Bombay High Court
Shri Ramkisan Shrirang Pawar vs The State Of Maharashtra on 1 October, 2012
Bench: B. P. Dharmadhikari, S.P. Deshmukh
1 WPS-4400.11 & 5181.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
WRIT PETITION NO. 4400 OF 2011
Bharatiya Gramin Punarrachan Sanstha's
Hi-Tech Institute of Technology and Hi-Tech
Polytechnic, P-119, Bajaj Nagar, Pune Road,
Aurangabad, through its Authorized person:-
Shri Ramkisan Shrirang Pawar, age 39
years, occup. Service as Vice-Principal,
Hi-Tech Institute of Technology, Aurangabad. Petitioner
versus
1. The State of Maharashtra,
through Principal Secretary,
Higher & Technical Education
Department, Mantralaya, Mumbai
2. Director of Technical Education,
for Maharashtra State,
3, Mahapalika Marg, Dhobi Talav,
Mumbai.
3. The All India Institute for Technical
Education (a statutory body of Govt.
of India) 7th floor, Chandralok Building,
Janpath, New Delhi - 11001.
4. The Regional Officer,
AICTE Western Regional Office,
2nd floor, Industrial Assurance,
V.N. Road, Opposite Church Gate,
Railway Station, Church Gate,
Mumbai - 400 020.
5. Dr. Babasaheb Ambedkar Marathwada
University, Aurangabad,
through its Registrar.
6. Maharashtra State Board of Technical
Education, through its Deputy Secretary,
at Aurangabad. Respondents
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2 WPS-4400.11 & 5181.12
WITH
WRIT PETITION NO. 5181 OF 2012
Bharatiya Gramin Punarrachan Sanstha's
Hi-Tech Institute of Technology and Hi-Tech
Polytechnic, P-119, Bajaj Nagar, Pune Road,
Aurangabad, through its Authorized person:-
Shri Ramkisan Shrirang Pawar, age 40
years, occup. Service , r/o Ulkanagari,
Aurangabad, Tq. and Dist. Aurangabad Petitioner
versus
1. The All India Council for Technical
Education (a statutory body of Government
of India) 7th floor, Chandralok Building,
Janpath, New Delhi - 11001.
2. The Regional Officer,
AICTE, Western Regional Office,
2nd floor, Industrial Assurance,
V.N. Road, Opposite Church Gate,
Railway Station, Church Gate,
Mumbai - 400 020.
3. The State of Maharashtra,
through Principal Secretary,
Higher & Technical Education
Department, Mantralaya, Mumbai-32
4. Director of Technical Education,
for Maharashtra State,
3, Mahapalika Marg, Dhobi Talav,
Mumbai. Respondents
-----
Shri P.M. Shah, Senior Advocate i/b Shri A.M. Karad, Advocate for
Petitioner in both the petitions.
Shri S.G. Nandedkar, Assistant Government Pleader for Respondents 1 &
2 in W.P.No.4400/2011 and for Respondents 3 & 4 in W.P.No.5181/2012
Shri S.V. Adwant, Advocate for Respondents 3 & 4 in W.P.No.4400/2011
and for Respondents 1 & 2 in W.P.No.5181/2012.
None Appears for Respondents 5 & 6 in W.P.No.4400/2011.
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3 WPS-4400.11 & 5181.12
Coram : B.P. Dharmadhikari and Sunil P. Deshmukh, JJ.
Date of reserving judgment : 26.07.2012
Date of pronouncing judgment : 01.10.2012
Judgment ( Per : Sunil P. Deshmukh, J.)
01. Considering the nature of controversy, both petitions are
heard finally by making Rule returnable forthwith with consent. The
Petitioner is a registered public trust and society running Hi-Tech Institute
of Technology and Hi-Tech Polytechnic.
02.
Writ Petition No. 4400 of 2011 has been filed on 21.06.2011
seeking extension of approval to Engineering and Polytechnic Colleges
run by the petitioners for the Academic Year 2011-12. The petition has
been amended as per orders dated 06.07.2011 to challenge the order
passed by recording withdrawal of approval, if any, with further direction
to mention intake capacity of the petitioner - institution as 60 in each
Branch and Division for the year 2011-12. The petitioner thereafter filed
Writ Petition No. 5181 of 2012 on 26.06.2012 challenging communication
dated 18.06.2012 withdrawing approval to the Courses conducted by the
petitioner. This Court has not passed any interim orders in latter petition,
however, in earlier writ petition on 28.06.2011, the petitioner was
directed to appear before the Appellate Authority on 29.06.2011 at 11.00
AM and the Appellate Authority was directed to grant them an
opportunity of hearing and pass appropriate orders by 30.06.2011.
Because of these orders and hearing granted, amendment was thereafter
permitted on 06.07.2011. On 15.07.2011, the Court passed interim
4 WPS-4400.11 & 5181.12
orders holding students entitled from Central Admission Process for the
Academic Year 2011-12 to the extent of intake capacity already
sanctioned by All India Council for Technical Education (AICTE).
03. The withdrawal of approval is on account of alleged fraud or
misrepresentation by the petitioners about the land held by it initially in
the year 2000-01 and thereafter in 2004-05. The respondent AICTE, by
relying upon its regulations, submits that the Engineering College
required minimum 25 Acre of land and Polytechnic College required
minimum 5 Acre of land. Thus, total holding with the petitioners ought to
have been 30 Acre, however, it was never more than 4.78 Acre. The
approval has been withdrawn in the year 2011-12 for the first time on
this ground.
04. The petitioner had submitted a proposal intending to open and
establish an engineering degree college with various courses to All India
Council for Technical Education, New Delhi (hereinafter referred to as
"AICTE") a statutory body established under the All India Council for
Technical Education Act, 1987 seeking its approval. Said proposal
received approval from AICTE, in 2001. Since then the petitioner has
been running an institute called "Hi-Tech Institute of
Technology" (hereinafter referred to as "the Institute" )conducting
courses leading to bachelor's degree in various branches of engineering
viz. Electronics and Tele Communication, Computer, Information and
Technology etc. Approval has been granted by AICTE from 2010-2011 to
the Institute to conduct courses for degree in Mechanical and Civil
5 WPS-4400.11 & 5181.12
Engineering.
05. Petitioner claims that while engineering college had been
approved in 2001, AICTE had conducted various inspections and got itself
satisfied about the institute being conforming to the requirements
prescribed by AICTE and being complying with applicable norms and
regulations, including the one about land.
06. The petitioner has been holding about 4 Acre, 78 Are land under
a lease. At the relevant time, the petitioner had been in possession of
plot No.P-119. Additionally, on 23.3.2001, M.I.D.C. had issued a letter
proposing allotment of adjacent plot to petitioner indicating that the
proposal is being processed. It was upon satisfaction by AICTE about
petitioner complying with requisite prescribed norms including that
about land, it had granted approval to open engineering college under
letter dated 26.6.2001 referring to intake capacity and courses.
07. The proposal submitted by the petitioner, refers to that the
petitioner is in possession of five acre land and to that 25 acre land is
under acquisition. For said purpose, petitioner relies on 'Exhibit A
collectively' to the petition, containing a lease deed and letter dated
23.3.2001 issued by M.I.D.C. as its constituents starting from letter
addressed by AICTE to the Secretary, Higher and Technical Education and
Employment Department, Government of Maharashtra, communicating
that approval has been accorded to the petitioner for establishment of Hi-
Tech Institute of Technology on plot No.119, M.I.D.C., Waluj, Aurangabad,
6 WPS-4400.11 & 5181.12
for academic year 2001-02 for courses and intake capacity given therein
with specific condition that admissions shall be through Central Council
of Government of Maharashtra. It has been further stated in the same
that approval is for one academic session before end of which, an expert
committee shall visit the premises to assess if norms and standards as
stipulated by AICTE are fulfilled and only then continuation would be
intimated.
08. Aforesaid communication appears to have been preceded by
letter of viability dated 31.5.2001 issued by AICTE
ig to petitioner
communicating, inter alia, that the proposal of petitioner had been found
to be prima facie acceptable and for processing the proposal further,
petitioner was directed to submit documents to Western Regional office
of AICTE amongst other, such as, registered sale deed in original showing
absolute ownership and title of proposed land and building in the name
of the trust/society, land use certificate by competent authority with a
rider that the requirements indicated at items 1 to 6 viz. About land, FDR
etc. are to be fulfilled latest by 11.6.2009 which was the cut off date.
09. The registered lease deed dated 17.4.2001 annexed to the petition
between M.I.D.C. and petitioner appears to be for a period of 95 years
commenced on 1.5.1998 (which appears to be the date of agreement to
lease between the parties) having an area of 19340 square mtrs. user of
which has been referred to under clause (r) for the purpose of industrial
training institute, but not for the purpose of factory or any other
obnoxious industries specified in the third schedule to the agreement.
7 WPS-4400.11 & 5181.12
The land user was endorsed for the purpose of High-Tech Institute of
Technology.
10. Aforesaid, had been followed by correspondence to Higher and
Technical Education Department by AICTE on 14.6.2002 about increase in
intake/additional seats and extension of approval for 2002-2003 to the
Hi-Tech Institute of Technology on plot No.119, Waluj, Aurangabad,
containing the same conditions as before, that the approval is subject to
fulfillment of conditions to be communicated separately and norms and
standards and general conditions stipulated by the AICTE and that in the
event of non compliance of norms and standards during last approved
academic year, the AICTE would take further action to withdraw approval
during subsequent academic year and that AICTE reserves right to visit
the institution at any time for verification of compliance, with a further
request to the State Government department to monitor progress made
by the institution about fulfillment of norms and standards of the AICTE.
11. A similar communication was issued in April/May, 2003 about
extension of approval to Hi-Tech Institute of Technology for the academic
year 2003-04 referring to that the approval accorded is subject to
fulfillment of conditions mentioned in items 9 and 10, suggesting some
improvements in respect of building, laboratory, computer centre, library
etc. with a note that contravention/non compliance with the conditions
may lead to further action like reducing intake capacity or no admission
or even withdrawal of approval.
8 WPS-4400.11 & 5181.12
12. On 14.5.2004 similar communication had been issued by AICTE
extending approval for academic year 2004-05 containing similar
conditions and referring to deficiencies in some respects. Once again on
24.6.2005, a similar communication had been sent giving approval for
academic year 2005-06.
13. This was followed by further extension to approval for academic
year 2006-07 referring to 5.75 per cent deficit in built up area. For the
academic year 2007-08 a communication had been issued on 14.5.2007
referring to little deficiency in computer facilities.
ig Then, again on
2.5.2008 extension had been granted for academic year 2008-09
referring to that the deficiencies are not fully met with, in regard to built-
up area being made available as per the AICTE norms/standards and the
same be made available. Similarly, approval had been given for
academic year 2009-10 and also for next academic year 2010-11 with
approval to mechanical and civil engineering courses. In none of these
correspondence, communications, deficiency about inadequate land
holding by the Institute had been complained of.
14. Petitioner around 2005, sent a proposal to AICTE for permission
to open a polytechnic- diploma level technical education institute. It has
been contended that on following required procedure, inspection and
satisfaction of AICTE, petitioner's institute under the name 'Hi-tech
Polytechnic' had been granted approval under letter dated 30.6.2005 in
the engineering disciplines viz. Mechanical, Electronics and Tele
Communication etc. with intake capacity mentioned therein for the
9 WPS-4400.11 & 5181.12
academic year 2005-06. Aforesaid communication had been issued by
the Western Regional Office of the AICTE to the Secretary, Higher and
Technical Education Department, Government of Maharashtra, according
approval to establishment of Hi-Tech Polytechnic on plots No. P-119 and
P-120, Bajaj Nagar, Aurangabad, to conduct courses mentioned therein
referring to that approval is subject to fulfillment of norms and standards
of AICTE and also fulfillment of specific conditions to be communicated
later. Extensions to approval of Hi-tech Polytechnic had been granted by
AICTE for subsequent academic years 2006-07 to 2010-11 with various
conditions, inter alia, that land building and other infrastructure facilities
should not be shared with other programmers/institutes. During all these
years, the AICTE or its authorities had no complaint against the petitioner
in respect of its land holding.
15. Petitioner claims that since 2001, it has further improved and
developed facilities from time to time making huge financial
investments. About 2000 students are taking and enjoying benefits of
education being imparted by petitioner's aforesaid two institutes. The
institutes have been duly affiliated to the concerned University- Dr.
Babasaheb Ambedkar Marathwada University and Maharashtra State
Board of Technical Education.
16. A show cause notice dated 13.01.2010 (which, according to the
petitioner, should be 13.1.2011) was issued by AICTE addressed to the
two institutes of the petitioner, viz. Hi-Tech Institute of Technology-
degree college and Hi-Tech Polytechnic-diploma courses,
10 WPS-4400.11 & 5181.12
communicating that a complaint had been received by the AICTE that
the institutes had not been functioning as per norms laid down and the
expert committee on visiting and inspecting said institutes had found
improper functioning as also some deficiencies viz. Hi-tech institute of
technology-degree courses and hi-tech polytechnic-diploma courses are
being run on the same land i.e. plots No. 119 and 120, that the purpose
of allotment of plot No.120 is not clear and only plot No.119 has been
shown for education purpose, unapproved programmes are conducted in
the premises and there is shortfall in faculty at higher level.
17.
It had been referred to that AICTE had confined extension of
approval to degree courses for academic year 2010-11 subject to
institute adhering to guidelines, regulations and instructions of AICTE and
in the event of non compliance by the institute of degree courses with
regard to guidelines, norms, standards prescribed from time to time,
AICTE shall be free to withdraw its approval or recommendation without
consideration of any related issue and that the liability arising therefrom
would be solely of the institute of degree courses and had asked to show
cause as to why it should not be held that AICTE was misled by the
petitioner-institution by giving false information, why it should not be
considered as violation of terms and conditions and as to why
appropriate action, including that for withdrawal of approval be not
initiated. The petitioner institution was directed to submit land records of
both the institutes, the building plans and faculty / directors' details.
18. Show cause notice addressed to the institute of diploma courses
11 WPS-4400.11 & 5181.12
refers to the same reasons as in respect of the degree course institute
save the short fall in faculty at higher level.
19. The institutes, Hi-tech institute of Technology and High-Tech
Polytechnic had submitted their reply on 20.1.2011 to the show cause
notice dated 13.1.2010 (13.1.2011). According to reply, the degree
courses and diploma courses are run on plots No.119 and 120 and that
as per the agreement of lease between MIDC and the petitioner, plot
No.P-120 is to be used for educational purpose-engineering courses and
that the same is clearly stated in the deed of lease and the letter from
the concerned authority is also enclosed and also that unapproved
programmes were being conducted only on the excess area of land
available with the petitioner which had temporary tenure since the built
up area for Hi-tech Institute of Technology was 8815.00 sqm. mtrs. and
that of Hi-tech polytechnic 8384.00 square mtrs. whereas total built up
area was 19274 sq. mtrs. and the balance area had been temporarily
used for other programmes, according to request of Raja Shivaji Higher
Secondary School and that those are no longer being conducted since
been shifted. The shortfall in faculty appeared due to unavailability of
permanent incumbents despite several advertisements and interviews.
However, the posts of professors and associate professors were not being
kept vacant as those were being filled up by temporary appointments of
assistant professors.
20. The scrutiny committee of the AICTE had prepared its report on
18.05.2011 which has been annexed to the Writ Petition No.4400 of 2011
12 WPS-4400.11 & 5181.12
(Exh. H - page 168) in respect of degree courses and the committee had
found no deficiencies in respect of post of Principal, faculty, computer
facilities, infrastructural area or of land and the only deficiency noted was
regarding administrative area. The petitioner had submitted land records
of both the institutes, their building plans etc. The original document
verification had been made and accepted and the scrutiny committee
had recommended approval to Institute accordingly.
21. The case of Hi-tech polytechnic-diploma courses had also been
recommended by the scrutiny committee for approval for academic year
2010-11 and it had found no deficiencies with regard to land though it
had noted some deficiencies in respect of computer facilities and library.
22. A hearing pursuant to the notices appears to have been given to
the petitioner on 18.5.2011 at New Delhi. The degree course institute
under its letter dated 16.5.2011 had submitted original lease deed and
communicated to the Advisor (Approval) AICTE the purpose of land plot
No.P-120 and that unapproved programmes had been shifted to campus
on plot No. P-112.
23. We have extensively heard arguments advanced on either side.
Several citations have been relied on, on either side.
24. It is submitted that despite the replies to show cause notices had
been submitted on 20.1.2011, there had been no further communication
from AICTE which necessarily meant that AICTE had been satisfied with
13 WPS-4400.11 & 5181.12
the replies given by the petitioner, as such, petitioner had been awaiting
extension to approval, increase in intake capacity and starting new
courses in its said two institutes for the academic year 2011-12.
25. It has been submitted that the scrutiny committee on verification
had not reported any major deficiencies, save some minor ones in
respect of administrative area for degree courses. The petitioner has
pointed out that about 870 students had been studying in degree
courses in engineering and 420 in polytechnic. There is permanent
working staff of about 105 for the degree courses and of 85 in the
diploma courses. Both these institutes have complete and more than
sufficient infrastructure viz. building, laboratory, workshop, other
equipments, library etc. The petitioner has invested huge amounts over
the institutes and it has a huge liability to discharge, including salaries of
its staff.
26. It had been submitted that there has been unreasonable delay in
taking hearing in respect of show cause notice, pushing the petitioner's
back to the wall. As a matter of fact, all the norms and standards as
prescribed by AICTE are not only complied with, but have been excelled.
The petitioner has also alleged that there has been further unreasonable
delay since the hearing had taken place on 18.5.2011 and yet its
result/outcome had not been made known for a long time thereafter. It
would be pertinent to note that the scrutiny committee had made its
report on 18.5.2011 i.e. on the very day on which hearing had taken
place at New Delhi. The Petitioner submits, it ought to have been
14 WPS-4400.11 & 5181.12
considered that show cause notices were dated 13.1.2011 and were
replied on 20.1.2011 and no hearing had taken place till 18.5.2011 by
which time the CET had been held for admissions to engineering courses
for the academic year 2011-12 and the result of the CET was also
declared on 13.6.2011.
27. However, the status of approval for academic year 2011-12 in
respect of the two institutes of the petitioner had been displayed by
AICTE on its web portal on 14.06.2011 under caption "withdrawal of
approval". Immediately, petitioner under a letter had requested AICTE
to issue letter with reasons for withdrawal. On 15.6.2011, the petitioner
had submitted an appeal against the aforesaid withdrawal of approval in
respect of its two institutes. It appears that on 14.6.2011, admission
notification for the academic year 2011-12 came to be issued for
submission of on-line applications, document submission and verification
for admissions to engineering by the Directorate of Technical Eduction,
Maharashtra State, wherein petitioner's institutes' names did not figure.
28. The petitioner had approached the High Court under W.P.No.4400
of 2011 since its institutes' names figured under withdrawal of approval
category. AICTE had been directed to consider the appeal of the
petitioner and communicate to it the decision thereon in writing and also
to upload the same on web portal of AICTE on or before 30.6.2011 and
accordingly the petitioner had appeared before AICTE on 29.6.2011.
However, despite directions of the High Court to communicate to the
petitioner the decision in writing as to why its approval had been
15 WPS-4400.11 & 5181.12
withdrawn, the AICTE web portal on 30.6.2011 showed intake capacity of
petitioner's two institutes for academic year 2011-12 as zero and,
therefore, the petitioner had once again written to AICTE on 1.7.2011
with reference to the High Court order dated 28.6.2011 in Writ Petition
No. 4400 of 2011 and requested for reasoned order for withdrawal of
approval and zero intake capacity.
29. This Court had passed a further order on 15.7.2011 wherein it was
directed that petitioner's institutes' names be included for centralized
admission process for the academic year 2011-12 and had also stayed
effect of order by appellate committee of AICTE regarding withdrawal of
approval of petitioner's institutes.
30. Writ Petition No.5181 of 2012 had been filed by petitioner on
26.6.2012 based on the subsequent events whereunder approval had
been declined to petitioner's two institutes under a communication dated
18.6.2012 and as such, direction had been sought to declare intake
capacity of petitioner's institutes for academic year 2012-13 as per its
earlier intake capacity sanctioned for academic year 2010-11 and to
remove `approval removed' remark against petitioner's two institutes
and provide said institutes students from Central Administrative Process
for the academic year 2012-13.
31. In the same, it has been referred to that the Maharashtra State
Board of Technical Education had declined to accept the forms of the
institutes of the petitioner and as such said writ petition No.4400 of 2011
16 WPS-4400.11 & 5181.12
had been filed and this court under order dated 25.7. 2011 had granted
relief in terms of prayer clauses `E', and 'G-2' which read thus:
"(E) Pending hearing and final disposal of this Writ Petition, the
Respondent No.2-Director of technical Education be directed to
include the name of petitioner's institution namely Hi-Tech Institute
of Technology and Hi-Tech Polytechnic College for Centralized
Admission Process, which is started for the Academic year
2011-12.
(G-2) Pending hearing and final disposal of this Petition, the order
passed (if any) by the Appellate Committee regarding withdrawal
of approval of the institutions run by the petitioner namely Hi-Tech
Institute of Technology and Hi-Tech Polytechnic College, be stayed
and suspended."
32. It has been referred to that its proposal for approval, for
submission of which last date was 31.12.2011 for academic year 2012-13
pursuant to Approval Process Hand Book for 2012-13 being not accepted,
the petitioner had to approach this Court under Writ Petition No.1972 of
2012 wherein this court had directed Respondents to accept the
petitioner's proposal for extension of approval and for allotment of
students as well.
33. In said writ petition No.1972 of 2012, this court on 26.3.2012, directed
the concerned authorities to decide proposal of the petitioner for
increase in intake capacity and introduction of post graduate courses in
accordance with law after taking into account the order of this court
dated 15.7.2011 in Writ Petition No. 4400 of 2011. Yet, no action was
being taken at the end of concerned authorities, impelling the petitioner
to lodge contempt proceedings in which respondents were called upon to
show cause.
17 WPS-4400.11 & 5181.12
34. While Writ Petition No.1972 of 2012 came to up for hearing on
22.6.2012, this court had been informed about order passed on
18.6.2012 withdrawing approval to two institutes of the petitioner. Under
the circumstances, writ petition No.1972 of 2012 had been withdrawn
and as the last date for submission of applications for Centralized
Admission Process had been approaching, petitioner had moved writ
petition No.5181 of 2012 in earnest, praying for reliefs referred to
hereinabove.
35. According to
ig the petitioner, communication / order dated
18.6.2012 passed by AICTE authorities is without consideration of AICTE
Act, 1987 and the orders passed by this court and disregarding the
recommendations of its own committee and the observations of the High
Court. According to the petitioner, as on the date, requirements of land
as mentioned in Appendix 4 to Approval Process Hand Book for
academic year 2011-12 and 2012-13, are conforming to the stipulations
in the Approval Process Hand Book and that the only reason for which
there is refusal to continue approval is erstwhile land requirement.
Petitioner has contended that it has made huge investments of about
50.00 crore for establishment of two institutes. It has been contended
that reliance could have been placed on the report of the committee
which had been placed before this court while order dated 15.7.2011 had
been passed in Writ Petition No. 4400 of 2011. It has been submitted
that the land deficiency had not been the reason at all for all these years
from 2001-02 to 2011-12 during which period regular visits were paid
and inspections were carried out with a view to monitor compliance with
18 WPS-4400.11 & 5181.12
the norms and regulations issued by AICTE. The action of the
Respondent-authorities is unjustifiable for it is apparent that the land
holding, even going by respondents' norms, satisfies the criterion
stipulated under Approval Process Hand Book for academic year
2012-13. It cannot be gainsaid that the area wherein the land is situate
is in Aurangabad metropolitan area and as such, petitioner's land
holding is more than the requirement for establishment of engineering
college and polytechnic. The administration and infrastructure of the two
institutes of the petitioner are separate and independent and, there is no
dispute about the same. There are no deficiencies for which approval
could have been refused.
36. Perusal of the impugned order dated 18.6.2012 shows that it was
on complaint that the institutes of the petitioner were not functioning as
per norms laid down by AICTE and on deputation of expert committee to
visit the institutes, it transpires that the institutes were being run on plot
Nos. 119 and 120, that the purpose of plot No.120 was not clear, that
unapproved programmes were being run on the campus and that there is
shortfall in staff. A report was accordingly made.
37. The petitioner has relied on interim order passed in Writ Petition
No. 460 of 2011 in Principal Seat of High Court at Bombay by Division
Bench dated 28.2.2011 wherein the High Court had granted interim stay
of impugned revocation of approval dated 7.1.2011 until further orders
and on further order dated 29.6.2011 issuing 'rule' in the matter with
continuation of ad-interim relief of stay to impugned order of revocation
19 WPS-4400.11 & 5181.12
of approval dated 7.1.2011 till final disposal of the petition. Under said
order, the Directorate of Technical Education, Maharashtra State had
been directed to include said petitioner's college for admission process
for engineering courses in the State of Maharashtra and also AICTE had
been directed to include petitioner's college in the list of colleges
approved by AICTE confining the intake capacity to 270 students, further
clarifying that there was no expression on merits of the controversy
involved.
38. It has been referred to that as on the date, as per AICTE norms,
pursuant to the regulations and requirements for the academic year
2010-2011 for degree courses, in metropolitan region, land area
requirement is 2.50 acre and that for diploma level, the same is 1.50
acre as referred to in Appendix IV of the Handbook for the academic
year 2010-11.
39. The petitioner refers to notification issued by the State
Government dated 26.9.2008 and the letter issued by Divisional
Commissioner on 21.2.2011 to support its claim that the two institutes of
the petitioner fall in metropolitan area and as such, land holding of the
petitioner satisfies requirement in that respect according to norms under
Appendix IV of the Handbook for the academic year 2010-11. The
petitioner contends that it has properly explained that user of both the
plots viz. P-119 and P-120 is for educational purpose and that its claim is
supported by authentic documents.
20 WPS-4400.11 & 5181.12
40. The petitioner has denied the allegations with regard to
conducting unapproved courses on its premises, by submitting that
temporary accommodation was made available to Raja Shivaji Technical
School over excess built up area of the petitioner and now the same has
been removed and therefore allegations on that count are untenable. It
has been submitted that qualified candidates as per the norms of AICTE
to occupy higher posts are not available despite several advertisements
issued for appointment to said posts. However, the posts have not been
allowed to go vacant and have been occupied by temporary appointees
like assistant professors and as soon as eligible and suitable candidates
would be available temporary appointments would be replaced them.
41. The petitioner makes grievance that its efforts over a decade and
huge investment of crores of rupees made for the purpose of creation,
development, improvement of the educational facilities, would all go
waste and junk on flimsy and untenable grounds. No specific reasons
had been coming forth for non approval for the academic year 2011-12.
The withdrawal of approval came to the knowledge of the petitioner only
on 14.6.2011 i.e. on the date of which it was displayed on web portal of
AICTE because though date of the same is mentioned as 10.6.2011, its
status had been displayed on web portal only on 14.6.2011. It is in
these circumstances that the petitioner had been constrained to file writ
petition. The petitioner submits present holding of five acre of land on
plot No.119 fulfills the requirement to run both the institutes as per the
norms appearing in Appendix IV of Handbook for the year 2011-12. The
petitioner therefore, impugns withdrawal of approval for the academic
21 WPS-4400.11 & 5181.12
year 2011-12 as according to the petitioner, the same is not only
contrary to and against the recommendations of the scrutiny committee
but also in breach of principles of natural justice, since at no point of time
withdrawal of approval was made known to petitioner by any sort of
communication. In fact, the authorities concerned had given no reasons
for the same. No independent order has been passed after reply had
been given to show cause notice and there had been no communication
in respect of withdrawal of approval and as such petitioner assailed the
said withdrawal condemning it as illegal and requested to quash and set
aside the same. Petitioner urges to note the fact that despite request by
it to inform reasons for withdrawal of approval, no reasons in respect
thereof have come forward and the petitioner had been in pressing
urgency since the first round of centralized admission process had
started on 21.6.2011 and as such filed writ petition No. 4400 of 2011.
The petitioner has claimed withdrawal as illegal and that there has been
no deficiency. Career of almost 2000 students has been put in peril by
callous, unsympathetic and harsh withdrawal of approval. The petitioner,
therefore, prays for grant of extension of approval to its institutes to
provide admissions through centralized admission process and also seeks
directions to Respondent No 5 to issue appropriate affiliation order for
the academic year 2011-12 and to remove its name from the category
under the caption "approval withdrawn" from the AICTE's web portal and
for further directions to permit to fill in intake capacity of petitioner's
institutes for academic year 2011-12 as per sanctioned intake capacity
for academic year 2010-11.
22 WPS-4400.11 & 5181.12
42. It had been submitted that this court under its order dated
28.6.2011 had directed AICTE's Appellate Committee to hear the
petitioner and to communicate its decision to the petitioner on
30.6.2011 itself. Subsequently, the petitioner had moved civil
application No. 7763 of 2011 seeking amendment to writ petition to bring
on record further developments which came to be duly granted. It had
been submitted that the petitioner had appeared before the Appellate
Committee of AICTE on 29.6.2011 and was informed by the Committee
that orders would be passed on 30.6.2011. The petitioner did not receive
any communication from ig AICTE authorities regarding extension to
approval. Finally, on 1.7.2011, official web portal of AICTE started
showing "No intake" capacity for the two institutes of the petitioner. No
reasoned order had ever been displayed on internet nor any
communication of the order had been sent to the petitioner. It has been
submitted that the State Government, as well as the University-Board
had recommended extension of approval to the two institutes of the
petitioner, yet it appears that the same had not been considered by the
appellate authority of AICTE. The petitioner as such, had been
constrained to challenge the status report as displayed by AICTE on its
web portal. The petitioner, on 1.7.2011 itself had sent a representation
to the chairman of the AICTE, requesting him to issue impugned order
with reasons.
43. It appears that on 15.7.2011, after hearing parties and referring to
the submissions about inadequate land holding, justifying the impugned
action of AICTE, it had been appreciated by the Court that the only
23 WPS-4400.11 & 5181.12
ground for withdrawal/cancellation of approval had been that land
possessed by the petitioner in 2001 was insufficient and that the
recommendation of the committee had not commented on infrastructure
or any deficiency and having regard to that about 2000 students were
taking education in petitioner, ad-interim relief in terms of prayer clauses
(E) and (G) was granted confining its operation only to the academic year
2011-12 to the extent of intake capacity sanctioned by AICTE.
44. In reply, it has been submitted by respondents no.3 and 4 that
there has been misrepresentation to the AICTE
ig about land holding of
petitioner and that it holds plots No. P-119 and P-120 of M.I.D.C., Waluj,
Aurangabad. It has also been submitted that the petitioner had
fraudulently obtained approvals to its institutes and that withdrawal of
said approvals has been after following due process. It has been
contended that the petitioner had concealed and suppressed material
facts while seeking relief in the petition and that the petitioner has
attempted to mislead the court. According to the respondents, petitioner
has not approached the Court with clean hands and as such, is not
entitled to any equitable relief. It has been alleged that the petitioner
had withheld the documents in relation to plot No. 120 of M.I.D.C., Waluj.
The action of AICTE of withdrawal of approval is being justified for the
reason that it is subjectively satisfied that the information given by the
petitioner while submitting proposal for approval to new engineering
college that it holds 30 acre of land is false and since the falsity of the
same has been exposed, it called for withdrawal of approval. On similar
grounds, as in the reply to W.P. No.4400 of 2011, reliefs claimed in
24 WPS-4400.11 & 5181.12
W.P.No.5181 of 2012 have been opposed, with similar submissions as had
been made while opposing earlier writ petition.
45. In their reply filed on 5.5.2012, the action of AICTE is justified by
the contesting respondents, alleging that the petitioner had
misrepresented to AICTE and its officers about land holding. It has been
claimed that approval to a technical education institute by AICTE is on
the basis of depiction of facts relating to acquisition of right to property
by the organization running educational institutes on the date of its
declaration. It has been submitted that the moment it had been found
("traced") that the petitioner had misled and induced approval in its
favour, the approval "disappeared". It has been submitted that on
subjective satisfaction about land holding of the petitioner, approval had
been granted to Hi-tech institute of Technology in 2001 and upon
realization that the claim of the petitioner is false, AICTE has a right to
withdraw the same. According to AICTE, the basic criterion of land
requirement of 25 acre being lacking, it is justified in withdrawal of
approval. It has been contended that misrepresentation is a breach of
duty which gains an advantage to the person misleading another to his
prejudice which has been done by the petitioner having misled the AICTE
on the requirement of land holding for starting engineering college.
46. The petition has also been tried to be impeached on the ground
that the person who has purportedly signed and filed the petition on
behalf of the petitioner had, in fact, no such authority and has not been
legitimately authorized and hence, would not be able take up the cause
25 WPS-4400.11 & 5181.12
for the petitioner having regard to the scheme of the trust.
47. Opposition to reliefs claimed in the petition are on the basis that
there had been misrepresentation while starting the college, about
petitioner being holding 25 acre of land, according to AICTE norms during
academic years 2001-02 to 2004-05. It has been submitted that
requirement of land holding to start a new engineering college had been
reduced from 25 acre to 10 acre for rural area in the academic year
2007-08 and continues to be so till date. It has been further submitted
that for starting a new engineering college, the criterion with regard to
land holding has been changed to 5 acre from 2008-09 under AICTE
norms and that the land requirement has been further decreased to 2.5
acres for starting a new engineering college in metro/urban area from
the academic year 2011-12. It has been referred to that, every year
existing technical institutions have to seek extension of approval by
displaying mandatory information as required by AICTE and that AICTE
has discretion to reassess approval earlier accorded. In the event, any
information given by an institution like petitioner is false and distorted,
the institution does not have any right to claim continuation of the same.
Approvals to petitioner's institutes had been obtained on
misrepresentation and as such the acts and actions of the petitioner
cannot be excused or pardoned and the AICTE cannot be prevented from
taking appropriate action. It has been submitted that the petitioner has,
in fact, admitted, and is a substantive evidence "proprio vigore" that the
petitioner had not been allotted 25 acre of land as had been necessary
for establishing a new college then and as such no further evidence is
26 WPS-4400.11 & 5181.12
necessary to justify action of withdrawal of approval.
48. It has further been submitted that the AICTE has all the rights to
give surprise visits, make inspections and issue show cause notices, if
needed and, therefore, the committee of the AICTE had carried out
surprise inspection and on submission of report by the committee, two
show cause notices had been issued to the petitioner. Thus, the AICTE
has acted with bona fide cause. According to the reply, circular issued by
the government in 2008 would apply to institutes which intend to start
new engineering colleges and not to the institutes which had already
started running colleges and such institutions would be required to
follow norms those had then been subsisting. It is contended that the
certificate issued by the Divisional Commissioner on 21.2.2011 about
petitioner's institutes being covered in the area of Aurangabad
metropolitan area would seldom be able to support the petitioner. The
thrust of the submission of the AICTE is, even as per norm 4.1 in
Appendix 4 to Approval Process Hand Book for academic year 2010-11,
requires 10 acre land for technical institutions in rural area and as such,
recourse to said handbook is misconceived. It has been contended that
the petitioner would not be able to derive any right under the present
rules in operation and such an attempt by the petitioner would be
required to be smothered. It is further contended that the rights of the
petitioner are governed and guided by set of rules of AICTE for academic
year 2001-02 which `postulate' the land requirement to be 25 acre and
as such, reliance being placed by petitioner on new rules, is improper,
not correct and void. It would be worthwhile to refer to that AICTE is
27 WPS-4400.11 & 5181.12
taking note of the fact that the State Government has classified in 2008,
Aurangabad as metropolitan area.
49. According to the affidavit in reply, the petitioner has indulged into
`sharp' practices and its case suffers inherently incurable lacuna for
which AICTE cannot be blamed. It is also submitted that the `Council' is
subjectively convinced about the fact that plot No.120 was not held by
the petitioner on the date of grant of approval in 2001 and had declined
to buy-line of petitioner on that, the two institutes run by the petitioner
are now free from deficiencies.
50. An additional affidavit has been filed by Respondents on
15.7.2012, wherein it has been asserted that plot No. 120 was given to
third person under an agreement dated 17.8.1998 and that its sub
division had been allowed in 2003 by M.I.D.C. It has been thus claimed
that fraud played by petitioner has been exposed. The respondent has in
several communications and affidavits affirmed and declared that in the
event of non-compliance with the guidelines, norms and conditions
prescribed by AICTE, it has all the powers to refuse approvals. For that
purpose, reliance has been placed on regulation No.4.37 of the AICTE
(Grant of Approval for Technical Institutions) Regulations, 2010. It has
been claimed that the petitioner in its declaration on 9.6.2012 has stated
that in 2003-04, 25 acre of land was applied for and allotted, however,
the documents showing the same were not available. Support for
opposition to reliefs is taken from the observations of the Supreme Court
in the case of Morvi Sarvajanik Kelavni Mandal vs. National
28 WPS-4400.11 & 5181.12
Council for Teachers (2012) 2 SCC 16, as also from order in Civil
Appeal No. 4318 of 2012 dated 8.5.2012 in the case of Priya Gupta vs.
State of Chattisgarh that regulations framed by the AICTE are binding
and the standards therein cannot be deviated from.
51. The claim of the petitioner that subject-matter of Writ Petition No.
460 of 2011 in the Principal Seat of High Court, is the same as involved in
the present petition, is disputed.
52. Respondents purport to decline to acknowledge receipt of
representation dated 15.7.2011 by petitioner and claim that
misrepresentation is uncondonable and that there can be no concession
to AICTE's directives. We find this effort immaterial in present scenario.
53. Petitioner has cited in support of its submission, following
judgments, viz.
(i) Hindustan Petroleum Corpn. Ltd. Vs Darius Shapur Chenai
(2005) 7 SCC 627.
(ii) Kranti Associates Private Limited vs. Masood Ahmed Khan
and others, (2010) 9 SCC 496.
(iii) Shivamrut Dudh Utpadak Sahakari Sangh Maryadit vs. State
of Maharashtra, 2004 (3) Mh.L.J. 668
(iv) State Govt. Houseless Harijan Employees Association vs.
State of Karnataka (2001) 1 SCC 610.
(v) Mohinder Singh Gill vs. Chief Election Commissioner, (1978)
1 SCC 405.
54. Mr. Shah, learned Senior Advocate, has referred to the decision in
29 WPS-4400.11 & 5181.12
HPCL vs. D.S. Chenai to urge that hearing of objection must be effective
and not a mere formality. There must be proper application of mind to
purpose, by considering relevant factors and ignoring irrelevant ones.
Right to establish and carry on education institution is a fundamental
right and interference and obstruction to the same on the purported
allegation of non compliance with the norms which have been flexed,
varied and altered favouring the petitioner, will have to be objectively
viewed. Having regard to the requirements under present norms,
permitting establishment and allowing to carry on an education
institution, the impugned order dated 18.6.2012 withdrawing approval
falls far too short of relevant considerations.
55. It has been submitted that having regard to the record available
before this court, it will have to be considered that all allegations are
about so called misrepresentation, which is over-stretching of alleged
aberration/irregularity occuring under a bona fide impression. Alleged
misrepresentation about information at the highest would be an
aberration, according to him, petitioner had not concealed nor there was
any promise in the information supplied to AICTE about petitioner being
in possession of 25 acre land on the date on which application had been
made. He has categorically referred to that the application shows that
the petitioner is in possession of 4.78 acre of land bearing plot No.119 in
M.I.D.C. Area, Waluj, Aurangabad and that 25 acre of land is proposed to
be acquired. He has placed strong reliance on clause 10 of the document
at Exh. B to Writ Petition No.5181 of 2012 and has submitted that
approval has been granted, inter-alia, after considering the same and has
30 WPS-4400.11 & 5181.12
pointed out that the location of the institution has been referred to as
the district headquarters which has been additionally highlighted by
typing it again and further that the land holding has been shown to be 5
acre in possession and 25 acre has been referred to as under acquisition.
56. For aforesaid purpose, Mr. Shah takes support of the lease deed
which has been executed in favour of the petitioner by M.I.D.C. and the
letter dated 23.3.2001, by which M.I.D.C. communicating that proposal
for allotment of land adjacent to plot No.P-119 is under process. He has
thus submitted that having regard to the factual position, allegation of
misrepresentation is not at all attributable to the petitioner and there
had been an implied assurance by M.I.D.C. about making available 25
acre land to the petitioner. Mr. Shah submitted these documents had
been part of the application made for approval to AICTE in 2001 and as
such, attempt to find fault with the petitioner is pricking holes. He has
also referred to that in all its further applications for extension of
approval for the next consecutive ten academic years, the petitioner had
supplied similar information to AICTE that it has in possession of about
5 acre land. According to the procedure, as envisaged under AICTE Act
and the regulations thereunder for each and every academic year, the
information supplied by the petitioner had been got verified and re-
verified by competent authorities under AICTE Act, rules and regulations
and the AICTE had been carrying out physical inspection, as well. At no
point of time prior to academic year 2010-11, the question about
genuineness and authenticity of petitioner's claim had been raised as the
concerned authorities of the AICTE had found the same to be in order as
31 WPS-4400.11 & 5181.12
per the applicable norms.
57. Not only this, wherever on inspection and verification of some
deficiencies had been found with regard to certain norms, those were
communicated to the petitioner and were asked to be removed. By way
of example, he has relied on letter extending approval to engineering
degree college. It had been referred to in that there is short fall of 5.75
per cent of built up area as only 7939 square meters built up area was
existing as against required area of 8424 square mtrs. as well as to
short-fall in faculty and computer equipment. At no point of time prior to
show cause notice for the academic year 2010-11, deficiency with regard
to land had ever been alleged. He had further pointed out that even in
the report just before show cause notice had been issued, there had
been no deficiency pointed out as far as criterion of land had been
concerned. Learned Senior Advocate had, therefore, vehemently
emphasized, if at all there had been intention of AICTE to take action for
academic year 2010-11, or for that matter for 2011-12, it ought to be
based on deficiencies contained in the report. He thus submits that
there had been no basis whatsoever even according to the record relied
on by AICTE for issuing show cause notice on such untenable ground.
58. According to Mr. Shah, allegation with regard to shortfall and
deficiency in land requirement have been rendered of no significance and
do not have any efficacy. The effort had been to show that having regard
to the norms in operation presently, even a show cause notice on ground
of deficiency of land holding could not be issued and the AICTE would
32 WPS-4400.11 & 5181.12
not have any power to issue such notice for, according to him, it is an
admitted position that as per applicable norms in metro area the
petitioner's land holding is more than requirement.
59. Mr. Shah has tried to contend that as a matter of fact, the M.I.D.C.
had issued an allotment letter to petitioner in respect of plot No. P-120.
However, its purpose had been shown only for manufacturing activities.
60. Mr. Shah has relied on Kranti Associates Pvt. Ltd. vs. Masood
Ahmed Khan, (2010) 9 SCC 496, to support his contention that
impugned orders are untenable for those suffer absolute non application of
mind to the factual position vis-a-vis requirements under the current norms
and that the real reasons are on the hind side and the reason given is only
an ostensible one which is devoid of any substance. It has been submitted
that reasons given are no reasons in the eye of law and are absolutely
untenable for refusal of extension to approval.
61. Relying on judgment in Shivamrut Dudh Utpadak Sahakari
Sangh Maryadit vs. State of Maharashtra, 2004 (3) Mh.L.J. 668, it has
been contended that validity of an order passed by statutory authority has
to be judged by reasons recorded and is not amenable to be construed in
the light of subsequent explanation given by the authority or by filing an
affidavit. It has, therefore, been contended that it is absolutely not a case
of fraud and it is even less open to the authorities of AICTE to allege fraud
without hearing petitioner and by subsequently filing a reply. Such an
33 WPS-4400.11 & 5181.12
allegation is thus not available as a ground to justify the impugned
order. Mr. Shah has, in support of said submission, relied on Mohinder
Singh Gill vs. Chief Election Commissioner, AIR 1978 SCC 851, and
State Govt. Houselss Harijan Employees' Association vs. State of
Maharashtra, (2001) 1 SCC 610.
62. According to Mr. Shah, though the petitioner had been purportedly
heard, its submission ought to have been objectively considered, however,
the case is otherwise. The impugned order thus, is in violation of true spirit
underlying principles of natural justice. According to Mr. Shah, the
impugned action, under the circumstances, is not bona fide.
63. On the other hand, Mr. S.V. Adwant, learned Counsel appearing for
respondent-AICTE, has relied on as many as ten citations which are:-
(i) Adarsh Shikshn Mahavidyalaya and ors. vs. Subhash and
others, (2012) 2 SCC 425,
(ii) Shri Moravi Sarvajanik Kalavni Mandal vs. National Council
for Teachers Education, (2012) 2 SCC 16.
(iii) K.D. Sharma vs. Steel Authority of India and ors, (2008) 12
SCC 481,
(iv) Gowrishankar and another vs. Joshi Amba Shankar Family
Trust, (1996) 3 SCC 310,
(v) S.P. Chengalvaraya Naidu . vs. Jagannath Naidu (1994) 1
SCC 1.
(vi) Bhaurao Dagadu Paralkar vs. State of Maharashtra (2005) 7
SCC 605.
34 WPS-4400.11 & 5181.12
(vii) Priya Gupta vs. State of Chattisgarh, Civil Appeal No.4318 of
2012 and Civil Appeal No.4319 of 2012 decided by the
Supreme Court on 8.5.2012.
(viii) Ram Preeti Yadav vs. U.P. Board of High School and
Intermediate Education, (2003) 8 SCC 311.
(ix) Ritesh Tiwari and another vs. State of Uttar Pradesh (2010)
10 SCC 677.
(x) State of Orissa and another vs. Mamata Mohanty (2011) 3
SCC page 436.
64. Mr. Adwant, though relied on citation, namely, Adarsh Shikshan
Shikshan Mahavidyalaya and ors. vs. Suhash and others, (2012)
2 SCC 425, has not pressed the same into service.
65. Other citation relied on by respondents on the principle that fraud
vitiates everything and that misrepresentation is a fraud which the party
making it knows the same to be false, is Bhaurao Paralkar vs. State
of Maharashtra, (2005) 7 SCC 605. However, it has to be considered
that ensuing injury is to be a result of bad motive. Here, in present
case, there is no reference to injury suffered due to alleged fraud by the
petitioner. On the same point, he has referred to and relied on Ram
Preeti Yadav vs. U.P. Board of High School and Intermediate
Education, (2003) 8 SCC 311. The thrust of the submissions on behalf of
the respondents is, suppression is also a kind of fraud, so is a
misrepresentation and it can be under any guise like suppression of
document.
66. A judgment and decree obtained by fraud would be nullity and for
35 WPS-4400.11 & 5181.12
that purpose, Gowrishankar and another vs. Joshi Amba Shankar
Family Trust,(1996) 3 SCC 310, and S.P. Chengalvaraya Naidu . vs.
Jagannath Naidu (1994) 1 SCC 1 have been referred to.
67. Mr. Adwant submitted that the Supreme Court has in no uncertain
terms said that fraud involves two elements, namely, deceit and injury to
the person deceived. The Supreme Court has adverted to that injury is
something other than economic loss, that is, deprivation of property,
whether movable or immovable or of money and it will include any harm
whatever caused to any person in body, mind, reputation or such other.
For said purpose, he has relied on Bhaurao Paralkar's case (supra).
68. For the proposition that the regulations framed by the statutory
body are binding and the standards prescribed therein cannot be
deviated from, Mr. Adwant has produced a copy of judgment of the
Supreme Court delivered on 8.5.2012 in Priya Gupta vs. State of
Chattisgarh, Civil Appeal No.4318 of 2012 and Civil Appeal No. 4319
of 2012. He emphasizes that even the estoppel prescribed has a force of
law.
69. Mr. Adwant next submitted that once fraud is proved, it should
deprive the person who commits it, of all the benefits enjoyed therefrom
and delay in taking action will not give rights in equity and as such,
according to him, petitioner is not entitled to any relief on equitable
grounds and such a consideration would be highly misplaced.
36 WPS-4400.11 & 5181.12
70. Mr. Adwant for the proposition that, subsequent action or
development cannot validate an action which was not lawful at its
inception, since the illegality strikes at the root of the order and it would
be beyond competence of any authority to validate such an order, has
relied on Ritesh Tewari and another vs. State of of Uttar Pradesh
and another, (2010) 10 SCC 677. He has submitted that if an order
at initial stage is bad in law then all the proceedings subsequent thereto
would be non-est and will have to be set aside. In our estimate, the
situation here is widely different, for, the approval is to be granted each
year and the requirements for the same are to be verified, reverified and
inspected every year and therefore grant of approval for earlier academic
year hardly has any effect on the approval to be considered for the new
academic year. On the strength of valid approval, students then studying
pass out validly and that approval may exhaust itself.
71. In State of Orissa vs. Mamata Mohanty, (2011) 3 SCC 436,
the Supreme Court has emphasized need to adhere to minimum
requirement as prescribed for eligibility to maintain standard of
education and observed that the same cannot be and should not be
relaxed. However, in the said case, the Supreme Court, having regard to
the fact that the appointment of some lecturers was not valid at the point
of entry in the employment, but subsequently they had acquired
prescribed qualification had granted partial relief in their favour. There
would not be any dispute about proposition as laid down by the Supreme
Court. However, in the present case, the situation now appears to be
that erstwhile deficiency with regard to land holding no longer subsists
37 WPS-4400.11 & 5181.12
with abatement of area requirement under current norms and, therefore,
this citation may not serve purpose for which it has been relied on and
may indirectly further petitioner's cause.
72. The land requirement prevailing in 2001 or 2005 is not in dispute.
The modifications therein after the area becomes a Metropolitan area is
also not in dispute. The petitioners submitted initial application on
03.08.2000 and in that application, they have disclosed their holding to
be 5 Acres in possession and 25 Acres in acquisition. Against Clause 7 of
their application, they have given address as Plot No. P-119, MIDC and
place is shown to be District Headquarters. This application was only for
starting Engineering College. They have mentioned land area to be 30
Acres and while answering question whether it is owned by them, they
have tick marked the box meant for affirmative response. Subsequent
column which depended upon this affirmative answer has again been
replied to by filling in area to be 30 Acres or 12 Hectare. Thus, they have
mentioned land in their possession and owned by them to be 30 Acres or
12 Hectare. A little later, they have mentioned that it is leased out to
them for 90 years and it is earmarked for the purposes of educational
institution. Against column No. 17, it is stated that they possess
adequate land, building, equipment etc. for the proposed College. On
23.03.2001, the MIDC has issued to them a communication which shows
that the allotment of land adjacent to Plot No. 119 was under progress.
This adjacent land is having area of 25 Acres, however, in this
communication, its plot number is not mentioned. But then it is not in
dispute that said Plot No. is P-120. Plot No. P-119 has been leased out to
38 WPS-4400.11 & 5181.12
the petitioner on 12.04.2001 and in Lease Deed, its area is shown to be
19340 square meters equivalent to 4 Acres, 78 Gunthas.
73. On 28.06.2001, AICTE has written to the petitioner on the
subject of approval and it mentions Plot No. P-119 only. The approval is
subject to fulfillment of General conditions, norms and standards of
AICTE. Its clause No. 15 cautions them, if information is found to be false
or misleading or suppressed, approval accorded can be withdrawn in
pursuance of AICTE Regulations, 1994. Clause 16 is again on same lines.
On 31.05.2001, the AICTE had called upon the petitioners to produce
original sale deed showing ownership and title of the lands.
74. On 14.05.2004, the AICTE has extended approval for the year
2004-05 and it mentions address of the petitioner - College as Plot No.
P-119. On 24.06.2005, approval is extended for the year 2005-06
mentioning same plot number and this position holds good even for the
Academic Year 2006-07. Term No. 12 of extension order dated
19.05.2006 shows that AICTE had power to conduct surprise inspection
and clause 15 thereof again cautions the petitioner about withdrawal of
approval.
75. Respondents No. 1 & 2 have filed additional affidavit in Writ
Petition No. 5181 of 2012 and along with it, they have produced a
document styled as possession receipt. This document shows that on
22.01.2003, Plot No. P-120 admeasuring 81784.41 square meters was
delivered in possession of the petitioner, however, it is not in dispute that
39 WPS-4400.11 & 5181.12
said plot was never used by the petitioner for educational purpose. A
lease deed dated 29.01.2003 is also placed on record which is in fact an
agreement to lease between MIDC and the petitioner. Respondents No. 1
& 2 have also placed on record communication dated 10.10.2003 which
shows sub-division of Plot No. P-120 into 12 different plots and its
allotment to third person/ firms for valuable consideration. This
document shows that 30% of the premium was worked out at Rs.
5,12,181/-. This document also shows that said Plot No. P-120 was lying
vacant and it was sub-divided and allotted at the rate of Rs.413/- per
square meter. Respondents No. 1 & 2 have also placed on record
consent given by MIDC for sub-division of Plot No. P-120. It shows that
agreement of lease by MIDC with licensees therein was dated
17.08.1998. All these documents show that Plot No. P-120 was never
allotted and was never in possession of the petitioner.
76. The affidavit dated 14.06.2010 by the Secretary of the
institute shows that it is in relation to compliance by the petitioner -
institute with guidelines, norms and conditions and accepting right of
AICTE to withdraw approval, if violations were noticed. On same lines is
the affidavit by the Chairman and by the Principal. During hearing on
09.06.2012, the College stated that in year 2001, land requirement was
10 Acres and in year 2003-04, additional land of 25 Acres was allotted. It
has stated that said additional land was applied for in the year 2001.
During hearing, it was accepted that claim to Plot No. 120 cannot be
substantiated by producing any document. The fact that P-120 was sold
to another institute/ third party was denied by the Secretary, who had
40 WPS-4400.11 & 5181.12
attended the hearing. The petitioner moved application seeking approval
for new Diploma level Technical institute i.e. Polytechnic on 30.06.2005
and in it, had mentioned address of institute as Plot No. P-119 and P-120.
It also gave a declaration that 2 Acres of land was kept separate for
Polytechnic. In Application Report for the year 2012-13, Part 1, while
giving land details, location is stated to be Metro city and area of 3 Acres
is shown for Engineering College. Total area in Acres is shown to be 5
Acres in similar Application Report for the year 2011-12.
77. All these documents filed by or on behalf of the petitioners -
institutions and submitted to AICTE are not in dispute. Thus, in the year
2001, when Engineering College was sanctioned by AICTE, the petitioners
did not have requisite land and in 2005 when Polytechnic College was
permitted to them in addition, situation was not different. The petitioners
had submitted title document (lease deed) only about Plot No. P-119 and
title document in relation to Plot No. P-120 was never submitted by them.
AICTE also did not choose to demand it at any point of time.
78. The situation above, clearly shows that AICTE suddenly has
gone back to lacunae which had been prevailing since the year 2001 or
since the year 2005 and has chosen to withdraw the approval extended
on year to year basis. Why it has done so has not been explained,
though an opportunity has been extended to AICTE for said purpose by
us. During the arguments, a complaint to Central Bureau of Investigation
and (CBI) inquiry was canvassed but those facts have not come on
affidavit before us.
41 WPS-4400.11 & 5181.12
79. It has been submitted that that AICTE is concerned with the
building, creation of assets etc. in relation to the petitioner unless the
petitioner complies with the requirements laid down under the Act, rules
and regulations made thereunder, it will not spare the erring institute for
not abiding by the conditions stipulated. It has also been said that
petitioner has not made any attempt to file appeal before the AICTE-
appropriate authority and as such, there is no question of refusing to
accept the appeal. On this background, AICTE goes on to submit that
the appellate committee after hearing
ig the matter had closed it for
passing order on 30.6.2011. It had placed its recommendations before
the appropriate authority in a meeting of its Executive Council on
30.6.2011. The decision confirmed by the appropriate authority had
been uploaded on official website of AICTE on 1.7.2011 and further that
the official communication to be issued to the petitioner was then
prepared and kept for approval of the competent authority and before
the same could happen, the petitioner had already been before the court
with regard to the same. However, as yet, no such communication has
been placed on record and that it has not been controverted that after
hearing petitioner, no order has been passed on 30.6.2011.
80. The scenario thus projects, the AICTE is taking up the issue as if it
is human species, not accepting 'wrong' caused by the petitioner as it
has been taken for a ride by the petitioner with regard to land holding
since 2001, for that is the only reason for refusal to continue approval to
the two institutes run by the petitioner. Since the petitioner had misled
42 WPS-4400.11 & 5181.12
in 2001 and had not been eligible then, now even with the changed
criterion, AICTE will not consider case of petitioner for continuation of
approval though petitioner's land holding now is as required under the
present norms, for AICTE had been wronged once and petitioner had
cheated it then. The organizations are not supposed to go by emotional
upheavals. AICTE nowhere explains why during physical verification,
factual matrix was overlooked by it. AICTE and its concerned officials are
equally at fault and party to fraud on law.
81. Such an attitude on AICTE's part
ig is biased and may not be
conducive to healthy growth, augmentation of development and its very
purpose. The AICTE would not be able to take an action, conduct itself
and behave like an ordinary human being. AICTE will have to stoically
act and would conduct itself in the matter with equanimity. Even
otherwise, as an institution and that too a statutory one, it has no
freedom to sharply react to erstwhile wrongs done or itch over past
events.
82. Whether each new set of norms as and when framed and settled
by AICTE would not be able to substitute the earlier set of norms while
governing an existing institute and would throughout its existence be
required to be controlled, governed and administered by those very
norms which were subsisting when recommendation/
approval/permission had been granted to it. The proposition in the
present case is a misconceived one.
43 WPS-4400.11 & 5181.12
83. Respondents want to backtrack from the supposed concession
earlier made by their counsel with regard to land holding and submit that
such concession would not be binding on AICTE as said situation is
governed by laws and rules. We do not see any such concession and its
acceptance by this Court in its order dated 15.07.2011.
84. It has been submitted that the appellate committee of AICTE is an
advisory committee and its recommendations `may' or `may not' be
accepted by AICTE and, therefore, the recommendations of said
committee would not have binding efficacy.
ig It has been contended that
the decision taken by AICTE is after assessing the situation and
capabilities of the petitioner to comply with directives and regulations of
AICTE which are obligatory and are required to be abided by.
85. Upon hearing petitioner, the committee had recorded that the
documents of plot No,120 were not in order, that short-fall of professors
exists, that the documents in respect of plot No.119 had been in order
and further noting that 20 acre of land had been acquired by petitioner
in 2003, however, purported to advert to that the institutes had been
established in 2001. It expressed surprise over the same and further
purported to hold that the documents regarding plot No. 120 are
tampered with and that the engineering and polytechnic buildings are
over same plot No.119. The appellate committee had observed that plot
No.120 had been with remark " The lessee shall not use the said land for
any purpose except as a factory for manufacture" . The committee had
observed that there was blatant violation of AICTE regulations. The fact
44 WPS-4400.11 & 5181.12
of engineering college having been established on plot No.119 had been
suppressed and since the land is less than 5 acre, approval should be
withdrawn. It was observed that since the requirements for opening new
engineering college was 25 acre and the institute had less than 5 acres
of land, the establishment of college had been illegal and that the
institute had failed to substantiate ownership over 20 acre land under
plot No.120 and that the same is admitted to have been sold without
seeking permission from AICTE. The committee thus recommended
withdrawal of approval in respect of both the institutes and had directed
to protect the interest of students.
ig AICTE could have recorded these
conclusions on the strength of documents with it year after year till
2009-2010 also. It preferred to turn Nelson's eye to it.
86. It will have to be considered that no other ground has been urged on
behalf of the respondent- AICTE before this court other than alleged
deficient land holding at the time of first approval and that the
Respondents had been subjectively satisfied and said subjective
satisfaction continued for ten long years thereafter. It will further have
to be noted that with the passage of time, the matters with regard to the
norms for granting approval have also been evolved and altered.
Depending on the location, land requirements have also undergone
change. While requirement of land had been 25 acre for engineering
education institution, has now been reduced to 10 for rural area and that
in urban area, for engineering college is 2.5 acre and for polytechnic 1.5
acre. Respondents have not seriously disputed that presently the
petitioner's institutes fall in metropolitan area and although respondents
45 WPS-4400.11 & 5181.12
do not accept that as per the current norms and its relevance, the land
holding of petitioner may meet the said requirement, contention that
new norms for metropolitan area would apply for commencement or
starting of a new technical education institute is unsustainable. Several
batches of Engineering and Polytechnic students have passed out validly
and their education in petitioners institutes cannot be viewed as 'void' or
"still born". Omission of AICTE to take note of facts apparent on record
and visible to naked eye also cannot be overlooked and condoned.
Extent of land in petitioners possession, two separate buildings standing
on it, have never bothered the conscious of AICTE. It has not explained
what action it has proposed against its delegates who carried out
physical verification, year after year.
87. In hypothetical case, another institute possessing 10 Acres
now could have been permitted to establish Polytechnic College on
portion of 1.5 Acres. An institute with 25 Acres of land could have been
or can be permitted to sub-divide its holding to start other activities.
Hence, we cannot accept the contention that new norms are attracted
only in case of new proposals. When existing Colleges in Metropolitan
area can proliferate, petitioners can also be given advantage of new
norms.
88. It is undisputed position that presently, as per the norms which are
holding the field, to run programmes of an under-graduate engineering
and technical education and diploma education, land requirement is 2.5
acres and 1.5 acres respectively.
46 WPS-4400.11 & 5181.12
89. We have to bear in mind that as far as role of AICTE is concerned,
it is to inspect, verify and be assured about an institution possessing
required land and complying with all the requirements as are necessary
to impart a good quality technical education, whether it be in rural area
or in metropolitan area and according to the norms settled by AICTE
now, particular land holding in a metropolitan area is good enough to
impart technical education and training and if petitioner is possessing
the same, why it cannot be considered for grant of approval for the
subsequent academic year.
90. The question whether approval to petitioner could be refused,
therefore, may not assume significance. Having regard to over all
situation, we are of considered view that it would not be open to AICTE,
a statutory body, to refuse to verify and/or inspect the present situation
to ascertain compliance of requirements needed under the present
norms.
91. We, therefore, deem it appropriate to direct the respondents to
consider the case of the petitioner for grant of approval afresh. Even
otherwise, it is not the case of respondents at all that alleged deficiency
of land holding has affected imparting quality/qualitative education to
the students. As a matter of fact, the AICTE has to be alive to the
situation that there has been consistent demand for increase in intake
capacity and that all the intake capacity is being occupied by admission
through Centralized Admission Process rounds.
47 WPS-4400.11 & 5181.12
92. Not only this, but also it will have to be seen that several other
incidental developments must have taken place over a period of ten
years generating means of livelihood and employment. Several other
establishments and persons might have been depending solely on the
existence of the education institutes run by the petitioner.
93. Pertinently, in none of the communications in respect of extension
of approval, deficiency with regard to land holding had ever been pointed
out till the academic year 2010-11. On the whole, it is not a happy state
of affairs. Reckless approach has been exposed on either side. In the
process, liabilities and responsibilities have been allowed to be created
and incurred and as such an abrupt interruption/truncation of the whole
activity would have disastrous and wide repercussions affecting a very
large section of people.
94. We, therefore, would not assist petitioner in totally doing away
with the impugned order withdrawing the approval. However, we leave it
to the respondent-AICTE and authorities to consider proposal for grant of
approval, if the petitioner chooses to make application afresh and it
would be open for the authorities concerned to consider the same
objectively without being rankled by the past events. We see that both
the parties are contributory to the activity taken upon by the petitioner
and the state of affairs has been quite poignant.
48 WPS-4400.11 & 5181.12
95. An affidavit is subsequently filed by respondents to indicate that
even assurance with regard to 20 acres of land of Plot No.120 has been
vague one as is revealed from the documents which were sought to be
relied on and annexed to the said affidavit. However, we are not going
to go into it as the same would not benefit any one, including the M.I.D.C.
and even if the same is assumed to be correct, that is not going to serve
any purpose. We leave it to the concerned to take appropriate action
with regard to the same. However, since we are directing that
consideration of the proposal of the petitioner afresh, the same is of
little significance for the purpose underlying the writ petitions as well as
the grounds on which the same are being opposed.
96. The exact extent of lands with the petitioners, availability of two
separate buildings to have Engineering and Polytechnic Colleges,
situation of land in Metropolitan area are all questions left open for
consideration by AICTE. We direct the petitioners to submit a true
and correct proposal supported by affidavit of its President,
Secretary and Principals of both Colleges within four weeks from
today. The AICTE shall consider it as per existing norms within a further
period of eight weeks and communicate it to the petitioners. AICTE
shall carry out physical verification, obtain necessary building plans from
the petitioners or concerned local authority and hear the petitioners, if
necessary.
97. We impose costs of Rs. One lakh each upon the petitioner as
well as the AICTE and direct them to pay the same to Aurangabad High
49 WPS-4400.11 & 5181.12
Court Legal Aid Services Authority, within four weeks. If costs are not
paid, the same shall be treated as contempt of this court by respective
Presidents and Secretaries of the petitioners and/or AICTE.
98. With these directions, we make Rule absolute accordingly
and dispose of the present Writ Petitions.
(Sunil P. Deshmukh, J.) (B.P. Dharmadhikari, J.)
ig ***
