Bombay High Court
Ssud Ayurved Medical College And ... vs The Maharashtra University Of ... on 15 October, 2013
Bench: B.R. Gavai, Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.3797/2013
SSUD Ayurved Medical College and Hospital at Koli,
Karanja (Lad), Distt. Washim,
through its Principal, Dr. Kishor s/o Daulatrao Tarar. ..Petitioner.
..V/s..
The Maharashtra University of Health Sciences,
Vani Road, Mhasrul, Nashik - 422 004,
through its Registrar,
e-mail : [email protected] ..Respondent.
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Mr. F.T. Mirza Advocate for the petitioner.
Mr. Abhijeet Deshpande, Advocate for the respondent.
Mr. R.M. Pande, Adv. for intervenor.
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CORAM : B.R. GAVAI AND
Z.A. HAQ, JJ.
DATE OF RESERVING THE JUDGMENT : 26.09.2013
DATE OF PRONOUNCING THE JUDGMENT : 15.10.2013
JUDGMENT (Per Z.A. Haq, J.)
1. Heard. Rule. Rule is made returnable forthwith.
2. The petition raises the challenge to the order issued by the
Registrar of the respondent - the University on 12th June, 2013 by which it is
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informed that the affiliation of the petitioner college is permanently withdrawn for
breach of the provisions of Section 63 of the Maharashtra Universities of Health
Sciences Act, 1998 (for short "the Act") by the resolution of the Management
Council dated 10th January, 2013.
3. The respondent - University has filed the preliminary objection to
the maintainability of the writ petition on the ground that the Society 'Maa
Vaishnavi Mahila Mandal' bearing Registration No.Mah.78/93, Mumbai - F10617,
having its office at Sharda Apartment, A/4, Dr. R.P. Banerjee Road, Dhantoli,
Nagpur is a necessary party to the writ petition and according to the
respondent - University the Society is the appropriate person which can maintain
the writ petition in the matter. The respondent - University has further raised the
preliminary objection that the Union of India and the Central Council of Indian
Medicine, New Delhi are also necessary parties and should have been
impleaded as the party respondents. Mr. Abhijeet Deshpande, the advocate
appearing for the respondent - University has relied on the provisions of
Sections 63, 64, 66(1), 73(1) and 74 of the Act and submitted that the
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responsibility of administering the institution is of the Management and the
impugned order is also issued to the President and the Secretary of 'Maa
Vaishnavi Mahila Mandal'. He has further relied on the definition of the
"Management" under Section 2 (21) of the Act, which reads as under :-
"Management" means the trustees, or the managing or
governing body, by whatever name called, of any trust registered under
the Bombay Public Trusts Act, 1950 or any society registered under the
Societies Registration Act, 1860 under the management of which one
or more colleges or recognized institutions or other institutions are
conducted and admitted to the privileges of the University :
Provided that, in relation to any college or institution established
or maintained by the Central Government or the State Government or a
local authority such as a Zilla Parishad, municipal council or municipal
corporation, it means, respectively, the Central Government or the State
Government or the concerned local authority that is the Zilla Parishad,
municipal council or municipal corporation, as the case may be."
4. Mr. Deshpande submits that the President of 'Maa Vaishnavi Mahila
Mandal' Mrs. Dhanashri Yerkude has submitted a representation dated 10th April,
2013 stating that Dr. Tarar (who has filed the writ petition) is not the Principal of
the SSUD Ayurved Medical College and Hospital at Koli (the petitioner).
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5. There is an apparent dispute between the Management and
Dr. Tarar, who has filed the writ petition at the behest of the college. 'Maa
Vaishnavi Mahila Mandal' has filed the Civil Application No.2176/2013 praying for
directions to the petitioner - college to implead it as the respondent in the writ
petition. Alternatively, it is prayed in the civil application that 'Maa Vaishnavi
Mahila Mandal' be permitted to intervene in the proceedings of the writ petition as
the respondent. It is stated in the civil application that Dr. Tarar is not authorized
to file the writ petition before this Court. It is stated that Society has never
appointed Dr. Tarar as the Principal of the petitioner college and he is illegally
and unauthorizedly claiming himself to be the Principal of the petitioner - college.
It is stated that the Society has applied to the Competent Authority for grant of
permission to shift the petitioner college from Koli, Tahsil Karanja (Lad), Distt.
Washim to Kohli, Tah. Kalmeshar, Distt. Nagpur and this request letter is dated
10th April, 2013. It is stated that Manoj Manohar Sawalkar and his wife Dr. Varsha
Manoj Sawalkar are creating nuisance in the Management of the Society with
intention to usurp the Management of the Society and in furtherance of their
intention they have placed on record of the respondent - University the bogus
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registration certificate of the applicant Society showing its address as Panjarapol
Sansthan, Murtizapur Road, Karanja (Lad), Distt. Washim. It is stated that Dr.
Tarar in connivance with Dr. Manoj Manohar Sawalkar and his wife Dr. Varsha
Manoj Sawalkar has illegally and unauthorizedly shown himself to be the
Principal of the petitioner college.
6. Mr. R.M. Pande, the learned advocate for the intervenor Society
has submitted that the intervenor Society who is "Management" as contemplated
by virtue of Section 2(21) of the Act is the only person in the eye of law which can
be said to be aggrieved by the impugned order of the respondent - University
and the applicant Society has not filed writ petition challenging the impugned
order and the writ petition as filed is also by unauthorized person and the same is
not maintainable and be dismissed with exemplary costs.
7. Mr. Deshpande, the learned advocate for the respondent -
University has pointed out that the registration certificate issued by the Assistant
Registrar of Societies, Nagpur bearing No.Mah.78/93 (Nagpur) in favour of 'Maa
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Vaishnavi Mahila Mandal', Nagpur dated 29th January, 1993, which according to
him, shows the details of the Society with which the respondent - University is
concerned and in whose favour the permission is granted for administering the
institution, is at page no.129. Mr. Deshpande, the learned advocate has pointed
out that another registration certificate, which is at page 130, issued by the
Assistant Registrar of Societies, Washim, which shows that 'Maa Vaishnavi
Mahila Mandal Panjarapol Sansthan Murtizapur Road Karanja (Lad), Distt.
Washim is registered vide No.Mah.847/10 (Washim). According to Mr.
Deshpande there is an attempt by the 'Maa Vaishnavi Mahila Mandal Panjarapol
Sansthan to mislead the respondent - University to foist itself as the
Management of the petitioner college, which is not permissible and is not
acceptable to the respondent - University.
8. Mr. Mirza, the learned advocate for the petitioner college has
submitted that the civil application filed by 'Maa Vaishnavi Mahila Mandal,
Mumbai' is liable to be rejected inasmuch as it has no concern with the subject
matter of the writ petition. He has further submitted that the
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respondent - University is unnecessarily creating confusion by raising the
preliminary objection and is avoiding to contest the matter on merits. Mr. Mirza
has submitted that the issue which falls for consideration of this Court is about
the continuation of affiliation of the petitioner college and the grant of permanent
affiliation to the petitioner college which is covered by the provisions of Sections
68 and 70 of the Act. Mr. Mirza has submitted that there is nothing in Section 68
and 70 of the Act which provides that the Management of the college is the only
competent person which can be said to be aggrieved in the matter so as to
enable it to maintain the writ petition challenging the impugned order of the
respondent - University. Mr. Mirza has further submitted that the impugned
order adversely affects the petitioner college and the affiliation is always viz-a-viz
the College and not the Management and therefore, the preliminary objection as
raised by the respondent - University about the maintainability of the writ petition
at the behest of the petitioner college, is misconceived and may not be accepted.
9. We have considered the submissions of the respective parties and
the intervenor. It is apparent that there is dispute between Dr. Tarar, who has
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filed the writ petition on behalf of the petitioner college, and the intervenor
Society and there is also dispute between two different Societies (i) 'Maa
Vaishnavi Mahila Mandal, Mumbai (Registration No.Mah.78/93, Mumbai - F10617
and 'Maa Vaishnavi Mahila Mandal Panjarapol Sansthan, Murtizapur Road, Distt.
Washim (Registration No.847/2010 (Washim). The disputed questions of facts
cannot be gone into by this Court in the writ petition, and one thing is clear that
the petitioner college is avoiding to bring on record the correct factual position.
10. The provisions of Section 63, 66(1), 73(1), 74 and 2(21) of the Act
show that it is the "Management" as defined under Section 2(21) of the Act which
is responsible for administering the college and is answerable to the Central
Government, Central Council of Indian Medicine and the respondent - University.
The communication dated 19th June 2008 issued by the Director, Department of
Ayurveda Yoga and Naturopathy Unani Siddha and Homeopathy (AYUSH)
shows that the permission is granted by the Central Government to 'Maa
Vaishnavi Mahila Mandal Panjarapol, Murtizapur Road, Karanja (Lad) to
establish new SSUD Ayurved and Medical College at Karanja (Lad) with annual
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intake of 56 from the academic session 2008 - 2009 under the provisions of
Section 13A of the Indian Medicine Central Council Act, 1970. The
respondent - University in the reply filed by it has stated that the Management of
'Maa Vaishnavi Mahila Mandal' bearing Registration No.Mah.78/93, Mumbai
F-10617 has informed it that it has not appointed Dr. Tarar as Principal of the
petitioner college. The application form for opening a new college which is
submitted to the respondent - University and the copy of which is at page 232 of
the writ petition shows that it is made by 'Maa Vaishnavi Mahila Mandal
Panjarapol Sansthan and the registration number is shown as Mah.78/93
(Nagpur) dated 29th January, 1993. Registration certificate (at page 133) shows
that 'Maa Vaishnavi Mahila Mandal Panjarapol Sansthan' is registered with the
Assistant Registrar of Societies, Washim bearing registration No.Mah.847/2010
(Washim). In these confusing facts, it is not possible for this Court to examine
the issues which are raised in the writ petition. The petitioner was under an
obligation to implead both the Societies as the party to the writ petition. In our
view looking to the scheme of the Act and considering the provisions of Sections
63, 73(1) and 74 of the Act, it is only the Management as defined under Section
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2(21) of the Act, which is obliged to administer the college and which is
responsible to the University, the Central Government and the Central Council of
Indian Medicine and is answerable to them in the matters relating to the college.
The writ petition at the behest of the college only, is not maintainable. Apart from
this, the writ petition is liable to be dismissed for non-joinder of the necessary
parties i.e. Union of India and the Central Council of Indian Medicine as the
issues which arises for consideration in the writ petition cannot be adjudicated in
their absence. Therefore, the writ petition has to be dismissed.
11. Writ petition is dismissed. In the facts and circumstances of the
case, parties to bear their own costs.
JUDGE JUDGE
Tambaskar.
