Kerala High Court
The Chairman vs State Of Kerala on 23 November, 2011
Author: K.Harilal
Bench: K.M.Joseph, K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.M.JOSEPH
&
THE HONOURABLE MR.JUSTICE K.HARILAL
THURSDAY, THE 20TH DAY OF FEBRUARY 2014/1ST PHALGUNA, 1935
WP(C).No. 18155 of 2012 (T)
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PETITIONER :
----------
THE CHAIRMAN, MESHAR DIOCESAN EDUCATIONAL TRUST
MESHAR DIOCESAN EDUCATIONAL TRUST, THALASSERY.
BY ADVS.SRI.KURIAN GEORGE KANNANTHANAM (SR.)
SRI.TONY GEORGE KANNANTHANAM
SRI.THOMAS GEORGE
SRI.JIJI THOMAS
RESPONDENT :
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1. STATE OF KERALA
REP.BY THE PRINCIPAL SECRETARY,
HIGHER EDUCATION DEPT., GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 685 001.
2. THE KANNU UNIVERSITY,
REPRESENTED BY ITS REGISTRAR,
KANNUR UNIVERSITY CAMPUS.P.O., MANGATTUPARAMBA,
KANNUR - 670 567.
3. THE VICE CHANCELLOR,
KANNUR UNIVERSITY, KANNUR UNIVERSITY CAMPUS.P.O.,
MANGATTUPARAMBA, KANNUR - 670 567.
4. THE DIRECTOR OF TECHNICAL EDUCATION,
THIRUVANANTHAPURAM - 695 001.
R1,R4 BY GOVERNMENT PLEADER SRI.ROSHAN D. ALEXANDER
R2 & R3 BY ADV. SRI.V.A.MUHAMMED
BY SRI.V.A.MUHAMMED, SC,
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 13/2/2013, THE COURT ON 20-02-2014 DELIVERED THE
FOLLOWING:
BP
WP(C).No. 18155 of 2012 (T)
APPENDIX
PETITIONER(S) EXHIBITS
P1. COPY OF THE COVERING LETTER FORWARDING THE SAMPLE
SYLLABUS FOR M.TECH IN COMPUTER SCIENCE AND
ENGINEERING DATED 23.11.2011.
P2. COPY OF THE LETTER DATED 23.11.2011 FORWARDED IN
RESPECT OF M.TECH IN THERMAL ENGINEERING.
P3. TRUE COPY OF THE ORDER DATED 10.05.2012 ISSUED BY
THE ALL INDIA COUNCIL FOR TECHNICAL EDUCATION.
P4. TRUE COPY OF THE LETTER DATED 30.06.2012 ISSUED BY
THE 2ND RESPONDENT.
P5: COPY OF THE CIRCULAR DT 25/7/2008 ISSUED BY THE R1.
P6: COPY OF THE CIRCULAR DT 26/8/2008 ISSUED BY THE R1.
P7: COPY OF THE CIRCULAR DT 24/6/2009 ISSUED BY THE R1.
P8: COPY OF THE CIRCULAR DT 19/8/2009 ISSUED BY THE R1.
P9: COPY OF THE ORDER DT 13/10/2010 OF DIRECTOR OF TECHNICAL
EDUCATION, TRIVANDRUM.
P10: COPY OF THE ORDER DT 17/5/2012 ISSUED FROM THE -DO-
RESPONDENTS' EXHIBITS :
EXT.R1(a): COPY OF THE LETTER DT 19/7/2012 SUBMITTED BY THE
PETITIONER TO THE PERINCIPAL SECRETARY TO
GOVERNMENT, HIGHER EDUCATION DEPARTMENT.
EXT.R1(b): COPY OF THE AFFIDAVIT DT 19/7/2012 SWORN BY THE
PETITIONER.
EXT.R1(c): COPY OF THE AFFIDAVIT DT 19/7/2012 EXECUTED BY THE
CHAIRMAN OF THE COLLEGE BEFORE THE GOVERNMENT.
EXT.R1(d): COPY OF THE AFFIDAVIT DT 19/7/2012 EXECUTED BY THE
CHARIMAN OF THE COLLEGE.
EXT.R1(e): COPY OF THE AFFIDAVIT DT 19/7/2012.
EXT.R1(f): COPY OF THE LETTER OF UNDERTAKING DT 19/7/2012.
//TRUE COPY//
P.A. TO JUDGE
BP
K.M. JOSEPH & K. HARILAL, JJ
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W.P(C) No.18155 of 2012
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Dated this the 20th day of February, 2014
J U D G M E N T
K.Harilal, J The petitioner is the Chairman and Manager of a reputed Engineering College by name, "Meshar Diocesan Educational Trust", Thalassery. This writ petition is filed seeking a direction to the Kannur University to pass orders on petitioner's application for affiliation for two new M-Tech programmes, without waiting for 'No Objection Certificate' (in short 'NOC') of the Government.
2. Briefly put the facts of the case is as follows:
The petitioner's college belongs to Catholic Diocese of Thalassery. It is a 'Minority Institution' and the National Commission for Minority Education Trust W.P(C) No.18155 of 2012 -: 2 :- has certified it to be so. Though the said college was established in the year 2002, within the short span of 2 to 3 years, the college had earned high reputation, as one of the pioneer Engineering Colleges in northern Kerala. On gradual progression, the All India Council for Technical Education (AICTE) had sanctioned additional courses and enhanced the student intake in few courses. At present, the college has six Degree level courses with a total annual intake of 420 students. All these courses have affiliation of the Kannur University and admissions to all courses were made strictly on the basis of inter se merit.
3. The petitioner wanted to establish two new M.Tech courses in the college. The Kannur University, being a new University, there were no P.G. Courses in Engineering subjects, for which the petitioner requires affiliation; so there was no approved syllabus. Therefore, the University directed the college to submit sample syllabuses. The petitioner had submitted Exts.P1 and P2 sample syllabuses, as W.P(C) No.18155 of 2012 -: 3 :- required by the University. The petitioner is made to believe that the University finalised the syllabus for the required courses also. Then,the petitioner had applied to AICTE for approval of a few M.Tech courses for 2012-13. Anticipating approval by the AICTE, the petitioner had applied to the University for affiliation of the two new M.Tech courses for 2012-13. While so, AICTE, by order dated 10.05.2012, granted approval for the same and Ext.P3 is the copy of that order. Ext.P3 shows the details of existing courses and the two new M.Tech programmes. Ext.P3 is also the order sanctioning extension of approval and it shows the intake sanctioned last year and this year. It can be seen from Ext.P3 that copy of the same was directly forwarded to the University by the AICTE.
4. The University had processed petitioner's application and they had appointed a team for inspection and the inspection team was satisfied that the college has the required facilities and infrastructures for these two courses. Being so W.P(C) No.18155 of 2012 -: 4 :- satisfied, the University recommended to the Director of Technical Education for sanction of the above courses. This was intimated to the Principal of the petitioner's college as per Ext.P4 letter. But so far, there was no response from the Government. Ext.P4 says that it has been sent for the consideration and sanction of the Director of Technical Education and also the petitioner should obtain the "NOC" from the Government. According to the petitioner, both these conditions are against the provisions of law and illegal. Neither the Government nor the Director can insist upon their consent or NOC for the grant of affiliation, nor can the University insist on the same as a condition to grant affiliation. Therefore, when the petitioner got Ext.P4, petitioner approached the Governmental authorities. Then they insisted the petitioner that a fresh agreement should be executed to surrender 50% of the seats at a lower fees. The petitioner informed them that the petitioner has no objection to enter into any agreement in the line of W.P(C) No.18155 of 2012 -: 5 :- that agreement which was executed by the Association for B.Tech courses. Negotiations with these two authorities went on, ultimately they wanted an agreement to be executed, agreeing to surrender 50% of the seats at the rate of fees fixed by the Government. In fact a proforma of the agreement was also given to the petitioner.
5. According to the petitioner, as far as the grant of affiliation and conditions that can be imposed for the same, petitioner is entitled to protection under Article 19(1)(g) of the Constitution of India. Insisting on seat sharing is directly against the dictum laid down by the Supreme Court in Inamdar's case. Any further delay in granting of affiliation will tantamount to denial of affiliation. Though there is no statutory time limit prescribed for grant of affiliation or for commencement of classes for M.Tech courses, time is very crucial in this case.
6. In such circumstance, the petitioner has no other remedy except to approach this Court under W.P(C) No.18155 of 2012 -: 6 :- Article 226 of Constitution of India.
7. The reliefs sought for in the Writ Petition, in brief, are:
i) A direction to the Respondents 2 and 3 to proceed with the application for affiliation for M.Tech course, without waiting for NOC of the Government or the Director.
ii) Declare that University is not bound to wait for NOC.
iii) Direct 3rd Respondent to invoke his emergency provisions under Section 11(1) of the Kannur University Act.
iv) Declare that sanction or NOC of the State or Director is not required to grant affiliation.
v) Declare that the Government has no power to direct University to insist on NOC/Approval of the Government for grant of affiliation.
v)(a) Issue a writ of Certiorari or order or direction to quash Exts. P5 to P8. W.P(C) No.18155 of 2012 -: 7 :-
8. The 1st respondent filed a counter affidavit and contended as follows. The writ petition is filed on an experimental basis and not maintainable under law. The petitioner had applied for issuance of NOC for starting M.Tech course in his college pursuant to Exts.P6 to P8. The petitioner has also submitted four affidavits and one letter of undertaking for issuing NOC for M.Tech course. Ext.R1(a) is the copy of letter dated 19.07.2012 submitted by the petitioner to the Principal Secretary to Government, Higher Education Department. Along with Ext.R1(a), the petitioner submitted an affidavit verifying the facilities in the college and also undertook that if on inspection, any agencies/officials of Government of Kerala find that the facilities enumerated in Ext.R1(a) are lacking, petitioner is bound to pay fine and also agreed for cancellation of the sanction by the Government. The petitioner also executed Ext.R1(b) affidavit dated 16.07.2012 enumerating the pass percentage of the students in B.Tech course for the years 2008-2009, W.P(C) No.18155 of 2012 -: 8 :- 2009-2010 and 2010-2011 and also agreed that in the event of any misrepresentation, Government is at liberty to cancel the NOC of the course or the additional intake already issued by the Government and impose suitable penalty on the college. By virtue of Ext.R1(d) affidavit dated 19.07.2012, the petitioner college also agreed that seats remaining unfilled in the 50% of the Government quota, will be filled up only after valid Government Orders and also agreed that the college shall formulate the fee structure for the various courses conducted in the college and forward it for the approval of the Government. By virtue of Ext.R1(e) affidavit dated 19.07.2012, it was also declared by the petitioner college that it is an application seeking NOC for the year 2012-2013 and also agreed and declared that the educational agency will run only courses approved by the Government, in the college. The petitioner has also executed and handed over Ext.R1(f) letter of undertaking dated 19.07.2012 agreeing to abide by all the lawful terms W.P(C) No.18155 of 2012 -: 9 :- and conditions issued by the Government from time to time. Therefore, by virtue of Exts.R1(a) to R1(f), the petitioner had applied for NOC from the Government and submitted various undertakings to abide by the terms and conditions issued by Government from time to time. The petitioner had gone a long way in the proceedings for getting NOC, but the said move had been suppressed in the Writ Petition. Therefore, the petitioner is not entitled to get discretionary remedy under Article 226 of the Constitution of India and the Writ Petition is liable to be dismissed in limine. On submission of Exts.R1(a) to R1(f), college authorities were requested to furnish faculty details along with their individual bond to the effect that the faculty will serve the institution for the entire academic year and also to submit draft of agreement. However, the petitioner has not furnished those details so far.
9. As per the Statute 9(g), the Syndicate shall decide after considering the report of the local enquiry and also after ascertaining the views of the W.P(C) No.18155 of 2012 -: 10 :- Government, whether the affiliation be granted or refused, either in whole or in part. Therefore, views from Government are also required under Statute 9(g) of Chapter V of the University First Statutes. Government vide Circular No.22435/j2/08/H.Edn. dated 25.07.2008 have formulated guidelines for obtaining approval for colleges/new courses in the existing colleges increase in intake in existing courses. Accordingly, after getting approval from AICTE, the Management has to approach Government for getting NOC. This was further modified by Circular No.28356/j2/09/H.Edn. dated 19.08.2009. Both Circulars were challenged by the petitioner in the amended writ petition. Thus, Government views are made a statutorily binding factor in granting of affiliation by University. In view of the provision under Statute 9(g) of Chapter V of the University Statutes and also being a grand-in-aid institution, University has to consider the views of Government which is all the W.P(C) No.18155 of 2012 -: 11 :- more committed to social justice; and also set to ensure quality of education in the State. Hence, prayed for dismissal of the writ petition.
10. We heard Shri Kurian George Kannanthanam, the senior counsel appearing for the petitioner, Shri Roshan D. Alexander, the learned Government Pleader appearing for the 1st respondent and the learned Standing Counsel for the Kannur University. We have given my anxious consideration to the submissions made by the respective counsel.
11. The learned counsel for the Petitioner drew our attention to various provisions of the Kannur University Act and Statute made thereunder. The power to grant affiliation is vested with the Syndicate of the University as per Section 25(i) of the Kannur University Act. The relevant Section does not require the NOC of the Government for affiliation. Therefore, the University cannot impose the same as condition precedent for granting affiliation; which are not prescribed either in the Act or in the Statutes. Chapter W.P(C) No.18155 of 2012 -: 12 :- V of the Kannur University First Statutes 1998 deals with affiliation. Section 6 is the relevant Section, which deals with affiliation of colleges. It does not deal with the additional courses in existing college. For that, the only provision under Section 3, which says about the forms in which applications for additional and Post Graduate Courses have to be given. Since there is no other provision regarding affiliation of additional course, it is presumed that the provisions applicable to affiliation of colleges are mutatis mutandis made applicable to additional courses as well. Section 9 deals with grant of affiliation and condition for the same. Section 9 also does not confer any power or any authority to issue any directions as they please. The petitioner understands that the present direction was by the Registrar and not even as authorised by the Syndicate.
12. The learned Govt. Pleader Shri Roshan Alexander opposed the argument advanced by the learned counsel for the petitioner mainly relying on W.P(C) No.18155 of 2012 -: 13 :- Statute 9(g) of the Kannur University Statute. The learned Government Pleader pointed out that according to the said Statute, the Syndicate shall decide the question whether affiliation be granted or refused after considering the report of the local enquiry and also after ascertaining the 'views' of the Government. Thus 'views' of the Government is decisive in deciding the question of affiliation. Therefore, it is incumbent upon the petitioner to approach the Government to get NOC. Thus, Government 'views' is made a statutorily binding factor in granting of affiliation by University. In short, University affiliation will be granted only after ascertaining the views of the Government and for safeguarding wider interest of the people and for ensuring social justice. The learned Standing Counsel for the Kannur University also advanced arguments vindicating the requirement of 'NOC' and the binding force of Exts.P5 to P8 Circulars and orders of the Government.
W.P(C) No.18155 of 2012 -: 14 :-
13. The question to be considered is whether University can insist for production of the NOC of the Government as a condition precedent for the grant of affiliation of new course? Let us examine the law governing the grant of affiliation to a new course in an Engineering College affiliated to Kannur University. Going by the Kannur University Act, it could be seen that the power to grant affiliation is vested with the Syndicate of the University as per Section 25(i) of the Kannur University Act. Section 25(i) of the Kannur University Act reads as follows:-
"25. Powers of Syndicate.- Subject to the provisions of this Act and the statutes, the executive powers of the University, including the general superintendence and control over the institutions of the University, shall be vested in the Syndicate and subject likewise the Syndicate shall have the following powers, namely:-
(i) to affiliate institutions in
accordance with the terms and
conditions of such affiliation
W.P(C) No.18155 of 2012 -: 15 :-
prescribed in this Act and the
Statutes;"
Section 61 (1) and (2) read as follows:-
"61. Affiliation to colleges.- (1) An application for affiliation to the University of any college or for affiliation in new courses in any affiliated college shall be sent by the educational agency to the Registrar within such time and in such manner as may be prescribed by the statutes.
(2) The terms and conditions of affiliation of a college or of affiliation in new courses in an affiliated college and the procedure to be followed by the Syndicate in granting such affiliation, including the period within which the Syndicate shall consider an application under sub-section (1), shall be prescribed by the Statutes:
Provided that the Chancellor may, by notification in the gazette, for reasons to be specified in the notification, extend the period within which the Syndicate shall consider any application under sub-
section(1), whether such period has already expired or not, by such further W.P(C) No.18155 of 2012 -: 16 :- period, not exceeding one year, as may be specified in the notification." It is pertinent to note that Sec.25(i) says "to affiliate institutions in accordance with the terms and conditions of such affiliations prescribed in this Act or the statutes." Put it differently, terms and conditions of affiliation is prescribed in the Act and Statute. If that be so, needless to say University cannot impose any condition, which are not prescribed either in the Act or Statute.
14. Let us examine the Kannur University Statute, 1998, Chapter V of the First Statute deals with affiliation. Statute 6 deals with affiliation of colleges. The Statute does not specify affiliation of additional courses in existing colleges. The only provision that deals with affiliation of additional course is Statute 3. But it only says about the forms in which application for additional and Post Graduate courses have to be given. In the absence of any other provision, as rightly pointed out by the counsel for the petitioner, it could W.P(C) No.18155 of 2012 -: 17 :- be reasonably presumed that the provisions applicable to affiliation of colleges are mutatis-mutandis made applicable to additional course as well. Statute 9 deals with grant of affiliation and conditions for the same. Statute 9 says that the grant of affiliation shall depend upon the fulfillment of the conditions that are specified here or that may be specified later for the satisfactory establishment and maintenance of the proposed institution. Statute 6 deals with the power of the Syndicate to grant affiliation. Clause 2 of Statute 6 states that the Syndicate shall have power to affiliate any college within the territorial jurisdiction of the University preparing students for degrees, titles or diploma of the University which satisfy the condition prescribed in laws of the University. Statute 7 stipulates the procedure on receipt of application and Statute 8 states that if the Syndicate decides to proceed with application, it shall direct a local enquiry to be made by a competent person or persons appointed on this behalf and it shall be competent for W.P(C) No.18155 of 2012 -: 18 :- the Syndicate to dispense with such enquiry, for special reasons to be recorded. The conditions required to be fulfilled for granting affiliation is specified under Clauses (a) to (g) of Statute 9.
15. Statute 10 specifically sates that affiliation shall be granted separately for each subject or each group of subjects. Going by Statute 9(b), it is stated that grant of affiliation shall depend upon the fulfillment by the Management of all the conditions that are specified "here" or that may be specified later for the satisfactory establishment and maintenance of the proposed institution/course of studies and on the reports of inspection by the Commission or Commissions which the University may appoint for the purpose.
16. Put it differently, the scope and extent of the conditions that can be imposed for granting affiliation, shall be confined to condition specified in the Statute or specified later on the basis of Commission report submitted after enquiry. Obviously, those conditions W.P(C) No.18155 of 2012 -: 19 :- must be one specified here ie; in the Statute or (2) that may be specified later for the satisfactory establishment and maintenance of the proposed institution/course of studies on the report of the commission appointed for enquiry. Needless to say, no condition can be imposed unless such a condition is specified in the statute or it is one which is specified for the satisfactory establishment and maintenance of the proposed institution or course on the basis of commission report. Nowhere in the Statute, it is specified that NOC of the Government is a condition precedent for granting affiliation. The requirement of NOC of the Government, as a condition precedent imposed in Ext.P4 does not find a place in Chapter V of the Statute. In short, neither the Act nor the Statute prescribe the need for NOC of the Government for affiliation of a new course. Similarly, requirement of NOC as a condition precedent can no way be treated as a condition for satisfactory establishment and maintenance of proposed institution or course on the W.P(C) No.18155 of 2012 -: 20 :- basis of commission report.
17. The learned Government Pleader drew our attention to Clause (g) of statute 9 and pointed out that according to Clause (g), Syndicate shall decide the question of affiliation only after ascertaining 'views of the Government'. But Clause (g) of Statute 9 says that Syndicate can grant or refuse affiliation either in whole or in part, after considering the report of local enquiry and also ascertaining views of the Government.
18. I am of the opinion that ascertainment of 'views' of the Government and requirement of 'NOC' of the Government are different and distinct. 'Views' can never be equivalent or synonymous with 'NOC'. The ascertainment of views is only a procedure to get opinion of the Government and the opinion has no binding force over the decision to be taken, and it is only an option for the Syndicate either to accept or reject. But requirement of 'NOC' be a condition precedent, without which no affiliation can be granted. W.P(C) No.18155 of 2012 -: 21 :- The University can refuse affiliation unless and until NOC of the Government is produced and Government can in turn withhold NOC unless the college agrees to abide by any condition regarding admission and fees. Thus, by imposing such a condition, University confers an implied authority to the Government to decline affiliation to an institution/course, notwithstanding the fact that the institution has already fulfilled all conditions required either by Statute or subsequently specified on the basis of the report of the Commission appointed for enquiry.
19. I have no hesitation to hold that such a requirement of NOC of the Government to start a new course would defeat the autonomy of the University itself. Of course, there is nothing wrong in ascertaining the view of the Government, before deciding the question whether affiliation be granted or refused as provided under Clause(g) of Statute 9. It is not obligatory that University must take a decision in accordance with the views of the Government; W.P(C) No.18155 of 2012 -: 22 :- whereas University is free to take any decision independently, after considering the views of the Government. At this juncture, I cannot brush aside the argument of the learned counsel for the petitioner that such an authority was conferred to the Government to ensure that those institutions who are not willing to enter into an agreement with the Government for seat sharing will not get affiliation, whatever be the academic standard of the institution. According to me, the ultimate authority and power to grant affiliation to a new course must be a power that should be kept in domain of the University itself. Therefore, I am of the opinion that 'NOC' of the Government cannot be imposed as a condition precedent for granting affiliation to a new course, in view of the relevant provisions governing the grant of affiliation in Kannur University Act and Statute thereunder.
20. Secondly, the learned counsel for the petitioner cited Jayagokulam's case and submitted that previous sanction or NOC of the Government is W.P(C) No.18155 of 2012 -: 23 :- not required for affiliation in case where AICTE grants approval. Therefore, the said decision is squarely applicable to the case on hand. The learned counsel for the petitioner further submits that relying on Jayagokulam's case, this Court in St.Joseph's Hospital Trust v. Kerala University of Health Sciences [(2012(4) KLT 444] held that once AICTE grants approval, the Government cannot issue a Circular laying down that the University should grant affiliation to new colleges and courses only, if the college enter into agreement with the Government to share 50% of seats under Government merit quota. In this decision relying on the decision laid down by a Bench comprising of the three Judges in Society for Unaided Private Schools v. Union of India and Another [2012(6) SCC 1] held that the entire purposes of securing the No Objection Certificate is to secure incorporation of two constitutionally impermissible conditions, namely seat sharing and regulation of fees. There is no authority with the State Government to insist upon the W.P(C) No.18155 of 2012 -: 24 :- petitioners producing No Objection Certificate from the State for the grant of affiliation in a case where there is approval of the AICTE.
21. In Jaya Gokulam Educational Trust's case the Supreme Court held as follows:
"22. As held in T.N. case the Central Act of 1987 and in particular, Section 10(k) occupied the field relating to "grant of approvals" for establishing technical institutions and the provisions of the Central Act alone were to be complied with. So far as the provisions of the Mahatma Gandhi University Act or its statutes were concerned and in particular Statute 9(7), they merely required the University to obtain the "views" of the State Government. That could not be characterised as requiring the "approval" of the State Government. If, indeed, the University statute could be so interpreted, such a provision requiring approval of the State Government would be repugnant to the provisions of Section 10(k) of the AICTE Act, 1987 and would again be void. As pointed out in T.N. Case there were enough provisions in the Central Act for consultation W.P(C) No.18155 of 2012 -: 25 :- by the Council of AICTE with various agencies, including the State Governments and the universities concerned. The State- Level Committee and the Central Regional Committees contained various experts and State representatives. In case of difference of opinion as between the various consultees, AICTE would have to go by the views of the Central Task Force. These were sufficient safeguards for ascertaining the views of the State Governments and the universities. No doubt the question of affiliation was a different matter and was not covered by the Central Act but in T.N. Case it was held that the University could not impose any conditions inconsistent with the AICTE Act or its regulation or the conditions imposed by AICTE. Therefore, the procedure for obtaining the affiliation and any conditions which could be imposed by the University could not be inconsistent with the provisions of the Central Act. The University could not, therefore, in any event have sought for "approval" of the State Government.
23. Thus I hold, in the present case that W.P(C) No.18155 of 2012 -: 26 :- there was no statutory requirement for obtaining the approval of the state Government and even if there was one, it would have been repugnant to the AICTE Act. The University Statute 9(7) merely required that the "views" of the State Government be obtained before granting affiliation and this did not amount to obtaining "approval". If the University statute required "approval", it would have been repugnant to the AICTE Act. Point 1 is decided accordingly".
22. In St.Joseph's Hospital Trust's case, the Division Bench held as follows:
"48. But, all this will not result in the conclusion which I have arrived at on the basis of the decision of the Apex Court in Jaya Gokul's case that it is not open to the State Government to insist for NOCas is done in this case. I would think, therefore, that the Circular issued by the Government in so far as it relates to the courses which are specifically covered by the provisions of the AICTE Act and covered by the decision in Jaya Gokul's case, is clearly beyond the powers of he State Government. In the light of our conclusion regarding the absence of power W.P(C) No.18155 of 2012 -: 27 :- with the State to insist on a NOC as adumbrated above, I am not pronouncing on the other questions.
49. In view of the fact that I am holding that Government does not have the power to insist upon NOC in the matter of affiliation, necessarily the conditions subject to which the NOC can be given would also automatically not survive, as the question of imposing conditions would arise only if the power is ceded to the Government to demand NOC".
23. Going by the said decisions referred above, it could be seen that requirement of NOC as a condition precedent for granting affiliation is illegal, if AICTE has already given approval for the institution or course. Here in this case also, Ext.P4 shows that the approval has been given by the AICTE on satisfaction of the facilities available in the institution.
24. Therefore, in view of the said decision also, I am inclined to hold that NOC from the State or Director of Technical Education is not required for the Kannur University to grant affiliation for new course W.P(C) No.18155 of 2012 -: 28 :- if AICTE once grants approval and the University is satisfied about the facilities made available in the college.
25. Secondly, the main plank of the argument advanced by the learned Government Pleader is that even if the petitioner has any legal right to get affiliation, without the production of the 'NOC' of the Government, as a condition precedent, such right had been waived by him by virtue of his subsequent conduct. To substantiate the above argument, the learned counsel for the 1st respondent drew our attention to Exts.R1(a) to R1(f) and submitted that pursuant to issuance of the order under challenge requiring the petitioner to produce 'NOC' of the Government, the petitioner had applied for issuance of NOC for starting M.Tech course in his college and submitted four affidavits Exts.R1(b) to R1(e) and Ext.R1(f) letter in that process. By these affidavits, the petitioner tried to convince the 1st respondent about the adequacy of the facilities and to certain extent W.P(C) No.18155 of 2012 -: 29 :- agreed to pay fine and also agreed for cancellation of NOC, if the facilities are lacking. In Ext.R1(e), it was also declared by the petitioner that the petitioner is an applicant seeking NOC for the year 2012-2013 and also agreed to declare that educational agency shall run courses approved by the Government only in their college only. On submission of Exts.R1(a) to R1(f), the petitioner was asked to furnish faculty details and draft agreement to be executed with the Government, but they at last wriggled out from the said attempt and filed this petition. All these proceedings and correspondence evidenced by Exts.R1(b) to R1(f) are willfully suppressed in the Writ Petition. The petitioner approaching writ court must come with clean hands, put forward all facts before the court without concealing or suppressing anything. If there is no candid disclosure of relevant and material facts, or if the petitioner is guilty of misleading the court, his petition can be dismissed without considering on merit. The said proposition is applicable to the W.P(C) No.18155 of 2012 -: 30 :- petitioner and the petition is liable to be dismissed, it is submitted by the learned Government Pleader.
26. Per contra, the learned senior counsel for the petitioner, Sri. Kurian George Kannanthanam contended that there had been no material suppressions in this Writ Petition. According to him, though Exts.R1(b) to R1(f) have not been produced along with the Writ Petition, subsequent events after the receipt of Ext.P4 had been put in brief in paragraphs 31 to 40. The non-production of Exts.R1
(b) to R1(f) does not amount to willful suppression as those documents are not material documents in the sense that had the petitioner produced those documents, that would not have had any effect on the merits of the case. The issue involved in this writ petition is a legal issue which arose in the light of relevant provisions regulating the grant of affiliation, provided in the Kannur University Act and Statute thereunder. The fact that after the receipt of Ext.P4, the petitioner approached the 1st respondent for NOC, W.P(C) No.18155 of 2012 -: 31 :- reached upto the level of execution of an agreement and turned back when the 1st respondent insisted for executing an agreement surrendering 50% seats at the rate fixed by Government, is well disclosed in paragraphs 38 to 41 of the Writ Petition. Therefore, there is no willful material suppression of fact. It is further contended that had those documents been produced, that would not have disqualified the petitioner to raise the legal issue involved in this writ petition.
27. Let us consider the question whether there is any 'material suppression' in the pleadings of the writ petition, which would call for dismissal of the writ petition, in limine, without considering the merits of the case.
28. As per settled law, the party who invokes the extraordinary jurisdiction of a High Court under Article 226 of the Constitution of India is supposed to be truthful, frank and open. He must disclose all material facts, without any reservation even if they are W.P(C) No.18155 of 2012 -: 32 :- against him. He cannot be allowed to play 'hide and seek' or to 'pick and choose' the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts.
29. In the leading case of R.v. Kensington, Income tax Commissioners [(1917) 1 KB 486], the object of the above said principle has been succinctly stated by Scrutton L.J. In the following words:
" It has been for many years the rule of the court, and one which it is of the greatest importance to maintain that when an applicant comes to the court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts-it says facts, not law. He must not misstate the law if he can help it-the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts; and the penalty by which the court enforces that obligation is that if it finds out that W.P(C) No.18155 of 2012 -: 33 :- the facts have not been fully and fairly stated to it, the court will set aside any action which it has taken on the faith of the imperfect statement."
Relying on the above decision in K.D.Sharma v. Sail [2008(12)SCC 481], the Supreme Court held as follows:
"A prerogative remedy is not a matter of course. While exercising extraordinary power a writ court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the court, the court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating, "We will not listen to your application because of what you have done." The rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it."
W.P(C) No.18155 of 2012 -: 34 :-
30. Thus, the crux of the settled legal principle is that suppression of 'material facts' would disqualify the petitioner to get relief under the discretionary jurisdiction of Article 226 of the Constitution of India.
31. Then, the question is, what amounts to "material" fact? What is the device to find out material facts?. Certainly, it depends upon the facts and circumstances of each case and a straight jacket formula cannot be evolved for the same. But in R.v. General Commissioners for the purpose of the Income Tax Act for the District of Kensington [(1917) 1 KB 486], Senittan L.J. Held that, "13. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was W.P(C) No.18155 of 2012 -: 35 :- material for the consideration of the court, whatever view the court may have taken."
32. The above proposition has been followed by the decision in S.J.S. Business Enterprises (P) Ltd. v. State of Bihar [2004(7)SCC 166]. Let us examine the question whether there had been any material suppression of facts in this writ petition, in view of the propositions laid down in the above quoted decisions.
33. I have meticulously considered the pleadings in Paras-31 to 40. Para-31 begins, "before going into those legal issues, some factual developments may also have to be brought on record". At the end, Para 40 says, "but for these developments, the petitioner would have approached this Hon'ble Court, early. All these took some time." Going by pleadings in paragraphs 31 to 40, it could be seen that the transaction and negotiation effected with Government after getting Ext.P4 have been pleaded, in these paragraphs, though Exts.R1(b) to R1(f) are not produced along with the Writ Petition. In paragraphs W.P(C) No.18155 of 2012 -: 36 :- 38 and 39, it is stated that when petitioner got Ext.P4, the petitioner approached Government authorities and they insisted for execution of an agreement for seat sharing. Similarly, in paragraph 39, it is stated that negotiations with these authorities went on and ultimately they wanted an agreement to be executed agreeing to surrender 50% of seats at the rate of fees fixed by the Government for which petitioner expressed his inability. Therefore, I am of the opinion that there is no material suppression or concealment of transaction and negotiations with the Government, after the receipt of Ext.P4 and before the filing of the writ petition.
34. The remaining question is whether the non- production of Exts.R1(b) to R1(f) amount to suppression of material documents. Obviously, there are affidavits and a letter issued by the petitioner on the way of negotiation with the Government for getting 'NOC', pursuant to Ext.P4. These are documents in the possession of the 1st respondent in W.P(C) No.18155 of 2012 -: 37 :- the Writ Petition. Where the documents are in the possession of opposite party, how can it be treated as a material suppression, particularly when facts pertaining to the documents are disclosed in the pleadings. So also, it cannot be treated as a suppression of material facts, when the petitioner has not pressed for any interim order before the appearance of the 1st respondent.
35. I may examine the contents of the document also. Ext.R1(a) is a letter sent by the petitioner expressing that Kerala Catholic Engineering College Management Association will enter into an agreement with Government and it will be binding for all the 12 colleges coming under this Association including petitioner college. Exts.R1(b) to R1(f) are affidavits submitted along with the above application for entering into the proposed agreement. In all these affidavits, the petitioner agreed and declared that they will abide by all lawful provisions contained in the agreement, lawful Rules or Orders issued by the W.P(C) No.18155 of 2012 -: 38 :- Government, from time to time. Even if these documents are taken as documents agreeing to enter into agreement with the Government for NOC, they carefully with abundant caution, agreed to abide terms in the agreement, Rules and Orders of the Government, which are lawful only. However, admittedly, the agreement which was agreed to be executed, has not materialised. Therefore, at the most these documents can be treated as an agreement to enter into a lawful agreement and it cannot be taken as an agreement agreeing to waive a legal right or an agreement to accept an illegality. Therefore, even if these documents are suppressed, it cannot be held that had these documents not been suppressed, these documents would have had an effect on the merits of the case. In short, non-production of Exts.R1(b) to R1
(f) cannot be treated as willful suppression of material documents, which entails dismissal of the writ petition, without entering into merits at the threshold.
36. The issue involved in the writ petition is a W.P(C) No.18155 of 2012 -: 39 :- legal issue to which contents of Exts.R1(b) to R1(f) have no bearing at all; so it cannot be held that had it come to the notice of the court at the first instance itself, it would have had an effect on the maintainability of the writ petition or merits of the writ petition.
37. In the result of the above discussions, in the light of the decisions referred above, I am inclined to grant following reliefs:
(1) I declare that the sanction or NOC of the State Government or Director of Technical Education is not required for the 2nd respondent University to grant affiliation for a new course, if AICTE granted approval and University is satisfied about the facilities made available in the college and University cannot insist for the production of the NOC of the Government for the same.
(2) I quash the directions or observations in Exts.P5 to P8 to the extent that NOC of the Government is required for the Kannur University for W.P(C) No.18155 of 2012 -: 40 :- granting affiliation to new courses, despite AICTE granted approval and the University is satisfied with the facilities made available in the college.
The Writ Petition is allowed accordingly.
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K.HARILAL, JUDGE sd P.T.O. W.P(C) No.18155 of 2012 -: 41 :- K.M. Joseph,J.
I have gone through the judgment of my learned Brother and while I agree with the decision rendered as such, I feel it is my duty to make the following observations:
With regard to the findings in Paragraph-33, I feel that it cannot be held that the petitioner has not suppressed facts. The manner of stating the facts done by the petitioner does not as such amount to taking the Court into confidence about the documents produced by the respondents and their contents. There is no case for the petitioner in these paragraphs that the petitioner has sought for No Objection Certificate. But, I agree with my learned Brother that these facts and documents cannot be treated as material in view of the actual decision we are to render on merits.
I cannot also agree with the observation that since the documents were in the possession of the respondent, it cannot be held that there is no W.P(C) No.18155 of 2012 -: 42 :- suppression of material facts. I would think that the writ applicant cannot refuse to take the Court into confidence about material facts justifying his conduct on the supposition that the opposite party has the same and is certain to produce the same. Equally, I express my inability to agree with the observation that it cannot be treated as suppression of material facts when the petitioner has not pressed for any interim order before the appearance of the first respondent. But, I agree with the reasoning of my learned Brother that the facts which were suppressed, cannot be treated as material facts.
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K.M. JOSEPH, (Judge) //true copy// P.S. to Judge