High Court · 2024
Legal Reasoning
43.WP-10391-2021.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 10391 OF 2021Ajintha Bahu Uddheshiya Seva BhaviSanstha, Talni, Tal. Sillod,Dist. Aurangabad.Through its Secretary,Ashok Himmatrao GarudAge : 48 years, Occu. Agri.R/o. Talni, Tq. Sillod, Dist. Aurangabad....PetitionerVersus1.The State of MaharashtraThrough its Secretary,Higher and Technical Education Department,Mantralaya, Mumbai.2.Director of Higher Education,Maharashtra State, Pune.3.Joint Director of Higher Education,Aurangabad Region, Aurangabad.4.Dr. Babasaheb Ambedkar Marathwada University,University Campus, Aurangabad.Through its Registrar.5.Hindustan Education Society,Andhari, National Kala vaVanijya Mahavidyalaya, Chinchwan, Tq. Sillod,Dist. AurangabadThrough its President,Abdul Sameer Abdul Sattar....Mr. V.P. Latange, Advocate for the Petitioner.Mr. D.R. Korde, AGP for Respondent Nos.1 to 3.[1] 43.WP-10391-2021.odtMr. Amol G. Kale h/f Mr. S.S. Tope, Advocate for Respondent No.4.Mr. S. R. Sapkal, Advocate for Respondent No.5.... CORAM : MANGESH S. PATIL AND SHAILESH P. BRAHME, JJ.. RESERVED ON : 1 JULY 2024 PRONOUNCED ON : 10 JULY 20241 JULY 2024JUDGMENT (Per Shailesh P. Brahme J.) : .Rule. Rule is made returnable forthwith with the consent of the parties.Head finally at the admission stage.2.Petitioner/educational institution is challenging letter of intent(hereinafter referred to as LOI for the sake of convenience and brevity) issuedby the respondent no.1 in favour of the respondent no.5 vide GovernmentResolution dated 15.04.2021 under Section 109 (3)(d) of theMaharashtra Public University Act, 2016 (hereinafter referred to as Act) andsimultaneously seeking a mandamus for issuing letter of intent to start seniorcollege at Village Amthana, Tq. Sillod, District Aurangabad. 3. The respondent no.4 had issued a proclamation for allotting newcolleges for the year 2019-2020. On 21.11.2018, petitioner hadsubmitted proposal in pursuance of the advertisement. The ScrutinyCommittee examined the proposal and then respondent/ University submittedreport recommending it. In view of the recommendation, the respondent no.1issued Government Resolution dated 31.01.2019 granting LOI. Petitionersubmitted compliance report on 25.02.2019 which was verified by thecompetent authorities. The petitioner was awaiting final approval.4.Granting of LOI to the petitioner was challenged by the respondent[2]
Legal Reasoning
43.WP-10391-2021.odtno.5 by preferring Writ Petition No.5005/2019. By way of ad interimorders, status quo was directed to be maintained. Then petitioner appeared inthe matter and filed civil application for vacating order of status quo. It wasinformed that 15.06.2019 was the last date for granting final permission.In view of certain deficiencies proposal was rejected. The petitioner waspursuing matter against rejection of proposal. The respondent no.1 issuedproclamation inviting proposal for 2021-2022, on 21.12.2020.5.Petitioner again submitted proposal on 31.12.2020 seeking a seniorcollege at village Amthana. The proclamation included location of VillageAmthana as well as Chinchwan. Respondent No.5 also submitted proposal forAmthana and Chinchwan. The Scrutiny Committee considered the proposalsand submitted report on 13.02.2021 recommending the proposal of thepetitioner. Despite positive recommendation, the proposal of the petitionerwas rejected vide letter dated 18.03.2021. At the same time, the proposalof the respondent no.5 was also not recommended by the respondentno.4/University. The respondent no.1 issued G.R. dated 18.05.2021granting LOI to the respondent no.5’s college at Chinchwan. Being aggrieved,the petitioner has preferred this writ petition.6.Learned Counsel for the petitioner submits that without assigning anyreasons much less exceptional ones LOI was granted to the respondent no.5which is against Section 109 (3)(d) of the Act. The action of the respondentin rejecting the proposal of the petitioner is arbitrary because on the earlieroccasion, LOI was granted to the petitioner and on two occasions there wasrecommendation of the Scrutiny Committee in favour of the petitioner.Learned Counsel would further submit that reasons assigned for rejectingproposal are totally unsustainable and perverse. He would further submit that[3] 43.WP-10391-2021.odtgrant of LOI in favour of the respondent no.5 is discriminatory and actuatedby undue influence of a sitting Minister. He would further submit that thedistance between Village Chinchwan and Amthana is only 4 Km. which isagainst norms laid down by Mr. Narendra Jadhav Committee.7.Learned AGP Mr. D.R. Korde for the respondent nos. 1 to 3 wouldsupport impugned action by referring to affidavit-in-reply. He submits thatfor the location Amthana, Tq. Sillod, two proposals were received and bothwere rejected. Petitioner’s proposal was not complying with the norms laiddown by the Government Resolution dated 15.09.2017. As against that theproposal of respondent no.5 was found to be compatible. It is furthersubmitted that by invoking powers under Section 109 (3)(d), LOI wasgranted to the respondent no.5 for the location at Chinchwan. He would,therefore, pray to dismiss the petition. 8.Learned Counsel Mr. S.S. Tope appearing for respondentno.4/University opposes the petition. 9.Learned Counsel Mr. S.R. Sapkal appearing for respondent no.5 wouldvehemently oppose the petition. He would submit that respondent no.1 hasrightly granted LOI to his client. The Scrutiny Committee recommended theproposal of the respondent no.5. There was need of a senior college atChinchwan, considering the location and surrounding villages. He wouldsubmit that recommendations of Mr. Narendra Jadhav Committee are notbinding. It is further submitted that after receiving LOI, compliance report wassubmitted and a final permission is also granted. He would therefore pray todismiss the petition. 10.We have considered rival submission of the parties. The proclamation[4] 43.WP-10391-2021.odtissued by the respondent no.4/university on 21.12.2020 indicates twolocations namely Village Amthana and Chinchwan in Taulka Sillod. It furtherreveals that for Amthana, petitioner as well as respondent no. 5 applied andboth the proposals were rejected. The respondent no.5 appears to haveapplied for location Chinchwan also. The Scrutiny Committee recommendedrespondent no.5 for LOI, however there was negative recommendation by theUniversity. The respondent no.1 issued LOI to the respondent no.5 byinvoking special discretion provided by proviso to Section 109(3)(d) of theAct. 11.For location Chinchwan, LOI is granted to the respondent no.5. Therespondent nos. 1 to 3 though filed affidavit-in-reply, have not placed onrecord exceptional circumstances or the reasons for granting LOI in question,albeit negative recommendation by the University. No exceptionalcircumstances/reasons are pleaded in the affidavit-in-reply. Therespondent no.5 has also not placed on record any reason as to why despitenegative recommendation, LOI was issued to it. It is not made clear as towhether deficiencies recorded in the proposal was ever removed by therespondent no.5. 12.It is useful to refer to law laid down by the coordinate bench in thematter of Gurukul Bahuuddeshiya Sevabhavi Pratishthan Vs. State ofMaharashtra and Others, 2022(2) Mh.LJ 419. Following are the relevantparagraphs : 13.The Government can exercise the powers in exceptional circumstances and forthe reasons to be recorded in writing while approving the proposal for grant ofLetter of Intent to the college or the institution of higher learning though notrecommended by the University. 14.The general rule appearing in Section 109(3)(d) is that out of applications[5] 43.WP-10391-2021.odtrecommended by the University the State Government may grant Letter of Intent.Proviso to Clause (d) of Sub-Section 3 of Section 109 carves out an exception viz. inexceptional cases the Government may grant Letter of Intent though notrecommended by the University for the reasons to be recorded in writing. Accordingto Webster's International Dictionary of English Language "Exceptional which is itselfan exception and so is out of ordinary, that is, exceptional, to which exception maybe taken." According to Murray's New English Dictionary Exceptional means "of thenature of forming exception; out of the ordinary course, unusual, special." TheGovernment has to arrive at the conclusion that exceptional circumstances exist tooverrule the negative recommendations of the University. The University whilenegativing the proposals of the respondents amongst other objections hadobserved that students of the region would not suffer. The Government whileconsidering such proposal ought to have arrived at subjective satisfaction based onobjective assessment that exceptional circumstances still exist for establishing newcollege on the said location 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 be recorded inwriting that would outweigh the negative recommendations of the University. Therule requiring recording of reasons must be observed in letter and spirit. Merepretence of compliance by vague and general words is not enough. Reasons arethe lifeline of any order. The order should reflect the application of mind of theauthority while passing the order and it is the reasons which would depict the same.The obligation to record reasons operates as a deterrent against the possiblearbitrary action. Reasons are link between the materials on which certainconclusions are based and the actual conclusion. Reasons discloses how the mind isapplied to the subject matter for a decision. The reason should reveal a rationalnexus between the facts considered and the conclusions reached. Only in this waycan opinions or decisions recorded be shown to be manifestly just and reasonable.In the present case the reasons recorded should demonstrate carving out anexceptional case to be considered though negatively recommended by theUniversity. 13.It is the discretion of the State Government to grant LOI if the[6] 43.WP-10391-2021.odtinstitutions are found to be fit and proper as per Section 109(3)(d). Inexceptional cases, for the reasons to be recored in writing the proposal havingnegative recommendation by the University, can also be approved by the StateGovernment. In the present case, we find no objective scrutiny and recordingof exceptional reasons for granting LOI to the respondent no.5. Merestatements have been made in affidavit-in-reply of the respondent no.1 to3, which are not sufficient. Those are mere pretence of compliance by vagueand general words. We find that there is non-application of mind.Considering ratio laid down in the matter of Gurukul BahuuddeshiyaSevabhavi Pratishthan (supra), we have no hesitation to hold that LOI grantedto respondent no.5 is unsustainable.14.Though the petitioner is seeking mandamus for issuing LOI, respondentno.4/University has not recommended its proposal. There is nothing onrecord to indicate that objective scrutiny has been made by therespondent/University. Petitioner has also not placed on record any specificreasons assigned by the University for not recommending it. We are shownpage no.494 of the compilation to indicate the reasons for rejecting theproposal. But it pertains to some other institution. Learned Counsel has evenattempted to impress upon us that the reasons for rejecting proposal ofpetitioner, are unsustainable. We have not come across specific reasons forrejecting the proposal of the petitioner. We are of the considered view that itwould be within discretion of the respondent no.1 to consider proposal. Weleave it to respondents to reconsider the proposal, instead of expressing anyopinion, on its merits. We, therefore pass following order :ORDERI.The letter of intent issued to the respondent no.5 vide Government[7]
Decision
43.WP-10391-2021.odtResolution dated 17.05.2021 and consequential proceeding/order dated15.04.2021 are quashed and set aside.II.The respondent no.1 shall be at liberty to reconsider the proposal ofthe petitioner if permissible in law on its own merits and communicate thedecision to the petitioner.III.The writ petition is disposed of. IV.Rule is made absolute in the above terms. SHAILESH P. BRAHME MANGESH S. PATIL JUDGE JUDGENajeeb...[8]