Andhra HC (Pre-Telangana)
St. Mary'S Educational Society, ... vs Government Of A.P. And Another on 27 July, 1999
Equivalent citations: 1999(5)ALD355
ORDER
1. The petitioner, St. Mary's Educational Society, Giddaluru, is a Society registered under the Societies Registration Act, 1860. The said Society filed the present writ petition for a writ in the nature of mandamus declaring the proceedings in RC No.2310/N2-2/97 dated 25-2-1999 of the second respondent as illegal and void and further direct the respondents to issue "No Objection Certificate" to the petitioner society for obtaining permission from the National Council for Teacher Education (NCTE) to establish a B.Ed., college by the petitioner society at Butchireddypalem, Kavali Revenue Division, Nellore District. By the impugned proceeding, the Chairman of the State Level Standing Committee informed the petitioner that the State Level Standing Committee rejected the application of the petitioner during the course of scrutiny since the petitioner did not satisfy the conditions as stipulated in the notifications dated 24-2-1998 and 6-3-1998. The condition alleged to have not been satisfied is that the society did not provide for two hectares of land registered in the name of the society as the owner and hence the application of the petitioner is rejected. This Court ordered notice before admission on 30-4-1999. After receiving the notice, the second respondent filed counter-affidavit. Both the learned Counsel prayed that the writ petition itself be taken up for final disposal at the admission stage. Hence the matter is finally heard and is being disposal of by this order.
2. The second respondent issued notification dated 24-2-1998. The same was published in all the news papers. By the said notification applications to establish B.Ed., colleges for the academic year 1998-99 were invited from the private educational societies which are registered societies. The application, in fact is for obtaining 'No Objection Certificate' to establish B.Ed., colleges. One of the conditions mentioned in the notification is:
"To grant NOC. the Society should show two hectares of land and also to deposit corpus fund of Rs.5.00 lakhs. They should fulfil some preliminary conditions."
A reading of the Telugu notification says that the applicant society has to provide for two hectares of land. The second respondent also issued another notification on 6-3-1998 notifying the Revenue Divisions in which the colleges have to be established and Kavali Revenue divisions was identified as being in need for establishment of B.Ed., college.
3. The petitioner applied for B.Ed., college at Kavali. According to the petitioner all the conditions were duly complied with. The society purchased an extent of Ac.6-50 cents (2.6 hectares) from one Sri. Bandaru Ramanaiah of Ramchandrapuram H/o: Butchireddypalem Villege. However, the sale was not registered. Therefore the petitioner enclosed an un-registered sale deed dated 16-3-1998 under which possession of the land was given. The petitioner by another letter dated 12-2-1998 informed the second respondent that as per the paper statement dated 6-12-1998 the Government issued No Objection Certificates to 23 colleges in the State, that the petitioner's application was, obviously, not considered on the purported mis-understanding that the sale deed of the petitioner is not proper and hence the society enclosed another registered sale deed. Under the new sate deed dated 4-13-1998 the petitioner purchased another extent of land Ac.5-00 (2.05 hectares) in Butchireddypalem Village form one Sri Chandragiri Ramesh for the college purpose. The said sale deed was enclosed to the letter dated 12-12-1998. After receiving this, the second respondent communicated the impugned proceedings which was received by the petitioner society on 21-3-1998. The impugned order, it is stated, is un-sustainable and liable to be set aside. The document dated 16-3-1998 is the sale deed under which possession was delivered to the petitioner and as this land is provided for B.Ed., college, the same is sufficient compliance with the conditions mentioned in the notifications. Even otherwise according to the petitioner, as the petitioner submitted another sale deed dated 4-11-1998, the second respondent ought to have given no objection certificate to the petitioner college duly recommending the application of the petitioner to NCTE.
4. In the counter-affidavit, the second respondent stated as follows:
The 1st respondent formulated certain guide-lines in G.O. Ms. No.398, Education (TRG.I) Department, dated 1-12-1997. These guide-lines are to be followed and complied with by the applicants seeking no objection certificates. The second respondent has to satisfy itself with reference to the conditions and guide-lines mentioned in G.O. at the time of considering the applications for No Objection Certificate. As per clause (f) of Para iv of the said G.O. the requirement of land will be two hectares and shall be registered in the name of applicant society as owner. The major conditions of land and corpus fund are to be fulfilled by the time of submission of applications. The petitioner submitted application on 22-3-1998. In the application under column 18 though the petitioner submitted that two hectares of land is provided, only unregistered sale deed dated 16-3-1998 was enclosed. Six out of eight applications for establishment of B.Ed., college in Kavali division were found to have not complied with the major conditions and hence they were rejected. The petitioner's application was one such. Two applications satisfied the conditions and the second respondent deputed an inspection team to cause physical verification of the site and its location. It is also stated that when there are applicants who have complied with all the conditions strictly and other applicants who have not complied with the conditions both of them being unequals cannot be subjected to equal treatment. Therefore, rejection of the application by the second respondent is justified.
5. I have heard the learned senior Counsel Sri E. Manohar for the petitioner and the learned Government Pleader for School Education Sri M. Subrahmanyam.
6. The learned senior Counsel submits that as the notification speaks only of providing of land admeasuring two hectares, the unregistered sale deed with prossessory title enclosed to the application of the petitioner is sufficient compliance with the condition No.3 of the notification dated 24-2-1998. In the alternative it is submitted that after having come to know that their application is obviously not considered, the petitioner addressed a letter dated 12-12-1998 enclosing another sale deed dated 4-11-1998. As the representation dated 12-12-1998 and registered sale deed dated 4-11-1998 from Sri Chandragiri Ramesh was not duly considered by the second respondent, the same amounts to improper exercise of the power in not considering the relevant factors.
7. The learned Government Pleader for School Education contends that as per clause (f) of para (iv) of GO. Ms.No.398 dated 4-12-1997 providing of land by registered sale deed and providing corpus fund of Rs.5.00 lakhs are major conditions which are to be fulfilled by the time of submission of applications. As on the date of application dated 22-3-1998 the petitioner has not fulfilled these conditions and therefore the rejection of the petitioner's application is legal and valid. The learned Counsel for the respondents did not deny the receipt of the letter dated 12-12-98 sent by the petitioner duly enclosing another registered sale deed dated 4-11-1998.
The point for consideration is :
Whether submission of unregistered sale deed along with the application is sufficient compliance as per law for seeking no objection certificate for starting B.Ed., college ?
8. Andhra Pradesh Education Act, 1982 (Act 1 of 1982 hereinafter called as the State Act) was enacted by the Andhra Pradesh State Legislature. It is intended to consolidate the laws relating to educational system in the State of Andhra Pradesh and further for reforming, organising and develop the State educational system and to provide for matters connected therewith. Section 20 of the said Act deals with permission to be obtained by any agency for establishing educational institutions. Sub-section (3) of Section 20 as it existed before 1987 reads as under:
"(3) While granting permission under sub-section (2) the authority concerned shall have due regard to the following matters namely:
(a) that there is need for providing educational facilities to the people in the locality;
(b) that there is adequate financial provision for continued and efficient maintenance of the institution as prescribed by the competent authority;
(c) that the institution is proposed to be located in sanitary and healthy surroundings;
(d) that the site for building, playground and garden proposed to be provided and the building in which the institution is proposed to be housed, conform to the rules prescribed therefor;
(e) that the teaching staff qualified according to rules made by the Government in this behalf is appointed;
(f) that the application satisfies the requirements laid down by this Act and the rules and orders made thereunder."
9. In early 80, the Government decided to permit private colleges of education. A large number of applications were entertained. Provisional permission was granted for starting B.Ed., colleges. On one ground or the oilier some of the provisional permissions were cancelled. The matters were brought before this Court in a batch of writ petitions. These were considered by the Division Bench of this Court in Sastry Educational Academy v. Stale of A.P., 1986 (1) APLJ 255. The contention of the State before the Court was that several matters specified in subsection (3) of section 20 are pre-conditions for grant of permission. Any application which is not satisfying the conditions mentioned therein was rejected.
10. Interpreting sub-section (3) of Section 20 of the State Act which was at the relevant time applicable for granting of permissions for starting B.Ed., colleges this Courts evolved the theory of substantial compliance of the said provision and ruled thus:
"We shall first consider the question whether the matters specified in subsection (3) of Section 20 are preconditions to the grant of permission. Though this question does not strictly arise in this batch of writ petitions for the reasons that the permission is now cancelled not on the ground that original grant is void and illegal, but on the ground that the conditions specified therein have not been fulfilled within the time specified. Yet it would be appropriate to express our opinion on this question, since it is closely allied with another contention urged by the petitioners. In our opinion, except the matters specified in clause (a) of subsection (3), the other matters, viz., those specified in clauses (b) to (e) are not preconditions. The sub-section does not say that all of them, or any of them, are preconditions. We have therefore, to judge the issue having regard to context and the scheme of the Act, and the purpose underlying sub-section (3) clause (a) of sub-section (3) provides that there should be need for providing educational facilities to the people in the locality. Evidently, this is a pre-condition because the need must first exist so that steps can be taken to satisfy that need. It may not necessarily be a pre-existing need it is equally open to the Government to take into consideration the growing need. But so far as the other matters, viz, adequate financial provision, provision of buildings, play-grounds and gardens, appointment of teaching staff, and the proposed location are concerned, they all need not be satisfied before the permission is granted. It would neither be realistic, nor reasonable to expect a person to acquire the site, construct buildings, appoint teaching staff, before he applies for permission for establishment of an educational institution. As things go, the Government takes quite some time for making up its mind, it may be six months, it may be a year or more. It cannot reasonably be expected that the applicant should keep the buildings, staff and every thing idle all the while, the Government is considering the matter. He has to pay for the staff, even though there is none to teach, Moreover, it is not as if every person who complies with the said conditions, is entitled as a matter of right to the grant of permission. The Government is entitled to follow a planned policy particularly in the matter of professional colleges, it is entitled to and indeed it is desirable for it, to assess the need, as also the employment potential and then regulate the number of seats, which means regulating the number of permissions for new colleges as well. Moreover, the Government has also got to be satisfied about the existence of the need before permission is granted. Merely because a person procures the building, staff and other things, he is not entitled to grant of permission automatically, unless the authority competent to grant permission is satisfied about the need. It is the satisfaction of the authority that matters, not that of the applicant. It is therefore, idle to contend that all the matters specified in clauses (a) to (e) are preconditions to the grant and that, it is not open to grant a permission subject to fulfilment of the conditions specified in clauses (b) to (e) within a particular time specified."
11. White holding that mere permission to establish educational institutions does not automatically mean grant of recognition in law, this Court posed a question as to whether all the conditions stipulated in subsection (3) of Section 20 are equally important or whether some are more fundamental and basic than the others. The Court also adverted to the question whether nine conditions stipulated by the Government while granting permissions are also preconditions and equally important. Dealing with clauses (d) of sub-section (3) of Section 20 which speaks of provisions of land for the college, the Division Bench held as follows:
"Clause (d) says that, the site for the building playground and garden proposed to be provided, and the building in which the institution is proposed to be housed, should conform to the Rules prescribed therefor. It is in pursuance of this clause that the Government has stipulated that 10 acres of land should be provided, building should be constructed and that the management should procure equipment and material for library and laboratory and also procure audio-visual equipment. It is necessary that a building should be provided by the college, but it is not necessary that it should necessarily contact such a building. It may purchase an existing building or take a building on lease. In determining whether the building provided is sufficient or not, again a practical and reasonable approach has to be adopted because in cases where existing building strictly conforms to the standards prescribed. Moreover, so far as the present situation is concerned, no Rules have been framed so far by the Government prescribing the specifications which a building must satisfy. Be that as it may, the fact remains that the building provided should be reasonably sufficient for the college. We also do not see any objection in locating two or more colleges in the same building, so long as the accommodation provided is sufficient. May be that running two or more colleges by shift system in the same class-rooms, may not be desirable if it is likely to affect the duration of the instruction but so long as the building provided is substantially sufficient for the requirements of the college, it must be held to the enough."
Therefore, as per sub-section (3) of Section 20 which was applicable to college of education at the relevant time, provision of building is itself sufficient and registration etc., are not necessary. It is however to be noted that since the judgment of this Court in Sastry Educational Academy's case (supra) Section 20 was deleted and a new Section 20 was substituted by Amendment Act 27 of 1987 with effect from 1-6-1987. Clause (b) of sub-section (3) of Section 20 as it exists now reads as follows:
"20(3)(b) enclose to the application,--
(i) title deeds relating to the site for building playground and garden proposed to be provided;
(ii) plans approved by the local authority concerned which shall conform to the rules prescribed therefor; and
(iii) documents evidencing availability of the finances for constructing the proposed buildings;
In view of the above provision, it should be held that generally title deeds relevant to the site for college building shall have to be enclosed to the application seeking permission for starting of a college. In the present case, the petitioner has applied to the second respondent seeking only a No Objection Certificate for starting B.Ed., college.
12. The Parliament enacted the National Council for Teacher Education Act, 1993 (Central Act No.73 of 1993 hereinafter called as NCTE Act). The Act seeks to provide for the establishment of National Council for Teacher Education with a view to achieving planned and co-ordinated development of the Teacher Education System throughout the Country. It also intends to regulate the proper maintenance of norms and standards in the teacher education system. The said Act came into force on 1-7-1995.
13. After 1-7-1995 the State Government is denuded of the power of granting permission to a college of education. Now the National Council for Teacher Education established under Section 3 of NCTE Act is a competent body to grant recognition under the NCTE Act. Section 14 deals with recognition of institutions offering course or training in teacher education. No agency shall be permitted to run a College of education without recognition from NCTE. Sub-sections(l), (2) and (3) of Section 14 of NCTE Act are relevant and are extracted hereunder:
14(1) Every institution offering or intending to offer a course or training in teacher education on or after the appointed day, may, for grant of recognition under this Act, make an application to the Regional Committee concerned in such form and in such manner as may be determined by regulations :
Provided that an institution offering a course or training in teacher education immediately before the appointed day, shall be entitled to continue such course or training for a period of six months, if it has made an application for recognition within the said period and until the disposal of the application by the Regional Committee.
(2) The fee to be paid along with the application under sub-section (I) shall be such as may be prescribed.
(3) On receipt of an application by the regional Committee from any institution under sub-section(l), and after obtaining from the institution concerned such other particulars as it may consider necessary, it shall-
(a) if it is satisfied that such institution has adequate financial resources, accommodation, library, qualified staff, laboratory and that it fulfils such other conditions required for proper functioning of the institution for a course or training in teacher education, as may be determined by regulations, pass an order granting recognition to such institution, subject to such conditions as may be determined by regulations; or
(b) if it is of the opinion that such institution does not fulfil the requirements laid down in sub-clause (a), pass an order refusing recognition to such institution for reasons to be recorded in writing :
Provided that before passing an order under sub-clause (b), the Regional Committee shall provide a reasonable opportunity to the concerned institution for making a written representation."
An analysis of the relevant provisions of NCTE Act shows that an agency intending to start a college of education has to apply to the Regional Committee of NCTE. If it is satisfied that the applicant institution has adequate financial resources, accommodation, library, qualified staff, laboratory and also fulfils such other conditions as may be determined by regulations, it may grant recognition to such institution. In the case of rejection of refusal of recognition to an applicant institution, the same has to be done by providing a reasonable opportunity to the concerned institution to make a written representation and reject the same by recording reasons. Obviously, the provision for giving notice before rejection of application is incorporated by the Parliament keeping in view that any lacunae in the application may be sufficiently explained or clarified by the applicant institution. Under sub-section (1) of Section 18, any person aggrieved by an order made under Section 14 by the Regional Committee, may prefer an appeal to the National Council. These provisions are intended to afford a fair deal to the applicant and to reduce elements of arbitrariness in rejecting the application under Section 14. What is the effect of these provisions when the second respondent considers the application for giving no objection certificate ?
14. The NCTE guide-lines provide that the State Government is vested with the power to issue a 'no objection certificate' after verifying and satisfying with the need for establishing of B.Ed./Pandit Training Institutes. Keeping these guide-lines in view, the first respondent issued orders in G.O. Ms.No.398, dated 1-12-1997. These guidelines classify the conditions of providing land and provision of corpus fund of Rs.5.00 lakhs as major conditions and as per clause (f) of para (iv) these two conditions are to be fulfiled at the time of submission of application form. When the second respondent issued notification, condition No.3 in the notification says that the applicant has to only provide for the land of two hectares. It does not say that there shall be a registered title deed. Therefore, we are faced with the situation where the notification speaks of providing for land, G.O. Ms. No.398 speaks of production of registered sale deed at the time of submission of application and Section 14(3) (a) of NCTE Act speaks of providing accommodation to the satisfaction of Regional Committee (at the time of consideration of application) before granting recognition to a college of education.
15. After Constitution (Forty second) Amendment Act, 1976, the legislative entry 'education' was included in the concurrent list (List III in the VII Schedule to Constitution) as Entry 25 in List III. This enabled the Union Parliament to enact NCTE Act under Article 246(2) of the Constitution of India. By virtue of sub-article (3) of Article 246, the State Act insofar as it deals with the teacher education system is subject to the law as enacted in NCTE Act. Therefore, in my considered opinion, no objection certificate is primarily concerned with the verification and satisfaction of the State Government as to the need for establishment of B.Ed.,/ Pandit Training Institutes. To subject all applications to a preliminary verification at the stage of giving no objection certificate, the Government is entitled to lay down conditions which may serve as guide-lines for the State Level Standing Committee. If these guide-lines are contrary to the provisions of NCTE Act, the no objection certificate cannot be refused to the applicant on the ground that a sale deed evidencing provision of two hectares of land is not enclosed. Such an eventuality would result in divesting the Regional Committee, (which has to satisfy itself after obtaining such other particulars as it may consider necessary under Section 14 of NCTE Act as the accommodation for college) of its power under the said provision. Further, as mentioned above while rejecting application for recognition, the Regional Committee is under an obligation to recorded reasons for rejecting which can only be after giving an opportunity to the concerned applicant for making representation. Whereas in the Government Order there is no provision for providing with reasonable opportunity of making representation when no objection certificate is rejected.
16. The petitioner has alleged that he sent a representation dated 12-12-1998 enclosing a registered sale deed dated 4-11-1998. This is not specifically denied by the second respondent in the counter-affidavit. However, it is not clear whether the petitioner's representation dated 12-12-1998 was placed before the second respondent or not. The impugned order does not mention the letter dated 12-12-1998 addressed by the petitioner. Therefore, this Court is of the view that while considering the applications for starting colleges of education for the purpose of giving no objection certificate, the respondents have to keep in view the law as declared by this Court in Sastry Educational Academy's case (supra) and the provisions of NCTE Act.
17. For the above reasons, I deem it proper in the circumstances of the case, to dispose of writ petition with a direction to the respondents to conisder the application dated 22-3-1998 of the petitioner for issue of 'no objection certificate' to obtain permission from NCTE for opening a private B.Ed., college in Andhra Pradesh within a period of four weeks from the date of receipt of a copy of this order and pass appropriate orders in the light of observations made in this judgment. The writ petition is accordingly dispose of. No costs.