Delhi High Court
Shri Ram Krishan Parmhans Shikha ... vs Union Of India And Anr on 21 January, 2021
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on: 21st January, 2021
REVIEW PET. 474/2018 in
+ W.P.(C)7954/2017
SHRI RAM KRISHAN PARMHANS SHIKSHA PARISHAD
.....Petitioner
Through: Mr. Raju Ramachandran, Sr.
Adv. with Mr. Amitesh Kumar, Ms. Binisa
Mohanty, Ms. Priti Kumari and Mr. Ishwar
Mohanty, Advs.
versus
UNION OF INDIA AND ANR. .....Respondents
Through: Mr. P.S. Singh, Sr.Panel
Counsel for R-1
Ms. Archana Pathak Dave, Ms. Ankita
Chaudhary, Advs. for R-2
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
JUDGMENT
% (Video-Conferencing)
1. The application, of the petitioner Shri Ram Krishan Paramhans
Shiksha Parishad, to start a new Ayurveda college, with 100 seats, and
to confer BAMS degrees, on the basis thereof, for the academic
session 2017-2018, was rejected vide order dated 10th August, 2017.
Assailing the said rejection, the petitioner approached this Court by
way of WP (C) 7954/2017, which was dismissed vide judgment dated
17th December, 2018. Review Petition 474/2018 was filed, by the
petitioner, seeking review of the said judgment.
2. A brief conspectus of the controversy is necessary at the outset.
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3. The petitioner was granted initial registration, under the
Haryana Registration and Regulation of Societies Act, 2012, in 1983-
84, and was granted a new registration number on 9th May, 2013. On
25th April, 2014, the petitioner submitted an application, to the Central
Council for Indian Medicine (Respondent No. 2 herein and referred to,
hereinafter, as "CCIM"), for grant of permission to open a Medical
College, at Digrota, with 100 seats, from the 2014-2015 academic
session. The CCIM responded vide communication dated 24th July,
2014, stating that the petitioner's application had been examined in
terms of the relevant regulations under the Indian Medicine Central
Council Act, 1970 (hereinafter referred to as "the IMCC Act"), but
was found to be deficient in 11 respects. In view of these deficiencies,
it was concluded, in the aforesaid communication dated 24th July,
2014, that the petitioner did not fulfil the eligibility criteria specified
in Regulation 6(1) of the Establishment of New Medical College,
Opening of New or Higher Course of Study or Training and Increase
of Admission Capacity by a Medical College Regulations, 2003
(hereinafter referred to as "the 2003 Regulations"), as amended in
2013. Accordingly, the application of the petitioner, for starting the
new Ayurvedic College, was returned as "not considered". Liberty
was, however, reserved, to the petitioner, to apply afresh with all pre-
requisites, from the 1st to the 30th April of any year.
4. According to the petitioner, the deficiencies noted, in the
communication dated 24th July, 2014 (supra), were rectified by the
petitioner, and intimation, to the said effect, was forwarded, by the
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petitioner, to the CCIM vide letter dated 9th September, 2014, which
requested the said respondent to process the proposal for setting up of
the Ayurveda College, by the petitioner, at the earliest.
5. The CCIM replied vide letter dated 24th September, 2014,
pointing out that, vide its communication dated 24th July, 2014
(supra), the earlier application of the petitioner, for permission to set
up the Ayurveda College, had been returned, as there was no
provision empowering the CCIM to accept any proposal beyond 30th
April of any year, as stipulated in the 2003 Regulations. The revised
application, of the petitioner, having been submitted on 9th September,
2014, the CCIM stated that the said application could not be accepted
and was, therefore, returned preserving, yet again, liberty, to the
petitioner, to apply afresh, with all necessary documents, as per the
2003 Regulations and the applicable norms of the CCIM, between the
1st and the 30th of April of any year.
6. The petitioner's premises were, thereafter, inspected, on 1st
October, 2014 by an expert committee constituted by the Pt B. D.
Sharma University of Health Sciences, Rohtak (hereinafter referred to
as "BDSU"), with which the petitioner was affiliated, to assess the
petitioner's capability to start the BAMS course, with 100 seats, for
the 2015-2016 academic session. Consequent thereupon, the Registrar
of the BDSU wrote, on 30th October, 2014, to the petitioner, granting
consent, once again, for affiliation of the proposed Ayurveda college,
with 100 seats, to be established at Digrota subject, however, to grant
of permission, by the Central Government under Section 13A of the
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IMCC Act.
7. On 1st November, 2014, the petitioner wrote, to the CCIM,
requesting for permission to start the aforesaid College and enclosing,
therewith, the NOC issued by the Government of Haryana and
consent for affiliation issued by the BDSU. This request was,
however, turned down, by the CCIM vide communication dated 14th
November, 2014, reiterating that there was no provision allowing it to
accept such a proposal beyond 30th April of any year.
8. On 20th April, 2015, the petitioner wrote to Respondent No. 1,
requesting that its proposal for establishment of the College be
considered for the academic session 2015-2016. This was followed by
a reminder dated 18th June, 2016. This application was rejected, by
Respondent No. 1, on 30th October, 2015.
9. On 28thApril, 2016, the petitioner again applied to the CCIM,
for permission to open the College at Digrota for the academic session
2016-2017.
10. On 8th September, 2016, the CCIM responded to the petitioner's
application, enumerating eleven alleged shortcomings in the
petitioner's application, which the petitioner was directed to rectify
within ten days. The petitioner responded on 12th September, 2016, re-
submitting the documents evidencing rectification of the aforesaid
shortcomings.
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11. The next communication, from the CCIM to the petitioner, was
on 23rd March, 2017, whereby the CCIM called upon the petitioner to
pay the visitation fee of ₹ 1 lakh to the CCIM. This, too, was paid by
the petitioner to the CCIM by way of NEFT on 24th March, 2017, and
the CCIM was intimated, accordingly, vide letter dated 25th March,
2017.
12. In the interregnum, the CCIM, vide letter dated 19th September,
2016, constituted an expert committee of three members, to visit the
petitioner's college and submit a report. Consequent to the said visit,
Respondent No.1 wrote, on 5th April, 2017, to the petitioner, observing
that the proposed college of the petitioner was still not compliant in
respect of the following pre-requisites:
(i) The petitioner did not "have object to impart education in
Ayurveda discipline" as required by regulation 6(1)(A) of the
Regulations.
(ii) "Visitors have observed that there is no concept of
departmental OPD/IPD Computerised OPD/IPD registration
System not available. The records of OPD/IPD not available
even does not correlate with available documents. Further, the
IPD data as submitted by the petitioner shows that no. of IPD
pt. admitted and no. of bed days occupied are same, which
seems impractical. In view of these, it appears that the
petitioner does not have functional hospital of concerned system
as specified in the relevant notified MSR Regulations."
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13. The petitioner was granted an opportunity of personal hearing
on 5th May, 2017, on which occasion the petitioner submitted an
affidavit, avowing imparting of education in BAMS (AYURVEDA) to
be one of its objectives and furnishing additional written submissions.
14. The application of the petitioner, for setting up the College for
the academic session 2016-2017 was rejected, by Respondent No. 1
vide communication dated 10th August, 2017, holding that the
petitioner could not produce sufficient evidence of having a functional
hospital, and was also unable to establish compliance with the
requirement of having, as one of its objectives, imparting of education
in Ayurveda. Thus, alleged the said rejection letter, the petitioner had
failed to fulfill the basic eligibility criteria, as per Regulation 6 of the
2003 Regulations, for setting up a new college imparting the UG-
BAMS course with 100 seats. The communication also contained a
tabular statement setting out the deficiencies in the petitioner's
proposed institution, as communicated to the petitioner on 6thApril,
2017, the petitioner's submissions in response thereto and the
observations of the hearing committee, regarding the said response.
Following thereupon, paras 9 and 10 of the said communication read
thus:
"9. Whereas, in view of the above observations of the
hearing committee based on submissions made by the college
during hearing as in para 8 above and the recommendations
and visitation report of the CCIM referred in para 3 above, it
can be understood that the above said Trust does not have the
objective to impart education in Ayurveda discipline and
functional Ayurveda hospital as specified in the notified
relevant regulations, which violate the provisions of the
IMCC act and the relevant regulations and is of such a serious
and fundamental in nature that they adversely affect the
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ability of the proposed college to provide quality medical
education in terms of the provisions of the IMCC act and the
relevant regulations. The college representatives were given
opportunity of hearing to present the case, but they could not
produce sufficient documents / evidences to substantiate their
claim of having functional Ayurveda hospitals which is not
only, required to have at the time of application but is
required to be functional one year before making an
application for running an Ayurveda College. Hence, the
Applicant is not fulfilling the basic eligibility criteria as per
the Regulation 6 of the regulation namely the Establishment
of New Medical College, Opening of New or Higher Course
of Study or Training and Increase of Admission capacity by a
Medical College Regulations, 2003 read with the amendment
regulations of 2013, to establish a new Ayurveda college.
10. Now therefore, in view of the shortcoming and
deficiency particularly about the non availability of functional
Ayurveda hospital and objective to impart education in
Ayurveda discipline, which are essential pre requisite to make
application and to establish a new Ayurveda college in terms
of the provisions of the IMCC act and the relevant regulations
therefore, it has been decided not to issue letter of intent to
the secretary, Shri Ram Krishan Parmhans Shisksha Parishad,
Diwan Colony, Railway Road, Mohinder Garh, Haryana to
start a new Ayurveda College in the name of Shri Ram
College of Medical Science &Research at Digrota, Distt.
Mohindergarh, Haryana with 100 seats in BAMS course from
the Academic session 2017-18 under section 13 A of the
IMCC Act, 1970. Hence, the Applicant / Scheme dated
28.04.2016 of the Applicant for the above purpose is
disapproved."
15. WP(C) 7954/2017, the judgment in which constitutes subject
matter of the present review petition, assailed the aforesaid rejection,
dated 10th August, 2017, by Respondent No. 1, of the petitioner's
application for setting up of the Ayurveda College with 100 seats, to
impart the UG-BAMS course.
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16. In support of the petition, the petitioner contended, before this
Court, thus:
(i) The petitioner's application, which was dated 28th April,
2016, had been rejected only on 10th August, 2017. This
rejection could have no effect in law, in view of Section 13A (6)
of the IMCC Act, which deemed the scheme, submitted by the
applicant under Section 13A(2) of the IMCC Act to have been
approved by the Central Government, in the form in which it
was submitted, if no order was communicated, by the Central
Government, to the applicant within one year from the date of
submission of the scheme.
(ii) Resultantly, it was sought to be contended, the
application for approval having been submitted on 28th April,
2016, the scheme of the applicant was deemed to have been
approved on 28th April, 2017, and the rejection, dated 10th
August, 2017, of the scheme therefore had no meaning.
Reliance was placed, for this purpose, on the judgment of the
High Court of Gujarat, in Parul University v. Union of India 1,
which interpreted Section 12(5) of the Homeopathy Central
Council Act, 1973, which was in pari materia with Section
13A(6) of the IMCC Act. It was pointed that the Special Leave
Petition, preferred against the said decision of the High Court of
Gujarat, stood dismissed by the Supreme Court.
2017 SCC OnLine Guj 77
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17. I had, vide my judgment dated 17th December, 2018, rejected
the petition of the petitioner, both on merits as well as in respect of the
contention, of the petitioner that, by operation of Section 13A(6) of
the IMCC Act, the scheme of the petitioner was deemed to have been
accorded approval on the expiry of one year from 28th April, 2016 and
that, therefore, the order of rejection dated 10th August, 2017 had no
meaning. The issue, in this regard, was specifically framed, in the
judgment under review, thus:
"..... whether, by operation of sub-Section 6 of Section
13A of the IMCC Act, approval, by Respondent No.1, to
the petitioner's scheme, for setting up the college at
Digrota, could be deemed to have been granted".
It was also observed, in the judgment under review that, were the
afore-extracted issue to be decided in favour of the petitioner, no
occasion would arise, to proceed on the merits of the decision dated
10th August, 2017.
18. On 20th September, 2019, when the present review petition was
taken up, I observed that, in exercise of power of review vested in me,
I could not re-appreciate the merits of the decision not to grant
permission to the petitioner to commence the BAMS course for the
2016-2017 academic session. However, the submission of the
petitioner that the application, which was the subject matter of
consideration in the present proceedings, was that which was
submitted by the petitioner on 28th April, 2016, and not the application
submitted on 25th April, 2014, appeared to be correct, as the record
revealed that the application dated 28th April, 2016 was not by way of
a continuation of the request dated 25th April, 2014, but was in the
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nature of a fresh request. In this view of the matter, I re-heard
arguments on the writ petition, qua the applicability of Section 13A(6)
of the IMCC Act, treating the date of application as 28th April, 2016.
The scope of examination, in the said de novo hearing was delineated
specifically, in para 14 of the order dated 20th September, 2019, thus:
"14. In order to avoid any further confusion, it is made clear
that the scope of consideration in this matter, on the next date
of hearing, is limited only to the examination as to whether, if
the petitioner has found to have applied for permission to
commence the aforementioned course on 28th April, 2016,
the respondent can be said to have violated Section 13A(6) of
the Act. No other aspect would be considered on the said
date."
19. Subsequently, detailed arguments, on the aforesaid aspect, were
heard from both sides and judgment was reserved.
Rival Contentions and Analysis
20. My findings, in respect of Section 13A(6) & (7) of the IMCC
Act, as contained in the judgment under review, may be reproduced
thus:
"7.6 Proceeding, now, to sub- sections (6) and (7) of
Section 13A of the IMCC Act, in my view, the stand of the
petitioner, as vocalised by Mr. Ramachandran, notes the fact
that, by the letter dated 24th July, 2014, the application, dated
25th April, 2014, of the petitioner, was rejected. To my mind,
the letter is categorical and unambiguous, in this respect. It
clearly states that the application, dated 25th April, 2014, of
the petitioner "has been examined in terms of Relevant
Regulations under the IMCC Act", and goes on to "conclude
that (the petitioner) does not fulfil the eligibility criteria as
specified under Regulation 6(1) of the 2003 Regulations", as
amended in 2013. In view thereof, the petitioner's application
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was returned. Moreover, the communication permitted the
petitioner to apply afresh, under the proviso to sub- section
(5) of Section 13A of the IMCC Act. The reference, here, is,
apparently, to the second proviso of the said subsection,
which reads thus:
"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
provision of this section shall apply to such
scheme, as if such a scheme had been submitted
for the first time under sub-section (2)."
This provision, and the tenor of, is, again, unmistakable and
unequivocal. It contemplates an applicant submitting a fresh
scheme, once the scheme submitted earlier has not been
approved by the Central Government. If such a fresh scheme
is submitted, the proviso ordains that the scheme would have
been deemed to have been submitted for the first time. The
grant of liberty, by Respondent No.1, in the afore-extracted
communication, dated 24th July, 2014, to the petitioner, to
apply afresh, under the second proviso to Section 13A(5) of
the IMCC Act, clearly indicates that the application,
submitted by the petitioner on 25th April, 2014, stood rejected,
by the communiqué dated 24th July, 2014. Respondent No.1,
in fact, reiterated this position, in its communication dated
24th September, 2014 (supra), in which it was pointed out that
the earlier communication dated 24th July, 2014, did not call
upon the petitioner to remove any deficiencies, or rectify any
defects, but, instead, returned the petitioner's application,
reserving liberty to the petitioner to re-apply during the
prescribed window, i.e. 1st to 30th April of any year.
7.7 The submission, of Mr. Ramachandran, that, by
operation of sub- section (6) of Section 13A of the IMCC Act,
approval, for establishment of the college at Digrota, by the
petitioner, was deemed to have been granted cannot,
therefore, sustain, and is accordingly rejected. As I have
found, on facts, that there has been no infraction, by the
respondents, of the time-period stipulated in Section 13A( 5)
of the IMCC Act, it is not necessary to refer to the decision in
Parul University (supra), on which Mr. Ramachandran
placed reliance."
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21. The present review petition urges, in respect to the applicability
of Section 13A(6) of the IMCC Act, that the judgment under review
suffered from an error apparent on the face of the record in reckoning
the period by one year, under Section 13A(6), from 25th April, 2014. It
is pointed, in the review petition, that the "deemed approval", in
respect of which the petitioner had approached this Court, related not
to the application date 25th April, 2014, but to the subsequent
application dated 28th April, 2016, which was submitted by the
petitioner for the academic year 2016-2017, and which was rejected
by Respondent No. 1 on 10th August, 2017. As is already noted
hereinabove, this submission was found to be correct.
22. The scope of consideration, consequently, narrowed down to
whether, treating the date of submission of application for permission
to commence the UG-BAMS Course as 28th April, 2016, the petitioner
was entitled to the benefit of Section 13A(6) of the IMCC Act..
23. Sub- sections (6) and (7) of Section 13A of the IMCC Act read
thus:
"(6) 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 is communicated by the Central
Government to the person or medical college 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 sub- section (1) shall also be
deemed to have been granted.
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(7) In computing the time limit specified in sub- section
(6), the time taken by the person or medical college
concerned submitted the scheme, in furnishing particulars
called for by the Central Council, or by the Central
Government shall be excluded."
24. Mr. Singh, learned Counsel for Respondent No. 1, and Ms.
Archana Pathak Dave, appearing for the CCIM, in one voice,
submitted that the petitioner was not entitled to the benefit of Section
13A(6) of the IMCC Act, in view of subsection (7) of Section 13A. It
was sought to be pointed out that, before the expiry of one year from
the submission of the application, by the petitioner on 28th April, 2016
(which would be on 28th April, 2017), Respondent No. 1 had written
to the petitioner on 5th April, 2017, pointing out deficiencies, asserted
by the inspection committee of the CCIM during the course of
inspection of the petitioner's College. As such, the petitioner was
directed to appear before the hearing committee of CCIM on 12th
April, 2017, to show cause as to why its application be not rejected.
On the petitioner's request, the date for appearance of the petitioner
was postponed to 5th May, 2017. The petitioner appeared before the
hearing committee on 5th May, 2017. Had the petitioner not sought
postponement of the date of hearing, earlier fixed as 12th April, 2017,
it is asserted that hearing would have taken place and the decision, to
allow or reject the petitioner's application, could have been
communicated to the petitioner within the prescribed period. The
petitioner, submits that the respondents, ought not to be allowed to
take advantage of its own wrong.
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25. Apropos the judgment of the Supreme Court in Parul
University1, the respondents submit that the decision is
distinguishable as, in that case, the Central Council of Homeopathy
(hereinafter referred to as "CCH") had recommended grant of Letter
of Permission to the college affiliated to the petitioner-University
twice, and the University had invoked the jurisdiction of the High
Court only when, despite the said recommendations, letter of
permission was not issued to it.
26. The respondents also sought to emphasize the deficiencies
found in the petitioner's institution during the course of inspection;
however, as the scope of examination of the case, in review, was
restricted to the entitlement, of the petitioner, to the benefit of Section
13A(6) of the IMCC Act, it is not necessary to refer to the
submissions advanced by the respondents in support of the merits of
the decision to disallow the petitioner's application.
Analysis
27. Reckoned from 28th April, 2016, it is obvious, at a plain glance,
that the impugned decision, to reject the petitioner's application,
having been issued on 10th August, 2017, was beyond the period of
one year stipulated in Section 13A(6) of the IMCC Act.
28. On this aspect, the judgment of the High Court of Gujarat in
Parul University1 entirely covers the case of the petitioner. In that
case, Parul University submitted a scheme, to the Central
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Government, seeking permission to start, in its constituent JawaharLal
Nehru Homeopathic Medical College, a Post Graduation MD
(Homeopathy) course, with 6 seats in each of the 4 subjects, w.e.f. the
2015-2016 academic year. The scheme were submitted for approval
under Section 12A(2)(a) of the Homeopathy Central Council Act,
1973 (hereinafter referred to as "the HCC Act"). Sub-sections (5) and
(6) of Section 12A of the HCC Act read thus:
"(5) Where, within a period of one year from the date of
submission of the scheme to the Central Government under
this subsection (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."
Clearly, sub- sections (5) and (6) of Section 12A of the HCC Act are
in pari materia and in haec verba to Section 13A(6) and (7) of the
IMCC Act. The judgment of the High Court of Gujarat is, therefore,
of considerable precedential value.
29. Returning to the facts in Parul University1, inspection, of the
College in question was conducted by the Central Council of
Homeopathy (hereinafter referred to as "CCH") on 12th December,
2015. Following on the said inspection, the Executive Committee of
the CCH, on 17th December, 2015, noted that, broadly, the College
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met the prescribed minimum requirements for issuance of letter of
intent for admission of six students in the aforesaid four specialty
subjects in the MD (Homeopathy) course and communicated,
accordingly, to the Central Government on 11th January, 2016. Four
days prior thereto, on 7th January, 2016, letter of intent was issued, to
the College, by the Central Government. This was, however, subject
to compliance with certain conditions. The University, on 18th March,
2016, submitted its compliance report to the Central Government, as
well as to the CCH, stating that it had complied with all the conditions
stipulated in the letter of intent. A letter of permission, enabling the
commencement of the course was, therefore, sought. The second
inspection of the College was conducted on 11th April, 2016,
following which, on 11th July, 2016, the CCH wrote, to the Central
Government, that its Executive Committee had, on considering the
inspection report, recommended issuance of letter of permission to the
college. Despite this, no letter of permission was issued, to the
college, till the expiry of one year from the date of submission of the
scheme, for approval. In these circumstances, the University invoked
the jurisdiction of the High Court, seeking issuance of a direction, to
the Central Government and the CCH, to issue letter of permission
under Section 12A of the HCC Act.
30. During the pendency of the writ petition, a notice was issued, to
the University on 7th October, 2016, calling on the University to
attend personal hearing, before the Central Government on 14th
October, 2016, regarding certain alleged deficiencies noted during a
third inspection of the college, which had been carried out on 31st
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August, 2016. The University attended the hearing, following which
the Central Government, vide order dated 18th November, 2016,
passed under Section 12A of the HCC Act, refused permission to the
University, for commencement of the aforesaid courses in its College.
The writ petition was, accordingly, amended, to challenge the said
decision.
31. After observing, in para 18 of the report, that the Central
Government was not justified in undertaking a third inspection of the
College, in the face of two positive reports submitted by the CCH, the
High Court went on, in paras 25 to 29 of the report, to hold as under:
"25. 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.
26. Learned advocate Mr. Raval appearing for the
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 subsection (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
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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.
27. 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 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 inevitably have 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."
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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. 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"
28. 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 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
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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".
*****
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 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)
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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 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 From the facts of that
case it shall appear that Bombay Building (Control on
Erection) Ordinance, 1948 which was applicable to
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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 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."
*****
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 saying that where the tenant
ceases to occupy the building within the meaning of 11
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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."
29. 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."
32. It is obvious that the findings of the High Court in Parul
University1, as extracted hereinabove, are independent findings,
uninfluenced and unencumbered by the fact of issuance of the two
recommendations, by the CCH, for grant of letter of intent and letter
of permission to the college. Indeed, they merely affirm, by judicial
imprimatur, the express mandate of the statute. Sub-section (5) of
Section 12A of the HCC Act - as, in the present case, sub- section (6)
of Section 13A of the IMCC Act - specifically deems, on the expiry
of one year from the date of submission of the scheme, by the
university or the college, for approval, such approval to have been
granted, in the absence of any communication either accepting or
rejecting the scheme.
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33. The efforts of learned counsel for the respondents, to
distinguish the decision in Parul University1 have, in my opinion,
necessarily to fail. Learned counsel for the respondents sought to
place reliance on sub- section (7) of Section 13A of the IMCC Act, in
the light of the hearing fixed before the CCIM on 12th April, 2017,
and its postponement, on the request of the petitioner, to 5th May,
2017. It was sought to be contended that, had the petitioner attended
the hearing on 12th April, 2017, the decision, on the petitioner's
application, could have been taken within the time stipulated in
Section 13A (6). This submission, in my view, has merely to be
urged, to be rejected. The only exclusion, which sub- section (7) of
Section 13A, contemplates, is of the time taken by the applicant
medical college, in furnishing particulars called for by the CCIM or
by the Central Government. The intent of the clause is obvious. If the
application, submitted by the applicant medical college is found to be
wanting in necessary particulars, those particulars could be
requisitioned by the Central Government or by the CCIM and, in such
an event, the time taken by the medical college in providing the
particulars, merits exclusion, while computing the period under
Section 13A (6). There is no provision whereunder the issuance of
the notice of personal hearing, by the respondents, on 12th April, 2017,
could extend the time of one year, expressly stipulated in Section 13A
(6). Applying the law enunciated in Parul University1 - with which I
am in respectful agreement - the petitioner's application was deemed
to have been accepted on the expiry of one year from the date of
submission, i.e. on 28th April, 2017. Till then, no order, either
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approving or rejecting the application of the petitioner, was issued to
it. The consequences, flowing from Section 13A(6), have necessarily
to ensure in the petitioner's favour. By waking up, from its slumber,
sixteen days before the "cut-off date" of 28th April, 2017, and issuing
notice of personal hearing to the petitioner, the respondents cannot
seek to defeat the statute. Nor can the petitioner be blamed for the
inaction, on the part of the respondents, in taking a decision before
28th April, 2017, as the date of 5th May, 2017 was also fixed by the
respondents. No "wrong" having been committed by the petitioner,
the principle that a person cannot seek advantage of his own wrong
does not call for application at all, and the invocation of the said
principle, by the respondents, has necessarily to be regarded as
misguided.
34. Sub-section (7) of Section 13A of the IMCC act is clear and
categorical. It permits exclusion, while computing the time limit
specified in Section 13A(6), only of "the time taken by the person or
medical college concerned submitting the scheme, in furnishing
particulars called for by the Central Council, or by the Central
Government". In the present case, as the recital of facts hereinabove
discloses, and as has been specifically pleaded by the petitioner, two
communications were addressed by the CCIM to the petitioner,
regarding the deficiencies in the petitioner's application. The first
was on 8th September, 2016, and the second was on 23rd March, 2017.
The communication dated 8th September, 2016 enumerated 11
deficiencies, in the petitioner's application. These deficiencies were
cured, by the petitioner, within four days, as communicated vide letter
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dated 12th September, 2016. The second communication, dated 23rd
March, 2017, required the petitioner to pay visitation fee of ₹ 1 lakh.
This was paid by the petitioner; vide NEFT, on 24th March, 2017. The
total time expended in communication of deficiencies, by the
respondents to the petitioner, and in the curing/satisfaction thereof by
the petitioner was, therefore, a mere five days. The letter dated 5th
April, 2017 cannot be regarded, by any stretch of imagination,
requiring the petitioner to "furnish any particulars", within the
meaning of Section 13A(7). The total "excludible" time, under the
said provision was, therefore, five days. Even if this time were to be
excluded, the impugned communication dated 10th August, 2017, was
much beyond the period of one year, stipulated in Section 13A(6).
35. Incidentally, the SLP, preferred against aforesaid judgment of
the High Court of Gujarat in Parul University1, was also dismissed,
by the Supreme Court, vide order dated 5th February, 2018. The
decision of the Supreme Court, not to interfere with the judgment of
the High Court, though rendered under Article 136 of the Constitution
of India and, therefore, not resulting, stricto sensu, in "merger" of the
judgment of the High Court with the order of the Supreme Court, does
augment, significantly, the precedential value of the judgment of the
High Court.
36. A somewhat desperate contention was sought to be advanced
by Mr. Singh, on behalf of the Union of India, that the application
submitted by the petitioner could not be treated as completed till 23rd
March, 2017, in view of the default in payment of visitation fee. The
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submission is obviously completely devoid of merit. Mr. Singh has
not been able to draw my attention to any provision, whereunder
payment of visitation fee - or, rather, non-payment thereof - would
result in the application, for approval of the scheme, being regarded as
incomplete. Indeed, if this were so, there is no explanation as to why
this demand was not raised, by the respondent, till 23rd March, 2017.
To employ an overused cliché, the respondents, apparently, "sat over"
the petitioner's application, innocent of the time constraint infused by
Section 13A(6). The petitioner has, in the eventuate, stood to benefit.
37. Mr. Singh sought to contend, relying on Nandkishore Ganesh
Joshi v. Commissioner, Municipal Corporation of Kalyan &
Dombivali and others 2, that, in the face of the finding, by the
respondents, of deficiencies in the petitioner's College, the legal
fiction, under Section 13A(6) of the IMCC Act, would not apply. I
am unable to find anything, in the said decision, supporting the
submission of Mr. Singh. The controversy before the Supreme Court,
in that case, was as to the necessity of audit submitted by the
contractor, before a decision could be taken, by the Municipal
Corporation, approving the proposal for the contract, in terms of
Section 73 of the Bombay Provincial Municipal Corporations Act,
1949. The Supreme Court has not held, in that case, that a statutory
legal fiction, whereby the application for approval is deemed to have
been accepted, on the failure, on the part of the administrative
authority, to respond, positively or negatively, on the application,
within the stipulated period of time, would not apply merely because,
(2004) 11 SCC 417
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after the time has elapsed, the application is rejected on merits. The
contention of Mr. Singh is, therefore, rejected.
38. The principle that the consequences statutorily envisioned, on
the failure of any executive authority to act within the time stipulated,
have necessarily to follow, is, by now, fossilized in law. In para 42 of
the report in Bhavnagar University v. Palitana Sugar Mill (P) Ltd
and others 3, a bench of three Hon'ble Judges of the Supreme Court
held thus:
"...when a public functionary is required to do a certain thing
within a specified time, the same is ordinarily directory but it
is equally well settled that when a consequence of inaction
on the part of the statutory authorities within such specified
time is expressly provided, it must be held to be imperative."
(Emphasis supplied)
This was premised, in the said judgment, on the even more
fundamental principle, forming part of legal lore since Taylor v.
Taylor 4, through the pronouncement by the Privy Council in Nazir
Ahmed v. King Emperor5 and the judgment of the Supreme Court in
State of Uttar Pradesh v. Singhara Singh6, that where the law
requires a particular act to be done in a particular manner, that act
must be done in that manner, or not done at all, all other manners of
doing that act being necessarily forbidden.
(2003) 2 SCC 111
(1875) 1 Ch D 426
(1936) 38 BOMLR 987
AIR 1964 SC 358
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Conclusion
39. Resultantly, the respondents having failed to reject the
petitioner's application for approval, submitted on 28th April, 2016,
within one year of such submission, the petitioner is entitled to the
benefit of Section 13A(6) of the IMCC Act, and its application was,
therefore, deemed to stand approved on and after 28th April, 2017.
The impugned communication dated 10th August, 2017, rejecting the
application cannot, therefore, sustain legal scrutiny and has, therefore,
necessarily to be set aside.
40. As a consequence, the judgment, dated 17th December, 2018,
passed by this Court, is recalled. The review petition, as well as the
writ petition, succeed and are allowed.
41. Needless to say, all admissions, and other related exercises,
permitted to be undertaken on a provisional basis during the pendency
of this Review Petition, stand duly regularized.
42. All pending applications stand disposed of accordingly.
C. HARI SHANKAR, J.
JANUARY 21, 2021
HJ
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