Shri Bhagwan Mahavir Bahu Sevabhavi Sanstha Soyegaon Dist Aurangabad Thru President M B Jain Vs the State of Maharashtra and Others

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wp-6366 and 5531 of 2018

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(1)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 6366 OF 2018

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Adarsh Education Society..Petitioner

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Versus

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The State of Maharashtra and Ors...Respondents

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Mr. V. J. Dixit, Senior Advocate i/b Mr. A. N.
Nagargoje, Advocates for the Petitioner.
Mr. S. M. Ganchari, A.G.P. for Respondent Nos.1 to
3.

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Mr. K. M. Suryawanshi, Advocate for Respondent
No.4.

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Miss. P. S. Talekar, Advocate for Respondent No.5.

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WITH

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WRIT PETITION NO.5531 OF 2018

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Shri. Bhagwan Mahavir Bahu Sevabhavi
Sanstha, Through its President..Petitioner

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Versus

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The State of Maharashtra and Ors...Respondents

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Mr. N. B. Khandare i/b Mr. D. P. Palodkar,
Advocates for the Petitioner.

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Mr. S. M. Ganchari, A.G.P. for Respondent Nos.1 and
2.

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Mr. S. G. Chapalgaonkar, Advocate for Respondent
No.3.

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Mr. S. D. Tawashikar, Advocate for Respondent No.4.

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CORAM : S. V. GANGAPURWALA &
 A. M. DHAVALE, JJ.

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Closed for Orders on :25.04.2019.

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Order Pronounced on :07.06.2019.

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wp-6366 and 5531 of 2018

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(2)

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FINAL ORDER(Per S. V. Gangapurwala, J.) :-

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1.Thepetitionerinwritpetition
no.5531/2018 had applied for permission to open new
Arts, Commerce and Science College at village
Banoti, Taluka Soyegaon, District Aurangabad,
whereas the petitioner in writ petition
no.6366/2018 had submitted proposal for opening the
Senior College in the faculty of Arts and Science
at village Banoti, Tq. Soyegaon, Dist. Aurangabad.
The proposal of the petitioner alongwith respondent
Rajkuwar Bahuuddeshiya Sevabhavi Sanstha were
recommended by the University. The State
Government granted letter of intent to respondent-
Rajkuwar Bahuuddeshiya Sevabhavi Sanstha for
starting Arts, Commerce and Science College. The
proposal of the petitioner in writ petition
no.5531/2018 is turned down on the ground of
deficiencies and the proposal of the petitioner in
writ petition no.6366/2018 is not considered as
letter of intent is issued to respondent-
institution.

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2.Mr. Dixit, learned senior counsel for
petitioners submits that the respondent to whom the
letter of intent is issued does not possess NAAC
certificate. The same respondent had applied for
permission to open the senior college at Hiwara,
Tal. Badnapur, Dist. Jalna. The said proposal is
turned down by respondent no.1 on the ground of not
possessing NAAC certificate. However, for opening

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(3) wp-6366 and 5531 of 2018

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the senior college at Banoti, the said condition of
respondent-InstitutionnotpossessingNAAC
certificate is ignored. The action of respondent
no.1 granting letter of intent in favour of
respondent is illegal. The petitioner in writ
petition no.6366/2018 is a minority institution.
The petitioner-institution is registered in the
year 1991. The State Government also held that the
petitioner-institution is eligible, but only
because respondent no.1 has granted permission to
the respondent-Rajkuwar Bahuuddeshiya Sevabhavi
Sanstha to open the senior college at Banoti, the
proposal of the petitioner is not considered. The
respondent no.5 does not fulfill the requisite
norms and though there are several deficiencies
including deficiency of NAAC certificate, still
permission is granted in favour of respondent no.5.
The said action is politically motivated. The
office bearers of respondent no.5 belong to ruling
party and because of political consideration,
permission is granted in their favour and as the
office bearers of the petitioner belong to the
opposite party their proposals have been turned
down. The respondent no.5 also does not fulfill
other several conditions such as not having
sufficient infrastructure, land, hostel, N.A.
permission still due to political consideration and
pressure, letter of intent is issued in its favour.
According to the learned counsel, the provisions of
the Maharashtra Universities Act, have been

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(4) wp-6366 and 5531 of 2018

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flouted. The Government Resolution dated
15.09.2017 laying down the conditions for issuance
of letter of intent are also not followed. They
are followed more in breach. As per Clause 2.3 of
the Government Resolution dated 15.09.2017, the
recommendation cannot be made of the institutions
who are already running other colleges without NAAC
certificate.

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3.The learned A.G.P. submits that as per the
procedure incorporated in Section 109 of the
Maharashtra Public Universities Act, 2016, the
concerned University has submitted proposal for
grant of permission for Academic year 2018-2019.
Total four proposals for the place at Banoti,
Taluka Soyegaon for Academic year 2018-2019 were
received to the Government. Out of four proposals
received, three institutes were fulfilling the
norms as prescribed. Therefore, as per the
provisions of Section 109(3) of the Maharashtra
Public Universities Act, 2016 the Government in
exercise of discretionary powers has granted
permission to issue letter of intent vide
Government Resolution dated 28.02.2018 to Rajkuwar
Bahuuddeshiya Sevabhavi Sanstha.

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4.Mr. Awate, learned counsel for respondent-
institution submits that the proposal of the
respondent-Society was also recommended. There is
no infirmity in issuing letter of intent to the
respondent-Society. Considering the proposal for

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(5) wp-6366 and 5531 of 2018

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final approval of the respondent no.5-society, the
State Government informed two deficiencies to
respondent no.4-University that it does not possess
required area and leave and license agreement of
the required constructed area. The letter of
intent issued in favour of respondent no.5 is valid
till 31.01.2019. Chance was given to respondent
no.5-Society to remove the deficiencies and submit
compliance. The respondent has removed the
deficiencies by submitting the registered leave and
license agreement and 7/12 extract for showing the
land possessed by respondent no.5-society. The
compliance report is also forwarded by respondent
no.4-University. Now the matter is pending before
the Government of Maharashtra for final decision.
The learned counsel submits that the proposal of
respondent no.5-society for accreditation by NAAC
is pending. As per the Clause 2.3 (c) of the
Government Resolution dated 15.09.2017 the
proposals will have to be submitted with written
reasons in respect of non-accreditation by NAAC
separately to the Government and accordingly the
proposal of respondent no.5 was forwarded to the
Government by respondent no.4-University. No
illegality has been committed.

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5.Mr. Khandare, learned counsel adopts the
arguments of Mr. Dixit, learned senior counsel and
submits that though the State has come to the
conclusion that the petitioner is eligible and can
be considered for granting permission, however has

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(6) wp-6366 and 5531 of 2018

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not considered the proposal only on the ground that
letter of intent is granted to respondent no.5-
society. The same is illegal, arbitrary and does
not stand to reason.

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6.We have considered the submissions
canvassed by the learned counsel for the parties.

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7.Section 107 to 109 prescribe the complete
procedure for grant of permission to open new
senior college at particular place. The place
where the permission is to be granted for opening
new senior college should find place in the
perspective plan prepared by the University under
Section 107 of the Maharashtra Public Universities
Act, 2016. Every step has to be within the time
frame as stipulated in Section 109. The provision
also specifies the requirements to be complied with
by the institution. The Government Resolution
dated 15.09.2017 also supplements to section 109.

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8.If there are two or more institutions
whose proposal is complete in all respects and are
eligible to be considered, then naturally the
respondent should make a comparative study of all
eligible proposals and then take decision. In the
present case, it does not appear that, the
comparative study has been made by the Government
while granting letter of intent to the respondent-
Society and ignoring proposal of petitioner-society
though they are found eligible. We do not find any

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(7) wp-6366 and 5531 of 2018

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marking system evolved to consider the pros and
cons of the proposals.

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9.The Government has a discretion in
granting permission to a particular college if
there are two or more eligible proposals. However,
the discretion that exist with the Government is
not merely an ordinary discretion, but a discretion
that has to be exercised judiciously and not
capriciously. It would be found that, the
respondent-State has not come with the case that
though petitioners were eligible to be considered
for the grant of permission and their proposals
were also complete in all respects, still the
proposal of respondent was much better or that the
respondent had better facilities and experience.
The petitioner's proposal are turned down only on
the ground that they are eligible but letter of
intent is issued to respondent no.5. The proposals
of petitioners were also recommended within
stipulated time. In such case, the State
Government ought to have evaluated all the
proposals and ought to have granted permissions to
the more deserving institutions. The Government is
required to arrive at a subjective satisfaction
based on objective assessment of the proposals. The
Government ought to have evolved a particular
criteria for exercise of discretion. We had called
for the record of the State Government. From the
record it appears that, the case of respondent was
considered alongwith other proposals and says that

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(8) wp-6366 and 5531 of 2018

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on merits and as per Section 109(3)(g), the letter
of intent is issued to respondent-society.
However, in fact the respondent-State has not
justified as to how the proposal of the respondent
was more meritorious than that of the petitioner.

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10.This Court certainly would not sit in
Appeal over the decision of the Government. No
doubt State Government has a discretion, but as
observed, said discretion cannot be exercised in
arbitrary manner. More particularly, when after
issuance of letter of intent deficiencies were
pointed out by the State Government that is absence
of leave and license agreement and about the
constructed area, so also non-availability of the
NAAC certificate. The respondent-Society is
operating since a long time and its one proposal
for staring senior college at another place has
been held to be ineligible on the ground that
institution does not possess NAAC certificate,
however in the present case the same is accepted.
The State certainly has not come out with clear
explanation in this regard.

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11.The time frame under Section 109 is
mandatory. The same cannot be deviated. The
proposals were for the Academic year 2018-2019.
The letter of intent is already issued in favour of
respondent-institution and till January 2019 all
the deficiencies were required to be cleared and
Government was to take further decision whether to

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(9) wp-6366 and 5531 of 2018

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grant permission. It would be too late in the day
to entertain the petitions of petitioners, as it is
submitted that the respondent no.5 has cleared the
deficiencies. It is for the Government to consider
whether deficiencies are cleared and all the
requirements of Section 107to 109 of the
Universities Act are complied, such as leave and
license agreement, NAAC accreditation certificate
and constructed area. If after verifying the
documents it appear to the Government that
respondent no.5 has not cleared the deficiencies
then certainly permission would not be granted to
respondent no.5 and petitioner will be entitled to
apply afresh.

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12.With the aforesaid observation, writ
petitions are disposed of. No costs.

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(A. M. DHAVALE) (S. V. GANGAPURWALA) JUDGE JUDGE

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Devendra/April-19

Shri Bhagwan Mahavir Bahu Sevabhavi Sanstha Soyegaon Dist Aurangabad Thru President M B Jain v. the State of Maharashtra and Others

Case brief

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Shri Bhagwan Mahavir Bahu Sevabhavi Sanstha Soyegaon Dist Aurangabad Thru President M B Jain v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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