JUDGMENT - P.S. BRAHME, J.:---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 Sindi, Tashil 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 ben granted permission to open a new secondary school from VIIIth Standard onwards from the academic session 1991-92 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 tashil Narkhed, District Nagpur, started secondary school (Mahadeorao Raut Vidyalaya) 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 can not 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 the 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. 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 petitioner's school is about 2 km. form respondent No. 4 school, whereas it is less that 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 km. 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 inspite 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 contentions 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 sessions 1991-92 w.e.f. 1-6-91. 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, unless previous permission of the department is obtained and the school started without such permission shall not ordinarily be considered for recognition. Respondent No. 1 granted permission to respondent No. 4 to start new school ignoring the fact that respondent No. 4 started the new school without the grant of such permission, therefore, petitioner contended that permission granted by respondent No. 4 is illegal and contrary to the relevant rules and without complying with the basic principles of natural justice. 8. After the Rule was issued, respondent Nos. 1 to 3 filed their return. 8. After the Rule was issued, respondent Nos. 1 to 3 filed their return. It is admitted that in the proposal submitted by respondent No. 4 to the respondent Education Officer, Zilla Parishad, Nagpur, the population of village Sindi was shown to be 10,000. However, the population of village Sindi was shown as 1190. The Education Officer could not confirm the population of this village and forwarded the proposal to the respondent No. 1 as it is. It is further submitted that although the proposal of respondent No. 4 was not duly recommended by the Education Officer, Zilla Parishad, Nagpur and Deputy Director of Education, Nagpur Region, Nagpur, the Government granted permission to respondent No. 4 because of recommendations of people's representatives and educational needs of that area. 9. So far as the respondent Nos. 4 and 5 are concerned, they have not controverted the avertments of the petitioners in the petition, particularly that even before receipt of the permission dated 30-9-1991 respondent No. 4 had unauthorizedly started the secondary school at Sindi w.e.f. 1-6-91, nor it is the contention of the respondent Nos. 4 and 5 that the school was opened after 30-9-91. In fact respondents Nos. 4 and 5 did not file either written submissions or return, even after the petition was admitted and the Rule was issued. As such, the claim of petitioners went unchallenged, so far as respondent Nos. 4 and 5 are concerned. 10. The factual position is not in dispute. Petitioner No. 1 society had started secondary school at village Umri from the year 1987. In the year 1990 the strength of students in VIIIth standard in petitioners' school was 53 and it is undisputed a fact that respondent No. 4 started school at village Sindi from 1-6-1991 despite of any recommendations by respondent Nos. 2 and 3. It is also borne out from the material on record, more particularly, the report dated 10-9-1991 at Annexure 7 informing respondent No. 4 to close down the school which they have started unauthorizedly without permission from the State Government. The distance between both the schools is hardly 1 km. Petitioners have averred that the distance between the two villages namely Umri and Sindi is less than 1 km. The distance between both the schools is hardly 1 km. Petitioners have averred that the distance between the two villages namely Umri and Sindi is less than 1 km. The population of village Sindi was 1190, however respondent No. 4 in their application seeking permission to start new school at Sindi stated that the population of village Sindi was 10,000. Respondent No. 1 to 3 accepted in their return that the population of village Sindi is 1190. It is, therefore, clear that respondent No. 4 misrepresented to respondent No. 1 as regards the population of village Sindi stating it to be 10,000 though in reality the population was just 1190. It is obvious that this misrepresentation was made by respondent No. 4 to make it appear to respondent No. 1 that secondary school was required in the area of village Umri and Sindi. It is also undisputed a fact that respondent No. 4 started new school unauthorizedly before the permission was granted by respondent No. 1. In fact it is mandatory under Rule 2.5 in Chapter II of Secondary School Code that in no case should the school be started, unless previous permission of the department is obtained and the school started without such permissions shall not ordinarily be considered for recognition. Rule 2.13 of the said Code stipulated that the school started without permission shall not ordinarily be considered for grant of such permission. The effect of the amendment is that the word "recognition" stands substituted by the word "permission". It is evident from the reading of the Rule that ordinarily if the applicant opens a new school without grant of permission for such purpose, it would not be considered by the authorities, while taking up the case for grant of permission to start the new school. In the case before hand, respondent No. 1 totally ignored the fact that respondent No. 4 had started school without previous permission of the Education Department. It was also brought to the notice of respondent No. 1 that respondent No. 2 and 3 have not recommended the application of respondent No. 4 for starting new school at village Sindi. It was also brought to the notice of respondent No. 1 that respondent No. 2 and 3 had already informed the respondent No. 4 to close down the school which was started unauthorizedly without seeking permission. It was also brought to the notice of respondent No. 1 that respondent No. 2 and 3 had already informed the respondent No. 4 to close down the school which was started unauthorizedly without seeking permission. Therefore, the decision of respondent No. 1 granting permission to respondent No. 4 to start new secondary school is illegal being violative to provisions under Rule 2.5. and 2.13 of the Secondary School Code. 11. Our view in holding the decision of respondent granting permission as illegal, is re-enforced and gains support from the decision rendered by this Court in (Late K.L. Deshmukh Shikhshan Sanstha, Karkheda v. State of Maharashtra and others)1, reported in 2000(1) Mh.L.J. page 830. In that petition, the challenge by the petitioner education society was to the grant of permission to respondent No. 4 Education Society to open new school in terms of the order dated 26-11-1997 passed by the State of Maharashtra. It was found that even before the receipt of permission, respondent No. 4 had unauthorizedly started the secondary school and that fact has not been denied by the respondents. While referring to the factual position, more particularly, that respondent No. 4 education society started new school before permission was granted by the State Government, Justice Y.K. Sabharwal, Chief Justice of this Court as he then was observed : "The unamended Rule 205 in Chapter 2 of the Secondary Schools Code provided that in no case should the school be started, unless the previous permission of the department is obtained, and the school started without such permission shall not ordinarily be considered for recognition. Now Rule 2.13 of the said Code stipulated that the school started without such permission, shall not ordinarily be considered for grant of such permission. The effect of the amendment is that the word 'recognition' stands substituted by the word 'permission'. It is evident from the reading of the Rule that ordinarily, if the applicant opens a new school without grant of permissions, for such purpose, it would not be considered by the authorities, while taking up the case for grant of permission to start a new school. The object is obvious. It is evident from the reading of the Rule that ordinarily, if the applicant opens a new school without grant of permissions, for such purpose, it would not be considered by the authorities, while taking up the case for grant of permission to start a new school. The object is obvious. It is to visit a person with a penalty on account of the said person on one hand applying for grant of permissions to start a new school and on the other hand, without waiting for a receipt of a permission, going ahead with the starting of the school, thereby jeopardizing the interests of the innocent students. It is only in special circumstances to be noticed in writing that the permission may be granted to start a new school, despite the fact that, without grant of such permission, the applicant started the new school. It is not the case of the respondents Nos. 1 to 3 that they took into consideration the factum of respondent No. 4 having already started the school before 26th November, 1997. Under the circumstances the permission granted was unsustainable and illegal being contrary to the relevant rules and it was thereby quashed." 12. So, we have no hesitation in holding that the permission granted by respondent No. 1 to start new school to respondent No. 4 is illegal, being contrary to the provisions of Rules. In addition to that what we have found is that there was complete non application of mind on the part of respondent No. 1 while granting permissions. Respondent No. 1 was misled by respondent No. 4 about the population of village Sindi and the distance between village Umri and Sindi. The distance of two schools is less than 1 km. This is contrary to the circular dated 11-5-1989 which specified that new school shall not be started within a radius of 5 kms. Therefore, the permission granted is illegal and arbitrary being violative of circular dated 11-5-1989. 13. It is also noted that starting of new school by respondent No. 4 has materially affected, on the petitioner No. 1 society's school. As pointed out earlier in the year 1991, the strength of the students in standard VIIIth was reduced to 39. Therefore, the permission granted is illegal and arbitrary being violative of circular dated 11-5-1989. 13. It is also noted that starting of new school by respondent No. 4 has materially affected, on the petitioner No. 1 society's school. As pointed out earlier in the year 1991, the strength of the students in standard VIIIth was reduced to 39. This clinchingly goes to show that by starting new school, by respondent No. 4, an unhealthy competition was involved with the existing institution of petitioner No. 1 which was running a secondary school at Umri right from 1987. It is clear that respondent No. 1 has not taken into consideration this foremost condition as laid down in Rule 3.2(1) of the Secondary School Code while granting permission to respondent No. 4, as such the permission granted by respondent No. 4 also contravenes the provisions laid down under Rule 3.2(1) of the Secondary School Code. In addition to this respondent No. 1 has acted high handedly while granting permission as respondent No. 2 and 3 had already not recommended the case of the respondent No. 4 for starting new secondary school and had informed the respondent No. 4 to close down the school that had started unauthorizedly. Even representation made by the petitioner No. 1 bringing out the illegalities committed by respondent No. 4 in starting new school unauthorizedly was not considered by respondent No. 1. So the decision taken in terms of order dated 30-9-1991 by respondent No. 1 in granting permission to respondent No. 4 to start the school is illegal, contrary to the rules and against principles of natural justice. The order therefore, can not sustain. The order dated 30-9-1991 is quashed and set aside. The permission granted to respondent No. 4 by respondent No. 1 to start new school is cancelled. The annulment of permission dated 30-9-1991 will have no effect on the students who may have joined respondent No. 4 school, take examination, treating it as recognised school. Respondent No. 4 secondary school should not admit the students for the academic sessions 2001-2002 as we have cancelled the permission granted by respondent No. 1 in terms of order dated 30-9-1991. 14. The rule is made absolute in the above terms. The petitioners would be entitled to costs quantified at Rs. Respondent No. 4 secondary school should not admit the students for the academic sessions 2001-2002 as we have cancelled the permission granted by respondent No. 1 in terms of order dated 30-9-1991. 14. The rule is made absolute in the above terms. The petitioners would be entitled to costs quantified at Rs. 5000/- to be equally shared by respondent No. 1 on one hand and respondent No. 4 and 5 on the other. Rule made absolute. -----