1: L^' (D IN THE HIGH COURT OF JUDICATURE CHHATTISGARHAT BILASPUR WritPetitionNo ^>.^3°( of2005 In the matter ofArticle j^& Zj ofThe Constitution oflndia and In the matter ofArticle 41,46 & 48 ofThe Constitution oflndia and In the matter oflndira Gandhi Agricultural University Affiliation Recognition ofColleges and Institutions Regulations 2001 and In the matter oflndira Gandhi Krishi Vishwavidyalya Adhiniyam 1987 and In the matter of: - 3 Petitioner $.. Respondents ?'e8^..----" ^"""" ^zV-^ m ^ .r"^.T^'^. ,'mmD-COP^ ^v ^^ ^^r" ^ ,0 A. O. B^^ Nandgaon Shiksha Mandal A registered society through its President Shri A.B. Dubey S/o Late S.P. Dubey, aged about 79 years C/o Vidhi Mahavidyalya G.E. Road, Rajnandgaon (C.G.) Versus : (1) Indira Gandhi Krishi Vishwavidyalya, though Registrar Krishak Nagar, Raipur (C.G.) (2) Board ofManagement Through Secretary, Indira Gandhi Krishi Vishwavidyalya, Krishak Nagar^ Raipur (C.G.) <s \€L^)- <?©.o&<o_5 •" •-'•''ttcitorGener^offndia CHHAnjSGAftttWCH COURT I^" /' s G.,. (3) Academic Council Through Secretary^ Indira Gandhi Krishi Vishwavidyalaya^ Krishak Nagar, Raipur (C.G.) (4) The State of Chhattisgarh Tfarough Secretary department of Agriculture, D.R.S. Bhawan Mantralya Raipur (C.G.) (5) IndianCouncil ofAgricultural Research, Through Secretary ICrishi Bhawan, Dr. Rajendra Prasad Road, New Delhi. (6) Union oflndia through Secretary Department ofAgriculture Research & Education^ Krishi Bhawan Dr. Rajendra Prasad Road.,New. Delhi. Before : Hon9ble the CIsi.efJiistice aisd his compasiioii Jifidges of the Hon'ble High Court of Judicature Chhattisgarh at Bilaspiir Ift Petition under Article 226/227 of the Coiastitutiosi of Issdia for issiiagice of siiitaMe directioiis, orders or writs isidiflding wrsts. isa tlie a'atare of Masidasiius, Certiorari etc. 337 HIGH COURT OF JUDICATURE CHHATTISGARH: BtLASPUR (Djvisipn Bench) CORAM : Hon'Me Shri AJC Patnaik. CJ & Hon'bte Shri D.R. Deshmukh, J. WRIT PETITION N0.2839 OF 2005 Nandgaon Shiksha Mandal Versus tndira Gandhi Krishi Vishwavidyalaya and Othera Present: Mr. Neelabh Dubey, Advocateforthepetitioner. Mr. Prashant Mishra, Sr. Advocate with Mr. B.D. Guru. Advocate for respondents 1 to 3. Mr. Sumesh Bajaj, Dy. Govt. Advocate for respondent No.4/ State of ChhatBsgarh Mr. Bhishma Kinger, Advocate ferresponctents 5 and 6. ORDER (Passedon 20m ofSeptember, 2005) ' The following oral Order of the Court was passed by A.K. Patnaik, CJ: - The petitioner-society was granted permission by the Vice- Chancellor, Indira Gandhi Krishi Vishwavklyalaya, Raipur to offer Bachetor of Science in Agricutture Programme at Rajnandgaon to (he students admitted for the said purrose by notification dated 19.12.2002. During the academic year 2002-03 and 2003-04, the coltege opened by the pQtitJonep- society could not get started as the requiste number of stuctents dkl not come for admissfon. The petitioner has stated in the writ petitton ttiat Ihis was because another college namely Shri Ram College oT Agriculture at Rajnandgaon oflered the same course of Baclielor of Sctence in Agriculture. In view of the aforesaid dfflRculties faced by the petttioner- -A' 338- socsety, permission was sought from the Indira Gandhi Krishi Vishwavidyalaya by the petitiQner-society to open the college and offer the aforesaid course Sn Bachelor of Sdence in Agriculture at Tehsi! town of Chowki which was about 41 kjlometers from Rajnandgaon. By notificat'on dated 05.07.2004, the Y'ce-ChanceJlor of the i.ndira Gandhi Krishj Vishwavidyalaya granted the said permission to the petitioner to establish the College of Agriculture in Tehsii Chowki, district Rajnandgaon. Pursuant to the said permission, the petitioner-society hired a building on rent at Chowki, recruited staff and started admissions. By a subsequent order No.6661 sssued on 11.08.2004, the petitioner-SQdety was informed thatthe permission for shifling the college from Rajnandgaon to Chowki has been cancelled by the Board of Management, Indira Gandhi Krsshi Vishwavidyalaya. The petit'oner-society moved this court and by an order dated 31.08.2004, the Court directed that the petitioner wil! make a detailed representation to the 'ndira Gandhi Krishi Vishwavsdyalaya and the said Univers'ty will give an opportunity of hearing and thereafter pass a fina! order after taking into CQnsideration alS posnts including the future of the students who had been admitted in the college of the petit'oner-society. Pursuant to the said order dated 31.08.2CK)4 passed by this Court, the petitioner-SQciety submitted a representation to the University authorities. The aforssaid University issued an order dated 07.01.2005 granting afHliatson to the col!ege of the petitioner-society at Chowks in district Rajnandgaon and stated in the said order dated 07.01.2005 that the College of the Agriculture of the petitioner-society had been recognized for the academic session 2004-05 bythe Jndira Gandhi Krishi Vishwavidyalaya. SimultaneQusly, however, ths petitiQner-society received a notification dated 03.01.2005 issued by the Registrar of the Indira Gandhi Krishi Vishwavidyataya that the afRliated/recognized private coJteges of the 339 -5- Unwereity shall not enroll the students for the acactemic year 2005-06. A copy of the said notificatton dated 03.01.2005 has been annexed to the petition as Annexure P/9. Aggrieved by the said noBfication dated 03.01.2005 in Annexure P/9, the p^itiener-sociefy has fled this writ petition under Artfcle 226/227 of the Constitution of India praying interalia for quashing the said notificatjon dated 03.01.2005 in Annexure P/9. 2. On 06.07.2005 the Court issued nottees In the writ peUtton as weU as in M.W.P.No.2364/2005 for interim orders to the respondents. On 25.07.2005 Mr. Prashant Mfehra, teamed counset appearing for respondents 1,2 & 3 submittod that a meeting ofthe Board of Managemerrt is likely to review the decisions impugned in this writ petMjon in Annexure P/9 on 30.07.2005. Thereafter, however, a retyrn was filed on behalf of respondents 1, 2 & 3and alongwith sakl retum a copy of the notifieation dated 04.08^005 of the Indira (^indhi Krishi ^shwavidyafeiya. Raipur was annexed as R/9. In the said notifteation, the dedsion of the Board of Management in its 56th meetmg hekl on 30.07.2005 relating to inter alia admisstons in affiliated and recogrrized prh^te coltoges for the a^ideinic year 2005-06 were mentioned. A reading of the said notification dated 04.08.2005 would show that the Board of Management ofthe Indira Gandhi Krishi Vishwavidyalaya had categorized the colleges into Ihree C^egories. Under Categoiy-1, sb( coNeges which had been pennitted for admitthig the students in current academfc session 2005-06 were mentioned. Under Category-02, eight colleges which had been permitted conditionally for admitting the studertfs in current academic session 200&06 were mentioned and under Category-3, two colteges which had not been permitted for admitting the students in current acadeirric sesston 2005-06 were mentioned. In Category-3, the College of Agriculture established by 340 --4- the petitioner-society at Chowta' was included and ftence the dedsjon of the Board of Management of the Indira Gandhl Krishi Vishwavidyalaya tn tts said meefing on 30.07.2005 on Category-3 colleges are relevant for the purpose of disposal ofthe wcit petition and is quotod hereuncter: "The following Colleges have not been permitted for admittlng studente In current Academic Sesston i.e. 2005-06 as the same have been pteced under Category No.3 which means the faciliUes created by these colleges are less than that of Category-02 above. 1. Cottege of Agricutture, Raigarh. 2. Coltege of Agriculture, Chowky. Rajnandgaon CThe Board of Management observeci that Ihese two Colleges shoutd create the minimum facBities as per norms within a year spedally as towards tts own building. facutty (teachere), 50 acres of Hs own tand, fumishing the comptote laboratory facjlities ete. and also other sb'pulatod IsacUities requiring for grant of affiliatfon. The Board ^ Management did not agree to give them permissjon to admft students tn current academic sesslon as these coltoges have failed to create the minimum facMities required for maintaining standard of education and ateo for imparting quality educatjon so that the injustice is not done wWi the students. If these two Colleges meetthe minimum facillties required as sfipulated for affiliatjon, will be consfclered by Board of Management in nextyear after an inspeclion)." It witl be clear from the deciaon of the Board @f Management of the Indira Gandhi Krishi Vishwavidyalaya quoted above that the Board of Management decided not to permit the College of Agriculture at Chowki in district Rajnandgaon established by the petttiorwr-society to admit the students for the current academic session 2005-06 as it did not meet the minimum faciljties required fbr affiliation. •i5- 341 3. In the course of hearing of the writ petition on 05.09.2005, Mr. Prashant Msshra, Jearned counsei for respondsnts 1, 2 & 3 submitted before the Court that i'n case the petitioner makes a representation to the Registrar of the UnSyers'ty, the said representatjon WJK be considered by the University authorities and a decss'QR wi!! be taken ws'thin a short t'ms whether to allow the affiliation of the petitioner and the Court passed an order on 05.09.2005 that the petitioner wil! submit a representation to the Registrar of the Un'versity by 07.09.2005 and the competent authority of the University wjl! take a decjsion by 13.09.2005. Pursuant to the said order dated 05.09.2005, the petitioner made a representation and the Board of Managemsnt of th9 (ndira Gandhi Krishi Vishwavidya'aya considered the said representatlon and took a decision in ite 57 meeting heSd on 13.09.2005. The decssion ofthe Board of Management has been notified m the notiffcat'on dated 13.09.2005 annexed to the appljcation for taking documents on record fi!ed by respondent No.1, 2 & 3 I.A.No.8032/2005 reievant pQrtion of whsch is quoted herein below: "On perusal of the representatjon, the Board of Management obsen/ed that the petitioner prayed for fol!owing: 1. Granting AfRliation with iGKV. 2. Permsssion to enroll the students for academic year 2005-06. The Board of Mianagement made it c!ear that its earlier decjsion notified vide the notification No. M/BM- 55/2005/5539 dated 4.8.2005 is not affecting the status of existing affiliation of petitionsr with the IGKV. All the 17 private cotleges inc'uding the petitioner enjoy the afRIJation as on date but it is under review. The case of chowki college has been considered in comparison to other category-2 colleges to evaluate whether both the casss are at par or not. !t appears that the category 2 cot.'eges have better infrastructure facilities than the chowki college. As far as - 6- / Q J't^' enrolling students to current session, it is to be stated ttiat it has been stopped due to quality concems of educaUon to studenls keeping In view lack of physteal fadlities, quality of teaching, trained faculty and teaching/teaming atmosphere jn the coUege. The petitioner himself admHted about the poor fadlities availabl®in the college and also expressed difficulties to create infrastructure facilities vide his SI.No.12 of the representation which reads as under: "That creafion of infrastructure facilities in chowki is dffiRcult because it is a noUfied tribal area wher®non-tribal can not buy property. Level of devetopment in ttie region is njl". After going through the pros and cons of the instant matter, the Board of Management has resohwd that the petitioner (Nandgaon Shikshan Mandal, Rajnandgaon) retains its present status of afRNation with IGKV and the notifteation made by the uravereity is not affecting the affiliation by any way. The admission of studente during the session 2005-06 was however not agreed keeping in view the quality concems and future of the students. It fe ftarttier stated that the permission granted to 8 colteges rategorized as '2' is purely conditional subject to fuWillinent of requirement within a period of sb< months from the date of notffication." It will be clear from the aforesaid deciston of flie Board of Management of the Indira Gandhi Krishj Vishwavidyalaya that white the afflliation of the petftioner-society has been retained. admission of the studente during ttie session 2005-06 has not been permiaed by the Board of h/lanagemerrt in view of a statemerrt made by the petiUoner-soclefy in Ms representattoii that creatton of infrastructure facnities in Chowki is dWBcult because tt is a notified tribal area where non-tribat can not buy property and tfie tevel of development in the regfon is nil. 343 -7- 4. On 16.09.2005 when this case was taken up for hearfng again, we wanted to know from leamed counsel for the parties as to whether ttiere were some restrictions on transfer of properties in Chowki Tehsil under ttie law, on account of which the petffioner has made a statement In the representation that a non-tribal cannot buy property in a notified trlbal area. Mr. Prashant Mishra, learned counset appearir^ for respondents 1, 2 & 3 has brought to our notice the provisions of sub-secUon ^3) of Section 165 of the M.P. Land Revenue Code, 1959 as wetl as the Notification Issued thereunder by the State Govemment No.F-5-3-76—384-^l-N-1.datsd 21.2.1977 ffor short "Notification"). 5. Sub-secBon (6) of Section 165 of the M.P. Land Revenue Gode, 1959 is quoted hereunder: "(6) Notwwthstanding anything contained in sub- section (1) the right of Bhumlswami betonging to a tribe which has been dedared to be an aboriginal tribe t^ the State Government by a notificafion in that behsdf, for the whole or part ofthe area to whteh this Code appBes shall— 0) in such areas as are predominately inhabited by aboriginal tribes and from such date as the State Government may, by notifcation, spwity, not be transferred nor it shall be transferable either by way of sale or otherwise or as a consequence of transacfion of loan to a person not belonging to such tribe in the area specffied in the notjfication; (ii) in areas other than those specjfied in flie notification under clause (i), not to be transferred or be transferable either by way of sale or otherwise or as a consequence of fransaction of toaun to a person not belonging to such tribe without the permjsslon of a Revenue OfRcer not below the rank of CoBector, gh^en for reasons to be recorded in writing." 344 -^- V- It wi!S be ctear from a plain reading of sub-section (6) (i) of Section 165 of the M.P. Land Revenue Code, 1959 which js applicabte to the State of Chhattisgarh that in such areas as are predominately 'nhabited by abQriginal tribes and from such dates as the State Qovernment may, by notification, specify the right of Bhumiswami belongsng to a tribe which has been declared to be an aborigsnal tribe by the State Government by a notjfication, cannot be transferred and is not transferab!e either by way of sa!e or otherwise or as a consequence of transaction of loan to a person not belQnging to such tribe jn the area specified in the notification. A reading of the notillcation, however, shows that the State Government has declared only Rajnandgaon Tehsil in district Rajnandgaon as the area predominately inhabited by abQriginal tribes and as specified sn the notification dated 26th January as the date from Which the right of a Bhumiswams belongjng to a tribe deciared to be aborigjna! tribe by the State Government, cannot be transferred and was not transferable esther by way of sa!e or otherwsse to a person not be'ongsng to such tribe in the area specjfied in the notillcation. Since Tehsil Chowkj has not been declared as an area under sub-section (6)(i) of -Section 165 ofthe M.P. Land Revenue Code, 1959, the right of a Bhumiswami belonging to a tnbe deciared as an abonginaJ tribe in Tehsi! Chowkj, appears to us to be transferable by way of sa!e or otherwise to a person belonging to such an aboriginal tribe in the area. 6. Sub-sectiQn (6) (ii) of Section 165 of the M.P. Land Revenue Code, 1959, however, provides that in areas other than those specifssd in the notification under sub-sect'on (6) (i) of Section 165, the right of a Bhumiswami beJongi'ng to a tribe declared to be an aboriginal tribe by the Steste Goyernment cannot be transferred or transferable either by way of -^- 3-^ sa!e or othsrwjse to a person not belonging to such a tribe "without the permission of a Rsvenue Officer not be!ow the rank of the Co'lector given for reasons to bs recorded in writing". Thus jn Tehsil Chowk! wh'ch is an area other than those specified !R the notificatiQR, the transfer of a n'ght of a Bhumiswami belonging to an aboriginal tribe to a person not be!onging to such a tribe is not absolute!y prohsbjtsd but such transfer by way of saie or otherwise can be made onjy wjth the permi'ssion of the Revenue Officer not below the rank of the Collector given for the reasons to bs recorded in writing. The petstioner-society,, therefore, can acquire the rights of Bhumiswami beJonging to a tribe jn Ch.owki Tehsil with the permission of a Revenue Officer not bslow the rank of the C-Ql!ector given for reasons to be recorded in writing for ths purpose of establsshing the required infrastructure facijities for the co!!ege. Such acquisitiQR, however, wi!! require more t'me than a norma! acquisition of land because permission of a Revenue Officer not below the rank of the Colisctor has to be applied for and has to be considered in terms of sub-sectjon (6) (iJ) of Section 1S5 of the M.P. Land Revenue Code, 1959. !t is quite IJke'y that such acquisition may not be possi'ble wjthin six months but may be posssble w'thin a year from today. it is clear from the decision of the Board of Management of the !ndira Qandhi Krlshi Vishwa'v'jdyalaya taken in sts 56th meeting held on 30.07.2005 and the dedsion taken in its 57 meeting held on 13.09.2005 that the permission has been granted to eight colleges categorized under Categop/-2 conditlonaily subject to fulfillment of the requirements within a period of si'x months from the date of the notjfication. Considering the fact that a period of one year may be required for the petitioner-SQciefy to acqusre the iand for the purpose of creation of infrastructurs facilsties in Tehsi! C-howki wjth the permission of the competent authonty in terms of sub-section (6) (n) of Section 165 of the M.P. Land Revenue Code, 1959, we are of the view that //1 -\Q- simi!ar conditiona! permission tf not granted to the petjtioner-socjety to admjt ths students during the session 2005-06 subject to fu!filJment of the requirements of infrastructure facilities for the purpose of affiliation within a period of one year from the date of such permissjon would affect the right to equality guarantesd to the petitioner under Article 14 ofthe Constitutjon. 7. in the result, we dsspose of thjs writ petit'on with a direction that the Board of Management wjlt grant conditional permission to the petitioner- ^6^ JL- soc'ety in the same manner as it „ granted to eight colleges categorized under Catsgoty-2 for admitting the studente during the session 2005-06 subject to fuffillment of the requirements withjn a period of one year from the date of such permission. Considering the fact that the petitioner-society was prevented a!l this while from admitting the students for the academic session 2005-06 and the norma! period for such admission wi!l be over by 30.09.2^35, the Unsversity authorities will grant reasonabte tsme beyond 30.09.2005 to the petitioner for admitting the students for the academic session 2005-06. Sd/- Chief Justice Sd/- Dilip Raosaheb Deshmukh Judge Subbu