IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12-8-2011 CORAM THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR W.P.No.17997 of 2011 & M.P.Nos.1, 2 of 2011 W.P.No.17998 of 2011 & M.P.Nos.1, 2 of 2011 Muslim Educational Association of South India Trust rep.by its Honorary Secretary, No.2, Demellows Road, Choolai, Chennai – 112. ... Petitioner in both writ petitions Vs. 1. National Council for Teacher Education, rep.by its Member Secretary, Hans Bhawan, Wing II, Bahadurshah Zafar Nagar, New Delhi – 2. 2. National Council for Teacher Education, Southern Regional Committee, 1st Floor, C.S.D.Building, H.M.T.Post, Bangalore – 31. 3. The Director, Directorate of Teacher Education, Research and Training (DTERT), DPI Campus, Chennai – 6. 4. Chennai Metropolitan Development Authority (CMDA), rep.by its Member Secretary, Thalamuthu Natarajar Building, 1, Gandhi Irwin Road, Egmore, Chennai – 8 5. The Corporation of Chennai, rep.by its Commissioner, Ripon Building, Chennai. ... Respondents in both writ petitions Prayer in W.P.No.17997/2011: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of https://hcservices.ecourts.gov.in/hcservices/ Certiorarified mandamus calling for the records comprised in proceedings bearing F.No.89-150/2011 Appeal/4th meeting-2011 on the file of the Member Secretary, National Council for Teachers Education, New Delhi dated 6.7.2011 in confirming the order in Code: APSO8454/D.T.Ed. - F.SRO/NCTE/2010-2011/27557 on the file of the NCTE (SRC), Bangalore/R2 dated 10.3.2011 thereby withdrawing the recognition already granted in favour of the petitioner and quash the same and consequently direct the respondents to grant permission to locate the institution in the new premises at No.2, Demellows Road, Choolai, Chennai-600112. Prayer in W.P.No.17998/2011: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified mandamus calling for the records comprised in proceedings bearing F.No.89-151/2011 Appeal/4th meeting-2011 on the file of the Member Secretary, National Council for Teachers Education, New Delhi dated 6.7.2011 in confirming the order in Code: APSO3037/B.Ed. - F.SRO/NCTE/2010-2011/27336 on the file of the NCTE (SRC), Bangalore/R2 dated 7.3.2011 thereby withdrawing the recognition already granted in favour of the petitioner and quash the same and consequently direct the respondents to grant permission to locate the institution in the new premises at No.2, Demellows Road, Choolai, Chennai-600112. For Petitioner : Mr.R.Krishnamurthy, Senior Counsel for Mr.V.Ayyadurai For Respondents 1&2 : Ms.Kalpa Reddy for Mr.K.Ramakrishna Reddy For Respondents 3 to 5 : Mr.P.Sanjay Gandhi, Additional Govt. Pleader COMMON ORDER By consent of all parties, both the writ petitions are taken up for final disposal. 2. These writ petitions are filed challenging the order passed by the first respondent dated 6.7.2011 confirming the orders passed by the second respondent withdrawing recognition of D.T.Ed. and B.Ed courses respectively and to direct the respondents to grant permission to locate the institution in the new premises at No.2, Demellows Road, Choolai, Chennai-112. 3. The brief facts necessary for disposal of these writ petitions are as follows: https://hcservices.ecourts.gov.in/hcservices/ (a) Petitioner Trust was formed to establish educational institutions for the benefit of Muslim Community and for educationally and socially backward students. It has established MEASI College of Education to impart Diploma in Teacher Education (D.T.Ed) course and recognition was granted by the second respondent on 24.10.2007 for the sanctioned strength of 50. The third respondent also granted affiliation/staff approval on 3.6.2009 and permitted to run the institution in its temporary building located at No.53 Angappa Naicken Street, Mannady, Chennai-1, from the academic year 2009-2010. (b) The petitioner Trust also commenced B.Ed. course in the said temporary building from the academic year 2005-2006 with an intake of 100 students. Recognition was granted by the second respondent and affiliation was also granted by the third respondent, originally by the Madras University and now by the third respondent. (c) An extent of 9.73 grounds of land at Choolai, Chennai-112, was purchased by the petitioner Trust to house the institution to offer the said two courses with all infrastructural and instructional facilities. For sanction of necessary approval for construction of 34,132 sq.ft (3172.10 sq.mtr) application was made before the 4th respondent CMDA, even though the prescribed requirement of constructed area as per the NCTE norms to conduct both the courses is 27,000 sq.ft. (d) According to the petitioner Trust, building plan was approved by the licenced surveyor and the construction of the building is completed. No Objection Certificate from the Tamil Nadu Fire Service and Sanitary Certificate from the Public Health Officer, Corporation of Chennai, were also obtained to the said new premises. (e) Petitioner has applied for shifting the institution to the newly constructed building in the prescribed format stating the carpet area of each class room, Lab, Workshop, Staff rooms, etc. A play ground is also provided with an extent of 1930.38 sq.mtr. and requested the second respondent to grant permission to shift the institution to the new premises. (f) Petitioner states that the area earmarked for the courses was wrongly stated as 988.71 sq.mtr. and 951.49 sq.mtr instead of 2170.446 sq.mtr. and 3172.10 sq.mtr. The second respondent issued a show cause notice on 7.12.2010 to withdraw the recognition on the ground that the built up area earmarked for the courses being 5550 sq.ft., and the said area is inadequate as per the NCTE norms and directed the petitioner to submit the latest building completion certificate issued by the competent Government Engineer. The petitioner sent a reply on 20.10.2010 stating that the actual built up area earmarked for the courses is 34,132 sq.ft, which is more than the required area of 27,000 sq.ft. as per the NCTE norms for both the institutions. It was also pointed out that there was a typographical error in the built up area mentioned in the original https://hcservices.ecourts.gov.in/hcservices/ application. Petitioner also enclosed the building plan, sale deed of the land, patta, sanitary certificate, NOC issued by the Fire Service Department, Structural Stability Certificate, etc. (g) It was also stated that the petitioner applied for building completion certificate and undertook to submit the same soon after the same was made available and requested the second respondent to grant permission. According to the petitioner, the second respondent without considering the reply dated 20.10.2010, passed orders on 10.3.2011 and 7.3.2011 respectively and withdrew recognition to D.T.Ed and B.Ed courses respectively from the academic year 2011-2012 and debarred the institution from admitting the students in both the courses by stating that the institution did not mention the survey number of the site; that the building plan was not approved; that the total built up area available is only 18,554 sq.ft., which is far less than the requirement of 27,000 sq.ft.; that the management did not produce the building completion certificate from the authorised Engineer; and that the reply submitted by the petitioner was found not satisfactory. (h) The petitioner having aggrieved over the said order filed appeal before the first respondent under Section 18 of the NCTE Act, 1993, by enclosing all relevant documents including the communication received from the CMDA dated 4.6.2010 and prayed for setting aside the order and to grant permission to locate the above referred institutions in the new premises. (i) During the personal, the representative of the petitioner also appeared before the first respondent on 8.6.2011 and stated about the compliance of the requirements as per the NCTE norms. It was also pointed out that inspection report clearly stated the availability of 34,132 sq.ft. The CMDA issued planning permission by its communication dated 22.6.2011. The first respondent rejected the appeal and confirmed the orders of the second respondent dated 10.3.2011 and 7.3.2011 respectively by separate orders dated 6.7.2011. (j) The said orders are challenged in these writ petitions contending that the petitioner having been granted recognition for D.T.Ed and B.Ed courses to establish institution in a rented premises and the petitioner having purchased the land in the prime locality of Chennai City and constructed suitable building as per the requirement of the NCTE, and in spite of producing building plan and other relevant certificates coupled with planning permission issued by the CMDA dated 22.6.2011, mechanically and hypothetically passed orders withdrawing recognition on the ground of inadequacy of area, which is contrary to the inspection report. The institution is getting 100% results in the past academic years and interest of students, particularly belonging to minority community, will be affected if the impugned orders are not set aside and permission is not granted to locate the institution in the new premises. Petitioner also contended that huge amount was spent for the purchase of the property in Chennai city and by spending huge amount building is constructed and if permission is not granted petitioner https://hcservices.ecourts.gov.in/hcservices/ will be put to serious difficulties. 4. The second respondent field counter affidavit contending that the petitioner submitted an application to shift the institution to the permanent premises on 18.2.2010 and inspection was conducted on 16.9.2010. Notice was issued on 7.12.2010 for which a reply was given by the petitioner on 30.12.2010. Four deficiencies were noticed based on which the recognition was withdrawn. The appeal preferred by the petitioner was also dismissed by the appellate authority confirming the orders passed by the second respondent. The building approval and completion certificate was not issued by the competent authority viz., 4th respondent and the building itself was constructed without any sanctioned plan. Therefore on the date of application, there was no sanctioned plan and no building completion certificate was issued by the 4th respondent, apart from not having sufficient building area. It is also contended in the counter affidavit that the second respondent being the expert body, assessed the infrastructural facilities available and having arrived at a conclusion, the same cannot be challenged before this Court. 5. Mr.R.Krishnamurthy, learned Senior Counsel appearing for the petitioner Trust submitted that the petitioner Institution is offering B.Ed. and D.T.Ed courses from 2005-2006 and 2008-2009 respectively with an intake of 100 and 50 students each. The management having established the institution in a rented building, the Trust purchased required land within the city of Chennai by investing huge amount and constructed the building having an extent of 34,132 sq.ft. and the competent authority viz., Tamilnadu Fire Service issued No Objection Certificate; Public Health Officer, Corporation of Chennai issued Sanitary Certificate; and the building plan was also originally approved by the Licenced Surveyor and subsequently by the CMDA. Learned Senior Counsel further submitted that during pendency of the application before the 4th respondent CMDA for approval, the petitioner management submitted application before the second respondent for shifting the institutions to the newly constructed own building with all enclosures on 24.2.2010. The show cause notice issued on 7.12.2010 and 10.12.2010 were also suitably replied stating that the total built up area is 34,132 sq.ft., which is more than the required area as per the NCTE norms, which prescribes 27,000 sq.ft for offering both courses. The second respondent, without considering the availability of total area of 34,132 sq.ft. and without application of mind, rejected the request on the ground that the area available for both the courses is 18,554 sq.ft, which is far less than the required area of 27,000 sq.ft, among other things. 6. The learned Senior counsel also submitted that appeal was preferred against both the orders before the first respondent under Section 18 of the NCTE Act, 1993, and during pendency of the appeal https://hcservices.ecourts.gov.in/hcservices/ CMDA granted approval on 22.6.2011, which was also handed over by a representative of the management before deciding the appeal. Personal hearing was given on 8.6.2011 by the first respondent and during the said time also the facts about the availability of the land and other infrastructural facilities were appraised. The appellate authority even though noted the contention of the management that the built up area is 34,132 sq.ft, rejected the appeals by separate orders dated 6.7.2011 on the ground that the second respondent gave finding that only 13,004 sq.ft. is available and the petitioner has also not enclosed the approved plan issued by the competent authority for the building constructed. The learned Senior Counsel also submitted that the petitioner college being a established college, granted recognition and affiliation by the competent authorities, has got a right to continue. The said facts were not noticed by the respondents 1 and 2 and therefore the orders passed by the second respondent confirmed by the first respondent are unsustainable as the same were passed on non-application of mind and without considering the relevant facts. The CMDA approval granted was also not noticed during pendency of the appeal and the formal approval of the plan has to be obtained from the Corporation of Chennai, for which also the petitioner has paid the required fees. Therefore the learned Senior Counsel prayed for setting aside both the orders and remit the application to the second respondent for reconsideration taking note of all relevant facts and to pass fresh orders. 7. The learned Standing Counsel appearing for NCTE/respondents 1 and 2 submitted that the petitioner Institution has not produced the building approval granted by the Corporation of Chennai and therefore the order passed by the appellate authority is just and proper and it is the mandatory requirement to comply with all the norms of the NCTE for continuance of approval/grant of permission to shift the institution to the new premises. Therefore the orders passed by the authorities are legal and valid. 8. I have also heard the learned Additional Government Pleader appearing for respondents 3 to 5. 9. From the pleading and records it is evident that the second respondent, by order dated 20.1.2006 granted recognition to B.Ed course and by order dated 25.2.2008 granted recognition to D.T.Ed course. The Madras University as well as the Director of Teacher Education Research and Training granted affiliation/approval of staff list to the said courses. The institution commenced its functioning in a rental building and thereafter the management purchased 9.73 grounds at No.2 Demellows Road, Choolai, Chennai-112, and the building is also constructed in an extent of 34,134 sq.ft. It is an admitted fact that the requirement of building for both the courses as per NCTE norms is 27,000 sq.ft. The Tamilnadu Fire Service Department issued No Objection Certificate and the Public https://hcservices.ecourts.gov.in/hcservices/ Health Officer, Corporation of Chennai issued Sanitary Certificate. Approval from the CMDA was pending during the submission of the application seeking permission to shift the course. During the pendency of appeals the CMDA granted approval by order dated 22.6.2011 with the following conditions: "3. The Planning Permission is issued subject to the following conditions: i) To ensure that the plans for the new buildings will incorporate the approved designs for mosquito proof over had tanks and wells. ii) Non provision of Rain Water Harvest structures as shown in the approved plan to the satisfaction of the Authority will also be considered as a deviation to the approved plan and violation of DCR and Enforcement action will be taken against such development. 4. The approved plans are numbered as Planning Permit No.C.5641/04A to F/2011 and two copies of the same along with two copies of the planning permit are enclosed herewith for taking further action in this regard. 5. The approval is not final. You have to approach the Commissioner, Corporation of Chennai for issue of building permit under the respective Local body acts, only after which the proposed construction can be commenced." The approval order issued by the CMDA clearly reveals that it is a temporary approval and not a final one and the petitioner was directed to approach the Commissioner of Corporation of Chennai for issuing building permit. According to the petitioner necessary fee is also paid to the Corporation of Chennai as per the requirement. The said order was passed by CMDA during pendency of the appeal and the same fact was intimated and a copy of the same was handed over on 23.6.2011. However, the said approval granted by the CMDA and the availability of 34,132 sq.ft has not been considered by the appellate authority. The licenced Surveyor has already given certificate for completion of the building having an extent of 34,132 sq.ft. and a copy of the same is filed in page No.19 of the typed set of papers, wherein it is stated that the building was constructed in the year 2009 at an approximate cost of Rs.2.53 crores consisting of ground, first and second floors. The said aspect was not considered by the second respondent while passing the impugned orders and also by the first respondent while passing the orders in appeal. 10. The petitioner institution is an established institution, conducting courses such as B.Ed and D.T.Ed courses. The respondents 1 and 2 are bound to consider the application in a proper spirit, even though they are only vested with power to grant permission. If relevant materials are not considered by the statutory authority, https://hcservices.ecourts.gov.in/hcservices/ the decision arrived at can be treated as an arbitrary decision. The said position is emphasised by the Honourable Supreme Court in the decision reported in (2011) 4 SCC 1 (Centre for PIL v. Union of India). 11. The impugned orders are withdrawing the recognition granted to B.Ed and D.T.Ed courses to the petitioner institution. Section 17 of the NCTE Act, 1993, empowers the respondents 1 and 2 to withdraw recognition on any valid grounds and reasons for withdrawal should be recorded in writing and before withdrawing recognition, reasonable opportunity of making representation against the proposed order has to be given to the recognised institution. The order withdrawing or refusing recognition passed by the Regional Committee shall come into force only with effect from the end of the academic session next following the date of communication of such order. From the above statutory provision it is evident that a reasonable opportunity of making representation is made as a condition precedent to pass orders of withdrawal of recognition. The reasonable opportunity provided under the statutory provision should be given due importance by the first respondent. It shall not be treated as an empty formality. If all relevant facts were considered, there might be a possibility of arriving at a different conclusion in this case by the respondents 1 and 2. 12. When the statutory provision gives a direction to give reasonable opportunity, it shall not be treated as an empty formality. The reasonable opportunity includes consideration of the objection/explanation submitted for the show cause notice. The non- consideration of the relevant factor by a statutory authority while passing the adverse order against an institution has got serious consequences, particularly when the recognition granted is ordered to be withdrawn. Hence the respondents 1 and 2 are all the more duty bound to consider the representation or explanation in its right spirit and arrive at a just decision, promoting the interest of the students as well as the institution, which has invested huge amount for its establishment and cater the needs of the society. If the institution is applying for fresh recognition or additional intake, strict compliance of the norms is bound to be required. Here the petitioner is already granted recognition to the said two courses, which is bound to be taken note of by the second respondent. 13. The question as to whether the authority can be directed to reconsider the request was considered by the Division Bench of the Delhi High Court in L.P.A.No.544 of 2011 and by order dated 21.7.2011 the Delhi High Court ordered re-inspection and the authority was directed to pass a reasoned order after offering opportunity of hearing. The said case relates to increase of intake of students for admission in a medical college. The said order was challenged before the Honourable Supreme Court in S.L.P.No.16233 of https://hcservices.ecourts.gov.in/hcservices/ 2011 and the Supreme Court by order dated 17.6.2011 while confirming the order of the Delhi High Court, clarified and passed the following order: "(b) The Council shall be at liberty to consider the application in accordance with the Rules, Regulations and the parameters provided for grant of approval of such colleges. If as per the wisdom of the Council, conditions are not satisfied it will be at liberty to decline the approval. (c) We extend the period by two weeks for considering and granting/refusing the approval to the Medical College. The Council will be at liberty to inspect the College through Experts as contemplated under the Rules." Following the said orders this Court in W.P.No.16298 of 2011 order dated 5.8.2011, set aside the order passed by the Medical Council of India rejecting the request of increase of intake in first year M.B.B.S. Course to the petitioner therein and the matter was directed to be reconsidered after making fresh inspection by the Medical Council of India. 14. Taking into consideration all these facts as well as the judgments referred above and the approval granted by the CMDA on 22.6.2011, I am of the view that the impugned orders are unsustainable. Consequently the same are set aside. The matter is remitted back to the second respondent to consider the request of the petitioner in all relevant facts and pass fresh orders within a period of three weeks from the date of receipt of copy of this order. The writ petitions are disposed of accordingly. No costs. Connected miscellaneous petitions are closed. vr dr Sd/- Deputy Registrar //True Copy// Sub Asst. Registrar To 1. The Member Secretary, National Council for Teacher Education, Hans Bhawan, Wing II, Bahadurshah Zafar Nagar, New Delhi – 2. https://hcservices.ecourts.gov.in/hcservices/ 2. The National Council for Teacher Education, Southern Regional Committee, 1st Floor, C.S.D.Building, H.M.T.Post, Bangalore – 31. 3. The Director, Directorate of Teacher Education, Research and Training (DTERT), DPI Campus, Chennai – 6. 4. The Member Secretary, Chennai Metropolitan Development Authority Thalamuthu Natarajar Building, 1, Gandhi Irwin Road, Egmore, Chennai – 8 5. The Commissioner, Corporation of Chennai, Ripon Building, Chennai. + 4 ccs to Mr. V. Ayyadurai, Advocate SR No.49289, 49985, 49291, 49986 KJ(CO) SR/12.8.2011 Common Order in W.P.Nos.17997 & 17998/2011 https://hcservices.ecourts.gov.in/hcservices/