IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 18172 of 2003 For Approval and Signature: HON'BLE MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- KANUBHAI CHUNIBHAI PATEL Versus ANANDIBEN PATEL -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 18172 of 2003 PARTY-IN-PERSON for Petitioner No. 1 MR. KAMAL TRIVEDI, ADDL. A.G. WITH MS. MITA PANCHAL, AGP, for Respondent No. 1-3 RULE SERVED BY DS for Respondent No. 1,4 MS NEHA I JANI for Respondent No. 5 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE K.M.MEHTA Date of decision: 25 / 6 /2004 C.A.V. JUDGEMENT Shri Kanubhai Chunibhai Patel, in his capacity as a President of Gitanajli Trust, Talod, Dist. Sabarkantha, the petitioner has filed the present petition under Article 226/227 of the Constitution of India with the prayers for directing the respondent no. 2 Secretary, Education Department and the respondent no. 3 - Gujarat State and Director, Director, Technical Education, to issue No Objection Certificate (NOC) for starting a new Pharmacy College at Talod, District Sabarkantha, from the academic year beginning from June, 2004. The petitioner has further prayed for directing the respondents no.1 to 3 (i.e. the Hon'ble Minister of Education, Secretary to the Education Department and Director of Technical Education) to produce the entire record of the proceedings in this behalf right from the office of the Directorate of Technical Education to the office of the Hon'ble Education Minister and to examine the same in public interest and to call for the names and addresses of the institutions which have been granted No Objection Certificate (hereinafter referred to as "NOC" for short) for starting new Pharmacy College and to join them as parties to the proceeding and in the meantime to put in abeyance NOC already granted. The petitioner prayed for directing the Member-Secretary, All India Council for Technical Education (hereinafter referred to as AICTE), New Delhi, respondent no. 4 not to reject the application demanding permission to start the Pharmacy College from June 2004 only on the ground of there being a delay in grant of NOC till this Hon'ble Court decides the matter finally. 2. The relevant facts of the petitioner's case are as under : 2.1 Talod Kelavani Mandal was established in the year 1943 i.e. prior to independence, is imparting Education of Science from Primary to Secondary Level by obtaining grant of the Government. Students of various classes of Talod Taluka and Prantij Taluka in large numbers are availing benefits of this facility. But the educated class of this area had time and again made representation to the leaders of Talod Kelavani Mandal for establishing an independent institution which would not be under the restrictions/controls of the Government in the cities of Gujarat. They desired that specific type of education as per the present method can be imparted. In connection thereof, the Talod Kelavani Mandal had passed a resolution and had taken the decision to call for a seminar/meeting of the leaders of the voluntary institution and the education class. On the basis of this decision of the Talod Kelavani Mandal, the doctors, advocates, engineers, professors and teachers linked with the profession of education and business of associations involved in various business, lions club, junior chambers and representatives of other voluntary institutions of the city was assembled. After convening in the said seminar, by taking a decision with an object to see that there is no interference or restriction of the Government in the method of education, self financed institutions will be formed. This also decided that through them technical institutions will be established so that training can be availed, right from K.G. to Primary, Secondary, Higher Education by the trainees and such activities can be done which would be useful to the society. In view of the aforesaid resolution, Gitanajali Trust was established on 10-6-1993. The said trust was registered as charitable trust. By the said trust, education for K.G. being commenced in the year 1993. This trust has progressed today in this arena and is imparting education by self financed method right from K.G. to Primary, Secondary (S.S.C.) Standard 10. As per the decision taken earlier, on the demand being made by the trust for sanction to run B.Ed. and P.T.C. college on independent basis, since two years. The trust is running Gitanjali College of Education (B.Ed.) and Gitanajali Primary Teachers Training (P.T.C.) college. Late Chunibhai Desaibhai Patel, the founder of the Talod Kelavani Mandal had established Arts, Commerce and Science college. These very leaders at the relevant time had taken interest in the progress of this educational institution and had developed it and today, under the management of late Chunibhai Desaibhai Patel Mahavidyalaya Mandal Science, Arts and Commerce College are getting grant of the Government and they are being run. 2.2 The petitioner submitted that entrance to Sabarkantha District is Talod. Talod being the head quarter for business, its reputation in the business and education areas in the State of Gujarat and other States are having a leading position. Talod being a head quarter, there are Government offices of various areas. In the field of industries, Talod is holding the industries of aluminium and raw material for the groundnut and cotton seed oil. 2.3 It is the case of the petitioner that in the College of Education - B.Ed. College since last two years 100 students are studying and in P.T. C. college number of students are taking education in other colleges. In view of the aforesaid circumstances, the petitioner trust decided to open Pharmacy college at Talod and sent an application to the State of Gujarat for establishment of technical institution. 2.4 In view of the aforesaid professional and educational experience of the Trust, it was decided to start a Pharmacy College offering Decree Course from June, 2004 and on the basis thereof requisite application in the prescribed format along with prescribed fees of Rs.5000/- came to be sent to AICTE on 13-10-2003. 2.5 It is also the case of the petitioner that as per the requirement, copy of the aforesaid application was also endorsed to Department of Technical Education of the State of Gujarat at Gandhinagar seeking NOC as contemplated in Stage-III of Approval Process prescribed by AICTE in the notification advertised by AICTE on 11-9-2003. It may be noted that along with the said applications the petitioner enclosed all relevant annexures - 1 to 8 in support of their contention that they are able to start Pharmacy College at Talod for 2004-2005. 2.6 It may be noted that AICTE addressed a letter dated 30-10-2003 with a request to submit the documents no. 1 to 8 mentioned in the said letter in support of their application. The petitioner by his detailed letter dated 14-11-2003 addressed to the AICTE enclosing necessary documents as required by AICTE. 2.7 As per the requirement, copy of the aforesaid application was also endorsed to the Department of Technical Education of the State of Gujarat at Gandhinagar seeking NOC as contemplated in Stage-III of Approval Process prescribed by AICTE in the notification advertised on 11-9-2003. 2.8 It is further case of the petitioner that there were in all 19 (nineteen) applications including that of the petitioner's trust, which were received by the aforesaid Department seeking NOC for starting Pharmacy Colleges at various places in the State of Gujarat. 2.9 It is the case of the petitioner that along with other officers of the trust went to to the place and remained present before the Expert Committee on 28-11-2003 at about 12-00 O'clock. They were informed that hearing will commence at 2-00 O'clock. According to the petitioner, the Expert Committee stated about new requirements including the requirements and much more fund i.e. Rs.20.00 lacs as FDR etc. and building and other equipment worth Rs.40.00 lacs. It was stated that if such requirement is fulfilled then and then the Pharmacy College can be started. It is also the case of the petitioner that the representatives of two or three institutions were heard. Thereafter, the Committee members including Shri Padhiyar and Shri Upadhyay and other officers left the Committee at about 3-00 O'clock The said officers asked the petitioner and other representatives to hand over their file to the concerned officer and the Committee will consider their applications and they will also consider their files and will pass appropriate orders accordingly. It is the case of the petitioner that there was no personal hearing or any participation in the hearing before Expert Committee. It is also the case of the petitioner that thereafter the petitioner received communicated dated 14-12-2003 wherein it is stated that the State Government has informed the petitioner that the case of the petitioner has not been recommended for grant of NOC for starting Pharmacy College at Talod. The reasons mentioned in the said letter are as follows : "(a) The institution does not have experience of running professional education programme. (b) Pharmacy Colleges are already existing nearby prominent areas viz. Himatnagar and Gandhinagar. (c) Proposed institution is located at a remote place. 2.10 Being aggrieved with the said order, the petitioner has filed the present petition on various grounds. The party in person has remained present before this Court and made following submissions. 2.11 Before the party in person made submissions on the facts, he has invited my attention to the provisions of an AICTE Booklet from Legal Cell All India Council for Technical Education, New Delhi, dated 19.8.2002 and also regarding procedure followed by AICTE in connection with opening of the Pharmacy College. 2.12 An AICTE got published an advertisement / notification dated 10-9-2003/11.9.2003 in the leading newspapers laying down norms for consideration of application for establishment of new technical institutions in respect of undergraduate decree programmes for Pharmacy, Engineering, Architecture, MBA and MCA, as per the national calender for the academic year 2004-05. The said advertisement also provided for various stages for the applicant institutions right from the beginning of Stage-I i.e. from submission of application duly filled in, including Stage-III inter-alia relating to issuance of No Objection Certificate (NOC) from the concerned State Government till the last Stage-X i.e. "issuance of letter of approval/rejection based on appeal", including stage-III; 2.13 It may be noted that the said advertisement provided further stages, Stage-IV for issuance of letter of intent, Stage-V - submission of appeal and its consideration by the Appellate Committee, Stage-VI issue of LOI based on appeal, Stage-VII - Expert Committee Visit, Stage-VIII issuance of letter of approval/rejection, Stage-IX consideration of appeal by the Appellate Committee. 2.14 AICTE had also fixed a calender for processing of applications for the establishment of new technical institutions for the year 2004-5 wherein last date for submission of application was 15-10-2003 and the last date for issue of NOC from the State Government was 15-12-2003. 2.15 Stage-III programme involved in the processing of applications consists of compliance of four requirements viz. (i) NOC from the concerned State Government to be received within the cut-off date i.e. by 15-12-203 by AICTE; (ii) placing of project proposal of applicant institutions during the period from 25-12-2003 to 5-1-2004 before a duly constituted Hearing Committee of AICTE and (iii) further consideration of the aforesaid project proposal of the applicant institutions by the respective Regional Committees of AICTE. 2.16 Clause (8) of the said AICTE Booklet of the Legal Cell provides for scrutiny of applications which reads thus: "On receipt of a copy of the application submitted to the Council for obtaining a Letter of Viability, the concerned University or the Directorate of Technical Education having jurisdiction in the area in which the new Technical Institution is to be started, shall make arrangements for scrutiny and verification of the information contained therein." 2.17 Clause 8.4(a) provides for requirement of land. Clause 8.4(b) provides for funds. Clause 8.4(c) provides for provisions as per "norms and standards". Clause (12) provides power to relax. He has also relied on Regulation for Admission and Fee Structure, Admission Regulations 1992, Admission and Fee Structure 1994 and also AICTE Guidelines for constitution of Governing Bodies of Self Financing Institutions. PARTY IN PERSON HAS ASSAILED THE AFORESAID ORDER ON THE FOLLOWING GROUNDS: RULE OF NATURAL JUSTICE: 3.1 It is the case of the petitioner that before deciding the application of the petitioner, the Expert Committee was going to hear the petitioner in connection with grant of NOC. It is the case of the petitioner that the Technical Committee has not heard and considered the application made by the petitioner in which the petitioner has referred the letter dated 30th October, 2003, wherein seven requirements were mentioned for which the petitioner has duly replied. This part of the reply of the petitioner has not been considered by the said Committee and the said Committee has not heard the petitioner. Refusal of NOC by the Expert Committee without hearing the petitioner , the principles of natural justice has been violated. 3.2 In support of the same, the petitioner relied upon the following authorities: Decision of the Hon'ble Supreme Court in the case of Mohd. Rashid Ahmad etc.V. The State of U.P. and another, reported in AIR 1979 SC 592, wherein it has been held as under : "Minister for Local Self Government before passing the impugned order of termination dated July 11, 1967 did not give to the appellant an opportunity of hearing. The order of termination of his services passed by the State Government, therefore, suffered from a serious legal infirmity." 3.3 Decision of this Court in the case of Gordhanbhai Ambalal Patel Vs. State of Gujarat, reported in 1991 (2) G.L.H. 144, wherein this Court has held as under : "Where there is no express provision for complying with the principles of natural justice that they are required to be followed, but even in cases where there is exclusion of such principles by legislative process, the approach of the Court would be to consume the legislative provisions by importing the principles of natural justice rather than excluding those principles in which case such a provision may be held to be arbitrary and unconstitutional being violative of Article 14 of the Constitution." ON MERITS OF THE MATTER: 3.4 It is the case of the petitioner that they have experience of running professional educational programme. It is also stated by the petitioner that they have experience of having Science and Arts colleges as well as P.T. College and number of students are studying in the said institution and therefore the contention of the respondents that the petitioner is having professional education experience is not borne out from the record of the case. What required is that the petitioner is a very good trust and it has experience of running Science, Arts and P.T. C. Colleges. The administration of the petitioner's trust is very neat and clean and scrutinised by the Charity Commissioner. The petitioner's trust pays salary to the staff by cheques. Thus, the petitioner has very ample experience of running educational institution and therefore the petitioner's trust can run Pharmacy College at Talod. It is also the case of the petitioner that originally in June, 2003, the trust was not given permission for starting P.T. College. Therefore, the petitioner trust filed Special Civil Application No. 40 of 2003 before this Court and in view of the judgment and order of the High Court the petitioner's trust was granted permission to start P.T.C. College. This fact shows that the petitioner's trust has valuable experience for running educational institutions. 3.5 Second contention raised is that even though Pharmacy College is given in Talod, there would not be any problem since Himatnagar and Gandhinagar are 40 kms. and 50 kms. respectively away from Talod and that there would not be any loss to the Government if any Pharmacy College is allowed to be started at Talod. It is submitted that large number of students are desirous of getting admission in Pharmacy College. At present there is no Pharmacy College at Talod. Therefore the same will be necessary. In all 15 (fifteen) Pharmacy Colleges are there where 825 seats are available and last boy who gets admission is having 77.3 percentage of marks and in that case 1650 (one thousand six hundred fifty) students have to go out of State for getting admission in Pharmacy College. The petitioner has also demonstrated that there are 33000 (thirty three thousand) students in Science stream who get more than 50% of marks and they are entitled to get admission in Pharmacy college and there are 23972 students and out of those students have to get admission in medical, dental and physiotherapy. Thus, 18000 students who are entitled to get admission in Pharmacy college are not getting admission. In view of the above, the contention of the Government that there would be unhealthy competition is not right. 3.6 The petitioner has filed rejoinder affidavit wherein it is stated that the request for No Objection Certificate has been rejected and for that identical reasons have been given. There is non-application of mind by the authority concerned. It is the case of the petitioner that one of the reasons for rejecting the case of the petitioner is that Pharmacy Colleges are situated at Himatnagar and Gandhinagar. 3.7 It is the case of the petitioners that 14 applications were granted for opening pharmacy college. The petitioner submitted that in the case of A.R. College of Pharmacy, Vallabh Vidyanagar and Anand Pharmacy College, Anand though these Pharmacy Colleges were existing at Anand, two applications for opening Pharmacy Colleges have been granted. It is the case of the petitioner, as regards Faculty of Techno & Engineering, Vadodara and Prashant and Mital Kansara Pharmacy College, Pipaliya, three applications for opening Pharmacy Colleges at Limda, Bakrol and Ajwa of Baroda District were granted though there were existing two colleges at Baroda. Similarly, G.M. Bikhalia College of Pharmacy, Vapi and Maliba Pharmacy College, Tarsali of Surat, two applications for opening Pharmacy Colleges, Vidhyabharti Trust College of Pharmacy, Umark and C.F. Pitawala Institute of Pharmaceutical Science and Research, were granted. Similarly, in the case of S.K. Patel Pharmacy College, Mehsana and Shree Sarvajanik Pharmacy College, Mehsana, two pharmacy colleges situated at Mehsana, application for opening Tirupati Pharmacy College, Kansa has been granted. The party in person, therefore, submitted that the reasons given by the Government that they cannot give permission to open Pharmacy College at Talod, Sabarkantha because there are already existing Pharmacy Colleges at Himatnagar and Mehsana are fully unjustified and unwarranted. 3.8 Third reason given is that the Talod is situated at remote place. It is the case of the petitioner that this reason is not correct. It is also the case of the petitioner that Gujarat State Highway passes through Talod and the same is very well connected by railway and S.T. buses. Talod is the headquarter of Sabarkantha District and GIDC estate, Research Centre of Sardar Patel Agricultural University as well as Arts, Science and Commerce Colleges are located in Talod. This apart, Babasaheb Ambedkar Education Centre is also situated in Talod and the facility of latest hostel accommodating good number of student is also there in Talod. Therefore, it is stated that the reason given by the Government that Talod is situated at remote place is also not fairly right. 3.9 It is further stated that Agriculture Produce Market Committee situated in Talod and from Kheda and Ahmedabad Districts huge quantity of agriculture produce namely "Valiyari", "Jiru", "Makai" etc. are coming in the said AP Committee. In view of this, Talod is a prominent marketing place in Gujarat and therefore it is not correct on the part of the Government to say that Talod is in remote area. 3.10 It is the case of the petitioner that the petitioner's trust has been refused NOC only because of predetermined decision in that behalf by the Hon'ble Education Minister to petitioner's trust and therefore there is mala-fide intention on the part of the Hon'ble Education Minister in trying to see that NOC is not recommended to the petitioner's trust without any valid reason. 3.11 In support of the aforesaid contentions, the petitioner has relied upon the following decisions : 3.12(i). Decision of the Hon'ble Supreme Court in the case of The State of Mysore V. K. Manche Gowda, reported in AIR 1964 SC 506, wherein it has been held as under : "Government servant shall be given a reasonable opportunity to know that fact and meet the same." 3.12(ii). Decision of the Hon'ble Supreme Court in the case of Mohd. Rashid Ahmad etc.V. The State of U.P. and another, reported in AIR 1979 SC 592, wherein it has been held as under : "Minister for Local Self Government before passing the impugned order of termination dated July 11, 1967 did not give to the appellant an opportunity of hearing. The order of termination of his services passed by the State Government, therefore, suffered from a serious legal infirmity." 3.12(iii). The decision of the Hon'ble Supreme Court in the case of N.K. Singh Vs. Union of India and others, reported in 1994 (6) SCC 98, wherein it is observed as under : "Allegations of mala fides having been made by the appellant on affidavit, it is difficult to fathom how the Tribunal rejected them without even requiring a counter-affidavit to rebut them. The Tribunal's perception that the allegations made on affidavit by the appellant even without any rebuttal do not constitute the plea of mala fide, is obviously incorrect." 3.12(iv). Decision of this Court in the case of Gordhanbhai Ambalal Patel Vs. State of Gujarat, reported in 1991 (2) G.L.H. 144, wherein this Court has held as under : "Where there is no express provision for complying with the principles of natural justice that they are required to be followed, but even in cases where there is exclusion of such principles by legislative process, the approach of the Court would be to consume the legislative provisions by importing the principles of natural justice rather than excluding those principles in which case such a provision may be held to be arbitrary and unconstitutional being violative of Article 14 of the Constitution." CONTENTION ON BEHALF OF THE STATE GOVERNMENT: 4. On behalf of the respondent State Government, learned Additional Advocate General Shri Kamal B.Trivedi has appeared. He has relied on the affidavit filed by Shri G.B. Modha, Deputy Director, Technical Education Department, Gandhinagar on 27-1-2004 wherein several contentions have been raised by him. 4.1 Learned Additional Advocate General has relied upon the Regulations of All India Council For Technical Education, more particularly regulations for approval process, regulations for admission and fee structure and AICTE guidelines for constitution of governing bodies of self financial institutions. The petitioner has also relied on the same regulations. He has explained the salient features of All India Council for Technical Education and related matters in this behalf. 4.2 The various stages which provides detail procedure are as under: i. Submission of application. ii. Submission of documents at original office. iii. Presentation of project proposal before Hearing Committee, which relates to issuance of No Objection Certificate. iv. Issuance of letter of approval/rejection based on appeal. 4.3 It is pertinent to note that no place in the aforesaid advertisement/notification there is any provision requiring the State Government concerned to constitute any Committee i.e. Scrutinising Committee or Expert Committee or to grant an opportunity of oral hearing to any of the applicant institutions. 4.4 For ready reference, the second requirement relating to NOC from the concerned State Government as contained in Stage-III programme is set out hereunder: :Stage-III NOC FROM THE CONCERNED STATE GOVT/UT ADMINISTRATION (INTERIM