[2011] 3 S.C.R. 1087

BHARAT RATNA INDIRA GANDHI COLLEGE OF

ENGINEERING & OTHERS

STATE OF MAHARASHTRA & ORS.

(Civil Appeal No. 2704 of 2011}

MARCH 28, 2011

[MARKANDEY KAT JU AND GYAN SUDHA MISRA, JJ.]

Judgment/Order - Suo motu orders - Orders passed by Court on its own motion - Sustainability of - Held: Such suo C motu orders, without even a petition on which they are passed, are ordinarily not justified nor sustainable - Ordinarily, there must be a petition on which the court can pass an order- On facts, the High Court was not justified in taking suo motu action on the basis of some information which was not disclosed in D the impugned order - Judges must exercise restraint in such matters - By the impugned order, the High Court directed that if the Colleges failed to fill in the post of Principal within the stipulated period, the University would issue orders prohibiting admissions in the concerned Colleges .;.. There is no statutory E rule that in the absence of a permanent Principal, admissions in the Colleges cannot be made - Thus, the High Court indulged in judicial legislation, which is not ordinarily permissible - Also, none of the Colleges were made parties before the High Court - There was violation of the principles F of natural justice - Order of the High set aside.

Divisional Manager, Aravali Golf Club and Anr. vs.

Chander Hassand Anr. (2008} 1 SCC 683 - relied on.

Case Law Reference:

(2oot>/ 1 sec 683 elied on.

Para 12 ·

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2704 of 2011 ect.

A From the Judgment & Order dated 3.12.2008 of the High Court of Judicature at Bombay, Bench at Nagpur in Writ Petition No. 2216 of 2006.

WITH

B C.A. Nos. 2705-2716, 2776, 2717-2725, 2727, 2728, 2731- 2736, 2738-2744 & 2746-2769 cf 2011.

Jayant Bhushan, U. Hazarika, S.B, Sanyal, Ravindra K.

Adsure, G. Ananda Selvam (for Gaurav Agrawal), Arun R. c Pednekar (for Chandan Ramamurthi), Gopal Balwant Sathe, Sridhar Y. Chitale, Abhijat P. Medh, Kiran Singh, Sarang Aradhye, Shivaji M. Jadhav, Brij Kishor Sah, Prashant B., A1.1it Singh, P.V. Vaidya, Ketki P. Vaidya, Manish Pitale, Wasi Haider (for Chander Shekhar Ashri), Nikhil Nayyar, Ravir,,.hd D Keshavrao Adsure, Sanjay Sen, Rana S. Biswas Hemant

Singh, Amitab Narendra (for Sharmila Upadhyay), Vikas Mehta, Jitendra Kumar, Dr. R.R. Deshpande, Ujwala R. Deshpande, Sudhanshu S. Choudhari, Sanjay Kharde (for Asha Gopalan Nair), Vijay Kumar (for Vishwajit Singh), Aniruddha P. Mayee, E Charudatta Mahendrakar, Ruche A. Mayee, Satyajit A. Desai, Somanath Padhan (for Anagha S. Desai) for the appearing parties.

The following Order of the Court was delivered

Delay condoned.

Leave granted.

ORDER

G Heard loamed counsel for the parties.

These Appeals have been filed against the impugned judgment and order dated 03rd December, 2008 passed by the High Court of Judicature at Bombay, Bench at Nagpur in Writ Petition No.2216 of 2006.

BHARAT RATNA INDIRA GANDHI COLLEGE OF 1089 11 ENGINEERING v. STATE OF MAHARASHTRA .·.

At the very outset we may note that in fact there was no A petition before the High Court on which the impugned order was Pi:lssed. The High Court took suo motu action on the basis of some information which has not been disclosed in the impugned order. The cause title in the impugned judgment

res: B

. . "Cc •rt on its own motion vs, State of Maharashtra through its Secretary, Education Department.·

. None of the colleges in respect of wh.ich the impugned order was passed were made respondents, nor was notice

C issued to ttiem, nor were they tieard by the High Court. .

To say the least, .this was a strange procedure adopted by the High Court. ...

In our opinion, such suo motu orders; without even a D petition: on which ttiey are passed, are ordinarily not justified nor sustainable. Ordinarily, there must be a petition on which the Court can pass an order. In our opinion, the High Court was not justified in taking suo motu action in this case. Judges must E exercise restraint in such matters.

Moreover, we have perused the impugned order and we are of the opinion that the directions contained in paragraph 7 of the impugned judgment were wholly unwarranted as they amount to judicial legislation.

It appears that many private unaided Degree Colleges in Maharashtra did not have permanent Principals, and this is what motivated the High Court to pass the impugned order.

By the impugned order. the High Court has directed that G if the colleges fall to fill in the post of Principal by 31st May, 2009, the University will issue orders in the first week of June, 2009 prohibiting admissions in the Colleges concened.

In our opinion, no such direction could have been validly H

A given by the High ;$~. If there is no permanent Principal, obviously the Acting Principal shall officiate as Principal, but; that does noti; mean that in the absence of the permanent Principal, admissions to the college should be prohibited. There is no statutory rule that in the absence of a permanent Principal e admissions in the Colleges cannot be made. Thus, the High Court has indulged in judicial legislation, which is not ordinarily permissible to the Cdurts vide Divisional Manager, Aravali Golf

Club & Another vs. Chander Hass & Another (2008) 1 SCC 683. c Ahso, none of these Colleges were made parties before the High Court, and hence the aforesaid direction is violative of the principles of natural justice.

Ac:cordingly, we allow these appeals and set aside the D impugned order of the High Court. No costs.

However, we direct that the process for filling up the posts of Principal may continue in accordance with law, and should be done expeditiously.

E N.J.

Appeals allowd.