1 W.P. 2171/2010 - ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2171 OF 2010 Bhartiya Gramin Punarrachana Sanstha, Aurangabad Rajashri Shahu Institute of Management Campus, behind Garware Polyster, Chikalthana M.I.D.C., Aurangabad Through its President. ... PETITIONER VERSUS 1. The State of Maharashtra Through its Secretary Higher & Technical Education Department, Maharashtra State Mantralaya, Mumbai – 32. 2. Dr. Babasaheb Ambedkar Marathwada University, Aurangabad Through its Registrar. 3. The Director Board of College and University Development Dr. Babasaheb Ambedkar Marathwada University Aurangabad. .... RESPONDENTS 2 W.P. 2171/2010 - ( J ) Mr. R.N.Dhorde, Advocate holding for Mr. P.S.Dighe, Advocate for petitioner. Mr. K.J.Ghute Patil, Assistant Govt. Pleader for State. Mr. K.M.Suryawanshi, Advocate for respondent no. 2 & 3. CORAM : P.V.HARDAS & S.V.GANGAPURWALA, JJ. JUDGMENT RESERVED ON : 28/04/2010 JUDGMENT PRONOUNCED ON : 29/07/2010 JUDGMENT : [ PER – S.V.GANGAPURWALA, J. ] 1. Heard Mr. R.N.Dhorde, learned counsel holding for Mr. P.S.Dighe, learned counsel for petitioner, Mr. K.J.Ghute Patil, Assistant Govt. Pleader for State and Mr. K.M.Suryawanshi, learned counsel for respondent no. 2 & 3. 2. By this petition under Article 226 of the Constitution of India, the petitioner seeks a declaration that the letter dated 16/1/2010 issued by the respondent no. 3 is illegal, arbitrary and violative of Article 14, 19 (1) (g) of the Constitution of India, so also seeks mandamus against respondent nos. 2 and 3 to recommend and/or forward the proposal of the petitioner for opening New Senior College at Chikalthana from June, 2010 to the State Govt. for further consideration. 3 W.P. 2171/2010 - ( J ) 3. It is the case of the petitioner that it is a Public Trust registered under the provisions of the Societies Registration Act, 1860 and Bombay Public Trust Act, 1950. It is running various schools and colleges in Aurangabad district. The petitioner submitted its proposal with the respondent no. 2 – University for opening/starting New Senior College at Chikalthana, Taluka and District Aurangabad pursuant to the public notice issued by respondent no. 2 – University in daily newspaper ‘ Lokmat ’ dated 5/10/2009. According to the petitioner, its proposal was complete in all respects and the institution possesses all the basic facilities and infrastructure. According to the petitioner, respondent no. 3 erroneously refused to recommend the proposal of the petitioner for starting senior college at Chikalthana, Aurangabad on the ground that the basic facilities are incomplete and the petitioner has not annexed the documents in respect of the building. 4. Mr.R.N. Dhorde, learned counsel for the petitioner emphasized that the petitioner is running about 45 schools and colleges in various faculties and is having good infrastructure and requisite staff for managing all the schools and colleges. According to him, at present the petitioner is running Rajashri Shahu Institute of Management and Business Administration ( M.B.A.) since 1984 at Chikalthana and the petitioner has constructed its own premises on plot no. 75, M.I.D.C., Chikalthana, Aurangabad. According to him, the petitioner has well constructed building with all amenities. The learned counsel for the 4 W.P. 2171/2010 - ( J ) petitioner further submitted that the petitioner Institution has 5 Acres of land and the building is constructed within the area of about 40,000 Sq. Ft. with necessary funds of Rs. 40,00,000/- ( Rupees Forty Lacs only ) for starting senior college at Chikalthana. The petitioner’s detailed proposal for opening the New Senior College submitted to respondent no. 2 was complete in all respects. According to him, the reason given for rejection of the proposal by respondent no. 3 i.e. the basic infrastructural facilities are incomplete and the petitioner has not annexed the documents in respect of the building are absolutely erroneous. According to him, the petitioner had annexed the building plan prepared by the Architect and the document such as Audit report for last 3 years showing the financial capacity of the petitioner and as such the reasons given by respondent no. 3 for not recommending the proposal of the petitioner are erroneous and improper. According to Mr. Dhorde, the petitioner has not been given reasonable opportunity of compliance of the alleged deficiencies and without giving reasonable opportunity to the petitioner, the resolution dated 5/1/2010 is passed arbitrarily to recommend the proposal of the other Institution and as such the principles of natural justice have been violated. According to him, respondent no. 3 recommended the proposal of one Modern Shikshan Prasarak Mandal, Gevrai, but the financial condition and infrastructure of the petitioner is better than the said Modern Shikshan Prasarak Mandal, Gevrai. The conclusion drawn by respondent no. 3 that the petitioner is not having basic infrastructure, is false and 5 W.P. 2171/2010 - ( J ) erroneous as respondent no. 3 or its representatives have not visited the proposed site at any material point of time. 5. On the other hand, Mr. K.M.Suryawanshi, learned counsel for respondent nos. 2 and 3 submitted that the application submitted by the petitioner was scrutinized by respondent no. 3 and it found deficiencies such as incomplete basic infrastructural facilities and documents regarding the building were not enclosed with the proposal. The said proposal of the petitioner was placed before the Management Council and the Management Council did not recommend the proposal of the petitioner on the ground that there were deficiencies such as incomplete basic infrastructural facilities, documents regarding the building were not enclosed with the proposal and as it was not recommended by the Board of College and University Development. It was further contended by Mr. Suryawanshi that the University has taken policy decision for recommendation of the proposal for opening new colleges in the academic year 2010 – 2011. According to the said policy decision, one of the conditions for recommendation of proposal is the availability of basic infrastructural facilities as prescribed at the place where new college is proposed to be started and it was found by them while scrutinizing the proposal of the petitioner that basic infrastructural facilities are incomplete. According to him, the petitioner is also running Rajashri Shahu Institute of Management and Business Administration at Chikalthana on plot no. 75, M.I.D.C., 6 W.P. 2171/2010 - ( J ) Chikalthana, Aurangabad, i.e. at the same place where the petitioner proposed to start new Senior College. As such, it can not be said that basic facilities are available to senior college at Chikalthana, Aurangabad on plot no. 75. The petitioner has also filed affidavit in rejoinder and in the said rejoinder affidavit, the petitioner has submitted that it has constructed the first floor and the plan for the 2nd floor has been approved and the work of the second floor is in progress. 6. With the assistance of the learned counsel for the parties, we have gone through the pleadings and the documents on record, so also have taken into consideration the rival contentions advanced by the respective parties. It is undisputed that as per the master plan prepared by the University, one senior college was proposed at Chikalthana. Various persons had submitted the proposals. Respondent nos. 2 and 3 had recommended the proposal of one Modern Shikshan Prasarak Mandal, Gevrai and has refused to recommend the proposal of the petitioner. The petitioner has made it clear in its petition that it is not challenging the recommendations made by respondent nos. 2 and 3 in respect of all other institutions but has contended that there is no impediment to recommend the proposal of the petitioner as it was complete in all respects and it was possessing the necessary infrastructure and all the documents were submitted. 7 W.P. 2171/2010 - ( J ) 7. To recommend the proposal or not, depends upon the subjective and objective satisfaction of the authorities concerned. Judicial review of an administrative action is permissible only on limited count. In the present case, malafides are not writ large while refusing the recommendation. Even in affidavit in rejoinder, the petitioner had stated that the work of the building is in progress. As such, the satisfaction arrived at by respondent no. 3 that the basic infrastructural facilities are not available, is not without any reason. The another contention raised by the petitioner that an opportunity of hearing was not given to the petitioner nor any opportunity was given to remove the deficiencies, is not sustainable for the reason that the provisions of the Maharashtra Universities Act nowhere contemplate any opportunity of hearing. From the documents on record, respondent nos. 2 and 3 had come to the conclusion that the basic infrastructural facilities are not available, which is also substantiated from the rejoinder affidavit, which states that the work of the building is in progress. In such circumstances, the Courts can not sit as an appellate authority over the administrative decision taken by the respondents - authorities. The petitioner has to stand or fall on its own and it can not contend that it stands on better position than the others, whose proposal have been recommended without joining them as parties, whose proposals have been recommended. In absence of the same, it would not be appropriate to comment upon the recommendations made by respondent nos. 2 and 3 in respect of the proposals of those 8 W.P. 2171/2010 - ( J ) institutions. 8. Taking into account the scheme of Section 82 of the Maharashtra Universities Act, it does not provide for any opportunity of hearing nor an opportunity to remove the deficiencies. In such circumstances, the petition being devoid of merits, deserves to be rejected and is hereby rejected. However, there shall be no order as to costs. [ S.V.GANGAPURWALA ] [ P.V.HARDAS ] JUDGE JUDGE knp/WP 2171.10