WP(C) 10104 of 2009 Page 1 of 25 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Writ Petition (Civil) No.10104/2009 % Date of Decision: 21.08.2009 Vibrant Institute of Technology …. Petitioner Through Mr.Brijinder Singh Chahar, Sr. Advocate with Mr.Alok Sangwan, Advocate Versus All India Council for Technical Education & Others …. Respondents Through Mr.Jatan Singh, Advocate CORAM: HON’BLE MR. JUSTICE ANIL KUMAR 1. Whether reporters of Local papers may be allowed to see the judgment? YES 2. To be referred to the reporter or not? YES 3. Whether the judgment should be reported in the Digest? YES ANIL KUMAR, J. * 1 The petitioner has challenged the action of the respondent rejecting the case of petitioner for grant of letter of intent on the ground that the settlement deed for creating of trust and the property settled with the Trust cannot be considered, as the said mode of Transfer of Property is not contemplated as per handbook of approval process under which the property can be transferred to the Trust only by sale deed, gift deed and lease deed for thirty years. WP(C) 10104 of 2009 Page 2 of 25 2. Brief facts to comprehend the controversies raised by the parties are that the petitioner is a public charitable Trust registered under the Indian Trust Act and is the owner of land measuring 15.25 acres at Kalikkamapatti Village, next to National Highway 7, Athoor Taluk, District Dindigul, Tamil Nadu. The petitioner filed a proposal for establishment of a new engineering and technology institution in the name of Vibrant Institute of Technology to the respondents. 3. The land on which the proposed technical institution is to be started was purchased by above trustee Thiru T. Dakshinamoorthy by way of a registered sale deed from Crown Tanning Company dated 20th November, 2006. 4. Thiru T. Dakshinamoorthy created a public Trust, namely, “Shri Vijay Ganesh Public Charitable Trust” on 19th March, 2008 and also settled his land/immovable properties with the said Trust on 19th March, 2008. According to petitioner, the property settled with the Trust stood transferred irrevocably on settlement of the Trust and as per Section 5 & 6 of the Trust Act, the transfer of property is irrevocable and the properties vest in the public charitable Trust. According to the WP(C) 10104 of 2009 Page 3 of 25 petitioner, the objective of the Trust is for welfare of general public and in furtherance of its objection, the said Trust had decided to set up a new technical institution in the name of Vibrant Institute of Technology. 5. The petitioner contended that Revenue Authorities acknowledged the ownership of the Trust over the land which was settled with the Trust on 19th March, 2008 and issued no Encumbrance certificate. The Mutation entries were also affected in favour of the petitioner Trust by the Revenue Authorities and they also issued other relevant certificates. In the circumstances, it is contended that Shri Vijay Ganesh Public Charitable Trust is the legal and rightful owner of the said land and the said land has a clear title. The petitioner also applied for the change of land use to the Tehsildar of the area, who issued a certificate allowing the change of the land use for educational purpose by order dated 27th March, 2008. 6. That after the petitioner applied for the proposal for establishment of a new engineering and technology institution, appearance was put before the Hearing Committee of the respondent on 4th February, 2009. During the hearing, it is contended that the WP(C) 10104 of 2009 Page 4 of 25 respondents demanded registered sale deed in favour of the applicant/petitioner Trust. 7. The petitioner has contended that it was clarified that the land belonging to the founder Trustee was settled by him with the Trust at the time of its creation and, therefore, no sale deed is required and there is no defect in the title of the property which vests with the Trust. The petitioner has asserted that the respondents did not accede to the plea raised by the petitioner and rather referred the matter for opinion and consideration by its Legal Cell. Thereafter a deficiency letter dated 23rd March, 2009 was issued. The deficiency letter dated 23rd March, 2009 stipulated that as per the approval process, the ownership of the land documents should be in the name of the Society/Trust through a registered sale deed or an irrevocable registered gift deed or a government lease for a minimum period of 30 years from the concerned authority of the government and as the ownership of the land documents has not been submitted, therefore, the request is rejected and since the proposal is for the block period 2009-2010, the respondents reconsideration can be made at any time within the block period on submission of appropriate document. WP(C) 10104 of 2009 Page 5 of 25 8. Pursuant to the letter dated 23rd March, 2009 rejecting the request of the petitioner on the ground that the Trust has not produced the sale deed/gift deed or a registered lease deed for 30 years, the petitioner sent a communication dated 21st April, 2009 stipulating inter alia that the Managing Trustee has not mortgaged and shall not mortgage the land to any agency. It was also contended that the Trust, “Shri Vijay Ganesh Public Charitable Trust” was settled by a trust document on 19th March, 2008 and since the land belong to the founder Trustee, the land was settled with the Trust by the registered deed No.717 of 2008 which was also duly registered. The petitioner also submitted a legal opinion. The opinion submitted by the petitioner from District Registrar and Collector under Section 31 of the Stamp Act contended that deed of declaration of Trust is capable of effecting a transfer of immovable property described in the schedule of the deed in favour of Trust, therefore, the property has become the absolute property of the said Trust. It was also stated that according to the Article 64(A) of the Indian Stamp Act, the maximum stamp duty chargeable for this type of transfer is fixed at Rs.180/-, however, the document is on a stamp of Rs.250/-. In the circumstances, it was held that the document is duly stamped. WP(C) 10104 of 2009 Page 6 of 25 9. Despite the representation and the legal opinion given by the petitioner, the representation dated 21st April, 2009 pursuant to order dated 23rd March, 2009 was rejected by the respondents by order dated 15th June, 2009 contending inter alia that there is a legal defect in the ownership of the land as the Trust/Society has not paid the stamp duty payable for conveyance of title of ownership of land. It was contended that as per the provision of Clause 2.6.6 (C) of AICTE Regulation, 2006, the proposal cannot be accepted and the petitioner can apply afresh in the prescribed format for establishment of a technical institution for the next academic year. 10. The petitioner, therefore, filed a statutory appeal before All India Council for Technical Education on 24th June, 2009. The petitioner challenged the alleged condition of transfer of property in favor of the Trust only by way of sale deed as per the Handbook of Approval Process. The last date for issuing of letter of intent was 30th June, 2009 and, therefore, the petitioner also filed a Writ Petition (Civil) No.9711 of 2009. The plea of the petitioner that his appeal be decided within 10 days was accepted by the respondents relying on the decision in Civil Writ Petition No.9568 of 2009 filed by Silver Oak Society. The petitioner had contended that though the appeal filed by Silver Oak Society was allowed, the petitioner’s appeal has been rejected by letter dated 3rd WP(C) 10104 of 2009 Page 7 of 25 July, 2009. The respondent again held that to prove the ownership of the land by the Trust, the petitioner is liable to produce ownership document in the form of registered sale deed, irrevocable gift deed or a government lease for a minimum period of 30 years and no other documents. The settling of the land by the founder trustee in favor of the Trust was also not accepted on the ground that the stamp duty is payable on the value of the property as on conveyance. The petitioner has contended that he was not given any hearing on the appeal and the appeal has been dismissed mechanically. 11. That aggrieved by the decision of the respondent not to issue letter of intent on the ground that in order to establish ownership of the land as per the provisions of handbook of approval process and the same cannot be established by a duly registered Trust deed settling the property with the Trust, the petitioner has filed the present petition. 12. The petitioner has contended that the respondents have not considered the tenor of Section 5 of the Indian Trust Act, which is as under:- “5. Trust of immovable property – No trust in relation to immovable property is valid unless declared by a non-testamentary instrument in writing signed by the WP(C) 10104 of 2009 Page 8 of 25 author of the Trust or the Trustee and Registered, or by the will of the author of the Trust or of the Trustee. Trust of moveable property – No trust in relation to moveable property is valid unless declared as aforesaid, or unless the ownership of the property is transferred to the Trustee. These rules do not apply where they would operate so as to effectuate a fraud.” 13. According to the petitioner, the Trust deed had been executed under Section 5 of the Trust Act which was duly registered before the Office of the District Registrar, Dindigul, and, therefore, the property of the settler of the Trust vest with Shri Vijay Ganesh Public Charitable Trust. The petitioner had paid a sum of Rs.12,160/- as conveyance charges for creation of Trust to the District Registrar, Dindigul, and opinion of the concerned authority has also been produced to show that the stamp duty had been paid under Section 31 of the Indian Stamp Act. 14. The petitioner has impugned the action of the respondents on the ground that the petitioner has been discriminated inasmuch as letter of intent has been issued to similarly situated trust and the societies. According to the respondents, the petitioner is adopting pick-and- choose method. The petitioner contended that in case of Silver Oak WP(C) 10104 of 2009 Page 9 of 25 Society, the Writ Petition (Civil) No.9568 of 2009 was allowed directing the respondents to consider the appeal of the said society and pursuant thereto appeal was accepted and letter of intent was granted to that society on 29th June, 2009. According to the petitioner, the alleged legal advice could not be acted upon because it is the function of the respondents as statutory body to take an independent decision. It is, however, contended that the alleged legal advice is contrary to law and reflective of mechanical appreciation of the modes of conveyance of rights in the property to Trust/society. The petitioner has also contended that the orders dated 23rd March, 2009; 15th June, 2009 and 3rd July, 2009, smacks of non-application of mind by statutory authority acting mechanically on the advice/legal opinion rendered by the Legal Adviser of All India Council for Technical Education who have also rendered opinion contrary to established law in the facts and circumstances. 15. The action of the respondents is also challenged on the ground that the alleged condition of not accepting a Trust deed duly executed where the settler settles the immovable property with the Trust and insist on a sale deed is contrary to law and in any case such a condition has not been published in any Gazette and is not statutory in nature. It is asserted that the procedure evolved by the respondents is not in WP(C) 10104 of 2009 Page 10 of 25 consonance with the Regulations nor it is in consonance with Section 10(k) of All India Council for Technical Education Act, 1987 which do not contemplate any such condition. 16. The petition is opposed by the respondent contending inter-alia that the power of judicial review under Article 226 of the Constitution of India are limited and the petitioner is not entitled to seek interference in the decision making of the regulatory body which has acted in accordance with AICTE Act and the regulations framed thereunder. It is contended that there is no fault in the decision not permitting/accepting the deed of trust settling the property with the trust as a document transferring rights in the property to the trust. It is also contended that the petitioner had not described the document of title correctly in the application, a copy of which is annexed as Annexure P8, as it has been defined as a registered sale deed dated 19th March, 2008 whereas no sale deed was executed. It is pleaded that the petitioner is relying on a Deed of Declaration of Trust dated 19th March, 2008 executed by the founder of the trust who was the owner of aforesaid piece of land and the said document is not recognized as a valid land document as per the handbook for approval process in which norms and standards for starting new technical education institutions have been framed and incorporated under Section 23 of AICTE Act WP(C) 10104 of 2009 Page 11 of 25 which empowers the council to frame regulations to carry out the purposes of the Act. According to the respondents as per clause 4.3.3 of the handbook for approval process the respondent council recognized ownership documents in the name of the Trust/society for the proposed land to be used by the society only in the form of registered sale deed/irrevocable gift deed (registered)/irrevocable Government lease (in original) (for a minimum period of 30 years). It was admitted that the proposal of the petitioner was finally rejected by letter dated 3rd July, 2009. It is also contended by the respondents that the proposal for starting a technical institution by the petitioner society was not found acceptable as the land was transferred by way of Deed of Trust dated 19th March, 2008 wherein there is disposition of vesting of immovable properties to the trust. It is asserted that the stamp duty is payable on the value of the property as in case of conveyance which in the present case, according to the respondent has not been paid. 17. Regarding the discrimination viz a viz another society namely Silver Oak Society, it is contended that the case of the petitioner is entirely different in as much as that society was the direct owner of the land by virtue of a State Legislation whereas there is no ownership of the land as per the norms and standard laid down in the regulations framed by the respondent council in the AICTE Act. WP(C) 10104 of 2009 Page 12 of 25 18. The learned counsel for the respondents has relied on the provisions of All India Council for Technical Education Act and the regulations framed thereunder namely All India Council for Technical Education (AICTE) grant of approval for starting new technical institutions, introduction of courses or programmes and increase/variation of intake capacity of seats for the courses or programmes and extension of approval for the existing technical institutions Regulations, 2006, herein referred to `Regulation'.. The learned counsel has also relied on 2004 IV Apex Decision (SC) 615, Bharati Vidhyapeeth (Deemed University) and Ors v. State of Maharashtra and Anrs; II (2008) CLT 60 SC Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat & Ors, W.P(C) No.1365/2007, Kiran Chaudhary v. Indian Airlines Ltd decided on 31st May, 2007 and 2006(1) AD (Delhi) 539, All India Council for Technical Education v. Ombir Kaushik and Ors in support of the pleas and contentions on behalf of respondents. The learned counsel also relied on a decision dated 18th February, 2009 in Civil Appeal No.4349/2004, All India Council for Technical Education v. Surinder Kumar Dhawan and Ors whereas the learned counsel for the petitioner has relied on an order dated 29th April, 1998 of a Single Judge in Tagore Educational Trust v. All India Council for Technical Education. WP(C) 10104 of 2009 Page 13 of 25 19. Perusal of the regulations framed by the respondents, it is apparent that the land requirement for establishment of a new technical institution for purpose of engineering/technology colleges is 3 acres in mega cities like Delhi, Calcutta, Chennai and Mumbai and 5 acres in metro cities including State capitals and 10 acres in other cities. 20. The regulations 2006 do not lay down any other requirement except the area of the land which would be required for starting an engineering/technical course. The learned counsel for the respondents is also unable to show anything in the Regulations, 2006 restricting the transfer of land in favour of a trust or a society only on the basis of a sale deed, an irrevocable gift deed and a lease deed for 30 years. The respondents have a handbook for approval process. Clause 4.3.3 of Stage III of the Evaluation of Proposal contemplates that the hearing committee shall meet at least once in a month to process the proposals and an applicant society/trust should make a presentation before hearing committee with the original documents which include land documents in original showing ownership in the name of the trust/society in the form of registered sale deed/irrevocable gift deed (registered)/irrevocable Government lease (in original) (for a minimum WP(C) 10104 of 2009 Page 14 of 25 period of 30 years) by the concerned authority of Government. It also stipulates that in case the land documents are in vernacular language, notarized English translation of the document shall be produced. 21. In the letter dated 3rd July, 2009 declining the proposal of the petitioner trust the grounds taken are that as per the provision of handbook of approval process the trust does not fulfill the criterion laid down for ownership of the land and the stamp duty is payable on the value of the property as on the conveyance which has not been paid by the trust. 22. Before taking the decision dated 3rd July, 2009 the deficiency letter dated 23rd March, 2009 was sent contending that no sale deed is available in the name of the trust and since the proposal is valid for a block period of 2009-2012 the request for reconsideration can be made anytime within the block period. In reply to the deficiency letter it was categorically communicated by letter dated 21st April, 2009 that Shree Vijay Ganesh Public Charitable Trust was formed on 19th March, 2008 through registered trust document No.717/2008 and 333/2008 and at the time of incorporation of the trust founder transferred the land of 15.25 acres to the trust by registered trust deed which was registered WP(C) 10104 of 2009 Page 15 of 25 as document No.717/2008. Along with the letter, a legal opinion was also sent dated 23rd June, 2009 which is as under:- “Referring the AICTE letter cited above, you have sought a clarification and opinion regarding the chargeability of stamp duty for document No.717/2008 of District Registrar Office, Dindigul. On a thorough scrutiny of the deed relevant acts and rules especially Indian Stamp Act and Registration Act, 1908, I am of the opinion that the document viz., 717/2008 of District Registrar of Dindigul is a deed of “Declaration of Trust” which is capable of effecting a transfer of immovable property described in the schedule of the deed in favour of trust namely “Shree Vijay Ganesh Public Charitable Trust”. It extinguishes the right of the founder Thiru T.Dakashinamoorthy and now became the absolute property of the abovesaid trust. According to Rule 64(A) of Indian Stamp Act, maximum stamp duty chargeable for this type of instrument is fixed at Rs.180 only. The document has borne a duty of Rs.250/-. So I am of the opinion that the document is duly stamped. This opinion is given under the authority of Section 31 of the Indian Stamp Act. District Registrar & Collector under Section 31 Stamp Act. 23. Perusal of the documents filed by the petitioner also reveals that a receipt for Rs.12,160/- is produced detailing an amount of Rs.12,000/- paid as registration fee, Rs.100/- paid as computer fee, Rs.50/- paid as Section 30(1) fee and Rs.10/- paid as acknowledgement fee. Despite these documents the respondents have held in their order dated 3rd July, 2009 that the stamp duty is payable on the value of the WP(C) 10104 of 2009 Page 16 of 25 property as on conveyance. Neither the respondents have justified in their counter affidavit as to how the stamp duty on a registered deed by which the trust was created and the founder trustee had settled his property is not properly stamped or that the stamp duty paid is contrary to the provisions of Stamp Act or how the opinion given under Section 31 of the Stamp Act by the District Registrar and Collector is not correct. The learned counsel for the respondents is also unable to show that the opinion given under Section 31 of the Stamp Act is not correct. The opinion allegedly given by the legal department of the respondent has not been produced. The reason for the legal department to come to the conclusion that the document is not properly stamped, in the circumstances is not understandable. If the opinion given by District Registrar and Collector under Section 31 of the Stamp Act is not correct, the respondents were obliged to file a counter opinion based on the provisions of the Stamp Act or any other regulation. The approach of the respondent seems to be that under the regulations they can say anything and do anything and it is not amenable for review by any authority nor even by the High Court under Article 226 of the Constitution of India. 24. In the circumstances, the plea of the respondents that the document is not properly stamped and stamp duty in accordance with WP(C) 10104 of 2009 Page 17 of 25 law has not been paid cannot be accepted. The conveyance charges in accordance with law has been paid and the document has been executed in accordance with law on the appropriate stamp paper and is duly registered. The objection of the respondent in this regard is, therefore, rejected. The objection has been raised by the respondents without application of mind and without any basis. 25. The other contention of the respondent is that in order to consider the application of an institute for grant of affiliation, for the purpose of ascertaining the rights of the Trust/Society in the land, only three documents as detailed in the handbook of approved process can be taken into consideration and any other document, even if it is executed in accordance with the provisions of Transfer of Property Act or some other enactment and which is duly registered and properly stamped in accordance with law, cannot be accepted. Learned counsel for the respondents has vehemently contended that the regulations framed under All India Council for Technical Education Act have been approved by the Supreme Court of India and the decision taken under the regulation not to accept any other document except three documents as detailed in the handbook for approval process cannot be faulted. In Bharthiya Vidyapeeth (supra) relied on by the respondents. Central Government on the advice of University Grants Commission WP(C) 10104 of 2009 Page 18 of 25 had conferred the status of deemed university of Bharthiya Vidyapeeth and the deemed university was allowed admission to be made in the respective medical, engineering and dental colleges under the stream of common entrance test conducted by the State authorities till 1995- 1996 and thereafter they decided to keep themselves outside the scope of the said authority. The writ petitions were filed challenging the admission rules to medical, engineering and dental colleges whereby the