In the High Court of Judicature at Madras Dated: 23/04/2003 Coram The Honourable Mr.Justice R.Jayasimha Babu and The Honourable Mr.Justice N.V.Balasubramanian Writ Petition No.38106 of 2002 and Writ Petition No. 38107 of 2002 and Writ Appeals No.1702, 1927 and 2144 of 2002 Writ Petitions: H.E.T.C. Educational Society represented by its Director - Projects Dr.Prem C.Marthandan No.40, GST Road, St. Thomas Mount, Chennai 16. ..... Petitioner in W.Ps.No. 38106 & 38107 of 2002 -Vs- 1. State of Tamilnadu, represented by its Secretary, Health and Family Welfare Department, Fort St. George, Chennai 600 009. ..... Respondent 1 in W.P. No.38106 of 2002 and Respondent 2 in W.P. No.38107 of 2002 2. The Tamilnadu Dr. M.G.R. Medical University, No.69 Anna Salai, Guindy, Chennai 600 032, represented by its Registrar Respondent 2 in W.P. No.38106 of 2002 & Respondent 1 in W.P. No.38107 of 2002 3. Government of India, Ministry of Health and Family Welfare, New Delhi, represented by its Respondent 3 in W.Ps. Secretary to Government. No.38106 & 38107/2002 4. Dental Council of India, represented by its Secretary, Temple Lane, Kotla Road, New Delhi 110 002. Respondent 4 in W.Ps. No.38106 & 38107/2002 Writ Petition No.38106 of 2002 filed under Article 226 of the Constitution of India for the issue of writ of certiorarified mandamus to call the records in Lr. No.AFFLN.1(2)/4108/2001 on the file of the Tamilnadu Dr. M.G.R. Medical University and quash the order therein dated 18.09.2002 and direct the first respondent to issue Letter of Consent for affiliation to the petitioner for starting a new dental college. Writ Petition No.38107 of 2002 filed under Article 226 of the Constitution of India for the issue of writ of certiorarified mandamus to call for the records in Letter (D) No.1486 H & FW on the file of the Health and Family Welfare Department of State of Tamil Nadu and quash the order dated 25.09.2002 and direct the first respondent to issue Essentiality Certificate to the petitioner for starting a new Dental college. Writ Appeal No.1702 of 2002 The Tamilnadu Dr. M.G.R. Medical University, represented by its Registrar, No.69 Anna Salai, Guindy, Chennai 600 032, Appellant vs. 1. H.E.T.C. Educational Society represented by its Director - Projects Dr.Prem C.Marthandan No.40, GST Road, St. Thomas Mount, Chennai 16. 2. Government of India, Ministry of Health and Family Welfare, Nirman Bhavan, New Delhi, represented by its Secretary. 3. Dental Council of India, represented by its Secretary, Temple Lane, Kotla Road, New Delhi 110 002. 4. State of Tamilnadu, represented by its Secretary, Health and Family Welfare Department, Fort St. George, Chennai 600 009. 5. Director of Medical Education, Kilpauk, Chennai 10. Respondents Writ Appeal filed against the order in writ petition No.14216 of 200 1 made by a learned single Judge of this Court dated 12.04.2002. Writ Appeal No.1927 of 2002 H.E.T.C. Educational Society represented by its Director - Projects Dr.Prem C.Marthandan No.40, GST Road, St. Thomas Mount, Chennai 16. Appellant vs. 1. Government of India, Ministry of Health and Family Welfare, Nirman Bhavan, New Delhi, represented by its Secretary. 2. Dental Council of India, represented by its Secretary, Temple Lane, Kotla Road, New Delhi 110 002. 3. State of Tamilnadu, represented by its Secretary, Health and Family Welfare Department, Fort St. George, Chennai 600 009. 4. Director of Medical Education, Kilpauk, Chennai 10. 5. The Tamilnadu Dr. M.G.R. Medical University, represented by its Registrar, No.69 Anna Salai, Guindy, Chennai 600 032. Respondents Writ Appeal filed against the order made in writ petition No.14216 of 2001 dated 12.04.2002 by a learned single Judge of this Court. W.A. No.2144 of 2002 1. State of Tamilnadu, represented by its Secretary, Health and Family Welfare Department, Fort St. George, Chennai 600 009. 2. Director of Medical Education, Kilpauk, Chennai 10. Appellants vs. 1. H.E.T.C. Educational Society represented by its Director - Projects Dr.Prem C.Marthandan No.40, GST Road, St. Thomas Mount, Chennai 16. 2. Government of India, Ministry of Health and Family Welfare, Nirman Bhavan, New Delhi, represented by its Secretary. 3. Dental Council of India, represented by its Secretary, Temple Lane, Kotla Road, New Delhi 110 002. 4. The Tamilnadu Dr. M.G.R. Medical University, represented by its Registrar, No.69 Anna Salai, Guindy, Chennai 600 032. Respondents Writ Appeal filed against the order made in writ petition No.14216 of 2001 dated 12.04.2002 by a learned single Judge of this Court. For H.E.T.C. : Mr. T.R.Rajagopalan, Senior Counsel !For Central Government : Mr.J.Madanagopala Rao, Senior Central Government Standing Counsel ^For Dental Council of India : Mr.Perumbulavil Radhakrishnan For State of Tamil Nadu and For Director of Medical Education : Mr.R.Muthukumarasamy, Additional Advocate General, assisted by Mr.V.R.Rajasekaran Special Government Pleader For M.G.R. University : Mr.M.Vellaichamy :JUDGMENT R.Jayasimha Babu, J. Hindustan Engineering Training Centre (HETC) Educational Society is registered under the Societies Registration Act, 1860 and runs six educational institutions. The object of the society is to impart higher education in medical, dental, engineering and other subjects. In the year 1997 it resolved to start a new dental college in the name of Hindustan Institute of Dental Science at Karapakkam, in Kancheepuram District near Chennai. 2. On 07.02.2001 it applied to the Government of India under Section 10-A which was introduced with effect from 27th August 1992 into the Dentists Act, 1948 by Act 30 of 1993, and in accordance with the Establishment of New Dental Colleges Regulations, framed by the Dental Council in exercise of it's powers under Section 10-A read with 20 of the Dentists Act. That proposal was returned to the petitioner on the 23rd of February, 2001 pointing out certain deficiencies and after some of those deficiencies were removed, the proposal was again returned on 15th June 2001, inter alia, on the ground that the Essentiality Certificate from the State Government and letter of affiliation from the University have not been furnished. The petitioner society's request for issue of Essentiality Certificate was rejected by the State Government on 25.09.2002. It's request for affiliation was also rejected by the Dr. MGR Medical University on 18.09.2002. Those two orders have been impugned by the petitioner in writ petitions No.3 8106 and 38107 of 2002. 3. The petitioner had earlier filed writ petition No.14216 of 2001 for a direction to the Government of India to quash the letter of the Government of India dated 15.06.2001 and to issue a direction to the Government to consider it's application to start a new dental college without insisting upon the Essentiality Certificate and letter of affiliation. The learned single Judge while rejecting the challenge to the order of the Government of India dated 15.06.2001, directed the State Government to consider the request of the petitioner for issuance of Essentiality Certificate and to issue the certificate within a month. University was also directed to issue letter of affiliation within a period of one month. That order of the learned single Judge dated 12.04.2002 is the subject matter of appeals filed by the State, the University and the Petitioner in Writ Appeals No.1702, 1927 and 2144 of 2002. 4. During the pendency of these appeals, the two orders impugned in the two writ petitions No.38106 and 38107 of 2002 came to be made. 5. Learned counsel for the parties submitted that having regard to the order made by the State Government on 18.09.2002 and by the University on 25.09.2002 the writ appeals have become infructuous. The writ appeals are dismissed as having become infructuous. 6. The State Government in it's order dated 25.09.2002 rejected the request for issue of Essentiality Certificate on the ground that the hospital with which the proposed college is to have a tie-up is 12 kms away and thus it is beyond the distance of 10 kms specified in the Regulations framed under section 10-A of the Dentists Act, and further that various facilities like library, laboratory, staff accommodation, and staff in required numbers had not been provided in accordance with the requirement of the Regulations framed by the Dental Council. The failure to furnish the bank guarantee before the Government of India was also cited as a reason. 7. The State Government, in the additional counter affidavit filed by it's Additional Secretary to Government, Health and Family Welfare Department, has stated that there are already seven private dental colleges functioning in Kancheepuram and adjacent Thiruvallur Districts, which two districts adjoin the city of Chennai, and that in the city of Chennai the Government is running a dental college, that the location of the petitioner's college though in a semi urban area, is very close to the Chennai city and could not be construed as rural/ backward area having regard to the functioning of eight dental colleges in and around Chennai. It is also stated in that affidavit that the Government have taken a "general policy decision to consider only the applications of the Private Trusts which propose to start the Dental/Medical College in a Rural/backward area of the State which is not having required Medical/Dental College Hospital to cater their needs." 8. Dr. MGR Medical University to which the college proposed to be started by the petitioner has to be affiliated, rejected the petitioner's request for affiliation by it's letter dated 18.09.2002 on the grounds that the approval of the Chennai Metropolitan Development Authority had not been obtained for the building plan for the proposed dental college and hospital though such approval is mandatory; that there are no residential quarters for the staff members; that the Malar Hospital which had been shown by the petitioner as the tie-up hospital is beyond 10 kms limit prescribed in the Dental Council Regulations; that full-fledged teaching staff were not available in certain departments, and that there was short fall of eight lecturers. 9. Shri Rajagopalan, learned senior counsel for the petitioner submitted that the State as also the University have misconceived their role in the scheme governing establishment of new dental colleges under the Dentists Act, have usurped the function of the Dental Council, and of the Central Government, that they have declined the certificates sought on irrelevant grounds, and therefore their orders are unsustainable. He also pointed out that there were more than one hundred and twenty engineering colleges in and around the city of Chennai while the number of Dental Colleges in the area comprised in the city of Chennai and the adjoining districts of Kancheepuram and Thiruvalluvar was only seven, 10. Mr. Muthukumarasamy, the learned Additional Advocate General who appeared for the State submitted that the certification by the State that the establishment of new dental college is essential is mandatory, that the reasons given by the State for refusing to grant the certificate are within the scope of it's authority and that the reasons given are relevant. Besides the reasons given in the impugned order, and the further reason given in the Additional Affidavit, violation of the land ceiling laws by the petitioner in holding more land than is permissible under the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 without obtaining an order of exemption from the State Government, was also put forth as a justification for not granting the essentiality certificate. That the petitioner holds lands in excess of the ceiling limit without obtaining an order of exemption was not disputed by the counsel for the petitioners. 11. Shri Vellaichamy, learned counsel appearing for the University submitted that the statutes framed by the University relating to the affiliation of Dental Colleges is now in conformity with what has been laid down in the Regulations framed by the Dental Council, and that the refusal to grant of letter of consent for affiliation being based on statutes which are in para materia with the Regulations, is in accordance with law. He also submitted that the University is an independent body and the grant of affiliation is a matter which is within exclusive province of the University and is not a matter which can be decided for it by the Government of India. 12. After the decision of the Supreme Court in the case of State of Tamil Nadu vs. Adhiyaman Educational and Research Institute, (1995) 4 SCC 104, the law laid down in that decision having been reiterated in the case of Jaya Gokul Educational Trust vs. Secretary to Government Higher Education Department, (2000) 5 SCC 221, it is now settled law that in the matter of grant of permission for establishing new colleges for the disciplines which are governed by All India Council of Technical Education Act, Indian Medical Council Act and Dentists Act, those central statutes occupy the field as those Central laws are relatable to Entry 66 of List I and Entry 25 of List II. The permission of the State Government independent of the Central enactment is therefore no longer necessary. 13. The role of the State Government, after the amendments effected to these enactments in the year 1993 vis-a-vis establishment of and enhancement of capacity of the institutions in the disciplines covered by these Acts, is now not a primary role, but a subsidiary and derivative one confined to the consideration of desirability of establishing and assessment of the feasibility at the location chosen by the institution. That role has been assigned to the States/Union territories in the Rules/Regulations framed by the respective Councils under those enactments. 14. Section 10-A of the Dentists Act deals with the permission for establishment of new dental colleges, new courses of study, etc. The process begins with the submission of a scheme by those eligible, to the Central Government, containing the prescribed particulars and accompanied by the prescribed fees, and permissions/certificates . The Dental Council is required to consider the scheme with due regard to the factors set out in Section 10-A(7)(a) to (g). Those factors are: (a) whether the proposed authority or institution for grant of recognised dental qualification or the existing authority or institution seeking to open a new or higher course of study or training would be in a position to offer the minimum standards of dental education in conformity with the requirements referred to in Section 16A and the regulations made under sub-section (1) of Section 20; (b) whether the person seeking to establish an authority or institution or the existing authority or institution seeking to open a new or higher course of study or training or to increase its admission capacity has adequate resources; (c) whether necessary facilities in respect of staff, equipment, accommodation, training and other facilities to ensure proper functioning of the authority or institution 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; (d) whether adequate hospital facilities, having regard to the number of students likely to attend such authority or 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 training to students likely to attend such authority or institution or course of study or training by person having the recognised dental qualification; (f) the requirement of manpower in the field of practice of dentistry; and (g) any other factors may be prescribed. Location of the Institution - whether in a Rural or Urban area, or in Developed or Backward or Hilly area or in an area which has no dental colleges or prescribed minimum or maximum number of such colleges, is not one of the prescribed factors with reference to which the Dental Council is required to consider the application. 15. The Dental Council constituted under the Dentists Act, has framed the 'Establishment of New Dental College Regulations, 1993'. The form of application prescribed under those Regulations sets out the eligibility criteria, qualifying criteria, forms and procedures, submission of application/scheme and application fee, evaluation by the Dental Council of India, and grant of permission. 16. It is only the University and the State Government/Union Territory, Autonomous Bodies promoted by the Central and State Governments, Societies registered under the Societies Registration Act, and public trusts and religious and charitable trusts registered under the Indian Trusts Act, 1882, Wakf Act, etc., that are eligible to submit the scheme. 17. Among the qualifying criteria that are prescribed, those listed at serial numbers 2, 3, 4 and 9 of that Form are relevant for the present purpose. They are: " 2. That a minimum of 5 acres of land and with constructed area as shown below is owned and possessed by the applicant to set up the proposed Dental College ---------------------------------------------------------------------------------- Admission 1st Year 4th Year ---------------------------------------------------------------------------------- 40 16,000 sq.ft 40,000 sq.ft 60 24,000 sq.ft 60,000 sq.ft 100 40,000 sq.ft 100,000 sq.ft ---------------------------------------------------------------------------------- 3. That permission/essentiality certificate regarding the desirability and feasibility of having the proposed Dental College at the proposed location has been obtained by the applicant from the respective State Government or the Union Territory Administration. 4. That permission/letter of University's Affiliation for the proposed Dental College has been obtained by the applicant from a recognised University and that adequate clinical material is available for fulfilling the requirements of the syllabus and regulations laid down by the Dental Council of India. ................. 9. That the applicant shall locate the proposed college in proximity of a Medical College and shall get an undertaking of the said Medical College to the effect that the said Medical College shall facilitate training to the students of the proposed Dental College in the subjects of Medicine, Surgery and Allied Medical Sciences. Where no Medical College is available in the proximity of the proposed Dental College, the proposed Dental College shall get itself tied up with a General Hospital which is having provision for atleast 100 beds and which is located within 10 k.m. Radius of the proposed Dental College. It shall be the duty of the applicant to produce evidence that the infrastructural facilities such as teaching, preclinical, para-clinical and allied medical sciences are owned by the proposed Dental College itself. " 18. The application is required to be submitted by the applicant in two parts: "Part I of the application (Annexure I) will contain the following particulars about the applicant and information regarding the desirability and prima facie feasibility of setting up of dental college: (1)Information regarding the constitution of applicant's organisation within the terms of reference of the eligibility criteria. (2) Information regarding basic infrastructural facilities and managerial and financial capabilities of the applicant, and (3) Information regarding availability of necessary certificate, permission letters as prescribed in the Qualifying Criteria." 19. Annexure I to the application requires the applicant to enclose to that application nine documents. They are : --(1) Certified copy of Bye-laws/Memorandum and Articles of Association/Trust Deed etc., (2) Certified copy of Certificates of Registration/ Incorporation, (3) Annual Reports and Audited Balance Sheets for the last three years, (4) Certified copy of the Title Deeds of the total available land as a proof of ownership, (5) Certified copy of the Zonal Plans of the available sites indicating their land use, (6) Proof of attachment with Medical College Hospital or 100 beded General Hospital, (7) Certified copy of the essential certificate by the respective State Government/Union Territory Administration, (8) Certified copy of the letter of Affiliation issued by a recognised University, and (9) Authorisation letter addressed to the Bankers of the Applicant authorising the Central Government/Dental Council of India to make independent enquiries regarding the financial track record of the applicant. 20. Thus under the Scheme framed by the Dental Council the State Government is involved at the very inception, by making the State Government's certificate an essential accompaniment to the application. That position no doubt can be easily altered by deleting the requirement for such a certificate in the Regulations. The Central Government and the Dental Council, as the Regulations now stand, seek to be guided by State Government/Union Territory's assessment of the desirability and feasibility of establishing the new institution at the proposed location. 21. The Dental Council has not prescribed any guidelines to guide the State Governments while considering the application for grant of Essentiality Certificate. The only guidance available in the Regulation, regarding suitability of the location is the requirement that it be 'in proximity' of a medical college or be within 10 kms from a General Hospital with atleast 100 beds, and with which it has a tie up. In the absence of any other guideline in the Regulations, the State/Union Territory has to choose for itself criteria which are consistent with the aims and objects as also provisions of the Dentists Act, Rules and Regulations made thereunder for determining the desirability and feasibility. The criteria chosen should be uniform, non arbitrary, should be relevant, and should be reasonable. 22. The certificate to be issued by the State is with regard to location - the desirability of establishing the institution at that location, and the feasibility thereof. The location chosen by the applicant may be found to be desirable but the establishment of the institution at that location may not be feasible, and vice versa. Desirability and feasibility should coincide in relation to the chosen location. 23. Though the term 'desirable' would appear to open itself to subjective considerations, a decision thereon cannot be left to the caprice and whim of the State Government. The desirability or otherwise should be based on objective criteria. It would be open to the State Government to prepare a perspective plan for it's own guidance for selecting locations for the proposed new colleges. Such a plan however cannot shut out consideration of the location proposed by an applicant, as the final decision to grant or not grant permission to establish the college is that of the Central Government. 24. The immediate surroundings of the proposed location such as the location being in an unhygenic slum, or being close to a dumping yard, or to a large quarry, or an open prison, or to factories or Distilleries, would be relevant for adjudging desirability. Information regarding the surrounding is more likely to be, and more easily available with the State Government. For ascertaining these factors the State Government should normally have the proposed location and it's surroundings inspected. 25. The feasibility would involve enquiry into such factors as the permissibility of the user of the land for putting up the dental college at that location. If the location chosen is Government land, the Government cannot be expected to permit a third party to trespass on to it's land and put up a dental college thereon. So also if the permissible user under the Zonal Regulations does not allow the use of the land at the proposed location for the purpose of putting up a dental college, it would be open to the State Government to decline to grant the certificate. If the applicant holds the land in excess of what is permissible in law and that excess is liable to be taken over by the State, and the proposed location is in such excess land, that is also a relevant factor while considering the feasibility. If the construction proposed, under the relevant building regulations, is not permissible by reason of non conformity with the Regulations relating to Flow Space Index, set backs, provision for fire escape, etc., it would be open to the State to decline to grant the certificate. 26. While considering the desirability and feasibility, it is certainly open to the State Government to consider the legality with reference to other applicable laws. 27. In this case, most of the reasons given by the State Government in the impugned order for rejecting the petitioner's request cannot be said to be relevant. The State is not required to decide as to whether the staff employed, the facilities to be provided etc., are in conformity with the Regulations. Those are matters for appraisal by the Dental Council and the Central Government. The distance between the proposed location and the Malar Hospital with which the proposed institution is to