Bombay High Court
Rajarshi Shahu Education ... vs The State Of Maharashtra And ... on 31 August, 2021
Bench: S.V. Gangapurwala, R. N. Laddha
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
986 WRIT PETITION NO. 9155 OF 2020
Gurukul Bahuuddeshiya Sevabhavi Pratishthan,
Waghalgaon, Post: Pimpalegaon (Gangdeo),
Tq.: Phulambri, Dist.: Aurangabad
Through its President Shri Bhausaheb
Narayan Gadekar, Age: 40 Yrs.,
Occ.: Service, R/o.: Waghalgaon,
Tq.: Phulambri, Dist.: Aurangabad..Petitioner
VERSUS
1. The State of Maharashtra,
Through the Principal Secretary,
Higher & Technical Education Department,
Mantralaya, Mumbai 400 032
2. Dr. Babasaheb Ambedkar Marathwada University,
Aurangabad, Through its Registrar
3. Aadarsha Education Society, Ambhai,
Tah.: Sillod, Dist.: Aurangabad,
Through it's President
Mr. Abdul Sameer s/o Abdul Sattar
4. Hindusthan Education Society,
Andhari, Tah.: Sillod, Dist.: Aurangabad,
Through its President
Dr. Ajiz Noor Mohd. .. Respondents
...
Advocate for Petitioner: Mr. Ajay S. Deshpande
I/c. G. P. for Respondent No. 1: Mr. D. R. Kale
Advocate for Respondent No. 2: Mr. S. S. Tope
Advocate for Respondent No. 3: Mr. A. S. Sakhare
Advocate for Respondent No. 4: Mr. V. D. Sapkal,
Senior Advocate i/b. Mr. S. R. Sapkal &
Mr. A. B. Chormal
...
AND
...
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986 WRIT PETITION NO. 6936 OF 2021
Rajarshi Shahu Education Society's
Yeshwantrao Chavan College of Arts, Commerce,
Science, Sillod, Tal. Sillod,
Dist. Aurangabad
Through its Secretary
Dr. Rahul Prabhakarrao Palodkar
Age: 37 years, Occu: Service,
R/o: Sillod, Tal.: Sillod,
Dist.: Aurangabad ..Petitioner
VERSUS
1. The State of Maharashtra,
Through Secretary,
Higher & Technical Education Department,
Mantralaya, Mumbai-32
2. Director of Higher Education
Pune, Tal & Dist. Pune
3. Dr. Babasaheb Ambedkar Marathwada University,
University Camp, Aurangabad,
Through its Vice-Chancellor
4. Adarsha Education Society's
Dr. APJ Abdul Kalam Arts and Science
College, Aland, Tal. Phulambri,
Dist.: Aurangabad
Through its President
5. Adarsha Education Society's
Dr. APJ Abdul Kalam Arts and Science
College, Sillod, Tal.: Sillod,
Dist.: Aurangabad
Through its President
6. Adarsha Education Society's
Dr. APJ Abdul Kalam Arts and Science
College, Sarola, Tal.: Sillod,
Dist.: Aurangabad
Through its President
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7. Hindustan Education Society Andhari,
National Arts and Science College,
Andhari, Tal.: Sillod, Dist.: Aurangabad,
Through its President .. Respondents
...
Advocate for Petitioner:
Mr. Shailesh P. Brahme & Mr. A. R. Syed
I/c. G. P. for Respondents No. 1&2: Mr. D. R. Kale
Advocate for Respondents No. 4 to 7: Mr. V. D.
Sapkal, Senior Advocate i/b. Mr. S. R. Sapkal &
Mr. A. B. Chormal
...
AND
...
986 WRIT PETITION NO. 6942 OF 2021
Rajarshi Shahu Education Society's Sahakar
Maharshi Manikrao Palodkar Mahavidyalaya,
Ajintha, Tq. Sillod, Dist. Aurangabad
Through its Secretary
Dr. Rahul Prabhakarrao Palodkar
Age: 37 years, Occu: Service,
R/o: Sillod, Tal.: Sillod,
Dist.: Aurangabad ..Petitioner
VERSUS
1. The State of Maharashtra,
Through Secretary,
Higher & Technical Department,
Mantralaya, Mumbai-32
2. Director of Higher Education
Pune, Tal & Dist. Pune
3. Dr. Babasaheb Ambedkar Marathwada University,
University Camp, Aurangabad,
Through its Vice-Chancellor
4. Indira Shikshan Prasarak Mandal
Society's Indira College of Arts
and Science, Ajintha, Tal. Sillod,
Dist.Aurangabad
Through its President .. Respondents
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...
Advocate for Petitioner:
Mr. Shailesh P. Brahme & Mr. A. R. Syed
I/c. G. P. for Respondents No. 1&2: Mr. D. R. Kale
Advocate for Respondent No.3: Mr. S. S. Tope
Advocate for Respondent No. 4: Mr. V. D. Sapkal,
Senior Advocate i/b. Mr. S. R. Sapkal &
Mr. A. B. Chormal
...
CORAM: S. V. GANGAPURWALA &
R. N. LADDHA, JJ.
DATE: 31st AUGUST, 2021
ORAL JUDGMENT (Per S. V. Gangapurwala, J.):
1. Rule. Rule returnable forthwith. With the
consent of parties, petitions are taken up for
final hearing.
2. The petitioners in all these writ
petitions are running Arts, Commerce and Science
colleges. The petitioner in Writ Petition No. 9155
of 2020 is running it's Senior College at Aland.
The petitioner is challening the Letter of Intent
issued to the respondents for location at Andhari
and Aland. In Writ Petition No. 6936 of 2021 the
petitioner is running it's senior college at
Sillod. It is within the limits of Municipal
Council, Sillod. The petitioner is challenging the
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Letter of Intent issued to the respondents for the
locations at Aland, Sillod, Sarola and Andhari. In
Writ Petition No. 6942 of 2021 the petitioner is
running it's senior college at Ajintha and
challenging the Letter of Intent issued to the
respondent to run the senior college at Ajintha.
3. We have heard the respective learned
Advocates for the petitioners, learned In-charge
Government Pleader for the State and the
respective learned Advocates and the Senior
Advocate for the respondents-institutions granted
Letter of Intent.
4. In all these matters where the Letter of
Intent are issued to the respective institutions
the University had given negative recommendations.
In spite of the negative recommendations of the
University the Letter of Intent is issued. The
contention of the learned Advocates for the
petitioners is that once the proposals are
forwarded with the negative recommendations of the
University the same has to be respected by the
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Government and if they want to overrule the
negative recommendations they can do so in
exceptional circumstances and for the reasons
recorded in writing. The reliance is placed upon
Section 109 (3) (d) of the Maharashtra Public
Universities Act, 2016 (hereinafter referred to as
"Act-2016"). According to the petitioners, there
are no reasons recorded in writing by the State
Government nor exceptional circumstances existed
for grant of Letter of Intent. According to the
learned Advocate for the petitioners, the
recommendations of Narendra Jadhav's Committee are
accepted by the Government wherein the distance is
required to be maintained between the colleges
functioning. It is submitted that in rural areas
there should be distance of 20 Kms. between two
colleges, in hilly and tribal area the distance
between two colleges should be 10 Kms. and in
District place the distance has to be 4 Kms so
also in partly city area distance has to be 5 Kms.
The recommendations of the Narendra Jadhav
Committee are accepted by the Government. They are
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bound by the same. It is contended that Andhari
and Ajintha are in hilly area. The learned
Advocates submit that the requirement of reasons
to be recorded cannot be merely illusory but has
to be based on reasonable satisfaction. The
learned Advocates rely upon the Judgment of the
Madras High Court in case of A. Mahalingam Vs. A.
N. Ray and others dated 04.09.2018. It is
submitted that perspective plan is sine qua non
for consideration of application for opening new
college. The University had prepared the
perspective plan however the Government interfered
with the same and directed the University to
change the locations in the perspective plan the
same is not permissible.
5. According to Mr. Kale, learned In-charge
Government Pleader the Government considered the
need of the college in that particular regions and
has issued Letter of Intent though negative
recommendations were given by the University. The
need for the colleges existed on the said
locations as the colleges were to be started in
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tribal area, hilly area. The need for opening the
new college has been considered by the Government
before issuing Letter of Intent to those colleges.
The Government has exercised it's powers U/Sec.
109(3)(d) of the Act-2016. The discretion has been
exercised in a proper manner. No mala fides can be
attributed to the Government in that regard.
6. The learned In-charge Government Pleader
further submits that all these colleges are
granted Letter of Intent on permanent non-grant
basis.
7. The learned Senior Advocate and the other
Advocates for the institutions granted Letter of
Intent submit that the locations where the Letter
of Intent are issued to these respondents appeared
in the perspective plan prepared by the
University. The University had issued
advertisement. Pursuant to advertisement, the
proposals were filed for permission. Under
Section 77 of the Act-2016, it is the functional
duty of the Commission to prepare guidelines for
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perspective plan of 5 years for each University
for the location of colleges and institutions of
higher learning in a manner ensuring equitable
distribution of facilities for higher education.
It also has the duty to approve a comprehensive
perspective plan submitted by the University. The
Commission is constituted U/Sec. 76 of the said
Act. It is after following this procedure the
perspective plan has been finalised and prepared
by the University. Now, the petitioners cannot
turn around and contend otherwise.
8. It is further submitted that Ajintha and
Andhari are in hilly area. Certificate to that
effect has been issued by the competent authority.
It has considered need of colleges in this hilly
area and Letter of Intent has been issued. In
respect of Letter of Intent at other places also
the need has been considered. The Government has
exercised it's powers and discretion legitimately
and reasonably U/Sec. 109(3)(d) of the Act-2016.
No illegality has been committed. It would be a
case of fair competition. The petitioners do not
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have locus to assail the Letter of Intent issued
to the respondents only on the ground that the
number of students in their institutions may be
decreased.
9. We have considered the submissions
canvassed by the learned Advocates for the
parties.
10. It is not disputed that in all these
matters the Letter of Intent are issued by the
State Government despite the negative
recommendations of the University. The negative
recommendations were given by the University on
the premise that (I) The proposals lack basic
infrastructure, (II) The need for the college does
not exist, (III) The students of that locality
would not suffer if permission is not granted and
(IV) The requirements of Annexure "B" to
Government Resolution dated 15.09.2017 are not
complied with. The Government, it appears, has
processed all these proposals in spite of the
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negative recommendations and the Letter of Intent
are issued by the Government.
11. The Government is bestowed with the power
to grant Letter of Intent in spite of negative
recommendations by the University under proviso to
Clause (d) of Sub-section (3) of Section 109 of
the Act-2016. Clause (d) of Sub-Section 3 of
Section 109 with its proviso reads thus-
"109. Procedure for permission for opening new
college or new course, subject, faculty,
division.-
(1)...
(2)...
(3)...
(a)...
(b)...
(c)...
(d) out of the applications recommended by the
University, the State Government may grant a
Letter of Intent on or before 31st January of the
immediately following year after
the recommendations of the University under
clause (c). The Letter of Intent may be granted
to such institutions as the State Government may
consider fit and proper in its absolute
discretion, taking into account the relevant
factors, the suitability of the management
seeking Letter of Intent, state level priority
with regard to location of institutions of
higher learning, etc. The Letter of Intent shall
be communicated by the State Government to the
University, on or before the date specified in
this clause:
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
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State Government for grant of a Letter of Intent
to college or institutions of higher
learning;
..."
12. The learned In-charge Government Pleader
has produced for our perusal the original file in
the sealed cover. The same has been opened in the
presence of parties. Upon perusal of the file it
transpires that individual reasons are not
recorded. It is only recorded that considering the
educational need and the demand the Letter of
Intent are issued. Apart from the same we do not
find any reason mentioned in the file. No separate
reasons are given while issuing Letter of Intent
to individual institution for particular location.
Composite reason appears to have been given while
issuing the Letter of Intent to more than 60 to 65
institutions that Letter of Intent are issued
considering the demand and the educational need.
13. The Government can exercise the powers in
exceptional circumstances and for the reasons to
be recorded in writing while approving the
proposal for grant of Letter of Intent to the
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college or the institution of higher learning
though not recommended by the University.
14. The general rule appearing in
Section 109(3)(d) is that out of applications
recommended by the University the State Government
may grant Letter of Intent. Proviso to Clause (d)
of Sub-Section 3 of Section 109 carves out an
exception viz. in exceptional cases the Government
may grant Letter of Intent though not recommended
by the University for the reasons to be recorded
in writing. According to Webster's International
Dictionary of English Language "Exceptional which
is itself an exception and so is out of ordinary,
that is, exceptional, to which exception may be
taken." According to Murray's New English
Dictionary Exceptional means "of the nature of
forming exception; out of the ordinary course,
unusual, special." The Government has to arrive at
the conclusion that exceptional circumstances
exist to overrule the negative recommendations of
the University. The University while negativing
the proposals of the respondents amongst other
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objections had observed that students of the
region would not suffer. The Government while
considering such proposal ought to have arrived at
subjective satisfaction based on objective
assessment that exceptional circumstances still
exist for establishing new college on the said
location for the welfare of the students. The same
ought to be supported by relevant statistics.
15. For meeting out an exceptional case
strong reasons have to be recorded in writing that
would outweigh the negative recommendations of the
University. The rule requiring recording of
reasons must be observed in letter and spirit.
Mere pretence of compliance by vague and general
words is not enough. Reasons are the lifeline of
any order. The order should reflect the
application of mind of the authority while passing
the order and it is the reasons which would depict
the same. The obligation to record reasons
operates as a deterrent against the possible
arbitrary action. Reasons are link between the
materials on which certain conclusions are based
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and the actual conclusion. Reasons discloses how
the mind is applied to the subject matter for a
decision. The reason should reveal a rational
nexus between the facts considered and the
conclusions reached. Only in this way can opinions
or decisions recorded be shown to be manifestly
just and reasonable. In the present case the
reasons recorded should demonstrate carving out an
exceptional case to be considered though
negatively recommended by the University.
16. In the present case, we do not find that
the Government has considered each and every
proposal independently threadbare as an
exceptional case. If the Government considers the
proposals negatively recommended by the University
without adhering to the proviso to Clause (d) of
Sub-Section 3 of section 109 of the Act-2016, then
the proviso would loose its efficacy as an
exception to general rule and would be rendered
superfluous and a dead letter. In the present
matter, we do not find the said exercise carried
out meticulously by the Government. At least
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perusal of the file produced by the learned In-
charge Government Pleader does not depict so. It
has been observed by the Hon'ble Apex Court in
case of Gurdial Singh Fijji Vs. State of Punjab
reported in (1979) 2 SCC 368 that rubber-stamp
reason is not enough. In another Judgment of the
Hon'ble Apex Court in case of S. N. Mukherjee Vs.
Union of India reported in (1990) 4 SCC 594 it
has been observed that recording of reasons also
operates as a valid restraint on any possible
arbitrary exercise of judicial and quasi-judicial
or even administrative power.
17. The State was exercising it's statutory
power. The proviso to Clause (d) of Sub-Section 3
of Section 109 of the Act-2016 mandates the State
Government to exercise its powers in exceptional
case and for the reasons to be recorded in
writing. An order passed exercising its powers
under proviso to Clause (d) of Sub-Section 3 of
Section 109 of the Act-2016 without recording
appropriate and valid reasons would tantamount to
arbitrary exercise of powers. Arbitrariness is
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antithesis to the rule of law, justice, equity,
fair-play and good conscience. An arbitrary action
cannot be sustained. Arbitrariness has no role in
society governed by rule of law.
18. As observed supra, the State Government
cannot exercise its discretion unless exceptional
circumstance exists and that to for the reasons to
be recorded in writing.
19. As in the present case such exercise is
lacking, the Letter of Intent issued in favour of
the respondents cannot be sustained and as such
Letter of Intent issued in favour of the
respondents are set aside.
20. The Government may if it so desires and
if the same is permissible as per the statute
reconsider the proposals strictly adhering to the
norms laid down in proviso to Clause (d) of Sub-
Section 3 of Section 109 of the Act-2016.
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21. The original file produced by the learned
In-charge Government Pleader is returned to the
learned In-charge Government Pleader.
22. Rule accordingly made absolute in above
terms.
23. Writ Petitions are accordingly disposed
of. No costs.
[R. N. LADDHA, J.] [S. V. GANGAPURWALA, J.]
marathe
