National Institute Of Education vs Nav Bharat Shikshan Mandal, Shri ...
2003 Latest Caselaw 243 Bom

JUDGMENT

C.K. Thakker, C.J.

1. Rule. Mr. V.B. Naik, learned counsel appears and waives service of rule on behalf of respondent Nos. 1 to 3. Mr. R.G. Ketkar, learned counsel, appears and waives service of rule on behalf of respondent No. 4. Mr. V.A. Gangal, learned Special Counsel, appears and waives service of rule on behalf of respondent Nos. 5 and 6. In the facts and circumstances, the matter has been taken up for final hearing.

2. This petition is filed by the petitioner for an appropriate writ, direction or order, quashing and setting aside permission granted by the State of Maharashtra, respondent No. 6 herein, to Nava Bharat Shikshan Mandal, Sangli, respondent No. 1 herein, for starting a Senior College at Kurundwad, Taluka Shirol, District Kolhapur, being illegal and unlawful.

3. The case of the petitioner is that it is a society registered under the Societies Registration Act, 1860. Similarly, first respondent is also a Society conducting Junior College at Sangli. Prior to 1985, first respondent was conducting a College at Sangli and also at Kurundwad. The Managing Committee of the first respondent in its meeting dated February 15, 1985, passed a resolution to close down Arts and Commerce faculties of its College at Kurundwad. Accordingly, it informed respondent No. 4, vide its letter dated March 11, 1985. The first respondent also informed the Education Department of the State Government on the same day. Orders terminating the services of the employees were issued. The petitioner-institution wanted to take over the above College which was being closed down by the first respondent. A writ petition No. 2212 of 1985 was filed in this Court by the Maharashtra Federation of University and College Teachers Union, who were conducting educational activities and opposed to closing down of the college. On July 19, 1985, this Court allowed the writ petition to be withdrawn, since the State Government was inclined to grant permission to start Arts and Commerce College at Kurundwad to the petitioner-institution. Accordingly, the petitioner was permitted to start the College from the Academic Year 1985-86 at Kurundwad, in pursuance of an application dated June 8, 1985. A copy of the permission granted by the State is annexed to the petition at Exhibit-C. According to the petitioner, thus the Arts and Commerce College which was being run by respondent No. 1 was taken over by the petitioner.

4. It is averred in the petition that, all of a sudden, the first respondent decided to start a college at Kurundwad once again and submitted a proposal to respondent No. 4-University, seeking permission to start a College. An application was made to the respondent University under Sub-section (3) of Section 82 of the Maharashtra Universities Act, 1994 (hereinafter referred to as "the Act"). Since the petitioner did not have a copy of the application, it was not in a position to state anything more. According to the petitioner, the respondent-University was pleased to refuse permission to the first respondent to start a college at Kurundwad on the ground that in the "perspective plan" prepared by the fourth respondent-University, no provision had been made for starting a College at Kurundwad. As per the perspective plan, new Colleges were proposed at three places, namely (i) Udgaon, (ii) Abdullat, and

(iii) Shirol. The fourth respondent-University, therefore, rejected the application of the first respondent and refused to recommend opening of college at Kurundwad.

5. The petitioner, however, had come to know that the first respondent had moved the Government to grant necessary permission. It, therefore, submitted objections with the State Government against grant of such permission to the first respondent for starting a College at Kurundwad. The petitioner, however, was shocked to known from the local newspapers that the State Government had granted permission to the first respondent to start a Senior College for Arts, Commerce and Science at Kurundwad. The said action was contrary to law and inconsistent with the provisions of the Act. It was also against the decisions rendered by this Court. The petitioner, therefore, has approached this Court by filing the present petition.

6. Notice were issued, pursuant to which the respondents appeared. Affidavits and counter- affidavits have been filed. We have issued Rule and decided to hear the matter finally.

and 2 submitted that the State Government has power under the first proviso to Sub-section (5) of Section 82 of the Act to grant such permission and in exercise of the said power, permission was granted and the petitioner cannot make grievance against such action. It was also submitted that the contention of the petitioner that permission to open a College to respondent No. 1 would result in unhealthy competition was not factually correct and legally well founded. According to respondent Nos. 1 and 2, the University was wrong in rejecting the application of the first respondent on the ground that in the perspective plan, no provision had been made for starting a College at Kurundwad. In any case, it was in exercise of overriding power under the first proviso to Sub-section (5) of Section 82 of the Act that the State Government has granted the permission. Such an action is neither illegal nor unlawful. Moreover, the first respondent- institution is running two Junior Colleges, one at Kurundwad and the other at Sangli. It is a reputed institution and has done a great deal of work in the field of education. As the application of the first respondent was in conformity with the Act and the Rules and the University had wrongly refused to granted permission, the State Government was competent to exercise the power. It was in the absolute discretion of the State Government to grant permission. Again, the petitioner did not have Science faculty at all. It was, therefore, an important circumstance which weighed with the State Government in granting the permission.

8. On behalf of the State Government, four affidavits have been filed one after the other. Initially, in an affidavit dated August 29, 2002. it was stated that approval could be granted by the State Government for opening a new College or institute of higher learning to any proposal which might not have been recommended by the University. Such power can be exercised by the State under the first proviso to Sub-section (5) of Section 82 of the Act. According to the deponent, the University had not followed the provisions of the Act, and hence the power was exercised by the State Government.

9. In an order, dated September 5, 2002, a Division Bench of this court observed that during the course of hearing, when a question was put to the learned Assistant Government Pleader as to on what basis the permission was granted by the State Government in favour of respondent Nos. 1 and 2 to open and run a College, a prayer was made for adjournment to file additional affidavit to place the reasons before the Court. The Court showed its displeasure for non-disclosure of reasons in the earlier affidavit in reply and for seeking further time. Time was, however, granted to file additional affidavit, subject to deposit of Rs. 3,000/- towards costs. It appears that in the light of the above order, further affidavit was filed on September 12, 2002, wherein it was stated that the Cabinet Sub-Committee considered the proposal of respondent No. 1 to start a Senior College at Kurundwad.

10. The said Committee comprised of the following members;

1. The Hon'ble Chief Minister.

2. The Hon'ble Deputy Chief Minister.

3. The Hon'ble Minister for Higher & Technical Education, and

4. The Hon'ble Minister of State for Higher & Technical Education.

The Cabinet Sub-Committee considered the proposal of respondent No. 1 for permission to start a Senior College in Arts, Science and Commerce streams. It took into account the fact that the University had not recommended the proposal of respondent No. 1 A letter/representation by S.R. Patil, sitting MLA, (respondent No. 3) was also placed before the Cabinet Sub-Committee wherein the MLA had made grievance that the proposal of the first respondent was not considered by the University favourably on hyper-technical grounds and thus there was non-co-operation by the University. Considering all the circumstances, "a proper and conscious decision was taken by the State Government for granting permission to the respondent No. 1 institution to start a senior college".

11. Third affidavit was filed on behalf of the State on October 3, 2002, by the Under Secretary to the Government, Higher and Technical Education Department. In paragraph 3, it was stated:

"It may be pointed out that at this stage that any perspective plan prepared by the university will become final only when the same is approved by the State Council for Higher Education. Till that is done, the plan remains a draft plan. It may be stated here that till today, the State Council for Higher Education as contemplated under Sub-section (1) of Section 82 is not constituted. As such, there is no final perspective plan of any university which can be stated to have come into force."

It was also stated that the decision to grant permission to respondent No. 1 was taken by the Cabinet Sub-Committee. "The said decision is taken bona fide and the Sub-Committee also has recorded the reasons for granting permission." According to the deponent, there was no science faculty College in Kurundwad or surrounding villages and towns and Kurundwad would be a convenient place as sufficient number of bus routes and transport facilities were available. It was also asserted by the deponent that there was no demand of opening a Science College either from the petitioner or any other College, except respondent No. 1. The petitioner's college did not have a capacity to accommodate all other students in its institution, which resulted in several students being rendered without proper and reasonable access to nearby area for higher education. There was a consistent demand from local people and parents and students but the Shivaji University repeatedly rejected the prayer "for the reasons best known to it". It was submitted that so long as the perspective plan was not approved by the State Council, there was no finality as to the draft plan and Cabinet Sub-Committee had every right to exercise power under Section 82 of the Act. The petitioner, according to the deponent, was nothing but "an abuse of the process of law" and it was not a fit case to exercise power under Article 226 of the Constitution in favour of the petitioner.

12. A rejoinder to the above affidavit was filed by the petitioner stating therein that it was an incorrect statement in the affidavit in reply that the State committee was not constituted. "Maharashtra State Council for Higher Education" was constituted by a notification dated 16th April, 1999. It was also stated that the petitioner college had applied for starting a Science faculty from June, 2000. The University, however, did not grant the permission as it was contrary to the perspective plan. The deponent denied that it did not have capacity to accommodate all the students. The petitioner college could accommodate all the students enrolled with the first respondent college and was "more than ready and willing to accommodate them".

13. The Under Secretary, therefore, filed one more affidavit on October 23, 2002, stating therein that it was true that a Notification under Sub-Section (1) of Section 56 of the Act was issued on April 16, 1999, nominating 20 members but the period of nominated members of the Council was to commence from the date of first meeting of the Council. However, no meeting had been held and the Cabinet on December 6, 2001, decided to dissolve the Council and to substitute an new Council. Another statement had also been dealt with that the petitioner institution had applied for permission to start Science faculty in 2000. But since the State Government had taken a decision to grant permission only to professional courses on permanently 'no-grant basis', permission was not granted to traditional courses like Arts, Science and Commerce.

14. A counter-affidavit is also filed by the Minister for Higher and Technical Education, who was one of the members of the Cabinet Sub-Committee. In the said affidavit, he stated that on June 17, 2002, respondent No. 3 MLA and Chairman of Shri Datta Sahakari Sakhar Karkhana Limited, one of the most important and leading sugar factories in the nation conducting several educational institutions personally met him (the Minister) making grievance that the University was deliberately not recommending the proposal of the first respondent-institution, though there was a need for a Senior College in Kurundwad. The third respondent also told the Minister that the first respondent was capable of conducting a College of Arts, Science and Commerce, having all infrastructure, finance, resources etc. The Minister, therefore, asked the departmental Deputy Secretary to examine the proposal of respondent No. 3 considering objections lodged by petitioner- institution. The Cabinet Sub-Committee then met on June 18, 2002. The proposal of the first respondent was considered as also representation submitted by the petitioner which appeared to be genuine in nature and a decision was taken to grant permission to respondent No. 1 on "permanently no grant basis".

15. The Minister then started;

"....it is true that we have not given separate reasons fro each and every institution for which, the Universities had not recommended but the Cabinet Sub- Committee has granted the permission."

The only reason on which permission was granted was local needs and demands of students.

16. An affidavit in reply is filed by respondent- University wherein it was expressly stated that the Committee prepared perspective plan which was placed before the Board of College and University Development ("BCUD" for short), in its meeting dated December 2, 1996. It was forwarded to the Academic Council for approval and was approved by the Academic Council with certain modifications. The proceedings were then placed before the Management Council and the action was approved. A Resolution was passed to place the same before the Senate and the Senate in turn approved the perspective plan with amendments which was directed to be forwarded to the State Government. The perspective plan was thus in accordance with law.

17. It was also stated that the first respondent applied for permission to open a new College at Kurundwad from the Academic Year 2002-03. The proposal was scrutinised but it was not recommended as Kurundwad was beyond the perspective plan. The recommendation was accepted by the Management Council. It was then stated that though the first respondent had not admitted students in accordance with law as it had hastily started College by jeopardising educational career of students, in order to protect interest of those students, the University had accepted the forms submitted by the first respondent in pursuance of the order passed by this Court.

18. We have heard the learned counsel for the parties.

19. The learned counsel for the petitioner contended that the action taken by the State Government is not in conformity with law. Power under the first proviso to Sub-section (5) of Section 82 of the Act could not have been exercised by the State Government and the said action deserves to be quashed and set aside.

20. It is the University which has power to take an appropriate action under Section 82 of the Act. But if the case could not have been considered by the University, it is not open to the State Government to invoke the first proviso to Sub-section (5) of Section 82 of the Act and purported exercise of power is bad in law.

21. When in the perspective plan prepared by the University, there was no provision to start a new College at Kurundwad, it was neither open to the respondent-University nor to the State Government to grant permission to open a college at such place.

22. The action of the State Government is mala fide and has been taken in colourable exercise of power, inasmuch as the decision has been taken with unholy haste at the behest of respondent No. 3 MLA. A request was made by him on June 17, 2002, and immediately on the next day, i.e. on June 18, 2002, Cabinet Sub-Committee decided to grant permission.

23. There was non-application of mind on the part of the respondent-State. In past, the first respondent was running a College at Kurundwad which was closed down and was taken over by the petitioner. Keeping in mind the above fact, even if it is held that the State Government had power under the first proviso to Sub-section (5) of Section 82 of the Act, the same could not have been exercised in the facts and circumstances of the case.

24. A relevant and germane consideration has been ignored by the State Government that a similar prayer to start Science College was made by the petitioner, which was not granted.

25. Several incorrect statements have been made in the affidavits in reply filed on behalf of the State Government which go to show that the State Government had shown partiality and an attitude of bias towards first respondent and prejudice towards the petitioner.

26. On behalf of the State it was contended that the power conferred by the first proviso to Sub-Section (5) of Section 82 is "over-riding" and "all pervasive". Hence, where the University does not recommend starting of a new College, it is always open to the State Government to exercise power under the said provision.

27. There was no Science College at Kurundwad. Representation were, therefore, made by local people and parents of students from Kurundwad and nearby area to start such college. If, keeping in mind the above considerations, permission was granted to respondent No. 1, petitioner cannot raise an objection against such action.

28. When a complaint was made by MLA, the Department was asked to consider the proposal. The Cabinet Sub-Committee was constituted for the purpose and unanimous decision was taken to grant permission to respondent No. 1.

29. Upholding the contention of the petitioner would mean that the power can be exercised by the State Government only in consonance with the provisions of Sub-sections (1), (2) and (3) of Section 82. Such construction would make the first proviso to Sub-section (5) of Section 82 nugatory and otiose.

30. On behalf of the University, it was contended that considering the provisions of Section 82 of the Act, and keeping in view that Kurundwad was not shown in perspective plan, the application of the first respondent was not "considered". The said action was legal and valid. The reason weighed with the University could not be said to be "hyper- technical" and the action of the University was lawful and legal. The point is concluded by judgments of this Court as also by the Supreme Court.

31. Before we deal with respective contentions, it is necessary to understand the scheme and peruse the relevant provisions of the Act. Section 2 defines "Affiliated college" as a college which has been granted affiliation by the University. "Recognised institution" means an institution of higher learning, research or specialised studies, other than an affiliated college and recognised to be so by the University. The expression "permission" has not been defined in the Act. Chapter X deals with permission, affiliation and recognition. Section 81 prescribes conditions for affiliation and recognition. Section 82 lays down procedure for permission. The said section is important and requires to be quoted in extenso.

"82. Procedure for permission.

(1) The university shall prepare a perspective plan and get the same approved by the State Council for higher education for the educational development for the location of colleges and institutions of higher learning in a manner ensuring equitable distribution of facilities for higher education having due regard, in particular, to the needs of the unserved and under-developed areas within the jurisdiction of the University. Such plan shall be prepared by the Board of College and University Development and shall be placed before the Academic Council and the Senate through the Managing Council and shall, if necessary, be updated every year.

(2) No application for opening a new college or institution of higher learning, which is not in conformity with such plan, shall be considered by the university.

(3) The managements seeking permission to open a new college or institution of higher learning shall apply in the prescribed form to the Registrar of the university before the last day of October of the year preceding the year from which the permission is sought.

(4) All such applications received within the aforesaid prescribed time limit, shall be scrutinised by the Board of College and University Development and be forwarded to the State Government with the approval of the Management Council on or before the last day of December of the year, with such recommendations (duly supported by relevant reasons) as are deemed appropriate by the Management Council.

(5) Out of the application recommended by the university, the State Government may grant permission to such institutions as it may consider right and proper in its absolute discretion, taking into account the State Government's budgetary resources, the suitability of the managements seeking permission to open new institutions and the State level priorities with regard to location of institutions of higher learning:

Provided, however, that in exceptional cases and for the reasons to be recorded in writing any application not recommended by the university may be approved by the State Government for starting a new college or institution of higher learning.

Provided further that, from the academic year 2001-2002, such permission from the State Government shall be communicated to the university on or before 15th July of the year, in which the new college is proposed to be started. Permissions received thereafter shall be given effect by the university only in the subsequent academic year."

(6) No application shall be entertained directly by the State Government for the grant of permission for opening new college or institutions of higher learning."

Whereas Section 83 prescribes procedure for affiliation, Section 84 for recognition of institutions, Sections 86, 87 and 88 relate to continuation, extension and permanent affiliation and recognition. Section 91 deals with withdrawal of affiliation or recognition and Section 92 provides for closure of college or recognised institution.

32. Section 82 quoted above enjoins the University to prepare a perspective plan for educational development for location of institutions of higher learning, having due regard to the needs of unserved and under-developed areas within the jurisdiction of the University. Sub-section (1) of Section 82, as it originally stood read as under:

"(1) The university shall prepare a perspective Plan for educational development for the location of institutions of higher learning in a manner ensuring equitable distribution of facilities for Higher Education having due regard, in particular, to the needs of unserved and under-developed areas within the jurisdiction of the university. Such plan shall be prepared by the Academic Council and shall be placed before the Senate through the Management Council and shall be updated every five years."

Sub-section (1) had been amended in 2000.

33. Neither under the unamended section nor under the amended section, duration of perspective plan is prescribed. Under the un-amended Sub-section (1), such perspective plan was required to be updated every five years, while under the amended section, such perspective plan "shall, if necessary, be updated every year". Likewise, under the un-amended Section 82 (1), the University was required to prepare a perspective plan. There was no necessity of doing anything more. Under the amended Section 82 (1), however, the University has to get the same approved by the 'State Council for Higher Education".

34. Ambit and scope of Section 82 came up for consideration before this Court at more than one occasion. In Dhananjay R. Kulkarni and Ors. v. State of Maharashtra and Ors. (1999) 2 MhLJ 323, permission to start a college came to be granted in exercise of power under the (first) proviso to Sub-section (5) of Section 82 of the Act by the State Government. When the validity thereof was challenged in this Court, it was contended by the State Authorities that it had "wide powers" under the said provision to grant permission to any institution, irrespective of the fact whether the case of an institution was or was not in conformity with the perspective plan prepared by the University. The precise question before this Court was whether it was open to the State Government to exercise power under the (first) proviso to Sub-section (5) of Section 82, despite the fact that the opening of the institution was beyond the perspective plan prepared by the University under Sub-section (1) of Section 82 of the Act.

35. Considering the provisions of Section 82 in juxtaposition of the (first) proviso to Sub-section (5), the Division Bench observed:

"It is clear from the aforesaid provisions that the application for opening a new College or institution of higher learning, which is not in conformity with the Perspective Plan, cannot be considered by the University. It is also clear that an application for grant of such permission cannot be entertained directly by the State Government. Thus, such an application has necessarily to be routed through the University - the purpose being the examination of such an application by those who are experts in the field."

36. According to the Court, all applications made by the management seeking permission to open new Colleges or institutions of higher learning were required to be scrutinised by BCUD and forwarded to the State Government with the approval of Management Council with such recommendations as deemed appropriate by the Management Council. Out of the applications recommended by the University, it is open to the State Government to grant permission to such institutions as it may consider right and proper in its absolute discretion. This power has been conferred on the State Government by Sub-section (5) of Section 82. Under the said provision, therefore, the State has wide discretion even to decline permission to such Colleges or institutions of higher learning whose applications have been recommended by the University. The (first) proviso to Sub-section (5) of Section 82 enables the State Government to grant approval for starting a new College or institution of higher learning, which might not have been recommended by the University. The said power, however, can be exercised by the State Government in exceptional cases by recording reasons.

37. According to the Division Bench, therefore, the power under the (first) proviso to Sub-section (5) of Section 82 could be exercised by the State Government only in those cases which have been "considered" by the University and have not been recommended.

38. The Court, therefore, concluded:

"10. It is clear from the aforesaid provisions that such applications, which are not in conformity with the perspective plan and thus are outside the purview of the University for consideration, are also to be scrutinised by the Board of College and University Development and the same are also required to be forwarded to the State Government. These applications are only scrutinised under Sub-section (4), but are not considered, in view of the bar contained in Sub-section (2) of Section

82. The language of the proviso, on which strong reliance has been placed by the learned Advocate-General, provides that in respect of the applications not recommended by the University the State has powers in exceptional cases, on reasons to be recorded in writing, to grant approval for starting a new College. The proviso, to our minds, deals with such applications which are considered by the University and then not recommended and in respect of such applications, the State Government has overriding power to grant approval in exceptional cases. It does not postulate a power to grant approval in respect of the applications which the University is even debarred to consider. This interpretation is also in consonance with the entire scheme of Section 82, including the bar contained in Sub-section (2) and Sub-section (6) of Section 82. The proviso, on which reliance has been placed on behalf of the State Government, is proviso to Sub-section (5) and not in the nature of non-obstante clause to the entire section.

When applications are filed by the management, Section 82 contemplates three situations.:-

(1) Applications not considered by the University.

(2) Application considered and recommended by the University, and,

(3) Applications considered and not recommended by the University.

The power of the State Government under this proviso is in respect of the applications which are considered and not recommended, and not in respect of the applications which are not even considered. The power of the State government in respect of the applications recommended by the University are found in substantive Sub-section (5). From the mere fact that all applications, which are scrutinised, including those which are not considered, are required to be sent to the State Government, it is not possible to reach the conclusion that, even in respect of such not considered applications, the State Government has power under the proviso to grant approval. It is possible that, when such applications which are not considered are forwarded to the State Government, the State Government may find that the University was wrong in not considering the applications on the ground that the same are not in conformity with the Perspective Plan and, in those circumstances, it may require University to consider such applications.

39. In Dhananjay Kulkarni, this Court held that since the "application was not considered" by the University on the ground that it was not in conformity with perspective plan, the power under the (first) proviso to Sub-section (5) of Section 82 could not have been exercised by the State Government. The action was, therefore, set aside.

40. In Shikshan Samiti, Gadhinglaj v. State of Maharashtra and Ors. (2001) 1 MhLJ 36, Dhananjay Kulkarni was followed. Reiterating the ratio laid down in the previous case, the Court held that all the applications filed by the managements within the period stipulated by Section 82 (3) seeking permission to open new colleges or institutions of higher learning are required to be scrutinised by BCUD under Sub-section (4) of Section 82 and to be forwarded to the State Government with the approval of the Management Council with such recommendations as are deemed appropriate by the Management Council. The State Government, out of those applications recommended by the University, may grant permission to such institutions as it may consider right and proper in its absolute discretion under Sub-section (5) of Section 82 of the Act. Thus, the discretion left with the State Government is under Sub-section (5) of Section 82. Under the (first) proviso to Sub-section (5), the State Government has power to grant approval for starting new College or institution of higher learning not recommended by the University in exceptional cases for the reasons to be recorded in writing. Only in such cases the State Government has overriding power to grant approval in exceptional cases for the reasons to be recorded in writing.

41. The Division Bench proceeded to state;

"It may also be possible that when such application are not considered by the University and forwarded to the State Government with negative recommendations, the State Government may find that the University was wrong in not considering the applications on the ground that the same are not in conformity with the Perspective Plan and, in those circumstances, it may require University to consider such applications. In such circumstances, it is obligatory on the part of the State Government to record reasons for taking view other than the view taken by the University. The State Government has to justify as to why the recommendations of the University are overruled. This power given to the State is to be exercised in exceptional cases."

42. Finally, in State of Maharashtra v. Indian Medical Association and Ors., , the Hon'ble Supreme Court had an occasion to consider Dhananjay Kulkarni. Though the question which arose in that case was slightly different inasmuch as it related to opening of a new medical college under the Maharashtra University of Health Sciences Act, 1998, and the meaning of the expression "management", while summing up the discussion, certain principles have been laid down and it was held that the perspective plan prepared by the University binds the State Government qua private management.

43. In our judgment, therefore, the question is finally concluded. The (first) Proviso to Sub-section (5) of Section 82 has to be read in conformity with other provisions. We are unable to uphold the submissions of the State Government that power under the (first) proviso to Sub-section (5) of Section 82 is "over riding" or "all pervasive". To us, it is clear, that such power has to be exercised in exceptional cases and for the reasons to be recorded in writing in those cases where application has been "considered" by the University but has not been "recommended" and the State Government is inclined to exercise the power. It is also clear to us that different expressions have been used by the Legislature in Section 82 of the Act. Whereas Sub-section (2) uses the expression "consider", Sub-section (4) speaks of "scrutiny" and "recommendation". Sub-section (5) and the (first) proviso to Sub-section (5) deals with those cases which have been considered by the University and either recommended or not recommended by it. Precisely in those cases, the power under Sub-section (5) or the (first) proviso to Sub-section (5) of Section 82 can be exercised by the State Government.

44. In the instant case, the perspective plan did not include Kurundwad. Hence, when an application was made by the first respondent, it could not be 'considered' under Sub-section (2) of Section 82 since the said provision debarred the University from considering the application for opening of a new College or institution of higher learning which was not in conformity with such perspective plan. In our opinion, therefore, a stage of making or not making recommendation under Sub-section (4) did not reach. There is no doubt in our minds that neither Sub-section (5) of Section 82 nor the (first) proviso to Sub-section (5) of the said section got attracted. The power under the said provisions could be invoked when an application for opening of a new college or institution of higher learning was in conformity with the perspective plan, could be considered by the University, and was subject to recommendation, if any, by the University.

45. We are not impressed by the argument of the learned Counsel for the State that reading of the provisions, as argued by the learned counsel for the petitioner, and supported by the University, would make Sub-section (5) of Section 82 or the (first) proviso to Sub-section (5) nugatory. On the contrary, in our judgment, upholding of argument of the State Government would make provisions of Sub-sections (2), (4) and (6) of Section 82 otiose and unworkable. Harmonious interpretation of all the provisions make the position amply clear and it is that every application for opening of a new College or institution of higher learning must be in conformity with perspective plan. Only such applications can be considered by the University. The applications which are not in conformity with such plan can neither be considered by the University nor by the State Government. Such interpretation will make all the provisions consistent, meaningful and workable.

46. We are also in respectful agreement with the view taken by this Court in Dhananjay Kulkarni and in Shikshan Samiti, Gadhinglaj, that where an application for opening of a new college or institution of higher learning has not been 'considered' by the University and the State Government is satisfied that the University is wrong in not considering the application, it may require the University to consider or re-consider such application. The State Government, however, cannot exercise the power under the first proviso to Sub-section (5) of Section 82 and grant the permission.

47. In the case on hand, the application for opening of a new College made by respondent No. 1 was not in conformity with the perspective plan under Sub-section (1) of Section 82 of the Act. It was, therefore, rightly not considered by the University. The case is thus covered by Sub-section (2) of Section 82 of the Act and not by Sub-section (4) of Section 82 of the Act. Hence, the State Government had no jurisdiction to exercise power under the first proviso to Sub-section (5) of Section 82 of the Act. The action of the State Government is, hence, without authority of law and deserves to be set aside.

48. Incidentally, it may also be mentioned at this stage that in Dhananjay Kulkarni, the point was decided by a Division Bench of this Court. The matter was not carried further and the correctness of the decision was never challenged. It further appears that presumably keeping in mind the ratio laid down in that case, the Legislature considered it appropriate to amend the provision. The amendment, however, was made in Sub-section (1) of Section 82 by laying down that the University shall get the perspective plan "approved by the State Council for Higher Education." The Legislature did not think it fit delete or amend either Sub-section (2) or Sub-section (6) of Section 82 of the Act. It is, therefor,e clear that though the concept of "State Council" has been introduced in Sub-section (1) of Section 82, and University was enjoined to get the perspective plan approved by such State Council for Higher Education, the application for opening of a new College or institution of higher learning continued to be in conformity with such perspective plan which could be considered by the University. In our opinion, therefore, the action of the State Government is liable to be set aside.

49. Since we are upholding the first contention, it is not necessary for us to express any opinion, whether the action taken by the respondent-State was mala fide or in colourable exercise of power at the instance of respondent No. 3-MLA, who had made a request on June 17, 2002 and the Cabinet Sub-Committee in unholy haste granted permission on the next day on June 18, 2002. We are, however, constrained to observe that before making certain statements in the affidavit filed on behalf of the State Government, the deponent ought to have ascertained factual position particularly regarding the constitution of State Council and the assertion that no application was made for opening of Science faculty by the petitioner institution. We hope that in future, responsible Officers of the State Government would not give an impression that full and complete disclosure of facts were not made by them before the Court. We say no more.

50. For the foregoing reasons, the petition deserves to be allowed and is accordingly allowed. The order passed by the State Government granting permission to respondent No. 1 for opening of Arts, Science and Commerce College in exercise of power under the first proviso to Sub-section (5) of Section 82 is hereby quashed and set aside. The State-authorities will take appropriate action for those students who have studied in the college of respondent No. 1 by accommodating them either in petitioner's college (Arts and Commerce stream) or to any other recognised College.

51. The writ petition is accordingly allowed. Rule is made absolute. In the facts and circumstances, however, there shall be no order as to costs.