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The Tezpur University Act, 1993
The Societies Registration Act, 1860
Article 30 in The Constitution Of India 1949
The Indian Trusts Act, 1882
The Indian Universities (Repeal) Bill, 2001

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Bombay High Court
Social Society Morba vs 3 University Of Mumbai on 4 May, 2011
Bench: A.M. Khanwilkar, Mridula Bhatkar

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.10424 OF 2010

KJ

Social Society Morba )

a Public Trust registered under Public Trust )

Act, 1960, having its address At & Post Morba )

Taluka : Mangaon, Dist. Raigad-42 117 (M.S) )

Through its Chairman Mr.Hussain Harnekar )..Petitioner Vs.

1 The Principal Secretary, )

Higher & Technical Education Department )

Government of Maharashtra, Mantralaya, )

Mumbai )

2 State of Maharashtra )

Copy to be served on the Government )

Pleader, High Court, Mumbai )

3 University of Mumbai )

Through the Registrar (Affiliation) )

Mahatma Gandhi Road, Fort, )

Mumbai-400 032 )..Respondents ----

Mr.Girish Kulkarni i/by Sandeep Waghmare for the petitioner. Mr.Rui Rodrigues for respondent no.3.

Mrs.Molina Thakur AGP for respondent nos.1 & 2.

----

CORAM : A.M.KHANWILKAR &

MRS.MRIDULA BHATKAR,JJ

DATE : 4TH MAY, 2011.

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Order : ( Per : A.M.Khanwilkar,J)

1 Heard Counsel for the parties.

2 Rule. Rule made returnable forthwith, by consent. Mr.Rui Rodrigues waives notice for respondent no.3. Mrs.Molina Thakur AGP waives notice for respondent nos.1 & 2.

3 As short question is involved, petition was taken up for final disposal forthwith, by consent.

4 By this petition, under Article-226 of the Constitution of India, the petitioner prays for quashing and setting aside the impugned communication dated 6.11.2010 received from the Section officer, Higher and Technical Education Department, Government of Maharashtra. By the said communication, the petitioner was informed that in view of the Government Policy of not starting any new Arts, Science and Commerce college, the petitioner's request for grant of permission to start science college for Women for Academic Year 2010-2011 cannot be considered. 3 wp10424.10.sxw

The petitioner prays for direction against respondents to forthwith grant permission to the petitioner's Women's College (Science faculty) for the Academic Years 2011-2012.

5 Briefly stated, the petitioner claims to be a registered Trust under the provisions of Mumbai Public Trusts Act 1950 and the Societies Registration Act 1860. The petitioner Trust is formed by persons belonging to muslim religion who are residents of Raigad district. It is a religious minority institution within the meaning of Article 30 of the Constitution of India. The Petitioner relies on the certificate issued by the Government of Maharashtra acknowledging its status as a religious minority institution. It wanted to establish women degree college in science faculty at post-Morba, Tal-Mangaon, Dist-Raigad on permanent no grant basis and without taking any other aid from the Government. 6 Accordingly, pursuant to the advertisement issued for inviting applications from trust/society for opening of a new college, the petitioner submitted its proposal for permission to 4 wp10424.10.sxw

start a women degree college in science faculty at post Morba, Tal Mangaon, Dist. Raigad. The petitioner submitted proposal to the University of Mumbai in that behalf firstly on 8.10.2007. The University, after due scrutiny of all aspects of the matter, vide communication dated 3.1.2008, was pleased to approve the proposal of the petitioner in principle but recommended not to admit the students for the degree course till permission is granted by the Government of Maharashtra. The petitioner's proposal was forwarded to the State Government on the assumption that such permission was essential in terms of section 82(5) of the Maharashtra University Act 1994 (Hereinafter referred to as the said "Act"). However, the petitioner did not receive any communication from the Government of Maharashtra. Once again, pursuant to the advertisement issued for inviting application for starting a new college for the next Academic Year, the petitioner submitted fresh proposal to the University on 13.10.2008. Even this proposal was duly examined by the University and the University once again forwarded the petitioner's proposal to the State Government along with its 5 wp10424.10.sxw

approval. That was conveyed to the petitioner by the Registrar of the Mumbai University vide communication dated 23.1.2009. By the said communication, the petitioner was informed that even though the recommendation is forwarded to the State Government, the petitioner shall not admit any students until permission is granted by the Government of Maharashtra. Once again, the petitioner did not get any permission from the Government of Maharashtra. For the third successive Academic Year, pursuant to the advertisement, the petitioner once again submitted fresh proposal for starting Women's Science College at post Morba, Tal. Mangaon, Dist. Raigad, on 13.10.2009. Even this proposal was duly examined by the Mumbai University and the Deputy Registrar affiliation section, by his letter dated 15.1.2010 once again recommended the proposal of the petitioner for starting new college since the petitioner was fulfilling all the mandatory requirements.

7 Even after this recommendation, no response was received from the State Government either of accepting the 6 wp10424.10.sxw

proposal/application or rejecting the same. As a result, the petitioner filed a case before the National Commission for Minority Educational Institution being Case No.360 of 2010 seeking directions against respondent no.1. The Minority Commission strongly recommended to the State Government to accord permission to the petitioner under Section 82(5) of the said Act to establish the proposed womens degree college in accordance with the recommendation of the Mumbai University for the Academic Year 2010-2011 vide its order dated 15.7.2010. In this order, it was impressed upon the State Government that it was the custodian of the fundamental rights of the citizens and keeping in view the mandate of Article-30 of the Constitution of India, the State Government was under obligation to consider the needs of the minority community for imparting higher education to its children.

8 Notwithstanding the decision of the National Commission for Minority, as no response was received from respondent no.1, the petitioner approached this Court by way of Writ Petition No.6856 7 wp10424.10.sxw

of 2010 making grievance that the State Government was not taking any decision on the proposal of the petitioner in spite of the fact that same was repeatedly recommended by the University of Mumbai. The Division Bench of this Court by its decision dated 7.9.2010 disposed of the said petition by directing the respondents to take a final decision on the proposal submitted by the petitioner within two months from the date of the order.

9 In response to the said direction given by the Division Bench of this Court, the Section officer of the Higher & Technical Education Department, Government of Maharashtra, by the impugned communication, dated 6.11.2010, informed the petitioner that the Government has taken a policy decision not to start any new college in Arts, Commerce & Science faculty for the Academic Year 2010-2011 and for which reason, the petitioner's proposal cannot be considered. This decision is the subject matter of challenge in the present petition.

10 The petition is resisted by the respondent nos.1 & 2 by filing 8 wp10424.10.sxw

affidavit of Manjusha Subhash Molwane, Incharge Joint Director, Higher Education, Mumbai Region, Mumbai, dated 11.4.2011. At the outset, the reason communicated to the petitioner has been reiterated in this reply affidavit for not considering the proposal of the petitioner. It is then stated that fresh proposal for opening of a new college for Academic Year 2011-2012, the management of the prospective colleges were required to submit applications in the prescribed form which were to be forwarded to the University on or before 31.10.2010. In view of the change brought about by Government Resolution dated 30.10.2010, the management seeking permission to open a new college or institution of higher learning, is required to submit application in prescribed form to the Registrar of University before the last date of October preceding the year for which the permission is sought. However, by way of amendment the said date has been extended till 1st May. Further, on receipt of the application, the State Government would communicate its decision to the University on or before 15th June instead of 15th July of the year. It is then stated that the distance from Arts & Science college of Mangaon Education 9 wp10424.10.sxw

Society which is already in existence from village Morba is only 6 Kms. and of another college of NM college, Goregaon is only 13 K.M. It is further stated that the application preferred by the petitioner for starting college for the Academic Year 2011-2012 is being processed by the University and after its receipt the State Government would take appropriate decision on or before 1.5.2011 and communicate the same to the institution on or before 15.6.2011. It is thus contended that the present petition is pre-mature.

11 The respondent no.3-University has filed affidavit of one D.H.Kate, Deputy Registrar, University of Mumbai dated 13.4.2011. In this affidavit it is stated that the proposal of the petitioner for the Academic Year 2008-2009 was recommended by the University to the State Government on 29.12.2007 and for Academic Year 2009-2010 on 29.12.2008 and for Academic Year 2010-2011 on 30.12.2009. As far as proposal for the year 2011-2012 is concerned, that was submitted by the petitioner on 20.10.2010 to the University which has been scrutinized by the 10 wp10424.10.sxw

Board of college and University Department (BCUD) on 8.4.2011 and the report of BCUD will be now placed before the newly Constituted Management Council in its forthcoming meeting scheduled to be held on 21.4.2011.

12 We have heard the Counsel for the respective parties and have also gone through the materials on record and the judgment of this Court relied upon by the petitioner.

13 We shall first deal with the preliminary objection raised by the respondent nos.1 & 2 that the present petition is pre-mature. This objection will have to be stated to be rejected. The petitioner has not approached this court simplicitor for issuing direction to the concerned authorities to grant permission/approval to the petitioner for starting new womens college (Science faculty) "for the Academic Year 2011-2012" at post Morba, Tal Mangaon, Dist. Raigad. If that was the only relief claimed, the respondents would be justified in contending that the present petition is pre-mature. In as much as, the proposal of the petitioner for Academic Year 11 wp10424.10.sxw

2011-2012 is still under process at the level of Mumbai University and thereafter it would be placed for consideration before the State Government. However, in the present case, the grievance of the petitioner, firstly is about the inaction of the State Government for three successive years from Academic year 2007-2008 onwards, even though the said proposals satisfied the eligibility criterion specified by the Mumbai University and which have been accorded approval by the University. The second grievance is that, under some mistaken belief, that by virtue of Section 82(5), the permission of the State Government is necessary, the proposals were forwarded to the State Government by the Mumbai University. According to the petitioner, however, since the petitioner intends to start the new college on permanent non grant basis and without taking any other aid from the State Government, the necessity of obtaining prior permission of the State Government under Section 82(5) of the Act is not attracted. It is on this argument, the petitioner has assailed the impugned communication which considers the petitioner's proposal for Academic Year 2010-2011. If the petitioner succeeds in this 12 wp10424.10.sxw

challenge, the petitioner will be entitled for a declaration that the formality of prior permission of the State Government is unnecessary. As a consequence thereof, the petitioner would become entitled for direction/order against the University to ignore the opinion of the State Government on the petitioner's proposal for Academic Year 2010-2011; and instead the Academic Council of the University can be directed to take the petitioner's proposal forward in accordance with the other provisions of the said Act subject to petitioner fulfilling the other mandatory requirements for maintaining the desired education standards. That direction will obviously relate to the last proposal submitted by the petitioner for the Academic year 2010-2011. Indeed, even if the University were to be called upon to consider the petitioner's proposal for starting a new college for Academic Year 2010-2011 and as that Academic Year was substantially over during the pendency of this petition, as a condition precedent for granting such permission, the management can always be directed to start admission process only on and from Academic year 2011-2012. Thus understood, the argument of the Respondent Nos.1 and 2 13 wp10424.10.sxw

that the present petition is premature, is devoid of merit. 14 Even assuming that the petitioner's proposal were to be considered for Academic Year 2011-2012 as is the relief claimed in prayer clause-(b), the challenge in this petition is to the illegal procedure insisted upon by the respondents of submitting the proposal to the State Government for its prior approval under Section 82(5) even in respect of the Management intending to start the new college on permanent non grant basis and without taking any other aid from the State Government. Insofar as this grievance is concerned, it cannot be said to be pre-mature. If the petitioner is right in this argument, the decision on the proposal of the petitioner for Academic year 2011-2012 cannot be dependent on the opinion of the State Government at all. On the other hand, the proposal will have to be examined by the University on its own keeping in mind other parameters to ensure that the petitioner fulfills all the mandatory requirements which are necessary to maintain high education standards in the college. Considered thus, we reject the preliminary objection taken by the respondent nos.1 14 wp10424.10.sxw

& 2.

15 Reverting to the merits of the case, we may have to limit the consideration in the context of the reason recorded in the impugned communication dated 6.11.2010, as the respondent nos.1 & 2 cannot be permitted to invoke any other ground to justify their decision for non consideration of the petitioner's proposal. As far as the impugned communication, the only reason stated therein, is that, the State Government has taken a decision not to grant permission to start a new Arts, Commerce and Science college for Academic Year 2010-2011. This reason, in our opinion, has been rightly assailed on the basis of the exposition of the Division Bench of our High Court in the case of Maharashtra Cosmopolitan Education Society Vs. University of Pune & Ors reported in 2000 (1) Mh.L.J 424. In that case, the University had already recommended increase in the seats and that issue was submitted to the Government for its consideration. The University however, contended before the Court that, the University itself can take decision without seeking prior approval of the Government on the said issue. The Court considered the provisions of Sections 81, 82 and 83 of the 15 wp10424.10.sxw

Maharashtra Universities Act. The Scheme of the said provisions have been interpreted to hold that the University is the final arbiter on matters decided by it under Section 83(3) of the Act or while exercising its powers given to the University and it need not go back to the State Government for approval where no financial implications were involved to the State. That view has been taken on the interpretation of Section 82(5) of the Act. The Court held that the University before approaching the Government "itself" should first decide whether its decision involves any financial implication to the Government. 16 In substance, the principle expounded in this decision is that on matters which the Academic Council of the University has to decide in terms of Section 83(3) of the Act, which includes whether affiliation should be granted or rejected, etc., the University itself has to take decision on the said matters without seeking prior approval of the State Government, if no financial implication was involved to the Government. In cases where the Management intends to start new College on non-grant basis and without taking any other aid from the Government, it necessarily follows that there would be no financial implication to the State Government if affiliation is granted to such 16 wp10424.10.sxw

College by the University. The University, however, is expected, by virtue of Section 82 of the Act, to ensure that the affiliation to be granted by it for opening a new College or Institution of higher learning must be in conformity with the perspective plan. In the present case, the fact that the University has repeatedly approved the proposal of the petitioner for starting a new Women's Degree College in Science Faculty at post Morba, Taluka Mangaon, District Raigad, it presupposes that as per the extant perspective plan prepared by the University under Section 82, opening of such new College is in contemplation. Thus, applying the principle expounded in the case of Maharashtra Cosmopolitan Education Society (supra), which decision, we are informed, has become final and no contrary view thereto has been taken, the petitioner's proposal having been approved by the University to start a new College, which concededly is on no-grant basis and without taking any other assistance or aid from the Government, the University itself could proceed to grant affiliation to the said College without seeking prior approval of the State Government. A priori, the question of forwarding the petitioner's proposal to the State Government by the University does not arise, whether be it for A.Y 2010-2011 or for that matter for A.Y 2011-2012 as the case may be. Instead, the 17 wp10424.10.sxw

University itself has to take the final decision on whether to grant affiliation to the new college proposed by the petitioner, subject to compliances of all mandatory requirements in that behalf. 17 We are in agreement with the argument canvassed before us by the Counsel for the University that on such interpretation, the opening part of section 83(1) of the Act - which refers to the factum of permission from the State Government under Section 82 - will be applicable only in respect of proposed new colleges which are looking forward to take aid from the State Government, financial or otherwise. However, if the institute such as the petitioner (which incidentally is also a minority institute) intends 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 Act would not arise at all as that condition is inapplicable to such institutes/colleges. In such cases, however, the Academic Council of the University ought to examine as to whether opening of the proposed college is in conformity 18 wp10424.10.sxw

with the perspective plan prepared under Section 82 and the college also complies with all other mandatory eligibility criterion. 18 As a result, we direct the respondent no.3-University to consider the proposal of the petitioner keeping in mind other parameters required to be complied by the institute for maintaining proper educational standards and if found eligible in all respects, grant affiliation to the proposed college of the petitioner subject to condition that the college will admit students only on and from the Academic year 2011-2012. The University to take a final decision and communicate the same to the petitioner not later than 15.6.2011 so as to enable the petitioner- college to start admission process commencing from June-2011 for Academic year 2011-2012 onwards.

19 Petition succeeds on the above terms. Rule is made absolute accordingly with no order as to costs.

(MRS.MRIDULA BHATKAR,J) (A.M.KHANWILKAR,J)