Swamy Vivekanand Education Trust vs M P Shah Education Society,
2021 Latest Caselaw 1789 Guj

C/LPA/630/2016 CAV JUDGMENT DT. 8.2.21 SWAMY VIVEKANAND EDUCATION TRUST v. M P SHAH EDUCATION SOCIETY

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

1. R/LETTERS PATENT APPEAL NO. 630 of 2016 In R/SPECIAL CIVIL APPLICATION NO. 15076 of 2013

With

2. CIVIL APPLICATION (FOR STAY) NO. 1 of 2016 In R/LETTERS PATENT APPEAL NO. 630 of 2016

With

3. CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2017 In R/LETTERS PATENT APPEAL NO. 630 of 2016

With

4. CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2017 In R/LETTERS PATENT APPEAL NO. 630 of 2016

With

5. R/LETTERS PATENT APPEAL NO. 742 of 2016 In SPECIAL CIVIL APPLICATION NO. 15076 of 2013

With

6. CIVIL APPLICATION (FOR STAY) NO. 2 of 2016 In R/LETTERS PATENT APPEAL NO. 742 of 2016 In SPECIAL CIVIL APPLICATION NO. 15076 of 2013

With

7. R/LETTERS PATENT APPEAL NO. 844 of 2016

C/LPA/630/2016 CAV JUDGMENT DT. 8.2.21 SWAMY VIVEKANAND EDUCATION TRUST v. M P SHAH EDUCATION SOCIETY

In SPECIAL CIVIL APPLICATION NO. 15076 of 2013

FOR APPROVAL AND SIGNATURE:

HONOURABLE DR. JUSTICE VINEET KOTHARI                                         Sd/­
and
HONOURABLE MS. JUSTICE GITA GOPI                                              Sd/­


1     Whether Reporters of Local Papers may be allowed to                      Yes
      see the judgment ?

2     To be referred to the Reporter or not ?                                  Yes

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

4     Whether this case involves a substantial question of law                 Yes

as to the interpretation of the Constitution of India or any order made thereunder ?

SWAMY VIVEKANAND EDUCATION TRUST Versus M P SHAH EDUCATION SOCIETY, & 3 other(s)

Appearance:

MR DHAVAL DAVE, SENIOR COUNSEL with MR OMKAR C DAVE (2003) for the Appellant(s) No. 1

MR SHALIN MEHTA, SENIOR COUNSEL with ABHIMANYU RATHOD(7347) for the Respondent(s) No. 1

MR UTKARSH SHARMA, Asstt. Government Pleader for Respondent No.2

MR MEHUL H RATHOD(701) for the Respondent(s) No. 1

NOTICE SERVED(4) for the Respondent(s) No. 2,3

CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI and HONOURABLE MS. JUSTICE GITA GOPI

Date : 8th February 2021

C/LPA/630/2016 CAV JUDGMENT DT. 8.2.21 SWAMY VIVEKANAND EDUCATION TRUST v. M P SHAH EDUCATION SOCIETY

CAV JUDGMENT (PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)

1. Whether the fair and bona fide competition in the field of

imparting education should be a ban or a bane is the fulcrum of

the present Intra Court Appeal arising out of the CAV Judgment of

the learned Single Judge dated 5.7.2016 dismissing the writ

petition (Special Civil Application No.15076 of 2013) filed by M.P.

Shah Education Society (MPSES), an objector to the approval and

affiliation of Respondent No.4 - Swamy Vivekanand Education

Trust (SVET) (Appellant before us), whereby the learned Single

Judge held that the in­principle approval of the Commerce

Graduation Course given to the Appellant - Swamy Vivekanand

Education Trust by Hemchandracharya North Gujarat University

(the University) was not in accordance with the provisions of the

Hemchandracharya North Gujarat University Act, 1986 (the Act

of 1986).

2. The learned Single Judge, therefore, held that the impugned

Resolution No.30 of the Executive Council of the University dated

30.4.2014 scrapping requirement of obtaining NOC (No

Objection Certificate) from the other similarly situated

institutions in the same locality was liable to be quashed and

C/LPA/630/2016 CAV JUDGMENT DT. 8.2.21 SWAMY VIVEKANAND EDUCATION TRUST v. M P SHAH EDUCATION SOCIETY

consequently, the in­principle prior approval given by the

University on 11.6.2013 and the State Government on 27.6.2013

were also liable to the quashed.

3. The learned Single Judge, therefore, directed the Appellant

to apply afresh and the Respondents were directed to re­examine

the application in accordance with the procedure laid down in

the Act of 1986 and the Appellant was further directed not to

admit any further students in its new Commerce College. The

costs of Rs.1,00,000/­ was also imposed on the Appellant College

and Rs.50,000/­ on the University to be paid to the objector

Petitioner - MPSES, whose NOC was purportedly not taken

before granting such in­principle approval to the Appellant -

Swamy Vivekanand Education Trust.

4. The operation of the order of the learned Single Judge was

stayed by a coordinate Division Bench of this Court on 19.7.2016

in the present Letters Patent Appeal No.630 of 2016.

5. Some dates with the crisp facts leading to the present Intra

Court Appeal can be noted as under.

6. The Appellant - SVET resolved to start new Commerce

College from June 2013 vide its Resolution dated 4.9.2011 and it

C/LPA/630/2016 CAV JUDGMENT DT. 8.2.21 SWAMY VIVEKANAND EDUCATION TRUST v. M P SHAH EDUCATION SOCIETY

applied for Affiliation to the Respondent University on 28.3.2013.

Before that a Local Inspection Committee was appointed by the

Respondent University which carried out inspection on 8.1.2013.

The Respondent - MPSES objected before the University about

the approval to be granted to the Appellant - SVET on 4.3.2013

and as per the procedure envisaged in the Act of 1986 and in

terms of the Government Guidelines dated 21.12.2001, the

Academic Council requested the Executive Council - the higher

body to defer the consideration of the application of the

Appellant on 25.3.2013.

7. On 30.4.2013, the Executive Council resolved to scrap the

requirement of taking NOC from the other similar educational

institutional or Colleges within the radius of 25 kms. as per the

earlier practice and the Executive Council proceeded to

recommend to the State Government on 11.6.2013 to grant

approval for affiliation in­principle to SVET for the Academic

Year 2013­14 to the Appellant. Such in­principle approval was

given by the State Government on 27.6.2013 and accordingly, the

University proceeded to admit students in the said Commerce

Course for the Session 2013­14 which has continued uptil now

despite the objector writ petition of MPSES allowed by the

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learned Single Judge, because a stay order was granted by the

coordinate Division Bench of this Court in the present Intra Court

Appeal on 19.7.2016.

8. Therefore, essentially, the legal battle in the present Intra

Court Appeal is between two competitors providing Commerce

Education situated in the same locality.

9. The learned Single Judge painstakingly referring to the

various provisions of the Act of 1986 under which the said

University was created, held that the procedure for such approval

and affiliation was not strictly followed and without the Need

Committee establishing the need for establishing such another

Commerce College, the Executive Council of University proceeds

for granting approval and affiliation to such new Commerce

College in the same area of 25 kms., the Executive Council

favoured the Appellant SVET and even scraped the requirement

of taking NOC from the other institutions providing similar

education in the same area on 30.4.2013 which was illegal and

thereby, the Executive Council could not have straightaway

recommended to the State Government for granting in­principle

approval for affiliation and consequently, the State Government

has also erred in granting such approval and the same was liable

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to be quashed. For admitting the students in the said Commerce

Course in the meanwhile, the learned Single Judge came down

heavily on the Appellant SVET and has imposed costs and

restrained the Appellant from further admitting the students in

the said course.

10. Mr. Dhaval Dave, learned senior counsel for the Appellant

SVET emphasised that the need of such Commerce College was a

decision taken by the Appellant itself and it approached the

Respondent Executive Council of the University as per the

provisions of the Act of 1986, upon which a satisfaction Report

given by the Local Inspection Committee, the Executive Council

granted such approval and the same was rightly affirmed by the

State Government also. He urged that the Respondent MPSES

had no locus standi to object to the opening of the new

Commerce College by the Appellant and being a competitor only,

it wanted to safeguard its business interest and therefore started

objecting to the grant of approval to the Appellant right from

beginning. He submitted that even assuming that such a locus

standi was there to assist the Respondent University to arrive at a

fair decision about the need to open such a Commerce College in

the same vicinity, no legal right vested in the Respondent MPSES

C/LPA/630/2016 CAV JUDGMENT DT. 8.2.21 SWAMY VIVEKANAND EDUCATION TRUST v. M P SHAH EDUCATION SOCIETY

who was the Petitioner before the learned Single Judge and no

injury can be said to have been caused to it by the Appellant

opening a new Commerce College there.

11. He urged that not only the Appellant had fundamental right

of business or profession to open such new educational

institution to provide Commerce Education to the students of the

said area which need was felt by the Residents, as would be

shown by the subsequent developments by the number of

students enrolling in the Appellant's Commerce College because

of its excellent standard of education maintained and giving the

far better results of Appellant's Commerce College in comparison

to objector MPSES, which could be seen in the later Affidavits

filed by the Appellant in this Court.

12. Mr. Dhaval Dave, learned senior counsel also urged on the

principles of damnum sine injuria that unless an injury is caused

to the Respondent by such opening of another educational

institution by the Appellant, the objections for the sake of

objection or to avoid any chance of competition cannot give any

right to the Respondent to object against the approval to be given

to the Appellant. The other requirements about infrastructure

facilities, etc. were duly verified by the Local Inspection

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Committee and the Executive Council came to a reasonable and

bona fide conclusion that there was a need of opening of such a

new Commerce College and the Appellant satisfied the necessary

requirement for the same and the requirement of taking NOC

from other similar institutions in the same vicinity could be

dispensed with.

13. He submitted that the learned Single Judge has though held

that no valid exception of the same could be taken by the

objector, but the learned Single Judge has still allowed the writ

petition filed by the objector, causing serious prejudice to the

Appellant and the present appeal, therefore, deserves to be

allowed. He relied upon the following judgments in support of

his submissions:

(i) Ravi Yashwant Bhoir vs. District Collector, Raigad & Ors. [(2012) 4 SCC 407];

(ii) Nagar Rice & Flour Mills & Ors. vs. N. Teekappa Gowda & Bros. & Ors. [(1970) 1 SCC 575];

(iii) Jasbhai Motibhai Desai vs. Roshan Kumar, Haji Bashir Ahmed [(1976) 1 SCC 671];

(iv) Mettur Gas Service vs. Indian Oil Corporation Ltd.

[2019 SCC online Mad 26905], decided on 24.10.2019

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by the Division Bench of Madras High Court to which one of which (Vineet Kothari, J.) was a party.

14. Per contra, Mr. Shalin Mehta, learned senior counsel

appearing for the Respondent objector SVET was at pains to

support the order of the learned Single Judge and urged that the

procedure laid down in the Act of 1986 has been thrown to winds

by the Respondents in order to favour the present Appellant -

SVET and going out of the way, the Executive Council, ignoring

the recommendation of the Academic Council to defer the

consideration of application of the Appellant, proceeded to even

scrap the requirement of taking NOC from other educational

institutions in the same area, the Executive Council has

recommended the case of the Appellant, with a lightening speed

and in­principle approval was also granted by the State

immediately.

15. He submitted that the conduct of the Appellant was not

above the Board and without laying any material on record for

establishing the need or justification to establish such another

Commerce College within the radius of 25 kms. and such need

examined or justified by the Need Committee which was required

to undertake such inquiry, the said in­principle approval was

C/LPA/630/2016 CAV JUDGMENT DT. 8.2.21 SWAMY VIVEKANAND EDUCATION TRUST v. M P SHAH EDUCATION SOCIETY

granted which was in breach of the statutory provisions of the Act

of 1986 and therefore, the learned Single Judge was right in

quashing the said Resolution of Executive Council dated

30.4.2013 and passing the consequential directions and quashing

the in­principle approval to the Appellant's new Commerce

College under the Act of 1986. Mr. Shalin Mehta, learned senior

counsel also relied on the following judgments to support his

contentions:

(i) Jawaharlal Nehru Technological University vs. Sangam Laxmi Bai Vidyapeet & Ors. [(2019) 17 SCC 729];

(ii) Dental Council of India vs. Hedgewar Smruti Rugna Seva Mandal Hingoli & Ors. [(2017) 13 SCC 115].

16. We have heard the learned counsel at length.

17. After a careful study of the judgment of the learned Single

Judge under appeal before us and appreciating the rival

contentions of both the sides and the statutory provisions

contained in the Act of 1986, we find ourselves unable to agree

with the reasons given by the learned Single Judge and we are of

the considered opinion that there is a merit in the present Intra

Court Appeal filed by the Appellant and the same deserves to be

C/LPA/630/2016 CAV JUDGMENT DT. 8.2.21 SWAMY VIVEKANAND EDUCATION TRUST v. M P SHAH EDUCATION SOCIETY

allowed for the following reasons.

18. A look at the relevant provisions of the Hemchandracharya

North Gujarat University Act, 1986 in this regard is considered

relevant and opportune:

"19. The Executive Council:

(1) The Executive Council shall be the executive authority of the University and shall consist of the following, namely: --

(i) The Vice­Chancellor Ex­Officio Chairman;

(ii) The Pro­Vice­chancellor;

(iii) The Director of Higher Education, Gujarat State or the officer designated under clause (i) of paragraph (B) of Class­I of sub­section (1) of section 16;

(iv) The Director of Technical Education, Gujarat State or the officer designated under clause (ii) of paragraph (B) of Class­I of sub­section (1) of section 16;

(v) The Director of Health and Medical Services and Medical Education, Gujarat State, or the officer designated under clause (iii) of paragraph (B) of Class­ I of sub­section (1) of section 16;

(vi) Two Deans of Faculties nominated by the Vice­ Chancellor from amongst the Deans of Faculties by

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rotation in the manner prescribed by the Statutes;

(vii) Two persons to be elected by the Court from amongst its members who are not teachers or members of the teaching staff of the University, affiliated colleges, recognised institutions and approved institutions and students;

(viii) Two Principals of the affiliated colleges nominated by the Vice­Chancellor by rotation in the manner specified by the Statutes;

(ix) One University professor not being a Dean of a Faculty nominated by the Vice­Chancellor by rotation in the manner prescribed by the Statutes;

(x) One Reader nominated by the Vice­Chancellor by rotation in the manner prescribed by the Statutes;

(xi) Two persons to be nominated by the Chancellor from amongst distinguished educationists, teachers, and such other class of persons irrespective of whether they are members of the Court or not :

Provided that a member nominated under clauses (vi), (viii), (ix) and (x) or elected under clause

(vii) shall cease to hold office as such member if he ceases to be a Dean, a Principal, a University Professor, a Reader or, as the case may be, a member of the Court. (2) The term of office of the elected and nominated members of the Executive Council shall be three years.

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20. Powers and duties of the Executive Council:

(1) Subject to such conditions as may be prescribed by or under the provisions of this Act, the Executive Council shall exercise the following powers and perform the following duties, namely: --

(i) to hold, control and administer the property and funds of the University;

(ii) to enter into, vary, carry out and cancel contracts on behalf of the University in the exercise or performance of the powers and duties assigned to it by or under this Act and the Statutes or the advice of the Finance Committee and the Legal Committee, if any, appointed by the Executive Council;

(iii) to determine the form, and provide for the custody and regulate the use, of the common seal of the University;

(iv) to administer funds placed at the disposal of the University for specific purposes;

(v) to pass the annual financial estimates of the University;

(vi) after the financial estimates are voted--

                        (a)    to reduce the amount of the budget






 C/LPA/630/2016                                                     CAV JUDGMENT DT. 8.2.21

SWAMY VIVEKANAND EDUCATION TRUST v. M P SHAH EDUCATION SOCIETY

grant,

(b) to sanction the transfer of any amount within a budget grant from one minor head to another or from a subordinate head under one minor head to a subordinate head under another minor head, or

(c) to sanction the transfer of any amount not exceeding five thousand rupees within a minor head from one subordinate head to another or from one primary unit to another;

(vii) to make provision for buildings, premises, furnitures, apparatus and other means needed for carrying on the work of the University;

(viii) to accept, on behalf of the University, bequests, donations and transfers of any movable or immovable property to the University;

(ix) to transfer any movable or immovable property on behalf of the University;

(x) to raise loans on the security of the assets of the University;

(xi) to manage and regulate the finances, accounts and investments of the University;

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(xii) to institute and manage--

                       (a)     Printing         and        Publication
                       Department,

                       (b)     University Extension Boards,

                       (c)     Information Bureaus,

                       (d)     Employment Bureaus, and

(e) such other institutions and organisations as may be necessary for the functioning of the University,

(xiii) to make provision--

                       (a)     for    extra­mural          teaching         and
                       research,

                       (b)     for   physical         education,     National

Cadet Corps, National Service Scheme and Military training and such other recognised activities;

(xiv) to manage colleges, departments, institutions of research or specialised studies, laboratories, libraries, museums and hostels maintained by the University;

(xv) to recognise hostels, to inspect such hostels

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and to withdraw recognition therefrom;

(xvi) to provide housing accommodation for University teachers and other employees, to the extent the finances of the University permit;

(xvii) to register high schools situate outside the University area as may be provided by Statutes;

(xviii) to arrange for, and to direct, the inspection of affiliated colleges, recognised institutions, approved institutions and hostels, to issue instructions for maintaining their efficiency and for ensuring proper conditions of employment for members of their staff, and in case of disregard of such instruction to modify the conditions of their affiliation or recognition or take such other steps as it deems proper;

(xix) to call for reports, returns and other information from colleges, recognised institutions, approved institutions or hostels;

(xx) to supervise and control the residence, conduct and discipline of the students of the affiliated colleges, University Departments and recognised and approved institutions and to make arrangements for promoting their health and general welfare and to take disciplinary action against the students;

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(xxi) to institute and confer honorary degrees and academic distinctions in the manner prescribed by the Statutes;

(xxii) to recommend to the State Government withdrawal or reduction of a grant to a college which makes default in carrying out the conditions of affiliation;

(xxiii) to regulate the fees to be paid by the students in affiliated colleges and recognised or approved institutions;

(xxiv) to institute and award fellowships, travelling fellowships, scholarships, studentships, exhibitions, medals and prizes;

(xxv) to appoint academic, administrative and other staff of the University, to fix their emoluments and define their duties and the conditions of their services and to take disciplinary action against them;

(xxvi) to recognise a member of the staff of an affiliated college or recognised institution or approved institution as professor, reader, lecturer or teacher of the University and withdraw such recognition;

(xxvii) to fix remuneration of examiners and to arrange for the conduct and for publishing the

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results of the University examinations and other tests;

(xxviii) to fix, demand and receive such fees and other charges as may be prescribed by the Ordinances;

(xxix) to lay down and regulate salary scales, allowances and conditions of service of officers (other than the Chancellor, the Vice­Chancellor and the Pro­Vice­Chancellor) and members of the teaching, other academic and non­teaching staff of the University;

(xxx) to lay down and regulate salary scales, allowances and conditions of service of the members of the teaching, other academic and non­teaching staff of the affiliated colleges recognised or approved institutions;

(xxxi) to make provision for instruction teaching and training in such branches of learning and courses of studies as it may think fit and for research and for the advancement and dissemination of knowledge;

(xxxii) to make such provision as will enable affiliated colleges and recognised or approved institutions to undertake specialisation of studies;

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(xxxiii) to organise and make provision for common laboratories, libraries, museums and other equipment for teaching and research;

(xxxiv) to establish and maintain departments and institutes of research and specialised studies;

(xxxv) to institute profesorships, readerships, lecturerships and other posts of teachers required by the University;

(xxxvi) to institute and confer degrees, titles, diplomas and other academic distinctions;

(xxxvii) to make, amend or repeal the Statutes and Ordinances;

(xxxviii) to elect office bearers and authorities as provided in the Ordinances and the Statutes;

(xxxix) to make provision relating to the use of Gujarati, Hindi (in Devnagri script) and English or all the three languages as the media of instruction and examination;

(xl) to submit to the State Government proposals for conferment of autonomy on any affiliated college or a recognised institution or a University Department or a University college entitling it to privileges in the matters of admission of students, prescribing the courses of study,

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imparting instruction, teaching and training in the courses of study, the holding and conduct of examinations and power to make necessary rules for the purpose;

(xli) to recommend to the State Government withdrawal of autonomy conferred on any affiliated college, recognised institution or a University college or Department;

(xlii) to sanction the transfer of any immovable property;

(xliii) to exercise such other powers and perform such other duties as may be conferred or imposed on it by this Act, Statutes, Ordinances and Regulations;

(xliv) to exercise all powers of the University not otherwise provided for in this Act, or the Statutes and all other powers which are requisite to give effect to the provisions of this Act or the Statutes.

(2) The Executive Council shall make a report of every case of acceptance of property referred to in clause (viii) of sub­section (1) to the Court.

(3) The Executive Council shall not transfer any immovable property without the previous sanction of the State Government and no transfer of immovable property which is not made with such previous

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sanction shall be binding on the University.

(4) The Executive Council may by Ordinance appoint committee to carry out its administrative work and define their constitution, functions and tenure.

(5) The exercise of the powers by the Executive Council under clauses (xxix) and (xxx) of sub­section (1) in so far as they relate to the laying down and regulating salary scales and allowances of officers (other than the Chancellor, the Vice­Chancellor and the Pro­Vice Chancellor) and members of the teaching, other academic and non­teaching staff of the University, affiliated colleges and recognised or approved institutions, shall be subject to the approval of the State Government,

21. The Academic Council:

(1) The Academic Council shall be the academic body of the University and shall consist of the following persons, namely:--

(i) The Vice­Chancellor, Ex­Officio Chairman

(ii) The Pro­Vice­Chancellor, if any, Ex­Officio;

(iii) The Deans of Faculties, Ex­Officio;

(iv) The Heads of University Departments, Ex­ Officio;

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(v) One lecturer to be nominated by the Vice­ Chancellor from each faculty by rotation in the manner specified by the Statutes;

(vi) One representative of Heads of recognised institutions and four Principal of affiliated colleges nominated by the Vice­Chancellor by rotation in the manner specified in the Statutes:

Provided that ­

(a) Where only one of the offices of the Principals of affiliated colleges is held by a woman, such woman shall be nominated as one of the four Principals, and

(b) Where more than one offices of Principals of affiliated colleges are held by women, one out of those women shall be nominated by the Vice­Chancellor by rotation in the manner specified by Statutes, as one of the four Principals;

(vii) not more than fifteen Chairmen of Boards of Studies nominated by the Vice­Chancellor by rotation in the manner specified in the Statutes :

Provided that a member specified in any of the clauses (iii) to (vii) shall cease to hold office as such member if he ceases to be a Dean of a Faculty, Head of University Department,

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Professor, Reader, Lecturer, Head of a recognised institution, Principal of an affiliated college or, as the case may be, the Chairman of a Board of. Studies. (2) As soon as the Academic Council is constituted under sub­section (1), it may co­opt as its additional members two eminent persons who are experts in any of the subjects taught in the University, whether they are or are not connected with the University as its members, teachers or otherwise.

(3) The term of office of the members of the Academic Council other than ex­officio members shall be one year.

22. Powers and duties of Academic Council:

(1) The Academic Council shall have the control and general regulation of, and be responsible for, the maintenance of the standards of teaching and examinations with the University.

(2) Without prejudice to the generality of the foregoing provisions and subject to such conditions as may be prescribed by or under the provisions of this Act, the Academic Council shall exercise the following powers and perform the following duties, namely:­

(i) to approve Regulations made by the Faculty concerned laying down courses of study;

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(ii) to approve Regulations made by the faculty concerned regarding the special courses of study;

(iii) to arrange for co­ordination of studies and teaching in affiliated colleges, recognised institutions and approved institutions;

(iv) to promote research within the university;

(v) to approve proposals for allocating subjects to the Faculties;

(vi) to make proposals for the establishment of University Departments, institutes of research and specialised studies, libraries, laboratories and

(vii) to approve and to recommend to the Executive Council proposals for the institution of professorships, readerships, lecturerships and any other posts of teachers required by the University and for prescribing the duties of such posts;

(viii) to approve and to recommend to the Executive Council proposals for the institution of fellowships, travelling fellowships, scholarships, studentships and medals and other awards and to make regulations for their award;

(ix) to make Regulations regarding the

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examinations of the University and the conditions on which students shall be admitted to them;

(x) to make and approve Regulations prescribing the equivalence of examinations;

(xi) to approve Regulations prescribing the manner of granting exemption from approved courses of study in the University or in affiliated colleges for qualifying for degrees, diplomas and certificates;

(xii) to recommend to the Executive Council affiliation of a college and recognition or approval of an institution;

(xiii) to recommend to the Executive Council the institution, conferment and grant of degrees, diplomas and certificates in the manner prescribed by the Statutes;

(xiv) to recommend to the Executive Council the conferment of honorary degrees and other academic distinctions, in the manner prescribed by the Statutes;

(xv) to recommend to the Executive Council the institution of depart­ments and Faculties;

(xvi) to exercise such other powers and perform

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such other duties as may be conferred or imposed on it by this Act, Statutes, Ordinances and Regulations; and

(xvii) generally to advise the University on all academic matters.

35. Affiliation:

(1) A college applying for an affiliation to the University shall send a letter of application to the Registrar, not later than 31st March of the year preceding the year in which the college is proposed to be started:

Provided that, on the recommendation of the Vice­Chancellor, the Executive Council may, if it is satisfied that there are special reasons to do so, after recording such reasons, entertain a letter of application sent to the Registrar after 31st March.

(2) A college applying for an affiliation shall satisfy the Executive Council and the Academic Council--

(a) that the college will supply a need in the locality, having regard to the type of education intended to be provided by the college, the existing provisions for the same type of education made by other colleges in neighbourhood and the suitability of the locality where the college is to be established;

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(b) that the college is to be under the management of regularly constituted governing body;

(c) that the strength and qualifications of the teaching staff and the conditions governing their tenure of office are such as to make due provision for the courses of instruction, teaching or training to be undertaken by the college;

(d) that the buildings in which the college is or is to be located are suitable and that provision has been or shall be made, in conformity with the Ordinances, for the residence in the college or in lodging approved by the college, of students not residing with their parents or guardians, and for the supervision and welfare of students;

(e) that due provision is made or shall be made for a library;

(f) that where affiliation is sought in any branch of experimental science, arrangements have been or shall be made in conformity with the Statutes, Ordinances and Regulations for imparting instruction in that branch of science in a properly equipped laboratory or museum;

(g) that due provision is made or shall be made as far as circumstances may permit, for the

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residence of the Principal and other members of the teaching staff in or near the college or the place provided for the residence of students;

(h) that the financial resources of the college are such as to make due provision for its continued maintenance and efficient working;

(i) that the college rules fixing the fees (if any) to be paid by the students have not been so framed as to involve such competition with any existing college in the same neighbourhood as would be injurious to the interest of education;

(j) that for recruitment of the Principal and members of the teaching staff of the college, there is a selection committee of the college which shall include--

(i) in the case of recruitment of the Principal a representative of the University nominated by the Vice­Chancellor, and

(ii) in the case of recruitment of a member of the teaching staff of the college, a representative of the University nominated by the Vice­Chancellor and the Head of the Department, if any, concerned with the subject to be taught by such members:

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Provided that nothing in this clause shall apply to a Government college, a college maintained by Government or a college established and administered by minority based on religion or language;

(k) that the college shall comply with the Statutes, Ordinances and Regulations providing for conditions of service including salary scales and allowances of the teaching and other academic and non­academic staff of an affiliated college, not being a Government college or a college maintained by the Government;

(l) such other conditions as may be specified in the Statutes in accordance with the provisions of this Act.

(3) The application shall contain an assurance that after the college is affiliated, any transference of management and all changes in the teaching staff and all other changes which result in any of the aforesaid requirement not being fulfilled or continued to be fulfilled shall be forthwith report to the Executive Council.

(4) On receipt of a letter of application under sub­ section (1), the Executive Council shall--

(a) direct a local inquiry to be made by a competent person or persons authorised by the

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Executive Council in this behalf in respect of the matters referred to in sub­section (2) and such other matters as may be deemed necessary and relevant;

(b) make such further inquiry as may appear to it to be necessary;

(c) give due consideration to the request, if any, made by the applicant for reconsideration of any of the conditions conveyed to him;

(d) record its opinion after consulting the Academic Council on the question whether the application should be granted or refused either in whole or in part, stating the result of any inquiry under clauses (a) and (b):

Provided that where the views of the Academic Council with regard to the affiliation of a college are not acceptable to the Executive Council, the Executive Council shall refer the matter again to the Academic Council, with or without its comments, and the Academic Council shall communicate again to the Executive Council its views with regard to the affiliation of the College.

(5) The Registrar shall submit the application and all proceedings, if any, of the Academic Council and the Executive Council relating thereto to the State

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Government which shall after such inquiry as may appear to it to be necessary, grant or refuse the application or any part thereof.

(6) Where the application or any part thereof is granted, the order of the State Government shall specify the courses of the instructions in respect of which the college is affiliated and where the application or any part thereof is refused, the grounds of such refusal shall be recorded.

(7) As soon as possible after the State Government makes its order, the Registrar shall submit to the Executive Council and the Academic Council a full report regarding the application, the action taken thereon under sub­sections (4) to (6) and of all proceedings connected therewith.

(8) An application under sub­section (1) may be withdrawn at any time before an order is made under sub­section (6).

(9) Every college, not being a college established and administered by a minority whether based on religion or language which immediately before the commencement of this Act was affiliated to the Gujarat University and is on such commencement affiliated to the University shall as and when occation first arises after such commencement for recruitment of the Principal and the teachers of the college, constitute or

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reconstitute its selection committee in conformity with the requirements mentioned in clause (j) of sub­section (1) as if the said college had been affiliated subject to the condition in the said clause (j)."

19. The rationale and requirement to take 'No Objection' from

the other similarly situated institutions in the same vicinity is not

a clearly stipulated requirement in the Act in Section 35, but the

only requirement is for the Executive Council and Academic

Council is to satisfy themselves that there is a need in the locality

for such new institution to supply to such need. While such

assessment of need of allowing a fresh educational institution in

the area where a similar institution already exists in the periphery

of 25 kms., can be appreciated, but we cannot countenance any

such legal right vested in any objector to stall or not to permit

such approval at all. If the requirement of obtaining NOC from

the other institutions was to be upheld, it will very easily scatter

and spill the inquiry to be conducted by the competent Executive

Council and Academic Council to be played in the hands of

private competitors in this business. We are consciously using

the term 'competition' and 'business' in the field of education

because, unfortunately, imparting education has been pushed

down to the level of 'Business' for profit and gain rather than a

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pious obligation of the State and controlling bodies to raise it to a

much higher pedestal of need to provide adequate infrastructure

for education to all concerned as the education is not only a

fundamental right within the meaning of Article 21­A of the

Constitution of India as held by the Hon'ble Supreme Court also

time and again in a catena of decisions but is also per se a human

right for the dignified life under Article 21 of the Constitution of

India.

20. The Division Bench of Madras High Court in the case of

Mettur Gas Service vs. Indian Oil Corporation Ltd. [2019 SCC

online Mad 26905] to which one of us (Vineet Kothari, J.) was a

party, had in a case where the setting up of a new gas agency was

objected to by another competitor negatived that objection and

relying upon the Supreme Court decisions in the case of

Mithilesh Garg vs. Union of India [(1992) 1 SCC 168] and in the

case of Nagar Rice & Flour Mills & Ors. vs. N. Teekappa Gowda

& Bros. & Ors. [(1970) 1 SCC 575] and held that the objection in

this regard by a rival businessman could not be sustained and he

had no locus standi to challenge the setting up a new petrol pump

arising of its new business place. The relevant portion from para 4

of the said judgment is quoted below for ready reference:

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"4(c) This matter is covered by the Division Bench Judgment of this Court in a case of Nataraja Agencies rep. by its Proprietor Vs. The Secretary, Ministry of Petroleum and Natural Gas reported in 2005 (1) CTC 394 wherein this Court has clearly held that the rival businessmen has no locus standi to challenge the setting up of new petrol bunks around his business place. The Division Bench after following the Judgment of the Hon'ble Supreme Court in the case of Mithilesh Garg Vs. Union of India, reported AIR 992 SC 443 had held as follows:

"3. The Supreme Court in Mithilesh Garg v. Union of India, AIR 1992 SC 443, held that a rival businessman cannot file a writ petition, challenging the setting­up of a similar unit by another businessman, on the ground that establishing a rival business close to his business­place would adversely affect his business interest, even if the setting­up of the new unit is in violation of law. In Mithilesh case, cited supra, the Supreme Court followed its own decision in Rice and Flour Mills v. N.T. Gowda, AIR 1971 SC 246, wherein it was held that a rice mill­owner has no locus standi Order dt. 24.10.2019 in W.A.

Nos.2527 to 2529 of 2013 Mettur Gas

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Service v. Indian Oil Corporation Ltd 7 / 10 to challenge under Article 226, the setting up of a new rice­mill by another even if such setting up be in contravention of Section 8(3)(c) of the Rice Milling Industry (Regulation) Act, 1958 because no right vested in such an applicant is infringed.

4. In the present case, the only grievance of the appellant is that if the fourth respondent is permitted to set up her retail outlet within one kilometer radius of the appellant's outlet, his business interest would be adversely affected. In our opinion, the appellant has no locus standi at all to complain against the setting up of a rival retail outlet by the fourth respondent, near his place of business, on the ground that would affect his business interest, inasmuch as the damage, if any, suffered thereby was damnum sine injuria­ damage without infringement of legal right. In our opinion, this will only result in promoting competition among the traders, which is good for the consumers. Merely because some of the customers may switch over to the rival retail outlet does not mean that public interest will suffer

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rather, in our opinion, it will benefit the consumers because, when there is competition, the businessmen are compelled to provide better quality products at reasonable rates."

21. The University Education Commission appointed in 1948

headed by Dr. S. Radhakrishnan as its Chairman and nine other

renowned Educationists in its Report, said the following about

education:

"All education is expected to be liberal. It should free us from the shackles of ignorance, prejudice and unfounded belief. If we are incapable of achieving the good life, it is due to faults in our inwards being, to the darkness in us. The process of education is the slow conquering of this darkness. To lead us from darkness to light, to free us from every kind of domination except that of reason, is the aim of education."

22. Therefore, any such restriction, encumbrance or hindrance

while interpreting such provisions of Statutory Acts, Enactments,

Laws or Bye­laws, one has to keep in mind the primary objective

of education and compliance with the procedures for achieving

the object of imparting education is only secondary.

23. No doubt that the procedure envisages in Section 35 of the

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Act read with Government Guidelines laid down in the

Government Circular dated 21.12.2001 are not without a

meaning or are meant to be disregarded, but at the same time,

they cannot have a crippling negative effect and a meticulous

compliance with such procedure in a step­by­step manner

cannot be examined by the Court, while doing a judicial review of

such decision­making process of the competent bodies under the

Act. Ultimately, it is the subjective satisfaction of these bodies

based on objective consideration of the relevant material which

can be looked into by the courts of law while testing such

decision­making process on the anvil of Article 14 of the

Constitution of India. It is the arbitrariness or unfairness in such

decision­making process which can render these decisions as

offending Article 14 of the Constitution of India which would be

liable to be struck down and not the absence of each step­by­step

meticulous compliance with such procedures which at best are

only directory in nature.

24. The objector in the present scenario could not take a better

or higher pedestal than a complainant in a criminal trial. The

complainant can file a complaint and assist prosecution in the

criminal trial but cannot insist on conviction of the accused. It is

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for the prosecution to establish the guilt of the accused beyond

reasonable doubt which results in conviction and not the

averments made in the complaint by the complainant. The Civil

Law which is based on preponderance of the probabilities rather

than proving the guild beyond reasonable doubt in Criminal

Jurisprudence, should, therefore, have much wider and liberal

interpretation of the right of the objector in such cases.

25. Even if we agree with the learned senior counsel Mr. Shalin

Mehta that the objector had a locus standi under Section 32(2) of

the Act of 1986, it is only a right of say and no right to prohibit.

Therefore, the locus standi of the objector is a flimsy one and not

on a firm footing, who can see through to it that his objections

prevail over the decision­making process of the competent

bodies, like Executive Council or Academic Council. Therefore,

we wonder whether the objector MPSES could have even invoked

the writ jurisdiction to see that its objections prevailed by

insisting upon a step­by­step meticulous compliance of the

procedure laid in Section 35 of the Act of 1986. There is no case of

mala fide, either malice­in­fact or malice­in­law established

before us by anybody, much less by the Petitioner­objector

MPSES. Therefore, we have reason to believe that it is only fear of

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adverse effect on its business interest which led the Petitioner­

objector to knock the doors of this Court.

26. The argument that overriding the recommendation of the

Academic Council which requested the Executive Council to

defer the consideration of the Appellant's Application was against

the procedure laid down and therefore, the decision of the

Executive Council should be struck down, is also equally

fallacious. The Act of 1986 clearly spells that the Executive

Council is a much higher empowered Body and comprises of

more persons from various fields including bureaucrats of the

State Government or two persons to be elected by the Court from

amongst its members who are not teachers, etc., whereas

Academic Council comprises of a shorter body of in­house Vice

Chancellor and Professors and the powers of Academic Council

enumerated in Section 22 of the Act of 1986 are also far narrower

than the wide powers of Executive Council enumerated in

Section 20 of the Act of 1986 quoted above.

27. Therefore, in our opinion, the Executive Council could

justifiably take a decision looking to the expediency of the matter

involved before them and dispensing with the requirement of

obtaining NOC from other competitors of the same locality and

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even otherwise coming to a conclusion about the need of setting

up of a new educational institution in that area could disagree

with the recommendation of the Academic Council and proceed

further to consider the application of the Appellant - SVET and

even grant approval which, in turn, came to be approved in­

principle further by the State Government. Thus, when two

higher bodies viz. Executive Council of the University under the

Act of 1986 and the State Government itself - the final authority

have considered it appropriate to grant in­principle approval to

the Appellant's Commerce College - SVET, we fail to understand

how the objector can agitate any more the issue and insist on re­

consideration or quashing of the approval under the directions of

the Court.

28. The learned Single Judge, with great respects, in our

opinion, did not link up the minor lapses in the compliance with

the procedure laid down, even if it is assumed to be so, to the

objective sought to be achieved and actually achieved to serve the

purpose of the Act of 1986 to ensure wider and fair provision of

the education in Commerce field in that particular area. The

punitive approach of the learned Single Judge against the

budding educational institution viz. SVET and imposing heavy

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costs upon it to the extent of Rs.1,00,000/­ and upon the

University also to the extent of Rs.50,000/­ is unpalatable and we

find ourselves unable to put our imprimatur on the same.

29. The subsequent developments, for which the Affidavits

have been filed by the Appellant, amply show that setting up of

the said new Commerce College by the SVET has not only served

the purpose by providing better education in Commerce field

and enrollment of students in these two institutions have almost

been at par, but the success results of the Appellant have been

prima facie shown to be better than those in the objector

institution MPSES. On a hindsight, we feel that the objector

ought to have done better in concentrating upon the better

administration of its own college and raising its own educational

standards rather than fighting legal battles in the courts of law to

see that no other competitor takes a march over its mediocrity

and excels in the field of education and is able to provide better

education to the students. In the field of Commerce as a subject.

30. On an overview of the situation also and with the rapid

increase in the population and number of students increasing

ever, we cannot even appreciate the restrictions put about the

existence of more than one or more educational institutions to

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provide such education and these variety of factors which may be

relevant to determine the need for setting up of more of such

educational institutions, which is ever changing and therefore, no

static criteria or yardsticks can be fixed even by the competent

bodies under the Act of 1986. The purpose of affiliation and

approval with the statutory Universities is obviously to ensure

objective and uniform standards of education where the quality

control over the colleges or institutions can be supervised and

maintained by the statutory Universities, but nonetheless the

right to set up such educational institutions cannot be curtailed

or restricted by the concerned competent bodies.

31. In the present case, what we see, to our dismay, is that an

objector or a competitor which is how we would like to describe

the Respondent MPSES, the Petitioner before the learned Single

Judge has not only objected against SVET but approached the

court of law seeking to somehow ensure that the Appellant

cannot enter the field even though the competent body Executive

Council came to a fair decision that a need of that nature existed

and the requirement to obtain NOC from competitors was

without any justification and therefore, in the absence of any

statutory requirement to that effect, such a procedure to obtain

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NOC from the competitor(s) could be dispensed with and the

application of the Appellant could be processed further in a fair

and reasonable manner on the basis of material available on

record which the Executive Council did and recommended to the

State Government to grant further approval which the State

Government also granted only to be perished at the hands of the

learned Single Judge.

32. Thus, in view of the aforesaid, we are of the opinion that the

present Appeal filed by Swamy Vivekanand Education Trust has

to be allowed and the same is accordingly allowed and the CAV

Judgment of the learned Single Judge dated 5.7.2016 is set aside.

No order as to costs.

33. Consequently, the Civil Applications are disposed of.

Sd/­ (DR. VINEET KOTHARI,J)

Sd/­ (GITA GOPI,J) Bharat