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Bombay High Court

ANJUMAN ITTEHADUL ISLAM AJARAversusTHE STATE OF MAHARASHTRA THR THE DEPT. OF EDUCATION (PRIMARY) AND ORS

Disposal
Dismissed

Holding

The order granting permission to the rival school is valid; the distance criterion is not a condition precedent and the lack of a personal hearing does not render the order illegal.

Summary

The Anjuman Ittehadul Islam, a society running a 100% aided school, challenged a order dated 17‑06‑2025 that permitted a rival school to start an additional 5th‑standard division, alleging that the order violated a 2019 Government Resolution which bars such permission within a 1 km neighbourhood and that the society was denied a hearing. The petitioners argued that the distance criterion was a condition precedent and that the Competent Authority acted arbitrarily and against natural‑justice principles. The Court examined the 2019 and 2024 Government Resolutions, the Right of Children to Free and Compulsory Education Act, 2009 and its Rules, and noted that the distance requirement is merely one of several factors to be considered, not a sacrosanct condition. It held that the authority had duly taken reports from the Extension Officer and the Public Works Department and that a personal hearing was not mandatory in such administrative decisions. Consequently, the order granting permission to the rival school was upheld and the writ petition was dismissed.

Issues considered

  • Whether the geographical distance criterion in the Government Resolution dated 19‑09‑2019 is a mandatory condition precedent for granting permission to start an additional 5th‑standard division.
  • Whether the failure to afford a personal hearing to the petitioner violates the principles of natural justice.
  • Whether the order granting permission to the rival school is arbitrary, illegal, or otherwise vitiated.

Legislation cited

Subjects

  • Right to Education
  • Government Resolution
  • Geographical distance criterion
  • Natural justice
  • Additional school division
  • Writ petition
  • Maharashtra education law

Judgment

                                                                    WP.9609.2025.doc

Ajay

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CIRCUIT BENCH AT KOLHAPUR
                              CIVIL APPELLATE JURISDICTION


                        WRIT PETITION NO. 9609 OF 2025

       Anjuman Ittehadul Islam                               .. Petitioner
            Versus
       The State of Maharashtra and Ors.                     .. Respondents
                                 ....................
        Mr. Prajakt M. Arjunwadkar a/w. Mr. Ritesh R. Raut, Advocates for
         Petitioner.
        Mr. Siddheshwar Kalel, for Respondent – State.
                                    ......…...........
                         CORAM                   : MILIND N. JADHAV &
                                                   NANDESH S. DESHPANDE, JJ.
                         RESERVED ON   : JUNE 30, 2026.
                         PRONOUNCED ON : AUGUST 06, 2026.

       P.C.:
       1.       Heard Mr. Arjunwadkar, learned Advocate for Petitioner

       and Mr. Kalel, learned AGP for Respondent - State.


       2.       Petitioner has filed present Writ Petition challenging the

       order dated 17.06.2025 passed by Respondent No.2 - Chief Executive

       Officer, Zilla Parishad, Kolhapur granting permission in favour of

       Respondent No.5 for commencement of an additional division of 5 th

       standard for the academic year 2025 - 2026.


       3.       The brief facts of the case are that Petitioner is a Society

       registered under the Societies Registration Act, 1860 as well as the

       Maharashtra Public Trusts Act, 1950. Petitioner - Society runs Dr.

       Zakir Hussain Anglo Urdu High School and Junior College, Ajara

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which was established in the year 1969 and receives grant-in-aid since

in the year 1972. Petitioner institution is a 100% aided school and is

running classes from 5th standard to 12th standard.


4.        It is the case of the Petitioner that Respondent No.1 issued

Government Resolution (For short 'GR') dated 19.09.2019 appointing

Respondent No.2 as the Competent Authority for granting permission

in respect of starting additional divisions of 5 th standard in primary

schools and 8th standard in higher primary schools under the Right of

Children to Free and Compulsory Education Act, 2009 (for short the

'RTE Act') readwith the Rules of 2010. It is the further case of

Petitioner that under the said GR, permission for additional division

could not have been granted where an existing school education in

offering education in the concerned standard was already available

within the prescribed neighbourhood distance, so as to prevent

attrition of students from the said school, thereby affecting the running

of the shool.


5.        Petitioner further states that Respondent No.1 thereafter

issued GR dated 15.03.2024 in continuation and modification of the

earlier policy again conferring powers on Respondent No.2 to grant

permissions for starting 8th standard divisions to schools which were

already running from 1st to 7th standard, subject to the conditions

prescribed therein.


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6.       It is the case of Petitioner that Respondent No.5 submitted a

proposal on 06.02.2025 seeking permission for starting an additional

division of 5th standard. Petitioner immediately raised an objection on

15.04.2025 before the Respondent No.3 contending that the proposal

was hit by the geographical distance criteria, since the Petitioner’s

school was already running 5th standard class and situated within the

prohibited neighbourhood distance. Further a similar proposal of

Respondent No.5 had earlier been rejected on the ground of

geographical distance and therefore, a fresh proposal on the same

basis was not maintainable.

7.       Despite the objection raised by Petitioner, Respondent No.3

called for a report through the Extension Officer, Ajara. The Extension

Officer submitted his report recommending the proposal by observing

that Petitioner school was situated beyond 1 km, ignoring the

objection raised by the Petitioner and the actual geographical

position / distance between the schools.

8.       Respondent No.4 thereafter forwarded the proposal further,

though on an earlier occasion Respondent No.4 himself noted that

there existed a school within 1 km and that grant of permission would

not be correct. Report from the Public Works Department (PWD) was

later obtained, which was contradictory and confusing, as it mentioned

both short distance of 0.850 km and long distance of 1.2 km, though

the Act and the GR contemplate only the prescribed neighbourhood

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distance and not any such concept of short and long distance.

9.        However Respondent No.2, by order dated 17.06.2025

granted permission to Respondent No.5 for commencement of 5 th

standard class for the academic year 2025-2026 without granting any

hearing to Petitioner and without considering the objections raised by

the Petitioner or the earlier contrary material on record. Petitioner has

therefore challenged the impugned order as being arbitrary, illegal,

and in violation of the principles of natural justice.


10.       We have heard the learned Advocates for the respective

Advocates and learned AGP at the bar and perused the record of the

case with their able assistance. Submissions made by the Advocates

have received due consideration of the Court.


11.       Learned Advocate for Petitioner submits that the impugned

order is liable to be quashed and set aside since the same has been

passed in breach of the prescribed policy and without considering the

objection of the Petitioner. It is submitted that the Petitioner’s school is

already functioning within the neighbourhood, that the proposal of

Respondent No.5 is expressly barred under the GR dated 19.09.2019

and that the Competent Authority failed to act judicially. It is further

submitted that the order is vitiated by non-application of mind and

violation of natural justice as no opportunity of hearing was granted to

Petitioner despite a specific objection.


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12.       Respondent No.2 has opposed the Petition by filing reply

and contended that the impugned order dated 17.06.2025 is legal,

valid and supported by reasons. It is contended that the Petitioner has

misread the GRs dated 19.09.2019 and 15.03.2024 and that the

distance clause is not applicable in the manner as suggested by the

Petitioner. He would further contends that the proposal was properly

considered, the relevant reports were obtained and the impugned

order was passed after due application of mind under the RTE Act,

and the applicable Rules. It is further contended that the PWD report

is not a conclusive document exhibiting distance criteria and that the

real consideration is the strength and convenience of students.


13.       The controversy before the Court, as raised by the Petitioner

is in a narrow compass. Petitioner is running a school and is aggrieved

by the grant of permission by the Competent Authority to Respondent

No.5 - a rival school to commence classes from the 5 th standard

onwards on the principal ground that the rival school is located within

a distance of 1 km from the Petitioner's school. Therefore, reliance is

placed by the Petitioner on the GR dated 19.09.2019, by virtue of

which Respondent No.2 has been appointed as the Competent

Authority for taking decisions on issuing permissions in respect of the

commencement of additional divisions of 5th standard in primary

schools as well as 8th standard for higher primary schools.



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14.       Petitioner’s case is that it is an old established school and

junior college and therefore if the impugned permission is allowed to

be sustained, it will have a drastic effect by causing attrition among

the students who are presently studying in the Petitioner’s school.

Petitioner fears that students will leave the Petitioner's school and join

the rival school, thereby reducing the number of students in the

Petitioner's school. The sole primary reason argued by the Petitioner is

on account of the distance of the rival school is within 1 km and before

grant of permission to the rival school to commence an additional

division of the 5th standard for the academic year 2025–2026,

Petitioner was not afforded an opportunity of hearing.


15.       Both the aforesaid reasons, in our opinion, do not merit any

consideration whatsoever. The stream of education cannot be

considered to be a monopoly of any particular Educational Institution.

Though it is true that the GR dated 19.09.2019 prescribes the distance

criteria, the same cannot be held as sacrosanct or a condition

precedent for the grant of permission to start or commence additional

classes of the 5th standard in a school.


16.       The distance criteria is merely one of the conditions

mentioned in the said GR which needs to be adhered to, keeping in

mind various other parameters. It is not the principal factor for

consideration as is argued by the Petitioner before us.


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17.        Reference has been made to the National Education Policy

(NEP) 2020, which came into effect after the passing of the earlier GR.

Pursuant thereto and in order to enhance the quality of education and

empowerment of primary schools run by local bodies, the State

Government issued a further GR dated 15.03.2024.


18.        The terms and conditions contained in the previous GR

dated 19.09.2019 have also been considered. Both the GRs are

appended to the Petition. We have gone through the said GRs

carefully. What we find is that the geographical distance criteria

vehemently argued by the Petitioner can never be considered to be the

sole determinative factor for grant of permission to a rival school for

starting   additional   classes,   primarily   because   of   large-scale

urbanisation in the present times. The GRs prima facie set out various

parameters required to be considered. The reasons for issuing the said

GRs indicate that pursuant to substantial litigation in that direction,

the Government realized that when permissions are granted to rival

schools to begin additional classes, existing schools may face attrition

in student strength, thereby leading their enrolment and rendering

their teachers who are employed by those opponent schools as surplus.

Therefore the liability and responsibility of the Government to

accommodate surplus teachers on the financial side arises.




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19.       Further even though the student strength may not increase,

but due to such attrition the overall strength of teachers increases and

most of them are rendered surplus. The said GRs are based upon the

RTE Act, whereby it is deemed necessary to start classes from the 5 th

standard onwards to accommodate students who have already studied

up to the 4th standard in the same school and similarly in respect of

those students who have studied up to the 7 th standard in the same

school. Keeping this perspective in mind, the GR of 2019 was passed.

One page No.28, Exhibit 'B', the said GR has been appended. The said

GR lays down 7 terms and conditions to be fulfilled when the

Competent Authority grants permission for starting and commencing

additional classes for the 5th standard and the 8th standard.


20.       In the instant case, it is prima facie seen that the said

conditions stand fulfilled. An appropriate report was called for by the

Competent Authority prior to granting permission from the Extension

Officer and the PWD. Though a lost of thrust was laid by the Petitioner

on the the issue of geographical distance of 1 km, we are unable to

accept the argument advanced by Mr. Arjunwadkar that the said

distance should be held to be sacrosanct or a condition precedent

before grant of permission by the Competent Authority.


21.       In the present case, there is a dichotomy expressed by a

neutral PWD Office Report which clarifies that the shorter distance


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between the Petitioner and Respondent No.5 school is 850 meters

whereas the longer distance is 1.2 kms. This finding is objected by the

Petitioner. We do not find merit in the objection raised by the

Petitioner primarily because education cannot be forced upon

students. In today's competitive environment, if sufficient students are

available, then there is no reason as to why permission for starting

additional classes should not be allowed.


22.       The idea and object behind prescribing a geographical

distance criteria is to ensure that the student population is distributed

in such a manner that the students get an opportunity to access

education. The stream of education has become more liberal and

inclusive because of the passing of the RTE Act and the Rules made

thereunder.


23.       In our opinion, the distance criteria contained in the GR

dated 19.09.2019 cannot be held to be a condition precedent. The

facts of each case should govern the applicability of the geographical

distance criterion before the Competent Authority.


24.       Insofar as the contention regarding the grant of a personal

hearing to Petitioner is concerned, we are in complete disagreement

with the submission made by Mr. Arjunwadkar that the Petitioner

ought to have been heard. If such an argument were to be accepted,

every rival school would begin raising objections and seek a personal


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hearing thereby rendering the cause of education susceptible to

avoidable delays and opportunistic litigation. That is not the intention

behind the issuance of both the aforesaid GRs by the State

Government. Both the GRs in fact take into account the demographic

distribution of students who have studied from the 1 st to the 7th

standard in schools where permission for commencing additional

classes is sought. Even otherwise, under Clause 3(R)(i) of the GR

dated 19.09.2019, it is provided that in densely populated urban and

semi-urban areas, the State Government or the local authority shall

establish more than one nearby school, keeping in view the population

of children in the age group of 6 to 14 years in the said area, in

accordance with the RTE Act and the Rules framed thereunder.


25.       Further, it is seen that the requirement of a school building

can never be judged by the geographical distance and measured

accordingly. In our opinion, even assuming that the shorter distance

between the Petitioner and Respondent No.5's school is 850 meters.,

in the facts and circumstances of the present case, the said will have to

be considered as adequate enough to satisfy the condition of

geographical distance of 1 km because the stream of education cannot

be compromised merely on the basis of the distance limits prescribed

in the GRs.




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                                26.       The terms and conditions given in the GRs which are

                                invoked in the present Petition are in the nature of guidelines. It is

                                further seen that the GR dated 15.03.2024 virtually changes and

                                dilutes the contents of the GR dated 19.09.2019 in order to make

                                education more diverse, accessible and inclusive for all cross sections

                                of Society.


                                27.       In that view of the matter, we are of the firm opinion that

                                distance cannot be the sole criteria to decide whether the Competent

                                Authority has committed any error or otherwise. In our opinion, the

                                orders passed by the Competent Authority do not suffer from any legal

                                infirmity whatsoever and deserve to be upheld.


                                28.           In view of the aforesaid observations and findings, we are

                                unable to accept the submissions advanced on behalf of the Petitioner

                                and are therefore constrained to dismiss the Writ Petition.


                                29.       Petition is dismissed.




                                  [ NANDESH S. DESHPANDE, J. ]                [ MILIND N. JADHAV, J. ]

      Ajay
             Digitally signed
             by AJAY
AJAY       TRAMBAK
TRAMBAK    UGALMUGALE
UGALMUGALE Date:
             2026.08.06
             13:13:47 +0530




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