1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 2491/2008 Swatantravir Vi. Da. Sawarkar Bahuuddeshiya Shikshan Va Vyayam Prasarak Mandal, through its Secretary, Rampuri Ward, Gadchiroli, district Gadchiroli. .....PETITIONER ...V E R S U S... 1. State of Maharashtra, through Secretary, Department of Tribal Development, Mantralaya, Mumbai-400 032. 2. Commissioner, Tribal Development, Nasik. 3. Project Officer, Integrated Tribal Development Project, Gadchiroli. ...RESPONDENTS ------------------------------------------------------------------------------------------------- Mr. P. C. Madkholkar, Advocate for the petitioner. Ms. K. S. Joshi, A.G.P. for respondent no. 1. ------------------------------------------------------------------------------------------------- 2 CORAM:- ANOOP V. MOHTA & C. L. PANGARKAR, JJ. DATE:- August 7, 2008. P. C. 1. The petitioner is a registered Public Trust having objects to impart education amongst tribals in backward area. Some time in the year 1998-99, the respondents granted permission to open Ashram School from the year 1999 on grant-in-aid basis. The Director of Tribal Development of respondent no.1 cancelled the said recognition by order dated 11.03.2005. An appeal was preferred against the order. The same was dismissed by an order dated 24.06.2005. Thereafter, in a Writ Petition, this Court stayed the said order of cancellation. Therefore, the School was running uninterruptedly. The said writ petition was allowed on 19.07.2007. 2. Again an inspection was carried out on 13.08.2007 and 29.10.1997. In the said inspection, various recommendations were suggested. The Commissioner, Tribal Development, Nasik (respondent 3 no.2), who has power to withdraw or cancel the recognition as per the Code, issued a letter dated 31.01.2008 on the basis of inspection report dated 29.10.2007 and directed to the officers to submit the report after verifying the compliance before 15.04.2008 so that a proper action could be taken before commencement of the next session. 3. In the meantime, a letter dated 27.12.2007 was received by the petitioner from the Additional Commissioner, Tribal Development Department, Nagpur calling upon the petitioner for hearing on 11.01.2008, which was cancelled by communication received by the petitioner on 07.01.2008. Thereafter, no hearing took place of any kind. The petitioner as alleged received a show cause notice dated 01.03.2008 issued by Deputy Secretary, Tribal Development Department of respondent no. 1, which was duly replied by communication dated 17.03.2008. The matter was fixed before the Secretary on 21.04.2008. By the impugned order dated 24.04.2008, respondent no. 1 cancelled the recognition of the school at Mouja 4 Ambekhori, tq. Korchi, district Gadchiroli, permanently. Therefore, the present petition, whereby various challenges are raised. 4. The respondent nos. 1 to 3 have filed their reply dated 21.07.2008 and resisted the said petition and supported the action of the respondents specially on all counts. 5. Without going into merits of the matter, the fact remained unexplained that respondent no. 2 by notice dated 31.01.2008, directed the petitioner to remove deficiencies by 31.03.2008. It is further directed to the concerned Officers to inspect and submit report by 15.04.2008 on compliance of the deficiencies. The impugned order passed by respondent no. 1 is of dated 24.04.2008. There is no reference made to the notice issued by the Commissioner dated 31.01.2008 as referred to above. There is no dispute that the Commissioner, Tribal Development, Maharashtra State, Nasik is a competent authority to deal with these facets to grant or derecognise such institutions, if there are non compliances and/or 5 there are deficiencies, if found after due inspection. The petitioner was bound to appear before respondent no. 1, in view of the notice issued dated 01.03.2008, which was duly replied on 17.03.2008 also. There is no justification, whatsoever on record that how, in spite of the notice from Commissioner dated 31.01.2008, whereby time was granted to the petitioner to remove the deficiencies by 31.03.2008 and whereby it is also directed to the concerned Officers to have inspection and to submit report by 15.04.2008 but still respondent no. 1, based upon inspection dated 13.08.2007 passed the impugned order and cancelled the recognition. It is also clear from the reply dated 21.07.2008 that respondent no. 1 passed order as the petitioner failed to remove the deficiencies based upon the inspection dated 13.08.2007. In view of above, according to us, the action of respondent no.1 of cancelling the recommendations is unjust, unreasonable and arbitrary and is unsustainable. 6 6. Having once given notice and opportunity to the petitioner to comply with the deficiencies by 31.03.2008, there is no justification to pass the impugned order and to cancel the recognition as done in the present case. 7. The impugned action of respondent no.1, therefore, is unsustainable especially when respondent no. 1 being the appellate authority has directly decided the issue and derecognised the petitioner-school, pending the enquiry before the competent authority like the Commissioner. The exercise of power by the competent Authority like this, affects the rights of the petitioner. The petitioner, in fact, lost the right of appeal, which is otherwise available against the order of Commissioner, if after due inspection, the Commissioner derecognises the institution for want of non removal of the deficiencies. 8. The petitioner is trying to remove the deficiencies and substantially complied with the same also, but without considering the 7 same, based upon the earlier inspection of 13.08.2007, the respondents passed the impugned order hurriedly and arbitrarily. There are inspections carried out after August-2007, those are part of the petition (page nos. 36 to 39) dated 12.03.2008, 14.03.2008 and 28.03.2008. Though, those are the reports, which are carried out during the routine course of inspection, still pursuance to the direction/notice dated 31.01.2008, it was necessary for the concerned officers to have inspection and submit the report accordingly before 15.04.2008. Therefore, the action of respondent no. 1 to overrule all these factors and passing the impugned order based upon the earlier inspection report dated 13.08.2007 also reflects the non application of mind to the record. However, without going into the merits of the matter with regard to the deficiencies and/or non-compliance, if any, we are passing the following order. O R D E R (i) The impugned order dated 24.04.2008 passed by respondent no. 1 is quashed and set aside. However, we are directing 8 respondent no. 2-Commissioner to pass order pursuance to the show cause notice dated 31.01.2008. (ii) The petitioner to appear before the Commissioner, Tribal Development, Nasik on 21.08.2008. The Commissioner to hear the parties and pass the appropriate order in accordance with law within two weeks thereafter uninfluenced by order dated 24.04.2008 passed by respondent no.1. (iii) Insofar as the other prayer clauses (c) and (e) are concerned, we are not expressing anything at this stage, however, liberty is granted to the petitioner to raise the same. (iv) In view of this, the petition is allowed in terms of prayer clause (a) only and disposed of accordingly. (v) No order as to costs. JUDGE JUDGE kahale