Al Sabha Education & Welfare ... vs State Of Maha & Ors
2017 Latest Caselaw 7566 Bom

                                           (1)                 WP No. 4105/2006

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD.


                     WRIT PETITION NO. 4105 OF 2006
  
 Al Sabha Education and Welfare                                             
 Society, Aurangabad (Through its                                           
 Secretary Shaikh Mansoor s/o                                               
 Shaikh Mustafa                                                          
 Age : 36 yrs, occ : service                                             
 R/o Bari Colony, Aurangabad.                                Petitioner.

                  Versus

 1.       The State of Maharashtra
          (Through Secretary, Higher
          Education Department,
          Mantralaya, Mumbai).


 2.       Dr. Babasaheb Ambedkar
          Marathwada University,
          Through Registrar, Aurangabad.


 3.       Ekta Shikshan Prasarak Mandal
          Through its President
          Shri M.M. Shaikh
          C/o Opposite RTO Office,
          C/o Modern Education Society,
          Near Railway Station, Jagir
          Colony, Aurangabad.


 4.       Shri M.M. Shaikh
          Age : major, occ : social worker
          and President of respondent 
          No.3, r/o, c/o opposite RTO
          Office, c/o Modern Education
          Society, Near Railway Station,
          Jagir Colony, Aurangabad.         Respondents.




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                                         (2)                 WP No. 4105/2006

                                  ***
 Mr. A.B. Jagtap, Advocate holding for                                            
 Mr. V.D. Sapkal, Advocate for the petitioner.


 Mr.A.R. Borulkar, A.G.P. for respondent No.1.


 Mr.K.M. Suryawanshi, Advocate for respondent No.2.


 Mr.S.M. Godsay, Advocate for respondent Nos.3 & 4.
                                  ***


                                CORAM :  R.D. DHANUKA &
                                         SUNIL K. KOTWAL,JJ.

Dated : 26-09-2017.

ORAL JUDGMENT (PER R.D. DHANUKA, J.):-

1. By this petition under Article 226 of the

Constitution of India, the petitioner has impugned

the order dated 30.04.2001 granting permission to

the respondent No.3 to start Senior College at

Bidkin, Taluka Paithan, District Aurangabad.

2. Some of the relevant facts for the

purpose of deciding this petition are as under.

3. It is the case of the petitioner that the

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petitioner is Minority Educational Institution and

has been successfully running two recognised High

Schools i.e. one in Marathi medium and another in

Urdu medium in Aurangabad city. On 10.10.1997,

petitioner submitted a proposal for grant of

permission to open and run a college and deposited

a sum of Rs. 5,000/- with the University. On

27.01.1998, the proposal of the petitioner was

recommended by the University to the State

Government. Since no decision was taken by the

State Government on the said proposal of the

petitioner and on the recommendation of the

University, the petitioner filed Writ Petition No.

4778/1998 in this Court. By an order dated

10.11.1998, this Court directed the respondent

No.1 to consider the proposal of the petitioner

within a period of 4 months from the date of the

said order.

4. By an order dated 08.03.1999 respondent

No.1 once again rejected proposal of the

petitioner on the ground that there was no

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sufficient strength of students and directed that

the petitioner may submit a proposal for academic

year 1999-2000. The petitioner thereafter filed

Writ Petition No. 2951/1999 challenging the

legality and validity of the order dated

08.03.1999 in this Court. The petitioner also

submitted a fresh proposal in the month of October

1998. This Court, by an order dated 13.06.1999,

directed respondent No.1 to take decision on the

pending proposal of the petitioner and adjourned

the matter for some time. Respondent No.3 also

had submitted a proposal for starting a college.

The proposal of the petitioner was rejected and

the proposal of respondent No. 3 was allowed to

run Senior College at Bidkin. The petitioner

filed Civil Application No. 3963/1999 to implead

respondent No.3 as party respondent, which was

granted. Respondent No.1 thereafter passed a

fresh order against the petitioner and in favour

of respondent No.3, which is impugned by the

petitioner in this petition.

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5. Learned Counsel for the petitioner

invited our attention to some of the annexures to

this Writ Petition and would submit that though

the petitioner was eligible for grant of

permission to start a college, the application of

the petitioner was illegally rejected and the

application of respondent No.3 was illegally

allowed. He submits that though this Court had

directed the Authority to pass a reasoned order

after considering the applications of the

petitioner and respondent No.3, the Authority did

not pass any reasoned order and mechanically

dismissed the application filed by the petitioner.

He submits that the order dated 30.04.2001 passed

by the Authority, thus, deserves to be set aside.

6. The petition has been resisted by

respondent No.3 as well as by the State Government

by filling affidavit.

7. Mr. Borulkar, learned A.G.P. for

respondent No. 1 submits that the petitioner had

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not satisfied the conditions of granting

permission to start new college whereas respondent

No.3 had satisfied those conditions. After

hearing both parties, respondent No.1 had passed

an appropriate order. The recommendations of the

University in respect of both applicants were

received by respondent No.1 and were duly

considered. He submits that the respondent No.3

has been running the said college for last several

years and thus no interference shall be made by

this Court with the impugned order passed by

respondent No.1.

8. Learned Counsel for respondent No.2-

University opposes the petition on the ground that

the University had recommended the name of both

parties to the State Government for approval. The

University is, thus, not at fault if the approval

was not granted by the State Government to the

application of the petitioner.

9. Learned Counsel for respondent No.3

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submits that the application of respondent No.3

was rightly considered by respondent No.1 and

after having satisfied that the proposal of

respondent No.3 was satisfying all the conditions

for grant of permission to start college, the

Authority had rightly granted permission to

respondent No.3 to start new college and rightly

rejected proposal of the petitioner. He submits

that the findings of the fact cannot be interfered

with by this Court.

10. It is lastly submitted by the learned

Counsel that pursuant to the said permission

granted by respondent No.1 as on 30.04.2001, the

respondent No.3 has been running the said college

for last more than 15 years and has been also

getting grant-in-aid from the Government. He

submits that at this stage, thus, this Court shall

not interfere with the impugned order passed by

respondent No.1 and if is interfered, great

irreparable injury would be caused to the

institution as well as to the students.

(8) WP No. 4105/2006

11. Mr. Jagtap, learned Counsel for the

petitioner, in re-joinder submits that though this

Court had directed respondent No.1 to produce

relevant files pertaining to the subject-matter of

this petition for perusal of this Court,

respondent No.1 has delinquently not produced the

files. He submits that this Court, thus, should

remand the matter back to the State Government for

deciding the proposal of the petitioner and

respondent No.3 afresh, and respondent No.1 shall

be directed to record the reasons.

12. A perusal of the record indicates that

this Court had directed the respondent No.1 to

consider the proposal of both parties and to pass

an order thereon. Respondent No.1 has accordingly

passed fresh order on 30.04.2001, rejecting the

proposal made by the petitioner and allowing the

proposal made by respondent No.3. There was no

interim relief granted by this Court when the

petition was admitted. Respondent No.3 has been

running the college in response to the said

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permission dated 30.04.2001 since then, and has

been also granted grant-in-aid by the State

Government fully.

13. As on today, there is no plan of the

University to start any other college at Bidkin.

There is no prospective plan of the University to

start any new senior college in the four districts

such as Aurangabad, Jalna, Beed and Osmanabad.

Mr. Suryawanshi, learned Counsel for the

University had already made a statement before

Court in this regard on 11.08.2017.

14. A perusal of the prayers in the petition

further indicates that though the petitioner had

prayed for quashing and setting aside the order

dated 30.04.2001 passed by respondent No.1, there

is no prayer in the petition for granting

permission to the petitioner to start senior

college at Bidkin in Taluka Paithan of district

Aurangabad. In the facts and circumstances of

this case we are, thus, not inclined to interfere

(10) WP No. 4105/2006

with the order dated 30.04.2001 passed by

respondent No.1 at this stage. If the said order

dated 30.04.2001 is interfered with by this Court

at this stage after 16 years, not only the

interest of the respondent No.3 Institution would

be seriously prejudiced, but also large number of

students who are taking education in respondent

No.3 college.

15. In our view, the petition is, thus,

devoid of merit. We, therefore, pass the

following order.

ORDER

1. Writ Petition No. 4105/2006 is dismissed.

2. Rule is discharged.

3. No order as to costs.

          ( SUNIL K. KOTWAL)                 ( R.D. DHANUKA)
                JUDGE                              JUDGE

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