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ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 322 OF 2012
IN
WRIT PETITION NO. 322 OF 2012
Laxmi Charitable Trust a public Trust registered under the Bombay
Public Trusts Act, 1950 and having its address at 9, Wallace Street, Fort, Mumbai 400 001 through its Managing Trustee
Mr.Hemant Vissanji … Petitioner
2. The State of Maharashtra through Secretary, Higher Education having its office at Mantralaya, Mumbai – 400 021 service to be through The Government
Pleader, Original Side, Bombay High Court
3. Shri Rajesh Tope, Former Minister of Higher and Technical
Education, Having his office at Mantralaya, Mumbai 400 032 … Respondents ...
Mr.Akshay Patil with Ms.Devika Madekar and Mr.Mukund Madekar i/b.
Madekar & Co. for the Petitioner.
Mr.Rui Rodrigues for Respondent No.1- University of Mumbai.
Mrs.Gauri Sawant, AGP for the Respondent -State. ...
ORAL JUDGMENT
1. This matter is listed in the “Prioritized Cases” category.
2. This Petition was lodged on 29th June, 2011. It was heard on the lodging number, and later, in 2012, it was assigned a regular registered number.
3. The Petitioner has put forth the following prayers: “a) that the Hon'ble Court be pleased to issue a writ of certiorari or a writ in nature of certiorari or any other appropriate writ, order or direction calling for the records leading to the impugned decision of Respondent No.1 as informed by the impugned communication dated 23-6-2011 (EXHIBIT-"M" hereto) and impugned report dated 27-5-2011 (Exhibit-M-1 hereto) and of the impugned Management Council Resolution dated 30-5-2011 passed by the Respondent No.1 and after considering their legality, validity and propriety be pleased to quash and set-aside the same; b) that pending the hearing and final disposal of the present petition the Hon'ble Court be pleased to restrain the Respondent Nos. 1 to 3 by themselves and through their officers, agents, servants and successors in office to act in pursuance of the Impugned decision dated 23-6- 2011 (EXHIBIT-M hereto) and impugned report dated 27-5-2011 (Exhibit-M-1 hereto) and the impugned Management Council Resolution dated 30-5-2011 of the Respondent No. 1; c) that pending the hearing and final disposal of the present petition the Respondents be ordered and directed to provide information and/or give inspection and/or provide copies of all documents sought by the Petitioner in its communications listed in Exhibit-N hereto.”
4. We have heard the learned Advocate for the Petitioner, the learned Advocate for the University of Mumbai and the learned AGP for Respondent No.2, State.
5. The grievance voiced by the Petitioner in the Petition, is directed against the decision of the State Government, through the Department of Higher and Technical Education, by which the transfer of the management of two degree colleges from Laxmi Education Society (hereinafter referred to as the Society) to the Laxmi Charitable Trust (hereinafter referred to as the Trust), an arrangement that had been approved by the University by following the due process of law, more than four years prior to the impugned decision, was suddenly recalled at the instance of the State Government, and the management of the said two degree colleges, was re-transferred to Laxmi Education Society.
6. The Petitioner, Laxmi Charitable Trust, approached this Court with the specific contention that a former Minister, who was the then Minister of Higher and Technical Education, was the driving force behind the State Government’s decision to issue the impugned order. With the permission of this Court, the said Minister was added as Respondent No. 3, by name.
7. On 1st July 2011, this Court considered the grievance of the Petitioner and passed an order granting ad-interim relief in terms of prayer clause (b), reproduced above. The ad-interim relief was continued from time to time, and by an order dated 28th November 2018, this Petition was admitted and the interim relief was continued.
8. It is specifically averred in the Petitioner’s pleadings that the Petitioner and Laxmi Education Society, which has common trustees, came together and mutually agreed to transfer two degree colleges of Laxmi Education Society to Laxmi Charitable Trust. The Society’s difficult economic condition was the primary reason for transferring the degree colleges to the Trust, which was financially strong.
DATES AND SEQUENCE OF EVENTS
9. The Society passed a resolution in 1999 to transfer the management of two degree colleges to the Trust. On 9th June 1999, the Petitioner made an application to the University seeking permission to take over the management of the degree colleges. By a letter dated 10th October 2000, Respondent No. 1 informed the Petitioner that the proposal had been placed before the Management Council in its meeting on 5th September
2000. The Management Council resolved that the Petitioner should enter into an agreement with the Society for taking over the management of the two degree colleges. By a communication dated 26th December, 2001, Respondent No.1 informed the Petitioner that a Committee was appointed by the Management Council of the University and the meeting was scheduled on 3rd December, 2001.
10. Since no decision was forthcoming from the University, the Petitioner approached this Court in Writ Petition No. 1598 of 2006 seeking directions to the University. By an order dated 18th September 2006, this Court disposed off the Writ Petition by directing the Committee to examine the Petitioner’s request for change in management and to submit a report within four months. The State Government did not raise any issue that the University had no jurisdiction to entertain such request. This Court further directed the University to decide the issue of transfer of management within two months of receiving the report. The Committee tendered the report to the University and the Management Council accepted the same in its meeting on 20th April, 2007. The Resolution to permit the transfer of management to the Petitioner was granted. Consequently, the management of the two degree colleges was transferred to the Petitioner with effect from 1st June, 2007.
11. It is specifically contended by the Petitioner that thereafter, both these degree colleges have been functioning smoothly and are academically progressing. It is further contended that, by a show cause notice dated 7th March 2011 issued under Section 3 of the Maharashtra Educational Institutions (Management) Act, 1976 (the Act of 1976), the Petitioner was called upon to explain as to why the management of the said colleges should not be taken over by the State Government and as to why an Administrator should not be appointed. The Petitioner preferred Writ Petition No. 611 of 2011 (inadvertently mentioned as 512 of 2011 in the Petition) assailing the said notice for various reasons, inter alia, on the ground that both, the Society and the Trust were minority institutions and, Section 92 of the Maharashtra Universities Act, 1994 (the Act of 1994), would not be applicable. During the pendency of the Petition, Respondent No. 2 withdrew the said show cause notice by conceding that the Act of 1994 was not applicable to the said colleges and the Petitioner. Respondent No. 2 thereafter issued a letter dated 19th March, 2011 withdrawing the show cause notice. For ready reference, we are reproducing Section 12 of the Act of 1976 here under:
12. However, the Petitioner learnt from a news item published on 25th March, 2011 in the Times of India that Respondent No. 3, the Minister of State for Higher Education, had made a statement that under Section 92 the Act of 1994, the Government had the right to permit the transfer of colleges and that the University was not competent to allow the transfer of Management of a college. The Petitioner’s grievance is that, having failed to cancel the transfer of the colleges due to the indulgence of this Court, the State Government decided to illegally invoke Section 92 of the Act of 1994, for taking over the management of the Society and for appointing an Administrator.
13. The learned Advocate for the Petitioner submits that the Petitioner did have a minority certificate, though the Society, at the relevant time, did not have such a certificate in spite of being a minority institution. It was further averred that the State Government intends to change the status of the Petitioner and the Society, in order to bring them out of the ambit of the status of a minority institution.
14. Respondent No. 3 herein, then issued a letter dated 24th March 2011, to the Minister of Minority Development, who, in turn, issued a notice on 24th November 2011, to the Petitioner, calling upon it to show cause as to why its minority status should not be revoked. The notice indicated that there were ‘certain things’ happening in the degree colleges due to which legislators had been asking questions in the Legislative Assembly. On 24th March 2011, Respondent No. 3 also addressed another letter to the Minister informing that the appointment of an Administrator for the two degree colleges, was under consideration. As a consequence, on 17th May 2013, the Minority Development Department of the Government of Maharashtra, issued an order cancelling the minority status of the Charitable Trust. The Trust has not assailed this decision.
15. The learned Advocate for the Petitioner submits that, as on date, the Petitioner Trust is functioning smoothly and the two degree colleges transferred to the Petitioner Trust, much before the minority status of the Trust was cancelled, are academically progressing.
16. We find from the interim order that this Court has applied its mind to the pleadings of the parties, the law applicable and was convinced that the act of the cancellation of the decision of the University, at the behest of the State Government, was unjustified. Hence, the impugned decision was stayed.
17. The Petitioner had received another show cause notice dated 10th June, 2011 under Section 3 (1) of the Act of 1976, calling upon it to show cause why an Administrator should not be appointed under the same provision. We are not dealing with the said issue as it has not been raised in this Petition.
18. It cannot be overlooked that the earlier show cause notice dated 7th March, 2011 issued to the Petitioner under Section 3 (1) of the Act of 1976, was withdrawn by Respondent No.2. The Petitioner challenged the show cause notice dated 10th June, 2011 by preferring Writ Petition (L) No. 1197 of 2011. The said Writ Petition was disposed off by this Court by order dated 17th June, 2011 and Respondent No.2 was directed not to implement and act consequent to any decision, which it may take for a period of two weeks.
19. On 26th June 2011, the Petitioner received, conspicuously late in the night, a letter dated 23rd June 2011 from the University, stating that the University had conducted a meeting of the Management Council on 30th May 2011, in which the Management Council accepted the report of the Sub-Committee dated 27th May, 2011 and cancelled its earlier resolution dated 20th April 2007, which had permitted the transfer of management in favour of the Petitioner. The said letter, the report of the Sub-Committee and the decision of the Management Council, are impugned in this Petition.
20. It is in the above backdrop that this Court was convinced that the Petitioner deserved interim relief and accordingly passed an order on 1st July 2011, granting interim relief in terms of prayer clause (b), reproduced above.
21. The learned AGP submits that 14 years have passed since the State Government took the decision, which has been stayed by this Court.
22. The learned Advocate for the Petitioner submits that the two transferred degree colleges have been functioning smoothly for the past 14 years. Several batches of students have taken admissions and have passed out. Respondent No. 3, who was the Minister of the State at the relevant time, is no longer in the Government. He, therefore, submits that considering the stability provided to these two degree colleges due to the strong financial support of the Petitioner, and the fact that the colleges are functioning well even today, this Petition may be allowed in terms of the interim order.
ANALYSIS AND CONCLUSIONS
23. It would appear to be academic to deal with this issue, which is 14 years old. This Court had applied its mind to the pleadings of the parties and confirmed the interim relief while admitting the Petition. The Petitioner Trust had the minority status in view of the certificate issued by the Government, as the Petitioner is a linguistic minority institution and is recognized as a minority educational institution by the Government of Maharashtra, as per the certificate dated 9th February, 2009. This certification is subsequently withdrawn by the Government. The decision of the then Government to appoint an Administrator, has also been stayed. The two degree colleges are functioning smoothly. However, it cannot be ignored that the State has invoked Section 92 of the 1994 Act, to set aside the decision of the University to approve the transfer of Management. This triggered a reaction with the University, and it withdrew it’s approval after 4 years, apparently under duress.
24. Section 92 of the Act of 1994 reads as under:
25. It is, therefore, apparent that Section 92 comes into play when the management of a college or a recognized institution, desires to close down a college or a recognized institution. Such action or step cannot be initiated without the prior permission of the State Government. The procedure for a Management to close down a college, is prescribed under Section 92, and the Academic Council is empowered to make an inquiry to assess and determine whether the institution may be permitted to close down an affiliated college. The Academic Council can also examine whether the closure should be avoided by providing necessary assistance or for taking over the college or institution by the University or transferring it to another Management. The recommendation of the Academic Council is considered important and, with the concurrence of the Management Council and the approval of the State Government, the permission for closure of an affiliated college or recognized institution, could be granted. Sub-Section 6 indicates that the University can take over a college or recognized institution, or transfer it to another management, with the prior approval of the State Government and after following the procedure prescribed under section 92.
26. The learned Advocate for the Petitioner has clarified on the basis of the pleadings that this was not a case of closure. It was purely a case of transfer of two colleges, which is covered by Section 81 of the 1994 Act. Section 81 reads as under: “81. Conditions for affiliation and recognition.-(1) The management applying for affiliation or recognition, and management whose college or institution has been granted affiliation or recognition shall give and comply with the following undertaking,-- (a) that the provisions of the Act and Statutes, Ordinances and Regulations thereunder and the standing orders and directions of the university shall be observed; (b) that there shall be a separate local managing committee provided for an affiliated college as provided by section 85;
(c) that the number of students admitted for courses of study shall not exceed the limits prescribed by the university and the State Government from time to time;
(d) that there shall be suitable and adequate physical facilities such as buildings, laboratories, libraries, books, equipment required for teaching and researches hostels, gymnasium, as may be prescribed; (e) that the financial resources of the college or institution shall be such as to make due provision for its continued maintenance and working; (f) that the strength and qualifications of teaching and non-teaching staff of the affiliated colleges and recognised institutions and the emoluments and the terms and conditions of service of the staff of affiliated colleges shall be such as prescribed by the university and which shall be sufficient to make due provision for courses of study, teaching or training or research, efficiently; (g) that the services of all teaching and non-teaching employees and the facilities of the college to be affiliated shall be made available for conducting examinations [and evaluation,] and for promoting other activities of the university; (h) that the directions and orders issued by the Chancellor, Vice-Chancellor and other officers of the university in exercise of the powers conferred on them under the provisions of the Act, Statutes, Ordinances and Regulations shall be complied with;
(i) that there shall be no change or transfer of the management without previous permission of the university; (j) that the college or institution shall not be closed without previous permission of the university; (k) that in the event of disaffiliation or derecognition or closure of the college or institution under section 92 all the assets of the college or institution including building and equipment which have been constructed or created out of the amount paid as a grant-in-aid by the State Government or the University Grants Commission shall vest in the State Government. (2) No college which is part of another university shall be considered for affiliation unless a "no objection certificate" is given by the parent university”.
27. We are unable to accept the contention of the State, for the reason that if the two degree colleges were affiliated to a particular University, the transfer of a college or recognized institution to another management was a decision to be taken by the University by following the procedure prescribed in that behalf. There is no issue that the University granted approval for the transfer and it did not obtain the prior approval of the State Government. The question is, as to whether it was mandatory to do so, when the issue was only of transfer of Management. It is to be noted that the Act of 1994 was in play when the cause of action has arisen.
28. The learned Advocate for the Petitioner submits that in ground (D), the Petitioner has taken a specific stand that in the case of a minority institution, the permission of the State Government is not required. Grounds (D) and (E) read as under:
29. The learned Advocate for the University submits that when the cause of action arose in this Petition, the Act of 1994 was applicable. He refers to Section 81(1)(i), which provides that there shall be no change or transfer of management without the previous permission of the University. He further refers to the title of Chapter X – ‘Permission, Affiliation and Recognition’ and submits that Section 81 pertains to the conditions for affiliation and recognition. Hence, according to him, Section 81(1)(i) enables the University to sanction the change or transfer of management. He then refers to Section 92 – ‘Closure of the College or Recognized Institution’ and submits that when the University deals with cases of closure of an affiliated college or recognized institution, it could consider, as an option, the transfer of management through the Academic Council, with the concurrence of the Management Council and the approval of the State Government under Sub-Section (5) of Sec. 92. To avoid closure, the University can take recourse to Sub-Section (6) for taking over a college or recognized institution, or for transferring it to another management, with the prior approval of the State Government.
30. The learned Advocate for the Petitioner, therefore, relies upon Sub Section (3) of Section 92 of the Act of 1994, to buttress his contention that the Academic Council can cause inquiries to assess and determine whether a college or recognized institution can be permitted to effect a closure and whether such closure could be avoided by providing necessary assistance or taking over of the college or institute by the University or transferring it to another management, only as an alternative.
31. In view of the above, we are convinced that Section 81 and Section 92 operate in two distinct and different situations. The provisions under Section 81 can be considered in cases exclusively seeking permission, affiliation, and recognition to an institution and transfer of Management.
32. Section 92 of the Act of 1994 operates in a completely different set of circumstances, and the prior approval of the State Government under Sub-Section (6) is required if the University decides to avoid the closure of a college or recognized institution by transferring it to another management or for taking over such college or recognized institution. Naturally, if the University is to take over a college or recognized institution, the prior approval of the State Government is necessary, as the issue of funding the colleges would arise.
33. In view of the above, we find that the Maharashtra Educational Institutions (Management) Act, 1976 would not apply to a minority institution in the light of Section 12 reproduced above. Similarly, the decision of the State Government to invoke Section 92(6) of the Act of 1994, to interfere with a 4 years old crystallized decision of the Academic Council and the Management Council of the University under Section 81, amounts to unfairly interjecting in such decision by applying a nonapplicable provision, which is unsustainable.
34. In view of the above, this Writ Petition is allowed. Consequentially, the impugned communication dated 23rd June 2011, the report dated 27th May, 2011 and the Management Council Resolution dated 30th May 2011, stand quashed and set aside.
35. Rule is made absolute in the above terms. (ASHWIN D. BHOBE, J.) (RAVINDRA V. GHUGE, J.)