Dr. Panjabrao Deshmukh Memorial ... vs State Of Maharashtra And Ors.
2004 Latest Caselaw 231 Bom

JUDGMENT

V.C. Daga, J.

1. Rule returnable forthwith. Perused petition, affidavits and counter affidavits. Heard finally by consent of the parties.

2. The validity of the permission granted by respondent No. 1, the State of Maharashtra in favour of respondent No. 3, Shinde Education Society, Sawargaon, to shift and start new Arts College at Panchwati-Katol, from the academic year 2002-03 is a subject matter of challenge in this petition filed under Article 226 of the Constitution of India.

Factual Scenario

The factual scenario giving rise to the present petition is as under :

3. The petitioner No. 1 is an educational society having four Senior Colleges, Schools and Junior Colleges in the District of Nagpur. The Petitioner No. 2 is a Senior College which was opened in the year 1999 with due sanction of the State Government to impart education in Arts Faculty for women only; since then it is being run at Katol, Tq. Katol, Distt. Nagpur.

4. The aforesaid College is affiliated to the second respondent - Nagpur University, Nagpur ('the University' for short). The respondent No. 3 is also an education society of which Shri Sunil Shinde; Ex-MLA, a prominent political figure of the region representing political party Nationalist Congress, is the President.

5. The factual scenario further depicts that respondent No. 3 approached the second respondent-University for permission to start new Arts College; under the name and style Shinde Mahila Vidyalaya, at Sawargaon, Tq. Katol, Distt. Nagpur. The University under Section 82 of the Maharashtra Universities Act (35 of 1994) ('the Act' for short) forwarded said proposal to the State Government on 30th December, 2000 with their recommendations as required under Section 82(4) of the Act. The respondent No. 1 vide its order-cum-letter dated 29-6-2001 informed the University that the permission was accorded to the respondent No. 3 under Section 82(5) of the Act to establish new Arts College on the terms and conditions mentioned therein and also directed it; to make necessary inquiry as per Section 82 of the Act and grant affiliation to the said college subject to the compliance of the terms and conditions stipulated in the order dated 29-6-2001.

6. The respondent No. 3 in spite of getting permission to open new college did not open college at Sawargaon. But, privately appears to have approached Shri Dilip Walse Patil, (Hon'ble Minister of Education, Govt. of Maharashtra) with a request to make necessary changes in the order dated 29-6-2001 to permit him to open new college at Katol instead of at Sawargaon. It further appears from the record that Shri Dilip Walse Patil advised him privately; to depute somebody for getting the work done. Accordingly, respondent No. 4, Shri Sunil Shinde, Ex-MLA; appears to have deputed his son Shri Satish Shinde, who appears to have approached Shri Dilip Walse Patil, with a personal letter of his father Shri Sunil Shinde; wherein request was made to make necessary correction or amendment to the order granting permission to open college at Sawargaon; by deleting Sawargao, the place of opening the college and substituting it with Katol. In other words substitution of Katol in place of Sawargaon was sought. The request, thus, was made to change the place of opening of the College from village-Sawargaon to Tahsil place Katol.

7. The letter written by Shri Sunil Shinde, Ex- M.L.A. on the letterhead of MHADA, the Maharashtra Housing Area Development Authority, which is a part of the original record produced by the State Government, reads as under :-

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ek- uk- Jh fnyhi oGls ikVhy]

f'k{k.k ea=h] e- jk-] eaqcbZ-

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        vki.k lkafxrY;kizek.ks fn- 6 o 7 rkj[ksyk dks.kkyk rjh ikBfo.;kl lkafxrY;k izek.ks eh ek>k eqyxk fp- lfr'k f'kans ákl ikBfor vkgks-

        f'kans f'k{k.k laLFksP;k izLrkokizek.ks lkaojxkao ,soth f'kans efgyk egkfo|ky;] iapoVh] dkVksy ;so<h nq:Lrh d:u |koh- bekjr o lkfgR; loZ r;kj vkgs- vki.k ikfgys vkgs-

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8. It appears that aforesaid letter resulted in certain directions from Shri Dilip Walse Patil, holding port folio of Ministry of Education, which is clear from the following endorsement appearing in the original order sheet. The endorsement reads thus;

eka egksn;kauh Lor% ;k izdj.kh fo|kfiBkdMwu vgoky ?kÅu izLrko lknj dj.;kP;k lqpuk fnY;k gksR;k- R;kuq"kaxkus eka lqfuy f'kans ;kauh egkfo|ky;kps iapoVh] dkVksy] ;sFks LFkkukarj dj.;kl th vuqerh ekxhryh vkgs- rhpk ldkjkRed fopkj dj.;kl gjdr ulkoh-

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[email protected]@2001   

9. The aforesaid directions resulted in a letter from the respondent No. 1 to the University for their Opinion as to whether or not permission can be granted in favour of the respondent No. 3 - Society to start college at Katol instead of Sawargaon. The second respondent - Nagpur University vide their letter dated 28th September, 2001, forwarded non-committal opinion mentioning therein that two Arts Colleges are being run in the said town. However, wrong information was passed on saying Sawargaon has a population of 45,000 people. It further appears that the State Government after receipt of the aforesaid letter from the University, issued another order-cum-letter dated 16-10-2001, stating therein that the request of respondent No. 3 seeking change of place of opening new college from Sawargaon to Panchvati - Katol, Distt. Nagpur, is accepted and accordingly permission was accorded to open college at Katol. This action vide impugned order dated 29-6-2001, as stated hereinabove is a subject-matter of challenge in this petition.

Submissions

10. Shri A.B. Choudary, learned counsel appearing for the petitioner submitted that for opening a second Arts College as per settled norms, population of not less than 40,000 to 50,000 is necessary. According to him the population of village Sawargaon is only 8000; whereas Nagpur University wrongly and falsely passed on information to the State Government that population of village Sawargaon is about 45,000 so as to help the respondent No. 3 to seek another college in the same village. According to him, the game plan, with connivance of the University, was to open a second Senior College at Katol by taking the route via Sawargaon. The modus-operandi was to get second Senior College showing it on paper for Sawargaon, using all necessary infrastructure available at Sawargaon and after obtaining necessary permission from the State Government to get it quietly shifted from Sawargaon to Katol. In his submission had there been an application for Katol, it would not have been possible for the University to recommend and the State Government to sanction 3rd Senior College at Katol. According to Mr. Choudhary special favour was shown by the Education Minister to the politician of the area; Shri Sunil Shinde, Ex-M.L.A., as such the impugned orders are bad and illegal.

11. Mr. Choudhary during the course of his submissions expressed surprise that, even the reputed institution; like the Nagpur University should fall pray to the foul tactics of the politicians and communicate false and incorrect information to the State Government with respect to the population of village-Sawargaon.

12. Mr. Choudhary further pointed out that in accordance with the permission dated 29-6-2001, the respondent No. 3 did not establish or open or start second Senior College at village- Sawargaon; obviously, because at the back of the mind of the office bearers of the Society, the game plan was to manage order of shifting the venue of the College from Sawargaon to Katol. According to him, letter dated 16-10-2001 clearly reveals absence of reference to recommendation of the Nagpur University either to start new college or permit shifting of any such college at Katol. He further submits that there is no provision in the Maharashtra Universities Act for permitting any institution to shift its college from one town to another. He submitted that the State Government granted permission to shift College from Sawargaon to Katol with undue haste within a period of 3 months; even in absence of any approach being made by the respondent No. 3 society to State Government requesting for such transfer. In his submission private request addressed to Shri Dilip Walse Patil in his private capacity by Mr. Sunil Shinde in his personal capacity cannot be said to be a request for transfer made to the State Government.

13. Mr. Choudhary while elaborating his submission further submitted that a private letter privately written to Shri Dilip Walse Patil cannot be construed as a representation or request made to the State Government. He submits that factually there was no request made to the State Government seeking permission to shift college from one town to another. He further submits that in the garb of the order of shifting college, the respondent No. 3 has virtually obtained permission to open new College at Katol which would not have been possible, had there been a regular application for permission to open new College at Katol and had it been processed maintaining transparency as per the provisions of the Act. Mr. Choudhary, therefore, submits that the impugned order is mala fide and is obtained by back door method as such the same is liable to be quashed and set aside.

14. Mr. Choudhary further submits that as a matter of fact while granting permission to open college at Sawargaon which is hardly having population of 6,000 to 8,000 could hardly provide students to cater the need of two Senior Colleges. He submits that looking to the population of the village; it is difficult even for one college to survive. In spite of this factual scenario, on the basis of wrong and false recommendation supplied by the Nagpur University, the respondent No. 2 could manage to get second Senior College for Sawargaon, knowing full well that the second college cannot survive looking to the availability of the students. In the submission of Mr. Choudhary, inspire of paucity of students, the application was made for opening College at Sawargaon bearing in mind that once the permission is granted, the modification of place can always be managed with the political influence.

15. Mr. Choudhary further submits that two colleges; namely, Nabira Mahavidyalaya and Sati Anusuya Mata Mahila Mahavidyalaya (later run by the first petitioner) are already functioning at Katol. As such opening of 3rd college would result in unhealthy competition. In his submission cut-throat competition would cripple the financial health of both the institutions who are doing extremely well at Katol. He, therefore, submits that the grant of permission to open College at Katol in favour of respondent No. 3 is liable to be quashed and set aside in public interest.

16. Mr. Choudhary also took us through the provisions of the Act and some of the judgments of this Court referred to hereinafter to contend that the impugned orders are absolutely bad and illegal and cannot stand to the scrutiny of law laid down by this Court.

Per Contra

17. The learned AGP appearing for the respondent No. 1 tried to support the impugned action of respondent No. 1. But, when she was confronted with the original record containing personal letter written by Sunil Shinde to Shri Dilip Walse Patil, in his personal capacity and the endorsement made thereon, she found it difficult to take her submissions to the logical end, and defend the impugned action.

18. Mrs. Shinde, the learned counsel appearing for the respondent -University tried to wash her hands by saying no recommendations were made by the University either to grant College at Sawargaon or to shift it at Katol. In her submission Nagpur University placed factual material before the State Government and that the University is not a party to any of the orders issued by the State Government. She submits that the role of University was very limited which can be seen from the letter of the respondent No. 1; dated 16-10-2001, wherein the change of place has been indicated. She, thus, denied the allegations of favoritism alleged to have been shown by the University to the respondent No. 3.

19. Mr. Parchure, learned counsel appearing for the respondent Nos. 3 and 4 while explaining the circumstances for not establishing or opening college at Sawargaon in pursuance of the permission granted on 16-10-2001, submitted that it was based on advise of the University authorities. In his submission the State Government had considered the merits of the proposal moved by the respondent No. 3 : since the permission was received belatedly, the respondent Nos. 3 and 4 were advised by the Nagpur University to start Arts College from the next academic session i.e. 2002-03. According to him, idea of communicating population of Sawargaon as 45,000 was to convey the population of Sawargaon with other adjoining villages.

20. Mr. Parchure further submits that having regard to the sudden increase in the number of students opting for Art subjects, the State thought it fit to accept the proposal of the respondent No. 3 to run Arts College at Katol. He tried to highlight the meritorious record of the respondent No. 3 and 4 and tried to deny the allegations of favoritism canvassed by the petitioner. When Mr. Parchure was confronted with a question as to when, and by what mode, the respondent No. 3 applied to the State Government to get the original order granting permission to open college at Sawargaon amended; Mr. Parchure, initially, tried to locate such application but he could not. When he was confronted with the original record produced by the State Government; which did not have such application and found that the record contains only one private letter written by Shri Sunil Shinde to Shri Dilip Walse Patil in his personal capacity, he also found it difficult to take his submissions to the logical end. Though he tried his best to emphasis that once the college is allowed to function, this Court should not exercise writ jurisdiction to upset the said impugned orders, which in his submission would affect the education of the students, who are taking education in the college.

21. In the rejoinder. Mr. Choudhary sought to press into service some legal submission, based on the recent order passed by this Court in W.P. No. 2365/01, dated 26-9-2003; whereby the Nagpur University and the State Government is directed not to consider any application for grant of new college so long as the Perspective plan as required under Section 82 of the Act is not prepared by the University. He further pressed into service another judgment of the Division Bench of this Court in the Case of Gram Vikas Sanstha and Ors. v. State of Maharashtra and Ors. in Writ Petition No. 2365/01, decided on 26th September, 2003 (unreported), since reported in 2004(1) Mh.L.J. 664 wherein this Court was pleased to set aside the grant of permission in favour of new colleges for want of Perspective plan under Section 82 of the Act. Mr. Choudhary in the wake of this order submitted that the impugned orders on this ground are also liable to be set aside.

Considerations

22. Having heard the parties at length, it is not in dispute that in pursuance of the permission granted by the State Government in favour of the respondent No. 3, society did not establish or start or open new Arts College at Sawargaon. It is also not in dispute that within three months Mr. Shinde applied for transfer of the College from Sawargaon to Katol by writing a private letter to Shri Dilip Walse Patil under his signature. The said letter can hardly be said to be the representation or request made by the respondent No. 3 - society to the State Government to seek permission to transfer College from Sawargaon to Katol. No resolution of the society resolving to make such a request to the State Government is to be found on record, obviously, for want of its existence. Any specific application made to the State Government in this behalf by the respondent No. 3 is neither produced by the Respondent No. 3 nor received by the respondent No. 1 at any point of time. In fact no such application exists. It is really a sorry state of affair that the Education Department of the State should run its affairs treating it as a private department of a private organization. Needless to mention that the State Government is expected to run its affairs on the practice known to law. Its transactions or orders are expected to be transparent.

23. We are surprised to see a personal letter written by Mr. Sunil Shinde in his individual capacity to the Hon'ble Minister of Education in his personal capacity based on the previous personal talks, the contents of which are not known to anybody. The record produced by the State Government also depicts a sorry state of affairs; wherein the date of opening of the order sheet is w.e.f. 7-9-2001 i.e. subsequent to the letter written by Sunil Shinde to Mr. Dilip Walse Patil, that too, on the letterhead of Maharashtra Housing Area Development Authority (MHADA). The request was not even on the letterhead of the society or College. No recommendations were obtained or received from the University for opening or shifting new college. Under these circumstances, the impugned orders in our opinion cannot stand to the scrutiny of law and the same are liable to be quashed and set aside.

24. In view of the law laid down by the Division Bench of this Court in the case of Dnyanganga Krida Arogya Va Shikshan Prasarak Mandal v. State of Maharashtra and Ors., 1999(2) Mh.LJ. 323, the application for grant of permission to shift college has to be examined and considered by the University, to which the college is affiliated, in the light of provision of Section 82 of the Maharashtra Universities Act. The said provision clearly stipulates that the application filed by the management for opening a new college or institution of higher learning, not in conformity with the Perspective Plan, cannot be granted by the University. 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 scrutinized by the Board of College and University Department as required by Section 82(4) and are required 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 the applications recommended by the University, may grant permission to such institutions as it may consider right and proper in its absolute discretion, as stipulated in Section 82(5) of the Act. Thus, under Section 82(5), the State Government has wide discretion even to decline permission to such institutions, the applications of which have been recommended by the University.

25. Under the proviso to Sub-section (5) of Section 82, the State Government has power to grant approval for starting new college or institution of higher learning, even though the University may not have recommended the grant of such approval. But such power vested in the State Government can only be exercised in exceptional cases for the reasons to be recorded in writing. The said proviso is applicable only to such applications which were considered but not recommended by the University. Only in such cases the State Government has overriding power to grant approval, that too in exceptional cases for the reasons to be recorded in writing. It may also be possible that when such applications 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 were not obtained. This power, as stated hereinabove, given to the State is to be exercised in exceptional cases that too based on reasons.

26. In the said judgment this Court ruled that even permission granted by the State Government for starting new course or College in exercise of powers under provision to Sub-section (5) of Section 82 of the Act has to be based on reasons. Having considered the law laid down by this Court from time to time, we are also of the opinion that due procedure is required to be followed while transferring college from one place to another. No such procedure appears to have been followed in this case. As such we hold that the State Government has no power to grant permission to shift new college or institution of higher learning from one place to another wherein the application is not in conformity with the Perspective Plan. Admittedly, the respondent Nos. 3 and 4 fall in the aforesaid category. The Government has no power to grant permission to shift the College from one place to another.

27. It will not be out of place to mention that this Court from time to time has emphasized the necessity of having a Perspective Plan and the consideration of the application according to the said Perspective Plan. Since the application of the respondent No. 3 was considered by the State Government without there being any Perspective Plan prepared by the University, the permission to open College and to shift from Sawargaon to Katol also is liable to be quashed even on this count.

28. This Court in the case of Shikshan Samiti, Gadhinglaj v. State, 2001 (1) Mh.L.J. 36 to which one of us (Daga, J. is a party), has observed as under :-

"If the order of the State Government granting permission to shift Respondent No. 4 College from Kanadewadi to Nesri is examined in the above backdrop, it would be clear that no reasons are recorded by the Minister of Education for granting permission. We, therefore, hold that the order passed by the State Government is arbitrary for want of reasons and thus violative of principles of natural justice, which are part of Article 14 of the Constitution of India."

29. The impugned orders are also bad for want of reasons. In the case of Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala, the Central Government had reversed the decision appealed against without giving any reasons and the record did not disclose any apparent ground for the reversal. The Apex Court held that, there was no proper trial of appeal before the Central Government since no reasons had been given in support of the order passed by the Deputy Secretary who had heard the appeals, whereby the order of the original authority was reversed. The Apex Court further emphasized that the condition to give reasons introduces clarity and excludes or at any rate minimizes arbitrariness; it gives satisfaction to the party against whom the order is made and also enables an appellate or supervisory Court to keep the authority within bounds. A reasoned order is a desirable condition of any good administration because the decision of the statutory authority in our country is subject to the supervisory writ jurisdiction of the High Court and of appellate jurisdiction of the Apex Court under Article 136 of the Constitution of India. It goes without saying that both the High Court and the Apex Court are placed under a great disadvantage if no reasons are given. The reasons are insisted upon in support of the order for three reasons.

(i) that the party aggrieved has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were erroneous;

(ii) that the obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority,

(iii) that the higher judicial forum gets an opportunity to read the mind of the decision making authority in the event of challenge in the Court of law.

30. It is needless to mention that Article 14 strikes at arbitrariness in State action and ensures a fair and equal treatment. It requires that the State action must be based on valid, relevant principles applicable alike to all similarly situated and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reasons for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power.

31. Recording of reasons in support of a decision on a disputed claim by the authority concerned ensures that the decision is reached according to law on the basis of policy or expediency and is not the result of caprice, whim or fancy. The authority is expected to adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. It is also a well-known principle that the person dealing with the State must be satisfied that his case has received proper attention at the hands of the State. The reasoned conclusions, on the other hand, will also have the appearance of justice.

32. If the order of the State Government granting permission to shift College from Sawargaon to Katol is examined in the above backdrop, it would be clear that no reasons were recorded by the Hon'ble Minister of Education in support of the impugned orders. We, therefore, hold that the orders passed by the State Government are arbitrary for want of reasons.

33. The petitioner society had made representations after representations; the same are filed on record as Annexure "D" and "F". The petitioner society had a reasonable expectation of likely to be affected by a prejudicial decision likely to be taken by the State Government as such had a right of being heard. It is needless to mention that the power to determine questions affecting the rights of the persons imposes limitation that the power should be exercised in conformity with the principles of natural justice. It was, thus, obligatory on the part of the State Government to hear the petitioner before taking decision to grant permission to shift respondent No. 4 college. The impugned action and/or order, therefore, is clearly in violation of the principles of natural justice and the same deserves to be quashed on this count also.

34. It is no doubt true, that certain allegations of political interference were also made by the petitioner without joining necessary persons as party -respondents to the petition against whom allegations of mala fides were made. We are, therefore, not inclined to take into consideration the challenges sought for in this petition in this behalf. The observations in narration made by us are based on the record maintained and produced by the State Government.

35. In the result, the impugned orders dated 29-6-2001 and 16-10-2001 are set aside. The admitted students of the respondent Nos. 3 and 4 pursuant to the issue of orders dated 29-6-2001 and 16-10-2001 are permitted to pursue their study in the college for academic sessions 2003-04 and shall be entitled to take their examination of the relevant course if they are otherwise eligible. We direct the respondent No. 2 -University to issue necessary instructions to other colleges to admit and adjust the students who would require the admission in the next academic session.

The writ petition is allowed in the above terms, and Rule is made absolute with no order as to costs.