Madras High Court
Ksp Educational Trust vs Government Of Puducherry on 21 November, 2013
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.11.2013
CORAM:
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
W.P.No.24683 of 2013
& M.P.No.1 of 2013
KSP Educational Trust
Rep. By Vice Chairman cum Managing Director
13-a, Mariamman Koil Street
Kathirkamam
Puducherry-605 009. ... Petitioner
versus
1. Government of Puducherry
Rep. By the Secretary
Education Department
Chief Secretariat
Puducherry.
2. The Under Secretary to Government
Education Department
Government of Puducherry
Chief Secretariat
Puducherry.
3. The Director
Directorate of Higher and Technical Education
PIPMATE Complex
Lawspet Road
Puducherry-605 008.
4. The Registrar
Pondicherry Central University
Puducherry.
R-4 suo motu impleaded as per
order dated 4.11.2013
in W.P.No.24683 of 2013 ... Respondents
Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus Calling for the records relating to proceedings vide No.15725/CS(Edn)/E11/2012-501 dated 8.3.2013 passed by the 2nd respondent and quash the same and direct the respondents to issue NOC (No Objection Certificate) to the petitioner for establishing an Arts and Science College in Puducherry.
For petitioner : Mr.P.V.S. Giridhar
For Respondents 1 to 3 : Mr.T. Murugesan
Senior Govt. Pleader
Pondicherry
For Respondent No.4 : Mr.A.V.Bharathy
--------
O R D E R
Introductory:
Whether the State Government is bound to give No Objection to establish a College not withstanding the non-possession of land as per University Grants Commission norms is the core issue that arises for consideration in this writ petition.
Facts in nutshell
2. The writ petition is directed against the order dated 8 March 2013 rejecting the application for issuance of No Objection Certificate (hereinafter referred to as "NCOC") to start a College on the ground of non possession of required land as per the norms prescribed by the University Grants Commission (hereinafter referred to as "UGC").
3. The petitioner is an Educational Trust. The Trust resolved to establish an "Arts and Science College" at Pondicherry. The Trust took 4 acres of land in R.S.No.90/2 and 2 acres of in R.S.No.74/4, situated at Thirubuvanai, Pondicherry from Thenkalai Sri Varadaraja Perumal Devasthanam, Thirubuvanai by way of an unregistered lease dated 27 December 2012 for a period of 99 years. The education department verified the documents produced by the petitioner and having found that the Trust was not in possession of 5 acres of land by way of a registered sale deed as per UGC norms, rejected the application. The said order is under challenge in this writ petition.
4. Since the Pondicherry University is a necessary party to the writ petition, I have impleaded the University as fourth respondent.
Submissions:
5. The learned counsel for the petitioner by placing reliance on the norms prescribed by the UGC contended that the requirement regarding possession of 5 acres of land should be satisfied only at the time of inspection by the University. The learned counsel submitted that the application is only in the NOC stage, and the petitioner would produce a sale deed or a registered lease deed for a period of 99 years at the time of inspection by the University. The learned counsel further contended that the Government of Pondicherry was not expected to look into all these requirements as per UGC norms, while processing the application for NOC.
6. The learned Senior Government Pleader for Pondicherry submitted that the Government have followed the UGC norms and rejected the application.
7. The learned counsel for Pondicherry University by producing the Ordinance submitted that the appellant must possess minimum of 5 acres of land even to consider the application for establishing a College. The learned counsel further contended that in case the State Government issues No Objection Certificate without verifying the availability of land and other basic requirements, it would create a bad precedent and the University would be compelled to process even invalid applications and ultimately, it would be a futile exercise.
Discussion:
8. The petitioner wanted to establish a College offering Arts and Science education in the Union Territory of Pondicherry. The petitioner is not in possession of 5 acres of land in its name. The petitioner has taken 6 acres of land by way of an unregistered lease, for a period of 99 years. No reliance could be placed on the said document for want of registration and in the absence of documents indicating the ownership and possession of land by devasthanam and the right to give a lease without the permission of Government of Pondicherry.
9. There is no dispute that there is a statutory requirement to obtain prior permission from the concerned State/Union Territory Government so as to make an application for affiliation before the University. The UGC norms and the Ordinance of the Pondicherry University contain provisions prescribing such permission. Therefore it is clear that the NOC from the State is a mandatory requirement for establishing an Arts and Science College.
10. The UGC Regulations (Affiliation of Colleges by Universities) Regulations 2012 provisions regarding eligibility criteria for temporary and permanent affiliation. Regulation 32 deals with criteria for temporary affiliation. The Regulations which are applicable to the subject case reads thus:
"3.1 The proposed college seeking affiliation, at the time of inspection by the University, shall satisfy the following requirements or the requirements in respect of any of them prescribed by the Statutory/Regulatory body concerned in the case of technical/professional courses only. 3.1.1. Undisputed ownership and possession of land free from any or all encumbrances measuring not less than 1.5 acres if it is located in mega cities, 2 acres if it is located in metropolitan cities and 5 acres if it is located in other cities."
11. The Ordinances Governing Academic Matters framed by the Pondicherry University also contained a similar provision regarding requirement of land. It reads thus:
"Land requirement for starting various colleges/institutions:
College of Arts, Humanities and Sciences (including colleges offering three year catering and hotel management courses):
Suitable single plot of land measuring not less than five (5) acres owned and possessed by the applicant and possessed by way of 99 years lease for construction of the college.
12. Since Pondicherry is neither a Mega City nor a Metropolitan Area, the applicant should possess 5 acres of land for submitting application for affiliation. The land should be a single plot and it should be contiguous.
13. The learned counsel for the petitioner by placing reliance on Regulation 3.3 of the 2009 Regulation contended that there is a power to relax the condition regarding possession of 5 acres of land in exceptional cases to start the college for the first year. There is no merit in the said contention. Regulation 3.3 deals with the power of University to permit the Trust/Society to start the first year of the program in a readily available building. The further condition regarding the necessity to commence the construction of own building and to complete by the end of second year would make the position very clear that there is no relaxation with respect to possession of 5 acres of land. The exemption is only with respect to the own building as per specification. The possession of sufficient land is therefore a mandatory requirement. Even the University has no power to grant relaxation with respect to possession of 5 acres of land.
14. The core question is whether the State would be justified in rejecting the application for NOC solely on the ground of non possession of land as per UGC norms.
15. Regulation 4.4.5 of the UGC Regulations and Clause 5(f)(b) of Admission of Colleges/Institutions to the Privileges of the University provides for permission from the State Government to start the college.
16. The permission from the State is not automatic. The State must ensure that the Trust/Society has complied with the UGC norms regarding establishment of a College. The State is not a post office to forward the application to the University.
17. This Court has seen the cases of Essentiality Certificate issued by the Government of Tamil Nadu without the availability of facilities as per medical council of India norms and the ultimate rejection of application by the Medical Council. The Government is the appropriate authority at the first instance to decide as to whether the State requires another College and if so, whether the applicant has satisfied the requirements of the relevant statute. The State has got a definite role to play in a matter of this nature.
18. The statistics produced by the Government of Pondicherry while considering the writ petition filed by the students of Kerala, who are residing in and around Mahe, seeking admission to the vacant seats in Mahatma Gandhi Government Arts College, Mahe shows that several Government Colleges are having vacancy in Arts and Science Stream every year. Since the application was rejected at the first instance itself on account of the failure to comply with the requirements of UGC norms, the Government appears to have not indicated the said factual position in the order impugned in this writ petition.
19. The petitioner has come up with a contention that the trust has taken 6 acres of land from a temple. The temple is stated to be an institution administered by the Puducherry Hindu Religious Institutions Act, 1972 (hereinafter referred to as "the Act"). Section 25(1) of the Act prohibits a lease exceeding three years, unless permission is granted by the Government. The President of Tenkalai Sri Varadaraja Perumal Devasthanam has no right to give a lease of temple land for a period of 99 years to the trust. The unregistered lease for a period of 99 years is legally invalid.
20. The idol is deemed to be a minor. The Supreme Court has made it clear that the Court is the guardian for the idol. Since the President of Thenkalai Sri. Varadaraja Perumal Devasthanam has flouted the previsions of HR &CE Act by giving long lease of temple property, necessarily action should be taken against all concerned.
21. The present Board by giving a lease of temple land for 99 years prima facie violated Section 25(1) of the Act and thereby attracted Section 5A(1) of the Act and consequential action under Section 5B of Act 10 of 1972.
22. The Secretary, HR & CE Department, Pondicherry must look into cases of this nature and appropriate action should be taken against all concerned, in case permission was not given by Government of Pondicherry to grant the lease or sale of temple property. In case this tendency of giving temple property on lease/sale is permitted, public interest would suffer. The Government of Pondicherry must take cognizance of statutory violations and action against those who were instrumental in showing "charity" by parting with temple land treating it as their private property.
23. The learned counsel for the petitioner submitted that before inspecting the institution by the University, the trust would arrange 5 acres of land. The inspection would take place within a reasonable time after submission of application. If that be the case, the trust can procure the land now itself, and the documents could be produced before the Government for consideration of the application for permission.
24. In case the State has no role to play there is no need to incorporate a provision in the UGC Regulations and the Regulations framed by Pondicherry University mandating prior permission from the State.
25. The impugned order shows that the application was not entertained on account of non possession of land as per UGC norms. The grant of NOC is not automatic, the moment application is given. The applicant must show that the Trust/Society has complied with the essential requirements of establishing the institution. It is true that there are certain statutory requirements and its compliance should be verified only by the UGC/University. However, that is not the case with regard to land. The possession of land is a primary requirement which cannot even be relaxed. In case the applicant failed to satisfy even the basic requirement for making an application for permission to establish a college the State would be justified in rejecting permission.
26. In case applications of this nature are entertained from Trusts/societies, without complying even the basic statutory requirements, there would be mushroom growth of such applications. The NOC in such cases would become a saleable commodity.
27. The application for permission was given on 21 January 2013. It was rejected on 8 March 2013. The writ petition was filed on 30 August 2013. Even after the expiry of more than nine months from the date of application and eight months after passing the order of rejection, the petitioner is not in a position to procure 5 acres of land. The trust is now saying that the required land would be procured before inspection by the University. There is no bonafides in the said contention on account of the background facts referred to above.
28. Therefore on a careful consideration of the factual matrix in the light of the UGC Regulations and the ordinance of Pondicherry University, I hold that the Government of Pondicherry was correct in rejecting the application.
29. In the upshot, I dismiss the writ petition. Consequently, connected miscellaneous petition is closed. No costs.
21 .11.2013 Note to Registry:-
Besides respondents the Registry is directed to forward a copy of this order to
(i) The Secretary to Government HR & CE Department Pondicherry
(ii) The Collector Pondicherry.
Index: Yes/no Internet: Yes/no Tr/ To
1. Government of Puducherry Rep. By the Secretary Education Department Chief Secretariat Puducherry.
2. The Under Secretary to Government Education Department Government of Puducherry Chief Secretariat Puducherry.
3. The Director Directorate of Higher and Technical Education PIPMATE Complex Lawspet Road Puducherry-605 008.
4. The Registrar Pondicherry Central University Puducherry.
K.K.SASIDHARAN, J.
Tr W.P.No.24683 of 2013 21.11.2013