Islamic Mission Trust Santhapuram v. Dr. E K Satheesh, Registrar, University of Calicut

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 25[TH] DAY OF MAY 2022 / 4TH JYAISHTA, 1944 CON.CASE(C) NO. 63 OF 2022** **AGAINST THE JUDGMENT DATED 19.01.2021 IN WP(C)NO.19796 OF** **2020 OF HIGH COURT OF KERALA** **PETITIONER:** **ISLAMIC MISSION TRUST SANTHAPURAM, PATTIKAD P.O., PERINTHALMANNA, MALAPPURAM DISTRICT, PIN - 679 325, REPRESENTED BY ITS SECRETARY, M.T.KUNHALAVI, S/O.MUHAMMED. BY ADVS. P.VENUGOPAL SRUTHY.S** **RESPONDENT:** **DR.E K SATHEESH REGISTRAR, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., MALAPPURAM DISTRICT, PIN - 673 635 (AGE FATHER'S NAME AND RESIDENTIAL ADDRESS OF THE RESPONDENT IS NOT KNOWN TO THE PETITIONER). BY ADV P.C.SASIDHARAN** **THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 25.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Cont.case(c)63 OF 2022 ## **JUDGMENT** The petitioner has filed this Contempt Case, alleging noncompliance of the directions contained in Annexure A judgment of this Court dated 19.01.2021 in W.P.(C)No.19796 of 2020, whereby that writ petition was disposed of by setting aside Ext.P4 communication dated 03.03.2020 issued by the University, for the reasons stated in that judgment, and by 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 that judgment. This Court has also directed that, before taking a final decision, the petitioner shall be given an opportunity of being heard either before the Vice Chancellor of the 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 various legal and 3 Cont.case(c)63 OF 2022 factual contentions raised by the petitioner. Paragraphs 9 to 17 and also the operative portion of that judgment read thus; “9. Ext.P4 communication dated 03.03.2020 issued by the 2[nd] 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 2[nd] , has informed that Government will consider only applications from educational trusts from those districts where no legal educational institutions exists now. 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** 4 Cont.case(c)63 OF 2022 ## **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 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 5 Cont.case(c)63 OF 2022 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 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 incongruous with a judicial or quasi-judicial 6 Cont.case(c)63 OF 2022 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 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 7 Cont.case(c)63 OF 2022 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 quasijudicial 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 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 1[st] 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 2[nd] respondent University, the aforesaid contention raised by the 8 Cont.case(c)63 OF 2022 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 2[nd] respondent University, for the aforesaid reason, and by 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.” 2. On 09.02.2022, when this Contempt Case came up for admission, the learned counsel for the petitioner pointed out that, showing scant regard to the writ issued by this Court in Annexure A judgment dated 19.01.2021 in W.P. (C)No.19796 of 2020, the respondent has issued an order Cont.case(c)63 OF 2022 9 dated 11.01.2022, even without conducting a personal hearing. The said order is also not a reasoned order. The respondent was directed to file an affidavit explaining the facts and circumstances. 3. On 14.02.2022, the respondent has filed an affidavit explaining the facts and circumstances, producing therewith Annexure R1(c) decision taken by the Syndicate, which is one dated 11.01.2022, whereby the application filed by the petitioner stands rejected. Despite the specific directions contained in Annexure A judgment, the petitioner was not afforded with an opportunity of being heard. The petitioner has filed a reply affidavit dated 07.03.2022 to the affidavit filed by the respondent. 4. On 16.03.2022, when this Contempt Case came up for consideration, this Court passed the following order; “In Annexure A judgment, it was specifically provided that, before taking a final decision, the petitioner shall be given an opportunity of being heard either before the Vice Chancellor of the 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. Admittedly, Cont.case(c)63 OF 2022 10 before taking Annexure R1(C) decision, the petitioner was not afforded with an opportunity of being heard, as directed in Annexure A judgment. The learned Standing Counsel for the University sought time to get instructions.” 5. On 28.03.2022, when this Contempt Case came up for consideration, the learned Standing Counsel for Calicut University submitted that a notice dated 22.03.2022 has already been issued to the petitioner, proposing to conduct a personal hearing at the chamber of Pro-Vice-Chancellor on 01.04.2022 at 11.00 a.m. At the request of the learned counsel on both sides, this matter was posted to 08.04.2022. Thereafter, on 08.04.2022, the learned Standing Counsel for the University submitted that, on 01.04.2022 the Pro-ViceChancellor conducted a personal hearing, as directed by the Vice-Chancellor and the orders are awaited. 6. Today, when the case is taken up for consideration, the learned Standing Counsel for the University of Calicut has made available for the perusal of this Court a communication dated 07.04.2022 of the respondent Registrar, whereby the Secretary of the petitioner Trust is informed about the decision taken by the University on the application for starting a new Cont.case(c)63 OF 2022 11 law college. 7. Heard the learned counsel for the petitioner and also the learned Standing Counsel for Calicut University. 8. During the course of arguments, one of the contentions advanced by the learned counsel for the petitioner is that Annexure R1(c) order was pre-dated, which was one issued by the University after the receipt of a copy of this contempt case, which was served on the learned Standing Counsel for the University on 11.01.2022. 9. Having considered the submissions made by the learned counsel on both sides, this Court finds that, despite the specific directions contained in Annexure A judgment of this Court, the respondent has chosen to pass Annexure R1(c) order dated 11.01.2022, in a casual manner, even without affording the petitioner an opportunity of being heard. After the order of this Court dated 16.03.2022, the Pro-ViceChancellor has conducted a personal hearing, as directed by the Vice-Chancellor, and the decision taken by the University is communicated to the Secretary of the petitioner Trust, vide communication dated 07.04.2022, a copy of which is made 12 Cont.case(c)63 OF 2022 available for the perusal of this Court. 10. The learned counsel for the petitioner would point out that none of the legal and factual contentions raised by the petitioner or even the explanation offered by the petitioner Trust to the deficiencies pointed out by the District Level Inspection Committee were not properly considered by the respondent. 11. As held by this Court in **Valsala Kumari Devi M. v. B. Srinivas I.A.S and others [2018 (5) KHC 59]** , a Court considering a Contempt Petition need only be satisfied that there is no deliberate and willful action not to comply with the judgment. In the process of such adjudication, the Court need not also analyse the order passed in compliance with the direction, in forensic precision and skill, so as to unearth the illegality of the order and proceed in contempt. Paragraphs 13 and 14 of the said decision read thus; “13. The stand adopted by the 3[rd] respondent is on the basis of a legal circumstance and this Court is not expected to go deeply into the merits of the matter in a contempt proceedings. Be it noted in a contempt proceeding the sole aspect that is to be identified is, whether there is any wilful and contumacious act on the 13 Cont.case(c)63 OF 2022 part of the respondents so as to undermine the prestige and dignity of this Court. Which thus also means, there is no legal inhibition created in adopting a fair and legal stand on the basis of an opinion formed with bonafides. True, the opinion so formed may be incorrect and illegal, but that by itself cannot be converted or transformed so as to have a cause of action for proceeding in contempt. This is more so, since petitioner is left with a remedy to seek adjudication of the issue in a suitably constituted proceedings. So much so, a court considering a contempt petition need only be satisfied that there is no deliberate and wilful action not to comply with the judgment. In the process of such adjudication, this Court need not also analyse the order passed in compliance with the direction, with forensic precision and skill, so as to unearth the illegality of the order and proceed in contempt. Apart from all these, the legal contentions raised against declining increment is demonstrative of the fact that, serious and material adjudication is required to the issue. 14. Therefore, if the petitioner has any grievance against the orders passed accordingly, and the petitioner is entitled to more benefits in accordance with the directions issued by this Court in the judgment, it is for the petitioner to pursue the said remedy. Further, evaluation of the circumstances put forth by the rival parties, instils confidence in me that there is no wilful and deliberate attempt on the part of the respondents to interfere with the integrity, prestige and dignity of this Court. That being the situation, I am of the considered opinion that, the respondents have not committed any contempt of the 14 Cont.case(c)63 OF 2022 judgment rendered by this Court.” 12. Viewed in the light of the law laid down in the decision referred to supra, I find no reason to proceed further in this contempt case, since the remedy is open to the petitioner is to challenge the decision taken by the University, as evidenced by the communication dated 07.04.2022 in appropriate proceedings. In the result, this contempt case is closed; however, deprecating in the strongest words the conduct of the University in adopting a causal approach in considering the application made by the petitioner Trust, despite the specific directions contained in Annexure A judgment. It is for the petitioner Trust to challenge the decision taken by the University in appropriate proceedings. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** Cont.case(c)63 OF 2022 15 ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **Annexure A TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 19/01/2021 IN WP(C) NO.19796 OF 2020. Annexure B TRUE COPY OF THE ORDER DATED 22/07/2021 PASSED BY THIS HONOURABLE COURT IN I.A.NO.1/2021 IN WP(C) NO.19796 OF 2020.** ## **RESPONDENT'S ANNEXURES:** **Annexure R1(A) TRUE COPY OF THE DECISION OF THE SYNDICATE DATED 17.05.2021, ENTRUSTING THE DLIC TO CONDUCT INSPECTION. Annexure R1(B) TRUE COPY OF THE INSPECTION REPORT DATED 15.09.2021 SUBMITTED BY DLIC. Annexure R1(C) TRUE COPY OF THE COMMUNICATION DATED 11.01.2022 ISSUED TO THE PETITIONER.** ## **TRUE COPY** **P.A. TO JUDGE**