Kerala High Court
Islamic Mission Trust vs State Of Kerala on 19 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942
WP(C).No.19796 OF 2020(Y)
PETITIONER:
ISLAMIC MISSION TRUST
SANTHAPURAM,PATTIKKAD-PO,PERINTHALMANNA,
MALAPPURAM DISTRICT,PIN-679325,REPRESENTED BY
ITS SECRETARY,
M.T.KUHALAVI,S/O MUHAMMED.
BY ADVS.
SHRI.P.VENUGOPAL
SMT.T.J.MARIA GORETTI
SMT.FERHA AZEEZ
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY
TO GOVERNMENT,DEPARTMENT OF HIGHER
EDUCATION,3RD FLOOR,SECRETARIAT
ANNEXE,THIRUVANANTHAPURAM,PIN-695001.
2 UNIVERSITY OF CALICUT,
REPRESENTED BY ITS REGISTRAR,
CALICUT UNIVERSITY.P.O, MALAPPURAM
DISTRICT,PIN-673635.
3 ADDL.R3. BAR COUNCIL OF INDIA,
21 ROUSE AVENUE INSTITUTIONAL AREA,
NEAR BAL BHAWAN, NEW DELHI, PIN - 110 002.
REPRESENTED BY ITS SECRETARY.
(ADDITIONAL R3 IS IMPLEADED AS PER ORDER DATED
01/12/2020 IN I.A.1/2020 IN WP(C)19796/2020.)
R1 BY GOVERNMENT PLEADER
R2 BY SRI.P.C.SASIDHARAN, SC, CALICUT
UNIVERSITY
SPL GOVERNMENT PLEADER- SRI M.A ASIF ; SRI
K.R.RAJITH- STANDING COUNSEL FOR ADDL R3.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
19.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C)No.19796 of 2020
2
JUDGMENT
The petitioner, namely, Islamic Mission Trust, registered
under the Indian Trust Act, 1882, has filed this writ petition
under Article 226 of the Constitution of India, seeking a writ of
certiorari to quash Ext.P4 communication dated 03.03.2020
issued by the 2nd respondent University of Calicut; a writ of
certiorari to quash Ext.P5 communication dated 08.04.2013
issued by the 1st respondent State; a writ of mandamus
commanding the 2nd respondent University to consider Ext.P3
application submitted by the petitioner to open a new law college
in Malappuram District, in accordance with law, within a time
limit to be fixed by this Court; and a writ of mandamus
commanding the 1st respondent State to issue necessary
approval/concurrence/NOC in order to enable the 2 nd respondent
to process Ext.P3 application.
2. Going by the averments in the writ petition, the
petitioner made Ext.P3 application for starting a new law college
at Poopalam in Perinthalmanna. The 2nd respondent University
has issued Ext.P4 communication dated 03.03.2020, whereby the
petitioner was informed that the University is not in a position to
WP(C)No.19796 of 2020
consider the said application as there are already three law
colleges functioning in Malappuram District. Feeling aggrieved,
the petitioner has filed this writ petition seeking various reliefs as
stated hereinbefore.
3. On 24.09.2020, when this writ petition came up for
admission, this Court admitted the matter on file. The learned
Government Pleader took notice for the 1 st respondent. The
learned counsel for the petitioner was directed to serve a copy of
the writ petition to the learned Standing Counsel for the 2 nd
respondent University.
4. A counter affidavit has been filed by the 2 nd
respondent University, opposing the reliefs sought for in this writ
petition. The petitioner has also filed reply affidavit.
5. A statement has been filed on behalf of the 1 st
respondent State, producing therewith Annexure I decision taken
by the Bar Council of India, on 11.08.2019, imposing moratorium
for new law colleges.
6. Pursuant to the order of this Court dated 05.01.2021,
the learned Standing Counsel for the University has made
available for the perusal of this Court a photocopy of the files
WP(C)No.19796 of 2020
relating to Ext.P3 application.
7. Heard the learned counsel for the petitioner, the
learned Special Government Pleader appearing for the 1 st
respondent State, the learned Standing Counsel for the 2 nd
respondent University and also the learned Standing Counsel for
the additional 3rd respondent Bar Council of India.
8. The learned Special Government Pleader would point
out the moratorium for new law colleges imposed by the Bar
Council of India, as per Annexure-I decision taken on
11.08.2019.
9. Ext.P4 communication dated 03.03.2020 issued by the
2nd respondent University, whereby Ext.P3 application made by
the petitioner seeking permission to start a new law college in
Malappuram District stands rejected, reads thus:
"As per the reference cited 1 st, you have submitted an
application for starting a new Law College in Malappuram
district for the academic year 2019-20 & 2020-21.
In this connection, I am to inform you that, the Govt.,
vide letter cited 2nd, has informed that Government will
consider only applications from educational trusts from
those districts where no legal educational institutions
exists now.
WP(C)No.19796 of 2020
Hence, it is informed that the University is not in a
position to consider your application for starting a new
law college as there are already three law colleges
functioning in the Malappuram District."
10. Though various reasons have been stated in the
counter affidavit filed by the 2 nd respondent University in order to
justify the stand taken in Ext.P4 communication, for not
considering Ext.P3 application made by the petitioner seeking
permission to start a new law college in Malappuram District,
those reasons find no place in Ext.P4 communication and the only
reason stated therein is the existence of three other law colleges
in Malappuram District.
11. In Mohinder Singh Gill and another v. the Chief
Election Commissioner, New Delhi and others [(1978) 1
SCC 405], the Apex Court held that when a statutory functionary
makes an order based on certain grounds, its validity must be
judged by the reasons so mentioned and cannot be supplemented
by fresh reasons in the shape of affidavit or otherwise.
Otherwise, an order bad in the beginning may, by the time it
comes to Court on account of a challenge, get validated by
additional grounds later brought out. Paragraph 8 of the said
WP(C)No.19796 of 2020
decision reads thus:
"The second equally relevant matter is that when a
statutory functionary makes an order based on certain
grounds, its validity must be judged by the reasons so
mentioned and cannot be supplemented by fresh reasons
in the shape of affidavit or otherwise. Otherwise, an order
bad in the beginning may, by the time it comes to Court on
account of a challenge, get validated by additional grounds
later brought out. We may here draw attention to the
observations of Bose, J. in Gordhandas Bhanji:
Public orders, publicly made, in exercise of a statutory
authority cannot be construed in the light of explanations
subsequently given by the officer making the order of what
he meant, or of what was in his mind, or what he intended
to do. Public orders made by public authorities are meant
to have public effect and are intended to affect the actings
and conduct of those to whom they are addressed and
must be construed objectively with reference to the
language used in the order itself.
Orders are not like old wine becoming better as they grow
older."
12. In Breen v. Amalgamated Engineering Union
[1971 (1) All. E.R. 1148] Lord Denning, M.R. Observed that,
the giving of reasons is one of the fundamentals of good
WP(C)No.19796 of 2020
administration. In Alexander Machinery (Dudley) Ltd. v.
Crabtree [1974 ICR 120] it was observed that, failure to give
reasons amounts to denial of justice. Reasons are live links
between the mind of the decision-taker to the controversy in
question and the decision or conclusion arrived at.
13. Following the principles laid down in the decisions
referred to above, the Apex Court in Chairman and Managing
Director, United Commercial Bank and others Vs.
P.C.Kakkar [(2003) 4 SCC 364] held that, reasons substitute
subjectivity by objectivity. The emphasis on recording reasons is
that if the decision reveals the 'inscrutable face of the sphinx', it
can, by its silence, render it virtually impossible for the courts to
perform their appellate function or exercise the power of judicial
review in adjudging the validity of the decision. Right to reason is
an indispensable part of a sound judicial system. Another
rationale is that the affected party can know why the decision has
gone against him. One of the salutary requirements of natural
justice is spelling out reasons for the order made, in other words,
a speaking out. The 'inscrutable face of a sphinx' is ordinarily
WP(C)No.19796 of 2020
incongruous with a judicial or quasi-judicial performance.
14. A Constitution Bench of the Apex Court has laid down
in Krishna Swami v. Union of India and others [1992 (4)
SCC 605] that, undoubtedly, in a parliamentary democracy
governed by rule of law, any action, decision or order of any
statutory/public authority/functionary must be founded upon
reasons stated in the order or staring from the record. Reasons
are the links between the material, the foundation for their
erection and the actual conclusions. They would also demonstrate
how the mind of the maker was activated and actuated and their
rational nexus and synthesis with the facts considered and the
conclusions reached. Lest it would be arbitrary, unfair and unjust,
violating Article 14 or unfair procedure offending Article 21 of the
Constitution of India. The object underlying the rules of natural
justice is to prevent miscarriage of justice and secure fair play in
action. The recording of reasons by an administrative or quasi-
judicial authority serves a salutary purpose, namely, it excludes
chances of arbitrariness and ensures a degree of fairness in the
process of decisions making. It would apply equally to all
WP(C)No.19796 of 2020
decisions made by such authority and its application cannot be
confined to decisions which are subject to appeal, revision or
judicial review. At the same time, it is not the requirement that,
the reasons should be as elaborate as in the decision of a court of
law. What is necessary is that, the reasons are clear and explicit
so as to indicate that the authority has given due consideration to
the points in controversy. Hence, it is an essential requirement of
the rule of law that, some reasons, at least in brief, must be
disclosed in the order passed by an administrative or quasi-
judicial authority.
15. In Malu M. v. State of Kerala and others [ILR
2015 (3) Ker 869], this Court held that the object underlying
the rules of natural justice is to prevent miscarriage of justice and
secure fair play in action. The recording of reasons by an
administrative or quasi-judicial authority serves a salutary
purpose, namely, it excludes chances of arbitrariness and ensures
a degree of fairness in the process of decision making. It would
apply equally to all decisions made by such authority and its
application cannot be confined to decisions which are subject to
WP(C)No.19796 of 2020
appeal, revision or judicial review.
16. The learned counsel for the petitioner relying on the
judgment of this Court in Sree Dharma Paripalana Yogam and
another v. State of Kerala and others [2016 (1) KLT 833],
would contend that the application for no objection certificate for
starting a new self-financing law college cannot be rejected on
the ground that not more than two self financing law colleges
would not be sanctioned in a District, in order to ensure quality of
legal education in the State of Kerala.
17. The petitioner has not chosen to produce a copy of the
application submitted before the 1st respondent State seeking no
objection certificate. Since Ext.P3 application made by the
petitioner seeking permission to start a new college in
Malappuram District requires reconsideration at the hands of the
2nd respondent University, the aforesaid contention raised by the
petitioner is left open to be raised at the appropriate stage,
before appropriate authority.
In such circumstances, this writ petition is disposed of by
setting aside Ext.P4 communication dated 03.03.2020 issued by
the 2nd respondent University, for the aforesaid reason, and by
WP(C)No.19796 of 2020
directing the University to take an appropriate decision on Ext.P3
application made by the petitioner seeking permission to start a
new law college in Malappuram District, and take an appropriate
decision strictly in accordance with law, taking note of the
relevant provisions under the Calicut University Act, 1975 and
also the Calicut University First Statute, 1977, as expeditiously as
possible, at any rate, within a period of two months from the
date of receipt of a certified copy of this judgment. Before taking
a final decision, the petitioner shall be given an opportunity of
being heard either before the Vice Chancellor of the 1 st
respondent University or before an authorised officer or
Committee, as decided by the Vice Chancellor, and the decision
taken by the University shall be a reasoned one, after adverting
to the various legal and factual contentions raised by the
petitioner.
No order as to costs.
Sd/-
ANIL K. NARENDRAN
JUDGE
yd
WP(C)No.19796 of 2020
APPENDIX
PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE DATED
03.09.2019 ISSUED BY THE SUB
REGISTRAR,MALAPPURAM
EXHIBIT P2 TRUE COPY OF THE CERTIFICATE DATED
27.03.2012 ISSUED BY THE NATIONAL
COMMISSION FOR MINORITY EDUCATIONAL
INSTITUTIONS,GOVERNMENT OF INDIA,D NEW
DELHI IN FAVOUR OF THE PEEITIONER
EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED
21.12.2018 SUBMITTED BY THE PETITIONER
TO THE UNIVERSITY OF CALICUT
EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED
03.03.2020 ISSUED BY THE SECOND
RESPONDENT TO THE PETITIONER
EXHIBIT P5 TRUE COPY OF THE LETTER DATED
08.04.2013 ISSUED BY THE FIRST
RESPONDENT TO THE SECOND
RESPONDENT,TOGETHER WITH A LEGIBLE TYPE
WRITTEN COPY.
1ST RESPONDENT'S ANNEXURE:
ANNEXURE-I TRUE COPY OF THE RESOLUTION NO.241/19
DATED 11.08.2019 OF THE BAR COUNCIL OF
INDIA.
TRUE COPY
P.A. TO JUDGE
