1 wp1576.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 1576 OF 2009 Allama Mohammed Taher Educational and Career (AMTEC) Foundation, "Sonu Mahel", Kagdi Vess, near Krishan Mandir, Beed, Taluka and District Beed, through its Secretary, Dr. Kafil Ahmed Farooqui s/o Vakil Ahmed Farooqui ... Petitioner versus 01. The State of Maharashtra, through its' Secretary, School Education and Sport Division, Mantralaya, Extension Bhavan, Mumbai-32. 2. The Director of Education, Secondary and Higher Secondary Education, Pune. 3. The Deputy Director of Education, Aurangabad Division, Aurangabad. 4. The Education Officer (Primary), Zilla Parishad, Beed. 5. The Chief Executive Officer, Zilla Parishad, Beed. .... Respondents ------ Shri M.K. Deshpande, Advocate, for the Petitioner Shri K.G.Patil, Asstt. Govt.Pleader for Respondents No. 1 to 3. Respondent Nos. 4 and 5 served, but are absent. 2 wp1576.09 Coram : Smt. Nishita Mhatre & M.T.Joshi, JJ. Date : 8th June, 2011. JUDGMENT (PER: SMT. MHATRE, J.) 01. Rule. By consent of the parties, rule made returnable forthwith. 02. By the present petition, the petitioner, which is a registered society under the Societies Registration Act, 1960 and the Bombay Public Trusts Act, 1950, has challenged the decision of the respondents, disallowing it to run a new Urdu medium primary school from the academic year 2004-05. Respondent No. 1, refused the permission by its letter dated 31.10.2008. 03. The brief facts relating to the present case are as follows; The petitioner submitted a proposal in the prescribed format to the Respondents, on 29.1.2004 for grant of permission to run a new Urdu medium primary school in the Khasbaug area in Beed city. All the necessary formalities, including payment of charges, were complied with by the petitioner, along with its application. Since the petitioner did not receive any reply from the respondents, it wrote to Respondent No.4-Education Officer, Zilla Parishad, Beed, on 10.11.2005, reminding him of the request made 3 wp1576.09 for permission to start an Urdu medium primary school. The petitioner also reminded the other Respondents, by its letters dated 21.12.2006 and 22.4.2007, about its proposal. However, the petitioner did not receive any reply from the Respondents. It then approached the National Commission for Minority Educational Institutions, New Delhi, praying that a direction be issued against the Respondents to grant recognition to the Urdu medium primary school, which the petitioner wanted to start as a minority school in consonance with the provisions of Article 31 of the Constitution of India. 04. This petition was moved before the Commission on 15.6.2007, by the petitioner. Notices were issued by the Commission, and Respondent No.3-Deputy Director of Education, Aurangabad Division, Aurangabad, appeared before the Commission. In his reply, Respondent No.3 contended that the District Level Committee had found that the financial status of the petitioner was sound, but did not recommend the petitioner's case, as there were other Urdu medium schools in the same vicinity, where the petitioner desired to start a new primary school. The State Level Committee also confirmed the decision of the District Level Committee, according to Respondent No.3. The petitioner in its rejoinder before the Commission, pointed out that the distance 4 wp1576.09 between the proposed school and the nearest schools was more than two kilometres. Considering the pleadings before it, the Commission for Minority Educational Institutions, directed the Respondents to reconsider the application/proposal submitted by the petitioner, in the light of the judgement of the Supreme Court in the case of Superstar Education Society vs. State of Maharashtra & Ors. [Civil Appeal No.1105 of 2008, decided on 16th January 2008], and the judgement of the Division Bench of this Court in the case of Gramvikas Shikshan Prasarak Mandal vs. The State of Maharashtra, AIR 2000 Bombay, 437. 06. The petitioner received a letter on 23.12.2008, which was dated 31.10.2008, from Respondent No.1, communicating that the proposal submitted by the petitioner could not be considered, in view of the observations of the District Level Committee, which were confirmed by the State Level Committee. Aggrieved by the said decision, the petitioner has approached this court, under Article 226 of the Constitution of India. 07. The learned Advocate appearing for the petitioner submitted that the decision of the State, refusing permission to the petitioner to run a new primary Urdu medium school, is erroneous and 5 wp1576.09 contrary to the rights of the petitioner guaranteed under Article 31 of the Constitution. He pointed out that the nearest school is about 2 kilometres away from the proposed site of the new school. According to him, therefore, the Respondents have passed the impugned order without any application of mind. He further urged that when the respondents had admittedly found the proposal of the petitioner to be valid in respect of all other aspects, except the fact that there were several other schools in the vicinity, the proposal of the petitioner should have been granted, in view of the decision of the Supreme Court, as well as this Court. He further submitted that the Full Bench of this Court, in the case of Shikshan Prasarak Mandal vs. State of Maharashtra and ors, 2009 (6) Bom.C.R. 1, has held that the rule that a new school cannot be started within the distance of 5 kilometres from the existing school, is not without exception. In these circumstances, the learned Advocate submitted that the petition deserves to be allowed. 08. Mr. K.G. Patil, learned A.G.P. reiterated the submissions contained in the affidavit of the Deputy Director of Education. Essentially, the learned A.G.P. submitted that the permission to run a new Urdu primary school was refused only because there were other Urdu medium schools in close proximity to the site of 6 wp1576.09 the proposed school. An affidavit has also been filed by the Administrative Officer, working in the office of the Director of Education (Primary), Maharashtra State, contending that the State Level Committee had not recommended the proposal of the petitioner for sanction of new school, as there were already three schools in existence in the vicinity and the general strength of the students was not sufficient to start a new school. 09. Indisputably, the only reason for refusing permission to the petitioner to start a new primary Urdu medium school, was that there were several Urdu medium schools in close proximity to the site of the proposed school. This can be garnered from the pleadings filed before us. The learned A.G.P. relied on a certificate issued on 17.12.2007 by the Chief Officer, Municipal Council, Beed, to submit that the decision of the Respondents to refuse the permission was justified as distance between the proposed school and the other schools in the area was merely between 50 meters to 500 meters. At first blush, we were inclined to accept this contention of the learned A.G.P. However, on a closer scrutiny of this certificate, it indicates that the distance between two existing schools is 50 meters to 500 meters, whereas the distance between the proposed school and all other primary schools in the area ranges from 1775 meters to 2000 meters. Thus, there is no school 7 wp1576.09 within the radiates of approximately two kilometres from the site of the proposed school. In these circumstances, we do not see any reason why petitioner should have been refused permission to start a new school. Moreover, the existing schools are in close proximity with one another as mentioned earlier and, therefore, there is no cogent ground for refusing permission to the petitioner when it proposed to start a school at a distance of two kilometres. There is no rationale for treating the petitioner differently from the other institutions which are running schools in close proximity to one another. 10. In view of the fact that there is a categorical statement contained in the affidavits filed by the Respondents that the petitioner-society is economically sound and would be able to run an Urdu medium primary school, we see no reason as to why it should not be granted permission to run the school. 11. Accordingly, we set aside the impugned order dated 21.10.2008, by which the proposal of the petitioner to run an Urdu medium primary school from the academic year 2004-05 has been rejected. 8 wp1576.09 12. Respondent No.1 shall grant permission to the Petitioner- society to start an Urdu medium primary school with effect from academic year 2011-2012, in the light of the observations of the Supreme Court in the case of Superstar Education Society, and of the Full Bench of this Court in the case of Shikshan Prasarak Mandal (supra). The application shall not be rejected only on the ground that the site of the petitioner's proposed school is in close proximity with other schools, as we have already observed that the distance is at least two kilometers between the schools. However, all other conditions must be satisfied by the petitioner, in accordance with law, before such permission is granted. The permission shall be granted within eight weeks from today. Rule made absolute, accordingly. (M. T. JOSHI, J.) (SMT. NISHITA MHATRE, J.) pnd/wp1576.09