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Judgment
Protik Prakash Banerjee, J
Affidavit-in-opposition filed in Court be kept with the record.
In this writ petition the writ petitioners have challenged the decision of the respondent authorities not to extend the provisional permission given to the petitioners in respect of running of its Ayurvedic College and Hospital and at the interim stage the petitioners were aggrieved by not allowing the name of the petitioner no.1 to be uploaded in the website of the concerned council and board so that they could take students.
It appears that the provisional permission has not been extended on mainly two grounds.
"1. Area of Teaching Departments :- Required constructed area of Teaching departments is not available against the minimum requirement of 1000 sq.mt.
Constructed are of Hospital :- Total constructed are in store/Mortuary Block is 10 sq.mt. against the minimum requirement of 25 sq.mt.
(Infrastructure as per RMS is basic requirement to provide quality medical education to the students and essential for providing proper medical care to OPD & IPS patients.)"
The learned Advocates for the respective parties have all relied on the provisions of Requirements of Minimum Standard for under-graduate Ayurveda Colleges and attached Hospitals) Regulations 2016, more particularly Rules 5 and Schedule 1 to the said regulation as also Schedule 2. Though in both of these provisions there is given requirement for Stores/Mortuary of 25 sq.mt area in respect of an institution which has sit for 60 students for constructed area of 2000 sq.mt of the college and hospital. Mr. Bhattacharya has drawn my attention to the two notes to Schedule 1 which allow variation within plus or minus twenty per cent. Not only that Mr. Bhattacharya has also drawn my attention to the dimension of the available area to the different departments which would have been uploaded to the website of the second respondent as appears from page 100 of the writ petition. This clearly show that the department of store has 30 sq.mt area and store room for linen etc. has 25 sq.mt area and the Panchakarma has 10 sq.mt area which must be added to the admitted 10 sq.mts area for Mortuary as admitted in the reply to the notice of show cause at page 44 of the writ petition which is pointed out by the writ petitioners. Evidently the respondent authorities did not consider the required available area of 25 sq.mt area in respect of "Stores/Mortuary" and therefore if the area of the stores available on record was not merely equal to but more than 25 sq.mt then there was substantial compliance with this requirement. The only thing left therefore is the first requirement of their being 910 sq.mt of constructed area for teachers as against 1000 sq.mt which is required. This is a minor and trifling objection for which the future of the students and college ought not to suffer. Even this point does not survive for adjudication of the Court since in an affidavit-in-opposition affirmed by Dr. Younis I Munshi on August 5, 2019 at paragraph 11 the following has been admitted.
"It was observed that the area map submitted show availability of area of 133.50 sq.mtr. of Rachana Sharir departments in ground floor and 25.95 sq.mtr. in second floor i.e. total 159.45 sq.mtr. an area of 58.50 sq.mtr., for Swasthvritta and Yoga Department in first floor and 66.75 sq.mtr. in second floor i.e. total 125.25 sq.mtr. area of 44.36 sq.mtr. for the Panchkarma Department in the first floor and 66.75 sq.mtr. in the second floor i.e. total 111.11 sq.mtr. so the newly constructed area 159.45 sq.mtr and therefore the area for teaching departments now becomes 1069.48 sq.mtr."
Once it is admitted that taking the newly constructed area before hearing of the writ petition but after the inspection, the hearing committee itself was in seisin of the report that the area for teaching departments have become 1069.48 sq.mtr. which is more than the requirement, this could not be alleged. This reason also does not survive on the face of the materials on record including those brought on record by the respondents no.1 and 2. Accordingly the sufficiency of the reasons are no longer sustained by the materials on record. The impugned order is therefore based on materials which are contrary to the record, without application of mind to those materials on record and are therefore not only an exercise of jurisdiction which is vitiated by non-application of mind to the matters of record but is also perverse within the meaning of law. The impugned order therefore cannot be sustained and the same is quashed and in exercise of my power under mandamus I direct the respondent authorities to take an appropriate decision in the light of the above observation. Accordingly conditional permission is granted to the petitioners to admit students in BAMS course in the respondent no.1 for academic year 2019-2020 and the respondent no.1 is directed to cooperate with the college so that the process of counseling in the college can be completed by September 5, 2019 and the name of the college shall be considered for counseling.
It is needless to mention that my decision is based on the reasons given in the impugned order. If there is any other violation which has not been mentioned or which arose on a subsequent date after passing of this order, this shall not prevent the respondents from taking steps in accordance with law.
The writ petition is allowed to the above extent.
There shall be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be delivered to the learned Advocates for the parties, upon compliance of all formalities.