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Judgment
Paul Vasanthakumar, J.—By consent of all parties, both the writ petitions are taken up for final disposal.
These writ petitions are filed challenging theorder passed by the first Respondent dated 6.7.2011 confirming the orders passed by the second Respondentwithdrawing recognition of D.T.Ed. and B.Ed coursesrespectively and to direct the Respondents to grantpermission to locate the institution in the new premises atNo. 2, Demellows Road, Choolai, Chennai-112.
The brief facts necessary for disposal of these writ petitions are as follows:
(a) Petitioner Trust was formed to establisheducational institutions for the benefit of MuslimCommunity and for educationally and socially backwardstudents. It has established MEASI College of Education toimpart Diploma in Teacher Education (D.T.Ed) course andrecognition was granted by the second Respondent on24.10.2007 for the sanctioned strength of 50. The thirdRespondent also granted affiliation/staff approval on3.6.2009 and permitted to run the institution in itstemporary building located at No. 53 Angappa Naicken Street,Mannady, Chennai-1, from the academic year 2009-2010.
(b) The Petitioner Trust also commenced B.Ed. coursein the said temporary building from the academic year 2005-2006 with an intake of 100 students. Recognition wasgranted by the second Respondent and affiliation was also granted by the third Respondent, originally by the Madras University and now by the third Respondent.
(c) An extent of 9.73 grounds of land at Choolai,Chennai-112, was purchased by the Petitioner Trust to housethe institution to offer the said two courses with allinfrastructural and instructional facilities. For sanctionof necessary approval for construction of 34,132 sq.ft(3172.10 sq.mtr) application was made before the 4th Respondent CMDA, even though the prescribed requirement ofconstructed area as per the NCTE norms to conduct both thecourses is 27,000 sq.ft.
(d) According to the Petitioner Trust, building planwas approved by the licenced surveyor and the constructionof the building is completed. No. Objection Certificatefrom the Tamil Nadu Fire Service and Sanitary Certificatefrom the Public Health Officer, Corporation of Chennai,were also obtained to the said new premises.
(e) Petitioner has applied for shifting theinstitution to the newly constructed building in theprescribed format stating the carpet area of each classroom, Lab, Workshop, Staff rooms, etc. A play ground isalso provided with an extent of 1930.38 sq.mtr. andrequested the second Respondent to grant permission toshift the institution to the new premises.
(f) Petitioner states that the area earmarked for thecourses was wrongly stated as 988.71 sq.mtr. and 951.49sq.mtr instead of 2170.446 sq.mtr. and 3172.10 sq.mtr. Thesecond Respondent issued a show cause notice on 7.12.2010to withdraw the recognition on the ground that the built uparea earmarked for the courses being 5550 sq.ft., and thesaid area is inadequate as per the NCTE norms and directedthe Petitioner to submit the latest building completioncertificate issued by the competent Government Engineer.The Petitioner sent a reply on 20.10.2010 stating that theactual built up area earmarked for the courses is 34,132sq.ft, which is more than the required area of 27,000sq.ft. as per the NCTE norms for both the institutions.It was also pointed out that there was a typographicalerror in the built up area mentioned in the originalapplication. Petitioner also enclosed the building plan,sale deed of the land, patta, sanitary certificate, NOCissued by the Fire Service Department, Structural StabilityCertificate, etc.
(g) It was also stated that the Petitioner appliedfor building completion certificate and undertook tosubmit the same soon after the same was made available andrequested the second Respondent to grant permission.According to the Petitioner, the second Respondent withoutconsidering the reply dated 20.10.2010, passed orders on10.3.2011 and 7.3.2011 respectively and withdrewrecognition to D.T.Ed and B.Ed courses respectively fromthe academic year 2011-2012 and debarred the institutionfrom admitting the students in both the courses by statingthat the institution did not mention the survey number ofthe site; that the building plan was not approved; that thetotal built up area available is only 18,554 sq.ft., whichis far less than the requirement of 27,000 sq.ft.; that the management did not produce the building completion certificate from the authorised Engineer; and that the reply submitted by the petitioner was found not satisfactory
(h) The Petitioner having aggrieved over the saidorder filed appeal before the first Respondent u/s 18 of the NCTE Act, 1993, by enclosing all relevantdocuments including the communication received from theCMDA dated 4.6.2010 and prayed for setting aside the orderand to grant permission to locate the above referredinstitutions in the new premises.
(i) During the personal, the representative of thePetitioner also appeared before the first Respondent on8.6.2011 and stated about the compliance of the requirements as per the NCTE norMs. It was also pointedout that inspection report clearly stated the availabilityof 34,132 sq.ft. The CMDA issued planning permission byits communication dated 22.6.2011. The first Respondentrejected the appeal and confirmed the orders of the secondRespondent dated 10.3.2011 and 7.3.2011 respectively byseparate orders dated 6.7.2011
(j) The said orders are challenged in these writpetitions contending that the Petitioner having beengranted recognition for D.T.Ed and B.Ed courses toestablish institution in a rented premises and thePetitioner having purchased the land in the prime localityof Chennai City and constructed suitable building as perthe requirement of the NCTE, and in spite of producingbuilding plan and other relevant certificates coupled withplanning permission issued by the CMDA dated 22.6.2011,mechanically and hypothetically passed orders withdrawingrecognition on the ground of inadequacy of area, which iscontrary to the inspection report. The institution isgetting 100% results in the past academic years andinterest of students, particularly belonging to minoritycommunity, will be affected if the impugned orders are notset aside and permission is not granted to locate theinstitution in the new premises. Petitioner also contended management did not produce the building completion certificate from the authorised Engineer; and that the reply submitted by the Petitioner was found not satisfactory. that huge amount was spent for the purchase of the propertyin Chennai city and by spending huge amount building isconstructed and if permission is not granted Petitionerwill be put to serious difficulties.
The second Respondent field counter affidavitcontending that the Petitioner submitted an application toshift the institution to the permanent premises on18.2.2010 and inspection was conducted on 16.9.2010. Notice was issued on 7.12.2010 for which a reply was givenby the Petitioner on 30.12.2010. Four deficiencies werenoticed based on which the recognition was withdrawn. Theappeal preferred by the Petitioner was also dismissed bythe appellate authority confirming the orders passed by thesecond Respondent. The building approval and completioncertificate was not issued by the competent authority viz.,4th Respondent and the building itself was constructedwithout any sanctioned plan. Therefore on the date ofapplication, there was No. sanctioned plan and No. buildingcompletion certificate was issued by the 4th Respondent,apart from not having sufficient building area. It is alsocontended in the counter affidavit that the secondRespondent being the expert body, assessed theinfrastructural facilities available and having arrived ata conclusion, the same cannot be challenged before this Court.
Mr. R.Krishnamurthy, learned Senior Counselappearing for the Petitioner Trust submitted that thePetitioner Institution is offering B.Ed. and D.T.Ed coursesfrom 2005-2006 and 2008-2009 respectively with an intake of100 and 50 students each. The management havingestablished the institution in a rented building, the Trustpurchased required land within the city of Chennai byinvesting huge amount and constructed the building havingan extent of 34,132 sq.ft. and the competent authorityviz., Tamilnadu Fire Service issued No. ObjectionCertificate; Public Health Officer, Corporation of Chennaiissued Sanitary Certificate; and the building plan was alsooriginally approved by the Licenced Surveyor andsubsequently by the CMDA. Learned Senior Counsel furthersubmitted that during pendency of the application beforethe 4th Respondent CMDA for approval, the Petitionermanagement submitted application before the secondRespondent for shifting the institutions to the newlyconstructed own building with all enclosures on 24.2.2010. The show cause notice issued on 7.12.2010 and 10.12.2010were also suitably replied stating that the total built uparea is 34,132 sq.ft., which is more than the required areaas per the NCTE norms, which prescribes 27,000 sq.ft for offering both courses. The second Respondent, withoutconsidering the availability of total area of 34,132 sq.ft.and without application of mind, rejected the request onthe ground that the area available for both the courses is18,554 sq.ft, which is far less than the required area of27,000 sq.ft, among other things.
The learned Senior counsel also submitted thatappeal was preferred against both the orders before thefirst Respondent u/s 18 of the NCTE Act, 1993,and during pendency of the appeal CMDA granted approval on22.6.2011, which was also handed over by a representativeof the management before deciding the appeal. Personalhearing was given on 8.6.2011 by the first Respondent andduring the said time also the facts about the availabilityof the land and other infrastructural facilities wereappraised. The appellate authority even though noted thecontention of the management that the built up area is34,132 sq.ft, rejected the appeals by separate ordersdated 6.7.2011 on the ground that the second Respondentgave finding that only 13,004 sq.ft. is available and thePetitioner has also not enclosed the approved plan issuedby the competent authority for the building constructed.The learned Senior Counsel also submitted that thePetitioner college being a established college, granted recognition and affiliation by the competent authorities,has got a right to continue. The said facts were notnoticed by the Respondents 1 and 2 and therefore the orderspassed by the second Respondent confirmed by the firstRespondent are unsustainable as the same were passed onnon-application of mind and without considering therelevant facts. The CMDA approval granted was also notnoticed during pendency of the appeal and the formalapproval of the plan has to be obtained from theCorporation of Chennai, for which also the Petitioner haspaid the required fees. Therefore the learned SeniorCounsel prayed for setting aside both the orders and remitthe application to the second Respondent forreconsideration taking note of all relevant facts and topass fresh orders.
The learned Standing Counsel appearing forNCTE/Respondents 1 and 2 submitted that the PetitionerInstitution has not produced the building approval grantedby the Corporation of Chennai and therefore the orderpassed by the appellate authority is just and proper and itis the mandatory requirement to comply with all the normsof the NCTE for continuance of approval/grant of permissionto shift the institution to the new premises. Thereforethe orders passed by the authorities are legal and valid.
I have also heard the learned Additional Government Pleader appearing for Respondents 3 to 5.
From the pleading and records it is evident thatthe second Respondent, by order dated 20.1.2006 grantedrecognition to B.Ed course and by order dated 25.2.2008granted recognition to D.T.Ed course. The Madras Universityas well as the Director of Teacher Education Research andTraining granted affiliation/approval of staff list to thesaid courses. The institution commenced its functioning ina rental building and thereafter the management purchased 9.73 grounds at No. 2 Demellows Road, Choolai, Chennai-112,and the building is also constructed in an extent of 34,134sq.ft. It is an admitted fact that the requirement ofbuilding for both the courses as per NCTE norms is 27,000sq.ft. The Tamilnadu Fire Service Department issued NoObjection Certificate and the Public Health Officer,Corporation of Chennai issued Sanitary Certificate.Approval from the CMDA was pending during the submission ofthe application seeking permission to shift the course.During the pendency of appeals the CMDA granted approval byorder dated 22.6.2011 with the following conditions:
The Planning Permission isissued subject to the followingconditions:
i) To ensure that the plans for the new buildings will incorporate theapproved designs for mosquito proof overhad tanks and wells
ii) Non provision of Rain Water Harveststructures as shown in the approved planto the satisfaction of the Authoritywill also be considered as a deviationto the approved plan and violation ofDCR and Enforcement action will betaken against such development.
The approved plans arenumbered as Planning PermitNo.C.5641/04A to F/2011 and two copiesof the same along with two copies of theplanning permit are enclosed herewithfor taking further action in thisregard.
The approval is not final.You have to approach the Commissioner,Corporation of Chennai for issue ofbuilding permit under the respectiveLocal body acts, only after which theproposed construction can be commenced.
The approval order issued by the CMDA clearly reveals thatit is a temporary approval and not a final one and thePetitioner was directed to approach the Commissioner ofCorporation of Chennai for issuing building permit.According to the Petitioner necessary fee is also paid tothe Corporation of Chennai as per the requirement. The said order was passed by CMDA during pendency of the appeal and the same fact was intimated and a copy of the same washanded over on 23.6.2011. However, the said approvalgranted by the CMDA and the availability of 34,132 sq.fthas not been considered by the appellate authority. Thelicenced Surveyor has already given certificate forcompletion of the building having an extent of 34,132sq.ft. and a copy of the same is filed in page No. 19 of thetyped set of papers, wherein it is stated that the buildingwas constructed in the year 2009 at an approximate cost ofRs. 2.53 crores consisting of ground, first and secondfloors. The said aspect was not considered by the second Respondent while passing the impugned orders and also bythe first Respondent while passing the orders in appeal.
The Petitioner institution is an establishedinstitution, conducting courses such as B.Ed and D.T.Edcourses. The Respondents 1 and 2 are bound to consider theapplication in a proper spirit, even though they are only vested with power to grant permission. If relevant materials are not considered by the statutory authority,the decision arrived at can be treated as an arbitrary decision. The said position is emphasised by the Honourable Supreme Court in the decision reported in Centre for PIL and Another Vs. Union of India (UOI) and Another, .
The impugned orders are withdrawing the recognition granted to B.Ed and D.T.Ed courses to thePetitioner institution. Section 17 of the NCTE Act, 1993,empowers the Respondents 1 and 2 to withdraw recognition on any valid grounds and reasons for withdrawal should berecorded in writing and before withdrawing recognition,reasonable opportunity of making representation against theproposed order has to be given to the recognized institution. The order withdrawing or refusing recognition passed by the Regional Committee shall come into force only with effect from the end of the academic session next following the date of communication of such order. Fromthe above statutory provision it is evident that areasonable opportunity of making representation is made asa condition precedent to pass orders of withdrawal of recognition. The reasonable opportunity provided under the statutory provision should be given due importance by thefirst Respondent. It shall not be treated as an empty formality. If all relevant facts were considered, there might be a possibility of arriving at a different conclusion in this case by the Respondents 1 and 2.
When the statutory provision gives a direction to give reasonable opportunity, it shall not be treated as an empty formality. The reasonable opportunity includes consideration of the objection/explanation submitted for the show cause notice. The non-consideration of therelevant factor by a statutory authority while passing the adverse order against an institution has got serious consequences, particularly when the recognition granted is ordered to be withdrawn. Hence the Respondents 1 and 2 are all the more duty bound to consider the representation orexplanation in its right spirit and arrive at a justdecision, promoting the interest of the students as well as the institution, which has invested huge amount for itsestablishment and cater the needs of the society. If theinstitution is applying for fresh recognition or additional intake, strict compliance of the norms is bound to berequired. Here the Petitioner is already grantedrecognition to the said two courses, which is bound to betaken note of by the second Respondent.
The question as to whether the authority can bedirected to reconsider the request was considered by the Division Bench of the Delhi High Court in L.P.A. No. 544 of2011 and by order dated 21.7.2011 the Delhi High Courtordered re-inspection and the authority was directed topass a reasoned order after offering opportunity of hearing. The said case relates to increase of intake of students for admission in a medical college. The saidorder was challenged before the Honourable Supreme Court in SLP No. 16233 of 2011 and the Supreme Court by order dated 17.6.2011 while confirming the order of the Delhi High Court, clarified and passed the following order:
(b) The Council shall be atliberty to consider the application inaccordance with the Rules, Regulationsand the parameters provided for grant of approval of such colleges. If as per the wisdom of the Council, conditions are not satisfied it will be at liberty to decline the approval.
(c) We extend the period by two weeks for considering and granting/refusing the approval to the Medical College. The Council will be atliberty to inspect the College through Experts as contemplated under the Rules.
Following the said orders this Court in W.P. No. 16298 of2011 order dated 5.8.2011, set aside the order passed bythe Medical Council of India rejecting the request of increase of intake in first year M.B.B.S. Course to thePetitioner therein and the matter was directed to be reconsidered after making fresh inspection by the Medical Council of India.
Taking into consideration all these facts as wellas the judgments referred above and the approval granted bythe CMDA on 22.6.2011, I am of the view that the impugned orders are unsustainable. Consequently the same are set aside. The matter is remitted back to the second Respondent to consider the request of the Petitioner in all relevant facts and pass fresh orders within a period of three weeks from the date of receipt of copy of this order.
The writ petitions are disposed of accordingly. No. costs. Connected miscellaneous petitions are closed.