Madras High Court
Association Of University Teachers, ... vs All India Council For Technical ... on 11 January, 1999
Equivalent citations: AIR1999MAD164, AIR 1999 MADRAS 164, (1999) WRITLR 219
ORDER S.S. Subramani, J.
1. Petitioner seeks issuance of writ of certiorarified mandamus, calling for the order of 1st respondent F. No. 732-52-046/ (NDEG)/ ET/97 dated 17-6-1998 in so far as it grants approval for stalling Saranathan College of Engineering at Dindigul Road, Tiruchirappalli-1, i.e. in the premises of the National College, Trichy-1 and to quash the same, and direct the respondents not to grant approval for carving out of the properties of the National College, Trichy-1 to start a self-financing private Engineering College, except by process of law, and pass such further or other orders as this Court may deem fit and proper.
2. The writ petition is filed by an Association of University Teachers of the National College Unit represented by its President.
3. National College, Tiruchirappalli is a private aided college, and the same is governed by the Tamil Nadu Private Colleges (Regulation) Act, 1976. The National College is governed by the National College Council which is the educational agency. The National College was started in the year 1886 in the form of National High School and was raised to the status of a secondary grade college and subsequently as a first grade college in 1924, and got affiliated and shifted to the present area, namely, Dindigul Road, Trichy in 1959. The College campus is spread over in am area of 28 acres. On the Eastern Side across road, there is an area of 7 1/2 acres of land wherein the College Hostel is situated, while the entire college buildings are situated on the western side in the said area of 28 acres of land. The Golden Jubilee Block situated in the College premises was built-up with the cost of University Grants Commission apart form the Hostel building. The Administrative Block was also built up with necessary UGC grant. The National College, Trichy is an aided non-minority private college governed by the provisions of the Tamil Nadu Private Colleges (Regulation) Act, 1976 with 100% teaching grant given by the Government. Under Section 26 of the Act, the Educational Agency of the College ought to have sent to the Authorities a statement regarding the movable and immovable properties of the College. Section 27 of the Act imposes a restriction on the transfer of the Private College property either by sale, exchange, mortgage, change, pledges, etc. or in any other manner whatsoever except with the previous permission of the Competent Authority and any such transfer is null and void. Even the Competent Authority under the Act, namely, the 4th respondent herein, can grant permission only if the transfer is in furtherance of the purposes of the Private College or similar purposes. The properties of the National College are its properties and, therefore, even the Educational Agency cannot transfer the same.
4. Reason for filing the writ petition is, the educational agency, i.e., second respondent in this case decided to establish a private Engineering College under its control on a self-financing pattern. Since the proposal to start such a college was within the premises of the National College, petitioner objected the same since it would amount to violation of the Private Colleges (Regulation) Act apart from depriving the National College its properties and amenities available to the students with historical characters. Second respondent, as per letter dated 24-2-1998, admitted that the private Engineering College was proposed to be started in the Karumandapam Campus of the National College by carving out an area of about 11 acres. A proposal was made by second respondent to the first respondent for granting approval for starting a private engineering college. Based on the proposal submitted, first respondent has given an approval dated 17-6-1998. First respondent has permitted the second respondent to start First Year Course in B.E. in Electrical and Electronic Engineering and also other Courses at the premises of Seshaslayee Institute of Technology, Ariyamangalam, Trichy, and continue from 1999-2000 at National College premises at Dindigul-Trichy Road, Trichy. According to the petitioner, the order of first respondent is contrary to the Tamil Nadu Private Colleges (Regulation) Act, 1976. It is said that the second respondent has no authority to carve out a portion of the property belonging to the National College, Trichy, for starting a self-financing Engineering College. Without obtaining prior permission from the Competent Authority under Section 27 of the Tamil Nadu Private Colleges (Regulation) Act, second respondent is not entitled to make use of the properties of the College for any other purpose, even if it for educational purpose. It is said that for the purpose of starting a College, constructions of the National College are being demolished, and new constructions are attempted to be put up. The same is sought to be prevented by issuance of an order of injunction. It is for the above reasons, petitioner has come to this Court for the aforesaid relief.
5. Separate counter affidavit has been filed by respondents 1 and 2.
6. In the counter filed by first respondent, it is said that when an application was made by second respondent for starting an Engineering College, a Letter of Viability was issued imposing certain conditions. In the Letter of Viability, second respondent was directed to submit certain documents regarding ownership of land and also a joint fixed deposit, as required by the Regulations. On compliance of the above conditions, an Expert Committee visited the Institution, and, on the basis of the recommendations of the Expert Committee, permission was granted for starting a self-financing college. According to first respondent Council, the allegations made against it are without any bonafides. It therefore prayed for dismissal of the writ petition.
7. In the counter affidavit filed by second respondent, it is said that the National College Council, Tiruchirappalli is a registered Society, and that it is the Educational Agency. The Agency has established various Institutions from the year 1886 to 1990. The National College was started in the year 1919 at Dindigul Road, Trichy. The Educational Agency wanted to start a self-financing Engineering College and a unanimous decision was taken by the Managing Committee on 12-10-1997 to establish an Engineering College under the name 'Saranathan College of Engineering,' to perpetuate the memory of the most illustrious, renowned and tallest Principal of the National College, late V. Saranalhan. In the same meeting, it was decided to carve out and allot an area of about 12 acres of land out of the lands measuring 27.78 acres owned by and belonging to the National College Council at the Karumandapam Campus, Dindigul Road, in a portion of which the National College is located. Based on the resolution, second respondent submitted an application to the first respondent-Council for permission. Letter of Viability was issued by 1st respondent-Council on 12-2-1998. An area of 13.51 acres was earmarked to provide necessary infrastructure such as putting up necessary buildings to have laboratories, library, lecture halls, etc. for the proposed Engineering College. A playground measuring 5.54 acres was also earmarked specifically. First respondent-Council, after being satisfied that the land belongs to the National College Council, second respondent herein, granted permission for starting the Engineering College. Thereafter, a formal application was submitted to third respondent-University, and affiliation was granted on 8-7-1998. The Government of Tamil Nadu also accorded approval for the opening of a new self-financing engineering colleges. According to 2nd respondent, the entire land of 27.78 acres in the Dindigul Road belongs to and is owned by the National College Council, the Educational Agency. The National College, Trichy is accommodated in a portion of the land. No portion of the land has been specifically rimarked for the National College, Tiruchy. It is said that as per the present norms, an area of three acres would be sufficient for an Arts and Science College in a Municipal Corporation. It is said that the 2nd respondent-College Council is well within its right to allot any portion of the land to another Institution run by it, and for that, prior approval of 4th respondent herein is not required. It is further said that the Golden Jubilee Block was put up in 1970 by the Management out of its own funds, and the extensions were put up by partly utilising the UGC aid and partly by providing a matching amount by the Management. The total expenditure of Rs. 6,92,117/- for the extensions was met as follows: UGC Aid Rs. 3,75,000/- and N.C. Council's Fund Rs. 3,17,117/-. According to 2nd respondent, no Government or UGC Grant was ever received for the construction of either the Hostel or the Administrative Block. It is said that the provisions of Section 27 of the Tamil Nadu Private Colleges (Regulations) Act, 1976 are not at all applicable inasmuch as the Saranathan College of Engineering has also been established by the National College of Engineering has been established by the National College Council, and the National College Council, second respondent herein, is well within its rights in allotting any portion of the land to any institution run by it. It is further said that the 3rd respondent University has granted affiliation only after following the prescribed procedure, and the grant of affiliation is clearly legal and in order. There is no transfer of any kind and consequently there is no violation of Section 27 of the Act. It is also said that the Order of Approval of the first respondent is not vitiated. Second respondent, therefore, prayed for dismissal of the writ petition.
8. The only question that arises for consideration in this writ petition is, whether the second respondent was justified or has got the power to carve out a portion of the National College Campus for the purpose of establishing a self-financing engineering college.
9. It is admitted that the title deeds in respect of the entire extent of 27 and odd acres of land situated at Dindigul Road, Trichy, stands in the name of the Society, i.e., the National College Council, which is the second respondent in this case. It is in this property me National College is situated. It is also admitted that the provisions of the Tamil Nadu Private Colleges (Regulation) Act will apply to the said College.
10. Section 2 (4) of the Act defines 'educational agency. Relevant portion of that Section reads thus:--
2. Definitions.-- In this Act, unless the context otherwise requires --
(4) "educational agency" in relation to --
(a) .....
(b) any other private college, means any person or body of persons permitted or "deemed to be permitted under this Ordinance to establish and maintain such other private college."
Section 4 of the Act deals with 'Application for permission and sending of statement.' In this case, the College was in existence long before the Act came into force. But, even regarding existing colleges, Section 4 (3) contemplates sending of a statement. One of the particulars that has to be filled in the Statement is the situation and the description of the buildings in which such private college is proposed to be established. Chapter III deals with College Committee and its Constitution and Functions. Section 14(1) says that 'Subject to the provisions of this Ordinance and the rules made thereunder, the College Committee shall have the following functions, namely; (a) to carry on the general administration of the private college excluding the properties and funds of the private college. Section 25 of the Act prohibits a private college being closed down without notice and without satisfying certain conditions. Sections 26 and 27 are relevant for out purpose. They read as follows:
"26. Educational agency to send list of properties:--
The educational agency shall, on or before the prescribed date in each year, furnish to the competent authority a statement (with such particulars as may be prescribed) of every
(a) movable property of not less than such value as may be prescribed; and
(b) immovable property of the private college.
27. Restriction on alienation of property of private college:--
(1) Notwithstanding anything contained in any other law for the time being in force or in any deed, document or instrument having effect by virtue of such other law-
(a) no property of a private college shall, except with the previous permission in writing of the competent authority, be transferred by way of sale, exchange, mortgage, charge, pledge, lease, gift or any other manner whatsoever; and "(b) if any such property is transferred without such permission, the transfer shall be null and void.
(2) The competent authority may --
(a) grant the permission under Clause (a) of Sub-section (1) if the transfer is made in furtherance of the purposes of the private college or of similar purposes approved by the competent authority; and the assets resulting from the transfer are to be wholly utilised in furtherance of the said purposes; and
(b) in granting such permission, impose such conditions as it deems fit to ensure that such assets are wholly utilised in furtherance of such purposes; but a contravention of any such condition shall not invalidate the transfer;
Provided that the permission shall not be refused under this section unless the applicant has been given an opportunity of making his representations.
Explanation I :-- For the purposes of this Section, 'property' means any --
(a) movable property of not less than "such value as may be prescribed; and
(b) such immovable property as may be specified in the Rules made in this behalf.
Explanation II:-- In this section and Sections 28 and 29 'private college' does not include a minority college."
Section 29 provides for utilisation of funds and property of private colleges. It reads thus:--
"29. (1) All the moneys'collected, grants received and other property held by or on behalf of a private college shall be utilised for the purposes for which they are intended and shall be accounted for by the educational agency in such manner as may be prescribed.
(2) A private college may invest or deposit the fund --
(a) in any corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (Central Act V of 1970) or Post Office Savings Bank; or
(b) in any of the securities specified in Section 20 of the Indian Trusts Act, 1882 (Control Act II of 1882); or
(c) in such other made as may be "prescribed."
Section 53 under Chapter IX of the Act deals with the power of the Government to fame Rules. Rules have been framed. Rules 17 and 18 are relevant for our purpose. They read thus:--
"17. Educational Agency to send list or properties:--
(1) Every educational agency shall, on or before the 1 st day of July of each year commencing from the 1st day of July, 1976 send to the competent authority a statement of all movable properties the value of which, individually not less than Rs. 100 (Rupees one hundred only) and where there are more than one article of the same category, if the total value of such articles exceeds Rs. 500/- (Rupees five hundred only) and a statement of all immovable properties. The statement in respect of immovable property, shall contain the following particulars and it shall be authenticated by the educational agency;--
(a) Name of the property.
"(b) Description, address and location.
(c) Area, extent together with the Survey Number.
(d) In the case of cultivable land, its classification and the crops grown.
(e) Market value.
(f) Financial income derived from the property.
(g) Remarks, if any."
Rule 20 deals with utilisation of funds and property of college. It reads thus:--
"20. (1) The funds of the college shall be utilised for the bona fide purposes connected with the college.
(2) The educational agency shall not direct the funds of the college from one purpose to another, without the previous permission in writing of the Director.
(3) In case where donations as collected with the previous permission of the competent authority for any specific or earmarked purposes they shall be utilised only for such purpose. Balance amount, if any, shall be credited to the funds of the College."
11. On going by the provisions of the Act, nowhere the property of the college has been defined. But at the same time, Sections 26 and 27 state about the filing of statement regarding the immovable property of private college, and no portion of the property of the private college is liable to be dealt with except with the permission of the Competent Authority.
12. Learned Counsel for respondent No. 2 submitted that when there is no definition as to the property of the private college, it must be understood as is known in common parlance. When the exclusive title vests in the second respondent, and if the College has no title to the property, then th'ere is no question or violation of either Section 27 of the Act or the Rules. The argument is that the title deeds stand in the name of the educational agency, i.e. 2nd respondent, and in a portion of the property, the National College has been established, and it is for the educational agency to decide whether any educational institution could be established in the property, and there is no question of getting any consent from the Competent Authority under Section 27 of the Private Colleges (Regulation) Act in such cases. Since the very same educational agency is starting a professional college, there is also no transfer which alone requires consent from the Appropriate Authority.
13. As against the said contention, learned Counsel for petitioner submitted that once a College is allowed to be established in a property, that property belongs to the College though the title deed may stand in the name of the educational agency. It is, after considering the details of the property, permission is granted either to establish a college or allow the agency to continue the college which is already in existence. Even if the norms may prescribe a lesser extent to establish a College, if the educational agency has held out a larger area, as the property of the private college, that property must be taken as the property of the National College. Learned Counsel also argued that the funds and property of the College cannot be utilised except for the purpose of the College and the establishment of an Engineering College cannot be said as a purpose of the National College, which is only an Arts and Science College.
14. Which of these rival submissions should be accepted, is the only question be decided in this writ petition.
15. 1 have already extracted the relevant portions of the Act. According to me, a reading of Section 27 of the Act gives a clue to identify the property of a College. In the Explanation I to Section 27, it is said that the property means any (a) movable property of not less than such value as may be prescribed and (b) such immovable property as may be specified in the Rules made in this behalf. I have also extracted Rules 17 and 18. Under Rule 17, the educational agency has to send to the Competent Authority a statement of all movable properties and also a statement of all immovable properties. In the statement regarding immovable properties, various other particulars also have to be given including the area, extent, together with Survey Number. Even the financial income derived from the property has to be furnished. In Rule 18 (1), it is said that 'the movable and immovable properties referred to in Rule 17 shall be the movable and immovable properties for the purpose of Section 27. In view of this Provision, the properties which are included in the statement by the educational agency are treated as the properties of the College. In paragraph 4 of the affidavit, it is said that the educational agency has to send to the Competent Authority a property statement regarding the movable and immovable properties in the College. In the counter-affidavit, the duty of the educational agency to submit such a statement is not denied. Though learned Counsel for second respondent, at the time of arguments, submitted in answer to a question put by Court that it has not filed any property statement. I do not think that the said submission could be accepted. The filing of a property statement every year is a statutory duty of the educational agency, and failure to discharge such statutory duty will result in certain penal consequences. The filing of such a statement is mandatory under Section 26 of the Act read with Rule 17 of the Rule framed thereunder. Again, under Section 10 (2) (i) of the Act, if the educational agency is not complying with the provisions of the Act or the Rules or directions, even the grant given to it could be withdrawn. Under these circumstances, the submission of learned Counsel for second respondent cannot be accepted.
16. It is, therefore, clear that all the properties covered by the statement shall, for the purpose of Section 27 of the Act, be treated as properties of the College. It is not, in whose name the title deed stands is to be considered, but whether the educational agency has treated the property as the property of the College, is the relevant material. It is in the nature of a dedication or for the exclusive use of the College. Once the property is earmarked for the exclusive use of the College and it is taken as the property of the College, for the purpose of Section 27 of the Act, a duty is cast on the educational agency to administer and manage the properly of the College for the benefit of the College. When this right is recognised, the grant is also given for the College. If the argument of learned Counsel for second respondent is accepted that the ownership of the agency is separate and the same has nothing to do with College, then serious consequences are likely to arise. For example, if the educational agency incurs a debt, and if the title is separately retained, for recovery of the debt, even the property in which the College is established, could be sold. That means, the very College will cease to exist. At the same time, under law, it is said that the properties of the College are not liable to be sold or alienated. Even without permission, the management of the College could be transferred, and the property could be transferred, and even the institution can cease to exist. Therefore, I do not think that the submission of learned Counsel for second respondent could be accepted. Even if the educational agency is the absolute owner and title-holder of the property, the College becomes the beneficial owner of the same, even though it may not have a separate title deed in its name.
17. In 'Dias - Jurisprudence'--Fifth Edition (1994), commenting on 'Ownership' in Chapter 14, the learned Author has said thus:--
"The claims, etc. which comprise the content of ownership may be vested in persons other than the owner. Whether these others may themselves be treated as 'owners' depends on whether the conventions of the law treat their interests as 'things.'"
In the same book, at Page 299, commenting on 'ownership and the allocation of benefits and burdens,' the learned Author has said thus:--
"The social aspects of ownership reveal the manner in which its content came to be regulated over the years so as to determine how and to what extent an owner shall enjoy his interest in a manner compatible with the interests of others. It has been stated that this content consists of innumerable jural relations, which establish relationship between the owner and other persons in society. The extent of these reflects the social policy of the legal system. Broadly speaking, ownership normally carries with it claims to be given possession, against interference, and to the produce, rents and profits. There are liberties to use and misuse and to exercise various powers. There are also powers of alienation and disposal, creation of limited interests, and so forth. There are also immunities, e.g.. against deprivation.
The scope of these benefits is bounded by corresponding burdens, which are an integral part of ownership. There are various duties, liabilities and disabilities, which prescribed and regulate how an owner should utilise his property for the benefit of other individuals or society. An example of a liability in favour of another person is liability to execution, which is leviable only on property owned by a debtor; and examples of liability in the social interest is liability to pay rates, to various forms of "wealth and property tax. In modern times landowners are under increasing disabilities as to renting or disposing of their property. In countries where a racial policy obtains, there are restrictions on the ownership of certain kinds of property, or the exercise of various liberties powers pertaining thereto, by members of a particular race.
An important restriction on ownership in the interest of another person is seen in the distinction between 'legal' ownership at common law and 'equitable' ownership at equity." This occurs when there is a trust, which is the result of the peculiar historical development of English law. A trust implies the existence of two kinds of concurrent ownerships, that of the trustee at law and that of the beneficiary at equity and is perhaps the outstanding product of the policies and values of judges of the old Court of Chancery. The ownership at law of the trustee was admitted in equity, but considerations of justice demanded that the content of his ownership should he exercised for the benefit of another person who did not enjoy ownership at law. . . "
18. In 'Salmond on Jurisprudence' -- 12th Edition, (1966), while dealing with 'Trust and beneficial ownership,' the learned Author has said thus --
"A trust is a very important and curious instance of duplicate ownership which allows for the separation of the powers of management and the rights of enjoyment. Trust property is that which is owned by two persons at the same time, the relation between the two owners being such that one of them is under an obligation to use his ownership for the benefit of the other. The former is called the trustee, and his ownership is trust ownership; the latter is called the beneficiary; and his i's beneficial ownership.
The trustee is destitute of any right of beneficial enjoyment of the trust property. His ownership, therefore, is a matter of form rather than of substance, and nominal rather than real. If we have regard to the essence of the matter rather than to the form of it, a trustee is not an owner at all, but a mere agent, upon whom the law has conferred the power and imposed the duty of administering the property of another person. In legal theory, however, he is not a mere agent but an owner. He is "a person to whom the property of some one else is fictitiously attributed by the law, to the extent that the rights and powers thus vested in a nominal owner shall be used by him on behalf of the real owner. As between trustee and beneficiary, the law recognises the truth of the matter; as between these two, the property belongs to the latter and not to the former. But as between the trustee and third persons, the fiction prevails. The trustee is clothed with the rights of his beneficiary, and is so enabled to personate or represent him in dealing with the world at large."
19. An educational institution is established for the benefit of the public. It is, taking into consideration the public interest, sanction is given to the agency to establish an institution. While obtaining permission, the educational agency also agrees that the institution will be managed and administered in accordance with the provisions of the Statute and the relationship as between the College and the Educational Agency takes fiduciary character. It assures the Authorities that the management will be for the benefit of the institution, and believing that statement, permission is also granted.
20. According to me, on going by the provisions of the Tamil Nadu Private Colleges (Regulation) Act, the second respondent has represented or is holding out the entire property that belongs to the National College, and, by virtue of Rule 18 read with Section 27 of the Act, the same has to be treated as the property of the College.
21. The argument of learned Counsel for second respondent also can be met in another way. Petitioner has produced the replies to the Questionnaire of the General Inspection Commission, University of Madras, 1971-72. wherein it is the College is spread over an area of 28 acres, and the buildings and laboratories are worth over Rs. 32 lakhs. The petitioner has also produced among the typed set of papers the reply statement by the educational agency regarding the Questionnaire raised by Bharalhidasan University. In that Questionnaire, reply regarding 'Accommodation' reads thus:--
"Total area of the campus : 7, 18, 792 sq. ft.
Total area of classrooms : 1,17,080. sq. ft"
Within that area, it is said that there arc various buildings including a playground area of 2,33,550 sq. ft. It is further said in Column No. 13 regarding land that the total area of land for housing the College is given as 7,18,792 sq. ft. Another area reserved for future expansion comes to 3,85,949 sq. ft. (approximately).
22. 7,18,792 sq. ft. comes to 16 1/2 acres and 3,85,948 sq. ft. comes to 8 acres 86 cents, and both of them come to more than 25 acres of land. The correctness of this statement not disputed by the respondents also. Even if the property statement is not before this Court, this answer to the questionnaire will amount to an admission as properties of the College. It is clear from this statement that the second respondent was holding out or representing to the Authorities that the entire extent of land is for the exclusive use and for the benefit of the National College, Tiruchirappalli. Even though there may not be any transfer deed in the name of National College, the fact that the property is earmarked for National College is admitted. It is more or less a declaration by second respondent that the property is to be exclusively used only for the purpose of National College. The beneficial interest goes only to the National College. In view of the statutory provision under Section 27 of the Act read with Rule 18 of the Rules framed thereunder, and also along with the representation made by second respondent that the property is earmarked for the National College, it could be said that the equitable or beneficial owner of the property is the National College, and, therefore, the educational agency (2nd respondent) cannot deal with the same as it likes. As between the educational agency and the National College, the beneficial right vests with the College only, though as against third parties the educational agency has to deal with the same. The Educational Agency can deal with the property only for the benefit of the College and not for any other purpose.
23. Section 29 of the Act and Rule 20 framed thereunder, also say that the funds of the College can be utilised only for the purpose and benefit of the College, and if any donation is received, the same also shall be utilised only for the purpose for which the donation was given, and the balance also should be credited to the funds of the College. The Educational Agency by itself may not have any right over those funds.
24. Second respondent has also filed typed set of papers to show that they have complied with all legal formalities for establishing a self-financing College. Resolution of the Managing Committee of the National College Council dated 12-10-1997 was also placed before me. Resolution No. 2 reads thus:--
"The Secretary appraised the Committee of the steps taken by him to identify a suitable site in the Karumandapam Campus for locating the proposed Engineering College. The Secretary had the hostel campus measured by a Surveyor (Tajudeen). The hotel campus measures 7-89 acres (as per document 7-51 acres i.e., 5-27 + 2-24). This shall be bifurcated and an area of 4 acres or thereabout be earmarked for the proposed self-financing Engineering College. Regarding the National College, Tiruchy Campus which measures 20-27 acres - it was resolved that the southern portion comprising the Golden Jubilee Block of the portion south to it and the PUC Block and a portion to the North of the Golden Jubilee Block be earmarked for the proposed self-financing Engineering College. It is roughly estimated that an extent of 7 to 8 acres or thereabout can easily be carved out of the National College. Trichy Campus. Thus, we will have a total area of 11 to 12 acres or thereabout for the proposed self-financing Engineering College.
"It was also, unanimously resolved that the proposed Engineering College be named as 'SARANATHAN COLLEGE OF ENGINEERING' after the most illustrious Principal of the National College. Necessary application may be made to the A.I.C.T.E."
From the Resolution, it is clear that the College campus is now being bifurcated.
25. The College building and the hostel are situated on two sides of the property, and in between, there is a road. The College is situated in an area of 13 acres and the hostel is situated in an area of more than seven acres of land. Not only the hostel complex is bifurcated, even the college building is bifurcated by virtue of the Resolution. It is in consequence of this Resolution, further action was taken by second respondent in carving out the area for establishing an Engineering College.
26. Learned Counsel for second respondent submitted that as per the AICTE Regulations, even if there is any other educational institution in the area in which the Engineering College is proposed to be established, the only Rule is that there must be an irrevocable resolution earmarking a particular area for establishment of the College. Learned Counsel relied on the Letter of Viability dated 12-2-1998 issued by the AICTE, for the said purpose. Relevant portion of that letter reads thus:--
"In case the applicant society/trust is running any other educational institution in the same land where the new institution is proposed to be setup, a registered irrevocable resolution of the applicant society/trust stating that land as per AICTE norms has been earmarked specifically for setting up the proposed institution."
It is true that in the Letter of Viability, first respondent has stated so. But, that by itself will not give the second respondent a right to deal with the property over which the College has got a beneficial right as it likes, when the property is treated as the property of the College as per Section 27 of the Act read with Rule 18.
27. Learned Counsel for second respondent submitted that since it is the same educational agency, there is no question of any transfer and, therefore, Section 27 has no application. I have already dealt with this argument in the earlier portion of this Order. Section 29 of the Act and Rule 20 prohibit the educational agency from dealing with the property except for the bona fide purpose of the College. Starting an Engineering College is not a purpose having nexus to an Arts and Science College. Learned Counsel submitted that the restrictions under Section 27 of the Act are, transfer by way of sale, exchange, mortgage, charge, pledge, lease gift or any other manner whatsoever. Learned Counsel submitted that when the expression 'any other manner whatsoever' is there, the principle of ejusdgm generis applies. So, it must be a transfer inter vivos of whatever kind, is the argument of the learned Counsel, I do not think that the said submission could be accepted. In my opinion, Sections 28 and 29 will have to be read together, and putting the property to a different use also will be a violation of Section 27 of the Act. It is not only a transaction inter vivos. but a transaction or dealing with the property for another use except for the purpose of the College also will be prohibited.
28. In this connection, it may also be noted that before the first respondent, the Association submitted a Memorandum on 11-6-1998. Tn paragraphs 7 and 8 of that Memorandum, it is said that for the purpose of putting up a construction, grant is obtained from University Grants Commission.
29. In the counter-affidavit of 2nd respondent, in paragraph 17, it is also admitted that at least an amount of Rs. 3,75,000/- was received by it for putting up extension buildings in the Golden Jubilee Block. This building is sought to be demolished for the purpose of putting up the Engineering College. It could be seen from the Memorandum that a Block consisting of 11 classroom will have to be demolished for the said purpose. An injunction has been granted when the writ petition was admitted. When a building has been constructed with the UGC Grant, it cannot be made use of for any other purpose, nor can the Educational Agency demolish the same. The building admittedly belongs to the College. Even though the Educational Agency is the title-holder, it cannot deal with the property or the building as it likes.
30. First respondent has not considered any of these facts, and, merely on the basis of the title deed, it has granted permission to start an Engineering College. When the second respondent is also governed by the provisions of the Tamil Nadu Private Colleges (Regulation) Act, first respondent should have at least considered whether any permission is required from the concerned Authorities under that Act. The statutory requirements have not been complied with, and second respondent by itself is not competent to earmark any area on its own accord.
31. It is at this juncture, learned Counsel for second respondent further submitted that the Government itself has given consent for establishing a College, and that it has expressed its No objection by its letter dated 25-8-1998. When the Government itself has expressed its no objection, it has to be presumed that even the technical argument of learned Counsel for petitioner has been complied with. I do not think that the said submission could be accepted. Permission under Section 27 of the Act is by the Competent Authority under the Act. The Government is not the Competent Authority. The No Objection Certificate issued by the Government cannot be equated to a permission by the Competent Authority under the Act. The affiliation given by Bharathidasan University also is of no avail since these facts were not taken into consideration by it while granting affiliation.
32. In the result, the writ petition is allowed, and the approval granted by first respondent by its letter dated 17-6-1998 is declared invalid, since there is no permission of the Competent Authority as per the provisions of the Tamil Nadu Private Colleges (Regulation) Act.
33. Second respondent has not started the Engineering College in the campus this year. They propose to start the College only during the Academic Year 1999-2000. Second respondent is prohibited from starling the self financing engineering college in the property of the National College, or making use of the property of the National College for any purpose other than the purpose of the College. No costs. I make it clear that this order shall not stand in the way of the second respondent-Educational Agency starting an Engineering College after obtaining necessary permission from the Competent Authority as per the Tamil Nadu Private Colleges (Regulation) Act. Connected W.M.Ps. are closed.