) of Article 254 gives overriding effect to the provisions of 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. Clau .....

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enact a law with respect to the same matter on which the State Legislature has made the law and by such law the Parliament 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, .....

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al Act was enacted after the enactment of the State Act, Shri G.L. Sanghi, the learned senior counsel appearing for the State 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) o .....

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India Act, 1935, B.N. Rau J. has stated : "It is sometimes said that two laws cannot be said to be properly repugnant 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 .....

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zen is compelled to obey one of them, the other, though not actually disobeyed, is nullified." [See : G.P. Stewart V. 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) Wheth .....

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cation provides that the enactment of one Legislature has superiority over the other then to the extent of the repugnancy the 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 legisl .....

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y or impliedly evinces by its legislation an intention to cover the whole field. The contention of Shri Sanghi 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 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 o .....

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of Section 5 by the State Act is a provision relating to affiliation and recognition of medical colleges and this field is 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 .....

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and withdrawal of such affiliation. However, the proviso that has been introduced in sub-section (5) of Section 5 by the State 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 .....

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e a provision dealing with establishment of a college. We may now come to Section 10A inserted in the Indian Medical Council 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 trainin .....

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son" includes any University or a trust but does not include the Central Government. Explanation 2. - For the purpose 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 .....

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r particulars as may be considered necessary by it from the person or the medical college concerned, and thereafter, it may : (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 .....

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pprove the scheme and any such approval shall be a permission under sub- Section (1) : Provided that no scheme shall be disapproved 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 .....

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sub-Section (1) shall also be deemed to have been granted. 6) In computing the time-limit specified in sub-Section (5) the 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) shal .....

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pen a new or higher course of study or training or to increase its admission capacity has adequate financial resources; (c) 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 ha .....

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ield of practice of medicine; and (g) any other factors as may be prescribed. 8) Where the Central Government passes an order 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 .....

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ushroom growth of medical colleges, the President promulgated an Ordinance on the 27th August, 1992 to amend the Indian Medical 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 aforesai .....

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ery person or medical college shall, for the purpose of obtaining permission under sub-section (1), submit to the Central Government 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 Governm .....

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Under subsection (5) the scheme shall be deemed have been approved by the Central Government in the form in which it had been 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 .....

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r in the field of practice of medicine. It would thus appear that in Section 10A Parliament has made a complete and exhaustive 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 .....

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ate Act has received the assent of the President would be of no avail because the repugnancy is with the Central Act which 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 .....

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f establishment of a new medical college in the State of Tamil Nadu and its affiliation by the Medical University. In other 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 establis .....

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n dated September 20, 1993, has made the 'Establishment of new Medical Colleges, opening of higher courses of study and 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. .....

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he proviso to Section 5(5) of the Medical University Act is held to be inapplicable in the matter of establishing a new medical 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 .....

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college at the proposed location should be obtained from the State Government. The said condition about obtaining an essentiality 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 cert .....

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e of Tamil Nadu for grant of essentiality certificate in terms of Letter of Intent dated December 12, 1995 issued by the Government 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 .....

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he State Government to grant the essentiality certificate in respect of the medical college proposed to be established by the 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 inspectio .....

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