Rachna Sansad College Of Applied ... vs All India Council For Technical ...
2021 Latest Caselaw 15193 Bom

              KVM




                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           ORDINARY ORIGINAL CIVIL JURISDICTION
          Digitally signed by
KANCHAN
                                   WRIT PETITION NO.2122 OF 2016
          KANCHAN VINOD
VINOD     MAYEKAR
          Date: 2021.10.22
MAYEKAR   13:20:51 +0530


              1.       Rachna Sansad College of
                       Applied Art & Craft, through its
                       Director, Mr. Uday D. Chande
                       5th Floor, 278, Shankar Ghanekar Marg,
                       Prabhadevi, Mumbai - 400 025.

              2.       Rachna Sansad Trust
                       A Public Charitable Trust
                       Through its Trustee, Mr. Uday D. Chande,
                       4th Floor, 278, Shankar Ghanekar Marg,
                       Prabhadevi, Mumbai - 400 025.                     ... Petitioners

                                      Versus

              1.          All India Council for Technical Education,
                          Through its Member Secretary having its office
                          At 7th Floor, Chanderlok Building, Janpath,
                          New Delhi - 110001 and also through the
                          Regional Director, Western Regional Office at
                          2nd Floor, Industrial Assurance Building,
                          Veer Nariman Road, Opp. Churchgate Rly. Station,
                          Mumbai - 400 020.

              2.          Directorate of Art
                          J. J. School of Applied Art
                          Dr. D. N. Road, Mumbai - 400 001.

              3.          The Commissioner & Competent Authority
                          State CET Cell, 305, 3rd Floor, Govt. Polytechnic
                          Building, 49, Kherwadi, Ali Yawar Jung Marg,
                          Bandra (East), Mumbai - 400 051.

              4.          The Directorate of Technical Education,
                          Through its Secretary, Government of
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                                    2
                                                            WP 2122.2016.doc
      Maharashtra, 3, Mahapalika Marg,
      Dhobi Talao, Mumbai - 400 001.

5.    State of Maharashtra
      The Department of Higher & Technical
      Education, Through the Government
      Pleader, PWD Building, Fort,
      Mumbai - 400 023.

6.    University of Mumbai
      Fort, Mumbai - 400 001.                           ... Respondents

Mr.S.C.Naidu, a/w. Mr.Manoj Gujar, Mr.Pradeep Kumar, Ms.Divya
Yajurvedi, Mr.Sudesh Kumar Naidu, Mr.T.R.Yadav for the Petitioners.

Mr.Abhijeet A.Joshi, a/w. Ms.Varsha Sawant, Mr.Swapnil Jadhav for
the Respondent no.1.

Mr.Hemant Haryan, Assistant Government Pleader for the State -
Respondent nos. 4 and 5.

Mr.Rui A.Rodrigues for the Respondent no.6.

                       CORAM: R. D. DHANUKA AND
                              ABHAY AHUJA, JJ.

RESERVED ON : 8th OCTOBER, 2021 PRONOUNCED ON : 22nd OCTOBER, 2021

JUDGMENT (Per R.D.Dhanuka, J.) :-

Rule. Mr.Abhijeet Joshi, learned counsel for the respondent no.1

waives service. Mr.Hemant Haryan, Assistant Government Pleader

waives service for the respondent nos. 4 and 5. By consent of parties,

the petition is heard finally. Some of the relevant facts for the purpose KVM

WP 2122.2016.doc of deciding this writ petition are as under :-

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

of India, the petitioners have impugned the order 8 th April, 2016

rejecting the request of the petitioners for change of location without

hearing the petitioners and an order dated 30th April, 2016 passed by

the Director, Approval of All India Council for Technical Education

placing he petitioners under 'No Admission'. The petitioners have also

prayed for an order and direction against the respondent no.1 to grant

extension of approval for the academic year 2016-2017 and to upload

the name of the petitioner no.1 for the Centralized Admission Process

and to allow to participate in CAP round and Institutional Quota

Admission Procedure for the academic year 2016-2017 in respect of

B.A.F. (Applied Art) courses conducted by the petitioners in its college

and for other reliefs.

3. On 4th August, 2000, the petitioner no.1 college was granted

approval by the State Government through Director of Technical

Education for establishing a college of Applied Arts and Craft and offer

4 years B.F.A. Degree course with approved intake of 60 students per KVM

WP 2122.2016.doc academic year.

4. On 8th August, 2001, the petitioner no.1 was granted First Time

Approval by the respondent no.1 for the academic year 2001-02 which

was extended for each subsequent academic year 2015-16. On 9 th

August, 2001, the petitioner no.1 college was granted First Time

Affiliation by Mumbai University for the said course. It is the case of

the petitioner that the only other college imparting 4 years B.F.A.

(Applied Art) Degree Course in Mumbai is Sir J.J.School of Arts with

intake capacity of 100 students per academic year. Combined intake

capacity of both colleges is 160 students per academic year. Minimum

750 students apply for B.F.A.- 4 Years Degree Course.

5. All colleges of Applied Art are registered with the Directorate of

Arts, Maharashtra State. The Directorate of Arts is the Competent

Authority for conducting Common Entrance Test and admission to 4

years Full Time Degree Course B.F.A. (Applied Arts). The admission

Regulating Authority, constituted under section 7 of the Maharashtra

Unaided Private Professional Educational Institutions (Regulation of

Admission and Fees) Act, 2015 admits students to those course as per KVM

WP 2122.2016.doc inter-se merit.

6. On 10th February, 2016, the petitioner no.1 filed online

applications for two separate approvals i.e. (i) Extension of Approval

for B.F.A. for 2016-17 and (ii) change of location/site. The petitioners

paid separate fees aggregating to Rs. 4 lacs towards the same. On 8 th

May, 2016, the respondent no.1 rejected the application for change of

location/site. On 30th April, 2016, the respondent no.1 rejected the

application for Extension of Approval for academic year 2016-17 and

placed the petitioners in the 'No Admission' category. The Standing

Appellate Committee by order dated 30th April, 2016 affirmed the

decision of the respondent no.1 for non-issuance of Extension of

Approval for the academic year 2016-17. Being aggrieved by the said

two orders, the petitioners filed this writ petition.

7. On 1st June, 2016, a Division Bench of this Court granted ad-

interim relief in terms of prayer clauses (b) and (c) thereby staying the

operation of the said impugned order dated 30th April, 2016 which were

seeking stay of the order dated 30th April, 2016 and to direct the

respondent no.1 to grant Extension of Approval for the academic year KVM

WP 2122.2016.doc 2016-17 for the full intake and to upload the name of the petitioners for

the Centralized Admission Process Procedure for the full intake of

students which was granted by the respondent no.1 for the academic

year 2015-16 and for allowing the petitioners to participate in the CAP

round in the said academic year.

8. Being aggrieved by the said ad-interim order passed by this

Court, the respondent no.1 preferred Special Leave Petition bearing no.

22082 of 2016 before the Hon'ble Supreme Court. By an order dated

14th December, 2016, the Hon'ble Supreme Court was pleased to set

aside the ad-interim order passed by this Court on 1st June, 2016 and

directed this Court to consider the matter on its own merit and to

dispose of the matter in accordance with law. The Hon'ble Supreme

Court left it to this Court to make alternative arrangements for the

students if possible. The respondent no.1 thereafter filed affidavit in

reply. The petitioners filed affidavit affirmed on 7th July, 2017 and

placed various facts and documents on record.

9. Mr.Naidu, learned counsel for the petitioners invited our

attention to various documents annexed to the petition including the KVM

WP 2122.2016.doc impugned order passed by the respondent no.1 and the Appellate

Authority and submits that the requirement of the land for setting up

the college for the Applied Arts and Craft was 0.5 acres when the

petitioner no.1 institute came to be established. The petitioners had

pointed out that the petitioners had purchased an existing educational

institution (Trinity Academy at Kurla). The said land was owned by

the Trinity Academy comprising of a building of ground + mezzanine +

first floor encompassing 2175 sq.mtrs. already erected and available.

The petitioner submitted that it had proposed to shift the petitioner no.1

college to the said location at Kurla with effect from academic year

2015-16 and rendered an undertaking to that effect.

10. It is submitted by the learned counsel that the Director Approval

Bureau vide his letter dated 31st December, 2015 recorded that the

Committee did not recommend any action considering that the

institution was proposing to shift to a new site but made it clear that if

the institute would not apply for shifting of their college to a new site,

EVC shall be conducted for grant of approval for the academic year

2016-2017.

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WP 2122.2016.doc

11. It is submitted by the learned counsel that since the respondent

no.1 did not consider the proposal of the petitioner on the ground that

the registered Conveyance Deed of the property at Kurla ought to be

filed along with the original property card, the petitioners were directed

to apply for change of site/location in the following academic year.

12. It is submitted that on 20th January, 2016, the respondent no.1

had published in newspapers inviting application for different types of

approvals commencing from 22nd January, 2016 till 21st February, 2016.

The respondent no.1 rejected the request of change of location on 8 th

April, 2016 without granting any hearing to the petitioner. The

Standing Appellate Committee also rejected the application filed by the

petitioners.

13. It is the case of the learned counsel for the petitioners that

pursuant to the ad-interim order dated 1 st June, 2016 passed by this

Court, the Directorate of Arts included the name of the petitioner no.1

college as an eligible institute for admitting the students for Bachelor

of Fine Art (Applied Art) degree course for the academic year 2016-17

via CAP. The petitioners admitted 55 students via CAP to the First KVM

WP 2122.2016.doc Year Bachelor of Fine Arts for the academic year 2016-17. The

petitioners admitted 54, 54 and 53 students for the academic year 2017-

18, 2018-19 and 2019-20 respectively. Out of the 55 students who

were admitted for the academic year 2016-17, 54 students have

passed . One student has left course during the said period.

14. It is submitted by the learned counsel that for the academic year

2017-18 and every subsequent academic years including the academic

year 2021-22, the Extension of Approval for conducting the four years

degree course of Bachelor of Fine Art (Applied Art) has been granted

by the respondent no.1 at the same venue i.e. 5th to 7th floor of the trust

building. He submits that the 'Academy of Architecture' and the

petitioner no.1 college though are situated in the same building, have

independent facilities on independent floors. The instructional,

administrative and circulation area of each college is separate,

independent and distinct. The only facilities which are shared between

the two institutions are canteen and auditorium. These areas are not

mandatory requirement area and as on date there is no sharing of

facilities.

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WP 2122.2016.doc

15. It is submitted by the learned counsel for the petitioners that

those alleged deficiencies pointed out by the respondent no.1 in the

impugned order are subsequently cured. In support of this submission,

learned counsel invited our attention to various documents annexed to

the writ petition showing that the deficiencies have been cured by the

petitioners. He submits that in view of the Extension of Approval

having been granted by the respondent no.1 itself for the academic year

2017-18 upto the 2021-22 for conducting four years degree course at

the same venue i.e. 5th to 7th floor of the trust building, the order passed

by the respondent no.1 and the Standing Appellate Committee has

become redundant for the academic year 2016-17. Those students

admitted pursuant to the ad-interim order passed by this Court in the

academic year 2016-17 have already passed from the said course and

have been conferred with the degree by the University of Mumbai.

16. During the course of the arguments, this Court invited the

attention of the learned counsel for the parties to the judgment of this

Court delivered on 5th October, 2021 in Writ Petition No. 11390 of

2017 filed by Motiwala Homeopathic Medical College & Hospital

and F.G.Motiwala P.G.Institute of Homeopathy and Research Centre KVM

WP 2122.2016.doc vs. Union of India and others. After perusing the said judgment,

Mr.Naidu, learned counsel for the petitioners urged that the said

judgment in case of Motiwala Homeopathic Medical College &

Hospital and F.G.Motiwala P.G.Institute of Homeopathy and

Research Centre (supra) applies to the facts of this case.

17. It is submitted by the learned counsel that the Architectural

Education does not come under the purview of AICTE. In support of

this submission, learned counsel placed reliance on the judgment of the

Hon'ble Supreme Court in case of All India Council for Technical

Education vs. Shri Prince Shivaji Maratha Boarding House's

College of Architecture and others, 2019 SCC OnLine SC 1445 and

more particularly paragraphs 9, 10, 67, 68, 70 and 71.

18. It is submitted by the learned counsel that since the rights were

accrued in favour of the petitioners on the basis of the requirement of

the land at 0.5 acres, the respondent no.1 could not have amended the

said requirement subsequently and could not have rejected the said

application for Extension of Approval on the ground of the petitioners

not having satisfied the amended requirement. He submits that the KVM

WP 2122.2016.doc condition of land requirement could not be changed with retrospective

effect. In support of this submission, learned counsel placed reliance

on the judgment of the Hon'ble Supreme Court in case of Ferrodous

Estates (Pvt) Ltd. vs. P.Gopirathnam (Dead) and others, 2020 SCC

OnLine SC 825 and in particular paragraphs 32 to 39. He submits that

the new law comes in operation with prospective effect and not

retrospective in its operation.

19. Mr.Joshi, learned counsel for the respondent no.1 on the other

hand strongly placed reliance on the order passed by the Hon'ble

Supreme Court on 14th December, 2016 thereby setting aside ad-

interim order granted by this Court on 1st June, 2016 in this writ

petition and directing this Court to consider the matter on its own

merits and to dispose of in accordance with law. He submits that

though the said ad-interim order was vacated by the Hon'ble Supreme

Court, the petitioners continued to grant admission to the students. He

submits that the Director of Technical Education had no power to admit

any students in the petitioners college after order of this Court granting

ad-interim relief admittedly having been set aside by the Hon'ble

Supreme Court. He submits that when the condition for eligibility to KVM

WP 2122.2016.doc have plot of land was modified from 0.5 acre to 0.75 acres, no

objection was raised by the petitioners.

20. It is submitted by the learned counsel that the petitioners have

cured the deficiencies pointed out in the impugned order subsequently.

It is lastly submitted that for the academic year 2020-21, the extension

of approval has been granted with 10% reduction of seats i.e. from 60

to 54.

REASONS AND CONCLUSIONS

21. It is not in dispute that the petitioners had applied for permission

to shift on 10th February, 2016 to the building at Kurla and had also

applied for Extension of Approval for the academic year 2016-17. The

respondent no.1 rejected the application for change of location/site by

order dated 8th May, 2016. The petitioners thus continued both the

courses in the same building. The respondent nos. 2 and 3 continued to

grant Extension of Approval for the subsequent academic years i.e.

2017-18 to 2021-22 without insisting the petitioners to remove the

alleged deficiencies for the academic year 2016-17. It is not disputed

by the respondent nos. 2 and 3 that the petitioners have subsequently

removed the deficiencies pointed out by the respondent nos. 2 and 3 in KVM

WP 2122.2016.doc the impugned order. It is also not disputed by the respondent nos. 2

and 3 that the petitioners have been issued the Extension of Approval

for the subsequent years by the respondent nos. 2 and 3 and various

students have been admitted by the petitioners pursuant to those

Extension of Approval for subsequent academic years.

22. This Court in case of Motiwala Homeopathic Medical College

& Hospital and F.G.Motiwala P.G.Institute of Homeopathy and

Research Centre (supra) has considered identical facts wherein the

permission was refused for the particular academic year on the ground

of deficiencies however was granted Extension of Approval for

subsequent years without calling upon the petitioners to cure the

deficiencies pointed out in the impugned order therein. This Court

considered the similar facts and after adverting to the judgment

delivered by the another Division Bench this Court in case of Kaka

Saheb Mhaske vs. Union of India & Others in Writ Petition No.11666

of 2016 held that if the AICTE would not have been satisfied that the

conditions pressed in the impugned order and deficiencies pointed out

therein were not cured out, the AICTE would not have given Extension

of Approval for the subsequent years.

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WP 2122.2016.doc

23. This Court accordingly held that the conditions imposed in the

impugned order rejecting the application on the ground of deficiencies

became redundant. In view of the subsequent permissions granted by

the respondent nos. 1 and 2 and condoning the alleged deficiencies

pointed out in the impugned order, this Court was pleased to quash and

set aside the impugned order therein and to direct the respondent to

grant permission. In our view, judgment of this Court in case of

Motiwala Homeopathic Medical College & Hospital and

F.G.Motiwala P.G.Institute of Homeopathy and Research Centre

(supra) squarely applies to the facts of this case. We do not propose to

take a different view in the matter.

24. We accordingly pass the following order :-

(a) Writ petition is made absolute in terms of prayer

clauses (a) (i) and (ii). The prayer clauses (a)(iii) and

(iv) have become infructuous in view of the admissions

already granted to the students for the academic

sessions 2016-17 and for subsequent academic years.

(b) The respondent nos. 1 shall pass an order for KVM

WP 2122.2016.doc Extension of Approval to the petitioners for academic

year 2016-17 for the students admitted in the said

academic year within four weeks from today.

(c) Rule is made absolute accordingly. No order as to

costs.

(d) The parties to act on the authenticated copy of this

order.

[ABHAY AHUJA, J.]                          [R.D.DHANUKA, J.]