Madras High Court
The Dhaya College Of Engineering vs The Secretary To Government on 21 October, 2011
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21/10/2011 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.9667 of 2011 And M.P.(MD).Nos.1 to 4 of 2011 The Dhaya College of Engineering Sivarakottai Village Thirumangalam Taluk Madurai 625 706 Rep. by its Principal, M.Pandikumar ... Petitioner Vs 1. The Secretary to Government Higher Education Department Government of Tamil Nadu Fort St. George Chennai - 600 009 2. The Commissioner-cum-Director of Technical Education Guindy Chennai 3. The Anna University of Technology Madurai Rep. by its Registrar Madurai - 625 002 ... Respondents PRAYER Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certioraified Mandamus, to call for the records relating to the impugned order of the third respondent in Ref.LR.No.AUTMDU/REG/1-389A/2001-389A, dated 20.08.2011, quash the same and consequently, direct the third respondent to grant affiliation to the petitioner college for the academic year 2011-2012. !For Petitioner ... Mr.Veera Kathiravan ^For Respondents... Mr.B.Pugalenthi Special Government Pleader :ORDER
Being aggrieved by the order of the Registrar, Anna University of Technology, Madurai, third respondent herein, dated 20.08.2011, refusing to grant affiliation, Dhaya College of Engineering, Madurai, has filed the present writ petition.
2. According to the petitioner, M.K.Alagiri Educational Trust has established the college. When the trust approached the All India Council for Technical Education (in short "AICTE"), for approval, the Expert Committee, after inspection on 18.05.2011, directed the college to pay a sum of Rs.35,000/- towards security deposit and having satisfied with the infrastructural facilities, construction of building and other statutory requirements, AICTE, New Delhi, has granted approval on 14.06.2011, for starting an Engineering College and notified in the Official Gazette of AICTE, that the petitioner- College is an approved college, for the academic year 2011-12. Thereafter, the petitioner college approached Anna University, Madurai, third respondent herein, for affiliation. In furtherance of the request, a Committee was constituted by Anna University, Madurai, third respondent, and after inspection on 21.07.2011, the College was communicated with the proceedings, dated 22.07.2011, pointing out, three deficiencies, which are as follows:
(i) There is a shortage of 175 library books in Science and Humanities.
(ii) Location of the cafeteria is by the side of the class rooms which may create noise in managing the process.
(iii) Transport facility is not available.
3. The petitioner has further submitted that the abovesaid defects were rectified and duly communicated to the University on 25.07.2011. As the counselling for admission to engineering courses, was scheduled to be closed on 08.08.2011, W.P.(MD)No.8354 of 2011, was filed for a Mandamus, to the third respondent-Anna University, Madurai, to affiliate the petitioner's college for the academic year 2011-12. Consequently, directing to the respondents, to permit the petitioner college to admit the students, both under the counseling, as well as against management seats, commencing from the year 2011-12, was also sought for. By order, dated 01.08.2011, a direction was issued to Anna University of Technology, Madurai, the third respondent herein, to consider the reply of the petitioner, dated 25.07.2011 and grant affiliation to the educational institution, if the deficiencies are rectified and to take part in the counselling.
4. Being aggrieved by the same, the University has preferred an appeal in W.A.(MD)No.740 of 2011. After considering the decisions of the Supreme Court in Dr.Preethi Srivastava v. State of M.P., reported in AIR 1999 SC 2984 : 1999 (7) SCC 120, Visveswaraya Technological University v. Krishnendu Halder reported in 2011 (4) MLJ 878, Rukmani College of Education v. the State of Tamil Nadu reported in 2008 (1) CTC 545, Self-Financing Private Teacher Training Institutes Assn., v. State of Tamil Nadu reported in 2011 (5) MLJ 605 and Bhartia Education Society and Another v. State of Himachal Pradesh reported in 2011 (3) Scale 48 and the rival submissions of the parties in the appeal, the Division Bench of this Court, by order, dated 09.08.2011, at Paragraphs 9 to 12, held as follows:
"9. In such view of the matter, since the Full Bench has, in categoric terms, held that the grant of approval is not a matter of course and the same has to be considered only in accordance with the statutes of the University concerned, no one can direct the University to act against its own statutes. The contention of the learned Additional Advocate General that the first respondent college has not obtained necessary permission from the competent authority for conversion of lands to put up construction for the college can, at the most, be attempted to be found out from the college through the records by the appellant
- University and if it is found out that such permission for conversion of the land has not been obtained, the appellant - University can only refer it to AICTE, as observed by the Full Bench, elicited above.
10. It is true that the said deficiencies regarding conversion have not been pointed out by the appellant - University while not granting affiliation. Since we have already elicited that the Affiliating University has raised only three deficiencies to be complied with and according to the learned counsel for the first respondent college, the first respondent college has complied with all the deficiencies pointed out by the Inspection Committee, we modify the Paragraph No.20 of the order of the learned Single Judge only with a direction to the appellant University to consider the reply made by the first respondent college dated 25.07.2011 on merits and in accordance with law and based on its own statutes and pass appropriate orders regarding the grant of affiliation.
11. It is now informed that in respect of two other colleges, provisional affiliation has been granted and they are also admitting the students and that privilege has not been given to the first respondent college. According to the learned Additional Advocate General, the last date for counselling is 08.08.2011.
12. Considering the above said submission that there is an allegation of discrimination, we are of the view that even though the last date for counselling has expired, the appellant University should consider the reply of the first respondent college dated 25.07.2011 for the purpose of grant of affiliation as per the statutes for the academic year 2011 - 2012 and pass appropriate orders within a period of two weeks from the date of receipt of a copy of this order. "
5. After the pronouncement of the orders, it has been brought to the notice of the Division Bench that Counselling had been extended upto 17.08.2011 and considering the same, the Division Bench, by order, dated 10.08.2011, directed Anna University, Madurai, to consider the reply of the petitioner- college, dated 25.07.2011 and pass appropriate orders, within a period of ten days from the date of passing of the order. In the abovesaid manner, the first round of litigation has ended.
6. Pursuant to the directions, the Registrar, Anna University, Madurai, has sent a letter, dated 17.08.2011, to the Principal, Dhaya College of Engineering, Madurai, informing them that an Inspection Committee would inspect the institution on 19.08.2011, for considering affiliation of the institution for the academic year, 2011-12. The Registrar has also directed that all the relevant documents and records have to be kept ready, for verification, at the time of inspection. In response to the same, the authorised signatory of the college has sent a reply, dated 18.08.2011, to receive the Inspection Committee for verifying the deficiencies pointed out in the report of the previous Inspection Committee.
7. The petitioner has further submitted that though on the said date, the College staff and the officials have waited from 8.30 A.M., till 4.00 P.M., the committee visited the college only in the evening and thereafter, the Inspection Team wanted to look at the class rooms, the entire college premises, and considered irrelevant matters. The Committee paid more attention to see the Kanmoi, on the rear side of the college, physical features of the construction, as well as the lands adjoining the college.
8. It is the further case of the petitioner that the Committee members unanimously stated that they wanted to conduct a fresh inspection on behalf of the University. When a representation was made by the College to the Inspection Team, regarding the documents which they require, including the documents already furnished to AICTE, a member of the Inspection Committee,informed the College that they are not supposed to make any inspection of the documents that they would require, but they would conduct a full-fledged enquiry over the qualifications and requirements of AICTE.
9. The petitioner has further submitted that by letter, dated 17.08.2011, the third respondent-University has only communicated that the college would be inspected and therefore, the college was under the bona fide impression and belief that the Inspection would be restricted only with reference to the defects pointed out by the earlier Committee. It is the further case of the petitioner that though, at the time of inspection, it was also brought to the notice of the Inspection Committee that, if at all any document was required to be produced, it can be referred specifically, the Inspection Committee, without considering the directions granted by the Division Bench of this Court in W.A.No.740 of 2011, dated 09/10.08.2011, in proper perspective, left the petitioner's college, without giving any report.
10. In the abovesaid circumstances, the petitioner sent a fax message on 19.08.2011, to the Registrar, Anna University, Madurai, the third respondent respondent herein, pointing out the events that happened on 19.08.2011, during inspection. 10 days' time granted by the Division Bench was due to expire on 22.08.2011 and that on 20.08.2011, Registrar, Anna University of Technology, Madurai, has passed the impugned order, rejecting the request for affiliation, pointing out certain deficiencies, which has given rise to the present second round of litigation.
11. When the present writ petition came up on 25.08.2011 for admission, Mr.B.Pugalendi, learned Special Government Pleader, who took notice for Anna University of Technology, Madurai, in the first round of litigation in W.P.No.8354 of 2011 and also appeared for the University in the writ appeal before the Division Bench, submitted that he would take notice for respondents 1 and 2 herein only. Accordingly, learned counsel for the petitioner was permitted to take notice to the third respondent-University, returnable by 06.09.2011. Thereafter, Mr.Siva, has entered appearance on behalf of the University and filed its counter affidavit. Subsequently, the third respondent- University has filed M.P.No.3 of 2011 to implead AICTE as the fourth respondent. One Mr.Ramalingam, has filed M.P.No.4 of 2011, to implead himself as party respondent.
12. The petitioner-college has filed a reply affidavit. Learned Special Government Pleader sought for time to file a counter affidavit to reply. Lateron, he also filed a memo, stating that the Government have engaged the services of the learned Advocate General, State of Tamil Nadu, to defend the respondents and sought for time. On 27.09.2011, Mr.Veerakathiravan, learned counsel for the petitioner made an endorsement in the writ petition to the effect that respondents 1 and 2 in the writ petition may be deleted, as no relief has been claimed against them. He also sought for dismissal of the writ petition, against respondents 1 and 2. Accordingly, having regard to the endorsement made by the learned counsel for the petitioner, by order, dated 27.09.2011, writ petition against respondents 1 and 2 has been dismissed.
13. Mr.G.R.Swaminathan made submissions on behalf of the petitioner in M.P.No.4 of 2011 for impleading. Mr.B.Pugalendi, learned Special Government Pleader, who initially took notice on behalf of respondents 1 and 2, who were subsequently given up, made submissions, representing the learned counsel for the University.
14. Assailing the correctness of the impugned order, dated 20.08.2011, Registrar, Anna University of Technology, Madurai, Mr.Veerakathiravan, learned counsel for the petitioner submitted that on 18.08.2011, AICTE in their official website, has informed that many educational institutions have been approved by AICTE, for the academic year 2011-12. There were three Engineering Colleges, granted approval, within the territorial jurisdiction of Anna University, Madurai. They were (1)Dhaya Engineering College, Madurai, petitioner herein, (2) CR Engineering College, and (3) SSM Institute of Technology.
15. He further submitted that previously, the process of affiliation was done only by Anna University, Chennai and for the purpose of administrative convenience, constituent units, like, (1)Anna University, Coimbatore, (2)Anna University, Madurai, (3)Anna University, Tirunelveli and (4)Anna University, Trichy have been created. The concerned University, within whose territorial jurisdiction, the Engineering college is located, would be the competent authority to grant affiliation.
16. Learned counsel for the petitioner further submitted that though the above two Engineering Colleges, viz., CR Engineering College, and SSM Institute of Technology, granted approval, by AICTE, along with the petitioner's college, made wide publicity in the newspapers that, they were having a right of admission, as per the Counselling Code given by Anna University, Madurai, and that they were also permitted to take part in counselling process, for admission to Engineering courses for the academic year 2011-12. But, the petitioner's college was not given permission to participate in the counselling. According to him, except the petitioner's college, all other colleges were permitted to take part in the counseling. He submitted that the above mentioned institutions were not even affiliated to Anna University, Madurai, at the time, when they were permitted to participate in the counselling.
17. Learned counsel for the petitioner further submitted that even though one of the colleges, viz., VPV College of Engineering, did not have the transport facility, the said College was permitted to participate in the Counselling process, whereas, that was one of the reasons for rejecting the request of the petitioner for grant of affiliation at the first instance was lack of transport facility. According to him, right from the inception, there was a bias, discrimination and mala fide on the part of the third respondent- University, in considering the request of the petitioner's institution to participate in the counselling and in the matter of affiliation, when other new institutions approved by AICTE for admission, to Engineering courses, for the year 2011-12, have been permitted to participate in the counseling.
18. Inviting the attention of this Court to the specific directions granted by the Division Bench of this Court in W.A.No.740 of 2011, dated 09/10.08.2011, learned counsel for the petitioner submitted that when Anna University, Madurai, issued a letter, dated 18.08.2011, for inspection of the petitioner's College, the Inspection Committee, arrived at 4.00 P.M., only. He further submitted that when Anna University, Madurai, third respondent herein, has been specifically directed to consider the reply of the College, dated 25.07.2011 and pass appropriate orders, within 10 days, from the date of receipt of the order made in W.A.No.740 of 2011, the second inspection committee had gone beyond the scope of the directions, granted by the Division Bench and rejected the request of the petitioner for affiliation, on the ground that the College did not fully comply with the statutes of the University, by taking into consideration, an alleged report given by the District Collector, Madurai, which exhibits the closed and pre-determined mind of the University, third respondent herein, in rejecting the request for affiliation. He further submitted that the University, by its laconic order, declined the request, without specifically stating which part of the University statutes has not been complied with.
19. According to the learned counsel for the petitioner, when the Division Bench had not granted any specific directions, permitting the third respondent-University to go into other aspects, for the purpose of considering the grant of affiliation and when the observations of the Division Bench, made with reference to any alleged violation, can at best be placed before the AICTE, the impugned letter of rejection would reflect the biased approach of the University, in acting contrary to the directions of the Division Bench. In this context, by referring to Paragraphs 9 to 12 in W.A.No.740 of 2011, dated 09.08.2011, he submitted that in more than one paragraphs, the Division Bench, in its categorical order has directed Anna University, Madurai, to consider the reply of the petitioner-College, dated 25.07.2011, for the purpose of grant of affiliation, as per the statutes, for the academic year 2011-12, and pass appropriate orders and in the light of the above directions, the University has not only ignored the directions, but constituted a fresh committee to go into various aspects. According to him, even assuming that the University has powers to constitute a fresh committee, it should be only for the limited purpose, to verify as to whether the petitioner-College has rectified the deficiencies, or not. But Anna University of Technology, Madurai, has invented new reasons for rejection.
20. He further submitted that the first inspection committee's report cannot be scrapped altogether in the light of the directions of the Division Bench. In such circumstances, there is no need for a second committee, which apparently, appears to have been constituted for some other oblique purpose. Even assuming that the second committee wanted to have a thorough Inspection, with reference to various factors to be taken into consideration, for the purpose of granting affiliation as provided under the Statutes, and as directed by the Division Bench, the impugned order would manifestly prove the mala fide on the part of the University, in that, even without issuing any notice or pointing out the documents required for perusal, the University has acted on the sole basis of a report, obtained from the District Collector, Madurai, in respect of certain matters, not covered by the specific directions of the Division Bench, for the purpose of considering the request for affiliation.
21. Taking this Court through the contents of the impugned order, learned counsel for the petitioner submitted that Anna University, Madurai, ought to have acted only as per the directions of the Division Bench in accordance with the statutes of the University, for grant of affiliation and cannot travel beyond the same. According to him, as on date, more than 40 colleges have been affiliated with Anna University, Madurai, and for the current academic year, other colleges, who have approached the third respondent- University has been granted affiliation. For all the new colleges, the third respondent-University has granted affiliation and only for the petitioner's college, the University, acting beyond the directions of the Division Bench and the statutes, has approached the District Collector, Madurai, for the purpose of verifying the details contained in the check list furnished by the petitioner's college for affiliation.
22. According to the learned counsel for the petitioner, as per the statutes, there is no power for the University to collect any materials in that manner. It is also the contention of the petitioner that the abovesaid exercise by the University to collect certain materials, behind the back of the college from the District Collector, Madurai, has been done only in the case of the petitioner, which exhibits bias, discrimination and even the report of the District Collector, Madurai, sent to the third respondent-University, has not been furnished to the petitioner.
23. He also submitted that even assuming without admitting for argument sake that the University is empowered to verify the particulars furnished in the application form submitted to the University for affiliation, it is obligatory on the part of the University to furnish the copy of the report received behind the back of the petitioner and the University should have sought for any clarifications or documents specifically given in writing. According to the learned counsel, when the District Collector has no business whatsoever to interfere in the matter of approval or affiliation and the third respondent- University has deliberately obtained certain reports and passed the impugned order.
24. He further submitted that though one of the certificates to be produced at the time of inspection, was a certificate under Section 37-B of the Tamil nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961, the University in its application form itself has made it clear, that the application for affiliation would be considered, without prejudice to the rights of the University for production under Section 37-B of the abovesaid Act, and the permission of the Government to establish the Collegem required under Section 5(1)(a) of the Anna University Act, 1981, subject to the verdict of this Court in a batch of Writ Appeals.
25. He therefore submitted that after the orders of this Court by a Division Bench of this Court in a batch of Writ Appeals, referred to in the application form to be submitted for affiliation to Anna University, none of the colleges, particularly, the new colleges, granted approval by AICTE for the academic year 2011-12, have enclosed the said certificate and that without insisting for the said certificate, they have been granted affiliation and only for the petitioner's institution, the third respondent-University has insisted upon the clearance certificate, as per Section 37-B of the abovesaid Act and also reproduced the report of the District Collector, Madurai, that the petitioner-College had not applied not obtained any clearance from the Government. He submitted that though the petitioner's college has stated in the application form submitted to the University that they were in possession of the abovesaid certificate, it is not required to be produced for the purpose of affiliation, as per the Division Bench order, in a batch of Writ Appeals.
26. Learned counsel for the petitioner also submitted that in the absence of production of records by Anna University of Technology, Madurai, pertaining to grant of affiliation, in respect of other colleges, to prove as to whether, they have obtained any clearance, as per Section 37(B) of the abovesaid Act and produced any certificate, he prayed to draw an adverse inference against the University.
27. Learned counsel for the petitioner also questioned the propriety of the University to demand the requirement of approval by the Director of Town and Country, Chennai, whereas, in three Districts, only the Deputy Director of Town and Country Planning, has granted the approval. He further submitted that the petitioner-College is the only college, which has obtained sanction from the Regional Deputy Director, Town and Country Planning. According to him, the College is situated in a non-planning area and it does not require any land conversion certificate under the Tamil Nadu Town and Country Planning Act.
28. It is also the submission of the learned counsel for the petitioner that under the Tamil Nadu Town and Country Planning Act, nowhere it is stated that verification of the land or land conversion certificate is required for the purpose of construction of a college. Moreover, the petitioner has constructed the college only on patta land. The building has been approved by the Regional Deputy Director, the competent authority for land conversion as well as building planning authority. He has also submitted that the said authority having satisfied himself with the requirement, has granted approval for construction of the building and that developmental charges have also been paid. In the abovesaid circumstances, he submitted that the District Collector has no power or authority to send a report that approval by the Director of Town and Country Planning, Chennai, is required.
29. Learned counsel for the petitioner further submitted that as per Section 5(1)(a) of the Tamil nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961, the ceiling area is fifteen acres, for every family consisting of not more than five members. Section 37-B of the abovesaid Act states that if any public trust is created before 1st March, 1972, desires to hold or acquire any land in excess of the ceiling area for the purpose of, and in the case of any public trust created after the 1st March 1972, if such public trust desires to hold or acquire any land for the purpose of, (i) establishing any educational institution or hospital; or (ii) expanding any existing educational institution or hospital by way of addition to, alteration of, or improvement to, any educational institution or hospital, it shall make an application to the Government for permission to hold or acquire of such land.
30. In the light of the abovesaid proviso, learned counsel for the petitioner submitted that from the reading of the provisions, it is made clear that if any institution acquires land beyond the ceiling area, the Institution has to approach the Government for grant of permission for acquisition of the land under Section 37-B of the Act. But the petitioner, who has acquired only 15.3 acres does not fall within the abovesaid provision and therefore, permission from the State Government is not at all required. According to him, the petitioner-College which hold/acquire less than the standard limit, does not require any orders from the State Government and therefore, the reason assigned by the third respondent-University, at the instance of the District Collector, is wholly erroneous.
31. Referring to the reasons cited in the impugned order of rejection, learned counsel for the petitioner further submitted that for the first time, the third respondent has raised an objection on the ground that the District Collector alone is the competent authority for issuance of land conversion certificate. He further submitted that the said requirement is not found either under the statutes of the Anna University or in the prescribed format, issued by the University for affiliation. He also submitted that none of the three colleges, granted approval from AICTE, in this year, has produced any such certificate.
32. He further submitted that the Regional Deputy Director of Town and Country Planning is the competent authority for the land conversion as well as building planning authority and that he has already granted approval for the building. He also demanded that when none of the other colleges have obtained prior permission from the District collector, the third respondent-University should state under which rule or regulation or statute, the said certificate is required and whether any such certificate has been furnished by the other three colleges affiliated to Anna University, Madurai.
33. In this context, learned counsel for the petitioner also took this Court to the averments made in the counter affidavit filed by the third respondent-University and further submitted that there is no whispher in the counter affidavit, about the manner, in which the request for affiliation of the other institutions have been considered and granted.
34. Referring to the letter, dated 03.8.2011, of the Principal Secretary, AICTE, addressed to the Principal Secretary, Higher Education, Government of Tamil Nadu, Chennai, Regional Officer, AICTE, Chennai, the Director of Technical Education, Chennai, Tamil Nadu and Anna University of Technology, Madurai, learned counsel for the petitioner submitted that while granting approval to the petitioner's Engineering College, for the academic year 2010-11, the institutions were directed to seek for affiliation from the concerned affiliating Universities, as per the statutes of the University and the limited scope for grant of affiliation by the 3rd respondent University is only with reference to the curriculum of the course, maintenance of standards of education, etc., in accordance with the norms prescribed by the AICTE and the concerned affiliating University.
35. Learned counsel for the petitioner further submitted that if the Management of any educational institution has violated the conditions of the approval or not adhered to the norms and standards prescribed by the council or if there was any mis-representation of the facts submitted by the educational institution/trust/society, AICTE is at liberty to withdraw the approval, after fulfilling the procedure contemplated under the AICTE norms and conditions. But none of the grounds raised by the 3rd respondent University for rejecting the request for grant of affiliation is tenable, as per the statutes. By refusing to grant affiliation for the academic year 2011-12, the University has acted beyond the scope of the approval order and the directions of this Court made in W.A.No.740 of 2011, dated 09/10.08.2011 and thus, has illegally prevented the petitioner-College from deriving any benefits of approval for the current year, which has been graciously extended to other colleges, even without granting of affiliation and insisting for production of documents stated supra.
36. Learned counsel for the petitioner further submitted that first of all, the University has not placed any materials, either from the Anna University Act or regulations or statutes, dealing with affiliation as to whether the University is empowered to seek for assistance from the Revenue Authorities and collect materials for the purpose of considering the application for affiliation. He also submitted that even assuming that some report has been collected, it should be in conformity with the requirement of maintenance of the standards of education in an educational institution, with regard to pattern of study of program, curriculum and the norms and conditions to be maintained, as prescribed by the AICTE and as per the statutes of Anna University and as directed by the Division Bench of this Court. According to him, affiliation process is only to check the educational standards in a college and that a University can inspect an educational institution only to satisfy itself of the norms and standards prescribed for grant of affiliation and the reasons assigned by the third respondent are beyond the scope, for the purpose of affiliation.
37. According to the learned counsel,whenever there is a report by an Inspection Committee, the same ought to have been placed before the academic council of the University as to whether the affiliation should be considered or not. In the case on hand, no materials have been placed before this Court to prove that the Registrar, Anna University, Madurai, has acted as per the statutes, in a bona fide manner, while considering the application for affiliation.
38. He further submitted that the third respondent-University, an independent body and duty bound to act, as per the statutory provisions dealing with affiliation, has adopted a different yardstick, only in the case of the petitioner, by appointing a fresh inspecting team to invent new reasons, which do not advert to the educational standards, required to be maintained for affiliation. He further submitted that under the guise of verification of certain details, the University cannot sit in over the decision of AICTE, dealing with approval and reject the request for affiliation.
39. Referring to a decision of the Supreme Court in Al-Karim Educational Trust v. State of Bihar reported in AIR 1996 SC 1469, learned counsel for the petitioner submitted that when the defects pointed out by the first Inspection Committee had already been rectified, it is not open to the third respondent- University to appoint a fresh committee to fish out new reasons for rejecting the request for affiliation. In this context, Paragraphs 11 and 12 of the above reported judgment were referred.
40. Placing reliance on a decision in Bhartia Education Society v. State of H.P., reported in 2011 (4) SCC 527, learned counsel for the petitioner submitted that though Anna University, Madurai, the examining body, has powers to grant or refuse affiliation and that approval, is a condition precedent for affiliation, the examining body does not have any discretion to refuse affiliation, with reference to factors, already considered by AICTE for approval and it is not open to the third respondent-University to consider the money and conditions for approval, under the purview of AICTE, to refuse affiliation. According to him, as per the directions of this Court in W.A.No.740 of 2011, dated 09.08.2011, the third respondent-University ought to have considered as to whether there was compliance of the defects noticed, eligibility of the candidates for admission to the courses or the manner of admission of students or such other areas, falling within the sphere of the statutory provisions, dealing with affiliation.
41. Placing reliance on a decision of this Court in Self Financing Pvt. Teacher Training Institutes Assn., v. State of T.N., reported in 2011 (5) MLJ 605, learned counsel for the petitioner submitted that when the Government have introduced a new legislation in G.O.Ms.No.94, School Education (UI) Department, dated 03.05.2008, prescribing certain guidelines in the matter of grant of affiliation and made applicable to the existing and new institutions, recognised by AICTE, empowering an authority to monitor the institutional and infrastructural facilities and also the functions of the concerned institutions, a Division Bench of this Court, having regard to the nature of certificates/documents, to be produced or made available for scrutiny for the purpose of affiliation and the manner in which, recognition of Teacher Training Institute has to be granted, as per the amended provision Section 14 of the NCTE Act, held that the new guidelines issued by the Government in the form of an order, is in contravention of provisions of NCTE Act, in the matter of affiliation and in the said circumstances, learned counsel for the petitioner further added that when the Government have no powers to frame any guidelines, inconsistent with the Central Legislation, Anna University, Madurai, third respondent herein, has no power or authority to impose new conditions, not provided under the statutes or any regulation, governing affiliation and reject the request of the petitioner.
42. Placing reliance on a decision of this Court in State of Tamil Nadu v. V.S.B. Educational Trust reported in 2006 (3) MLJ 1037, learned counsel for the petitioner submitted that though an amendment to Anna University Act, was brought in by the State of Tamil Nadu, in Section 5(ac), whereby, a Technical Institutions (Engineering Colleges) in the State were to obtain prior permission from the State Government for establishment and affiliation of a college, a Division Bench held that after coming into force of AICTE Act, 1987, the entire field relating to grant of approval for new technical institutions lies with the Council established under Section 3 of the Act and therefore, after the enactment of AICTE, there is no power vested with the University or the State Government to make any law repugnant to the Central enactment. In the light of the above, he submitted that once approval has been granted by AICTE, the University has to grant affiliation, subject to the matters to be considered under the statutes to maintain the educational standards.
43. Placing reliance on the abovesaid decision, it is the further submission of the learned counsel for the petitioner that when the State or its officers, cannot interfere in the matter of grant of affiliation, by virtue of the amendment under Section 5(ac) of Anna University Act, the third respondent- University cannot impose fresh conditions, by getting reports behind the back of the petitioner. He further submitted that what the State cannot do directly, by passing an enactment, can be indirectly done by the third respondent-University, by imposing new conditions, in the form of defects or deficiencies, on the basis of the District Collector's report, to reject the request of the petitioner. According to the learned counsel, as per the scheme of AICTE Act, once approval is granted by AICTE, the third respondent-University is obliged grant affiliation. Reliance was also placed on a decision in Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational & Charitable Trust v. State of T.N., reported in 1996 (3) SCC 15 and learned counsel for the petitioner submitted that dealing with a provision to Section 5(5) of Dr.MGR Medical University, which provides that no college shall be affiliated to the University, unless the permission of the Government to establish such college has been obtained, the Apex Court held that State Act is repugnant to Central Act 10-A of the Medical Council Act. Decisions in State of T.N., v. Adhiyaman Educational & Research Institute reported in 1995 (4) SCC 104 and Madras Education and Research Integrated Trust (MERIT) v. The Periyar University reported in 2005 (1) MLJ 234, were pressed into service.
44. Refuting the contention of the third respondent-University that they have powers to grant or refuse affiliation, by considering even the norms and conditions prescribed by AICTE for grant of approval for Engineering College, learned counsel for the petitioner submitted that the affiliating authority, after inspecting the college, can only submit a report regarding the infrastructural facilities, class room, equipment, library, etc., before the Affiliation Committee or Academic Council of the University for consideration and the Registrar has no authority to refuse the request for affiliation on his own.
45. Learned counsel also submitted that even assuming, for argument sake, without admitting that the approval has been granted on the basis of some distorted facts, yet it is not open to the University to reject affiliation and in that context, also drew the attention of this Court to Paragraph 9 in W.A.No.740 of 2011, dated 09.08.2011, wherein, Their Lordships, while considering the contention of the learned Additional Advocate General that the petitioner-College had not obtained prior permission from the competent authority for conversion of land to put up construction for the college, have observed that at best, the same may be attempted to be found out from the college through the records, by the University and if it is found out such permission for conversion of land had not been obtained properly, the University can only refer it to AICTE. Reliance was placed on Jaya Gokul Educational Trust v. Commr. & Secy. To Govt. Higher Education Department reported in 2000 (5) SCC
231.
46. As regards Section 37-B of the Tamil Nadu Land Reforms (Land Ceilings) Act, 1961, learned counsel for the petitioner placed reliance on an unreported decision made in W.A.M.P.Nos.5740 of 2002, etc,. batch in W.A.Nos.3450 of 2002, etc., batch, dated 04.04.2003 and submitted that Anna University had already been directed to grant affiliation, without insisting for production of an exemption certificate under Section 37-B of the abovesaid Act, subject to the result of the Writ Appeals and that is why, affiliation has been granted to PERI Institute of Technology, Kanchipuram and SVS Institute of Computer Applications, Coimbatore, vide order, dated 13.09.2010 and 13.09.2011 respectively, by Anna University, Chennai and Coimbatore respectively, without prejudice to Section 37-B of the Tamil Nadu Land Reforms (Land Ceilings) Act, 1961, subject to the decision of this Court in W.A.No.3454 and 3482 of 2002, etc., batch. True copies of the orders granting provisional affiliation by Anna University, Madras and Anna University, Coimbatore have been produced before this Court. In the light of the above, learned counsel submitted that the 1st reason assigned by Anna University, in rejecting the request of the petitioner is not only discriminative and it is also in total disregard to the orders granted by this Court in W.A.No.740 of 2011, dated 09/10.8.2011. He also demanded that as to how Anna University, Madurai can take a different stand, when the provisions for grant of affiliation are with reference to Section 37(B) of the abovesaid Act, not insisted for other institutions.
47. Learned counsel for the petitioner also submitted that the statutes and regulations produced before this Court are applicable only to the educational institutions within the territorial jurisdiction of Anna University, Chennai and that the third respondent has not produced the statutes applicable to the colleges within the territorial jurisdiction of Anna University, Madurai.
48. As regards the prayer of the petitioner in M.P.No.4 of 2011, for impleading one Mr.Ramalingam as a party respondent, learned counsel for the petitioner submitted that Institution of a Public Interest Litigation is only based on the averments that the sister of the proposed respondent, owns 2. acres of land in Survey Nos.168/1A2, 168/1B2, 168/1C2, 186/6A, 168/7A, 168/8A, 168/8B, 168/9A and 168/9B and that she was receiving water through the channels from Chinnamadai. In the Public Interest Litigation, an allegation has been made that the petitioner's College has been established, after destroying water course. Though the Public Interest Litigant has sought for a Writ of Mandamus, directing the respondents therein to restore the water courses and sought for an injunction, restraining Anna University, Madurai, from granting affiliation to the petitioner's college, no materials have been placed before this Court to substantiate that the personal rights of the proposed party are affected.
49. Further, the matter of grant of affiliation is purely between the petitioner's institution and the concerned University. The proposed respondent is not the owner of the lands. But when a public interest writ petition has been filed in W.P.(MD) No.8876 of 2011, immediately after receipt of notice in the said writ petition, the third respondent-University has sent a letter to the District Collector, Madurai, and after obtaining certain materials behind the back of the petitioner, sent an Inspection Team to make a fresh inspection on 19.08.2011, and ultimately, by impugned order, dated 20.08.2011, has rejected the request of the petitioner for affiliation.
50. According to the learned counsel, the proposed impleading party is neither a proper and necessary party, for the purpose of adjudicating the issue, as to whether affiliation should be granted to the the petitioner's college or not. He further submitted that submitted that in a writ petition, unless the personal rights of the proposed party is likely to be affected, on account of any order being passed in this writ petition, there is no need to implead him in the writ petition. He further submitted that for testing the correctness of the impugned order, there is no need to implead the proposed party and hence, prayed for dismissal of M.P.No.4 of 2011.
51. Reiterating the averments made in the counter affidavit filed by the Registrar, Anna University of Technology, Madurai, learned Special Government Pleader, arguing on behalf of the University, submitted that the petitioner's college is located in between a Kanmai and a river. The lands are referred as Nanjai lands (wet land) in the application submitted by the College to the University. The college is run by a Public Trust. According to him, if any public trust is created after 1st March, 1972 and desires to acquire any land to establish any Educational Institutions or Hospitals, they should have obtained prior permission from the Government to acquire such land. He submitted that acquisition of a property by a public trust, without prior permission under Section 37-B of the Act, is prohibited.
52. He further submitted that earlier, when an application for affiliation for the academic year 2011-12, was submitted by the petitioner- college to Anna University, Madurai, an inspection was made on 24.06.2011. The Committee report did not disclose the particulars, pertaining to Land Conversion Certificate, Approval of Town Planning Authority and the Certificate under Section 37-B of the Tamil Nadu Land Reforms (land Fixation and Ceiling) Act. Therefore, on the above aspects, the third respondent-University was intending to verify the records, by appointing a new inspection committee, when W.P.(MD)No.8354 of 2011, was filed by the petitioner-College.
53. Learned counsel representing the University further submitted that the directions granted by this Court in the writ petition on 01.08.2011, have been modified in W.A.No.740 of 2011, dated 09.08.2011, directing the University to pass orders, within a period of 10 days on merits and in accordance with law, as per the statutes of the University. In the mean time, one Mr.M.Ramalinam, Secretary, Madurai Mavatta Vivasayikal Nala Sangam, Sivarakottai, (proposed respondent) has filed a Public Interest Litigation before this Court in W.P.(MD)No.8876 of 2011, alleging several violations committed by the writ petitioner-college and that on receipt of notice, the University has approached the District Collector, Madurai, seeking information about the irregularities committed by the petitioner-College, as alleged in W.P.(MD)No.8876 of 2011. The District Collector, after inspection, informed the University that the petitioner has committed the following irregularities, "(i) The college has not obtained any approval from the Director of Town and Country Planning for the plan approval but only a consent from the Regional Deputy Director of Town and Country Planning in-charge, Madurai Region for the plan approval to be issued by Village Panchayat.
(ii) The college has neither applied for nor obtained any clearance as per Section 37(B) of the Tamil Nadu Land Reforms (land Fixation and Ceiling) Act.
(iii) The District Collector or the District Level authorities have not given any consent for conversion of wet land for any other purposes.
(iv) The District Collector has not issued any Land Use Certificate; certain sluices and water channels have been destroyed by the College."
54. Learned counsel representing the University further submitted that the Inspection Committee, consisting of Academic Experts, went to the college on 19.08.2011, pursuant to the directions of the Division Bench of this Court and they could not inspect the College, due to non-co-operation of the petitioner- College and therefore, the Committee submitted a report on 19.08.2011 to the effect that the authorities of the college did not allow the inspection team to inspect or verify any other thing, except the three deficiencies pointed out earlier. The Inspecting Committee also reported that no document was produced to them and since the terms of reference were to inspect all the facilities, as per Ref.Letter, No.AUTMDU/REG/1-389A/2011-38A, dated 20.08.2011, they could not do so.
55. He further submitted that the approval order, dated 03.08.2011 (signed on 09.08.2011) issued to the petitioner, was received by the University only on 18.08.2011. As per the statutes of Anna University, an application for affiliation can be made only along with the letter of approval received from AICTE. Since the letter of approval from AICTE was received by the College, as well as the University only on 18.08.2011, and in order to implement the order of this Court in W.A.No.740 of 2011, dated 09.08.2011, and to verify several other irregularities committed by the College, the University has decided to send a second Inspection Team to the petitioner-college on 19.08.2011 to inspect and verify compliance of the University Statutes and Regulations. According the University, the petitioner has not submitted the following documents, "(1) Land conversion certificate from the Directorate of Town and Country Planning.
(2) Certificate under Section 37(B) of the Tamil Nadu Land Reforms (Land Fixation and Ceiling) Act, 1961.
(3) Certificate for fire/boiler/electrical safety from competent authorities.
(4) Certificate from Health Inspector.
(5) Certificate from PWD Superintendent Engineer for Structural Stability for the building.
(6) Master Time-Table for all courses and all sections with classroom arrangements.
(7) Audited statement of accounts of the college for the past three years. (8) Non availability of License under Tamil nadu Public Buildings Licensing Act, 1965 and Rules framed thereunder."
56. According to him, it is apparent from the report of the District Collector and the averments made in the Public Interest Litigation, the petitioner-College has misrepresented about the fulfilment of certain requirements and obtained approval from AICTE. In this context, the University has also taken up the matter with AICTE and hence, AICTE is a necessary and proper party in this writ petition. He submitted that for the reasons best known to the petitioner, AICTE has not been impleaded as a party respondent and hence, the University has taken out an application for impleading AICTE.
57. Learned counsel further submitted that as per the directions of this Court made in W.A.No.740 of 2011, dated 09.08.2011, the third respondent- University has every jurisdiction and authority to verify the particulars submitted to AICTE, with reference to the specific report of the District Collector, regarding the irregularities and therefore, it is not open to the petitioner to contend that the Inspection Team has no jurisdiction to verify the entire physical features. Unless the petitioner-College co-operates, it is not possible to verify the particulars furnished to AICTE. He also submitted that the University has no machinery to verify the alleged irregularities and therefore, the University has not committed any manifest illegality in taking the assistance of the District Collector, Madurai.
58. Learned counsel for the respondents further submitted that the third respondent-University, being an affiliating University, is duty bound to inspect the College, in the interest of the students, yet to be admitted in the college, as to whether there is maintenance of norms and standards in the field of technical education and in that context, the University can inspect and verify, as to whether the College has adequate man power, infrastructural facilities and other anomalies and submit a report to AICTE for further action. He has denied the allegations levelled against the University and it has nothing to do with the personal capacity of one of the trustees. He has denied the contention of bias, discrimination and arbitrariness.
59. Learned counsel representing the University further submitted that when notice was received by the 3rd respondent University in a public interest writ petition in W.P.(MD) No.8876/2011, wherein, certain irregularities were pointed out, it is well within the powers of the University, the affiliating body, to verify the lacunae pointed out and non cooperation and refusal on the part of the petitioner's college to furnish the information to the inspection team, certainly creates a genuine and bona fide doubt, that the college has suppressed vital information and committed several irregularities, while approval from AICTE. According to him, the college which has not extended their co-operation and submit the documents, cannot contend that they should be provided with an opportunity, before rejecting the case for affiliation.
60. As regards the contention that a second inspection committee cannot be constituted to redo the inspection afresh, learned counsel for the University submitted that it is not open to the petitioner to contend that the committee should have the very same members and it is the discretion of the University to nominate a fresh inspection team and in constituting such committee, no motive can be attributed. According to him, there is no abuse of power or violation of any statute in constituting a committee. He has denied the allegation of bias in rejecting affiliation, on the ground that one of the trustees happened to be a Member of Parliament and Hon'ble Central Minister, and that there are no materials to substantiate the same. According to him, the following certificates have not been obtained from the competent authorities:-
(1) permission for conversion of Nanja lands has not been obtained from the competent authority.
(2) approval for the building plan has not been obtained from the Directorate of Town and Country Planning.
(3) a certificate under Section 37(B) of the Tamil Nadu Land Reforms (Fixation and Ceiling) Act, 1961, has not been obtained from the Government (4) Land use certificate has not been obtained. Besides, water channels have been destroyed. According to the learned counsel, when the above irregularities were brought to the notice, it is the bounden duty of the University to verify and also place it before the AICTE, as directed by the Division Bench of this Court.
61. He further submitted that the contention of the college that it has fulfilled all the norms and conditions for grant of affiliation is a false statement and the steps taken by the second inspection team to verify the irregularities, on the basis of the information furnished by the District Collector has been deliberately thwarted, due to non cooperation of the petitioner and in such circumstances, the inspection team was not in a position to recommend or not to recommend affiliation.
62. According to the learned counsel representing the University, when the Division Bench has permitted the University to ascertain the abovesaid facts through records, the Registrar of the University has acted as per the directions and only on the basis of the report of the inspection committee, the question of grant of affiliation has been considered and rejected.
63. Placing reliance on the Division Bench judgment in The University of Madras rep. by its Registrar, Rajaji Salai, Chepauk, Chennai, Vs. Loordhu Ammal Educational Trust, rep. by its Secretary, Chennai, and the Director of Collegiate Education, College Road, Chennai, reported in 20005 WLR 395, he further submitted that merely because the petitioner's college has obtained approval from AICTE, it does not mean that affiliation can be grated automatically, and as the University is expected to maintain high educational standards, before granting affiliation, the University is empowered to satisfy itself, as to whether the college seeking affiliation has proper facilities, and whether they have obtained approval, in accordance with law, and take appropriate decision in the interest of the students. He also submitted that when large number of universities with no infrastructure and other facilities were granted recognition, the Supreme Court had to intervene and in such circumstances, it is the duty of the University to see, as to whether the college has committed any fraud or irregularities while getting approval from AICTE and ultimately, if the approval is rejected for any irregularities, the students should not be left in lurch.
64. Placing reliance on the Full Bench decision of this Court in Rukmani College of Education, run by Rukmani Educational and Charitable Trust, rep. by its Correspondent S.Deepak, Tirunelveli District Vs. the State of Tamil Nadu, rep. by its Secretary, Higher Education Department, and two others reported in 2008 (1) CTC 545, learned counsel for the University further reiterated that merely because AICTE has granted approval for the petitioner's college, affiliation is not a matter of right.
65. Inviting the attention of this Court to paragraph 35 of the Full Bench judgment in Rukmani's case (cited supra), he further submitted that like in the abovesaid case, the provisions of AICTE Act and that of Anna University Act, with the statutes, have to be read conjointly and therefore, it is always open to the University to ascertain, as to whether, the college to be affiliated with the University, has adequate facilities, qualified teaching staff etc., or whether the approval has been obtained by deception or fraudulent means and in such circumstances, it is open to the University to refer the matter to the AICTE for appropriate action. Therefore, when the credibility of Anna University, Madurai, to grant affiliation to the petitioner's college has been the subject matter in a public interest writ petition, the action of the University in collecting information from the District Collector, Madurai, and inspecting the institution, cannot at any stretch of imagination be said to be arbitrary or in contravention of the directions of the Division Bench.
66. Referring to statute No.22 of the Anna University, learned counsel representing the University further submitted that the inspection committee for affiliation, shall be constituted by the Registrar from out of the panel of experts approved by the Vice Chancellor of the University from time to time for considering the grant of affiliation. He also submitted that the inspection committee shall visit the college and verify the correctness of the particulars furnished by the college in the application and also verify whether all the affiliation conditions laid down by the University are satisfied. He further submitted that in the application form submitted by the petitioner's college to the University for affiliation, the college has stated that the following certificates viz., (1)Land use certificate from an appropriate authority (RDO) and Land conversion certificate from the Directorate of Town & Country Planning. (2)Certificate under Section 37(B) of the Tamil Nadu Land Reforms (Land fixation and Ceiling) Act, 1961, and (3)Certificate from PWD Superintendent Engineer for the structural stability of the building, were available and that the declaration of the petitioner's college is misleading and an attempt to obtain affiliation by submitting incorrect particulars. According to the learned counsel representing the University, when AICTE has the power to withdraw approval, in case of any violation of norms and conditions for grant of approval, misrepresentation of facts, submission of incorrect particulars, the University in the light of the Full Bench decision in Rukmani's case (cited supra) has powers to verify the same. According to the learned counsel, the petitioner's college has not extended its cooperation in submitting relevant particulars, though the college had categorically stated that they are in possession of the abovesaid documents.
67. He further submitted that the abovesaid aspects have been taken up with AICTE, New Delhi, and that therefore, AICTE is a necessary and proper party, to be impleaded as party in this writ petition. When the question as to whether approval of the petitioner's college has been obtained by misrepresentation is under examination, for reasons best known, the college has deliberately avoided AICTE, from impleading, as a party respondent.
68. Learned counsel representing the University further submitted that though the deficiency regarding conversion of land was not pointed out by the University in the earlier inspection report, it does not preclude the University from verifying the same, as per the Division Bench judgment in W.A.No.740/2011 and in terms of Full Bench judgment in Rukmani's case (cited supra).
69. He also submitted that as per the AICTE regulations, for getting approval, Land Conversion Certificate from the competent authority pertaining to the land to be used for educational purposes, to establish a college should be produced and according to him, the competent authority to issue the said certificate is the Directorate of Town and Country Planning, Chennai. He also submitted that on this ground alone, in this year, AICTE has not approved for 50 colleges, but some how, the petitioner's college has obtained approval, to establish an Engineering College, with a Land Conversion Certificate obtained from a Village Administrative Officer, who is not the competent authority to issue the said certificate. According to the learned counsel, in the application form submitted to the University for affiliation, it is the specific case that the abovesaid documents were available with them, but quite contrary to the declaration, in the supporting affidavit to the writ petition, the college has contended, that the documents are not at all required for the purpose of considering the grant of affiliation. He therefore submitted that from the above conduct, the intention of the petitioner to some how obtain affiliation from the University is evident.
70. Placing reliance on the decision of this Court in Sri.Mudaliambal Trust, rep. by its Managing Trustee Pudukottai, Vs. Anna University rep. by its Registrar, Chennai, reported in 2003 (4) LW 322, he further submitted that acquisition of property by a Public Trust without prior permission under Section 37(B) of the Tamil Nadu Land Reforms (Land fixation and Ceiling) Act, 1961, is prohibited and therefore, the action of Anna University, Madurai, the 3rd respondent herein, is not illegal. Referring to the averments made in the counter affidavit, learned counsel representing the University submitted that apart from the irregularities, the petitioner's college has not submitted the following certificates:-
"(1) Land conversion certificate from the Directorate of Town and Country Planning.
(2) Certificate under Section 37(B) of the Tamil Nadu Land Reforms (Land Fixation and Ceiling) Act, 1961.
(3) Certificate for fire/boiler/electrical safety from competent authorities.
(4) Certificate from Health Inspector.
(5) Certificate from PWD Superintendent Engineer for Structural Stability for the building.
(6) Master Time-Table for all courses and all sections with classroom arrangements.
(7) Audited statement of accounts of the college for the past three years. (8) Non availability of License under Tamil nadu Public Buildings Licensing Act, 1965 and Rules framed thereunder."
71. Referring to a decision in Dental Council of India Vs. S.R.M Institute of Science & Technology and another, reported in 2004 (9) SCC 676, learned counsel representing for the University submitted that when the application form submitted by the petitioner is either incomplete or contain distorted facts, the University which has the specific role in the matter of affiliation can seek for necessary details from the college and if no information is furnished, it has to consider and act, as per the Committee's report, which in the case on hand has categorically reported that the authorities of the college, citing an order of this Court and a letter from the University have refused to part with any information, other than three items pointed out by an earlier inspection committee and no documents were also presented to the committee and they could not inspect all the facilities, as per the norms of Anna University, Madurai, and hence they were not in a position either to recommend or not. In such a view of the matter, unless the abovesaid details are furnished, the petitioner cannot demand that affiliation should be granted as a matter of right.
72. Referring to a decision in The Secretary, The Coimbatore Vasavi Trust, Coimbatore, Vs. K.Karuppasamy and others, reported in 2011 (1) L.W 655, learned counsel representing the University submitted that while considering an application seeking permission to hold or to acquire land for the purpose of establishing an educational institution or Hospital by a Trust which has come into existence after 01.03.1972, the provisions of Section 37(B) are attracted.
73. On the aspect of discrimination that some colleges have been granted affiliation, he submitted that Dhaya College of Engineering is the only college against whom several complaints have been received. He also submitted that filing of a public interest writ petition by one Mr.M.Ramalingam in W.P.(MD) No.8876 of 2011 and the receipt of the notice along with the supporting affidavit, containing several irregularities cannot simply be ignored and as the University has no machinery to ascertain the factual details relating to the matters pertaining to conversion of land, the University was constrained to approach the District Collector for details. According to him, several acres of Nanja lands have simply been permitted to be converted for the purpose of establishment of an engineering college by a Village Administrative Officer. He further submitted that the college should also produce the same for verification, at the time of inspection and the irregularities stated supra in the counter affidavit cannot be said to be minor in nature, to be ignored by the University, while considering the application for grant of affiliation. He therefore submitted that the decision in Al-Karim Educational Trust and another Vs. State of Bihar and others, reported in AIR 1996 SC 1469, cannot be made applicable to the facts of this case. For the abovesaid reasons, he submitted that there is no manifest illegality in the impugned order warranting interference and prayed to sustain the same.
74. By way of reply, Mr.Veera Kathiravan, learned counsel for the petitioner submitted that though the University has contended that the Land Conversion Certificate has to be issued only by the District Collector, no rule or regulation has been placed before this Court to substantiate the same. He further submitted that liberty or authority given under the orders of the Division Bench in W.A.No.740/2011 at paragraph 9 of the judgment, was only to ascertain from the college through the records by the University, and if it is found out, that such permission for conversion of the land had not been obtained, the University can only refer the matter to AICTE, as observed in the Full Bench Judgment in Rukmani's case (cited supra) and from the averments and the arguments of the University, the very purpose of constitution of the second committee was only to discover as to how the approval had been granted, and the respondent University has intentionally failed to adhere to the directions of this Court made in W.A.No.740/2011 dated 09.08.2011 and the further order made on 10.08.2011. According to the learned counsel for the petitioner, even in the notice issued to the petitioner's college, the Committee has used the word only, "inspection" and that the same can be referable only to the directions contained in the order made in W.A.No.740/2011 dated 09.08.2011 and it does not amount to giving any liberty or direction for redoing the entire process of making an inspection, with reference to matters not specifically directed by this Court.
75. Referring to the report of the second inspection committee that they were not able to inspect as per the terms of reference, learned counsel for the petitioner submitted that the very purpose of the inspection, by the second committee is contrary to the directions of this Court. He also submitted that though the University has repeatedly contended that for 50 colleges, approval has not been granted by AICTE, for non production of Land Conversion Certificate, no materials have been placed before this Court. He also submitted that the repeated usage of the words that the whole process of affiliation has been done as per the statutes, norms etc., is nothing but ornamental, to justify the bias and arbitrary action, on the part of the University.
76. According to the learned counsel for the petitioner, when the University has already been given a direction to approach AICTE and which has also been done in the instant case, there is no need to implead the AICTE, for the purpose of adjudicating the correctness of the impugned order, denying affiliation. He also submitted that even before the receipt of the copy of the order of approval, two other colleges have been permitted to participate in the counseling, for admission to engineering courses, for the academic year 2011-12 and the contention of the University that, only after the receipt of the copy of the approval order on 18.08.2011, they had proposed to reinspect the petitioner's college clearly shows that till they received the notice in the public interest writ petition, no action has been taken by the University.
77. According to the learned counsel for the petitioner, for considering an application for affiliation, receipt of a letter of approval is not a pre condition. For the abovesaid reasons, he submitted that the impugned order is contrary to the directions of this Court and consequently prayed for suitable direction.
78. Mr.G.R.Swaminathan, learned counsel for the proposed party submitted that Mr.M.Ramalingam has filed a public interest writ petition before the Division Bench of this Court in W.P.(MD) No.8876 of 2011, for a Mandamus directing the Government and others, to restore the water courses that originally existed in respect of Karisal Kanmoi, Sivarakottai and Goundan Nathi and in the abovesaid Writ petition, he has also sought for an interim injunction restraining the Registrar, Anna University, Madurai, from granting affiliation to the petitioner's college pending disposal of the abovesaid writ petition and therefore, submitted that when the Division Bench has seized of the subject matter of restoration of water courses and incidentally, the prayer for grant of affiliation to the petitioner's college and an issue before the Division Bench, the present writ petition may be directed to be tagged along with W.P.No.8876 of 2011. He further submitted that the test to be applied for considering as to whether a proposed party is a necessary and proper party for effective adjudication in a civil proceedings and in the writ petition is different and as per the rules framed under Article 226 of the Constitution of India, to regulate writ proceedings, it is suffice that the petitioner satisfies the test that,he is a proper person. Learned counsel for the proposed party also submitted that there is a violation of Section 37(B) of the Tamil Nadu Land Reforms (Land fixation and Ceiling) Act, and that there is no question of ratification of the irregularities committed by the petitioner's college, by granting an order of affiliation. In the abovesaid circumstances, he submitted that the proposed party has every right to seek for intervention and heard. He further submitted that constructions have been made blocking the Kanmoi and every individual has got a right to use the Kanmoi. Reliance was placed on the decisions reported in Sri.Mudaliambal Trust, rep. by its Managing Trustee Pudukottai, Vs. Anna University rep. by its Registrar, Chennai, reported in 2003 (4) LW 322, and in The Secretary, The Coimbatore Vasavi Trust, Coimbatore, Vs. K.Karuppasamy and others, reported in 2011 (1) L.W 655, and a further contention has also been made that the petitioner's college has misrepresented to the University, as if the college is in possession of documents referred to in Column Nos.9 and 10 of the application form submitted to the University and that therefore, when the University called upon the petitioner's college to produce the documents, they have not cooperated and in such circumstances, the petitioner who has filed a public interest writ petition has every right to seek for impleading. He further submitted that directing the 3rd respondent University to grant affiliation would be contrary to law and therefore, prayed to dismiss the writ petition.
79. In M.P.No.4 of 2011, the proposed party has stated that he is owning agricultural lands in Sivarakottai Village and he is one of the Ayacutdhars of Sivarakottai Karisalpuram Kanmoi, which is a natural water body. According to him, 50 acres of land depend on water for irrigation, from the said Kanmoi. The tank is fed by water channels from "Kamandala Nathi" also known as 'Goundan Nathi'. It also receives water from Sathuragiri Hills. He has further stated that his sister Gunasundari is owning 2 acres of land in Survey Nos.168/1A2, 168/1B2, 168/1C2, 186/ 6A, 168/ 7A, 168/8A, 168/8B, 168/9A, 168/9B and that the lands were receiving water from the channels from Chinnamadai. According to him, the petitioner's college is located on the land abutting Karisal Kanmoi and the National Highway, near Thirumangalam and that the Trust has constructed buildings, destroying the agricultural lands. It is also the contention of the proposed party that the college has not obtained any exemption under Section 37 of the Tamil Nadu Land Reforms Act and due to the construction of the college, Chinnamadai has been blocked. Contending inter alia that due to the construction of the college, the natural course of Goundan Nathi has been blocked and diverted, and huge truck loads of sand have been dumped on the northern bank of Kamandala Nathi, he has submitted that there has been tampering of the river bed and encroachment. According to him, cultivating lands have become "Tarisu" and in the abovesaid circumstances, he has filed a public interest writ petition before the Division Bench of this Court in W.P.(MD) No.8876 of 2011, for issuance of a writ of Mandamus, directing the respondents therein to restore the water courses that originally existed in respect of Karisal Kanmoi, Sivarakottai and Goundan Nathi. He has also submitted that an application for an interim injunction, restraining the 4th respondent Anna University, Madurai, from granting affiliation to Dhaya Engineering College, Sivarakottai, has been filed, in which, the Division Bench has ordered notice. He has therefore submitted that since the college has not obtained any exemption under Section 37 of the Tamil Nadu Land Reforms Act, and if affiliation is granted to the petitioner's college, it would be impossible to restore the water course, that existed originally in respect of Karisal Kanmoi, Sivarakotai, and Goundan Nathi.
80. Referring to the Appellate Side Rules, Appendix 5 to rules famed to regulate the proceedings under Article 226 of the Constitution of India, learned counsel for the proposed party has submitted that it is suffice that any person, who desires to be heard in opposition to the petition should only be a proper person to be heard and that unlike in civil proceedings, he need not be a necessary and proper party for effective adjudication of the dispute. A request has also been made to tag the present writ petition along with the public interest writ petition in W.P.(MD) No.8876 of 2011. As discussed in the foregoing paragraphs, after the interim orders granted in W.A.M.P.No.5740 of 2002 in W.P.No.3450 of 2002, etc., dated 04.04.2003, the requirement of the certificate under Section 37(B) of the Tamil Nadu Land Reforms Act, 1961, has not been insisted upon by Anna University for grant of affiliation to many educational charitable Trusts/Colleges. As stated supra, no materials have been placed before this Court by Anna University of Technology, Madurai, to rebut the contentions of the petitioner that the certificate has not been insisted, in the academic year 2010-11, in respect of the colleges located within the territorial jurisdiction of Anna University of Technology, Chennai, and Anna University of Technology, Coimbatore.
81. As rightly contended by the learned counsel for the petitioner, though notice was ordered in the interim injunction application, restraining Anna University of Technology, Madurai, from granting affiliation to the petitioner's college, by impugned order dated 20.08.2011 affiliation itself has been refused. Averments in the supporting affidavit also indicate only an alleged infringement of the petitioner's sister's rights to receive water from Chinnamadai. No materials have been placed before this Court to substantiate the contention that if affiliation is granted to the petitioner's college, the personal right of the petitioner is likely to be affected. Matter of granting affiliation is purely between an educational institution and Anna University, Madurai. Admittedly, he is not the owner of the lands. Though the petitioner claims to be a proper person to be heard, considering the averments and the relief sought for, this Court is of the view that he is neither a person who is likely to be aggrieved nor a proper person to be heard in the dispute between the petitioner's college and the 3rd respondent University. The issue involved in this writ petition is not a general question of law or fact, but it is inter se between the petitioner's college and the 3rd respondent University. A necessary party is one who without whom, no order can be made effectively, and a proper party is one in whose absence, an effective order can be made, but whose presence is necessary for complete and final decision on the question involved in a proceeding. The present matter can be disposed of even without hearing the proposed party and that his presence is not necessary for complete and final decision. Further, it is always the discretion of the Court to add or implead proper parties if the interest of the proposed party is not likely to be affected or if his non joinder is also not fatal to the issue to be decided. The lis is mainly between the petitioner's college and the University. Though the petitioner has sought for a Mandamus, directing the respondents therein to restore the water courses that originally existed in respect of Karisal Kanmoi, Sivarakottai and Goundan Nathi with an interim injunction application, restraining the respondents therein, from granting affiliation to the petitioner's college, by virtue of refusal of affiliation, the very interim application itself has become infructuous. As the issue pertaining to grant of affiliation, as per the directions of the Division Bench of this Court in W.A.No.740 of 2011 dated 09/10.08.2011, is between the parties stated supra, this Court is of the view that there is no impediment in hearing the writ petition without being tagged on to the public interest writ petition in W.P(MD) No.8867/2011 which is for a different cause of action. In the light of the above, this Court is of the view that the proposed petitioner is not a proper person to be heard in the present writ petition and accordingly M.P.No.4 of 2011 is dismissed.
82. In so far as M.P.No.3 of 2011 filed by Anna University of Technology, Madurai, for impleading the AICTE, New Delhi, is concerned, material on record discloses that the University has already taken up the matter with AICTE. Though the learned counsel representing the University has submitted that more than 50 colleges have not been granted approval for the current academic year 2010-11, for non production of Land Conversion Certificate, no materials have been placed before this Court to substantiate the said contention. Besides, there are no averments in the supporting affidavit to the impleading petition No.3/2011 to that effect. It is also to be noted that while disposing of W.A.740 of 2011 dated 09/10.08.2011, permission has been granted to Anna University of Technology, Madurai, to verify from the records of the college and make a reference to AICTE, New Delhi. In the foregoing paragraphs, it has already been discussed that neither the second inspection team nor the Registrar, Anna University, Madurai, has sought for any specific documents from the petitioner's college in writing and that even the report of the inspection committee does not disclose the particulars of the documents sought for.
83. As stated supra, the issue involved in this writ petition relates to grant of affiliation to the petitioner's college in terms of the directions granted by this Court on merits and in accordance with the statutes of the Anna University, Madurai, and it does not pertain to approval granted by AICTE, New Delhi. Though the learned counsel for the University has insisted for impleadment of AICTE, New Delhi, as a party respondent to this writ petition, this Court is of the view that AICTE0 is not a necessary and proper party for the purpose of adjudication of the dispute. Accordingly, M.P.No.3 of 2011 is dismissed.
84. At the foremost, on the specific contentions of the learned counsel for the petitioner that CR Engineering College and SSM Institute of Technology, have been permitted to participate in the counselling, even without an order of affiliation by Anna University, Madurai, conspicuously, there is no reply in the counter affidavit. Even during the course of arguments, the learned counsel representing the University who vehemently contended that the Univerity has to maintain its reputation and that the interests of the students should not suffer, has not explained as to how the abovesaid institutions were permitted to take part in the counselling, without affiliation from the concerned University. When Courts have repeatedly held that no admission can be made without affiliation, there is no reason, as to how Anna University, Madurai, and the Director of Technical Education, Chennai, have permitted admission of students in the abovesaid institutions. Conveniently, the University has not placed before this Court, the orders granting affiliation to the abovesaid institutions.
85. As regards the contention that even though VPV College of Engineering did not have any transport facility, it has been permitted to participate in the counseling for the academic year 2011-12, there is no specific answer in the counter affidavit or during the course of arguments. No materials have been placed before this Court, as to whether the existing institutions which were granted approval for the academic year 2011-12 have been granted affiliation by the concerned Universities, for the programmes approved by AICTE.
86. Material on record shows that even as early as on 16.07.2011, Anna University, Madurai, in their website has given the college code numbers for the SSN College of Engineering and Technology, Coimbatore and C.R.Engineering College, Alagarkoil, Madurai District, and also notified the vacancy position in the abovesaid colleges in the official website for engineering admissions from 2011-12 and these particulars have not been disputes by Anna University, Madurai.
87. When Kannamal Educational Trust, Aarthi Educational and Charitable Trust, Paramasivam Palanisamy Charitable Trust, Sivaraja Ramalingam Trust, Narayana Guru International Institute of Science and Technology Trust, VSB Educational Trust, S.N.R.Sons Charitable Trust, Ayanavaram Educational Trust, Rajiv Gandhi Memorial Educational Charitable Trust, etc., represented by its respective Chairmen/Managing Trustees, were not granted affiliation for the year 2002-03, for non-production of the Certificate of exemption from the Government, as Section 37-B of the Tamil nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961, they have filed writ petitions and that the same were dismissed by this Court on 09.10.2002 and 08.11.2002. There were three categories of institutions, viz.,
(i) the approval granted by AICTE but affiliation denied by University on the ground of non-obtaining the exemption under Section 37-B of the Tami Tamil nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961;
(ii) the approval granted by AICTE for setting up new colleges but affiliation not granted by University on the ground of expiry of the last date set by the Government for admissions; and
(iii) approval granted by AICTE for setting up the colleges and the colleges had been functioning, who again sought for additional intake of seats but affiliation refused by the University for the said additional intake of students."
88. Being aggrieved by the same, they have filed writ appeals. Perusal of the order made in W.A.M.P.No.5740 of 2002 in W.P.No.3450 of 2002, etc., dated 04.04.2003, shows that Mr.G.Masilamani, learned Senior Counsel, appearing for Anna University, had tried to explain that a distinction has to be drawn regarding the institutions, which were pre-existing as on 30.7.2002 and those which were established after that date. Considering the rival submissions and the applicability of the provisions of Section 37-B of the abovesaid Act, the Division Bench, by a common order, dated 04.04.2003, has held that, "We have already held above that there is no legal sanctity for imposition of such condition by the Anna University in the absence of a statutory Regulation. The letter of the Registrar of Anna University dated 23.7.2002, as already stated above, cannot operate as a Regulation and consequently, has got no statutory force. Hence, the above cut-off date for the imposition of the production of exemption certificate under the Tamil Nadu Land Reforms (Land Ceilings) Act, 1961 cannot sustain. But the larger question involving the interpretation of Section 37-B of the Tamil Nadu Land Reforms (Land Ceilings) Act, 1961, as to whether it is prospective or retrospective in operation, has to be gone into in other set of Writ Petitions Nos.44540 of 2002 etc.batch and as such, we are not touching that aspect for the reason that the said decision will act in rem and not in personam. In so far as the requirement of the exemption under Section 37-B of the Tamil Nadu Land Reforms (Land Ceilings) Act, 1961, the applicability is common to all the educational trusts and no distinction can be drawn for imposing any cut off date. The academic year 2002 - 2003 has gone and comes the academic year 2003 - 2004. The calendar is already set according to which the date for the issuance of first Prospectus by Anna University is 31.3.2003 but supplementary Prospectus can be issued upto 15.6.2003 and the date set for Single Window System is 23.6.2003. From now onwards, let there not be any more confusions, contingencies or complications. Let the educational institutions and students thereof know where they stand. But, for the process of approval by A.I.C.T.E for the year 2003 - 2004, affiliation of the University is necessary and in the absence of the statutory Regulations framed setting the norms for affiliation, the only alternative is to invoke Chapter 44-A appended to the Madras University Act, 1923, by virtue of sub-Section (3) of Section 38-A of Anna University Act, enabling the Anna University to grant provisional affiliation, which shall operate pending disposal of the W.P. Nos. 44540 of 2002 etc. batch and the regular affiliation shall depend upon the outcome of the verdict therein. It is pertinent to mention that even though some defects had been pointed out earlier by the Anna University in regard to some educational institutions, but with the report now filed, pursuant to orders of this Court and which reports are based upon the inspections made by the Anna University, it is now clear that excepting the vital objection regarding the non-production of the exemption orders under Section 37-B of the Act, all other requirements for running the technical courses by the educational institutions have been met."
89. As stated supra, the Division Bench, at Paragraph 2(i) of the order, has also considered the category of the institution granted approval by AICTE, but affiliation was denied by University on the ground of non-obtaining the exemption under Section 37-B of the Tami Tamil nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961. At Paragraph 7, the Division Bench has held as follows:
"7. In view of what is stated above, we issue the following order:
(1) the Anna University shall grant provisional affiliation to all the educational institutions before us for the years 2002 - 2003 and 20 03 - 2004 within a period of one week from the date of receipt of a copy of this order; (2) within two weeks of the production of the said orders of provisional affiliation by the Anna University, the All India Council for Technical Education shall grant approval to the educational institutions before us for the years 2002 - 2003 (if not already granted) and 200 3 - 2004; (3) it is made clear that the above provisional affiliation and approval to be granted by the respective Authorities named above, shall be without insisting upon the production of the exemption orders from the Government under Section 37-B of Tamil Nadu Land Reforms (Land Ceilings) Act, 1961; (4) the Anna University, while issuing the original Prospectus or supplementary Prospectus, shall include the names of the educational institutions before us, as one entitled for allocation of seats under Single Window System; and (5) it is however made clear that the above provisional affiliation or the approval, which are to be granted by the Authorities named above, shall be subject to the result of the adjudication in the Writ Appeals and Writ Petitions which are kept pending, to decide a larger issue involving the interpretation of Section 37-B of the Tamil Nadu Land Reforms (Land Ceilings) Act, 1961.
90. As regards grant of affiliation to the colleges by Anna University, without insisting for the production of a Certificate under Section 37-B of the Act, 1961, it is necessary to extract the orders granted to certain institutions:
ANNA UNIVERSITY OF TECHNOLOGY CHENNAI CPT Campus, Taramani, Chennai-600 113 __________________________________________________ Lr.No.AUTC/AFFLN/NC-14/2010-11 Date: 13.09.2010 To The Principal, PERI Institute of Technology, No.1, Mannivakkam Village, Kanchipuram-600 048.
Sir, Sub: Grant of Provisional affiliation for the new programme(s) in the new Engineering College - PERI Institute of Technology -2010-11
- Reg.
Ref: 1.Your application dated 08.09.2010.
2.AICTE.F.No.SRO-2010-1-5937291, dated 20th Aug.2010.
******** I am to inform that Provisional affiliation for the following new U.G. Programme(s) is granted with the sanctioned intake mentioned against each for the academic year 2010-11 at PERI Institute of Technology, No.-1, Munnivakkam Village Kanchipuram-600 049.
Sl.No. Degree Programme (s) Sanctioned intake 2010-11 1 B.E. Civil Engineering 60 2 B.E. Computer Science & Engineering 60 3 B.E. Electrical & Electronics Engineering 60 4 B.E. Mechanical Engineering 60 The above said provisional affiliation is being granted subject too the conditions mentioned below:
1. Production of originals of AICTE approval and all other related documents for verification.
2. Verification by a committee towards the fulfilment of the requirements for the above-mentioned course(s) as per the norms and standards of AICTE and the laboratory requirements as per the curricula and syllabi of Anna University of Technology, Chennai for the above courses. In the event of any violation/infringement of the above said conditions and /or the provisions of Anna University of Technology Chennai Act/Statutes/Regulations, AICTE Act, norms & standards/regulations/guidelines or any other law time being in force, suitable action including suspension/withdrawal of affiliation of course(s) may be initiated against the college.
3. The provisional affiliation is granted without prejudice to the right of the University of requiring production of certificate required under Section 37-B of Tamil Nadu Land Reforms (LC) Act 1961 subject to the decision of the Hon'ble High Court of Madras in W.A.No.3454/2002 batch and W.A.No.3482/2002 batch.
4. Under no circumstance fresh admission be made in the above course(s) during the academic year 2011-12, until end unless the continuation of provisional affiliation is obtained from the University.
The Management should submit a duly signed undertaking on a Rs.20/- non- Judicial stamp paper to the Vice-Chancellor, Anna University of Technology Chennai, Chennai-600 113, within 15 days from the date of receipt of this letter to the effect that the conditions specified above will be fulfilled and should submit a compliance report to the University within 60 days from the date of receipt of this letter.
Yours sincerely, Sd/-
VICE-CHANCELLOR ANNA UNIVERSITY OF TECHNOLOGY COIMBATORE (Estd. Under Act No.42 of 2006 by the Government of Tamil Nadu) Cdr.S.Premchand.I.N. (Retd)., Phone : 0422-269 4455 REGOSTRAR I/C Fax : 0422-269 4400 _______________________________________________________ Lr.No.AUTCBE/CA/CA1/Affiliation/PG/1407/165/2010 Date: 13.10.2010 To The Principal, SVS Institute of Computer Applications, Arasampalayam Village, Pollachi (Tk) Coimbatore-642 109.
Sir, Sub: Grant of Provisional affiliation of new programmes/ variation in intake in the existing programme(s)/ continuation of Provisional Affiliation for the existing programme(s) - PG - for the academic year 2010-11 - Reg.
Ref: 1.Your application for affiliation for the academic year 2010-11.
******** I am by direction to inform you that under the provisions of the Anna University of Technology, Coimbatore Statutes for affiliation. Provisional affiliation for the new programme(s) /variation in intake in the existing programme(s) / continuation of Provisional Affiliation for the existing programme(s) is granted for the following PG programme(s) with the sanctioned intake mentioned against each for the academic year 2010-11 (July 2010 to June 2011) to SVS Institute of Computer Applications, Arasampalayam Village, Pollachi (Tk), Coimbatore-642 109.
Sl.No Degree Branch Type of affiliation Intake Existing 2009-10 Approved 2010-11 1 MCA Computer Applications Provisional 60 60 The above said provisional affiliation is being granted subject to the fulfilment of the conditions mentioned below:
1. Rectification of the deficiencies, if any, existing in the college as already communicated by the University.
2. Provisional Affiliation Conditional (P A C): In respect of programmes for which conditional provisional affiliation is granted, re-inspection will be conducted, if the University deems it necessary, to verify the compliance in rectifying the deficiencies already communicated.
3. Production of originals of AICTE/CCA/DGS approval and all other related documents for verification as and when demanded.
4. Verification by a committee towards the fulfilment of the condition mentioned above and the continued fulfilment of the requirements for the the above mentioned course(s) as per the norms and standards of AICTE and the laboratory requirements as per the curricula and syllabi of Anna University of Technology Coimbatore for the above courses. In the event of any violation/infringement of the above said conditions and /or the provisions of Anna University of Technology, Coimbatore Act/Statutes/Regulations, AICTE Act, norms & standards/regulations/guidelines or any other law time being in force, suitable action including suspension/withdrawal of affiliation of course(s) may be initiated against the college.
The provisional affiliation is granted without prejudice to the right of the University of requiring production of certificate required under Section 37- B of Tamil Nadu Land Reforms (LC) Act 1961 subject to the decision of the Hon'ble High Court of Madras in W.A.No.3454/2002 batch and W.A.No.3482/2002 batch.
Under no circumstance fresh admission be made in the above course(s) during the academic year 2011-12, until end unless the continuation of provisional affiliation is obtained from the University.
The Management should submit a duly signed undertaking on a Rs.20/- non- Judicial stamp paper to the Registrar, Anna University of Technology, Coimabtore 641 047, within 15 days from the date of receipt of this letter to the effect that the conditions specified above will be fulfilled.
Note: If at any point of time during an inspection or surprise inspection it is found that the norms and standards prescribed are not maintained by the college the provisional affiliation granted above will be withdrawn without any notice.
Yours faithfully, Sd/- REGISTRAR
91. Perusal of the order granting provisional affiliation to PERI Institute of Technology, shows that the affiliation has been granted to the abovesaid institute, for the year 2010-11, for U.G., programmes in the new engineering college, without prejudice to the right of the University, requiring production of certificate required under Section 37-B of Tamil Nadu Land Reforms (LC) Act 1961, subject to the decision of this Court in W.A.Nos.3454/2002, etc., batch.
92. Similarly, when SVS Institute of Computer Applications submitted an application for affiliation, for the academic year 2010-11, the said Institution has been granted affiliation subject to rectification of the defects, if any, existing the college, has already communicated by the University and Provisional Affiliation has been granted, without prejudice to the right of the University, requiring production of certificate under Section 37-B of Tamil Nadu Land Reforms (LC) Act 1961, subject to the decision of the above mentioned cases.
93. Reading of the provisional affiliation order, dated 13.10.2010, granted by the Registrar, Anna Universities of Technology, Chennai and Coimbatore, would also indicate that even before rectification, regarding compliance of the deficiencies, provisional affiliation has been granted to the abovesaid Institute. When two constituent units of Anna University, viz., Anna University of Technology, Chennai and Anna University of Technology, Coimbatore, have granted provisional affiliation, to the abovesaid Engineering Colleges, it is not known as to how and on what basis, the Anna University of Technology, Madurai, third respondent herein, alone has adopted a different yardstick to the case of the petitioner's college alone.
94. When the orders of the Division Bench made in W.A.M.P.Nos.5740 of 2002 in W.A.Nos.3450 of 2002, dated 04.04.2003, could be uniformly followed in respect of the abovesaid institutions and Charitable Trusts for the academic year 2002-03, by Anna University of Technology, Chennai and that the very same interim order has been applied to PERI Institute of Technology and SVS Institute of Computer Applications, by the constituent Units of Anna University of Technology, Chennai and Coimbatore respectively, the reason as to how and on what basis, the petitioner-college located within the territorial jurisdiction of Anna University, Madurai, alone stands on a different footing, have not been explained in the counter affidavit. Learned counsel representing the third respondent-University also has not explained as to how the Division Bench order, stated supra, is not applicable to the case of the petitioner.
95. When the requirement of the Certificate under Section 37-B, is not insisted upon by the constituent units of Anna University for the purpose of grant of affiliation, the Anna University, Madurai, another Constituent, has filed a counter affidavit before this Court and vehemently contended that the petitioner's college has mislead the third respondent-University in making a statement that the college has obtained a certificate issued under Section 37-B of the Act. It is to be noted that the main reason for rejection is regarding the clearance as per Section 37-B of the said Act, wherein, the District Collector, Madurai, has stated that the petitioner-College has neither applied nor obtained any clearance from the Government.
96. Though both the learned counsel representing for the University and the proposed respondent, urged the abovesaid aspect, in the light of the interim orders granted by this Court and the provisional affiliation granted to the abovesaid two educational institutions, in addition to the charitable and educational trusts, parties before the Division Bench, this Court is of the view that Anna University, Madurai, has failed to explain as to how, it is not bound by the orders of the Division Bench, stated supra. When the certificate of exemption has not been insisted upon for other colleges/trusts, stated supra, discrimination on the part of the Anna University, Madurai, exclusively to the case of the petitioner-college, is per se apparent on the face of the record. Even assuming that the college has stated the abovesaid certificate was available with them, production of the said certificate is not required in the light of the statutes of the University itself, wherein, at Paragraph 28 of the statues, the University itself has made it clear that the application for affiliation would be considered without prejudice to the right of the University requiring the production of certificate under Section 37B of Tamil Nadu Land Reforms (LC) Act,1961 and the permission of the Government to establish the college required under Section 5(ac) of Anna University Act, 1973, subject to the verdict of this Court.
97. It is the specific case of the petitioner-college that pursuant to the notice of inspection, dated 17.08.2011 of the Registrar, Anna University, Madurai, third respondent, proposing to visit the institution on 19.08.2011, for considering the affiliation of the petitioner's Institution for the academic year 2001-12 and though the Registrar of the University has directed the College, to keep all the relevant documents and records, ready for verification, at the time of inspection, no documents were sought for. The Inspection Committee, in its report, dated 19.08.2011, has recorded as follows:
"With reference to the Lr.of Registrar, AUT Madurai, AUT MADU AFFLI/2011- 387, dated 17.08.2011, the Committee consisting of the undersigned members, visited Dhaya College of Engineer, Madurai, for inspecting the facitilities as per AUTMDU norms for granting affiliation for the year 2011-12, on 19.08.2011. The authorities of the college, citing a court order and a letter from the University, refused to part with any information other than for three items pointed out by an earlier inspection committee. In fact we were told that we were not entitled to inspect anything other those three items. They also refused to give anything in writing. No document was presented to us. Since our terms of reference are to inspect all the facilities, as per AUTMDU norms, we could not do so. Hence, we as per the AUTMDU norms, we could not do so. Hence, we are not in a position either recommend or not to recommend affiliation."
98. Even though the college in their reply, dated 18.08.2011, has stated that they were happy to receive the inspection team, regarding their compliance of the deficiencies noticed earlier, there is nothing to indicate in the counter affidavit or in the report of the second inspection team, as to whether the second inspection team, has verified whether the college has rectified the defects pointed out earlier. The inspection team in its report has stated that, "since their terms of reference were to inspect all the facilities as per the Anna University of Technology norms, we could not do so". Thus it could be deduced from the report that what has been ordered by Anna University to the second inspection team is to re-do the whole exercise of verification of all the facilities afresh, which is beyond the scope of the directions granted by this Court.
99. Though the Inspection committee has recorded that no documents was presented to them, as rightly contended by the learned counsel for the petitioner that there is no indication in the notice, dated 17.08.2011, of the Registrar of Anna University of Technology, Madurai, to the directions of reference for the second inspection committee. At this jucture, it is relevant to extract, once again the directions granted by the Division Bench of this Court in W.A.No.740 of 2011, dated 09/10.08.2011, at paragraphs 9 to 12, as follows:
"9. In such view of the matter, since the Full Bench has, in categoric terms, held that the grant of approval is not a matter of course and the same has to be considered only in accordance with the statutes of the University concerned, no one can direct the University to act against its own statutes. The contention of the learned Additional Advocate General that the first respondent college has not obtained necessary permission from the competent authority for conversion of lands to put up construction for the college can, at the most, be attempted to be found out from the college through the records by the appellant
- University and if it is found out that such permission for conversion of the land has not been obtained, the appellant - University can only refer it to AICTE, as observed by the Full Bench, elicited above.
10. It is true that the said deficiencies regarding conversion have not been pointed out by the appellant - University while not granting affiliation. Since we have already elicited that the Affiliating University has raised only three deficiencies to be complied with and according to the learned counsel for the first respondent college, the first respondent college has complied with all the deficiencies pointed out by the Inspection Committee, we modify the Paragraph No.20 of the order of the learned Single Judge only with a direction to the appellant University to consider the reply made by the first respondent college dated 25.07.2011 on merits and in accordance with law and based on its own statutes and pass appropriate orders regarding the grant of affiliation.
11. It is now informed that in respect of two other colleges, provisional affiliation has been granted and they are also admitting the students and that privilege has not been given to the first respondent college. According to the learned Additional Advocate General, the last date for counselling is 08.08.2011.
12. Considering the above said submission that there is an allegation of discrimination, we are of the view that even though the last date for counselling has expired, the appellant University should consider the reply of the first respondent college dated 25.07.2011 for the purpose of grant of affiliation as per the statutes for the academic year 2011 - 2012 and pass appropriate orders within a period of two weeks from the date of receipt of a copy of this order. "
100. As rightly contended by the learned counsel for the petitioner that there is no specific direction to re-do the whole exercise for grant of affiliation. However, the University has contended that action has been taken on the receipt of a notice in a public interest writ petition in W.P.(MD) No.8876 of 2011 filed by one Mr.Ramalingam, the proposed respondent in this writ petition and on the basis of the report given by the District Collector, Madurai. The irregularities said to have been committed by the petitioner- Institution as per the report of the District Collector, Madurai, are as follows:
""(i) The college has not obtained any approval from the Director of Town and Country Planning for the plan approval but only a consent from the Regional Deputy Director of Town and Country Planning in-charge, Madurai Region for the plan approval to be issued by Village Panchayat.
(ii) The college has neither applied for nor obtained any clearance as per Section 37(B) of the Tamil Nadu Land Reforms (land Fixation and Ceiling) Act.
(iii) The District Collector or the District Level authorities have not given any consent for conversion of wet land for any other purposes.
(iv) The District Collector has not issued any Land Use Certificate;
certain sluices and water channels have been destroyed by the College."
101. The impugned order reads that the District Collector had inspected the college based on the request of the University, in view of the orders made in W.A.No.740 of 2011, dated 09/10.08.2011, and the notice received by the University. He has cited the above mentioned non-compliance with the statutes for affiliation of Anna University of Technology, Madurai and AICTE Approval Process Handbook, 2011-12. Though the Anna University, Madurai, has contended that the abovesaid defects were not noticed by the first inspection committee and therefore, they have every right to seek for assistance of the District Collector, Madurai, it should be borne in mind that the objection, regarding non-obtaining of certificate from the competent authority for conversion of the land to put up construction for the college, had already been considered by the Division Bench of this Court, in its order in W.A.No.740 of 2011, dated 09.08.2011 and that the Division Bench has categorically observed that at the most, the same can be attempted to be found out from the college through the records by the University and if it is found out, that such permission for conversion of the land had not been obtained, the University can only refer it to AICTE, as observed by the Full Bench, elicited above. In this context, the decision of the Full Bench in Rukmani College of Education v. the State of Tamil Nadu reported in 2008 (1) CTC 545, which dealt with the role of the University in granting affiliation, once AICTE has granted approval, at Paragraph 21 and 35 are reproduced:
"21. In none of these Judgments, the Supreme Court has laid down that the grant of affiliation by the University is a matter of course or mere formality once the expert body set up by the Central Act had granted the permission. All the Judgments of the Supreme Court arose out of a case where either State Governments insisted upon the prior approval from them or the University Acts contained a provision for prior approval from the State Governments. In all the cases, the issue was only in regard to the requirement of 'no objection certificate' from the State Government and not with respect to the academic standards prescribed by the University."
35. We have considered the provisions of the relevant statutes and the decided cases. In our opinion, it is impossible to accept the submission of the learned Counsel appearing for the Institution that merely because the recognition to the institution has been granted by the NCTE, affiliation must necessarily be granted by the University. If the interpretation as suggested by the Institution is given, it would only mean that the University has to grant affiliation even if the particular institution does not conform to the standards or does not meet the requirements of the Act, Statutes, Ordinances and Regulations of the University and may have the effect of destroying the very autonomy of the University. Merely because the NCTE Act is a Central Statute it does not mean that it has to be interpreted in a manner which destroys the very fabric and edifice of the University. Therefore, there is a need to interpret the provisions of the Central Act and the State Act, harmoniously so that both are able to survive in the respective fields and also able to achieve their respective objectives. No doubt, Section 14(6) says that the University, on receipt of the order under Sub-section (4) of Section 14 of the NCTE Act, shall grant affiliation to the institution where recognition has been granted. However, this does not mean that as soon as the order of recognition from the NCTE is produced before the University, it is bound to close its eyes and straightaway grant affiliation. It would only mean that normally affiliation should not be refused on the ground which are covered by Section 14(3) of the NCTE Act, as the Council has already satisfied itself that the institute meets these requirements. However, this would not be an absolute rule and the University can make a limited enquiry as to whether the institution has proper facilities, competent teaching staff, etc. in consonance with Section 14(3) of the NCTE Act. If it is found that the college does not have the adequate facilities, qualified teaching staff, adequate financial resources, etc. or permission has been obtained by deception or fraudulent means, it would be open for the University to refer the matter to the NCTE for appropriate action. After all it is the University which confers the degree. It is the credibility, reputation or goodwill of the University which is at stake. Therefore, in our opinion, no institution can claim affiliation as a matter of right."
102. The Division Bench of this Court in W.A.No.740 of 2011, has also considered a recent Division Bench decision of this Court in Self Financing Pvt. Teacher Training Institutes Assn. V State of Tamil Nadu reported in 2011 (5) MLJ 605, wherein, this Court has followed a recent Judgment of the Hon'ble Supreme Court in Bhartia Education Society and Another v. State of Himachal Pradesh and others reported in 2011 (3) Scale 48 and the relevant portion of the judgment in Bhartia Education Society's case, is reproduced hereunder:
"22. Sub-section (6) of Section 14 no doubt mandates every examining body to grant affiliation to the institution on receipt of the order of NCTE granting recognition to such institution. This only means that recognition is a condition precedent for affiliation and that the examining body does not have any discretion to refuse affiliation with reference to any of the factors which have been considered by NCTE while granting recognition. For example, NCTE is required to satisfy itself about the adequate financial resources, accommodation, library, qualified staff, and laboratory required for proper functioning of an institution for a course or training in teacher education. Therefore, when recognition is granted by NCTE, it is implied that NCTE has satisfied itself on those aspects. Consequently, the examining body may not refuse affiliation on the ground that the institution does not have adequate financial resources, accommodation, library, qualified staff, or laboratory required for proper functioning of the institution."
103. Reading of the order made in W.A.No.740 of 2011, dated 09/10.08.2011, makes it abundently clear that the Division Bench, while adjudicating the correctness of the order made in W.P.(MD).No.8354 of 2011, dated 01.08.2011, has compartmentalized the order into two parts, (1) with reference to the allegations that the petitioner-College has committed certain irregularities, in obtaining approval from the AICTE, the Division Bench has made it clear that the University has every right to verify the correctness of the particulars furnished to AICTE and following the judgments, stated supra, granted liberty to Anna University, Madurai, to ascertain from the college through the records by the University and if it was found out that there was any irregularity, such as, permission for conversion of the land had not been obtained, permitted the University to refer it to AICTE, and (2) As regards the grant of affiliation, at Paragraph 10 to 12 of the order, dated 09.08.2011 and Paragraph 3 of the order, dated 10.08.2011 respectively, the Division Bench has categorically held that, "10. ........since we have already elicited that the Affiliating University has raised only three deficiencies to be complied with and according to the learned counsel for the first respondent college, the first respondent college has complied with all the deficiencies pointed out by the Inspection Committee, we modify the Paragraph No.20 of the order of the learned Single Judge only with a direction to the appellant University to consider the reply made by the first respondent college dated 25.07.2011 on merits and in accordance with law and based on its own statutes and pass appropriate orders regarding the grant of affiliation.
12. ........the appellant University should consider the reply of the first respondent college dated 25.07.2011 for the purpose of grant of affiliation as per the statutes for the academic year 2011 - 2012 and pass appropriate orders within a period of two weeks from the date of receipt of a copy of this order.
3. .......the appellant is directed to consider the reply of the first respondent college dated 25.07.2011 and pass appropriate orders within a period of (10) ten days from the date of receipt of a copy of this order."
104. Thus, as rightly contented by the learned counsel for the petitioner, in more than one paragraphs, the Division Bench, for the purpose of affiliation has confined their directions only to consider the reply, dated 25.07.2011 and not more than that. Insofar as the contentions of the University in obtaining approval from AICTE, what has been directed by the Division Bench is only to place it before AICTE, after verifying the details from the college through their records.
105. First of all, the Division Bench has only directed Anna University of Technology, Madurai, to verify from the records of the College. No directions have been issued, enabling Anna University, Madurai, to take the assistance of the District Collector, Madurai, to verify the items in the check list prescribed before the University for affiliation and to send a report.
106. Though the District Collector, Madurai, has been approached to get information, regarding various items in the check list prescribed by the Anna University for affiliation, reading of the impugned order, dated 20.08.2011, makes it clear that the District Collector, Madurai, who had inspected the College, based on the request of the University, has sent a report, regarding non-compliance of the petitioner-College with the statutes for affiliation of Anna University of Technology, Madurai, and also AICTE Approval Process Handbook, 2011-12. In this context, this Court deems it fit to extract two paragraphs from the impugned order, "The Collector of Madurai District, who was approached by us to seek information on the various items in the Check List prescribed of our University for affiliation has also sent his report. He has stated that the Regional Deputy Director of Town and Country Planning was also prevented from entering into the premises and carrying out their duties.
The Collector who inspected based on our request in view of the orders in W.A.No.740 of 2011 and the notice received by us on the grant of affiliation in a Public Interest Litigation filed in W.P.No.8876 of 2011, has cited the following non-compliance with the statutes for affiliation of Anna University of Technology Madurai and AICTE approval process handbook (2011-2012). This is based on documentary evidence and also personal visit."
107. A combined reading of the above two paragraphs, makes it clear that the request of the University appears to be only pertaining to various items of check list prescribed by the University for affiliation. Whereas, the District Collector, Madurai, has submitted a report, with reference to AICTE approval process for establishing an engineering college. Nowhere, in the order made in W.A.No.740 of 2011, dated 09/10.08.2011, the Division Bench has permitted the University to seek the assistance of the District Collector, Madurai, to verify the items in the check list, prescribed by the University for affiliation. All that has been directed by the Division Bench is that the University can find out from the college through records. However, the University has made an attempt to justify their action of collecting materials behind the back of the petitioner, citing the receipt of notice, in a public interest writ petition filed by the said Mr.Ramalingam.
108. Admittedly, the directions of this Court in W.A.No.740 of 2011, dated 09/10/08.2011, directing the University to consider the reply of the petitioner-college, dated 25.07.2011, for the purpose of affiliation, as per the statute, for the academic year 2011-12, ought to have been implemented within a period of 10 days from the date of receipt of a copy of the abovesaid order. As per the averments made in the supporting affidavit, Anna University of Technology, Madurai, ought to have passed orders, before 22.08.2011. Material on record shows that no steps have been taken, till 17.08.2011, when the Registrar, Anna University, sent a notice to the College, proposing to inspect on 19.08.2011. The said notice reads as follows:
To The Principal, Dhaya College of Engineering, Sivarakottai Village, Thirumangalam Taluk, Madurai District 625 706.
Sir, Sub: Affiliation to your Institution for the academic year 2011-12 - Inspection - Regarding.
I am by direction to inform that an Inspection Committee will visit your Institution on 19.08.2011 for considering the affiliation of your institution for the academic year 2011-12.
All the relevant documents and records may be kept ready for verification at the time of inspection.
Sd/-
REGISTRAR.
109. As contended by the learned counsel for the petitioner, there is absolutely no indication in the notice, as to the documents required for production. The contention of the University that only after the receipt of a copy of the order of approval granted by AICTE, the process for grant of affiliation, would be considered, cannot be countenanced for the reason that even before the receipt of the copy of the approval order, when simultaneous applicatios were made to AICTE for grant of approval to start the Engineering College and for affiliation, Anna University, Madurai, through its inspection team, has visited the college on 21.07.2011, and noticed the following defects.
(i) There is a shortage of 175 library books in Science and Humanities.
(ii) Location of the cafeteria is by the side of the class rooms which may create noise in managing the process.
(iii) Transport facility is not available.
110. After receiving the report regarding the defects pointed out, the petitioner-College, vide his letter, dated 25.07.2011, has sent a letter to the University, which reads as follows:
(i) The shortage of no. of books have been purchased and made good.
(ii) We have shifted the cafeteria to another building away from the academic block and it will not create noise in managing the process.
(iii) Numbers of bus with the capacity of 40 each has been ordered and one number is purchased, remaining two will reach to our college campus at the time of opening of the college.
111. Though the learned counsel for the petitioner has submitted that the Anna University, Madurai, does not have any prescribed statutes for grant of affiliation, for any educational institution, it is the contention of the learned counsel, representing the University, that the statutes prescribed by Anna University, Chennai, are being adopted and considering the above, this Court deems it fit to extract the powers of the University to grant or withdraw affiliation and the conditions to be satisfied by the colleges, seeking affiliation, "4 POWERS TO GRANT OR WITHDRAW AFFILIATION 4.1 Definition of Terms:
"academic programme" means any course of study offered by a college in engineering, technology and allied sciences for admission to the examinations for degrees, diplomas and other academic distinctions of the University. 4.2 Grant of Affiliation to Colleges The University shall have the power to affiliate any academic programme in any college within the University area, for admission to the examinations for degrees, diplomas and other academic distinctions of the University.
4.3 Suspension or Withdrawal of Affiliation The University shall have the power at any time after adopting the set procedures, to suspend or withdraw the affiliation granted to an academic programme.
5 CONDITIONS TO BE SATISFIED BY COLLEGES SEEKING AFFILIATION
5.1 Society / Trust A registered society / registered trust may alone be eligible to seek affiliation for academic programmes and it shall satisfy the conditions stipulated in sub Statutes 5.2 to 5.18 so far as they are not inconsistent with the regulations that may be stipulated by the AICTE from time to time.
112. The procedure for grant or withdraw of affiliation to the programme, as set out in Statute No.7, is extracted hereunder:
"7.3 Inspection Committee On receipt of the application from the college for affiliation, for each of the academic programme(s) satisfying the pre-requisite for applying for affiliation, an Inspection Committee shall be constituted as per the Regulations. The committee shall inspect and submit a report to the University in the format specified in the Regulations.
7.4 Standing Committee on Affiliation The Standing Committee on Affiliation constituted as per the Regulations shall scrutinize the application for affiliation and review the reports of the Inspection Committees and make appropriate recommendations on affiliation of academic programme(s).
7.5 Grant of Affiliation The decision on grant of affiliation to an academic programme shall be made by the Vice-Chancellor taking into consideration the recommendations of the Standing Committee on Affiliation.
7.6 Categories of Affiliation 7.6.1 Provisional Affiliation Whenever, an academic programme of a college is affiliated to the University for the first time, only provisional affiliation shall be granted for a period of one academic year. This process of granting provisional affiliation will be repeated every year for a minimum number of years prescribed for the completion of the academic programme subject to the college satisfying all the requirements for affiliation and thereafter, provisional affiliation may be granted at a stretch for a period of three academic years. 7.6.2 Permanent Affiliation A provisionally affiliated academic programme of a college shall be considered for permanent affiliation, only after three consecutive batches of students have completed their academic programme from the college. This consideration is subject to the satisfactory compliance of all the conditions prescribed by the University for the said programme during the periods of provisional affiliation. The college shall seek permanent affiliation for its provisionally affiliated programme(s) within a period of three years from the date of eligibility after satisfying all their requirements for permanent affiliation. The date of eligibility for a provisionally affiliated academic programme to apply for permanent affiliation is either the date on which three consecutive batches of students have completed their academic programme(s) from the college or the date on which this Statutes comes into force, whichever is later.
If the college fails to seek and qualify for permanent affiliation for the programme(s) within the said period, the provisional affiliation shall not be extended.
A college is said to be affiliated to the University if it offers provisional/permanent affiliated academics programmes. A college is said to be permanently affiliated to the University, if the college has obtained permanent affiliation at least for three academic programmes.
113. Therefore, when specific directions of the Division Bench are confined only with reference to the letter, dated 25.07.2011, on merits and in accordance with statutes, Anna University, Madurai, ought not to have transgressed the directions issued for the purpose of grant of affiliation. As stated supra, when the Division Bench has permitted the University to find out from the college through its records, any alleged irregularities, in getting approval from AICTE, this Court is of the view that there has been an abdication of powers to the District Collector, Madurai, to ascertain and get information on various items of check list prescribed by the University and matters pertaining the approval. Again, when there was no specific direction to the parties in the Public Interest Writ Petition, in W.P.(MD) No.8876 of 2011, the District Collector, Madurai, has sent a report, pertaining to the particulars, contained in AICTE approval process handbook (2011-12).
114. Though the learned counsel representing the University by placing strong reliance on the impugned order, submitted that the petitioner college had not complied with the statutes of the University, as rightly contended by the learned counsel for the petitioner, the University has not been able to pinpoint either from the statutes of the University, the relevant portion, which has not been fully complied with. An inspection has to be conducted by the University, while considering the request for grant of affiliation and regulations and the statutes provide for the same.
"R 22 INSPECTION COMMITTEE FOR AFFILIATION (vide Section 7.3 of the Statutes) Inspection Committee for Affiliation of academic programme(s) shall be constituted by the Registrar from out of the panel of experts approved by the Vice-chancellor from time to time for considering the grant of affiliation for the academic programme(s). The Inspection Committee shall visit the college and verify the correctness of the particulars furnished by the college in the application and also verify whether all the affiliation conditions laid down by the University are satisfied. The committee shall submit a report to the University in the prescribed format. The Committee shall have a minimum of 2 members, preferably from among senior faculty members of the University / colleges, or former faculty members of the University / colleges, or experts from the industries / organizations.
In case of exigency a one-man Inspection Committee may be constituted to verify the compliance report submitted by the college. The committee shall submit a report to the university in the format as specified in Annexure 14.
R 23 STANDING COMMITTEE ON AFFILIATION (vide Section 7.4 of the Statutes) The Standing Committee on Affiliation (SCA) shall be constituted by the University. It shall consist of 5 members as detailed below:
*Chairman of the committee - A senior academician *Three members from faculty of the University/academicians *Member Secretary - Director (Centre dealing with affiliation matters in the University) The term for the members of the committee shall be 3 years. The Standing Committee on Affiliation shall scrutinize the applications received from i) the colleges and ii) the reports received from the Inspection Committee on Affiliation and consolidate its recommendations. The SCA may seek further clarification, if necessary, from the Inspection Committee and / or college/Institution and may make appropriate recommendations on affiliation. The committee shall submit its final recommendations to the Vice-Chancellor."
115. Earlier, the first inspection committee has noticed three defects. After rectification, the second inspection committee in its report, has stated that they were not able to inspect with reference to Anna University norms, but contrary to the report, the impugned order has been passed, stating that the petitioner's college had not fully complied with the statutes. The impugned order certainly over reaches the report, exhibiting arbitrariness and bias. Further, in the absence of any specific report of their inspection regarding the deficiencies, stated to have been rectified, the Registrar, Anna University, Madurai, in his counter affidavit, has mentioned afresh defects. At this juncture, it is pertinent to extract the few reasons in the counter affidavit.
"(1) Certificate for fire/boiler/electrical safety from competent authorities.
(2) Certificate from Health Inspector.
(3) Certificate from PWD Superintendent Engineer for Structural Stability for the building.
(4) Master Time-Table for all courses and all sections with classroom arrangements.
(5) Audited statement of accounts of the college for the past three years. (6) Non availability of License under Tamil nadu Public Buildings Licensing Act, 1965 and Rules framed thereunder."
116. Needless to say that an impugned order has to fall or succeed on the basis of the reasons contained therein, and it cannot be supported by the averments in the counter affidavit. Useful reference can be made to a decision of the Apex Court in Mohinder Singh Gill v. Chief Election Commr., reported in 1978 (1) SCC 405, wherein, at Paragraph 8, held as follows:
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, it validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Commr., of Police, Bombay v. Gordhandas Bhanji, reported in AIR 1952 SC 16:
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by pubklic authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.""
117. The above position of law has been restated in Hindustan Petroleum Corpn. Ltd., v. Darius Shapur Chenai reported in 2005 (7) SCC 627, and at Paragraph 24 of the judgment, the Supreme Court held as follows:
"When an order is passed by a statutory authority, the same must be supported either on the reasons stated therein or on the grounds available therefor in the record. A statutory authority cannot be permitted to support its order relying on or on the basis of the statements made in the affidavit dehors the order or for that matter dehors the records."
118. As per the Statute 22 of the Anna University, in case of any deficiencies, the proper course open to the University is to appoint a fresh committee or a one man committee. As rightly contended by the learned counsel for the petitioner, the purpose of the second inspection committee, apparently is not for the purpose of verifying as to whether the defects have been rectified or not, but it is only for the purpose of ascertaining the details contained in the collector's report.
119. Even assuming that Anna University, Madurai, can seek for any particulars, regarding the matters, relating to the orders passed by the Revenue Authorities, as rightly contended by the learned counsel for the petitioner, the University, which has received certain reports, alleging irregularities, ought to have called upon the petitioner for production of the documents, as directed by the Division Bench and if there was any refusal or the particulars called for, were not submitted by the College, it is always open to the Anna University, Madurai to refer the matter to AICTE, New Delhi. Neither the notice, dated 17.08.2011 of the Registrar, Anna University, Madurai, proposing to inspect the institution nor the impugned order disclose that what were the documents sought for, by the University for verification. Nothing has been given in writing. In the absence of any direction given in writing, the contentions of the University that the petitioner's college did not produce any documents, and that the petitioner's college did not cooperate with the inspection team, cannot be countenanced.
120. Yet another aspect to be considered is that the report which has been obtained behind the back of the petitioner-college, has not been put on notice and the same has simply been acted upon. It is evident from the pleadings and material on record that the University has obtained a report from the District Collector and even without furnishing a copy of the same, has rejected the request of the petitioner, which amounts to violation of the principles of natural justice. Even taking for granted that the petitioner- College has obtained approval from AICTE, by furnishing incorrect particulars, still as per the decision of the Full Bench of this Court in Rukmani College of Education v. the State of Tamil Nadu reported in 2008 (1) CTC 545 and W.A.No.740 of 2011, dated 09/10.08.2011, Anna University is empowered to verify the particulars from the records of the college and refer to AICTE, New Delhi.
FORMAT LAND USE CERTIFICATE The following lands are owned by M.K.Alagiri Educational Trust Office at 25, Sathyasai Nagar, Madurai-3 and it is holding at Sivarakottai Village, Thirumangalam Taluk, Madurai District.
Name of the village Patta No. Name of the Pattadar Survey No. Extent Classification of land Sevarakottai M.K.Alagiri Educational Trust 169/1A, 1B, 2A, 3, 2B, 4A, 7A, 5, 6A, 6B, 7B1, 8B, 9A, 10, 8A, 11, 4B, 12A, 12B, 13, 170/1A, 1C, 3A, 3B, 1B, 2, 4A2B, 4A2A, 4B1, 4B2, 6A, 6B, 4A1, 171/1A, 14, 15B, 3A, 3C, 1B, 2, 1C3, 1C2, 1C1, 3B, 7, 8, 18A, 10A, 10B, 11, 9, 12, 13C, 13D, 13B, 13A, 15A, 17D2, 5, 16, 17A, 17B, 17C, 17D1, 18B, 4, 6C, 172/3, 4, 8, 7, 5, 6 15 Acre 28.5 cents Wet Land mDg;g[eh; bgWeh;
jpU/R/g/Kfk;kJ myp. gp/,/. vk;.gp.V bray; mw';fhtyh;. efh; Cuikg;g[ Jiz ,af;Feh; (bgh) K/f/mHfpup fy;tp mw;f;fl;lis kJiu kz;lyk;. 25. rj;arha; efh;.
4. cwf;fPk; m$;ky;fhd; nuhL. kJiu 625 003/ kJiu 625 002/ e/f/ vz;.605/2011 k/k/3 ehs; 22/02/2011 Iah.
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rhpnt vz;/169/10, 12, 12A, 12B, 13, 1A, 1B, 2A, 2B, 3, 4A, 4B, 5, 6A, 7A, 7B1, 8A, 8B, 9A, 171/1A, 1B, 1C, 2, 4B1, 4B2, 6A, 6B, 171/10A, 10B, 11, 12, 13A, 13B, 13C, 13D, 14, 15A, 15B, 16, 17A, 17B, 17C, 17D1, 17D2, 18A, 18D, 1A, 1B, 1C1, 1C2, 1C3, 2, 3A, 3B, 3C, 4, 5, 6C, 7, 8, 9, 172/3, 4, 5, 6, 7 - f;fhd epy cgnahf tpguk; bjuptpj;jy; bjhlh;ghf.
ghh;it : 1) bray; mw';fhtyh;. K/f/ mHfpup fy;tp mw;f;fl;lis. kJiu. tpz;zg;gk; ehs; 21/02/2011/
2) efh; Cuikg;g[ Jiz ,af;Feh;. kJiu kz;lyk;. fojk; vz;/3468/2008. kk3.
ehs; 24/12/2008/ kJiu khtl;lk;. jpUk';fyk; tl;lk;. rptuf;nfhl;il fpuhkk;. rhpnt vz;fs;/169/10, 12, 12A, 12B, 13, 1A, 1B, 2A, 2B, 3, 4A, 4B, 5, 6A, 7A, 7B1, 8A, 8B, 9A, 171/1A, 1B, 1C, 2, 4B1, 4B2, 6A, 6B, 171/10A, 10B, 11, 12, 13A, 13B, 13C, 13D, 14, 15A, 15B, 16, 17A, 17B, 17C, 17D1, 17D2, 18A, 18D, 1A, 1B, 1C1, 1C2, 1C3, 2, 3A, 3B, 3C, 4, 5, 6C, 7, 8, 9, 172/3, 4, 5, 6, 7 - y; mika[k; jah ,";rpdpaup'; fy;Yhupf;F ghh;it (1)y; fz;l ,t;tYtyf fojk; K:yk; bjhHpy; Elg; ,irt[ mspf;fg;gLs;sJ/ nkYk; nkw;go fy;tp epWtdk; mika[k; epyg;gFjp efh; Cuikg;g[ rl;lk; 1971d; go epy cgnahfk; Vjk; gFf;fg;glhj jpl;lkpy;yhj gFjpapy; (Non Planning)y; mikfpwJ vd;w tpguk; bjuptpj;Jf; bfhs;sg;gLfpwJ/ xk;///// ehs; 22/2/2011 Jiz ,af;Feh; (bgh) kJiu kz;lyk;.
121. On the aspect that the University has received the orders of approval as only on 18.08.2011 and that thereafter, the University has constituted a Committee on 19.08.2011, the University has not explained as to how the prior inspection done on 21.07.2011, which noticed three deficiencies. On the one hand, the University states that the inspection for affiliation can be made only if the College has enclosed the copy of the approval order and on the other hand, the University has already inspected the college, as early as on 21.07.2011 for grant of affiliation and in the case of other institutes, even before the grant of affiliation, have chosen to assign code numbers and permitted them to participate in the counselling. The contention is contrary to the inspection, already made on 21.07.2011, even without the receipt of approval order by AICTE, for all the three new colleges, within the territorial jurisdiction of Anna University of Technology, Madurai and the same cannot be countenanced.
121. Material on record shows that Anna University, Madurai, by simply placing reliance on the report of the District Collector, Madurai, has rejected the application for affiliation, contending that the college has not made full compliance of the statutes of the University. As stated supra, the directions of the Division Bench to grant affiliation, ought to have been complied with reference to the reply of the college, dated 25.07.2011, as per the statues and the parameters for consideration, as provided in sub-statutes 5 to 18 of Statute No.5, which have been extracted in the foregoing paragraphs.
122. Regarding the contention that the Land Conversion Certificate has been obtained from a Village Administrative Officer and that the building certificate, on the patta land has been approved by the Regional Deputy Director, the respondents have not specifically pointed out with reference to any rule or regulation from the Town and Country Planning Act, that approval has to be obtained only from the Director of Town and Country Planning, Chennai. The contention that in the three Districts, only the Deputy Director of Town and Country Planning, has granted the approval and that the petitioner-College is the only college, which has obtained sanction from the Regional Deputy Director, Town and Country Planning, has not been disputed.
123. As regards the contentions that the petitioner-College alone has obtained sanction from the Regional Deputy Director, Town and Country Planning and that the College is situated in a non-planning area and it does not require a land conversion certificate, there is no specific reply in the counter affidavit. In the absence of any specific rule or regulation or statute, the University has merely stated that the District Collector is the only competent authority to issue the Land Conversion Certificate.
124. In State of T.N., v. Adhiyaman Educational and Research Institute and Others reported in 1995 (4) SCC 104, the question involved before the Supreme Court was whether, after coming into force of the AICTE Act, 1987, the State Government has power to grant and withdraw permission to start a technical institution as defined in the Central Act. After referring to various Entries, the Hon'ble Supreme Court has concluded thus:
"30. A comparison of the Central Act and the University Act will show that as far as the institutions imparting technical education are concerned, there is a conflict between and overlapping of the functions of the council and the University. Under Section 10 of the Central Act, it is the Council which is entrusted with the power, particularly, to allocate and disburse grants, to evolve suitable performance appraisal systems incorporating norms and mechanisms for maintaining accountability of the technical institutions, laying down norms and standards for courses, curricula, staff pattern, staff qualifications, assessment and examinations, fixing norms and guidelines for charging tuition fee and other fees, granting approval for starting new technical institutions or introducing new courses or programmes, to lay down norms or granting autonomy to technical institutions, providing guidelines for admission of students, inspecting or causing to inspect colleges, for withholding or discontinuing of grants in respect of courses and programmes, declaring institutions at various levels and types fit to receive grants, advising the Commission constituted under the Act for declaring technical educational institutions as deemed universities, setting up of National. Board of Accreditation to periodically conduct evaluation on the basis of guidelines and standards specified and to make recommendations to it or to the Council or the Commission or other bodies under the Act regarding recognition or derecognition of the institution or the programme conducted by it Thus, so far as these matters are concerned, in the case of the institutes -imparting technical education, it is not the University Act and the University but it is the Central Act and the Council created under it which will have the jurisdiction. To that extent, after the coming into operation of the Central Act, the provisions of the University Act will be deemed to have become unenforceable in case of technical colleges like the Engineering Colleges. As has been pointed out earlier, the Central Act has been enacted by the Parliament under Entry 66 of the List I to coordinate and determine the standards of technical institutions as well as under Entry 25 of List III. The provisions of the University Act regarding affiliation of technical colleges like the Engineering Colleges and the conditions for grant and continuation of such affiliation by the University shall, however, remain operative but the conditions that are prescribed by the University for grant and continuance of affiliation will have to be in conformity with the norms and guidelines prescribed by the Council in respect of matters entrusted to it under Section 10 of the Central Act"
125. In Jaya Gokul Educational Trust v. Commr. & Secy. To Govt. Higher Education Department reported in 2000 (5) SCC 231, at Paragraphs 22 and 23, 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 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 we hold, in the present case that 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..."
126. In Al-Karim Educational Trust v. State of Bihar reported in AIR 1996 SC 1469, at Paragraphs 11 and 12, the Supreme Court held as follows:
"11. In the matter of grant of affiliation, it is ordinarily for the State Government after consulting the Medical council of India to arrive at a decision. However, if it is found that the affiliation is being withheld unreasonably or the decision is being prolonged for one reason or the other, this Court would, though reluctantly, be constrained to exercise jurisdiction. We must make it clear that we are not diluting the importance of fulfilling the essential pre-requisite set by the Medical Council before granting recognition. The facts of this case are very special and exceptional. In the present case, we take note of the following aspects:
(a) The appellant institution was granted temporary affiliation nearly 6 years ago (29.12.1989).
(b) More than three years ago, (on 16.7.1992) this Court directed that students may be admitted and permitted to take examination, subject to certain conditions and this has been so done. (c) In view of the earlier orders of this that affiliation should be granted to the appellants.
(d) On more than three occasions, this Court, after perusal of the affidavits of the parties and report of the concerned authorities about the deficiencies pointed out, directed time-bound inspections, by Medical Council of India, along with other authorities bearing in mind that we are concerned with the post establishment stage.
(e) At one stage, it came to light that the original deficiencies having been removed, new or further deficiencies were pointed out by the Medical Council of India, which were ordered by this Court to be removed.
(f)Finally, the appellants filed a tabular statement along with an affidavit dated 4.9.1995, stating that even the new deficiencies pointed out have been removed and the averments in that behalf stand uncontradicted.
(g) The appellants,claim to be a minority institution and the difficulties/ or even the imponderables to start a new institution, cannot be gainsaid. To insist on fulfilling all requirements, at a stretch in modern conditions, is not a practical proposition and ordinarily, only those aspects or requirements, which in the minimal will give a good start for effectively imparting education, with ancilliary requisites may be considered sufficient, in the extra-ordinary circumstances of this case.
(h) It is impractical to insist, for a fool proof or absolute adherence to all requirements without regard to their importance or relevance, for the purpose of imparting education, in a practical way, especially because the institution has begun to function, students admitted to institution have taken the examination and the fate of a good many number of students should not hang in the balance in an unending or everlasting manner.
(i) In the final analysis, the question to be posed, is whether there exists the minimal and satisfactory requirements to keep the matter going, and not whether better arrangements that will render the set up more efficient and more satisfactory, should be insisted as "a wooden" rule.
(j) It may be that there are some minor deficiencies here and there which call for rectification. Time can certainly set right such matters. What is required is a total, practical, overall view in the light of the latest tabular statement filed along with the affidavit dated 4.9.1995. material placed before the Court goes to show that there has been "substantial" though not literal compliance with the deficiencies pointed out in the latest report dated 28.6.1995.
(k) Lapse of time and the turn of events call for urgent action and any delay on that score will entail untold hardship to the students and the institution.
12. In the totality of the circumstances disclosed in the case and having regard to the fact that at each stage new deficiencies are being pointed out, the latest being the report dated 28.6.95 (explained by the subsequent affidavit of the appellants dated 4.9.95), we are satisfied beyond any manner of doubt, that the deficiencies have been substantially complied with and minor deficiencies pointed out in the last mentioned report of 28.6.95 are not such as to permit withholding of the affiliation to which the appellants' institution is entitled, From the manner in which the deficiencies have been pointed out from time to titne,each time the old deficiencies are shown to have been removed, new deficiencies are shown, gives the impression that the affiliation is unnecessarily delayed. For the removal, of the minor deficiencies pointed out in the report of 28.6.95, a compliance affidavit dated 4.9.1995 is filed. Once the institution feels secure on the question of affiliation, we have no doubt that these minor deficiencies, if they exist, shall be taken care of by those in charge of the institution. For taking such further steps, the grant of affiliation need not wait. We make this position clear. The steps for the grant of affiliation to the appellants' institution may now be expedited and we direct the respondents to issue the necessary orders without loss of time. The appeal is disposed of accordingly. In the facts and circumstances of the case, we make no order as to costs."
127. As the judgments relied on by both the learned counsel have already been dealt with by the Hon'ble Division Bench, it is not necessary to reproduce again. In the light of the discussion and following the decisions, stated supra, this court is of the view that the University has not acted as per the directions of this Court made in W.A.No.740 of 2011, dated 09/10.08.2011, and has arbitrarily rejected the request of the petitioner for affiliation. Hence, the impugned order is set aside. In the light of the observations and discussions, the respondent-University is directed to strictly act in accordance with the directions of the Division Bench made in W.A.No.740 of 2011, dated 09/10.08.2011 and consider the reply of the petitioner, dated 25.07.2011, as per the statutes stated supra and pass orders, on the request for affiliation, within 10 days from today.
128. In the result, the Writ Petition is allowed. No costs. Consequently, connected Miscellaneous Petitions are closed.
skm To
1. The Secretary to Government Higher Education Department Government of Tamil Nadu Fort St. George Chennai - 600 009
2. The Commissioner-cum-Director of Technical Education Guindy Chennai
3. The Anna University of Technology Madurai Rep. by its Registrar Madurai - 625 002