1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 967 OF 2009 Diamond Education Society's Shri. Chhaganrao Bhujbal Aurvedic Medical College, Darga Raod, Mastgad, Jalna Through its Chairman Dr. Panditrao S. Dhanure, Age 49 yrs., Occu. Doctor, R/o. Jalana, Tq. & Dist. Jalna. ....Petitioner. Versus 1. The State of Maharashtra Through its Secretary, Medical Education and Drugs Department, Mantralaya, Mumbai-32. 2. Maharashtra University of Health Sciences, Gangapur Road, Nashik, through its Registrar. 3. Central Council of Indian Medicine, Institutional Area, Janakpuri, New Delhi, through its Secretary. 4. Union of India, Through Director, Ministry of Health and Family Welfare Department of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy, Indian Red Corrss Society Annexure Building, 1-Red Cross Road, New Delhi - 110 001. ....Respondents. 2 Shri. V.D. Hon, Advocate h/f. Shri. A.B. Girase, Advocate for appellant. Shri. S.K. Kadam, A.G.P. for respondent No. 1/State. Shri. K.D. Bade-Patil, Advocate for respondent No. 2. Shri. Alok Sharma, Assistant Solicitor General for respondent Nos. 3 & 4. CORAM : P.V. HARDAS, & R.K. DESHPANDE, JJ. [Date of reserving the Judgment 16th of June 2009 Date of pronouncement of Judgment 17th of August 2009] ORAL JUDGMENT : [ Per R.K. DESHPANDE, J.] 1. Heard the respective counsel for the parties. Rule. Rule made returnable forthwith by consent of parties. 2. This petition challenges order dated 23rd of September 2008 at Exh. J to the petition passed by the respondent No. 4, the Ministry of Health and Family Welfare, Department of Ayurved Yoga and Naturopathy, Unani Sidha and Homeopathy, Government of India, New Delhi, informing the petitioner that after careful consideration of the case under the provisions of the section 13A of the Indian Medicine Central Council Act, 1970 (hereinafter referred to as "IMCC Act") and the relevant regulations made thereunder, it has been decided that the approval of the Central Government cannot be given to the Diamond Education Society, Jalana, Maharashtra, to start the proposed Shri. 3 Chaganrao Bhujbal Ayurvedic College at Jalana in view of the reasons explained in para 8 (i) to (vii). 3. The facts leading to the case are as under :- The petitioner is a public trust duly registered under the Bombay Public Trusts Act, 1950 and also a society registered under the Indian Registration Act, 1860. The petitioner society is established, with an aim and object to provide better medical education, more particularly, in Ayurvedic stream in the locality of Jalana and is desirous to start Ayurvedic College under the name and style as "Shri. Chaganrao Bhujbal Ayurvedic Medical College at Jalana". 4. The respondent No. 2, is the Maharashtra University of Health Sciences, Nasik which published it's perspective plan for the year 2001-2006, for establishment of Ayurvedic College in the State of Maharashtra. In the said perspective plan, two Ayurvedic Colleges are to be opened in the Marathawada region, with intake capacity of 50 students. In response to the said plan, the petitioner society being interested to open Ayurvedic College at Jalana, submitted its proposal to the respondent No. 1 Maharashtra Government and deposited an amount of Rs.50,000/- towards processing fee. On 15th of September 2001, the State Government granted its no objection to the petitioner society to start Ayurvedic Medical College at Jalna, which is at Exh. A to the petition. Upon obtaining such no objection certificate, the petitioner 4 applied to the respondent No. 2 University for grant of provisional affiliation and deposited an amount of Rs.2,50,000/- on 30.8.2005. The Management Council of the respondent University vide its resolution No. 13 of 2006, passed in the meeting held on 20.1.2006, decided to grant the petitioner, the consent of provisional affiliation certificate for the proposed "Shri. Chaganrao Bhujbal Auryvedic College at Jalana". This was communicated to the petitioner by the respondent No. 2 University, under its covering letter dated 25.1.2006. The petitioner approached the State Government, for issuance of no objection certificate. In response to the said application, the State Government granted its no objection certificate dated 26th of June 2006, in the prescribed format, for establishment of an Ayurvedic College with intake capacity of 50 students to B.A.M.S. Course. It was made clear by the State Government that in case the applicant fails to create infrastructure for the Ayurvedic College as per the Central Council to Indian Medicine norms and fresh admissions are stopped by the Central Government, the State Government shall take over the responsibility of the students already admitted in the college with the permission of the State Government. 5. The respondent No. 4, the Government of India, Ministry of Health and Family Welfare, issued a letter of intent dated 12.10.2006 in favour of petitioner on the basis of the recommendations and visitation report of the CCIM to start new "Shri. Chaganrao Bhujbal Auryvedic College at Jalna" with intake capacity of 50 seats in B.A.M.S. Course, 5 subject to fulfillment of certain shortcomings stipulated in the letter of intent. Such shortcomings were serialized as (i) to (ix) in the said letter. The petitioner was asked to submit the compliance report, alongwith the documentary proof regarding the fulfillment of shortcomings. 6. Surprisingly, the respondent No. 4 the Government of India, Ministry of Health and Family Welfare vide its communication dated 13/16 April 2007 informed the petitioner that after consideration of visitation reports and recommendations of CCIM as well as Central Visitation Team, it has been noticed that the petitioner society is not fulfilling the requisite norms and criteria, in terms of the relevant provisions of IMCC Act, 1970 and the CCIM Regulations and norms. Hence, by this letter, it was informed that the application for permission to start new Ayurwedic College is disapproved and the letter of intent issued on 12.10.2006 to the petitioner society, is also withdrawn. The petitioner made its representation on 24.4.2007 against this communication, pointing out that the deficiencies have been removed, however, without giving chance of hearing to the Management, a decision has been taken and therefore, request was made to restore the letter of intent dated 12.10.2006. 7. It seems that after hearing the petitioner an order was passed on 23rd of September 2008 which is at Exh. J to the petition, informing the petitioner that for the reasons given in para 8 (i) (vii) of the said order, it 6 has been decided that the approval of the Central Government cannot be given to the petitioner society to start the proposed "Shri. Chaganrao Bhujbal Ayurvedic Medical College at Jalana". The reasons given in para 8 (i) to (vii) in the impugned order are reproduced below :- "8. WHEREAS, the shortcomings and deficiencies, pointed out by the Central Team during its inspection carried out on 26.05.2008, along with the photographs as documentary proof, are as under :- (i) There was an old building in the name of Laxmi Hospital under Diamond Education Society, Jalna with few rooms having dim lights, vacant beds, vacant chairs and tables. (ii) Another two storeyed building under construction, which was three kilometres away from the old building, was shown by the President of the Society of the Central Team. The building was located on a grazing yard and the non-agricultural land certificate was not produced by the society. The approach road for the site was very rough and not fit for a sick person. (iii) The plan sanctioned by the Gram Panchayat did not match the plan of the building under construction which was submitted with the application. The plastering, flooring, electrification, plumbing etc. was yet to be started. None of the rooms had doors and windows. Only makeshift arrangements were done to cover some windows by screen. (iv) The 20 beds were kept in a hall but no doctor, 7 no staff nurse and no para-medical staff was present there. In another hall 2 OPD clerks, 4 staff nurses without uniform and a medical officer were introduced as the hospital staff. Some patients were in the male and female wards but there were no case sheet and no history of the patients. There was no provision of food and water for the patients. (v) The attendance register, OPD register, medicine register and other hospital records could not be produced at the time of the inspection. (vi) There was no operation theatre, labour room, Panchakarma Section and herbal garden. (vii) On the first floor some anatomical models were shown. The library was not maintained properly." Being aggrieved by the aforesaid order the petitioner has filed the instant writ petition. 8. The notice in the instant writ petition was issued, in response to which, an affidavit in reply was filed by the respondent no. 4. It is the stand of the respondent No. 4 that the Central Inspection Team observed that college did not fulfill the eligibility criteria for application under section 13A of the IMCC Act, 1970 and the Regulations thereunder and the college and the hospital were situated in three different plots at a considerable distance from each other. It has further been stated that the Central Inspection Team also observed that the infrastructure, management capability of the applicant and the work progress etc. were 8 not satisfactory and the management has merely made a temporary arrangement, purely for the purpose of displaying it to the Inspection Team. It was observed, that there was no fully functional 100 bed hospital, as required by the Regulations. It is stated that in terms of the order passed by this Court on 8th of July 2008, full opportunity was given to the petitioner society, of hearing in the matter and thereafter, an order has been passed. It is stated that the impugned order does not prevent the petitioner society to apply fresh to start new college for the academic year 2009-10. 9. We have heard the learned counsel for the respective parties. Shri. V.D. Hon, appearing for the petitioner, placed before us a statement of itemwise compliance of the defects pointed by the CCIM. The learned counsel contended that the petitioner has submitted a detailed representation pointing out that the so called defects or shortcomings were removed or non existent. However, the same has not been considered by the respondent No. 4 in its proper perspective. It is contended that in the order impugned,there is no reference to the compliance submitted by the petitioner and the order merely reproduces the shortcomings and deficiencies. Therefore, according to the learned counsel for the petitioner, there is no application of mind to the points of removal of the deficiencies submitted by the petitioner. At any rate, the learned counsel contends that no reasons are recorded to reject the application of the petitioner. 9 10. We have gone through the order passed by the respondent no. 4 which is impugned in the present petition and have also seen the affidavit filed by the respondent No. 4. Although, in the impugned order shortcomings are pointed out at Sr.No. (i) to (vii), the affidavit points out only two deficiencies :- (i) That, the petitioner society did not possess fully functional 100 beds hospital and also did not have proper infrastructure. (ii) That, the college and hospital were situated in three different plots and at a considerable distance from each other. In support of the compliance in respect of both these deficiencies pointed in the affidavit as also in the order impugned, the petitioner had furnished its explanation earlier. 11. In order to consider the contention raised by the learned counsel for the appellant that there are no reasons recorded while passing the impugned order rejecting the claim of the petitioner, the relevant provisions of section 13A of the IMCC Act, 1970 need to be looked in to and the same are reproduced below :- "13A. Permission for establishment of new medical Institution, new course of study, etc.- (1)......... (2) Every person or medical institution shall, for the purposes of obtaining permission 10 under sub-section (1), submit to the Central Government a scheme in accordance with the provisions of sub-section (3) and the Central Government shall refer the scheme to the Central Council for its recommendations. (3) .............. (4) On receipt of a scheme from the Central Government under sub-section (2), the Central Council may obtain such other particulars as may be considered necessary by it from the person or medical institution concerned, and thereafter, it may ,- (a) if the scheme is defective and does not contain necessary particulars, give a reasonable opportunity to the person or medical institution concerned for making a written representation and it shall be open to such person or medical institution to rectify the defects, if any, specified by the Central Council; (b) consider the scheme, having regard to the factors referred to in sub-section (8) and submit it to the Central Government together with its recommendations thereon within a period not exceeding six months from the date of receipt of the reference from the Central Government. (5) The Central Government may, after considering the scheme and recommendation of the Central Council under sub-section (4) and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person or institution concerned and having regard to the factors referred to in sub-section (8), either 11 approve the scheme with such conditions, if any, as it may consider necessary or disapprove the scheme and any such approval shall constitute as a permission under sub-section (1) : Provided that no scheme shall be disapproved by the Central Government except after giving the person or medical institution concerned a reasonable opportunity of being heard : Provided further that nothing in this sub- section shall prevent any person or medical institution whose scheme has 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 scheme had been submitted for the first time under sub-section (2). (6) .................... (7) ................... (8) The Central Council while making its recommendations under clause (b) of sub-section (4) and the Central Government while passing an order, either approving or disapproving the scheme under sub-section (5), shall have due regard to the following factors, namely :- (a) Whether the proposed medical institution or the existing medical institution seeking to open an new or higher course of study or training, would be in a position to offer the minimum standards of medical education as prescribed by the Central Council under section 22 : (b) whether the person seeking to establish a medical institution or the existing medical institution seeking to open a new or higher course of 12 study or training or to increase its admission capacity has adequate financial resources; (c) whether necessary facilities in respect of staff, equipment, accommodation, training, hospital or other facilities to ensure proper functioning of the medical institution or conducting the new course of study or training or accommodation, the increased admission capacity have been provided or would be provided within the time-limit specified in the scheme : (d) whether adequate hospital facilities, having regard to the number of students likely to attend such medical institution or course of study or training or 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 institution or the course of study or training by persons having recognised medical qualification; (f) the requirement of manpower in the field of practice of Indian medicine in the institution; (g) any other factors as may be prescribed. (9) Where the Central Government passes an order either approving or disapproving a scheme under this section, a copy of the order shall be communicated to the person or medical institution concerned. " 13 The impugned order dated 23rd of September 2008 has been passed, under section 13A reproduced above, by the Central Government, informing the petitioner that the approval of the Central Government cannot be given to the Diamond Education Society, Maharashtra to start the proposed "Shri. Chaganrao Bhujbal Aurvedic Medical College at Jalna", in view of the reasons explained in para (8) (i) (vii) of the order impugned which is reproduced above. While passing an order under section 13A, the Central Government has to take in to consideration the scheme and recommendations of the Central Council under section 8 and after obtaining such other particulars as may be considered necessary by it from the person or institution concerned, has to have regard to the factors referred to in sub-section (8). Sub-section (8) enumerates the factors to which the Central Government need to have regard. The order of approval or disapproval needs to be communicated to the person or the medical institution concerned as per provision of sub-section (9). Before passing any such order, the proviso to sub-section (5) mandates that no scheme shall be disapproved by the Central Government, except after giving the person or the medical institution concerned, a reasonable opportunity of being heard. 12. Thus, what is contemplated, is passing of an order by the Central Government, after taking in to consideration, the recommendations of the Central Council, made under sub-section (4) and after calling such other information as is felt necessary, even from the petitioner or the 14 institution concerned, having due regard to the items specified in sub- section (8). The order has to be passed after giving reasonable opportunity of being heard to the person or the institution concerned. Thus, the role of the Central Government as contemplated by sub- section (5) of the section 13A above, assumes a character of quasi- judicial authority. The order passed, therefore, necessarily need to be supported by the reasons, which must find place in the order itself, as a part of fair play, reasonableness and natural justice. 13. The Apex Court in its recent decision in the case of Union of India and others V. Jai Prakash Singh and another, reported in (2007) 10 SCC 712 has dealt with the question of necessity of recording of reasons and para 7 of the judgment which is relevant for the purpose of present case, is reproduced below :- "[7."11. Reasons introduce clearity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court's judgment not sustainable. 12. Even in respect of administrative order Lord Denning, M.R. in Breen V. Amalgamated Engg. Union observed : (All ER p.1154h) 'The giving of reasons is one of the fundamentals of good administration." In Alexander Machinery (Dudley) 15 Ltd. v. Crabtree, it was observed : 'Failure to give reasons amounts to denial of justice. Reasons are live links between the minds of the decision-taker to the controversy in question and the decision or conclusion arrived at.' Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx', it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The 'inscrutable face of a sphinx' is ordinarily incongruous with a judicial or quasi-judicial performance."]" Although the order passed under sub-section (5) of section 13A is not subject to appeal by any statutory authority under the Act, the same is amendable to the writ jurisdiction of this Court under Article 226 of the Constitution of India. Right to reason is an indispensable part of a sound judicial system. Reasons, indicate an application of mind to the matter before the authority as has been observed by the Apex Court. Another reason which is emphasized by the Apex Court is that, the 16 affected party can know why the decision has gone against him. The reasons provide live links between the minds of decision maker to the controversy in question or the decision or the conclusion arrived at. The reasons substitute the subjectivity by objectivity. The Apex Court has held that the emphasis on recording of reasons is that if the decision reveals "inscrutable face of the sphinx", it can, by its silence render it virtually impossible for the Courts to perform their appellate function or exercise of power of judicial review in adjudging the validity of the decision. The Apex Court in its another decision reported in (2002) 10 SCC 86 in case of Imamsaheb Kasimsaheb Gadkari and others Vs. Jaibunbi and others, has held that the reasons are the flesh and blood of the judicial adjudication and such reasons must be shown in the orders which are liable to be challenged in the Superior Courts. 14. The learned Single Judge of this Court in its decision reported in 2009 Vol. 111 (1) Bom. L. R. 0113 in case of Kum. Nirmala Tikana Giripo Vs. State of Maharashtra and others, has held that the basic rule of law and natural justice require recording of reasons in support of the order as the reasons provide the live link between the conclusion and evidence. It was a case where the Minister in revision petition set aside the allotment of ration shop in favour of the petitioner and directed allotment in favour of respondent No. 4 in the said judgment. It was held that no reasons are available on record as to on what basis the Hon'ble Minister has come to the conclusion that the respondent No. 4 17 fulfills all conditions, whereas more than three shortcomings in her application were pointed out by the Deputy Controller of Rationing and accepted by the Controller of Rationing based on the material available on record. It was held that it was expected on the part of respondent No. 3, the Hon'ble Minister to deal with each and every shortcoming pointed out by the authorities below, while rejecting the claim of the respondent No. 4, so that this Court could examine the validity of the reasons recorded. 15. In the instant case, apart from mere reproduction of so called defects specified in para 8(i) to (vii), the respondent Central Government has not given any independent reasons showing its application of mind to the compliance of defects or deficiencies pointed out by the petitioner. The petitioner had placed on record the voluminous material to indicate the compliance. However, the shortcomings which are narrated in para 8 of the order have not at all been discussed, as to how they have not been removed or have not been fulfilled or complied with by the petitioner. In view of this, the order impugned becomes unreasonable, arbitrary and is liable to be quashed and set aside on this very short ground. 16. In view of above, the instant writ petition succeeds. The order dated 23rd of September 2008 at annexure J to the petition, passed by the respondent No. 4, is hereby quashed and set aside. The matter is 18 again sent back to the respondent No. 4 for considering it afresh in accordance with law, within a period of eight weeks from the date of communication of this order, after giving a reasonable opportunity of being heard to the petitioner. The petitioner to communicate this order to the Respondent No. 4 and obtain a date of hearing. The respondent No. 4 shall communicate its decision to the petitioner. The petition is allowed in above terms. There shall be no order as to costs. Rule is made absolute in the above