LPA No. 951 of 2011 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH LPA No. 951 of 2011 (O&M) Date of Decision: 20.12.2011 S.D. Arya Educational Society (Regd.) Balsamand Road, Hisar, Haryana through its Chairman S V Arya ……… Appellant Versus State of Haryana & another ………… Respondents ***** CORAM : Hon’ble Mr. Justice M.M. Kumar Hon’ble Mr. Justice Rajiv Narain Raina Present: Mr. Anand Chibbar, Advocate for the appellant. **** 1. To be referred to the reporters or not? 2. Whether the judgment should be reported in the digest. RAJIV NARAIN RAINA, J. 1. This appeal filed under Clause X of the Letters Patent is directed against the order of the learned Single Judge dated 10.03.2011 dismissing the writ petition filed by the appellant against the order dated 6.8.2008 passed by the Higher Education Commissioner, Haryana, Panchkula (P-23) withdrawing the provisional ‘No Objection Certificate’ (for brevity ‘NOC’) issued to the writ petitioner- appellant dated 28.8.2005 and forfeiting an FDR Rs. 5,00,000/- furnished as Endowment Fund. The purpose of the Endowment Fund was apparently a performance guarantee. 2. The facts of the case may be briefly noticed. The appellant applied to the Government in the Education Department for grant of provisional ‘NOC’ to start a law college in the name and style of Arya College of Law, Balsamand Road Campus, Hisar. It was granted by memo dated 28.8.2005 with 15 conditions imposed. The fourth Clause of the ‘NOC’ required the appellant to meet the LPA No. 951 of 2011 -2- conditions of affiliation prescribed by the affiliating university as also the conditions required to be met by the University Grants Commission and the Bar Council of India. The fourteenth Clause of the ‘NOC’ required the appellant to produce an FDR of rupees five lacs pledged in the name of the Higher Education Commissioner, Haryana to be deposited in the office concerned within a stipulated period of the issuance of ‘NOC’. This FDR was towards the Endowment Fund. It was also stipulated that in case the institute is not able to run / sustain it the ‘NOC’ shall be withdrawn and the FDR shall be forfeited to continue the studies of the enrolled students; for the payment of salary of the staff and cost of running the institute. Clause 14 was made subject matter in the challenge to the impugned order (P-23). We reproduce it below:- “14. Endowment Fund in the shape of FDR of Rs 5.00 lacs pledged in the name of the Higher Education Commissioner, Haryana is to be deposited in this office within 15 days of issuance of NOC. In case, the institute is not able to run / sustain itself, the NOC shall be withdrawn and the Endowment Fund in the shape of FDR of Rs. 5.00 lacs submits by the Applicant shall be forfeited to continue the studies of the enrolled students/ for the payment of the salary of staff and for other costs of running the institute and just in case the funds available in the college are sufficient, the balance amount shall be recovered from the applicant society / trust / company/ individual(s) as per the Law of State.” 3. We have heard Mr. Anand Chhibbar, learned counsel for the appellant at considerable length. In his challenge to the order impugned in the writ petition and not interfered with by the learned Single Judge by in limini dismissal of the writ petition, learned counsel for the appellant has argued; as he did before the learned Single Judge that the College though having taken provisional ‘NOC’ never took off or became functional; therefore, the Endowment Fund ought not to have been forfeited. In this appeal a separate application bearing C.M. No. 2681 of 2011 has been filed under Order 41 Rule 27 read with Section 151 CPC for consideration of additional documents (Annexures A-1 to A-5) being correspondence exchanged between the parties but not placed on the record before the learned Single Judge. It is stated in the application that some of the LPA No. 951 of 2011 -3- documents have been obtained under the Right to Information Act. The sum and substance of this correspondence is to hammer the fact that the college was de facto never opened nor any student was ever admitted and the Bar Council of India had refunded the application money to the appellant by a draft dated 24.4.2007 and the affiliation on principle granted by the Kurukshetra University had been unilaterally withdrawn by the College itself. Another letter has been now placed on record allegedly being a letter of the Higher Education Commissioner dated 8.10.2009 after the passing of the impugned order on 6.8.2008 (P-23) addressed to the Chairman of the Appellant- society with copy to Registrar, Kurukshetra University, Kurukshetra asking whether Arya College of Law, Hisar started or not. It is, thus, argued that through this letter the Administrative Authority that passed the impugned order has shown his interest in release of Endowment Fund of rupees five lacs. This alleged letter (A-2), it is stated, was also not produced before the learned Single Judge. We have read the letter Annexure A-2). We are unable to draw an inference from this letter suggesting that the Higher Education Commissioner, Panchkula was inclined or suggested that he was inclined to release the Endowment Fund of rupees five lacs deposited as an FD with HDFC Bank, Hisar. All this letter says is; “in reference to your letter No.LA/1 dated 2.1.2009 in the above cited subject. Kindly inform that whether you have started the Arya College of Law, Hisar or not.” We cannot draw any inference from the subject of the letter, which could be relatable only to the correspondence initiated by the appellant. We do not find any substance in the contentions raised by the learned counsel for the appellant based on these documents sought to be produced as additional evidence. The argument that the appellant never took off or ever admitted any student would furnish just and proper reason for return of Endowment Fund does not impress us. Clause 14 contemplates the situations, where institute is unable to run or sustain itself the ‘NOC’ can be forfeited. We have examined the order dated 6.8.2008, impugned in the writ petition. We find that the order has been passed after putting the appellant to notice and receiving its reply thereto. We also find that in terms of Clause 5 of the provisional ‘NOC’ the applying institution was LPA No. 951 of 2011 -4- required to take approval and affiliation from a University established within the State of Haryana together with a nod from the Bar Council of India. It is unfortunate that the appellant-society approached the Chaudhary Charan Singh University, Meerut (U.P.) and obtained affiliation fraudulently from it and made no attempt to obtain affiliation with the Kurukshetra University, Kurukshetra. There is no rebuttal of this fact. Besides, we find from the order that the Bar Council of India had by its letter dated 26.4.2006 lodged a complaint with the SSP, Hisar to register a criminal case against the society. The SSP, Hisar in turn is said to have reported that there is no Law College on the ground and instead there is counseling / tuition centre being run in the name of Swami Dayanand Education Society. A team from the Administrative Department is also stated to have visited the site and confirmed the allegation of the Bar Council of India recommending a thorough enquiry into the matter. 4. We are convinced on an examination of the documents on record that the appellant Institution was born in fraud. We feel that the expression ‘not able to run / sustain itself’ used in Clause 14 are broad enough to sustain the order of forfeiture. The expression ‘not able to run’ would not in our view mean that the institution should have reached the point of admitting students on its roll. The inability to function was a creation of the appellant itself. So long as it took steps appropriate or inappropriate that gave birth premature, still born or of whatever kind would not help the appellant to sustain an argument as raised before us that when the college was ‘not opened’ nor any student was ever admitted the forfeiture order would be bad. 5. We agree with the view of the learned Single Judge that 'run' and 'sustain' have different shades of meaning. The word ‘sustain’ would be referable to forfeiture for the purpose of continuing the studies of enrolled students and payment of salary to staff etc. That in fact is the object and purpose of the Endowment Fund to work as a performance guarantee so that students and teachers and other paraphernalia necessary to run a college are not left in the lurch. The Endowment Fund would then act as a temporary bridge till the future is secured by other lawful means. On the other hand, the word ‘run’ as employed LPA No. 951 of 2011 -5- in Clause 14 would contemplate situation prior to admission of students and thereafter as well. We reject the argument of the learned counsel that because the institution was not opened, and we add publicly or that no students were admitted the Endowment Fund should be returned to it and that too after delay and laches in the filing of the writ petition in 2011 when the impugned order was passed on 6.8.2008. The appellant cannot take advantage of not getting affiliation from the University and Bar Council of India and then to use its own shortcomings and malpractices as a window to receive back rupees five lacs. In view of the above, the application under Order 41 Rule 27 read with Section 151 CPC is dismissed. We uphold the order of the learned Single Judge on both counts. The appeal, in our considered view, does not merit admission and deserves to be dismissed in limini. Ordered accordingly. (M.M. KUMAR) (RAJIV NARAIN RAINA) Judge JUDGE 20.12.2011 ‘sp’