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Sri Mudaliambal Trust v. The Anna University - W.P. NO. 29077 of 2002  RD-TN 863 (8 November 2002)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR. JUSTICE E. PADMANABHAN
W.P. NO. 29077 of 2002
and W.P.Nos. 29078, 29530, 31790, 31811,
31857, 32020 TO 32022, 32034, 32036, 32067,
32090, 32096, 32239, 32359 & 32814 OF 2002
W.P.M.P. NOS.47378, 47379, 47947, 46326, 46354,
46406, 46607,46608, 46610, 46611, 46613, 46614,
46629, 46633, 46670, 46699, 46700, 46710, 46883, 46884, 47070, 48813, 49624, 48698, 49626, 49628, 49625, 49627, 49623, and 49622 OF 2002
W.P.NO. 29077 OF 2002
Sri Mudaliambal Trust
rep. by its Managing Trustee
No.1, Pudhuvayal Road
Pillaithanneer Panthal .. Petitioner in Pudukkottai-622 001 W.P. No.29077/02 - Vs -
1. The Anna University
rep. by its Registrar
Sardar Patel Road
2. The Centre for Engineering Partnership
rep. by its Director
3. The Secretary
Tamil Nadu Engineering Admission
Anna University .. Respondents in Chennai-600 025. W.P. No.29077/02 Seventeen petitions filed under Article 226 of The Constitution of India praying this Court to issue a Writ of Certiorarified Mandamus as stated therein.
For Petitioners : Mr. R.Krishnamurthi, SC, for Mr. V.Sanjeevi
Mr. K.Doraisami, SC, for
Mr.Mohan Parasaran, SC, for
Mr. T.R.Rajagopalan, SC, for
Mr. PL. Narayanan
Mr. Issac Mohanlal
For Respondents : Mr. N.R.Chandran, AG,
assisted by Mr. V.R.Rajasekaran, Spl.G.P. (Education) for R3
Mr. G.Masilamani, SC, for
Mr. Vijay Narayan for AICTE
1. W.P. No.29077 of 2002 is filed by Sri Mudaliambal Trust praying for the issue of a writ of certiorarified mandamus calling for the records of the first respondent relating to the order bearing reference ANNA/CEP/FA/15 dated 30.7.2002, quash the same and consequently direct the first respondent to grant affiliation to MNSK College of Engineering at Dakshanapuram, Alangudi Taluk for the academic year 2002-2003 .
2. W.P. No.29078 of 2002 is filed by Annai Ammani Ammal Education and Charitable Trust praying for the issue of a writ of certiorarified mandamus to call for the records of the first respondent, the Anna University relating to order bearing reference ANNA/CEB/FA/10 dated 30.7 .2002, quash the same and consequently direct the first respondent to grant affiliation to ARJ College of Engineering at Thirumakottai from the academic year 2002-2003. 3. W.P. No.29530 of 2002 is filed by R.V.Educational Trust praying for the issue of a writ of certiorarified mandamus calling for the records of the first respondent relating to the order bearing reference ANNA/CEP/FA 9 dated 30.7.2002, quash the same and consequently direct the first respondent to grant affiliation to Udaya School of Engineering, Udaya Nagar, Vellamadi Junction, Kanyakumari District for the academic year 2002-2003. 4. W.P. No.31790 of 2002 is filed by V.S.B. Educational Trust praying for the issue of a writ of certiorarified mandamus calling for the records of the first respondent relating to the order bearing reference ANNA/CEP/FA/4 dated 30.7.2002, quash the same and consequently direct the first respondent to grant affiliation to V.S.B. Engineering College. 5. W.P. No.31811 of 2002 is filed by Infant Jesus Educational Trust praying for the issue of a writ of certiorarified mandamus calling for the records of the first respondent relating to the order bearing reference ANNA/CEP/FA/2 dated 30.7.2002, quash the same and consequently direct the first respondent to grant affiliation to Infant Jesus College of Engineering, Kilavallanadu, Srivaikundam Taluk, Tuticorin District.
6. W.P. No.31857 of 2002 is filed by Sri Padmavathi Balaji Educational Trust praying for the issue of a writ of certiorarified mandamus calling for the records of the third respondent relating to the order bearing reference ANNA/CEP/FA/7 dated 30.7.2002, quash the same and consequently direct the third respondent to grant affiliation to P.B. College of Engineering, Irungattukkottai, Sriperumbudur Taluk, Kanchipuram District. 7. W.P. No.32020 of 2002 is filed by Paramasivam Palanisamy Charitable Trust praying for the issue of a writ of certiorarified mandamus calling for the records of the first respondent relating to the order bearing reference ANNA/CEP/FA/5 dated 30.7.2002, quash the same and consequently direct the first respondent to grant affiliation to Prithvi Engineering College at Kuppandapalayam Post, Avinashi Taluk, Coimbatore District. 8. W.P. No.32021 of 2002 is filed by Sri Jayaram Educational Trust praying for the issue of a writ of certiorarified mandamus calling for the records of the first respondent relating to the order bearing reference ANNA/CEP/FA/11 dated 30.7.2002, quash the same and consequently direct the first respondent to grant affiliation to Sri Jayaram Engineering College at Chellankuppam, Cuddalore.
9. W.P. No.32022 of 2002 is filed by Sivraja Ramalingam Trust praying for the issue of a writ of certiorarified mandamus calling for the records of the first respondent relating to the order bearing reference ANNA/CEP/FA/17 dated 30.7.2002, quash the same and consequently direct the first respondent to grant affiliation to SRR Engineering College at Padur Village, Chingleput Taluk, Kancheepuram District.
10. W.P. No.32034 of 2002 is filed by Ayanavaram Educational Trust praying for the issue of a writ of certiorarified mandamus calling for the records of the first respondent relating to the order bearing reference ANNA/CEP/FA/8 dated 30.7.2002, quash the same and consequently direct the first respondent to grant affiliation to Dhanish College of Engineering at Padappai, Kancheepuram District.
11. W.P. No.32036 of 2002 is filed by Rajiv Gandhi Memorial Educational Charitable Trust praying for the issue of a writ of certiorarified mandamus calling for the records of the first respondent relating to the order bearing reference ANNA/CEP/FA/13 dated 30.7.2002, quash the same and consequently direct the first respondent to grant affiliation to Udayam Engineering College, Chowkanthangal Village (Nemili Village Group), Sriperumbudur Taluk, Kanchipuram District.
12. W.P. No.32067 of 2002 is filed by KTA & GRS Educational Trust praying for the issue of a writ of certiorarified mandamus calling for the records of the first respondent relating to the order bearing reference ANNA/CEP/FA/6 dated 30.7.2002, quash the same and consequently direct the first respondent to grant affiliation to Bharathi Dasan Engineering College. 13. W.P. No.32090 of 2002 is filed by S.N.R. Sons Charitable Trust praying for the issue of a writ of certiorarified mandamus calling for the records of the first respondent relating to the order bearing reference ANNA/CFP/FA/16 dated 30.7.2002, quash the same and consequently direct the first respondent to grant affiliation to the petitioner's Engineering College for the academic year 2002-2003.
14. W.P. No.32096 of 2002 is filed by Asan Memorial Association praying for the issue of a writ of certiorarified mandamus calling for the records of the first respondent relating to the order bearing reference ANNA/CEP/FA/1 dated 30.7.2002, quash the same and consequently direct the first respondent to grant affiliation to Asan Memorial College of Engineering and Technology. 15. W.P. No.32239 of 2002 is filed by Er.Perumal Manimegalai Telugu Minority Educational & Charitable Trust praying for the issue of a writ of certiorarified mandamus calling for the records of the first respondent relating to the order bearing reference ANNA/CEP/FA/12 dated 30.7.2002, quash the same and consequently direct the first respondent to grant affiliation to Er. Perumal Manimegalai College of Engineering at Nallaganakothapalli, near Koneripalli, 17th Km, HosurKrishnagiri Highways, Hosur. 16. W.P. No.32359 of 2002 is filed by Swamy Educational Trust praying for the issue of a writ of certiorarified mandamus calling for the records of the first respondent relating to the order bearing reference ANNA/CEP/FA/14 dated 30.7.2002, quash the same and consequently direct the first respondent to grant affiliation to Sri Ramanujar Engineering College, Kolapakkam, Vandalur, Chennai.
17. W.P. No.32814 of 2002 is filed by Narayana Guru International Institute of Science & Technology Trust praying for the issue of a writ of certiorarified mandamus calling for the records of the third respondent relating to the order bearing reference ANNA/CEP/FA/3 dated 30.7.2002, quash the same and consequently direct the third respondent to grant affiliation to the petitioner's College.
18. The orders impugned in all the seventeen writ petitions are identical in all respects and the Anna University has declined to grant fresh affiliation for the year 2002-03 as the respective petitioners have not produced the permission prescribed by under Section 37 B of the Tamil Nadu Land Reforms (Fixation of ceiling on land) Act, 1961, besides for non-production of various other certificates prescribed in the application for affiliation. It is also brought to the notice of the Court that few of the petitioner institutions claim minority status since they have been established either by religious minority or by linguistic minority.
19. The counsel for Anna University, the first respondent, filed a counter statement that the petitioner in each of the writ petition failed to produce the permission as prescribed by Section 37 B of the Tamil Nadu Land Reforms (Fixation of ceiling on Land) Act, 1961, besides non-production of one or more of the other certificates listed in serial numbers 10 to 17 of the application form or lack of infrastructural facilities and, hence, the affiliation has not been granted for non-compliance of the requirements prescribed by the University. A counter affidavit has been filed by the Anna University in some of the writ petitions and on behalf of Anna University a memo has been filed adopting the same in all the other writ petitions. 20. At the time of hearing it was represented by the counsel for the petitioners in each of the writ petitions that all requirements except the permission under Section 37 B of the Land Reforms Act have been complied with, while Mr.Masilamani, learned senior counsel appearing for Anna University represented that all other requirements might have been complied with or capable of being complied with, but consideration of application, if at all, is subject to production of permission by the respective petitioners under Section 37 B of the Land Reforms Act or exemption notification under the said Act. Entire arguments or thrust of the arguments advanced by either side relates to the prior permission required under Section 37 B of the Land Reforms Act by the State Government for acquisition of the lands. 21. In respect of other certificates, on behalf of few of the petitioners it was represented that some District authorities have granted such certificates, in some other Districts, authorities, namely, Electrical Inspector/Factories Inspector, etc., have declined to issue such certificates on the view that in respect of educational institutions they are not competent to issue required certificates.
22. Mr.Masilamani, learned senior counsel represented that in respect of these authorities, the State Government would be issuing appropriate directions and, therefore, there may not be any problem for the petitioners producing these certificates as formal directions have to be issued by the State Government. Counsel in each of the writ petition represented that almost all the certificates prescribed by the University have either been produced. Mr.Masilamani, learned senior counsel appearing for Anna University had taken the stand and it may be not necessary for this Court to consider or examine as to production or non-production of certificates other than the permission under Section 37-B of the Land Reforms Act, 1961. 23. The learned senior counsel appearing for the petitioner in each of the writ petition as well as Mr.Masilamani, learned senior counsel appearing for Anna University and Mr.N.R.Chandran, learned Advocate General appearing for the State advanced contentions in respect of the requirement, viz., production of permission from the State Government under Section 37 B of The Land Reforms (Fixation of ceiling on Land) Act, 1961.
24. It is submitted by either side that no objection has been raised nor such permission has been insisted by the All India Council for Technical Education thus far and when it granted approval in consultation with the affiliating University and based on the recommendation of the inspection committee as well as the State Government. The AICTE accorded approval to the college established by the respective petitioner for the academic year 2002-2003 for various branches of engineering, subject to the condition that admission shall be made through the central counselling by the Government of Tamil Nadu and subject to the general conditions as well as the norms and conditions of the All India Council for Technical Education. After securing the approval of the AICTE, the respective petitioner approached Anna University for affiliation by submitting application in the Form prescribed. It is submitted that the Expert Committee not only from the AICTE but also from the Anna University inspected the respective colleges and submitted their report. It is claimed by the petitioners that both Committees reported the availability of prescribed infrastructures for establishing Engineering College. 25. It is admitted that Anna University has not framed any Regulations or Rules prescribing the requirements for grant of affiliation of engineering courses for affiliation of new colleges. Mr.Masilamani, learned senior counsel stated that no rule or regulation has been framed so far in this respect, but the academic council/Vice Chancellor has prepared a format, which requires production of various certificates including the permission under Section 37 B of the Land Reforms Act.
26. It is also brought to the notice of the Court by the counsel on either side that the petitioners have challenged the validity of proviso to Section 5 (ac) introduced by The Anna University Amendment Act, 2001 and a batch of writ petitions filed by each of the writ petitioner are pending. Pending the writ petition/writ appeal, the operation of the said proviso has been stayed. It is further admitted by either side that the Honourable First Bench has directed the State Government to consider the petitioners request for grant of permission under Section 37 B of The Land Reforms Act within a time schedule and orders are yet to be passed by the State.
27. In these batch of writ petitions, the following points arise for consideration :-
"A) Whether the denial of affiliation by the impugned order passed by Anna University to the petitioner in each of the writ petition is illegal, arbitrary, discriminatory and liable to be quashed ? B) Whether Anna University acted illegally and in excess of its authority in insisting as if it is a requirement for grant of affiliation under University laws for production of following permission / certificates :- "(i) Prior permission under Section 37-B of The Land Reforms Act ; (ii) Electrical Inspectors Certificate as prescribed by Indian Electricity Act ;
(iii) Certificate issued by Inspector of Factories under the Factories Act in respect of petitioner Engineering College ;
(iv) Structural soundness certificate issued by PWD Superintending Engineer ; (v) Certificate from Pollution Control Authority." C) Whether Section 37-B could be invoked at all by the petitioner Trusts after having acquired the land without prior permission as mandated ? If so, what is the fate or effect of such acquisition without prior permission ? D) Whether the denial of affiliation by Anna University is vitiated by mala fides ?
E) To what relief, if any, the petitioner in each of the writ petition is entitled to ?"
All the points could be considered together as they are interrelated. 28. Section 37 B of The Land Reforms Act provides, if any public trust created before 1.3.1972 desires to hold or acquire any land in excess of the ceiling or for the purpose of and in the case of any public trust created after 1.3.1972 if such public trust desires to hold or acquire any land for the purpose of establishing any educational institution or hospital or expanding any existing educational institution, it shall make an application to the Government for permission to hold or acquire such land. Such application shall be in writing and shall contain such particulars as prescribed. Educational institutions means any college including engineering college or medical college or agricultural or veterinary college or any school or equivalent institution or any polytechnic.
29. Sub-section (3) of Section 37 B provides that while granting or refusing permission, the Government shall take into consideration the purpose and objects of the public trust; whether the land is required for the immediate use or use in future and such other particulars as may be prescribed. Such permission could be granted subject to Section 73 of the Act. 30. It is pointed out by the learned Advocate General that in terms of Section 37 B prior permission alone is contemplated. A reading of Section 37 B makes it clear that before acquisition such permission has to be secured by the public trust. In other words, only after securing the permission of the Government, lands could be acquired by a public trust even for the purpose of an educational institution.
31. Section 5 (1) (c) prescribes the ceiling or in the case of institutions mentioned in column (1) of the table and in existence on the date of commencement of the Act. Section 5 (1)(c) has no application to a public trust, which was not in existence on the date of commencement of the Act. Section 5 (1)(c)(ii) provides that any trust holding land on the date of commencement of the land less than the extent specified in the table shall acquire by no means whatsoever after that date any lands in excess of land so held.
32. According to Section 5 of The Land Reforms Act, Public Trust holding no lands at all on the date of commencement of the Act shall acquire by no means whatsoever any land after the date of commencement of Act. In other words, a public trust, which has been constituted after the commencement of the Act is prohibited from acquiring any land by any means whatsoever after the commencement of the Act except with prior permission under Section 37 B. 33. The petitioner in each of the writ petition is admittedly a public trust constituted recently and long after the commencement of the Land Reforms Act, 1961, and in terms of Section 5 is prohibited from acquiring land for the purpose of Engineering college established by it except with prior permission under Section 37 B.
34. Section 5 (d)(ii) further mandates that any public trust of a charitable nature holding land on the date of commencement of the Act lands less than five standard acres shall acquire by any means whatsoever after that date any land in excess of the land so held and holding any land at all on the date of the commencement of this Act shall acquire by any means whatsoever after that date any land. Thus there is a total embargo or prohibition of any public trust acquiring land after the commencement of the Act. In other words, no public trust existing on the date of commencement of the Act or constituted at any time thereafter shall acquire lands after the commencement of the Act any lands even for the purpose of establishing a charitable institution or for establishing an educational institution. Even those public trusts which are holding lands less than the extent prescribed in the table on the date of the commencement of the Act also cannot acquire any lands. The clauses and provisos of Section 5 of The Land Reforms Act are mandatory. 35. Therefore, it is pointed out by the learned senior counsel appearing for the University as well as by the learned Advocate General that the petitioner trust in each of the writ petition is prohibited from acquiring any land for the purpose of establishing an educational institution and they could not have validly acquired land for establishing an institution except after getting prior approval before the acquisition under Section 37 B. It is rightly pointed out that the said provision is mandatory, as in terms of Section 20-A acquisition of any land made in contravention of the provisions of sub-sections (ii) (a) (b) or (d) (i) (ii) of Section 5 shall be null and void and any land which is so acquired shall as a penalty for such contravention, be deemed to have been transferred to the Government with effect from the date of such acquisition on a declaration by the authorised officer within whose jurisdiction such land or the major part thereof situate. 36. It is pointed out that acquisition of the land by the petitioner in each of the writ petition for the purpose of establishing an engineering college is legally invalid and it is deemed to have been transferred to the Government from the date of transfer and not a valid or legal acquisition at all. In other words, it is rightly contended that the petitioner trust is not in possession of any land, much less, lawfully so as to enable it to establish a college or an educational institution and, therefore, the petitioner cannot compel the respondent-University to grant affiliation. According to the learned senior counsel, the provisions of Section 5 being mandatory, there could be no acquisition at all in the eye of law by the petitioner public trust without a prior permission under Section 37 B of the Act. If any land is acquired in contravention, the acquisition is null and void and any land which is so acquired shall be deemed to have been transferred to the Government with effect from the date of such acquisition. 37. It is pointed out by the learned counsel appearing for for the writ petitioners that till date no action or notice whatsoever has been issued by the authorised officer under Section 21-A, yet the petitioner have moved the State Government for necessary permission under Section 37 B after the acquisition of the land. It is further pointed out that the AICTE which has granted permission has not raised such an objection nor the State Government which has issued no objection certificate has raised such an objection and, therefore, such objection cannot be raised by Anna University. The regulations of the Anna University also do not prescribe for production of permission in respect of the holding of the land by the petitioner trust and, therefore, the University cannot insist for the production of such a permission under Section 37 B since it is beyond the authority of the respondent University. This contention cannot be countenanced and it is a misconception of the Land Reforms Act. Unless the petitioner trust legally holds and is in occupation of prescribed extent of land, the petitioner is not at all eligible for grant of affiliation as it would amount to not being possessed of the requisite infrastructure.
38. Another extreme contention being that having not stipulated production of such a permission, it is too late for Anna University to insist for production of permission under Section 37 B as the University is bound to grant affiliation when once the petitioner satisfies the requirement prescribed by the University in respect of academic matters alone and the University shall not insist for permission or other certificates, which are not contemplated or provided for or stipulated by the statutory provisions of the Anna University Act or the regulations framed thereunder. It is to be pointed out that when the petitioners are not holding lands legallly nor in possession of the lands, much less validly, and acquisition being in contravention of Section 5, being null and void, it is not open to the petitioner to contend that no such permission could be insisted at all by the University. 39. It is true that the Anna University Act or regulation do not provide for or contemplate production of such certificate or permission. The University after considering the application for affiliation could very well call upon the petitioner in each of the writ petition to produce few of the certificates or no objection certificates or permission including a permission under Section 37 B and it is well open to the University to insist for the production of permission without which the petitioner Trust cannot claim to be a legal owner in lawful possession.
40. It is contended by the counsel for the petitioner that the University is not an authority to enforce the provisions of The Land Reforms (Fixation of Ceiling on Land) Act, 1961 and, therefore, the University cannot insist for production of a permission under Section 37 B nor the University could exercise the powers as an Authorised officer under the Land Reforms Act and action, if any, in this respect has to be initiated by the Authorised officer having jurisdiction and till then the petitioners title and possession cannot be disputed.
41. This contention advanced by the counsel for the petitioner though attractive overlooks the fact that acquisition without a prior permission under Section 37 B by a public trust is prohibited and such acquisition is invalid and, therefore, the very possession of land and buildings are doubtful and the very corpus or foundation of the college being established falls like a house of cards. It may that a formal declaration has to be issued under Section 37 B by the Authorised officer which is a formality as the acquisition by the petitioners is in violation of the Act. The legal effect of Section 20-A is obvious as the acquisition of any land which is so acquired shall, as a penalty, is deemed to have been transferred to the Government with effect from the date of such acquisition. What remains to be done is a declaration by the Authorised officer and he has to follow the simple procedure prescribed Section 20-A.
42. The mandatory provision, which prohibits acquisition, such acquisition being in violation of statutory provision and the consequence being that the land so acquired shall stand transferred to the State Government as a penalty would show that the acquisition by the petitioner Trust cannot be considered to be a valid acquisition or legal acquisition for the purpose of establishing an educational institution. In terms of the provisions of the AICTE Regulations, the petitioner, a public trust has to own and possess the required extent of land and such possession or holding should be lawful. For the purpose of establishing an educational institution or a professional college, it is also essential that it should be by a public trust in terms of the guidelines laid down by the Supreme Court as well as the provisions of the AICTE Act and the Regulations framed therein.
43. It is admitted that the petitioner has established the college with necessary infrastructure and admissions have also been made through the single window system for various branches of engineering and the petitioner college has started the course. But for the affiliation, all formalities, it is asserted by the petitioners, have been complied with and affiliation being a formality, which is required to be granted by the University when once the petitioner satisfies the requirements prescribed by the AICTE as well as the University authorities, it is contended that the respondent University cannot insist for production of a permission under Section 37 B of The Land Reforms ( Fixation of Ceiling on Land) Act. It is also contended that neither the University could refuse affiliation after the grant of approval by the AICTE. 44. It is pointed out that AICTE which has granted approval has not examined the effect of the provisions of the Land Reforms Act before according approval for establishment of the engineering college to the petitioner trust. In this respect, Mr.Vijay Narayan, learned counsel appearing for AICTE fairly stated that all these days the attention of the AICTE has not been drawn to the provisions of The Land Reforms Act and AICTE had not examined the implication of the Land Reforms Act on the application for approval and hitherto all the approvals/ permissions for the establishment of professional college has been granted without reference to The Land Reforms Act. 45. It is further submitted that AICTE has proceeded on the assumption that acquisition of the land and holding of the land by all the trusts who propose to establish a professional colleges is valid and it is not violative of the statutory provisions of The Land Reforms Act and only on that premise approval has been granted. Mr.Vijay Narayan states that hereafterwards AICTE will give appropriate instructions or take action in this respect to avoid such contingency. The stand of the AICTE is it has overlooked this aspect and hereafterwards it shall insist for the production of necessary permission or such other compliance as may be required by State enactments as well. 46. One another argument that has been advanced is that the provisions of AICTE Act will override the provisions of the Land Reforms Act. This contention just deserves to be mentioned for being rejected. There is no merit in this contention as the two enactments operate in two different entries, fields and enacted by the competent legislature and it is not correct to contend that the provisions of the Land Reforms Act stands repealed or excluded from its operation by the provisions of the AICTE Act or the Rules/Regulations framed thereunder. The validity of the provisions of the Land Reforms Act has been upheld and in fact it is included in the Ninth Schedule to the Constitution as entry 274 to 277. The provisions of The Land Reforms Act has also received the assent of the President. There is no conflict between the two enactments. On the other hand, the Land Reforms Act regulates possession or holding of the land, while AICTE Act regulates the establishment of a professional course or college or standards of such education, etc., as the case may be. Hence, this contention deserves to be rejected.
47. Mr. PL.Narayanan, learned counsel appearing for one of the writ petitioners contended that the demand for production of permission under Section 37 B is neither called for nor provided for by the provisions of the Anna University Act or the regulations nor even the so called Vice Chancellor's proceedings has prescribed it in the format. The insistence of production of certificate being beyond the authority and power, it is contended that such a demand is illegal and, therefore, mandamus has to be issued as prayed for. This contention, though persuasive, but this Court will not be justified in ignoring the mandatory provisions of The Land Reforms Act as no permission could be granted retrospectively by the State nor there could be a post facto permission or approval. Further, the land as and when the Authorised officer issues a final declaration, it stands transferred from the date of the very acquisition by the petitioner trust. The very acquisition will obviously confer no legal title or right. This definitely disables the petitioner college from being in possession of holding or legal possession of the land. Legal ownership and lawful possession alone would satisfy the requirements of the AICTE Regulations as well as provisons of the Anna University, since without land and buildings there could be no establishment of the institution. Without a valid permission under Section 37 B, the petitioner cannot claim that it is in legal possession or it is legally the owner of the extent of land as prescribed by the AICTE, which the petitioner Public Trust has acquired after the commencement of The Land Reforms Act, 1961.
48. The provisions of the Land Reforms Act being mandatory and the acquisition by the public trust for the purpose of establishing a college or an educational institution is prohibited by the provisions of the Land Reforms Act, it follows that without a permission the petitioner cannot even acquire the land nor it could hold the land legally. For the purpose of establishing and running a professional college like engineering, the petitioner trust should not only hold land, but also be in peaceful, exclusive possession and enjoyment to the exclusion of others. Legality of acquisition by the public trust in terms of Section 5 stares at the very acquisition as it is prohibited. Admittedly no permission has been secured under Section 37 B by the petitioner. Therefore, it cannot be contended by the counsel for the petitioner that the petitioner could establish and run the college without complying with the requirements of The Land Reforms Act. 49. It may be that Anna University has pointed out the requirements to be complied in respect of the Land Reforms Act like any other provision or requirement. It may be that such pointing out is belated, but on that score this Court will not be justified in ignoring the legally formidable point as it goes to the very root of the claim of possession or claim of ownership of holding of the entire extent of land by the public trust to establish the college. Without owning and being in lawful possession no Engineering College could be established or run as this is the basic and a condition precedent. Admittedly the petitioner, a Public Trust has acquired land recently for the purpose of establishing a college, but without securing permission. Such acquisition being prohibited and confers no legal title and possession, the University is well founded in requiring production of permission under Section 37-B, which is being regularly insisted in the interest of students for whose benefit the college is being established. Eventually for non-compliance it is the students who suffer and, hence, the University is well founded. 50. It is also fairly admitted by either side that substantial amounts have been invested in putting up extensive constructions for establishing a college and all the colleges are holding the requisite extent of the building either by way of classroom or library or workshop or laboratory or administrative office or Hostel or other infrastructure as has been prescribed by the AICTE. The committee of the AICTE has inspected and they have submitted a report that the petitioners' colleges have already provided necessary infrastructure and they are ready. So also the committee appointed by the University has reported that each one of the petitioner has put up office constructions, provided necessary infrastructure as per the provisions of AICTE as well as University's requirement for establishing the college. Students have also been admitted under the single window system in all the petitioner institutions pursuant to certain interim directions issued by this Court. 51. This Court during the arguments addressed a question to all the counsel as to whether each petitioner is willing to file an affidavit that in the event of the State declining to exempt the acquisition of land and if declaration is issued under Section 20-A which results in transfer of the lands from the date of very acquisition by the petitioner to the State Government as per the statutory provision, which is a statutory fiction, whether they are willing to hand over the entire institution over to the State Government or to the University or such other authority or body as the State Government may indicate.
52. This aspect of the matter was discussed in open court as it is pointed out that in the event of the exemption being declined, the future of the students who have been admitted to the petitioner colleges will be in jeopardy and the petitioners in each of the writ petitioner, who is not in legal possession and not owning the land may suffer and from such contingency the student community should be saved. All the petitioners answered the query negatively to the Court and made it clear that they are not inclined to hand over the engineering college they have established irrespective of students being made to suffer. This Court is unable to appreciate such a stand as it is not as if it is a private trust, or a personal property, but it is a public trust, which has established the college and it is a dedication for a public purpose to establish a college which is presumed to have been established for the benefit of the society at large and the student community at large. All that the trustees in management may have to give up their right to be in management of the trust or trust properties or management of the college, which the trust has established. But it is the choice of the petitioner and nobody could compel them.
53. One another contention which was advanced being that the stand taken by the Anna University is mala fide, in that it is acting as a tool in the hands of the State Government. This allegation has been made in the affidavit. But on a consideration of the allegations, this Court holds that there is no material at all to establish either malice or ill will on the part of Anna University is concerned and there is no material to substantiate that the orders impugned is the result of malice or ill will as has been laid down in STATE OF HARYANA VS. RAJENDRA SAXENA reported in AIR 1972 SC 1004. Mala fide must be shown by cogent material on record. It is equally well settled in all cases to controvert every part of allegations, which are vague and not specific. Unless the allegations of mala fide or bias are specifically pointed, it may not be necessary to controvert such vague allegations as held in HEMLAL BHANDANI VS. STATE OF SIKKIM reported in AIR 1 987 SC 762. The plea of malice cannot be countenanced.
54. Mr.R.Krishnamurthi, learned senior counsel appearing for one of the petitioner relied upon the pronouncement of the Apex Court in JAYA GOKUL EDUCATIONAL TRUST VS. COMMISSIONER & SECRETARY TO GOVT, KERALA STATE & ANOTHER reported in 2000 (5) SCC 231 and contended that approval of AICTE is sufficient for all purposes as the provisions of the AICTE Act, 1987 ensures co-ordinated development of technical education system throughout the country and promotion of qualitative standards. The learned counsel also pointed out that in terms of the pronouncement of the Apex Court, the University cannot impose any condition inconsistent with the AICTE Act or its regulations or conditions imposed by the council set up under the Act and the procedure in respect of affiliation and as well as any connected conditions stipulated by the University cannot be inconsistent with the provisions of the AICTE Act. The learned senior counsel relied upon the following portion of the said pronouncement :-
"22. As held in T.N. case the Central Act of 1987 and in particular, Section 10(k) occupied the field relating to "grant of approvals" for establishing technical institutions and the provisions of the Central Act alone were to be complied with. So far as the provisions of the Mahatma Gandhi University Act or its statutes were concerned and in particular Statute 9(7), they merely required the University to obtain the "views" of the State Government. That could not be characterised as requiring the "approval" of the State Government. If, indeed, the University statute could be so interpreted, such a provision requiring approval of the State Government would be repugnant to the provisions of Section 10(k) of the AICTE Act, 1987 and would again be void. As pointed out in T.N. case there were enough provisions in the Central Act for consultation by the Council of AICTE with various agencies, including the State Governments and the universities concerned. The State-Level Committee and the Central Regional Committees contained various experts and State representatives. In case of difference of opinion as between the various consultees, AICTE would have to go by the views of the Central Task Force. These were sufficient safeguards for ascertaining the views of the State Governments and the universities. No doubt the question of affiliation was a different matter and was not covered by the Central Act but in T.N. case it was held that the University could not impose any conditions inconsistent with the AICTE Act or its Regulation or the conditions imposed by AICTE. Therefore, the procedure for obtaining the affiliation and any conditions which could be imposed by the University, could not be inconsistent with the provisions of the Central Act. The University could not, therefore, in any event have sought for "approval" of the State Government. 23. Thus we hold, in the present case that there was no statutory requirement for obtaining the approval of the State Government and even if there was one, it would have been repugnant to the AICTE Act. The University Statute 9(7) merely required that the "views" of the State Government be obtained before granting affiliation and this did not amount to obtaining "approval". If the University statute required " approval", it would have been repugnant to the AICTE Act. Point 1 is decided accordingly."
55. But in this case, it is not the contention nor it is the case of any one that the University has imposed a condition which is inconsistent with the provisions of the AICTE Act or the regulations. But the University pointed out that the acquisition or the holding of the petitioner public trust is not legal and, therefore, it is deemed not to be in legal possession of the land, which is the basic requirement for the purpose of establishing and running a professional college. There is no inconsistency or conflict at all. 56. The Supreme Court in JAYA GOKUL EDUCATIONAL TRUST reported in 200 0 (5) SCC 231 examined the question whether for establishing a professional college approval of the State is required or it could be insisted by the University. In that context it has been held that the State could not have any policy outside the AICTE Act and if it had a policy and indeed if it had a policy, it should have placed the same before the AICTE and that too before the latter granted permission. The Apex Court directed the University to grant affiliation without awaiting for any approval from the State Government as the University should have acted on the basis of permission granted by the AICTE and other relevant factors under the Universities Act or statutes which are not inconsistent with AICTE Act or its regulations. 57. However, it is pointed out by the senior counsel for the University that the committee sent by the University which inspected the site and verified the title deeds as regards the legal ownership of the land or holding of the land and buildings, if any, or building accommodation provided, if any, assistance of the management, constitution of the registered body and all other relevant matters. Therefore, it is rightly pointed out that the University could take the stand that the petitioner trust in each of the writ petition has no valid propriety right over the land or right of the management over the land or the building and building accommodation provided, if any, or assistance of the management, etc., of the petitioner trust. In this respect the learned counsel for respondents rightly rely upon para 21 of the pronouncement in JAYA GOKUL EDUCATIONAL TRUST case.
58. Mr.R.Krishnamurthi, learned senior counsel nextly relied upon the pronouncement of the Apex Court in AL-KARIM EDUCATIONAL TRUST & ANOTHER VS. STATE OF BIHAR AND OTHERS reported in 1996 (8) SCC 330, where the Supreme Court held thus :-
"11. In the matter of grant of affiliation, it is ordinarily for the State Government after consulting the Medical Council of India to arrive at a decision. However, if it is found that the affiliation is being withheld unreasonably or the decision is being prolonged for one reason or the other, this Court would, though reluctantly, be constrained to exercise jurisdiction. We must make it clear that we are not diluting the importance of fulfilling the essential prerequisite set by the Medical Council before granting recognition. The facts of this case are very special and exceptional. In the present case, we take note of the following aspects: (a) The appellant-Institution was granted temporary affiliation nearly 6 years ago (29-12-1989).
(b) More than three years ago, (on 16.7.1992) this Court directed that students may be admitted and permitted to take examination, subject to certain conditions and this has been so done.
(c) In view of the earlier orders of this Court dated 28.9.1993, the only question that survives for consideration is whether affiliation should be granted to the appellants.
(d) On more than three occasions, this Court, after perusal of the affidavits of the parties and report of the authorities concerned about the deficiencies pointed out, directed time-bound inspections, by Medical Council of India, along with other authorities bearing in mind that we are concerned with the post-establishment stage.
(e) At one stage, it came to light that the original deficiencies having been removed, new or further deficiencies were pointed out by the Medical Council of India, which were ordered by this Court to be removed. (f) Finally, the appellants filed a tabular statement along with an affidavit dated 4.9.1995, stating that even the new deficiencies pointed out have been removed and the averments in that behalf stand uncontradicted. (g) The appellants claim to be a minority institution and the difficulties/or even the imponderables to start a new institution cannot be gainsaid. To insist on fulfilling all requirements at a stretch in modern conditions is not a practical proposition and ordinarily, only those aspects or requirements, which in the minimal will give a good start for effectively imparting education, with ancillary requisites may be considered sufficient in the extraordin ary circumstances of this case.
(h) It is impractical to insist, for a foolproof or absolute adherence to all requirements without regard to their importance or relevance, for the purpose of imparting education, in a practical way, especially because the Institution has begun to function, students admitted to the Institution have taken the examination and the fate of a good many number of students should not hang in the balance in an unending or everlasting manner. (i) In the final analysis, the question to be posed is whether there exists the minimal and satisfactory requirements to keep the matter going, and not whether better arrangements that will render the setup more efficient and more satisfactory, should be insisted as "a wooden" rule. (j) It may be that there are some minor deficiencies here and there which call for rectification. Time can certainly set right such matters. What is required is a total, practical, overall view in the light of the latest tabular statement filed along with the affidavit dated 4.9.1995. Material placed before the court goes to show that there has been 'substantial' though not literal compliance with the deficiencies pointed out in the latest report dated 28.6.1995.
(k) Lapse of time and the turn of events call for urgent action and any delay on that score will entail untold hardship to the students and the Institution.
12. In the totality of the circumstances disclosed in the case and having regard to the fact that at each stage new deficiencies are being pointed out, the latest being the report dated 28.6.1995 (explained by the subsequent affidavit of the appellants dated 4.9.1995), we are satisfied beyond any manner of doubt, that the deficiencies have been substantially complied with and minor deficiencies pointed out in the last mentioned report of 28.6.1995 are not such as to permit withholding of the affiliation to which the appellants' Institution is entitled. From the manner in which the deficiencies have been pointed out from time to time, each time the old deficiencies are shown to have been removed, new deficiencies are shown, gives the impression that the affiliation is unnecessarily delayed. For the removal of the minor deficiencies pointed out in the report of 28.6.1995, a compliance affidavit dated 4.9.1995 is filed. Once the Institution feels secure on the question of affiliation, we have no doubt that these minor deficiencies, if they exist, shall be taken care of by those in charge of the Institution. For taking such further steps, the grant of affiliation need not wait. We make this position clear. The steps for the grant of affiliation to the appellants' Institution may now be expedited and we direct the respondents to issue the necessary orders without loss of time. The appeal is disposed of accordingly. In the facts and circumstances of the case, we make no order as to costs."
Much reliance is placed on the above pronouncement as according to the senior learned counsel, deficiencies which are minor should not be a stumbling block for grant of affiliation. This Court holds that the facts of this batch are totally different, deficiency being the very foundation raised at the threshold by the University, the pronouncement of the Apex Court will not help the petitioners.
59. Mr.K.Doraisami, learned senior counsel appearing for four of the writ petitioners contended that hitherto never before neither the State Government nor the University nor AICTE insisted for production of permission under Section 37 B in respect of the professional colleges or any other establishment in the State. It is also pointed out that even during the current year, temporary affiliation has been granted to various professional colleges established by public trusts and the syndicate of the respondent University has granted affiliation without insisting for such permission under Section 37 B. There is no controversy in this respect. Even during the year 2001-2002, the following are the institutions which were granted provisional affiliation for courses or additional courses with Anna University :- S.No.
NAME OF THE COLLEGE
A.M.S. College of Engineering, Chennai 600 055. 2
Adhiparasakthi Engineering College, Melmaruvathur 603 319. 3
Anand Institute of Higher Technology, Kazhipattur 603 103. 4
Annai Teresa College of Engineering, Villupuram Dist. 5
Arignar Anna Institute of Science and Technology, Pennalur, Kancheepuram Dist. 6
Arulmigu Meenakshi Amman College of Engineering, Namandi Post 604 410 . 7
Arunai Engineering College, Tiruvannamalai 606 603. 8
Aarupadai Veedu Institute of Technology, Paiyanoor 603 104. 9
Bharath Institute of Science and Technology, Selaiyur, Chennai 600 07 3. 10
Sri Lakshmi Ammal Engineering College, Puthur, Kancheepuram District. 11
Santhosa Engineering College, Chembarambakkam 602 103. 12
Deen Dayal Engineering College, Thiruvallur 631 210. 13
Perumal Sami Rishi Engineering College, Madurantakam Taluk, Kancheepuram Dist. 14
E.V.P. Engineering College, Chembarambakkam, Thiruvallur 602 103. 15
P.A.M. Elizabeth Thomas Engineering College, Ponneri 601 204. 60. It is pointed out by Mr.K.Doraisamy, the learned senior counsel that in respect of those institutions, provisional affiliation has been granted for various courses or for opening additional branches of engineering or MCA/MBA courses either in a new college or a college which has been established or affiliated in respect of some of the branches and in respect of these institutions, the Anna University has not insisted for the production of permission under Section 37 B. What was the standard adopted in respect of those institutions should be the standard the University should have adopted even in respect of these petitioners as well. The learned counsel also pleads discrimination and violation of Article 14 by Anna University and the State Government.
61. The plea of discrimination advanced by counsel for the petitioners cannot be sustained at all. Merely because the respondent university or AICTE, as the case may be, has passed one illegal order, it will entitle the High Court to compel the authority to repeat the illegality again. The plea of discrimination on the facts of the case cannot be sustained. In Chandigarh Admn. v. Jagjit Singh, reported in (1 995) 1 SCC 745, the Apex Court held thus:-
"Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law - indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law."
62. In Secy., Jaipur Development Authority v. Daulat Mal Jain, reported in (1997) 1 SCC 35, the Supreme Court held thus:-
"27) In Chandigarh Admn. v. Jagjit Singh, allotment of the sites was the subject-matter under several proceedings in the High Court; ultimately some persons had the benefit of allotment while others were denied of the same. When Article 14 was pressed into service, this Court in para 8 at p.750 had held that the basis of the principle, if it can be called one, on which the writ petition had been allowed to be taken was unsustainable in law and indefensible in principle. The mere fact that the respondent-Authority had passed a particular order in the case of another person similarly situated, can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order could not be made the basis of issuing a writ compelling the respondent-Authority to repeat the illegality to cause another unwarranted order. The extraordinary and discretionary power of the High Court under Article 226 cannot be exercised for such a purpose. 28. A host of other decisions in that context have laid the same principle. It is not necessary to burden the judgment any further. Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalised. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents."
The plea of discrimination or violation of Article 14 is a misconception as illegality committed in passing one order will not be ground for perpetrating illegality nor the respondents should be compelled to disobey the law or rule of law.
63. Factually also it is not in dispute that neither Anna University nor other University to which various professional colleges were affiliated or the State Government at any point of time insisted for production of permission under Section 37 B. According to the learned senior counsel, since the petitioners have secured approval of AICTE, provided necessary infrastructure with all necessary equipments and fittings as per the standards specified, which has since been verified by the expert committee appointed by AICTE as well as Anna University and with a view to deny affiliation for extraneous reasons such objections have been raised.
64. The learned counsel also pointed out that getting a certificate of Electrical Inspector will not arise as these colleges have low tension connection only and not high tension connection. Therefore, the direction to secure certificate of electrical inspector will not arise at all. Electrical Inspectors in various districts have declined to issue a certificate in this respect as no certificate is required for low tension connection. So also in respect of a no objection certificate from the Inspector of Factories. 65. In this respect it is rightly pointed out by the counsel for the petitioner in all the writ petitions that the colleges established are not factories and they do not fall under the category of factories and, therefore, the insistence to get certificates from the Inspector of Factories also is not called for. Much arguments were advanced in this respect as to the insistence for production of certificate from Pollution Control Board as none of these institutions are likely to pollute nor a licence is required under the Pollution Control Act or any other enactment connected therewith. In respect of building safety certificate there is no objection for the petitioner as the building has to be used for public purpose of establishing a college. In respect of other requirements it is claimed by each one of the petitioners that they have complied with most of the requirements and even in respect of certificate from Inspector of Factories or Electrical Inspector and others some of the institutions have secured certificates and some have already applied for.
66. The very fact that Anna University for the first time insists for the above, it is contended, would show that it is not considering the application for affiliation in terms of the provisions of the Anna University Act or the rules or regulations framed therein, but it seeks to enforce certain other provisions in respect of which it has no authority or jurisdiction and such a course so adopted is not a bona fide exercise of power. 67. The Apex Court in NARENDRA KUMAR MAHESHWARI VS. UNION OF INDIA & OTHERS reported in 1990 Supp. SCC 440 laid down that every instrumentality or functionality of the State shall fulfil its own and should not trespass or encroach or entrench upon the field of others and progress is ensured and development held if each perform his role in the common endeavour, but at the same time it has all incidental or supplemental powers to enforce the requirements to advance the purpose. However, it shall not be forgotten that the power to demand compliance of statutory regulations or other requirement will always include the power to insist for compliance of all incidental matters or matters connected with, less the compliance of very requirement will be rendered futile and statutory provision or requirement will be rendered ineffective or defeated.
68. In this respect, the Apex Court in JAISINGHANI VS. UNION OF INDIA reported in 1967 SC 1427 held thus :-
"In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know whe re he is . If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey - "Law of the Constitution" - Tenth Edn., Introduction ex). "Law has reached its finest moments," stated Douglas, J. in United States Vs. Wunderlich, (1951) 342 US 98, "when it has freed man from the unlimited discretion of some ruler.... Where discretion is absolute, man has always suffered". It is in this sense that the rule of law may be said to be sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes, (1770) 4 Burr 2528 at p.2539 "means sound discretion guided by law. It must be governed by rule, not by humour: it must not be arbitrary, vague, and fanciful"."
69. In DEEPAK THEATRE VS. STATE OF PUNJAB reported in 1992 SUPP. (1) SCC 684, the Apex Court held thus :-
"3) ..... The question emerges whether the word regulation would encompass the power to fix rates of admission and classification of the seats. The power to regulate may include the power to license or to refuse the licence or to require taking out a licence ....... Therefore, the power to regulate a particular business or calling implies the power to prescribe and enforce all such proper and reasonable rules and regulations as may be deemed necessary to conduct the business in a proper and orderly manner. It also includes the authority to prescribe the reasonable rules, regulations or conditions subject to which the business may be permitted or conducted." 70. In STATE OF ANDHRA PRADESH Vs. ANUPAMA MINERALS LTD., reported in 1995 (Supp.) 2 SCC 117 it was held that exercise of powers must be consistent with the provisions of the Act and if exercise of power results in violation of any other statutory enactment or provision, such exercise being illegal, in view of the prohibition, there could be no exercise of such function, nor the order so passed is to be interfered. In the said case, application was submitted for grant of mining lease under Andhra Pradesh Mining Rules on the terms of the lease. After coming into force of The Forest Conservation Act, 1980, the State Government declined to grant renewal in view of the prohibition contained in Section 2 of the Forest Conservation Act, 1980. The High Court issued a mandamus. The Apex court held that in view of the prohibition contained in the Act, namely, The Forest Conservation Act, renewal cannot be granted and upheld he stand taken by the State as any grant of renewal should be consistent with the provisions contained in the Act and the purpose of the Act being conservation of forest and to prevent the depletion of forest. In that view, the Supreme Court reversed the judgement of the High Court while holding that any direction issued will be clearly in violation of the statute and no mandamus or direction could be issued to violate the mandatory provisions of the Act. This dicta squarely applies to the facts of this case. 71. Therefore, it is clear that it is always open to the authority to enforce compliance of statutory provision or Rule or Regulation, but also all incidental or supplemental matters which has a bearing, less the very rule of law will be defeated by mere technicalities. Such power has to be exercised in furtherance and to advance the object of Rule and not to defeat the Rule of law.
72. In STATE OF TAMIL NADU VS. ADHIYAMAN EDUCATIONAL & RESEARCH INSTITUTE reported in 1995 (4) SCC 104, the Apex court, while holding that norms and standards have to be reasonable and ideal and at the same time adoptable, tenable and maintainable by institutions throughout the country to ensure both quantitative and qualitative growth of technically qualified personnel to meet the needs of the country with reference to the Madras University Act, 1923 as to the scope and power of granting affiliation held thus :- "29. The Senate and the Syndicate can make respectively statutes and ordinances to enforce the provisions of the Act. The Act and the statutes and the ordinances made thereunder show that the University is given powers to prescribe terms and conditions for affiliation also of the technical colleges such as the engineering colleges and also the power to disaffiliate such colleges for non-fulfilment of the said conditions. It further gives power to the University to prescribe the qualifications of the teachers and also their service conditions. The University is also given the power to inspect and to conduct local inquiries of the affiliated colleges and to issue directions to the colleges on the basis of the reports of such inspection and inquiries. It can prescribe the curricula for the different courses conducted by the colleges and conduct examinations to confer degrees and diplomas. It can recommend to the appropriate authorities empowered to sanction, withhold or refuse the teaching and other grants, to decline to forward to the UGC any application made by the management for sanction of any grant, to suspend the provisional affiliation or approval granted to the college in course or courses of study, to decline to entertain any new application for affiliation or approval of applications for increase in strength in any course of studies conducted by the college, to recommend to the Government to take over the management of the college temporarily or permanently. Statute 44-A enables the University to grant affiliation provisionally, for fixed period and to grant extensions for such provisional affiliation. 30. A comparison of the Central Act and the University Act will show that as far as the institutions imparting technical education are concerned, there is a conflict between and overlapping of the functions of the Council and the University. Under Section 10 of the Central Act, it is the Council which is entrusted with the power, particularly, to allocate and disburse grants, to evolve suitable performance appraisal systems incorporating norms and mechanisms for maintaining accountability of the technical institutions, laying down norms and standards for courses, curricula, staff pattern, staff qualifications, assessment and examinations, fixing norms and guidelines for charging tuition fee and other fees, granting approval for starting new technical institutions or introducing new courses or programmes, to lay down norms or granting autonomy to technical institutions, providing guidelines for admission of students, inspecting or causing to inspect colleges, for withholding or discontinuing of grants in respect of courses and programmes, declaring institutions at various levels and types fit to receive grants, advising the Commission constituted under the Act for declaring technical educational institutions as deemed universities, setting up of National Board of Accreditation to periodically conduct evaluation on the basis of guidelines and standards specified and to make recommendations to it or to the Council or the Commission or other bodies under the Act regarding recognition or derecognition of the institution or the programme conducted by it. Thus, so far as these matters are concerned, in the case of the institutes imparting technical education, it is not the University Act and the University but it is the Central Act and the Council created under it which will have the jurisdiction. To that extent, after the coming into operation of the Central Act, the provisions of the University Act will be deemed to have become unenforceable in case of technical colleges like the engineering colleges. As has been pointed out earlier, the Central Act has been enacted by Parliament under Entry 66 of List I to co-ordinate and determine the standards of technical institutions as well as under Entry 25 of List III. The provisions of the University Act regarding affiliation of technical colleges like the engineering colleges and the conditions for grant and continuation of such affiliation by the University shall, however, remain operative but the conditions that are prescribed by the University for grant and continuance of affiliation will have to be in conformity with the norms and guidelines prescribed by the Council in respect of matters entrusted to it under Section 10 of the Central Act."
73. There is no dispute that the petitioners who have established the professional colleges are following the guidelines evolved by the Supreme Court in Unnikrishnan's case (1993 (1) SCC 645). The Apex Court, while pointing out that imparting education cannot be treated as a trade or business and held that private educational institutions have no fundamental right to their recognition or affiliation and such a right cannot also be inferred by reading into Article 19 (1) (g), a right in the nature of Article 30. 74. In the light of the above discussions the points framed are answered hereunder :-
"i) On Point "A" this Court answers that the denial of affiliation by Anna University by the impugned proceedings is neither illegal nor arbitrary nor discriminatory nor it has acted in excess of authority in insisting for production of permission under Section 37 B of The Land Reforms Act with respect to the holding of the lands. Point "A" is therefore answered in favour of the respondents and against the petitioners. ii) On Point "B", this Court holds that the Anna University has not acted illegally or in excess of its authority in insisting for the production of the following :-
"i) Prior permission under Section 37 B of The Land Reforms Act ; ii) Structural soundness certificate from Superintending Engineer, PWD and certificate from Pollution Control Board. But this Court holds that in respect of insistence of production of certificate from Electrical Inspector and Factories Inspectors, the demand for production of such certificates is not called for as the colleges are not factories. They are not governed by the provisions of the Factories Act nor the colleges have installed High Tension power supply, which alone requires en Electrical Inspector's certificate."
Point "B" is ordered partly in favour of the writ petitioners and partly in favour of the respondents.
iii) On Point "C", though it may not be strictly necessary to consider, however as arguments were advanced, and this Court was persuaded to decide by either side, this Court will not be justified in not answering the point. Section 37 B cannot be invoked at all by the petitioner Trusts after having acquired the land without the prior permission and acquisition in violation of Section 5 of The Land Reforms Act without prior permission is hit by the provisions of the said enactment. The only way for the petitioners, if at all, is to seek exemption from the hands of the State Government, if such exemption is provided for under the Act. Hence, Point "C" is answered accordingly.
iv) On Point "D", this Court holds that the denial of affiliation by Anna University is not actuated either by malice or mala fides. Hence, this point is also answered in favour of the respondents and against the petitioners. v) On Point "E", this Court holds that the petitioners are not entitled to the relief prayed for and, consequently, the writ petitions are dismissed." 75. It is brought to the notice of this Court that the petitioner colleges have already admitted students as per certain interim directions they have secured pending the writ petitions. Without affiliation, the petitioner colleges cannot and will not be justified in conducting classes as at the end of the year the students have to appear for the University examinations. In the event of the petitioner securing necessary exemption or such other notification or authorisation to hold the land from the State or authority under Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961, which may enable them to hold the lands, from the State Government within four weeks from today, the University may reconsider its decision without delay relating to affiliation and pass orders. If the petitioners' are not in a position to produce any permission or exemption notification or authorisation to hold, it is needless to add that the University may advice the students who have been admitted in the petitioner colleges accordingly and the students may seek admission in any other college approved by the AICTE and affiliated to Anna University and the Secretary, Tamil Nadu Engineering Admission, Anna University on the students who have been admitted to the petitioner colleges approaching him, reallocate them to any other approved and affiliated engineering colleges in the State without delay so as to enable the students to take up the University examinations.
76. In the result, these writ petitions are dismissed. Parties shall bear their respective costs. Consequently, connected miscellaneous petitions are also dismissed.
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