MANARUL HUDA TRUST v. UNIVERSITY OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 17TH DAY OF DECEMBER 2020 / 26TH AGRAHAYANA, 1942** ## **W.P.(C)No.17632 OF 2020(D)** ## **PETITIONER:** **MANARUL HUDA TRUST, EMKE MANZIL,KALLATTU MUKKU, MANACAUD.P.O-695 009. THIRUVANANTHAPURAM DISTRICT REPRESENTED BY ITS CHAIRMAN, ZAKIR HUSSAIN, AGED 58 YEARS,S/O M.K.KALAMUDDIN.** **BY ADVS. SRI.JOSE ABRAHAM(J-1406) SRI.E.ADITHYAN** ## **RESPONDENT:** **THE UNIVERSITY OF KERALA REPRESENTED BY ITS REGISTRAR, UNIVERSITY OFFICE,PALAYAM, THIRUVANANTHAPURAM-695 001.** ## **R1 BY SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.17632 OF 2020(D) -2- ## **JUDGMENT** The petitioner Trust submitted Ext.P1 application dated 29.08.2018 before the University of Kerala, the respondent herein, seeking affiliation of an un-aided Arts and Science College, namely, Ace College of Arts and Science at Kollamkavu in Nedumangad, for the academic year 2019-20, for conducting B.Com (Finance), B.Com (Taxation), B.B.A., B.A. English Language and Literature, B.Sc Mathematics, B.Sc. Chemistry and B.Sc. Bio-chemistry. The Syndicate of the respondent University, in the meeting held on 15.05.2020, considered Ext.P1 application and resolved to reject the same based on the report of the Inspection Commission of the Syndicate, since the petitioner failed to satisfy the mandatory requirement of land, infrastructure, transport and other facilities for starting a new college. The decision taken by the Syndicate, vide Decision No.13.37.01, was communicated to the petitioner by Ext.P2 communication dated 03.08.2020 of the Registrar of the respondent University. As per Ext.P2, the proposed college is not having hostel facility, library, adequate playground and adequate transport facility. 2. On receipt of Ext.P2 communication, the petitioner W.P.(C) No.17632 OF 2020(D) -3- submitted Ext.P3 representation dated 17.08.2020 before the Registrar of the respondent University, pointing out that the deficiencies noted in Ext.P2 communication have already been rectified and therefore, Ext.P1 application may be considered for granting affiliation to the college for the academic year 2020-21. In Ext.P3 representation, on the deficiencies noted in Ext.P2 communication, the petitioner has pointed out that, (i) building has already been allotted for ladies hostel in the campus; (ii) quotations are invited to purchase books and journals, and that process is in progress to place purchase orders; (iii) the college has adequate playground suitable for football, badminton, hockey, cricket, etc.; (iv) quotations are invited to purchase buses for the transportation of students. The petitioner owns surplus school/ college buses, which can be utilised for the immediate use of the proposed college or buses on contract basis. 3. On 24.08.2020, the petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P2 communication dated 03.08.2020 issued by the Registrar of the respondent University, whereby the petitioner was informed about the decision taken by the Syndicate W.P.(C) No.17632 OF 2020(D) -4- to reject Ext.P1 application made by the petitioner seeking affiliation of Ace College of Arts and Science at Kollamkavu, for the academic year 2019-20. The petitioner has also sought for a writ of mandamus commanding the respondent University to grant affiliation to Ace College of Arts and Science at Kollamkavu; and an order directing the respondent University to reconsider Ext.P1 application for affiliation dated 29.08.2018, in the light of Ext.P3 representation dated 17.08.2020 submitted before the Registrar of the University. 4. On 25.08.2020, when this writ petition came up for admission, this Court passed the following order; "The petitioner applied for affiliation of Arts and Science College with the respondent University. That was declined by Ext.P2. The last date for applying for the academic year 2021-2022 is 31.08.2020. The petitioner is free to apply for the academic year 2021-2022. The petitioner reserves liberty to claim the benefit of the application for affiliation already submitted based on the challenge now made before this Court. If the petitioner is found ultimately successful, they are given liberty to claim the benefit of affiliation for the future academic year also." 5. On 11.11.2020, a statement has been filed on behalf of the respondent University, wherein it is stated that the Syndicate W.P.(C) No.17632 OF 2020(D) -5- held on 30.10.2019, vide item No.05.44.31, considered the applications for affiliation of new colleges for the academic year 2019-20, along with the initial verification report on each application incorporating the remarks of the Estate Officer, and resolved to scrutinise those applications. Accordingly, the defects were intimated by issuing defect memos. In response to the defect memo, the petitioner submitted the original land documents for verification. After verification of the documents, the Estate Officer remarked that, as per the location sketch, out of 5.0368 acres of land for the proposed college, an extent of 18.78 cents (7.60 ares) is separated by a pathway, which is shown as 'sarkar pathway' in the Basic Tax Register (BTR). The Syndicate held on 28.12.2019, vide item No.07.59.11, considered the report of the Estate Officer and resolved to conduct inspection in the college. Accordingly, inspection was conducted on 20.03.2020 and the Syndicate held on 15.06.2020, vide item No.13.37.01, considered the application made by the petitioner for affiliation of 'Ace College of Arts and Science', for the academic year 2019-20, along with the inspection report, and also the request for changing the name of the college as 'Ace Arts and Science College for Women' and resolved to reject W.P.(C) No.17632 OF 2020(D) -6- the application for affiliation based on the report of the Inspection Commission of the Syndicate, since the petitioner failed to satisfy the mandatory requirement of land, infrastructure, transport and other facilities for starting a new college. The proposed college is not having hostel facility, library, adequate play ground and adequate transport facility. The decision of the Syndicate was intimated to the petitioner, vide Ext.P2 communication dated 03.08.2020. The petitioner submitted Ext.P3 representation dated 17.08.2020, seeking review of the Syndicate decision, whereby the petitioner's application for affiliation stands rejected. The Syndicate held on 16.09.2020 resolved not to consider that request in Ext.P3. In the statement, it is pointed out that, the respondent University invited applications for affiliation for the academic year 2020-21, prescribing the last date of application as 31.08.2020. Pursuant to that notification, the petitioner college submitted application for affiliation of its Arts and Science College, for the academic year 2020-21, which will be processed by the University as per the statutory provisions. 6. On 01.12.2020, the petitioner has filed a reply affidavit to the statement filed on behalf of the respondent University, W.P.(C) No.17632 OF 2020(D) -7- producing therewith Ext.P4 sketch, in order to show that only a minute area of 18.78 cents (7.60 ares) out of the total area of 5.0368 acres for the proposed college, is separated by 'sarkar pathway'. The document marked by Ext.P5 is the photograph of an old building, which is earmarked for ladies hostel in the college campus. The document marked as Ext.P6 is a copy of the quotation obtained from M/s.Current Books (India) Pvt. Ltd., dated 03.08.2020, quoting the price of 206 books included in the list enclosed therewith. The document marked as Ext.P7 is the photographs of the space earmarked as playground. The document marked as Ext.P8 is a certificate dated 19.08.2020 issued by the Secretary of Nedumangad Grama Panchayat, in which it is certified that there is a motorable way to the establishment of the petitioner Trust, situated in Kollamkavu ward. The document marked as Ext.P9 is a proforma invoice dated 19.08.2020 obtained from M/s.PMH Motors showing the price of Force Traveller with a seating capacity of 25 + Driver. 7. On 08.12.2020, when this writ petition was taken up for consideration, this Court noticed that, the document placed on record as Ext.P6 is only a quotation for purchase of books, which is W.P.(C) No.17632 OF 2020(D) -8- one dated 03.08.2020, the date on which the respondent University rejected the petitioner's application for affiliation of its Arts and Science College by Ext.P3 communication. After arguing for some time, the learned counsel for the petitioner sought adjournment. 8. On 15.12.2020, the petitioner has filed I.A.No.1 of 2020 seeking an order to accept Exts.P10 and P11 as additional documents. The document marked as Ext.P10 is a bill of supply dated 11.12.2020 issued by M/s.Current Books (India) Pvt. Ltd. regarding supply of 650 books worth Rs.3,17,583/-. The document marked as Ext.P11 is a photograph of the library of the proposed college. 9. Heard the learned counsel for the petitioner and also the learned Standing Counsel for the respondent University. 10. The issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P2 communication dated 03.08.2020 issued by the Registrar of the respondent University, whereby the petitioner was informed about the decision taken by the Syndicate, vide Decision No.13.37.01 dated 15.05.2020, to reject Ext.P1 application made by the W.P.(C) No.17632 OF 2020(D) -9- petitioner seeking affiliation of Ace College of Arts and Science at Kollamkavu, for the academic year 2019-20. 11. Clause (2) of Section 2 of the Kerala University Act, 1974 define 'affiliated college' to mean a college affiliated to the University in accordance with the provisions of the Act and the Statutes and in which instruction is provided in accordance with the provisions of the Statutes, Ordinances and Regulations. Clause (7) of Section 2 of the Act define 'college' to mean an institution maintained by, or affiliated to the University in which instruction is provided in accordance with the provisions of the Statutes, Ordinances and Regulations. Clause (12) of Section 2 of the Act define 'hostel' to mean a unit of residence for the students of the University or the colleges or institutions maintained by, or affiliated to, the University in accordance with the provisions of the Act, or the Statutes or Ordinances. 12. Chapter VIII of the Act deals with 'private colleges and affiliated colleges'. Section 56 deals with affiliation of colleges. As per sub-section (1) of Section 56, an application for affiliation to the University of any college or for affiliation in new courses in any affiliated college shall be sent by the educational agency to the W.P.(C) No.17632 OF 2020(D) -10- Registrar within such time and in such manner as may be prescribed by the Statutes. As per sub-section (2) of Section 56, the terms and conditions of affiliation of a college or of affiliation in new courses in an affiliated college and the procedure to be followed by the Syndicate in granting such affiliation, including the period within which the Syndicate shall consider an application under sub-section (1), shall be prescribed by the Statutes. As per the proviso to sub-section (2), the Chancellor may, by notification in the Gazette, for reasons to be specified in the notification, extend the period within which the Syndicate shall consider any application under sub-section (1) whether such period has already expired or not, by such further period, not exceeding one year, as may be specified in such notification. As per sub-section (3) of Section 56, without prejudice to the generality of the provisions of sub-section (2), the Statutes may provide for the pattern of staff, scales of pay and terms and conditions of service of members of the staff and admission and selection of students for courses and examinations. Chapter VIIIA of the Act deals with un-aided colleges. Section 69 of the Act deals with special provisions in respect of un-aided colleges. W.P.(C) No.17632 OF 2020(D) -11- 13. In exercise of the powers conferred by Section 83 of the Kerala University Act, 1974, the Government of Kerala made the Kerala University First Statutes, 1977. Clause (j) of Statute 2 of Chapter 1 of the First Statutes define 'laws of the University' to mean the provisions contained in the Kerala University Act, 1974, and the Statutes, the Ordinances, the Regulations, rules and byelaws made under the Act. 14. Chapter 24 of the Kerala University First Statutes, 1977 deals with 'affiliation of colleges'. Statutes 1 to 5 of Chapter 24 deal with the procedure to be adopted in granting affiliation of new colleges and in new courses. As per Statute 1, which deals with date of application, applications for affiliation of a college or for affiliation in additional subjects shall be addressed to the Registrar, and shall be forwarded to him not later than the 31[st] of August preceding the academic year in which the courses are proposed to be started. As per the proviso to Statute 1, applications seeking affiliation for starting new colleges/courses received in a particular academic year on which the University has made favourable recommendations and sought the views of the Government as envisaged in Statute 9 shall be deemed to be valid for the next W.P.(C) No.17632 OF 2020(D) -12- succeeding year also. The provision will have effect from 1998-99 academic year. 15. Statute 2 of Chapter 24 of the First Statutes deals with 'form of application'. As per Statute 2, an application for affiliation of a new College shall furnish full and detailed information on the following matters:- (a) Constitution and personnel of the Managing Council or Governing Body; (b) Subjects and courses in which affiliation is sought; (c) Previous applications, if any, for affiliation in the same subjects and their disposal; (d) Accommodation, equipment and the number of students for whom provision has been made or is proposed to be made. The information relating to accommodation shall be accompanied by plans and drawings; (e) Qualifications, salaries, work of the teachers and details of proposed staff pattern together with a timetable of the work; (f) Hostels and playgrounds and residences for the Principal and the other members of the staff; (g) Fees proposed to be levied and the financial provision made for capital expenditure on buildings and equipment; (h) The financial resources of the colleges for its continued maintenance; (i) Clear title deeds of property. 16. Statutes 6 to 40 of Chapter 24 of the First Statutes W.P.(C) No.17632 OF 2020(D) -13- deal with the procedure to be adopted by the Syndicate on receipt of application for affiliation, etc. Statute 6 deals with power of the Syndicate to grant affiliation, etc. As per clause (1) of Statute 6, all applications seeking affiliation shall be considered by the Syndicate not later than the 31[st] December preceding the academic year during which the colleges or courses are proposed to be started. As per clause (2) of Statute 6, the Syndicate shall have power to affiliate any college within the territorial jurisdiction of the University preparing students for degrees, titles or diplomas of the University which satisfies the conditions prescribed in the laws of the University. 17. Statute 7 of Chapter 24 of the First Statutes deals with procedure on receipt of application. As per Statute 7, the Syndicate may call for any further information which it may deem necessary before proceeding with an application, or may advice the Educational Agency that the application is premature or may decline to proceed with the application if it is satisfied that the arrangements made or likely to be made before the beginning of an academic year in which the courses are to be started for the conduct of the courses are not sufficient or suitable; or if the W.P.(C) No.17632 OF 2020(D) -14- college has failed to observe the conditions laid down in respect of any previous affiliation. As per Statute 8, which deals with local enquiry, if the Syndicate decides to proceed with the application, it shall direct a local enquiry to be made by a competent person or persons appointed by it in this behalf provided that it shall be competent for the Syndicate to dispense with the enquiry above mentioned in the case of any subject or group of subjects in which it does not, for special reasons to be recorded; consider a local enquiry necessary. 18. Statute 9 of Chapter 24 of the First Statutes deals with grant of affiliation. As per Statute 9, after considering the report of the local enquiry, if any, and after making any 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. As per Statute 12, which deals with conditional affiliation, the affiliation granted may be provisional. If provisional affiliation is granted for a period, the length of the period and the conditions to be fulfilled by the W.P.(C) No.17632 OF 2020(D) -15- college, before the expiry of the period shall be specified in the order of the Syndicate granting the affiliation. If the conditions, are not fulfilled by the end of the period fixed, the affiliation shall cease automatically. If the conditions are fulfilled, the Syndicate shall have the power to confirm the affiliation at the end of the period. The confirmation of the affiliation shall be reported to the Senate. 19. Statute 19 of Chapter 24 of the First Statutes deals with the conditions to be satisfied by affiliated colleges. As per clause (1) of Statute 19, every college affiliated to the University shall comply with and duly observe the provisions in the laws of the University in so far as they are applicable to the college. As per clause (2) of Statute 19, all changes in the membership of the Governing Body or the Managing Council and all appointments, transfers, promotions, demotions or dismissals of Teachers of the colleges with name, qualification and designation shall forthwith be reported to the Syndicate. As per clause (3) of Statute 19, no student shall be admitted to any course of instructions in the college in anticipation of affiliation. 20. Statute 24 of Chapter 24 of the First Statutes deals with W.P.(C) No.17632 OF 2020(D) -16- the matters to be satisfied by the colleges. As per clause (1) of Statute 24, every college shall satisfy the Syndicate on the following points:- (a) that the college if started will supply the needs 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 neighborhood and the suitability of the locality; (b) the character, qualifications and adequacy of the teaching staff and the conditions of their service; (c) Subject to the provisions of the Act and the Statutes framed thereunder the code of professional ethics for University and college teachers prescribed by the University Grants Commission, as provided in Appendix VI of the University Grants Commission Scheme, and approved by the State Government, as amended from time to time, shall be applicable to the teachers in colleges affiliated to the University; (d) the suitability and adequacy of the buildings, libraries, laboratories and other equipment; (e) the character, qualifications and adequacy of the teaching staff and the conditions of their service; (f) 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 W.P.(C) No.17632 OF 2020(D) -17- college hostel or in lodgings approved by the college, of students not residing with their parents or guardians and for the supervision and welfare of students; and (g) such other matters as are essential for the maintenance of the tone and standard of University Education. As per clause (2) of Statute 24, in regard to the matters referred to in clause (1), the Syndicate shall be guided by the reports of Inspection Commissions and by the rules which may be prescribed by it. 21. The provisions under the Kerala University Act, 1974 and the Kerala University First Statutes, 1977 referred to hereinbefore make it explicitly clear that an affiliated college, as defined in clause (2) of Section 2 of the Act, has to provide instruction in accordance with the provisions of the Statutes, Ordinances and Regulations. As per sub-section (1) of Section 56, an application for affiliation to the University of any college or for affiliation in new courses in affiliated college shall be sent by the educational agency to the Registrar within such time and in such manner as may be prescribed by the Statutes. 22. Statutes 1 to 5 of Chapter 24 of the Kerala University First Statutes, 1977 deal with the procedure to be adopted in W.P.(C) No.17632 OF 2020(D) -18- granting affiliation to new colleges and in new courses. As per Statute 1, the application for affiliation shall be forwarded to the Registrar not later than 31[st] of August preceding the academic year in which the courses are proposed to be started; as per Statute 2, the application shall contain information on the matters enumerated in clauses (a) to (i) thereof. 23. As per clause (d) of Statute 2 of Chapter 24 of the First Statutes, an application for affiliation shall contain full and detailed information of accommodation, equipment and number of students for whom provision has been made or is proposed to be made. The information relating to accommodation shall be accompanied by plans and drawings. As per clause (f) of Statute 2, such an application shall contain full and detailed information of hostels and playgrounds and residences for the principal and other members of the staff. As per clause (i) of Statute 2, such an application shall accompany clear title deeds of the property. 24. As per Statute 6 of Chapter 24 of the First Statutes, which deals with the power of the Syndicate to grant affiliation, the Syndicate of the University have the power to affiliate any college within its territorial jurisdiction, which satisfies the conditions W.P.(C) No.17632 OF 2020(D) -19- prescribed in the 'laws of the University', as defined in clause (j) of Statute 2 of the First Statutes, which means the provisions contained in the Kerala University Act, 1974 and the Statutes, Ordinances, Regulations, Rules and Bye-laws made thereunder. 25. In the instant case, Ext.P1 application for affiliation made by the petitioner seeking affiliation of an unaided Arts and Science College was rejected by the Syndicate of the respondent University, in the meeting held on 15.05.2020, based on the report of the Inspection Commission of the Syndicate, since the petitioner failed to satisfy the mandatory requirement of land, infrastructure, transport and other facilities for starting a new college. The decision taken by the Syndicate was communicated to the petitioner by Ext.P2 communication dated 03.08.2020, wherein it is stated that the proposed college is not having hostel facility, library, adequate playground and adequate transport facility. The documents placed on record along with the reply affidavit filed by the petitioner and those produced along with I.A.No.1 of 2020 would make it explicitly clear that the petitioner purchased books for the library only on 01.12.2020, much after the decision taken by the Syndicate in its meeting held on 10.05.2020 to reject W.P.(C) No.17632 OF 2020(D) -20- Ext.P1 application for affiliation. The specific finding by the Syndicate of the respondent University, based on the report of the Inspection Commission, is that the petitioner failed to satisfy the mandatory requirements for starting a new college. The said finding of the Syndicate cannot be termed either perverse or patently illegal, warranting an interference under Article 226 of the Constitution of India. In the result, the challenge made in this writ petition against Ext.P2 fails. 26. The learned counsel for the petitioner would submit that in terms of the interim order of this Court dated 25.08.2020, the petitioner has already made an application for affiliation of the Arts and Science College, for the academic year 2021-22, before the cut off date, namely, 31.08.2020, which is pending consideration. 27. The learned Standing Counsel for the respondent University would submit that the University shall consider the application for affiliation made by the petitioner, for the year 202122, in accordance with law, after conducting necessary inspection. 28. In the result, this writ petition is disposed of by directing the respondent University to consider and take appropriate decision on the application for affiliation made by the W.P.(C) No.17632 OF 2020(D) -21- petitioner, for the academic year 2021-22, strictly in accordance with law, within the time schedule prescribed under the Kerala University First Statutes, 1977. 29. In **State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, generally, no Court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. Therefore, the respondent University shall consider and take appropriate decision on the application for affiliation made by the petitioner, for the academic year 2021-22, strictly in accordance with law, taking note of the relevant statutory provisions and also the law on that point. Sd/- **ANIL K. NARENDRAN JUDGE** bpr -22- W.P.(C) No.17632 OF 2020(D) ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPLICATION FOR AFFILIATION DATED 29.8.2018 FOR ACADEMIC YEAR 2019-2020. EXHIBIT P2 TRUE COPY OF THE LETTER FORWARDED BY THE REGISTRAR OF THE UNIVERSITY OF KERALA DATED 3/08/2020 EXHIBIT P3 TRUE COPY OF THE LETTER DATED 17.8.2020 FORWARDED TO THE REGISTRAR,THE UNIVERSITY OF KERALA. EXHIBIT P4 TRUE COPY OF THE SKETCH SHOWING THE PATHWAY IN THE PETITIONER PROPERTY EXHIBIT P5 TRUE COPY OF THE PHOTOGRAPH SHOWING THE HOSTEL BUILDING PROVIDED BY THE PETITIONER EXHIBIT P6 TRUE COPY OF THE MEMO ISSUED BY THE CURRENT BOOKS OF INDIA DATED 3.8.2020 ALONG WITH THE LIST OF 208 BOOKS EXHIBIT P7 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE PLAYGROUND EXHIBIT P8 TRUE COPY OF THECERTIFICATE OF TESTIMONY ISSUED BY THE MUNICIPAL SECRETARY DATED 19.8.2020 EXHIBIT P9 TRUE COPY OF THE INVOICE OF THE PHM MOTORS DATED 19.8.2020 EXHIBIT P10 TRUE COPY OF THE BILL OF SUPPLY ISSUED BY THE CURRENT BOOKS DATED 11/12/2020. EXHIBIT P11 TRUE COPY OF THE PHOTOGRAPH SHOWING THE LIBRARY. RESPONDENT'S EXHIBITS: NIL**