ORDER
1. This writ petition is filed challenging the proceedings issued by the 1st respondent dated 30-12-1996 and 7-1-97 as arbitrary and contrary to the judgment ofthis Court in W.P.No.17731 of 1996 dated 11-9-1996.
2. The case arises under the following circumstances :
The petitioner is a Society registered under the Societies Registration Act, with registration number 277/90. The object of the Society was to impart education and to establish various educational institutions. While so, the Government issued notification dated 6-1-1996 under Section 20 of the Andhra Pradesh Education Act, 1982 (for short ‘the Act’), inviting applications from individuals or bodies for establishing Degree Colleges. In pursuance of the said notification, keeping in view the object of the Society, an application was made by the petitioner on 31-1-1996 seeking permission for establishment of the Degree College at Gopavaram town, which is a Mandal Head Quarters in Cuddapah district. The petitioner furnished bank guarantee for a sum of Rs.2.5 lakhs and also offered fixed deposit of Rs. 13 lakhs evidencing availability of finances for construction of buildings, etc. A document proposing to purchase 10 acres of land, a lease deed of temporary accommodation in Badvel town, and rough plans of the building were also submitted. It is the case of the petitioner that it obtained about 6000 Sq.ft. of land for temporary accommodation of the college. But, however, this fact was not brought to the notice of the authorities when the application was made initially. In the nutshell, the case of the petitioner is that it
fulfilled that all the conditions prescribed for grant of permission for establishing Degree College. While so, the Joint Inspection Committee inspected the premises on 4-6-1996 and had recommended for grant of permission to establish a Degree College for the academic year 1996-97. On 12-8-1996, the petitioner submitted further documents with regard to the lease deed for 8190 Sq.ft. No Objection Certificate from the Gram Panchayat and photographs of the building sought to be taken on lease. However, the Respondent No.l issued proceedings on 20-8-1996 stating that it was not possible to grant permission for the academic year 1996-97 and the application was rejected by the Council for the reason that ‘the building in which the college is proposed to be located is found unsuitable/inadequate’. Against the said order of the 1st respondent, the petitioner filed W.P.No.17731/1996 and this Court was convinced that the petitioner made out a case for grant of permission to establish a Degree College and accordingly quashed the order dated 20-8-1996 and directed the respondent to consider the matter afresh. Since no action was taken in pursuance of the this Court, the petitioner initiated proceedings under Contempt of Courts Act and filed C.C.No. 1512/96 and the same is pending. While so, on 4-1-1997, the petitioner-Society received proceedings dated 30-12-1996 rejecting the application of the petitioner for the following reasons :
“1. The building lease is furnished by the Society for 11 months only against 5 years. No documentary evidence has been produced for five years.
2. The lease document is incomplete, unregistered and understamped.
3. The Photographs submitted show 10 rooms in total, whereas in the lease agreement they have mentioned as houses which is totally false and misleading.
4. The college cannot have 180 working days even if permission is granted.”
Questioning the said proceedings, the present writ petition has been filed by the petitioner. It
is the case of the petitioner that in the earlier writ petition, all these issues were considered by this Court and the Court was convinced that a case was made out for grant of permission and that the very same objections are being raised in the impugned order. Therefore, the petitioner submits that it is purely a case of mala fide action on the part of the 1st respondent. It is also the case of the petitioner that apart from 1st respondent, 2nd inspection was also done by the committee consisting of Deans of Academic Council and College Developmental Council of S.V. University of Tirupathi, on 30-10-1996 and submitted a report to the Council in November, 1996, recommending grant of permission to the petitioner. Even this recommendation was given a go-bye and the present impugned order is passed. It is also the case of the petitioner with regard to the fourth reason that only 180 working days are available, and therefore, permission for the academic year 1996-97 is not feasible of compliance and the said reasoning is not correct inasmuch as the Government granted permission on 30-11-1995 to S.B.V.D. Sabha Committee, Pullampet, Cuddapah district. The petitioner also submits that the Chairman of the 1st respondent-Council took exception to the action of the petitioner in approaching the High Court and obtaining orders. Therefore, it is a case of mala fide exercise of power. The petitioner further submits that he has taken building on lease and invested huge amounts and it would cause irreparable loss if the permission is not granted to the petitioner.
3. However, after filing the writ petition, the 1st respondent issued under proceedings dated 7-1-1997 in continuation of earlier proceedings dated 30-12-1996, giving some more reasons. Therefore, the petitioner also filed another application seeking permission to amend the prayer assailing proceedings dated 7-1-1997 also, on the ground that the reasons given in the said proceedings are fully untenable and they are nothing but elaboration of the earlier reasons. It is further submitted that this itself shows the attitude of the 1st respondent in dealing with the matter.
4. A counter affidavit has been filed on behalf of Respondents 1 and 3 giving the details of deficiencies in the application of the petitioner. However, after the judgment of this Court in W.P.No. 17731 of 1996, a 2nd Inspection Committee was constituted to enquire into the accommodation available with details of plinth area, infrastructural facilities, financial status, etc. The said Committee, without giving any details as required, recommended permission of three science courses and two arts courses, that is, total five courses, as against the request of the petitioner for four courses. Since the report was vague, it was not accepted by the 1st respondent. It is also the case of the respondents that even if the deficiencies are rectified, it is not possible to grant permission to the petitioner inasmuch as the college has to function 180 clear working days. Admittedly, it cannot function for the academic year 1996-97. It is also the case of the respondents that applications have been again called for the academic year 1997-98 for establishment of Colleges and if the petitioner makes an application as per the revised guidelines, the same will be considered.
5. The question that arises for consideration is whether the 1st respondent is justified in rejecting the application of the petitioner for grant of permission for establishment of Degree College. In this regard, it is necessary to refer to the judgment of this Court in W.P.No. 17731 of 1996. In that case the sole ground for rejecting the application of the petitioner was that the building in which the College was proposed to be located was found unsuitable and inadequate. Considering the 1st joint inspection committee report, the fact that the committee was satisfied with the building and other requirements recommended for establishment of the College and also after perusing the 2nd Joint Inspection Committee report which was sought to be relied upon by the 1st respondent for rejecting the case, this Court held that the reason of rejection, that is, the building in which the college was proposed to be located is unsuitable and inadequate, is unsustainable. On perusual of both the reports, this Court was satisfied with the availability of the building and fulfilment of other requisite
conditions. On these facts, this Court was convinced that the petitioner made out a case for grant of permission. However, decision was left to the 1st respondent to consider the same and pass appropriate orders. It was also pointed out that if any deviations are necessary in the building, the same may be pointed out for rectification by the petitioner. Thus, it is seen that on earlier occasion, this Court had gone into the matter with reference to the inspection reports submitted by the Committees constituted by the 1st respondent itself Even after the judgment of this Court in the above said writ petition, another Committee was constituted by the 1st respondent consisting of two Deans of SV University and after inspection of the building and other requirements, it recommended five disciplines. But the 1st respondent now submits that the recommendation of the 3rd Committee is not acceptable as the report is vague. I am afraid the 1st respondent cannot take such stand, more especially, when the Committee was constituted consisting of high academicians, namely two Deans of S.V. University. When they inspected and found that the petitioner is entitled for permission for five disciplines, it would not be fair on the part of the 1st respondent to contend that the report is vague and the same is not acceptable. The very purpose of constituting the Committee is to find the feasability of establishing a College and to ascertain whether they have requisite accommodation., financial capacity, etc. Therefore, the reports of the Committees have to be given due weight and they cannot be brushed aside on the ground that they are vague. Admittedly, in the instant case, it is observed that as many as three Committees have been constituted to inspect the building and other infrastructures. The first Committee gave the finding in favour of the petitioner, the 2nd Committee appears to have held tliat there is no requirement for establishing a College as the need is served by other Colleges, and the 3rd Committee also held mat there is sufficient infrastructure for grant of five disciplines. Constituting Committees of eminent academicians and rejecting their reports on vague and flimsy grounds is nothing but an act of unreasonableness and unfairness in
discharge of function by the 1st respondent. Therefore, any report of the Committee which is constituted for the purpose of inspection of the building and infrastructures of the proposed Degree Colleges should be accorded due weightage, otherwise it would be not only an empty formality but also overruling the opinion’s of the eminent academicians constituting inspection Committees.
6. Coming to the crucial aspect of the present case, it is not in dispute that after judgment of this Court, proceedings were issued on 30-12-1996, rejecting the, case of the petitioner on four grounds as extracted in the preceding paragraph. But, not satisfied with the said reasons, other proceedings were issued on 7-1-1997 giving some more reasons. It is not understood how the proceedings dated 7-1-1997 could be issued when the matter was considered in the light of the observations made in the judgment, on 30-12-1996. Reasons for giving separate proceedings arc not forthcoming. Be that as it may, since it is a case of establishment of a Degree College, I am inclined to go into the validity of reasons, if any, given in rejecting the request for grant of permission. With regard to the reasons given in proceedings dated 30-12-1996, it is now brought on record that a registered lease deed was executed on 20-1-1997 for a period of five years and a ‘No Objection Certificate’ issued by the Gram Panchayat was also enclosed, and as such, the objections 1 and 2 do not survive any further. The objection with regard to the photographs which are alleged to have been considered by the 1st respondent and held that there is a variation in the number of rooms in the building which was leased, cannot be sustained inasmuch as the availability of the building was confirmed by the first Inspection Committee itself. Now that a regular lease agreement has been filed showing the structure of house, as already observed in the earlier writ petition, if there is any deficiency in the structures of the rooms, it is open for them to identify and the same shall be rectified and it is highly unreasonable to reject the matter on the ground that photographs do not show correct structures, and therefore, on that ground the application is rejected. The fourth ground
that the College cannot have 180 clear working days even if the permission is granted, is equally untenable and irrelevant. It is for the affiliating authorities to consider this aspect whether to grant affiliation for the concerned academic year or not. It is not for the 1st respondent to consider this matter which is not in the realm of its consideration. It is true that this ground appears wholly irrelevant inasmuch as this aspect is not within the purview of the 1st respondent. It is only for the affiliating authority which has to consider this aspect. If it finds that there are no sufficient working days available in the particular academic year, the affiliation may be granted for the next ensuing academic year. But the 1st respondent cannot pre-empt the proposal on this ground. Another peculiar ground was taken in the proceedings dated 7-1-1997 stating that the lease property was shown at Badvel Panchayat whereas the College is intended to be started at Gopavaram village. The said objection also appears to be irrelevant inasmuch pending construction of their own College at Gopavaram, the authorities have taken temporary accommodation at Badvel. Therefore, that cannot be a ground for rejecting the application. The grounds for not accepting the reports of the Committees dated 15-6-1996 and 30-10-1996 appear to be most untenable. If both the Committees have recommended grant of permission and infact if they recommended for more disciplines that what is applied, it would have been fair on the part of the 1st respondent to have granted permission for four courses as requested by the petitioner.
7. The learned Counsel for the petitioner submits that the requirements under subsection (3) of Section 20 of the Act are not pre-conditions for grant of permission and permission can be granted subject to fulfilment of all the deficiencies within the prescribed time. He relies on the Judgment of Justice Sri B.P. Jeevan Reddy (as he then was) in Andhra Kesari Educational Society, Ongole v. Government of Andhra Pradesh, 1985 (2) APLJ 77. The learned Judge while dealing with the matter with regard to refusal to grant permission to establish College of education
held that ‘a reading of sub-section (3) of Section 20 stipulates that adequate financial provision, acquisition of building, playground, garden and other conditions are not made preconditions for grant of permission. All that sub-seciton (3) says is that while granting permission, the authority concerned shall have due regard to the said matters. Depending upon the facts and circumstances of each case, the requirements have to be modulated.’ The learned Judge quoted an example of a College proposed to be established in the twin cities of Hyderabad and Secunderabad. The insistance upon 10 acres of land may not always be realistic or practicable. Unless one goes to outskirts of the city he would not be able to provide 10 acres of site in the heart of the city or in the important localities of the city. That the Government itself has not treated the said aspects as pre-conditions. The learned Judge placed reliance on number of orders which were brought before him. Regarding the inadequacies, the learned Judge found that in so far as the inadequacies are concerned, nothing prevents the Government from granting permission subject to those inadequacies being rectified within a pertain prescribed time. It is also observed that it may be open to the Government to grant permission which would become operative only when those inadequacies are rectified and such a course was adopted by the Government as discernable in G.O.Ms.No.373, dated 24-7-1984 and the permission was granted at Bhimavaram Educational Society. In that case, that matter came up before the High Court and the Court directed to consider the same within reasonable time. But the Government had taken its own time and ultimately refused the permission and the order refusing the permission was passed only when the Contempt Application was filed. Under those circumstances, the writ petition was allowed granting positive directions to the respondent to grant permission to establish a College of education with effect from the ensuing academic year.
8. The learned Counsel for UK petitioner also relied upon a judgment of the Division Bench of this Court in Government of Andhra Pradesh v. St. Anthony’s Educational Society,
. In the said case, it was held ‘that right to establish educational institutions individually or otherwise is a fundamental right’. It was further observed that ‘it is open for the authorities to give provisional permission subject to fulfilment of conditions by the persons who intend to establish educational institutions. Merely because all the above conditions are not fully satisfied on the date of application, the application cannot be rejected. The final permission can, however, be granted only if the applicants satisfy all the conditions fully’. It is also observed that ‘under Article 226 of the Constitution of India, this Court should not issue a writ of mandamus directing permissions to be granted, hi a given case where after the matter has been sent to the Government for reconsideration and the Court thinks that the Government is not granting permission either deliberately or mala fids, it might issue a mandamus to grant permission. In such cases, it is for the Court to consider whether a writ should be issued to grant permission or not.’
9. The learned Counsel for the petitioner also relied upon the judgment of a single Judge of this Court in P.Dharma Rao v. M.D.APTIDC Ltd, 1996 (4) ALD 513 wherein it was held that positive directions can be issued when the earlier directions given by the Court to consider the case of the petitioner are not implemented in the true sense.
10. The learned Counsel for the respondent submits that the authority competent to grant permission or rejecting the permission is the 1st respondent, and therefore, the discretion exercised by the authority refusing permission cannot be assailed. It is true that the discretion vested with an authority cannot be interfered with unless it is found that the discretion was exercised in an unfair and unreasonable manner. But, the question that falls for consideration is whether the 1st respondent has acted in a fair and reasonable manner. In the instant case, as already observed, the substantial requirements have been complied with by the petitioner and the Committees also were satisfied with the
same and recommended for grant of permission. But, however, the 1st respondent appears to have taken unreasonable stand to reject the application on one ground or the other. Infact this Court on earlier occasion found that the petitioner has made out a case for grant of permission. But, however, since by directing the 1st respondent to grant permission it would be encroaching upon the discretion which would be exercised by the 1st respondent, this Court thought in its wisdom to leave it open, to the 1st respondent to consider the matter. Therefore, in such circumstances it was expected by the Court that the 1st respondent would act in a fair and unbiased manner. Infact, the Government was the competent authority to grant permission. But, however, the said power was delegated to the 1st respondent and if the delegatee acts contrary to the object of the scheme and to the detriment of the interest of the applicants, this Court is entitled to interfere with the proceedings. As already noticed, the objections taken by the 1st respondent are mere trivial and technical in nature and infact they have been complied with substantially. Even then the rejection was made which leads to an inevitable conclusion that the 1st respondent has acted in a biased and unfair manner.
11. The right to education up to the age of 14 years is a fundamental right as held by the Supreme Court in Unni Krishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178. Even flic right to education beyond 14 years is also a fundamental right subject to the economic permissibility and development of the State. Since the Government is not in a position to discharge its constitutional obligation by establishing Government Schools and Colleges, it has permitted the private institutions to be established for attaining the constitutional goal of right to education embraced under Article 21 of the Constitution. Thus the private educational institutions supplement effort of the State in carrying out its principal activity of imparting education. While agreeing with the view that the participation of private bodies in the field of education is necessary, the Supreme Court observed as follows :
“89. Therefore, as on today, it would be unrealistic and unwise to discourage private initiative in providing educational facilities, particularly for higher education. The private sector should be involved and indeed encourged to augment the much needed resources in the field of education, thereby making as much progress as possible in achieving the constitutional goals in this respect. If could be concluded that the private colleges are the felt necessities of time. That does not mean one should tolerate the “so-called colleges” run in thatched huts with hardly any equipment, with no or improvised laboratories, scarce facility to learn in an unhealthy atmosphere, far from conducive to education. Such of them must be put down ruthlessly with an iron hand irrespective of who has started the institution or who desires to set up such an institution. They are poisonous weeds in the field of education. Those who venture are financial adventures without morals or scmpules. Their only aim is to make money, driving a hard bargain, exploiting eagerness to acquire a professional degree which would be a passport for employment in a country rampant with unemployment. They could be even called pirates’ in the high seas of education.”
Therefore, when the constitutional obligation is sought to be discharged through the cooperation and assistance of the private educational institutions, it is all the more necessary that broader outlook should be given to the issues not circumscribing to the trival and minor matters, more especially, when the statutory provision under Section 20 of the Act does not contemplate pre-conditions for establishment of educational institutions, as held by the decisions of this Court referred to supra. It is even open for the Government to grant permissions subject to fulfilment of the conditions at a later point of time. Therefore, the action of flic 1st respondent is per se illegal and arbitrary. Accordingly, the impugned proceedings are quashed.
12. As to the relief which could be granted under the circumstances, it is
admittedly the second round of litigation. On the earlier occasion, the 1st respondent was directed to consider the matter after expressing the mind of this Court that the petitioner has made out a case for grant of permission and that issue became final as the same was not carried in appeal. Therefore, when once the directions were issued to the 1st respondent to exercise its power, keeping in view the constitutional goals, it ought to have exercised the same in a fair and reasonable manner. Since it failed to discharge the duly enjoined upon it by statute, it became inevitable for this Court to grant positive directions. In these circumstances, the 1st respondent is directed to grant permission to the petitioner to establish a Degree College as requested in the application. This shall be done by the 1st respondent within a period of four weeks from the date of receipt of a copy of this order. However, if the 1st respondent thinks that there are any further inadequacies or deficiencies on the part of the petitioner or that any facilities are not fully provided by the petitioner, it shall identify the same and direct that the same shall be rectified/provided within a reasonable time. It would be open for the 1st respondent to take action if such directions are not complied with by the petitioner including cancellation of permission already granted.
13. With the above directions, the writ petition is allowed. No Costs.
