Bombay High Court
Dr. Keshav Baliram Hedgewar Paryayi ... vs Dr. Tatyarao P. Lahane, Director, Maha. ... on 24 April, 2025
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2025:BHC-NAG:4479-DB
1 901-J-1476-2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION No. 1476 OF 2021
PETITIONER : Dr. Keshav Baliram Hedgewar Paryayi
Shiksha Mandal, Samta Nagar,
Wardha, Tq. & Distt. Wardha,
through its Main Trustee
Amol Ajay Shrivastav
Vs.
RESPONDENTS : 1. The State of Maharashtra,
Through Principal Secretary,
Medical Education and Drugs
th
Department, 9 Floor, G.T. Hospital
Sankul, Lokmanya Tilak Marg,
Mumbai - 440001
2. The Maharashtra State Board of
Nursing and Para Medical Education,
through its Registrar, 4th Floor, St.
George's Hospital Compound, P.
D'Melo Road, Near CSMT, Mumbai -
440001,
Email : [email protected]
3. Shalom Nursing School (Ashray Gram
Vikas Sanstha) through its Principal
Vrushali Maiskar, Wardha
WITH
WRIT PETITION No. 5477 OF 2021
2 901-J-1476-2021.odt
PETITIONER : Dr. Keshav Baliram Hedgewar Paryayi
Shiksha Mandal, Samta Nagar,
Wardha, Tq. & Distt. Wardha,
through its Main Trustee
Amol Ajay Shrivastav
Vs.
RESPONDENTS : 1. The State of Maharashtra,
Through Principal Secretary,
Medical Education and Drugs
th
Department, 9 Floor, G.T. Hospital
Sankul, Lokmanya Tilak Marg,
Mumbai - 440001
2. The Maharashtra State Board of
Nursing and Para Medical Education,
through its Registrar, 4th Floor, St.
George's Hospital Compound, P.
D'Melo Road, Near CSMT, Mumbai -
440001,
Email : [email protected]
3. Shalom Nursing School (Ashray Gram
Vikas Sanstha) through its Principal
Vrushali Maiskar, Wardha
Mr. Amit Choube, Advocate for petitioner.
Mr. Akshay Naik Senior Advocate with Ms.Kalyani Marpakwar,
Assistant Government Pleader for respondent No.1.
Mr. T.S. Kene, Advocate for respondent No.2.
Mr. Madhur Deo, Advocate for respondent No.3.
Mr. V.A. Dahiwale, Advocate for Intervenor
CORAM :AVINASH G. GHAROTE, AND
ABHAY J. MANTRI, JJ.
DATE : 24/04/2025
ORAL JUDGMENT (Per : AVINASH G. GHAROTE, J.)
3 901-J-1476-2021.odt
1. Heard.
2. Rule. Rule made returnable forthwith.
Heard Mr. Amit Choube, learned counsel for the
petitioner, Mr.Naik, Senior Counsel with Ms.Kalyani
Marpakwar Assistant Government Pleader for
respondent No.1, Mr. Kene learned counsel for
respondent No.2. Mr.Madhur Deo, learned counsel for
respondent No.3.
3. The petitioner is an institution, which had
applied for starting a new General Nursing and
Midwifery Course (GNM Course for short hereinafter)
on account of which it had made an application on
28/08/2018 to the respondent No.2 Board for grant of
permission to start the aforesaid course at Wardha. The
perspective plan for the year 2018-2023 (page 62) had
approved, the requirement of starting new GNM Course
College at Wardha on account of deficiency in respect of
the same and the area being a backward area (page
64). The Board/respondent No.2 upon receipt of the
application was required to conduct an inspection,
however, as inspection of the petitioner institution, was
not done, the petitioner preferred Writ Petition
4 901-J-1476-2021.odt
No.6327/2019 before this Court in which by an order
dated 16/09/2019 a direction was issued to respondent
No.2 to conduct inspection and submit a report to this
Court. After receipt of the report this Court disposed off
Writ Petition No.6327/2019 by directing respondent
No.2 to forward a proposal together with the inspection
report to the respondent No.1, who was also directed to
decide the proposal on or before 31/10/2019. On
31/12/2019, the respondent No.1 conducted scrutiny of
the proposal and rejected it leading to the petitioner
filing Writ Petition No.110/2020 before this Court in
which by judgment dated 23/09/2020 the order of
rejection dated 31/12/2019 came to be quashed and
matter was remitted back to the respondents, to
consider the proposal of the petitioner, to start GNM
Course from the year 2020-2021 on its own merits. The
petitioner was expecting completion of the entire
process before start of the academic year 2020-2021,
however, it received communication dated 12/01/2021
(page 105) from the respondent No.2 intimating to the
petitioner that an inspection was to be carried out by
the petitioner institution to evaluate its eligibility. The
5 901-J-1476-2021.odt
petitioner by its communication dated 31/01/2021
(page 107) intimated the respondent No.2 that the
entire process in terms of Section 28 including the
inspection was already completed and requested the
respondent No.2 to withdraw the aforesaid
communication dated 12/01/2021, which having not
been done, Contempt Petition No.35/2021 came to be
filed in which a statement was made by the counsel
appearing for the Board that the decision in the matter
would be taken by the Board within a week. By the
communication dated 17/03/2021 (page 111), the
respondent No.2, intimated to the petitioner, that the
proposal of the petitioner to start GNM Course at
Wardha from 2020-2021 had been recommended and
forwarded to the State on 01/03/2021 and the same
was pending before the State and unless the same is
sanctioned, the Board could not issue any affiliation to
the petitioner institution.
4. By the impugned communication dated
18/03/2021 (page 112) the respondent No.1 intimated
the petitioner, to deposit an amount of Rs.5 Lakh as
scrutiny fee (Chhanani Shulk). It is this communication
6 901-J-1476-2021.odt
dated 18/03/2021 which is being questioned in the
present petition. Challenge is also raised to the GR
dated 26/10/2017 and 13/07/2018, being ultra vires to
the constitution and contrary to the provisions of the
Maharashtra State Board of Nursing and Paramedical
Education Act, 2013.
5. Mr. Amit Choube, learned counsel for the
petitioner submits that there is no mandate in the State,
to demand any scrutiny fee for any inspection or for
that matter to conduct any inspection at all. In this
Context he invites our attention to Section 28 of the
Maharashtra State Board of Nursing and Paramedical
Education Act, 2013 (MS Nursing Act, 2013 for short
hereinafter), to contend that the Scheme of the said
provision which prescribes the procedure for permission
to start a new Nursing and Paramedical Institution,
provides for inspection to be conducted by the Board
U/s.28(3) and after such inspection, make a
recommendation to the State, who if it is satisfied that
such institution, needs to be granted permission, shall
grant permission. He further relies upon the language
of Section 28(5) of the aforesaid Act of 2013 to contend
7 901-J-1476-2021.odt
that the power of the State Government is to consider
the application recommended by the Board and grant
permission to such institution as it may consider right
and proper, taking into account (i) the Government's
budgetary resources (ii) the suitability of the
management seeking permission to open new
institution and (iii) the State level priorities with regard
to locations of institutions for Nursing and Paramedical
Education. He therefore, submits that Section 28 in its
totality, does not permit or grant any right to the State,
upon receipt of the recommendations from the Board
u/s.28(3), to conduct an independent inspection and
levy fee for such inspection and therefore, the
impugned communication which demands an amount
of Rs.5 Lakh as scrutiny fee, cannot be justified, in
absence of power to inspect. He further submits that if
the demand in the impugned communication, is
construed to mean scrutiny fee for the purpose of
scrutinizing the recommendation made by the
respondent No.2, Board and not any inspection, even
then the amount of Rs.5 Lakh for scrutiny of the
proposal received from the Board is exorbitant and has
8 901-J-1476-2021.odt
no nexus to the grant of permission. He also submits
that the application made by an institution u/s.28(2) is
in turn scrutinized by the Board/ respondent No.2,
during which inspection is carried out for physical
verification of the premises of the institution and the
facilities available, so as to satisfy the Board, regarding
the existence of necessary requirements, for making
recommendation for which the fee chargeable is of
Rs.25000/- He therefore, submits that there is no
warrant in the State to levy a fee of Rs.5 Lakh for the
purpose of scrutiny of the recommendation made by the
Board in terms of Section 28(4), in terms of the
language of Section 28(5) on which ground also the
impugned communication cannot be sustained. He
submits that any fee cannot be imposed by the
respondent No.1 without any legislative sanction to the
same for which learned counsel places reliance upon
Commissioner of Income Tax, Udaipur, Rajasthan vs.
Mcdowell and Company (2009) 10 SCC 755 (para 21).
Reliance is also placed by him upon Temple of
Hahnemann Homeopathic Medical College and
Hospital vs. Union of India (2018) 17 SCC 753 and
9 901-J-1476-2021.odt
specifically paras 17 to 20, to contend, that unless a
power exists in the State by way of a legislative
mandate, it would be impermissible for it to abrogate to
itself such power. Reliance is also placed on
Ahmedabad Urban Development Authority vs.
Sharadkumar Jayantikumar Pasawalla (1993) 2 SCC
285 paras 7 and 8, to contend that if there is
compulsory exaction of money, there should be specific
provision for the same and there is no room for
intendment. He further relies upon Social Society,
Morba vs. Principal Secretary, Higher and Technical
Education Department, Mumbai and others 2011 (4)
Mh.L.J. 316 paras 15 to 17, to contend, that since there
was no financial assistance from the State, the question
of obtaining prior permission of the State would not
arise. He further submits, that on account of the
aforesaid contention, the GRs dated 26/10/2017 and
13/07/2018, would be without any legislative mandate
in absence of which, they cannot be sustained and are
therefore, required to be quashed and set aside.
6. Mr.Amit Choube, learned counsel for the
petitioner, submits, that since the students with the
10 901-J-1476-2021.odt
petitioner-institution have been granted admission and
permission to appear in the GNM course by the orders
dated 25/03/2021 and 20/06/2022 and have appeared
in the examination in pursuance thereto, their interest
needs to be protected and even presuming, that the
petitioner institution, does not have any permission,
however, since the respondent No.3, which institution
already has permission and has expressed willingness to
accommodate the students belonging to the petitioner
institution, the same be directed so that the career of
the students is not marred. He submits, that the amount
of Rs.5,00,000/- deposited in this Court by the
petitioner institution in pursuance to the order dated
25/03/2021, in case, it is found, that the same was not
chargeable by the State, could be appropriated as costs.
7. Mr. Akshay Naik, learned senior counsel for
the respondent No.1 contends, that the requirement of
inspection and charging of fees for such inspection,
considering the nature of the permission sought in
terms of section 28 (5) of the Act of 2013, will have to
be held to be inbuilt in the aforesaid provision,
considering the statutory scheme under the Act. He
11 901-J-1476-2021.odt
further invites our attention to section 23 of the Act of
2013, which relates to the powers and duties of the
Governing Council and Board and specifically to clauses
(b) and (i) therein, to contend, that the same would
indicate power to conduct an inspection and for that
purpose levy of fee. Reliance is also placed upon section
24, the powers and duties of the Board, specifically to
clause 24(1)(w) therein, which empowers the State to
make regulations for granting affiliation, accreditation,
equivalence, eligibility to institutions and reviving or
revoking affiliation, accreditation, equivalence,
eligibility, to contend, that the State has power to frame
regulations in this regard. Reliance is also placed on
section 26(1), which empowers the State to issue
directions to the Board in this regard. He further relies
upon section 41(1), which empowers the Government
to cause inspection to be made of the institutions
affiliated and accredited to the Board, which according
to him, would indicate, that even for the purpose of
granting permission under section 28(5), it would be
permissible for the Government to conduct an
inspection. Further relying upon the language of section
12 901-J-1476-2021.odt
28(5), he submits, that for the purpose of ascertaining
the suitability of the management seeking permission to
open new institutions, it would be necessary to cause an
inspection to be made of the institution, in view of
which, the requirement will have to be held to be
inbuilt in the said provision. He further invites our
attention to the GR dated 26/10/2017 (Pg.114), to
contend, that the fees for inspection, as indicated
therein, is not only reasonable, but necessary for the
purpose of effectively implementing the legislative
mandate flowing from section 28(5) of the Act of 2013.
Further, by relying upon the GR dated 13/07/2018
(Pg.124-A) and specifically Part-I, clause (ii), which is
in reference to section 28 of the Act of 2013, it is
contended, that the same would also buttress the
aforesaid argument. He, therefore, submits, that the
challenge as laid in the present petition, to the aforesaid
GRs and so also to the impugned communication,
asking for Rs.5,00,000/- as scrutiny fee needs to be
rejected. Mr.Naik, learned senior counsel relies upon V.
N.Public Health and Education Trust v. State of Kerala,
(2021) 17 SCC 189 and specifically paras 24 and 25, to
13 901-J-1476-2021.odt
contend, that when it is for the State to grant
permission, considering the merit factor involved, it
would be necessary for the State to conduct an
independent inspection, so as to satisfy itself, as to the
existence of the necessary parameters for the purpose of
grant of permission.
8. Mr.Kene, leaned counsel for the respondent
No.2, submits, that being a Board, it is bound by the
aforesaid GRs dated 26/10/2017 and 13/07/2018 and
therefore, cannot have any say in that regard. He,
however, submits, that the Board has performed its
functions in terms of section 28(3) of the Act of 2013 by
recommending the case of the petitioner institution
after having done an inspection, and being satisfied
regarding the compliance with the requirements in that
regard. He vehemently objects, to the transfer of the
students, from the petitioner institution to the
respondent No.3 on the ground, that same is not
permissible and the admission of these students was
prior to the interim order dated 25/03/2021, by which,
protection was granted to them, as a result of which,
they appeared in the examination.
14 901-J-1476-2021.odt
9. Mr.Madhur Deo, learned counsel for the
respondent No.3, submits, that the respondent No.3
institution has sufficient intake capacity available as of
date, for accommodating the students of the petitioner
institution, in case, the Board is willing to do so.
10. The entire issue depends upon the language
of Section 28 of the Act of 2013, which for the sake of
ready reference is reproduced as under :
"28. (1) The Board shall grant permission to
start new nursing and Paramedical Institution by
observing the standards laid down under the Indian
Nursing Act, 1947 and the directions issued by the
Central Government regarding Paramedical
Education as per the provisions specified under this
section.
(2) The management seeking permission to
open a new institution shall apply in the prescribed
form to the Member-Secretary of the Board before the
last day of the year preceding the year for which the
permission is sought.
(3) The Board shall conduct an inspection
after receipt of payment of inspection fee within
prescribed time and submit its report to the State
Government.
(4) All such applications received within the
aforesaid prescribed time-limit shall be scrutinized by
the Board and be forwarded to the Government on or
before the last day of December of the year.
(5) Out of the applications recommended by
the Board, the Government may grant permission to
such institutions as it may consider right and proper
in its absolute discretion, taking into account the
Government's budgetary resources, the suitability of
the managements seeking permission to open new
institutions and the State level priorities with regard
15 901-J-1476-2021.odt
to location of institutions for Nursing and
Paramedical Education :
Provided that, in exceptional cases and for the
reasons to be recorded in writing, any application not
recommended by the Board may be approved by the
Government for starting a new institution of Nursing
and Paramedical Education.
(6) No application shall be entertained
directly through the Government for the grant of
permission for opening new institution of Nursing
and Paramedical Education."
Section 28(1) of the Act of 2013, empowers
the Board, to grant permission to start a new Nursing
and Paramedical Institution, which has to be done by
the Board by ensuring, that the standards laid down
under the Indian Nursing Act, 1947 and directions
issued by the Central Government regarding
paramedical education and so also statutory provision
under Section 28 of the Act of 2013 are satisfied. In
terms of Section 28(2) of the Act of 2013, an
application for opening a new Institution has to be
made in the prescribed form to the Member Secretary of
the Board before the last day of the year, preceding the
year on which permission is sought. In terms of
Subsection 3 of Section 28 of the Act of 2013, the Board
after receipt of such application and deposit of
Rs.25,000/-, which is a fee to be paid to the Board for
16 901-J-1476-2021.odt
the purpose of inspection, conducts an inspection and
thereafter submits a report to the State in this regard. It
is trite, that while conducting such inspection it is
necessary for the Board to verify the existence of the
facilities and requirements from time to time prescribed
for the purpose of grant of education in the stream of
Nursing and Midwifery and to satisfy itself regarding
such requirement, only upon which it is permissible for
the Board to make a recommendation to the State. In
terms of Section 28(4) of the Act of 2013, all
applications received by the Board are to be scrutinized
and forwarded to the State before the last day of
December of the said year. The role of the State, is then
spelt out in Section 28(5) of the Act of 2013, where out
of the applications recommended by the Board, the
State may grant permission to such Institutions as it
may consider right and proper, in its absolute
discretion, taking into account (a) The Government's
budgetary resources, (b) The suitability of management
seeking permission to open new Institutions and (c) The
State level priorities with regard to the locations of the
Institutions for Nursing and Paramedical Education. By
17 901-J-1476-2021.odt
and large, the reading of the aforesaid provision, would
indicate, that it does not permit any independent
inspection, to be carried out by the State, while
considering the recommendation sent to it by the Board
for grant of permission. In fact, the Section appears to
be poorly worded inasmuch as though Section 28(1) of
the Act of 2013 states, that the Board shall grant
permission, subsections 4 and 5 of Section 28 of the Act
of 2013, requires such applications to be sent to the
State with the recommendations of the Board and
therefore, there appears to be a dichotomy, between the
provisions of Section 28(1) and Sections 28(4) and (5)
of the Act of 2013. Be that as it may, a reading of the
language of Section 28(5) of the Act of 2013, would
indicate, that no independent right of inspection is
conferred upon the Board by the said statutory
provision. The contention of Mr. Akshay Naik, learned
Senior Counsel for the petitioner, that such a
requirement has to be read in built, in the language of
Section 28(5) of the Act of 2013, considering the nature
of permission, which is required to be granted, will have
to be considered in the light of what the State is
18 901-J-1476-2021.odt
enjoined to do in terms of Section 28(5) of the Act of
2013. As indicated above, Section 28(5) of the Act of
2013, requires the State to consider the
recommendations made by the Board, in the light of the
following factors, namely :
(a) The Government's budgetary resources,
(b) The suitability of management seeking permission
to open new Institutions and
(c) The State level priorities with regard to the locations
of the Institutions for Nursing and Paramedical
Education.
11. Insofar as factor (a) is concerned, it is an
admitted position, that the State, does not provide any
aid to the Institution, which applies for starting Nursing
and Paramedical Institution, and in that sense of the
matter, such Institution would be a self-funded
Institution, without receiving any grant, or aid from the
State of any nature. Though Mr. Kene, learned counsel
for the respondent No.2 submits, that the State is
reimbursing fees in respect of the admissions granted in
such Institutions to the students belonging to the
backward communities, however, that cannot be termed
as an aid to the Institution, for the reason, that the
19 901-J-1476-2021.odt
reimbursement of the fees is relatable to the policy of
the State for promoting grant of education to persons
belonging to backward communities. In that view of the
matter, factor (a), therefore, would become redundant
as no aid is being provided by the State to such
Institutions.
12. Insofar as factor (c) is concerned, the
perspective plan, which is prepared, for determining the
locations in the State, where there is a necessity to open
Nursing and Paramedical Institutions, in terms of
Section 23(b) of the Act, 2013, already stands approved
by the Governing Council of the respondent No.2 and
therefore, the State would be bound by the same. In
the instant case, it is not an issue, that the place at
which the petitioner - Institution had applied for and
was recommended for grant of permission, was
included in the perspective plan. This is also indicated
by the perspective plan, which is placed on record (page
Nos.62 to 64), which at Sr. No. 26, indicates
requirement of a Nursing and Paramedical Education
College, to be opened at Wardha, on account of College
deficiency in the backward areas (Page 64). The
20 901-J-1476-2021.odt
perspective plan would be binding upon the State and
therefore, the requirement of factor (c) also stands
satisfied in view of the same.
13. Insofar as factor (b) is concerned, the
inspection made by the Board, has to consider the
norms prescribed in that regard for opening new
Nursing and Paramedical Education Institute and it is
only upon being satisfied, that they are in existence,
that any recommendation, can be made by the Board.
Therefore, to satisfy itself, regarding this factor, all that
the State is to do, is to consider the recommendation of
the Board and in case, it is not satisfied with such
recommendation, to reject the application. It would,
therefore, be apparent that for the purpose of exercising
the powers under Section 28(5) of the Act of 2013,
there is no requirement or necessity for the State, to
carry out any independent inspection at all, which is the
reason why, the statutory provisions as contained in the
Act of 2013 therein, do not specifically provide for the
same. It is trite law, that words in the Statute, have to
be read in a context, in which they convey a meaning by
a plain reading of the same and doing so, would
21 901-J-1476-2021.odt
indicate, that no power of independent inspection has
been conferred upon the State while considering an
application under Section 25(5) of the Act of 2013.
14. Though Section 23(i) is being relied upon by
Mr. Naik, learned Senior Counsel appearing for the
respondent No.1 / State in support of the above
contention, however, Section 23(i) of the Act of 2013
merely empowers the Governing Council, to
recommend to the Government to conduct an enquiry in
respect of the matter concerning the proper conduct,
working and finance of the Institution under the Board.
This is a position, post the grant of permission under
Section 28(5) of the Act of 2013 and, therefore, cannot
be construed to grant a mandate to the State to conduct
inspection prior to grant of permission under Section
28(5) of the Act of 2013. Reliance is also placed on
Section 24(1)(a) and (w) of the Act of 2013. Section
24(1)(a) of the Act of 2013, empowers the Board to
advice the Government on the matters of policy relating
to Diploma level nursing and paramedical education in
general and the matters as indicated in sub clauses (i)
to (iv) therein, which do not relate, to any power to
22 901-J-1476-2021.odt
inspect in relation to Section 28(5) of the Act of 2013.
Clause (w) of Section 24(1) of the Act of 2013
empowers the Board to make regulations for granting
affiliation, accreditation, equivalence, eligibility to the
Institutions and reviewing or revoking them.
Admittedly, no such regulations have been framed and
even otherwise, they would relate to a situation, post
the action under Section 28(5) of the Act. Section 26(1)
of the Act of 2013, relied upon, by Mr. Naik, learned
Senior Counsel for the respondent No.1 relates to the
power of the Government after considering the advice,
if any, tendered by the Board, to issue to the Board such
directions as it may consider necessary in regard to all
or any other matters specified in Section 24 of the Act
of 2013. The language of Sections 24(a) to (z-l) of the
Act of 2013, does not indicate to us, that it would entail
any power to inspect in the nature as is being sought to
be addressed in relation to Section 28(5) of the Act of
2013 and, therefore, is of no assistance. Though Section
41 of the Act of 2013 has also been referred to, that is
the power of the State, to cause inspection of the
Institution after permission and affiliation, as is
23 901-J-1476-2021.odt
indicated from the use of the expression "Institutions
Affiliated and Accredited to the Board" as used in
Section 41(1) of the Act of 2013. Sub Section 2 of
Section 41 of the Act of 2013, therefore, would be in
relation to what is mandated by Section 41(1) of the
Act of 2013 and not otherwise.
15. It would, therefore, be apparent, that for the
purpose of grant of permission, as contemplated by
Section 28(5) of the Act of 2013, there is no power, in
the State, to conduct an independent inspection. If that
be so, then the amount of Rs. Five Lakhs being charged
for such inspection, cannot be related to any statutory
provision, in absence of which, the same, would be
clearly without any authority of law. This view is
supported by what has been held in Temple of
Hahnemann Homeopathic Medical College and Hospital
vs. Union of India (supra) in which while considering,
the action of the Central Government, in prohibiting
admission, consequent to inspection, it was held, that
since under the Act, the Central Government has not
reserved the power to such inspection, which duty had
being vested with the Central Council of Homeopathy,
24 901-J-1476-2021.odt
the Central Government could not start investigation by
appointing a team of Inspectors and the action,
therefore, was without any statutory authority.
16. The GRs dated 26.10.2017 (page No.114),
which imposes a fee of Rs.5,00,000/- for the inspection
prior to consideration of an application, as
recommended by the Board, by the State does not
trace, its power to any of the provisions, of the Act of
2013 or any rules or regulations made thereunder. All
that it refers to, is Section 64(3) of the Maharashtra
University Health Sciences, which merely contemplates,
that a management seeking permission to open a new
College or Institution of higher learning, shall apply in
prescribed form to the Registrar of the Universities
before the last day of October of a year preceding the
year from which the permission was sought. In our
considered opinion, Section 64(3) of the Act of 2013 or
for that Sub Section 4 of Section 64 of the said Act,
which only provides for a recommendation to be sent to
the State by the Management Council, cannot be
deemed to be empowered to the State to conduct an
independent inspection, for the purpose of considering
25 901-J-1476-2021.odt
the recommendation made by the Board and for that
purpose to charge an inspection fee. Apart from which it
cannot be held to be incorporated in the Act of 2013, so
as to empower the State under Section 28(5) to make
an inspection on levy fee fee for it.
17. Even if the fee, is considered to be a fee for
the security of the application by the Institution and the
consequent recommendation made by the Board, still
that being a statutory function of the State, in terms of
the language of Section 28(5) of the Act of 2013, in our
considered opinion, no fees ought to be chargeable for
performing such statutory function, which is the duty of
the State. It is trite position of law, that the State
cannot indulge into the activity of unjust enrichment, at
the cost of the public exchequer, while performing its
statutory function.
18. Even if we consider, that some fee is
permissible to be charged by the State for the purpose
of considering the application for opening of new
institute and permission to be granted consequent to
the recommendation, we do not see any reasonability in
the State charging a sum of Rs. Five Lakhs, for
26 901-J-1476-2021.odt
considering such application and recommendations,
moreso, when the entire action, of the Board, in
carrying out the inspection and sending a
recommendation, if any, is chargeable with a fee of
Rs.25,000/- only.
19. Though Mr. Naik, learned Senior counsel
appearing for the respondents places reliance upon V.
N.Public Health and Education Trust v. State of Kerala
(supra), the observations therein, are in the context of
issuance of essentiality certificate, which is to be
granted in terms of Section 10-A of the Medical Council
of India Act, which requires the previous permission of
the Central Government for establishing a medical
college or opening a new college of study or studying.
The requirement of the essentiality certificate, is
therefore, a statutory one, relatable to Section 10(1) of
the MCI Act. In the instant case, as indicated above, no
such statutory requirement, is disclosed from the
mandate of Section 28(5) of the Act of 2013.
20. Social Society, Morba vs. Principal Secretary,
Higher and Technical Education Department, Mumbai
(supra) relied upon by Mr. Amit Choube, learned
27 901-J-1476-2021.odt
counsel for the respondent lays down a proposition that
where there is an intention to start a new college on
permanent no grant-in-aid basis and without taking any
other assistance or aid from the Government, the
question of obtaining prior permission of the State
Government under Section 82(5) of the Maharashtra
Universities Act, would not arise at all and, therefore, is
not of any assistance to the matter in hand.
21. Ahmedabad Urban Development Authority
vs. Sharadkumar Jayantikumar Pasawalla (Supra),
relied by Mr. Amit Choube, learned counsel for the
petitioner holds, that whenever there is compulsory
exaction of money, there should be specific provision
for the same and there is no room for intendment,
which would be squarely applicable to the case in hand.
Commissioner of Income Tax, Udaipur, Rajasthan vs.
Mcdowell and Company (supra) relied upon by Mr.
Amit Choube, learned counsel for the petitioner also
indicates, that the power to impose a tax, duty, cess or
fee can be exercised in any of its manifestations, only
under any law authorizing levy and collection. The GR
dated 26.10.2017, in fact does exactly this by exacting
28 901-J-1476-2021.odt
money to the tune of Rs. Five Lakhs for the purpose of
the State considering the recommendation made by the
Board and for exercise of the powers under Section
28(5), of the Act of 2013, for which, as indicated above,
there is no legislative sanction or mandate, in the Act of
2013, for which reason, the GR dated 26.10.2017,
cannot be sustained. The GR dated 13.7.2018 (page
124-A), which merely is a consequences of the earlier
GR dated 26.10.2017 and refers to the same for the
purpose of the fees, also would not stand to that extent.
22. In view of the above discussion, we do not
find any legislative mandate in the State to conduct an
inspection and charge fees for the same, for the purpose
of considering the recommendation of the Board under
Section 28(5) of the Act of 2013 as rightly contended
by Mr. Amit Choube, learned counsel for the petitioner.
The GR dated 26.10.2017 and the consequent one
dated 13.07.2018, insofar as it relies upon GR
26.10.2017, regarding the fees to be charged for the
exercise of the statutory function under Section 28(5) of
the Act of 2013 is concerned, cannot be sustained and
are hereby declared as without any statutory mandate.
29 901-J-1476-2021.odt
The impugned communication dated 18.03.2021 (page
112), which demands an amount of Rs.5,00,000/- for
the purpose of carrying out an inspection by the State /
respondent No.1 is also quashed and set aside.
23. The result of the above, would be that the
recommendations made by the respondent No.2 Board,
vis-a-vis the petitioner Institution, ought to have been
considered by the State, without requiring any
inspection to be made and demanding any fees for the
said purpose. We, therefore, direct the respondent No.
1 to consider the recommendation made by the
respondent No. 2 Board, in respect of the petitioner
Institution, and decide it within a period of two weeks
from today.
24. Considering the fact, that on account of such
demand, the recommendation has not been considered,
however, the Institution has been granted permission to
admit students as reflected from the order of the Court
dated 25.03.2021 and thereafter to appear in the
examinations from time to time we deem it appropriate
that interest of the students requires to be protected. In
that view of the matter, we direct the respondent No. 2
30 901-J-1476-2021.odt
to grant permission for the students, admitted with the
petitioner - Institution to be transferred to the
respondent No.3 institution and the respondent No. 1 to
grant approval to such transfer, in case it is so required.
This is however, subject to the Board being satisfied,
that there is requisite intake capacity available with the
respondent No. 3, for accommodation of all the
students of the petitioner Institution in the course for
different years. The amount of Rs. Five Lakhs, deposited
by the petitioner on 31.03.2021 in terms of the order of
this Court in view of the statement by the learned
counsel for the petitioner, on instructions, that it should
be appropriated towards costs, we direct the Registry to
transfer the same to Raman Science Centre, Nagpur.
The Bank details of the said Raman Science Centre,
Nagpur are as under :-
Name : Raman Science Centre and Planetarium,
Nagpur.
Account No. : 0306101022235.
Name of Bank: CANARA BANK.
Branch Name & Address : Sitabuldi Branch, Nagpur.
IFSC Code : CNRB0000306.
MICR Code : 440015002".
31 901-J-1476-2021.odt
25. Rule is made absolute in the above terms.
Considering the circumstances there shall be no order
as to costs.
In view of what has been held and decided
in Writ Petition No. 1476/2021, since the issues
involved in Writ Petition No. 5477/2021, is the same,
what has been held in Writ Petition No. 1476/2021,
shall also governed Writ Petition No. 5477/2021. The
amount of Rs. Ten Lakhs, deposited by the petitioners
on 23.12.2021 in terms of the order of this Court in
view of the statement by the learned counsel for the
petitioners, on instructions, that it should be
appropriated towards costs, we direct the Registry to
transfer the same to Raman Science Centre, Nagpur.
The Bank details of the said Raman Science Centre,
Nagpur are as under :-
Name : Raman Science Centre and Planetarium,
Nagpur.
Account No. : 0306101022235.
Name of Bank: CANARA BANK.
Branch Name & Address : Sitabuldi Branch, Nagpur.
IFSC Code : CNRB0000306.
32 901-J-1476-2021.odt
MICR Code : 440015002".
CONTEMPT PETITION No.206/2020 IN WRIT
PETITION NO.2817/2020 (D)
CONTEMPT PETITION NO.35/2021 IN WRIT PETITION
NO.110/2020 (D)
CONTEMPT PETITION NO. 45/2021 IN WRIT
PETITION NO.2817/2020(D)
The contempt petitions are disposed off
accordingly above.
(ABHAY J. MANTRI, J.) (AVINASH G. GHAROTE, J.)
KOLHE/KHUNTE / MP Deshpande
Signed by: Mr. M.P. Deshpande
Designation: PA To Honourable Judge
Date: 06/05/2025 12:50:36
