Bombay High Court
Aastha Education And Welfare Society ... vs The State Of Maharashtra Through Its ... on 25 September, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:22700-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3150 OF 2024
Aastha Education and Welfare Society,
Pundlikwadi, Mahaweer Chowk,
Nanded, Tq. & Dist. Nanded,
Through its President,
Dr. Abhaykumar Nrusinhrao Bhavsar. ... Petitioner
VERSUS
1) The State of Maharashtra
Through its Secretary
Higher and Technical Education
Department, Mantralaya, Mumbai.
2) Swami Ramanand Teerth Marathwada
University,
'Dnyanteerth' Parisar, Vishnupuri,
Nanded, Tq. & Dist. Nanded,
Through its Registrar.
3) Gramoday Sevabhavi Sanstha,
Babhulgaon, Tq. Vasmat,
Dist. Hingoli,
Through its President ... Respondents
...
Advocate for Petitioner : Mr. K.P. Rodge
Addl.G.P. for Respondent no. 1 : Mr. A.R. Kale
Advocate for Respondent No. 2 : Mr. U.S. Malte
Advocate for Respondent No. 3 : Mr. S.S. Tope, i/b Mr. Rushikesh R. Shinde
CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
RESERVED ON : 12.08.2024
PRONOUNCED ON : 25.09.2024
JUDGMENT :
( MANGESH S. PATIL, J.)
Heard. Rule. Rule is made returnable forthwith.
2. The learned Addl.G.P. Mr. Kale waives service for respondent no. 1,
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who is the Secretary of the Higher and Technical Education Department of
the State of Maharashtra. The learned advocate Mr. Malte waives service for
respondent no. 2 a Public University governed by the Maharashtra Public
Universities Act, 2016 (the Universities Act) and the learned advocate Mr.
Tope i/b Mr. Shinde waives service for respondent no. 3-institute.
3. By way of this petition under Article 226 of the Constitution of India,
the petitioner which is a public Trust intending to set up a new law college
pursuant to the annual plan published under Section 107 of the Universities
Act in tune with the perspective plan prepared there under for the location
Vasmat, district Hingoli, is challenging the decision of respondent no. 1,
published by way of a government resolution dated 15.02.2024, thereby
issuing Letter of Intent (LOI) to respondent no. 3-institute for setting up a
new law college and simultaneously refusing to grant the LOI to it from the
academic year 2024-2025.
4. During pendency of the petition, by the order dated 12.06.2024, it
was directed that the permission granted to respondent no. 3 pursuant to
the LOI in question shall be subject to the final outcome of the writ petition.
5. Since, admittedly, during pendency of the petition a final permission
has been granted by respondent no. 1 to respondent no. 3-institute, by way
of amendment even that is being challenged by the petitioner.
6. The learned advocate Mr. Rodge for the petitioner would take us
through the papers and the provisions of the Universities Act and submitted
that the proposal of the petitioner was complete in all respects, however,
without assigning any reason, its name was not included in the impugned
government resolution dated 15.02.2024. As against this, the proposal of
respondent no. 3-institute was deficient in many respects. Even the basic
requirements were not fulfilled. However, surreptitiously and with a political
pressure, respondent no. 3 was allowed to clear the deficiencies which were
not removed to the fullest extent and still it was granted LOI and
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subsequently a final permission.
7. Mr. Rodge would submit that even the basic requirement of possessing
a land either owned or taken on lease was lacking and was allowed to be
cured subsequently. The lease deed of respondent no. 3 was not even in
existence but still it had submitted the proposal and it was favourably
considered for the political reasons. Nothing was divulged to the petitioner
and only after an application was submitted under the Right to Information
Act that it was revealed. He would advert our attention to the inspection
report, carried out on behalf of respondent no. 2 University demonstrating
that in spite of want of basic amenities and compliancies in the form of
documents of ownership or lease, its proposal was forwarded by respondent
no. 2-University with a positive recommendation and subsequently was
accepted by respondent no. 1. As against this, in spite of there being no
deficiency in the petitioner's proposal, by a communication dated
10.06.2024, the University has informed the decision of respondent no. 1
State Government refusing to grant LOI only on the ground that though the
proposal was fully compliant with the norms, since the LOI was being issued
to some other institute, which was none other than respondent no. 3, by
resorting to Section 109(3)(g) of the Universities Act, as a ground for
turning down petitioner's proposal. The decision is arbitrary and illegal.
Though the State Government has absolute power to grant permission, the
power could not have been exercised in such an arbitrary and biased
manner.
8. Per contra, the learned Addl.G.P. and the learned advocates for
respondent nos. 2 and 3 would support the decision. They would
strenuously submit that it is a prerogative of the State Government to grant
LOI and permission as laid down under Section 109 of the Universities Act.
Though the proposal of respondent no. 3 was deficient, the shortcomings
were duly notified vide a communication dated 10.10.2023. Three
objections were raised in respect of the points at Sr. Nos. 6, 13 and 17, viz.
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the financial affairs were not being done through Nationalized or Scheduled
Banks, non availability of land and five year road map of the college,
respectively. After removal of such shortcomings, the proposal of respondent
no. 3 was considered objectively and it was granted LOI and subsequently
final permission. Thus, they would submit that no error or illegality has
been committed in granting permission to respondent no. 3 and refusing it
to the petitioner.
9. Additionally, the learned advocate for respondent no.3 would submit
that in order to remove the defects respondent no. 3 had taken on lease the
requisite land by a registered lease-deed. Subsequently, an inspection was
undertaken and after being satisfied LOI was issued. Subsequently, since the
lessors backed off and requested for cancelling the lease as they intended to
sell it, a land in the proximity, barely within distance of few metres was
purchased and it was subsequently accorded final permission. He would also
submit that it is not that respondent no. 3 was not having any land in its
possession at all when it had submitted the proposal. But the lease deed
was merely notarized one and to remove the defect, a registered lease deed
was got executed which formed the basis for issuance of LOI.
10. We have considered the rival submissions and perused the papers.
Obviously, this being a petition under Article 226 of the Constitution of
India, there are inherent limitations in the powers of this Court in causing
interference in the administrative decisions. Though the power vests with
the State Government pursuant to the provisions of the Universities Act to
grant or refuse permission to start a new college/course, the Court in
exercise of this power of judicial review would merely be concerned with the
decision making process. It can neither sit in appeal nor can it substitute its
decision. Bearing in mind this trite principle, let us examine the matter in
hand objectively.
11. Both the sides are on the same page to the extent that the location
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point Vasmat was notified by respondent no. 2 University pursuant to the
perspective plan and the annual plan issued under Section 107 of the
Universities Act, and pursuant thereto, petitioner and respondent no. 3 had
submitted their respective proposals. Admittedly, respondent no. 2
University had forwarded both these proposals with a favourable
recommendation. There is also no dispute about the fact that there were
certain shortcomings in the proposal of respondent no. 3, which were duly
notified to it and thereafter, extending an opportunity to it to overcome
those and after verification, the LOI was issued to respondent no. 3 but not
to the petitioner.
12. Though it is the stand of the petitioner that it was not communicated
and the information was not divulged to it and it had to resort to the Right
to Information Act, the information which it collected demonstrated that by
the communication dated 10.10.2023, three objections were raised and
shortcomings were pointed out to respondent no. 3 by respondent no. 2-
University in respect of items at Sr. No. 6, 13 and 17 of annexure-B, as
mentioned herein above. Though it is a matter of record that a positive
recommendation was forwarded by the University, in spite of the lack of
even the documents pertaining to the land (Sr. No. 11), which required
respondent no. 3 to have submitted documents pertaining to the availability
of infrastructural facilities and availability of staff, teaching as well as non
teaching, the proposal was so forwarded. It is pointed out by the affidavits
in reply filed by respondent no. 3 that due compliance in respect of the
items at Sr. Nos. 6, 13 and 17, was made and only on the basis of the
certificate as prescribed in annexure-B, signed by two members of the
inspecting committee that the proposal of respondent no. 3 was
subsequently considered. The first inspection was carried out on 07.10.2023
and the second one on 09.11.2023. Though it appears that the registered
lease deed was executed subsequently on 13.10.2023, the stand of
respondent no. 3 in the affidavits in reply that it was merely a notarized
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lease deed that was filed along with the initial proposal and to cure the
shortcoming, subsequently the registered lease deed was got executed, has
not been controverted by the petitioner by filing any rejoinder.
13. Besides, even subsequently, since the stand in the affidavits in reply
that the lessors of respondent no. 3 proposed to terminate the lease as they
wanted to sell the land and that subsequently by a sale-deed dated
14.02.2024, respondent no. 3 purchased 95-Are portion from land Survey
No. 40/1/A of Vasmat, district Hingoli, has not been controverted by the
petitioner by filing rejoinder.
14. It is thus quite apparent that though there were certain deficiencies in
the proposal of respondent no. 3, whereas the proposal of the petitioner was
without any such deficiencies, respondent no. 1 has taken decision to issue
LOI to respondent no. 3 and refused it to the petitioner and subsequently a
final permission was granted to respondent no. 3.
15. Obviously, since the petitioner and respondent no. 3 were intending to
start a new law college at the same point Vasmat from the annual plan,
which in turn was in consonance with the perspective plan of respondent
no.2 University, ultimately the decision rested with respondent no. 1-State
Government to select either of them. So far as the decision making process is
concerned, the aforementioned facts and circumstances demonstrate that
though the proposal of respondent no. 3 was deficient, the defects were
cured before issuing LOI to it and subsequently the final permission was
granted. Therefore, as far as the decision making process is concerned, we
do not see any defect or error. So far as the allegations regarding exertion of
political pressure and the decision being based on extraneous reasons,
except the bald allegation in the petition memo nothing has been produced
and is available to substantiate such allegations.
16. If ultimate discretion vests with the State Government under Section
109 of the Universities Act to grant or refuse permission for starting a new
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college, when the LOI and permission could be issued only to the one
amongst the proposals of the institutes competing against the same
point/location, in the absence of strong and convincing circumstances, the
discretion exercised by the State Government in granting LOI and final
permission to respondent no. 3 cannot be interfered with.
17. The petition is dismissed.
18. Rule is discharged.
( SHAILESH P. BRAHME, J.) (MANGESH S. PATIL, J.)
mkd/-
