Gujarat High Court
Parul University vs Union Of India & on 3 February, 2017
Author: R. Subhash Reddy
Bench: R.Subhash Reddy
C/LPA/1475/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1475 of 2016
In SPECIAL CIVIL APPLICATION NO. 17012 of 2016
With
CIVIL APPLICATION NO. 13121 of 2016
In
LETTERS PATENT APPEAL NO. 1475 of 2016
With
SPECIAL CIVIL APPLICATION NO. 17012 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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PARUL UNIVERSITY....Appellant(s)
Versus
UNION OF INDIA & 1....Respondent(s)
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Appearance:
MR DC DAVE, SENIOR COUNSEL WITH MR UDAYAN P VYAS,
ADVOCATE for the Appellant(s) No. 1
MR NIKUNT K RAVAL, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
==========================================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
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HC-NIC Page 1 of 46 Created On Sat Feb 04 01:40:39 IST 2017
C/LPA/1475/2016 CAV JUDGMENT
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date :03/02/2017
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. By way of this appeal which is filed under Clause 15 of the Letters Patent, the appellant - original petitioner has challenged the order dated 01.12.2016 passed by learned Single Judge, whereby the learned Single Judge has admitted the petition but refused to grant the interim relief. Thus, the present appeal is filed against the interim order passed by the learned Single Judge.
2. Learned counsel appearing for the parties jointly requested this Court that the appeal may be disposed of along with Special Civil Application No.17012 of 2016, as the arguments of both the matters are same. Accordingly, we passed an order on 18.01.2017 and directed the Registry to list the appeal along with Special Civil Application No.17012 of 2016. Learned counsel appearing for the parties have addressed on the issue involved in the petition and by way of this order, special civil application is also disposed of along with the letters patent appeal.
3. The factual matrix of the present case is as under: -
3.1. That the petitioner university is established Page 2 of 46 HC-NIC Page 2 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT and incorporated under Section 3 of the Gujarat Private Universities Act, 2009 (hereinafter referred to as 'GPU Act' for the sake of brevity). For the purpose of establishing the petitioner as university under GPU Act, an application dated 22.09.2014 containing a proposal and a project report as contemplated under the provisions of the GPU Act was moved by one Parul Arogya Seva Mandal, a public trust registered under the Bombay Public Trusts Act, 1950, as a sponsoring body. The concerned committee considered the proposal and report and thereafter the State of Gujarat has issued a letter of intent on 18.02.2015 under Section 9 of the GPU Act. Thereafter after following the procedure prescribed under the Act, the petitioner is established and incorporated under GPU Act by notification dated 07.04.2015.
3.2. Parul Arogya Seva Mandal, sponsoring body of petitioner established a college in the name of Jawaharlal Nehru Homoeopathic Medical College in the year 2002-2003. Since then the said college is engaged in imparting education in the discipline of Homoeopathy Science and Medicine at the level of graduation with an affiliation with Saurashtra University. Thereafter, upon establishment of the petitioner as university under GPU Act, all the colleges and the Page 3 of 46 HC-NIC Page 3 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT institutes run and managed by Parul Arogya Seva Mandal were disaffiliated under the GPU Act from the concerned universities and all the colleges and institutes became constituent colleges and institutes of the petitioner under the GPU Act.
3.3. On 28.04.2015, the petitioner submitted a scheme before the Central Government - respondent No.1 herein under Section 12A(2)(a) of the Homoeopathy Central Council Act, 1973 (hereinafter referred to as the 'Act of 1973' for the sake of brevity) seeking permission to start, in the set-up of the aforesaid constituent college, Post-Graduation Course i.e. MD (Homoeopathy), in the subjects of (i) Materia Medica, (ii) Repertory, (iii) Organon of Medicine and (iv) Practice of Medicine with six seats in each of the said four subjects with effect from the academic year 2015-2016. The Central Government upon receipt of the scheme seeking permission to open new courses at post-graduation level from the petitioner, by its communication dated 29.05.2015, forwarded the applications of the petitioner to the Central Council of Homoeopathy for its recommendations under the provisions of the Act of 1973. It was requested that the said Council to examine all the applications in the context of pre-requisites and infrastructures including staff and carry out Page 4 of 46 HC-NIC Page 4 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT inspection of the college and verify the existence of an own genuinely functional attached hospital in the concerned discipline and submit the recommendations along with the copy of visitation report and documents provided by the petitioner by 31.08.2015.
3.4. Pursuant to the request made by the Central Government - respondent No.1, the Central Council of Homoeopathy sent the team at the campus of the petitioner on 12.12.2015. After the inspection by the team of Medical Inspectors, the Central Council of Homoeopathy informed the Central Government by its communication dated 11.01.2016 that the Executive Committee in its meeting held on 17.12.2015 considered the report of the inspection of the college of the petitioner and noted that broadly the college and attached hospital meet the prescribed minimum requirements for issuance of letter of intent for admission of six students per aforesaid four speciality subjects in MD (Homoeopathy) courses.
3.5. It is the case of the petitioner that after taking into consideration the recommendations and visitation report of the Central Council of Homoeopathy, the respondent No.1 - Central Government was pleased to issue letter of intent dated 07.01.2016 in favour of the college of the Page 5 of 46 HC-NIC Page 5 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT petitioner to start new post-graduate courses of study in the aforesaid subjects with intake of six seats in each of the subject from the academic session 2016-17 subject to fulfillment of certain conditions stipulated in the letter of intent, failing which it was also informed that the letter of intent shall be deemed to be withdrawn.
3.6. On receipt of the letter of intent from the respondent No.1 - Central Government, petitioner submitted its compliance report on 18.03.2016 to the respondent No.1 as well as Central Council of Homoeopathy, whereby it was informed to the authorities that petitioner has complied with and satisfied all the conditions stipulated in the letter of intent. It was also requested to issue letter of permission to start the aforesaid courses.
3.7. When the petitioner has sent the compliance report to the respondent authorities, it was informed to the petitioner that once again a team of Medical Inspectors shall inspect the college on 11.04.2016 to verify the compliance received from the college. Once again a team of inspection carried out the inspection and verified the compliance and thereafter the said team of Medical Inspectors of Central Council of Page 6 of 46 HC-NIC Page 6 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT Homoeopathy informed the Central Government by its communication dated 11.07.2016 that the Executive Committee in its meeting held on 15.06.2016 considered the report of inspection of the college of the petitioner and recommended for issue of letter of permission as the institution has fulfilled the requirements of letter of intent.
3.8. It is the grievance of the petitioner that though two reports are sent by the Central Council of Homoeopathy wherein it has been stated that the petitioner has fulfilled all the requirements, inspite of that letter of permission was not issued by the Central Government. In the meantime, the Secretary of Central Council of Homoeopathy by its communication dated 02.05.2016 addressed to all Principals of Homoeopathy Colleges, informed and declared that the Executive Committee of the Council in its meeting held on 05.10.2015 has decided to keep 15th October as the cut-off date for admission of students every year in BHMS Degree Course and MD (Homoeopathy) courses effective from the academic session 2016-17 onwards throughout the country. At this stage, it is the case of the petitioner that to the utmost shock and surprise, Principal of the petitioner college received a communication in July 2016 Page 7 of 46 HC-NIC Page 7 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT addressed by Joint Secretary, Ministry of Ayush, Government of India, whereby it was informed to the petitioner that the team comprising of three members has been directed to make surprise inspection of the college of the petitioner to ascertain the actual status/functioning of the college and attached hospital and the said team is expected to visit the college in the month of July-August 2016. The college was therefore requested to provide full cooperation to the visiting team. Thereafter on 31.08.2016, inspection was carried out by the Central Government. Though it was declared that cut-off date for the purpose of admission of the students in the aforesaid courses is 15.10.2016, even after inspection on 31.08.2016, as per the grievance raised by the petitioner, the respondents have neither granted letter of permission as requested by the petitioner nor given any negative reply to the petitioner.
Therefore, the petitioner filed the captioned petition before this Court wherein the petitioner has prayed that respondents be directed to issue letter of permission under Section 12A of the Act of 1973 to start new Post Graduate Programme of study in the subjects of (i) Materia Medica, (ii) Repertory, (iii) Organon of Medicine and (iv) Practice of Medicine with intake of six seats in each of the programme from the academic year Page 8 of 46 HC-NIC Page 8 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT 2016-17 as referred to hereinabove.
3.9. During the pendency of the petition before the learned Single Judge, when the notice was issued by the learned Single Judge and when the notice was served to the respondents, immediately after service of notice, the Central Government issued the notice dated 07.10.2016, whereby the petitioner was called upon to attend the hearing on 14.10.2016 for furnishing satisfactory explanation as regards the deficiencies stated to have been noticed by the Central Government during the inspection on 31.08.2016 carried out in the set-up of the petitioner.
3.10. The petitioner thereafter without prejudice to the contentions raised in the petition, remained present before the hearing committee of the respondent No.1 and submitted the case before the committee. However, the respondent No.1, by an order dated 18.11.2016 passed under Section 12A of the Act of 1973, refused to grant permission for the Post Graduate Courses in the aforesaid four subjects. Petitioner has, therefore, submitted an amendment application and the said amendment was granted whereby the petitioner has also challenged the order dated 18.11.2016 passed by respondent No.1.
Page 9 of 46HC-NIC Page 9 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT 3.11. The learned Single Judge, by an order dated 01.12.2016, issued the rule which is made returnable on 25.03.2017. However, the learned Single Judge by reasoned order refused to grant interim relief. Petitioner has, therefore, filed the captioned appeal before this Court. As observed hereinabove, both the learned counsel appearing for the parties requested that as the arguments of letters patent appeal and special civil application are same and looking to the issue involved in the matter, papers of special civil application be called for and main petition be decided finally. Accordingly, we have heard the learned counsel appearing for the parties for final disposal of the petition.
4. Heard learned Senior Counsel Mr. D.C.Dave assisted by learned advocate Mr. Udyan P. Vyas for the petitioner and learned advocate Mr. Nikunt Raval for the respondents.
5. Learned Senior Counsel Mr. Dave mainly contended that Jawaharlal Nehru Homoeopathic Medical College is established in the academic year 2002-03 and the said college is engaged in imparting education in the discipline of Homoeopathy Science and Medicine at the level of graduation. The petitioner wanted to start Post Graduation course i.e. MD (Homoeopathy) in four Page 10 of 46 HC-NIC Page 10 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT different subjects with six seats in each of the four subjects w.e.f. the academic year 2015-16 and therefore an application seeking permission from the Central Government to start the Post Graduate Courses was submitted. The petitioner is having sufficient infrastructure as well as staff and all the other requirements as per the regulations framed under the Act of 1973. It is submitted that initially the team of Medical Inspectors sent by Central Council of Homoeopathy as per the Act of 1973 visited the premises of the petitioner and submitted its report to the Central Government. The Central Council of Homoeopathy made recommendations to the Central Government and thereafter letter of intent was issued on fulfillment of certain conditions. The petitioner fulfilled the said conditions and therefore once again the Central Council of Homoeopathy as per the provisions of the Act of 1973 sent the team of Medical Inspectors at the premises of the petitioner and once again the said team submitted its report. Thereafter, the Central Government was required to issue letter of permission to start the Post Graduate Courses in the study of MD (Homoeopathy). However, no reply was received from the respondent No.1 - Central Government.
5.1. It is further contended that though the Page 11 of 46 HC-NIC Page 11 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT petitioner was fulfilling all the requirements and though the Central Government is not empowered to inspect the premises of the petitioner as per the provisions of the Act of 1973, the Central Government sent its team for the purpose of inspection of the homoeopathy college run by the petitioner by way of surprise visit. The inspection report of the said committee was not at all supplied to the petitioner and thereafter the respondent No.1 - Central Government has not taken any decision and therefore the petition was filed before this Court.
5.2. Learned counsel Mr. Dave would submit that Central Government is not empowered to carry out the inspection but the expert body i.e. Central Council of Homoeopathy is established under the Act to carry out the inspection. It is submitted that relying upon the report submitted by the team sent by the Central Government, a show-cause notice came to be issued to the petitioner after filing of the present petition before this Court, wherein certain deficiencies were pointed out and petitioner was called upon to give reply and to remain present before the hearing committee. It is submitted that the action of the Central Government of sending its team though not authorized under the Act of 1973 itself is Page 12 of 46 HC-NIC Page 12 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT against the provisions of the Act and therefore the report submitted by said team is required to be ignored.
5.3. Learned counsel Mr. Dave would further contend that as per Section 12A(5) of the Act of 1973, if within a period of one year from the date of submission of the scheme to the Central Government under sub-section (2) of Section 12A, no order is communicated by the Central Government to the petitioner who has submitted the scheme, such scheme shall be deemed to have been approved by the Central Government in the form in which it was submitted and the permission of the Central Government required shall also be deemed to have been granted. It is submitted that in the present case, the scheme was submitted to the Central Government by communication dated 28.04.2015 and thereafter the Central Government forwarded the application of the petitioner to Central Council of Homoeopathy by its communication dated 29.05.2015. Thus, it is contended that when the respondent No.1 - Central Government has not taken the decision within a period of one year from the date of submission of the Scheme, the permission shall be deemed to have been approved by the Central Government. Hence, the refusal on the part of the Central Government by order dated 18.11.2016 is illegal, Page 13 of 46 HC-NIC Page 13 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT arbitrary and in violation of the provisions contained under the Act of 1973 and therefore learned counsel requested that the order dated 18.11.2016 be quashed and set aside.
5.4. Learned counsel Mr. Dave further contended that as per the provisions contained in Section 12A of the Act of 1973, Central Government is authorized to take decision for grant or refusal of the permission of the Scheme submitted by the concerned person or the institutions. However, there is no provision in the Act of 1973 with regard to appointment of hearing committee. It is submitted that in the present case, the petitioner was asked to submit its case before the hearing committee and thereafter on the basis of the report of the hearing committee the Deputy Secretary of respondent No.1 - Central Government has passed impugned order refusing to grant the permission as sought for by the petitioner. Thus, it is submitted that the person who has heard the matter has not passed the order and the person who has passed the impugned order has not given any opportunity of hearing to the petitioner and therefore giving of so-called opportunity of hearing is nothing but a mere formality. Therefore, on this ground also the impugned order be quashed and set aside.
Page 14 of 46HC-NIC Page 14 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT 5.5. In support of the aforesaid contentions, learned counsel Mr. Dave has placed reliance upon the following decisions:
(i) In the case of Harish Tandon v. Addl.
District Magistrate, Allahabad, U.P. & Others, reported in (1995) 1 SCC 537.
(ii) In the case of State of T.N. v. Arooran Sugars Ltd., reported in (1997) 1 SCC 326.
(iii) In the case of Automotive Tyre Manufacturers Association v. Designated Authority and Ors., reported in (2011) 2 SCC 258
(iv) Order dated 16.01.2017 rendered by the Hon'ble Supreme Court in the case of Tirupati Foundation Trust v. All India Council for Technical Education in Writ Petition (C) No.374/2016.
(v) Order dated 09.01.2009 passed by the Division Bench of High Court of Judicature of Bombay Bench at Aurangabad in the case of Hindustani Education Society & Another v. The Union of India & Others in Writ Petition No.3512 of 2008.
(vi) Order dated 14.09.2011 passed by the Division Bench of High Court of Judicature of Bombay Bench at Aurangabad in the case of Dhanraj Hiralalji Jain & Another v. The Union of India & Another in Writ Petition Page 15 of 46 HC-NIC Page 15 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT No.5194 of 2011.
6. On the other hand, learned advocate Mr.Nikunt Raval for the respondents submitted that the Central Council of Homoeopathy is a statutory body constituted by the Government of India, Ministry of AYUSH under the provisions of the Act of 1973 for maintaining the Central Register of Homoeopathy and matters connected thereof. The said Council has been vested with the powers under Section 20 of the Act of 1973 for prescribing minimum standards of education in Homoeopathy required for granting recognized medical qualification by University, Board or medical institution in India. It is submitted that Section 12A of the Act of 1973 empowers the Central Government to grant or refuse the permission to a scheme submitted by the person or institution for establishment of new medical institution, new courses of study, etc. It is submitted that when the application/scheme was received from the petitioner the Central Government forwarded the same to the Central Council of Homoeopathy and the team of Medical Inspectors sent by the Council visited the concerned college and submitted the report. It is submitted that respondent No.2 - Council has no authority to take a decision to grant the permission to increase the number of seats or Page 16 of 46 HC-NIC Page 16 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT otherwise. It is submitted that though letter of intent was issued by the Central Government, it was subject to fulfillment of certain conditions. However, thereafter the Central Government thought it fit to send its team for further inspection of the college run by the petitioner and the said team submitted the report, wherein various type of deficiencies were pointed out. Learned advocate Mr. Raval has referred to the said deficiencies reproduced in para 9 of the affidavit-in-reply filed by the Under Secretary to the Government of India, Ministry of AYUSH. After referring to the said deficiencies, it is contended that when the respondent No.1 Central Government is empowered to grant permission for establishment of any new college in the discipline of homoeopathy as also for commencement of new courses in an existing homoeopathy college as also for increasing intake of any existing homoeopathy college, looking to the deficiencies pointed out by the inspection team sent by the Central Government, it was thought it fit to issue notice to the petitioner. Accordingly, petitioner was called upon to remain present before the Hearing Committee by notice dated 07.10.2016 and after giving opportunity of hearing by the Hearing Committee, the impugned order has been passed by the Under Secretary of the respondent No.1. In the impugned order, the Page 17 of 46 HC-NIC Page 17 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT concerned officer has specifically considered the deficiencies and thereafter refused to grant permission to the petitioner and therefore no illegality is committed by the respondents and hence the present appeal as well as petition be dismissed.
6.1. Learned advocate Mr. Raval thereafter would contend that as per the Homoeopathy Central Council (Minimum Standards Requirement of Homoeopathic Colleges & Attached Hospitals) Regulations, 2013, the Central Government is empowered to carry out the inspection and therefore it is not correct on the part of the petitioner to contend that the only Central Council of Homoeopathy is empowered to inspect the premises of the concerned institution.
6.2. Learned advocate Mr. Raval would further contend that as per sub-section (7) of Section 12A of the Act of 1973, the Central Government while passing an order either approving or disapproving the scheme under sub-section (4), shall have to consider the relevant factors mentioned in the said sub-section. Thus, it is submitted that while disapproving the scheme by way of order dated 18.11.2016, the Central Government has considered the said factors and therefore petitioner is not entitled to claim the Page 18 of 46 HC-NIC Page 18 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT reliefs prayed for in the petition and therefore petition be dismissed.
6.3. Learned advocate Mr. Raval submitted that the Secretary or Under Secretary of the Central Government is not an expert in the field and therefore the Hearing Committee comprising of two experts was formed for the purpose of giving an opportunity of hearing to the petitioner. Before the Hearing Committee, the petitioner has represented its case and on the basis of the report and remarks given by the members of the Hearing Committee, the Under Secretary of the respondent No.1 - Central Government has passed the impugned order and therefore no illegality is committed nor the principle of natural justice has been violated as alleged by the petitioner. Hence, there is no merit in the petition and therefore the same be dismissed.
6.4. Learned advocate Mr. Raval, during the course of hearing, has submitted newspaper report wherein it has been reported that Central Bureau of Investigation has arrested the President of Central Council of Homoeopathy and a private person on charges of accepting bribe for the purpose of giving favourable inspection report of setting-up of homoeopathy colleges. It is submitted that a decision was taken by the Page 19 of 46 HC-NIC Page 19 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT Central Government to carry out inspection in each of the homoeopathy colleges and therefore it is not correct on the part of the petitioner to contend that the Central Government is not empowered to carry out the inspection. Thus, it is submitted that impugned order is passed in accordance with law and therefore this petition be dismissed.
6.5. Learned advocate Mr. Raval has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Ayurved Shastra Seva Mandal and Anr. v. Union of India & Ors. decided on 06.03.2013 in Special Leave Petition (Civil) Nos. 31892 of 2012 and allied matters.
7. We have heard the learned counsel appearing for the parties. We have also gone through the material produced on record and the decisions upon which reliance is placed by the learned counsel for the parties. It emerges from the record that on 28.04.2015, petitioner submitted a scheme before the Central Government - respondent No.1 under Section 12A(2)(a) of the Act of 1973 seeking permission to start Post Graduate Course i.e. MD (Homoeopathy) in four subjects with six seats in each of the four subjects w.e.f. academic year 2015-16. The Central Government Page 20 of 46 HC-NIC Page 20 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT forwarded the said scheme to Central Council of Homoeopathy and in turn Central Council of Homoeopathy sent a team of Medical Inspectors for the purpose of inspecting the premises of the petitioner. Two reports are submitted by the said council and as per the said reports the petitioner has fulfilled the requirements for grant of letter of permission. It is also reflected from the record that Central Government issued the letter of intent on 07.01.2016 in favour of the college of the petitioner to start new Post Graduate Courses in the subjects for which the permission was asked. The second report was submitted by the council on 11.07.2016, wherein the council has stated that in its meeting held on 15.07.2016 they considered the report of the inspection of the college and thereafter recommended for issuance of letter of permission as the institution has fulfilled the requirements of letter of intent. Inspite of receipt of two reports from the council, the respondent No.1 - Central Government had not taken the decision to reject the scheme within stipulated period of one year as envisaged in Section 12A(5) of the Act of 1973. However, after filing of the petition before this Court, a show cause notice was issued to the petitioner and ultimately the impugned order dated 18.11.2016 came to be passed by the respondent No.1 whereby Page 21 of 46 HC-NIC Page 21 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT the request of the petitioner is turned down.
8. In the aforesaid facts of the case, it is required to be noted that the respondent No.1 - Central Government has not at all stated on affidavit as to why two reports submitted by the team of Medical Inspectors sent by the Central Council of Homoeopathy are not required to be accepted. In absence of any explanation given by the respondent No.1 - Central Government for not accepting the reports submitted by the team of Medical Inspectors sent by the Central Council, we are of the view that Central Government is not empowered to send the team for inspection on its own. On the contrary, as per the affidavit filed on behalf of respondent No.2, Central Council of Homoeopathy is a statutory body constituted by the Government of India, Ministry of AYUSH under the provisions of the Act of 1973 for maintaining the Central Register of Homoeopathy and matters connected therewith. The Central Council of Homoeopathy has been vested with the powers under Section 20 of the Act of 1973 for prescribing minimum standards of education in Homeopathy, required for granting recognized qualification by University, Board or medical institution in India. Moreover, under the provisions of Section 33 of the Act of 1973, the Central Council of Homoeopathy has been authorized Page 22 of 46 HC-NIC Page 22 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT to make regulations with previous sanction of the Central Government to carry out the purposes of the Act of 1973 and accordingly the Central Government has framed certain regulations. Section 20 of the Act of 1973 provides as under:
"Minimum standard of education in Homoeopathy.
20. (1) The Central Council may prescribe the minimum standards of education in Homoeopathy required for granting recognized medical qualifications by Universities, Board or medical institutions in India.
(2) Copies of the draft regulations and of all subsequent amendments thereof shall be furnished by the Central Council to all State Governments and the Central Council shall, before submitting the regulations or any amendment thereof as the case may be, to the Central Government for sanction, take into consideration the comments of any State Government received within three months from the furnishing of the copies as aforesaid.
9. Section 33 of the Act of 1973 provides as under:
" Power to make regulations.
33(1) The Central Council may, with the previous sanction of the Central Government, make, by notification in the Official Gazette, regulations generally to carry out the purposes of this Act, and, Page 23 of 46 HC-NIC Page 23 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT without prejudice to the generality of this power, such regulations may provide for-
(a) the manner of election of the President and the Vice-President of the Central Council;
(b) the management of the property of the Central Council and the maintenance and audit of its accounts;
(c) the resignation of members of the Central Council;
(d) the powers and duties of the President and Vice-President;
(e) the summoning and holding of meetings of the Central Council and the committees thereof, the times and places where such meetings are to be held, and the conduct of business thereat and the number of members necessary to constitute a quorum;
(f) the functions of the committees constituted under section 9;
(g) the tenure of office, and the powers and duties of the Registrar and other officers and servants of the Central Council;
(h) the qualifications, appointment, powers and duties of, and procedure to be followed by, inspectors and visitors;
(i) the courses and period of study of practical training to be undertaken, the subjects of examination and the standards of proficiency therein to be obtained, in any University, Board or medical institution for grant of recognized medical qualification;
(j) the standards of staff, equipment, accommodation, training and other facilities for education in Homoeopathy;
(k) the conduct of professional examinations, qualifications of examiners and the conditions of admission to such examinations;
(l) the standards of professional conduct and etiquette and code of ethics to be Page 24 of 46 HC-NIC Page 24 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT observed by practitioners of Homoeopathy;
(m) the particulars to be stated, and the proof of qualifications to be given in applications for registration under this Act;
(n) the manner in which and the conditions subject to which an appeal under section 25 may be preferred;
(o) the fees to be paid on applications and appeals under this Act; and
(p) any matter for which under this Act provision may be made by regulations (2) The Central Government shall cause every regulation made under this Act to be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the or the successive sessions aforesaid, both Houses agree in making any modification in the regulation or both Houses agree that the regulation should not be made, the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any modification or annulment shall be without prejudice to the validity of anything previously done under that regulation."
10. The Division Bench of High Court of Judicature at Bombay, Bench at Aurangabad, vide judgment in Writ Petition No.3512 of 2008, observed and held in para 9, 12 and 13 as under:
9. An affidavit has been filed by the Central Government wherein, it is averred that the recommendations of the CCIM were not acceptable as the team sent by the Page 25 of 46 HC-NIC Page 25 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT Central Government on a later date did not find that the recommendations of the CCIM were correct. Significantly, the CCIM had found that the shortcomings in the proposal had been rectified by the petitioners. Despite this, the Central Government cancelled the Letter of Intent on the basis of the inspection carried out by its team on 21/12/2006. The affidavit further states that it was because the Central Government was suspicious of the accuracy of the inspection conducted by the CCIM, that it was found necessary to send its own team for conducting a survey.
This procedure adopted by the Central Government is contrary to the provisions of Section 13-A. Assuming the Central Government did not accept the recommendations of the CCIM it could have only disapproved the Scheme. . Apart from this, no predecisional hearing was afforded to the petitioners. Proviso to Sub-section 5 of Section 13-A stipulates that no scheme can be disapproved by the Central Government without giving a reasonable opportunity of being heard to the person/college concerned.
xxx xxx xxx
12. The Supreme Court in the case of State of Tamilnadu and another V/s Adhiyaman Educational & Research Institute and others reported in (1995) 4 Supreme Court Cases 104, while considering provisions of All India Council for Technical Education Act, 1987 has held that duty and responsibility cast on the Council implies that the norms and standards to be set should be such as would prevent a lopsided or an isolated development of technical education in the country. It has also been held that the Council is required to ensure that all institutions in the Page 26 of 46 HC-NIC Page 26 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT country are in a position to properly maintain the norms and standards. The CCIM which is constituted under The Indian Medicine Central Council Act, 1970 has to perform the same functions in so far as the establishment of Ayurved, Homeopathy, Unani medical colleges are concerned. The said body possesses the requisite expertise to find out as to whether the institution which is seeking permission, answers the requisite norms and standards set up by it. In the present case, the CCIM has found that the petitioners posses the necessary infrastructure as to norms and standards as required by it. The respondent Central Government could not have lightly brushed away the recommendations of the CCIM and that too without giving any valid reasons.
13. The Indian Medicine Central Council Act, 1970, has been enacted to establish certain standards which are required to be achieved by an institution for establishing a Medical College. The Council constituted under the Act i.e. the CCIM is therefore, the ultimate authority for setting norms for establishing a Medical College. It is the Council which must evaluate whether a new college meets the exacting standards stipulated. The Government has to act on its recommendations. The power that the Central Government can exercise under Section 13-A is to either approve or disapprove the recommendations. If it refuses to accept the recommendations, a hearing must be afforded, which as already noticed has not been done in the present case.
11. In another decision, the Division Bench of High Court of Judicature at Bombay, Bench at Page 27 of 46 HC-NIC Page 27 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT Aurangabad, vide order in Writ Petition No.5194 of 2011, observed and held in para 3, 4 5 and 6 as under:
"3. The Division Bench of this Court in Writ Petition No. 3512/2008, after considering the provisions of Section 13A of the Indian Medicine Central Council Act, 1970 (for short, "the IMCC Act"), which is paramateria with the provisions of Section 12A of the Homeopathy Central Council Act, 1973 (for short, "the HCC Act"), has taken a view that the Central Government under Section 13A of the IMCC Act, cannot send its own team to assess for itself whether the Institution/College complies with the requirements. It has been held that, that task is to be performed by the CCIM and the Central Government can only approve or disapprove such scheme. It is, in unequivocal terms, held that the question of sending their own team for assessing whether a particular Institution or College has the infrastructure as required under Section 13A of the Act, does not arise.
4. The perusal of the provisions of Section 13A of the IMCC Act and that of Section 12A of the HCC Act would reveal that the provisions in both these sections are almost paramateria. Under section 13A of the IMCC Act, the task which is vested with the Central Government is only to approve or disapprove the Scheme after considering the recommendations of the CCIM. In the present case, admittedly, the report of the Central Council is favourable to the petitioners. After that report was received, the limited role before the Central Government was either to give its approval or disapprove the Page 28 of 46 HC-NIC Page 28 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT Scheme. The anxiety on the part of the Central Government in sending its own team, atleast prima facie, is not permissible under the provisions of Section 12A of the HCC Act, in the light of judgement of this Court in Writ Petition No. 3512/2008.
5. Apart from that, the perusal of subsection (5) of Section 12A of the HCC Act would reveal that if within a period of one year from the date of submission of the Scheme to the Central Government no order is communicated to the Institution concerned, the Scheme shall be deemed to have been approved by the Central Government. Admittedly, the submission of the Scheme, in the present case, was on 29th April, 2009, the showcause notice was issued on 6th December, 2010 and the order impugned is of 15th June, 2011. As such, it can clearly be seen that not only the order impugned, but even the showcause notice is beyond the period of one year from the date of submission of the Scheme.
6. The learned Assistant Solicitor General has strongly urged to go into the aspect regarding the justification for delay caused in taking the decision. Prima facie, the provisions of Subsection (5) of Section 12A of the HCC Act are self operative. In case of non receipt of communication within a period of one year, the Scheme is deemed to be accepted. It is settled principle of law that when the Statute requires that a particular thing needs to be done in a particular manner, it has to be done in that manner alone or not at all. A reference to the decision of the Apex Court in the matter of "Dhananjay Reddy Vs. State of Karnataka, reported in 2001 (4) S.C.C. 9", would be relevant in Page 29 of 46 HC-NIC Page 29 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT that respect."
12. Thus, from the aforesaid provisions of the Act of 1973 and from the aforesaid decisions, we are of the view that when the Central Council of Homoeopathy is constituted by the Central Government for the purposes of the Act of 1973 and said Council is empowered to prescribe the required standards and the team of Medical Inspectors sent by the said Council has submitted the reports, in absence of any material to disbelieve such reports, the Central Government was not empowered to send its own team of inspectors. Thus, action of the respondent No.1 - Central Government is not in accordance with the provisions of the Act of 1973.
13. At this stage, it is also important to note that when the petitioner has sent the scheme on 07.04.2015 seeking permission to start Post Graduation Courses i.e. MD (Homoeopathy) in four subjects mentioned therein, the respondent No.1 - Central Government was bound to take decision within a period of one year as provided in Section 12A(5) of the Act of 1973.
14. Section 12A of the Act of 1973 provides as under:
"Permission for establishment of new medical institution, new course of study, etc. Page 30 of 46 HC-NIC Page 30 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT 12A.(1)Notwithstanding anything contained in this Act or any other law for the time being in force:-
(a)no person shall establish a Homoeopathic Medical College; or
(b)no Homoeopathic Medical College shall-
(i)open a new or higher course of study or training (including post-graduate course of study or training) which would enable students of each course or training to qualify himself for the award of any recognized medical qualification.
(ii)increase its admission capacity in any course of study or training (including the post-graduate course of study or training.), except with previous permission of the Central Government obtained in accordance with the provisions of this section.
Explanation 1. - For the purposes of this section, "person" includes any University or trust, but does not include the Central Government.
Explanation 2. - For the purposes of this section, "admission capacity" in relation to any course orf study or training (including post-graduate course of study or training) in a medical institution, means the maximum number of students as may be decided by the Central Council from time to time for being admitted to each course or training.
(2)(a)Every person or medical institution shall, for the purpose of obtaining permission under sub-section (1) submit to the Central Government a scheme in accordance with the provisions of the Page 31 of 46 HC-NIC Page 31 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT clause (b) and the Central Government shall refer the scheme to the Central Council for its recommendations.
(b)the scheme referred to in clause (a) shall be in such form and contain such particulars and be preferred in such manner and be accompanied with such fee as may be prescribed.
(3)On receipt of a scheme from the Central Government under sub-section (2), the Central Council may obtain such other particulars as may be considered necessary by it from the person or the medical institution concerned, and thereafter, it may:-
(a)if the scheme is defective and does not contain any necessary particulars, give reasonable opportunity to the person or the medical institution concerned for making a written representation and it shall be open to such a person or medical institution to rectify the defects, if any, specified by the Central Council.
(b)consider the scheme, having regard to the factors referred to in sub-section (7), and submit it to the Central Government together with its recommendations thereon within a period not exceeding six months from the date of receipt of the reference from the Central Government.
(4)The Central Government may, after
considering the scheme and the
recommendations of the Central Council under sub-section (3) and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person or medical institution concerned, and having regard to the factors referred Page 32 of 46 HC-NIC Page 32 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT to in sub-section (7), either approve (with such conditions, if any, as it may consider necessary) or disapprove the scheme & any such approval shall constitute as a permission under sub-
section (1):
Provided that no scheme shall be
disapproved by the Central Government
except after giving the person or medical
institution concerned a reasonable
opportunity of being heard.
Provided further that nothing in this sub- section shall prevent any person or medical institution whose scheme has nor 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 had been submitted for the first time under sub- section (2).
(5)Where, within a period of one year from the date of submission of the scheme to the Central Government under the sub- section (2), no order is communicated by the Central Government to the person or the medical institution submitting the scheme, such scheme shall be deemed to have been approved by the Central Government in the form in which it was submitted, and, accordingly, the permission of the Central Government required under the 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 medical institution concerned in submitting the scheme, in furnishing any particulars called for by the Central Council, or by the Central Government shall be excluded.
Page 33 of 46HC-NIC Page 33 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT (7)The Central Council, while making its recommendations under clause (b) 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 institution or the seeking to open a new or higher course of study or training, would be in a position to offer the minimum standards of medical education as prescribed by the Central Council under Section 20;
(b)whether the person seeking to establish a medical institution or the existing medical institution seeking to open 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, accomodation, training, hospital and other facilities to ensure proper functioning of the medical institution or conducting the new course of study or training or accomodating 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 institution or course of study or training or as a result of the increased admission capacity, have been provided or would be provided within the time-limit specified in the scheme;
(e)whether any arrangement has been made or programme drawn to impart proper Page 34 of 46 HC-NIC Page 34 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT training to students likely to attend such medical institution or the course of study or training by the persons having the recognised medical qualifications;
(f)the requirement of manpower in the field of practice of homoeopathic medicine in the medical institution; 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 medical institution concerned."
15. From the aforesaid provisions and more particularly from Section 12A(5) of the Act of 1973, it is clear that if no order is communicated by the Central Government to the medical institution which has submitted the scheme within a period of one year from the date of submission of the scheme, such scheme shall be deemed to have been approved by the Central Government. In the present case, as discussed hereinabove, the respondent No.1 - Central Government has not passed any order communicating to the petitioner with regard to grant or refusal of the scheme within a period of one year from the date of submission of scheme by the petitioner and therefore in the present case the deeming provisions contained in Section 12A(5) of the Act of 1973 would be attracted.
16. Learned advocate Mr. Raval appearing for the Page 35 of 46 HC-NIC Page 35 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT respondents has placed reliance upon Section 12A(7) of the Act of 1973 and submitted that while passing the order, Central Government either approving or disapproving the scheme shall have to consider the factors stated in sub- section (7). However, if we closely peruse the said provision, it is revealed that while approving or disapproving the scheme under sub- section (4), the Central Government shall have to consider the factors stated in sub-section (7) of Section 12A of the Act of 1973. However, as observed hereinabove, in the present case, respondent No.1 - Central Government has not passed any order either approving or disapproving the scheme under sub-section (4) within a period of one year and therefore the petitioner is right in contending that on completion of period of one year, deeming provisions contained in sub-section (4) of Section 12A of the Act of 1973 would be attracted and the scheme submitted by the petitioner shall be deemed to have been approved by the Central Government and the same shall be deemed to have been granted. Therefore, we are of the view that reliance placed by learned advocate Mr. Raval on section 12A(7) of the Act of 1973 is misconceived.
17. In the case of Arooran Sugars Ltd.
(supra), the Hon'ble Supreme Court has observed and held in para 11 as under:
"11. Sections 5 and 6 of Act 25 of 1978 Page 36 of 46 HC-NIC Page 36 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT contain deeming fiction in its different clauses while purporting to omit and remove the amendments which had been introduced by Act 7 of 1974 in the principal Act. The role of a provision in a statute creating legal fiction is by now well settled. When a statute creates legal fiction saying that something shall be deemed to have been done which in fact and truth has not been done, the court has to examine and ascertain as to for what purpose and between what persons such a statutory fiction is to be resorted to. Thereafter courts have to give full effect to such a statutory fiction and it has to be carried to its logical conclusion. In the well-known case of East End Dwellings Co. Ltd. V. Finsbury Borough Council, 1952 AC 109 Lord Asquith while dealing with the provisions of the Town and Country Planning Act, 1947 observed:
"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative, state of affairs had in fact existed, must inevitablyhave flowed from or accompanied it....The statute says that you must imagine a certain having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
That statement of law aforesaid in respect of a statutory fiction is being consistently followed by this court. Reference in this connection may be made to the cases of State of Bombay V. Page 37 of 46 HC-NIC Page 37 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT Pandurang Vinayak Chaphalkar, Chief Inspector of Mines V. Karam Chand Thapar, J.K. Cotton Spinning and Weaving Mills Ltd. V. Union of India, M. Venugopal V. Divisional Manager, Life Insurance Corporation of India, and Harish Tandon V. Additional District Magistrate. Allahabad"
18. In the case of Harish Tandon (supra), the Hon'ble Supreme Court has observed and held in para 6, 7, 11, 12, 13 and 17 as under:
"6. Section 25 enjoins that no tenant shall sub-let the building under his tenancy and it also prescribes as to what shall amount to a deemed sub-letting:
"25. Prohibition of sub-letting (1) No tenant shall sub-let the whole of the building under his tenancy. (2) The tenant may with the permission in writing of the landlord and of the District Magistrate, sub-
let a part of the building.
Explanation.- For the purposes of this section -
(i) where the tenant ceases, within the meaning of clause (b) of sub-
section (1) of sub-section (2) of Section 12, to occupy the building or any part thereof, he shall be deemed to have sub-let that building or part;
(ii) lodging a person in a hotel or a lodging house shall not amount to subletting. "
7. In view of explanation (i) of Section 25, where the tenant is deemed to have Page 38 of 46 HC-NIC Page 38 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT ceased to occupy the building under sub- section (2) of Section 12 aforesaid, he shall be deemed to have sub-let that building or part thereof Once a tenant carrying on business in a non-residential building, admits a person who is not a member of his family as a partner, the said tenant shall be deemed to have ceased to occupy the building and by operation of the explanation (i) of Section 25, it shall be deemed that such tenant has sub- let that building or part thereof, which shall be a ground for eviction of such tenant because of section 20(2)(e) which specifically says that a suit for eviction of a tenant from building after determination of his tenancy may be instituted on the ground "that the tenant has sub-let, in contravention of the provisions of Section 25, or as the case may be, of the old Act the whole or any part of the building".
xxx xxx xxx
11. It is true that the primary object of sub-section (2) of Section 12 appears to be to check and restrict sub- letting of premises or part thereof by the original tenant by inducting any person who is not a member of the family within the meaning of the Act as a partner in the business. But the special feature of sub-section (2) of Section 12 is that there is a deeming clause in the said subsection. If the said sub-section ha provided that where a tenant carrying on business in the building admits a person who is not a member of his family as a partner, it shall amount to sub-letting of the premises, then there was scope for investigation and examination as to Page 39 of 46 HC-NIC Page 39 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT whether, in the process of inducting such person as a partner in the business in fact there has been a sub-letting of the premises. But sub- section (2) says in clear and unambiguous words that once a person who is not a member of the family is admitted as a partner in the business by the tenant, 'the tenant shall be deemed to have ceased to occupy the building'.
12. On behalf of the respondents, it was urged that the expression 'deemed' occurring in sub-sections (2) and (4) of Section 12 as well as in the explanation
(i) of Section 25 should not be read as conclusive. It should be read as 'deemed until the contrary is proved. Reference was made to the cases Gray v. Kerslake, (1957) Vol.II Dominion Law Reports (2nd Series) page 225 (at p. 239); Robert Batcheller & Sons. Limited v. Batcheller, (1945) 1 Chancery Division 169; and Spencer v. Kennedy (1926) 1 Chancery Division 125, where it was observed that if the word 'deemed' is held to be conclusive, then it shall amount to imputing to the Legislature the intention of requiring the Court to hold as a fact something directly contrary to the true fact. It was also said that such deemed clauses should be read to mean as required by the statute, until the contrary is proved.
13. The role of a provision in a statute creating legal fiction is by now well settled. When a Statute creates a legal fiction saying that something shall be deemed to have been done which in fact and truth has not been done, the Court has to examine and 298 ascertain as to for what purpose and between what persons such a Page 40 of 46 HC-NIC Page 40 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT statutory fiction is to be resorted to. Thereafter full effect has to be given to such statutory fiction and it has to be carried to its logical conclusion. In the well known case of East End Dwellings Co. Ltd. v. Finbsbury Borough Council, (1952) A.C. 109(B), Lord Asquith while dealing with the provisions of the Town and County Planning Act, 1947, observed:
"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative, state of affairs had in fact existed, must inevitably have flowed from or accompanied it..... The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
That statement of law in respect of a statutory fiction is being consistently followed by this Court. Reference in this connection may be made to the case of State Bombay v. Pandurang Vinayak and others. From the facts of that case it shall appear that Bombay Building (Control on Erection) Ordinance, 1948 which was applicable to certain areas mentioned in the schedule to it, was extended by a notification to all the areas in the province in respect of buildings intended to be used for the purposes of cinemas. The Ordinance was repealed and replaced by an Act which again extended to areas mentioned in the schedule with power under sub-section (3) of Section 1 to extend its operation to other areas. This Court held that the deemed clause in Section 15 of Page 41 of 46 HC-NIC Page 41 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT the Act read with Section 25 of the Bombay General Clauses Act has to be given full effect and the expression 'enactment' in the Act will cover the word 'Ordinance' occurring in the notification which had been issued. In that connection it was said :
"The corollary thus of declaring the provisions of S.25, Bombay General Clauses Act, applicable to the repeal of the ordinance and of deeming that ordinance an enactment is that wherever the word "ordinance" occurs in the notification, that word has to be read as an enactment."
xxx xxx xxx
17. When sub-section (2) of Section 12 provides that whenever a tenant carrying on business in a building admits a person, who is not a member of his family, as a partner, the tenant shall be deemed to have ceased to occupy the building, full effect has to be given to the mandate of the Legislature. There is no escape from the conclusion that such tenant has ceased to occupy the building. No discretion is left to the Court to enquire or investigate as to what was the object of such tenant while inducting a person as partner who was not the member of his family. It can be said that the aforesaid statutory provision requires the Court to come to the conclusion that by the contravention made by the tenant, such tenant has ceased to occupy the building. The framers of the Act have not stopped only at the stage of Section 12(2) but have further provided in Section 25, Explanation (i) another legal fiction Page 42 of 46 HC-NIC Page 42 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT saying that where the tenant ceases to occupy the building within the meaning of 11 sub-section (2) of Section 12 'he shall be deemed to have sub-let that building or part'. In view of the three deeming clauses introduced in sub- section (2) of Section 12, sub-section (4) of Section 12 and Explanation (i) to Section 25, no scope has been left for the Courts to examine and consider the facts and circumstances of any particular case, as to what was the object of admitting a person who is not the member of the family, as partner and as to whether, in fact, the premises or part thereof have been sub-let to such person."
19. Keeping in mind the aforesaid decisions rendered by the Hon'ble Supreme Court and keeping in mind the object of making deeming provisions in Section 12A(5) of the Act of 1973, we are of the view that on completion of period of one year from the date of submission of scheme by the petitioner to the Central Government, in absence of any order either granting or refusing the scheme within such period by the Central Government, the scheme sent by the petitioner is deemed to have been approved and granted by the Central Government and therefore subsequent order passed on 18.11.2016 by respondent No.1 is required to be set aside.
20. It is not in dispute that after the period of one year from the date of submission of the scheme by the petitioner to the Central Page 43 of 46 HC-NIC Page 43 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT Government is over and after filing of the petition before this Court, the respondent No.1 issued a show-cause notice to the petitioner and asked to appear before the Hearing Committee with regard to the deficiencies pointed out in the said show-cause notice. It is also not in dispute that the Hearing Committee has heard the matter and thereafter the Deputy Secretary of the respondent No.1 Central Government has passed the impugned order. It is also not in dispute that the Deputy Secretary who has passed the order has not personally given an opportunity of hearing to the petitioner. In view of the aforesaid undisputed fact, if the decision rendered by the Hon'ble Supreme Court in the case of Automotive Tyre Manufactures Association (supra) is examined, the Hon'ble Supreme Court has held in para 83 as under:
"83. The procedure prescribed in the 1995 Rules imposes a duty on the DA to afford to all the parties, who have filed objections and adduced evidence, a personal hearing before taking a final decision in the matter. Even written arguments are no substitute for an oral hearing. A personal hearing enables the authority concerned to watch the demeanour of the witnesses etc. and also clear up his doubts during the course of the arguments. Moreover, it was also observed in Gullapalli (supra), if one person hears and other decides, then personal hearing becomes an empty formality."
21. Thus, in the present case the Hearing Page 44 of 46 HC-NIC Page 44 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT Committee heard the matter and Deputy Secretary decided the matter and therefore personal hearing becomes an empty formality.
22. At this stage, it is also to be observed that the copy of the report submitted by the team of Medical Inspectors sent by the Central Government itself was not given to the petitioner and even the copy of the recommendations given by the Hearing Committee was also not supplied to the petitioner. However, it is true that in the show cause notice issued on 07.10.2016 the deficiencies were pointed out but the fact remains that the report of the inspection team was not provided to the petitioner. Therefore also we are of the view that respondent No.1 has not strictly followed the principles of natural justice.
23. However, at this stage, we make it clear that this order shall not preclude the Central Council of Homoeopathy to carry out the inspection at the premises of the petitioner and during the course of inspection if it is found that there are deficiencies at the institution of the petitioner, it is open for the Council to take appropriate action in accordance with law.
24. In view of the aforesaid discussions, we are of the opinion that the appeal as well as Special Civil Application are required to be allowed and the impugned order passed by the respondent No.1 Page 45 of 46 HC-NIC Page 45 of 46 Created On Sat Feb 04 01:40:39 IST 2017 C/LPA/1475/2016 CAV JUDGMENT on 18.11.2016 is required to be set aside. Accordingly, the appeal as well as petition are allowed and the impugned order dated 18.11.2016 is set aside. Rule is made absolute. It is reported that this year the respondents have extended the date of giving admission in the Homoeopathy Courses up to 31.12.2016. Present petition is pending before this Court since September 2016. In view of the peculiar facts of the present case and as discussed hereinabove, we direct the respondents to issue Letter of Permission forthwith under Section 12A of the Act of 1973 to Jawaharlal Nehru Homoeopathic Medical College being the constituent college of the petitioner to start the Post Graduate Programme of study in the subjects of (i) Materia Medica
(ii) Repertory, (iii) Organon of Medicine and
(iv) Practice of Medicine with intake of six seats in each of the programme from the academic year 2016-17 looking to the urgency in the matter. Civil application also stands disposed of.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Jani Page 46 of 46 HC-NIC Page 46 of 46 Created On Sat Feb 04 01:40:39 IST 2017