1. The petitioner no. 1, a committee of Management of a Degree College filed this writ petition through petitioner no. 2, who is stated to be its Manager. It has preferred this writ petition for quashing of the order dated 08 June 2010 passed by the State Government purported to be under Section 37(8) of the U.P. State Universities Act, 1973 (Act No. 10 of 1973), granting prior approval for the withdrawal of affiliation to the University and the consequential order dated 11 June 2010 whereby the Executive Council has granted permission for withdrawal of the affiliation.
2. The essential facts are that a Society, namely, "All India Children Care and Educational Development Society, Azamgarh" is registered under the provisions of the Societies Registration Act, 1860 (as applicable in the State of U.P.). One of the objects of the Society is to promote the education by establishing educational Institution. With a view to the said object it has established a College under the name and style of Dhanpati Dharm Vidyalaya, Khempur, Azamgarh (for short, "the College"). It is affiliated with Veer Bahadur Singh Purvanchal University, Jaunpur. It does not receive any aid out of the State fund, therefore, it is a self-financing College. The provisions of the U.P. State Universities Act, 1973 and the First Statute of Veer Bahadur Singh Purvanchal University, Jaunpur are applicable to the College.
3. In the year 2003 the College was granted temporary affiliation for three years for running B.Sc. course with subject Mathematics, Physics, Chemistry, Zoology and Botany. On 23.11.2007 the permanent affiliation was granted in the same subjects. Similarly, on 09.05.2005 temporary affiliation for one year was granted to the Institution for running B.Ed. course. Similarly it was also granted temporary affiliation in the academic session 2007-08 for B.Ed. course. On 19 February 2009 the permanent affiliation was granted for the same subject.
4. It appears from the record that a Member of Legislative Assembly made a complaint to the State Government on the ground that the petitioner Institution has got the affiliation by submitting forged and fictitious documents; the College does not have own land and no building of the College was constructed on the land which has been shown for the purposes of obtaining affiliation.
5. On the complaint made by the Member of Legislative Assembly (for short, "the MLA") the District Magistrate was asked to submit a report. It is submitted that the District Magistrate without affording any opportunity to the petitioner submitted a report on 06 April 2010 against the petitioner College, wherein it was mentioned that it appears that affiliation was obtained by the petitioner Institution by providing forged khatauni. On the basis of the said report of the District Magistrate, the State Government in exercise of its power conferred under Section 37(8) of the Act No. 10 of 1973 has passed the impugned order dated 08.06.2010.
6. From the record it appears that previously also the matter was enquired into and the Sub-Divisional Magistrate had submitted a report on 09 June 2009. On the basis of the said report the District Magistrate had submitted his report dated 15.06.2009 (Annexure CA-02 at Pg. 23 of the Counter Affidavit).
7. On the basis of the report submitted by the Sub-Divisional Magistrate and the District Magistrate dated 09 June 2009 and 15 June 2009 respectively the Registrar of the University issued a show cause notice to the petitioner College to submit his a reply within seven days.
8. In response to the said notice the petitioner submitted reply/ explanation that there is a registered lease deed dated 02 June 2003 for 29 years in favour of the petitioner College of Gata No. 699 area 2.909 acre and Gata No. 700 area 0.839 acres. It is also stated that in respect of Gata No. 558A and 558B area 0.644 acres and 664 fe0. have already been purchased by the petitioner from one Sri Hariprasad. It is further stated that Gata No. 664, 690 and 657 admeasuring 4.696 acres have also been purchased from Sri Kedar and Shyamdhan, and for the same, mutation proceeding is still pending before the Assistant Consolidation Officer, Jamudi, Azamgarh. A copy of the reply has been brought on the record by the petitioners as annexure-10 to the writ petition.
9. Thereupon the University vide its communication dated 22 July 2009 directed the petitioners that since the matter requires verification of revenue documents hence the petitioners may apply before the concerned appropriate authority for re-enquiry so the aforesaid fact can be verified by the competent authority.
10. In compliance thereof the petitioner made an application before the District Magistrate, Azamgarh to get the matter re-enquired. The District Magistrate asked the Settlement Officer, Azamgarh to enquire the matter and submit his report. The Settlement Officer (Consolidation), Azamgarh after an enquiry submitted a report dated 02 February 2010 to the District Magistrate, wherein he has recorded that Gata No. 687, 699 and 700 have already been transferred in the name of petitioners Institution on 12 August 2009 and Gata No. 558A and 558B have been transferred to the petitioner Institution vide order dated 03 March 2008.
11. The District Magistrate on 22 April 2010 sent a report to the Registrar of the University, wherein he mentioned that no fabrication or fraud was found mentioned in the previous reports. The District Magistrate has also found that at present total 5.083 acres land is in the name of the petitioner Institution.
12. The petitioner Institution submitted a fresh representation dated 17 May 2010 to the Registrar of the University that in view of the fresh report of SOC and the District Magistrate dated 22 April 2010 there is no legal impediment in continuance of the petitioners' affiliation.
13. The matter was placed before the Executive Council with reference to the Government's decision dated 08 June 2010. The Executive Council in its meeting dated 11.08.2010 unamimously accepted the decision for withdrawal of affiliation granted by the State Government vide its order dated 08.06.2010 and authorized the Vice Chancellor to take appropriate further steps. In compliance thereof the Registrar vide his letter dated 06.07.2010 informed the State Government about the resolution of the Executive Council approving the withdrawal of the affiliation.
14. A counter affidavit has been filed on behalf of the respondent nos. 1 and 2. The University has preferred not to file any counter affidavit. An impleadment application has been filed by one Lalta Yadav, who has not disclosed about his locus in the impleadment application and counter affidavit.
15. The respondent nos. 1 and 2, in their counter affidavit, stated that the State Government received complaints with respect to the land of College thus the State Government decided to get an enquiry conducted through the District Magistrate, who had submitted a report dated 06 April 2010. The said report clearly reveals that the petitioner Institution has no land in its name in the revenue records and has no building on the land shown in the records. It has obtained the affiliation by submitting fake Khatauni. It is further stated that the University requested the State Government to grant its prior sanction for withdrawal of the affiliation on 15.05.2010. The said communication is on the record as annexure CA-3 to the counter affidavit. It is stated that on the basis of the said report the State Government by means of its letter dated 08 June 2008 granted its prior sanction for withdrawal of the affiliation exercising its power under Section 37(8) of the Act No. 10 of 1973 and directed the University to take further action. It is further averred in the writ petition that the Executive Council in its meeting dated 11 June 2010 had accepted the decision of the State Government authorized the Vice Chancellor to take further action. The Registrar vide his communication dated 06 July 2010 informed the State Government about the proceedings of the Executive Council and further referred the matter to the State Government for taking action under Section 37(9) of the Act No. 10 of 1973.
16. As regards the subsequent report of the District Magistrate dated 22.04.2010 it is stated in the counter affidavit that the said report was not called for by the State Government and it was addressed to the Registrar, Veer Bahadur Singh Purvanchal University, Jaunpur. Moreover, from this report also, it appears that the land was transferred in favour of the petitioners after the affiliation was granted.
17. I have heard Sri U.N. Sharma, learned Senior Advocate assisted by Sri Abhishek Rai, learned Counsel for the petitioners, learned Standing Counsel, Sri A.K. Singh, learned Counsel for the University and the learned Counsel for the complainant.
18. Sri Sharma, learned Senior Advocate submits that in the impugned order dated 08 June 2010 passed by the State Government it is specifically mentioned that a complaint from a MLA was received. In fact the complaint was initially made by Sri Lalta Prasad Yadav, who was also running a Degree College in the same locality and is the Manager of Krishna Degree College, Azamgarh and at his behest Sri Udai Raj Yadav, MLA, got adverse reports submitted by the Additional District Magistrate and Sub Divisional Magistrate to the District Magistrate.
19. The District Magistrate without affording any opportunity to the petitioners and without application of mind, only on the basis of biased report had submitted his report to the State Government. The State Government also without issuing a notice to the petitioner and verifying the fact, has accepted the report of the District Magistrate, however the State Government as well as the University have ignored the said report submitted by the District Magistrate dated 22.04.2010, which is based on the detailed report submitted by the Settlement Officer, Consolidation, which was the last report of District Magistrate thus the action of the State Government and the University is in violation of principles of natural justice and arbitrary.
20. He further urged that the State Government and the University has not complied the provisions under Section 37(8) of the Act 10 of 1973 and has taken a decision without considering the material on the record. He lastly urged that the petitioners were not afforded any opportunity by the State Government or the University before the withdrawal of the affiliation, which has a serious civil consequences.
21. The learned Standing Counsel submits that from the various reports of the Sub-Divisional Magistrate and Additional District Magistrate, and the report of District Magistrate dated 06.04.2010 it is demonstrably proved that the petitioners have obtained the affiliation on the basis of the fake documents.
22. Learned Counsel for the complainant has invited the attention of the Court to various allegations made by him in his impleadment and counter affidavit. However, there is nothing on the record to indicate the locus of Dhanraj Yadav except that on his complaint the MLA has made complaint to the State Government.
23. I have heard learned learned Counsel for the parties, considered their submissions and has also perused the record.
24. The petitioner is a Degree College and it is running various Under Graduate Courses since 2003. By the impugned order the petitioners' affiliation has been withdrawn. I find it helpful to extract Section 37(8) & (9) of the Act No. 10 of 1973;
(8) The privileges of affiliation of a college which fails to comply with any direction of the Executive Council under sub-section (7) or to fulfil the conditions of affiliation may, after obtaining a report from the Management of the college and with the previous sanction of the State Government1, be withdrawn or curtailed by the Executive Council in accordance with the provisions of the Statutes.
(9) Notwithstanding anything contained in sub-section (2) and (8), if the Management of an affiliated college has failed to fulfil the conditions of affiliation, the [State Government] may, after obtaining a report from the Management and the Vice-Chancellor, withdraw or curtail the privileges of affiliation.
25. From a careful reading of sub-section (8) and (9) of Section 37 of the Act No. 10 of 1973 it is discernible that both sub-sections are independent of each other. Sub-section (8) empowers the Executive Council to withdraw or curtail privilege of affiliation of College with the previous sanction of the State Government. If the College fails to comply any direction of the Executive Council or has failed to fulfill the conditions of affiliation. The sub-section (9) empowers the State Government to take decision itself if the Management has failed to fulfill the conditions of affiliation. In both the sub-sections it is provided that the decision for withdrawal or curtailment shall be taken after obtaining a report from Management of the College and in case the State Government takes decision, the report from College as well as Vice Chancellor also shall be called. In the present case the action has been taken under sub-section (9) of Section 31 of the Act 10 of 1973, which is evident from the order of the State Government dated 08 June 2010. In the said order it is mentioned that Sri Udai Raj, the Member of Legislative Assembly and another have made a complaint against the petitioner College. In this regard the State Government has sought the report from the District Magistrate on 28 February 2010. In compliance of the said order, the District Magistrate vide his communication dated 06 April 2010 has informed the Government that an enquiry was conducted by the Additional District Magistrate (Administration), Azamgarh and it was found that at the time of affiliation of the College, the College's name was not recorded in the revenue record. It is also mentioned by the Registrar of the University in his communication dated 15.05.2010 that from the perusal of the said report, which has been brought on the record alongwith the counter affidavit of the respondent nos. 1 and 2, it is demonstrably established that it has been sent in response to the communication of State Government dated 13 May 2010. The relevant part of the communication dated 15.05.2010 reads as under;
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26. From a perusal of the letter dated 15 May 2010 it is evident that the action against the College has not been initiated by the University but the University has sent the communication in response to the letter of the State Government dated 13 May 2010, therefore, Section 37(8) of the Act No. 10 of 1973 has not been invoked in the present case but the State Government has exercised powers conferred under Section 37(9) of the Act. The impugned order has been passed under Section 37(8) of the Act No. 10 of 1973, which is clear from the order itself that the University has withdrawn the affiliation with the prior approval of the State Government. The previous sanction of the State Government is necessary. From the record it is discernible that in fact the proceeding of the withdrawal has been initiated by the State Government and it has also called the comment of the University but in both the sub-sections the opportunity to the Management, where the action has been taken under sub-section (9) of section 37 of the Act No. 10 of 1973. Admittedly no notice has been issued by the State Government to the Management.
27. In any view of the matter it is demonstrably established from the record that prior to giving the affiliation, the University as well as the State Government have acted in most casual and negligent way. If the allegation made against the College is true then it is a manifest that the proper documents were not verified at any level and the affiliation has been granted in a casual way. It is on the record that there are more than 400 Degree Colleges and Post Graduate Colleges affiliated to Veer Bahadur Singh Purvanchal University after the amendment in Section 37 of the Act No. 10 of 1973 by U.P. Act No. 12 of 20072. The power of the affiliation was with the Chancellor, the State Government by the amendment in Section 37 of the Act No. 10 of 1973 has taken over the power of the affiliation from the Chancellor to itself. Since 2007 a large number of the affiliations have been granted by the State Government.
28. It is apt to note that the Supreme Court in the case of State of Maharashtra v. Vikas Sahebrao Roundale and others, (1992) 4 SCC 435; has noted with the concern about the large number of Institutions, who are ill-equipped and lack infrastructure and the good teachers. The Court expressed its unhappiness in the following terms;
"12............The teacher is adorned as Gurudevobhava, next after parents, as he is a principal instrument to awakening the child to the cultural ethos, intellectual excellence and discipline..........."
29. The Supreme Court in the case of Shri Morvi Sarvajanik Kelavni Mandal Sanchalit MSKM BED College v. National Council for Teachers' Education and others, (2012) 2 SCC 16, has noticed the judgement of State of Maharashtra (supra) in the following terms;
"11. Mushroom growth of ill-equipped, understaffed and unrecognised educational institutions was noticed by this Court in State of Maharashtra v. Vikas Sahebrao Roundale. This Court observed that the field of education had become a fertile, perennial and profitable business with the least capital outlay in some States and that societies and individuals were establishing such institutions without complying with the statutory requirements. The unfortunate part is that despite repeated pronouncements of this Court over the past two decades deprecating the setting up of such institutions, the mushrooming of the colleges continues all over the country at times in complicity with the statutory authorities, who fail to check this process by effectively enforcing the provisions of the NCTE Act and the Regulations framed thereunder."
30. From the aforestated reasons, I am of the view that the impugned order passed by the State Government dated 08.06.2010 needs to be set aside. Accordingly it is set aside. The matter is remitted to the State Government to reconsider the matter after giving opportunity to the petitioner College as expeditiously as possible.
31. Thus the writ petition is allowed.
32. No order as to costs.
Order Date :- 21.4.2014 DS/-
Hon'ble Pradeep Kumar Singh Baghel,J.
The writ petition is allowed.
For order, see my order of the date passed on the separate sheets (nine pages).
Order Date :- 21.4.2014 DS/-