CHAIRMAN, KUNHITHARUVAI MEMORIAL CHARITABLE TRUST Vs. SANJAY MITHRA

JUDGEMENT

(1.) Petitioner is the chairman of a Trust, which is running a medical college and a dental college among other institutions. Petitioner has approached this Court, challenging Ext.P1 order dtd. 10/3/2015 issued under the provisions of Clause 14(1) of the Kerala Professional Colleges or institutions (Prohibition of capitation fee, regulation of admission, fixation of non-exploitative fee and other measures to ensure equity and excellence in professional education) Act, 2006 (hereinafter referred to as 'the 2006 Act) whereby it has been directed that 50% seats in private medical and dental colleges shall be surrendered to the Government. The contents of Ext.P1 provide that several colleges had not entered into any consensual agreement with the Government for surrendering 50% of the seats to the Government. The dental college run by the petitioner as well as the medical college run by the petitioner had not entered in to consensual agreements and therefore, through Ext.P1 order, the Government withdrew certain facilities (mentioned in

(2.) Learned counsel appearing for the petitioner would submit that the provisions of the 2006 Act have no applicability to medical and dental colleges to medical and dental colleges, after coming into force of the Kerala Medical Education (Regulation and Control of Admission to Private Medical Educational Institutions) Act, 2017 (hereinafter referred to as 'the 2017 Act'). It is submitted that, in so far as admission to medical institutions are concerned, the provisions of the 2006 Act were replaced by the 2017 Act, which in Sec. 17 contained a provision enabling the Government to enter into agreements with one or more private medical educational institutions regarding fee or any such other matter. It is submitted that, by virtue of the provisions of Sec. 15 of the 2017 Act, all orders, notifications etc., issued under the provisions of the 2006 Act would be deemed to have been issued under the corresponding provisions of the 2017 Act and therefore, Ext.P1 can only be treated as an order under Sec. 17 of the 2017 Act, as on today. It is submitted that, in Kerala Self Financing Dental College Managements Consortium V. State of Kerala [2017 (4) KLT 809], the Division Bench clearly came to the conclusion that Sec. 17 of the 2017 Act was ultra vires, arbitrary and in conflict with binding precedents and thus in conflict with Articles 14 and 19(1)(g) of the Constitution of India. It is submitted that, Sec. 17 of 2017 Act has thereafter been repealed by the provisions contained in the Kerala Medical Education (Regulation and Control of Admission to Private Medical Educational Institutions) Amendment Act, 2019 which came into force on 28/6/2019. It is submitted that, in the light of the above, Exts.P1 and P2 are liable to be quashed.

(3.) Learned Government Pleader has referred to the provisions of the 2006 Act as also to the provisions of the 2017 Act to contend that Exts.P1 and P2 cannot be challenged as being illegal or unconstitutional as the Government did not force the colleges run by the petitioner-Trust to enter into agreements with the Government regarding seat sharing. It is submitted that, through Exts.P1 and P2, it was only informed that certain facilities which were hitherto offered to the private self financing medical colleges would be withdrawn. It is submitted that Ext.P2 directs the colleges to approach the Government to enter into consensual agreement before 31/7/2014, failing which appropriate action will be taken against them. However, the learned Government Pleader does not dispute the fact that Sec. 17 of the 2017 Act has been declared as ultra vires and unconstitutional by this Court in the judgment in Kerala Self Financing Dental College Managements Consortium (Supra). It is also not disputed before me that the Sec. 17 of 2017 Act has been repealed by the Amendment Act of 2019.