Harshil Satish Davda vs State Of Gujarat
2021 Latest Caselaw 18605 Guj

     C/SCA/17958/2021                             JUDGMENT DATED: 21/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 17958 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                          HARSHIL SATISH DAVDA
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR. GNANESH G BHATT(10015) for the Petitioner(s) No. 1
MR BHAVESH B CHOKSHI(3109) for the Respondent(s) No. 3
MR FB BRAHMBHATT(1016) for the Respondent(s) No. 4
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
NOTICE UNSERVED(8) for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA


                             Date : 21/12/2021
                             ORAL JUDGMENT

1. Heard learned advocate Mr. Ganesh G. Bhatt for the petitioner, learned Assistant Government Pleader Mr. Dhawan Jayswal for the respondent-State, learned advocate Mr. Mayur

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Dhotre for respondent No.2 and learned advocate Mr.Falgun Brahmbhatt for respondent No.4.

2. Rule returnable forthwith. Learned advocates for the respective respondents waive service of notice of rule.

3. Learned advocate Mr. Bhavesh Chokshi has filed leave note who appears of respondent No.3-Gujarat Technological University who is formal party and therefore, in his absence this matter is taken up for hearing taking into considering the urgency of the matter.

4. By this petition under Article 226 of the Constitution of India the petitioner has prayed for the following reliefs:

"A. That this Hon'ble High Court may be pleased to allow this application;

              B.    That this Hon'ble High Court may be
              pleased      to      issue     appropriate

writ/direction/order upon resp. no. 4-SAL School of Architecture, to provide NOC to the applicant immediately, so as to enable him to save his academic year;

              C.    That this Hon'ble High Court may be
              pleased      to      issue     appropriate

writ/direction/order upon resp. No. $- Sal School of Architecture, to refund Rs. 48,000/- to the applicant as paid by him, as the same is in violation of G.T.U.

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Regulations;

D. That the this Hon'ble High Court may be pleased to issue appropriate writ/direction/order upon resp. no.-3- Gujarat Technological University, to provide the Migration Certificate to the applicant as early as possible upon him making an application fro the same after receiving NOC from resp. No. 4 so as to enable him to save his academic year;

E. That this Hon'ble High Court may be pleased to issue appropriate writ/direction/order upon resp. no. 2- Council of Architecture, to provide the No-Objection Certificate to the applicant as early as possible upon him making an application for the same after receiving NOC from resp. No. 4 so as to enable him to save his academic year;

F. That this Hon'ble Court may be pleased to pass any such other and further relief(s) as may be deemed just and proper in the facts and circumstances of the case."

5.Brief facts of the case are that the petitioner is a student who had taken admission in the year 2020 in the course of Bachelor of Architecture in the respondent No.4-SAL School of Architecture which is affiliated to the respondent No.3 Gujarat Technological University as well as respondent No.2- Council of Architecture, Ministry of Education, Government of India. It is the case of the petitioner that after

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completion of his first academic year of Bachelor of Architecture Course with respondent No.4-Institute the petitioner availed the provisional admission by migrating to another college/university. The petitioner therefore applied with the Nirma University and was successful in getting the provisional admission in the Institution of Architecture & Planning, Nirma University, Ahmedabad and has also paid fees on 09.08.2021.

5.1 The petitioner thereafter requested respondent No.4 for issuance of No Objection Certificate [NOC] by an undated application on 18.08.2020. However, respondent No.4 refused to provide acknowledgment for the same. Thereafter the petitioner received a reminder email on 01.09.2021 from the Nirma University to provide for the NOC and the Migration Certificate which are required for regularization and the admission of the petitioner.

5.2 It is the case of the petitioner that the respondent No.4 informed the petitioner that NOC process would be initiated after completion of the July exam for Semester-II.

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5.3 The petitioner thereafter again submitted the application for NOC and the same was accepted by the respondent No.4- Institute but again without acknowledgment.

5.4 Respondent No.3-University on 14.10.2021 declared the results of Semester-II of Bachelor of Architecture marking the completion of the first academic year of the applicant.

5.5 As the petitioner did not receive any response from respondent No.4-Institute with regard to NOC, the petitioner has preferred this petition.

6.Learned advocate Mr. Ganesh G. Bhatt submitted that there is no provision in any Rules or Regulations or Act which prohibits the respondent No.4- Institute from issuing NOC. It was submitted that the petitioner is also not requesting to refund the fees deposited with the respondent No.4-Institute but as the petitioner is note desirous to continue the study with the respondent No.4- Institute for the second year of the course and has already taken admission with the Nirma Institute, respondent No.4 for no rhyme

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or reason cannot withhold the issuance of NOC.

7.Learned advocate Mr. Brahmbhatt, on the other hand, appearing for respondent No.4-Institute has filed affidavit-in-reply stating that the petitioner has not come with clean hands before the Court and has tried to mislead the Court by producing the documents which were never received by the respondent No.4- Institute by trying to show that the petitioner has completed all the formalities.

8.It was further pointed out from the averments made in the affidavit-in-reply that as the respondent No.4 is affiliated to respondent No.3- Gujarat Technological University, it is bound to follow the policy as well as the circulars issued by the respondent No.3 from time to time and as per the circular dated 13.03.2003 issued by the Education Department for transfer from one Engineering College to another Engineering College or for transfer from Self Finance Institute to another Self Finance Institute, the State Government would not interfere and therefore no permission is required from the State Government.

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9.It was therefore pointed out that the respondent No.3-University by circular dated 15.07.2021 has prescribed the procedure to process the application for transfer from one institute to another and the last date of making such application for transfer on the portal of the respondent No.3-University was 31.07.2021 and therefore the petitioner now cannot get transfer from respondent No.4- Institute and hence there is no question of issuing any NOC to the petitioner.

10. Learned advocate Mr. Brahmbhatt further submitted that as per the tentative academic calendar published by the Gujarat Technological University for the year 2021-22 (odd Term), for the purpose of Bachelor of Architecture Course, the 3rd semester has started from 02.08.2021 and has already ended on 08.12.2021. It was pointed out that as the 3rd Semester is already over, no NOC can be issued when the petitioner has not attended any class of the 3rd semester with the respondent No.4-Institute.

11. Learned advocate Mr.Brahmbatt thereafter relied upon the following averments made by the deponent of the affidavit filed on behalf of the respondent No.4.

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"9. I say and submit that, with reference to para 5 of the petition, I deny the averments made in said para. The email dated 01.09.2021 produced to the Nirma Institute, which says along with the NOC, the petitioner has not provided GTU migration, COA NOC, AGP affidavit (HSC-2019) undertaking for drugs and alcohol (Form No.5) Undertaking for cancellation of admission (Form No.6) , Medical Fitness Certificate (Form No. 8). Thus, not only NOC and migration, but on 01.09.2021 petitioner has not provided several documents to the Nirma University which becomes clear from Annexure C. Apart from this, on that date, there is no application received by the Institute for NOC and only on 04.10.2021 the application for NOC was received first time. I say and submit that, so far as third semester is concerned it was started from 02.08.2021 and the mid sem exam was conducted from 28.09.2021. Thus, on 04.10.2021 the most of portion of academic term of third semester was over and the same was also replied by the Institute to respondent no.3 to whom the petitioner has made complaint on 19.11.2021 by email and in pursuance of that, the respondent nO.3 has sent a mail dated 22.11.2021 which was replied by the institute on 25.11.2021, in which it is clearly mentioned that the semester is almost going to be over very soon and therefore, the petitioner has tried on two horse at the same time. Further on the basis of provisional admission, the

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petitioner has not attended his study in the institute and the institute was never intimated about getting admission in Nirma Unviersity upto 04.10.2021.

Therefore also the contentions raised in para are denied. A copy of the Schedule showing academic year of Semester 3 is annexed herewith and marked as Annexure R2.

10. I say and submit that, with reference to para 6 of the petition, I deny the averments made in it. I say and submit that according to the time table for academic term provided by respondent No.3 to whom the institute is affiliated, the third semester was already started on 03.08.2021. Further, the study was proceeded and it was never said to him that the NOC will be issued after completion of 'jury' of Semester 2 which was held on 04.09.2021 according to the petitioner.Itis clear from the record that the institute was intimated for the first time for getting NOC only on 04.10.2021 and therefore, the averments made in para 6 are denied in toto.

11. I say and submit that with reference to para 7 of the petition, I deny the averments made in it and again the petitioner has tried to mislead this Hon'ble High Court in which the petitioner has stated that the petitioner has submitted an application on 24.09.2021 and the institute has accepted the same without acknowledgment and the same was sent by RPAD which the institute has received on 04.10.2021. The letter dated 24.09.2021 is annexed at Annexure D

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by the petitioner and looking to the said letter, the petitioner has never stated that the application was accepted on 24.09.2021 and no acknowledgment is issued. Therefore, from this aspect, it becomes clear that the petitioner who has tried to ride on two horse at the same time, without any intimation to the institution about getting admission in another University continued the study in the present institute and after confirmation of provisional admission in the Nirma University, which also not guarantee for the admission continued the study in the present institute and only on 04.10.2021 for the first time, asked for NOC from the Institute. Thus, averments made in para 7 are also denied in toto.

12.I say and submit that, with reference to para 8 of the petition, I deny the averments made in it. The declaration of result mentioned by the petitioner on 14.10.2021 is not for 3rd Semester, but it was 2n Semester and by that time, term of 3rd Semester was already started on 02.08.2021 and most of educational work was over by that time. Therefore, the averments made in para 8 are hereby denied.

13. I say and submit that, with reference to paras 9 and 10 of the petition, I deny the averments made in the said para. Looking to Annexure E it says about pending documents and not only NOC of the Institute. Further, the payment of fees of Rs. 48,800/- which was paid on 31.10.2021 was received by the institute on 01.11.2021 and only by payment of fees, the institute cannot issue the NOC because the institute has to issue NOC according to transfer guidelines issued

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by respondent No.3 to the all affiliated institute and in October,2021, said portal cannot open and time was already over. Therefore also, the averments made in paras 9 and 10 are hereby denied.

14. I say and submit that with reference to paras 11, 12 and 13 of the petition, I deny the avermetns made in it. The students who are sending the reminders, but the complaint made to Respondent no.3 on 19.11.2021 by email, same was sent to the institute on 22.11.2021 and reply by the institute was sent on 25.11.2021 in which also it is clearly mentioned that "the semester is almost going to over very soon. By paying fees, it seems that his intention is to continue this 3rd semester study of Sal School of Architecture. Even looking to all the applications made by the petitioner he has stated that, he was pursuing 2nd year 3rd semester of B.Arch at SAL School of Architecture. Therefore the petitioner has tried to get the NOC after the time limit is over and now he can get the NOC only in 5th Semester.

15. I say and submit that the grounds mentioned in the petition are hereby denied in toto. The institute is self financed institute. The same is governed and affiliated by GTU-respondent no.3. The institute has to function according to the Rules and Regulations of respondent nO.3 Further, according to the Government policy also, the Government cannot interfere in transfer process from one self financed college to another self financed college and over and above, 3rd semester was already commenced on 03.08.2021. The institute was intimated for the first time on 04.10.2021 on which date the portal of respondent no.4 for

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university transfer is already closed and also the academic work for 3rd semester is most of over. Considering this also, the NOC cannot be issued for 3rd Semester as withotu following procedure mentioned in the portal of respondent nO.3 the Institute cannot issue NOC and the said portal cannot open on 04.10.2021. The petitioner has got provisional admission in Nirma University on 04.08.2021 but he same was not intimated to the institute uptp 04.10.2021. The student has rided on two horses at the same time no attended any lecture or exams in the institute and on the other hand appeared in final exams of the new University. I say and submit that losing of academic year is not because of institute but the attempt on the part of the students for securing two colleges and after confirming the provisional admission in another university not intimated about this to the institute.

16. I say and submit that with reference to para 15.6 pf the petition, it is not correct that the institute is having multiple incoming and out coming students at the end of first year of each course including B.Arch. The institute is connected with the educational activities and not for the earning purpose and therefore, it is not correct that the institute is having economic loss. The institute is self financed college and give best educations to its students by providing well knowledge faculty and for which the institute is spending huge amount. I further say and submit that, the petitioner himself has made the statement that he has not attended any classes with respondent No.4 of semester 3 and not given any exams. It becomes clear that though continuing the

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admission in 3rd Semester not disclosing admission in new University upto October,2021 the student is now trying to get NOC without attending academic year and according to the GTU regulations, the institute has to issue NOC as per the portal, which cannot be open in October, 2021. The institute has no concern if the students transferred in another institute or University, but all aspects are required procedure to be done within stipulated time, which the petitioner has not done. Now, he can make application for NOC for semester 5 as the portal is closed. Therefore also the averments made in the petition are denied in toto."

12. Relying upon the aforesaid averments it was submitted that the prayers made by the petitioner cannot be granted by directing the respondent No.4-University to issue NOC.

13. Learned advocate Mr.Dhotre appearing for respondent No.2 submitted that respondent No.2- Council of Architecture, by communication dated 10.12.2021, has already called upon respondent No.4-Institute to do the needful. It was further submitted that the respondent No.2 as per the notification dated 11.08.2020 issued under the Architecture Act, 1972 shall also consider the necessary implication of the migration of the petitioner from one institute to another as per clause 5(2) of the said notification.

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14. Having heard learned advocates for the respective parties it appears that the petitioner, after taking admission in the Course of Bachelor of Architecture with respondent No.4-Institute in the year 2020, was desirous to migrate to other institute from the 3rd Semester and accordingly, got the admission with the Nirma Institute on 09.08.2021. The petitioner was therefore justified in applying for NOC with the respondent No.4-Institute more particularly, when the petitioner also did not pray for refund of the fees deposited for the 3rd Semester with the respondent No.4-Institute. Learned advocate Mr. Brahmbhatt failed to point out any Rule or Regulation or provision of any Act which prohibits respondent No.4- Institute to issue NOC to the petitioner for migration to the other institute except the circular issued by the respondent No.3- Gujarat Technological University on 15.07.2021 which provides to process application for transfer of institute on its portal.

15. It is for the petitioner to comply with the provisions of the GTU, but so far as the respondent No.4-Institute is concerned, only

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prayer made by the petitioner in this petition is to direct respondent No.4 to issue NOC which cannot be denied by respondent No.4 when the petitioner does not want to study with the respondent No.4- Institute and more particularly, when the petitioner has studied 3rd Semester in the Nirma University and in such circumstances, in order to see that the petitioner continues the study of Bachelor of Architecture without any hindrance respondent No.4 is hereby directed to issue NOC to the petitioner within three weeks from today.

16. It is clarified that rest of the prayers made by the petitioner are not considered at this stage as in absence of NOC to be issued to respondent No.4, such prayers are premature in nature.

17. With the aforesaid direction, petition is disposed of. Rule is made absolute to the aforesaid extent. No order as to costs.

(BHARGAV D. KARIA, J) JYOTI V. JANI