Holding

The High Court's interim mandatory order was unsustainable, violated natural justice and CPC Order XXXIX principles, and must be quashed.

Summary

Respondent Era Educational Trust applied to the Central Government for consent to establish a medical college, which was rejected after two inspections by the Medical Council of India. The Trust filed a writ petition under Article 226 of the Constitution, and the Allahabad High Court, without allowing a counter‑affidavit, granted an interim mandatory order staying the Government's rejection and directing the college to operate. The Union of India and the Medical Council of India appealed, contending that the High Court’s order violated the principles of natural justice and the procedural guidelines of CPC Order XXXIX. The Supreme Court held that the High Court’s interim relief was unsustainable, breached natural‑justice norms, and could not be granted without hearing the respondents. Consequently, the Court quashed the interim order, set it aside, and directed the Medical Council to inspect the college’s infrastructure within a month and to recommend permission to the Central Government only upon compliance with the Act.

Issues considered

Whether the High Court could grant an interim mandatory order without hearing the respondents and without a counter‑affidavit.
Whether such interim relief is permissible under Article 226 when the Central Government has rejected permission under the Medical Council Act, 1956.
Whether the principles of CPC Order XXXIX apply to the grant of interim relief in writ petitions.

Legislation cited

Code of Civil Procedure, 1908s. Order XXXIX
Constitution of Indias. Article 226, s. Article 227
Indian Medical Council Act, 1956s. 10A

Subjects

interim reliefnatural justiceArticle 226Medical Council Actmedical college establishmentCPC Order XXXIXmandamustemporary injunctionjudicial discretion

Judgment

UNION OF INDIA A
v.
ERA EDUCATIONAL TRUST AND ANR. ETC.

APRIL 5, 2000

[M. JAGANNADHA RAO AND M.B. SHAH, JJ.] B

Procedure Code, 1908-0rder XXXIX-lnterim relief-Grant of-Though
order 39 not applicable in granting interim relief in a writ petition, but the
principles laid down under the. order are required to be taken into considera-
tion-In cases of medical education-Normally the Court should not interfere C
at the interim stage, and even if interference is required in a case of
unsustainable order, the authority should be directed to reconsider the case.

Medical Council Act, 1956.
D
Constitution ofIndia: Articles 226 and 227-Interim order-Grant a/-
Without allowing the respondents to file counter affidavit whether justified-
Held, it not only violates the norms of grant of interim relief, but also violates
the principles of natural justice.

Interim mandatory 1"elief-To run medical college-Despite the fact that E
Central Government had rejected such permission-Held, not warranted.

Powers under-Are to be exetcisedfor rendering justice in accordance
with law.
F
Practice & Procedure-Interlocutory order-Interference wit~-Normally
not done-But when primafacie it appears that the order cannot be justified by
any judicial standard, the ends of justice and the rieed to maintain judicial
discipline require it to be done by indicating the reasons for such interference
without prejudice to the rights of one side or the otlzer.
G
\ Respondent No. 1 filed an.application to the Central Government
for consent to establish a Medical College, which was. rejected after con-

- sideration. The respondent filed a writ petition before High Court, against
the order of rejection. High Court on the date of admission of the case
itself granted interim mandatory order to run the medical college and H
1001
1002 SUPREME COURT REPORTS (2000] 2 S.C.R.
A stayed the order of the Central Government. Appeal was filed against the
interim order passed by the High Court.

Allowing the appeal, this Court

HELD : 1. Normally, this Court would hesitate to interfere with an
B interlocutory order, but in a case where primafacie it appears that the said
order cannot be justified by any judicial standard, the ends of justice and
the need to maintain judicial discipline requires the court to do so and to
indicate the reasons for such interference without prejudice to the rights
of one side or the other. (1003-F -G]

C 2.1. The extra-ordinary powers under Article 226 are to be exercised
for rendering justice in accordance with the law. Medical College cannot
be established with the previous sanction of the Central Government as
provided under the Indian Medical Council Act, 1956. By granting the
interim mandatory order, without allowing the respondents therein time
D to file counter affidavit, the High Court not only violated norms for grant
ofinterim relief, but has also violated the principles of natural justice and
has allowed the petition on the date of its admission. (1004-A·B]

2.2. It may not be that Order XXXIX of the C.P.C. would be applica·
ble at the stage of granting interim relief in a petition under Articles 226
E or 227 of the Constitution, but at the same time various principles laid
down under Order XXXIX for granting ad interim reliefs are required to
be taken into consideration. [1004~F -G]

Morgan Stanley Mutual Fund v. Kartick Das, [1994] 4 SCC 225, re-
- ..
ferred to.
F
2.3. Ngrmally Court should not interfere and even if interference is
required in a case of unsustainable order, the authority should be directed
to re-consider the case on the norms prescribed under the Act and/or the
-
rules. [1005-E]

G Shivaji University v. Bharti Vidyapeeth and Others, [1999] 3 SCC 224; ...
Civil Appeal Nos. 5045 and 5046 of 1998 in Medical Council of India New I
Delhi v. State of H.P. and Another, SC order dated 16.2.2000; Andhra

H
Pradesh Christian Medical Educational Society v. Government of Andhra
Pradesh and Another, (1986] 2 SCC 667 and Krishna Priya Ganguly and
Other v. University of Lucknow and Other, [1984] 1 SCC 307, referred to.
-
U.0.1. v. ERA EDUCATIONAL TRUST [SHAH, J.] 1003

2.4. It is apparent that even at the final stage the High Court nor· A
. ~....,,. mally could not have granted such a mandatory order. Unfortunately,
mystery has no place in judicial process. Hence, the impugned order can·
not be justified by any judicial standard and requires to be quashed and
set-aside. [1007A-B]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2517 of 2000 B
Etc.

From the Judgment and Order dated 11.10.99 of the Allahabad High
Court in C.W.P. No. 4387 of 1999.

Kirit N. Rawat, Additional Solicitor General, Kapil Sibal, K.K. Venugopal,
c
R. Venkataramani, Subodh Markandeya, P.S. Narasimhan, D.S. Mahra, Ms.
Kavita Wadia, Maninder Singh, Alok Gupta, Feroze Bano, C.A. Brijesh, Ms.
Sunita Sharma, Ms. Arona Mathur, Anurag D. Mathur, Y. Andhiyaru, Yashank
P. Adhyaru, A. Mariaruputham and Anurag D. Mathur for the appearing
parties. D
The Judgment of the Court was delivered by

SHAH, J. Leave granted.
.
Heard learned counsel for the parties exhaustively. E
These appeals are filed by the Union of India and the Medical Council
of India respectively. It is to be stated that Medical Council has not
recommended for grant of permission to establish medical college, yet
Medical Council was not joined as a party respondent in the petition before
the High Court. F

· Normally, this Comt would hesitate to interfere with an inter locutory
order, but in a case where prima f acie it appears that the said order cannot be
justified by any judicial standard, the ends of justice and the need to maintain
judicial discipline requires us to do so and to indicate the reasons for such
G
interference without prejudice to the rights of one side or the other.

It is unfortunate that the High Court of Allahabad (R.H. Zaidi and
Bhanwar Singh, JJ) exercised the extra-ordinary jurisdiction under Article 226
of the Constitution of India, in an extra.-ordinary manner by granting interim
mandatory relief to run Medical College, despite the fact that the Central H
1004 SUPREME COURT REPORTS [2000] 2 S.C.R.
A Government has rejected such permission, after obtainin!j recommendation
from the Medical Council twice. The extra-ordinary powers under Article 226
are to be exercised for rendering justice in accordance with law. Medical
College cannot be established except with the previous sanction of the Central
1 Government as provided under the Indian Medical Council Act, 1956 (102 of
1956) .. Unfortunately, by granting this interim mandatory order, without
B
allowing the respondents therein time to file counter affidavit, the Court not
only violated the norms for grant of interim relief, but has also violated the
principles of natural justice and has allowed the petition on the date of its
admission. It is apparent that on the day when the petition was presented, the
Court straightaway granted mandatory order permitting respondent No. l to
c establish the Medical College. Learned counsel who appeared on behalf of the
Union of India sought an adjournment for filing an affidavit in reply after
obtaining instructions from the concerned Department, but th€ same was
refused. This unusual relief was granted in a case where responde11t No. I filed
an application for consent of the Central Government to estabHsh the Medical
D College at Lucknow in January, 1997. That application was cdfuidered, re-
considered and the Medical Council had carried out the inspection twice and
finally on 04.6.1999 application was rejected by the Central Government. In
hot haste, in a case where there was no urgency, the High Court by the
impugned order dated 11.10.1999 directed that operation of the impugned
order dated 04.6.1999 passed by the Central Government shall be stayed and
E the State of U.P. was directed to allocate the students to the medical college
for the purpose of admission. As such, it is to be stated that by granting stay
of the order passed by the Central Government it is difficult to hold that that
would amount to a permission to establish the medical college.

F May be that Order XXXIX of the C.P.C. would not be applicable at the
stage of granting interim relief in a petition under Article 226 pr 227 of the
Constitution, but at the same time various principles laid down under Order
XXXIX for granting ad interim or interim reliefs are required to be taken into
consideration. In the case of Morgan Stanley Mutual Fund v. Kartick Das,
(1994] 4 SCC 225, after considering the various authorities this Court laid
G down the guiding principles in relation to grant of an ad interim injunction
which are as under:

"As a principle, ex parte injunction could be granted only under
exceptional circumstances. The factors which should weigh with the
H Court in the grant of ex pane injunction are:
U.0.1. v. ERA EDUCATIONAL TRUST [SHAH, J.] 1005
(a) whether irreparable or serious mischief will ensue to the A
"' plaintiff;

(b) whether the refusal of ex parte injunction would involve greater
injustice than the grant of it would involve;

(c) the court will also consider the time at which the plaintiff first B
had notice of the act complained so that the making of improper
order against a party in his absence is prevented;

(d) the court will consider whether the plaintiff had acquiesced for
sometime and in such circumstances it will not grant ex parte
injunction; c
(e) the court would expect a party applying for ex parte injunction
to show utmost good faith in making the application;

(t) even if granted, the ex parte injunction would be for a limited
period of time. D
(g) General principles like primafacie case, balance of convenience
and irreparable loss would also be considered by the court."

Apart from Order XXXIX even with regard to the Medical education,
there are various decisions of this Court laying down the principle that E
normally Cowt should not interfere and even if interference is required in a
case of unsustainable order, the authority should be directed to re-consider the
case on the norms prescribed under the Act and/or the Rules. In Shivaji
University V. Bharti Vidyapeeth and Others, (1999] 3 sec 224, after consid-
ering the order passed by the University, the Court directed the University to F
re-consider the question in the light of the observations made in the judgment.
In similar set of circumstances, in Civil Appeal Nos. 5045 and 5046 of 1998
in Medical Council of India, New Delhi v. State ofH.P. and Another, this Court
on 16.2.2000 observed that since the refusal was based on deficiences for
running a Medical College, it wot.ild have been appropriate for the High Court
to have remitted the matter to the Medical Council of India or the Union of G
India for reconsideration, even if it was of the opinion that the order of the

- Medical Council of India deserved to be set aside and the Court ought not to
have issued a writ of Mandamus directing grant of permission. Further, in
Andhra Pradesh Christian Medical Educational Society v. Government of
Andhra Pradesh and Another [1986] 2 sec 667, it was held that even in a H
1006 SUPREME COURT REPORTS [2000) 2 S.O.R.
A case where students were admitted in the Medical Colleges and who had
continued their studies for more than a year, this Court refused to recognise
such admission and observed:

"We regret that the students who have been admitted into the
college have not only lost the money which they must have spent to
B gain admission into the college, but have also lost one or two years
of precious time virtually jeopardising their future careers. But that
is a situation which they have brought upon themselves as they sought
and obtained admission in the college despite the warnings issued by
the University from time to time."
c The Court further observed:

"Any direction of the nature sought by Shri Venugopal would be
in clear transgression of the provisions of the University Act and the
regulations of the University. We cannot by our fiat direct the
University to disobey the statute to which it owes its existence and
D
the regulations made by the University itself. We cannot imagine
anything more destructive of the rule of law than a direction by the
court to disobey the laws."

Similarly in Kris/ma Priya Ganguly and Others v. University of Lucknow
E and Others, [1984) 1 SCC 307, for granting interim order, this Court cautioned
thus:-

" ..... that whenever a writ petition is filed provisional admission should
not be given as a matter of course on the petition being admitted
unless the court is fully satisfied that the petitioner has a cast-iron case
F which is bound to succeed or the error is so gross or apparent that
no other conclusion is possible"

The Court further observed:

"Unless the institutions can provide complete and full facilities for the
G training of each candidate who is admitted in the various disciplines,
the medical education will be incomplete and the universities would
be turning out doctors not fully qualified which would adversely
affect .the health of the people in general."

In the present case, this type of situation has arisen because of interim
H order passed by the High Court without taking into consideration various
U.0.1. v. ERA EDUCATIONAL TRUST [SHAH, J.] 1007

judgments rendered by this Court for exercise of jurisdiction under Article A
226. It is apparent that even at the final stage the High Court normally could
not have granted such a mandatory order. Unfortunately, mystery has no place
in judicial process. Hence, the impugned order cannot be justified by any
judicial standard and requires to be quashed and set-aside.

However, it appears that after passing of the impugiied order, respondent B
No. l has started the Medical College. At the time of admission and hearing
of these matters, on 6.3.2000, this Court passed the following order:

"The learned Additional Solicitor General of India submits that
the facts of these cases require a stay order to be passed today. On
the other hand, learned senior counsel appearing for the students C
submits that the matter may be taken up next Monday 13.3.2000 so
that they can file their counters. It is however, made clear that while
we are granting an adjournment today even if it is by one week this
order will not be treated as a refusal of granting stay. )be respond-
ents cannot claim any equity in their favour on account of the fact D
that stay was not granted today. Whenever the interlocutory appli-
cation is to be taken up, it will be disposed of on the basis of the
facts as existing today."

Hence, considering the fact that the respondent No. I has started the
college, students are admitted and that we are setting aside the impugned E
r
order passed by the High Court, but as a specific statement is made by
learned counsel for respondent No. I that all other infrastructure requirements
under the Regulations framed by the Medical Council are/or will be complied
with, and that 300 bedded hospital is likely to be ready within a period of
six months, we direct as under: -
F
(I) The Medical Council of India shall inspect within one month from
today whether other infrastructural requirements contemplated by the Regu-
lations are complied with ~y respondent No. I. If any deficiency is found, the
Medical Council would intimate respondent No. I and respondent No. l
would see that the deficiencies are removed;
G
(2) As soon as respondent No. I is in a position to complete the 300
bedded hospital, it would intimate the Medical Council and the Central
Government for carrying out inspection as required under the Regulations.
Thereafter within I5 days from the receipt of the said communication, the
Medical Council would carry out the necessary inspection and if there is H
1008 ·'1 SUPREME COURT REPORTS (2000] 2 S.C.R.
A compliance
.
with the·conditions prescribed by the Medical,. I~ouncil of India for
commencement of the Medical College, it would rec~end the Central
Government for grant of permission. If the recommen~ons are favourable,
within seven days from the receipt of such recolillli~'ndations, the Central
{·
Government would grant the necessary permission. The Medical Council
would carry out the inspection without waiting for the inspection fees which
B
could be recovered subsequently;

(3) In the event permission under Section IOA of the Medical Council
of India Act is granted by the Central Government, the students who have been
admitted to this College after t11e passing of the impugned order by the High
c Court, shall stand allotted to the first year MBBS Course of that college and
the 1st MBBS Course will commence therefrom;

(4) In the intervening period, if respondent No. I College wants to carry
on classes for teaching the students, it may do so but this will not give any
right to the students or the College to claim credit for the said period prior to
D the date on which permission under Section IOA is accorded;

(5) Students will not be entitled to appear in any examination until they
complete the prescribed minimum period of studies after the permission is
granted under Section IOA;

E (6) No further admissions will be allotted to the first batch of MBBS
course of respondent No.I Trnst except on vacancies arising from any of the
students now allotted or refusing to pursue their studies further;

(7) In the event of respondent No.1 failing to comply with the MCI
requirements including a 300 bed hospital and not being accorded the
F permission under Section IOA by the Central Government, this order will not
create any equities in favour of the lespondent-Trnst or those students who
have been admitted pursuant to the impugned order of the High Court.

With the aforesaid directions, appeals are allowed and the impugned
order dated 11.10.1999 in Civil Writ Petition No.4387 (MB) of 1999 passed
G
by the High Court of Allahabad is hereby quashed and set aside.

Ordered accordingly.

K.K.T. Appeals allowed.

.I