Sanjay Modak Education Society, ... vs The State Of Maharashtra , Through ...
2021 Latest Caselaw 16696 Bom

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                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
KANCHAN   Digitally signed by
                                     CIVIL APPELLATE JURISDICTION
          KANCHAN VINOD
VINOD     MAYEKAR
          Date: 2021.12.02 15:03:30
MAYEKAR   +0530
                                         WRIT PETITION NO.4805 OF 2018

                 Jagruti Foundation, Pune        )
                 Shivganga College of Science    )
                 Commerce and Arts, (Proposed) )
                 Through its Director,           )
                 Ms.Anita Sapte,                 )
                 Having office at :              )
                 Decision Tower,                 )
                 Shop No.10, Survey No.692/693,  )
                 Pune-Satara Road,               )
                 Near Citypride Cinema, Bibwewadi,)
                 Taluka Haveli, District Pune    )                ..... Petitioner

                                VERSUS

                 1. State of Maharashtra,          )
                 [Summons to be served on the      )
                 Learned Government Pleader        )
                 appearing for State of Maharashtra,)
                 under Order XXVII, Rule 4 of the )
                 Code of Civil Procedure, 1908]    )

                 2. Secretary,                     )
                 Higher and Technical Education )
                 Department, Mantralaya,           )
                 [Summons to be served on the      )
                 Learned Government Pleader        )
                 appearing for State of Maharashtra,)
                 under Order XXVII, Rule 4 of the )
                 Code of Civil Procedure, 1908]    )

                 3. The Director of Education (Higher))
                 Department of Education,          )
                 State of Maharashtra,             )
                 [Summons to be served on the      )
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                                             WP 4805 & 4059.2018.doc
Learned Government Pleader        )
appearing for State of Maharashtra,)
under Order XXVII, Rule 4 of the )
Code of Civil Procedure, 1908]    )

4. The Registrar,
Savitribai Phule Pune University, )
(formerly known as Pune University,)
Ganeshkhind Road, Shivajinagar, )
Pune - 411 007                    )

5. Jaywant Shikshan Prasarak Mandal,)
Rajashri Shahu Commerce and Science)
Mahavidyalay, Wagholi, Tal. Haveli,)
Pune - 412 207.                   )
Through its President/Secretary, )

6. Late Vitthalrao Beldare Patil     )
Dyan Prasarak Sanstha,               )
Sun-Bright Arts and Commerce Senior)
College, Ambegaon Budruk,            )
Tal.Haveli, District : Pune - 411 046)

7. Lokseva Pratisthan Senior College,)
Phulgaon, Tal.Haveli, District : Pune.)   ..... Respondents

                       ALONGWITH
               WRIT PETITION NO.4059 OF 2018

Sanjay Modak Education Society, )
Through its President,            )
Mr.Sanjay Vasant Modak,           )
Aged Major, Occu : Social Worker, )
Having office at Survey No.228,   )
Shop No.A/26, Ramanand Complex)
Hadapsar, Taluka : Haveli,        )
District : Pune - 411 028         )       ..... Petitioner

      VERSUS
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1. The State of Maharashtra,           )
Through the Secretary,                 )
Higher & Technical Education           )
Department, Mantralaya,                )
Extension, Mumbai.                     )

2. The Director of Education (Higher))
Department of Education,          )
Maharashtra State, Central Bldg., )
Pune - 411 001.                   )

3. The Registrar,
Savitribai Phule Pune University, )
(formerly known as Pune University,)
Ganesh Khind, Pune - 411 007      )

4. Jaywant Shikshan Prasarak Mandal,)
Rajashri Shahu Commerce & Science)
College, Wagholi, Tal. Haveli,   )
District : Pune,
Through its President/Secretary, )

5. Late Vitthalrao Beldare Patil     )
Dnyan Prasarak Mandal,               )
Sun-Bright Arts & Commerce Senior)
College,                             )
Through its President/Secretary, )
Having office at Ambegaon,           )
Tal.Haveli, District : Pune - 411 046)

6. Lokseva Pratisthan,                 )
Lok Seva Senior College,               )
through its President/Secretary,       )
Having Office at Phulgaon,             )
Tal.Haveli, District : Pune.           )      ..... Respondents

Mr.Prathamesh Bhargude with Mr.Sumit Sonare for the Petitioner in
Writ Petition No.4805 of 2018.

Mr.Nagesh Y. Chavan for the Petitioner in Writ Petition No.4059 of
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                                                   WP 4805 & 4059.2018.doc
2018.

Mr.N.C. Walimbe, AGP for the State - Respondent Nos.1 to 3 in Writ
Petition No.4805 of 2018.

Mrs.P.J. Gavhane, AGP for the State - Respondent Nos.1 and 2 in Writ
Petition No.4059 of 2018.

Mr.Rajendra Ambhule for the Respondent No.4 in Writ Petition
No.4805 of 2018 and for the Respondent No.3 in Writ Petition
No.4059 of 2018.

Mr.A.V. Anturkar, Senior Counsel with Mr.Ajinkya M. Udane for the
Respondent No.5 in Writ Petition No.4805 of 2018 and for the
Respondent No.4 in Writ Petition No.4059 of 2018.

Mr.Ajit Anekar with Ms.Urvi Vaidya i/b M/s.Auris Legal for the
Respondent No.7 in Writ Petition No.4805 of 2018 and for the
Respondent No.6 in Writ Petition No.4059 of 2018.

                         CORAM: R. D. DHANUKA AND
                                ABHAY AHUJA, JJ.

RESERVED ON : 27th OCTOBER, 2021 PRONOUNCED ON : 2nd DECEMBER,2021

JUDGMENT (Per R.D.Dhanuka, J.) :-

Learned counsel for the petitioners states that all the

respondents are already served with the notice of the final hearing.

Statement is accepted.

2. By Writ Petition No.4805 of 2018 filed under Article 226

of the Constitution of India, the petitioner has impugned the KVM

WP 4805 & 4059.2018.doc th communication dated 15 March, 2018 issued by the respondent nos. 1

and 2 to the respondent no.4 University refusing to grant Letter of

Intent in favour of the petitioner for starting new college. The

petitioner also prayed for writ of certiorari for quashing and setting

aside the Government Resolution dated 28th February, 2018 to the

extent that it allots Letter of Intent to the respondent nos. 5, 6 and 7 for

the roster point of Haveli at serial nos. 46, 47 and 48. The petitioner

seeks an order and direction against the respondent nos. 1 and 2 to

issue Letter of Intent in favour of the petitioner for starting new

proposed college in the name of Jagruti Foundation, Pune, Shivganga

College of Science Commerce and Arts, for the streams of Arts,

Commerce and Science at Arvi, Khed Shivapur, Taluka Haveli, District

Pune for the academic year 2018-2019, in pursuance of its proposal

dated 15th December, 2018.

3. Writ Petition No.4059 of 2018 is also filed by the

petitioner under Article 226 of the Constitution of India inter alia,

praying for writ of certiorari for quashing and setting aside impugned

communication dated 15th March, 2018 and seeking writ of mandamus

directing the respondent no.1 to issue Letter of Intent for starting new KVM

WP 4805 & 4059.2018.doc proposed college by name Sanjay Modak College of Arts, Commerce

and Science at Loni Kalbhor, Taluka Haveli, District Pune for the

academic year 2018-2019. The petitioner also seeks writ of certiorari

for quashing and setting aside the the impugned order/list dated 28 th

February, 2018 passed/published by the respondent no.1. The facts in

both the matters being identical, the parties have agreed that both the

matters be heard together and be disposed off by a common order. This

Court accordingly heard both the petitions together. Both the petitions

are accordingly heard together and are being disposed of by a common

order.

The facts and submissions in Writ Petition No.4805 of 2018 :-

4(a) It is the case of the petitioner that the petitioner is a

charitable trust in the area of educational training field since last 11

years. The respondent no.4 prepared the perspective plan for five years

for the educational years of 2018-2019 to 2022-2023. It was proposed

by the respondent no.4 University that considering the demand number

of new colleges were to be increased by virtue of notification/circular.

(b) It is the case of the petitioner that on 15th September, 2017,

the respondent no.4 University issued a circular showing that for KVM

WP 4805 & 4059.2018.doc Taluka Haveli, 3 colleges for Arts, Commerce, Science to be opened.

The Government Resolution came to be issued prescribing the

guidelines for new colleges for the year 2018-2019. The Government

Resolution also prescribed the mode and manner for filing online

application for seeking permission to start new colleges. Such

applications were to be scrutinized by the Scrutiny Committee

appointed by the Vice-Chancellor of the said University. In case of any

discrepancies in the application filed by any of the applicants, the same

were to be removed by the applicants. It is the case of the petitioner

that the respondent no.4 University invited the proposals for 21 roster

points for 5 years period from District Pune in view of the ordinance

dated 28th November, 2017.

(c) On 6th December 2017, the respondents extended time

schedule for submitting proposals till 15th December 2017 and also

increased 3 roster points for starting colleges in Taluka Haveli from

the year 2018-19. On 15th December 2017, the petitioner submitted

its proposal to the respondent no.4 for establishing a new college for

the streams of Arts, Science, Commerce as required by the

Government Resolution.

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WP 4805 & 4059.2018.doc th

(d) On 14 January 2018, the Expert Committee thereafter

submitted a report. On 18 th January 2018, the petitioner was served

with a letter from the respondent no.4 University stating that the

petitioner was eligible and was given preference no.2 for the

purpose of establishing the college. On 28th February 2018, the

Government Resolution was passed thereby publishing a list of

colleges to whom Letter of Intent was given. It is the case of the

petitioner that on 15th March 2018, the petitioner came to know by a

letter that the respondent no.1 without giving any reason passed the

impugned communication and refused to grant Letter of Intent to the

petitioner for starting new college. The petitioner filed this petition

for various reliefs.

Facts in Writ Petition No.4059 of 2018 :-

5. (a) The petitioner intended to start new (Regular and

Vocational) College at Loni Kalbhor, Tal Haveli Dist. Pune in the

name of Sanjay Modak College as per Government Resolution dated

15th September 2017 published by the respondent no.1 and submitted

its proposal to the respondent no.3 on 14 th December 2017. On 29th

January 2018, the respondent no. University recommended the name KVM

WP 4805 & 4059.2018.doc of the petitioner institution for starting the new college in the name

of Sanjay Modak College of Arts, Commerce and Science. On 28 th

February 2018, the respondent no.1 however issued Letter of Intent

to the different Institution for starting the new colleges in the District

Kolhapur who are the parties to this petition. On 15 th March 2018,

the respondent no.1 without any reason issued the impugned

communication/letter refusing to grant the Letter of Intent in favour of

the petitioner Institution though the university had given preference

at Serial No.1 to the petitioner. The petitioner accordingly filed this

petition for various reliefs.

(b) On 6th June 2019, this matter appeared before a Division

Bench of this Court. This Court observed that Section 109(3)(d) of the

Maharashtra Public Universities Act, 2016 (for short "the University

Act") vests absolute discretion in the State Government in the

matter of issuance of the Letter of Intent, however such discretion is

qualified. The State is obliged to take into account the relevant

factors such as the suitability of the management seeking Letter of

Intent, State level priority with regard to location of institutions of

higher learning etc. and the other relevant aspects. This Court noticed KVM

WP 4805 & 4059.2018.doc that in the affidavit-in-reply filed by the State Government prior to the

date of the said order, it had not been stated as to what were the

additional factors which weighed or influenced the decision making

process while awarding Letter of Intent to the respondent Institution

who were issued Letter of Intent. This Court accordingly directed

the State Government to file additional affidavit explaining the

reasons for according priority to the respondent no.3 Institution over

the petitioners Institutions which had been provided preferential

ranking while recommending proposals. The State Government filed

additional affidavit in these two writ petitions.

(c) On 31st March 2021, a Division Bench of this Court after

adverting to the affidavit-in-reply filed by the State Government on

16th October 2019 observed that even in the additional affidavit filed

by the State Government, no reasons are recorded as to why the

discretion was exercised in favour of the Institution who were issued

Letter of Intent and why the petitioners were not issued a Letter of

Intent though they were qualified. This Court observed that no

equities had been created in favour of the private respondents, as in the

year 2018 itself, ad-interim stay had been granted, which had KVM

WP 4805 & 4059.2018.doc continued till date. This Court also observed that this Court would

have proceeded to set aside the impugned order itself, however, the

question will still arise as to who should be given the Letter of Intent,

as it is a common ground before this Court that starting of the college

in that area is necessary. That the authorities would have to undertake

the task of finding comparative merit between the applicant-Colleges.

(d) This Court accordingly adjourned the matter to enable the

Joint Director/Secretary of Higher and Technical Education,

Mantralaya to inform this Court as to when fresh hearing would be

given to the rival contenders and an order after assessing comparative

merit would be passed and in that regard, the fresh scrutiny would be

restricted. This Court made it clear that those who had been

disqualified per se, and had accepted the disqualification, would not

be eligible for reconsideration. It was further observed that those

colleges/institutions, whose applications had not been considered with

the reasoning that these private respondents had already been given

Letter of Intent, would be the ones to whom the scrutiny could be

restricted. Matter was adjourned to 28th April 2021. KVM

WP 4805 & 4059.2018.doc th

(e) Matter thereafter appeared on 24 June 2021 when this

Court noticed that the State Government had not complied with the

directions given on 17th June 2021. The State Government filed

additional affidavit before this Court on 24 th June 2021. This Court

deferred the hearing of these two petitions to 8 th July 2021 and

postponed the meeting before the respondent Secretary beyond the

next date assigned to these two petitions. It is the case of the State

Government that the petitioner raised objection on invitation of other

Institutions and observations noted by this Court on 17 th June 2021.

The said hearing had been rescheduled on 28th July 2021 only with the

petitioners and the respondents excluding the other Institutions. The

hearing before the Joint Director however did not take place.

6. Mr.Bhargude, learned counsel for the petitioner in Writ

Petition No.4805 of 2018 invited our attention to various documents

annexed to the writ petition filed by his client, averments from

various affidavits-in-reply filed by the State Government and the

affidavits-in-reply filed by the respondent no.4. Learned counsel invited

our attention to the impugned order and more particularly at page 232

of the writ petition holding that the application of the petitioner was KVM

WP 4805 & 4059.2018.doc rejected only on the ground that since Letter of Intent was already

issued to someone else, the petitioner was not issued Letter of Intent.

He submits that no reasons are recorded by the State Government in

the said order as to why the Letter of Intent was issued to one of the

respondents and not to the petitioner on merit. No reasons are

recorded as to why discretion was exercised in favour of the

respondent no.5 and not in favour of the petitioner though the

university had given higher preference to the petitioner.

7. Learned counsel invited our attention to Section 109(3)(c)

and (d) of the said Universities Act and would submit that the

impugned order passed by the State of Maharashtra granting Letter of

Intent in favour of the respondent no.5 is contrary to the said

provision. Though the State Government has discretion to issue Letter

of Intent in favour of an applicant in whose favour no recommendation

is made by the University, such discretion cannot be exercised

arbitrarily and capriciously.

8. It is submitted by the learned counsel that the impugned

order is in gross violation of the principles of natural justice, perverse KVM

WP 4805 & 4059.2018.doc and deserves to be quashed and set aside. In support of this

submission, learned counsel for the petitioner placed reliance on the

following judgments :-

(i) Unreported judgment of this Court in the case of Anjuman

Moinut Tulba through Ziyaurrrahman Mohammed Ishaque Vs.

The State of Maharashtra, Higher and Technical Education Deptt.

& Ors. and other companion matter in Writ Petition No.2081 of

2020 on 18th March 2021;

(ii) Judgment of this Court in the case of Shetkari Shikshan

Prasarak Mandal Ashti, Dist. Beed Vs. State of Maharashtra &

Ors., 2002 (1) Mh.L.J. 814 (paragraphs 29 and 31)

(iii) Unreported judgment delivered by the Division Bench of this

Court in the case of Akemi Education Society Vs. The State of

Maharashtra and Ors. in Writ Petition No.1788 of 2020 on 3rd

November 2020 (Paragraph 22)

(iv) Judgment of this Court in the case of Digitek Krida Vikas

Sanshodhan Va Shikshan Bahuuddeshiya Sanstha, Sindi (Railway)

Vs. State of Maharashtra, 2011 (1) Mh.L.J. 793 (paragraph 10)

9. Learned counsel for the petitioner invited our attention to KVM

WP 4805 & 4059.2018.doc various paragraphs of the affidavit-in-reply filed by the State

Government and would submit that the State Government cannot be

allowed to supplant the reasons in the affidavit-in-reply which reasons

are not recorded in the impugned order itself. He invited our attention

to paragraph 6 of the additional affidavit dated 16 th October 2019

and would submit that in any event, even according to the State

Government, there was confusion in granting preferential numbers to

the colleges provided by the concerned University and therefore,

while considering the proposal along with the recommendation and

preference number provided by the University, the same was not

considered and decided by the State Government. He submits that on

this ground also, the order passed by the respondent no.1 issuing

Letter of Intent in favour of the respondent no.5 deserves to be

quashed and set aside.

10. Learned counsel invited our attention to the order dated

31st March 2021 passed by the Division Bench of this Court in these

two petitions and would submit that this Court had already indicated

that this Court would have proceeded to set aside the impugned order. KVM

WP 4805 & 4059.2018.doc

11. Mr.Chavan, learned counsel for the petitioner in Writ

Petition No.4805 of 2018 adopted the submission made by

Mr.Bhargude, learned counsel for the petitioner in Writ Petition

No.4805 of 2018 and would submit that his client was given first

preference by the University however, while exercising the so called

discretion by the State Government, merits of the petitioner and the

said preference given by the University was totally overlooked.

Without application of mind, the respondent no.1 decided to issue

Letter of Intent in favour of the respondent no.5 in this writ petition.

12. Mr.Anturkar, learned senior counsel for the respondent

no.5 in Writ Petition No.4805 of 2018 and for the respondent no.4 in

Writ Petition No.4059 of 2018 relied upon Section 109 (3)(g) of the

said Universities Act and would submit that the said provision

empowers the State Government to grant final approval to such

management as it may consider fit and proper in its absolute

discretion, taking into account the budgetary resources of the State

Government and other relevant factors, the suitability of management

seeking permission to open new institution etc. He submits that the

respondent no.1 Government has considered all these factors while KVM

WP 4805 & 4059.2018.doc exercising discretion in favour of his client to issue Letter of Intent

and not in favour of the petitioner.

13. It is vehemently urged by the learned senior counsel that

irrespective of the fact whether the Letter of Intent was directed to be

issued finally in favour of his client, under Section 109 of the said

Universities Act, all the applicants could have been considered by the

State Government by issuing Letter of Intent to start various new

colleges, irrespective of number of applicants for the same locality

or Taluka to each of the applicants with a view to offer best education

and services to the students in competition with each other. It is

vehemently urged that none of the provisions under the said

Universities Act prohibits the State Government from issuing more

than one Letter of Intent or final approval to start new college in the

same locality or Taluka in the same stream. No such prohibition is

imposed even in the perspective plan prepared by the University under

Section 107 of the said Universities Act.

14. It is submitted that in this view of the matter, this

Court may direct the State Government to issue Letter of Intent in KVM

WP 4805 & 4059.2018.doc favour of the petitioners also in addition to Letter of Intent already

having been issued in favour of his client. He further submits that

the petitioners have no locus to file these writ petitions inter alia

praying for quashing and setting aside the impugned order thereby

issuing Letter of Intent in favour of his clients.

15. It is submitted by the learned senior counsel that the

purpose of perspective plan is only to identify the location and not to

restrict the number of applicants in a particular location or otherwise.

The petitioner can apply for considering its case under Section 109

independently without applying for cancellation of Letter of Intent

issued in favour of the respondent nos. 5 to 7. He relied upon Section

76(5) of the said Universities Act and also Section 77(1)(a) and

would submit that while preparing guidelines for perspective plan of

five years for each university, commission has to take into

consideration the permission to be granted to start as many colleges

as possible in each locality so as to provide best education and

facilities to the students with wide option to select one or the other

college of their choice to avoid any favoritism or monopoly creation.

If there would be good competition amongst the colleges, facilities that KVM

WP 4805 & 4059.2018.doc would be offered to the students would be economical.

16. Next submission of the learned senior counsel is that in

this case, advertisement was issued by the State Government on 17 th

September 2017. Last date for filing application was 30th September

2017. The respondent no.5 had applied in response to the said

advertisement on 28th September 2017 i.e. before 30 th September

2017. The petitioners had applied after 30th September 2017 i.e. 15th

December 2017. He submits that the said applications thus filed by

the petitioners were not within the mandatory time prescribed under

the said advertisement to be read with Section 109 (3) of the said

Universities Act.

17. It is submitted by the learned senior counsel that the State

Government had issued an Ordinance to extend the time to file an

application on 28th January 2017. On 11th December 2017, the

Maharashtra Public Universities (Amendment) Bill, 2017 (L.A. Bill

No.LXVIII of 2017) came to be issued. On 21 st December 2017, the

said bill was passed by the Legislative Assembly and transmitted to

the Legislative Council. Six weeks period had expired on 22 nd KVM

WP 4805 & 4059.2018.doc January 2018. The impugned decision to issue Letter of Intent was

taken by the State Government in favour of the respondent nos.5 to 7

on 26th February 2018.

18. It is submitted that the said Ordinance issued on 20 th

January 2018 was not converted into Act before expiry of six weeks.

No right was thus created in favour of the petitioners under the said

Ordinance dated 26th February 2017. None of the petitioner has

thus locus to file writ petition for impugning the decision taken by

the State Government. In support of this submission, learned senior

counsel placed reliance on the judgments of the Hon'ble Supreme

Court in the case of T. Venkata Reddy and Ors. vs. State of Andhra

Pradesh, (1985) 3 SCC 198 and in the case of State of U.P. Vs.

Seth Jagamander Das & Ors., AIR 1954 SC 683. He submits that

the judgment in the case of T. Venkata Reddy and Ors. (supra)

delivered by the Hon'ble Supreme Court came to be overruled by 7

judges bench of the Hon'ble Supreme Court in the case of Krishna

Kumar Singh and Anr. Vs. State of Bihar and Ors., (2017) 3 SCC

1. Learned senior counsel placed reliance on the judgment of in the

case of Gunwantlal Godawat Vs. Union of India & Anr., (2018) 12 KVM

WP 4805 & 4059.2018.doc SCC 309 and more particularly paragraphs 23 to 29 thereof.

19. It is submitted that since there was no enduring right

created in favour of the petitioners, only the respondent nos.5 to 7

who had filed applications before 30 th September 2017, their

applications could have been considered by the State Government for

issuance of Letter of Intent. The State Government has thus rightly

considered only the applications made by the respondent nos.5 to 7

which were received within the time prescribed and not of the

petitioners.

20. Learned counsel for the respondent no.7 in Writ Petition

No.4805 of 2018 and for the respondent no.6 in Writ Petition No.4059

of 2018 adopted the submission made by Mr.Anturkar, learned senior

counsel and would submit that the reasons recorded in the affidavits-

in-reply as to why the applications made by the petitioners were not

considered for issuance of Letter of Intent and as to why the

applications of the respondent nos.5 to 7 were considered are relevant

factors and are required to be considered by the Court. KVM

WP 4805 & 4059.2018.doc

21. Mr.Walimbe, learned AGP for the State strongly placed

reliance on the averments made in the affidavit-in-reply and the

additional affidavit filed in these two petitions and would submit that

this Court consider those reasons now though those reasons were not

recorded in the impugned order.

22. Mr. Anbhule, learned counsel for the university submits

that under Section 107 (1) of the Universities Act, the university has

to prepare comprehensive perspective plan for every five years for

the location of colleges and institutions of higher learning in a manner

ensuring comprehensive equitable distribution of facilities for higher

education having due regard, in particular, to the needs of unserved and

under-developed areas within the jurisdiction of the university.

Similarly, the university under Section 107 (5) has to prepare an

annual plan every year for the location of colleges and institutions of

higher learning, in consonance with the perspective plan and shall

publish it before the end of academic year. He submits that in

accordance with the annual plan for the academic year 2018-19, the

respondent no.4 university invited the proposal for 21 locations in

Pune District. The said Ordinance of 2017 was issued extending the KVM

WP 4805 & 4059.2018.doc date for submitting the online proposal for opening new colleges for

the academic year 2018-19 was extended upto 15th December 2017.

The University had issued a public notification dated 6th December

2017 thereby extending time limit to submit proposal till 15th

December 2017.

23. It is submitted that his client had scrutinized all the

applications which were filed within the prescribed time limit duly

extended and forwarded the same with recommendation to the State

Government for consideration and for issuance of Letter of Intent.

The petitioner had submitted its online proposal on 15 th December

2017 within the extended time limit. He invited our attention to

paragraph 7 of the affidavit-in-reply filed by his client and would

submit that the petitioner in Writ Petition No.4059 of 2018 was

granted first preference whereas the petitioner in Writ Petition

No.4805 of 2018 was granted second preference. The respondent no.7

was granted third preference.

24. It is submitted that Section 109 of the said Universities

Act cannot be read in isolation but has to be read with Section 107. KVM

WP 4805 & 4059.2018.doc He invited our attention to Section 76 of the said Universities Act

and would submit that the Maharashtra State Commission for Higher

Education and Development was appointed under the said provision

comprising of Experts to approve perspective plan. The function and

duties of the said commission are prescribed in Section 77 which

includes the duty of preparing guidelines for perspective plan of five

years for each university. He strongly placed reliance on Section 109

(3) (d) proviso and would submit that the State Government is though

empowered to issue grant of Letter of Intent to such institutions whose

names are not recommended by the university while exercising such

discretion, in such exceptional cases, reasons have to be recorded by

the State Government as to why such applicant whose name was not

recommended by the university for grant of a Letter of Intent, was

issued Letter of Intent and why other applicants though were

recommended by the University were not issued Letter of Intent.

25. Mr.Bhargude, learned counsel for the petitioner in Writ

Petition No.4805 of 2018 invited our attention to the conclusion

recorded by the Hon'ble Supreme Court in the case of Krishna

Kumar Singh and Anr. Vs. State of Bihar and Ors.(supra) and would KVM

WP 4805 & 4059.2018.doc submit that the said conclusion would support the case of the

petitioner and not the respondent nos.5 to 7. He also invited our

attention to paragraphs 105.12 and 106 of the said judgment and

would submit that the Court has power to mould the relief.

26. In so far as the first submission of Mr.Anturkar, learned

senior counsel for the respondent no.5 about the scope of Section 109

of the said Universities Act is concerned, he submits that the said

argument is totally contrary to the said provision and if accepted,

would not be in the interest of the students. Learned counsel for the

petitioner placed reliance on Section 7 of the Amending Act and

would submit that Section 1 of the Amending Act came into force on

28th November 2017. He submits that if the arguments of the learned

senior counsel for the respondent no.5 are accepted, even his client

would be affected and would have been declared as ineligible. He

submits that the perspective plan contemplated under the provisions

of the said Universities Act considers continuing need of students in

particular locality or Taluka. The Haveli Taluka consists of 1163.55

sq. kms.

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WP 4805 & 4059.2018.doc

27. Learned counsel invited our attention to Government

Resolution dated 15th September 2017 issued under Section 109 (g).

He submits that if this Court remands the matter back to the State

Government for reconsidering the applications, the matter shall be

remanded only for the applicants who had appeared before this Court

and had participated in these proceedings and not all the applicants

who have either not impugned the order or have not appeared in these

petitions. He submits that in Writ Petition No.4905 of 2018, the

respondent no.6 has remained absent all throughout though served. If

the matter is remanded back, the applications be heard by the

Secretary/Higher Education, State Government, Pune.

REASONS AND CONCLUSIONS :-

28. It is not in dispute that the University had prepared

comprehensive perspective plan under Section 107(1) of the said

Universities Act for a period of 5 years. The university also prepared

annual plan under Section 107(5) of the said Universities Act for the

academic year 2018-19 and published on 12 th September 2017. In so

far as the Taluka Haveli, Pune District except the Municipal

Corporation limits for the academic year 2018-19 is concerned, KVM

WP 4805 & 4059.2018.doc annual plan was prepared for 3 colleges of Arts, Commerce and

Science. Pursuant to the said advertisement, various applicants

including the petitioners and the respondent nos.5 to 7 applied for

permission to establish new colleges in Taluka Haveli. The university

made recommendation in favour of various applicants by giving them

preference number. The petitioner in Writ Petition No.4059 of 2018

was given first preference whereas the the petitioner in Writ Petition

No.4805 of 2018 was given second preference. A perusal of the

impugned order indicates that both these petitioners in these writ

petitions having been refused Letter of Intent only on the ground that

some other applicant was granted Letter of Intent.

29. Under Section 109(3)(d) proviso, though the State

Government has been granted discretion to issue Letter of Intent in

favour of such institutions as the State Government may consider fit

and proper taking into account the relevant factors such as the

suitability of the management seeking Letter of Intent, State level

priority with regard to location of institutions of higher learning etc. in

exceptional cases, for the reasons to be recorded in writing any

application not recommended by the university may be approved by KVM

WP 4805 & 4059.2018.doc the State Government for grant of a Letter of Intent to college or

institutions of higher learning.

30. A perusal of the impugned order clearly indicates that

though there was no recommendation made in favour of the respondent

nos.5 to 7 and though recommendation was made in favour of both

these petitioners, the respondent no.1 did not record any reason as to

why the applications made by the petitioners were not considered for

grant of Letter of Intent and why Letters of Intent were granted in

favour of the respondent nos.5 to 7. The order does not indicate as to

whether any exceptional case is made out by the respondent nos.5 to 7

for grant of issuance of Letter of Intent though there was no

recommendation made by the University in their favour.

31. We have minutely perused the judgments relied upon by

the learned counsel for the petitioner in the Writ Petition No. 4805 of

2018 in support of the submission that the respondent no.1-State not

having recorded any reasons while issuing Letter of Intent in favour of

the respondent nos. 5 to 7 and while rejecting the applications filed by

these petitioners has violated the principles of natural justice and the KVM

WP 4805 & 4059.2018.doc impugned order is thus vitiated. The principles of law culled out from

those judgments are summarized here under:-

(a) the reason is the soul of administrative action. Reason clears the

wilderness of the imagination. The order without reason is a dead

letter. What is considered does not substitute the valid reasons. The

reasons flow from deliberation with regard to comparative merits. The

ultimate order must reflect conscious application of mind.

(b) The absolute discretion vested in the Government under Section

82(5) of the Maharashtra Universities Act, 1994 is to be exercised in

the light of what is right and what is proper. The concept of absolute

discretion does not absolve the State Government in each and every

case from not giving reasons for its administrative actions. Even in

case of extreme categories of discretion the idea of fair play is inherent

in the power of absolute discretion. The fair play demands some kind

of reasons for giving preference to someone.

(c) Under Section 109(3)(d) of the said Universities Act, the State

Government has to consider all relevant factors, stability of

Management seeking Letter of Intent, State Level Priority with regard KVM

WP 4805 & 4059.2018.doc to the location of the institutions of higher learning. Even while

exercising discretion by the State Government under Section 109(3)(d),

the Government has to take into account the factors stated in Section

109(3)(d) itself. The absence of reasons vitiates the order passed by

the authority in and while exercising discretion.

(d) In the absence of any reason, any order can be said to be an order

in breach of principles of natural justice. Any order of the judicial,

quasi-judicial or administrative authority has to be a reasoned order. It

should be self-explanatory order and should not keep the Court

guessing for reasons. Reasons provide link between conclusion and

evidence. The reason is a manifestation of mind of the adjudicature

and given an opportunity to the Court to see whether or not the order is

passed on relevant consideration to the material on record. In identical

facts a Division Bench of this Court has quashed and set aside the

identical order with cost quantified at Rs.25,000/- to be paid by the

State Government to the petitioner with liberty to recover the same

from the officer concerned.

32. In case of Anjuman Moinut Tulba v/s. The State of KVM

WP 4805 & 4059.2018.doc Maharashtra (supra) in a similar situation a Division Bench of this

Court was inclined to set aside the order passed by the State

Government thereby granting permission to the contesting respondent

to start a new college without recording any reasons as to why the

application of the petitioner was rejected and remanded the proposal

with a direction to scrutinize the proposal afresh in accordance with

provision of law.

33. In our view, though State Government is vested with

discretionary power under Section 109(3)(d) to grant Letter of Intent in

favour of the institution whose name is not recommended by the

University for issuance of Letter of Intent, if the Government is

otherwise satisfied after taking into account, the relevant factors, the

stability of the management seeking Letter of Intent, State Level

Priority with regard to location of institution of higher learning in an

exceptional case, the State Government has to record reasons as to

whether any such exceptional case is made out by such applicant for

issuance of Letter of Intent. The State Government has to record

reasons as to why the name of the applicant which is recommended by

the University is not preferred in comparison to the applicant whose KVM

WP 4805 & 4059.2018.doc name is not recommended. The discretion vested in the State

Government cannot be exercised, arbitrarily, capriciously and without

application of mind.

34. The Court is not required to make any guess work and to

probe into the mind of the Government or such authority as to why the

application of an applicant duly recommended by the University was

overlooked or rejected and preference was given to another applicant

whose application was not recommended by the University. The

exercise of discretion by the State Government vested under Section

109(3)(d) has to be exercised judiciously. The State Government

however in this case has totally failed to exercise such discretion in

favour of respondent nos. 5 to 7 judiciously. The impugned order thus

discloses perversity and complete non-application of mind. The

impugned order is in gross violation of the principles of law elucidated

in the earlier paragraphs of this judgment and also ex-facie contrary to

the proviso to Section 109(3)(d).

35. A perusal of the order passed by this Court on 31st March

2021 would clearly indicate that at one stage the Court had expressed KVM

WP 4805 & 4059.2018.doc its views to set aside the impugned order and to remand the matter to

the respondent no.1 for reconsideration. The concerned authority

however had proposed to give hearing to all the applicants including

the applicants who had not even impugned the decision of the State

Government though affected. Even when these two matters were

heard, time and again this Court made such suggestion to the learned

counsel for the respondents, whether the order in question could be set

aside by consent in view of the order disclosing no reasons and being

patently illegal with a direction to reconsider the applications of the

petitioner and the contesting respondents de novo. The respondents

however did not accept the suggestion. In our view, the impugned

order being in gross of violation of principles of natural justice and

contrary to proviso to Section 109(3)(d) of the Universities Act,

deserves to be quashed and set aside and the applications of the

petitioners and the contesting respondents who were present before this

Court, can be decided de novo.

36. Insofar as the submission of Mr. Anturkar, learned senior

counsel for the respondent nos. 5 to 7 in Writ Petition No. 4805 of

2018 that the petitioners' applications for issuance of Letter of Intent KVM

WP 4805 & 4059.2018.doc also could be considered independently instead of setting aside the

Letter of Intent in favour of his clients is concerned, in our view, this

argument is totally devoid of merit.

37. A perusal of Section 76(5) of the said Universities Act

clearly indicates that the State Government is incharge and responsible

for the higher education in the State and has to plan, monitor,

coordinate and evaluate and shall act as think tank for higher

education. The commission has to create synergy between various

stakeholders namely the State Government, public and private

universities, private skills education providers and industries. The

composition of the Commission prescribed in the said provision is of

large number of experts. Under Section 77 of the said Universities Act,

the said commission has duty to prepare guidelines for perspective plan

for five 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, in consultation with the

respective universities, to approve comprehensive plan submitted by

the university.

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WP 4805 & 4059.2018.doc

38. Under Section 107 of the Universities Act, the university

is required to prepare a comprehensive perspective plan for every five

years and get the same approved by the Commission. Such plan has to

be prepared for the location of colleges and institutions of higher

learning in a manner ensuring comprehensive equitable distribution of

facilities for higher education. While preparing such perspective plan,

the university has to give due regard to the needs of unserved and

under developed areas within the jurisdiction of the University. Such

perspective plan has to include the new courses and faculties to be

permitted by studying the social and economic needs of the region, job

opportunities available and requirements of the industry and should be

as per policies of and in conformity with the plans of the State

Government and National Policy for Higher Education for achieving

National and State objectives of higher access, quality, excellence

research, relevance and quality.

39. The said provision prescribes the other factors to be

considered including the number of new divisions, satellite centres to

be permitted to the colleges and institutions of higher learning in

different regions after factoring in the demand for the same and shall KVM

WP 4805 & 4059.2018.doc be in conformity with the plans of and after the approval of

Commission. In the perspective plan, preference shall be given to the

districts where Gross Enrolment Ratio is less than the national average

and also to the tribal, hilly and inaccessible areas besides quality

benchmarks, inclusive growth, social relevance and value education.

After undertaking systemic field survey within the geographical

jurisdiction of the University, every five years, University while

granting permission for opening of new colleges or institutions of

higher learning or for starting new courses for study, subjects, faculties,

additional divisions or satellite centres, a detailed procedure is

prescribed under Section 109 of the said Universities Act.

40. A perusal of Section 109 read with Sections 107, 76 and

77 makes it clear that the perspective plan has to be prepared by the

University after considering various relevant factors set out in those

provisions. The paramount consideration for preparing such

perspective plan is to consider the interest of the students for granting

Education Facilities even in the inaccessible rural area and also in the

hilly and other regions. We are afraid that we cannot accept the

submission of Mr. Anturkar, learned senior counsel for the respondent KVM

WP 4805 & 4059.2018.doc nos. 5 to 7 that every applicant who submits a proposal for staring new

college in any locality shall be granted permission so as to avoid any

monopoly in favour of the institutions who were granted such

permission and that with a view to give wide range of option to the

student to select one or the other college according to the services that

would be offered by large number of institutions.

41. In our view, the purpose of perspective plan is not to

promote the private interest of the institutions for a cut throat

competition with the rival institutions in the same locality whether such

number of institutions in the same locality. If the arguments of the

learned senior counsel are accepted, in every street, there would be

mushrooming of dubious fly by night operators like bubble companies

making a mockery of the entire education system leading to

exploitation and certainly not education. In our view, the submission

advanced by the learned senior counsel is ex-facie contrary to the

provisions of the said Universities Act and thus deserves to be rejected.

42. Insofar as the submission of the learned senior counsel for

the respondent nos. 5 to 7 that the writ petition filed by these petitioner KVM

WP 4805 & 4059.2018.doc are not maintainable on the ground that their applications were not filed

within the original time prescribed in the advertisement issued by the

University or that the ordinance issued by the State Government having

lapsed after expiry of six weeks is concerned, in our view, this

submission of the learned senior counsel is devoid of merit. The

ordinance was issued on 28th November, 2017. On 11th December,

2017, the Maharashtra Public Universities (Amendment) Bill, 2017

came to be issued. On 21st December, 2017, the said bill was passed by

the Legislative Assembly and transmitted to the Legislative Council.

The said six weeks period came to an end on 22nd January, 2018 from

11th December, 2017.

43. On 20th January, 2018, another Maharashtra Ordinance No.

I of 2018 was published. The Budget session commenced on 26 th

February, 2018. On 6th April, 2018, Maharashtra Act No. 27 of 2018

was notified. Section 1(2) of the amending Act clearly provided that

the said amendment was deemed to have come into force on 28 th

November, 2017. It was provided that upon the reassembling of the

State Legislative on 11th December, 2017, the Maharashtra Public

Universities (Amendment) Bill, 2017 for converting the said ordinance KVM

WP 4805 & 4059.2018.doc into an Act was published by the Maharashtra Legislative Assembly on

21st December, 2017 and was transmitted to the Maharashtra

Legislative Council.

44. By the said ordinance, time to make an application was

extended till 15th December, 2017. The petitioner admittedly had made

an application on or before the extended date and was accordingly

considered by the University. The University in its affidavit filed

before this Court has confirmed these facts. The respondent nos. 5 to 7

have not impugned the validity of the said Amending Act or the

ordinance. In any event, the right to apply under the ordinance within

the extended period for Letter of Intent had already occurred in favour

of both the petitioners. Such rights could not have been taken away

once having vested and exercised.

45. Be that as it may, by the Amending Act, the Maharashtra

Public Universities (Amendment) Bill, 2017 was deemed to have came

into force on 28th November, 2017. Applications thus filed by both the

petitioners for Letter of Intent was within the time prescribed. The said

ordinance did not lapse as sought to be canvassed by the learned senior KVM

WP 4805 & 4059.2018.doc counsel for the respondent nos. 5 to 7. The applications thus filed by

both the petitioner for Letter of Intent were rightly considered by the

respondent no.1 The submission made by the learned senior counsel

that applications filed by the petitioners were not within the time

prescribed and could not have been considered by the respondent no.1

is without merit.

46. Insofar as the reasons recorded by the State Government in

various affidavits filed before this Court are concerned, in our view, the

reasons recorded in the impugned order cannot be supplanted or

introduced for the first time by filing affidavits. The Hon'ble Supreme

Court in case of Mohinder Singh Gill and Anr. v/s. Chief Election

Commissioner, New Delhi and Ors., (1978) 1 SCC 405 has considered

this issue and has held that the action of an authority has to be judged

by the reasons stated while making order. The Court has to exclude the

supplementary reasons recorded in the shape of affidavits. The

Hon'ble Supreme has held that when a statutory functionary makes an

order based on certain grounds, its validity must be judged by the

reasons so mentioned and cannot be supplemented by fresh reasons in

the shape of affidavits or otherwise, otherwise, an order bad in the KVM

WP 4805 & 4059.2018.doc beginning may, by the time, it comes to Court on account of a

challenge, get validated by additional grounds later brought out.

47. It is held that the orders are not like old wine becoming

better as they grow older. The principles laid down by the Hon'ble

Supreme Court in case of Mohinder Singh Gill and Anr. (supra)

applies to the facts of this case. The respondent no.1-State not having

recorded any reasons as to why the applications of the petitioners were

not considered for grant of letter of intent and as to why the

applications of respondent nos. 5 to 7 were considered for grant of

Letter of Intent cannot be permitted to supplant reasons in affidavits

filed before this Court for the first time. The reasons recorded by the

respondent no.1 for the first time in various affidavits are thus required

to be ignored.

48. In our view, the petitioners have made out a case for

quashing and setting aside of the impugned order and for remand of the

applications filed by the petitioners and the contesting respondents who

are before this Court for de novo consideration.

49. We therefore pass the following order :-

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WP 4805 & 4059.2018.doc

(a) The impugned order dated 15th March, 2018 refusing to grant Letter of Intent in favour of the petitioners for starting new college and granting Letter of Intent in favour of the respondent nos. 5 to 7 for the roster point of Haveli at Serial Nos. 46, 47 and 48 is quashed and set aside.

(b) The applications of the petitioners and respondent nos. 5 to 7 are restored to file before the respondent no.1-State. The State Government shall reconsider the applications of the petitioners and respondent nos. 5 to 7 afresh in accordance with the law and after following the provisions of the Maharashtra Public Universities Act, 2016 and shall pass a fresh order within four weeks from the date of communication of this order without being influenced by the impugned order/ communication dated 15th March, 2018, which is quashed and set aside, by recording reasons.

(c) The order that would be passed by the respondent no.1 shall be communicated to the petitioners as well as the respondent nos. 5 to 7 within one week from the date of passing of such order. Interim relief granted by this Court on 17th April, 2018 to continue till fresh order is passed by the respondent no.1 and for a period of three weeks from the date of communication of the order, if the said order is adverse against the petitioners or against the respondent KVM

WP 4805 & 4059.2018.doc nos. 5 to 7. The aggrieved party shall be at liberty to file appropriate proceedings.

(d) Writ Petition is allowed in aforesaid terms. There shall be no order as to costs.

(e) Parties to act on an authenticated copy of this order.

      (ABHAY AHUJA, J.)                        (R.D. DHANUKA, J.)