wp6828.07 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 6828 OF 2007 Kshitij Dnyandeo Choudhari .. PETITIONER VERSUS Hon’ble Vice Chancellor University of Mumbai & others .. RESPONDENTS Mr. P.R. Katneshwarkar, advocate for the petitioner. Mr. A.P. Chaware, advocate for respondent no. 1. Mr. K.B. Choudhari, AGP for respondent nos. 2 and 3. Mr. S.B. Yawalkar, advocate for respondent no. 5. Mr. S.R. Barlinge, advocate for respondent no. 7. ===== CORAM : D.B. BHOSALE & R.M. BORDE, JJ. DATE : 2 nd FEBRUARY, 2011 PER COURT : ( PER R.M. BORDE, J.) 1 Petitioner claims to have presented the instant petition in larger public interest and is seeking direction against respondent no. 1 for conducting an enquiry in respect of conferment of M.D. Kaya Chikitsa Ayurved degree on respondent no. 7 by the University of Mumbai. 2 According to the petitioner, respondent no. 7 has secured the degree in M.D. Kaya Chikitsa without attending the college and in violation of the wp6828.07 2 mandatory rules prescribed by the University. Respondent no. 7 was serving as a teacher in Chaitanya Ayurved Mahavidyalaya. She registered her name for M.D. Kaya Chikitsa Ayurved course with respondent no. 4 – college at Mumbai. According to the petitioner, at that time, she (respondent no. 7) was serving in the college as Assistant Medical Officer till the year 1993. It is further contended by the petitioner that respondent no. 7 resumed her duties as lecturer in Chaitanya Ayurved Mahavidyalaya since June 1993. Respondent no. 7 is reported to have secured M.D. degree in November, 1994. According to petitioner, respondent no. 7 did not attend the college whilst she was pursuing studies for M.D. course and, further, that she was serving as a lecturer in a college at Sakegaon, Tq. Bhusawal. Petitioner thus contends that conferment of M.D. degree on respondent no. 7 is in contravention of the rules framed by Mumbai University as the relevant rules prescribe at least 50% attendance in an academic year. 3 Respondent no. 7 has presented her affidavit in reply and controverted the facts stated by the petitioner in the petition. According to respondent no. 7, she had attended the lectures and seminars as and when her attendance was necessary and has fulfilled the condition of required percentage of attendance as prescribed under Rules 27 to 30 framed by wp6828.07 3 University of Mumbai. It is contended that the petitioner has raised disputed questions of fact in the petition which cannot be gone into in this petition. Respondent no. 7 has also objected to entertainability of the petition on the ground of delay and latches. It is contended that the petitioner is raising objection in respect of conferment of degree on respondent no. 7 in the year 1994 by University of Mumbai, by presenting a petition in the year 2007 and the petition is therefore liable to be rejected on the ground of delay and latches alone. Respondent no. 7 has also disputed contention of petitioner that the petition is presented in larger public interest and that the petitioner has no personal interest to proceed against respondent no. 7. It is specifically contended in the reply that petitioner is distantly related to respondent no. 7. He is a member of the trust which runs the college where respondent no. 7 is serving as Principal. It is also contended that father of the petitioner was Secretary of the institution in the past and has issued a certificate in favour of respondent no. 7 which is annexed to the petition at page no. 23. It is therefore contended by respondent no. 7 that on account of aforesaid reasons, contention of the petitioner that the petition is presented in larger public interest, cannot be accepted. However, according to respondent no. 7, petition is presented with a view to settle score with respondent no. 7 who is serving as Principal in Ayurved college wp6828.07 4 run by the trust of which petitioner himself is a member. 4 Affidavit in reply has been presented on behalf of respondent no. 1 – Vice Chancellor, University of Mumbai, by Incharge Registrar and in paragraph nos. 4.4 and 4.5 of the reply, it has been stated thus :- 04.04 In case of Mrs. Aruna S. Choudhary, the examination form for the course M D – Ayurveda, Part II, was sent to the University by the Dean / Head of the Department of the K.G. Mittal Ayurvedic College. The Examination Section sent the said form along with others to the Post Graduate Section for scrutiny as aforesaid. The Post Graduate Section verified from the report, endorsement, and certification of the Principal of the 04 th Respondents college to find that the candidate Mrs. Aruna S. Choudhary had kept her terms as per requirement during the 02 nd term of 1991-92 to 01 st term of 1994-95. As such, the actual attendance put in by the candidate in the respective terms is duly verified by the University from the information submitted by the said college. The examination form of the candidate was returned to the examination section thereafter for further process. 04.05 AS per this office record Mrs. Aruna S. Choudhary had appeared at the M.D. (Ayurved Vanaspati) examination held in November, 1994 in the Branch-III- Kayachikitsa through K.G. Mittal Ayurvedic Medical College with Seat No. 2. The result of the said examination was declared on 1 st March, 1995 and Smt. Choudhary was declared successful at the said examination. The degree was conferred on her in December, 1996. 5 We have perused the petition as well as affidavit-in-reply tendered by wp6828.07 5 the respondents. We have also heard arguments advanced by respective counsel appearing for the parties, at length. We are not inclined to entertain the petition for more than one reasons. Firstly, the petitioner is requesting for holding an enquiry in respect of conferment of degree on respondent no. 7 by Mumbai University in the year 1994, by presenting a petition in the year 2007. The petition is not liable to be entertained on account of delay and latches in approaching the court. It cannot be accepted that the petitioner was not posted with knowledge in respect of the alleged violation of rules while securing M.D. degree by respondent no. 7. Petitioner himself has placed on record copy of representation made to the Vice Chancellor, University of Mumbai, on 31-7-2007. It is disclosed in the representation that one of the life members of the trust made representation to the Vice Chancellor, University of Mumbai on 22-12-1998 and also to the Hon’ble Governor of the State of Maharashtra on 20-6-2000. Petitioner himself is a member of the trust and on perusal of the representation it is clear that he was aware of the representation made by one of the life members of the trust way back in the year 1998 and in the year 2000. The petitioner has also referred to the correspondence between 1998 to 2000 addressed to the Vice Chancellor, University of Mumbai by one P.V. Sukhdeo. Reference is made to copies of letters dated 22-12-1998, 8-2-1999, 15-3-1999 wp6828.07 6 and 12-6-2000, addressed to the Hon’ble Vice Chancellor, University of Mumbai. Thus, on going through contents of the representation, it is evident that the petitioner was posted with knowledge in respect of conferment of degree on respondent no. 7 by University of Mumbai and in respect of alleged violation in securing degree by her, since 1998 onwards. However, petitioner approached this court in the year 2007. Petition presented by the petitioner, therefore, is not liable to be entertained on account of delay in approaching this court. 6 Petitioner has also raised disputed questions of fact in the petition. Allegations made by the petitioner in respect of violation of the rules while prosecuting studies by respondent no. 7 have been controverted by her. Affidavit in reply has also been presented by Incharge Registrar, University of Mumbai, who has also controverted the contentions raised in the petition and has specifically averred that the actual attendance put in by the candidate i.e. respondent no. 7 is duly verified by the University from the information submitted by the college. In order to substantiate contention that respondent no. 7 had kept terms as per requirement during the second term of 1991-92 and first term of 1994-95, reference is made to the report, endorsement and certification of Principal of college. Thus, contentions wp6828.07 7 raised by the petitioner in respect of violation of rules by respondent no. 7 while prosecuting her M.D. Ayurved studies has not only been controverted by respondent no. 7 but also by the University of Mumbai. Disputed questions raised by the petitioner in this petition, therefore, need not be gone into. 7 Contention raised by respondent no. 7 that the petition has not been presented in larger public interest but is a petition by interested person, also requires serious consideration. It is not disputed that petitioner himself is a member of the trust which runs Chaitanya Ayurvedic Mahavidyalaya. It is also not disputed that respondent no. 7 is serving as Principal in the college run by the trust. It is also evident from record that father of the petitioner was Secretary of the trust in the year 1996. It is also not controverted that petitioner is distantly related to respondent no. 7. All these factors referred to above, lead to an unescapable conclusion that petitioner is very much interested in proceeding against respondent no. 7 on account of his personal reasons. Another factor that is also required to be taken note of is that petitioner has also launched prosecution against respondent nos. 7 and 8 by presenting complaint in the court of Judicial Magistrate First Class, Bhusawal, pursuant to which, Regular Criminal Case 128/2008 is registered for wp6828.07 8 offence punishable under sections 419, 420 r/w section 34 and 120-B of the Indian Penal Code, and same is still pending. Considering all these aspects, contentions raised by respondent no. 7 that petition presented by the petitioner cannot be termed as public interest litigation shall have to be accepted. 8 Petitioner has placed reliance on judgment in the matter of Shivaji Nilangekar Patil Vs. Mahesh Madhav Gosavi reported in 1987(1) SCC 227 and contended that petitioner might have moved in his private interest but enquiry in respect of allegations against respondent no. 7 and conduct of the officials of University of Mumbai is required to be probed. The facts arising in the reported judgment are totally different. In the instant matter, petitioner has approached this court after about 13 years of the conferment of degree on respondent no. 7. Moreover, allegations made by the petitioner are not only controverted by concerned respondent but have also been denied by the University of Mumbai. Petitioner is also found to be personally interested in proceeding against respondent no. 7. Thus, reliance placed on the judgment cited supra is misplaced. Petitioner has also referred to a decision of the Apex Court in the matter of Raju Ramsing Vasave Vs. Mahesh Deorao Bhivapurkar & others reported in 2008(9) JT 445. wp6828.07 9 In the facts and circumstances of the case, reliance placed on the judgment cited supra is also misplaced. 9 For the reasons recorded above we do not deem it necessary to cause interference in the matter. Petition is devoid of substance hence stands rejected. While directing issuance of notices to respondents, condition in respect of pre-deposit of Rs.50,000/- was incorporated in the order. Accordingly, petitioner has deposited amount of Rs.50,000/- in this court. As we are of the considered opinion that petition presented by the petitioner cannot be regarded as Public Interest Litigation but the petitioner has approached this court to ventilate his personal grievance against respondent no.7 who is serving as Principal of the college run by trust, of which petitioner himself is member, the amount deposited by petitioner in this court is liable to be forfeited to the Government. Order accordingly. ( R. M. BORDE ) ( D.B. BHOSALE ) JUDGE JUDGE dyb