1 MSS IN THE HIGH COURT OF JUDICATURE AT BOBBY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3240 OF 2007 BHILWADI EDUCATION SOCIETY .. PETITIONER Vs. THE STATE OF MAHARASHTRA & ORS... RESPONDENTS WITH WRIT PETITION NO. 3707 OF 2007 SANGLI SHIKSHAN SANSTHA .. PETITIONERS Vs. THE STATE OF MAHARASHTRA & ORS. .. RESPONDENTS WITH WRIT PETITION NO. 3309 OF 2007 DNYAN BHARATI EDUCATION SOCIETY .. PETITIONERS Vs. THE STATE OF MAHARASHTRA & ORS. .. RESPONDENTS Mr. G. S. Goodbole i/b Dilip Bodake for petitioner Mr. A.A. Kumbhakoni, Associate Advocate General with Mrs. M. P. Thakur, AGP for R-1 & 2. Mr. R. D. Rane for R-3 CORAM:-SMT. RANJANA DESAI & SMT. R.S. DALVI, JJ. 2 DATED:-28/3/2008 ORAL JUDGMENT:-(Per Smt. Ranjana Desai, J.) . Rule. Respondents waive service. By consent of the parties taken up for hearing forthwith. 2. These group of petitions involve the same issues and hence can be disposed of conveniently by passing one order. Hence this order. 3. The learned counsel for the parties are agreed that our decision in Writ Petition No. 3240 of 2007 shall govern the fate of the other two writ petition. Hence, we shall deal with Writ Petition No. 3240 of 2007 as the lead petition. 4. The petitioner in Writ Petition No. 3240 of 2007 is a society registered under the provisions of the Bombay Public Trust Act, 1950 and also under the Societies Registration Act, 1860. This petition is filed under Article 226 and 227 of the Constitution of India challenging the order dated 21/12/06 passed by the Education Officer Primary Section, Zilla Parishad, Sangli wherein the petitioners’ proposal to start Primary English Medium School at village Bhilwadi Taluka Palus, 3 District Sangli is rejected. 5. Admittedly the petitioner has submitted proposal for permission to start English Medium Primary School on 12/7/05. The District Level Committee has recommended the proposal of the petitioner. The State Level Committee vide its letter dated 21/12/06 communicated to the petitioner that it’s proposal was not recommended. Our attention has been drawn to the said letter. The said letter states that at the said place there is no need to have a school. It further states that there is no recommendation. Apart from the above no reasons are assigned as to why the proposal is not recommended. 6. We have heard Mr. Godbole, learned counsel appearing for the petitioner. He submitted that the petitioner proposes to open an English Medium School to which admittedly judgment of this court in Gramvikas Shikshan Prasarak Mandal, Sondoli v. State of Maharashtra & Ors., 2001(1) MLJ 776 is not applicable. He submitted that even the judgment of the Supreme Court in Superstar Education Society v. State of Maharashtra & Ors., dated 7/7/06 in S.L.P. (1) No. 14768 of 2006 and other companion matters 4 is not applicable because these judgments do not cover English Medium Schools. He submitted that the impugned decision of the State Level Committee is devoid of any reasons and hence it must be set aside. He further submitted that reasons are sought to be brought on record by filing affidavit in this court. Mr. Godbole submitted that such a course is deprecated by the Supreme Court in several judgments. Learned counsel submitted that in the circumstances the impugned order be set aside and the State Level Committee be directed to consider the matter afresh and pass a reasoned order. 7. In support of his submissions, Mr. Godbole relied on the following judgments: (1) Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR (39) 1952 SC 16 (2) Mohinder Singh Gill & Anr. v. The Chief Election Comissioner, New Delhi & Ors., AIR 1978 SC 851 and (3) Hindustan Petroleum Corporation & Ors., (2005) 7 SCC 627. 8. An affidavit-in-reply has been filed by one S.H. Umaranikar, Desk Officer to Government School Education & Sports Department, Mantralaya, Mumbai. This affidavit refers to the pendency of Superstar 5 Education Society’s matter in the Supreme Court. It appears that Nagpur Bench of this court had cancelled the permission granted to open new schools in the State of Maharashtra. Special Leave Petitions were filed challenging the said order. When this affidavit was filed the said petitions were pending. It is stated in the affidavit that in view of the pendency of the said petitions in the Supreme Court, permission to start new school cannot be granted. We must note that in Writ Petition No. 3707 of 2007 one additional affidavit is filed by Smt. Suman Deshmane, Deputy Director of Primary Education giving some reasons why State Level Committee has not recommended the proposal of the petitioner society. Similarly in Writ Petition No. 3309 of 2007 additional affidavit is filed by Mr. Dinkar Patil, Deputy Director of Education giving reasons why State Level Committee has not recommended the petitioner’s proposal. 9. Admittedly the petitions pending in the Supreme Court have now been disposed of. The Supreme Court has set aside the judgment of the Nagpur Bench of this court cancelling the permission granted to start new Higher Secondary Classes, Schools on no-grant basis on the recommendation of the 6 District Level Committee because Master Plan was not prepared by the State in accordance with the judgment of this court in Gramvikas Shikshan Prasarak Mandal’s case. The Supreme Court has inter alia observed that the High Court failed to notice that many of the schools to which permissions were granted were not covered by the proposed Master Plan, because they were English Medium Schools or Schools run by minorities. 10. Admittedly the judgment of this court in Gramvikas Shikshan Prasarak Mandal’s case (supra), wherein the scheme of the State Government creating District Level Committees and State Level Committees and preparation of Master Plan is noted and directions are given to constitute the said committees in terms of the said scheme does not concern itself with English Medium Schools. The judgment of the Supreme Court in Superstar Education Society’s case is also not applicable to English Medium Schools. The petitioner proposes to establish English Medium School. Therefore, these judgments will have no relevance to the petitioner’s case. 11. In our opinion, the impugned order which does 7 not assign any reasons needs to be set aside. In this connection, we must refer to the judgments to which our attention is drawn by Mr. Godbole, learned counsel for the petitioner. 12. In Commissioner of Police’s case (supra) the State Government had cancelled the permission to construct Cinema house in Greater Bombay granted by the Commissioner of Police. An attempt was made by referring to the Commissioner’s affidavit to show that this was really an order of cancellation made by him and that the order was his order and not that of Government. The Supreme Court rejected this submission by holding that public orders publicly made in exercise of statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant or of what was in his mind or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actions and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. 13. In Mohinder Singh Gill’s case (supra) the 8 Supreme Court has observed that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. The Supreme Court observed that otherwise an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. 14. In Hindustan Petroleum Corporation’s case (supra) the Supreme Court observed that when an order is passed by the statutory authority, the same must be supported either on the reasons stated therein or on the grounds available therefor in the record. The Supreme Court further observed that a statutory authority cannot be permitted to support it’s order relying on or on the basis of the statements made in the affidavit dehors the order or for that matter dehors the record. 15. We are mindful of the fact that the facts of the above cases materially differ from the facts of the present case. Morever the above judgments refer to statutory authorities. We are concerned here with the State Level Committee. But it is 9 directed to be constituted by this court in Gramvikas Shikshan Prasarak Mandal’s case in terms of the scheme prepared by the State Government and presented before this court. Therefore, the principles laid down in the above judgments would be attracted to the instant case. The State Level Committee could not have just passed one line order saying that there was no need to start the school. It was necessary for the State Level Committee to give reasons so that it can be ascertained whether it has exercised its decision making power properly. The validity of it’s order cannot be supported by affidavit. Reasons introduce clarity in the order. On plainest consideration of justice the State Level Committee should have given reasons while not recommending the proposal of the petitioner particularly when District Level Committee had recommended it. 16. State Level Committee’s order which is impugned is cryptic. It is a one sentence order. No reasons are assigned why the petitioner’s proposal is not recommended. The reasons are sought to be placed on record by subsequent affidavit filed in this court. In our opinion, in the light of the above judgment to which we have 10 made a reference the State Level Committee’s order needs to be set aside and a direction needs to be given to the State Level Committee to consider the matter afresh in accordance with law and give reasons for whatever decisions it takes. 17. We have been shown the order dated 23/2/04 passed by the Division Bench of Aurangabad Bench of this court in Writ Petition No. 2627 of 2003 and companion writ petitions whereby a direction is given that until further orders, the State Government shall not issue any permission to open a school in the State of Maharashtra. We may quote the relevant paragraph of the said order as under: . "We direct the State Government until further orders, not to issue any permission henceforth to open a school in the State of Maharashtra. This injunction would operate not only to the area of this bench, but it would operate throughout the State of Maharashtra, unless and until further orders are obtained from this court. We are told at the Bar that on 16th February, 2004, there was a meeting of Cabinet and some decision in respect of granting permission to open primary and secondary schools has been taken by the Government. If such 11 decision is taken, it should not be implemented until further orders from this court". 18. Learned Associate Advocate General Shri Kumbhakoni submitted that the State is filing a civil application requesting the Aurangabad Bench to vacate the above order. 19. In view of the above order passed by the Aurangabad Bench of this court and in view of the statement made by Mr. Kumbhakoni, learned Associate Advocate General, we direct that any order passed by the State Level Committee will be subject to further orders that maybe passed by the Aurangabad Bench in the abovementioned matter. Hence the following order: . The impugned order is set aside. The State Level Committee is directed to consider the proposal of the petitioner afresh and pass a reasoned order. . We make it clear that we have not expressed any opinion on the merits of the case. The State Level Committee will pass such order as it deems fit. Any order passed by the State Level Committee will 12 be subject to the further order that may be passed by the Aurangabad Bench of this court in Writ Petitions No. 2627 of 2003, 5408 of 2003 and 5414 of 2003 pending before it. . Writ Petition No. 3240 of 2007 is disposed of in the aforestated terms. . Writ Petition No. 3707 of 2007 and Writ Petition No. 3309 of 2007 are disposed of in terms of the above order. . Needless to say that all civil applications are disposed of. JUDGE JUDGE 13 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO. 3240 OF 2007 WITH WRIT PETITION NO. 3707 OF 2007 WITH WRIT PETITION NO. 3309 OF 2007 DATE OF DECISION: 28/3/2008 Transcription of Judgment / Order. Submitted for approval. THE HON’BLE (SMT.) JUSTICE RANJANA DESAI: THE HON’BLE (SMT.) JUSTICE R. S. DALVI: 1. Whether Reporters of Local Papers ) 14 be allowed to see the Judgment? ) 2. To be referred to the Reporters or ) not? ) 3. Whether Their Lordships wish to ) see the fair copy of the Judgment? ) 4. Whether this case involves a ) substantial question of law as to ) the interpretation of the ) Constitution of India, 1950 or any ) Order made thereunder? ) 5. Whether it is to be circulated to ) the Civil Judges? ) 6. Whether the case involves an impor- ) tant question of law and whether ) a copy of the judgment should be ) sent to Nagpur, Aurangabad and Goa ) Offices? )