1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CRIMINAL JURISDICTION WRIT PETITION NO.: 5850 OF 2006 Dr. Babasaheb Ambedkar Shikshan Prasarak Mandal, Takli (Waghdari, Tal. Udgir, Dist. Latur, through its President, Shri Rajendra S/o Kishan Pawar, Age: 55 years, Occ.: Agri. and Social Work, R/o at post Takli (Waghdari), Tal. Udgir, Dist. Latur. ... PETITIONER. VERSUS 1. The State of Maharashtra Through its Principal Secretary, Social Welfare Department, Mantralaya Mumbai-32. 2. The Dy. Secretary, N.J. & N.T. Social Welfare Department, Mantralaya Mumbai-32. 3. The District Special Social Welfare Officer, Latur, Dist. Latur. [Copy for all Respondents to be served on Govt. Pleader, High Court of Judicature of Bombay, Bench at Aurangabad). ... RESPONDENTS. *** Mr. S. V. Chillarge, Advocate for the Petitioner. Smt. V. A. Shinde, A.G.P. for the Respondent/ State Authorities. *** CORAM: S. B. DESHMUKH & S. P. DAVARE, JJ. DATED:- 9th NOVEMBER, 2009. 2 ORAL ORDER [Per Deshmukh, J.] 1. Heard. Rule. Rule is made returnable forthwith, and heard finally with the consent of parties. 2. Petitioner is an educational institution registered under the provisions of Bombay Public Trust Act, 1950 [the Act of 1950, for short] and a society registered under the provisions of the Societies Registration Act, 1860. The petitioner claims that petitioner is running primary Ashram school for the children belonging to V.J. and N.T. category in Latur district. The petitioner had filed writ petition No. 988 of 1999 before this Court, seeking direction against the State and its authorities, for consideration of the proposal submitted by the Petitioner for opining up primary Ashram schools. This Court, after hearing the parties, passed an order on 5th of March, 1999. This order is passed by the learned Division Bench of this Court, is on record, page 16. The State and its authorities were directed to consider the application filed by the Petitioner on its own merits and inform the decision thereof to the Petitioner within three months from that date. Learned counsel Mr. Chillarge for the Petitioner also invites our attention to another order passed by Division Bench of this Court Annexure-D, page 3 18. This order is passed in Writ Petition No.4631 of 1999. This order was common order passed in the said Writ Petition and Civil Application NO;4360 of 2001. It reflects from this order that the main proceeding i.e. the writ petition was dismissed in default. Copy of the writ petition No.4631 of 1999 is on record. Copy of this writ petition is on record Exhibit-B, page 18. This writ petition was filed by the present petitioner, State and its authorities were respondents. Prayer made in this writ petition was for issuance of writ of mandamus directing the Respondent authorities to allot Ashram School to the Petitioner at Takli (Waghdari, Tal. Udgir, Dist. Latur). This petition seems to had been filed on 18th August, 1999. Civil Application No. 4360 of 2001 was also filed by the present Petitioner. Counsel appearing for the petitioner is unable to inform us as to what were the reliefs prayed in this civil application. However, from page 21 order, it appears that common order was passed in Writ Petition No.4631 of 1999 with Civil Application NO.4360 of 2001. This Court had observed that the Civil Application became infructuous in view of the dismissal of the petition. This was the order passed by learned Division Bench on 17th November, 2003. 4 3. Mr. Chillarge for the Petitioner points out to us, reply affidavit filed in Writ Petition No.4631 of 1999 (page 22). This affidavit seems to had been sworn in by one Mr. Dattatrao S/o Dagdubarao Deshmukh, Special District Social Welfare Officer, Latur. From this reply affidavit, Mr. Chillarge, points out para 2. We chose to reproduce the said paragraph in its entirety. "2. It is submitted that the Government had granted permission to Late Vasantrao Naik, Ashram School, Takli Vagdari, Tq. Udgir, District Latur for the year 1996-97 as there was proper proposal and the decision of the State Government is proper in this respect." 4. According to Mr. Chillarge, this is sworn statement of the officer concerned saying that for the year 1996-97 there was proposal filed on behalf of the Petitioner for granting permission to Late Vasantrao Naik Ashram School, Takli Vagdari, Tq. Udgir, District Latur for the year 1996-97 and Government had accorded permission. In support of this para 2, Mr. Chillarge, learned counsel, points out a 5 communication page 28. This communication is under the signature of Smt. V. A. Parkar, Deputy Secretary, State of Maharashtra. Date of this communication, Exhibit-C, page 28, is 3rd May, 2001. This communication makes a reference of Writ Petition NO.4631 of 1999. Letter dated 1st April, 2001 addressed by the Petitioner is also referred in this communication Exhibit-C. The text or substance of this communication is important. It has been mentioned in this communication that permission to the Ashram School, has been granted and accordingly informed to the petitioner earlier. In view of this, further it is communicated to the Petitioner, by this communication, that his prayer for grant- in-aid for running the Ashram School is approved/ accepted. Mr. Chillarge, learned counsel heavily relied on this communication, read with para 2 of the reply affidavit. In this view of the matter, Mr. Chillarge seeks writ against the State. Prayers made by the Petitioner in present writ petition are material, which we are reproducing herein below: "B) Record and proceeding may kindly be called for. C) The respondents may be directed to release grant in aid to the Primary Ashram Schools of the 6 Petitioner, from 2001 onwards as on today. By issuing necessary writ, order or direction, as the case may be. D) The respondents may be directed to give approval and continue the permission of their Primary Ashram Schools by issuing necessary writs, order or direction as the case may be." 5. In response to the petition, on behalf of the State, reply affidavit has been filed. The copy of the reply affidavit is at page 41 of the compilation. This reply affidavit has been sworn in by Mr. Suresh Babrao Kamble, working as Special District Social Welfare Officer, Latur. This affidavit has been sworn in by the officer concerned on 19th June, 2009. Para 3 of this affidavit is material. In this paragraph, claim of the petitioner that permission has been granted to run Ashram School i.e. Late Vasantrao Naik Primary Ashram School Takli Waghdari is denied. In para 4, statement is made that the letter dated 3rd May, 2001 is forged and fabricated and the deponent has directed to the Petitioner to produce the above said original letter vide Government letter dated 10th July, 2008, however, petitioner failed to do so till the date of filing of this affidavit. Copy of the said communication dated 10th July, 7 2008 addressed to the Petitioner is annexed with this affidavit Exhibit R-1. In para 4, it has been stated that affidavit filed in response to Writ Petition No.4631 of 1999, at the end of it, seeks rejection of the writ petition. Thus, it is tried to explain the affidavit filed in Writ Petition No. 4631 of 1999. In para 5 of the reply affidavit, it has been stated that Government has not issued any letter on 3rd May, 2001 in favour of the Petitioner informing the petitioner, granting Ashram School at village Takli Waghdari. Said letter is forged and fabricated. Further it has been averred that Respondent No.2 vide his letter dated 29th April, 2009 directed the deponent i.e. Respondent No.3 to launch prosecution against the petitioner concerning forged and fabricated letter dated 3rd May, 2009. The copy of the said letter dated 29th April, 2009 is also produced on record Annexure R-2. In para 6, statement of the petitioner that he has spent around Rs.18,60,555/- up to March, 2005 for running Ashram School, is denied. A categorical statement is made in that paragraph that the petitioner was not running the Ashram school anywhere in Latur district. 6. On 26th June, 2009 this petition was listed before the learned Division Bench of this Court for admission. 8 Counsel for respective parties were heard. This Court, by this order, directed the Principal Secretary, Social Welfare and Cultural Affairs Department, Government of Maharashtra, to initiate appropriate fact finding inquiry regarding entire episode which is revealed from the proceeding of this writ petition, and file a fact finding report through responsible officer within eight weeks. This Court also opined that facts revealed in this writ petition are disturbing and serious. That was a reason for direction contained in para 5 of the order dated 26th June, 2009. It is in this background, inquiry was conducted, report has been produced on record. It is signed by one Mr. Kishor Gajbhiye, Secretary, State of Maharashtra dated 21st August, 2009. By the order passed on 15th October, 2009, para 5, this Court directed the Registry to supply copy of the report to the parties and post the petition for admission after Diwali Vacation and that is how this petition is listed before this Court. 7. Mr. Chillarge admits receipt of copy of this report submitted by Mr. Gajbhiye. Counsel for the Petitioner submits that during the inquiry and/ or preparation of this report opportunity of being heard was not given to the 9 Petitioner. According to him, this inquiry is behind the back of the present petitioner. 8. With the assistance of learned A.G.P. we have read the report in its entirety. Foundation of the claim made by the Petitioner in this writ petition is the alleged communication dated 3rd May, 2001 issued by the competent authority of the State of Maharashtra, allegedly granting permission in favour of the petitioner to open up an Ashram School and also alleged approval for disbursing grand-in-aid. It appears that the alleged signatory of the letter dated 3rd May, 2001 Smt. Parkar, person who was holding the status as Deputy Secretary, stands superannuated. This inquiry was in fact related to the issuance of letter dated 3rd May, 2001. This letter is in favour of the Petitioner. Admittedly, this letter cannot be issued by the Petitioner himself in his favour. Letter is allegedly issued on behalf of the State by the officer concerned i.e. Deputy Secretary Smt. Parkar. Obviously, the competent authority carried out inquiry, recorded statement of Smt. Parkar. From this report, we are satisfied that the conclusion arrived at by the officer concerned that there was no legal sanction for opening or running Ashram 10 School in favour of the Petitioner and there was no approval for grant-in-aid as claimed by the Petitioner on 3rd May, 2001. The said letter is a bogus letter, according to the State Government. This conclusion prima facie seems to have been arrived at on an inquiry. This letter is not challenged by the Petitioner either in this writ petition, seeking amendment and/ or by other appropriate proceeding. This report, therefore, is required to be read only in relation to the prayers made in the writ petition. It is admitted fact that in view of the letter dated 3rd May, 2001 the grant-in-aid and/ or funds are not approved or disbursed to the Petitioner. It is also mentioned that the Deputy Secretary Mrs. V. A. Parkar, in fact, was not holding the position as Deputy Secretary on 3rd May, 2001. She took over as Deputy Secretary on 19th October, 2001. In other words, on 3rd May, 2001 Smt. Parkar was not the Deputy Secretary of the State Government. 9. This petition is under Article 226 and 227 of the Constitution of India. The Petitioner has lost very foundation that grant of permission and grant-in-aid for running Ashram School i.e. the letter dated 3rd May, 2001. We see no case in favour of the Petitioner for issuing any 11 writ. 10. This writ petition, therefore, is devoid of merit. Writ Petition stands dismissed. Rule discharged. No order as to costs. 11. We make it clear that the report produced on record and the affidavit page 41 sworn in by Mr. Suresh Kamble makes a reference of order passed by Respondent No.2 directing deponent to launch prosecution against the Petitioner in respect of the forged and fabricated letter dated 3rd May, 2003. This direction is not being disturbed any way by us. At this stage, learned A.G.P. points out that the letter in question is dated 3rd May, 2001, however, wrongly mentioned in the affidavit of Mr. Kamble as 3rd May, 2003. The petitioner is claiming the letter dated 3rd May, 2001. The date 3rd May, 2003 mentioned in the affidavit of Mr. Suresh Kamble seems to be through over sight. [SHRIHARI P. DAVARE, J.] [S.B.DESHMUKH, J.] Dated:09/11/2009. ans/5850 12 WRIT PETITION NO.: 5850 OF 2006 Date of decision: 9th NOVEMBER, 2009. For approval and signature THE HONOURABLE SHRI JUSTICE S. B. DESHMUKH. THE HONOURABLE SHRI JUSTICE S. P. DAVARE. . Whether Reporters of local papers ... Yes may be allowed to see the judgment? . To be referred to the Reporter or not? ... No . Whether Their Lordships wish to see ... No the fair copy of the judgment? . Whether this case involves a substantial ... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? . Whether it is to be circulated to the ... No Civil Judges? . Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE