Kerala High Court
North Malabar Development Society vs State Of Kerala on 19 July, 2012
Author: S. Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
THURSDAY, THE 19TH DAY OF JULY 2012/28TH ASHADHA 1934
WP(C).No. 28304 of 2007 (T)
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PETITIONER:
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NORTH MALABAR DEVELOPMENT SOCIETY
NO.124, MUNICIPAL STADIUM COMPLEX, KANNUR
REPRESENTED BY ITS DIRECTOR, V.K.ABDUL HAMEED.
BY ADVS.SRI.V.G.ARUN
SRI.T.R.HARIKUMAR
RESPONDENTS:
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1. STATE OF KERALA,REPRESENTED BY
ITS SECRETARY, HEALTH AND FAMILY, WELFARE DEPARTMENT
TRIVANDRUM.
2. THE DIRECTOR OF MEDICAL EDUCATION,
TRIVANDRUM.
3. THE DENTAL COUNCIL OF INDIA, AIWAN-E
GHALIB MARG,KOTILA ROAD, NEW DELHI-2.
R1 & R2 BY ADV. GOVERNMENT PLEADER, SRI. T.R. RUPESH
R3BY ADV. SRI.SAJEEV KUMAR K.GOPAL
BY ADV. SRI.ALEXANDER THOMAS, SC,DENTAL COUNCIL
BY SRI.BINOY VASUDEVAN, SC, DCI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 19-07-2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
BP
WP(C).No. 28304 of 2007 (T)
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: TRUE COPY OF THE REGISTRATION CERTIFICATE DT 25/7/1990
EXT.P2: TRUE COPY OF THE LETTER NO.25139/B1/2001/H AND FW DT 3/12/2001.
EXT.P3: TRUE COPY OF THE LETTER NO.ACAD-A1/4838/2001 DT 19/9/2001
EXT.P4(a): TRUE COPY OF THE CERTIFICATE NO.A2-1/06 DT .16-1-2006
EXT.p4(b): TRUE COPY OF THE CERTIFICATE NO.A2-1488/05, DT.19/12/005.
EXT.P4(c): TRUE COPY OF THE CERTIFICATE NO.A2-1790/05, DT.21/2/2006.
EXT.P5: TRUE COPY OF THE LETTER DT 18/4/2005 BY THE PETITIONER
EXT.P6: TRUE COPY OF THE PROFORMA FOR FURNISHING DETAILS OF THE
PROPOSED PROJECT OF DENTAL COLLEGE DT.17/2/2006.
EXT.P7: TRUE COPY OF THE CERTIFICATE NO.ACAD/A1/NC AND C/2006(ix),
DT.27/2/2006
EXT.P8: TRUE COPY OF THE LETTER NO.DIR/195/2005/ACME, DT. 9/3/2006.
EXT.P9: TRUE COPY OF THE TRUE COPY OF THE JUDGMENT IN WPC
NO.7495/2006 DT 17/3/2006.
EXT.P10: TRUE COPY OF THE GO(Rt) NO.1099/2006/H AND FWD DT. 30/3/2006.
EXT.P11: TRUE COPY OF THE LETTER NO.52360/B1/05/H AND FWD, DT.29/3/2006.
EXT.P12: TRUE COPY OF THE REPRESENTATION DT. 18/4/2006.
EXT.P13: TRUE COPY OF THE JUDGEMENT IN WPC NO.14404/2006 DT 2/8/2006.
EXT.P14. TRUE COPY OF THE GO.Rt. O.3434/2006/H AND FWD DT 27/11/2006.
RESPONDENT'S EXHIBITS:
EXT.R3(a): TRUE COPY OF THE SCHEDULE MENTIONED IN REGULATION 4(2) OF
THE DCI REGULATIONS.
//TRUE COPY//
P.A. TO JUDGE
BP
S. SIRI JAGAN, J.
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W.P.(C) No.28304 of 2007
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Dated this the 19th day of July, 2012
JUDGMENT
The petitioner is a charitable Society established for the purpose of promotion of education by establishing Medical Colleges, Dental Colleges, Engineering Colleges etc. In 2001, the petitioner proposed to establish a Dental College at Cheruthazham Panchayat in Kannur District. The petitioner applied for NOC/ Essentiality Certificate from the Government. The Government issued Ext.P2 Essentiality Certificate dated 31.12.2001. After construction of buildings, the petitioner approached the Dental Council of India for recognition. But, by that time, the period of validity of the Essentiality Certificate had already expired. Therefore, the Dental Council of India directed the petitioner to obtain renewal of Essentiality Certificate. The petitioner filed Ext.P5 application dated 18.4.2005 for renewal of the Essentiality Certificate. Since it was not considered, the petitioner filed W.P.(C) No.7495/2006. By Ext.P9 judgment, this Court directed the Government to consider the application for W.P.(C)No.28304/07 2 renewal of Essentiality Certificate filed by the petitioner. By Ext.P11, the Government rejected the same. The petitioner again filed Ext.P12 detailed application for Essentiality Certificate dated 18.4.2006 and filed W.P.(C) No.14404/2006 challenging Ext.P11 and for a direction to consider Ext.P12. By Ext.P13 judgment, this Court directed consideration of the application. The petitioner filed Contempt Case (C) No.777 of 2007 complaining of non-compliance with the directions in Ext.P13 judgment. When the Contempt Case came up before this Court, the learned Government pleader handed over Ext.P14 order dated 27.11.2006 to the learned counsel for the petitioner. The petitioner has filed this writ petition seeking the following reliefs:
"i) to call for the records leading to Exhibit-
P14 and quash the same by the issuance of a writ of certiorari or any other writ, direction or order:
ii) to issue a writ of mandamus or any other writ, direction or order, directing the respondents to issue renewed essentiality Certificate applied for by the petitioner."
2. A counter affidavit has been filed by the 1st respondent justifying Ext.P14 order.
3. I have considered the rival contentions in detail. W.P.(C)No.28304/07 3
4. Ext.P14 order reads thus:
"The Honourable High Court in the Judgment dated 02/8/2006 in WP(C)No.14404/06 filed by North Malabar Development Society has directed the government to consider Ext.P12 application filed by the petitioner and pass appropriate orders thereon as expeditiously as possible at any rate within one month from the date of receipt of this judgment.
In the Exhibit P12 the petitioner has requested to issue renewed N.O.C./Essentiality Certificate at the earliest to enable them to submit the application to Dental Council of India, New Delhi. In the request they have stated that they are unknown about the government order superceding the earlier N.O.C. already issued.
The North Malabar Development Society along with another 41 applicants was issued a one line Essentiality Certificate in the year 2001. But this Essentiality Certificate was not accepted by the Dental Council of India. Of the 41 applicants to whom Essentiality Certificate were issued, only six applicants applied for revised Essentiality Certificate and they were issued revised Essentiality Certificates in the format prescribed by the Dental Council of India. North Malabar development Society did not apply for the revised Essentiality Certificate at that time.
As per the clause (1) of G.O. (Rt) No.2789/2003/H&FWD dated 22/9/2003 it was ordered that essentiality certificates already issued during the year 2001 and 2002 for establishing self financing Medical Colleges and Dental Colleges are valid only for two years from the date of issue. Thus North Malabar Development Society did not turn up before 12/2003. The North Malabar Development Society had to apply for revised Essentiality Certificate before 12/2003. Thus they lost their claim for acquiring Essentiality Certificate/ No Objection Certificate from Government.
Government received so many applications for Essentiality Certificates including W.P.(C)No.28304/07 4 that of North Malabar Development Society. Since, the validity of the Essentiality Certificate already issued to North Malabar Development society was over, their application was considered as afresh application along with many other applications. And therefore, the same was forwarded to Director of Medical Education for preliminary verification and report. Even though the Director of Medical Education submitted the reports including that of the case of North Malabar Development Society government was not in a position to issue new Essentiality Certificates. Therefore the government decided to reject all the fresh applications for Essentiality Certificate for starting new Dental College for the time being in public interest and it was also decided that all these cases would be considered on merit after detailed feasibility study by competent authority. In the light of the above facts the Exhibit P12 representation of the Chairman of North Malabar Development Society can not be considered.
In the circumstances, the request (Exhibit P12) of the Chairman of North Malabar Development Society for issuance of revised No Objection Certificate/Essentiality Certificate is rejected. The direction in the judgment dated 02/8/2006 in WP(C) No.14404/06 filed by North Malabar Development Society is complied with accordingly."
Admittedly, the petitioner filed an application for renewal of the Essentiality Certificate well after the period of validity of the original Essentiality Certificate expired. In fact, it was more than two years after the expiry of the period of the Essentiality Certificate that the petitioner applied for renewal. As such, I do not find anything wrong in the Government W.P.(C)No.28304/07 5 rejecting the application for renewal of the Essentiality Certificate treating the petitioner's application as a fresh application. It has been stated that for granting fresh application for Essentiality Certificates a detailed feasibility study by the competent authority has been ordered. I do not find anything wrong with the reasoning in Ext.P14 order. Therefore, I do not find any merit in this writ petition and accordingly, the same is dismissed.
S. SIRI JAGAN, JUDGE acd W.P.(C)No.28304/07 6 W.P.(C)No.28304/07 7