P.S. Brahme JUDGMENT
P.S. Brahme, J.
1. The petitioner Education Society challenges the grant of permission to the respondent No. 4 - Trimurti Manav Kalyan Shikshan Sanstha to open a new secondary school at Sindhi, tahsil Narkhed, district - Nagpur in terms of order dated 30-9-1991 passed by respondent No. 1. By the impugned order dated 30-9-1991 respondent No. 4 has been granted permission to open a new secondary school from Vlllth standard onwards from the academic session 1991-1992 at Sindi, taluka Narkhed, district -Nagpur. Petitioners claim that the permission granted to respondent No. 4 is illegal and contrary to the relevant rules.
2. Petitioner No. 1 is Education Society viz. Annaji Raut Shikshan Sanstha, Umri in tahsil Narkhed, district - Nagpur, started secondary school (Mahadeorao Raut Vidayalaya) at Umri in the year 1987 with standard VIIIth. The population of Umri was 672. The village Sindi has population of 1199 village Umri is less than 1 km. away from village Sindi. All the children from these two villages study in petitioner No. 2 secondary school.
3. Respondent No. 4 started a secondary school at Sindi unauthorizedly from 1-6-1991. It is the case of the petitioners that area of village Umri and Sindi cannot support two secondary schools. Respondent No. 3 the Education Officer (Secondary) Zilla Parishad, Nagpur wrote several letters to respondent No. 4 to close down the school. There was only VIIIth standard in the said secondary school started by respondent No. 4 having 25-30 students. In the secondary school run by petitioner No. 1 society in the year 1990 there were 53 students in standard VIIIth, while in the year 1991 the strength of students in VIIIth standard was reduced to 37. Therefore, there has been unhealthy competition as a result of respondent No. 4 starting new secondary school at village Sindi.
5. When respondent No. 4 applied to respondent No. 1 to 3 for permission to start new secondary school, both respondent No. 2 - Deputy Director of Education and respondent No. 3 - Education Officer after due inspection and application of mind submitted adverse reports to the Director of Education, not recommending for starting of new secondary school at Sindi. However, respondent No. 1 granted permission in terms of the order dated 30-3-1991 ignoring the fact that respondent Nos. 2 and 3 have not recommended for starting new secondary school at village Sindi.
6. It is the contention of the petitioners that respondent No. 4 has obtained permission by misrepresenting the facts. The respondent No. 4 in its application for permission stated that the population of village Sindi is about 10,000 whereas the actual population was only 1199. Respondent No. 4 has further stated that the distance between petitioners' school is about 2 km. from respondent No. 4 school, whereas it is less than 1 km. Thus by deliberate misrepresentation, respondent No. 4 has mislead the authorities to obtain the order dated 30-9-1991 for starting new secondary school from respondent No. 1. The permission granted by respondent No. 1 is illegal and arbitrary and it is contrary to the circular dated 11-5-1989 which specifies that new school shall not be started within the radius of 5 kms.
7. It is contended by the petitioners that respondent Education Officer and the Deputy Director of Education, in their reports emphatically stated that new school should not be started by respondent No. 4. But in spite of positive orders to that effect, directing respondent No. 4 not to start and continue the school, respondent No. 4 started the school much prior to getting permission from the respondent No. 1 in terms of order dated 30-9-1991. It is the contention of petitioners that even before the receipt of permission dated 30-9-1991, respondent No. 4 had unauthorizedly started secondary school at Sindi in the academic session 1991-1992 w.e.f. 1-6-1991. Learned counsel for the petitioners pointed out that the unamended Rule 2.5 in Chapter II of the Secondary School Code, provided that in no case the school should be started, unle........