The condition of not permitting a new school within the radius of 5 kms. of an existing school is not mandatory in absolute terms and has an inbuilt element of relaxation. The State is obligated to frame its policy with due statutory backing in accordance with the constitutional obligation to provide education and recognizing the rights of children to free and compulsory elementary education.

Swatanter Kumar, C.J.

The Petitioner Gramvikas Shikshan Prasarak Mandal is a Public Charitable Trust as well a Society duly registered under the Public Trusts Act, 1950, and the Societies Registration Act, 1860, respectively, which claims that it is running one Secondary School from 5th to 12th standard at Talegaon Dhamdhere. The Deputy Director of Education, Pune Region, Pune and the Director of Education are responsible for and have overall control over educational activities in the Pune region and State of Maharashtra, respectively. The school run by the Petitioner was established and started in the year 1959 and there are nearly 1300 to 1500 students studying in the said school. According to the petitioner, the school has been showing good results in the academic courses. There is another secondary school at Vithalwadi which is at a distance of 4 kms., run by Pandurang Shikshan Prasarak Mandal. In fact, there are two other schools, one at Sanaswadi run by Nareshwar Shikshan Prasarak Mandal, and the other at Shirur run by Shirur Shikshan Prasarak Mandal, which are nearly 3 kms away from the Petitioners’ school. The population of Talegaon Dhamdhere is nearly 10000 and the Petitioner’s school is enough to cater to students from that area. While referring to the judgment of a Division Bench of this Court in the case of Gramvikas Shikshan Prasarak Mandal v. State of Maharashtra & Ors., 2001(1) Mh LJ 776, according to the Petitioner, another school cannot be permitted to come up within a distance of 5 kms of an already existing school. The grievance of the Petitioner is that the Respondents in discharge of their duties have granted the permission arbitrarily to Respondent Nos.5 and 6 to run a school in Talegaon Dhamdhere, at a place which is not even an half km away from the Petitioner’s school and also to another school at Shirur which is again at a distance of 3 kms. It is averred by the Petitioner that these Respondents had started schools with 8th, 9th and 10th Standards unauthorisedly and had started the 5th standard in their respective schools. This has resulted in an unhealthy competition and these schools are trying to attract students on the basis of caste and creed throwing all caution to wind which demonstrates political influence for grant of such permission. The Petitioner, being aggrieved, approached this Court on the ground that permission which has been granted gives rise to unhealthy competition and the authorities have granted permission on purely political considerations ignoring all norms and rules. The permission granted is further stated to be misconceived in law.

2. On the above premise, the Petitioners have prayed for setting aside the permission granted to Respondent Nos.5 and 6 as well as for interim orders restraining the Respondents from imparting education in these institutions.

3. This Petition was contested by the Respondents who have filed a reply denying the contention that the permission granted to Respondent Nos.5 and 6 was in accordance with law and the policy of the State.

4. When this Writ Petition came up for hearing before a Division Bench of this Court, the Division Bench vide its order dated 9th September, 2002 issued notices to the Respondents and while issuing the notice, the Court also directed the Assistant Government Pleader appearing for the State of Maharashtra to ascertain whether the procedure stated by the Court in the judgment of a Division Bench referred to in the case of Gramvikas Shikshan Prasarak Mandal v. State of Maharashtra & Ors., passed in Writ Petition No. 1773 of 2000 was followed before granting permission to Respondent Nos.5 and 6. Finally, after some hearings, the matter came up before different Division Benches of this Court, and vide order dated 6th March, 2003, the Division Bench of this Court passed the following order:-

“Rule.

In view of the fact that there prima facie conflict between the two decisions of this Court one in Writ Petition No.4172