Sahu Trust Vs. All India Council for Technical Education and ors. - Court Judgment

Excerpt:
constitution - approval - withdrawal of - petitioner accorded approval from respondent for starting new technical institution - after some time, respondent withdraw said approval with immediate effect - being aggrieved, petitioner filed present writ petition - held, respondent could not withdraw approval only on decision of petitioner to close down institution because this may affect interest of students who are studying in - power that is vested in respondent could be exercised by aicte only after it reached a conclusion that any of relevant provisions have been contravened by institution and not otherwise - petitioner required to give opportunity to fulfill deficiencies pointed out by respondent in respect of same - respondent cannot pass any order withdrawing approval to technical institution which affects interest of students - therefore, order passed by respondent should be quashed and respondent directed to initiate fresh action for withdrawal of approval accorded to it in case deficiencies pointed out by respondent are not removed by petitioner's institution - writ petition allowed accordingly - sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - pitambar acharya, learned counsel for the petitioner, submitted that the power to withdraw approval accorded to a professional college or a technical institution is vested in the aicte under regulation 13 of the all india council for technical education (norms and guidelines for fees and guidelines for admissions in professional colleges) regulations, 1994 as well as regulation 12 of the all india council for technical education (grant of approval for starting new technical institutions, introduction of courses of programmes and approval of intake capacity of seats for the courses or programmes) regulations, 1994. the said regulations13 and 12 of the aforesaid two regulations respectively are quoted hereunder :regulation -13 13. withdrawal of approval -if a professional college contravenes any of the provisions of these regulations, the council may withdraw its approval after making such enquiry as it may consider appropriate and after giving the professional college an o the petitioner had been given an opportunity to fulfil the deficiencies pointed out by the aicte in its letter dated 12.07.2001 by 30.4.2002 and the petitioner had agreed to submit an undertaking by an authorised signatory of the society to remove the said deficiencies by 30.4.2002. if the deficiencies pointed out in the letter dated 12.7.2001 by the aicte were not removed by 30.4.2002, it was clearly open for the aicte to have given an opportunity to the petitioner's college/institution and after hearing and after making necessary inquiry pass orders under regulations 13 or 12 of the two regulations quoted above, but before 30.4.2002 the impugned order dated 14.12.2001 was passed by the aicte withdrawing the approval granted to the petitioner's college/ institution on the basis of representation dated 28.11.2001 of the petitioner. cases in the said writ petitions as well as this writ petition.a.k. patnaik, j.1. the petitioner was accorded approval for starting a new technical institution, namely, the institute of technology bhubaneswar, by the all india council for technical education (for short, 'aicte') by an order dated 21st of october, 1998.the aicte passed an order dated 14th of december, 2001 withdrawing the approval accorded to the petitioner with immediate effect. a copy of the said order dated 14.12.2001 has been annexed to the writ petition as annexure-3 and is quoted herein below :'all india council for technical education(a statutory body of the government of india) f. no : 760-82-220(e)/et/97date : 14th dec. 2001 to, commissioner cum secretary industrial department govt of orissa bhubaneswar - 751001 sub : withdrawal of approval accorded to institute of technology, bhubaneswar, orissa. sir, aicte had accorded extension of approval to institute of technology, bhubaneswar for the academic year 20o0-2001 for the following branches;courses intake duration period of approvalcomputer science engg. 60 4 yrs 2000-2001 electrical engg. 60 4 yrs 2000-2001 electronics andtelecomm engg. 60 4 yrs 2000-2001 mechanical engg. 60 4 yrs 2000-2001total intake 240 subsequently the institute was placed under no-admission category for academic year 2000-2001. the trust vide their representation dated 28.11.2004 has requested for withdrawal of approval and return of joint fixed deposit. based on the representation from the institution and the directives from the hon'ble high court of orissa, the council has decided to withdraw the approval accorded to above named institute with immediate effect. thanking you, yours faithfully,dr. p. n. razdanadviser (e & t) copy to : 1. the regional officer, ero, aicte, institute of leather technology campus, salt lake city, sector - iii, kolkata - 70091. 2. the chairman, sahu trust, c-9 saheed nagar, bhubaneswar - 752001 sd/ - p. j. razdandr. p. n. razdan adviser (e & t)' aggrieved by the said order dated 14.12.2001 of the aicte withdrawing the approval accorded to the petitioner with immediate effect, the petitioner has filed this writ petition with a prayer to quash the same.2. mr. pitambar acharya, learned counsel for the petitioner, submitted that the power to withdraw approval accorded to a professional college or a technical institution is vested in the aicte under regulation 13 of the all india council for technical education (norms and guidelines for fees and guidelines for admissions in professional colleges) regulations, 1994 as well as regulation 12 of the all india council for technical education (grant of approval for starting new technical institutions, introduction of courses of programmes and approval of intake capacity of seats for the courses or programmes) regulations, 1994. the said regulations13 and 12 of the aforesaid two regulations respectively are quoted hereunder : regulation - 13 '13. withdrawal of approval - if a professional college contravenes any of the provisions of these regulations, the council may withdraw its approval after making such enquiry as it may consider appropriate and after giving the professional college an opportunity of being heard.' regulation - 12 '12. withdrawal of approval - if any technical institution including university, university department or deemed university or college contravenes any of the provisions of these regulations, the council may, after making such inquiry as it may consider appropriate and after giving the technical institution concerned an opportunity of being heard, withdraw the approval granted under these regulations.' mr. acharya submitted that the aforesaid regulations 13 and 12 of the two regulations are almost identically worded and it provides that withdrawal of approval granted to a professional college or technical institution can be withdrawn if the professional college or the technical institution contravenes any of the provisions of the regulations and only after making such inquiry as the aicte may consider appropriate and after giving the professional college or the technical institution concerned an opportunity of being heard, mr. acharya stated that in the present case, no such opportunity of being heard was granted to the petitioner before the impugned order was passed withdrawing approval to the petitioner's college/institution. he further submitted that it will be clear from the impugned order dated 14.12.2001 that the aicte withdrew the approval accorded to the petitioner's college/institution on the representation dated 28.11.2001 of the petitioner, but the copy of the said representation annexed to the additional affidavit filed on behalf of the petitioner would show that no request was made therein for withdrawing the approval accorded to the petitioner's college/institution.3. mr. s. mohapatra, learned counsel for the aicte, on the other hand, submitted that the petitioner's college/institution was placed under no-admission' category for the academic year 2001-2002 on account of various deficiencies arid the order of the aicte putting the petitioner's college/institution in no-admission category for the academic session 2001-2002 was challenged before this court in a separate writ petition (o.j.c. no. 14412 of 2001) and on 5.12.2001, this court took note of the submission of mr. sahu appearing for the petitioner's college/institution in the said case that the trust which has established the college/ institution has decided to close down the college/institution if the aicte does not permit it to admit students for the session 2001-2002 and that the trust has already approached the aicte for permission to admit students in the present session or to return the fixed deposit receipts and to allocate the batches of students who would be left in the college at the end of current academic year to other approved institutions from the beginning of next academic year commencing to july 2002. he further submitted that by the said order dated 5.12.2001, this court disposed of the writ petition (o.j.c. no. 14412 of 200l) by directing the aicte to consider the petitioner's representation dated 10th of november, 2001 and 28th of november, 2001 in accordance with law within one month from the date of communication of the order. mr. mohapatra contended that a reading of the said representation along with the order dated 5.12.2001 of this court in o.j.c. no. 14412 of 2001 would show that the petitioner had decided to close down the college/institution and for this reason, the aicte passed the impugned order dated 14.12.2001 withdrawing approval accorded to the petitioner's college/institution.4. without going into the controversy between the parties in this case as to whether or not the petitioner had actually decided to approach the aicte for withdrawal of the approval accorded to the establishment of the college/institution, we find that under the aforesaid regulations 13 and 12, approval could only be withdrawn if the professional college/institution contravened any of the provisions of the regulations and that too after making such inquiry as may be considered appropriate and after giving the professional college/technical institution an opportunity of being heard. hence, only if the professional college/institution contravenes any provision of the regulations, proceedings for withdrawal of approval granted to the professional college/technical institution could be initiated under the said regulations 13 and 12. in our considered opinion, therefore, even if the petitioner is found to have requested the aicte to withdraw the approval accorded to the establishment of the college/institution, the aicte could not withdraw the approval granted to the establishment of the college/institution of the petitioner unless it came to a definite conclusion that there was contravention of any of the provisions of the regulations as indicated in the aforesaid regulations 13 and 12 of the two regulations.5. the aicte could not withdraw approval only on the decision of the petitioner to close down the college/institution because this may affect the interest of the students who are studying in the institution. the power that is vested in regulations 13 and 12 of the two regulations quoted above could be exercised by the aicte only after it reached a conclusion that any of the provisions of the regulations have been contravened and not otherwise. the petitioner had been given an opportunity to fulfil the deficiencies pointed out by the aicte in its letter dated 12.07.2001 by 30.4.2002 and the petitioner had agreed to submit an undertaking by an authorised signatory of the society to remove the said deficiencies by 30.4.2002. if the deficiencies pointed out in the letter dated 12.7.2001 by the aicte were not removed by 30.4.2002, it was clearly open for the aicte to have given an opportunity to the petitioner's college/institution and after hearing and after making necessary inquiry pass orders under regulations 13 or 12 of the two regulations quoted above, but before 30.4.2002 the impugned order dated 14.12.2001 was passed by the aicte withdrawing the approval granted to the petitioner's college/ institution on the basis of representation dated 28.11.2001 of the petitioner. in the order dated 5.12.2001 of this court in o.j.c. no. 14412 of 2001, this court only directed the aicte to dispose of the representation of the petitioner in accordance with law. hence aicte would have passed an order for withdrawing approval only in accordance with the aforesaid regulations 13 and 12 of the two regulations while disposal of the representation of the petitioner and not otherwise.6. as a consequence of the impugned order dated 14.12.2001 withdrawing the approval accorded to the petitioner's college/ institution, the students of the institution were sought to be distributed to other engineering colleges in the state of orissa under the utkal university but many of the students of the petitioner's college/institution have approached this court in separate writ petitions and intervention petitions, some wanting to continue in the petitioner's college/institution and others wanting to leave the petitioner's college/institution. in writ petitions (o.j.c. no. 5809, 5928, 6009 and 6021 of 2002) the impugned order of the aicte withdrawing approval and the order of aicte distributing the students to other colleges/institutions have been challenged by an advocate and several students of the said college/institution. it is not as of aicte cannot pass any order withdrawing approval to a professional college or technical institution which affects the interest of students. but as we have held, the aicte can pass such order of withdrawal of approval only if it reaches a conclusion that any of the provisions of the regulations has been contravened and after following the procedure as laid down in the said regulations 13 or 12 of the regulations quoted above.7. considering all aspects of the matter, we are of the opinion that the impugned order dated 1.4.12.2001 withdrawing approval to the petitioner's college/institution should be quashed, leaving it open to the aicte to initiate fresh action for withdrawal of approval accorded to it in case the deficiencies pointed out by the aicte are not removed by the petitioner's college/institution. we, accordingly, allow this writ petition and quash the impugned order dated 14.12.2001 leaving it open to the aicte to take action in accordance with regulations 13 and 12 of the two regulations quoted above.8. regarding students of the petitioner's college/institution, we had passed orders on 25.6.2002 in o.j.c. nos. 5809, 5928 and 6009 of 2002 to the effect that it will be open for such students of the petitioner's college/institution who want to go and join other colleges as per the distribution made by the authorities and further that students who are not willing to go and join other colleges as per the impugned decision of the aicte may continue in the petitioner's college/institution until further orders passed by this court and that their continuance in the petitioners college/institution will be by virtue of the interim orders passed by this court and they will not be made to suffer in future by any of the authorities - aicte, utkal university or state government. by another order dated 9.7.2002 passed in misc. case no. 7239 of 2002 arising out of o.j.c. no. 5809 of 2002, we had temporarily directed that counselling for the purpose of such distribution of the students of the petitioner's college/institution will not be held, but thereafter on 18.7.2002, we passed orders in misc. case no. 7239 of 2002 that our orders dated 25.6.2002 passed in o.j.c. nos. 5809, 5928 and 6009 of 2002 are to be given effect to by all parties concerned. by the said order dated 18.7.2002, we had directed that a fresh date will be fixed by the aicte for counselling so that the students can go and attend the classes in the colleges to which they are allotted as early as possible, pursuant to the aforesaid interim orders passed by this court, it appears that many students have left the petitioner's college/ institution and some students have continued in the petitioner's college/institution. it will be open for the students who have already left the petitioner's college/institution to come back to the petitioner's college/institution but those who do not want to come back, may continue in the college/institution to which they have been allotted pursuant to the counselling.9. a grievance has been made before us with regard to the fees demanded or retained by the petitioner's college/institution and the college/institution to which the students of the petitioner's college/institution have been allotted. the director of technical education, government of orissa, will look into these individual grievances as and when it is brought to his notice and pass appropriate orders in accordance with law.this judgment shall govern disposal of o.j.c. nos. 5809, 5928, 6009 and 6021 of 2002 and all the misc. cases in the said writ petitions as well as this writ petition.m. papanna, j.10. i agree.