Delhi High Court
Al Karim Educational Trust vs Medical Council Of India & Anr. on 21 July, 2011
Author: Dipak Misra,Chief Justice
* HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 21st July, 2011
+ LPA 593/2011
AL KARIM EDUCATIONAL TRUST ..... Appellant
Through: Mr.Sudhir Nandrajog, Sr. Advocate with
Mr.Mohit Kumar Shah, Adv.
versus
MEDICAL COUNCIL OF INDIA & ANR. ..... Respondents
Through: Mr.Amit Kumar and Mr.Ashish
Kumar, Advocates for MCI
Mr.Gopal singh and Mr.Pranab
Prakash, Advocates for R-2.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether reporters of the local papers be allowed to see the YES
judgment?
2. To be referred to the Reporter or not? YES
3 Whether the judgment should be reported in the Digest? YES
DIPAK MISRA, CJ
Being dissatisfied with the order dated 26.4.2011 passed by the
learned Single Judge in WP(C) No. 1986/2011, the present intra-court
appeal has been preferred under Clause X of the Letters Patent.
2. The facts lie in a narrow compass. The appellant, Al-Karim
Educational Trust, set up a medical college in the name and style of
Katihar Medical College, Katihar in the State of Bihar with an intake
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capacity of 60 students for the MBBS course. The Central Government,
by communication dated 29.9.2006, along with a notification dated
2.3.2006 of the Government of State of Bihar, forwarded the application
of the appellant, the Medical Council of India (MCI), essentially
certifying the Medical College of the trust for increase of seats in MBBS
course from 60 to 100. The MCI inspected the teaching and training
facilities available at the Medical College and eventually, on
13/14.06.2007, took a decision to return the application recommending
disapproval to the Central Government for increase of seats from 60 to
100. Thereafter, another application for increase of seats was filed in the
year 2008 but the same also met with similar fate. As pleaded, the MCI
was superseded vide Indian Medical Council (Amendment) Ordinance,
2010 by the Board of Governors and at that juncture, the respondent filed
an application on 29.9.2010 with the Board of Governors for increase of
seats from 60 to 150, but the said application was not accompanied with
the Essentiality Certificate as required under the establishment of Medical
College Regulations, 1999 (for short „the 1999 Regulations‟). The Board
of Governors functioning for the MCI asked the trust to submit the
Essentiality Certificate. The Trust instead of submitting the Essentiality
Certificate moved the Commission of Minority Educational Institution
(„the Commission‟) and the Commission in case No.1383/2010 issued
LPA 593/2011 Page 2 of 26
show cause to the State Government. As the State Government did not
file show cause/reply, the Commission proceeded to pass an order
declaring that there was a deemed grant of Essentiality Certificate by the
Government of Bihar to the college for increasing the intake capacity of
MBBS course from 60 to 150. For appreciation of the controversy from
the opposite spectrum, the order passed by the Commission is produced
below in entirety:
"WHEREAS on 20.11.2008, the petitioner college
had applied to the competent authority of the
Government of Bihar for grant of Essentiality
Certificate for increasing intake capacity of MBBS
course from 60 to 150.
AND WHEREAS within a period of ninety days
from the receipt of application under sub section
(1) of section 10 of the National Commission for
Minority Educational Act for grant of Essentiality
Certificate, the Competent Authority has neither
granted nor granted nor rejected the said
application;
AND WHEREAS the petitioner college has
applied to the commission for a declaration that the
Competent Authority has deemed to have granted
the Essentiality Certificate in terms of Sub Section
(3) of Section 10 of the NCMEI Act.
AND WHEREAS the Competent Authority failed
to show cause against the declaration relating to
grant of Essentiality Certificate in terms of Sub
Section (3) of Section 10 of the NCMEI Act.
The Commission, therefore, declares that the
Competent Authority of the Government of Bihar
has deemed to have granted the Essentiality
Certificate to the petitioner college for increasing
LPA 593/2011 Page 3 of 26
intake capacity of MBBS course from 60 to 150."
3. Being grieved by the aforesaid order, the MCI invoked the
extraordinary jurisdiction of this Court under Articles 226 and 227 of the
Constitution of India for issue of a writ of certiorari for quashment of the
same. The learned Single Judge allowed the writ petition holding, inter
alia, that the Commission has no jurisdiction to deal with an issue of the
present nature.
4. We have heard Mr.Sudhir Nandrajog, learned senior counsel along
with Mr.Mohit Kumar Shah, learned counsel for the appellant, and
Mr.Amit Kumar along with Mr.Ashish Kumar, learned counsel for the
Medical Council of India.
5. The singular question that emanates for consideration is whether
the Commission constituted under the National Commission for Minority
Educational Institution Act, 2004 (for brevity „the 2004 Act‟) could have
declared that the State of Bihar has granted the Essentiality Certificate as
required under the 1999 Regulations framed by the MCI. Mr.Nandrajog,
learned senior counsel for the appellant, would submit that if Section
2(ca) of the 2004 Act, which defines the competent authority, is
conjointly read with the provisions enshrined under Sections 10, 11, 12,
12A and 12B of the 2004 Act, there can be no scintilla of doubt that the
LPA 593/2011 Page 4 of 26
Commission has jurisdiction to pass the order it has passed.
6. Per contra, Mr.Amit Kumar, learned counsel for the Medical
Council of India, would contend that the order passed by the learned
Single Judge cannot be found fault with as the Regulations have been
framed under the Medical Council Act, 1956 and the said enactment has
its own area of operation and the Commission cannot encroach upon the
spheres governed under the said Act and the Regulations framed
thereunder.
7. Be it noted that the MCI Act, 1956 (for brevity „the 1956 Act‟) was
legislated for re-constitution of the Medical Council of India and the
maintenance of a Medical Register for India and for matters connected
thereto. To have a complete picture, Section 10 of the 1956 Act is
reproduced herein below:
"10. THE EXECUTIVE COMMITTEE--(1)
The Executive Committee, hereinafter referred
to as the Committee, shall consist of the
President and Vice-President, who shall be
members ex-officio, and not less than seven and
not more than ten other members who shall be
elected by the Council from amongst its
members.
2. The President and Vice-President shall be the
President and Vice-President respectively of the
Committee.
3. In addition to the powers and duties
conferred and imposed upon it by this Act, the
LPA 593/2011 Page 5 of 26
Committee shall exercise and discharge such
powers and duties as the Council may confer or
impose upon it by any regulations which may
be made in this behalf."
8. Section 10A provides for permission for establishment of a new
Medical College, new course of study and also increase of seats. The
same is reproduced herein below:
"10A. PERMISSION FOR
ESTABLISHMENT OF NEW MEDICAL
COLLEGE, NEW COURSE OF STUDY.--
(1) Notwithstanding anything contained in this
Act or any other law for the time being in
force,--
(a) no person shall establish a medical college;
or
(b) no medical college shall--
(i) open a new or higher course of study
or training (including a post-graduate
course of study or training) which
would enable a student of such course or
training to qualify himself for the award
of any recognised medical qualification;
or
(ii) increase its admission capacity in any
course of study or training (including a
post- graduate course of study or
training),
except with the previous permission of
the Central Government obtained in
accordance with the provisions of this
section.
LPA 593/2011 Page 6 of 26
Explanation 1.-- For the purposes of this
section, "person" includes any University or a
trust but does not include the Central
Government.
Explanation 2.-- For the purposes of this
section, "admission capacity", in relation to any
course of study or training (including 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) Every person or medical college shall,
for the purpose of obtaining permission under
sub-section (1), submit to the Central
Government a scheme in accordance with the
provisions of clause (b) and the Central
Government shall refer the scheme to the
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 by the Council under
sub-section (2), the Council may obtain such
other 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;
LPA 593/2011 Page 7 of 26
(b) consider the scheme, having regard to the
factors referred to in sub-section (7), and submit
the scheme together with its recommendations
thereon to the Central Government.
(4) The Central Government may, after
considering the scheme and the
recommendations of the Council under sub-
section (3) and after obtaining, where necessary,
such other particulars as may be considered
necessary by it from the person or college
concerned, and having regard to the factors
referred to in sub-section (7), either approve
(with such conditions, if any, as it may consider
necessary) or disapprove 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 or college concerned a reasonable
opportunity of being heard:
Provided further that nothing in this sub section
shall prevent any person or medical college
whose scheme has not been approved by the
Central Government to submit a fresh scheme
and the provisions of this section shall apply to
such scheme, as if such scheme has been
submitted for the first time under sub-section
(2).
(5) Where, within a period of one year from
the date of submission of the scheme to the
Central Government under sub-section (2), no
order passed by the Central Government has
been communicated to the person or college
submitting the scheme, such scheme shall be
deemed to have been approved by the Central
Government in the form in which it had been
submitted, and, accordingly, the permission of
the Central Government required under sub-
LPA 593/2011 Page 8 of 26
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),
shall have due regard to the following factors,
namely:--
(a) whether the proposed medical college or the
existing medical college 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 Council
under section 19A or, as the case may be, under
section 20 in the case of postgraduate medical
education;
(b) whether the person seeking to establish a
medical college or the existing medical college
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, accommodation, training and
other facilities to ensure proper functioning of
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;
LPA 593/2011 Page 9 of 26
(d) whether adequate hospital facilities, having
regard to the number or students likely to attend
such medical college 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 training to
students likely to attend such medical college or
course of study or training by persons having
the recognised medical qualifications;
(f) the requirement of manpower in the field 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."
9. Section 33 confers power on the MCI to frame Regulations. Sub-
section (fa) of Section 33 reads as follows:
"33. POWER TO MAKE REGULATIONS
The Council may, with the previous sanction of
the Central Government, make regulations
generally to carry out the purposes of this Act,
and, without prejudice to the generality of this
power, such regulations may provide for--
..........
..........
..........
(fa) the form of the scheme, the particulars to be
given in such scheme, the manner in which the
scheme is to be preferred and the fee payable
with the scheme under clause (b) of sub-section
(2) of section 10A;"
10. Regulation 3 of the 1999 Regulations deals with the establishment
or increase in seats in a recognized Medical College. It provides that no
person shall establish or increase seats in a Medical College except after
obtaining prior permission from the Central Government by submitting
the Scheme annexed to the Regulations. Under the scheme, the eligibility
criteria and other criteria are provided. In qualifying criteria under
Clause 3, it has been stipulated as follows:
"3. That Essentiality Certificate in Form 2
regarding No objection of the State
Government/Union Territory Administration for
the establishment of the proposed medical
college at the proposed site and availability of
adequate clinical material as per the council
regulations, have been obtained by the person
from the concerned State Government/Union
Territory Administration."
11. The purpose of the 1956 Act and the Regulations is to regulate
medical education and ensure quality education. In this context, we may
profitably refer to certain citations in the field. In Government of A.P. &
Anr. v. Medwin Educational Society & Ors., (2004) 1 SCC 86, the
question that was posed for adjudication was as follows:
"(1) What is the proper, assigned and available role
of the State Government in the matter of grant of
essentiality certificate for establishment of medical or
dental college, especially in the context of the
operative constitutional, legislative and statutory
provisions?"
Their Lordships scanned the statutory provisions and the
procedures pertaining to medical education and the relevant provisions of
the 1956 Act. While dealing with the 1999 Regulations, their Lordships
stated that there is necessity for grant of essentiality certificate by the
State. In paragraphs 23 and 24 of the said decision, it has been stated
thus:
"23. It is not in dispute that one of the qualifying
criteria to render an association eligible for permission
to set up a new medical and dental college is to the
following effect:
"Essentiality certificate regarding the
desirability and feasibility of having the
proposed medical college/dental college at the
proposed location has to be obtained by the
applicant from the respective State
Governments or the Union Territory
Administration and that the adequate clinical
material is available as per Medical Council of
India's requirements"
24. The statutory requirements as laid down in the Act
and the Regulations are, therefore, required to be
complied with before application filed by the person
or association for setting up a medical college is taken
up for consideration."
With regard to the importance of the certificate, it has been
observed that the said certificate in the prescribed form emanates from
the scheme framed under the parliamentary legislation and the said form
is a part of the Regulations which are required to be considered in the
light of the Parliamentary Act. In paragraph 30, their Lordships
proceeded to state as follows:
"30. In view of the aforementioned statutory
provisions, there cannot be any doubt or dispute that
an essentiality certificate to set up a medical college at
the proposed site and adequate clinical material by a
person is required to be obtained in Form 2 appended
to the said Regulations, which lays down the
following conditions:
"(1) - (7) * * *
(8) How the establishment of the college would
resolve the problem of deficiencies of qualified
medical personnel in the State and improve the
availability of such medical manpower in the
State.
(9) * * *
(10) Full justification for opening of the
proposed college."
12. It is worth noting, in the said decision, a reference was made to the
decision in Thirumuruga Kirupananda Variyar Thavathiru Sundara
Swamigal Medical Educational & Charitable Trust v. State of T.N.,
(1996) 3 SCC 15, wherein it has been laid down as follows:
"For the purpose of granting the essentiality certificate
as required under the qualifying criteria prescribed
under the scheme, the State Government is only
required to consider the desirability and feasibility of
having the proposed medical college at the proposed
location. The essentiality certificate cannot be
withheld by the State Government on any policy
consideration because the policy in the matter of
establishment of a new medical college now rests with
the Central Government alone."
In paragraph 40, it has been held thus:
40. This aspect of the matter has been considered in
State of Maharashtra v. Indian Medical Association
and Ors. (2002) 1 SCC 589 wherein a two-Judge
Bench of this Court of which one of us Khare, C.J.
(as he then was) was a member observed:
"A perusal of para 3 of the Regulation shows
that it is mandatory on the part of an institution
or a management desirous of establishing a
medical college to obtain Essentiality
Certificate from the respective State
Government or the Union Territory
Administration, as the case may be. The
requirement of Essentiality Certificate provided
under para 3 of the Regulation concerns with
among other requirements the desirability of
having the proposed medical college at the
proposed location. The desirability of having
the medical college at the proposed location
under para 3 of the Regulation is required to be
decided by the State Government. Excepting the
desirability of location of the proposed medical
college and certificate that adequate clinical
material is available as per the Medical Council
of India at the proposed medical college, which
are to be decided by the State Government all
other aspects regarding establishment of a new
medical college and imparting of the education
therein are covered by the Central Act and
Regulation framed thereunder. In other words,
in the matter of establishment of a medical
college and medical education, the field that is
open where a State Government has any role to
play is only in regard to decide the desirability
of the location of the proposed medical college
and grant of certificate that adequate clinical
material is available as per the Medical Council
at the proposed medical college."
13. In State of Maharashtra v. Indian Medical Association & Ors.,
(2002) 1 SCC 589, their Lordships referred to the Regulation that deals
with obtaining of the essentiality certificate, the qualifying criteria under
the scheme and the Regulation that deals with the facet of obtaining of
essentiality certificate by the applicant from the respective State
Government or the Union Territory Administration regard being had to
the desirability and feasibility of having the proposed medical college at
the proposed location and availability of adequate clinical material as per
the Medical Council of India requirements. The Apex Court, in that
context, opined that the State Government is the only authority under the
Regulations which is concerned to decide the location of a new proposed
medical college within the State. Their Lordships further proceeded to
lay down the object behind the necessity to obtain the essentiality
certificate from the State Government and eventually expressed thus:
"Another object behind the necessity to obtain the
Essentiality Certificate from the State Government
under para 3 of the Regulations is that in the event a
private management becomes incapable of setting up
the proposed medical college or impart education
therein, such a Certificate by the State Government
casts an obligation on the State Government to take
over the affairs of such a private medical college and
discharge the obligations of the private
management..."
From the aforesaid enunciation of law, it is manifest that the State
Government has the role in a particular realm with certain added
responsibility and the rest, including the grant of permission for increase
of intake capacity, remains with the Medical Council of India.
14. Presently, we shall proceed to scan the essential feature of the 2004
Act. The purpose of the 2004 Act is to constitute a National Commission
for Minority Educational Institution and to regulate and provide for the
matters connected therewith or incidental thereto. Section 2(ca) of the
said 2004 Act reads as follows:
"Section 2(ca) "Competent authority" means
the authority appointed by the appropriate
Government to grant no objection certificate for
the establishment of any educational institution
of their choice by the minorities."
15. Section 10 of the 2004 Act deals with the rights of Minority
Educational Institution. It reads as follows:
"10. Right to establish a Minority Educational
Institution.-- *(1) Subject to the provisions
contained in any other law for the time being in
force, any person,who desires to establish a
Minority Educational Institution may apply to
the competent authority for the grant of no
objection certificate for the said purpose."
(2) The Competent authority shall,--
(a) on perusal of documents, affidavits or other
evidence, if any; and
(b) after giving an opportunity of being heard to
the applicant, decide every application filed
under sub-section (1) as expeditiously as
possible and grant or reject the application, as
the case may be:
Provided that where an application is rejected,
the Competent authority shall communicate the
same to the applicant.
(3) Where within a period of ninety days from
the receipt of the application under sub-section
(1) for the grant of no objection certificate,--
(a) the Competent authority does not grant such
certificate; or
(b) where an application has been rejected and
the same has not been communicated to the
person who has applied for the grant of such
certificate, it shall be deemed that the Competent
authority has granted a no objection certificate to
the applicant.
(4) The applicant shall, on the grant of a no
objection certificate or where the Competent
authority has deemed to have granted the no
objection certificate, be entitled to commence
and proceed with the establishment of a Minority
Educational Institution in accordance with the
rules and regulations, as the case may be, laid
down by or under any law for the time being in
force.
Explanation.-- For the purposes of this
section,--
(a) "applicant" means any person who makes an
application under sub-section (1) for
establishment of a Minority Educational
Institution;
(b) "no objection certificate" means a certificate
stating therein, that the Competent authority has
no objection for the establishment of a Minority
Educational Institution."
[Emphasis supplied]
16. Section 11 of the 2004 Act provides the functions of the
Commission. It reads as follows:
"FUNCTIONS AND POWERS OF
COMMISSION
11. Functions of Commission.--
Notwithstanding anything contained in any
other law for the time being in force, the
Commission shall--
(a) advise the Central Government or any State
Government on any question relating to the
education of minorities that may be referred to
it;
[(b) enquire,suo motu, or on a petition presented
to it by any Minority Educational Institution, or
any person on its behalf into complaints
regarding deprivation or violation of rights of
minorities to establish and administer
educational institutions of their choice and any
dispute relating to affiliation to a University and
report its finding to the appropriate Government
for its implementation;
(c) intervene in any proceeding involving any
deprivation or violation of the educational
rights of the minorities before a court with the
leave of such court;
(d) review the safeguards provided by or under
the Constitution, or any law for the time being
in force, for the protection of educational rights
of the minorities and recommend measures for
their effective implementation;
(e) specify measures to promote and preserve
the minority status and character of institutions
of their choice established by minorities;
(f) decide all questions relating to the status of
any institution as a Minority Educational
Institution and declare its status as such;
(g) make recommendations to the appropriate
Government for the effective, implementation
of programmes and schemes relating to the
Minority Educational Institutions; and
(h) do such other acts and things as may be
necessary, incidental or conducive to the
attainment of all or any of the objects of the
Commission."
17. Section 12 deals with the powers of the Commission. Sub-section
(1) of the said section provides that if any dispute arises between a
minority educational institution and a university relating to affiliation to
such university, the decision of the Commission thereon shall be final.
The other sub-sections of the said provision basically provide for which
power of the Civil Court can be exercised by the Commission and how
the proceedings are deemed to be judicial proceedings under certain
provisions of the Indian Penal Code. Section 12B of the 2004 Act, which
deals with the power of the Commission to decide on the minority status
of an educational institution, reads as follows:
" 12B. Power of Commission to decide on the
minority status of an educational institution.--
(1) Without prejudice to the provisions
contained in the National Commission for
Minorities Act, 1992 (19 of 1992), where an
authority established by the Central
Government or any State Government, as the
case may be,for grant of minority status to any
educational institution rejects the application for
the grant of such status, the aggrieved person
may appeal against such order of the authority
to the Commission.
(2) An appeal under sub-section (1) shall be
preferred within thirty days from the date of the
order communicated to the applicant:
Provided that the Commission may entertain an
appeal after the expiry of the said period of
thirty days, if it is satisfied that there was
sufficient cause for not filing it within that
period.
(3) An appeal to the Commission shall be made
in such form as may be prescribed and shall be
accompanied by a copy of the order against
which the appeal has been filed.
(4) On receipt of the appeal under sub-section
(3), the Commission may, after giving the
parties to the appeal an opportunity of being
heard, [**] decide on the minority status of the
educational institution and shall proceed to give
such direction as it may deem fit and, all such
directions shall be binding on the parties.
Explanation.-- For the purposes of this section
and section 12C, "authority" means any
authority or officer or commission which is
established under any law for the time being in
force or under any order of the appropriate
Government, for the purpose of granting a
certificate of minority status to an educational
institution."
18. We have reproduced the aforesaid statutory provisions to highlight
the scheme of things under the Act and the fundamental purpose for
which the Act was enacted and the role of the Commission. The
Commission has a role to entertain any grievance relating to grant of "no
objection certificate" for establishment of a Minority Educational
Institution.
19. The submission of Mr. Sudhir Nandrajog, learned senior counsel,
is that if the dictionary clause relating to the competent authority under
Section 2(ca) of the 2004 Act is appositely scrutinized, it would clearly
convey that the authority appointed by the appropriate Government is
empowered to grant no objection certificate for establishment of any
educational institution of their choice by the minorities and when the
minority has chosen to establish a medical college which is functional
and intends to enhance the intake capacity, the competent authority has
jurisdiction and when the same is not granted to a minority institution, the
Commission has the authority to interfere.
20. In our considered opinion, the term "competent authority" has to be
understood in the schematic context of the 2004 Act and regard being had
to the purpose of the Act, it can only mean that the competent authority
has no objection for establishment of a minority educational institution of
their choice. It has remotely nothing to do with the grant of Essentiality
Certificate as engrafted under the 1999 Regulations with Section 10A of
the 1956 Act. Thus, it is clear as crystal that the Commission has no
authority to dwell upon such an issue. The two enactments, namely, the
1956 Act and the 2004 Act operate in their own fields and we do not
think that an issue of overlapping or concurrent jurisdiction arises in the
present case. Issuing and grant of essentiality certificate by the State
government for the 1956 Act and the 1999 Regulations have different
connotations, issues and aspects which are not even remotely connected
with the subject matter and scope of the 2004 Act.
21. In this context, the language employed in Section 10(1) „subject to‟
has its own signification. The expression „subject to‟ conveys the idea of
provision yielding place to another provision or other provision subject to
which it is made. This proposition of law has been clearly enunciated in
The South India Corporation (P) Ltd. v. The Secretary, Board of
Revenue, Trivandrum & Anr., AIR 1964 SC 207.
22. In Black's Law Dictionary, 5th Edn., at p. 1278, the expression
"subject to" has been defined as under:
"Liable, subordinate, subservient, inferior, obedient
to; governed or affected by; provided that; provided;
answerable for. Homan v. Employers Reinsurance
Corpn."
23. In K.R.C.S. Balakrishna Chetty & Sons & Co. v. State of Madras,
(1961) 2 SCR 736, their Lordships have expressed thus:
"...The use of the words "subject to" has reference to
effectuating the intention of the law and the correct
meaning, in our opinion, is "conditional upon".
24. In Ashok Leyland Ltd. v. State of T.N. & Anr., (2004) 3 SCC 1,
their Lordships have opined that the term „subject to‟ is an expression
where limitation is expressed.
25. In Iridium India Telecom Ltd. v. Motorola Inc., (2005) 2 SCC
145, it has been held thus:
"68. It is well settled that the expression
„notwithstanding‟ is in contradistinction to the phrase
„subject to‟, the latter conveying the idea of a
provision yielding place to another provision or other
provisions to which it is made subject."
26. The said principle has been reiterated in S.N. Chandrashekar &
Anr. v. State of Karnataka & Ors., (2006) 3 SCC 208.
27. Section 10(1) of the 2004 Act stipulates that the provisions it
encompasses are subject to the provisions contained in any other law for
the time being in force. The requirement of obtaining essentiality
certificate for establishing a proposed medical college is in no manner
concerned with the 2004 Act, which expressly stipulates that an NOC is
to be applied for establishing a minority educational institution. The
provisions of the 2004 Act are to yield to the postulates in the 1956 Act
and the 1999 Regulations. The intake capacity in the medical college is
within the exclusive domain of the MCI. The essentiality certificate has
its own signification under the Regulations and the State has a role for
establishment of a medical college. We have already indicated the
purpose of essentiality certificate. The grant of essentiality certificate for
having a medical college does not have remotely any access with any of
the provisions contained in the 2004 Act. The said concept has been
further concretized by use of the terms „subject to the provisions
contained in any other law for the time being in force‟, which has been
brought in by way of amendment in 2010. Thus, we are disposed to think
that the Commission has exceeded in its jurisdiction.
28. As the order of the Commission would reflect, it has referred to
sub-section (3) of Section 10 of the 2004 Act to declare that the
competent authority has deemed to have granted the essentiality
certificate. As we have indicated hereinbefore, both the Acts operate in
different areas and different fields and the no objection certificate
specifically relates to establishment of a minority educational institution
in accordance with the Rules and Regulations as the case may be laid
down by or under any other law for the time being in force. It is apt to
notice that Section 3 of the 2004 Act which deals with the constitution of
a Commission clearly provides that the Commission is constituted for
Minority Educational Institutions to exercise the powers conferred on,
and to perform the functions assigned to, it under the Act. Thus, in
essentiality, the powers are restricted to conferment of the status of a
minority institution to get a no objection certificate for establishing a
Minority Educational Institution in accordance with the Rules and
Regulations laid down by or under any other law. The Commission has
held that there is a deemed grant of no objection certificate. It is a
cardinal principle of the law of interpretation that while understanding a
provision pertaining to legal fiction, it is the obligation of the Court to
ascertain the purpose for which the fiction has been created. As the first
step, the Court is duty bound to ascertain the said purpose and thereafter
assume that those facts remained to be in existence to give effect to the
fiction, but while construing the concept of a fiction, the Court has to
keep in mind the purpose for which the Act has been enacted. It is an
accepted facet of interpretation that a legal fiction has to be constricted
for giving effect to the purpose and intent of the said Act and cannot
travel beyond the same or get extended to the provisions of another Act.
That is the normal science of interpretation. Judged from this angle, the
Commission could not have opined that there is a deemed grant of
essentiality certificate which is required under the 1999 Regulations.
29. In view of our above analysis, we find that the order passed by the
learned Single Judge is absolutely impeccable and does not warrant any
interference. Accordingly, the appeal is dismissed without any order as
to costs.
CHIEF JUSTICE
SANJIV KHANNA, J
JULY 21, 2011
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