- (1.) ALL the above writ petitions have been filed by certain trusts and another person who had started Private Educational Institutions against the orders of the respondent/ University, refusing to grant affiliation.
(2.) THE petitioner in W. P. No. 19248 of 1993 is an educational trust established for furthering the educational needs of the people in the rural areas. THE said trust desired to establish an Engineering College at Mathur, Thiruvannamalai and acquired about 25 acres of land in Mathur, Thiruvannamalai. THE petitioner trust also made necessary arrangements for equipping the college with necessary facilities and took a premises in Thiruvannamalai to campus the first year course in Engineering for the academic year 1993-94. THE petitioner seems to have made an application to the respondent for the grant of affiliation for the three year Degree Courses in Mechanical Engineering, Electrical Engineering, electronics Engineering and Computer Science and Engineering with an intake of sixty students in each of the aforesaid courses. THE petitioner obtained an order from this Court directing the All India council for Technical Education (hereinafter called an AICTE) to consider the claims of the petitioner on merits without insisting upon the orders of the State Government. Accordingly aicte deputed an expert committee to inspect the petitioner's college for the purpose of ascertaining the facilities provided in the institution. THE said committee after inspection submitted a report, on the basis of which AICTE passed an order on 19. 7. 1993 granting approval for the establishment of Aruna Engineering College by the petitioner for the Degree courses in Mechanical Engineering, Electrical and Electronics Engineering and computer Science and Engineering from this academic year 1993-94 with an intake of sixty students in each one of the aforesaid courses. THE respondent-University was requested to grant necessary affiliation for the said courses from this academic year (1993-94 ). THEreafter the University appointed a committee to inspect the petitioner institute. It is seen that the committee members of both AICTE and the respondent university have recommended for the starting of the courses in the petitioner''s college from this academic year 1993-94. However, by the impugned order the petitioners have been informed that the syndicate as its meeting held on 15. 10. 1993 has resolved not to grant affiliation as the proposed institution does not satisfy the university''s requirements and as such it is not feasible of compliance with affiliation to the proposed institution. It was under those circumstances, writ petition No. 19248 of 1993 came to be filed challenging the order dated 18. 10. 1993 passed by the respondent- University. Almost identical orders that were passed by the respondent- University are challenged in the other writ petitions also, except the fact that the respective colleges have to established at different places and in different names by different petitioners. A detailed counter affidavit has been filed by the respondent- university stating that the petitioners are not entitled to get affiliation as they do not satisfy the norms as formulated by the University with regard to the requirement of land. It is stated in the counter affidavit that under Madras University Act of 1923 (Chapter XXVI, Statute 25) every college shall satisfy the syndicate on the points of suitability and adequacy of accommodation and equipments for teaching and that it was in accordance with the powers conferred on the syndicate under Sec. l9 (JJ) of the Madras University act. The syndicate of the University of Madras at its resolution passed' 'on 10. 3. 1986 has approved the recommendations of the Endowment committee stating that in respect of the engineering College for starting of fresh colleges, the campus of the college in urban area recognised as such by the University should have a total extent of 100 acres of land and the campus for a college situated in a rural area recognised as such by the University should have a total extent of 150 acres of land. It is further stated in the counter affidavit tnat even though the committee appointed by the University was satisfied about the other requirements, the syndicate in its meeting held on 15. 10. 1993 having found that the petitioner was not having the land requirements has resolved not to grant affiliation to the petitioner college, which is well within its power. It is also stated in the counter affidavid that the resolution of the syndicate in deciding not to grant affiliation to the petitioner''s college was not based on any of the recommendations of the State Government, but was only based on the decisions of the syndicate as approved by the Senate, prescribing the land requirement that the norms formulated by the executive committee of the AICTE is not having any statutory effect, but the resolution passed by the University under its statutory power is still in existence and as such the orders impugned in all these writ petitions are valid in law. Taking me through the decision of a Division Bench of this Court reported in Adhiyaman educational and Research Institutions v. State, AIR 1991 Mad. 246, Mr. Jothimani learned counsel appearing for the University submitted that it is for the University to grant affiliation or with drawl of the affiliation already granted, however, on grounds which will not have any relation to coordination and determination of the standards. It is also stated in the counter-affidavit that it was only in accordance with the powers of the University, as laid down by the Divisional Bench of this Court, the Syndicate has passed the resolution refusing to grant affiliation on the ground of want of land requirement, which is certainly not relating to co-ordination and determinant on standards which are purely the powers of the authority and that the' 'powers' 'of the University are not taken away by the provisions of All India Council for technical Education Act 52 of 1987 (hereinaf-ter called as Act 52 of 1987 ). Mr. R. Krishnamoorthy, learned senior counsel appearing for the petitioner in W. P. No. 19240 of 1993 has also invited my attention to the decision of the Division Bench of this Court in Adhiyaman Educational and research Institutions v. State, A. I. R 1991 Mad 246. Wherein it has been held that the power either to grant affiliation or withdrawal of the affiliation already granted vests only with the AICTE and that the University or the State government are not competent to do it. Learned Senior Counsel also referred to the above decision A. I. R. 1991 Mad. 246 cited supra in support of his contentions,"where it has been held as follows: ". . . . in my view, after the Cental Act 52 of 1987 came into force, the duty is imposed only on the AICTE for recognising or derecognising any technical institution in the country and it is not open to the State government or the University to give approval or disapproval to any technical institution. If it is allowed, in my view, each university will be following different yardstick and each State Government will have its own yardstick in deciding the suitability of any technical institution for being approved and this will be against the object and very purpose of the Act 52 of 1987 and it will defeat the object and very purpose of the Act. " Learned senior counsel for the petitioner also relied on the Norms and standards for Engineering Colleges (Degree Programmes) prescribed by the All India Council for Technical Education, New Delhi and pointed out that with an annual intake of 300 students for 60 students each in the branches/ disciplines of the various courses, the total minimum area of land in 7. 0 hectares, though the desirable extent of land required is 17. 0 hectares. According to the learned senior counsel for the petitioner, when once the AICTE has fixed the extent of land with regard to the establishment of the engineering Colleges. It is not open to the University to fix another extent of land and if the extent of land is refixed by the university, it will be violative of the principles laid down by the Division Bench of this Court in the decision referred to supra. Learned Senior counsel for the petitioner also relied on the order of Srinivasan. (Who is a party to the Division Bench) in writ petition nos. 14820 and 15108 of 1989, dated 30. 1. 1990. The said order of the learned single Judge is reported in Noorul Islam Education Trust v. Government of Tamil nadu, A. I. R. 1991 Mad. 141. Learned senior counsel for the petitioner therefore contends that the orders impugned in these writ petitions have got to be set aside only on the ground that the same have been passed on the only footing that the petitioners do not satisfy the land requirement as prescribed by the resonpdent-University. Virtually, what the learned senior counsel for the petitioner states is that when once the AICTE has taken over the co-ordination and determination of standards in institutions for higher education on research and scientific and technical institutions, it is not open to the university to rely upon the guidelines which have been fixed prior to the coming into force of the Central Act 52 of 1987 under a pre constitutional enactment. According to the Learned senior counsel for the petitioner, the resolution passed by the university cannot be held to be valid, after coming into force of the Central act 52 of 1987 and as such, the impugned orders are liable to be set aside. Further, learned senior counsel for the petitioner pointed out that a power is vested with the respondent University under Statute 44-A to grant provisional affiliation, if the only objection of the University is with regard to the extent of land and that even assuming that the said objection is valid in this case, the respondent-University could have very well granted provisional affiliation to the petitioner under Statute 44-A framed under the Madras University Act. That apart, learned senior counsel for the petitioner states that the orders impugned in these writ petitions are cryptic and no reasons are stated in these impugned orders and even on the ground they are liable to be set aside. . Mr. Ganguli, learned senior counsel appearing for the petitioner in W. P. No. 19294 of 1993 and Mr. Govindarajan, learned counsel for the petitioner in W. P. Nos. 19293 of 1993 and 19295 of 1993 took me through the relevant portions of the Statute of the University (at page Nos. 241, 249 and 250) and argued that the University is expected to act strictly in accordance with the Sta t-ute and the University cannot encroach upon the legislative field, which is left open to the Parliament, when specially the parliament has enacted with the Act 52 of 1987 which came into force only in 1988. Further, the learned senior counsel for the petitioners pointed out that neither the state Government nor the University is entitled to give approval or disapproval for the starting of the college. , after the Central Act 52 of' '1987 came into existence and that the principle laid down by this Court in both the decisions (cited supra) support the claim of the petitioners in this regard and that on that ground the impugned orders are liable to be quashed. Learned counsel for the petitioners further pointed out that the requirement of land either 150 acres or 100 acres has no bar at all with regard to the starting of an institution or granting affiliation to the Engineering College and that the impugned proceedings which reject the claims of affiliation is based on extraneous and irrelevant considerations which are beyond the purview or juridiction of the respondent University and on that ground the impugned orders are liable to be set aside. Learned counsel for the petitioners also referred to the Circular dated 14. 11. 1990, wherein it is stated that the All India council for Technical Education has approved the norms and standards for the conduct of the courses and programmes in the Engineering Colleges. The norms as framed under the Act clearly shows the extent of land which is required for starting of the Engineering College. According to the learned counsel for the petitioners, the requirement of land has nothing to do with the coordination and determination of standards in institutions for higher education or research and scientific and technical institutions and under such circumstances the respondent University is not empowered to fix their own norms, with regard to the grant of affiliation to the institutions, especially the Engineering colleges. . Per contra, Mr. Jothimani, learned counsel appearing for the respondent University contends that the guidelines as framed by the aicte are not statutory in character and that such of these provisions of the madras University Act which will not fall under the head co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions will beoperative and as such, it is open to the respondent- University to fix their own norms for granting affiliation to the petitioner institutions. According to the learned counsel for the respondent University, the independent decision of the syndicate prescribing land requirement, which is not in any way related to the coordination and determination of standards, but only to ascertain the safeguard and financial stability of the institution cannot be challenged by the writ petitioners and when the University has passed a resolution in 1986 prescribing the extent of land, it is not open to the writ petitioners to question the same, as if the central Act 52 of 1987 has taken away the powers of the University with regard to the affiliation as a whole. According to the learned counsel for the university the requirement of land will not in any way take away the scope of any of the sub clause of Sec. lo-A of the Central Act 52 of 1987 and as such, even though the AICTE has granted approval for affiliation to the petitioner institution and the committee 2members appointed by the University recommended the grant of affiliation to the petitioner institutions, it is open to the university to impose conditions for affiliation which will not have bearing on co-ordination and determination of standards. When a question as to why the university should not grant provisional affiliation under the Statute 44-A learned counsel for the University relied on the Judgement of the Division bench of this Court reported in Adhiyaman Educational and Research Institutions v. State, A. I. R. 1991 Mad. 246 and pointed out that the Division Bench of this court has heavily come down on the University with regard to the exercise of power under the Statute 44-A.
(3.) 1 have considered the rival submissions made by the learned counsel appearing for either side. The short question that arises for consideration in all these cases is whether the impugned orders can stand scrutiny of this Court in the light of the provisions of the Central Act 52 of 1987 and the judgements of this Court in the two decisions cited supra. It is worthwhile to refer to the observation at this stage made by Mohan. J. in the decision reported in Unnikrishnan v. State of A. P. , (1993)1 S. C. C. 654, wherein it has been held as follows: ' 'Therefore, as on today it would be unrealistic and unwise to discourage private initiative in providing educational facilities, particularly for higher education. The private sector should be involved and indeed encouraged to augment as such progress as possible in achieving the constitutional goals in this respect. It could be concluded that the private colleges are the felt necessities of time. That does not mean one should tolerate the so called time. Colleges run in thatched huts with hardly any equipment, with no improvised laboratories, scarce facility to learn in an unhealthy atmosphere, far from conducive to education. . . . . . There are institutions which have attained great reputation by devotion and by nurturing high educational standards. They surpass the colleges run by the government in many reas-pects. They require encouragement.' ' So, the Supreme Court has recognised that importance of starting of private institutions and has also approved in principle that private institutions have to co-exist along with the other Government institutions. The other question to be considered is with regard to the land requirement as asked for by the University and whether the requirement of the University in this regard can be held to be valid in the light of the guidelines fixed by the aicte. It is seen from the guidelines fixed by the AICTE that the total extent of land required for an Engineering College with an annual intake of 300 students is as follows: As against these guidelines, according to Mr. Jothimani, learned counsel for the University, the resolution passed by the University in 1986 has got to be enforced, which I do not think is correct in law. When especialy after the Central Act 52 of 1987 and in view of Sec. 10 of the Act as defined by the Council. If sub clauses (I) & (K) of Sec. 10 are read together, I have no hesitation to hold that the requirement of land will fall under the specific provisions for starting the Engineering College under Sec. 10 of the Act. While that being so. I do not think that the respondent university can still doing on to the resolution which was passed prior to the passing of the Central Act 52 of 1987 and contend that the petitioners require 150 hectares of land for starting the Engineering College. In my view, the said requirement is wholly necessary. Yet another reason given by the University for not granting the affiliation to the petitioner on the ground of financial stability is an interesting feature to be noted. It is stated in the counter affidavit that as far as the land requirements are meant for ascertaining the financial stability of the institution apart from the requirements of the institution to create endowment, which are done by the Universities. According to the University that though the syndicate in the local enquitry has found that the petitioner institutions satisfied the requirements in respect of class rooms, drawing halls, laboratory and workshop, library, staff and hostel etc. , the petitioner institutions were not having the land requirement, which in my view has been come down by the Division Bench Judgement of this Court in the decision cited supra A. I. R. 1991 Mad. 246. Further the Division Bench of this court in the said decision has also observed as follows: "the fact that the Union has not legislated, or refrained from legislating to the full extent of its power does not invest the state with the power to legislate in respect of a matter assigned by the constitution to the Union. It does not, however, follow that even within the permitted relative fields there might not be legislative provisions in enactments made each in pursuance of separate exclusive and distinct powers which may conflict. " If there be Union legislation in respect of coordination and determination of standards, that would have paramoutney over the State law by virtue of the first part of Art. 254 (l) even if that power be not exercised by the Union Parliment the relevant legislative entries being in the exclusive lists, a state law trenching upon the Union field would still be invalid". It has been held in Noorul Islam Education Trust v. Government of Tamil Nadu, a. I. R. 1991 Mad. 141 that conditions which may be laid down by the University have to be such other than imposed by the Council. It is worthwhile to extract paragraph 16 of the said decision: "the Division Bench in the Judgement referred to already, has pointed out that the University can impose only such conditions as will have no relevance to coordination and determination of standards. As laid down by the Bench, it is open to the University to grant or refuse to grant affiliation on grounds which will not impinge upon co-ordination and determination of standards. Hence, it is necessary for the all India Council to lay down the norms which fall within the scope of co-ordination and determination of standards. That will enable the Universities to prescribe such other conditions as may be required for grant of affiliation. It cannot be disputed that the grant of approval or permission by the All India council is not sufficient to enable any person to start a technical institution. If such person wants the students of the Institution to be examined by any university, the institution has to get affiliation from the university. Such affiliation can be granted only if the conditions laid down by the University are fulfilled. No doubt the conditions which may be laid down by the University have to be such other than those imposed by the All India council. " [italics is mine]. Therefore the condition imposed by the University with regard to the land requirement is unreasonable when the AICTE has already fixed the norms stating lesser extent of land than that fixed by the University in its resolution. I am unable to appreciate the stand taken by the learned counsel for the University in this regard. That apart, the impugned orders do not contain any specific reasons. On the other hand, they simply say that the petitioner institutions do not satisfy the condition as prescribed by the University end is very cryptic. I am of the view, the University ought to have passed reasoned orders. I do not think that the learned counsel for the university can take shelter under the observations made by the Division Bench of this Court with regard to the grant of provisional affiliation under Statute 44-A. It cannot be said that it is not open to the University to grant provisional affiliation to the petitioner Institutions under Statute 44-A at all in view of the the Division Bench judgment of this Court cited supra. Each case has to be decided on the facts and circumstances of that case. Just because the petitioner Institutions do not satisfy one of the conditions viz. land requirement, it is not open to the Univer-isity to reject even provisional affiliation to the Institutions on that score by ignoring Statute 44-A. Even assuming that the petitioner institutions do not satisfy the land requirement condition, the university got every power to grant provisional affiliation to the institutions in question under Statute 44-A which specifically provides for such contingencies. Thus, on a careful consideration of the entire materials placed before this Court, this Court is of the view that the orders impugned in these writ petitions are liable to be get aside. Accordingly, the impugned orders in all these writ petitions are set aside and these writ petitions shall stand allowed. However, taking into consideration the peculier circumstances of these cases and the orders passed by the Supreme Court with regard to the admission of candidates to the professional courses for this academic year, the respondent- University is diracted to consider the grant of provisional affiliation to the petitioner Institutions and pass apropriate orders to the said effect on or before 30th October, 1993. I am of the view that taking note of the special features in these cases, the University will pass suitable orders by applying Statute 44-A with regard to the granting of at least provisional affiliation to the petitioner Institutions. No costs. .;