Delhi High Court
Bsa College Of Engg. & Technology vs All India Council For Technical ... on 1 May, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved: 28.04.2017
Judgment Pronounced: 01.05.2017
+ W.P.(C) 3415/2017 & CM No.14926/2017
BSA COLLEGE OF ENGG. & TECHNOLOGY ..... Petitioner
Through: Mr.Sameer Rohtagi with Mr.Alok
Sangwan, Advs.
Versus
ALL INDIA COUNCIL FOR TECHNICAL
EDUCATION & ORS ...... Respondents
Through: Mr.Anil Soni, CGSC with
Ms.Priyanka Singh, Advs. for
AICTE.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
GITA MITTAL, J.
1. BSA College of Engineering and Technology, the petitioner herein, a
registered society under the Societies Registration Act, 1860 vide W.P.(C)
No.3415/2017 seeks inter alia a writ of certiorari of quashing of the
impugned letter of rejection dated 08.04.2017 and of the Standing Appellate
Committee report of the All India Council for Technical Education
(hereinafter referred to as 'AICTE') arrayed as the respondent No.1 whereby
the issuance of the grant of letter of intent for starting a new polytechnic
college on 1.5 acres of land leased with the approval of the governing body
of Shri Agrawal Shiksha Mandal Society (Registered) Mathura, Uttar
Pradesh registered at the Sub-Registrar's Office, Mathura, in its favour for a
period of 30 years with effect from 14.09.1997 vide registered lease deed
dated 20.12.2001, was rejected.
2. The petitioner also lays a challenge to the Appellate Proceedings
dated 18.04.2017 rejecting the appellant's appeal against the order dated
08.04.2017. As per the writ petition, the only objective and ground for
rejection of the application as well as the appellant's appeal in the impugned
orders is that the appellant's document of right and title on the subject land
was that "documents shown reflect that it is a private lease, hence not
accepted.".
3. In the year, 1997, Shri Agrawal Shiksha Mandal Society, after taking
due approvals and permissions from the AICTE, the BSA (PG) Degree
College established. Extension of approval as per the applicable Rules and
Regulations has been granted to the said institute each year.
4. Out of 28.86 acres of land owned by BSA(PG) Degree College under
the aegis of Shri Agarwal Shiksha Mandal Society, 11.05 acres referred to
hereinabove was leased in favour of the petitioner w.e.f. 14.09.1997 vide
registered lease deed dated 20.12.2001 at the Sub-Registrar's Office,
Mathura. On 11.07.2015, the Governing Board of the petitioner vide its
resolution decided that the petitioner shall apply to the AICTE for approval
to start the ASM Polytechnic, Mathura to offer technical education in
diploma in engineering and allocated 1.5 acres of land situated in Survey
Nos.1505, 1506, 1508, 1509, 1514, 1516 and 1517 for the said purpose. A
resolution was passed to allocate funds for procurement of equipment,
furniture and other required materials. The Registrar Societies, Uttar
Pradesh renewed the registration of the petitioner's institute on 21.08.2015
for a period of five years from the date of issuance of the certificate.
5. In January, 2016, the petitioner applied to the AICTE, a statutory
authority constituted under the All India Council for Technical
Education ACT, 1987 (which enactment was published in the Official
Gazette vide Notification No.S.O. 317(E) dated 28.03.1988 for proper
planning and coordinated development of the technical education system
throughout the country, for starting new polytechnic colleges after
completing the building and other works).
6. The petitioner was called by the Standing Committee of the AICTE
on 12.04.2016 and again by the respondents on 18.04.2016. The Re-
Scrutiny Committee uploaded a report on 19.04.2016 pointing out the only
objection that the certificate of the Sub-Divisional Magistrate had not been
presented by the petitioner. In response, the petitioner sent a detailed e-mail
dated 20.04.2016 informing that it had already submitted the relevant
documents before the Standing Appellate Committee on 12.04.2016.
7. The application NO.1-2854879151 filed by the petitioner, however,
was rejected by the Member Secretary, AICTE on 30.04.2016 stating that
the certificate before the Sub-Divisional Magistrate or Collector or Tehsildar
in original had not been presented by the petitioner. The petitioner submits
that this rejection letter was given on 30.04.2016, which was the last date of
processing of applications for new institutions. Thus the petitioner had no
occasion to file any appeal to challenge the aforesaid decision before the
appropriate forum in the last year, i.e., 2016.
8. The respondent No.1, i.e., AICTE vide its Notification dated
30.11.2016 in the Gazette of India published the "All India Council for
Technical Education (Grant of Approvals for Technical Institutions)
Regulations, 2016" ("Regulations 2016" hereafter) and issued an "Approval
Process Handbook for the Academic Year 2017-18" ("Handbook 2017-18"
hereafter). Consequently, the petitioner made a fresh application for start of
a new polytechnic college on 10.01.2017 for the Academic Year 2017-18.
The requisite resolution dated 31.12.2017 was passed by the petitioner in
terms of the format prescribed by the AICTE allocating 1.5 acres of land for
a new polytechnic college named ASM Polytechnic, BSA Engineering
College and Technology at Mathura.
9. The Chartered Accountant of the petitioner issued a certificate dated
27.02.2017 specifically mentioning that the total investment in building
construction of the polytechnic college made by the petitioner during the
period 19.12.2015 till 27.02.2017 is Rs.8,60,67,186/-.
10. Upon a scrutiny of the application and enclosures, vide report dated
01.03.2017 of the Scrutiny Committee of the AICTE, it was pointed out by
the respondents that there was some error in the map and the same should be
rectified. A perusal of Annexure P-9 placed at Pg.8 of the report of the
Scrutiny Committee of the respondent No.1 dated 01.03.2017 mentions vide
Table-F in the original documents verification by the Architect that the only
reason for the application of the petitioner having not been accepted was that
the name of the institute was not mentioned in the site plan application
whereas it was mentioned as an existing girls hostel. It is submitted by
Mr.Sameer Rohtagi, learned counsel for the petitioner that apart from the
above discrepancies in the map, all other documents of the petitioner were
found to be in order. No other objection was pointed out.
11. The petitioner was again called on 10.03.2017 before the Re-Scrutiny
Committee after making the necessary correction in the map and everything
was found in order by the respondents. The Re-Scrutiny Committee,
therefore, recommended the visit of the Expert Visit Committee (EVC) of
the AICTE for a physical inspection and verification of the petitioner's
polytechnic college.
12. The EVC constituted by the AICTE comprising of three experts
of the AICTE physically inspected the institute and examined its
documents on 19.03.2017 and found no deficiencies at all.
13. It is essential to observe that it has been detailed in the format of
the report as follows:
"Recommended Summary (please tick one box)
Note: To recommend, experts shall tick one of the boxes below
Forward to RC Deficiencies Noted
Please tick this only if No Please tick this, if deficiencies
deficiencies are noted are noted."
14. The recommendation summary indicates that the forwarding to
the Regional Committee by the Expert Committee on its visit was to be
made only if there were no deficiencies found. The EVC thus
recommended the starting of the college after conducting the site
inspection.
15. The application of the petitioner was thereafter considered by the Sub-
Committee of the Regional Committee of the AICTE which submitted a
report dated 24.03.2017, a copy of which is placed at Annexure P-12. It is
manifest from this report that the Sub-Committee of the Regional
Committee had pointed out the following four deficiencies of-
(i) Language Laboratory;
(ii) Barrier free toilet;
(iii) Workshop not ready;
(iv) Stairs without railing.
16. On the basis of the said recommendations of the Sub-Committee of
the Regional Committee of the respondent No.1, the letter of rejection dated
08.04.2017 was issued but apart from the recommendations of the Sub-
Committee vide the rejection letter dated 08.04.2017, there was one more
deficiency pointed out, i.e., "Land not registered in the name of the
applicant; ownership of land is marked as lease". Vide the said letter of
rejection dated 08.04.2017, the petitioner was also apprised that it may, if it
so desired, submit an appeal for consideration by the Standing Appellate
Committee through portal on or before 11.04.2017.
17. The petitioner availed of this remedy by filing an appeal. We extract
hereunder the summation of the findings of the Standing Appellate
Committee in its order dated 18.04.2017 which reads as follows:
"Write this section in brief. Details may be submitted on
separate sheets with supporting documents duly signed by the
authorized signatory of the applicant organization.
S. RC/EC noted Observations and supporting
deficiencies proof verified by Standing
No. Appellate Committee to clear
the deficiencies
1. Language Presented
Laboratory- Not Accepted
accepted
2. Barrier free toilet - Presented
Not accepted Accepted
3. Workshop not Presented
ready - Not Accepted
accepted
4. Stairs without Presented
railing - Not Accepted
accepted
5. Land not registered Documents shown reflect
in the name of the that it is private lease hence
applicant; not accepted.
ownership of land is
marked as lease
Recommendations of the Standing Appellate Committee. Please
write one of the following and strike out whichever is not applicable:
Recommended to Rejected Scrutiny EVC
Council Recommended Recommended
x x X"
18. Thus the appeal was rejected by the Standing Appellate Committee on
14.04.2017 with the observations that the four deficiencies pointed out by
the Sub-Committee of the Regional Committee had been removed, but that
as "the document shown in relation to the land reflected that it was private
lease", hence the appeal was not accepted.
19. Being aggrieved by the letter of rejection dated 08.04.2017 and by the
decision of the Standing Appellate Committee dated 14.04.2017, the
petitioner thus filed the present writ petition, also challenging Regulation
6.1 of the All India Council for Technical Education (Grant of
Approvals for Technical Institutions) Regulations, 2016 (hereinafter
referred to as 'Regulations 2016') and Condition No.17 in Clause 16.1 of
Appendix 16 of the Approval Process Handbook, 2017-18 as being ultra
vires Article 14 of the Constitution of India.
20. Clause 6.1 of the Regulations 2016 reads as under:
"6.1 The Promoter Society/Trust/Company of a new Technical
Education Institution shall have the required land as mentioned in
Approval Process Handbook in its lawful possession with clear
title in the name of Promoter Society/Trust/Company on or
before the date of submission of application.
Further to that it shall be open for the Promoter
Society/Trust/Company to the proposed Institution to mortgage the
land after the receipt of letter of approval, only for raising the
resources for the purpose of development of the Technical Education
Institution situated on that land.
Further to that it shall be open for the Promoter
Society/Trust/Company of the existing Institution to run other
Educational Courses/Institutions (Technical/Non-Technical) in the
surplus land arising out of prevailing/reduced norms of land
requirement. However, such surplus land can be used as per the land
use certificate given to the Society/Trust/Company by the concerned
authority subject to such courses/institutions having their own
facilities to conduct such programmes without sharing the essential
facilities such as class room laboratory etc. with the already
approved Technical Institution. However, common amenities such
as canteen, auditorium, playground, parking, etc. may be shared
provided it caters to all the students of all the programmes."
(Emphasis supplied)
21. Condition 17 of Clause 16.1 of the Appendix 16 of the Approval
Process Handbook, 2017-18 of AICTE reads to the effect:
"17. Documents showing ownership of land in the name of the
applicant in the form of Registered Sale Deed/Irrevocable Gift Deed
(Registered)/Irrevocable Registered Government Lease (for a period
of minimum 30 years with at least 25 years of live lease at the time
of submission of application) by the concerned authority of
Government or any other documents issued by the concerned
competent Authority establishing the ownership and possession of
the land in the name of the applicant. In case, the land documents
are in vernacular language, notarized English translation of the
documents shall be produced."
22. The petitioner thus submits that though under the said Condition
No.17 in Clause 16.1 of the Appendix 16 of the Approval Process
Handbook, 2017-18 an irrevocable Government lease (for a period of
minimum 30 years with at least 25 years of live lease at the time of
submission of application) is sufficient for the purpose of establishment
of a technical institute, arbitrarily, unreasonably and without any
rational basis to the objective sought, a private lease is excluded from
the ambit of entitlement of Condition 17 in Clause 16.1 of the Appendix
16 of the Approval Process Handbook, 2017-18 for setting up a new
institution.
23. It has thus been submitted on behalf of the petitioner that there has
been an artificial differentiation created between an irrevocable Government
lease and an irrevocable private lease, which is thus liable to be struck down
on the touchstone of Article 14 of the Constitution of India and that the same
is an unreasonable restriction imposed on the petitioner's fundamental right
of trade under Article 19(1)(g) which is amenable to the test of reasonability
under Article 19(6) of the Constitution of India.
24. It is further submitted by the petitioner that the action of the
respondent-AICTE is in total contravention of the Regulations and the letter
of rejection dated 08.04.2017 and the report of the Standing Appellate
Committee dated 14.04.2017 rejecting the appeal of the petitioner suffers
from non-application of mind by the statutory authority which has acted
mechanically.
25. It was further submitted by the petitioner that the impugned letter of
rejection dated 08.04.2017 and the report of the Standing Appellate
Committee dated 14.04.2017 rejecting the case of the petitioner for grant of
Letter of Intent for starting a new polytechnic college, being a quasi-judicial
function in nature having civil consequences the AICTE should have
complied with the principles of natural justice for giving an effective
opportunity of hearing and of passing a reasoned order considering all
material aspects of the case, which was not done by the AICTE, the
respondent No.1.
26. The petitioner submits that AICTE has prescribed the Regulations
notified on 30.11.2016 called the All India Council for Technical
Education (Grant of Approvals for the Technical Institutions)
Regulations, 2016 which relates to grant of approval for starting new
Technical Institutions, introduction of courses or programmes and
increase/variations of intake capacity of seats for the courses or progammes,
extension or approval, regarding admissions under lateral entry in Degree
Engineering Programme for the existing Technical institutes, which provides
for procedures of approval for new technical institutions. The Regulations
2016 nowhere prescribe that the applicant for a new college must have
ownership of land registered in the name of the applicant by way of
registered sale deed only nor by an irrevocable Government lease. The
only presumption is lawful possession with clear title.
27. Mr. Sameer Rohtagi, ld. Counsel for the petitioner submits that it has
been running its Engineering College on the same land measuring 11.5 acres
falling in the municipal area of Mathura Vrindaban Development Authority
in the city of Mathura for the last 20 years. Out of the aforesaid total land of
11.5 acres of land, the applicant seeks to set up the new polytechnic college
on surplus 1.5 acres and the application has been wrongly rejected without
any valid reason by the respondents. The petitioner thus reiterates that it is
in possession of the 1.5 acres of land acquired by way of the registered lease
deed dated 20.12.2001 and that by the operation of law and that appellant is
in lawful possession of the land in question with clear title thereto. The
submission is that the AICTE has neither disputed the rights of the petitioner
on the said land under its lease nor possession by it.
28. The petitioner has further submitted that non-issuance of the letter of
intent will also cause an irrecoverable loss and injury to the petitioner who
has invested to the extent of Rs.9 Crores since year 2016 in creating the
requisite infrastructure for the start of the new polytechnic college and if the
letter of intent is not granted immediately, the petitioner would have to wait
for another year for no fault of his.
29. It has thus been prayed by the petitioner that a mandamus be issued to
the respondents to grant the letter of intent/letter of approval to the petitioner
for the Academic Year 2017-18 before the last date of issuance of letter of
approval by 30.04.2017.
30. Mr. Anil Soni, ld. Central Government Standing Counsel has placed
the objections taken by the respondents. Through its short counter affidavit
submitted on behalf of the All India Council for Technical Education by
Mr.Piyush Shukla, Assistant Director (Legal), AICTE, it is stated that as per
judgment in Civil Appeal No.9048/2012 titled Parshvanath Charitable
Trust vs. All India Council for Technical Education, (2013) 3 SCC 385,
the Supreme Court has set out the last date for giving approval as 30 th April
of each Academic Year beyond which the AICTE has not been authorized to
do any act. The respondent through its short counter affidavit further
submits that vide paragraph 8 therein in terms of Clause 9.8 of the Approval
Process Handbook, 2016-17, Chapter-I, it is stated as under:
"In case of rejection of the proposal, it shall be open for the
applicant to make a fresh application as stated in Chapter-I of
this handbook in the following year."
31. In order to explain the stipulation regarding possession of the
Government lease, Mr. Anil Soni, ld. CGSC draws our attention to the
counter affidavit dated 27.04.2017 of the respondent no.1 vide para 9, 10, 11
and 12 wherein it is further submitted that the purpose of irrevocable
Government lease for a minimum 30 years etc. is for consistency in the
running of the institute; so that possibility of fraudulent activity of any kind
is minimized; and that a private lease may be revoked for any reason which
would make the institute run into litigation jeopardizing the interest and
career of innocent students.
32. It has thus been submitted by the respondents through the short
counter affidavit dated 27.04.2017 that as a matter of policy for good and
smooth governance which is fair and beneficial to public at large, the
AICTE from 2006-07 has chosen not to allow institutes on temporary
locations, but asked to shift to approval permanent sites. Reference has also
been made through the counter affidavit vide para 13 thereof to Rule 8(4)(i)
of the National Council for Teacher Education (Recognition Norms and
Procedure) Regulations, 2009, which reads as under:
"No institution shall be granted recognition under these regulations
unless the institution or society sponsoring the institution is in
possession or required land on the date of application. The land free
from all encumbrances could be either on ownership basis or on
lease from Government or Government institutions for a period of
not less than thirty years, the State Government or Union territory
laws the maximum permissible lease period is less than thirty years,
the State Government or Union Territory administration law shall
prevail and in any case no building shall be taken on lease for
running any teacher training programme." To submit that the said
Regulations which have also been approved by the Supreme
Court have a clause not to permit teacher institutions on private
lease land. The AICTE has thus submitted that the present writ
petition is not maintainable being without any cause of action
and that the same is liable to be dismissed with costs."
33. We find that above aspects are not res integra and have been the
subject matter of challenge and consideration before this court many years
ago. Reliance was placed on behalf of the petitioner on the verdict of this
Court in Vibrant Institute of Technology vs. All India Council for
Technical Education & Ors. (2009) 162 DLT 652 which relates to aspects
and facts materially pari materia to the instant case. In the said case, the
very same respondent arrayed as the respondent No.1 herein had rejected the
case of the Vibrant Institute of Technology for establishing an institute was
rejected on a similar ground as at present. Vibrant's reliance on a settlement
deed for creating of title in land of the Trust was rejected on the ground that
the property settled with the Trust cannot be considered, as such mode of
Transfer of Property is not contemplated as per the Handbook of Approval
Process under which the property can be transferred to the Trust only by sale
deed, gift deed and lease deed for thirty years.
34. The observations made in paragraphs 25 to 33 in Vibrant Institute of
Technology (supra) are wholly relevant and germane for the instant case.
Para 30 of the said verdict categorically lays down that the contention of the
respondents (respondent No.1 therein is the same before us) that conveyance
deeds other than those stipulated in the handbook of the approved procedure
cannot be accepted, was without any legal basis.
35. Observations in the para 29 of the said verdict categorically lay down
that the Regulation 2006 clause III only contemplates the area which is
required by an institution for running an engineering/technology college and
does not contemplate the way the rights are to be acquired and that the
rights in the immovable property can be transferred or conveyed by
many modes as contemplated under the Transfer of Property Act and
that restricting the approval to only if title in the land was acquired by sale
deed/gift deed/irrevocable government lease deed for 30 years did not seem
to have any rationale. Paragraphs 25 to 33 of the said verdict of the learned
Single Bench of this Court are mentioned and are reproduced hereinbelow:-
"25. The other contention of the respondent is that in order to
consider the application of an institute for grant of affiliation,
for the purpose of ascertaining the rights of the Trust/Society
in the land, only three documents as detailed in the handbook
of approved process can be taken into consideration and any
other document, even if it is executed in accordance with the
provisions of Transfer of Property Act or some other
enactment and which is duly registered and properly stamped
in accordance with law, cannot be accepted. Learned Counsel
for the respondents has vehemently contended that the
regulations framed under All India Council for Technical
Education Act have been approved by the Supreme Court of
India and the decision taken under the regulation not to accept
any other document except three documents as detailed in the
handbook for approval process cannot be faulted. In Bharthiya
Vidyapeeth (supra) relied on by the respondents. Central
Government on the advice of University Grants Commission
had conferred the status of deemed university of Bharthiya
Vidyapeeth and the deemed university was allowed admission
to be made in the respective medical, engineering and dental
colleges under the stream of common entrance test conducted
by the State authorities till 1995- 1996 and thereafter they
decided to keep themselves outside the scope of the said
authority. The writ petitions were filed challenging the
admission rules to medical, engineering and dental colleges
whereby the colleges run by Bharthiya Vidyapeeth were
included in the admission proposed to be controlled by CET
authorities. The High Court after considering the petition had
dismissed the writ petition and in the appeal to the Supreme
Court, it was held that the regulations and guidelines subject
to which the deemed university status was granted would cover
all the relevant functions to be performed by the deemed
university including the matters which were sought to be
regulated by the State under the Act and Rules by including
deemed university within the definition of the term
'Educational Institution' and the order of the High Court was
set aside and the appeals filed in the Supreme Court were
allowed and the writ petition was allowed to the extent of
restraining the respondents to enforce their instructions for
brining the institutions of Bharthiya Vidyapeeth with the
stream of common entrance test examination. Apparently, the
case of the present respondents is distinguishable. Under the
regulations framed by the respondents, the only requirement
is the area of the land which is required for starting an
engineering college and the regulations do not specify in
what manner the rights in the land is to be acquired by the
institutions. Learned Counsel for the petitioner has also
argued that the handbook for approval process are merely
the guidelines which has been formulated by the respondents,
however, they do not acquire the same status as that of the
Regulations. Learned Counsel for the respondents is unable
to show that the handbook of approval process which are sort
of the guidelines will become the regulations or the
handbook for approval process has been approved in the
manner so as to become the regulations at par with
Regulations, 2006 of the respondents.
26. This cannot be disputed by the respondents that if the
properties are settled with the Trust at the time of creation of
the Trust by the founder trustee, the ownership of the
immovable property will vest with the Trust. This has also not
been disputed by the respondents that an institution run by a
Trust is entitled for affiliation from the respondents provided
such an institution meets the requirement for grant of
affiliation. Learned Counsel for the respondents has contended
that since under the Regulations, the respondents have the
power to carve out a procedure, they are within their rights to
accept some documents pertaining to lands executed under the
provisions of Transfer of Property Act and in accordance with
the provisions of Stamp Act and Registration Act and not to
accept other documents which though may be validly executed
but the same will not be acceptable to the respondents. To
buttress his point, it is contended that it is a policy matter and
the court should not interfere with such decisions taken by the
respondents. Learned Counsel for the respondents have also
contended that accepting some documents like sale deed, gift
deed, lease deed (30 years) and not accepting other documents
executed in favour of the institution seeking affiliation is
reasonable and is not to be interfered by the court. Regarding
the reasonable classification, learned Counsel for the
respondents has relied on 2 (2008) CLT 60, Supreme Court,
Hindu Prateek Sangh v. Mirzapur Moti Kuresh Jamat and
Ors., holding that the closure of slaughter house for few days
during `Paryashan' out of respect for sentiments of Jain
community is not violative of fundamental rights to do trade
and business as guaranteed by Article 19(1)(g) of
the Constitution of India. It was held that such a restriction is
not excessive. The Supreme Court had further held that even
non-vegetarians can remain vegetarian for the short period of
nine days out of respect for feeling of one community and in
the circumstances closure of slaughter house in that period
will not be excessive restriction and the order passed by the
Municipal Corporation, Ahmedabad was held to be valid."
(Emphasis by us)
36. We find that in Vibrant Institute of Technology (supra), the
respondents had rejected the application over the failure of the petitioner to
comport with the Condition No.17 of in Clause 16.1 of Appendix 16 of the
Approval Process Handbook-January 2008, which has been reproduced
recorded in Para 27 of the said judgment reads as follows:
"17. Document showing ownership of land in the name of the
applicant in the form of Registered Sale Deed/Irrevocable Gift
Deed (Registered)/Irrevocable Registered Government Lease
(for a period of minimum of 30 years with at least 25 years of
live lease at the time of submission of application."
37. Rejecting the aforesaid contentions in Vibrant Institute of
Technology (supra), the Court held as follows:
"27. The Regulations pertaining to land requirements for
establishment of new technical institution only contemplates
the area which an institution must have for running an
engineer/technology institution. The hand book of approval
process, however, restricts the acquisition of such lands by
the Trust/Society only by a sale deed/irrevocable gift
deed/irrevocable government lease for a minimum period of
30 years. This classification contained in the hand book for
approval process is valid or not is the point to be considered.
Learned Counsel for the respondents in support of this
classification has submitted that if conveyance of rights in the
land is permitted by any other types of documents, it will result
into a number of institutions applying for affiliation.
28. Though a reasonable classification is permissible,
however, to pass the test of permissible classification two
conditions must be fulfilled, namely, that the classification
must be found on an intelligible differentia which
distinguishes person or things that are grouped together from
others left out of the group, and that the differentia must have
a rational relation to objects sought to be achieved by the
statute/rule/regulations in question. The yardstick or
parameters or classification may be founded on different
basis, however, what is necessary is that there must be a
nexus between the basis of classification and the object of the
Act/Regulation under consideration. In Ram Krishna and
Ors. v. Shri Justice S.R. Tendolkar and Ors. AIR 1958
Supreme Court 538, the Supreme Court had held on the basis
of various other decisions that Article 14 contemplates
discrimination not only by a substantive law but also by
procedure. In the present case though the Regulations do not
carve out a distinction in respect of documents by which the
rights in the land are transferred to a Trust/Society seeking
affiliation but by the procedure adopted by the respondent, a
classification has been done whereby the rights transferred in
the land in favour of Trust/Society seeking affiliation by any
other documents then stipulated in the hand book for approval
process, are not to be considered.
29. One of the reasons for classification given by the learned
Counsel for the respondents for classification is that other
documents conveyancing rights in the immovable properties,
if are taken into consideration will lead to flood gate of the
institution applying for affiliation. This cannot be termed to
be an intelligible differentia. A reasonable classification is
one which includes all persons or things similarly situated
with respect to the performance of the law. The Regulation
2006 clause III only contemplates the area which is required
by an institution for running an engineering/technology
college and does not contemplate the way the rights are to be
acquired. The rights in the immovable property can be
transferred or conveyed by many modes as contemplated under
the Transfer of Property Act. Restricting the approval only by
sale deed/gift deed/irrevocable government lease deed for 30
years does not seem to have any rationale in the present facts
and circumstances. The reason given by the learned Counsel
for the respondent that taking into consideration other legal
and valid document conveying rights in the property will lead
to a large number of institution applying for affiliation
cannot be termed to be rational and having any object for
which the alleged classification has been done by the
respondent in the hand book for approval process. If the
Regulation contemplates only the area, which a trust/society
must own for purpose of running engineering/technology
institution, then permitting conveyance of rights only by sale
deed/gift deed/a government lease deed for 30 years, has no
rational and cannot be permitted.
(Emphasis by us)
38. In Vibrant Institute of Technology (supra), an argument was made
by the learned counsel for the respondent that lease deeds can be set aside
easily. In other words, there would be no guarantee of permanency of the
institute, jeopardizing continuity of the institute and surety of completion of
academic courses to students. This submission was also rejected by the
Court holding as follows:
30. The learned Counsel for the respondents also contended
that deeds other than as stipulated in the handbook of the
procedure can be set aside easily. This plea is without any
legal basis. If the sale deed/gift deed conveys the rights in the
immovable property till such conveyance deeds are set aside,
for same reason, a trust deed settling properties will equally
convey the rights in the property to the trust/society, till it is
set aside. No distinction can be carved out on the plea of the
learned Counsel for the respondents.
31. Learned Counsel for the respondent is unable to give any
plausible reason as to why a trust deed settling the properties
by a founder trustee in the trust which is stamped according to
law should not be considered and the properties which are
acquired by a trust/society pursuant to sale deed or a gift deed
should be considered. This is not disputed by the respondents
that under law, a founder trustee can settle his properties with
the trust on execution of an appropriate instrument which is
duly stamped and registered."
(Emphasis supplied)
39. It has thus been held that Handbook for Approval Process - January,
2008 - Notification No.F-373/Legal, which was framed in terms of
Regulation 2.4 of the AICTE Regulations, could not govern the eligibility
which is stipulated under the said Regulations.
40. The judgment in Vibrant Institute of Technology (supra) was not
challenged by the respondents. The reasoning and findings on the
stipulation in the Handbook for Approval requiring that the proposed
institute must hold land rights under the sale deed/gift deed/Government
lease of 30 years have no rationale and nexus with the object sought to be
achieved, squarely apply to the case in hand.
41. There is yet another aspect of the matter. It is also essential to
observe that the Transfer of Property Act, 1882 through Section 5 prescribes
as follows:
"5. "Transfer of property" defined. -
In the following sections "transfer of property" means an act by
which a living person conveys property, in present or in future,
to one or more other living persons, or to himself, and one or
more other living persons; and "to transfer property" is to
perform such act.
In this section Living person includes a company or association
or body of individuals, whether incorporated or not, but nothing
herein contained shall affect any law for the time being in force
relating to transfer of property to or by companies, associations
or bodies of individuals."
42. The modes by which immovable property may be transferred under
the Transfer of Property Act ('TPA' hereafter) include sale, gift, lease and
trust. Rights may also be acquired in an immovable property under a
testamentary bequest or by succession as well.
43. Vide Section 8 of the TPA enactment, a transfer of property passes
forthwith to the transferee all the interest which the transferor is then
capable of passing in the property and in the legal incidents thereof. Hence,
the Transfer of Property Act, 1882 itself makes no distinction between a
Government lease and a private lease for the purpose of rights that may
accrue under the two kinds of leases.
44. We have extracted here Clause 6.1 of the Regulations 2016 which set
out the requirement of only "lawful possession with clear title" in the name
of Promoter Society/Trust/Company on or before the date of submission of
application.
45. So far as the Approval Process Handbook 2017-18 of the AICTE is
concerned, the same is really to provide the process for evaluation of the
application made in terms of Regulations 2016. The stipulation in Clause
6.1 of this Handbook restricting the acquisition of title to register sale
deed/irrevocable gift deed (Registered)/irrevocable (Registered)
Government lease therefore is clearly beyond the processual matters
regarding which the Handbook has been granted. Right, title and interest in
immovable property flows by operation of the Transfer of Property Act,
which recognizes not only sale deed/gift deed but testamentary requisites as
well.
46. The petitioner before us states that it has the rightful ownership of the
entire land measuring 1.5 acres, in view of the Lease Deed dated 20.12.2001
out of which it seeks to put up polytechnic college only on the surplus 1.5
acres thereof earmarked for a polytechnic college. The petitioner has
already been running the engineering college for the last 20 years on the
same land. The respondents do not dispute this position. On the contrary,
they accepted this title qua the engineering college.
47. The respondents make no disclosure as to how a Government lease
for thirty years is more secure than a private lease for the same period. We
further find that Regulation 6.1 of the Regulations 2016 even envisages and
permits mortgage of the land after receipt of the approval from the
respondent. It is also permissible for a promoter of an existing institute to
run other educational institutions on surplus land. It is so in the present
case. The respondents, therefore, have the additional reassurance of the
petitioner actually running an engineering college since 2001 on the larger
part of the same land.
48. We find that even in the counter affidavit, no real objection or
difficulty with regard to the title of the land by the petitioner is pointed out
or made out. The apprehension of consistency or insecurity premised on the
fact that the appellant has a private lease has clearly no factual basis. On the
contrary, it stands belied by the above factual narration.
49. The above narration of facts would show that a similar application of
the petitioner for grant of permission was for the last year, i.e., Academic
Year 2016-17 was rejected by the respondents. The respondents do not
dispute that the status of the petitioner this year as well as the requirements
under the Regulations 2016 and Handbooks are concerned, they remain the
same as it was for the last year.
50. It is noteworthy that the application for the Academic Year 2016-17
was made in respect of the same piece of land as has been applied in the
current year. The petitioner had last year also relied on the same registered
lease deed for acquisition of right, title and interest. No such objection was
raised regarding the lease being a private one. The validity thereof thus
stood accepted last year.
51. We find that the rejection letter dated 30.04.2016 for the previous
academic year, i.e., Academic Year 2016-17 states that it was due to non-
presentation of the original certificate of the Sub-Divisional Magistrate or
the Collector or Tehsildar and the application was rejected. It is undisputed
that the Condition No.17 in Appendix 16 of the Approval Process
Handbook, 2016-17 as is imposed this year was present in the Handbook of
last year as well. No lacuna in the title of the subject land of the petitioner
was found in last year's rejection letter dated 30.04.2016.
52. We also find that the scrutiny process of the application of the
petitioner consists of four different stages. The first stage of scrutiny was
conducted by the Scrutiny Committee, which submitted its report on
01.03.2017 and it was the first scrutiny exercise effected by the respondents.
The report dated 01.03.2017 which has been placed along with writ petition
notes by Point No.7 that the ownership type of the petitioner was recorded
as a lease over 11.5 acres of land. The second stage consisted of a report by
a Re-Scrutiny Committee and the Re-Scrutiny Committee was required to
verify the authenticity of the documents submitted by the applicant as
mentioned in Appendix 16 of Approval Process Handbook, 2017-18. The
report of the Re-scrutiny Committee extracted above shows that it was after
considering all documents including documents showing ownership of land
by way of private lease deed came to a conclusion that the application of the
petitioner be recommended for the next stage, which was the Expert Visiting
Committee. The report of the Expert Visiting Committee dated 19.03.2017
was really the third stage scrutiny accorded to the application of the
petitioner. We have extracted above the Recommendation Summary of this
Committee which forwarded the application to the Regional Committee.
53. It was only at the fourth stage when the Sub-Committee of the
Regional Committee of the AICTE dated 24.03.2017 effected the scrutiny
that it came to the conclusion that the application be rejected on the ground
of following four deficiencies:
(i) Language Laboratory
(ii) Barrier free toilet
(iii) Workshop not ready
(iv) Stairs without railing
54. Even at this stage, no deficiency was found qua the ownership or title
of land on the basis of which the petitioner's application was being
scrutinized. So far as these four deficiencies are concerned, the impugned
order dated 14.04.2017 of the Standing Appellate Committee records that
the same have been rectified.
55. Thus, the application of the petitioner was rejected by the impunged
order dated 08.04.2017 by the Executive Committee of the AICTE only at
the fifth stage. It is apparent that there is no real deficiency in the title of the
land.
56. Before us as well, other than the reference to the stipulation in the
Handbook-2017-18, Mr.Anil Soni, the learned CGSC is unable to point out
any sustainable basis or lawful ground to support the rejection of the
appellant's application.
57. The respondents have attempted to create a charade of public interest
in the prescription of the condition regarding title in the Approval Process
Handbook. There is no material to support the apprehension provided by the
respondents especially in the facts of the present case. Further, the
respondents have completely ignored the other material aspects of ensuring
good educational institutions who are positioned to provide suitable
education. The same is in the interest of the communities where such
institutions are set up. The petitioner admittedly has the valuable experience
of running an Engineering College of twenty one years. The respondents do
not point out any objection to its working. The petitioner would, therefore,
have the expertise and the professional capacity to take the discharge of the
onerous duty it is doing so in creating other institute.
58. We also cannot close our eyes to another critical issue impacting
rights placed by the petitioner before us. The petitioner has placed before us
a Chartered Account certificate dated 27.02.2017 specifying that the
investment made by the petitioner in laying construction of the polytechnic
college during the period 19.12.2015 till 27.02.2017 was Rs.8,60,67,180.
This amount has been for installation of the infrastructure for the start of the
new polytechnic college. It cannot be denied that if such infrastructure
would be left unutilized it would depreciate in value. There may be damage
over time to the construction and the fittings and fixtures. However, the loss
suffered by the petitioner cannot override the binding concern of the larger
public interest. In the present case, that given the accepted removal of all
objections raised by the respondents, it cannot be in the interest of public at
large, especially to prospective students, if the petitioner would not be
permitted to commence running the institution in these above facts and
circumstances.
59. Given the above discussion, it is now necessary to discuss the prayers
made in the writ petition. How is the relief to be moulded? We find some
light thrown thereon from the following reliefs granted in Vibrant Institute
of Technology (supra), which was not challenged by the respondents:
32. In the circumstances, on the grounds as raised by the
respondents, the issue of letter of intent/Letter of approval to
the petitioner could not be denied. Therefore, for the forging
reasons, the decisions communicated to the petitioners by
letters dated 03.07.2009; 15.06.2009 and 23.03.2009 are
liable to be set aside. The respondents are liable to issue
letter of intent/Letter of approval to the petitioner for the
block year 2009-2010.
33. Therefore the writ petition is allowed. The decisions of
the respondents in letters dated 03.07.2009; 15.06.2009 and
23.03.2009 are set aside. The respondents are directed to
issue letter of intent/Letter of approval to the petitioner for
the block year 2009-2010 forthwith. Considering the facts
and circumstances the respondents are also liable to pay
costs of Rs. 30,000/- to the petitioner."
60. Reliance was also placed by the petitioner on the verdict of this Court
in Silver Oak College of Engineering & Technology
vs. All India Council for Technical Edducation & Ors. in W.P.(C)
9568/2009 decided on 10.06.2009. By the said case, the petitioner's case
therein had been rejected by the AICTE on the ground that the land had not
been conveyed in any of the three modes mentioned in the Approval Process
Handbook. Vide the judgment dated 10.6.2009 aforementioned, the AICTE
was directed to treat the said writ petition as an appeal under the Clause 2.67
under AICTE Handbook for Approval Process - January, 2008 -
Notification No.F-373/Legal with it to be heard and disposed of by the
Appellate Authority within 10 days. The Appellate Authority was also
directed to consider all the grounds raised by the petitioner therein in the
appeal including the title of the petitioner under the Gujarat
Cooperative Societies Act, 1961.
61. The observations in the above verdict dated 10.06.2009 in W.P.(C)
No.9568/2009 of the learned single Judge of this Court pertinent to the
present case are reproduced as under:
"1. Issue notice to the respondent.
2. Mr.Jatan Singh, Advocate accepts notice on behalf of the
respondents.
3. At the outset, it is pointed by learned counsel for the
respondents that there is an alternative remedy of appeal against the
impugned order dated 30th May, 2009 in Clause 2.67 under the
AICTE Handbook for Approval Process - January, 2008 -
Notification No.F-373/Legal.
4. Learned Senior Counsel for the petitioner submits that the
petitioner has been denied LOI for the year 2009-2010 on the short
ground that the petitioner is not the owner of the land by a sale
deed/irrevocable gift deed (Registered)/Irrevocable Government
Lease, as per the approval of AICTE. Learned Senior Counsel for
the petitioner submits that the petitioner is the lawful owner of the
land in question by virtue of Section 17(3) of the Gujarat
Cooperative Societies Act, 1961. Leaned Senior Counsel further
submits that the respondents have not considered this aspect of the
matter.
5. In the facts and circumstances of this case, it is directed that
the copy of the writ petition served on the respondents be treated as
an appeal under Clause 2.67 under the AICTE Handbook for
Approval Process - January, 2008 - Notification No.F-373/Legal
and same be heard and disposed of by the Appellate Authority within
10 days.
6. The Appellate Authority shall consider all the grounds
raised by the petitioner in the appeal including the title of the
petitioner under the Gujarat Cooperative Societies Act, 1961.
7. Learned Senior Counsel for the petitioner submits that the
petitioner's counsel shall accompany the representative of the
petitioner, at the time of hearing.
8. The appeal is disposed of with the aforesaid directions.
9. Copy of this order be given 'Dasti' to learned counsel for the
parties under signatures of Court Master."
(Emphasis supplied by us)
62. The respondents have placed reliance on the pronouncement of the
Supreme Court in Parshvanath Charitable Trust vs. All India Council for
Technical Education (2013) 3 SCC 385 to contend that the last date of
giving approval is 30th April of the academic year beyond which the
respondents are not authorized to do any act.
63. The above narration of facts shows that so far as the petitioner had
made application in 2016 for the Academic Year 2016-17 and no objection
was taken with regard to the very land on which the application has been
made for the Academic Year 2017-18. The present application was made by
the petitioner as back as on 10.01.2017 and the scrutiny was effected only on
01.03.2017, after passage of almost three months from the making of the
application. The re-scrutiny was effected on 10.03.2017 and Expert Visit
Committee conducted the physical inspection of the facilities provide by the
petitioner on 19.03.2017. All objections made hitherto by the respondents
were satisfied and so noted in the report dated 24.03.2017 of the Sub-
Committee of the Regional Committee.
64. It is undisputed before us that the respondents were in possession of
the title documents of the petitioner from the time it made the application in
2016. The respondents accepted the validity of title and did not reject the
application in 2016 on any ground of want of registered Government lease.
Such objection for the first time even was taken in the rejection letter dated
08.04.2017 by the respondents.
65. In addition, the respondents were fully aware of the legal position in
view of the authoritative judicial pronouncement made as back as on
21.08.2009 by the learned Single Judge of this Court when W.P.(C)
No.10104/2009 titled Vibrant Institute of Technology vs. All India Council
for Technical Education & Ors. reported as 2009 SCC OnLine Del 2539:
(2009) 162 DLT 652 was allowed. The very explanation sought to be
advanced to oppose the present writ petition stood rejected on 21.08.2009 by
this Court.
66. The respondents accepted the correctness of the judicial view, did not
assail it and acted upon the judgment. The decision dated 08.04.2017 of the
respondents was carried in the appeal provided by the respondents which
culminated in the order dated 18.04.2017 of the Standing Appellate
Committee of the AICTE. The writ petition came to be filed on the very
next day, i..e, 19.04.2017. On the first date itself, i.e., the 21 st April, 2017,
the respondents appeared on advance notice and sought time of one week for
filing the counter affidavit. Keeping in view the urgency of the matter, the
case was kept for consideration immediately on expiry of one week, i.e. on
Friday, the 28th of April 2017.
67. Arguments in the writ petition were actually heard on this date.
Keeping in view the heavy board of the Court, the judgment could not
dictated in open Court and had to be reserved. In any case, the judgment
could not have been ready before the closure of the office of the respondents
for the weekend.
68. The judgment was dictated on Saturday, i.e., 29.04.2017 and was
ready for pronouncement on the 30th April, 2017 which was a Sunday.
Keeping in view all the foregoing facts, as per the prescription by the
judgment, read meaningfully, the last day would have to be the next working
day, which is today.
69. Even otherwise, given the removal of objections by the petitioner as
noted even in the report dated 24.03.2017, the petitioner became entitled to
issuance of the letter of approval on that day itself.
70. We are informed that the Academic Session commences only from
the 1st of August, 2017.
71. On a consideration of the submissions of the petitioner and the
respondents and in view of the Regulation 6.1 of the All India Council for
Technical Education (Grant of Approvals for Technical Institutions)
Regulations, 2016 published in Gazette of India: Extraordinary
F.No.AB/AICTE/REG/2016 issued under All India Council for Technical
Education which ordains only the petitioner Society/Trust company of a
new technical education institute to have the required land as mentioned in
the Approval Process Handbook in its lawful possession with clear title in
the name of promoter society/trust/company on or before the date of
submission of application, without restriction of the manner and mode of
conveyance and transfer of the clear title of the property on which the
technical education institute is to be run.
72. The letter of rejection dated 08.04.2017 of the Member Secretary,
AICTE and consequential order of rejection of the petitioner's application
for setting up a new technical institute vide Application ID No.1-
2854879195 for ASM Polytechnic by the Standing Appellate Committee of
the AICTE and the order dated 18th April, 2017 of the Standing Appellate
Committee are hereby set aside and quashed.
73. Inasmuch as keeping in view the notified deadline, for paucity of
time, we have not been able to hear detailed arguments on the challenge to
the vires of the stipulation in the Handbook, though in the light of the above
discussion we could have ruled thereon, we are refraining from doing so.
The respondents may have additional submissions thereon.
74. Consequentially, the respondents are directed to forthwith issue the
letter of intent/letter of approval to the petitioner for setting up a new
technical institution as sought vide Application ID No.1-2854879195 for the
ASM Polytechnic, Mathura, Uttar Pradesh.
75. The present writ petition is allowed in the above terms. CM
No.14926/2017 is thus rendered anfractuous and disposed of accordingly.
76. Dasti under the signatures of the Court Master.
ACTING CHIEF JUSTICE
ANU MALHOTRA, J
MAY 01, 2017
pmc/sd
