Heard learned counsel for the petitioner.
The entire issue and controversy was qua refusal to issue 'No Objection Certificates' for changing names of two institutions run by the petitioner-trust which is required to be submitted to All India Council for Technical Education on or before 15.01.2012, as submitted by learned counsel for the petitioner. The reasoning for no objection has not come forward in any manner hence as the time was short a request was made for taking up the matter out of turn and the learned AGP also could not object to such a request and hence the matter is taken up for final disposal. Hence, Rule. Ms Arcana Raval, learned AGP waives service of Rule on behalf of the respondent. Rule is fixed forthwith.
The petitioner, a public trust has approached this Court under Article 226 of the Constitution of India, challenging the order dated 16.08.2011, containing decision of the State rejecting the request of the petitioner for issuance of No Objection Certificates to the petitioner-trust, required for changing the names of two institutions/colleges run by it and to be submitted to All India Council for Technical Education.
The facts in brief, as could be culled out from the memo of petition deserve to be set out as under;
The petitioner-trust is engaged in running educational institutions and as many as 9 educational institutions are run by in the similar name beginning with 'Parul Institute'. The list of 9 such institutes are mentioned on page no.17, Annexure-B. The petitioner-trust is running two colleges namely Dr. J.K.Patel Institute of Management and Baroda College of Pharamacy. These two institutions were decided to be run in the name of Parul Institute of Management and Research and Parul Institute of Pharmacy & Research respectively and hence the requisite procedure was undertaken and as per the requirement of All India Council for Technical Education, the No Objection Certificate from the University/Board and governing body to which the concerned college is affiliated, is required to be produced. Accordingly, the affiliating body i.e. Gujarat Technological University issued two certificates of No Objection in respect of these two institutions for changing their names, as requested. However, the State declined to issue such certificates, as could be seen from the communication dated 16.08.2011, as the reasons for change in name were not found to be appropriate by the concerned authority.
Being aggrieved and dissatisfied with the said communication, the petitioner had to request the concerned authority by resorting to the provision of Right To Information Act, 2005 and obtained specific information with regard to the prevalent policy on this behalf and any incidents in which such a request, is declined, the information made available to the petitioner are produced on record which go to show that the State has not formulated any policy and/or regulations and rules or even procedure for processing and/or considering such a request nor has the State in past rejected any such request for change of names requested on behalf of other institutions. The petitioner, therefore was constrained to file this petition, as stated hereinabove.
Learned counsel for the petitioner has vehemently contended that the inaction on the part of the State is per se illegal and required to be depreciated. The requirement of issuance of No Objection Certificates from the State is in fact a duty cast upon the State and not the power which has been misunderstood by the State while rejecting the application. The power to examine the request is in fact power coupled with duty to act in accordance with law. When the State has admitted under the information given to the petitioner under the Right To Information Act that there exists no policy, no rules and regulations guiding consideration of such request, then the State could not have rejected the application without any reason. The application was made on 23.07.2011 and the last date for submitting such document for approval with all documentary evidence, as stated by the counsel, is 15.01.2012. Therefore, if appropriate orders are not issued, then at least for this year the application will become infructuous and petitioner will have to continue with the same name that would amount to frustrate the petitioner for no rhyme or reason on the part of the State.
Learned AGP appearing for the respondent could not point out any cogent reason for declining the request for issuance of No Objection Certificate. No reply affidavit is filed controverting the contentions made in the memo of the petition in absence of any reply affidavit and in absence of any cogent reason for not granting No Objection Certificate, the petition is required to be allowed.
The Court is of the considered view that the order dated 16.08.2011 is an order in which the concerned authority has indicated that the request for change in names is not accepted. It is not possible to appreciate as to how and in what way the power is perceived by the concerned signatory of the order while declining the request for No Objection, thought the signatory is Section Officer only but it goes without saying that in given business of rules prevalent in the State, Section Officer is not the authority and he must have obtained orders on file from the concerned. Therefore, it is required to be noted that the perception of the concerned is palpably wrong and is rather affecting valuable right of the petitioner to carry the institution in the name it likes. The requirement of issuance of No Objection is not to be equated with assumption of adjudicatory role to decide as to whether X, Y, or Z names is proper or not. The requirement of No Objection is in order to enable the concerned State to express, if it has genuine objection qua change in name proposed. In the instant case, on the face of it, the communication indicates that the authority has assumed the role of deciding whether the name proposed is proper or not, i.e. unfortunately not the role to be assumed by the State authority, so far as change of names is concerned.
That brings the Court to consider as to whether the authority was justified in declining issuance of No Objection Certificates. The process of considering a request for issuance of No Objection is to be attended with sense of responsibility and if in case, such a request is required to be rejected, then the cogent and valid objections for not issuing certificates are to be furnished to the concerned trust and/or institution requesting such issuance. Not indicating reasons amount to indicating that there exists no reason for declining the request. When there exists no reason, the State could not have dragged the petitioner to such an extent that he has to take recourse of the provision of Right To Information Act for probing and inviting reasons from the State. Unfortunately, in the instant case for the reasons best known to the authority, it has remain silent and not furnish any reason whatsoever for declining the request for no objection.
The conduct of the concerned authority, in my view betrays everything but application of mind while considering the request for issuance of No Objection Certificated. The non application of mind without any rhyme and reason leads to one and the only conclusion of arbitrariness violating provision of Article 14 of the Constitution of India.
The State Government could not have possibly any objection to change of names suggested and submitted by the petitioner. Had there been any cogent reason for not acceding to the request, then it would have been spelt out unequivocally in the order communicated to the petitioner. Assuming for the sake of examining that the State and authority missed it, then also when this Court is called upon the authorities by way of notice, nothing prevented the authorities from coming forward by way of affidavit in reply indicating cogent reasons as to why No Objection Certificates are not issued.
At this stage, learned AGP tendered one page instructions in parawise remarks and contended that in view of this the reasoning is reflected in para nos. 2-9 and the same may be taken on record. The Court has taken one page instructions on record. The instructions as mentioned in para2-9 are required to be produced as under:
"Normally when some one give huge amount of donations to trust, his/her name is incorporated on receiving suitable application from relevant trust running educational institutes.
Here the Petitioners claim such word "Parul" as brand name and requested to change the name of institute which is not acceptable."
This instruction, cited hereinabove clearly discloses unreasonable stand taken by the State for rejecting the request for issuance of No Objection. The State could have only seen whether the institution coming forward before the State with request for receiving No Objection, has backing of the trust and whether the requisite resolution is passed. Once the resolution is passed, then the objection, if any, could be anything but not the one which is mentioned in the instruction. The parawise comments of the instructions indicates non application of mind or rather an attempt to assuming the role and power which is not there in the authority at all for declining the issuance of No Objection Certificates. The issuance of No Objection Certificates is a process, which as stated hereinabove is required to be reasonable and the objections are open to judicial scrutiny and when the objections, if any taken by the State are not meriting even consideration on the touch stone of reasonableness, then outrightly the petition is required to be allowed.
The Court is aware that ordinarily in a writ petition under Article 226 of the Constitution of India, the parties are to be relegated to the authority with appropriate direction so that authority may thereafter act in accordance with the observation made by this Court. In the instant case, I am of the considered view that the concerned authority has abandoned his duty for absolutely extraneous reasons and therefore, this is the case wherein the Court is constrained to issue directions straightway to the authority for issuing No Objection Certificates, or else it will amount to giving premium to their unlawful act, so as to frustrate the application of the trust for seeking change in the name. Hence, bearing in mind the peculiar facts constrained to conclude as under:
(i) The petition is allowed.
(ii) The State has not pointed out any cogent objection justifying its action of rejecting request for issuance of No Objection Certificate. The instructions contain in the parawise remarks also do not disclose any tenable reason on which the State could have decline issuance of No Objection to the petitioner In view of this, the Court is inclined to issue following direction. Hence the respondent is directed to issue.
(iii) The respondent is directed to issue No Objection Certificates forthwith, so as to see to it that the petitioner may submit the same to the concerned authority by 15.01.2012. That way the No Objection Certificates are required to be issued latest by 3:00 P.M. on 13.01.2012.
At this stage, learned Assistant Government Pleader requested for staying of the order, which is rejected for the reasons stated hereinabove, as the urgency is made out by the petitioner. Hence, the request is rejected.
Rule made absolute to the aforesaid extent.
Direct service today, is permitted.
(S.R.BRAHMBHATT, J.) Pankaj Top