Full Judgment Text
2-IAL.1063.2021 - W
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO.1063 OF 2021
IN
WRIT PETITION (L) NO.2331 OF 2019
Rao Educational Trust } Applicant
In the matter between
Manju Ramesh Jaiswal } Petitioner
And
State of Maharashtra and Ors. } Respondents
WITH
WRIT PETITION (L) NO. 2331 OF 2019
Manju Ramesh Jaiswal } Petitioner
Versus
State of Maharashtra and Ors. } Respondents
WITH
INTERIM APPLICATION (L) NO.9969 OF 2020
WITH
INTERIM APPLICATION (L) NO.2333 OF 2020
WITH
INTERIM APPLICATION (L) NO.2 OF 2021
WITH
INTERIM APPLICATION (L) NO.508 OF 2021
WITH
INTERIM APPLICATION (L) NO.514 OF 2021
WITH
INTERIM APPLICATION (L) NO.1282 OF 2021
WITH
INTERIM APPLICATION (L) NO.1281 OF 2021
WITH
INTERIM APPLICATION (L) NO.1283 OF 2021
WITH
INTERIM APPLICATION (L) NO.1284 OF 2021
Page 1 of 11
J.V.Salunke,PS
::: Uploaded on - 18/01/2021 ::: Downloaded on - 02/06/2024 01:39:24 :::
2-IAL.1063.2021 - W
Mr.S.C.Naidu with Dr.Ramesh Asawa, Mr.Aniketh
Poojari, Mr.Sudesh Naidu i/b. Mr.Aditya Hegde
for the applicant.
Mr.A.Y.Sakhare with Mr.Chirag Shah, Mr.Rohan
Mirpury and Mr.Raj Adhia i/b. Mr.Jayesh Patel for
the petitioner.
Ms.Geeta Shastri-Additional Government
Pleader for the State.
Mr.Kiran Gandhi i/b. M/s.Little and Co. for
respondent no.9.
Mr.Ashish Kamat with Mr.Vishesh Malviya,
Ms.Kinjal Shah and Ms.Pooja Vasandani i/b.
M/s.Rashmikant and Partners for respondent
no.6.
Dr.Birendra Saraf-Senior Advocate i/b.Mr.Rahul
Soman for the proposed intervener.
CORAM :- DIPANKAR DATTA, CJ &
G. S. KULKARNI, J.
DATE :- JANUARY 15, 2021
ORAL JUDGMENT :
1. Interim Application (L) No.1063 of 2021 is on Board
today. The prayers therein read as follows:-
“a) That the ex-parte ad-interim order dated
th
29 December, 2020 and continued vide further
st
orders dated 31 December, 2020 and continued
th
with modification vide order dated 4 January,
2021 be recalled and vacated.
Page 2 of 11
J.V.Salunke,PS
::: Uploaded on - 18/01/2021 ::: Downloaded on - 02/06/2024 01:39:24 :::
2-IAL.1063.2021 - W
th
b) In the alternate the order dated 4
January 2021 be varied, modified or revised and
Respondent Board be directed to forthwith allot
and communicate the Provisional Index and Code
numbers to each of the five Colleges of the
Applicant and to act upon the said Index Number
and Code Number for accepting the forms of
students studying in Std. XII of the said five
colleges;
c) That in exercise of its extra ordinary
jurisdiction direct the Respondent Board to
communicate index & code number to each
college of the applicant and thereafter accept
examination forms with prescribed fees of all
eligible students for appearing in A.Y. 2020-21
HSC Board Exams or in the alternate accept all
examination forms of all eligible students studying
in the five colleges of the Applicants for A.Y.
2020-21 alongwith prescribed examination fee
through any other recognized colleges;
d) The Respondent Board be directed to allot
Seat Number, Identity Card, Hall Ticket, etc. to
facilitate students studying in Std. XII (5 colleges
of Applicant) to appear and give HSC Board Exam
A.Y. 2020-21.”
2.
Appearing in support of the application, Mr.Naidu,
learned advocate for the applicant (the respondent no.5 in the
writ petition) has challenged the locus standi of the petitioner
to invoke the writ jurisdiction. In addition, he has also
submitted that the writ petition stood rejected for non-
compliance with office directions for removal of objections;
yet, the petitioner obtained orders in such disposed of writ
petition by filing interim applications. It has also been
submitted by him that the writ petition is a “cut, copy and
paste” of Public Interest Litigation (L) No.69 of 2018, which
th
stood dismissed by reason of an order dated 16 October
Page 3 of 11
J.V.Salunke,PS
::: Uploaded on - 18/01/2021 ::: Downloaded on - 02/06/2024 01:39:24 :::
2-IAL.1063.2021 - W
2019 owing to the PIL petitioner not removing the objections.
3. Having heard Mr.Naidu, we had called upon Mr.Sakhare,
learned senior counsel for the petitioner to satisfy us that she
had/has the necessary locus standi to present this writ
petition.
4.
Mr.Sakhare, by referring to the pleadings, has sought to
contend that the petitioner in fact has the locus standi and
therefore, being satisfied, a coordinate Bench of this Court
th
issued Rule on 14 October 2019; not only that, other
coordinate Benches also found merit in the cause espoused by
th
the petitioner resulting in an order dated 28 January 2020
being passed, whereby the State Government was restrained
from granting approvals/permissions in respect of opening of
junior colleges in violation of the relevant law, i.e., the
Maharashtra Self-Financed Schools (Establishment and
Regulation) Act, 2012 (hereafter “the Act”, for short). Not
only that, the Government had made an application in the
pending writ petition seeking permission to consider
applications that were pending having regard to introduction
of appropriate rules framed under the Act and an order on
nd
such application was passed on 2 November 2020 granting
liberty to the State Government to consider such applications
in accordance with the rules.
5.
Based thereon, it is the submission of Mr.Sakhare that
the writ petition is maintainable and as such, ought to be
taken to its logical conclusion not on the basis of any technical
Page 4 of 11
J.V.Salunke,PS
::: Uploaded on - 18/01/2021 ::: Downloaded on - 02/06/2024 01:39:24 :::
2-IAL.1063.2021 - W
objection that might have been raised by Mr.Naidu or on the
ground that the petitioner lacks the locus standi to present it,
but strictly on the merits of the cause touching immense
public interest; if necessary, by converting the writ petition
into a ‘Public Interest Litigation’.
6.
The main prayers in the writ petition read as follows:
“ (a) That this Hon’ble Court be pleased to
issue a Writ of Certiorari or a Writ in the nature of
Certiorari or any other appropriate writ, order or
direction under Article 226 of the Constitution of
India, thereby calling for the records and
proceedings relating to the permissions and
sanctions granted to the Respondent No.4 to 8 for
setting up the school/Junior Colleges and after
examining the legality, validity and propriety
thereof, the said permissions and sanctions be
quashed and set aside;
(b) that this Hon’ble Court be pleased to issue
a Writ of Mandamus or a Writ in the nature of
Mandamus or any other Writ or order or direction
under Article 226 of the Constitution of India
directing the Respondent No.1, 2 and 3 to strictly
without any deviation whatsoever to follow the
procedure as mandated under the provisions of
Maharashtra Self-Financed Schools (Establishment
and Regulation) Act, 2012 in granting approval /
recognition to school/Junior Colleges and/or
Schools;
(c) That this Hon’ble Court be pleased to
appoint independent Court Commissioner and the
Respondent No.3 and/or any other person to visit
the Junior Colleges established by the Respondent
No.4 to 8 and file necessary report to this Hon’ble
Court.”
7. Having heard Mr.Sakhare and Mr.Naidu and on perusal of
the materials placed before the Court, we are of the
Page 5 of 11
J.V.Salunke,PS
::: Uploaded on - 18/01/2021 ::: Downloaded on - 02/06/2024 01:39:24 :::
2-IAL.1063.2021 - W
considered opinion that the petitioner has approached the
Court with a veil on her face to hide her identity. In para 1 of
the writ petition, the petitioner has described herself as a
trustee of Kausalya Shringare Education Trust. However, the
petitioner conveniently did not disclose that on the date she
th
presented the writ petition before the Court, i.e. 8 August
2019, she was also the treasurer of Nirmala Education
Society, a trust engaged in education as the respondent no.5
in the writ petition, on whose behalf Mr.Naidu has contended
with vehemence that both, Nirmala Education Society and the
respondent no.5, are competitors in trade and that the writ
petition has been presented before the court by the petitioner
ostensibly to enable Nirmala Education Society steal a march
over the respondent no.5. According to Mr.Naidu, if the
students admitted in the institutions run by the respondent
no.5 are disabled from appearing in the ensuing examination,
they may choose to secure admission in the junior colleges
run by Nirmala Education Society.
8.
Although we are not inclined to examine this submission
of Mr.Naidu, as a matter of fact what pains us is the conduct
of the petitioner in not disclosing in the writ petition her
association with Nirmala Education Society. We also have a
doubt whether the petitioner has come with bonafide
disclosure of her identity.
9.
Apart from the above, what we find is that the writ
petition is almost a mirror reflection of the contents of Public
Interest Litigation (L) No.69 of 2018, which was pending on
Page 6 of 11
J.V.Salunke,PS
::: Uploaded on - 18/01/2021 ::: Downloaded on - 02/06/2024 01:39:24 :::
2-IAL.1063.2021 - W
the file of this Court when this writ petition came to be
presented, with minor changes here and there. Interestingly,
by referring to certain circumstances, Mr.Naidu has sought to
establish a nexus between the litigant in the PIL petition and
Nirmala Education Society. However, we need not examine
that aspect of the matter, for, the writ petition having been
copied from the aforesaid PIL petition does not contain a
single pleading as to how the petitioner’s legal right was
infringed leading her to approach the writ court for redress.
As has been submitted by Mr.Naidu and examined by us, the
writ petition having repeated the contents of the PIL petition
and the PIL petitioner not being under any compulsion to
disclose in the petition how his personal right has been
affected, the writ petition (drafted by an advocate borrowing
inspiration from the PIL petition as Mr. Sakhare would
persuade to believe) does not contain any pleading with
regard to affectation of the right of the petitioner by reason of
mushrooming of junior colleges in the State of Maharashtra
without compliance with the Act and the Rules and without
the State Government taking appropriate steps to check such
mushrooming.
10. Mr.Naidu has referred to us the decisions of the Supreme
Court in The Nagar Rice and Flour Mills and Ors. vs.
N.Teekappa Gowda and Bros. and Ors. , reported in AIR
1971 SC 246, Jasbhai Motibhai Desai vs. Roshan Kumar
and Ors. reported in AIR 1976 SC 578 and K.D.Sharma vs.
Steel Authority of India Limited and Ors., reported in
(2008) 12 SCC 481 and submitted that the petitioner being
Page 7 of 11
J.V.Salunke,PS
::: Uploaded on - 18/01/2021 ::: Downloaded on - 02/06/2024 01:39:24 :::
2-IAL.1063.2021 - W
the face of Nirmala Education Society and Nirmala Education
Society having a business interest in ensuring that the
respondent no.5 is pushed out of business, the writ petition
should be immediately dismissed.
11.
The decisions in Nagar Rice and Flour Mills (supra)
and Jasbhai Motibhai Desai (supra) are authorities for the
proposition that a rival in trade cannot question setting up of
a business even if there is statutory violation. Even if Nirmala
Education Society had presented the petition with full
particulars, the law laid down in Nagar Rice and Flour Mills
(supra) and Jasbhai Motibhai Desai (supra) would have
been squarely applicable for nipping the challenge in the bud
by this Court. We shall assume, for all effective purposes and
intents, that this is a writ petition at the instance of Nirmala
Education Society trying to stall the respondent no.5 from
running its junior colleges and on such premise, the ratio
decidendi in Nagar Rice and Flour Mills (supra) and
Jasbhai Motibhai Desai (supra) would squarely apply.
Assuming that this writ petition is not to be regarded as one
at the instance of Nirmala Education Society but at the
instance of the petitioner in her personal capacity, the
decision of the Supreme Court in the case of Mani Subrat
Jain etc. vs. State of Haryana and Ors. reported in AIR
1977 276 would be attracted. The Supreme Court observed
that it is elementary, though it is to be restated that no one
can ask for a mandamus without a legal right. There must be
a judicially enforceable right as well as a legally protected
right before one suffering a legal grievance can ask for a
Page 8 of 11
J.V.Salunke,PS
::: Uploaded on - 18/01/2021 ::: Downloaded on - 02/06/2024 01:39:24 :::
2-IAL.1063.2021 - W
mandamus. A person can be said to be aggrieved only when a
person is denied a legal right by someone who has a legal
duty to do something or to abstain from doing something. No
case of such nature is set up in this writ petition by referring
to the personal right of the petitioner which has been
affected. The decision in K.D.Sharma (supra) reminds us that
whenever an individual invokes the jurisdiction of the Court by
making false statement or concealing material facts or by
misleading the Court, in such case, the Court should dismiss
the writ petition at the threshold without consideration of the
merit of the claim. We see no reason not to apply the ratio of
the said decision here.
12.
The cause, otherwise espoused by the petitioner, is of
immense significance for the students’ community of the
State of Maharashtra. None of the respondents, at the
relevant time, had raised objection to the maintainability of
the writ petition and therefore, the coordinate Bench
th
considering the writ petition on 14 October 2019 proceeded
to issue Rule and thereafter made appropriate interim orders
considering the gravity of the allegations that were levelled.
Indeed, a good cause had led to an order being passed by the
coordinate Bench, which ultimately culminated in framing of
the Rules under the Act, which were long overdue. The larger
purpose of introduction of the Rules under the Act has, thus,
been served. However, we cannot lose sight of the fact that
howsoever good a cause may have been set up for invocation
of the writ jurisdiction, the golden rule is that the party
approaching the Court must approach it with clean hands. We
Page 9 of 11
J.V.Salunke,PS
::: Uploaded on - 18/01/2021 ::: Downloaded on - 02/06/2024 01:39:24 :::
2-IAL.1063.2021 - W
have no doubt in our mind that this writ petition, which is at
the instance of an individual, did not deserve even an order
for issuance of Rule, had the entire facts and circumstances
been brought to the notice of the coordinate Bench when it
was first moved.
13.
The other prayer of Mr. Sakhare to convert the writ
petition into a PIL petition has to be rejected since the
petitioner has a personal interest to push out the respondent
no.5 from the trade. Her bona fides would be in question in
the first place and the basic foundation of the PIL petition in
peril. We, therefore, reject the prayer.
14.
For the reasons aforesaid, we dismiss the writ petition
and discharge the Rule. There shall be no order as to costs.
15. Since the writ petition itself stands dismissed on the
ground of lack of locus standi and omission to disclose
material facts, all pending applications stand disposed of
without any order. Interim order, if any, stands vacated
forthwith.
16. Before parting, in the interest of the students’
community, we wish to remind the State Government that
mushrooming of schools/junior colleges in violation of the
statutory enactments/rules is not what the people of
Maharashtra would like to have and, therefore, it is incumbent
on the Government to keep a strict vigil on all such
institutions which have been allowed to operate observing the
statutory requirements in the breach. If indeed the State has
Page 10 of 11
J.V.Salunke,PS
::: Uploaded on - 18/01/2021 ::: Downloaded on - 02/06/2024 01:39:24 :::
2-IAL.1063.2021 - W
to honour its obligations as enshrined in Part IV of the
Constitution, it is the need of hour that the State cracks the
whip on errant officers conniving with persons responsible for
operating schools/junior colleges in breach of the statute.
(G. S. KULKARNI, J.) (CHIEF JUSTICE)
Page 11 of 11
J.V.Salunke,PS
::: Uploaded on - 18/01/2021 ::: Downloaded on - 02/06/2024 01:39:24 :::
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO.1063 OF 2021
IN
WRIT PETITION (L) NO.2331 OF 2019
Rao Educational Trust } Applicant
In the matter between
Manju Ramesh Jaiswal } Petitioner
And
State of Maharashtra and Ors. } Respondents
WITH
WRIT PETITION (L) NO. 2331 OF 2019
Manju Ramesh Jaiswal } Petitioner
Versus
State of Maharashtra and Ors. } Respondents
WITH
INTERIM APPLICATION (L) NO.9969 OF 2020
WITH
INTERIM APPLICATION (L) NO.2333 OF 2020
WITH
INTERIM APPLICATION (L) NO.2 OF 2021
WITH
INTERIM APPLICATION (L) NO.508 OF 2021
WITH
INTERIM APPLICATION (L) NO.514 OF 2021
WITH
INTERIM APPLICATION (L) NO.1282 OF 2021
WITH
INTERIM APPLICATION (L) NO.1281 OF 2021
WITH
INTERIM APPLICATION (L) NO.1283 OF 2021
WITH
INTERIM APPLICATION (L) NO.1284 OF 2021
Page 1 of 11
J.V.Salunke,PS
::: Uploaded on - 18/01/2021 ::: Downloaded on - 02/06/2024 01:39:24 :::
2-IAL.1063.2021 - W
Mr.S.C.Naidu with Dr.Ramesh Asawa, Mr.Aniketh
Poojari, Mr.Sudesh Naidu i/b. Mr.Aditya Hegde
for the applicant.
Mr.A.Y.Sakhare with Mr.Chirag Shah, Mr.Rohan
Mirpury and Mr.Raj Adhia i/b. Mr.Jayesh Patel for
the petitioner.
Ms.Geeta Shastri-Additional Government
Pleader for the State.
Mr.Kiran Gandhi i/b. M/s.Little and Co. for
respondent no.9.
Mr.Ashish Kamat with Mr.Vishesh Malviya,
Ms.Kinjal Shah and Ms.Pooja Vasandani i/b.
M/s.Rashmikant and Partners for respondent
no.6.
Dr.Birendra Saraf-Senior Advocate i/b.Mr.Rahul
Soman for the proposed intervener.
CORAM :- DIPANKAR DATTA, CJ &
G. S. KULKARNI, J.
DATE :- JANUARY 15, 2021
ORAL JUDGMENT :
1. Interim Application (L) No.1063 of 2021 is on Board
today. The prayers therein read as follows:-
“a) That the ex-parte ad-interim order dated
th
29 December, 2020 and continued vide further
st
orders dated 31 December, 2020 and continued
th
with modification vide order dated 4 January,
2021 be recalled and vacated.
Page 2 of 11
J.V.Salunke,PS
::: Uploaded on - 18/01/2021 ::: Downloaded on - 02/06/2024 01:39:24 :::
2-IAL.1063.2021 - W
th
b) In the alternate the order dated 4
January 2021 be varied, modified or revised and
Respondent Board be directed to forthwith allot
and communicate the Provisional Index and Code
numbers to each of the five Colleges of the
Applicant and to act upon the said Index Number
and Code Number for accepting the forms of
students studying in Std. XII of the said five
colleges;
c) That in exercise of its extra ordinary
jurisdiction direct the Respondent Board to
communicate index & code number to each
college of the applicant and thereafter accept
examination forms with prescribed fees of all
eligible students for appearing in A.Y. 2020-21
HSC Board Exams or in the alternate accept all
examination forms of all eligible students studying
in the five colleges of the Applicants for A.Y.
2020-21 alongwith prescribed examination fee
through any other recognized colleges;
d) The Respondent Board be directed to allot
Seat Number, Identity Card, Hall Ticket, etc. to
facilitate students studying in Std. XII (5 colleges
of Applicant) to appear and give HSC Board Exam
A.Y. 2020-21.”
2.
Appearing in support of the application, Mr.Naidu,
learned advocate for the applicant (the respondent no.5 in the
writ petition) has challenged the locus standi of the petitioner
to invoke the writ jurisdiction. In addition, he has also
submitted that the writ petition stood rejected for non-
compliance with office directions for removal of objections;
yet, the petitioner obtained orders in such disposed of writ
petition by filing interim applications. It has also been
submitted by him that the writ petition is a “cut, copy and
paste” of Public Interest Litigation (L) No.69 of 2018, which
th
stood dismissed by reason of an order dated 16 October
Page 3 of 11
J.V.Salunke,PS
::: Uploaded on - 18/01/2021 ::: Downloaded on - 02/06/2024 01:39:24 :::
2-IAL.1063.2021 - W
2019 owing to the PIL petitioner not removing the objections.
3. Having heard Mr.Naidu, we had called upon Mr.Sakhare,
learned senior counsel for the petitioner to satisfy us that she
had/has the necessary locus standi to present this writ
petition.
4.
Mr.Sakhare, by referring to the pleadings, has sought to
contend that the petitioner in fact has the locus standi and
therefore, being satisfied, a coordinate Bench of this Court
th
issued Rule on 14 October 2019; not only that, other
coordinate Benches also found merit in the cause espoused by
th
the petitioner resulting in an order dated 28 January 2020
being passed, whereby the State Government was restrained
from granting approvals/permissions in respect of opening of
junior colleges in violation of the relevant law, i.e., the
Maharashtra Self-Financed Schools (Establishment and
Regulation) Act, 2012 (hereafter “the Act”, for short). Not
only that, the Government had made an application in the
pending writ petition seeking permission to consider
applications that were pending having regard to introduction
of appropriate rules framed under the Act and an order on
nd
such application was passed on 2 November 2020 granting
liberty to the State Government to consider such applications
in accordance with the rules.
5.
Based thereon, it is the submission of Mr.Sakhare that
the writ petition is maintainable and as such, ought to be
taken to its logical conclusion not on the basis of any technical
Page 4 of 11
J.V.Salunke,PS
::: Uploaded on - 18/01/2021 ::: Downloaded on - 02/06/2024 01:39:24 :::
2-IAL.1063.2021 - W
objection that might have been raised by Mr.Naidu or on the
ground that the petitioner lacks the locus standi to present it,
but strictly on the merits of the cause touching immense
public interest; if necessary, by converting the writ petition
into a ‘Public Interest Litigation’.
6.
The main prayers in the writ petition read as follows:
“ (a) That this Hon’ble Court be pleased to
issue a Writ of Certiorari or a Writ in the nature of
Certiorari or any other appropriate writ, order or
direction under Article 226 of the Constitution of
India, thereby calling for the records and
proceedings relating to the permissions and
sanctions granted to the Respondent No.4 to 8 for
setting up the school/Junior Colleges and after
examining the legality, validity and propriety
thereof, the said permissions and sanctions be
quashed and set aside;
(b) that this Hon’ble Court be pleased to issue
a Writ of Mandamus or a Writ in the nature of
Mandamus or any other Writ or order or direction
under Article 226 of the Constitution of India
directing the Respondent No.1, 2 and 3 to strictly
without any deviation whatsoever to follow the
procedure as mandated under the provisions of
Maharashtra Self-Financed Schools (Establishment
and Regulation) Act, 2012 in granting approval /
recognition to school/Junior Colleges and/or
Schools;
(c) That this Hon’ble Court be pleased to
appoint independent Court Commissioner and the
Respondent No.3 and/or any other person to visit
the Junior Colleges established by the Respondent
No.4 to 8 and file necessary report to this Hon’ble
Court.”
7. Having heard Mr.Sakhare and Mr.Naidu and on perusal of
the materials placed before the Court, we are of the
Page 5 of 11
J.V.Salunke,PS
::: Uploaded on - 18/01/2021 ::: Downloaded on - 02/06/2024 01:39:24 :::
2-IAL.1063.2021 - W
considered opinion that the petitioner has approached the
Court with a veil on her face to hide her identity. In para 1 of
the writ petition, the petitioner has described herself as a
trustee of Kausalya Shringare Education Trust. However, the
petitioner conveniently did not disclose that on the date she
th
presented the writ petition before the Court, i.e. 8 August
2019, she was also the treasurer of Nirmala Education
Society, a trust engaged in education as the respondent no.5
in the writ petition, on whose behalf Mr.Naidu has contended
with vehemence that both, Nirmala Education Society and the
respondent no.5, are competitors in trade and that the writ
petition has been presented before the court by the petitioner
ostensibly to enable Nirmala Education Society steal a march
over the respondent no.5. According to Mr.Naidu, if the
students admitted in the institutions run by the respondent
no.5 are disabled from appearing in the ensuing examination,
they may choose to secure admission in the junior colleges
run by Nirmala Education Society.
8.
Although we are not inclined to examine this submission
of Mr.Naidu, as a matter of fact what pains us is the conduct
of the petitioner in not disclosing in the writ petition her
association with Nirmala Education Society. We also have a
doubt whether the petitioner has come with bonafide
disclosure of her identity.
9.
Apart from the above, what we find is that the writ
petition is almost a mirror reflection of the contents of Public
Interest Litigation (L) No.69 of 2018, which was pending on
Page 6 of 11
J.V.Salunke,PS
::: Uploaded on - 18/01/2021 ::: Downloaded on - 02/06/2024 01:39:24 :::
2-IAL.1063.2021 - W
the file of this Court when this writ petition came to be
presented, with minor changes here and there. Interestingly,
by referring to certain circumstances, Mr.Naidu has sought to
establish a nexus between the litigant in the PIL petition and
Nirmala Education Society. However, we need not examine
that aspect of the matter, for, the writ petition having been
copied from the aforesaid PIL petition does not contain a
single pleading as to how the petitioner’s legal right was
infringed leading her to approach the writ court for redress.
As has been submitted by Mr.Naidu and examined by us, the
writ petition having repeated the contents of the PIL petition
and the PIL petitioner not being under any compulsion to
disclose in the petition how his personal right has been
affected, the writ petition (drafted by an advocate borrowing
inspiration from the PIL petition as Mr. Sakhare would
persuade to believe) does not contain any pleading with
regard to affectation of the right of the petitioner by reason of
mushrooming of junior colleges in the State of Maharashtra
without compliance with the Act and the Rules and without
the State Government taking appropriate steps to check such
mushrooming.
10. Mr.Naidu has referred to us the decisions of the Supreme
Court in The Nagar Rice and Flour Mills and Ors. vs.
N.Teekappa Gowda and Bros. and Ors. , reported in AIR
1971 SC 246, Jasbhai Motibhai Desai vs. Roshan Kumar
and Ors. reported in AIR 1976 SC 578 and K.D.Sharma vs.
Steel Authority of India Limited and Ors., reported in
(2008) 12 SCC 481 and submitted that the petitioner being
Page 7 of 11
J.V.Salunke,PS
::: Uploaded on - 18/01/2021 ::: Downloaded on - 02/06/2024 01:39:24 :::
2-IAL.1063.2021 - W
the face of Nirmala Education Society and Nirmala Education
Society having a business interest in ensuring that the
respondent no.5 is pushed out of business, the writ petition
should be immediately dismissed.
11.
The decisions in Nagar Rice and Flour Mills (supra)
and Jasbhai Motibhai Desai (supra) are authorities for the
proposition that a rival in trade cannot question setting up of
a business even if there is statutory violation. Even if Nirmala
Education Society had presented the petition with full
particulars, the law laid down in Nagar Rice and Flour Mills
(supra) and Jasbhai Motibhai Desai (supra) would have
been squarely applicable for nipping the challenge in the bud
by this Court. We shall assume, for all effective purposes and
intents, that this is a writ petition at the instance of Nirmala
Education Society trying to stall the respondent no.5 from
running its junior colleges and on such premise, the ratio
decidendi in Nagar Rice and Flour Mills (supra) and
Jasbhai Motibhai Desai (supra) would squarely apply.
Assuming that this writ petition is not to be regarded as one
at the instance of Nirmala Education Society but at the
instance of the petitioner in her personal capacity, the
decision of the Supreme Court in the case of Mani Subrat
Jain etc. vs. State of Haryana and Ors. reported in AIR
1977 276 would be attracted. The Supreme Court observed
that it is elementary, though it is to be restated that no one
can ask for a mandamus without a legal right. There must be
a judicially enforceable right as well as a legally protected
right before one suffering a legal grievance can ask for a
Page 8 of 11
J.V.Salunke,PS
::: Uploaded on - 18/01/2021 ::: Downloaded on - 02/06/2024 01:39:24 :::
2-IAL.1063.2021 - W
mandamus. A person can be said to be aggrieved only when a
person is denied a legal right by someone who has a legal
duty to do something or to abstain from doing something. No
case of such nature is set up in this writ petition by referring
to the personal right of the petitioner which has been
affected. The decision in K.D.Sharma (supra) reminds us that
whenever an individual invokes the jurisdiction of the Court by
making false statement or concealing material facts or by
misleading the Court, in such case, the Court should dismiss
the writ petition at the threshold without consideration of the
merit of the claim. We see no reason not to apply the ratio of
the said decision here.
12.
The cause, otherwise espoused by the petitioner, is of
immense significance for the students’ community of the
State of Maharashtra. None of the respondents, at the
relevant time, had raised objection to the maintainability of
the writ petition and therefore, the coordinate Bench
th
considering the writ petition on 14 October 2019 proceeded
to issue Rule and thereafter made appropriate interim orders
considering the gravity of the allegations that were levelled.
Indeed, a good cause had led to an order being passed by the
coordinate Bench, which ultimately culminated in framing of
the Rules under the Act, which were long overdue. The larger
purpose of introduction of the Rules under the Act has, thus,
been served. However, we cannot lose sight of the fact that
howsoever good a cause may have been set up for invocation
of the writ jurisdiction, the golden rule is that the party
approaching the Court must approach it with clean hands. We
Page 9 of 11
J.V.Salunke,PS
::: Uploaded on - 18/01/2021 ::: Downloaded on - 02/06/2024 01:39:24 :::
2-IAL.1063.2021 - W
have no doubt in our mind that this writ petition, which is at
the instance of an individual, did not deserve even an order
for issuance of Rule, had the entire facts and circumstances
been brought to the notice of the coordinate Bench when it
was first moved.
13.
The other prayer of Mr. Sakhare to convert the writ
petition into a PIL petition has to be rejected since the
petitioner has a personal interest to push out the respondent
no.5 from the trade. Her bona fides would be in question in
the first place and the basic foundation of the PIL petition in
peril. We, therefore, reject the prayer.
14.
For the reasons aforesaid, we dismiss the writ petition
and discharge the Rule. There shall be no order as to costs.
15. Since the writ petition itself stands dismissed on the
ground of lack of locus standi and omission to disclose
material facts, all pending applications stand disposed of
without any order. Interim order, if any, stands vacated
forthwith.
16. Before parting, in the interest of the students’
community, we wish to remind the State Government that
mushrooming of schools/junior colleges in violation of the
statutory enactments/rules is not what the people of
Maharashtra would like to have and, therefore, it is incumbent
on the Government to keep a strict vigil on all such
institutions which have been allowed to operate observing the
statutory requirements in the breach. If indeed the State has
Page 10 of 11
J.V.Salunke,PS
::: Uploaded on - 18/01/2021 ::: Downloaded on - 02/06/2024 01:39:24 :::
2-IAL.1063.2021 - W
to honour its obligations as enshrined in Part IV of the
Constitution, it is the need of hour that the State cracks the
whip on errant officers conniving with persons responsible for
operating schools/junior colleges in breach of the statute.
(G. S. KULKARNI, J.) (CHIEF JUSTICE)
Page 11 of 11
J.V.Salunke,PS
::: Uploaded on - 18/01/2021 ::: Downloaded on - 02/06/2024 01:39:24 :::