Public Education Soc. Walwadi vs The State Of Mah And Ors
2018 Latest Caselaw 168 Bom

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

                     WRIT PETITION NO. 6143 OF 2012


 1.       Public Education Society,
          Walwadi, Gondpur Road, Dhule,
          Through its President :
          Shri Sahebrao s/o Vitthalrao Bhamre
          Age 68 years, Occu. Legal Practitioner,
          And Agriculture,
          R/o Professor Colony Road, Deopur,
          Dhule, District Dhule                        .. Petitioner

                  versus

 1.       The State of Maharashtra,
          Through the Secretary for Higher and
          Technical Education Department,
          Mantralaya, Mumbai.

 2.       The Director,
          Higher and Technical Education
          Department, Maharashtra State,
          PUNE

 3.       The North Maharashtra University,
          Namavi Nagar, Jalgaon,
          District Jalgaon,
          Through its Registrar

 4.    Sharda Shaikshnik and Samajik
       Sanstha, Dhule, 71, Satsang Colony,
       Near Shani Mandir, Walwadi,
       Gondpur Road, Dhule,
       Dist. Dhule
       Through its President                     .. Respondents
              -----
 Mr. Vinayak D. Hon, Senior Advocate for petitioner
 Mrs.Vaishali S. Choudhary, Assistant Government Pleader for
 respondents no.1 and 2
 Mr. Yogesh Bolkar, Advocate for respondent no. 3
 Mr. Anand V. Patil (Indrale), Advocate for respondent no.4




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                               CORAM :      SUNIL P. DESHMUKH
                                            P. R. BORA, JJ.

DATE : 8-01-2018

ORAL JUDGMENT (PER : SUNIL P. DESHMUKH, J.

1. Rule. Rule made returnable forthwith and heard learned

counsel for appearing parties finally by consent.

2. Petitioner poses challenge to permission granted to

respondent no.4 by respondent no. 1 under order dated 19-

06-2012 for conducting courses for graduation in science at

Walwadi, Taluka and District Dhule and also seeks mandamus

to respondent no. 3 - University not to grant affiliation to

respondent no. 4 to run said course in its college at Walwadi,

Dhule.

3. Learned senior advocate Mr. Hon appearing on behalf of

petitioner submits that petitioner - institution had been

granted permission to run Arts, Commerce and Science

faculty courses at Walwadi, Dhule way back in 2004-05. Since

then, petitioner had been running faculty of Arts on its

affiliation being approved by respondent no. 3. For want of

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students till 2011-12, commerce and science faculty courses

could not be started. In the circumstances, petitioner had

sought permission to run said courses at Walwadi, Dhule

around 2012.

4. However, while permission had been granted to

petitioner, it transpires that a permission had also been

granted to respondent no. 4.

5. According to his instructions, application for permission

by respondent no. 4 to respondents no. 1 had been for

running B. C. A. course at Walwadi, relevant for commerce

faculty. Respondent no. 4 had submitted proposal for

extension of faculty and not starting a new college.

Permission had been granted to respondent no. 4 for running

the science faculty at Deopur, Dhule and not at Walwadi.

6. Learned senior advocate further submits respondent no.

4 started running science faculty course at Walwadi, Dhule

upon a piece of land adjacent to that of the petitioner. He

submits, permission could not have been granted for running

science faculty to respondent no. 4 upon a land which is just

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adjacent to the land belonging to petitioner separated only by

intervening compound wall. He submits, this proximity of

science faculty sought to be run by respondent no. 4 has

denuded petitioner of students for science faculty. He further

submits that in any case.

7. He submits, despite objection on the count that

respondent no. 4 had not submitted any proposal for science

faculty at Walwadi, no material supporting the case of

respondent no. 4 of having science faculty at Walwadi had

been placed forth thus far. Proposal by respondent no. 4 for

running said faculty in its college had been deficient in many

respects. In the first place, the land requirement cannot be

said to have been satisfied by respondent no.4, 7 x 12

extract is being relied on for the same.

8. According to learned counsel though perspective plan

prepared accommodates two colleges at Dhule yet, it has to

be considered that both the colleges are not supposed to be

in one and the same locality. According to him, logically two

education institutions so far as science faculty is concerned

ought to be geographically suitably placed so that it would be

a facility for citizens.

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9. Learned senior counsel passingly refers to that proposal

for science faculty by respondent no. 4 has been granted

since one of the persons associated with respondent no. 4 had

been a member of academic council of respondent no.3. He

submits that even otherwise, the overreaching conduct of

respondent no. 4 had been noted by this court in present writ

petition, while passing an order on 05-09-2012 granting

interim relief in the shape of putting restraint on respondent

no. 4 from admitting students to science faculty since it had

not received affiliation from respondent no. 3. He submits,

despite this order, subsequently respondent no. 4 had

admitted students to science faculty at Walwadi and had been

running science college at said place. He thus urges this

court to intervene in the matter and set aside and cancel

permission granted to respondent no. 4 for running a science

faculty at Walwadi.

10. Learned counsel Mr. Yogesh Bolkar appearing on behalf

of respondent no. 3 - University refers to that so far as

perspective plan which has been prepared in accordance with

provisions of section 82 of the Maharashtra Universities Act,

1994 is concerned, same provides for two establishments of

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science faculty in Dhule city. According to his instructions,

inter-alia, Walwadi and Deopur form part of and comprise

Dhule city. It cannot be said that Walwadi is not part part of

Dhule city. He submits, pursuant to the plan, applications had

been invited for opening new colleges or institutions and were

scrutinized as required, by board of college and university

development with the approval of management committee

and were forwarded to the State government. The State

government appears to have accordingly processed

applications and both the proposals which were recommended

by the university had been granted.

11. He submits, writ petition no. 544 of 2013 filed by

petitioner was disposed of with direction to Academic Council

to take decision expeditiously without getting bogged down by

pendency of present writ petition. Subsequent to the same,

while affiliations were applied for, respondent no. 4 had been

granted affiliation whereas, it was rejected in case of

petitioner. He refers to writ petition no. 4358 of 2013 at

petitioner's behest against aforesaid. In the same, resolution

adopted by academic council dated 28-05-2013 had been set

aside under order dated 19-06-2013 with direction to

University to take decision in accordance with relevant rules

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and relevant statutes, further observing that husband of

president of institution - respondent no. 3 in said writ petition

(respondent no.4 in present writ petition) shall keep himself

away from decision making process. Accordingly, applications

were re-processed and affiliation had been granted to

petitioner as well as respondent no. 4.

12. He submits that the whole procedure as prescribed

under the provisions of Maharashtra Universities Act about

preparation of master plan, about seeking permission and

recommendation of the institution had been followed as

required, particularly sections 81 onwards upto section 85.

He submits that on grievance of petitioner in respect of

respondent no. 4's land holding, it had been found that

proposal by respondent no. 4 had been in acceptable order

according to norms and had been processed and

recommendation of the institution for running science faculty

had been made and permission had been granted by the

government. He submits, there is no particular prohibition for

granting permission or for that matter affiliation when the

institutions are adjacently situated. The proposals are

considered in accordance with provisions, norms and

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guidelines and accordingly were processed, considered and

granted affiliation. He submits, there are no lacunae in the

undergone processes.

13. Learned Assistant Government Pleader for State submits

that recommendations for permissions forwarded by the

University had been duly considered by the government. It is

further being referred to that after finding the proposals in

order, it had been considered right and proper and petitioner

and respondent no. 4 had been granted permission for

science faculty. All requisite parameters as were considered

by the university were examined and since the proposals were

found to be in order and in accordance with law permission

had been granted.

14. Learned counsel Mr. A. V. Patil (Indrale) appearing on

behalf of respondent no. 4 submits that challenge posed to

permission granted to respondent no. 4 to run science faculty

at Walwadi is without any substance and has been raised

because despite permission having been granted to petitioner

to run science faculty since 2004, petitioner had failed to

muster sufficient strength of students to start science faculty.

While the action had been mooted by respondent no. 4 to run

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science college at Walwadi around 2012, after preparing all

the infrastructure required therefor, the same has been

considered to be potential threat to run science faculty of

petitioner. As such, around the same time petitioner filed

application again for permission for running science faculty at

Walwadi. Though petitioner had objected to the proposal of

respondent no. 4 for permission and affiliation claiming that

two institutions cannot be accommodated for running science

faculty in Dhule city, both the proposals were duly considered,

processed and granted permission. Proposal of respondent

no. 4 since being in compliance with requirements of

provisions of the Maharashtra Universities Act, 1994, norms

and guidelines, came to be granted. The proposal had not

been deficient on any count. There is no embargo either

under the provisions of the Maharashtra Universities Act or

norms prescribed in that behalf. What is to be seen is,

whether the proposals comply with legal and other

requirements. Since respondent no. 4's proposal had been in

compliance of such requirements, permission granted to

respondent no. 4 shall not be faulted with on any feeble and

untenable grounds as sought to be raised by petitioner.

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15. He submits that despite permission since 2004 and even

after 2012, the petitioner has not been able to have students

for running science faculty and is unnecessarily putting blame

for the same on respondent no. 4. Challenge by petitioner is

vacuous on all counts. He submits that objection by

petitioner on the ground of landholding of respondent no. 4

not being sufficient has been duly considered since persons in

whose name landholding is shown, have been unequivocal on

that they hold it for respondent no. 4 and for no other

purpose and/or person. All these aspects have been properly

examined, scrutinized and thereafter the permissions have

been considered and granted.

16. Provisions of Maharashtra Universities Act, 1994,

Chapter X which deals with permission, affiliation and

recognition. Section 82, envisage preparation of a perspective

plan at the instance of University and approval to the same by

State Council for Higher Education for educational

development for the location of colleges and institutions of

higher learning. It appears, in accordance with the same, as

per perspective plan prepared for Dhule city, there has been

accommodation for two education institutions for running

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science colleges. So far as this aspect is concerned, there is

no dispute among the parties.

17. Further, in accordance with provisions of Maharashtra

Universities Act, the managements had sought permission to

open colleges for higher education and same had been

scrutinized by the university and was forwarded to State

government with approval and recommendation of

management committee. Sub-section (5) of section 85 of the

Act invests State government with power to consider grant of

permission in its absolute discretion, budgetary resources,

suitability of the managements seeking permission to open

new institutions and the State level priorities with regard to

location of institutions of higher learning.

18. There had been litigation before this court. Under the

orders of this court the question of affiliation to petitioner as

well as respondent no. 4 had been considered and both the

application for affiliation were considered and granted by the

university. Affiliation granted to respondent no. 4 had not

been a matter of challenge before any authority subsequently.

19. It, thus, emerges that while petitioner-institution had

been granted permission for science faculty in 2004, till

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2012, it had not been able to start and run the same. While

application seeking permission for running science faculty at

Walwadi had been moved by respondent no. 4, challenge to

the same is sought to be posed on the ground that starting of

such science faculty in the adjacent land would affect strength

of students for running science faculty in petitioner's college.

There does not appear to be any prohibition under the

guidelines or norms or there being any restriction on having

two institutions running science faculty in close vicinity.

Two science colleges were provided for under perspective plan

and the proposals were processed which were fulfilling

requirements under provisions of Maharashtra Universities Act

and guidelines in that respect.

20. The contention of the petitioner that there can not be

permission or affiliation for running science faculty at

Walwadi, Dhule to respondent no. 4 is not supported by any

material, legal or otherwise. As stated earlier, perspective

plan provides for two colleges at Dhule, and Walwadi

indisputably forms part of city of Dhule. It has come forth

that petitioner could not muster students from 2004-2005 for

science faculty. There is no material placed by petitioner in

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support of his submission that running of science faculty at

Walwadi had affected students strength in its science faculty.

21. The other submission on behalf of the petitioner with

regard to respondent no. 4 having applied only for B.C.A.

course also appears to be unfounded when considered with

reference to affidavit-in-reply by University referring to that

there has been indeed an application for science faculty at

Walwadi by respondent no. 4 institution and accordingly the

University and State government have considered proposal of

respondent no. 4 and accorded approval to the same.

22. Aforesaid background does not persuade us to disrupt

the ongoing running of science faculty by respondent no. 4 at

Walwadi by intercepting the permission and affiliation

granted. It does not appear that writ petition carries any

substance to successfully pose challenge to the permission

and affiliation granted to respondent no.4.

23. Writ petition, as such, fails and is dismissed. Rule is

discharged.

             P. R. BORA,                      SUNIL P. DESHMUKH,
                JUDGE                              JUDGE

 pnd/-