High Court
Legal Reasoning
992.WP.8734.23.odtvesting with the State Government in light of Section 109 (3)(d) forgranting LOI and final permission for starting a new college or a newcourse. It is abundantly clear that even where the University hasforwarded a negative proposal in respect of some management, still theState Government has the power and discretion to grant permission.Obviously, it cannot be indiscriminate or arbitrary, rather will have to bebased on some objective material, demonstrating exercise of thediscretion for some special reasons. Suffice for the purpose to refer to theobservations of the division bench of this Court in the matter of GurukulBahuuddeshiya Sevabhavi Pratishthan Vs The State of Maharashtra andOrs.; Writ Petition No.9155/2020 and connected writ petitions(Aurangabad bench) dated 31.08.2021. Relevant paragraphs read asunder : “14. The general rule appearing in section 109(3)(d) is that out ofapplications recommended by the University the StateGovernment may grant Letter of Intent. Proviso to Clause (d) ofsub-section (3) of section 109 carves out an exception viz. inexceptional cases the Government may grant Letter of Intentthough not recommended by the University for the reasons to berecorded in writing. According to Webster's InternationalDictionary of English Language “Exceptional which is itself anexception and so is out of ordinary, that is, exceptional, to whichexception may be taken.” According to Murray's New EnglishDictionary Exceptional means “of the nature of formingexception; out of the ordinary course, unusual, special.” TheGovernment has to arrive at the conclusion that exceptionalcircumstances exist to overrule the negative recommendations ofthe University. The University while negativing the proposals ofthe respondents amongst other objections had observed thatstudents of the region would not suffer. The Government whileconsidering such proposal ought to have arrived at subjectivesatisfaction based on objective assessment that exceptional5/10 992.WP.8734.23.odtcircumstances still exist for establishing new college on the saidlocation for the welfare of the students. The same ought to besupported by relevant statistics.15. For meeting out an exceptional case strong reasons have to berecorded in writing that would outweigh the negativerecommendations of the University. The rule requiring recordingof reasons must be observed in letter and spirit. Mere pretence ofcompliance by vague and general words is not enough. Reasonsare the lifeline of any order. The order should reflect theapplication of mind of the authority while passing the order and itis the reasons which would depict the same. The obligation torecord reasons operates as a deterrent against the possiblearbitrary action. Reasons are link between the materials on whichcertain conclusions are based and the actual conclusion. Reasonsdiscloses how the mind is applied to the subject matter for adecision. The reason should reveal a rational nexus between thefacts considered and the conclusions reached. Only in this waycan opinions or decisions recorded be shown to be manifestly justand reasonable. In the present case the reasons recorded shoulddemonstrate carving out an exceptional case to be consideredthough negatively recommended by the University.16. In the present case, we do not find that the Government hasconsidered each and every proposal independently threadbare asan exceptional case. If the Government considers the proposalsnegatively recommended by the University without adhering tothe proviso to Clause (d) of sub-section (3) of section 109 of theAct, 2016, then the proviso would loose its efficacy as anexception to general rule and would be rendered superfluous anda dead letter. In the present matter, we do not find the saidexercise carried out meticulously by the Government. At leastperusal of the file produced by the learned In-charge GovernmentPleader does not depict so. It has been observed by the Hon'bleApex Court in case of Gurdial Singh Fijji v. State of Punjabreported in (1979) 2 SCC 368 that rubber-stamp reason is notenough. In another Judgment of the Hon'ble Apex Court in caseof S.N. Mukherjee v. Union of India reported in (1990) 4 SCC 594it has been observed that recording of reasons also operates as avalid restraint on any possible arbitrary exercise of judicial andquasi-judicial or even administrative power.17. The State was exercising it's statutory power. The proviso to Clause(d) of sub-section (3) of section 109 of the Act, 2016 mandatesthe State Government to exercise its powers in exceptional caseand for the reasons to be recorded in writing. An order passedexercising its powers under proviso to Clause (d) of sub-section(3) of section 109 of the Act, 2016 without recording appropriate6/10 992.WP.8734.23.odtand valid reasons would tantamount to arbitrary exercise ofpowers. Arbitrariness is antithesis to the rule of law, justice,equity, fair-play and good conscience. An arbitrary action cannotbe sustained. Arbitrariness has no role in society governed by ruleof law.”8.Bearing in mind, such broad principles let us approach thecontroversy. Admittedly, in order to streamline the proposals for startingnew colleges in light of provisions of Section 109 of the Universities Act,the State Government had issued certain guidelines vide GovernmentResolution dated 15.09.2017. Pertinently, it contemplates and providesfor applications to be made in accordance with the Annexure ‘A’ form. Thescrutiny-sheet is expected to be in Annexure ‘B’, other checklist isprovided in Annexure ‘C’, Annexure ‘D’ contains the particulars regardingarea for the infrastructure qua the office, lab etc. Admittedly, Annexure ‘A’contains column Nos. 5 and 10 expressly requiring the proposed instituteto mention giving all the particulars, including name in respect of thecolleges which are already running in the periphery of 15 km from theplace where the new college is to be established. Irrespective of the factwhether the guidelines laid down by Dr. Narendra Jadhav committee aremerely directory or mandatory, this Government Resolution dated15.09.2017 contemplates, as one of the parameters to be consideredwhile granting or refusing LOI with reference to the distance between theexisting college and the new college sought to be established.9.One need not delve as far as the sanctity of the distancebetween the two institutes or colleges running the same course. Though7/10 992.WP.8734.23.odtsome competition is inevitable, permitting two institutes to run samecourses in proximity could lead to unhealthy competition, thereby,adversely affecting the quality of education. Even without going into anyother aspect, if this Government Resolution dated 15.09.2017contemplates the application by the Management for starting a newcollege to precisely state in column No.10, whether any other institute isrunning the same courses within the periphery of 15 km, one can safelyproceed 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 hadthought it fit and had resolved to incorporate the distance criteria. 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 notbe addressed in this petition, more so when there is no dispute about thefact that the distance between the petitioner's college and that ofrespondent No.3 to which final permission has been accorded is around 5km and both these colleges situate in rural area.11.In light of above observations if one examines the applicationsubmitted by respondent No.3 about which there was a positiverecommendation by respondent No.2 – University, pursuant to ourdirections, the learned advocate for respondent No.2 - University hasplaced on record a photocopy of the entire compilation which wasforwarded to the State Government by the University for grant of LOI.8/10 992.WP.8734.23.odtThe application submitted by respondent No.3 in Annexure ‘A’ clearlydemonstrates that in column No.5 and column No.10 no information wasfurnished by it regarding the existing colleges running Arts and Sciencefaculties within a radius of 15 km. Column No.5 has been left blank andin column No.10 the information furnished reads ‘Nil’. It is quite clearthat respondent No.3 in its affidavit-in-reply and also respondent No.1 -State and respondent No.2 – University, in their respective replies havenot expressly denied the fact that the petitioner’s Arts and Sciencecollege, which has been running for last more than two decades situatewithin a distance of 5 km from the place where respondent No.3 has beengranted permission to set up a new Arts and Science college. Conspicuoussilence in the affidavit-in-reply filed by respondent No.1 - State about thecircumstances which had weighed with it while granting LOI and finalpermission to respondent No.3 makes it abundantly clear that it has,merely for the reasons best known to it, has chosen to ignore the fact thatthe purpose of providing column Nos.5 and 10 in Annexure ‘A’ whilesubmitting the application by the prospective colleges. It has chosen toignore that respondent No.3 had not provided the particulars but ratherhad suppressed it. Such a conduct of respondent No.2 - University andthat of the State Government in ignoring this distance criteria whichcould have ramifications, having the potential of giving rise to unhealthycompetition leading to adversely affecting the quality of education,cannot be countenanced.9/10
Arguments
992.WP.8734.23.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.8734 OF 2023Shri Gajanan Shikshan Prasarak Mandal’s Toshniwal Arts, Commerce& Science College, Sengaon, Dist. Hingoli through its President Shri Brijgopal s/o Ramnarayan Toshniwal…PETITIONERVERSUS 1.The State of Maharashtrathrough its Secretary,Higher and Technical Education Department, Mantralaya, Mumbai - 322.Swami Ramanand Tirth MarathwadaUniversity, through its Registrar,Nanded, Tq. & Dist. Nanded3.Vidyashakti Shikshan PrasarakMandal’s Late Shankarrao ChilgarB.A. & B.Sc. College, Risod Road,Tq. Sengaon, Dist. Hingolithrough it’s PresidentBhaskar s/o Ramrao Bengal …RESPONDENTS ...Advocate for petitioner : Mr. P.R. Katneshwarkar h/f. Mr. P.N. KalaniA.G.P. for respondent No.1 : Mrs. Kalpalata Patil BharaswadkarAdvocate for respondent No.2 : Mr. S.R. BagalAdvocate for respondent No.3 : Mr. V.D. Hon, Senior advocate i/b. Mr. A.V. Hon… CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.Reserved on: 18.07.2024Pronounced on : 29.07.20241/10 992.WP.8734.23.odtORDER ( PER : MANGESH S. PATIL, J.) :Heard. Rule. Rule is made returnable fourthwith. At the jointrequest of the parties the matter is heard finally at the stage of admission.2.The petitioner - Institute which runs an Arts, Commerce andScience College is questioning the letter of intent (LOI) granted by theState Government to respondent No.3 for running a new Arts and ScienceCollege, in the light of provisions of Section 109 of the MaharashtraPublic Universities Act, 2016 (hearing after the Universities Act).3.The learned advocate Mr. Katneshwarkar for the petitionerwould submit that petitioner has been running Arts, Commerce andScience College since last more than 20 years at Sengaon, TalukaSengaon, district Hingoli. Pursuant to the perspective plan of respondentNo.2 - University and the annual Plan, it invited applications for startingnew colleges for the academic year 2023-24 at location Kolsa, TalukaSengaon. Respondent No.3 - Management put up a proposal for starting anew Arts and Science College. However, the location notified is barelywithin a distance of 5 km from the location of petitioner’s college. Inorder to curb unhealthy competition, thereby, affecting the quality of theeducation, a committee appointed by the State Government headed byDr. Narendra Jadhav had submitted recommendations which are beingfollowed by the State Government. The recommendations required atleast 20 km distance between the two colleges in the rural areas. Whenthe State Government has accepted this recommendations, decision of2/10 992.WP.8734.23.odtrespondent No.2 - University making a favourable proposal of respondentNo.3 and decision of the Government to grant LOI and final permission iscontrary to the recommendations of Dr. Narendra Jadhav’s committee.Once having accepted the recommendations, the State Government couldnot have retracted. No special reasons are assigned for ignoring suchrecommendation and the order directing LOI and final permission bequashed and set aside. 4.The learned advocate for respondent No.2 - University byreferring to the affidavit-in-reply filed by its Registrar would submit thatthe recommendations of Dr. Narendra Jadhav committee are merelydirectory and not mandatory. The proposal of respondent No.3 waspursuant to a five year perspective plan prepared under section 107 forthe years 2019–2024. For the first time the State Government has nowdirected perspective plan for the next five years period of 2024–2029 tobe prepared taking into consideration the recommendations ofDr. Narendra Jadhav committee vide its communication dated16.01.2023. He would, therefore, submit that since the LOI and finalpermission issued to respondent No.3 was pertaining to the previousperspective plan, when there were no such directions before preparing aperspective plan, petitioner cannot be allowed to question those byreferring to the guidelines in the report of Dr. Narendra Jadhavcommittee. 5.The Learned AGP referring to the affidavit-in-reply filed by3/10 992.WP.8734.23.odtthe Joint Director, Higher Education, Nanded Region, supports thedecision of the State Government in granting LOI to respondent No.3. Hesubmits that all the guidelines were duly followed and only after ensuringthat the proposal of respondent No.3 was compliant with all the requisitethat LOI and permission was issued. He would submit that though therecommendations of Dr. Narendra Jadhav committee have been accepted,those have been accepted in principle but were not expressly included inthe Government Resolution dated 15.09.2017. It is only after a positiverecommendation of respondent No.2 - University that LOI was issued asalso final permission to respondent No.3, by the order dated 15.06.2023.6.Mr. Hon, learned Senior advocate for respondent No.3 wouldoppose the petition by referring to the affidavit-in-reply. He would submitthat all the necessary compliances were made pursuant to the proposalapproved by respondent No.2 - University and LOI was issued as also thefinal permission. He would also submit that the Government has adiscretion in the light of provision of Section 109 (3)(d) to grant LOI. Thediscretion has been exercised judiciously by examining all aspects. Therecommendations of Dr. Narendra Jadhav committee are not mandatory.Once the permission has been granted to respondent No.3 by the State, itcannot be questioned by petitioner. It is doing so to obviate healthycompetition and the petition be rejected.7.We have carefully considered the rival submissions andperused the papers. There cannot be two opinion regarding the discretion4/10
Decision
992.WP.8734.23.odt12.In an appropriate case, when the discretion vest with theState Government, it may for a well reasoned discretion ignore thedistance between the existing institute and the proposed one. However,unless there is something to demonstrate and justify such decision of theState Government, like in the present matter, no such leeway can bepermitted and tolerated. 13.In the normal course, for the aforementioned reasons, wecould have straightway quashed and set aside the LOI and finalpermission under challenge. However, one cannot lose sight of the factthat the desired location ‘Kolsa’ must have been a part of the annual planwhich in turn must be commensurate with the perspective plan publishedaround 4 to 5 years back. The petitioner had never objected to it.Therefore, it would be appropriate to leave open to respondent No.1 -State to consider the aforementioned aspects if it intends to reconsiderthe proposal of the respondent No.3. 14.The writ petition is partly allowed. The impugned LOI dated15.07.2022 and final permission dated 15.06.2023 is quashed and setaside. It would be open for respondent No.1 to reconsider the proposal ofrespondent No.3, subject to the observations made herein above.[ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEhabeeb10/10