Bombay High Court
Dr. Keshav Baliram Hedgewar Paryayi ... vs Dr. Tatyarao P. Lahane, Director, Maha. ... on 24 April, 2025
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2025:BHC-NAG:4479-DB
1 901-J-1476-2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION No. 1476 OF 2021
PETITIONER : Dr. Keshav Baliram Hedgewar Paryayi
Shiksha Mandal, Samta Nagar,
Wardha, Tq. & Distt. Wardha,
through its Main Trustee
Amol Ajay Shrivastav
Vs.
RESPONDENTS : 1. The State of Maharashtra,
Through Principal Secretary,
Medical Education and Drugs
th
Department, 9 Floor, G.T. Hospital
Sankul, Lokmanya Tilak Marg,
Mumbai - 440001
2. The Maharashtra State Board of
Nursing and Para Medical Education,
through its Registrar, 4th Floor, St.
George's Hospital Compound, P.
D'Melo Road, Near CSMT, Mumbai -
440001,
Email : [email protected]
3. Shalom Nursing School (Ashray Gram
Vikas Sanstha) through its Principal
Vrushali Maiskar, Wardha
WITH
WRIT PETITION No. 5477 OF 2021
2 901-J-1476-2021.odt
PETITIONER : Dr. Keshav Baliram Hedgewar Paryayi
Shiksha Mandal, Samta Nagar,
Wardha, Tq. & Distt. Wardha,
through its Main Trustee
Amol Ajay Shrivastav
Vs.
RESPONDENTS : 1. The State of Maharashtra,
Through Principal Secretary,
Medical Education and Drugs
th
Department, 9 Floor, G.T. Hospital
Sankul, Lokmanya Tilak Marg,
Mumbai - 440001
2. The Maharashtra State Board of
Nursing and Para Medical Education,
through its Registrar, 4th Floor, St.
George's Hospital Compound, P.
D'Melo Road, Near CSMT, Mumbai -
440001,
Email : [email protected]
3. Shalom Nursing School (Ashray Gram
Vikas Sanstha) through its Principal
Vrushali Maiskar, Wardha
Mr. Amit Choube, Advocate for petitioner.
Mr. Akshay Naik Senior Advocate with Ms.Kalyani Marpakwar,
Assistant Government Pleader for respondent No.1.
Mr. T.S. Kene, Advocate for respondent No.2.
Mr. Madhur Deo, Advocate for respondent No.3.
Mr. V.A. Dahiwale, Advocate for Intervenor
CORAM :AVINASH G. GHAROTE, AND
ABHAY J. MANTRI, JJ.
DATE : 24/04/2025
ORAL JUDGMENT (Per : AVINASH G. GHAROTE, J.)
3 901-J-1476-2021.odt 1. Heard. 2. Rule. Rule made returnable forthwith.
Heard Mr. Amit Choube, learned counsel for the petitioner, Mr.Naik, Senior Counsel with Ms.Kalyani Marpakwar Assistant Government Pleader for respondent No.1, Mr. Kene learned counsel for respondent No.2. Mr.Madhur Deo, learned counsel for respondent No.3.
3. The petitioner is an institution, which had applied for starting a new General Nursing and Midwifery Course (GNM Course for short hereinafter) on account of which it had made an application on 28/08/2018 to the respondent No.2 Board for grant of permission to start the aforesaid course at Wardha. The perspective plan for the year 2018-2023 (page 62) had approved, the requirement of starting new GNM Course College at Wardha on account of deficiency in respect of the same and the area being a backward area (page
64). The Board/respondent No.2 upon receipt of the application was required to conduct an inspection, however, as inspection of the petitioner institution, was not done, the petitioner preferred Writ Petition 4 901-J-1476-2021.odt No.6327/2019 before this Court in which by an order dated 16/09/2019 a direction was issued to respondent No.2 to conduct inspection and submit a report to this Court. After receipt of the report this Court disposed off Writ Petition No.6327/2019 by directing respondent No.2 to forward a proposal together with the inspection report to the respondent No.1, who was also directed to decide the proposal on or before 31/10/2019. On 31/12/2019, the respondent No.1 conducted scrutiny of the proposal and rejected it leading to the petitioner filing Writ Petition No.110/2020 before this Court in which by judgment dated 23/09/2020 the order of rejection dated 31/12/2019 came to be quashed and matter was remitted back to the respondents, to consider the proposal of the petitioner, to start GNM Course from the year 2020-2021 on its own merits. The petitioner was expecting completion of the entire process before start of the academic year 2020-2021, however, it received communication dated 12/01/2021 (page 105) from the respondent No.2 intimating to the petitioner that an inspection was to be carried out by the petitioner institution to evaluate its eligibility. The 5 901-J-1476-2021.odt petitioner by its communication dated 31/01/2021 (page 107) intimated the respondent No.2 that the entire process in terms of Section 28 including the inspection was already completed and requested the respondent No.2 to withdraw the aforesaid communication dated 12/01/2021, which having not been done, Contempt Petition No.35/2021 came to be filed in which a statement was made by the counsel appearing for the Board that the decision in the matter would be taken by the Board within a week. By the communication dated 17/03/2021 (page 111), the respondent No.2, intimated to the petitioner, that the proposal of the petitioner to start GNM Course at Wardha from 2020-2021 had been recommended and forwarded to the State on 01/03/2021 and the same was pending before the State and unless the same is sanctioned, the Board could not issue any affiliation to the petitioner institution.
4. By the impugned communication dated 18/03/2021 (page 112) the respondent No.1 intimated the petitioner, to deposit an amount of Rs.5 Lakh as scrutiny fee (Chhanani Shulk). It is this communication 6 901-J-1476-2021.odt dated 18/03/2021 which is being questioned in the present petition. Challenge is also raised to the GR dated 26/10/2017 and 13/07/2018, being ultra vires to the constitution and contrary to the provisions of the Maharashtra State Board of Nursing and Paramedical Education Act, 2013.
5. Mr. Amit Choube, learned counsel for the petitioner submits that there is no mandate in the State, to demand any scrutiny fee for any inspection or for that matter to conduct any inspection at all. In this Context he invites our attention to Section 28 of the Maharashtra State Board of Nursing and Paramedical Education Act, 2013 (MS Nursing Act, 2013 for short hereinafter), to contend that the Scheme of the said provision which prescribes the procedure for permission to start a new Nursing and Paramedical Institution, provides for inspection to be conducted by the Board U/s.28(3) and after such inspection, make a recommendation to the State, who if it is satisfied that such institution, needs to be granted permission, shall grant permission. He further relies upon the language of Section 28(5) of the aforesaid Act of 2013 to contend 7 901-J-1476-2021.odt that the power of the State Government is to consider the application recommended by the Board and grant permission to such institution as it may consider right and proper, taking into account (i) the Government's budgetary resources (ii) the suitability of the management seeking permission to open new institution and (iii) the State level priorities with regard to locations of institutions for Nursing and Paramedical Education. He therefore, submits that Section 28 in its totality, does not permit or grant any right to the State, upon receipt of the recommendations from the Board u/s.28(3), to conduct an independent inspection and levy fee for such inspection and therefore, the impugned communication which demands an amount of Rs.5 Lakh as scrutiny fee, cannot be justified, in absence of power to inspect. He further submits that if the demand in the impugned communication, is construed to mean scrutiny fee for the purpose of scrutinizing the recommendation made by the respondent No.2, Board and not any inspection, even then the amount of Rs.5 Lakh for scrutiny of the proposal received from the Board is exorbitant and has 8 901-J-1476-2021.odt no nexus to the grant of permission. He also submits that the application made by an institution u/s.28(2) is in turn scrutinized by the Board/ respondent No.2, during which inspection is carried out for physical verification of the premises of the institution and the facilities available, so as to satisfy the Board, regarding the existence of necessary requirements, for making recommendation for which the fee chargeable is of Rs.25000/- He therefore, submits that there is no warrant in the State to levy a fee of Rs.5 Lakh for the purpose of scrutiny of the recommendation made by the Board in terms of Section 28(4), in terms of the language of Section 28(5) on which ground also the impugned communication cannot be sustained. He submits that any fee cannot be imposed by the respondent No.1 without any legislative sanction to the same for which learned counsel places reliance upon Commissioner of Income Tax, Udaipur, Rajasthan vs. Mcdowell and Company (2009) 10 SCC 755 (para 21). Reliance is also placed by him upon Temple of Hahnemann Homeopathic Medical College and Hospital vs. Union of India (2018) 17 SCC 753 and 9 901-J-1476-2021.odt specifically paras 17 to 20, to contend, that unless a power exists in the State by way of a legislative mandate, it would be impermissible for it to abrogate to itself such power. Reliance is also placed on Ahmedabad Urban Development Authority vs. Sharadkumar Jayantikumar Pasawalla (1993) 2 SCC 285 paras 7 and 8, to contend that if there is compulsory exaction of money, there should be specific provision for the same and there is no room for intendment. He further relies upon Social Society, Morba vs. Principal Secretary, Higher and Technical Education Department, Mumbai and others 2011 (4) Mh.L.J. 316 paras 15 to 17, to contend, that since there was no financial assistance from the State, the question of obtaining prior permission of the State would not arise. He further submits, that on account of the aforesaid contention, the GRs dated 26/10/2017 and 13/07/2018, would be without any legislative mandate in absence of which, they cannot be sustained and are therefore, required to be quashed and set aside.
6. Mr.Amit Choube, learned counsel for the petitioner, submits, that since the students with the 10 901-J-1476-2021.odt petitioner-institution have been granted admission and permission to appear in the GNM course by the orders dated 25/03/2021 and 20/06/2022 and have appeared in the examination in pursuance thereto, their interest needs to be protected and even presuming, that the petitioner institution, does not have any permission, however, since the respondent No.3, which institution already has permission and has expressed willingness to accommodate the students belonging to the petitioner institution, the same be directed so that the career of the students is not marred. He submits, that the amount of Rs.5,00,000/- deposited in this Court by the petitioner institution in pursuance to the order dated 25/03/2021, in case, it is found, that the same was not chargeable by the State, could be appropriated as costs.
7. Mr. Akshay Naik, learned senior counsel for the respondent No.1 contends, that the requirement of inspection and charging of fees for such inspection, considering the nature of the permission sought in terms of section 28 (5) of the Act of 2013, will have to be held to be inbuilt in the aforesaid provision, considering the statutory scheme under the Act. He 11 901-J-1476-2021.odt further invites our attention to section 23 of the Act of 2013, which relates to the powers and duties of the Governing Council and Board and specifically to clauses
(b) and (i) therein, to contend, that the same would indicate power to conduct an inspection and for that purpose levy of fee. Reliance is also placed upon section 24, the powers and duties of the Board, specifically to clause 24(1)(w) therein, which empowers the State to make regulations for granting affiliation, accreditation, equivalence, eligibility to institutions and reviving or revoking affiliation, accreditation, equivalence, eligibility, to contend, that the State has power to frame regulations in this regard. Reliance is also placed on section 26(1), which empowers the State to issue directions to the Board in this regard. He further relies upon section 41(1), which empowers the Government to cause inspection to be made of the institutions affiliated and accredited to the Board, which according to him, would indicate, that even for the purpose of granting permission under section 28(5), it would be permissible for the Government to conduct an inspection. Further relying upon the language of section 12 901-J-1476-2021.odt 28(5), he submits, that for the purpose of ascertaining the suitability of the management seeking permission to open new institutions, it would be necessary to cause an inspection to be made of the institution, in view of which, the requirement will have to be held to be inbuilt in the said provision. He further invites our attention to the GR dated 26/10/2017 (Pg.114), to contend, that the fees for inspection, as indicated therein, is not only reasonable, but necessary for the purpose of effectively implementing the legislative mandate flowing from section 28(5) of the Act of 2013. Further, by relying upon the GR dated 13/07/2018 (Pg.124-A) and specifically Part-I, clause (ii), which is in reference to section 28 of the Act of 2013, it is contended, that the same would also buttress the aforesaid argument. He, therefore, submits, that the challenge as laid in the present petition, to the aforesaid GRs and so also to the impugned communication, asking for Rs.5,00,000/- as scrutiny fee needs to be rejected. Mr.Naik, learned senior counsel relies upon V. N.Public Health and Education Trust v. State of Kerala, (2021) 17 SCC 189 and specifically paras 24 and 25, to 13 901-J-1476-2021.odt contend, that when it is for the State to grant permission, considering the merit factor involved, it would be necessary for the State to conduct an independent inspection, so as to satisfy itself, as to the existence of the necessary parameters for the purpose of grant of permission.
8. Mr.Kene, leaned counsel for the respondent No.2, submits, that being a Board, it is bound by the aforesaid GRs dated 26/10/2017 and 13/07/2018 and therefore, cannot have any say in that regard. He, however, submits, that the Board has performed its functions in terms of section 28(3) of the Act of 2013 by recommending the case of the petitioner institution after having done an inspection, and being satisfied regarding the compliance with the requirements in that regard. He vehemently objects, to the transfer of the students, from the petitioner institution to the respondent No.3 on the ground, that same is not permissible and the admission of these students was prior to the interim order dated 25/03/2021, by which, protection was granted to them, as a result of which, they appeared in the examination.
14 901-J-1476-2021.odt
9. Mr.Madhur Deo, learned counsel for the respondent No.3, submits, that the respondent No.3 institution has sufficient intake capacity available as of date, for accommodating the students of the petitioner institution, in case, the Board is willing to do so.
10. The entire issue depends upon the language of Section 28 of the Act of 2013, which for the sake of ready reference is reproduced as under :
"28. (1) The Board shall grant permission to start new nursing and Paramedical Institution by observing the standards laid down under the Indian Nursing Act, 1947 and the directions issued by the Central Government regarding Paramedical Education as per the provisions specified under this section.
(2) The management seeking permission to open a new institution shall apply in the prescribed form to the Member-Secretary of the Board before the last day of the year preceding the year for which the permission is sought.
(3) The Board shall conduct an inspection after receipt of payment of inspection fee within prescribed time and submit its report to the State Government.
(4) All such applications received within the aforesaid prescribed time-limit shall be scrutinized by the Board and be forwarded to the Government on or before the last day of December of the year.
(5) Out of the applications recommended by the Board, the Government may grant permission to such institutions as it may consider right and proper in its absolute discretion, taking into account the Government's budgetary resources, the suitability of the managements seeking permission to open new institutions and the State level priorities with regard 15 901-J-1476-2021.odt to location of institutions for Nursing and Paramedical Education :
Provided that, in exceptional cases and for the reasons to be recorded in writing, any application not recommended by the Board may be approved by the Government for starting a new institution of Nursing and Paramedical Education.
(6) No application shall be entertained directly through the Government for the grant of permission for opening new institution of Nursing and Paramedical Education."
Section 28(1) of the Act of 2013, empowers the Board, to grant permission to start a new Nursing and Paramedical Institution, which has to be done by the Board by ensuring, that the standards laid down under the Indian Nursing Act, 1947 and directions issued by the Central Government regarding paramedical education and so also statutory provision under Section 28 of the Act of 2013 are satisfied. In terms of Section 28(2) of the Act of 2013, an application for opening a new Institution has to be made in the prescribed form to the Member Secretary of the Board before the last day of the year, preceding the year on which permission is sought. In terms of Subsection 3 of Section 28 of the Act of 2013, the Board after receipt of such application and deposit of Rs.25,000/-, which is a fee to be paid to the Board for 16 901-J-1476-2021.odt the purpose of inspection, conducts an inspection and thereafter submits a report to the State in this regard. It is trite, that while conducting such inspection it is necessary for the Board to verify the existence of the facilities and requirements from time to time prescribed for the purpose of grant of education in the stream of Nursing and Midwifery and to satisfy itself regarding such requirement, only upon which it is permissible for the Board to make a recommendation to the State. In terms of Section 28(4) of the Act of 2013, all applications received by the Board are to be scrutinized and forwarded to the State before the last day of December of the said year. The role of the State, is then spelt out in Section 28(5) of the Act of 2013, where out of the applications recommended by the Board, the State may grant permission to such Institutions as it may consider right and proper, in its absolute discretion, taking into account (a) The Government's budgetary resources, (b) The suitability of management seeking permission to open new Institutions and (c) The State level priorities with regard to the locations of the Institutions for Nursing and Paramedical Education. By 17 901-J-1476-2021.odt and large, the reading of the aforesaid provision, would indicate, that it does not permit any independent inspection, to be carried out by the State, while considering the recommendation sent to it by the Board for grant of permission. In fact, the Section appears to be poorly worded inasmuch as though Section 28(1) of the Act of 2013 states, that the Board shall grant permission, subsections 4 and 5 of Section 28 of the Act of 2013, requires such applications to be sent to the State with the recommendations of the Board and therefore, there appears to be a dichotomy, between the provisions of Section 28(1) and Sections 28(4) and (5) of the Act of 2013. Be that as it may, a reading of the language of Section 28(5) of the Act of 2013, would indicate, that no independent right of inspection is conferred upon the Board by the said statutory provision. The contention of Mr. Akshay Naik, learned Senior Counsel for the petitioner, that such a requirement has to be read in built, in the language of Section 28(5) of the Act of 2013, considering the nature of permission, which is required to be granted, will have to be considered in the light of what the State is 18 901-J-1476-2021.odt enjoined to do in terms of Section 28(5) of the Act of 2013. As indicated above, Section 28(5) of the Act of 2013, requires the State to consider the recommendations made by the Board, in the light of the following factors, namely :
(a) The Government's budgetary resources,
(b) The suitability of management seeking permission to open new Institutions and
(c) The State level priorities with regard to the locations of the Institutions for Nursing and Paramedical Education.
11. Insofar as factor (a) is concerned, it is an admitted position, that the State, does not provide any aid to the Institution, which applies for starting Nursing and Paramedical Institution, and in that sense of the matter, such Institution would be a self-funded Institution, without receiving any grant, or aid from the State of any nature. Though Mr. Kene, learned counsel for the respondent No.2 submits, that the State is reimbursing fees in respect of the admissions granted in such Institutions to the students belonging to the backward communities, however, that cannot be termed as an aid to the Institution, for the reason, that the 19 901-J-1476-2021.odt reimbursement of the fees is relatable to the policy of the State for promoting grant of education to persons belonging to backward communities. In that view of the matter, factor (a), therefore, would become redundant as no aid is being provided by the State to such Institutions.
12. Insofar as factor (c) is concerned, the perspective plan, which is prepared, for determining the locations in the State, where there is a necessity to open Nursing and Paramedical Institutions, in terms of Section 23(b) of the Act, 2013, already stands approved by the Governing Council of the respondent No.2 and therefore, the State would be bound by the same. In the instant case, it is not an issue, that the place at which the petitioner - Institution had applied for and was recommended for grant of permission, was included in the perspective plan. This is also indicated by the perspective plan, which is placed on record (page Nos.62 to 64), which at Sr. No. 26, indicates requirement of a Nursing and Paramedical Education College, to be opened at Wardha, on account of College deficiency in the backward areas (Page 64). The 20 901-J-1476-2021.odt perspective plan would be binding upon the State and therefore, the requirement of factor (c) also stands satisfied in view of the same.
13. Insofar as factor (b) is concerned, the inspection made by the Board, has to consider the norms prescribed in that regard for opening new Nursing and Paramedical Education Institute and it is only upon being satisfied, that they are in existence, that any recommendation, can be made by the Board. Therefore, to satisfy itself, regarding this factor, all that the State is to do, is to consider the recommendation of the Board and in case, it is not satisfied with such recommendation, to reject the application. It would, therefore, be apparent that for the purpose of exercising the powers under Section 28(5) of the Act of 2013, there is no requirement or necessity for the State, to carry out any independent inspection at all, which is the reason why, the statutory provisions as contained in the Act of 2013 therein, do not specifically provide for the same. It is trite law, that words in the Statute, have to be read in a context, in which they convey a meaning by a plain reading of the same and doing so, would 21 901-J-1476-2021.odt indicate, that no power of independent inspection has been conferred upon the State while considering an application under Section 25(5) of the Act of 2013.
14. Though Section 23(i) is being relied upon by Mr. Naik, learned Senior Counsel appearing for the respondent No.1 / State in support of the above contention, however, Section 23(i) of the Act of 2013 merely empowers the Governing Council, to recommend to the Government to conduct an enquiry in respect of the matter concerning the proper conduct, working and finance of the Institution under the Board. This is a position, post the grant of permission under Section 28(5) of the Act of 2013 and, therefore, cannot be construed to grant a mandate to the State to conduct inspection prior to grant of permission under Section 28(5) of the Act of 2013. Reliance is also placed on Section 24(1)(a) and (w) of the Act of 2013. Section 24(1)(a) of the Act of 2013, empowers the Board to advice the Government on the matters of policy relating to Diploma level nursing and paramedical education in general and the matters as indicated in sub clauses (i) to (iv) therein, which do not relate, to any power to 22 901-J-1476-2021.odt inspect in relation to Section 28(5) of the Act of 2013. Clause (w) of Section 24(1) of the Act of 2013 empowers the Board to make regulations for granting affiliation, accreditation, equivalence, eligibility to the Institutions and reviewing or revoking them. Admittedly, no such regulations have been framed and even otherwise, they would relate to a situation, post the action under Section 28(5) of the Act. Section 26(1) of the Act of 2013, relied upon, by Mr. Naik, learned Senior Counsel for the respondent No.1 relates to the power of the Government after considering the advice, if any, tendered by the Board, to issue to the Board such directions as it may consider necessary in regard to all or any other matters specified in Section 24 of the Act of 2013. The language of Sections 24(a) to (z-l) of the Act of 2013, does not indicate to us, that it would entail any power to inspect in the nature as is being sought to be addressed in relation to Section 28(5) of the Act of 2013 and, therefore, is of no assistance. Though Section 41 of the Act of 2013 has also been referred to, that is the power of the State, to cause inspection of the Institution after permission and affiliation, as is 23 901-J-1476-2021.odt indicated from the use of the expression "Institutions Affiliated and Accredited to the Board" as used in Section 41(1) of the Act of 2013. Sub Section 2 of Section 41 of the Act of 2013, therefore, would be in relation to what is mandated by Section 41(1) of the Act of 2013 and not otherwise.
15. It would, therefore, be apparent, that for the purpose of grant of permission, as contemplated by Section 28(5) of the Act of 2013, there is no power, in the State, to conduct an independent inspection. If that be so, then the amount of Rs. Five Lakhs being charged for such inspection, cannot be related to any statutory provision, in absence of which, the same, would be clearly without any authority of law. This view is supported by what has been held in Temple of Hahnemann Homeopathic Medical College and Hospital vs. Union of India (supra) in which while considering, the action of the Central Government, in prohibiting admission, consequent to inspection, it was held, that since under the Act, the Central Government has not reserved the power to such inspection, which duty had being vested with the Central Council of Homeopathy, 24 901-J-1476-2021.odt the Central Government could not start investigation by appointing a team of Inspectors and the action, therefore, was without any statutory authority.
16. The GRs dated 26.10.2017 (page No.114), which imposes a fee of Rs.5,00,000/- for the inspection prior to consideration of an application, as recommended by the Board, by the State does not trace, its power to any of the provisions, of the Act of 2013 or any rules or regulations made thereunder. All that it refers to, is Section 64(3) of the Maharashtra University Health Sciences, which merely contemplates, that a management seeking permission to open a new College or Institution of higher learning, shall apply in prescribed form to the Registrar of the Universities before the last day of October of a year preceding the year from which the permission was sought. In our considered opinion, Section 64(3) of the Act of 2013 or for that Sub Section 4 of Section 64 of the said Act, which only provides for a recommendation to be sent to the State by the Management Council, cannot be deemed to be empowered to the State to conduct an independent inspection, for the purpose of considering 25 901-J-1476-2021.odt the recommendation made by the Board and for that purpose to charge an inspection fee. Apart from which it cannot be held to be incorporated in the Act of 2013, so as to empower the State under Section 28(5) to make an inspection on levy fee fee for it.
17. Even if the fee, is considered to be a fee for the security of the application by the Institution and the consequent recommendation made by the Board, still that being a statutory function of the State, in terms of the language of Section 28(5) of the Act of 2013, in our considered opinion, no fees ought to be chargeable for performing such statutory function, which is the duty of the State. It is trite position of law, that the State cannot indulge into the activity of unjust enrichment, at the cost of the public exchequer, while performing its statutory function.
18. Even if we consider, that some fee is permissible to be charged by the State for the purpose of considering the application for opening of new institute and permission to be granted consequent to the recommendation, we do not see any reasonability in the State charging a sum of Rs. Five Lakhs, for 26 901-J-1476-2021.odt considering such application and recommendations, moreso, when the entire action, of the Board, in carrying out the inspection and sending a recommendation, if any, is chargeable with a fee of Rs.25,000/- only.
19. Though Mr. Naik, learned Senior counsel appearing for the respondents places reliance upon V. N.Public Health and Education Trust v. State of Kerala (supra), the observations therein, are in the context of issuance of essentiality certificate, which is to be granted in terms of Section 10-A of the Medical Council of India Act, which requires the previous permission of the Central Government for establishing a medical college or opening a new college of study or studying. The requirement of the essentiality certificate, is therefore, a statutory one, relatable to Section 10(1) of the MCI Act. In the instant case, as indicated above, no such statutory requirement, is disclosed from the mandate of Section 28(5) of the Act of 2013.
20. Social Society, Morba vs. Principal Secretary, Higher and Technical Education Department, Mumbai (supra) relied upon by Mr. Amit Choube, learned 27 901-J-1476-2021.odt counsel for the respondent lays down a proposition that where there is an intention to start a new college on permanent no grant-in-aid basis and without taking any other assistance or aid from the Government, the question of obtaining prior permission of the State Government under Section 82(5) of the Maharashtra Universities Act, would not arise at all and, therefore, is not of any assistance to the matter in hand.
21. Ahmedabad Urban Development Authority vs. Sharadkumar Jayantikumar Pasawalla (Supra), relied by Mr. Amit Choube, learned counsel for the petitioner holds, that whenever there is compulsory exaction of money, there should be specific provision for the same and there is no room for intendment, which would be squarely applicable to the case in hand. Commissioner of Income Tax, Udaipur, Rajasthan vs. Mcdowell and Company (supra) relied upon by Mr. Amit Choube, learned counsel for the petitioner also indicates, that the power to impose a tax, duty, cess or fee can be exercised in any of its manifestations, only under any law authorizing levy and collection. The GR dated 26.10.2017, in fact does exactly this by exacting 28 901-J-1476-2021.odt money to the tune of Rs. Five Lakhs for the purpose of the State considering the recommendation made by the Board and for exercise of the powers under Section 28(5), of the Act of 2013, for which, as indicated above, there is no legislative sanction or mandate, in the Act of 2013, for which reason, the GR dated 26.10.2017, cannot be sustained. The GR dated 13.7.2018 (page 124-A), which merely is a consequences of the earlier GR dated 26.10.2017 and refers to the same for the purpose of the fees, also would not stand to that extent.
22. In view of the above discussion, we do not find any legislative mandate in the State to conduct an inspection and charge fees for the same, for the purpose of considering the recommendation of the Board under Section 28(5) of the Act of 2013 as rightly contended by Mr. Amit Choube, learned counsel for the petitioner. The GR dated 26.10.2017 and the consequent one dated 13.07.2018, insofar as it relies upon GR 26.10.2017, regarding the fees to be charged for the exercise of the statutory function under Section 28(5) of the Act of 2013 is concerned, cannot be sustained and are hereby declared as without any statutory mandate.
29 901-J-1476-2021.odt The impugned communication dated 18.03.2021 (page
112), which demands an amount of Rs.5,00,000/- for the purpose of carrying out an inspection by the State / respondent No.1 is also quashed and set aside.
23. The result of the above, would be that the recommendations made by the respondent No.2 Board, vis-a-vis the petitioner Institution, ought to have been considered by the State, without requiring any inspection to be made and demanding any fees for the said purpose. We, therefore, direct the respondent No. 1 to consider the recommendation made by the respondent No. 2 Board, in respect of the petitioner Institution, and decide it within a period of two weeks from today.
24. Considering the fact, that on account of such demand, the recommendation has not been considered, however, the Institution has been granted permission to admit students as reflected from the order of the Court dated 25.03.2021 and thereafter to appear in the examinations from time to time we deem it appropriate that interest of the students requires to be protected. In that view of the matter, we direct the respondent No. 2 30 901-J-1476-2021.odt to grant permission for the students, admitted with the petitioner - Institution to be transferred to the respondent No.3 institution and the respondent No. 1 to grant approval to such transfer, in case it is so required. This is however, subject to the Board being satisfied, that there is requisite intake capacity available with the respondent No. 3, for accommodation of all the students of the petitioner Institution in the course for different years. The amount of Rs. Five Lakhs, deposited by the petitioner on 31.03.2021 in terms of the order of this Court in view of the statement by the learned counsel for the petitioner, on instructions, that it should be appropriated towards costs, we direct the Registry to transfer the same to Raman Science Centre, Nagpur. The Bank details of the said Raman Science Centre, Nagpur are as under :-
Name : Raman Science Centre and Planetarium, Nagpur.
Account No. : 0306101022235.
Name of Bank: CANARA BANK.
Branch Name & Address : Sitabuldi Branch, Nagpur.
IFSC Code : CNRB0000306.
MICR Code : 440015002".
31 901-J-1476-2021.odt
25. Rule is made absolute in the above terms. Considering the circumstances there shall be no order as to costs.
WRIT PETITION NO. 5477/2021
In view of what has been held and decided in Writ Petition No. 1476/2021, since the issues involved in Writ Petition No. 5477/2021, is the same, what has been held in Writ Petition No. 1476/2021, shall also governed Writ Petition No. 5477/2021. The amount of Rs. Ten Lakhs, deposited by the petitioners on 23.12.2021 in terms of the order of this Court in view of the statement by the learned counsel for the petitioners, on instructions, that it should be appropriated towards costs, we direct the Registry to transfer the same to Raman Science Centre, Nagpur. The Bank details of the said Raman Science Centre, Nagpur are as under :-
Name : Raman Science Centre and Planetarium, Nagpur.
Account No. : 0306101022235.
Name of Bank: CANARA BANK.
Branch Name & Address : Sitabuldi Branch, Nagpur.
IFSC Code : CNRB0000306.
32 901-J-1476-2021.odt MICR Code : 440015002".
CONTEMPT PETITION No.206/2020 IN WRIT PETITION NO.2817/2020 (D) CONTEMPT PETITION NO.35/2021 IN WRIT PETITION NO.110/2020 (D) CONTEMPT PETITION NO. 45/2021 IN WRIT PETITION NO.2817/2020(D) The contempt petitions are disposed off accordingly above.
(ABHAY J. MANTRI, J.) (AVINASH G. GHAROTE, J.) KOLHE/KHUNTE / MP Deshpande Signed by: Mr. M.P. Deshpande Designation: PA To Honourable Judge Date: 06/05/2025 12:50:36