Islamic Mission Trust v. State of Kerala and University of Calicut and Addl.R3 Bar Council of India

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