National Institute of Education Vs. Nav Bharat Shikshan Mandal, - Court Judgment

Excerpt:
constitution - education - colleges - permission to start new college - perspective plan - maharashtra universities act, 1994 - sections 82, 82(1), 82(2), 82(3), 82(5), 82(6) - first respondent, in 1985 decided to close down arts and commerce faculties of its college at kurundwad - accordingly, it informed fourth respondent-university and state government - petitioner-institution wanted to take over college being closed down by first respondent - petitioner permitted state government to start college from academic year 1985-86 at kurundwad - thus arts and commerce college being run by first respondent no. 1 was taken over by petitioner - first respondent decided to start a college at kurundwad once again and submitted proposal to fourth respondent-university, seeking its permission - application made to fourth respondent-university under sub-section (3) of section 82 of maharashtra universities act, 1994 ('act') - fourth respondent-university refused permission to first respondent to start college at kurundwad on ground that in 'perspective plan' prepared by fourth respondent-university, no provision had been made for starting a college at kurundwad - subsequently, petitioner learnt from local newspapers that state government had granted permission to first respondent to start a senior college for arts, commerce and science at kurundwad - petitioner preferred writ petition - held, every application for opening a new college or institution of higher learning must be in conformity with perspective plan - applications not in conformity with such plan can neither be considered by university nor by state government - university right in not considering application for opening new college made by first respondent as not in conformity with perspective plan under sub-section (1) of section 82 of act - case is covered by sub-section (2) of section 82 of act and not by sub-section (4) of section 82 - hence, state government had no jurisdiction to exercise power under first proviso to sub-section (5) of section 82. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in rejecting arbitration petition filed by appellant on ground of lack of jurisdiction. - 1 would result inunhealthy competition was not factually correct andlegally well founded. initially, in an affidavit dated august 29, 2002.it was stated that approval could be granted by thestate government for opening a new college orinstitute of higher learning to any proposal whichmight not have been recommended by the university. ittook into account the fact that the university hadnot recommended the proposal of respondent no. there was a consistent demandfrom local people and parents and students but theshivaji university repeatedly rejected the prayer'for the reasons best known to it'.it wassubmitted that so long as the perspective plan wasnot approved by the state council, there was nofinality as to the draft plan and cabinet sub-committeehad every right to exercise power undersection 82 of the act. another statement had also been dealt withthat the petitioner institution had applied forpermission to start science faculty in 2000. butsince the state government had taken a decision togrant permission only to professional courses onpermanently 'no-grant basis',permission was notgranted to traditional courses like arts, scienceand commerce. it is true that we have not givenseparate reasons fro each and everyinstitution for which, the universitieshad not recommended but the cabinet sub-committee has granted the permission. but if the case could not have been considered bythe university, it is not open to the stategovernment to invoke the first proviso to sub-section (5)of section 82 of the act and purportedexercise of power is bad in law. provided, however, that inexceptional cases and for the reasons tobe recorded in writing any applicationnot recommended by the university may beapproved by the state government forstarting a new college or institution ofhigher learning. outof the applications recommended by the university,it is open to the state government to grantpermission to such institutions as it may considerright and proper in its absolute discretion. thispower has been conferred on the state government bysub-section (5) of section 82. under the saidprovision, therefore, the state has widediscretion even to decline permission to suchcolleges or institutions of higher learning whoseapplications have been recommended by theuniversity. the (first) proviso to sub-section (5)of section 82 enables the state government togrant approval for starting a new college orinstitution of higher learning, which might nothave been recommended by the university. the saidpower, however, can be exercised by the stategovernment in exceptional cases by recordingreasons. the language of the proviso, on whichstrong reliance has been placed by thelearned advocate-general, provides thatin respect of the applications notrecommended by the university the statehas powers in exceptional cases, onreasons to be recorded in writing, togrant approval for starting a newcollege. the state government, out ofthose applications recommended by the university,may grant permission to such institutions as itmay consider right and proper in its absolutediscretion under sub-section (5) of section 82 ofthe act. thus, the discretion left with the stategovernment is under sub-section (5) of section 82.under the (first) proviso to sub-section (5), thestate government has power to grant approval forstarting new college or institution of higherlearning not recommended by the university inexceptional cases for the reasons to be recorded inwriting. this power given to the stateis to be exercised in exceptional cases. we are unable touphold the submissions of the state government thatpower under the (first) proviso to sub-section (5)of section 82 is 'over riding' or 'all pervasive'.to us, it is clear, that such power has to beexercised in exceptional cases and for the reasonsto be recorded in writing in those cases whereapplication has been 'considered' by the universitybut has not been 'recommended' and the stategovernment is inclined to exercise the power. whereas sub-section (2) uses the expression'consider',sub-section (4) speaks of 'scrutiny'and 'recommendation'.sub-section (5) and the(first) proviso to sub-section (5) deals withthose cases which have been considered by theuniversity and either recommended or notrecommended by it. precisely in those cases, thepower under sub-section (5) or the (first) provisoto sub-section (5) of section 82 can be exercisedby the state government. 46. we are also in respectful agreement with theview taken by this court in dhananjay kulkarni andin shikshan samiti, gadhinglaj, that where anapplication for opening of a new college orinstitution of higher learning has not been'considered' by the university and the stategovernment is satisfied that the university iswrong in not considering the application, it mayrequire the university to consider or re-considersuch application.c.k. thakker, c.j.1. rule. mr. v.b. naik, learned counsel appearsand waives service of rule on behalf of respondentnos. 1 to 3. mr. r.g. ketkar, learned counsel,appears and waives service of rule on behalf ofrespondent no. 4. mr. v.a. gangal, learned specialcounsel, appears and waives service of rule onbehalf of respondent nos. 5 and 6. in the facts andcircumstances, the matter has been taken up forfinal hearing.2. this petition is filed by the petitioner foran appropriate writ, direction or order, quashingand setting aside permission granted by the stateof maharashtra, respondent no. 6 herein, to navabharat shikshan mandal, sangli, respondent no. 1herein, for starting a senior college at kurundwad,taluka shirol, district kolhapur, being illegal andunlawful.3. the case of the petitioner is that it is asociety registered under the societies registrationact, 1860. similarly, first respondent is also asociety conducting junior college at sangli. priorto 1985, first respondent was conducting a collegeat sangli and also at kurundwad. the managingcommittee of the first respondent in its meetingdated february 15, 1985, passed a resolution toclose down arts and commerce faculties of itscollege at kurundwad. accordingly, it informedrespondent no. 4, vide its letter dated march11, 1985. the first respondent also informed theeducation department of the state government on thesame day. orders terminating the services of theemployees were issued. the petitioner-institutionwanted to take over the above college which wasbeing closed down by the first respondent. a writpetition no. 2212 of 1985 was filed in this courtby the maharashtra federation of university andcollege teachers union, who were conductingeducational activities and opposed to closing downof the college. on july 19, 1985, this courtallowed the writ petition to be withdrawn, sincethe state government was inclined to grantpermission to start arts and commerce college atkurundwad to the petitioner-institution.accordingly, the petitioner was permitted to startthe college from the academic year 1985-86 atkurundwad, in pursuance of an application datedjune 8, 1985. a copy of the permission granted bythe state is annexed to the petition at exhibit-c.according to the petitioner, thus the arts andcommerce college which was being run by respondentno. 1 was taken over by the petitioner.4. it is averred in the petition that, all of asudden, the first respondent decided to start acollege at kurundwad once again and submitted aproposal to respondent no. 4-university, seekingpermission to start a college. an application wasmade to the respondent university under sub-section(3) of section 82 of the maharashtra universitiesact, 1994 (hereinafter referred to as 'the act').since the petitioner did not have a copy of theapplication, it was not in a position to stateanything more. according to the petitioner, therespondent-university was pleased to refusepermission to the first respondent to start acollege at kurundwad on the ground that in the'perspective plan' prepared by the fourthrespondent-university, no provision had been madefor starting a college at kurundwad. as per theperspective plan, new colleges were proposed atthree places, namely (i) udgaon, (ii) abdullat, and(iii) shirol. the fourth respondent-university,therefore, rejected the application of the firstrespondent and refused to recommend opening ofcollege at kurundwad.5. the petitioner, however, had come to knowthat the first respondent had moved the governmentto grant necessary permission. it, therefore,submitted objections with the state governmentagainst grant of such permission to the firstrespondent for starting a college at kurundwad. thepetitioner, however, was shocked to known from thelocal newspapers that the state government hadgranted permission to the first respondent to starta senior college for arts, commerce and science atkurundwad. the said action was contrary to law andinconsistent with the provisions of the act. itwas also against the decisions rendered by thiscourt. the petitioner, therefore, has approachedthis court by filing the present petition.6. notice were issued, pursuant to which therespondents appeared. affidavits and counter-affidavits have been filed. we have issued rule anddecided to hear the matter finally.7. in the counter affidavit, respondent nos. 1and 2 submitted that the state government has powerunder the first proviso to sub-section (5) ofsection 82 of the act to grant such permission andin exercise of the said power, permission wasgranted and the petitioner cannot make grievanceagainst such action. it was also submitted that thecontention of the petitioner that permission toopen a college to respondent no. 1 would result inunhealthy competition was not factually correct andlegally well founded. according to respondent nos. 1and 2, the university was wrong in rejecting theapplication of the first respondent on the groundthat in the perspective plan, no provision had beenmade for starting a college at kurundwad. in anycase, it was in exercise of overriding power underthe first proviso to sub-section (5) of section 82of the act that the state government has grantedthe permission. such an action is neither illegalnor unlawful. moreover, the first respondent-institution is running two junior colleges, one atkurundwad and the other at sangli. it is a reputedinstitution and has done a great deal of work inthe field of education. as the application of thefirst respondent was in conformity with the act andthe rules and the university had wrongly refused togranted permission, the state government wascompetent to exercise the power. it was in theabsolute discretion of the state government togrant permission. again, the petitioner did nothave science faculty at all. it was, therefore, animportant circumstance which weighed with the stategovernment in granting the permission.8. on behalf of the state government, fouraffidavits have been filed one after the other.initially, in an affidavit dated august 29, 2002.it was stated that approval could be granted by thestate government for opening a new college orinstitute of higher learning to any proposal whichmight not have been recommended by the university.such power can be exercised by the state under thefirst proviso to sub-section (5) of section 82 ofthe act. according to the deponent, the universityhad not followed the provisions of the act, andhence the power was exercised by the stategovernment.9. in an order, dated september 5, 2002, adivision bench of this court observed that duringthe course of hearing, when a question was put tothe learned assistant government pleader as to onwhat basis the permission was granted by the stategovernment in favour of respondent nos. 1 and 2 toopen and run a college, a prayer was made foradjournment to file additional affidavit to placethe reasons before the court. the court showed itsdispleasure for non-disclosure of reasons in theearlier affidavit in reply and for seeking furthertime. time was, however, granted to file additionalaffidavit, subject to deposit of rs. 3,000/-towards costs. it appears that in the light of theabove order, further affidavit was filed onseptember 12, 2002, wherein it was stated that thecabinet sub-committee considered the proposal ofrespondent no. 1 to start a senior college atkurundwad.10. the said committee comprised of the followingmembers;1. the hon'ble chief minister.2. the hon'ble deputy chief minister.3. the hon'ble minister for higher &technical; education, and4. the hon'ble minister of state forhigher & technical education.the cabinet sub-committee considered the proposalof respondent no. 1 for permission to start a seniorcollege in arts, science and commerce streams. ittook into account the fact that the university hadnot recommended the proposal of respondent no. 1 aletter/representation by s.r. patil, sitting mla,(respondent no. 3) was also placed before thecabinet sub-committee wherein the mla had madegrievance that the proposal of the first respondentwas not considered by the university favourably onhyper-technical grounds and thus there was non-co-operationby the university. considering all thecircumstances, 'a proper and conscious decision wastaken by the state government for grantingpermission to the respondent no. 1 institution tostart a senior college'.11. third affidavit was filed on behalf of thestate on october 3, 2002, by the under secretaryto the government, higher and technical educationdepartment. in paragraph 3, it was stated:'it may be pointed out that at thisstage that any perspective plan preparedby the university will become final onlywhen the same is approved by the statecouncil for higher education. till thatis done, the plan remains a draft plan.it may be stated here that till today,the state council for higher educationas contemplated under sub-section (1) ofsection 82 is not constituted. as such,there is no final perspective plan of anyuniversity which can be stated to havecome into force.'it was also stated that the decision to grantpermission to respondent no. 1 was taken by thecabinet sub-committee. 'the said decision is takenbona fide and the sub-committee also has recordedthe reasons for granting permission.' according tothe deponent, there was no science facultycollege in kurundwad or surrounding villages andtowns and kurundwad would be a convenient place assufficient number of bus routes and transportfacilities were available. it was also assertedby the deponent that there was no demand of openinga science college either from the petitioner orany other college, except respondent no. 1. thepetitioner's college did not have a capacity toaccommodate all other students in its institution,which resulted in several students being renderedwithout proper and reasonable access to nearby areafor higher education. there was a consistent demandfrom local people and parents and students but theshivaji university repeatedly rejected the prayer'for the reasons best known to it'. it wassubmitted that so long as the perspective plan wasnot approved by the state council, there was nofinality as to the draft plan and cabinet sub-committeehad every right to exercise power undersection 82 of the act. the petitioner, according tothe deponent, was nothing but 'an abuse of theprocess of law' and it was not a fit case toexercise power under article 226 of theconstitution in favour of the petitioner.12. a rejoinder to the above affidavit was filedby the petitioner stating therein that it was anincorrect statement in the affidavit in reply thatthe state committee was not constituted.'maharashtra state council for higher education'was constituted by a notification dated 16th april,1999. it was also stated that the petitionercollege had applied for starting a science facultyfrom june, 2000. the university, however, did notgrant the permission as it was contrary to theperspective plan. the deponent denied that it didnot have capacity to accommodate all the students.the petitioner college could accommodate all thestudents enrolled with the first respondent collegeand was 'more than ready and willing to accommodatethem'.13. the under secretary, therefore, filed onemore affidavit on october 23, 2002, stating thereinthat it was true that a notification under sub-section(1) of section 56 of the act was issued onapril 16, 1999, nominating 20 members but theperiod of nominated members of the council was tocommence from the date of first meeting of thecouncil. however, no meeting had been held andthe cabinet on december 6, 2001, decided todissolve the council and to substitute an newcouncil. another statement had also been dealt withthat the petitioner institution had applied forpermission to start science faculty in 2000. butsince the state government had taken a decision togrant permission only to professional courses onpermanently 'no-grant basis', permission was notgranted to traditional courses like arts, scienceand commerce.14. a counter-affidavit is also filed by theminister for higher and technical education, whowas one of the members of the cabinet sub-committee.in the said affidavit, he stated that onjune 17, 2002, respondent no. 3 mla and chairman ofshri datta sahakari sakhar karkhana limited, oneof the most important and leading sugar factoriesin the nation conducting several educationalinstitutions personally met him (the minister)making grievance that the university wasdeliberately not recommending the proposal of thefirst respondent-institution, though there was aneed for a senior college in kurundwad. the thirdrespondent also told the minister that the firstrespondent was capable of conducting a college ofarts, science and commerce, having allinfrastructure, finance, resources etc. theminister, therefore, asked the departmental deputysecretary to examine the proposal of respondentno. 3 considering objections lodged by petitioner-institution. the cabinet sub-committee then met onjune 18, 2002. the proposal of the first respondentwas considered as also representation submitted bythe petitioner which appeared to be genuine innature and a decision was taken to grantpermission to respondent no. 1 on 'permanently nogrant basis'.15. the minister then started;'....it is true that we have not givenseparate reasons fro each and everyinstitution for which, the universitieshad not recommended but the cabinet sub-committee has granted the permission.'the only reason on which permission was grantedwas local needs and demands of students.16. an affidavit in reply is filed by respondent-university wherein it was expressly stated that thecommittee prepared perspective plan which wasplaced before the board of college and universitydevelopment ('bcud' for short), in its meetingdated december 2, 1996. it was forwarded to theacademic council for approval and was approved bythe academic council with certain modifications.the proceedings were then placed before themanagement council and the action was approved. aresolution was passed to place the same before thesenate and the senate in turn approved theperspective plan with amendments which was directedto be forwarded to the state government. theperspective plan was thus in accordance with law.17. it was also stated that the first respondentapplied for permission to open a new college atkurundwad from the academic year 2002-03. theproposal was scrutinised but it was not recommendedas kurundwad was beyond the perspective plan. therecommendation was accepted by the managementcouncil. it was then stated that though the firstrespondent had not admitted students in accordancewith law as it had hastily started college byjeopardising educational career of students, inorder to protect interest of those students, theuniversity had accepted the forms submitted by thefirst respondent in pursuance of the order passedby this court.18. we have heard the learned counsel for theparties.19. the learned counsel for the petitionercontended that the action taken by the stategovernment is not in conformity with law. powerunder the first proviso to sub-section (5) ofsection 82 of the act could not have been exercisedby the state government and the said actiondeserves to be quashed and set aside.20. it is the university which has power to takean appropriate action under section 82 of the act.but if the case could not have been considered bythe university, it is not open to the stategovernment to invoke the first proviso to sub-section (5)of section 82 of the act and purportedexercise of power is bad in law.21. when in the perspective plan prepared by theuniversity, there was no provision to start a newcollege at kurundwad, it was neither open to therespondent-university nor to the state governmentto grant permission to open a college at suchplace.22. the action of the state government is malafide and has been taken in colourable exercise ofpower, inasmuch as the decision has been taken withunholy haste at the behest of respondent no. 3 mla.a request was made by him on june 17, 2002, andimmediately on the next day, i.e. on june 18, 2002,cabinet sub-committee decided to grant permission.23. there was non-application of mind on the partof the respondent-state. in past, the firstrespondent was running a college at kurundwad whichwas closed down and was taken over by thepetitioner. keeping in mind the above fact, even ifit is held that the state government had powerunder the first proviso to sub-section (5) ofsection 82 of the act, the same could not have beenexercised in the facts and circumstances of thecase.24. a relevant and germane consideration has beenignored by the state government that a similarprayer to start science college was made by thepetitioner, which was not granted.25. several incorrect statements have been madein the affidavits in reply filed on behalf of thestate government which go to show that the stategovernment had shown partiality and an attitude ofbias towards first respondent and prejudice towardsthe petitioner.26. on behalf of the state it was contended thatthe power conferred by the first proviso to sub-section(5) of section 82 is 'over-riding' and 'allpervasive'. hence, where the university does notrecommend starting of a new college, it is alwaysopen to the state government to exercise powerunder the said provision.27. there was no science college at kurundwad.representation were, therefore, made by localpeople and parents of students from kurundwad andnearby area to start such college. if, keeping inmind the above considerations, permission wasgranted to respondent no. 1, petitioner cannot raisean objection against such action.28. when a complaint was made by mla, thedepartment was asked to consider the proposal. thecabinet sub-committee was constituted for thepurpose and unanimous decision was taken to grantpermission to respondent no. 1.29. upholding the contention of the petitionerwould mean that the power can be exercised by thestate government only in consonance with theprovisions of sub-sections (1), (2) and (3) ofsection 82. such construction would make the firstproviso to sub-section (5) of section 82 nugatoryand otiose.30. on behalf of the university, it was contendedthat considering the provisions of section 82 ofthe act, and keeping in view that kurundwad was notshown in perspective plan, the application of thefirst respondent was not 'considered'. the saidaction was legal and valid. the reason weighed withthe university could not be said to be 'hyper-technical' and the action of the university waslawful and legal. the point is concluded byjudgments of this court as also by the supremecourt.31. before we deal with respective contentions,it is necessary to understand the scheme andperuse the relevant provisions of the act. section2 defines 'affiliated college' as a college whichhas been granted affiliation by the university.'recognised institution' means an institution ofhigher learning, research or specialised studies,other than an affiliated college and recognised tobe so by the university. the expression'permission' has not been defined in the act.chapter x deals with permission, affiliation andrecognition. section 81 prescribes conditions foraffiliation and recognition. section 82 lays downprocedure for permission. the said section isimportant and requires to be quoted in extenso.'82. procedure for permission. (1) the university shall prepare aperspective plan and get the sameapproved by the state council for highereducation for the educational developmentfor the location of colleges andinstitutions of higher learning in amanner ensuring equitable distribution offacilities for higher education havingdue regard, in particular, to the needsof the unserved and under-developed areaswithin the jurisdiction of theuniversity. such plan shall be preparedby the board of college and universitydevelopment and shall be placed beforethe academic council and the senatethrough the managing council and shall,if necessary, be updated every year.(2) no application for opening a newcollege or institution of higherlearning, which is not in conformity withsuch plan, shall be considered by theuniversity.(3) the managements seeking permissionto open a new college or institution ofhigher learning shall apply in theprescribed form to the registrar of theuniversity before the last day of octoberof the year preceding the year from whichthe permission is sought.(4) all such applications receivedwithin the aforesaid prescribed timelimit, shall be scrutinised by the boardof college and university development andbe forwarded to the state governmentwith the approval of the managementcouncil on or before the last day ofdecember of the year, with suchrecommendations (duly supported byrelevant reasons) as are deemedappropriate by the management council.(5) out of the application recommendedby the university, the state governmentmay grant permission to such institutionsas it may consider right and proper inits absolute discretion, taking intoaccount the state government's budgetaryresources, the suitability of themanagements seeking permission to opennew institutions and the state levelpriorities with regard to location ofinstitutions of higher learning:provided, however, that inexceptional cases and for the reasons tobe recorded in writing any applicationnot recommended by the university may beapproved by the state government forstarting a new college or institution ofhigher learning.provided further that, from theacademic year 2001-2002, such permissionfrom the state government shall becommunicated to the university on orbefore 15th july of the year, in whichthe new college is proposed to bestarted. permissions received thereaftershall be given effect by the universityonly in the subsequent academic year.'(6) no application shall be entertaineddirectly by the state government for thegrant of permission for opening newcollege or institutions of higherlearning.' whereas section 83 prescribes procedure foraffiliation, section 84 for recognition ofinstitutions, sections 86, 87 and 88 relate tocontinuation, extension and permanent affiliationand recognition. section 91 deals with withdrawalof affiliation or recognition and section 92provides for closure of college or recognisedinstitution.32. section 82 quoted above enjoins theuniversity to prepare a perspective plan foreducational development for location ofinstitutions of higher learning, having due regardto the needs of unserved and under-developed areaswithin the jurisdiction of the university. sub-section(1) of section 82, as it originally stoodread as under:'(1) the university shall prepare aperspective plan for educationaldevelopment for the location ofinstitutions of higher learning in amanner ensuring equitable distribution offacilities for higher education havingdue regard, in particular, to the needsof unserved and under-developed areaswithin the jurisdiction of theuniversity. such plan shall be preparedby the academic council and shall beplaced before the senate through themanagement council and shall be updatedevery five years.'sub-section (1) had been amended in 2000.33. neither under the unamended section nor underthe amended section, duration of perspective planis prescribed. under the un-amended sub-section(1), such perspective plan was required to beupdated every five years, while under the amendedsection, such perspective plan 'shall, ifnecessary, be updated every year'. likewise, underthe un-amended section 82 (1), the university wasrequired to prepare a perspective plan. there wasno necessity of doing anything more. under theamended section 82 (1), however, the university hasto get the same approved by the 'state council forhigher education'.34. ambit and scope of section 82 came up forconsideration before this court at more than oneoccasion. in dhananjay r. kulkarni and ors. v.state of maharashtra and ors. (1999) 2 mlj 323,permission to start a college came to be grantedin exercise of power under the (first) proviso tosub-section (5) of section 82 of the act by thestate government. when the validity thereof waschallenged in this court, it was contended by thestate authorities that it had 'wide powers' underthe said provision to grant permission to anyinstitution, irrespective of the fact whether thecase of an institution was or was not in conformitywith the perspective plan prepared by theuniversity. the precise question before this courtwas whether it was open to the state government toexercise power under the (first) proviso to sub-section(5) of section 82, despite the fact thatthe opening of the institution was beyond theperspective plan prepared by the university undersub-section (1) of section 82 of the act.35. considering the provisions of section 82 injuxtaposition of the (first) proviso to sub-section(5), the division bench observed:'it is clear from the aforesaidprovisions that the application foropening a new college or institution ofhigher learning, which is not inconformity with the perspective plan,cannot be considered by the university.it is also clear that an application forgrant of such permission cannot beentertained directly by the stategovernment. thus, such an application hasnecessarily to be routed through theuniversity - the purpose being theexamination of such an application bythose who are experts in the field.'36. according to the court, all applications madeby the management seeking permission to open newcolleges or institutions of higher learning wererequired to be scrutinised by bcud and forwarded tothe state government with the approval ofmanagement council with such recommendations asdeemed appropriate by the management council. outof the applications recommended by the university,it is open to the state government to grantpermission to such institutions as it may considerright and proper in its absolute discretion. thispower has been conferred on the state government bysub-section (5) of section 82. under the saidprovision, therefore, the state has widediscretion even to decline permission to suchcolleges or institutions of higher learning whoseapplications have been recommended by theuniversity. the (first) proviso to sub-section (5)of section 82 enables the state government togrant approval for starting a new college orinstitution of higher learning, which might nothave been recommended by the university. the saidpower, however, can be exercised by the stategovernment in exceptional cases by recordingreasons.37. according to the division bench, therefore,the power under the (first) proviso to sub-section(5) of section 82 could be exercised by the stategovernment only in those cases which have been'considered' by the university and have not beenrecommended.38. the court, therefore, concluded:'10. it is clear from the aforesaidprovisions that such applications, whichare not in conformity with theperspective plan and thus are outside thepurview of the university forconsideration, are also to be scrutinisedby the board of college and universitydevelopment and the same are alsorequired to be forwarded to the stategovernment. these applications are onlyscrutinised under sub-section (4), butare not considered, in view of the barcontained in sub-section (2) of section82. the language of the proviso, on whichstrong reliance has been placed by thelearned advocate-general, provides thatin respect of the applications notrecommended by the university the statehas powers in exceptional cases, onreasons to be recorded in writing, togrant approval for starting a newcollege. the proviso, to our minds, dealswith such applications which areconsidered by the university and then notrecommended and in respect of suchapplications, the state government hasoverriding power to grant approval inexceptional cases. it does not postulatea power to grant approval in respect ofthe applications which the university iseven debarred to consider. thisinterpretation is also in consonance withthe entire scheme of section 82,including the bar contained in sub-section(2) and sub-section (6) ofsection 82. the proviso, on whichreliance has been placed on behalf of thestate government, is proviso to sub-section(5) and not in the nature of non-obstanteclause to the entire section.when applications are filed by themanagement, section 82 contemplates threesituations.:- (1) applications not considered bythe university.(2) application considered andrecommended by the university,and,(3) applications considered and notrecommended by the university. the power of the state government underthis proviso is in respect of theapplications which are considered and notrecommended, and not in respect of theapplications which are not evenconsidered. the power of the stategovernment in respect of the applicationsrecommended by the university are foundin substantive sub-section (5). from themere fact that all applications, whichare scrutinised, including those whichare not considered, are required to besent to the state government, it is notpossible to reach the conclusion that,even in respect of such not consideredapplications, the state government haspower under the proviso to grantapproval. it is possible that, whensuch applications which are notconsidered are forwarded to the stategovernment, the state government may findthat the university was wrong in notconsidering the applications on theground that the same are not inconformity with the perspective plan and,in those circumstances, it may requireuniversity to consider such applications.39. in dhananjay kulkarni, this court held thatsince the 'application was not considered' by theuniversity on the ground that it was not inconformity with perspective plan, the power underthe (first) proviso to sub-section (5) of section82 could not have been exercised by the stategovernment. the action was, therefore, set aside.40. in shikshan samiti, gadhinglaj v. state ofmaharashtra and ors. (2001) 1 mlj 36, dhananjaykulkarni was followed. reiterating the ratio laiddown in the previous case, the court held that allthe applications filed by the managements withinthe period stipulated by section 82 (3) seekingpermission to open new colleges or institutions ofhigher learning are required to be scrutinised bybcud under sub-section (4) of section 82 and to beforwarded to the state government with the approvalof the management council with suchrecommendations as are deemed appropriate by themanagement council. the state government, out ofthose applications recommended by the university,may grant permission to such institutions as itmay consider right and proper in its absolutediscretion under sub-section (5) of section 82 ofthe act. thus, the discretion left with the stategovernment is under sub-section (5) of section 82.under the (first) proviso to sub-section (5), thestate government has power to grant approval forstarting new college or institution of higherlearning not recommended by the university inexceptional cases for the reasons to be recorded inwriting. only in such cases the state governmenthas overriding power to grant approval inexceptional cases for the reasons to be recorded inwriting.41. the division bench proceeded to state;'it may also be possible that when suchapplication are not considered by theuniversity and forwarded to the stategovernment with negative recommendations,the state government may find that theuniversity was wrong in not consideringthe applications on the ground that thesame are not in conformity with theperspective plan and, in thosecircumstances, it may require universityto consider such applications. in suchcircumstances, it is obligatory on thepart of the state government to recordreasons for taking view other than theview taken by the university. the stategovernment has to justify as to why therecommendations of the university areoverruled. this power given to the stateis to be exercised in exceptional cases.'42. finally, in state of maharashtra v. indianmedical association and ors., : air2002sc302 ,the hon'ble supreme court had an occasion toconsider dhananjay kulkarni. though the questionwhich arose in that case was slightly differentinasmuch as it related to opening of a new medicalcollege under the maharashtra university of healthsciences act, 1998, and the meaning of theexpression 'management', while summing up thediscussion, certain principles have been laid downand it was held that the perspective plan preparedby the university binds the state government quaprivate management.43. in our judgment, therefore, the question isfinally concluded. the (first) proviso to sub-section(5) of section 82 has to be read inconformity with other provisions. we are unable touphold the submissions of the state government thatpower under the (first) proviso to sub-section (5)of section 82 is 'over riding' or 'all pervasive'.to us, it is clear, that such power has to beexercised in exceptional cases and for the reasonsto be recorded in writing in those cases whereapplication has been 'considered' by the universitybut has not been 'recommended' and the stategovernment is inclined to exercise the power. it isalso clear to us that different expressions havebeen used by the legislature in section 82 of theact. whereas sub-section (2) uses the expression'consider', sub-section (4) speaks of 'scrutiny'and 'recommendation'. sub-section (5) and the(first) proviso to sub-section (5) deals withthose cases which have been considered by theuniversity and either recommended or notrecommended by it. precisely in those cases, thepower under sub-section (5) or the (first) provisoto sub-section (5) of section 82 can be exercisedby the state government.44. in the instant case, the perspective plan didnot include kurundwad. hence, when an applicationwas made by the first respondent, it could not be'considered' under sub-section (2) of section 82since the said provision debarred the universityfrom considering the application for opening of anew college or institution of higher learning whichwas not in conformity with such perspective plan.in our opinion, therefore, a stage of making or notmaking recommendation under sub-section (4) didnot reach. there is no doubt in our minds thatneither sub-section (5) of section 82 nor the(first) proviso to sub-section (5) of the saidsection got attracted. the power under the saidprovisions could be invoked when an application foropening of a new college or institution of higherlearning was in conformity with the perspectiveplan, could be considered by the university, andwas subject to recommendation, if any, by theuniversity.45. we are not impressed by the argument of thelearned counsel for the state that reading of theprovisions, as argued by the learned counsel forthe petitioner, and supported by the university,would make sub-section (5) of section 82 or the(first) proviso to sub-section (5) nugatory. on thecontrary, in our judgment, upholding of argument ofthe state government would make provisions of sub-sections(2), (4) and (6) of section 82 otiose andunworkable. harmonious interpretation of all theprovisions make the position amply clear and it isthat every application for opening of a new collegeor institution of higher learning must be inconformity with perspective plan. only suchapplications can be considered by the university.the applications which are not in conformity withsuch plan can neither be considered by theuniversity nor by the state government. suchinterpretation will make all the provisionsconsistent, meaningful and workable.46. we are also in respectful agreement with theview taken by this court in dhananjay kulkarni andin shikshan samiti, gadhinglaj, that where anapplication for opening of a new college orinstitution of higher learning has not been'considered' by the university and the stategovernment is satisfied that the university iswrong in not considering the application, it mayrequire the university to consider or re-considersuch application. the state government, however,cannot exercise the power under the first provisoto sub-section (5) of section 82 and grant thepermission.47. in the case on hand, the application foropening of a new college made by respondent no. 1was not in conformity with the perspective planunder sub-section (1) of section 82 of the act. itwas, therefore, rightly not considered by theuniversity. the case is thus covered by sub-section(2) of section 82 of the act and not by sub-section(4) of section 82 of the act. hence, the stategovernment had no jurisdiction to exercise powerunder the first proviso to sub-section (5) ofsection 82 of the act. the action of the stategovernment is, hence, without authority of law anddeserves to be set aside.48. incidentally, it may also be mentioned atthis stage that in dhananjay kulkarni, the pointwas decided by a division bench of this court. thematter was not carried further and the correctnessof the decision was never challenged. it furtherappears that presumably keeping in mind the ratiolaid down in that case, the legislature consideredit appropriate to amend the provision. theamendment, however, was made in sub-section (1) ofsection 82 by laying down that the university shallget the perspective plan 'approved by the statecouncil for higher education.' the legislature didnot think it fit delete or amend either sub-section(2) or sub-section (6) of section 82 of theact. it is, therefor,e clear that though theconcept of 'state council' has been introduced insub-section (1) of section 82, and university wasenjoined to get the perspective plan approved bysuch state council for higher education, theapplication for opening of a new college orinstitution of higher learning continued to be inconformity with such perspective plan which couldbe considered by the university. in our opinion,therefore, the action of the state government isliable to be set aside.49. since we are upholding the first contention,it is not necessary for us to express any opinion,whether the action taken by the respondent-statewas mala fide or in colourable exercise of powerat the instance of respondent no. 3-mla, who hadmade a request on june 17, 2002 and the cabinetsub-committee in unholy haste granted permission onthe next day on june 18, 2002. we are, however,constrained to observe that before making certainstatements in the affidavit filed on behalf of thestate government, the deponent ought to haveascertained factual position particularly regardingthe constitution of state council and the assertionthat no application was made for opening of sciencefaculty by the petitioner institution. we hope thatin future, responsible officers of the stategovernment would not give an impression that fulland complete disclosure of facts were not made bythem before the court. we say no more.50. for the foregoing reasons, the petitiondeserves to be allowed and is accordingly allowed.the order passed by the state government grantingpermission to respondent no. 1 for opening of arts,science and commerce college in exercise of powerunder the first proviso to sub-section (5) ofsection 82 is hereby quashed and set aside. thestate-authorities will take appropriate action forthose students who have studied in the college ofrespondent no. 1 by accommodating them either inpetitioner's college (arts and commerce stream) orto any other recognised college.51. the writ petition is accordingly allowed.rule is made absolute. in the facts andcircumstances, however, there shall be no order asto costs.

Judgment:

C.K. Thakker, C.J.

1. Rule. Mr. V.B. Naik, learned counsel appearsand waives service of rule on behalf of respondentNos. 1 to 3. Mr. R.G. Ketkar, learned counsel,appears and waives service of rule on behalf ofrespondent No. 4. Mr. V.A. Gangal, learned SpecialCounsel, appears and waives service of rule onbehalf of respondent Nos. 5 and 6. In the facts andcircumstances, the matter has been taken up forfinal hearing.

2. This petition is filed by the petitioner foran appropriate writ, direction or order, quashingand setting aside permission granted by the Stateof Maharashtra, respondent No. 6 herein, to NavaBharat Shikshan Mandal, Sangli, respondent No. 1herein, for starting a Senior College at Kurundwad,Taluka Shirol, District Kolhapur, being illegal andunlawful.

3. The case of the petitioner is that it is asociety registered under the Societies RegistrationAct, 1860. Similarly, first respondent is also aSociety conducting Junior College at Sangli. Priorto 1985, first respondent was conducting a Collegeat Sangli and also at Kurundwad. The ManagingCommittee of the first respondent in its meetingdated February 15, 1985, passed a resolution toclose down Arts and Commerce faculties of itsCollege at Kurundwad. Accordingly, it informedrespondent No. 4, vide its letter dated March11, 1985. The first respondent also informed theEducation Department of the State Government on thesame day. Orders terminating the services of theemployees were issued. The petitioner-institutionwanted to take over the above College which wasbeing closed down by the first respondent. A writpetition No. 2212 of 1985 was filed in this Courtby the Maharashtra Federation of University andCollege Teachers Union, who were conductingeducational activities and opposed to closing downof the college. On July 19, 1985, this Courtallowed the writ petition to be withdrawn, sincethe State Government was inclined to grantpermission to start Arts and Commerce College atKurundwad to the petitioner-institution.Accordingly, the petitioner was permitted to startthe College from the Academic Year 1985-86 atKurundwad, in pursuance of an application datedJune 8, 1985. A copy of the permission granted bythe State is annexed to the petition at Exhibit-C.According to the petitioner, thus the Arts andCommerce College which was being run by respondentNo. 1 was taken over by the petitioner.

4. It is averred in the petition that, all of asudden, the first respondent decided to start acollege at Kurundwad once again and submitted aproposal to respondent No. 4-University, seekingpermission to start a College. An application wasmade to the respondent University under Sub-section(3) of Section 82 of the Maharashtra UniversitiesAct, 1994 (hereinafter referred to as 'the Act').Since the petitioner did not have a copy of theapplication, it was not in a position to stateanything more. According to the petitioner, therespondent-University was pleased to refusepermission to the first respondent to start acollege at Kurundwad on the ground that in the'perspective plan' prepared by the fourthrespondent-University, no provision had been madefor starting a College at Kurundwad. As per theperspective plan, new Colleges were proposed atthree places, namely (i) Udgaon, (ii) Abdullat, and(iii) Shirol. The fourth respondent-University,therefore, rejected the application of the firstrespondent and refused to recommend opening ofcollege at Kurundwad.

5. The petitioner, however, had come to knowthat the first respondent had moved the Governmentto grant necessary permission. It, therefore,submitted objections with the State Governmentagainst grant of such permission to the firstrespondent for starting a College at Kurundwad. Thepetitioner, however, was shocked to known from thelocal newspapers that the State Government hadgranted permission to the first respondent to starta Senior College for Arts, Commerce and Science atKurundwad. The said action was contrary to law andinconsistent with the provisions of the Act. Itwas also against the decisions rendered by thisCourt. The petitioner, therefore, has approachedthis Court by filing the present petition.

6. Notice were issued, pursuant to which therespondents appeared. Affidavits and counter-affidavits have been filed. We have issued Rule anddecided to hear the matter finally.

7. In the counter affidavit, respondent Nos. 1and 2 submitted that the State Government has powerunder the first proviso to Sub-section (5) ofSection 82 of the Act to grant such permission andin exercise of the said power, permission wasgranted and the petitioner cannot make grievanceagainst such action. It was also submitted that thecontention of the petitioner that permission toopen a College to respondent No. 1 would result inunhealthy competition was not factually correct andlegally well founded. According to respondent Nos. 1and 2, the University was wrong in rejecting theapplication of the first respondent on the groundthat in the perspective plan, no provision had beenmade for starting a College at Kurundwad. In anycase, it was in exercise of overriding power underthe first proviso to Sub-section (5) of Section 82of the Act that the State Government has grantedthe permission. Such an action is neither illegalnor unlawful. Moreover, the first respondent-institution is running two Junior Colleges, one atKurundwad and the other at Sangli. It is a reputedinstitution and has done a great deal of work inthe field of education. As the application of thefirst respondent was in conformity with the Act andthe Rules and the University had wrongly refused togranted permission, the State Government wascompetent to exercise the power. It was in theabsolute discretion of the State Government togrant permission. Again, the petitioner did nothave Science faculty at all. It was, therefore, animportant circumstance which weighed with the StateGovernment in granting the permission.

8. On behalf of the State Government, fouraffidavits have been filed one after the other.Initially, in an affidavit dated August 29, 2002.it was stated that approval could be granted by theState Government for opening a new College orinstitute of higher learning to any proposal whichmight not have been recommended by the University.Such power can be exercised by the State under thefirst proviso to Sub-section (5) of Section 82 ofthe Act. According to the deponent, the Universityhad not followed the provisions of the Act, andhence the power was exercised by the StateGovernment.

9. In an order, dated September 5, 2002, aDivision Bench of this court observed that duringthe course of hearing, when a question was put tothe learned Assistant Government Pleader as to onwhat basis the permission was granted by the StateGovernment in favour of respondent Nos. 1 and 2 toopen and run a College, a prayer was made foradjournment to file additional affidavit to placethe reasons before the Court. The Court showed itsdispleasure for non-disclosure of reasons in theearlier affidavit in reply and for seeking furthertime. Time was, however, granted to file additionalaffidavit, subject to deposit of Rs. 3,000/-towards costs. It appears that in the light of theabove order, further affidavit was filed onSeptember 12, 2002, wherein it was stated that theCabinet Sub-Committee considered the proposal ofrespondent No. 1 to start a Senior College atKurundwad.

10. The said Committee comprised of the followingmembers;

1. The Hon'ble Chief Minister.

2. The Hon'ble Deputy Chief Minister.

3. The Hon'ble Minister for Higher &Technical; Education, and

4. The Hon'ble Minister of State forHigher & Technical Education.

The Cabinet Sub-Committee considered the proposalof respondent No. 1 for permission to start a SeniorCollege in Arts, Science and Commerce streams. Ittook into account the fact that the University hadnot recommended the proposal of respondent No. 1 Aletter/representation by S.R. Patil, sitting MLA,(respondent No. 3) was also placed before theCabinet Sub-Committee wherein the MLA had madegrievance that the proposal of the first respondentwas not considered by the University favourably onhyper-technical grounds and thus there was non-co-operationby the University. Considering all thecircumstances, 'a proper and conscious decision wastaken by the State Government for grantingpermission to the respondent No. 1 institution tostart a senior college'.

11. Third affidavit was filed on behalf of theState on October 3, 2002, by the Under Secretaryto the Government, Higher and Technical EducationDepartment. In paragraph 3, it was stated:

'It may be pointed out that at thisstage that any perspective plan preparedby the university will become final onlywhen the same is approved by the StateCouncil for Higher Education. Till thatis done, the plan remains a draft plan.It may be stated here that till today,the State Council for Higher Educationas contemplated under Sub-section (1) ofSection 82 is not constituted. As such,there is no final perspective plan of anyuniversity which can be stated to havecome into force.'

It was also stated that the decision to grantpermission to respondent No. 1 was taken by theCabinet Sub-Committee. 'The said decision is takenbona fide and the Sub-Committee also has recordedthe reasons for granting permission.' According tothe deponent, there was no science facultyCollege in Kurundwad or surrounding villages andtowns and Kurundwad would be a convenient place assufficient number of bus routes and transportfacilities were available. It was also assertedby the deponent that there was no demand of openinga Science College either from the petitioner orany other College, except respondent No. 1. Thepetitioner's college did not have a capacity toaccommodate all other students in its institution,which resulted in several students being renderedwithout proper and reasonable access to nearby areafor higher education. There was a consistent demandfrom local people and parents and students but theShivaji University repeatedly rejected the prayer'for the reasons best known to it'. It wassubmitted that so long as the perspective plan wasnot approved by the State Council, there was nofinality as to the draft plan and Cabinet Sub-Committeehad every right to exercise power underSection 82 of the Act. The petitioner, according tothe deponent, was nothing but 'an abuse of theprocess of law' and it was not a fit case toexercise power under Article 226 of theConstitution in favour of the petitioner.

12. A rejoinder to the above affidavit was filedby the petitioner stating therein that it was anincorrect statement in the affidavit in reply thatthe State committee was not constituted.'Maharashtra State Council for Higher Education'was constituted by a notification dated 16th April,1999. It was also stated that the petitionercollege had applied for starting a Science facultyfrom June, 2000. The University, however, did notgrant the permission as it was contrary to theperspective plan. The deponent denied that it didnot have capacity to accommodate all the students.The petitioner college could accommodate all thestudents enrolled with the first respondent collegeand was 'more than ready and willing to accommodatethem'.

13. The Under Secretary, therefore, filed onemore affidavit on October 23, 2002, stating thereinthat it was true that a Notification under Sub-Section(1) of Section 56 of the Act was issued onApril 16, 1999, nominating 20 members but theperiod of nominated members of the Council was tocommence from the date of first meeting of theCouncil. However, no meeting had been held andthe Cabinet on December 6, 2001, decided todissolve the Council and to substitute an newCouncil. Another statement had also been dealt withthat the petitioner institution had applied forpermission to start Science faculty in 2000. Butsince the State Government had taken a decision togrant permission only to professional courses onpermanently 'no-grant basis', permission was notgranted to traditional courses like Arts, Scienceand Commerce.

14. A counter-affidavit is also filed by theMinister for Higher and Technical Education, whowas one of the members of the Cabinet Sub-Committee.In the said affidavit, he stated that onJune 17, 2002, respondent No. 3 MLA and Chairman ofShri Datta Sahakari Sakhar Karkhana Limited, oneof the most important and leading sugar factoriesin the nation conducting several educationalinstitutions personally met him (the Minister)making grievance that the University wasdeliberately not recommending the proposal of thefirst respondent-institution, though there was aneed for a Senior College in Kurundwad. The thirdrespondent also told the Minister that the firstrespondent was capable of conducting a College ofArts, Science and Commerce, having allinfrastructure, finance, resources etc. TheMinister, therefore, asked the departmental DeputySecretary to examine the proposal of respondentNo. 3 considering objections lodged by petitioner-institution. The Cabinet Sub-Committee then met onJune 18, 2002. The proposal of the first respondentwas considered as also representation submitted bythe petitioner which appeared to be genuine innature and a decision was taken to grantpermission to respondent No. 1 on 'permanently nogrant basis'.

15. The Minister then started;

'....it is true that we have not givenseparate reasons fro each and everyinstitution for which, the Universitieshad not recommended but the Cabinet Sub-Committee has granted the permission.'

The only reason on which permission was grantedwas local needs and demands of students.

16. An affidavit in reply is filed by respondent-University wherein it was expressly stated that theCommittee prepared perspective plan which wasplaced before the Board of College and UniversityDevelopment ('BCUD' for short), in its meetingdated December 2, 1996. It was forwarded to theAcademic Council for approval and was approved bythe Academic Council with certain modifications.The proceedings were then placed before theManagement Council and the action was approved. AResolution was passed to place the same before theSenate and the Senate in turn approved theperspective plan with amendments which was directedto be forwarded to the State Government. Theperspective plan was thus in accordance with law.

17. It was also stated that the first respondentapplied for permission to open a new College atKurundwad from the Academic Year 2002-03. Theproposal was scrutinised but it was not recommendedas Kurundwad was beyond the perspective plan. Therecommendation was accepted by the ManagementCouncil. It was then stated that though the firstrespondent had not admitted students in accordancewith law as it had hastily started College byjeopardising educational career of students, inorder to protect interest of those students, theUniversity had accepted the forms submitted by thefirst respondent in pursuance of the order passedby this Court.

18. We have heard the learned counsel for theparties.

19. The learned counsel for the petitionercontended that the action taken by the StateGovernment is not in conformity with law. Powerunder the first proviso to Sub-section (5) ofSection 82 of the Act could not have been exercisedby the State Government and the said actiondeserves to be quashed and set aside.

20. It is the University which has power to takean appropriate action under Section 82 of the Act.But if the case could not have been considered bythe University, it is not open to the StateGovernment to invoke the first proviso to Sub-section (5)of Section 82 of the Act and purportedexercise of power is bad in law.

21. When in the perspective plan prepared by theUniversity, there was no provision to start a newCollege at Kurundwad, it was neither open to therespondent-University nor to the State Governmentto grant permission to open a college at suchplace.

22. The action of the State Government is malafide and has been taken in colourable exercise ofpower, inasmuch as the decision has been taken withunholy haste at the behest of respondent No. 3 MLA.A request was made by him on June 17, 2002, andimmediately on the next day, i.e. on June 18, 2002,Cabinet Sub-Committee decided to grant permission.

23. There was non-application of mind on the partof the respondent-State. In past, the firstrespondent was running a College at Kurundwad whichwas closed down and was taken over by thepetitioner. Keeping in mind the above fact, even ifit is held that the State Government had powerunder the first proviso to Sub-section (5) ofSection 82 of the Act, the same could not have beenexercised in the facts and circumstances of thecase.

24. A relevant and germane consideration has beenignored by the State Government that a similarprayer to start Science College was made by thepetitioner, which was not granted.

25. Several incorrect statements have been madein the affidavits in reply filed on behalf of theState Government which go to show that the StateGovernment had shown partiality and an attitude ofbias towards first respondent and prejudice towardsthe petitioner.

26. On behalf of the State it was contended thatthe power conferred by the first proviso to Sub-Section(5) of Section 82 is 'over-riding' and 'allpervasive'. Hence, where the University does notrecommend starting of a new College, it is alwaysopen to the State Government to exercise powerunder the said provision.

27. There was no Science College at Kurundwad.Representation were, therefore, made by localpeople and parents of students from Kurundwad andnearby area to start such college. If, keeping inmind the above considerations, permission wasgranted to respondent No. 1, petitioner cannot raisean objection against such action.

28. When a complaint was made by MLA, theDepartment was asked to consider the proposal. TheCabinet Sub-Committee was constituted for thepurpose and unanimous decision was taken to grantpermission to respondent No. 1.

29. Upholding the contention of the petitionerwould mean that the power can be exercised by theState Government only in consonance with theprovisions of Sub-sections (1), (2) and (3) ofSection 82. Such construction would make the firstproviso to Sub-section (5) of Section 82 nugatoryand otiose.

30. On behalf of the University, it was contendedthat considering the provisions of Section 82 ofthe Act, and keeping in view that Kurundwad was notshown in perspective plan, the application of thefirst respondent was not 'considered'. The saidaction was legal and valid. The reason weighed withthe University could not be said to be 'hyper-technical' and the action of the University waslawful and legal. The point is concluded byjudgments of this Court as also by the SupremeCourt.

31. Before we deal with respective contentions,it is necessary to understand the scheme andperuse the relevant provisions of the Act. Section2 defines 'Affiliated college' as a college whichhas been granted affiliation by the University.'Recognised institution' means an institution ofhigher learning, research or specialised studies,other than an affiliated college and recognised tobe so by the University. The expression'permission' has not been defined in the Act.Chapter X deals with permission, affiliation andrecognition. Section 81 prescribes conditions foraffiliation and recognition. Section 82 lays downprocedure for permission. The said section isimportant and requires to be quoted in extenso.

'82. Procedure for permission.

(1) The university shall prepare aperspective plan and get the sameapproved by the State Council for highereducation for the educational developmentfor the location of colleges andinstitutions of higher learning in amanner ensuring equitable distribution offacilities for higher education havingdue regard, in particular, to the needsof the unserved and under-developed areaswithin the jurisdiction of theUniversity. Such plan shall be preparedby the Board of College and UniversityDevelopment and shall be placed beforethe Academic Council and the Senatethrough the Managing Council and shall,if necessary, be updated every year.

(2) No application for opening a newcollege or institution of higherlearning, which is not in conformity withsuch plan, shall be considered by theuniversity.

(3) The managements seeking permissionto open a new college or institution ofhigher learning shall apply in theprescribed form to the Registrar of theuniversity before the last day of Octoberof the year preceding the year from whichthe permission is sought.

(4) All such applications receivedwithin the aforesaid prescribed timelimit, shall be scrutinised by the Boardof College and University Development andbe forwarded to the State Governmentwith the approval of the ManagementCouncil on or before the last day ofDecember of the year, with suchrecommendations (duly supported byrelevant reasons) as are deemedappropriate by the Management Council.

(5) Out of the application recommendedby the university, the State Governmentmay grant permission to such institutionsas it may consider right and proper inits absolute discretion, taking intoaccount the State Government's budgetaryresources, the suitability of themanagements seeking permission to opennew institutions and the State levelpriorities with regard to location ofinstitutions of higher learning:

Provided, however, that inexceptional cases and for the reasons tobe recorded in writing any applicationnot recommended by the university may beapproved by the State Government forstarting a new college or institution ofhigher learning.

Provided further that, from theacademic year 2001-2002, such permissionfrom the State Government shall becommunicated to the university on orbefore 15th July of the year, in whichthe new college is proposed to bestarted. Permissions received thereaftershall be given effect by the universityonly in the subsequent academic year.'

(6) No application shall be entertaineddirectly by the State Government for thegrant of permission for opening newcollege or institutions of higherlearning.'

Whereas Section 83 prescribes procedure foraffiliation, Section 84 for recognition ofinstitutions, Sections 86, 87 and 88 relate tocontinuation, extension and permanent affiliationand recognition. Section 91 deals with withdrawalof affiliation or recognition and Section 92provides for closure of college or recognisedinstitution.

32. Section 82 quoted above enjoins theUniversity to prepare a perspective plan foreducational development for location ofinstitutions of higher learning, having due regardto the needs of unserved and under-developed areaswithin the jurisdiction of the University. Sub-section(1) of Section 82, as it originally stoodread as under:

'(1) The university shall prepare aperspective Plan for educationaldevelopment for the location ofinstitutions of higher learning in amanner ensuring equitable distribution offacilities for Higher Education havingdue regard, in particular, to the needsof unserved and under-developed areaswithin the jurisdiction of theuniversity. Such plan shall be preparedby the Academic Council and shall beplaced before the Senate through theManagement Council and shall be updatedevery five years.'

Sub-section (1) had been amended in 2000.

33. Neither under the unamended section nor underthe amended section, duration of perspective planis prescribed. Under the un-amended Sub-section(1), such perspective plan was required to beupdated every five years, while under the amendedsection, such perspective plan 'shall, ifnecessary, be updated every year'. Likewise, underthe un-amended Section 82 (1), the University wasrequired to prepare a perspective plan. There wasno necessity of doing anything more. Under theamended Section 82 (1), however, the University hasto get the same approved by the 'State Council forHigher Education'.

34. Ambit and scope of Section 82 came up forconsideration before this Court at more than oneoccasion. In Dhananjay R. Kulkarni and Ors. v.State of Maharashtra and Ors. (1999) 2 MLJ 323,permission to start a college came to be grantedin exercise of power under the (first) proviso toSub-section (5) of Section 82 of the Act by theState Government. When the validity thereof waschallenged in this Court, it was contended by theState Authorities that it had 'wide powers' underthe said provision to grant permission to anyinstitution, irrespective of the fact whether thecase of an institution was or was not in conformitywith the perspective plan prepared by theUniversity. The precise question before this Courtwas whether it was open to the State Government toexercise power under the (first) proviso to Sub-section(5) of Section 82, despite the fact thatthe opening of the institution was beyond theperspective plan prepared by the University underSub-section (1) of Section 82 of the Act.

35. Considering the provisions of Section 82 injuxtaposition of the (first) proviso to Sub-section(5), the Division Bench observed:

'It is clear from the aforesaidprovisions that the application foropening a new College or institution ofhigher learning, which is not inconformity with the Perspective Plan,cannot be considered by the University.It is also clear that an application forgrant of such permission cannot beentertained directly by the StateGovernment. Thus, such an application hasnecessarily to be routed through theUniversity - the purpose being theexamination of such an application bythose who are experts in the field.'

36. According to the Court, all applications madeby the management seeking permission to open newColleges or institutions of higher learning wererequired to be scrutinised by BCUD and forwarded tothe State Government with the approval ofManagement Council with such recommendations asdeemed appropriate by the Management Council. Outof the applications recommended by the University,it is open to the State Government to grantpermission to such institutions as it may considerright and proper in its absolute discretion. Thispower has been conferred on the State Government bySub-section (5) of Section 82. Under the saidprovision, therefore, the State has widediscretion even to decline permission to suchColleges or institutions of higher learning whoseapplications have been recommended by theUniversity. The (first) proviso to Sub-section (5)of Section 82 enables the State Government togrant approval for starting a new College orinstitution of higher learning, which might nothave been recommended by the University. The saidpower, however, can be exercised by the StateGovernment in exceptional cases by recordingreasons.

37. According to the Division Bench, therefore,the power under the (first) proviso to Sub-section(5) of Section 82 could be exercised by the StateGovernment only in those cases which have been'considered' by the University and have not beenrecommended.

38. The Court, therefore, concluded:

'10. It is clear from the aforesaidprovisions that such applications, whichare not in conformity with theperspective plan and thus are outside thepurview of the University forconsideration, are also to be scrutinisedby the Board of College and UniversityDevelopment and the same are alsorequired to be forwarded to the StateGovernment. These applications are onlyscrutinised under Sub-section (4), butare not considered, in view of the barcontained in Sub-section (2) of Section82. The language of the proviso, on whichstrong reliance has been placed by thelearned Advocate-General, provides thatin respect of the applications notrecommended by the University the Statehas powers in exceptional cases, onreasons to be recorded in writing, togrant approval for starting a newCollege. The proviso, to our minds, dealswith such applications which areconsidered by the University and then notrecommended and in respect of suchapplications, the State Government hasoverriding power to grant approval inexceptional cases. It does not postulatea power to grant approval in respect ofthe applications which the University iseven debarred to consider. Thisinterpretation is also in consonance withthe entire scheme of Section 82,including the bar contained in Sub-section(2) and Sub-section (6) ofSection 82. The proviso, on whichreliance has been placed on behalf of theState Government, is proviso to Sub-section(5) and not in the nature of non-obstanteclause to the entire section.

When applications are filed by themanagement, Section 82 contemplates threesituations.:-

(1) Applications not considered bythe University.

(2) Application considered andrecommended by the University,and,

(3) Applications considered and notrecommended by the University.

The power of the State Government underthis proviso is in respect of theapplications which are considered and notrecommended, and not in respect of theapplications which are not evenconsidered. The power of the Stategovernment in respect of the applicationsrecommended by the University are foundin substantive Sub-section (5). From themere fact that all applications, whichare scrutinised, including those whichare not considered, are required to besent to the State Government, it is notpossible to reach the conclusion that,even in respect of such not consideredapplications, the State Government haspower under the proviso to grantapproval. It is possible that, whensuch applications which are notconsidered are forwarded to the StateGovernment, the State Government may findthat the University was wrong in notconsidering the applications on theground that the same are not inconformity with the Perspective Plan and,in those circumstances, it may requireUniversity to consider such applications.

39. In Dhananjay Kulkarni, this Court held thatsince the 'application was not considered' by theUniversity on the ground that it was not inconformity with perspective plan, the power underthe (first) proviso to Sub-section (5) of Section82 could not have been exercised by the StateGovernment. The action was, therefore, set aside.

40. In Shikshan Samiti, Gadhinglaj v. State ofMaharashtra and Ors. (2001) 1 MLJ 36, DhananjayKulkarni was followed. Reiterating the ratio laiddown in the previous case, the Court held that allthe applications filed by the managements withinthe period stipulated by Section 82 (3) seekingpermission to open new colleges or institutions ofhigher learning are required to be scrutinised byBCUD under Sub-section (4) of Section 82 and to beforwarded to the State Government with the approvalof the Management Council with suchrecommendations as are deemed appropriate by theManagement Council. The State Government, out ofthose applications recommended by the University,may grant permission to such institutions as itmay consider right and proper in its absolutediscretion under Sub-section (5) of Section 82 ofthe Act. Thus, the discretion left with the StateGovernment is under Sub-section (5) of Section 82.Under the (first) proviso to Sub-section (5), theState Government has power to grant approval forstarting new College or institution of higherlearning not recommended by the University inexceptional cases for the reasons to be recorded inwriting. Only in such cases the State Governmenthas overriding power to grant approval inexceptional cases for the reasons to be recorded inwriting.

41. The Division Bench proceeded to state;

'It may also be possible that when suchapplication are not considered by theUniversity and forwarded to the StateGovernment with negative recommendations,the State Government may find that theUniversity was wrong in not consideringthe applications on the ground that thesame are not in conformity with thePerspective Plan and, in thosecircumstances, it may require Universityto consider such applications. In suchcircumstances, it is obligatory on thepart of the State Government to recordreasons for taking view other than theview taken by the University. The StateGovernment has to justify as to why therecommendations of the University areoverruled. This power given to the Stateis to be exercised in exceptional cases.'

42. Finally, in State of Maharashtra v. IndianMedical Association and Ors., : AIR2002SC302 ,the Hon'ble Supreme Court had an occasion toconsider Dhananjay Kulkarni. Though the questionwhich arose in that case was slightly differentinasmuch as it related to opening of a new medicalcollege under the Maharashtra University of HealthSciences Act, 1998, and the meaning of theexpression 'management', while summing up thediscussion, certain principles have been laid downand it was held that the perspective plan preparedby the University binds the State Government quaprivate management.

43. In our judgment, therefore, the question isfinally concluded. The (first) Proviso to Sub-section(5) of Section 82 has to be read inconformity with other provisions. We are unable touphold the submissions of the State Government thatpower under the (first) proviso to Sub-section (5)of Section 82 is 'over riding' or 'all pervasive'.To us, it is clear, that such power has to beexercised in exceptional cases and for the reasonsto be recorded in writing in those cases whereapplication has been 'considered' by the Universitybut has not been 'recommended' and the StateGovernment is inclined to exercise the power. It isalso clear to us that different expressions havebeen used by the Legislature in Section 82 of theAct. Whereas Sub-section (2) uses the expression'consider', Sub-section (4) speaks of 'scrutiny'and 'recommendation'. Sub-section (5) and the(first) proviso to Sub-section (5) deals withthose cases which have been considered by theUniversity and either recommended or notrecommended by it. Precisely in those cases, thepower under Sub-section (5) or the (first) provisoto Sub-section (5) of Section 82 can be exercisedby the State Government.

44. In the instant case, the perspective plan didnot include Kurundwad. Hence, when an applicationwas made by the first respondent, it could not be'considered' under Sub-section (2) of Section 82since the said provision debarred the Universityfrom considering the application for opening of anew College or institution of higher learning whichwas not in conformity with such perspective plan.In our opinion, therefore, a stage of making or notmaking recommendation under Sub-section (4) didnot reach. There is no doubt in our minds thatneither Sub-section (5) of Section 82 nor the(first) proviso to Sub-section (5) of the saidsection got attracted. The power under the saidprovisions could be invoked when an application foropening of a new college or institution of higherlearning was in conformity with the perspectiveplan, could be considered by the University, andwas subject to recommendation, if any, by theUniversity.

45. We are not impressed by the argument of thelearned Counsel for the State that reading of theprovisions, as argued by the learned counsel forthe petitioner, and supported by the University,would make Sub-section (5) of Section 82 or the(first) proviso to Sub-section (5) nugatory. On thecontrary, in our judgment, upholding of argument ofthe State Government would make provisions of Sub-sections(2), (4) and (6) of Section 82 otiose andunworkable. Harmonious interpretation of all theprovisions make the position amply clear and it isthat every application for opening of a new Collegeor institution of higher learning must be inconformity with perspective plan. Only suchapplications can be considered by the University.The applications which are not in conformity withsuch plan can neither be considered by theUniversity nor by the State Government. Suchinterpretation will make all the provisionsconsistent, meaningful and workable.

46. We are also in respectful agreement with theview taken by this Court in Dhananjay Kulkarni andin Shikshan Samiti, Gadhinglaj, that where anapplication for opening of a new college orinstitution of higher learning has not been'considered' by the University and the StateGovernment is satisfied that the University iswrong in not considering the application, it mayrequire the University to consider or re-considersuch application. The State Government, however,cannot exercise the power under the first provisoto Sub-section (5) of Section 82 and grant thepermission.

47. In the case on hand, the application foropening of a new College made by respondent No. 1was not in conformity with the perspective planunder Sub-section (1) of Section 82 of the Act. Itwas, therefore, rightly not considered by theUniversity. The case is thus covered by Sub-section(2) of Section 82 of the Act and not by Sub-section(4) of Section 82 of the Act. Hence, the StateGovernment had no jurisdiction to exercise powerunder the first proviso to Sub-section (5) ofSection 82 of the Act. The action of the StateGovernment is, hence, without authority of law anddeserves to be set aside.

48. Incidentally, it may also be mentioned atthis stage that in Dhananjay Kulkarni, the pointwas decided by a Division Bench of this Court. Thematter was not carried further and the correctnessof the decision was never challenged. It furtherappears that presumably keeping in mind the ratiolaid down in that case, the Legislature consideredit appropriate to amend the provision. Theamendment, however, was made in Sub-section (1) ofSection 82 by laying down that the University shallget the perspective plan 'approved by the StateCouncil for Higher Education.' The Legislature didnot think it fit delete or amend either Sub-section(2) or Sub-section (6) of Section 82 of theAct. It is, therefor,e clear that though theconcept of 'State Council' has been introduced inSub-section (1) of Section 82, and University wasenjoined to get the perspective plan approved bysuch State Council for Higher Education, theapplication for opening of a new College orinstitution of higher learning continued to be inconformity with such perspective plan which couldbe considered by the University. In our opinion,therefore, the action of the State Government isliable to be set aside.

49. Since we are upholding the first contention,it is not necessary for us to express any opinion,whether the action taken by the respondent-Statewas mala fide or in colourable exercise of powerat the instance of respondent No. 3-MLA, who hadmade a request on June 17, 2002 and the CabinetSub-Committee in unholy haste granted permission onthe next day on June 18, 2002. We are, however,constrained to observe that before making certainstatements in the affidavit filed on behalf of theState Government, the deponent ought to haveascertained factual position particularly regardingthe constitution of State Council and the assertionthat no application was made for opening of Sciencefaculty by the petitioner institution. We hope thatin future, responsible Officers of the StateGovernment would not give an impression that fulland complete disclosure of facts were not made bythem before the Court. We say no more.

50. For the foregoing reasons, the petitiondeserves to be allowed and is accordingly allowed.The order passed by the State Government grantingpermission to respondent No. 1 for opening of Arts,Science and Commerce College in exercise of powerunder the first proviso to Sub-section (5) ofSection 82 is hereby quashed and set aside. TheState-authorities will take appropriate action forthose students who have studied in the college ofrespondent No. 1 by accommodating them either inpetitioner's college (Arts and Commerce stream) orto any other recognised College.

51. The writ petition is accordingly allowed.Rule is made absolute. In the facts andcircumstances, however, there shall be no order asto costs.