1014.WP.4282.23 +.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.4282 OF 2023

Trimurti Pawan Pratishthan,

A Registered Educational Trust,

having its Office at Trimurtinagar,

Newasaphata, Taluka Newasa,

District Ahmednagar,

through Secretary,

Mr. Manish Annasaheb Ghadgepatil, … PETITIONER

VERSUS

1.The State of Maharashtra

through its Secretary,

Higher & Technical Educational

Department, Mantralaya,

Mumbai – 32

2.The Director of Higher & Technical

Education, through its Director,

Central Building, Pune -1.

3.Savitribai Phule Pune University

of Pune, through its Registrar,

Ganesh Khind, Pune-411007

4.Sau. Kausalyabai Raghunath Agale

Bahuddeshiya Pratishthan, Mukindpur,

Tal. Newasa Dist. Ahmednagar

5.Bar Council of India

through its Secretary,

21, Rouse Avenue Institutional

Area, Near Balbhavan

New Delhi - 110002 … RESPONDENTS

WITH

WRIT PETITION NO.6991 OF 2023

Dr. Mukundrao Keshavrao Pawar

Shaikshanik Pratishthan, Khadke

Newasa Phata,

Tq. Newasa, Dist. Ahmednagar

through its Trustee/Authorized person namely;

Sahebrao Haribhau Ghadge Patil, … PETITIONER

1/24 2024:BHC-AUG:13958-DB

1014.WP.4282.23 +.odt

VERSUS

1.The State of Maharashtra

through its Secretary,

Higher and Technical Education

Department, Mantralaya,

Mumbai – 32

2.Director of Higher and Technical

Education, Maharashtra State,

Pune-01.

3.Savitribai Phule Pune University Pune,

Ganeshkhind, Pune-07

through its Registrar

4.Sau. Kausalyabai Raghunath Agale

Bahuddeshiya Pratishthan,

Gut No.86/3/B and Gat No.86/3/K

Mukindpur, Tq. Newasa

District : Ahmednagar,

through its Secretary/President … RESPONDENTS

...

Advocate for petitioner in WP/6991/2023: Mr. Ankush N. Nagargoje

Advocate for petitioner in WP/4282/2023: Mr. Anand P. Bhandari

AGP for respondent/State in both WP:Mrs. Kalpalata Patil- Bharaswadkar

Advocate for respondent No.3 in both WP: Mr. V.P. Golewar h/f

Mr. A.R. Joshi

Advocate for Resp. No.4 in both WP: Mr. V.D. Sapkal, Senior advocate i/b.

Mr. S.R. Sapkal

Advocate for respondent No.5 in WP/4282/2023 : Mr. Sachin Deshmukh

…

CORAM : MANGESH S. PATIL &

SHAILESH P. BRAHME, JJ.

Reserved on : 04.07.2024

Pronounced on : 12.07.2024

JUDGMENT ( PER : MANGESH S. PATIL, J.) :

In these separate writ petitions, may be for different reasons,

same relief is being claimed, putting up challenge to the Government

2/24

1014.WP.4282.23 +.odt

Resolution dated 15.06.2023 whereby, the respondent No.1 - State

Government, on a recommendation of the respondent No.3 – University

granted permission to the respondent No.4 to open a new law college in

the light of provision of Section 109 of the Maharashtra Public

Universities Act, 2016 (the Universities Act). The petitioner from writ

petition No.4282/2023 in whose favour also there was a favourable

recommendation of the respondent No.3 – University has been praying

additionally a writ of mandamus directing the respondent Nos.1 to 3 to

issue letter of intent in its favour, and then the final permission.

2. In order to avoid repetition, with the consent of both the

sides, both these matters are heard finally at the stage of admission and

are being taken up together for decision.

3. Rule. It is made returnable forthwith.

Factual Matrix :

i.The respondent No.3 - University by the Government Resolution

dated 15.09.2017 prepared a perspective plan under Section 107 of

the Universities Act for a period of five years and published an

annual plan for academic year 2023-24, for specific location ‘Khadke

Newasa Phata’, by issuing a public notification dated 10.01.2023 for

starting a new law college.

ii.Pursuant to such notification, both these institutes that is the

petitioner in writ petition No.4282/2023 and the respondent No.4

submitted their applications. The respondent No.3 – University

3/24

1014.WP.4282.23 +.odt

forwarded positive recommendations under Section 109 (1). By the

impugned Government Resolution the State Government granted

permission to the respondent No.4. Hence, aggrieved by the

decision, the petitioner from writ petition No.4282/2023 - Institute

is challenging the permission granted to the respondent No.4 on

various counts.

iii.It is the stand of this petitioner that the application submitted by the

respondent No.4 was not compatible with the location that was

notified and ignoring that the permission has been granted. The

application of the respondent No.4 was non-compliant with the

eligibility norms notified in the annual plan. The University had

forwarded a positive proposal of both these institutes. The State

Government granted permission to the respondent No.4 without

even indulging in considering the comparative merits of both these

proposals.

iv.In Writ Petition No.6991/2023 the petitioner is challenging the

impugned permission granted to respondent No.4 on the ground

that the location notified by the University was not compatible with

the perspective plan. It is his stand that location ‘Khadke Newasa

Phata’ rather the entire Newasa Taluka was not indicated to have

any law college during the entire five year tenure of the perspective

plan and still the permission was granted which is not permissible

under Section 107 read with Section 109 of the Act.

4/24

1014.WP.4282.23 +.odt

Submissions :

4. Learned advocate Mr. Bhandari for the petitioner in Writ

Petition No.4282/2023 would take us through the papers and particularly

the notification of the annual plan inviting the applications from the

prospective colleges. He would point out that the location notified was

‘Khadke Newasa Phata’, whereas, the application of the respondent No.4

though mentioned the same location, by practising fraud and

mischievously a land from revenue village Mukindpur was offered as a

place for the proposed college. Even the requisites regarding the extent

of the area and the built up area was lacking. When the property was

expected to be either owned or taken on lease, the respondent No.4 had

offered land which was taken on leave and license basis. All these facts

were ignored by the University while recommending the proposal and by

the State Government while granting permission. If the land that was

offered by the respondent No.4 was not compatible with the location that

was notified, it would go to the root of the permission granted to it and

the permission is liable to be quashed on that count.

5. Mr. Bhandari would further submit that when there were two

positive recommendations, it was imperative for the State Government to

have considered them by undertaking a comparative study on their

merits.

6. Mr. Nagargoje for the petitioner in writ petition

No.6991/2023 would take us through the perspective plan published on

5/24

1014.WP.4282.23 +.odt

in Government Resolution dated 15.09.2017 and would demonstrate that

as far as Newasa taluka is concerned, it did not contain any intention of

the University to grant permission to start a law college throughout these

five years. The annual plan that was published/notified was not

compatible with such perspective plan or rather was inconsistent

therewith. The whole purpose of publishing a perspective plan under

Section 107 would stand defeated if the action of the University and the

State to publish an annual plan for different location and for starting a

new law college which was not there in the perspective plan and still to

make recommendation and grant permission would be violative of

section 107 and Section 109.

7. To our query as to the locus standi of the petitioner in his

petition, Mr. Nagargoje would submit that he is merely bringing to the

notice of this Court the rampant illegalities committed in granting

permission. He would further submit that even the timeline prescribed

by Section 109 for inviting application was not followed and in a hasty

manner, applications were invited depriving the prospective applicants an

opportunity of participation.

8. It is necessary to note that such stands of the petitioners are

incongruent, the petitioners cannot be allowed to blow hot and cold at

the same time, challenging the permission on the ground that the

location of the annual plan is not compatible with the perspective plan

and still seeking to take a stand that the prospective applicants could not

6/24

1014.WP.4282.23 +.odt

apply because of the short time that was available for making the

applications, Mr. Nagargoje could not give any satisfactory explanation.

We, therefore, called upon him to elect the stand to be taken when the

matter was being decided finally.

9. It is trite that there could be incompatible and inconsistent

pleadings. However, when it comes to soliciting and granting a relief, a

person cannot be allowed to persist with such grossly incompatible

stands. If the petitioner in Mr. Nagargoje’s petition has been questioning

the permission granted to the respondent No.4 on the ground that the

location in the annual plan is not compatible with the perspective plan,

one cannot allow him to persist with the stand that due to absence of

sufficient opportunity, the prospective applicants could not get the

opportunity to move applications pursuant to the notification issued by

the respondent No.3 – University. Mr. Nagargoje thereafter restricted his

arguments only to the extent of putting up the former plea.

10. The learned AGP pursuant to the stand being taken in the

affidavit-in-reply filed by the officer of the rank of Joint Director of

Higher Education admitted that both the colleges were recommended by

the University and permission was granted to respondent No.4 for the

location ‘Khadke Newasa Phata’. The land offered by it was barely 2 to 3

kms from the notified location, even though it is coming under

Mukindpur Grampanchayat. Learned AGP would also submit that the

land that was offered by respondent No.4 was 3 acres on rent basis and

7/24

1014.WP.4282.23 +.odt

that the non-agricultural use was merely to the extent of 10 gunthas

therefrom.

11. The learned AGP would submit that as indicated in Clause

(d) of Sub-Section 3 of Section 109, the State Government has absolute

discretion in the matter of granting permissions. It can take into account

relevant factors and examine suitability of a management seeking Letter

of Intent and consider state level priority. It is in view of such power

vested in the State Government under the Universities Act, the discretion

has been exercised in granting permission to respondent No.4 and there

is no illegality.

12. Learned Senior advocate Mr. Sapkal for respondent No.4

would at the outset castigate the petitioners with the allegations that they

are hellbent to oppose the permission granted to respondent No.4 with

an ulterior motive. He would vehemently argue that the petitioner in

writ petition No.6991/2023 is holding the torch for the other petitioner

institute. He was its secretary, albeit, stated to have subsequently

resigned. He would also take us through various representations made

on behalf of the institute which has filed writ petition No.4282/2023. In

spite of such resignation he was still signing such correspondence in the

capacity of its secretary, not in a case or two but consistently over a

period of reasonable time, till the recent past. These circumstances are

indicative of fact that initially the institute preferred the first petition.

Since it could not have questioned the permission on the ground that the

8/24

1014.WP.4282.23 +.odt

annual plan was not compatible with the perspective plan, having ones

participated in the process, that the subsequent petition has been

preferred raising such a ground. This very conduct is clearly

demonstrative of the fact that every attempt has been made by the

petitioners to practise fraud upon this Court and he would strenuously

pray that an action be initiated against the petitioner from Writ Petition

No.6991/2023 under Section 340 of the Code of Criminal Procedure.

13. So far as the merits are concerned Mr. Sapkal would take us

through the perspective as well as annual plan to demonstrate that the

place notified ‘Khadke Newasa Phata’ does not exclude the location

falling in Mukindpur revenue Tahsil, Khadke is a different revenue

village, Newasa Phata is merely a location having a popular name and is

not an independent village. When the land offered by respondent No.4

was barely at a distance of 2 to 3 kms, no fault can be found with its

proposal/application and consequently, the permission granted to it. He

would submit that all other norms were duly complied with and the

proposal of respondent No.4 was meritorious.

14. Mr. Sapkal would submit that subsequent affiliation granted

by respondent No.3 – University has not been challenged, for want of

which the petitions would not be sustainable.

15. Mr. Sapkal would then tender across the bar order dated

01.02.2024 passed by the Sub-Divisional Officer, Ahmednagar. Thereby

granting temporary permission for converting 21400.00 sq.mtrs of land

9/24

1014.WP.4282.23 +.odt

from Gut No.86/3/B of village Mukindpur Tal. Newasa for non-

agricultural use for a period of one year. He would submit that even this

order would overcome the objection being raised by the petitioners

regarding the extent of the land and the condition regarding permission

for non-agricultural use.

16. Mr. Bhandari would counter this latter argument by

submitting that the document is being produced across the bar and

cannot be allowed to be taken into consideration. He would submit that

even if this document is looked into, it would substantiate the stand of

the petitioners that respondent No.4 was not possessing the requisite

extent of land and that too with NA permission. He would rely upon the

decision in the matter of Dhananjay R. Kulkarni and Ors. Vs. State of

Maharashtra and Ors; AIR 1999 Bombay 287, Adarsh Education Society

Vs. The State of Maharashtra and Ors.; WP No.6366/2018 and connected

writ petitions (Aurangabad Bench) decided on 07.06.2019 and Gurukul

Bahuuddeshiya Sevabhavi Pratishthan Vs. State of Maharashtra and Ors.;

2022 (2) Mah LJ 419.

REASONS :

17. We would prefer to first take up the stand of respondent

No.4 to demonstrate that both these petitions are collusive. As was

pointed out by Mr. Sapkal, indeed there is voluminous correspondence,

wherein, the petitioner from writ petition No.6991/2023 had indulged

into, for and on behalf of the writ petitioner - Institute in writ petition

10/24

1014.WP.4282.23 +.odt

No.4282/2023. As is pointed out, all such correspondence ex facie bears

his signatures under the stamp of Secretary of that petitioner institute. If

it is the stand of the petitioners about petitioner Sahebrao in writ petition

No.6991/2023 was earlier holding the post of Secretary but subsequently

resigned and even the change report to that effect was certified by the

Deputy Charity Commissioner, Ahmednagar, he continued to hold the

batten for the petitioner from the writ petition No.4282/2023.

18. While submitting applications soliciting information from the

public information officer of the respondent No.3 – University in respect

of various information pertaining to the selfsame dispute he had shown

his address as that of the institute, that is petitioner from writ petition

No.4282/2023, not on one occasion but many times. Besides, even it

was fairly conceded in response to our query that the present secretary of

the petitioner institution in writ petition No.4282/2023 is none other

than the nephew of petitioner Sahebrao from writ petition

No.6991/2023.

19. It is also important to note that writ petition No.4282/2023

was filed first in point of time by the institute which had participated in

the process and it is quite apparent that it could not have sought to

challenge the permission granted to respondent No.4 on the ground that

the annual plan was not compatible with the perspective plan, having

already participated in the process. There is every room to believe that

sensing such impediment ingenious method was adopted to resort to

11/24

1014.WP.4282.23 +.odt

separate challenge by way of a subsequent writ petition No.6991/2023

racking up that stand of incompatibility of the annual plan with that of

the perspective plan. All these circumstances, in our considered view are

clearly demonstrative of the fact that these are collusive petitions.

20. However, as regards the request of Mr. Sapkal of initiating an

action under Section 340 of the Code of Criminal Procedure, in our

considered view, the request is being made orally and ex tempore. When

Section 340 expects some procedure to be followed, in our considered

view this cannot happen abruptly at the eleventh hour when the matters

are being heard finally. We are, therefore, not inclined to entertain this

plea of Mr. Sapkal.

21. Turning to the merits of the matter, even if the submission of

Mr. Sapkal that the petitions being collusive and mischievous and

disentitling the petitioners of seeking any writ under Article 226 of the

Constitution of India is accepted, in our considered view the petitions

cannot be brushed aside lightly particularly when serious issues are being

raised regarding grant of permission to start a new college in the light of

provisions of Sections 107 and 109 of the Universities Act. Indiscretion

or mischief of the petitioners cannot be allowed to be resorted to by the

respondents to justify the impugned decision. If it is a matter of

implementation of the provision of Universities Act and the aims and

objects thereof, this Court cannot turn a blind eye if glaring illegalities are

perpetrated by the State and a public body like University. It is,

12/24

1014.WP.4282.23 +.odt

therefore, imperative as a constitutional Court for us to examine the

objections being raised in both the petitions touching the permission

granted to the respondent No.4.

22. As regards the sanctity of the perspective plan as

contemplated under Section 107 is concerned, reading of Section 107

alone would not suffice. It is also necessary to understand the process

which is required to be followed before any public university prepares a

perspective plan, tenure of which is five years. As indicated therein the

plan has to be approved by the Commission constituted under Section 76,

which means the Maharashtra State Commission for Higher Education

and Development. It comprises the Chief Minister as the Chairman and

Minister for Higher and Technical Education as the Vice-Chairman. There

are Secretaries of as many as seven departments of the State,

Educationist, Vice-Chancellors, Principals, eminent teachers, five other

Ministers, Leaders of Opposition, Members of the Legislative Council and

Assembly as its members. Section 77 lays down the functions and duties

of the Commission and clauses (a) and (b) of Sub-Section 1 of Section 77

expressly lays down and empowers the Commission to prepare guidelines

for perspective plan for each University, for the location of the colleges

and institution of higher learning in a manner ensuring equitable

distribution or facilities for higher education and to approve the

comprehensive perspective plans submitted by the universities.

23. The Tasks of preparing a perspective plan is imposed upon

13/24

1014.WP.4282.23 +.odt

the board of Deans. Even it has to prepare the annual plan. Even before

it is placed before the commission for final approval, the draft goes

through the scrutiny by the academic council, Senate and Management

Council. If such is the meticulous and detail procedure to be followed

before the comprehensive perspective plan for a period of five years is

prepared and becomes final, one need not overemphasize its sanctity and

importance.

24. No provision is pointed out by the learned advocate

particularly the learned AGP and the learned advocate representing the

University to demonstrate as to if such a perspective plan prepared by the

University is susceptible to any concession/leeway either in respect of the

institutes/new colleges to be opened, new courses to be started or for

changing the location. Even Sub-Section 4 of Section 107 requires

preferences to be given to the districts where gross enrollment ratio is

less than the national average and also to the tribal, hilly and inaccessible

areas besides quality bench mark, inclusive growth, social relevance and

value education. This is clearly demonstrative of the fact that several

factors are to be taken into consideration before finalizing a perspective

plan. Every consideration would have its own sanctity and importance.

Consequently in our considered view, it is necessary that any such

perspective plan is followed strictly by all the stake holders else the

purpose and object of preparing a perspective plan would be lost.

25. Having borne in mind, the sanctity and importance of the

14/24

1014.WP.4282.23 +.odt

perspective plan it is imperative that any annual plan which is published

every year is strictly in accordance with and should be compatible with

the perspective plan. Looked at from this angle, as is pointed out by Mr.

Nagargoje the perspective plan that was published by the respondent

No.3 - University, by Government Resolution dated 15.09.2017 which was

for a period of five years, did not indicate any plan for starting a new law

college in entire Newasa Taluka. We, therefore, have no manner of doubt

that the annual plan pursuant to which both these institutes had applied

in response to the notification issued by the respondent No.3 – University,

is clearly in violation of the perspective plan and for this reason alone the

entire process of issuing notification dated 10.01.2023 inviting

application for the location ‘Kharde Newasa Phata’, which is not at all

traceable to the perspective plan, becomes illegal.

26. We cannot approve of rather would deprecate the practise of

the respondent No.3- University in not being consistent in upholding the

sanctity of a perspective plan and rather indulging in illegalities by

coming out with an annual plan inconsistent with the perspective plan to

the extent of the location in dispute and starting of a new law college

which is not traceable to the perspective plan. In our considered view,

this in itself is sufficient to quash the permission granted to respondent

No.4 - Institute under the impugned GR. Obviously, this will obviate any

consideration of any other objection being raised in both these petitions

questioning sustainability and legality of the permission granted to

15/24

1014.WP.4282.23 +.odt

respondent No.4. However, by way of precaution, we would examine

even that aspect.

27. As far as the location ‘Khadke Newasa Phata’ is concerned, to

our mind it is not a misnomer as is being sought to be demonstrated by

Mr. Sapkal. Though parties are unanimous that Newasa Phata per se is

not a separate village and is merely a popular description of a particular

junction. When the location has been published with such a description,

no leeway or any deviation would be permissible. The very stand of the

Government in its affidavit-in-reply trying to justify the permission by

pointing out that the distance between the land offered by respondent

No.4 and the location ‘Khadke Newasa Phata’ is 2 to 3 kms, leaves no

manner of doubt to reach a conclusion that even the State admits the fact

that the land offered by respondent No.4 was not at the desired location

‘Khadke Newasa Phata’. We, therefore, have no hesitation in accepting

the stand of the petitioners that the land that was being offered by

respondent No.4 was not for the exact location that was notified by the

University and on this count it was not eligible.

28. Similarly, as far as the requisite for extent of land and its

source including the further specification as regards the extent of land

having non-agricultural use permission, the land offered by respondent

No.4 was clearly deficient. As per the mandate of guideline, the requisite

was 3 acres of land either owned or acquired by way of lease as

distinguished from leave and license. It further required the lease deed

16/24

1014.WP.4282.23 +.odt

to be registered one. As per the Clause 6 of Schedule ‘C’ and Clause 13 of

Schedule ‘B’ the land should have been converted to non-agricultural use.

However, the land that was offered by respondent No.4 was merely

having NA permission to the extent of 10 Gunthas. It is thus apparent

that the application of respondent No.4 was clearly deficient and

noncompliant as far as the land, its extent and nature.

29. The aforementioned inferences are again sufficient to quash

and set aside the permission granted to the respondent No.4 since it was

non-compliant with the basic requisites, apart from the deviation as

regards the exact location that was notified.

30. As far as the stand of the respondents to justify the

permission granted by the State Government is concerned, certainly,

Clause (d) of Sub-Section 3 of Section 109 of the Universities Act confers

a discretion upon the State in the matter of grant of letter of intent. Even

if there is no favourable proposal/recommendation by the University still

it can grant letter of intent and conversely even if there is a positive

recommendation, it has the power to reject such recommendations and

refuse permission. This precisely seem to be the stand of the respondent

Nos.1 and 2 in the affidavits-in-reply filed on their behalf. Even the

learned AGP toed the same line.

31. However, one cannot lose sight of the fact that any discretion

to be exercised by the State cannot be unfettered. When a statute gives a

discretion to the State or public functionaries it is imperative that the

17/24

1014.WP.4282.23 +.odt

discretion is exercised judiciously which in turn mandates some

parameters to be followed to demonstrate that the discretion is based on

some objective material and referring to some decisive factors. Even a

plain reading of Clause (d) of Sub-Section 3 of Section 109 clearly

demonstrates that though adjective ‘absolute’ is used before ‘discretion’,

the subsequent words indicate that relevant factors, suitability of the

management, state level priority with regard to the location, are the

factors to be looked into. It is well neigh clear that even the statute

mandates the discretion to be exercised only by taking into account these

considerations. It cannot be arbitrary and according to the whims and

fancies. The discretion exercised by the State in matters in hand is

suffering from the vice of being arbitrary and capricious. There is

absolutely nothing either in the impugned Government Resolution or in

the affidavit-in-reply filed on behalf of respondent Nos.1 and 2 to

demonstrate that the decision to grant permission to respondent No.4

was preceded by any objective scrutiny of matters which are required to

be taken into consideration as indicated in Clause (d) of Sub-Section 3 of

Section 109.

32. Suffice for the purpose to refer to and rely upon the

aforementioned two decisions of the coordinate benches one of which

was under the Maharashtra State Universities Act, 1994, under Section

82 which was pari materia with Section 109 of the Universities Act and

the other decision being under Section 109 of the Universities Act.

18/24

1014.WP.4282.23 +.odt

Paragraph Nos. 9 and 10 from the decision in the matter of Dhananjay R.

Kulkarni (supra) and paragraph No.9 from the decision in the matter of

Adarsh Education Society (supra) are relevant and substantiate our view.

Relevant paragraphs in Dhananjay R. Kulkarni (supra) read as under :

“9.All applications filed by the managements within the period

stipulated by section 82(3) seeking permission to open new

Colleges or institutions of higher learning are required to be

scrutinised by the Board of College and University

Development and forwarded to the State Government with

the approval of the Management Council with such

recommendations as are deemed appropriate by the

Management Council. The State Government, out of the

applications recommended by University, may grant

permission to such institutions as it may consider right and

proper in its absolute discretion, as stipulated by sub-section

(5). Thus, under sub-section (5), the State Government has

wide discretion to even decline permission to such institution,

application of which may have been recommended by the

University. Under proviso to this sub-section, the State

Government has power to grant approval for starting new

College or institution of higher learning, even though

University may not have recommended the grant of such

approval, but that power vests in the State Government only

in exceptional cases where reasons for grant of such approval

are required to be recorded in writing.

10.It is clear from the aforesaid provisions that such applications,

which are not in conformity with the perspective plan and

thus are outside the purview of the University for

consideration, are also to be scrutinised by the Board of

College and University Development and the same are also

required to be forwarded to the State Government. These

applications are only scrutinised under sub-section (4), but

are not considered, in view of the bar contained in sub-

section (2) of section 82. The language of the proviso, on

which strong reliance has been placed by the learned

Advocate-General, provides that in respect of the applications

not recommended by the University the State has powers in

exceptional cases, on reasons to be recorded in writing, to

grant approval for starting a new College. The proviso, to our

minds, deals with such applications which are considered by

19/24

1014.WP.4282.23 +.odt

the University and then not recommended and in respect of

such applications, the State Government has overriding power

to grant approval in exceptional cases. It does not postulate a

power to grant approval in respect of the applications which

the University is even debarred to consider. This

interpretation is also in consonance with the entire scheme of

section 82, including the bar contained in sub-section (2) and

sub-section (6) of section 82. The proviso, on which reliance

has been placed on behalf of the State Government, is proviso

to sub-section (5) and not in the nature of a non-obstante

clause to the entire section. When applications are filed by the

managements, section 82 contemplates three situations.:—

(1) Applications not considered by the University.

(2) Applications considered and recommended by the University,

and,

(3) Applications considered and not recommended by the

University.

The power of the State Government under this proviso is in

respect of the applications which are considered and not

recommended, and not in respect of the applications which

are not even considered. The power of the State Government

in respect of the applications recommended by the University

are found in substantive sub-section (5). From the mere fact

that all applications, which are scrutinised, including those

which are not considered, are required to be sent to the State

Government, it is not possible to reach the conclusion that,

even in respect of such not considered applications, the State

Government has power under the proviso to grant approval.

It is possible that, when such applications which are not

considered are forwarded to the State Government, the State

Government may find that the University was wrong in not

considering the applications on the ground that the same are

not in conformity with the Perspective Plan and, in those

circumstances, it may require University to consider such

applications. We may also briefly notice certain other

provisions of the Act which lend support to only conclusion

on the scope of power of State Government under proviso to

section 82(5).

20/24

1014.WP.4282.23 +.odt

Relevant paragraph in Adarsh Education Society (supra) reads us

under :

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 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.”

Relevant paragraphs in Gurukul Bahuuddeshiya Sevabhavi

Pratishthan (supra) read as under :

“13.The Government can exercise the powers in exceptional

circumstances and for the reasons to be recorded in writing

while approving the proposal for grant of Letter of Intent to

the college or the institution of higher learning though not

recommended by the University.

14.The general rule appearing in section 109(3)(d) is that out of

applications recommended by the University the State

Government may grant Letter of Intent. Proviso to Clause (d)

21/24

1014.WP.4282.23 +.odt

of sub-section (3) of section 109 carves out an exception viz.

in exceptional cases the Government may grant Letter of

Intent though not recommended by the University for the

reasons to be recorded in writing. According to Webster's

International Dictionary of English Language “Exceptional

which is itself an exception and so is out of ordinary, that is,

exceptional, to which exception may be taken”. According to

Murray's New English Dictionary Exceptional means “of the

nature of forming exception; out of the ordinary course,

unusual, special.” The Government has to arrive at the

conclusion that exceptional circumstances exist to overrule

the negative recommendations of the University. The

University while negativing the proposals of the respondents

amongst other objections had observed that students of the

region would not suffer. The Government while considering

such proposal ought to have arrived at subjective satisfaction

based on objective assessment that exceptional circumstances

still exist for establishing new college on the said location for

the welfare of the students. The same ought to be supported

by relevant statistics.

15.For meeting out an exceptional case strong reasons have to be

recorded in writing that would outweigh the negative

recommendations of the University. The rule requiring

recording of reasons must be observed in letter and spirit.

Mere pretence of compliance by vague and general words is

not enough. Reasons are the lifeline of any order. The order

should reflect the application of mind of the authority 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 possible arbitrary action. Reasons are

link between the materials on which certain conclusions are

based and the actual conclusion. Reasons discloses how the

mind is applied to the subject matter for a decision. The

reason should reveal a rational nexus between the facts

considered and the conclusions reached. Only in this way can

opinions or decisions recorded be shown to be manifestly just

and reasonable. In the present case the reasons recorded

should demonstrate carving out an exceptional case to be

considered though negatively recommended by the

University.”

33. It is thus evident that the permission granted to the

respondent No.4 is grossly illegal. To sum up, the location and starting of

22/24

1014.WP.4282.23 +.odt

law college at that place as notified in the Annual Plan is not in

accordance with the perspective plan and therefore the University ought

not to have issued any notification at the first place inviting the

applications. Besides, the proposal of respondent No.4 was deficient in

many respect. Further, the impugned permission granted by the State is

demonstrative of lack of several important considerations. It has

exercised the discretion arbitrarily and granted permission to the

respondent No.4. Lastly, nothing has been placed before us and the

affidavit-in-reply filed by the State is absolutely silent as regards the

parameters applied by the State in preferring respondent No.4 to the

petitioner from writ Petition No.4282/2023, demonstrating as to what

factors had weighed with it in giving the preference when there were

positive recommendations in respect of both.

34. Before parting, we would be failing in our duty if we do not

comment on the conduct of the respondent No.3 University. In spite of

such serious issues being raised in both these petitions, its conduct in not

even filing any reply is demonstrative of its lack of interest or incapacity

to manage the affairs of the University in such serious matters. Either it is

doing so due to incompetence of the persons manning it or could be with

an ulterior motive to push the illegalities under carpet.

35. The writ petition No.4282/2023 is allowed partly.

36. The writ petition No.6991/2023 is allowed.

37. The impugned Government Resolution dated 15.06.2023

23/24

1014.WP.4282.23 +.odt

granting permission to respondent No.4 to open a new law college is

quashed and set aside.

38. The writ petition No.4282/2023 seeking direction to the

respondent Nos.1 to 3 to issue letter of intent and final permission to the

petitioner is dismissed.

39. Rule is made absolute in the above terms.

[ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ]

JUDGE JUDGE

40. After pronouncement of the judgment, Mr. S.R. Sapkal, for

respondent No.4, requests for staying operation of this judgment and

order for a reasonable time to enable it to approach the Supreme Court.

41. The learned advocates for the petitioners oppose the request

by saying that this Court may grant stay but respondent No.4 shall not

admit any student and shall maintain status quo, as is obtaining today.

42. The operation of the judgment and order is stayed for a

period of three weeks. However, respondent no. 4, shall maintain status

quo, as is obtaining today, in respect of admitting the students.

[ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ]

JUDGE JUDGE

habeeb

24/24