Late Bhausaheb Hiray Ss Trusts Dr. ... vs Union Of India Thr. Ministry Of ...
2021 Latest Caselaw 17441 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               CIVIL APPELLATE JURISDICTION

                       WRIT PETITION NO.7425 OF 2021


Late Bhausaheb Hiray SS Trust's            )
Dr.Baliram Hiray College of Architecture   )
Registered under India Trusts Act, 1882    )
Having its' office at : Dr.Baliram Hiray   )
College of Architecture, 341 , Shirsekar   )
Marg, Near Kherwadi Police Station,        )
Government Colony, Bandra (East),          )
Mumbai - 400 051.                          )
Through its Principal                      )
Shri Sunil Raosaheb Magdum,                )
Age 55, residing at : A-304, Shivsadan,    )
Veershaiv Nagar, Chincholi Bunder,         )
Road, Malad (West), Mumbai - 400 064.      )    .. Petitioner

                Versus

1. Union of India                          )
Through its' Ministry of Human             )
Resources and Development                  )

2. The State of Maharashtra                )
Through its' Secretary to the Department   )
of Higher & Technical Education            )

3. Council of Architecture                 )
Established under the provisions of the    )
Architects Act, 1972, having its' office   )
At : Indian Habitat Centre, Core-6A,       )
First Floor, Lodhi Road,                   )
New Delhi- 110 003.                        )

4. The University of Mumbai                )
Having its' address at : Kalina Campus     )
CST Road, Santacruz (East)                 )
Mumbai - 400 098.                          )




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5. State Common Entrance Test Cell               )
Having its office at : 8th floor, New            )
Excelsior Building, A.K. Nayak Marg,             )
Fort, Mumbai - 400 001.                          )     .. Respondents

              ---
Mr.Y.S.     Jahagirdar, Senior Advocate i/by Mr.S.S. Kanetkar for the
petitioner.
Mr.N.K. Rajpurohit, AGP for the respondents-State.
Mr.Naveen R. Nath, Senior Advocate with Mr.Shrinivas Bobde and
Mr.Aniruddha Bhat i/by Wesley Menezes for the respondent no.3.
Mr.S.S. Patwardhan with Mr.B.R. Mandlik and Ms.Mrinal Shelke
for the respondent no.5-CET Cell.
             ---

                               CORAM : R.D. DHANUKA AND
                                       R.N.LADDHA, JJ.

DATE : 15th December 2021

Oral Judgment (Per R.D. DHANUKA, J.) :-

. By this petition filed under Article 226 of the Constitution of

India, the petitioner seeks a writ of mandamus against the respondent

no.3 to withdraw and/or cancel the show cause notice dated 25 th

October 2021 and seeks to impugn the order dated 29 th November

2021 passed by the respondent no.3 granting extension of approval to

the petitioner for M.Arch. Course reducing the intake to 0 for academic

year 2021-22 and to grant extension of approval to the petitioner for

the first year M.Arch. Course with intake of 20 for academic year

2021-22.

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2. In view of the urgency of the matter, learned senior counsel

appearing for the petitioner and for the respondent no.3 addressed this

Court on the interim reliefs in the writ petition. We have also heard

Mr.Patwardhan, learned counsel for the respondent no.3 while hearing

the prayer for interim relief.

3. It is the case of the petitioner that the petitioner is an

Architecture College imparting education in various fields in and

around Nashik as also outside Nashik gradually. The petitioner College

was established in the year 1994 wherein B.Arch. Course was started.

In the year 2011-12, the petitioner College started conducting course

for Master of Architecture (M.Arch.). Since 2011-12, the petitioner had

been granted permission by the respondent no.3 council to permit 20

students for the said M.Arch. Course. The said permission is continued

all throughout till the academic year 2017-18. In the year 2017-18, the

respondent no.3 proposed to reduce intake capacity from 20 students to

0 student by issuing show cause notice. The said show cause notice was

impugned by the petitioner by filing a Writ Petition bearing No.8468 of

2018 in this Court.

4. By judgment dated 6th August 2018 delivered by the

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Division Bench of this Court, the said show cause notice issued by the

respondent no.3 for the academic year 2018-19 came to be quashed and

set aside. The judgment of the Division Bench of this Court is not

impugned by the respondent no.3 or by the other respondents before the

Hon'ble Supreme Court of India.

5. Mr.Jahagirdar, learned senior counsel for the petitioner

invited our attention to various documents annexed to the petition and

would submit that since 2011 onwards, the petitioner was granted

permission to admit 20 students in the said M.Arch. Course on year to

year basis. Only for the first time, a show cause notice was issued for the

academic year 2018-19 on the ground similar to the ground raised in

the impugned show cause notice which is the subject matter of this

petition. The said show cause notice came to be quashed and set aside by

this Court. He submits that the impugned show cause notice issued on

similar ground is totally without jurisdiction.

6. It is submitted that though there was detailed reply given to

the show cause notice by the petitioner, the respondent no.3 in the

impugned order dated 29th November 2021 did not consider any of the

explanation given by the petitioner to the show cause notice and passed

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cyclostyle order which is replica of show cause notice issued by the

respondent no.3 on 27th June 2018.

7. It is submitted by the learned senior counsel that the show

cause notice issued by the competent authority itself was without

jurisdiction. The competent authority has no jurisdiction to issue any

such show cause notice. Consequently, the order passed by the competent

authority on 29th November 2021 for the academic year 2021-22 is also

without jurisdiction. In support of this submission, learned senior counsel

invited our attention to Section 10 of the Architects Act, 1972 (for short

"the said Act") and would submit that the decision, if any, could have

been taken by the Executive Committee and not by the competent

authority.

8. It is submitted by the learned senior counsel that the

respondent no.3 in the affidavit-in-reply has sought to rely upon

"Minimum Standards of Architectural Education Guidelines for Post-

Graduate Programme 2006" and also Section 21 of the said Act. He

submits that the norms of 2006 relied upon by the respondent no.3 for

the first time in the affidavit-in-reply were never notified to the

petitioner and not even in the show cause notice.

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9. Learned senior counsel also placed reliance on "(Minimum

Standards of Architectural Education) Regulations 2020" and would

submit that the norms proposed to be relied upon by the respondent

no.3, if any, could be issued only by exercising powers under Section

45 of the said Act and not under Section 21. He submits that in any

event, since there was no reference to the said norms of 2006 in the

show cause notice issued to the petitioner or in the Extension of

Approval granted from time to time, no reliance thereof could be placed

by the respondent no.3.

10. Learned senior counsel submits that the show cause notice

which is the subject matter of this petition is replica of show cause notice

issued on 27th June 2018 alleging similar deficiencies which show cause

notice has already been quashed and set aside by this Court in the earlier

round of litigation. The respondent no.3 not having impugned the said

judgment thus cannot be allowed to issue similar notice unless there are

fresh deficiencies according to the respondent no.3. He relied upon

paragraphs 25 to 27 of the judgment in the said Writ Petition No.8468 of

2020. Learned senior counsel relied upon the result of 20 students who

appeared for the said M.Arch. Course from 2011 onwards and would

submit that the result of the students passed was almost 100%. There is

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thus no substance in the alleged deficiencies pointed out by the

respondent no.3 in the show cause notice and thereafter in the impugned

order. None of the deficiencies alleged by the respondent no.3 would

relate to the quality of education except serial no.1 about numbers of

Professors.

11. It is submitted that since no numbers of Professors are not

prescribed under the Regulations which could be framed under Section

45 of the said Act, no order reducing intake capacity from 20 students

could have been passed on that basis. He submits that the petitioner had

already demonstrated that even if few staff members were shared

between M.Arch. Course and B.Arch. Course, both conducted by the

petitioner, there was no impact on the quality of education imparted by

the petitioner. It is submitted by the learned senior counsel that in this

case, show cause notice was issued by the competent authority on behalf

of the Executive Committee. The impugned order is not passed by the

Executive Committee.

12. Mr.Nath, learned senior counsel for the respondent no.3, on

the other hand, relied upon the definition of recognised qualifications

under Sections 2(d) and on Sections 7, 17, 21 and 45 of the said Act. He

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also placed reliance on Clause 2.8 of the 2006 norms and would submit

that the said norms framed by the respondent no.3 are framed under

Section 21 of the said Act and were placed on website since inception.

The petitioner was fully aware of those norms and had in fact partly

acted upon. The petitioner cannot be allowed to refuse to act upon the

norms of 2006. The said norms have binding force of law.

13. Learned senior counsel for the respondent no.3 placed

reliance on the judgment of the Supreme Court in case of Manohar

Lal Sharma Vs. Medical Council of India & Ors., (2013) 10 SCC 60

and in particular paragraphs 25 to 27 thereof and would submit that the

deficiencies were pointed out in the show cause notice which were

noticed by the experts who were appointed to take inspection of

infrastructure, facilities, faculty and clinical material etc. of the petitioner.

This Court has no power to interfere with the findings recorded in the

impugned order based on the report submitted by the Experts. He submits

that there are no allegations of bias or mala fide attributed against the

Expert Committee or against the respondent no.3 Council.

14. Learned senior counsel placed reliance on the judgment of

the Hon'ble Supreme Court in case of Medical Council of India Vs.

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Kalinga Institute of Medical Sciences (KIMS) & Ors. (2016) 11 SCC

530 in support of the submission that since the petitioner has failed to

demonstrate any jurisdictional error, perversity or illegality in the show

cause notice as well as in the impugned order, this Court cannot interfere

with the impugned show cause notice or impugned order under Article

226 of the Constitution of India.

15. It is submitted by the learned senior counsel that most of the

faculties appointed by the petitioner are shared between M.Arch. Course

and B.Arch. Course. There is no challenge to the factual findings

rendered by the respondent no.3 in the impugned order. He submits that

though the show cause notice was issued by the competent authority, the

order passed by the competent authority was ratified by the Executive

Committee and thus the said action was not without jurisdiction as

sought to be canvassed by the petitioner.

16. In so far as the judgment of the Division Bench of this Court

relied upon by the learned senior counsel for the petitioner is concerned,

learned senior counsel invited our attention to paragraph 28 of the said

judgment and would submit that 2006 norms which are relied upon by the

respondent no.3 were not brought to the notice of this Court in Writ

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Petition No.8468 of 2018. He submits that in any event, paragraph 28

of the said judgment, this Court made it clear that the said order should

not be construed as taking away any of the powers of the Council to

prescribe a teaching faculty or to revise its norms or to cause an

inspection in the working of the petitioner-institution. Far from

directing that the intake capacity shall be maintained for all academic

years to come, this Court clarified that in the subsequent year, the

Council is free to take such steps as are provided by law, including

modifying its own Regulations. He submits that though the said Writ

Petition No.8468 of 2018 filed by the petitioner impugning the show

cause notice for the academic year 2018-19 was allowed, the respondent

no.3 is not precluded from taking further action in accordance with

law for the subsequent academic years.

17. Mr.Jahagirdar, learned senior counsel for the petitioner in

rejoinder distinguished the judgment relied upon by the learned senior

counsel for the respondent no.3 on the ground that in the judgments of the

Hon'ble Supreme Court, final action was taken by the Central

Government and not by the Medical Council whereas in this case, final

action by reducing intake capacity from 20 students has been taken by

the so called competent authority and not by the Council.

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18. Learned senior counsel for the petitioner submits that if the

petitioner is not granted interim relief and if not allowed to admit these

20 students, Institution which is being run for last 10 years would be

closed which would not only jeopardize the interest of the petitioner but

also the interest of the Students admitted to the said M.Arch. Course in

the College run by the petitioner.

19. Learned senior counsel also strongly placed reliance on the

judgment of the Delhi High Court in case of Institute of Town

Planners , India Vs. Council of Ure & Ors., decided on 4th January

2012 in Writ Petition (C) No.8653 of 2008 and would submit that the

Delhi High Court after considering the said norms of 2006 has held that

Council is not empowered to take any steps/action itself. Section 21 of

the Architects Act, while empowering it to provide minimum standards,

limits the said power to recognized qualifications only and non other. It is

submitted that in the schedule to the Architects Act, 1972, the said Course

is not included. No such norms of 2006 thus could be issued by the

respondent no.3.

20. A perusal of the record prima facie indicates that since

2011-12, the petitioner has been granted permission to admit 20

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students. The said permission is continued till academic year 2018-19

when show cause notice came to be issued for the first time by the

respondent no.3 alleging certain deficiencies. The said show cause

notice was impugned by the petitioner by filing a writ petition before this

Court. This Court after considering the submissions of both the parties

delivered the judgment on 6th August 2018 thereby quashing and setting

aside the said show cause notice.

21. A perusal of the said judgment indicates that this Court has

considered the norms and particularly in relation to the teaching faculty

in paragraph 25 of the said judgment and has observed that the intake

capacity with 20 students was maintained on the footing that on

inspection the petitioner-college had been found to have a teaching

faculty of 1 Professor, 1 Assistant Professor and 2 Lecturers/Research

Assistants for each post-graduate course. The Institution shall have a

faculty in the student ratio of 1:5 and the institution may have a

maximum of 50% of its teachers as visiting faculty. This has not

changed. This Court observed that neither teaching faculty norms have

undergone any change nor such communication from the Council refers

to any deficiency or shortfall.

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22. This Court observed that if the deficiency is of faculty,

then, that is indeed serious and may have a bearing on the intake capacity

or a nexus with it. However, the faculty is said to be deficient as the

institution/college has one Associate Professor less. However, the

teaching faculty norms have remained unchanged throughout. They do

not speak of any Associate Professor. They do not speak of anything other

than 1 Professor, 1 Associate Professor and 2 Lecturers/Research

Assistants for each post-graduate course. That would suffice for achieving

the ratio of faculty student, namely, 1:5. This post of Associate Professor

is nowhere to be found in the norms.

23. This Court accordingly held that there could not have been a

prescription now referred for the first time of Associate Professor being

less, for that was never the norm. This Court also clearly held that show

cause notice had travelled beyond those norms and advice by the Council

itself. The arbitrariness in the action is apparent because without realising

the repercussions of issuance of show cause notice, the Council is now

saying it does not want to take any arbitrary action. This Court took

cognizance of the fact that if the petitioner would not be allowed to

admit any student in the Masters Degree Course and all preparations,

including the faculty in place would then be completely useless. They

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would have to sit idle. Even the infrastructural facilities would be un-

utilised or under-utilised. This is surely not the intent while conferring the

status of a highest academic body under an Act of the Parliament in the

Council. The Council also is expected to act responsibly and not bring

about a situation when it invites private participation but such private

bodies are forced to close down or abandon the course midway.

24. This Court did not see how with no intake capacity in the

year in question can the petitioner afford to continue to impart studies to

the existing students. Thus, the M. Arch. students would also suffer for

there would not be any additional fees received in the academic year in

question. There would not only be a financial imbalance but some of the

teachers exclusively meant for teaching the post-graduate courses would

have to rest content with taking the classes for the students earlier

admitted in the two year course. This Court accordingly was pleased to

quash and set aside the said show cause notice and directed that the

petitioner's intake capacity ought to be maintained at 20 students for the

Academic Year 2018-19. It is not disputed by the learned senior counsel

for the respondent no.3 that the judgment quashing the said show cause

notice issued to the petitioner for the academic year 2018-19 has attained

finality.

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25. On comparison of the show cause notice dated 25th October

2021 with show cause notice issued by the respondent no.3 for the

academic year 2018-19, it is clear that the alleged deficiencies pointed

out are by and large some. In the impugned order passed by the

competent authority, the explanation given by the petitioner to the show

cause notice has not been dealt with. We do not find any such document

showing on record that the impugned action/decision on the part of the

competent authority was ratified by the Executive Committee.

26. In so far as the 2006 norms sought to be relied upon in the

affidavit-in-reply by the respondent no.3 is concerned, it is not in

dispute that the respondent no.3 has already issued regulations by

invoking the provisions of Section 45 of the said Act i.e. (Minimum

Standards of Architectural Education) Regulations 2020. Learned senior

counsel for the respondent no.3 across the bar stated that the regulations

2020 are applicable to B.Arch. Course and not M.Arch. Course.

Similar regulations are not issued in respect of M.Arch. Course. In our

view, the competence of the respondent no.3 to issue the said 2006

norms has already been decided by the Delhi High Court wherein it has

been clearly held that the respondent no.3 Council herein is not

empowered to prescribe minimum standards of architectural education for

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recognized qualification not mentioned in the Schedule of the Act. We are

in respectful agreement with the views expressed by the Delhi High

Court in case of Institute of Town Planners , India Vs. Council of Ure

& Ors. (supra). In our view, the said 2006 norms relied upon by the

respondent no.3 would not applicable to the M.Arch. Course.

27. Learned senior counsel for the respondent no.3 could not

dispute that the alleged deficiencies pointed out by the respondent no.3

for the academic year 2018-19 and 2021-22 are almost identical.

Learned senior counsel for the respondent no.3 also did not dispute that

despite all such alleged deficiencies pointed out by the respondent no.3

in the show cause notice and confirmed in the impugned order, in last

several years, the result of the students passing the said M.Arch. Course

is almost 100%. There was no impact on the education imparted to the

students because of alleged shortage of any lecturer.

28. In our prima facie view, the action initiated by the

respondent no.3 against the petitioners again by alleging similar

deficiencies which are considered and not accepted by this Court in the

earlier round of litigation, clearly indicates the continuous harassment

of the petitioner institution by the respondent no.3. This harassment is

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noticed by this Court even while passing the interim order while

considering the writ petition arising out of B.Arch.Course. Though the

respondent no.3 had proposed to reduce intake capacity of the

petitioner from 160 students to 120 students in the show cause notice,

on the website, the said capacity was shown as 0. This Court has made

strong observations against the respondent no.3 in our earlier interim

order. On the last date, Mr. Patwardhan, learned counsel for the

respondent no.5 pointed out that there are numbers of students who have

opted for M.Arch. Course in the petitioner College.

29. This Court has heard the learned senior counsel for the

parties at length on the interim relief. In our view, the petitioner has

made out a case for grant of interim relief.

30. We accordingly pass the following order :-

(i) There shall be interim relief in terms of prayer clause (e-1).

(ii) In so far as the prayer clause (f-1) is concerned, we direct the respondent nos.2, 3 and 5 to display the intake capacity of 20 students against the name of the petitioner college for the first year M.Arch for the academic year 2021-22 and to permit the petitioner to admit 20 students in the Centralized Admission Process (CAP) for admission to the first year M.Arch. Course for the academic year 2021-22.

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(iii) It is however, made it clear that admission of these 20 students would be subject to the further orders as may be passed in this petition.

(iv) The respondent no.5 shall indicate the operative part of this order on its website immediately.

(v) The parties to act on the authenticated copy of this order.

(vi) Place this writ petition on board along with Writ Petition No.7750 of 2021 for hearing and final disposal on 21st January 2022.

                R.N.LADDHA, J                 R.D. DHANUKA, J.