1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7778 OF 2009 Shri.Radhanagari Taluka Shikshan Prasarak Mandal. ...Petitioner vs. 1.State of Maharashtra & ors. ...Respondents --- Mr.S.S.Patwardhan, for Petitioner. Mr.S.R.Nargolkar, AGP for Respondent no.1. Mr.Rajdeep S.Khadapkar, for Respondent nos.2 & 3. Mr.S.S.Kanetkar, for Respondent no.4. CORAM: D.K.DESHMUKH & A.R.JOSHI, JJ. DATED: 27th January,2010. 2 P.C.:- 1. Rule returnable forthwith. Heard finally by consent of parties. By this petition, the petitioner which is a Trust registered under the provisions of the Bombay Public Trust Act running a senior college at Village Kasaba Tarale which is admittedly affiliated to Respondent no.2-University, challenges the order dated 13.7.2009 issued by the State Government permitting the Respondent no.4 to start a Senior College in the faculties of Arts, Science and Commerce at the same village. The learned Counsel appearing for petitioner submits that the application made by Respondent no.4 through the University was not recommended by the University and therefore, granting of permission to the Respondent no.4 by the State Government is contrary to the provisions of Section 82 of the Maharashtra Universities Act, and therefore, according to him, the order is liable to be set aside in so far as it grants permission to the Respondent no.4 to start the college. The learned Counsel also submits that in fact the Respondent no.4 has not 3 actually started the college and has also not admitted any student. 2. We have heard the learned Counsel appearing for Respondents. The learned Counsel appearing for Respondent no.4 submits that after the permission was granted, the Respondent no.4 has admitted the students who have also started taking instructions and the University has also granted the first term affiliation to the Respondent no.4-College and therefore, this Court should not interfere with the order of the State Government. 3. From the record and the rival submissions, it can be taken as an admitted position that the Respondent no.4 had applied for permission to start a Senior College in three faculties i.e. Arts, Commerce and Science to the Respondent no.2 University, and the University after making inquiry, has not recommended the case for grant of permission. In view of this admitted position, it is the provision of Sub-Section 5 of Section 82 of the Maharashtra Universities Act 4 which becomes relevant. It reads as under:- 82. Procedure for permission: --- --- (5) Out of the application recommended by the university, the State Government may grant permission to such institutions as it may consider right and proper in its absolute discretion, taking into account the State Government s budgetary resources the suitability of the managements seeking permission to open new institutions and the State level priorities with regard to location of institutions of higher learning: Provided, however that, in exceptional cases and for the reasons to be recorded in writing any application not recommended by the university may be approved by the State Government for starting a new college or institution of higher learning. Provided further that, from the 5 academic year 2001-2002, such permission from the State Government shall be communicated to the university on or before 15th July of the year, in which the new college is proposed to be started. Permissions received thereafter shall be given effect by the university only in the subsequent academic year. Perusal of the above quoted provision of sub-section (5) of Section 82 of the Maharashtra Universities Act makes it clear that under the principal sub-section (5) of Section 82 of the Act, the State Government can grant permission to such institution whose application has been recommended by the University to start a college. In so far as such applications which have not been recommended by the University are concerned, the State Government can grant permission only in exceptional cases and for the reasons to be recorded in writing. The settled law is that when Statute incorporates the requirement of recording reasons before taking an action, the requirement is mandatory 6 and has to be strictly complied with. The case of the Petitioner is that the Government has not recorded any reason for granting permission to Respondent no.4 though its application was not recommended by the University. Perusal of the order dated 13.7.2009 by which the permission has been granted shows that the Government has not recorded any reason for granting permission to Respondent no.4, though its application was not recommended. It is also not the case of the Government that such reasons were recorded in a separate order. In our opinion, therefore, it is clear that the order of the State Government in so far as it grants permission to Respondent no.4 is made in breach of the mandatory condition incorporated by Section 82(5) of the Maharashtra Universities Act and therefore, the order is infirm and ab-initio void. As the order is ab-initio void, the subsequent affiliation granted by the University will also not amount to much because the University has granted affiliation only because of the order of the State Government. If the order of the State Government falls to ground, the order granting affiliation by the 7 University also falls. It is to be noted that there is dispute between the parties on the question whether the University has granted affiliation to all the three faculties or to Arts faculty. But we do not propose to go into that dispute because, in our opinion, even assuming that affiliation is granted by the University to all the three faculties, then also it is of no consequence as the order of the State Government is invalid. However, the fact remains that permission was granted by the State Government to Respondent no.4 and it is possible that they might have admitted the students because of the permission granted and we do not want any student, who might have been admitted by Respondent no.4 pursuant to the permission granted by the State Government, to suffer because of our order. In our opinion, therefore, the following order would meet the ends of justice:- (i) The order of the State Government dated 13.7.2009 in so far as it grants permission to Respondent no.4 to start a Senior College at Village Kasaba Tarale is set aside. The University and the 8 State Government, however, shall permit the Respondent no.4 to continue to impart instructions to the students who might have been admitted earlier, till the end of academic year 2009-2010. (ii) The students who might have been admitted by Respondent no.4 shall be at liberty to apply to the University for permission to appear at the annual examination. On receiving such applications, the University shall scrutinise them in accordance with the existing rules and if on scrutiny of the applications, the University is satisfied that the students satisfy all the norms except the norm that they should have taken instructions from the college which is permitted to be started by the State Government and which is affiliated to the University, shall permit those students to appear for annual examination, showing them as students on some other affiliated college and for all other purposes, the students shall be considered as students of that affiliated college. 9 (iii) It is made clear that this order will not come in the way of the Respondent no.4 in applying for or for making a fresh application, in accordance with law, for starting a college at same village. Rule is made absolute accordingly. No order as to costs. (D.K.DESHMUKH, J.) (A.R.JOSHI, J.)