Holding

The proviso to Section 5(5) of the Medical University Act is repugnant to Section 10‑A of the Indian Medical Council Act, and the Central provision prevails, rendering the State requirement inoperative.

Summary

The Trust sought to establish a medical college in Salem and required affiliation from Dr. M.G.R. Medical University. The University and the State Government conditioned affiliation on prior State permission, which the Trust could not obtain. The Central Government, under Section 10‑A of the Indian Medical Council Act (as amended in 1993), granted a Letter of Intent but conditioned it on an essentiality certificate from the State. The State refused the certificate, citing its policy against private medical colleges. The Trust challenged the State provision, arguing that the proviso to Section 5(5) of the Medical University Act was repugnant to the Central Act and that, under Article 254(2), the Central law should prevail. The Supreme Court held that the State proviso was indeed repugnant, that the Central Act, enacted later, overrides the State provision despite Presidential assent, and that the essentiality certificate is not equivalent to prior State permission. Consequently, the Court directed the Central Government to consider the Trust’s application without insisting on the State certificate and set aside the High Court’s judgment.

Issues considered

The proviso to Section 5(5) of the Dr. M.G.R. Medical University Act requiring prior State permission is repugnant to Section 10‑A of the Indian Medical Council Act.
Whether Article 254(2) allows a State law, having received Presidential assent, to prevail over a later Central law on the same subject.
Whether the essentiality certificate required under the 1993 Regulations is the same as prior State permission and can be enforced.
Whether the Central Government’s permission under Section 10‑A suffices for affiliation without State permission.
Whether the State Government’s refusal to grant the essentiality certificate can be set aside.

Legislation cited

Constitution (Forty-second Amendment) Act, 1976
Constitution of Indias. Article 254(1), s. Article 254(2)
Indian Medical Council Act, 1956s. Section 10‑A

Subjects

repugnancyArticle 254central legislationstate legislationmedical college establishmentessentiality certificateIndian Medical Council ActDr. M.G.R. Medical University Actconstitutional laweducationnon‑obstante clauseaffiliation

Judgment

A THIRUMURUGA KIRUPANANDA VARIYAR THAVATHIRU
SUNDARA SWAMIGAL MEDICAL EDUCATIONAL AND
CHARITABLE TRUST
v.
STATE OF TAMIL NADU AND OTHERS

FEBRUARY 12, 1996

[S.C. AGRAWAL AND G.T. NANAVATI, JJ.] -
. Constitution of India, J950: Article 254(J) and proviso.
c Legislation on concun-ent subject-State and Central Acts-Repugnan-
cy between-Test to detennine-Central Act expressely or impliedly inteiided
to cover the entire field-State Act-Plior enactment-Assent of President
received-Held : Central Act would prevail over state Act-State Act to the
extent of repugnancy would be repealed. ·
D
Indian Medical Council Act, J956: Sect~on JOA.

New medical college-Establishment of-Prior pennission of Medical
Council-Mandatory-Proviso to Section 5(5) of Dr. M.G.R. MedM:al Univer-
sity, Tamil Nadu Act, J989 also providing affiliation of new medical college
E to University-Prior pennission of State Govemment-Mandato~eld :
Both provisions dealt with establishment of college-Section JOA covered the
entire field-Hence proviso to Section 5(5) of State Act r.epugnant to Section
JOA of Central Act-State Act-Assent of President received-Section
JOA ( J)-Central Act--Non-obstante clause-Gave overriding effect to Section
F JOA-Repealed proviso to Section 5(5) of State Act-Hence it would not
prevail in State-Accordingly, under proviso to Article 254(2) of the Constitu-
tion, Section JOA would prevail over proviso to Section 5(5) of State Act-Dr.
M.G.R. Medical University, Tamil Nadu Act, J989.

University :
G
Establishment of New Medical Colleges, Opening of Higher Courses of
Study and Increase of Admission CapaCity in .Medical Colleges Regulations,
J993:

Essentiality Certificate-Grant of-:l3y State Govemment--R.egarding
H desirability and feasibility of proposed medical college at proposed loca-
,.. 422
T.K.V.T.S.S. MEDICAL EDUCATIONAL AND CHARITABLE TRUSTv. STATE 423

tion--not same as obtaining for plior pemiission from State Govenunent A
under proviso to Section 5(5) of Dr. M.G.R. Medical University Tamil Nadu
Act, 1989-State Govemment could not refuse.

The appellant-Trust submitted an application to the University seek-
ing affiliation of a medical college which it wanted to start. The University,

- however, refused to entertain the said application of the Trust on the
ground that a no objection certificate should be obtained from the State
Government for starting a medical college and without the no objection
certificate the application could not be considered. The appellant filed a
B

writ petition in the High Court again the aforesaid order of the University.
The High Court directed the University to consider the application of the C
appellant-Trust on merits without insisting upon prior permission of the
State Government. Thereafter, the ap11ellant submitted an application to
the University for affiliation of the medical college. The University rejected
the application as it was received beyond the prescribed period. The
appellant filed another writ petition in the High Court challenging the D
aforesaid order. The High Court allowed the writ petition and directed the
University to re-consider the said application of the appellant-Trust on
merits.

In the meanwhile, the State Legislature had enacted Dr. M.G.R.
Medical University Tamil Nadu (Amendment and Validation) Act, 1989. It E
was prescribed by the said Act that no college would be affiliated to the
University unless permission of the State Government was obtained. In
the meantime, pursuant to the decision of the High Court the University
had conducted a joint inspection and rejected the application for affilia-
tion of the appellant-Trust on the ground that there were certain deficien- F
cies in the infrastructure that was made available for the medical college
by it. The appellant Trust filed a third writ petition in the High Court
against the aforesaid order. The said writ petition was allowed by Single
Judge of the High Court and the matter was remitted to the University for
reconsideration. The respondents filed writ appeal in the High Court
against the aforesaid Judgment. The appellant-Trust also filed an appeal G
against the said judgment of the High Court.

During the pendency of both these appeals the Indian Medical
Council (Amendment) Act, 1993 was enacted by Parliament which inserted
Section lOA in the Central Act section lOA prescribed that establishment H
424 SUPREME COURT REPORTS (1996] 2 S.C.R.

A of a new medical college can only be done with the previous sanction of the
Central Government. However, the High Court allowed the appeal of the
respondents .and dismissed the writ petition of the appellant-Trust. Ag-
grieved by the High Court's judgment the appellant-Trust preferred the
present appeal.

B When the petition of the appellant was placed before this Court that
appellant Trust was directed to submit an application before the Medical
Council, and to produce a letter of affiliation from the University. There-
upon this Court further directed the appellant to seek the permission of
the State Government for opening the medical college which it did. How-
C ever the State Government rejected the application of the appellant·Trust.
Thereafter, this Court directed the Medical Council to conduct inspection
of the medical college. In inspection report submitted by the Medical
Council it was stated that the appellant-Trust had sufficient infrastructure
to open the medical college. On the request of the appellant the University
also conducted an inspection of the college and took the view that the
D medical college was eligible for affiliation.

When the matter ag;:tin came up before this Court, the appellant-
Trust was directed to seek permission of the Central Government under
Section lOA of the Central Act to open the Medical College. The Central
Government granted permission and issued a letter of intent to open the
E
medical college. The said letter of intent was issued subject to the appellant
Trust obtaining from the State Government and essentiality certificate
regarding the desirability and feasibility of having the proposed medical
college at the!proposed location. This condition was imposed in view of the
E~tablishment of new Medical Colleges, opening of Higher Courses of
F Study and Increase of Admission Capacity in Medical Colleges Regula-
tions, 1993 made under Sec. lOA of the Central Act whereunder obtaining
of an Essentiality Certificate from the State Government was mandatory
before granting of permission by the Central Government to open a new
Medical College.
G
After receiving the said letter of intent the appellant-Trust submitted
a representation to the State Government for grant of essentiality eertifi-
cate/no objection certificate for the establishment of the medical c6llege.
However, the State Government rejectea the said application.

H On behalf of the appellant it was contended that the Central Act bad
T.K V.T.S.S. MEDICAL EDUCATIONAL AND CHARITABLE TRUSTv. STATE 425

been enacted in exercise of the power conferred by Entry 25 of List III of A
the Seventh Schedule to the Constitution and that proviso to Section 5(5)
of the Medical University Act, enacted by the State Act, was repugnant to
Section lOA of the Act, has fo be treated as void virtue of Article 254 of
the Constitution since the Central Act was enacted after the enactment of
the State Act.
.... On behalf of the respondents it was contended that since the State
B

Act had received the assent of the President, it would prevail over the
Central Act in view of Article 254(2) of the Constitution; that there was no
repugnancy between the proviso to Section 5(5) of the Medical University
Act and Section lOA of the Central Act because the requirement of both C
the provisions could be complied with; and that prior permission of the
State Government to open a new medical college was mandatory as framed
by the Regulations.

Allowing the appeal, this Court
D
HELD : 1.1. The test of two legislations containing contradictory
provisions is not the only criterion of repugnance. Repugnancy may arise
between two enactments even though obedience to each of them is possible
without disobeying the other if a competent legislature with a superior
efficacy expressly or impliedly evinced an intention to cover the whole field.
[441-G; 442-A]
E
Deep Chand v. The State of Uttar Pradesh & Ors., [1959] 2 Supp. SCR
8, State of 01issa v. M.A. Tulloch & Co., [1964] 4 SCR 461 and J.P.
Unnikrishnan & Ors. v. State of Andhra Pradesh & Ors., [1993] 1 SCC 645,
relied on.
F
G.P. Stewart v. B.K. Roy Chaudhary, AIR (1939) Cal. 628, approved.

1.2. Though Section 5(5) of Dr. M.G.R. Medical University Act, 1989
relates to affiliation of colleges the proviso inserted therein deals with the
establishment of a college and imposes a condition that for the purpose of G
affiliation of a college, permission of the State Government to establish the
college is necessary. The said proviso that has been inserted by the State

-- Act, in pith and substance is a provision relating to the establishment of a
college and merely because it is placed in a provision relating to affiliation
of colleges to the University the said proviso would not cease to be a
provision dealing with establishment of a college. However, in Section lOA H
426 SUPREME COURT REPORTS [1996] 2 S.C.R.

A of the Indian Medical Council Act, 1956 Parliament has made a complete
and exhaustive provision covering the entire filed for establishment of new
medical colleges in the country. No further scope is left for the operation
of the State legislation in the said field which is fully covered by the law
made by Parliament. The legislative entry which is relevant for the purpose
of the present case is Entry 25 of List III (as amended).
B [442-G-H; 443-A; 448-A-B; 438-D]
1.3. The proviso to sub-section (5) of Section 5 of the Medical Univer-
sity Act which was inserted by the Dr. M.G.R. University Tamil Nadu
(Amendment and Validation) Act, 1989 requiring prior permission of the
State Government for establishing a college is repugnant to Section lOA of
C the Central Act which prescribes the conditions for establishing a new
medical college in the country. The said repugance is, however, confine to
the field covered by Section lOA, viz., establishment of a new medical college
and would not extend to establishment of other colleges. [449-B-C]

2.1. The fact that the State Act has received the assent of the President
D would be of no avail because the repugnancy is with the Central Act which
was enacted by Parliament after the enactment of the State Act. In view of
the proviso to sub-Article (2) of Article 254 Parliament could add to, amend,
vary or repeal the State Act. In exercise of this power Parliament could
repeal the State Act either expressly or by implication. [449-D]
E
Zaverbhai Amaidas v. The State of Bombay, [1995] 1 SCR 799 and
Deep Chand v. State of U.P. & Ors., [1959] 2 Supp. SCR 8, relied on.

2.2. Though the Central Act does not expressly amend or repeal the
State Act, effect of the non-obstante clause in sub- section (1) of Section lOA
F which gives over-riding effect to the provisions of Section lOA over any-
thing contained in the Medical Council Act or any other law for the time
being in force, is to render inapplicable, and thereby repeal impliedly, the
proviso inserted in sub-section (5) of Section 5 of the Medical University
Act in the matter of establishment of a new medical college in the State and
G its affiliation by the Medical University and for the purpose of establishing
a medical college permission of the Central Government has to be obtained
in accordance with the provisions of Section lOA. If such a permission is
granted by the Central Government a further permission of the State
Government under the proviso to Section 5(5) of the Medical University
Act would not be required for the purpose of obtaining affiliation of such
H a college to the Medical University. [448-E-H; 449-A]
T.K.V.T.S.S. MEDICAL EDUCATIONAL AND CHARITABLE TRUSTv. STATE (S.C. AGRAWAL, J.) 427

3.1 It is no doubt true that in the scheme that has been prescribed A
under the Establishment of New Medical Colleges, Opening of Higher
Courses of Study and Increase of Admission Capacity in Medical College
Regulations, 1993 relating to establishment of new medical colleges, one of
the conditions for the qualifying criteria laid down is that essentiality
certificate regarding desirability and feasibility of having the proposed
college at the proposed location should be obtained from the State Govern-
B
ment. The said condition about obtaining an essentiality certificate and
feasibility of having the proposed college at the proposed location cannot
be equated with obtaining prior permission of the State Government for
establishing a new medical college as required under the qualifying criteria
prescribed under the scheme, the State Government is only required to C
consider the desirability and feasibility of having the proposed medical
college at the proposed location. [449-G-H; 450-A]

3.2. Since the appellant-Trust has already established the infrastruc-
ture for establishing a medical college and the reports of the inspection
conducted by the Medical Council as well as by the University indicate the D
facilities that are available are adequate for starting a medical college, it
would serve no useful purpose to insist upon obtaining an essentiality
certificate from the State Government regarding desirability and
feasibility of having the proposed medical college at the proposed location.
The matter of grant of permission for establishing a new medical college E
by the appellant-Trust should be considered by the Central Government
without insisting upon this condition. [450-G-H]

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3214-
3215 of 1996.
F
From the Judgment and Order dated 30.4.93 of the Madras High
Court in W.A. No. 301 and 387 of 1992.

K. Parasaran, Mohan Parasaran, V. Balaji, G. Umpathy and A.T.M.
Sampath for the Appellants.
G
G.L. Sanghi, Ms. A. Subhashini, L.R. Singh, Navin Prakash, AV.
Rangam and A. Ranganadhan for the Respondents.

The Judgment of the Court was delivered by

S.C. AGRAWAL, J. Special leave granted. H
/

\
428 SUPREME COURT REPORTS [1996] 2 S.C.R.

A These appeals by Thirumuruga Kirupananda Variyar Thavathiru
Sundara Swamigal Medical Educational and Charitable Trust (hereinafter
referred to as 'the Trust') relate to the establishment of a medical college
at Salem in the State of Tamil Nadu. The Trust has been formed for
establishing various educational institutions and for other charitable pur-
poses. It has established a Pharmacy College, a Dental College, a
B Homeopathy College, an Engineering College, a Polytechnic, an Industrial
Training Institute, etc. in the town of Salem. It is desirous of establishing
a medical college at Salem.

In 1987, the Tamil Nadu State Assembly enacted the Tamil Nadu
C Medical University Act, 1987 (Act No. 37of1987) which is now re-named
as Dr. M.G.R. Medical University Act (hereinafter referred to as 'the
Medical University Act') whereby Tamil Nadu Medical University, re-
named as Dr. M.G.R. Medical University, (hereinafter referred to as the
University') was established. Sub-section (5) of Section 5 of the Medical
D University act empowers the University to affiliate colleges to the Univer-
sity as affiliated colleges, within the University area under conditions
prescribed and withdraw such affiliation. On December 2, 1987, the Trust
submitted an application to the University seeking affiliation to the Univer-
sity a medical college which the Trust wanted to start. The University,
E however, refused to entertain the said application of the Trust on the
ground that a no objection certificate should be obtained from the Govern-
ment of Tamil Nadu (hereinafter referred to as 'the State Government')
for starting a medical college and without such a no objection certificate
the application could not be considered. The Trust filed a Writ Petition
(W.P~ No. 2776 of 1989) in the Madras High Court against the said order
F of the University refusing to entertain the application of the Trust for
affiliation of the proposed medical college to the University. On the said
Writ Petition, a learned single Judge (K. Venkataswamy J., as the learned
Judge then was) passed an order, on April, 13, 1989, with the consent of
the parties, wherein it was recorded that the University would not insist on
G the prior permission of the Government and that the Trust would apply
for affiliation in the prescribed form and the University would consider the
same on merits without insisting upon prior permission of the State
.Government and pass orders in accordance with law. Thereafter, the Trust
submitted an application for affiliation of the medical college on October
H 30, 1989. The said application was rejected by the University by order dated
T.K. V.T.S.S. MEDICAL EDUCATIONAL AND CHARITABLE TRUSTv. STATE jS.C. AGRAWAL, J.] 429
. _)

December 18, 1989 on the ground that the application ought to have been A
received on or before October 31, 1989 and it was received on November
7, 1989. The Trust filed another Writ Petition (W.P. No. 10453 of 1990) in
the Madras High Court against the said order of the University dated
December 18, 1989. The said Writ petition of the Trust was allowed by a
learned single Judge of the High Court (Somasundram J.) by order dated B
February 1, 1991 and the order date December 18, 1989 was set aside on
the ground that application for affiliation has been sent by post on October
30, 1989 and the requirement of statute 37 with regard to the period of
. limitation for submitting the application was complied with. The University
was directed to re-consider the said application of the Trust on merits. In
the meanwhile, the Tamil Nadu State Legislature had enacted Dr. M.G.R.
c
Medical University Tamil Nadu (Amendment and Validation) Act, 1989
(XXXII of 1990) (hereinafter referred to as 'the State Act') on July 6, 1990.
By the said Act, which was brought into force with effect from September
24, 1987, a proviso was inserted in sub-section (5) of Section 5 of the
Medical University Act whereby it was prescribed that "no college shall be D
affiliated to the University unless the permission of the Government to
establish such college has been obtained and the terms and conditions, if
any, of such permission have been complied with". Similarly, a proviso was
also inserted in sub-section (7) of Section 5 which prescribes that "no
institution shall be approved by the University unless the permission of the E
Government to establish such institution has been obtained and the terms
and conditions, if any, of such permission have been complied with".

After the decision of the High Court dated February l, 1991, the
University conducted a joint inspection and by order dated August 16, 1991 F
rejected that application for affiliation submitted by the Trust on the
ground that there were certain deficiencies in the infrastructure that was
made available for the medical college by the Trust. The Trust filed a third
Writ Petition (W.P. No. 13392 of 1991) challenging the said order of the
University dated August 16, 1991. The said Writ Petition was allowed by a G
learned single Judge (Bakthavatsalam J.) by judgment dated February 7,
1982 and the order dated August 16, 1991 was quashed and the matter was
remitted back to the University for reconsideration. The learned judge was
of the view that while rejecting the application for affiliation the University
had taken irrelevant and extraneous considerations into account. Feeling
aggrieved by the said judgment of the learned single Judge, the State of H
430 SUPREME COURT REPORTS [1996] 2 S.C.R.

A Tamil Nadu filed an appeal (W.A. No. 301 of 1992) before a Divi_sion
Bench of the High Court. The Trust also filed an appeal (W.A. No. 387 of
1992) against the said judgment of the learned single Judge.
'\....
During the pendency of both these appeals, the President of India
promulgated the Indian Medical Council (Amendment) Ordinance (Or-
B dinance No. 13 of 1992) on August 27, 1992. The said Ordinance was
subsequently replaced by the Indian Medical Council (Amendment) Act,
1993 (Central Act No. 31 of 1993) (hereinafter referred to as 'the Central
Act') which was brought into force with effect from August 27, 1992. By
the Central Act, Sections lOA, lOB and lOC were inserted in the Indian
C Medical Council Act, 1956. Section lOA deals with the establishment of a
new medical college or opening of a new or higher course of study or
training and prescribes that this can be done only with the previous
permission of the Central Government obtained in accordance with the
provisions of the said section.

D In view of the said amendments, the Central Government was im-
pleaded as a party in the Writ Appeals which were pending before the
Division Bench of the High Court. The stand of the Central Government
was that after the promulgation of Ordinance No. 13 of 1992, which was
later on replaced by the Central Act, the Central legislation has occupied
E the entire field and the State legislation must be treated to have been·
rendered inoperative and, as a result, the approval of the State Government
was no longer necessary for establishing a medical college as required
under proviso to sub-section (5) of Section 5 of the Medical University Act.

The Writ appeals filed by the State Government as well as by the
F Trust were disposed of by the High Court by the impugned judgment dated
April- 30, 1993 whereby Writ Appeal (W.A. No. 301 of 1992) filed by the
State Government was allowed and the Writ Appeal (W.A. No. 387 of
1992) filed by the Trust was dismissed. The High Court held that the
amendment introduced in clause (5) of Section 5 of the Medical University
G Act by the State Act was not, in any way, affected by the Central legislation
and' that even after insertion of Section lOA in the Indian Medical Council
Act, 1956 prior permission of the State Government was required for
establishing a medical college.

On July 18, 1993 when the special leave petitions filed by the Trust
H . were placed before this Court, the following order was passed:
T.K.V.T.S.S. MEDICALEDUCATIONALANDCHARITABLETRUSTv. STATE[S.C. AGRAWAL.J.\ 431
• ,!

"Issue notice on the Special leave Petitions; Prayer for interim A
relief is rejected.

Mr. P.R. Seetharaman, learned counsel, accepts notice on
behalf of the respondents. In the meantime, it will be open to the
. petitioner to approach the Central Government and Indian Medi-
cal Council for necessary permission which shall be considered in B
accordance with law.

Liberty to mention for an early hearing."

Thereupon, the Trust submitted an application before the Medical
Council of Indian (for short "Medical Council") But the Medical Council c
by its letter dated December 15, 1993 informed the Trust that in order to
enable the Medical Council to comply with the orders of this Court to
consider the application of the Trust in accordance with law, the Trust
should produce a letter of affiliation from the University. On January 21,
1994, this Court passed the following order : D
"In this case, having regard to the circumstance that the
petitioners has had to go to various authorities where sanctions
and permission are said to be necessary to obtain affiliation, it is
necessary for the petitioner to know from which authority, sequen-
tially, to commence with. E
We direct the petitioner to apply to the State Government for
the requisite permission. If the application in this behalf is filed
within three weeks from today, the State Government will dispose
of the same within four weeks thereafter. If the State Government
declined the permission, they shall state the reasons for doing so. F
The petitioner need not have recourse to another petition to
question the correctness of that decision. The order made by the
State Government shall be placed before this Court in these
proceedings.
G
Call this matter after six weeks."

In pursuance of the said directions given by this Court, the Trust
moved the State Government for grant of permission and also submitted
papers with regard to the acquisition of 150 acres of land by the Trust for
the medical college and making of endowment deposit of Rs. 50 lakhs and H
432 SUP.REME COURT REPORTS [1996] 2 S.C.R.
'.
':::...
A appointment of teaching staff, no:a-teaching staff, professors, lecturers, etc.
and purchase of equipment and providing other infrastructural facilities for
the college. By order dated March 9, 1994, the State Government rejected
the application of the Trust for the following reasons :

"(a) There are three Private Medical Colleges functioning in the
B Tamil Nadu for which permission was given by the Tamil Nadu
Government on 24.7.1985 and that after that date the Government
have not given permission to start private Self-financing Medical
Colleges even though several private Self-financing Private Or-
ganizationsffrust approached the government for permission. This
c was mainly due to the reason that the Government of India are
not in favour of starting new Medical Colleges either by the
Government or by private agencies as the present annual turnover
of Medical graduates every year is considered adequate to meet
the requirements of the country.

D (b) In February 1988, the Union Minister of Health and Family
Welfare, Government of India in his D.O. letter referred to the
recommendations of the Central Council of Health and Family
Welfare held in February 1988, that no Medical College should be
allowed to be opened in any part of the country or no additions
E to the existing admission capacity in the Medical College should
be permitted as the qualified Medical practitioners made available
from the existing medical colleges were sufficient for the near
future and that there has been reports of surplus of doctors all
over the world by 2000 AD.
F
(c) The Government have decided not to accept the request of the
petitioner Trust to recommend to Tamil Nadu Dr. M.G.R. Medical
University to permit it to start the medical college because of the
policy of the Government not to permit private organisationffrusts
to start self-financing Medical College in this Stage.
G
(d) In Tamil Nadu, there are 9 Government Medical Colleges and
Four Medical Colleges under private management besides one
University Medical College under Annamalai University, Chidam-
baram. The annual intake of students in the said colleges are 1477.
H The number of qualifying doctors seeking employment on the live
T.K. V.T.S.S. MEDICAL EDUCATIONAL AND CHARITABLETRUSTv. STATE[S.C. AGRAWAL,J.] 433

registers of Employment Exchange in the State as on 28.2.1994 are A
2412. For recruitment of Doctors for the post of Assistant Surgeon
in Tamil Nadu Medical Service for the 1992, for 378 vacancies,
4,631 candidates applied for appointment, taking into account of
these and other factors set out above, the Government consider
that the existing Medical College in Tamil Nadu are more than
B
sufficient and that there is no need for starting any more Medical
Colleges in the State."

On January 27, 1995. this Court passed the following order :

"Pending decision on merit in the SLP's, after hearing Mr. K. C
Parasaran, learned senior counsel for the petitioner, Mr. R.K. Jain,
learned senior counsel for the State of Tamil Nadu and Mr. Navin
Prakash, learned counsel for the Medical Council of India, it is
ordered:

On 15.2.1993, the Medical Council of India did write to the D
petitioner a letter of affiliation from the Dr. M.G.R. Medical
University. Since the petitioner had not mentioned in their letter
that they had applied to M.G.R. Medical University for obtaining
affiliation. If an expert body like that Medical Council of India
certifies that the petitioner establishment conforms to the require- E
ments of Medical Council of India, more than half the battle is
won. Therefore, we would first like to have the opinion of the
Medical Council of India. From this point of view, a direction shall
issue to Medical Council of India to keep aside the question of
affiliation from M.G.R. Medical University and the perrnission of
Tamil Nadu Government and consider whether the infrastructure F
provided by the petitioner's establishment (Medical College) con-
forms to its norms and submit a report to this Court. It is open to
the Medical Council of India to take the necessary inspection, if
it so desires. In so deciding regard shall be had to its letter dated
March 15, 1994, addressed to the Secretary to the petitioner's G
Trust.

The said report shall be submitted within six weeks from today.
List the matter after eight weeks."

Consequent to the said order passed by this Court on January 27, H
-I
).
434 SUPREME COURT REPORTS (1996) 2 S.C.R. (_

A 1995, the Medical Council conducted inspection of the college on March
8 and 9, 1995 to assess whether the infrastructure provided by the estab-
lishment (Medical College) conforms to the norms of the Medical Council.
The In~pectors in their report have stated that the Trust is having sufficient
infrastructure for accommodation, equipment and staff component in pre-
clinical departments for 100 students each year and have recommended
B that permission to start teaching may be granted. It appears that after the
said inspection by the Medical Council, the Trust also approached the
University for inspection of the institution and that on the basis of the said
request, the University also conducted an inspection and it is stated that
the report of the said inspection takes the view that the college is eligil;>le
c for being affiliated to the University as it has satisfied all norms laid down
by the University for being affiliated.

When the matter came before the Court, on August 30, 1995, the
learned counsel for the Trust submitted that since the Trust has not
D obtained the necessary permission under Section lOA of the Central Act,
the Trust would move for the said permission to the Central Government
within two weeks and this Court directed that in case such an application
was submitted, the Central Government shall consider the same in accord-
-
ance with law without insisting upon the requirement of affiliation of the
medical college with the University and shall pass order on the said
E application within two months after the filing of the application. In accord-
ance with the said order, the Trust submitted an application dated Septem~
ber 13, 1995 before the Central Government and after considering the said
application, the Government of India, Ministry of Health and Family
Welfare have sent a Letter of Intent dated December 12,1995 to the Trust
wherein it is stated :
F
"2. The scheme submitted by the .Secretary, Thirumuruga
Kirupananda Variyar Thavathiru Sundara Swamigal Medical
Educational & Charitable Trust, Salem was referred to the Medi-
cal Council of India on the 17th October, 1995 for its recommen-
G dations. The Council had already appointed inspectors on the
directiOns of the Hon'ble Supreme Court to inspect the infrastruc-
tural facilities available in the proposed medical college and the
inspection was done in March, 1995. The Council recommended
a Latter of intent may be given to the applicant to start a medical
H college for 100 admissions. (A copy of the Inspection Report is
T.K. V.T.S.S. MEDICAL EDUCATIONAL AND CHARITABLE TRUST" STATE(S.C. AGRAWAL_J.] 435

enclosed). A
3. After care consideration of the Scheme, inspection report,
directions of the Hon'ble Supreme Court of India and recommen-
dations of the Medical Council of India and factors mentioned in
section lOA of the Indian Medical Council Act, 1956, this Ministry
has come to the conclusion that a 'Letter of Intent' for starting a B
new medical College at Salem by Thirumuruga Kirupananda
Variyar Thavathiru Sundara Swamigal Medical Educational and
Charitable Trust, Salem may be issued. Hence this letter of Intent.

4. This letter of Intent is subject to the fulfillment of the following
conditions :
c
(i) As per the Medical Council of India Notification No. MCI-
34(41)/93-med.(N) dated 20.9.93, an essentiality certificate regard-
ing the desirability and feasibility of having the proposed medical
college at the proposed location is required to be obtained by the D
applicant from the State Government concerned. The applicant
submits that the question of State Government permission is pend-
ing before the Supreme Court of India. This requirement of the
State Government permission will be subject to the Supreme
Court's directions.
E
(ii) Two performance bank guarantees one for a sum of Rs. 150
lakhs (for 100 admissions) for the establishment of the medical
college and its infrastructural facilities and the second amount to
Rs. 550 lakhs (for 700 beds) for establishment of teaching hospital
and its infrastructural facilities as per Medical Council of India F
norms may be provided. ·

(iii) A time-bound four year project completion report may be
provided.

(iv) Consent of affiliation with a recognised university is not in- G
sisted upon in pursuance of the Hon'ble Supreme Court directions
dated 30.8.95.

(v) The deficiencies in Inspection Report may be rectified.

5. Action to issue the grant of permission for admission to MBBS H
436 SUPREME COURT REPORTS [1996) 2 S.C.R.

A course will be taken on receipt of a letter accepting the conditions
enumerated in para 4 above mentioned on verification of the latest
staff position and infrastructural facilities by the Medical Council
of India and after the bank guarantees are received in this Minis-
try."

B After receiving the letter dated December 12, 1995, the Trust sub-
mitted a reP.resentation dated January 6, 1996, before the State Govern-
ment for grant of essentiality certificate/no objection certificate for the
establishment of medical college at Salem. The said request of the Trust
has been rejected by letter dated January 10, 1996 sent by the Secretary,
C Health and Family Welfare Department, State of Tamil Nadu, wherein it
is stated :

"In your representation dated 6.1.96, you have required the
Government to grant Essentiality Certificate/No Objection Certifi-
cate to your Medical College at Salem. The Government have
D examined the request.

The Government have not changed the policy of not permitting j-
any private Trust or Management to start as Medical/Dental Col-
lege. I am therefore directed to state that the request to grant
Essentiality Certificate/No Objection Certificat~ to start a Medical
E College at Salem is rejected."

From the aforesaid narration of facts, it would appear that after the
insertion of Section lOA in the Central Act, the question regarding grant
of permission for establishing medical college by the Trust was considered-
F by the State Government twice during the pendency of these appeals. The
matter was first considered by the State Government on the basis of the
application submitted by the Trust in pursuance of the order dated January
21, 1994 passed by this Court and by their letter dated March 9, 1994; the
State Government refused to grant the permission. Thereafter, the matter
was considered by the Medical Council and the Central Government and
G on December 12, 1995, the Central Government issued a Letter of Intent
which requires the fulfillment of the conditions mentioned therein. One of
the conditions mentioned in the said Letter of Intent is obtaining an
essentiality certificate from the State Government regarding the desirability
and feasibility of having the proposed medical college at the proposed
H location. The matter was considered by the State Government for the
T.K.V.T.S.S. MEDICAL EDUCATIONAL AND CHARITABLE TRUSf v. SfATE [S.C. AGRA WAL, J.) 437

second time when a request was made by the Trust for issuing an essen- A
tiality certificate/no objection certificate as required by the Letter of Intent
dated December 12, 1995 of the Central Government. The said request was
rejected by the State Government by letter dated January 10, 1996. The
University has also conducted an inspection of the facilities available at the
college proposed to the established by the Trust and appears to be satisfied
B
about the college being eligible for being affiliated to the University.

Now the only impediment in the establishment of the medical college
by the Trust is the stand of the State Government that permission cannot
be given to a private trust to establish the medical college. This raises the
question : what is the role of the State Government in the matter of C
establishment of a medical college? The State Government assert its right
on the basis of the proviso to sub-section (5) of Section 5 of the Medical
University Act, inserted by the State Act, which prescribes that "no college
shall be affiliated to the University unless the permission of the Govern-
ment to establish such. college has been obtain and the terms and condi- D
tions for such permission have been complied with". The said claim is
disputed by the Trust on the ground that subsequent to the enactment of
the State Act, Parliament has enacted the Central Act whereby Section lOA
has been inserted in the Indian Medical Council Act, 1956 and said
provision deals with establishment of a new medical college or opening of
a new or higher course of study or training and prescribes that not- E
withstanding anything contained in the India Medical Council Act, 1956 or
any other law for the time being in force no person shall establish a medical
college except with the previous permission of the Central Government
obtained in accordance with the provisions of the said Section. According
to the Trust Section 10-A introduced by the Central Act would prevail over F
the proviso to Section 5(5) of the Medical University Act introduced by
the State Act. It is, therefore, necessary to consider whether and, if so, to
what extent the proviso to sub-section (5) of Section 5 of the Medical
University Act is applicable in the matter of establishment of medical
college in the State of Tamil Nadu. The answer to this question would
depend on the scope and ambit of the legislative power of Parliament and G
the State Legislature in this field relating to establishment of a medical
college, viz., education.

The legislative power in relation to 'education' was earlier distributed
in all the three legislative lists in the Seventh Schedule to the Constitution. H
I

~
(.

438 SUPREME COURT REPORTS [1996] 2 S.C.R.

A Parliament was conferred legislative power in respect of matters specified
in Entries 63, 64, 65 and 66 of the. List I (Union List) while the State
Legislatures were conferred the power in respect of matters specified in
Entry 11 of List II (State List) and Parliament and State Legislatures were
conferred concurrent power in respect of matters specified in Entry 25 of
List III (Concurrent List). By the Constitution (Forty Second Amendment)
B Act, 1976, Entry 11 of List II has been deleted and Entry 25 in List III
has been enlarge to cover matters which were earlier specified in Entry 11
of List II. In view of the said amendment, the legislative power in respect
of education is now conferred exclusively on Parliament in respect of
matters specified in Entries 63 to 66 of List I and concurrently on Parlia-
C ment and State Legislatures in respect of matters specified in Entry 25 of
List III.

The State Act has undoubtedly been enacted in exercise of the power
conferred by Entry 25 of List III. Shri Parasaran; the learned senior counsel
appearing for the Trust, has also made his submissions on the basis that
D the Central Act has been enacted in exercise of the power conferred by
Entry 25 of List III. Therefore, the legislative entry which is relevant for
the purpose of the presep.t case is Entry 25 of List III (as amended) which
reads as under :

E "25. Education, including technical education, medical educatio~
and universities, subject to the provisions of Entries 63, 64, 65 and
66 of List I; vocational and technical training of labour."

Since Parliament and State Legislatures are empowered to make laws
on the same subject the possibility of repugnancy between alaw made by
F Parliament and a law made by a State Legislature under the said legislative
entry cannot.be excluded. Article 254 of the Constitution makes provision
for dealing with such a situation. The said Article provides as under :

"254. Inconsistency between laws made by Parliament and laws made
by the Legislatures of States. -
G
(1) If any provision of a law made by the Legislature of a State
is repugnant to any provision of a law made by Parliament which
Parliament is competent to enact, or to any provision of an existing
law with respect to one of the matters enumerated in the Concur-
H rent List, then, subject to the provisions of clause (2), the law made
439

-
T.K.V.T.S.S. MEDICAL EDUCATIONAL AND CHARITABLE TRUSTv. STATE(S.C. AGRAWAL, J.]

by parliament, whether passed before or after the law made by the A
Legislature of such State, or, as the case may be, the existing law,
shall prevail and the law made by the Legislature of the State shall,
to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect
to one of the matters enumerated in the Concurrent List contains B
any provision repugnant to the provisions of an earlier law made
by Parliament or an existing law with respect to that matter, then,
the law so made by the Legislature of such State shall, if it has
been reserved for the consideration of the President and has
received his assent, prevail in that State : C

Provided that nothing. in this clause shall prevent Parliament
from enacting at any time any law with respect to the same matter
including a law adding to, amending, varying or repealing the law
so made by the Legislature of the State." D

Clause (1) of Article 254 gives overriding effect to the provisions of
a law made by Parliament which Parliament is competent to enact or to
any provision of any existing law in respect of one of the matters
enumerated in List III and if a law made by the Legislature of the State is
repugnant to the provisions of the law made by Parliament, the law made E
by the Legislature of the State is to be treated as void to the extent of
repugnancy. Clause (1) is, however, subject to clause (2). Under Clause
(2), the law made by the Legislature of a State with respect to one of the
matters enumerated in List III will prevail over the provisions of an earlier
law made by Parliament or an existing law with respect to that matter if F
the law made by the Legislature of the State has been reserved for
. consideration by the President and has received his assent. The proviso to
clause (2) curtails the ambit of clause (2) by providing that Parliament can
enact a law with respect to the same matter on which the State Legislature
has made the law and by such law the Parliament can add to, amend, very
or repeal the law made by the legislature of a State. The provision cor- G
responding to Article 254 was contained in Section 107 of the Government
of India Act, 1935. The only difference between that provision and Article
254 is that there was no provision similar to the proviso to clause (2) of
Article 254 in Section 107 of the Government of India Act, 1935. As a result
of the proviso in Article 254, the legislative power of Parliament has been H
A
440 SUPREME COURT REPORTS [1996] 2 S.C.R.

enlarged in the sense that it can add to, amend, vary or repeal the law made
by the Legislature of the State.
-
Shri Prasaran has urged that proviso to sub-section (5) of the Medi-
cal University Act, enacted by the State Act, is repugnant to Section lOA
of the Indian Medical Council Act, enacted by the Central Act, and has to
B be treated as void by virtue of Article 254 of the Constitution since the
Central Act was enacted after the enactment of the State Act. Shri G.L.
Sanghi, the learned senior counsel appearing for the State of Tamil Nadu,
has, however, submitted that since the State Act received the assent of the
President, it will prevail over the Central Act in view of clause (2) of Article
C 254 inasmuch as it has not been amended, varied or repealed by any
subsequent law made by Parliament. Shri Sanghi has also contended that
there is no repugancy between the proviso to Section 5(5) of the Medical
University.Act and Section lOA of the Indian Medical Council Act because
the requirement of both the provisions can be complied with for estab-
lishing a medical college.
D
We will first examine whether there is requgnancy between the
proviso to Section 5(5) of the Medical University Act inserted by the State
Act and Section lOA introduced in the Indian Medical Council Act, 1956
by the Central Act.
E
Explaining the meaning of repugnancy in the context of Section 107
of the Government of India Act, 1935, B.N. Rau J. has stated:

"It is sometimes said that two laws cannot be said to be properly
repugnant unless there is a direct conflict between them, as when
F one said "do" and the other "don't". There is not true repugnancy,
according this view, if it is possible to obey both the laws. For
reasons which we shall set forth presently, we think that this is too
narrow a test : there may well be cases of repugnancy where both
laws say "don't" but in different ways. For example, one law may
say, "No person shall sell liquor by retail,, that is, in quantities of
G less than five gallons at a time" and another law may say,"No person
shall sell liquor by retail, that is, in quantities of less than ten
gallons at a time". Here, it is obviously possible to obey both laws,
by obeying the more stringent of the two namely the second one;
yet it is equally obvious that the two laws are repugnant, for to the
H extent to which a citizen is compelled to obey one of them, the
T.K. V.T.S.S. MEDICAL EDUCATIONAL AND CHARITABLE TRUST v. STATE [S.C. AGRAWAL, J.] 441

other, though not actually disobeyed, is nullified." A
See : G.P. Stewmt v. B.K Roy Chaudhwy, AIR (1939) Cal. 628.

In Deep Chand v. The State of Uttar Pradesh & Ors., (1959) 2 Supp.
SCR 8, this Court, while dealing with Article 254 of the Constitution, has
held: B
"Repugnancy between two statutes may thus be ascertamed on the
basis of the following three principles :

(1) Whether there is direct conflict between the two provisions;
c
(2) Whether Parliament intended to lay down an exhaustive
code in respect of the subject matter replacing the Act .of the State
Legislature; and

(3) Whether the law made by Parliament and the law made by D
the State Legislature occupy the same field. (p. 43)

In State of 01issa v. MA. Tulloch & Co., [1964] 4 SCR 461, it has
been observed :

"Repugnancy arises when two enactments both within the com-
E
petence of the two legislatures collide and when the Constitution
·expressly or by necessary implication provides that the enactment
of one Legislature has superiority over the other then to the extent
of the repugnancy the one supersedes the other. But two enact-
ments may be repugnant to each other even though obedience to
each of them is possible without disobeying the other. The test of F

- two legislations containing contradictory provisions is not, how-
ever, the only criterion of repugnancy, for if a competent legislature
with a superior efficacy expressly or impliedly evince by its legis-
lation an intention to cover the whole field, the enactments of the
other legislature whether passed before or after would be over- G
borne on the ground of repugnance." (p. 477)

It cannot, therefore, be said that the test of two legislations contain-
ing contradictory provisions is the only criterion of repugnance. Repugnan-
cy may arises between two enactments even though obedience to each of
them is possible without disobeying the other if a competent legislature H
/

442 SUPREME COURT REPORTS [1996) 2 S.C.R.

A with a superior efficacy expressly or impliedly evinces by its legislation an
intention to cover the whole field. The contention of Shri Sanghi that there
is no repugnancy between the proviso to Section 5(5) of the Medical
University Act and Section lOA of the Indian Medical Council Act because
both can be complied with, cannot, therefore, be accepted. What has to be
seen is whether in enacting Section lOA of the Indian Medical Council Act,
B Parliament has evinced an intention to cover the whole field relating to
establishment of new medical colleges in the country.

Before we proceed to consider the ambit of the Central Act intro-
ducing Sections lOA, lOB and lOC in the Indian Medical Act, 1956, we
C may examine the field covered by the State Act which inserts the proviso
in Section 5(5) of the Medical University Act. Shri Sanghi has submitted
that the medical University Act deals with the establishment of the univer-
sity and recognition of medical colleges and the proviso which has been
inserted in sub-section (5) of Section 5 by the State Act is a provision
D relating to affiliation and recognition of medical colleges and this field is
.!'-
open for legislation by the State legislature. Shri Sanghi has placed reliance
on the observations of this Court in J.P. Unni Krishnan & Ors. v. State of
Andhra Pradesh & Ors., [1993] 1 SCC 645, that the right to establish an
educational institution does not carry with it the right to recognition or the
right to affiliation, as the case may be, and that it is open to the State or
E the University according affiliation and recognition to impose such condi-
tions as they think appropriate in the interest of fairness, merit, main-
tenance of standards of education and so on. It is no doubt true that
recognition or affiliation of an institution has to be distinguished from the
establishment of an institution. Sub-Section (5) of Section 5 of the Medical
F University Act deals with the power of the Medical University relating to
affiliation of colleges to the University and withdrawal of such affiliation.
. However, the proviso that has been introduced in sub-section (5) of Section
5 by the State Act imposes a condition that "no college shall be affiliated
to the University unless the permission of the Government to establish such
college has been obtained and the terms and conditions, if any, of such
G permission have been complied with". This would _show that though Section
5(5) of the Medical University Act relates to affiliation. of colleges the
proviso inserted therein deals with the establishment of a college and
imposes a condition that for the purpose of affiliation of a college permis-
sion of the State Government to establish the college is necessary. In other
H words, the said proviso that has been inserted by the State Act, in pith and
T.K.V.T.S.S. MEDICAL EDUCATIONAL AND CHARITABLE TRUSTv. STATE (S.C. AGRAWAL, J.] 443

substance, is a provision relating to the establishment of a college and A
merely because it is placed in a provision relating to affiliation of colleges
to the University the said proviso would not cease to be a provision dealing
with establishment of a college.

We may now come to Section lOA inserted in the Indian Medical
Council Act, 1956 by the Central Act which provides as follows : B

"10-A. Pemiission for establishment of new medical college new
course of study, etc. - (i) Notwithstanding anything contained in this
Act or any other law for the .time being in force.-

(a) no person shall establish a medical college; or
c
(b) no medical college shall -

(i) open a new or higher course of study or training (including
a post graduate course of study or training) which would enable a D
student of such course or training to qualify himself for the award
of any recognized medical qualification; or

(ii) increase its admission capacity in any course of study or
training (including a post graduate course of study or training).
E
Except with the previous permission of the Central Government
obtained in accordance with the provisions of this section.

Explanation 1. - For the purpose of this section, "person" includes
any University or a trust but does not include the Central Govern-
ment. F
Explanation 2. - For the purpose of this section, "admission
capacity'' in relation to any course of study or training (including
a post graduate course of study or training) in a medical college,
means the maximum number of students that may be fixed by the G
Council from time to time for being admitted to such course or
training.

(2) (a) (i) Every person or medical college shall, for the purpose
of obtaining permission under sub-section (1), submit to the
Central Government a scheme in accordance with the provisions H
/
'
1
444 SUPREME COURT REPORTS [1996] 2 S.C:R. \

A of clause (b) and the Central Government shall refer this scheme
to the Council for its recommendations.

(b) The scheme referred to in clause (a) shall be in such form
and contain such particulars and be preferred in such manner and
be accompanied with such-fee as may be prescribed.
B
(3) On receipt of a scheme by the Council under sub-section (2),
the Council may obtain such other particulars as may be con-
sidered necessary by it from the person or the medical college
concerned, and thereafter, it may :
c (a) if the scheme is defective and does not contain any neces-
sary particulars, give a reasonable opportunity to the person or
college concerned for making a written representation and it shall
be open to such person or medical college to rectify the defects,
- if any, specified by the Council;
D
(b) Consider the scheme, having regard to the factors referred
to in sub-section (7), and submit the scheme together with its
recommendations thereon to the Central Government.

(4) The Central Government may, after considering the scheme
E
and the recommendations of the Council under sub-section (3)
and after obtaining, where necessary, such other particulars as may
be considered necessary by it from the person or college con-
cerned, and having regard to the factors referred to in sub-section
(7), either approve (with such condition, if any, as it may consider
F necessary) or disapproved the scheme and any such approval shall
be a permission under sub-section (1) :

Provided that no scheme shall be disapproved by the Central
Government except after giving the person or college concerned
a reasonable opportunity of being heard :
G
Pr~vided further that nothing in this sub-section shall prevent
any person or medical college whose scheme has not been ap-
proved by the Central Government to submit a fresh scheme and
the provisions of this section shall apply to such scheme_ as if such
'H scheme has been submitted for the first time under sub-section (2).
T.KV.T.S.S. MEDICAL EDUCATIONAL AND CHARITABLE TRUSTv. STATE (S.C. AGRAWAL, J.] 445

(5) Where within a period of one year from the date of submission A
of the scheme of the Central Government under sub-Section (2)
no order passed by the Central Government has been communi-
cated to the person or college submitted the scheme such scheme
shall be deemed to have been approved by the Central Government
in the form in which it had been submitted and accordingly the
B
permission of the Central Government required under 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 college concerned submitting the
scheme in furnishing any particulars called for by the C0uncil or C
by the Central Government shall be excluded.

(7) The Council while making its recommendations under clause
(b) of sub-section (3) and the Central Government while passing
an order either approving or disapproving the scheme under sub-
section (4) shall have due regard to the following factors, namely; D
(a) Whether the proposed medical college or the existing
medical college seeking to open a new or higher course of study
or training would be in a position to offer the minimum standard
of medical education as prescribed by the Council under Section E
19A or as the case may be under Section 20 in the case of
post-graduate medication education;

(b) Whether the person seeking to establish medical college or
the existing medical college seeking to open a new or higher course
of study or training or to increase its admission capacity has F
adequate financial resources; ·

( c) Whether necessary facilities in respect of staff equipment
accommodation and other facilities to ensure proper functioning
to the medical college or conducting the new course of study or G
training or accommodating the increasea' 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 college or course H
446 SUPREME COURT REl'ORTS (1996) 2 S.C.R.
4.

A of study or training or as a result of the increased admission
capacity have been provided or would be provided with 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
B medical college or course of study or training by persons having
the recognized qualifications;

(t) the requirement of manpower in the field of practice of
medicine; and
c (g) any other factors as may be prescribed.

(8) Where the Central Government passes an order either approv-
ing or disapproving a scheme under this Section a copy of the
order shall be communicated to the person or college concerned."
D
According to the Statement of Objects and Reasons appended to the
Bill, the object underlying the enactment of Section lOA is to curb the
mushroom growth of medical colleges in the country. In the Statement of
Objects and Reasons it is stated :
E "............ it had been noticed that some State Governments were
giving approval for the opening of new medical colleges on their
own, without insisting on the provision of basic pre-requisites of
hospital, equipment, laboratories or qualified faculty members etc.
in certain cases, after the college gave admission to students they
F began exercising combined pressure on the governni.ent for grant
of approval to the medical colleges by the Medical Council of
India.

In order to curb such mushroom growth of medical colleges, the
President promulgated an Ordinance on the 27th August, 1992 to
G amend the Indian Medical Council Act, 1956 by incorporating
therein provisions for prior permission of the Central Government
for establishing any new medical college and for starting any new
or higher course of study in an existing medical college or increas-
ing admissions capacity in any course of study of training including
H post-graduate course of study.
T.K.V.T.S.S. MEDICAL EDUCATIONAL AND CHARITABLE TRUST v. STATE [S.C. AGRAWAL, J.] 447
>
The Bill seeks to replace the aforesaid Ordinance." A

Section lOA seeking to achieve this object by prescribing in sub-
section (1) that no person shall establish a medical college except with the
previous permission of the Central Government obtained in accordance
with the provisions of said section. Similar permission is required for B
obtaining a new or higher course of study or training or for increase in the
admission capacity in any course of study or training in a medical college.
Sub-section (2) of Section lOA requires that every person or medical
college shall, for the purpose of obtaining permission under sub-section
(1), submit to the Central Government a scheme in the prescribed form
and the said scheme is to be referred to the Medical Council for its
c
recommendations. Under sub-section (3), the scheme is required to be
considered by the Medical Council having regard to the factors referred
to in sub-section (7) and Medical Council submits the scheme together with
its recommendations thereon to the Central Government. Sub-section (4)
empowers the Central Government, after considering the scheme and the D
recommendations of the Medical Council and after obtaining, where neces-
sary, such other particulars as may be considered necessary by it from the
person or college concerned, and having regard to the factors referred to
in sub-section (7), to either approve, with such condition, if any as it may
consider necessary, or disapprove the scheme and any such approval shall E
·be a permission under sub-section (1). Under sub-section (5) the scheme
shall be deemed to have been approved by the Central Government in the
form in which it had been submitted and the permission of the Central
Government required under sub-Section (1) shall be deemed to have been
granted where no order passed by the Central Government has been
F
communicated to the person or college within one year from the date of
submission of the scheme to the Central Government under sub-section
(2). The factors that are required to be taken into consideration by the
Medical Council and the Central Government under sub-section (7) in-
clude the capacity to offer the minimum standard of medical education as
prescribed by the Central Government, adequacy of financial resources, G
/ necessary facilities in respect of staff equipment accommodation training
and other facilities to ensure proper functioning to the medical college,
adequate hospital facilities, arrangement programme to impart proper
training to students and the requirement of manpower in the filed of
practice of medicine. H
v
1
448 SUPREME COURT REPORTS [1996) 2 S.C.R. '\

A It would thus appear that in Section lOA Parliament has made a
complete and exhaustive provision covering the entire field for establishing
of new medical colleges in the country. No further scope is left for the
operation of the State legislation in the said field which is fully covered by
the law made by Parliament. Applying the tests laid down by this Court, it
must be held that the proviso to sub-section (5) of Section 5 of the Medical
B
University Act which was inserted by the State Act requiring prior permis-
sion of th~ State Government for establishing a college are repugnant to
Section lOA inserted in the Indian Medical Council Act, 1956 by the
Central Act which prescribes the conditions for establishing a new medical
college in the country. The said repugnancy is, however, confined to the
C field covered by Section 10-A, viz., establishment of a new medical college
and would not extend to establishment of other colleges.

The fact that the State Act has received the assent of the President
would be of no avail because the repugnancy is with the Central Act which
D was enacted by Parliament after the enactment of the State Act. In view of
the proviso to sub-Article (2) of Article 254 Parliament could add to,
amend, vary or repeal the State Act. In exercise of this power Parliament
could repeal the State Act either expressly or by the implication. (See :
Zaverbhai Amaidas v. The State of Bombay, [1995) 1 SCR 799, 809, Deep
Chand v. State of U.P., (supra) at p. 51). Although the Central does not
E expressly amend or repeal the State Act but the effect of the non-obstante
clause in sub-section (1) of Section lOA which gives overriding effect to
the provisions of Section lOA over anything contained in the Indian Medi-
cal Council Act, 1956 or any other law for the time being in force, is to
render inapplicable, and thereby repeal impliedly, the proviso inserted in
p sub-section (5) of Section 5 of the Medical University Act in the matter of
establishment of a new medical college in the State of Tamil Nadu and its
affiliation by the Medical University. In other words, as a result of insertion
of Section lOA in the Indian Medical Council Act, 1956 by the Central Act,
with effect from August 27, 1992, the proviso to Section 5(5) of the Medical
University Act has ceased to apply in the matter of establishment of a
G medical college in the State of Tamil Nadu and its affiliation to the Medical
University and for the purpose of establishing a medical college permission
of the Central Government has to be obtained in accordance with the
provisions of Section lOA. If such a permission is granted by the Central
Government a further permission of the State Government under the
H proviso to Section 5(5) of the Medical University Act would not be
/

T.K. V.T.S.S. MEDICAL EDUCATIONAL AND CHARITABLE TRUST v. STATE [S.C. AGRAWAL, J.) 449

required for the purpose of obtaining affiliation of such a college to the A
Medical University.

After the enactment of Section lOA by the Central Government the
Medical Council, by notification dated September 20, 1993, has made the
'Establishment of new Medical Colleges, opening of higher courses of study
and increase of admission capacity in Medical Colleges Regulations, 1993'
B
(hereinafter referred to as 'the Regulations') whereby a scheme for ap-
plication for permission of the Central Government to establish a new
medical college has been made. In the said scheme qualifying criteria for
applying for permission to establish a new medical college have been laid
down. One of the conditions that is required to be fulfilled by the eligible c
organisations is "that Essentiality Certificate regarding the desirability and
feasibility of having the proposed medical college at the proposed location
has been obtained and that the adequate clinical material is available as
per Medical Council of India requirements has been obtained by the
applicant from the respective State Government or the Union Territory D
Administration". Shri Sanghi has urged that even if the proviso to Section
5(5) of the Medical University Act is held to be inapplicable in the matter
of establishing a new medical college and the requirement of obtaining the
prior permission of the State Government for establishment of a medical
college cannot be insisted upon under the said proviso, a similar require-
ment has now been imposed by virtue of the qualifying criteria laid down . E
in the Scheme as framed by the Regulations and that this was also insisted
upon by the Central Government in its Letter of Intent dated December
12, 1995. The submission of Shri Sanghi is that the State of Tamil Nadu
has considered the matter in the light of this requirement and has refused
the necessary permission. F
It is no doubt true that in the scheme that has been prescribed under
the Regulations relating to establishment of new medical colleges one of
the conditions for the qualifying criteria laid down is that essentiality
certificate regarding desirability and feasibility of having the,. proposed G
college at the proposed location should be obtained from the State
Government. The said condition about obtaining an essentiality certificate
from the State Government regarding desirability and feasibility of having
the proposed college at the proposed location cannot be equated with
obtaining prior permission of the State Government for establishing a new
medical college as required under the proviso to Section 5(5) of the H
/
\
450 SUPREME COURT REPORTS [1996] 2 S.C.R.

A Medical University Act. For the purpose of granting the essentiality cer-
tificate as required under the qualifying criteria prescribed under the
scheme, the State Government is only required to consider the desirability
and feasibility of having the proposed medical college at the proposed
location. The essentiality certificate cannot be withheld by the State
Government on any policy consideration because the policy in the matter
B of establishment of a new medical college now rests with the Central

,
Government alone.

As indicated earlier, the Trust did approach the State of Tamil Nadu
for grant of essentiality certificate in terms of Letter of Intent dated
C December 12, 1995 issued by the Government of India, but the State
Government has refused to issue the said certificate by its order dated
January 10, 1996. The only reason which has been given by the State
Government for such refusal is that "the Government have not changed the
policy of not permitting any private Trust of Management to start a
D Medical/ Dental College". This would show that instead of considering the
matter of grant of essentiality certificate on the basis of desirability and
feasibility of having the proposed medical college at the proposed location,
State Government has refused to grant the essentiality certificate on the
basis of its earlier policy of not permitting any private Trust or Manage-
ment to start a Medical/Dental College in the State. The State Government
E could not be refuse essentiality certification on such a policy consideration.
The refusal on the part of the State Government to grant th~ essentiality
certificate in respect of the medical college proposed to be established by
the Trust cannot, therefore, be upheld.

F The question that arises is whether the State Government should
again be directed to consider the matter of grant of essentiality certificate.
On a careful consideration of the matter, we are of the opinion that since
the Trust has already established the infrastructural for establishing a
medical college and the reports of the inspection conducted by the Medical
G Council as well as by the University indicate that the facilities that are
available are adequate for starting a medical college, it would serve no
useful purpose to insist upon 9btaining an essentiality certificate from the
State Government regarding desirability and feasibility of having the
proposed medical college at the proposed location. We are, therefore, of
the view that the matter of grant of permission for establishing a new
H medical college by the Trust should be considered by the Central Govern-
T.K.V.T.S.S. MEDICALEDUCATIONALAND CHARITABLE TRUSTv. STATE[S.C. AGRAWAl..,J.] 451

ment without insisting upon the condition regarding obtaining an essen- A
tiality certificate from the State Government regarding desirability and
feasibility of having the proposed medical college at the proposed loca-
tion.

The appeals are, therefore, allowed, the impugned judgment of the
High Court is set aside and the Central Government is directed to consider B
the application submitted by the Trust for grant of Rermission to establish
a new medical college in accordance with the provisions of Section lOA of
the Indian Medical Council Act, 1956 without insisting upon the Trust to
comply with condition regarding obtaining essentiality certificate from the
State Government. The Central Government shall consider and pass an C
order in this regard within a period of one month. In the event of permis-
sion being granted by the Central Government for the establishment of the
medical college by the Trust the Medical University shall consider the
application of the Trust for affiliation of the said medical college to the
Medical University without insisting upon the requirement of obtaining
prior permission of the State Government for establishing the medical D
college. The appeals are disposed of accordingly. No orders as to costs.

v.s.s. Appeal allowed.