Kerala High Court
University Of Kerala vs Snehacharya Institute Of Management & ... on 26 October, 2019
Author: S. Manikumar
Bench: S.Manikumar, C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
SATURDAY, THE 26TH DAY OF OCTOBER 2019 / 4TH KARTHIKA, 1941
WA.No.2120 OF 2019
AGAINST THE JUDGMENT DTD 26-09-2019 IN WP(C) 23782/2019(W) OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 3 TO 5:
1 UNIVERSITY OF KERALA,
THIRUVANANTHAPURAM, KERALA, INDIA-695 034
REPRESENTED BY ITS REGISTRAR.
2 THE REGISTRAR
UNIVERSITY OF KERALA, THIRUVANANTHAPURAM,
KERALA, INDIA-695 034.
3 THE VICE CHANCELLOR
UNIVERSITY OF KERALA, THIRUVANANTHAPURAM,
KERALA, INDIA-695034.
BY ADV. SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA
RESPONDENTS/PETITIONER & RESPONDENTS 1, 2 & 6
1 SNEHACHARYA INSTITUTE OF MANAGEMENT & TECHNOLOGY
KARUVATTA NORTH, KARUVATTA P.O., ALAPPUZHA, HARIPAD,
KERALA-690 517 REPRESENTED BY ITS DIRECTOR DR.RAJU M.
2 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
3 THE DIRECTOR OF TECHNICAL EDUCATION
GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001.
4 THE CHANCELLOR
UNIVERSITY OF KERALA,
THIRUVANANTHAPURAM, KERALA, INDIA-695 034.
R1 BY ADV. SRI.SANTHOSH MATHEW
R4 BY ADV. SRI.K.JAJU BABU (SR.)
R4 BY SMT.M.U.VIJAYALAKSHMI,
COUNSEL FOR THE CHANCELLOR OF UNIVERSITIES IN KERALA
OTHER PRESENT:
R2 & R3 BY GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25-10-2019, ALONG WITH
WA.2124/2019, THE COURT ON 26-10-2019 DELIVERED THE FOLLOWING:
W.A Nos.2120 & 2124/2019 -2-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
SATURDAY, THE 26TH DAY OF OCTOBER 2019 / 4TH KARTHIKA, 1941
WA.No. 2124 OF 2019
AGAINST THE JUDGMENT DTD 26-09-2019 IN WP(C) 23783/2019(W) OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 3 TO 5:
1 UNIVERSITY OF KERALA,
THIRUVANANTHAPURAM, KERALA, 695 034,
REPRESENTED BY ITS REGISTRAR.
2 THE REGISTRAR,
UNIVERSITY OF KERALA, THIRUVANANTHAPURAM,
KERALA, INDIA 695034.
3 THE VICE CHANCELLOOR,
UNIVERSITY OF KERALA, THIRUVANANTHAPURAM,
KERALA INDIA 695 034.
BY ADV. SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA
RESPONDENTS/PETITIONER & RESPONDENTS 1,2 & 6:
1 SNEHACHARYA INSTITUTE OF MANAGEMENT & TECHNOLOGY
KARUVATTA NORTH, KARUVATTA P.O. ALAPPUZHA, HARIPD,
KERALA 690 517, REPRESENTED BY ITS DIRECTOR DR. RAJU.M.
2 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
3 THE DIRECTOR OF TECHNICAL EDUCATION,
GOVERNMENT OF KERALA, THIRUVANANTHAPURAM 695 001.
4 THE CHANCELLOOR,
UNIVERSITY OF KERALA, THIRUVANANTHAPURAM,
KERALA, INDIA 695 034.
R1 BY ADV. SRI.SANTHOSH MATHEW
R2 & R3 BY GOVERNMENT PLEADER
R4 BY ADV. SRI.K.JAJU BABU (SR.)
R4 BY SMT.M.U.VIJAYALAKSHMI,
COUNSEL FOR THE CHANCELLOR OF UNIVERSITIES IN KERALA
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25-10-2019, ALONG WITH
WA.2120/2019, THE COURT ON 26-10-2019 DELIVERED THE FOLLOWING:
W.A Nos.2120 & 2124/2019 -3-
S. MANIKUMAR, C.J.
&
C.K. ABDUL REHIM, J.
-------------------------------------------------
W.A. Nos. 2120 & 2124 OF 2019
-------------------------------------------------
DATED THIS THE 26th DAY OF OCTOBER, 2019
JUDGMENT
Abdul Rehim, J:
The above writ appeals are instituted against a common judgment of the Single Judge in W (C) No.23782/2019 and 23783/2019, dated 26th September, 2019. The University of Kerala and its officers, who are the respondents 3 to 5 in the writ petitions, are the appellants herein. The 1st respondent institution is the writ petitioner. The respondents 2 to 4 in both the appeals are the respondents 1, 2 & 6 in the writ petitions.
2. In W.P (C) No.23782/2019, the 1 st respondent/writ petitioner sought for a mandamus against the university to issue affiliation for the additional intake of 60 students for the course, "Bachelor Hotel Management and Catering Technology (BHMCT)". Similarly in W.P (C) No.23783/2019 the relief was to direct the university to grant affiliation for starting the course of "Bachelor of Vocation in Food Processing Course (B. Voc (Food Processing)". In the said writ petition, relief was also sought to quash Ext.P4 communication issued by the Registrar of the W.A Nos.2120 & 2124/2019 -4- university rejecting the affiliation for the B.Voc (Food Processing) course for the academic year 2018-2019
3. Brief history of the case is that, the All India Council for Technical Education (AICTE) had granted approval for the institute to start BHMCT course for the academic year 2019- 2010, with an intake of 180 students. On the basis of approval of the AICTE, the writ petitioner institution approached the appellant university seeking affiliation for the increased intake of 180 students for the said course. Through Ext.P7 proceedings issued by the university on 29-06-2019, conditional affiliation was granted for additional batch of only 60 students for the course of BHMCT, for the academic year 2019-2020. The university had declined affiliation for the total strength of intake approved by the AICTE. This resulted in the institution approaching this court in W.P (C) No.13004/2019. In the said writ petition this court directed an inspection to be conducted by the university with respect to the deficiencies pointed out in the letter given while declining the affiliation for the entire capacity of intake as approved by AICTE. Even after conducting such an inspection, the university pointed out certain deficiencies in the infrastructural facilities and not granted affiliation to the additional intake of 60 students. This was under challenge in W.P W.A Nos.2120 & 2124/2019 -5- (C) 23782/2019.
4. With respect to B.Voc (Food Processing), initial approval was granted in the year 2018. But the approval of AICTE was obtained only for the academic year 2019-2020. But the university declined to grant affiliation for the B.Voc (Food Processing) course pointing out certain inadequacies of infrastructural facilities. One among the major objection raised by the university in both the above said cases is with respect to the structural stability of the building, after the alterations effected for creation of the new class rooms.
5. During pendency of the above writ petitions, WP (C) No.23782/2019 & 23783/2019, learned Single Judge on 02-09- 2019 passed an order directing a competent Structural Engineer, approved under the Kerala Municipality Building Rules, to conduct an inspection and to file a report before this court. Such inspection was directed to be conducted in the presence of the representatives of the university. Accordingly, one Sri. Anees Mohammed H., who is a qualified Structural Engineer having post graduate degree of M.Tech and who is a licenced 'A-Grade Engineer' having registration with the Department of Urban Affairs of the State Government, submitted a report regarding the structural stability of the building, based on the inspection W.A Nos.2120 & 2124/2019 -6- conducted. He expressed the view that, the building in question is having structural stability. But the appellant/university raised objections to the said report by referring to a report submitted by one Sri. T.S. Remesh, Assistant Engineer (Civil), who is attached to the university, who was present at the time of the inspection. The main objection raised was that, the approved Structural Engineer had not taken into account the original 'structural designs' existed at the time when the building was constructed. It is pointed out that, the structural drawings were not made available by the institution.
6. However, the writ court had gone into the question of the power of the university to decline the affiliation, once the approval is granted by the AICTE by alleging lack of infrastructural facilities. Pointing out to provisions contained in Section 11 of the All India Council of Technical Education Act ('AICTE Act' for short) conferring power on the AICTE to conduct inspection to ascertain standards of teaching, conduct of examination and researches, it is found that such standards prescribed by the AICTE would bind by the university. Therefore it was observed that, once the AICTE grants approval the university cannot sit up over such decision; nor it can review such decision stating lack of infrastructural facilities. W.A Nos.2120 & 2124/2019 -7-
7. In this regard reliance was placed by the learned Single Judge on a Full Bench decision of this court in Vikram Sarabhai Educational Trust, Keipamangalam V. University of Calicut and another ((2008) SCC Online Ker
108) and an another decision, Lourdes Matha Catholic Education Society V. University of Kerala and others ((2009) SCC Online Ker.4454). It was found based on the dictum contained in those rulings that, the university cannot decline affiliation on the ground of lack of infrastructural facilities, once the AICTE grants approval. It is further found that the University can only bring it to the notice of the AICTE with respect to the lack of infrastructural facilities, so as to pursue the AICTE to revoke the decision granting approval. Thus the Single Judge had concluded that the university has no power to decline the affiliation once the approval is granted by the AICTE. Accordingly the writ petitions were allowed and the appellant-university was directed to grant affiliation in accordance with the university Regulations, within one week from the date of receipt of the copy of the judgment. It is aggrieved by the said judgment, the above writ appeals are filed.
8. In the above appeals the university is impugning the judgments mainly with respect to the findings that the university W.A Nos.2120 & 2124/2019 -8- has no power to decline the affiliation on the ground of lack of infrastructural facilities, once the AICTE has granted the approval. Learned counsel for the appellants pointed out that, the approval by AICTE and affiliation by the university are distinct and different aspects, governing different areas. The approval by AICTE can only be considered as a certification with respect to the facilities available, which is intended to ensure the standards of teaching, conduct of examination and researches. Whereas, affiliation by the university is pertaining to registration of students, their course study, conduct of examination etc. Therefore it is contended that the university has got every power to verify and satisfy about the infrastructural facilities available in order to ensure that those infrastructural facilities are suitable for conduct of the course. Referring to the case in 'Vikaram Sarabhai Educational Trust case (cited supra)' it is contended that it is a case wherein approval was granted by the National Council for Teachers Education (NCTE). Section 14 (6) of the NCTE Act stipulates that, every examination body shall grant affiliation to the institution, where recognition has been granted by NCTE. But no such provision is incorporated in the AICTE Act. The said decision was rendered by a Full Bench of this court only on taking note of the specific provision contained W.A Nos.2120 & 2124/2019 -9- in the NCTE Act. Therefore the dictum therein is not applicable in the present case, is the contention. It is further pointed out that, the appellant university has only insisted that the requirements as per the university Statutes, which are not in conflict with the provisions of the Central Act need to be adhered as such. It is also contended that, the unwillingness on the part of the institution to make available all the relevant documents, plans, drawings to satisfy about the safety of the building, would amount to serious latches and therefore the finding regarding lack of infrastructural facilities pointed out, are valid objections.
9. Heard; Sri. Thomas Abraham, learned Standing Counsel for the appellant university, Sri. Santhosh Mathew, counsel who entered appearance on behalf of the 1 st respondent institution, Standing Counsel for AICTE and the Government Pleader appearing for State Government and its officials.
10. We are persuaded to accept the contention raised by the appellant that the approval from AICTE and the affiliation from the university are distinct matters and intended for different purposes. It cannot be contended that, since the institution has obtained approval from the AICTE, that by itself need to be considered as an acceptance with respect to availability of adequate infrastructural facilities. The affiliation W.A Nos.2120 & 2124/2019 -10- from the university is intended to adequate facilities for conduct of the courses, registration of students and making them to appear for university examination etc. In that respect the appellant University is entitled to look into the facilities provided for conduct of the classes in the building of the institution. In that respect, it cannot be held that the adequacy of the infrastructural facilities is not a matter which the university is entitled to examine through the inspection conducted.
11. Taking the above view of the matter, the facilities of the building and its structural stability is a matter of concern which the university can look into. Therefore we are persuaded to accept the contention raised in these appeals assailing the finding of the learned Single Judge to the extent it ordered that the university is not entitled to look into the adequacy of the infrastructural facilities, once the AICTE had granted approval.
12. But the more crucial aspect which need to be considered is with respect to the reasons mentioned by the university to arrive at a finding that the building lacks structural stability. Evidently, the Single Judge through its order passed on 02-09-2019, directed to conduct an inspection with respect to the structural stability by an approved 'Structural Engineer' in the presence of the representatives of the university. The report W.A Nos.2120 & 2124/2019 -11- submitted in this regard is produced as Ext.P30 in W.P (C) No.23783/2019. It is stated that, the approved Engineer, upon the inspection conducted, became satisfied that the building concerned owned by the writ petitioner institution is structurally sound to be used as a public building for educational purposes. It is stated that the structural soundness of the building has been verified taking into account of the load bearing capacity stipulated under the Indian Standards 875. It is certified that the structural work of the building is safe and the stability will not be endangering the use of the building for educational purposes. The annexures attached to the report would indicate that each class rooms contained in the building were separately inspected, with respect to its area, lie, structural soundness and other conditions etc.
13. Through an additional statement filed by the appellants herein it is pointed out that, during the time of the inspection by the approved 'Structural Engineer', the Assistant Executive Engineer (Civil) attached to the appellant university (Sri. T.S. Remesh) was present on 07-09-2019. It is mentioned that, the said Engineer of the university had submitted a report to the Registrar of the university on 07-09-2019 itself stating that the approved 'Structural Engineer' has conducted only a W.A Nos.2120 & 2124/2019 -12- physical inspection of the building and the structural drawings were not available with the management of the institution. In the absence of those documents the design criteria and load considerations could not be checked inorder to see whether the rooms were originally designed to purport as class rooms. It is also pointed out that, building permit for effecting the alteration works in the rooms concerned was not obtained by the management of the institution from the local body, as required under Rule 4 (2) of the Kerala Municipality Building Rules, 1999. A copy of the above report submitted by the Engineer attached to the university was produced along with the statement, marked as Ext.R3 (a). A similar detailed report was further submitted by the said Engineer to the Registrar of the University, copy of which is also marked as Ext.R3 (b) along with additional statement filed by the university. The objections noted therein are as follows;
"1. The structural Engineer has not verified the approved plan of the building and the alterations made thereafter deviating from the approved plan. As per clause 4.2 (Chapter II) of Kerala Municipality Building Rules.
(2) No person shall construct or reconstruct or make addition or extension or alteration to any building or cause the same to be done without first obtaining a separate building permit for each such work from the Secretary.W.A Nos.2120 & 2124/2019 -13-
In the approved plan, rooms demarked for advanced training kitchen and that for grade manager laboratory has been converted as class room 5. Also in the second floor, guest rooms were converted as class rooms. Since there is a clear case of change in occupancy by altering the structure, the management should obtain prior approval of the local body. But in this case the management has not obtained building permit from the local body (Karuvatta Grama Panchayat) for doing the alteration works which is against Kerala Municipality Building Rules, 1999.
2. The original structural design and structural drawings were not available with the management. In the absence of this data the load considerations and design criteria could not be checked whether the altered rooms were originally designed to purport as class rooms as in the second floor of the building, guest rooms were converted as class rooms. IS code 875, part II stipulates design criteria for consideration of imposed loads on floors of buildings. As per clause 3.1 of IS 875, part II 3.1 Imposed Loads - The imposed loads to be assumed in the design of buildings shall be the greatest loads that probably will be produced by the intended use or occupancy, but shall not be less than the equivalent minimum loads specified in Table I subject to any reductions permitted by 3.2.
Imposed load for various occupancies differ according to the nature of occupancy. According to table 3.2 of IS 875, part II, for institutional buildings, imposed load for bed rooms is calculated as 2 KN/m2 of Uniformly distributed load and 1.8 KN of concentrated load whereas the values for class rooms of educational buildings are 3.0 and 2.7 W.A Nos.2120 & 2124/2019 -14- respectively. Eventhough the guest rooms were converted as class rooms, the observation of the structural engineer regarding the stability of the building only on the basis of physical verification (without verifying the original design) cannot be admitted.
3. The class rooms made by converting the other rooms are now painted and there by the sign of dampness observed in earlier inspections seems to be disappeared.
4. The language laboratory now constructed by altering the computer lab and by bifurcating the class rooms has no sufficient ventillation as per rule 49 (1) of the KMBR, 1999.
5. As regards to the area of class rooms mentioned in the report of the structural Engineer, I may remark that no detailed measurement has been taken in my presence by the structural Engineer."
14. On a perusal of the report submitted by the approved 'Structural Engineer' and the objections pointed out by the Engineer attached to the appellant university, it is discernible that that 1st respondent institution had effected certain internal alterations in the building in question. For example, rooms of the 'advanced training kitchen' and 'grade manager laboratory' were converted as Class Room No.5. Likewise, the 'guest rooms' in the second floor were also converted as Class Rooms. One of the objections raised seems to be that, it is a clear case of change in occupancy for which the management should have obtained prior approval from the local authority concerned. In this regard W.A Nos.2120 & 2124/2019 -15- reliance is placed on Rule 4 (2) of the Kerala Municipality Building Rules. But a perusal of the said provision it is evident that, the requirement for obtaining permission is needed only with respect to any reconstruction, addition or expansion or alteration of any existing building in a manner affecting its structure or in a manner increasing its plinth area. In this case it is evident that only the internal walls were removed inorder to convert certain rooms as class rooms. Therefore the requirement of obtaining approval for such alterations is not a statutorily required.
15. Another objection raised seems to be that, the original structural designs and drawings were not made available by the management and that in the absence of such data the load considerations could not be checked up. It is pointed out by learned Senior Counsel appearing for the 1 st respondent institution that, the plan approved by the local authority namely 'Karuvatta Grama Panchayat' was made available to the representative of the university at the time of conducting the inspection. So also the plan of the building after completion of the internal alterations were also made available. Copies of both these plans were made available for our perusal, across the bar. It is evident that the alterations effected mainly with respect to W.A Nos.2120 & 2124/2019 -16- removal of internal walls of certain rooms in the second floor of the building, inorder to convert it as class rooms. It is evident from the drawing with respect to cross section (section A-A), contained in both the plans, that no alteration is effected with respect to any of the pillars or beams in the building, which is seen constructed only as a 'column structure'. This aspect could have been easily verified by the Engineer of the university, who was present at the time of inspection, by comparing the plans with the physical position of the pillars and beams contained in the building. Therefore the objection raised to the extent that the management had failed in producing the structural designs and drawings, does not deserve merit. The removal of internal walls will not affect the structural stability in any manner. Therefore we are of the considered opinion that the objections reported by the Engineer attached to the appellant university, specified in Exts.R3 (a) & R3 (b), are not at all sustainable. More over, we take note of the fact that no much arguments was raised before the learned Single Judge with respect to acceptance of the report on the structural stability of the building, as contained in the report of the approved 'Structural Engineer' (Ext.P30).
16. Based on the discussions as above, this court is of the considered opinion that the reasons mentioned by the university W.A Nos.2120 & 2124/2019 -17- in declining the affiliation for additional intake of students with respect to courses of BHMCT and B.Voc (Food Processing), for which affiliation was obtained by the 1 st respondent institution, are unsustainable. Consequently we do not find any ground to interfere with the findings rendered in the impugned common judgment of the Single Judge.
Hence the above writ appeals deserves no merit and the same are accordingly dismissed. No costs.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
C.K.ABDUL REHIM JUDGE AMG