Bombay High Court
Shri Sant Shiromani Manmath Swami ... vs The State Of Maharashtra Through Its ... on 9 October, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:24272-DB
1 wp 5423.24
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5423 OF 2024
Shri Sant Shiromani Manmath Swami
Shikshan Prasarak Mandal, Shevdi (Ba.)
Tq. Loha, District : Nanded.
Through its Secretary namely,
Manohar Babarao Dhonde,
Age : 61 years, Occu. : Agril.,
R/o Shevdi (Ba.), Tq. Loha,
District Nanded. .. Petitioner
Versus
1) The State of Maharashtra,
Through its Secretary,
Higher and Technical Education
Department, Mantralaya,
Mumbai - 32.
2) Director of Higher and Technical
Education, Maharashtra State, Pune.
3) Joint Director of Higher and Technical
Education, Latur Region, Latur.
4) Swami Ramanand Teerth Marathwada
University, Nanded, Vishnupuri,
Nanded through its Registrar.
5) Bhimashankar Shikshan Sanstha,
Shiradhon, Tq. Kandhar,
District Nanded,
Through its President/Secretary .. Respondents
Shri Ankush N. Nagargoje, Advocate for the Petitioner.
Shri Sarang P. Joshi, A.G.P. for the Respondent Nos. 1 to 3.
Shri A. M. Gaikwad, Advocate for the Respondent No. 4.
Shri Satyajit S. Bora, Advocate h/f Shri S. V. Gundre, Advocate
for the Respondent No. 5.
2 wp 5423.24
CORAM : MANGESH S. PATIL AND
SHAILESH P. BRAHME, JJ.
CLOSED FOR JUDGMENT ON : 01.10.2024
JUDGMENT PRONOUNCED ON : 09.10.2024
JUDGMENT (Per Shailesh P. Brahme, J.) :
-
. Rule. Rule is made returnable forthwith. With the consent
of parties heard finally at the admission stage.
2. The petitioner is invoking jurisdiction of the High Court
under Article 226 of the Constitution of India for challenging
Letter of Intent (for short "LOI") dated 15.02.2024 issued in
favour of the respondent No. 5 and soliciting directions :
i) to delete location of village Shiradhon, Tq. Kandhar, Dist.
Nanded from perspective/annual plan,
ii) to quash perspective/annual plan to the extent of that
location,
iii) to prepare annual plan in accordance with law,
iv) after filing of the petition amendment was solicited and
final permission granted to the respondent No. 5 vide
Government Resolution dated 15.07.2024 is also
questioned.
3. The petitioner runs a senior college in faculties of Arts,
Science and Commerce at village Usmannagar, Tq. Kandhar,
3 wp 5423.24
Dist. Nanded in pursuance of LOI dated 31.01.2020 and final
permission dated 15.06.2021. The respondent No. 5 is granted
LOI and the final permission to run a senior college at village
Shiradhon, Tq. Kandhar, Dist. Nanded. The distance between
two places is about three (03) Kilometers. The perspective plan
under Sec. 107 of the Maharashtra Universities Act, 2016 (for the
sake of brevity and convenience as to the 'Act') was published for
the period 2024-2029 proposing to allot 23 colleges in District
Nanded at various locations. Neither any location at village
Shiradhon, nor at any place in Kandhar taluka was earmarked
in the perspective plan.
4. The location at Shiradhon, Tq. Kandhar, Dist. Nanded was
sought to be introduced vide letter dated 03.11.2023 addressed by
the respondent No. 1 to the respondent No. 4/university in the
annual plan of 2024-2025. Thereafter advertisement was issued
on 06.11.2023 calling for the proposals for issuing LOI. The
respondent No. 5 applied for the location at Shiradhon. The
respondent No. 4 scrutinized the proposal and recommended it to
the respondent No. 1. The LOI was issued to the respondent No.
5 by Government Resolution dated 15.02.2024. The final
permission was granted by Government Resolution dated
15.07.2024. Hence this petition.
5. The petition is contested by all the respondents by filing
affidavits in reply. The common thread of their contention is that
after following due procedure of law, LOI and final permission
was granted to the respondent No. 5. Due procedure of law was
4 wp 5423.24
followed to introduce the location in question in the annual plan
of 2024-2025. It is further contended that the Commission
approved the perspective plan for the year 2024-2025 vide order
dated 22.09.2023. The decision was reviewed considering need of
new places. With the approval of Commission new locations were
introduced in the annual plan and those were communicated by
the respondent No. 1 vide letter dated 03.11.2023, which is
inclusive of the location in question.
6. The respondent No. 1 by separate affidavit in reply
reiterated the stand of the respondent No. 4-university. It is
additionally contended that a meeting of Maharashtra State
Higher Education and Developments Commission was held for
earmarking new places in the perspective plan taking into
consideration need and demand of higher learning in particular
area and accordingly new places were introduced as per Sec. 77 of
the Act. Thereafter, the respondent No. 1 issued letter on
03.11.2023 for introducing new locations including location at
village Shiradhon, Tq. Kandhar, Dist. Nanded.
7. The petitioner and the respondents filed their affidavits
and rejoinders countering rival contentions. However, they
restricted their submissions which are dealt with in foregoing
manner, shorn off unnecessary details.
8. The learned counsel for the petitioner Mr. Ankush N.
Nagargoje made following submissions :
5 wp 5423.24
(a) The annual plan of 2024-2025 providing location at
Shiradhon is not in consonance with perspective plan of
2024-2029, as Shiradhon was not included in the
perspective plan. Therefore, LOI and permission given to
the respondent No. 5 are illegal.
(b) There is violation of guidelines issued by Dr. Narendra
Jadhav Committee as the distance between petitioner's
college at Usmannagar and Shiradhon is hardly three
(03) Kilometers leading to unhealthy competition.
(c) The petitioner has a reasonable apprehension that starting
new college will adversely affect strength of students which
may lead to closing down of the college.
(d) There is violation of statutory timeline provided by the
University Act and insertion of new location vide letter
dated 03.11.2023 may be good for academic year 2025-2026
and not for 2024-2025.
(e) The learned counsel for the petitioner relied on the
following judgments of this Court :
I. Judgment dated 12.07.2024 in Writ Petition No. 4282 of
2023 in the matter of Trimurti Pawan Pratishthan Vs. The
State of Maharashtra and others.
II. Judgment dated 26.08.2024 passed in Writ Petition No.
2093 of 2024 in the matter of Nisargdeep Shikshan
Prasarak Mandal, Aurangabad Vs. The State of
6 wp 5423.24
Maharashtra and others.
III. Judgment dated 29.07.2024 in Writ Petition No. 8734 of
2023 in the matter of Shri Gajanan Shikshan Prasarak
Mandal's Toshniwal Arts, Commerce and Science College,
Sengaon Vs. The State of Maharashtra and others.
09. The respondents have advanced submissions as per their
affidavits in reply to support LOI and final permission given to
the respondent No. 5 to start a college. It is additionally
submitted by learned counsel Mr. Satyajit Bora appearing for the
respondent No. 5 that though the respondent No. 5 - college has
started from July 2024, the strength of the students of the
petitioner has not been affected. The petitioner could secure the
admission to its intake capacity and the apprehension of the
petitioner is misplaced. There is great need of another college in
the vicinity.
10. We have considered rival submissions of the parties
advanced across the bar. We have already taken a view in the
matter of Trimurti Pawan Pratishthan Vs. The State of
Maharashtra and others (supra) that the location and starting
of new college as notified in the annual plan needs to be in
consonance with the perspective plan. If it is not so then
university cannot issue notification calling proposals.
11. Thereafter in the matter of Nisargdeep Shikshan
Prasarak Mandal, Aurangabad Vs. The State of
7 wp 5423.24
Maharashtra and others (supra) relying on the statutory
provisions, we have taken a view that annual plan has to be in
consonance with the perspective plan. We prefer to rely on
paragraph Nos. 21 and 22 of the judgment, which are as under :
"21. The perspective plan under Section 107 of the Act is
published for five years from 2024 to 2029. There cannot
be a perspective plan for 2024-2025 which is a misnomer
frequently referred to in correspondence dated 22.09.2023,
03.11.2023, public proclamation dated 06.11.2023 and the
affidavit-in-reply of respondents. The annual plan is
prepared by Board of Deans and it has to be in consonance
with the perspective plan. It is relevant to notice following
provision Section 37 (1) (i) of the Act :
"37. Powers and Duties of Board of Deans.-
(1) The Board of Deans shall have the following
powers and duties, namely : -
(a) .....
(b) .....
.....
(i) to prepare the annual plan for the location of
colleges and institutions of higher learning, in
consonance with the perspective plan."
The Board of Deans prepares the annual plan. Then
the Management Council recommends it for the location of
the Colleges prepared by Board of Deans. Therefore,
academic council approves it. This is the frame work for
preparing annual plan under the statute.
22. The perspective plan is prepared by the University
under Section 107 (5) of the Act. The Board of Deans under
Section 37 (1) (h) of the Act, prepares the perspective plan
8 wp 5423.24
and under clause (i) prepares annual plan. The perspective
plans and annual plans are recommended by Management
Council under Section 31 (y) of the Act. Thereafter,
Academic Council approves those plans under Section 33
(1) (q) of the Act. The perspective plan prepared by the
University needs an approval by Commission under Section
77 (1) (b) of the Act. Thus there is distinction between
perspective plan and annual plan. As per Section 37 (1) (i)
of the Act the annual plan of the University for opening
new Colleges shall be in accordance with the perspective
plan in all respect including the location."
12. In the matter of Shri Gajanan Shikshan Prasarak
Mandal's Toshniwal Arts, Commerce and Science College,
Sengaon Vs. The State of Maharashtra and others, we have
emphasized on the parameters of distance as laid down by Dr.
Narendra Jadhav Committee as follows :
"9. One need not delve as far as the sanctity of the distance
between the two institutes or colleges running the same
course. Though some competition is inevitable, permitting
two institutes to run same courses in proximity could lead
to unhealthy competition, thereby, adversely affecting the
quality of education. Even without going into any other
aspect, if this Government Resolution dated 15.09.2017
contemplates the application by the Management for
starting a new college to precisely state in column No.10,
whether any other institute is running the same courses
within the periphery of 15 km, one can safely proceed on
the premise that this distance criteria has its own
importance, not because of the recommendations of the
Committee headed by Dr. Narendra Jadhav, but even
without that, since the Government itself had thought it fit
and had resolved to incorporate the distance criteria.
9 wp 5423.24
10. Again, whether the distance of 15 km provided in
Annexure 'A' to be filled in by the prospective colleges is
rigid or otherwise need not be addressed in this petition,
more so when there is no dispute about the fact that the
distance between the petitioner's college and that of
respondent No.3 to which final permission has been
accorded is around 5 km and both these colleges situate in
rural area."
13. There is no dispute that location of Shiradhon, Tq.
Kandhar, Dist. Nanded was not included in the perspective plan
for the period 2024-2029 prepared by the respondent No. 4-
university which was approved by the Commission U/Sec. 77 of
the Act. The petitioner is running a college at village
Usmannagar, Tq. Kandhar, Dist. Nanded since 15.06.2021. The
distance between Usmannagar and Shiradhon is three
kilometers. The location Shiradhon was for the first time
introduced in the annual plan of 2024-2025 vide letter dated
03.11.2023.
14. The respondents tried to justify insertion of location
Shiradhon in annual plan of 2024-2025 by referring to the
correspondence dated 22.09.2023 and 03.11.2023 issued by the
respondent No. 1 to the respondent - university. It is tried to be
justified that initially few locations including Shiradhon were not
in the annual plan for 2024-2025 as proposed, but lateron it was
thought fit by the Commission to introduce those and, therefore,
letter dated 03.11.2023 was issued incorporating location in
question.
10 wp 5423.24
15. The affidavit in reply as well as correspondence placed on
record do not spell out particulars of the meeting or the
resolution of the Commission for introducing the location in
question. This plea is clearly an after thought and we have
reservations for it. The respondents could have easily placed the
details on record. We do not approve the stand of the respondent
No. 1 or the respondent No. 4 - university that taking into
consideration demand and need of higher learning location
Shiradhon was introduced.
16. We have already taken a view in the matter of Trimurti
Pawan Pratishthan Vs. The State of Maharashtra and
others and Nisargdeep Shikshan Prasarak Mandal,
Aurangabad Vs. The State of Maharashtra and others
(supra) that annual plan has to be in consonance with the
perspective plan. Shiradhon was not included in the perspective
plan of 2024-2029. It could not have been introduced vide letter
dated 03.11.2023 in the annual plan of 2024-2025. The annual
plan for 2024-2025 to the extent of location Shiradhon is against
the provision of Section 37(1)(i) of the Act.
17. There is further impediment of Section 109(2) of the Act,
which prohibits the university from receiving any
proposal/application for opening a new college, which is not in
conformity with the perspective plan. As per Section 109(2) of
the Act, the respondent No. 4 - university could not have
entertained the proposal of the respondent No. 5. The proposal
11 wp 5423.24
was invalid and consequentially its recommendation by the
respondent No. 4-university is also bad in law. We have no iota of
doubt that LOI granted vide Government Resolution dated
15.02.2024 to the respondent No. 5 and final permission issued to
it vide Government Resolution dated 15.09.2024 are against the
statutory provisions and are unsustainable.
18. The manner in which the location Shiradhon was tried to
be introduced is de hors the statutory procedure. It is not
permissible to make any changes in the location prescribed by
perspective plan in such a manner. We, therefore, accept the
submissions of the learned counsel for the petitioner in this
regard.
19. Considering the distance between petitioner's college and
that of the respondent No. 5, the guideline of 20 KM for rural
area stipulated by Dr. Narendra Jadhave Committee has been
violated. The guideline for the distance are sacrosanct and have
been consistently followed by the universities which are rightly
demonstrated by the petitioner by placing necessary documents
on record for denying the proposals of Shanti Pratisthan in the
year 2019-2020 to open college at Phulambri, Tq. Pulambri, Dist.
Aurangabad and Saraswati Shikshan Prasarak Mandal for
opening college at Jafrabad. The guidelines of Dr. Narendra
Jadhav Committee were directed to be followed by the judgment
of the coordinate bench delivered on 29 November 2021 in the
group of petitions led by Writ Petition No. 7417 of 2020 in the
matter of Mawala Bahuddeeshiya Shikshan Sevabhavi
12 wp 5423.24
Sanstha Bhokardan Vs. The State of Maharashtra.
20. Our attention is adverted to letter dated 16.01.2023 issued
by the respondent No. 1 to all the universities in the State of
Maharashtra to prepare perspective plan for 2024-2029 in
accordance with the guidelines of Dr. Narendra Jadhav
Committee. Under these circumstances petitioner is justified in
contending that it is impermissible to open a college within 5
Kilometers from the petitioner's college.
21. Having recorded that LOI and final permission of the
respondent No. 5 are contrary to law and the guidelines of Dr.
Narendra Jadhav Committee, we are not persuaded by the
submissions of the learned counsel Mr. Satyajit Bora that for the
present academic year intake of the petitioner has not been
adversely affected. It is not the question of unhealthy
competition or adverse effect in running of a college for a
particular year. The adverse effect on running the petitioner's
college in future cannot be ruled out. It is informed that the
students have been admitted in the respondent No. 5 college.
The respondent Nos. 1 to 4 would be at liberty to accommodate
the students in adjoining colleges or to permit them to continue
the education in this year only. However, the respondent No. 5
shall not claim any equity, if the students are permitted to be
continued till completion of academic year 2024-2025.
22. For the reasons recorded above, we pass following order :
13 wp 5423.24
ORDER
A. The writ petition is allowed partly.
B. The impugned Government Resolution dated 15.02.2024
granting Letter of Intent to the respondent No. 5 and the
Government Resolution dated 15.07.2024 granting final
permission to the respondent No. 5 are quashed and set aside.
C. The respondent Nos. 1 to 4 shall be at liberty to take
decision in respect of students admitted by respondent No. 5 for
the present academic year.
D. In case the students are permitted to continue with
respondent No. 5 for the present academic year, it shall not be
entitled to claim equity.
E. Rule is made absolute in above terms.
[ SHAILESH P. BRAHME, J. ] [ MANGESH S. PATIL, J. ]
bsb/Oct. 24
