Karnataka High Court
S.V.E.Trusts vs The Government Of India & Ors on 28 August, 2019
Author: S.Sujatha
Bench: S.Sujatha
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF AUGUST 2019
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
WRIT PETITION NO.204492/2018 (EDN-REG/P)
Between:
S.V.E.Trust's
Sri Veerabhadreshwar Homoeopathic Hospital,
Near Sai Temple, Kallur Road,
Humnabad, Dist. Bidar,
Represented by its Chief Trustee,
Dr. Chandrashekhar
Basawaraj Patil,
... Petitioner
(By Sri R.S.Kadaganchi, Advocate)
And:
1. The Government of India,
Ministry of Health and Family Welfare
Department of Ayurveda,
Yoga and Naturopathy Unani,
Siddha and Homoeopathy,
Ayush Bhavan 'B' Block,
GPO Complex, INA New Delhi - 110023,
Represented by its Secretary.
2. Central Council of Homoeopathy
Represented by its Secretary,
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#61-65, Institutional Area,
Opp. 'D' Block, Janakapuri,
New Delhi - 110058.
3. Rajiv Gandhi University of
Health Sciences, 'T' Block,
Jayanagar, Bengaluru - 560 001,
Represented by its Registrar
4. Government of Karnataka,
Health and Family Welfare Department
(IMD and Co-Ordination),
Vikas Soudha, Bengaluru-1,
Represented by its Secretary.
... Respondents
(By Sri S.S.Aspalli, ASGI for R1 and R2;
Smt.Preeti Patil Melkundi, Advocate for R3 and;
Smt.Archana P.Tiwari, AGA for R4)
This writ petition is filed under Articles 226 and
227 of the Constitution of India, praying to issue a writ
in the nature of certiorari to quash the decision and
intimation of the respondent No.1 in file
No.F.No.R.12014/45/2016-EP(H) dated 12.09.2018
passed by the Ministry of Ayush, Government of India,
New Delhi produced at Annexure-Z and further direct
respondent Nos.1 and 2 to grant permission for the
petitioner trust to open the New Homoeopathy Medical
College as per its proposal/application dated
17.04.2016 and etc.
This petition coming on for preliminary hearing in
'B' Group this day, the Court made the following:-
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ORDER
The petitioner has challenged the decision and intimation of respondent No.1 dated 12.09.2018 passed by the Ministry of Ayush, Government of India, New Delhi inter alia seeking direction to respondent Nos.1 and 2 to grant permission to the petitioners as per its proposal/application dated 17.04.2016.
2. The petitioner is claiming to be a Trust registered with the main object of establishing various types of education institutions at Humnabad, Bidar District. It is the contention of the petitioner that the Trust as per the Central Council of Homoeopathy Regulations has established the new Homoeopathy Medical College to impart the Homoeopathy Education, the Government of Karnataka as well as the Rajiv Gandhi University has also recommended for the establishment of new Medical College after physical inspection by the Department of Ayush, Government of Karnataka.
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3. The petitioner has submitted an application before the Government of India (Ayush) for establishing New Homoeopathy Medical College. On consideration of the same, some queries were made which were said to have been properly replied by the petitioner's trust. However, the respondents have passed the order, disapproving the opening of the new college mainly on the ground that the institution has no required infrastructure for establishment of new proposed Homoeopathy Medical College i.e., the functional hospital with genuine IPD.
4. Learned counsel for the petitioner would submit that in terms of Clause 7(2) of the Central Council of Homoeopathic notification dated 08.03.2013 issued in exercise of power confirmed by Clauses (j) of Section 33 of Homoeopathic Central Council Act, 1973, requirement of beds, bed occupancy and Out-Patient Department attendance prescribed is in the ratio of students up to 60 students, 20 minimum number of 5 beds in In-patient Department for the intake capacity per year, similarly for 61-100 students, 25 is the minimum number of beds in In-Patient Department, whereas the petitioner's college has attached the hospital with the total bed occupancy of 37.43%. The Government of Karnataka has also issued Form No.4 dated 18.04.2016 which clearly establishes that the college is attached with 20 bedded hospital which has established in the year 2014-15. In view of these aspects, the report of the Inspection Team that the functionality of the IPD could not be authenticated is not reasonable.
5. Learned counsel in support of his contentions placed reliance on the judgment of the Hon'ble Delhi High Court in the case of R.N.Kapoor Memorial Homoeopathic Hospital and Medical College vs. Union of India and others. 6 6. Learned counsel for respondent Nos.1 and 2 would submit that it is mandatory to adhere to the regulations and the rules prescribed under the Establishment Regulation, 2011 ('Regulation, 2011' for short). The Inspection Team having found the deficiency in the college with respect to the mandatory requirement prescribed under Regulation, 2011 has formed and opined the same which has been considered by the respondent No.1 to disapprove the permission to the petitioner's institution for the seats for BHMS course relating to the academic sessions 2018-19. However, in terms of sub section 4 of Section 12A of the Homoeopathy Central Council Act, 1973 ('HCC Act' for short) the petitioner is at liberty to seek for fresh permission of the Central Government in subsequent year in accordance with law. Unless the shortcomings/deficiencies noticed by the Inspection Team is complied with, no approval to start New College can be granted.
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7. In support of his submissions learned counsel has referred to the decision of the Hon'ble Apex Court in the case of Advance Medical and Educational Society and another vs. Union of India and others reported in (2017) 9 Supreme Court Cases 656.
8. I have carefully considered the submissions of the learned counsel appearing for the parties and perused the material on record.
9. The order of respondent No.1 is based on the report of the Inspection Team wherein certain shortcomings/deficiencies are notified. Such deficiencies if exists, the order of respondent No.1 cannot be out-rightly rejected unless an opportunity of hearing to the petitioner has been provided with. In the case of R.N.Kapoor Memorial Homoeopathic Hospital and Medical College supra, the Hon'ble High Court of Delhi, in the context of shortcomings/deficiencies which violates the provision of HCC Act, 1973 under relevant regulations namely, 8 the proposed college does not having the genuinely functional IPD with requisite bed occupancy of 30% functional OPD, functional dispensing pharmacy in the attached homoeopathic hospital, the X-ray, USG, Clinical attached laboratory, Operation theatre, Kitchen of the homoeopathic hospital found to be non- functioning, has held as under :-
"27. Accordingly, this writ petition is disposed of in the following terms :
(i) The impugned order, dated 25th October, 2018, passed by Respondent No.1 is quashed and set aside.
(ii) The Central Government is directed to take a fresh decision on the petitioner's application, dated 27th April, 2017, for permission to start a new Homeopathy medical College, starting from the stage of issuance of LOI. Needless to say, the Central Government would, for the said purpose, take into account the recommendation and inspection report dated 8th September, 2017 of the CCH.
However, Respondent No.1 would also extend an opportunity of hearing to the petitioner, on which occasion the petitioner would be entitled to question the correctness of the said report dated 8th September, 2017. Any objection(s) raised by the petitioner in that regard would be 9 examined by Respondent No.1 on its/their own merits.
(iii) Respondent No.1 is directed to, limit its consideration to the deficiencies pointed out by the CCH in its inspection report dated 8th September, 2017.
(iv) Respondent No.1 is at liberty, however, should it so choose, to visit the petitioner's premises in order to verify the existence of the deficiencies pointed out by the CCH in its report/recommendation dated 8th September, 2017. It shall not, however, take into account any deficiencies other than those to which the inspection report dated 8th September, 2017 of the CCH refers.
(v) Following the above, Respondent No.1 is directed to pass a fresh order, on the petitioner's application dated 27th April, 2017.
(vi) The above exercise shall be conducted with reference to the academic sessions 2019- 2010."
10. In the case of Advanced Medical and Educational Society and another supra, the Hon'ble Supreme Court has observed that -
"7. The writ petition is disposed of as follows ;10
7.1 The respondents are directed to allow the students already admitted in the petitioner Institute on the basis of conditional LoP for the academic sessions 2016-17, to continue their studies.
7.2 MCI shall depute its Inspection Team within a period of three months to submit an assessment report regarding the overall performance and deficiency of the petitioner Institute and deficiencies, if any, and give time to the petitioner Institute to remove those deficiencies within the time specified in that regard.
7.3. We direct that the stated inspection by MCI will be to consider confirmation of LoP of petitioner Institute for the academic session 2016-2017.
7.4. The petitioner Institute shall then report its compliance and communicate the removal of deficiencies to MCI, whereafter it will be open to MCI to verify the position and then submit its recommendation to the Ministry. The Ministry shall then take a final decision within one month of the receipt of the recommendation from MCI by taking assistance of the Hearing Committee as constituted by the Constitution Bench of this Court in Amma Chandravati Educational and Chartibal Trust v. Union of India - 20178 SCC OnLine SC 763, or other directions given in the said decision and in accordance with law.
7.5. We direct that until a final decision is taken by the Ministry and communicated to the petitioners, the bank guarantee offered by the petitioners in the sum of Rs.two crores 11 shall not be encashed by MCI but the petitioners shall keep the same alive. If it has already been encashed in the meantime, the amount shall be refunded to the petitioner Institute, who shall furnish a fresh bank guarantee in the like amount to MCI within two weeks from the date of receipt of the amount.
7.6. In the event the final decision of the competent authority of the Central Government is adverse to the petitioners, it will be open to them to take recourse to such remedies as may be permissible in law.
7.7. We further direct the respondents to treat the renewal application submitted by the petitioner Institute for the academic session 2017-18 as having been made for the academic session 2018-19 and process the same in accordance with law with promptitude."
11. In the light of these aforesaid judgments, on examining the factual aspects of the case on hand, it is almost identical to the deficiencies/shortcomings considered in the case of R.N.Kapoor Memorial Homoeopathic Hospital and Medical College supra, by the Hon'ble High Court of Delhi.
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12. It is the categorical assertions made by the learned counsel for the petitioner that in view of the recommendations made by the Government of Karnataka and the Rajiv Gandhi University of Health Sciences for establishment of New college in view of the compliance of Regulation 2011 and the provisions of the HCC Act, 1973, any minor deficiencies would not come in the way of respondent No.1 to reject the approval without providing an opportunity to the petitioner to comply with the deficiencies pointed out by the Inspection Team. There is some substance in the said submissions.
13. In this background, this Court is of the considered opinion that ends of justice would be sub- served in directing respondent No.2 to depute its Inspection Team at the cost of the petitioner, within a period of two weeks from the date of receipt of certified copy of the order to submit assessment report regarding the compliance of the deficiencies pointed-out by the 13 earlier Inspection Team. Respondent No.2 shall provide an opportunity of one week to remove the deficiencies if reported to exist and thereafter to report to the respondent No.1. Respondent No.1 shall take a decision with the assistance of the hearing Committee and in accordance with the procedure prescribed under the HCC Act, 1973, within a period of two weeks from the date of receipt of submission of the report by the Inspection Team.
With the aforesaid observations and directions, writ petition stands disposed of.
Sd/-
JUDGE sn