Disposed

V.N.Public Health and Education Trust v. State of Kerala

Kerala HC3 Nov 2020WA/1413/2020

Case brief

AI extract

What is this about?

This judgment modifies a lower court order to address a writ appeal regarding the establishment of a medical college. The High Court adjusted the academic year consideration from 2022-23 to 2021-22, directing respondents to expedite scrutiny and inspection procedures within specified timelines.

What did the court decide?

Writ appeals disposed of after modifying the impugned judgment to consider the academic year 2021-2022 and directing authorities to complete scrutiny and inspection by 23.11.2020.

V.N.Public Health and Education Trust Vs State of Kerala — Company and Corporate | Kerala HC (2020)

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W. A. Nos. 1401 & 1413 of 2020 -1-

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 03RD DAY OF NOVEMBER 2020 / 12TH KARTHIKA, 1942

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WA.No.1401 OF 2020

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AGAINST THE JUDGMENT DATED 12.10.2020 IN WP(C) 27266/2019(G)AND ORDER DATED 20.10.2020 IN R.P. 773 OF 2020 IN WP(C) 27266/2019(G OF HIGH COURT OF KERALA

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APPELLANT/S:

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V.N. PUBLIC HEALTH AND EDUCATIONAL TRUST,

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A2 JAWAHAR NAGAR COLONY, SALES TAX OFFICE ROAD, KOZHIKODE, REPRESENTED BY THE MANAGING TRUSTEE V. ANIL KUMAR.

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BY ADVS.

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SRI.S.VINOD BHAT KUM.ANAGHA LAKSHMY RAMAN

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RESPONDENT/S:

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1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 MEDICAL COUNCIL OF INDIA, DWARAKA, NEW DELHI-110077, REPRESENTED BY ITS SECRETARY.

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3 UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF HEALTH AND FAMILY WELFARE, NIRMAN BHAVAN, NEAR UDYOG BHAVAN METRO STATION, MOULANA AZAD ROAD, NEW DELHI-110011.

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4 NATIONAL MEDICAL COMMISSION, DWARAKA, NEW DELHI-110077, REPRESENTED BY ITS CHAIRMAN.

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W. A. Nos. 1401 & 1413 of 2020 -2-

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R1 BY SRI. TEKCHAND, SENIOR GP R3 AND R4 BY SRI. TITUS MANI VETTOM, SC R2 BY SRI. P. SREEKUMAR, SC.

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.11.2020, ALONG WITH WA.1413/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W. A. Nos. 1401 & 1413 of 2020 -3-

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 03RD DAY OF NOVEMBER 2020 / 12TH KARTHIKA, 1942

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WA.No.1413 OF 2020

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AGAINST THE JUDGMENT DATED 12.10.2020 IN WP(C) 29098/2019(J) AND ORDER DATED 20.10.2020 IN R.P. NO. 777 OF 2020 IN WP(C) 29098/2019(J) OF HIGH COURT OF KERALA

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APPELLANT/S:

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V.N.PUBLIC HEALTH AND EDUCATION TRUST

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N.25, JAWAHAR MAIN ROAD, N.R.T. NAGAR, THENI, TAMILNADU-625531. REP.BY ITS AUTHORISED SIGNATORY V.ANILKUMAR

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BY ADVS. SRI.P.SANJAY SMT.A.PARVATHI MENON SRI.BIJU MEENATTOOR SRI.PAUL VARGHESE (PALLATH) SRI.P.A.MOHAMMED ASLAM SRI.KIRAN NARAYANAN SHRI.PRASOON SUNNY SHRI.RAHUL RAJ P.

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RESPONDENT/S:

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1 STATE OF KERALA REP.BY SECRETARY TO THE GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001

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2 THE KERALA UNIVERSITY OF HEALTH AND ALLIED SCIENCES (KUHAS) REP.BY THE REGISTRAR, MEDICAL COLLEGE P.O., THRISSUR-680 596

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3 THE MEDICAL COUNCIL OF INDIA REP.BY ITS SECRETARY, POCKET-14, SECTOR-8, DWARAKA, PHASE-1, NEW DELHI- 110077

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W. A. Nos. 1401 & 1413 of 2020 -4-

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4 NATIONAL MEDICAL COMMISSION REP.BY ITS SECRETARY, POCKET - 14, SECTOR-8, DWARAKA, PHASE-1, NEW DELHI-110077

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R1 BY SRI. TEKCHAND, SR. GP R2 BY SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH SCIENCES R3 AND R4 BY ADV. SRI. TITUS MANI VETTOM

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.11.2020, ALONG WITH WA.1401/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W. A. Nos. 1401 & 1413 of 2020 -5-

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J U D G M E N T

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Dated this the 3^rd day of November, 2020

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S. Manikumar, C. J.

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Instant writ appeals are filed challenging the common judgment in W. P. (C) Nos. 27266 and 29098 of 2019 dated 12.10.2020, by

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which the learned Single Judge issued the following directions:

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“(1) W.P.(C) No. 27266/2019 is allowed to the extent of setting aside Ext.P6.

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(2) W.P.(C) Nos. 29098/2019 and 34275/2019 are dismissed.

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(3) In the event of petitioner submitting application for EC for the year 2022-'23 for starting Medical College, the 1^st respondent-State of Kerala in W.P.(C) No.27266/2019 shall consider the said application on merits taking into consideration the findings and observations made hereinabove, and pass orders thereon within a period of one month from the date of receipt of the application.

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(4) If the petitioner makes a request to the 2^nd respondentUniversity in W.P.(C) No.29098/2019 for issuance of Consent of Affiliation, the 2^nd respondent shall permit the of Consent of Affiliation, the 2^nd respondent shall permit the petitioner to make formal application by opening its portal for a period of five days

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W. A. Nos. 1401 & 1413 of 2020 -6-

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with intimation to the petitioner, without insisting upon EC from the 1^st respondent and shall take a decision thereon within three months.”

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W. P. (C) No. 27266 of 2019 was filed seeking the following reliefs:-

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“i. To issue a writ of certiorari quashing Ext.P6 order of the 1^st respondent;

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ii. To issue a writ of mandamus or such other writ directing the 1^st respondent to issue/ renew the Essentiality Certificate of the petitioner;

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iii. To declare that the policy of the 1^st respondent not to allow setting up of new medical colleges in the State as arbitrary and unconstitutional;

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iv. To issue a writ of mandamus or such other writ directing the 2^nd respondent to proceed with the application of the petitioner, subject to the grant of Essentiality Certificate by the 1^st respondent.

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Assailing the correctness of the impugned judgment, W. A.

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No. 1401 of 2020 has been filed contending inter alia that though Ext. P6 was set aside, appellant is aggrieved, inasmuch as the learned Single Judge has directed fresh consideration of the application for Essentiality Certificate by the Government for the academic year

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W. A. Nos. 1401 & 1413 of 2020 -7-

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2022-23 and directed to be done within one month of the petitioner therein preferring a fresh application thus rendering the appellant remediless, for two intervening academic years.

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In the appeal, it is also contended that it is evident from Ext. R2(C) that the last date for issuance of Letter of Permission ('LOP') for academic session 2020-21 is 15.10.2020 and that the impugned judgment is dated 12.10.2020. Thus a contention has been made that the learned Single Judge was not correct in holding in paragraph 32 of the judgment, that the time schedule prescribed for starting medical college for the year 2020-21 is already over and that it was also erroneous to say that no relief can be granted to the petitioner / appellant “at this stage”.

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The appellant cannot be made to suffer any loss on account

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of the State Government, respondent No.1, in not considering the application for grant of Essentiality Certificate. It is the further contention of the appellant that when Ext. P6 is quashed, it is axiomatic that the appellant's application for 2020-21 has been considered by the respondents.

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W. A. Nos. 1401 & 1413 of 2020 -8-

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W. P. (C) No. 29098 of 2019 has been filed seeking for the following reliefs:-

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“i. Issue a Writ of certiorari and quash Ext.P7;

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ii. Issue a writ of Mandamus directing the 2^nd respondent to forthwith grant Consent of Affiliation valid for application for establishing medical college for the academic year 2020-2021;

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iii. Issue a Writ of Mandamus directing the 3^rd respondent to accept the documents being produced by petitioner pursuant to Ext.P-10 communication within such time frame that may be fixed by this Hon'ble court.”

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Aggrieved by the judgment impugned, W. A. No. 1413 of

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2020 has been filed contending inter alia that the learned Single Judge ought to have found that the appellant has approached this Court for issuance of Consent of Affiliation for the year 2020-2021. The application of the appellant for establishment of a Medical College is still pending with the Central Government and the Medical Council of India, presently reconstituted as the National Medical Commission.

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Though the contentions of the appellant were accepted,

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W. A. Nos. 1401 & 1413 of 2020 -9-

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while disposing of the matter, a learned Single Judge has mentioned the year as 2022-2023 instead of 2020-2021. There is no logical reasoning set forth, for doing so. Appellant could not get sanction in the past years because of no fault of the appellant, but due to various circumstances that led to the rejection of the application. Appellant has already suffered loss of several years because of the attitude of statutory authorities in granting permission. The vague manner in which the consent of affiliation was issued by the University has already caused serious prejudice and injury to the appellant. It is only due to the said reason that the application for getting permission of the Central government got rejected. Appellant has further contended that circumstances, therefore, warrant essentiality and consent of affiliation to be renewed, so that appellant can produce the same in its application for letter of permission from the Union Government. It is also contended that appellant has already approached the 2^nd respondent personally and representations were made and when the same did not bring any desired result that appellant had approached this Court.

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Heard the learned counsel for the parties and perused the pleadings and materials on record.

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W. A. Nos. 1401 & 1413 of 2020 -10-

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Consideration of the application submitted to MCI for establishment of a Medical College for the academic year 2020-21 cannot be made, as the period is already over. However, on account of the extension of time granted by MCI for grant of establishment of Medical Colleges for the academic year 2021-22 to 30.11.2020, on 30.10.2020, we passed an interim order directing Mr. Surin George Ipe, learned Senior Government Pleader and Mr. P. Sreekumar, learned Standing Counsel for the Kerala University of Health & Allied Sciences (KUHAS), to get instructions on the aspect of Consent of Affiliation and Essentiality Certificate, respectively.

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Reverting, Mr. Surin George Ipe, learned Senior

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Government Pleader submitted that on prima facie scrutiny of the application submitted for grant of Essentiality Certificate for establishment of Medical College, it was noticed that the application does not satisfy certain requirements, in particular, a declaration to be submitted by the college that the building and other infrastructure are located in non-agricultural land and that no agricultural activities are carried on in the said land. He further submitted that for considering the Essentiality Certificate, the proposed college has to submit the

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W. A. Nos. 1401 & 1413 of 2020 -11-

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building completion certificate. Mr. Surin George Ipe, learned Senior Government Pleader further submitted that as per the regulations for grant of Essentiality Certificate, inspection of the college may also be required.

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Mr. S. Vinod Bhat, learned counsel for the appellant in W. A. No. 1401 of 2020 submitted that prima facie deficiencies noticed

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by the Government will be rectified and that the above said documents would be furnished to the Government.

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Mr. P. Sreekumar, learned Standing Counsel for the Kerala University of Health & Allied Sciences (KUHAS) submitted that application for grant of affiliation has to be submitted through online mode and though the online portal has been opened, so far application has not been submitted.

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Rebutting the above, Mr. P. Sanjay, learned counsel for the appellant in W. A. No. 1413 of 2020 submitted that the application could not be submitted due to some technical problems and that ID and password for uploading the online application were not given till 31.10.2020. Learned counsel for the appellant further submitted that hard copy of the application for grant of affiliation has already been

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W. A. Nos. 1401 & 1413 of 2020 -12-

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submitted. However, Mr. P. Sreekumar, learned Standing Counsel for the University submitted that there would be some difficulty in scrutinizing the hard copy.

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Be that as it may, Mr. P. Sreekumar, learned Standing Counsel for the University submitted that if an application is submitted through online by tomorrow, the same would be received and scrutinized. Mr. P. Sanjay, learned counsel for the appellant in W. A. No. 1413 of 2020 submitted that application through online will be submitted and that apart, all the documents which are required for verification will also be submitted in hard copy.

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Having regard to the submission of Mr. Surin George Ipe, learned Senior Government Pleader and taking note of the last date i.e. 30.11.2020 fixed by MCI for entertaining an application for establishment of new Medical Colleges for the academic year 2021-

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22, we permit the appellant in Writ Appeal No. 1401 of 2020 to submit the documents stated supra to the Government, as expeditiously as possible.

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Government is also directed to scrutinize the application, cause inspection of the proposed Medical College, if required and

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W. A. Nos. 1401 & 1413 of 2020 -13-

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thereafter intimate the proposed Medical College, the defects, if any, to be rectified. The said exercise should be done within two weeks from today. On receipt of the communication from the Government, it is open to the proposed Medical College to submit all the documents required for the purpose of grant of Essentiality Certificate. That should be done within one week.

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Thereafter, the Government is directed to send appropriate communication to the Medical Council of India for consideration of the application submitted by the proposed Medical College.

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In so far as Kerala University of Health & Allied Sciences (KUHAS) is concerned, no sooner the online application along with documents / hard copy of the application for grant of affiliation is received, the University shall scrutinize the application and intimate the proposed college, if there is any defect. Appellant college is permitted to rectify the defects, if any, noticed during the stage of scrutiny.

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University is directed to cause inspection of the college and also to consider the factors for Consent of Affiliation and accordingly, communicate its decision to the Medical Council of India.

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W. A. Nos. 1401 & 1413 of 2020 -14-

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The abovesaid exercise should be completed before

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23.11.2020. To avoid multiplicity of inspection and to save time, it is desirous to have a joint inspection by the Government and University. The abovesaid directions and time schedule are issued to ensure that the exercise undertaken should not be futile.

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The judgment impugned, is modified to the extent of consideration, for establishment of Medical College for the academic year 2021-22.

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Accordingly, writ appeals are disposed of.

Sd/-

S. MANIKUMAR

CHIEF JUSTICE

Sd/-

SHAJI P. CHALY

JUDGE

///TRUE COPY///

P. A. TO JUDGE

V.N.Public Health and Education Trust v. State of Kerala

Case brief

What is this about?

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V.N.Public Health and Education Trust v. State of Kerala

Case brief

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