Malabar Educational and Charitable Trust v. University of Kannur & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 28[TH] DAY OF MAY 2021 / 7TH JYAISHTA, 1943** **WP(C) NO. 28874 OF 2020** ## **PETITIONER/S:** > 0 **THE MALABAR EDUCATIONAL AND CHARITABLE TRUST YOGASALA ROAD, KANNUR-670 001, REPRESENTED BY ITS DIRECTOR AND MANAGING TRUSTEE VALSAN MATATHIL.** **BY ADVS.K.MOHANAKANNAN SMT.T.V.NEEMA** ## **RESPONDENT/S:** |**1**|**THE UNIVERSITY OF KANNUR**| |---|---| ||**REPRESENTED BY ITS REGISTRAR, KANNUR-670 567.**| |**2**|**THE REGISTRAR,**| ||**KANNUR UNIVERSITY, KANNUR-670 567.**| |**3**|**THE VICE CHANCELLOR,**| ||**KANNUR UNIVERSITY, KANNUR-670 567.**| |**4**|**ADDL.R4.STATE OF KERALA**| ||**REPRESENTED BY THE PRINCIPAL SECRETARY TO**| ||**GOVERNMENT, HIGHER EDUCATION DEPARTMENT,**| ||**THIRUVANANTHAPURAM-695 001.**| ||**IS IMPLEADED AS PER ORDER DATED 21-01-2021 IN IA**| ||**2/2021.**| ||**BY ADV SRI.M.SASINDRAN**| ## **OTHER PRESENT:** ## **SRI M.A ASIF -SPL GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.04.2021, THE COURT ON 28.05.2021 DELIVERED THE FOLLOWING:** W.P.(C).No.28874 of 2020 -2- **==> picture [41 x 11] intentionally omitted <==** ## **JUDGMENT** The petitioner, namely, Malabar Educational and Charitable Trust, is running a Self-Financing B.Ed. Training College, with the approval granted by the National Council for Teacher Education and provisional affiliation granted by the 1[st] respondent Kannur University. The document marked as Ext.P1 is the proceedings of the 1[st] respondent University dated 25.05.2006 granting provisional affiliation to Malabar B.Ed. Training College, Kannur, for B.Ed. Course with an intake of 75 students, for the academic year 2005-06. The petitioner has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P2 notification dated 30.11.2020 issued by the 1[st] respondent University, whereby applications are invited for starting new colleges (except engineering/medical and allied subjects) from co-operative sector alone, during the academic year 2021-22. As per Ext.P2 notification, the last date for receipt of applications along with necessary documents and application fee was on or before 31.12.2020, 5:00 p.m. The petitioner has W.P.(C).No.28874 of 2020 -3- also sought for a writ of mandamus commanding the respondents to permit it to make application for affiliation, in accordance with law, after issuing a proper notification, within a time frame to be fixed by this Court. The document placed on record as Ext.P3 is a copy of publication released by the 1[st] respondent university on 30.11.2020, wherein it has been stated that, for starting new colleges during the academic year 202122, applications are invited from co-operative sector. The document marked as Ext.P4 is the relevant extract of Chapter V of the Kannur University First Statutes, 1998, which deals with affiliation of colleges. 2. In the writ petition, it is stated that, the petitioner is desirous of starting new colleges in Kannur District. To the surprise of the petitioner, the 1[st] respondent University issued Ext.P2 notification dated 30.11.2020, inviting applications for starting new colleges, during the academic year 2021-22, from co-operative sector alone, in clear violation of the provisions of Chapter V of the Kannur University First Statutes, 1998 and also Articles 14, 15 and 16 [sic:19] of the Constitution of India. W.P.(C).No.28874 of 2020 -4- 3. On 22.12.2020, when this writ petition came up for admission, the learned Standing Counsel for the 1[st] respondent University, representing respondents 1 to 3, sought time to get instructions and file statement. 4. On 14.01.2021, the learned Standing Counsel for the University filed a statement on behalf of respondents 1 to 3, stating that, in tune with Statute 1 of Chapter V of the Kannur University First Statutes, 1998, the University invited applications for starting new colleges, for the academic year 2021-22, based on the resolution adopted by the Syndicate vide item No.2020.547 dated 17.11.2020. The State Government, vide Annexure R1(a) order, i.e., G.O.(Ms.)No.299/2020/H.Edn. dated 20.08.2020 declared the policy for starting new colleges in Government sector and unaided sector, as per which, permission for starting new colleges can be granted exclusively to cooperative institutions, which have sufficient financial background and prior experience in running educational institutions. As per the policy, sanctioning of new colleges in aided sector is not being considered for the time being. Based on the Government W.P.(C).No.28874 of 2020 -5- policy, the Syndicate of the 1[st] respondent University in its meeting held on 17.11.2020 decided to invite applications for starting new colleges, during the academic year 2021-22, from co-operative sector alone. Therefore, there is absolutely no arbitrariness or illegality in issuing Ext.P2 notification, limiting applications for starting new colleges from co-operative sector alone. As per Statute 9(g), Chapter V of the Kannur University First Statutes, the University has to ascertain the views of the State Government, for the purpose of granting affiliation. The State Government has issued the order dated 20.08.2020, after considering the report submitted by the Kerala State Higher Education Council, which had conducted a study as to the measures that have to be adopted for improving the quality of higher education in the State. The issuance of Ext.P2 notification is in no manner violative of Article 14, 15 and 19 of the Constitution of India, as contended by the petitioner. The petitioner has no vested right for starting a new college, which is based on various factors including educational need in the locality. W.P.(C).No.28874 of 2020 -6- 5. On 19.01.2021, the petitioner filed I.A.No.1 of 2021 seeking an order to amend the writ petition, as stated in that interlocutory application; I.A.No.2 of 2021 seeking an order to implead the State of Kerala represented by the Principal Secretary to Government, Higher Education Department as additional 4[th] respondent; and also I.A.No.3 of 2021 seeking an order to accept G.O.(Ms.)No.299/2020/H.Edn. dated 20.08.2020 as additional document and to mark it as Ext.P5. By the order dated 21.01.2021, those interlocutory applications were allowed and the petitioner was directed to file amended writ petition, within two weeks. The learned Government Pleader entered appearance for the additional 4[th] respondent State. The amended relief sought for in the writ petition is a writ of certiorari to quash Ext.P5 order dated 20.08.2020 issued by the additional 4[th] respondent State. 6. On 17.02.2021, the learned Standing Counsel for the University took notice on admission for respondents 1 to 3 and the learned Government Pleader took notice on admission for the 4[th] respondent State. The learned Government Pleader was W.P.(C).No.28874 of 2020 -7- directed to get instructions and file statement. 7. By the order dated 03.03.2021, the learned Special Government Pleader was directed to make available for the perusal of this Court, the files relating to Ext.P5 Government order dated 20.08.2020. Pursuant to that order, a copy of page Nos.1 to 235 of the e-file and also the note file (page Nos.238263) leading to Ext.P5 Government Order dated 20.08.2020 are made available for the perusal of this Court, by the learned Special Government Pleader. 8. Heard the learned counsel for the petitioner, learned Standing Counsel for Kannur University appearing for respondents 1 to 3 and also the learned Special Government Pleader appearing for the additional 4[th] respondent State. 9. The issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P2 notification dated 30.11.2020 issued by the 2[nd] respondent University and also Ext.P5 order dated 20.08.2020 issued by the additional 4[th] respondent State, which are under challenge in this writ petition. W.P.(C).No.28874 of 2020 -8- 10. Ext.P2 notification dated 30.11.2020 is one issued by the 1[st] respondent University inviting applications for starting new colleges (except engineering/medical and allied subjects) from co-operative sector alone, during the academic year 2021-22. As per Ext.P2, the last date for receipt of applications along with necessary documents and application fee was on or before 31.12.2020, 5:00 p.m. On 21.12.2020, the petitioner approached this Court in this writ petition seeking a writ of certiorari to quash Ext.P2 notification dated 30.11.2020, by contending that the said notification is one issued in violation of the provisions of Chapter V of the Kannur University First Statute, 1998 and also Articles 14, 15 and 16 [sic:19] of the Constitution of India. By way of an amendment, the petitioner has also sought for a writ of certiorari to quash Ext.P5 order dated 20.08.2020 of the additional 4[th] respondent State. 11. In the statement on behalf of respondents 1 to 3 it is contended that, the State Government vide order dated 20.08.2020 [Annexure R1(a)/Ext.P5] declared the policy for starting new colleges in Government sector and unaided sector, W.P.(C).No.28874 of 2020 -9- as per which permission for starting new colleges can be granted exclusively to co-operative institutions, which have sufficient financial background and prior experience in running educational institutions. Based on the said policy, the Syndicate of the University in its meeting held on 17.11.2020 decided to invite applications for starting new colleges, during the academic year 2021-22, from co-operative sector alone. Based on the said policy of the State Government and the decision taken by the Syndicate, the University issued Ext.P2 notification inviting applications for starting new colleges, for the academic year 2021-22, from co-operative sector alone. The said notification is one issued in tune with the Statute 1 of Chapter V of the Kannur University First Statutes and also Statute 9(g), as per which the University has to ascertain the views of the State Government, for the purpose of granting affiliation. Therefore, there is absolutely no arbitrariness or illegality in issuing Ext.P2 notification, limiting applications for starting new colleges from co-operative sector alone. W.P.(C).No.28874 of 2020 -10- 12. On behalf of the additional 4[th] respondent State, the learned Special Government Pleader contended that, as discernible from the e-file and the note file leading to Ext.P5 Government Order, a copy of which is made available for the perusal of this Court, the decision of the State Government that permission for starting new colleges in unaided sector can be granted exclusively to co-operative institutions, which have sufficient financial background and prior experience in running educational institutions, is a policy decision taken after considering the report submitted by the Kerala State Higher Education Council, which had conducted a study as to the measures that have to be adopted for improving the quality of higher education in the State. Ext.P5 policy decision taken by the State warrants no interference in this writ petition filed under Article 226 of the Constitution of India. 13. Chapter V of the Kannur University First Statutes, 1998 deals with affiliation of colleges. As per Statute 1(1), applications for affiliation of a college or for affiliation in additional subjects shall be addressed to the Registrar and shall W.P.(C).No.28874 of 2020 **==> picture [22 x 8] intentionally omitted <==** be forwarded to him not later than 31[st] of December preceding the academic year in which the courses are proposed to be started. As per Statue 1(2), applications once lodged will be valid for two years. As per Statue 1(3), the Registrar shall issue notification inviting applications for affiliation of new college or course not later than 30[th] November preceding the academic year in which the course is proposed to be started. 14. As per Statute 6(1), all the applications seeking affiliation shall be considered by the Syndicate not later than 30[th] April preceding the academic year in which the college/courses are proposed to be started. As per Statute 6(2), the Syndicate shall have power to affiliate any college within the territorial jurisdiction of the University, preparing students for degrees, titles or Diploma of the University, which satisfy the conditions prescribed in the laws of the University. 15. As per Statute 9(a), the University may appoint a Commission to inspect the proposed site of a new college/or to make a physical verification of the facilities that may exist for starting the new college/course, if the application is considered W.P.(C).No.28874 of 2020 **==> picture [22 x 9] intentionally omitted <==** favourably by the University. The Commission will inspect the suitability of the proposed site, verify the title deeds as regards the proprietary right of the Management over the land (and buildings, if any) offered, building accommodation provided if any, assets of the Management, constitution of the registered body and all other relevant matters. Further action on the application shall be taken on receipt of the report of the Commission. 16. As per Statute 9(b), the grant of affiliation shall depend upon the fulfilment by the Management of all the conditions that are specified here or that may be specified later for the satisfactory establishment and maintenance of the proposed institution/courses of studies and on the reports of inspection by the commission or commissions which the University may appoint for the purpose. As per Statute 9(c), unless all the conditions are fulfilled, before the commencement of the academic year, no new college/or additional courses shall be permitted to be started during that year. W.P.(C).No.28874 of 2020 **==> picture [22 x 9] intentionally omitted <==** 17. As per Statute 9(f), the Educational Agency/ Management shall give an undertaking to the University to carry out faithfully, the provisions of the University Act, Statutes, Ordinances and Regulations and the directions issued by the University, from time to time, in so far as they are related to the college. The undertaking shall be endorsed by the Principal of the college. As per Statute 9(g), after considering the report of the local enquiry if any, and after making such further enquiry as it may deem necessary, the Syndicate shall decide after considering the report of the local enquiry and also after ascertaining the views of the Government, whether the affiliation be granted or refused, either in whole or in part. In case the affiliation is granted, the fact shall be reported to the Senate at its next meeting. 18. Statute 26 deals with matters to be complied with for seeking affiliation. As per Statute 26(1)(a), every college seeking affiliation shall satisfy the Syndicate on the following aspects:- (i) that the college if started will supply to the need of the locality, having regard to the type of education intended to be provided W.P.(C).No.28874 of 2020 **==> picture [22 x 8] intentionally omitted <==** by the college, the facilities existing for the same type of education in the neighbourhood and the suitability of the locality; (ii) the suitability and adequacy of the building, libraries, laboratories and other equipments; (iii) the character, qualifications and adequacy of the teaching staff and the conditions of their service; (iv) the buildings in which the college is to be located are suitable and that provision will be made in conformity with the laws of the University for the residence in the college or in lodgings approved by the college, if students not residing with their parents or guardian and for the supervision and welfare of students. (v) such other matters as are essential for the maintenance of the tone and standard of University education. As per Statute 26(2), in regard to the matters referred to in clause (1), the Syndicate shall be guided by the reports of Inspection Commission and by the rules which may be prescribed by it. 19. In **T.M.A. Pai Foundation v. State of Karnataka [(2002) 8 SCC 481]** the Eleven-Judge Constitution Bench of the Apex Court held that the right to establish and administer W.P.(C).No.28874 of 2020 -15- educational institutions is guaranteed under the Constitution to all citizens under Articles 19(1)(g) and 26, and to minorities specifically under Article 30. All citizens have a right to establish and administer educational institutions under Articles 19(1)(g) and 26, but this right will be subject to the provisions of Articles 19(6) and 26(a). However, minority institutions will have a right to admit students belonging to the minority group, in the manner as discussed in the judgment. 20. In **DM Wayanad Institute of Medical Sciences v. Union of India [(2016) 2 SCC 315]** the Apex Court noticed that, in **Unni Krishnan, J.P. v. State of A.P. [(1993) 1 SCC 645]** the right guaranteed under Article 19(1)(g) of the Constitution of India has been elaborately discussed by the FiveJudge Constitution Bench, which held that imparting education cannot be treated as a trade or business. Trade or business normally connotes an activity carried on with a profit motive. Education has never been nor can it be allowed to become commerce in this country. Education has always been treated, in this country, as a religious and charitable activity and making it W.P.(C).No.28874 of 2020 -16- commercial is opposed to the ethos, tradition and sensibilities of this nation. A citizen of this country may have a right to establish an educational institution but no citizen, person or institution has a right much less of fundamental right to affiliation or recognition. In **DM Wayanad** , considering the facts of the case as averred by the petitioners and the rights claimed therein, the Apex Court held that the petitioners, even though have a right to establish institutions for imparting medical and technical education, such right is not a fundamental right. 21. In **State of Kerala v. M.G.M. College of Arts and Science [2017 (3) KHC 965]** the State of Kerala filed writ appeals against the judgment of the learned Single Judge dated 21.12.2016 in W.P.(C)No.25782 of 2016 and connected cases. Before the Writ Court, the challenge was against the policy decision taken by the State, vide G.O.(Rt.)No.178/2016/H.Edn. dated 22.08.2016, whereby the State issued revised guidelines on new self-financing colleges and courses in higher education filed. As per Para.1 of the said guidelines, sanction for starting - new unaided colleges in the State, in self financing sector, will W.P.(C).No.28874 of 2020 -17- not be given. The learned Single Judge set aside the said Government order. The Division Bench noticed that, establishment of Arts and Science Colleges is regulated by various State University Acts and one of them is the Mahatma Gandhi University Act, 1985 enacted by the State Legislature, pursuant to Entry 25 List III of the Constitution of India, in relation to Education and Universities. For grant of affiliation, there are Statutes framed under the said Act, by virtue of Section 35, namely, the Mahatma Gandhi University Statutes, 1997. Statute 9 of Chapter 23 of the Statutes deals with grant of affiliation. As per Statute 9(1), the University may appoint a Commission to inspect the proposed site of a new college or to make a physical verification of the facilities that may exist for starting the new college/course, if the application is considered favourably by the University. The Commission shall inspect the suitability of the proposed site, verify the title deeds as regards the proprietary right of the management over the land (and buildings, if any) offered, building accommodation provided, if any, assets of the Management, constitution of the registered W.P.(C).No.28874 of 2020 -18- body and all other relevant matters. Further action on the application shall be taken on receipt of the report of the Commission. As per Statute 9(2), the grant of affiliation shall depend upon the fulfillment by the Management of all the conditions for the satisfactory establishment and maintenance of the proposed institution/courses of studies and on the reports on inspection by the commission or commissions which the University may appoint for the purpose. As per Statute 9(7), after considering the report of the Commission and the report of the local enquiry, if any, and after making such further enquiry as it may deem necessary, the Syndicate shall decide, after ascertaining the views of the Government also, whether the affiliation be granted or refused, either in whole or part. In case affiliation is granted, the fact shall be reported to the Senate at its next meeting. 22. In **M.G.M. College of Arts and Science** the Division Bench noticed that the impugned Government order was issued on 22.08.2016, putting a complete ban on self-financing colleges. After referring to the scheme as contained in the Statutes and W.P.(C).No.28874 of 2020 **==> picture [22 x 9] intentionally omitted <==** then Statute 9(7), the Division Bench held that, once power has been conferred on the authorities under the University Statutes and the Statutes as such, the Government cannot override the discretion of the University, because such a policy makes the entire statute dealing with affiliation redundant. This takes away the right of parties to establish institutions even in unaided sector. Surely, this right is not exercised by the Government in terms of Statute 9(7). A policy decision of this nature cannot be valid, even otherwise. It affects the fundamental rights of parties to receive education and to impart education, which is an integral part of life and liberty. Such a right can be restricted not by a policy decision, but only by a law and law means law made by the competent legislature and not by an executive fiat. Further, a policy decision like this fetters future discretion. Such fetters cannot be put. This policy puts a complete embargo for all times that no such self-financing institution can be allowed to be established. Such policy restricting future discretion is not reasonable, in any manner. Therefore, the Division Bench dismissed the writ appeals filed by the State, declining W.P.(C).No.28874 of 2020 -20- interference on the impugned judgment of the learned Single Judge in **Dream Land Estate, Thiruvananthapuram v. State of Kerala and another [ILR 2017 (1) Ker. 887]** . 23. In **Dream Land Estate** , the primary contention urged by the petitioners was that G.O.(Rt.)No.178/2016/H.Edn. dated 22.08.2016 is in violation of Article 19(1)(g) of the Constitution of India and in respect of minority institutions Article 30(1) of the Constitution. Every citizen has a fundamental right to start an educational institution as held by the Constitution Bench in **T.M.A. Pai Foundation v. State of Karnataka [(2002) 8 SCC** **481]** . The right to establish an educational institution shall be regulated by such regulatory measures like maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of the management. Even if the Government is entitled to impose reasonable restrictions in terms of Article 19(6), it cannot be done by an executive order under Article 162, which has to be made only by way of a legislation. The impugned order does not amount to a reasonable W.P.(C).No.28874 of 2020 -21- restriction, whereas it is a complete ban on new colleges and new courses, which is clear negation of fundamental rights under Article 19(1)(g). On the other hand, learned Standing Counsel for the University submitted that, as far as the University is concerned, they are bound to take note of the views of the Government as per the relevant statutes and when the Government had expressed its view in terms of the order dated 22.08.2016, Universities are bound to consider the same and take an independent view in the matter. Denial of affiliation was only after taking note of such eventualities. On behalf of the State, the learned Additional Advocate General contended that, as per the relevant University Statutes, University is bound to obtain the views of the Government. The Government is entitled to take note of various factual situations in the State for permitting new Arts and Science Colleges to come up either in the unaided sector or in the aided sector. Unless the State is of the view that there is a necessity for starting new colleges or new courses, the State will have to frame a policy in that regard. Therefore, the impugned order can only be termed as a policy of W.P.(C).No.28874 of 2020 -22- the Government, which is the view of the Government in terms of the University Statute. The Apex Court in **T.M.A. Pai Foundation** and other judgments had approved the right of citizens to start an educational institution of their choice. However, the Government is entitled to impose reasonable restrictions in respect of such rights and by the Government order dated 22.08.2016, the Government had only imposed such restrictions taking into account the present educational scenario of the State. The educational needs of the locality in the State is well within the domain of the State Legislature and when the State can legislate on the said subject, necessarily the State can have a policy as well. 24. In **Dream Land Estate** this Court noticed that, in **Jayagokul Educational Trust v. Commissioner and Secretary to Government Higher Education Department [(2000) 5 SCC 231]** , **St. Joseph's Hospital Trust v. Kerala University of Health Sciences [2012 (4) KLT 444]** , etc. the issue considered was, when approval is already granted by the All India Council for Technical Education (AICTE), whether the State W.P.(C).No.28874 of 2020 **==> picture [22 x 9] intentionally omitted <==** Government can impose any other conditions or refuse approval. The propositions have now been well settled that when approval has been granted by the AICTE, the expression of views by the Government in terms of Statute 9(7) of the Mahatma Gandhi University Statutes, 1997, is of a limited nature. It was held that, if taking the views of the Government in the University Statute, before granting affiliation, is interpreted to mean that the Government must give its approval, then such a statutory provision would be void. But, in the case on hand, the Court is not concerned with a Central Statute, which is in conflict with any Statute framed by the State legislature. Here, the Court is concerned with a State Act which requires the University to obtain the views of the Government. The question is whether the views of the Government can be formulated by way of an order and can the Government have a policy of the like nature. No doubt, the Government can have a policy in respect of the views to be expressed by them, but such policy cannot be in violation of any of the fundamental rights available under the Constitution. W.P.(C).No.28874 of 2020 -24- 25. In **Dream Land Estate** , this Court noticed that, as per the policy, which is brought in the form of notification dated dated 22.08.2016, the Government had taken a decision not to - give permission to any self financing institution to start new college, no new courses in aided/Government colleges and no unaided courses in aided colleges. In other words, there is a blanket restriction to start new colleges and new courses in the State in the aided/unaided sector. However, the Government is aware of the fact that, during the previous year, several candidates could not get admission to colleges. It was therefore decided to permit colleges to have additional courses which has already been permitted by the Universities during the previous academic year. The learned Additional Advocate General submitted that this is the view of the Government taking into consideration the overall necessity of colleges/courses in the State. He specifically referred to the judgment of the Apex Court in **Government of Andhra Pradesh v. J.B. Educational** **Society [(2005) 3 SCC 212].** W.P.(C).No.28874 of 2020 **==> picture [22 x 9] intentionally omitted <==** 26. In **Dream Land Estate** , this Court noticed that, in **J.B. Educational Society** the Apex Court upheld the provisions of the Andhra Pradesh Education Act, 1982 which permitted the Government to satisfy itself that there is need for providing education facilities to the people in the locality. In the said case, the Apex Court approved the said provision as not being repugnant to the provisions of the AICTE Act on the ground that the State legislation obtained the assent of the President. In any case, such a law has not been enacted in State of Kerala and the writ petitions are concerned with the limited extent of power that could be exercised by the State by providing its views to the University. As far as the University is concerned, affiliation to a college/ course is granted based on the institution complying with various statutory requirements. Once there is compliance of such statutory requirements, what remains to be considered is regarding the view of the Government. In so far as there is no Central legislation in the subject, the view of the Government as far as the University is concerned is important. Though the Apex Court in **Jayagokul Educational Trust** held that the view does W.P.(C).No.28874 of 2020 -26- not amount to an approval, the said judgment had been rendered in the light of the provisions available under the Central Act, which supersedes any other law on the subject. But, in the case on hand, the word ‘views’ can be taken as a decision to be taken by the Government to verify whether there is a necessity for such a college/course in the existing college. Such decision apparently will depend upon the facts and circumstances of each case. There cannot be a blanket restriction being imposed by the Government. 27. In **Dream Land Estate** it was argued on behalf of the State that the University Act itself amounts to a Law, which imposes restriction in starting new colleges/courses and therefore, when the views of the Government is sought for, Government can formulate a policy, which is reflected in the impugned order. This Court held that, the University Act and the Statutes framed thereunder apparently is a 'law' in which the role of the Government is only to express its views. The expression of view cannot hinder the fundamental right of citizens under Article 19(1)(g) of the Constitution of India. If the Government has a W.P.(C).No.28874 of 2020 -27- case that, there is no necessity for a college in a particular area, definitely Government can frame a law in that regard. The Government can also frame a law to indicate that the number of colleges can be restricted or the number of courses can be restricted. But there is no such law as matters stand today. By expressing a view and giving a blanket direction that no colleges could be started and when it is acted upon by the University, it clearly amounts to infringement of fundamental right of a citizen. 28. In **Dream Land Estate** this Court held that, when the views of the Government are sought for, it is open for the Government to inform their view about either starting of a college or additional courses in a college, etc. But the said view cannot be an absolute restriction like the one stated in the impugned order. It has to be on case to case basis, depending upon various factors, and if the view is not to permit a new college or a course in an existing college, the reasons for the same is also to be reflected in such views. Therefore, the expression of view by the Government as required under the University Statutes has to be made on case to case basis and not W.P.(C).No.28874 of 2020 -28- on the basis of an order which virtually affects the fundamental right of a citizen to start a college. In that view of the matter, this Court declared the Government order dated 22.08.2016 as unconstitutional, affecting the fundamental right of the petitioners under Article 19(1)(g) of the Constitution of India and infringing Article 30(1) as far as minority managements are concerned. This Court directed the respective Universities to reconsider the application of the petitioners, in the light of the respective University statutes, in accordance with law, and pass appropriate orders within a period of one month from the date of receipt of a copy of the judgment. 29. As already noticed hereinbefore, as per Statute 9(g) Chapter V of the Kannur University First Statutes, 1998, after considering the report of the local enquiry if any, and after making such further enquiry as it may deem necessary, the Syndicate shall decide after considering the report of the local enquiry and also after ascertaining the views of the Government, whether the affiliation be granted or refused, either in whole or in part. As per Statute 26(1)(a), every college seeking affiliation W.P.(C).No.28874 of 2020 -29- shall satisfy the Syndicate that the college if started will supply to the need of the locality, having regard to the type of education intended to be provided by the college, the facilities existing for the same type of education in the neighbourhood and the suitability of the locality. 30. In **Dream Land Estate** this Court held that the word ‘views’ in Statute 9(g) Chapter V of the Kannur University First Statutes can be taken as a decision to be taken by the Government to verify whether there is a necessity for such a college/course in the existing college. Such decision apparently will depend upon the facts and circumstances of each case. Therefore, there cannot be a blanket restriction being imposed by the Government. The University Act and the Statutes framed thereunder apparently is a 'law' in which the role of the Government is only to express its views. The expression of view cannot hinder the fundamental right of citizens under Article 19(1)(g) of the Constitution of India. The expression of view by the Government as required under the University Statutes has to be made on case to case basis and not on the basis of an order W.P.(C).No.28874 of 2020 -30- which virtually affects the fundamental right of a citizen to start a college. 31. In **M.G.M. College of Arts and Science** , while declining interference on the impugned judgment of the learned Single Judge in **Dream Land Estate** , the Division Bench held that, once power has been conferred on the authorities under the University Statutes and the Statutes as such, the Government cannot override the discretion of the University, because such a policy makes the entire statute dealing with affiliation redundant. This takes away the right of parties to establish institutions even in unaided sector. Surely, this right is not exercised by the Government in terms of Statute 9(7) of the Mahatma Gandhi University Statutes, 1997. A policy decision of this nature [G.O. (Rt.)No.178/2016/H.Edn. dated 22.08.2016] cannot be valid, even otherwise. It affects the fundamental rights of parties to receive education and to impart education, which is an integral part of life and liberty. Such a right can be restricted not by a policy decision, but only by a law and law means law made by the competent legislature and not by an executive fiat. W.P.(C).No.28874 of 2020 -31- 32. In **Dream Land Estate** this Court held that, if the State Government has a case that, there is no necessity for a college in a particular area, definitely Government can frame a law in that regard. The Government can also frame a law to indicate that the number of colleges can be restricted or the number of courses can be restricted. In the said decision this Court noticed that, there is no such law, as on the date of that judgment. 33. From the copy of e-file and also the note file leading to Ext.P5 Government order, which are made available for the perusal of this Court by the learned Special Government Pleader, it is seen that the Kerala State Higher Education Council has prepared a 'Perspective Plan for State Higher Education' with special reference to Arts and Science Colleges in the State, as per which the Government has to encourage Arts and Science Colleges to be established by Government, Government aided, Government supported and also Co-operative colleges. In File Note No.36 (dated 05.06.2020) the Principal Secretary (Higher Education) has noted that in the Perspective Plan, the Kerala W.P.(C).No.28874 of 2020 **==> picture [22 x 9] intentionally omitted <==** State Higher Education Council has recommended that no new colleges be started (Arts and Science, Engineering and Poly Technic) except by Government or under Government sector or under co-operative sector. The Principal Secretary (Higher Education) has also noted the judgment of the Division Bench of this Court in **State of Kerala and another v. KMTC Poly Technic College** (common judgment dated 22.08.2017 in W.A.No.1239 of 2017 and connected matters), setting aside the policy decision taken by the State in the year 2016, vide G.O. (Rt.)No.178/2016/H.Edn. dated 22.08.2016, not to grant sanction for starting unaided colleges in self-financing sector. In File Note No.38 (dated 28.07.2020) the Principal Secretary (Higher Education) has noted that the State do not have a policy for new colleges. Even the Perspective Plan of the Kerala State Higher Education Council is not approved by the Government. 34. In view of the law laid down by this Court in **Dream Land Estate** and affirmed by the Division Bench in **M.G.M College of Arts and Science,** Ext.P5 Government order dated 20.08.2020, to the extent it stipulates that permission for W.P.(C).No.28874 of 2020 -33- - starting new colleges can be granted only to co operative institutions, which have sufficient financial background and prior experience in running educational institutions, is liable to be declared unconstitutional, as it violates Articles 14 and 19 (1)(g) of the Constitution of India. Similarly, the restriction imposed in Ext.P2 notification issued by the 1[st] respondent University that applications are invited for starting new colleges (except - Engineering/Medical and allied subjects) from co operative sector alone, during the academic year 2021-22, is also liable to be declared unconstitutional, as it violates Articles 14 and 19(1)(g) of the Constitution of India, which also makes the provisions under the Kannur University First Statutes, which deals with affiliation, redundant. 35. In the result, this writ petition is disposed of by setting aside Ext.P5 Government order dated 20.08.2020 to the extent it stipulates that permission for starting new colleges can - be granted only to co operative institutions, which have sufficient financial background and prior experience in running educational institutions and also the restriction imposed in Ext.P2 notification W.P.(C).No.28874 of 2020 -34- dated 30.11.2020 issued by the 1[st] respondent University that applications are invited for starting new colleges (except - Engineering/Medical and allied subjects) from co operative sector alone, during the academic year 2021-22. 36. Since the petitioner has filed this writ petition before this Court on 21.12.2020, prior to the last date for receipt of application prescribed in Ext.P2 notification, i.e., 31.12.2020, the 1[st] respondent University shall permit the petitioner to submit application for starting new college, during the academic year 2021-22, within a period of 2 weeks from the date of receipt of a certified copy of this judgment. In case such an application is filed, along with all necessary documents and application fee, the 1[st] respondent University shall consider the same and pass appropriate orders thereon in accordance with the relevant provisions under the Kannur University First Statutes, after ascertaining the need of the locality, as provided under Statute 26(1)(a)(i), and also the views of the State Government, as provided under Statute 9(g) of the First Statutes. W.P.(C).No.28874 of 2020 **==> picture [22 x 9] intentionally omitted <==** Registry shall retain the copy of e-file and note file leading to Ext.P5 Government order, made available for the perusal of this Court by the learned Government Pleader, in the Judges Papers of this writ petition. Sd/- **ANIL K.NARENDRAN JUDGE.** bkn/- W.P.(C).No.28874 of 2020 -36- ## **APPENDIX OF WP(C) 28874/2020** ## **ANNEXURE/EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS OF THE KANNUR UNIVERSITY, DATED 25.5.2006 EXHIBIT P2 TRUE COPY OF THE NOTIFICATION DATED 30.11.2020 OF RESPONDENT UNIVERSITY** **EXHIBIT P3 TRUE COPY OF THE PUBLICATION ISSUED BY THE RESPONDENT UNIVERSITY DATED 30.11.2020 EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGES OF THE KANNUR UNIVERSITY, FIRST STATUTE 1998 EXHIBIT P5 TRUE COPY OF THE GO(MS) NO.299/2020/H.EDN. DATED 20/08/2020. ANNEXURE R1(A) TRUE COPY OF THE G.O. (Ms.).NO.299/2020/H.EDN DATED 20.08.2020 ISSUED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION.**