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PETITIONER: SHIVAJI UNIVERSITY THROUGH DIRECTOR

       Vs.

RESPONDENT: BHARTI VIDYAPEETH THROUGH JOINT SECRETARY & ORS.

DATE OF JUDGMENT:       16/03/1999

BENCH: S.P.  Bharucha, R.C.  Lahoti.

JUDGMENT:

     Bharucha.  J.

     Delay condoned.  Leave granted.

     The  order  under challenge was passed by  a  Division Bench of the High Court of Bombay.

     The  first  respondent   educational  institution  was granted permission by the appellant universe, subject to the approval  of  the third respondent, the Medical  Council  of India,  to  start  a law college at Sangli to  provide  only morning  classes for a three year course.  The permission of the  third respondent not having been received, the  college was not

     commenced  during the academic year 1994-95.  The same thing happened in respect of the academic year 1995-96.

     On 13th June, 1995 the second respondent, the State of Maharashtra.    passed   a  resolution    on   the   subject ofpemiission for new law colleges on permanent unaided basis in  Districts  of the State where not a single  law  college existed.   It  noted  that this Court was yet  to  hear  and dispose  of an appeal in respect of grant-in-aid to  private law  colleges in the State.  (That decision was rendered  on 16th  August,  1995.  in State of Maharashtra vs.   Manubhai Pragaii  Vashi  & Ors..  1995(5) SCC 730).   The  resolution stated  that till such time that appeal was disposed of,  if applications  and  proposals  were   received  to  open  law colleges  in  Districts  where  not  a  single  law  college existed,  they would be considered.  On 25th September, 1995 the  first  respondent made an application to the  appellant for  permission  lo  start  the said  law  college  for  the academic  year  1996-97.   On  28th  September.   1995  such permission  was  declined on the ground that a  law  college already existed at Sangli.

     On 20th August, 1996 the third respondent communicated to the first respondent its permission to start the said law college  "for teaching three year course for the three years with  morning classes only from 1996-97".  On 19th  October. 1996  the  Director  of  the  appellant  wrote  to  the  2nd respondent  staring  that  the first respondent had  sent  a proposal  for starting the said law college in year  1995-96 and  the appellant’s Board had recommended the said proposal to the 2nd respondent, but it had not been given provisional

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sanction.   The letter stated that the approval of the third respondent (referred to above) was

     considered  valid  for  the year 1997-98 and  it  was. therefore, requested that orders be passed to start the said law  college  from  June, 1997.  On 30th October,  1996  the first  respondent applied to the appellant for permission to start  the  said law college for the academic year  1997-98. On 22nd November, 1996 a draft Perspective Plan was prepared by  the appellant under the provisions of Section 82 of  the Maharashtra  Universities Act 1994.  The application of  the first  respondent dated 30th October.  1996 was rejected  on 24th December.  1996.  The reason for the rejection was that the  location of the said law college was outside the  draft Perspective  Plan  and  one law college already  existed  in Sangli.   On 3rd February and I" March.  1997 the  appellant wrote to the 2nd respondent requesting that its letter dated 19th October.  1996 be treated as cancelled.  It stated that it  had not recommended the proposal of the first respondent to start the said law college for the year 1997-98.

     In  April,  1997 the first respondent filed  the  writ petition  upon which the judgment and order under  challenge was  passed.   By an interim order the first respondent  was permitted  to  start the said law college.  In the  judgment and  order  under challenge, the High Court found  that  the figures  of  population and the grant of permission  to  law colleges  at smaller places in the area of operation of  the appellant as also the Perspective Plan justified the opening of a morning law college at Sangli having regard to Sangli’s population.   The  appellant  had, for  the  earlier  years, recommended  the  proposal  to open the  said  law  college. There  was a need for opening a post-graduate Department  of Law  in  the appellant-University, as appeared from  certain guidelines  and the Perspective Plan.  The reasons given  in the  letters  dates 2th December.  1995 and  24th  December. 1996

     rejecting  the  first   respondent’s  proposal  showed non-application of mind and arbitrariness.  The affidavit of the  second respondent did not disclose any policy  decision which  would  go against the grant of the  permission.   The appellant was bound by the contents of its letter dated 19th October.    1996,  which  had   neither  been  recalled  nor cancelled.   Assuniing that the resolution dated 13th  June. 1995  was  valid,  after the decision  in  Manubhai  Pragaji Vashi’s  case  (ibid)  there was nothing to suggest  that  a policy  decision had been taken not to permit an  additional college even where there was a need for it and the appellant and  third  respondent had approved the law  college.   Upon this basis, the High Court passed the following order:

     "i)  The rejection of the petitioner’s proposal  under letter  dated  28th  December.   1995  sent  by  the  Deputy Registrar and its communication dated 15th January;  1996 is hereby quashed and set aside.

     ii)  The rejection of the petitioner’s proposal  under letter  dated 24th December.  1996 and its communication  on 3rd  January, 1997 by the Deputy Registrar of the University is hereby quashed and set aside.

     iii)  In  view  of the approval accorded  by  the  Bar Council  of India under its letter dated 20th August.   1996 and the letter dated 19th October.  1996 issued by the Board

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of  College  and  University Development,  the  petitioner’s application  for opening of a morning Law College, at Sangli shall  be  deemed  to  have been  approved  by  the  Shivaji University  under  sub-section(4)  of   Section  82  of  the Maharashtra  Universities Act.  1994 from the academic  year 1997- 98 onwards for a Three Year Degree Law Course.

     iv)   In  view  of   the  aforesaid  the  petitioner’s application  for permission to open a morning Law College at Sangli  shall  be deemed to have been granted by  the  State Government  and  permission  shall be deemed  to  have  been granted  to open the said Law College under sub-section  (5) of  Section  82 of the Maharashtra Universities  Act.   1994 from  the  academic  year 1997-98 onwards for a  Three  Year Degree Law Course.

     v)  in  view  of the ad interim order passed  by  this Court  on  19th June.  1997 and the order dated  17th  July. 1998  passed  in C.A.  No.  5647 of 1998.  we hereby  direct that  provisional affiliation be deemed to have been granted to  the  petitioner’s college for the Academic Year  1997-98 and  1998-99 in accordance with the provision of Section  83 of the Maharashtra Universities Act.  1994.

     vi)   We.    however,  direct   that   for   obtaining affiliation  for the academic year 1999-2000 the  petitioner will  be  required  to make the  requisite  application  and follow  the  procedure  laid   down  under  the  Maharashtra Universities Act, 1994.

     vii)  With  a view to obviating any hardships  to  the students  who  have been admitted during the  Academic  Year 1997-98 and 1998-99 under the orders passed by this Court on the 19th June, 1997 and 17th July, 1998 we direct the second respondent  University to permit such students to appear for the  requisite  examinations  and  further  to  declare  the results   of  the  students  who  so  appear.   It  is   our unfortunate experience that despite the orders of this Court students or their parents are required to approach the court for  (a)  permission to appear in the examination,  (b)  for direction  to  declare their results and (c)  permission  to admit  them  in  the  next year.  We wish  to  obviate  such injustice to the students in particular."

     It is difficult to hold that the Government Resolution dated  13th  June.  1995 lays down, as a matter  of  policy, that  where  there is a single law college in a District  of the  State  no other law college therein will be  permitted. In the first place;  the resolution was to operate only till such  time  as this Court rendered its decision in  Manubhai Pragaji  Vashi’s  case (ibid) and it provided that  in  that interregnum  applications and proposals for the commencement of  law  colleges  would  be  considered  if  received  from Districts  where  no  law college existed.   In  the  second place, and assuming that that is the policy, this is clearly arbitrary  and unreasonable.  Account has not to be taken of whether  or not a law college exists in a District.  What is relevant and what should be taken into consideration is the

     population  which the existing law college serves  and whether, therefore, there is need for an additional college.

     The  refusal  by the appellant to grant to  the  first respondent  permission to start the said college based  upon the   same  reason  is.    therefore,  also  arbitrary   and

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unreasonable.   The draft Perspective Plan is also to,  more or  less,  the  effect  and the refusal  based  thereon  is, therefore, also arbitraiy and unreasonable.

     To  this  extent,  we are in agreement with  the  High Court and need not dilate further.

     Where  we differ is with the order that the High Court has  passed,  particularly in clause (iii)  thereof,  quoted above.   In  our view, it is a University which must  decide whether  or  not  it  can   support  the  proposal  for  the commencement  of  a  new college.  If in a  given  case  the University  has  gone wrong in declining such permission  by relying  upon  ground which is arbitrary or unreasonable  or otherwise defective, the court should set aside such refusal and return the matter to the University for re-consideration in the light of its judgment.

     In  the  instant  case.  we are in no doubt  that  the appellant  was in error in refusing to accord permission  to the  first  respondent  to start the said law  college  only because  a  law  college already existed  at  Sangli.   That decision  must, therefore, be set aside and the matter  must go  back to the appellant to consider the issue afresh.   In doing so it must take into consideration what the population of Sangli District is, what population the existing law

     college serves and whether the said law college is, in this  light, required.  Having regard to the lapse of  time, the appellant must do so within eight weeks.

     Having  regard  to the fact that the said law  college has admitted students for the academic year 1998-99 pursuant to the High Courts interim order, whether that term comes to an  end in the summer of 1999 or the winter of 1999.  it  is proper  to permit the term to be completed and the  students to  take  the examinations.  For the purposes  of  following academic years, the decision to be rendered by the appellant as aforestated shall govern.

     We  do not consider it necessary to go into any  other aspect for the purposes of this appeal.

     Order  on  the  appeal accordingly.  No  order  as  to costs.