M. S. PARIKH, J. ( 1 ) THERE is on the one side the North Gujarat University and on the other side the Government. There is on one side Madresha Moinul Islam Kelvani Mandal and 389 on the other side Vishvamangalam Shardagram Kelvani Mandal. Sandwiched in between are the girl students whose prospects of getting college education are delayed on account of the rectangular rift amongst the aforesaid four parties. The prayers relate to grant of affiliation for Manila Colleges in Himatnagar and surrounding area. ( 2 ) AT the out-set it must be staled that all the learned advocates have more or less submitted that the ultimate fate of all these petitions would rest upon the interpretation of section 35 (5) of the North Gujarat University Act, 1986. ( 3 ) [ ] ( 4 ) NOW, therefore, the provisions of the Act, which have been referred to by the learned advocates for the rival parties may be examined. Section 4 deals with the powers of the university, which are subject to such conditions as may be prescribed by and under the provisions of the Act. Therefore, although there is no power of granting permission for affiliation in any of the clauses (1) to (43) thereof the powers are subject to such conditions as may be prescribed by or under the provisions of the Act. It is obvious that the powers of the University under clauses (1) to (43) of section 4 would be subject to section 35 of the Act, which deals with affiliation. As per definition clause in section 2 (1) "affiliated college" means a college affiliated under section 5 or 35 of the Act, whereas "recognised institution" would mean an institution recognised u/s. 37 of the Act vide clause (9) of section 2 of the Act. Section 11 deals with the powers of the vice-Chancellor. Chapter IV containing sections 15 to 29 lays down the prescribed authorities of the University and their respective powers and duties. Sections 19 and 20 deal with the executive council and its powers, whereas sections 21 and 22 deal with academic council and its powers and duties. Section 11 deals with the powers of the vice-Chancellor. Chapter IV containing sections 15 to 29 lays down the prescribed authorities of the University and their respective powers and duties. Sections 19 and 20 deal with the executive council and its powers, whereas sections 21 and 22 deal with academic council and its powers and duties. Accordingly clause (40) of section 20 dealing with the powers and duties of the executive council prescribes as under: (XI) to submit to the State Government proposals for conferment of autonomy on any affiliated college or a recognised institution or a University Department or a University college entitling it to privileges in the matters of admission of students, prescribing the courses of study, the holding and conduct of examinations and power to make necessary rules for the purpose; clause (41) deals with the power of the executive council to recommend to the State government withdrawal of autonomy so conferred. Similarly, clause (12) of section 21 deals with the powers of academic council and provides for the academic council to recommend to the executive council recognition of college or affiliation of any institution. Chapter VI deals with Affiliation, Recognition and Approval inter-alia of colleges and institutions. Section 35 (1) therein reads as under:35. Affiliation - (1) A college applying for an affiliation to the university shall send a letter of application to the Registrar, not later than 31st March of the year preceding the year in which the college is proposed to be started: provided that, on the recommendation of the Vice-Chancellor, the Executive council may, if it is satisfied that there are special reasons to do so, after recording such reasons, entertain a letter of application sent to the Registrar after 31st March. ( 5 ) NOW in so far as the petitioner as also the respondent No. 3 are concerned, they both submitted their applications on or before 31st March of the year preceding the year in which they proposed to start college. The respondent No. 3 application was prior to 31st march, 1991 for the proposed college to be commenced from 1992 even if 1990 application is not taken into consideration. The petitioners application was made on 31. 3. 1992 for the academic year commencing from June 1993. The respondent No. 3 application was prior to 31st march, 1991 for the proposed college to be commenced from 1992 even if 1990 application is not taken into consideration. The petitioners application was made on 31. 3. 1992 for the academic year commencing from June 1993. Therefore, in so far as the petitioner and respondent No. 3 are concerned no objection can be taken with regard to the date for submission of the application. Sub-section (2) of section 35 lays down various requirements for the college applying for an affiliation in order to satisfy the Executive Council and the Academic Council. Those requirements may be reproduced: (A) that the college will supply a need in the locality having regard to the type of education intended to be provided by the college, the existing provisions for the same type of education made by other colleges in neighbourhood and the suitability of the locality where the college is to be established, (B) that the college is to be under the management of regularly constituted governing body, (C) that the strength and the qualifications of the teaching staff and the conditions governing their tenure of office are such as to make due provision for the courses of instructions, teaching or training to be undertaken by the college, (D) that the buildings in which the college is or is to be located are suitable and that provision has been or shall be made, in conformity with the ordinances, for the residence in the college or in lodgings approved by the college, of students not residing with their parents or guardians, and for the supervision and welfare of the students, (E) that due provision is made or shall be made for a library, (F) that where affiliation is sought in any branch of experimental science, arrangements have been or shall be made in conformity with the Statutes, ordinances and Regulations for imparting instructions in that branch of science in a properly equipped laboratory or museam, (G) that due provision is made or shall be made as far as circumstances. may permit, for the residence of the Principal and other member of the teaching staff in or near the college or the place provided for the residence of the students, (H) that the financial resources of the college are such as to make due provisions for its continued maintenance and efficient working, (I) that the college rules fixing the fees (if any) to be paid by the students have not been so framed as to involve such competition with any existing college in the same neighbourhood as would be injurious to the interest of education; (J) that for recruitment of the Principal and members of the teaching staff of the college, there is a selection committee of the college, which shall include (i) in the case of recruitment of the Principal a representative of the university nominated by the Vice-Chancellor, and (ii) in the case of recruitment of a member of the teaching staff of the college, a representative of the University nominated by the vice-Chancellor and the Head of the Department, if any, concerned with the subject to be taught by such members:provided that nothing in this clause shall apply to a Government college, a college maintained by Government or a college established and administered by minority based on religion or language; (K) that the college shall comply with the Statutes, Ordinances and regulations providing for conditions of service including salary, scales and allowances of the teaching and other academic and non- academic staff of an affiliated college, not being a Government college or a college maintained by the Government; (1) such other conditions as may be specified in the Statutes in accordance with the provisions of this Act. "it is important to note that by virtue of sub-section (3) of section 35 the application is required to contain an assurance that after the college is affiliated, any transference of management and all changes in the teaching staff and all other changes which resulting in any of the requirements as aforesaid being not fulfilled or continued to be fulfilled should be forthwith reported to the Executive Council. Sub-section (4) of section 35 of the Act speaks of one more step for the Executive council to follow. Sub-section (4) of section 35 of the Act speaks of one more step for the Executive council to follow. Accordingly upon receipt of a letter of application the Executive council has to direct local inquiry to be made by (now what is known as local inquiry committee) a competent person or persons authorised by the Executive Council in respect of the aforesaid matters and such other matters as may be deemed necessary and relevant. The Executive Council has also to make such further inquiry as may have appeared to it to be necessary and also to give due consideration to the request, if any, made by the applicant for reconsideration of the application of any of the conditions conveyed to him. Clause (c) of sub-section (4) speaks of conveying of conditions with regard to grant of affiliation or with regard to objections against grant of affiliation. It is only when such conditions are conveyed, the applicant would be in a position to request for reconsideration. It is thereafter that once-again the Executive Council will be required to give consideration to such request. Clause (d) of this sub-section speaks of recording of opinion by the Executive Council after consulting the Academic Council with regard to the grant of affiliation or otherwise. Proviso deals with a situation where views of the academic Council are not acceptable by the Executive Council, in which case the executive Council shall be required to refer the matter once-again to the Academic council and in doing so it may set-out its comments or may not set-out its comments. The academic Council is then required to communicate again to Executive Council its views with regard to affiliation of the college. ( 6 ) ALL the aforesaid provisions of section 35 deal with the spade work which is required to be done at three levels- (1) at the level of the applicant, (2) at the level of the executive Council with the aid of local inquiry committee, and (3) at the level of the academic Council ultimating reverting to Executive Council. It may be noted that all these provisions do not speak of power of the Executive Council and/or of Academic council to grant permission for affiliation. It may be noted that all these provisions do not speak of power of the Executive Council and/or of Academic council to grant permission for affiliation. It is in this connection that submission is made or, behalf of the petitioner as also on behalf of the University that the aforesaid provisions contemplate satisfaction of the Executive Council and the Academic Council as aided by the local inquiry committee. It is further submitted that the application for affiliation is routed through and only through the process as contemplated by sub-sections (1), (2), (3) and (4 ). On a plain reading of the aforesaid provisions, the submissions merit acceptance. The net result is that the Government is not to consider any application directly made to it. The stage where the Government steps in or is required to step in, is subsequent to the completion of the aforesaid process and that can be seen from sub-section (5) of section 35 of the Act. It should also be noted that clauses (a) to (1) of sub-section (2) of section 35 speak of the compliance of the requirements at some future point of time obviously because granting of affiliation is also a matter of future, at that stage. This can be visualised in the usage of words is to be or shall be except in case of requisite finance for fulfilling the conditions. However, the applicant has to set-out how does it plan out to attend to all the conditions as reflected in clauses (a) to (1) within prescribed lime. Even this aspect is required to be borne in mind in the context of the facts of both these cases. However, the applicant has to set-out how does it plan out to attend to all the conditions as reflected in clauses (a) to (1) within prescribed lime. Even this aspect is required to be borne in mind in the context of the facts of both these cases. It may be added that if the applicant assuming some risk, takes some steps in advance, for example of processing appointment of Principal and teaching staff, having or arranging for construction of requisite building for the college, having or about to start for making provision for a library, having made or about to make for due provisions for the residence of Principal and other members of the teaching staff, having made or about to make an appointment of a selection committee of the college for appointing Principal and members of the teaching staff so as to include in the case of Principal a representative of the university nominated by the Vice-Chancellor and in the case of recruitment of a member of the teaching staff, a representative of the University nominated by the Vice-Chancellor and the Head of the Department concerned with the subject to be taught by such members and so on. However, there are two vital requirements to be borne in mind and they are with regard to the need of locality and the financial resources. In order that the conditions contained in clauses (a) to (1) are complied with or likely to be complied with, the executive Council is to apply its mind to all the aspects including the report of the local inquiry committee and it has to convey to the applicant the plus and minus points of the application in the context of the aforesaid requirements so that the applicant, if serious for starting of a college may have a chance of requesting the Executive Council for the application being reconsidered. ( 7 ) THUS, there is a noted spade work which is contemplated by the aforesaid provisions which precede sub-sections (5) and (6) of section 35 of the Act. It is now the right time to set-out what the legislature has said further with regard to the process of the aforesaid application. Sub-section (5) reads as under. ( 7 ) THUS, there is a noted spade work which is contemplated by the aforesaid provisions which precede sub-sections (5) and (6) of section 35 of the Act. It is now the right time to set-out what the legislature has said further with regard to the process of the aforesaid application. Sub-section (5) reads as under. Sub- section (6) being a provision linked with sub-section (5) may also be reproduced: (5) The Registrar shall submit the application and all proceedings, if any, of the Academic Council and the Executive Council relating thereto to the state Government which shall after such inquiry as may appear it to be necessary, grant or refuse the application or any part thereof. (6) Where the application or any part thereof is granted, the order of the State government shall specify the courses of the instructions-in respect of which the college is affiliated and where the application or any part thereof is refused, the grounds of such refusal shall be recorded. " the provisions reproduced above need not be repeated for what the provisions speak about, except to set-out the words which are required to be considered in the light of the submissions made on behalf of the respective parties. Such words are "shall after such inquiry as may appear it to be necessary, grant or refuse the application or any part thereof appearing in sub-section (5) and "where the application or any part thereof is granted, the order of the State Government shall specify the courses of the instructions in respect of which the college is affiliated" and the words "where the application or any part thereof is refused, the grounds of such refusal shall be recorded. "taking the refusal part of the provision noted above first for consideration, it should at-once be noticed that where the order of refusal is passed, the grounds of such refusal have to be recorded. Thus, the provision plainly speaks of recording of grounds for refusal. It is with regard to the interpretation of the provision in respect of refusal of permission to grant affiliation, reference may be made to the decision of this Court rendered on March 18-20, 1972 (Coram: B. J. Diwan, J. as he then was) in Special Civil application Nos. 100 of 1972 and 420 of 1972. It is with regard to the interpretation of the provision in respect of refusal of permission to grant affiliation, reference may be made to the decision of this Court rendered on March 18-20, 1972 (Coram: B. J. Diwan, J. as he then was) in Special Civil application Nos. 100 of 1972 and 420 of 1972. There, the relevant provisions which were for consideration by the Court were contained in section 33 of the Gujarat University Act, 1949, as one which was applicable at that relevant point of time. Section 33 has been reproduced at internal page 9 of the judgment and the same may be reproduced for the purpose of comparison:"33. (1) xxx xxx xxx (2) xxx xxx xxx (3) The Registrar shall submit the application and all proceedings, if any, of the Academic Council, the Syndicate and the Senate relating thereto to the State Government which, after such inquiry as may appear to it to be necessary, shall grant or refuse the application or any part thereof. (4) Where the application or any part thereof is granted, the order of the state Government shall specify the courses of instruction in respect of which the college is affiliated, and, where the application or any part thereof is refused, the grounds of such refusal shall be stated. "the controversy there was with regard to the interpretation of sub-sections (3) and (4) of section 33. The Court held that in view of the scheme of the provisions of section 33 of the aforesaid Act, the contention that the Senate did not have any power to make recommendation to Government regarding affiliation was found not acceptable and that contention was rejected holding that the Senate had a very important function to perform in considering the application for affiliation for a college and that function is to consider the report of Senate made in consultation with the Academic Council. However, this is a little besides the point in so far as the interpretation of refusal part of sub-sections (5) and (6) of section 35 of the Act is concerned, but then that assumes importance in interpreting both the provisions. However, this is a little besides the point in so far as the interpretation of refusal part of sub-sections (5) and (6) of section 35 of the Act is concerned, but then that assumes importance in interpreting both the provisions. Dealing with setting-out of the grounds for refusal this court in the above case held as under:"it is well settled law by now that, where a particular authority is required to set out its reasons for passing a particular order and such grounds are not stated on the face of the order, the authority may, in proceedings challenging such order, point out the grounds on which such order was passed by affidavits filed in the mailer and the Courts will take into consideration such grounds as appear from the affidavit, even though the statutory requirements of the grounds having to be staled in the order arc not strictly complied with. "now the above staled scaled position of law has undergone a change and where statute requires reasons to be recorded or grounds to be stated while passing a particular order, the order itself must set-out such grounds so that there would not be any tendency in future to have a divergence from that. Reference is to be made to a decision of the constitution Bench of the Honble Supreme Court in the case of Mohinder Singh Gill and anr. vs. The Chief Election Commissioner, New Delhi and Ors. , reported in AIR 1978 s. C. p. 851. Head note A reads as under:"when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. "it is, therefore, clear that when refusal is ordered, the order has to contain the grounds of refusal so as to enable the visitant of the order (applicant) to know the grounds of refusal. It is no doubt true that in so far as the respondent no. "it is, therefore, clear that when refusal is ordered, the order has to contain the grounds of refusal so as to enable the visitant of the order (applicant) to know the grounds of refusal. It is no doubt true that in so far as the respondent no. 3s application is concerned, the same came to be considered and permission in respect of affiliation was granted and for that matter the aforesaid provisions contained in sub-sections (5) and (6) do not speak of any ground to be stated or recorded for grant of permission for affiliation. ( 8 ) TAKING then the grant of permission by the Slate Government by virtue of provisions contained in sub-sctions (5) and (6), the same can be divided into two contingencies: (1) that the Executive Council with or without the concurrence of academic Council recommends grant of affiliation, and (2) where recommendation of grant is not made that is to say opinion for grant of affiliation to the applicants proposed college is in the negative. Now in both the aforesaid contingencies sub- sections (5) and (6) speak of power of the State Government to grant the application without stating grounds or reasons for such grant. However, even for granting permission for affiliation in either of the cases of contingencies noted above, the State Government has to apply its mind and the provision is not silent about the application of mind by the State government while it speaks for making of such inquiry "as may appear to the government to be necessary". It is obvious that the inquiry is to be made only when the mind is applied to the papers alongwith opinion/s of the Executive Council and the academic Council. It has to be seen whether granting of permission for affiliation to the respondent no. 3 by the Stale Government is upon application of mind. However, on a plain reading of the aforesaid two provisions what the State Government is required to do is to pass an order of granting permission for affiliation and passing of such an order is to be after making such inquiry as might have appeared to it necessary. The provisions do not require grounds or reasons to be slated in the order of grant of affiliation. The provisions do not require grounds or reasons to be slated in the order of grant of affiliation. It is submitted on behalf of the petitioner that if the authorities of the University as aforesaid, have not recommended grant of affiliation, reasons are required to be stated by the Government. This submission, if accepted, would run counter to the provision of sub-sec. (5) read wtlh sub-sec. (6) of Sec. 35 of the Act. When the legislature has provided for in clear words different approaches for grant and refusal of permission the acceptance of submission would lead lo rewriting of the said provisions, which cannot be done. It has, however, to be found that where the Government differs from the authorities of the universities in the matter of grant of permission for affiliation, in that case where the university authorities do not recommend affiliation and the Government opts to grant permission for affiliation, the Government has to make some inquiry depending upon the facts and circumstances of the concerned applicants and upon material available or material made available in respect of the concerned applicants. ( 9 ) NOW in so far as the respondent no. 3s application for permission is concerned what is the stand of the Government may be seen from the affidavit-in-reply (p. 74 onwards) and Annexure-A to it (p. 79 ). Inspitc of the fact that Government did not receive all the papers concerning the respondent no. 3s application for affiliation the Government took into consideration the fact that the management of respondent no. 3 purchased land admeasuring 10598 sq. mtrs. , and made interim arrangement to start college in the first and second floor of the building of Aadarsh Vidhyalaya after obtaining necessary permission from the District Education Officer. It was also considered that the management raised funds of Rupees Eight lacs as shown in the bank balance. Necessary strength of students was also found available. It may at once be noted that there is no manila College at all in the whole of the area and if minority institution of petitioner was found by the University authorities likely to have required strength of girl students, the other majority community would definitely have had required strength of girl students in the area when the whole area does not have any ladies/girls college. It is thus clear that the decision of the Government in according permission for affiliation is based on relevant factors and the stand of the Government that the decision was taken after inquiry and upon consideration of the material placed by the respondent no. 3 before the government cannot be doubted. Going back to the reports of local inquiry committees and recommendation of the University authorities would amount to unwarrantedly launching fishing inquiry into the correctness or otherwise of the decision of the government, which exercise is not permissible on a plain reading of the provisions of sec. 35 (5) and (6) of the Act quoted above. ( 10 ) ( 11 ) the authorities of the University are required to follow the procedure set-out in sub-sec. (7) of Sec. 35 which reads as under: as soon as possible after the State Government makes its order, the Registrar shall submit to the Executive Council and the Academic Council a full report regarding the application, the action taken thereon under sub-sections (4) to (6) and of all proceedings connected therewith. it can thus be seen that the procedure set-out in aforesaid sub-sec, is meant for the necessary follow up in the matter of affiliation. The nature of the powers and duties of the authorities of the University in the context of affiliation as provided in sub-sees. (1) to (4) of Sec. 35 is quite recommendatory and when the Government takes action upon reports and the relevant papers submitted to the Government under sub-sec. (4) and passes appropriate orders, the University has to act with speed under above quoted sub-sec. (7 ). The reason is that on the one hand applicant would be commencing the functioning of the college as per the order of permission for affiliation and on the other hand required standards as per the conditions laid down in affiliation would be required to be complied with by follow up action. The fale of the students is irretrievably connected with such follow up. .