S.K. Dhaon, S.K. Mookerjee, JJ. - (1.) The prayer in substance is that the respondents No. 1 and 2 may be commanded to register the petitioner No. 2, a product of the petitioner No. 1 institution, in the State Register of the Board of Indian Medicines, U. P. Lucknow so as to enable the petitioner No. 2 and the other products of the petitioner No. 1 to practies in the Unani system of medicines.
(2.) The Standing Counsel took time on behalf of the respondents No. 1 and 2 on more than one occasion to file a counter-affidavit on their behalf; but no counter-affidavit has been filed. We are not inclined to grant any further time. We are proceeding to dispose of this petition finally.
(3.) In the absence of any counter-affidavit, the averments made in the memorandum of this petition have to be treated as correct. The material averments are these. The petitioner No. 1, the Ibn-e-Sina Tibbiya College (hereinafter referred to as the College) is a minority institution. It imparts education in Unani system of medicines The petitioner No. 2 and other students were admitted in the college in the First year course in the year 1984 and they completed the course of their studies in the year 1988. The Uttar Pradesh Indian Medical institutions Acquisition and Miscellaneous Provisions) Act, 1982, U. P. Act No. 13 of 1982) (hereinafter referred to as the Act) was enforced. The provisions of this Act prohibited any parson other than a person authorised by the Central Government or the State Government to open a new institution after the appointed day. It also provided that the existing institutions could promote the students studying in a lower class to a higher class during a period of five years from the appointed day. However, it also provided that after the expiry of a period of five years the provisions of Section 8, which restrict the opening of new institutions etc., ware to apply mutatis mutandis to the existing institutions. Section 10 made it clear that the provisions of Section 8 and 9 were not applicable to minority referred to in Article 39 of the Constitution to establish and administer any educational institution of their "for imparting instruction in Ayurvedic or Unani-Tibbi Systems of Medicine of Naturopathy or Yoga Therapy". After completing their course in the year 1988 and after having been declared successful in the final examination, the petitioner No. 2 and others applied for registration, to the Board of Indian Medicines, the respondent No. 1. Their applications are still pending and are not being disposed of The petitioner No. 1 has been declared a minority institution by the Minority Commissioner of Uttar Pradesh. The Central Government through its Joint Secretary informed the Director of Ayurvedic and Unani System of Medicines, Uttar Pradesh that if tho institutions were being run by the minority then the same would be deemed to be the minority institutions. The State of U. P. also recognised the petitioner No. 1 as a minority institution. True copies of the said decision of the Minority Commission, the communication of the Joint Secretary to the Central Government and the recognition given by the State of U. P. have been filed as Annexures 6, 8 and 9 to the writ petition. By means of writ Petition No. 10695 of 1983 the petitioner No. 1 along with others challenged the the constitutionality and validity of the Act. On 6th April, 1983, the petition was admitted and by way of an interim order this Court stayed the operation of Section 9 of the Act as against the petitioner No. 1, The Writ petition is still pending and the stay order passed therein continues to operate. The petitioners apprehend that the respondents are not passing any orders on the applications made by the petitioner No. 2 and the other products of the college for being registered as practitioners in Unani medicines on account of the pendency of the aforementioned writ petitions in this Court and also on account of the fact that the respondents still consider that the provisions of Sections 8 and 9 are applicable to the College.;