Common Order:

The notification issued by the Andhra Pradesh State Council for Higher Education (APSCHE for short) dated 16.01.2013, inviting applications from registered educational societies/affiliated aided and un-aided degree colleges for starting new private un-aided degree colleges (including Hotel management Colleges), U.G. and P.G. Courses for the academic year 2013-14 in the State of Andhra Pradesh, for Madanapalli Mandal in Chittoor District; Kadiri Mandal in Anantapur District; and Huzurabad and Jagityal Mandals in Karimnagar District, is under challenge in this batch of Writ Petitions as being arbitrary, illegal, contrary to the provisions of the Andhra Pradesh Education Act, 1982 (hereinafter called the Act), the A.P. Educational Institutions (Establishment, Recognition, Administration and Control of Institutions of Higher Education) Rules, 1987 (hereinafter called the Rules), and in violation of Article 14 of the Constitution of India.

The petitioners are all unaided private degree colleges offering under-graduate courses, after having obtained permission from the APSCHE and on being granted affiliation by their respective Universities. It is their case that, after being satisfied with the standards of instructional and infrastructural facilities available at the petitioners-institutions, the affiliating Universities have been extending them affiliation each year; the APSCHE issued notification dated 16.01.2013, for the entire State of Andhra Pradesh, indicating the mandals in each district where new degree colleges were proposed to be established for the academic year 2013-14; the notification, in clear terms, specified that the proposal for starting a new degree college would be considered only where there are no degree colleges in the revenue mandals; contrary thereto, several mandals were notified even though degree colleges were in existence thereat; Section 20 of the Act, and Rule 4 of the Rules, mandate that, if the educational needs of the locality are adequately served, no permission should be granted; and the existing degree colleges, in the subject mandals, are struggling to survive as adequate number of students are not willing to join degree courses, and no college is able to fill-up the seats upto the sanctioned strength. The affidavit gives details of the sanctioned and the admitted strength of various degree colleges in the mandals based on which the petitioners contend that the admitted strength is far in excess of the sanctioned strength, and the subject mandals do not require another degree college to be established thereat. The petitioners further contend that the APSCHE, without examining and identifying the educational needs of the locality and without considering the admissions made in the existing educational institutions, had issued the impugned notification; indiscriminate grant of permission for starting new degree colleges, even though there is no requirement for opening such colleges, would adversely affect the quality of the teaching staff, result in fall in standards in education, and kill the existing institutions; no survey, to assess the needs and demands of the locality, was conducted; the notification does not also specify the needs of the mandals; the decision to invite applications for establishing new colleges is vitiated by non-consideration of relevant factors; there was no assessment of the need of the locality by the APSCHE; increasing educational institutions, in such large numbers, would only result in deterioration in educational standards, leading to unhealthy competition among the institutions forcing them to admit less meritorious students; grant of approval, for establishing a new college, should depend on the seats remaining unfilled in a particular college located in a particular area; students cannot be deprived of their right to have quality education; grant of permission by the respondents would only result in large number of seats remaining vacant, besides lack of sufficient infrastructure and competent faculty; the competent authority cannot, without application of mind, grant permission; the impugned notification is arbitrary and contrary to the provisions of the Act and the Rules; and permitting new colleges to be established would result in the petitioners suffering irreparable loss and injury.

In the counter affidavit, filed on behalf of the APSCHE, it is stated that its Governing Council, in co-ordination with senior officials of the Higher Education Department and the Vice-Chancellors of the A.P.State Universities, decides the schedule each year for inviting applications from registered educational societies to establish private un-aided degree colleges in the State of Andhra Pradesh; general notifications were being issued upto the year 2005-2006, inviting applications for grant of permission to establish new degree colleges at various mandals and districts in the State of Andhra Pradesh as per the need survey conducted under Section 20 of the Act; from the academic year 2006-2007 onwards, the APSCHE has been issuing notifications, for establishing new private un-aided decree colleges in certain mandals, as has been identified on a survey being conducted to assess the need for establishing new private un-aided degree colleges, thereby complying with the requirements of the statute; for the academic year 2013-2014 it was resolved by the APSCHE, during its 93rd Council Meeting, to conduct a fresh survey to assess the need for permitting new private un-aided degree colleges, and identify the unserved mandals for the purpose of issuing a notification; a survey was conducted by the APSCHE identifying the places/areas where private un-aided degree colleges could possibly be established; the survey was conducted taking the mandal as a unit; the data relating to the number of Junior Colleges, the number of pass-outs (March/April 2012), the number of degree colleges (if any), the sanctioned intake and the number of students admitted in those degree colleges in 2012-2013 were analysed; criteria was prescribed for identifying the notified mandals; suggestions from universities, representations from the local elite, and the views of peoples representatives were also taken into consideration in identifying the mandals; the spirit, behind identifying such mandals, was to encourage private managements to establish degree colleges, thereby increasing accessibility to higher education in the hitherto unserved mandals; there are still around 438 mandals in the State without any degree college i.e., around 28% of the total mandals in the State still remain unserved without a degree college; the available data shows that enrolment, in the sanctioned colleges in rural areas, has been very poor in the recent years, when compared to enrolment in colleges located nearby urban areas; and the Committee was of the view that the gradual decline in enthusiasm for establishing new private un-aided degree colleges in remote rural areas could be due to lack of proper resources for the survival of the colleges such as low population with less number of intermediate pass-outs, preference of students to join engineering and other professional colleges which had come up in large numbers, difficulty in providing better infrastructure facilities and faculty by the managements in such remote areas etc. After extracting the relevant recommendations of the Committee it is stated that, on the criteria whereby mandals were identified, a notification was issued on 16.01.2013 inviting applications from registered educational institutions for establishing new private un-aided degree colleges during the academic year 2013-2014; the mandals were notified after a survey was conducted under Section 20 of the Act, and as per Rule 4 of the Rules; for grant of permission to establish new degree colleges, available data was called for from the concerned affiliated universities regarding the manner in which the petitioner colleges, and the other colleges in the said mandals, were functioning and to ascertain the reasons why a large number of seats were lying vacant or were not being filled up; almost all the petitioners were running their colleges admitting students in excess of the sanctioned strength; some of the petitioners were running colleges in two or four leased premises though the rules required them to shift to their own permanent buildings; the deficiencies, in running such colleges, have been pointed out by the concerned affiliating universities; though the petitioners were granted permission more than five years ago, they have not improved their infrastructure facilities, and were found indulging in malpractices; they were intent on avoiding healthy competition; they lack bonafides, and have questioned the notification dated 16.01.2013 with the malafide intention of monopolizing the field of education; as competitors, they do not have the locus standi to question the impugned notification; the Writ Petition has been filed keeping personal interest in mind; and the petitioners are indulging only in profiteering.

In their affidavit, filed in reply to the counter affidavit of the APSCHE, the petitioners state that the present survey, said to have been conducted by the APSCHE, is contrary to the intent and purport of Section 20 of the Act and the Rules; the alleged survey has not taken into consideration the needs of the locality while identifying the mandals; the APSCHE had issued the notification though the educational needs of the locality were adequately served; there are more degree seats available than the intermediate pass-outs; a large number of seats are lying vacant in the existing degree colleges; the impugned notification will pave the way for unhealthy and undesirable competition; the alleged survey is wholly irrational and suffers from non-application of mind; none of the criteria/recommendations of the expert Committee, for identifying the Mandals, were followed; the impugned notification is contrary to, and in violation of, the recommendations and criteria stipulated by the Committee formed to identify the needs of the locality; the APSCHE had called for data from the concerned Universities after these Writ Petitions were filed; no data was available with the APSCHE when the survey was conducted; no credence can be given either to such a faulty survey or to the consequential notification; the allegations that the petitioner colleges were deficient and seats were, therefore, vacant is incorrect; and the petitioners have the locus standi as their survival is put in jeopardy as a result of indiscriminate permissions being granted by the APSCHE for new degree colleges to be established in their mandals.

Elaborate submissions were put forth by Sri D.Prakash Reddy, Sri L. Ravichander and Sri B. Adinarayana Rao, Learned Senior Counsel and Sri P. Panduranga Reddy, Learned Counsel appearing on behalf of the petitioners. Learned Government Pleader for Higher Education, Sri C. Sudesh Anand, Learned Standing Counsel for the APSCHE, Sri P. Sri Raghu Ram, Learned Senior Counsel, Sri Meherchand Noori, Sri A. Prabhakar Sharma, Sri V.R. Reddy Kovvuri, Sri Kesapuram Sudhakar, Sri D. Hanumantha Rao, Sri T. Sudhakar Reddy, Sri G. Mohan Rao, Sri Ch. Ravinder, Sri K. Rama Subba Rao and Mrs. A. Deepti, Learned Counsel appeared on behalf of the applicant colleges put forth their submissions in support of the impugned notification. Written arguments have also been filed on behalf of the petitioners, the APSCHE and the applicant colleges.

It is convenient to examine the contentions, urged by the Learned Senior Counsel and Learned Counsel on either side, under different heads. It is necessary, at the outset, to deal with the preliminary objections, of the APSCHE and the applicant-Colleges, to the maintainability of the writ petition on grounds that the petitioners lack locus standi to question the assessment, of the need to establish new degree colleges, by the APSCHE; and no statutory right, conferred on the petitioners, has been violated thereby.

I. PRELIMINARY OBJECTIONS:

(a). LOCUS STANDI:

It is contended, on behalf of the applicant educational agencies, that a rival college cannot question the grant of permission to others to establish degree colleges; the petitioners plea, that establishment of new colleges would kill the existing institutions, is untenable; the petitioners are not persons aggrieved as they have not suffered a legal grievance; they have neither been wrongfully deprived of something nor has something been refused to them wrongfully; the petitioners rights are not affected in any manner by the issuance of the impugned notification since no legal injury is caused to them; in the absence of any injury suffered by them or their legal rights being violated, and as no orders have been passed by the authorities, the petitioners cannot claim to be persons aggrieved; the petitioners, as competitors in the occupation or business, do not have the locus standi to question the entry of a new operator; with reference to a fresh applicant, intending to start an educational institution, there is no aggrieved party; an existing college cannot have a grievance regarding violation of Section 20; the present case is, admittedly, not a PIL; other than a PIL, the law with regards locus standi to seek a writ of mandamus remains the same; in other words, liberalization is in the public law view of locus standi, and not a right of a citizen; except the public at large, no person is aggrieved even if Section 20(1) is said to have been violated; it would be a public law grievance, and would fall within the parameters laid down by the judicial pronouncements on PIL; since there is no aggrieved person, whose rights have been infringed, no writ petition, otherwise than by way of PIL, is maintainable; the judgment in Nagar Rice and Flour Mills v. N. Teekappa Gowda (1970) 1 SCC 575 [LQ/SC/1970/85] : AIR 1971 SC 246 [LQ/SC/1970/85] ) was delivered by a three Judge Bench, and M.S. Jayaraj v. Commissioner of Excise, Kerala (2000) 7 SCC 552 [LQ/SC/2000/1471] ) by a bench of two judges; it cannot, therefore, be said that Nagar Rice has been overruled; and it still holds the field in so far as the locus standi, on the basis of the grievance of the applicant/petitioner, is concerned.

An application for a writ of mandamus can be made by a person aggrieved by an order, and not a total stranger. (Duryodhan v. Jitendra Kumar Mishra AIR (1999 S.C. 114). The meaning of the expression "person aggrieved" may vary according to the context of the statute, and the facts of the case. Normally a person aggrieved is a man who has suffered a legal grievance or against whom a decision has been pronounced which has wrongfully deprived him of something or he has been wrongfully refused something or his title to something has been wrongfully affected. (Thammanna v. K. Veera Reddy (1880) 14 Ch.D. 458); Re Sidebothem (1880) 14 Ch.D. 458); Bar Council of Maharashtra v. M.V. Dabholkar(1975) 2 SCC 703 = AIR 1975 SC 2092 [LQ/SC/1975/278] ); and J. M. Desai v. Roshan Kumar (AIR 1976 SC 578 [LQ/SC/1975/540] ).

In General Secretary, Affiliated LP. Junior College v. Secretary, Government of Andhra Pradesh Health and Education Department, Hyderabad (), this Court held that, where a public injury caused by the act or omission of the State or a public authority also causes a specific legal injury to an individual or to a specific class or group of individuals, a member of the public, having sufficient interest, can maintain an action challenging the legality of such act or omission. If, however, the person or specific class or group of persons, who are primarily injured as a result of such act or omission, do not claim any relief, a member of the public who complains of a secondary public injury cannot maintain the action. Having so held, this Court, relying on M.S. Jayaraj (supra), observed that, in the light of the expanded concept of locus standi and where the order is passed in violation of the law, the motion should not be nipped out solely on the ground of locus standi; and, if the order passed is without authority of law, it would be improper to allow such an order to remain alive and operative on the sole ground that the person, who filed the writ petition, has strictly no locus standi.

A corporate body acquires by law a legal entity or a legal personality and is entitled to sue and be sued in its own name. An un-incorporated association has no such legal personality or entity. It is an aggregation of its members who can only bring legal proceedings in their individual capacity. Even when all of them are affected by an official act, they can challenge it only if all members join in the proceedings by name. The association, in such a case, cannot maintain an application under Article 226 of the Constitution of India or other legal proceedings in its own name. Even where an association is permitted by law to bring a legal proceeding, it can do so only when its right as a collective body, as distinguished from the aggregate rights of its members, are affected by the act impugned or challenged in the proceedings. This is because an incorporated or registered society or association has a distinct legal personality of its own with rights and capacities, duties and obligations separate from those of its individual members. There are certain exceptions to the above principles such as where special enactments themselves enable or entitle such incorporated societies, registered unions or incorporated associations to maintain an action. (A.P. Arrack Contractors Association v. Government of A.P. (1997 (5) ALT 228 [LQ/TelHC/1997/587] ); Andhra Pradesh Wine Dealers Association v. Deputy Director of Income Tax (Investigation) (2005(4) Laws (APH) 106). The observations in General Secretary, Affiliated LP. Junior College8, on the locus standi to file a Writ Petition, were made in the context of a Writ Petition filed by an association of educational institutions, and cannot be extended to cases where the jurisdiction of this Court has been invoked by the aggrieved educational institutions themselves.

The term locus standi can be understood as a legal capacity to challenge an act, an order or decision. (Andhra Pradesh Wine Dealers Association10). The traditional rule of locus standi is that judicial redress is available only to a person who has suffered a legal injury by reason of a violation of his legal right or legally protected interest by the impugned action of the State or a public authority or any other person or who is likely to suffer a legal injury by reason of threatened violation of his legal right or legally protected interest by any such action. The basis of entitlement to judicial redress is a personal injury to the property, body, mind or reputation arising from violation, actual or threatened, of the legal right or legally protected interest of the person seeking such redress. This is a rule of ancient vintage, and arose during an era when private law dominated the legal scene and public law had not yet been born. (S.P. Gupta v. Union of India (AIR 1982 SC 149 [LQ/SC/1981/463] ).

Hitherto the rigid rule of standing stipulated that, in cases where the right of an existing licencee is not infringed, he lacked locus standi to question the grant of licence to another even if it was contrary to the provisions of any Statute or Rule (Coastal Papers Ltd v. Govt. of India 1996(1) ALT 54 (DB); Nagar Rice and Flour Mills (supra) and Mithlesh Garg v. Union of India AIR (1992 SC 443 [LQ/SC/1991/633] ); while a regulatory provision, if not complied with, may probably expose the violator to a penalty, a competitor in the business cannot prevent the licensee from exercising their right to carry on business because of the default and, though competition in the trade or business may be subject to such restrictions as are permissible and are imposed by the State by a law enacted in the interests of the general public under Article 19(6), no person can claim, independent of such restrictions, that another person shall not carry on business or trade so as to affect his trade or business adversely, and a competitor would not have the locus standi to challenge the grant of the permission to another, as no right vested in him can be said to have been infringed. (The Nagar Rice and Flour Mills. (supra).

The traditional rule of standing, which confines access to the judicial process only to those to whom legal injury is caused or a legal wrong is done, has now been jettisoned by Courts, and the narrow confines within which the rule of standing was imprisoned for long, as a result of the inheritance of the Anglo-Saxon system of jurisprudence, has been broken and a new dimension has been given to the doctrine of locus standi. (Peoples Union for Democratic Rights v. Union of India (1982) 3 SCC 235 [LQ/SC/1982/137] : 1982 SCC (L&S) 275); Andhra Pradesh Wine Dealers Association (supra). The strict rule of locus standi applicable to private litigation is relaxed, and a broad rule is evolved which gives the right of locus standi to any member of the pubic acting bona fide and having sufficient interest in instituting an action for redressal of public wrong or public injury, but who is not a mere busy body or a meddlesome interloper. (Janata Dal v. H.S. Chowdhary (1992) 4 SCC 305 [LQ/SC/1992/567] ); Andhra Pradesh Wine Dealers Association (supra). A member of the public, having no personal gain or oblique motive, is empowered to approach the Court for enforcement of his constitutional or legal rights. (Sheela Barse v. Union of India (1988) 4 SCC 226 [LQ/SC/1988/432] ); Andhra Pradesh Wine Dealers Association (supra).

In M.S. Jayaraj (Supra), the Supreme Court observed:

.In this context we noticed that this Court has changed from the earlier strict interpretation regarding locus standi as adopted in Nagar Rice and Flour Mills v. N. Teekappa Gowda and Bros., (1970) 1 SCC 575 [LQ/SC/1970/85] : (AIR 1971 SC 246 [LQ/SC/1970/85] ) and Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed, (1976) 1 SCC 671 [LQ/SC/1975/540] : (AIR 1976 SC 578 [LQ/SC/1975/540] ) and a much wider canvass has been adopted in later years regarding a persons entitlement to move the High Court involving writ jurisdiction. A four Judge Bench in Jasbhai Motibhai Desai (AIR 1976 SC 578 [LQ/SC/1975/540] ) (supra) pointed out three categories of persons vis-a-vis the locus standi: (1) a person aggrieved; (2) a stranger; (3) a busybody or a meddlesome interloper. Learned Judges in that decision pointed out that any one belonging to the third category is easily distinguishable and such person interferes in things which do not concern him as he masquerades to be a crusader of justice. The Judgment has cautioned that the High Court should do well to reject the petitions of such busybody at the threshold itself. Then their Lordships observed the following (para 37 of AIR) :

"The distinction between the first and second categories of applicants, though real, is not always well demarcated. The first category has as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of persons aggrieved. In the grey outer circle the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outer zone may not be persons aggrieved."

A recent decision delivered by a two Judge Bench of this Court (of which one of us is a party - Sethi, J.) in Chairman, Railway Board v. Chandrima Das, (2000) 2 SCC 465 [LQ/SC/2000/194] : (2000 AIR SCW 649 : AIR 2000 SC 988 [LQ/SC/2000/194] : 2000 Cri LJ 1473) after making a survey of the later decisions held thus (para 17 of AIR, Cri LJ) :

"In the context of public interest litigation, however, the Court in its various judgments has given the widest amplitude and meaning to the concept of locus standi. In Peoples Union for Democratic Rights v. Union of India (1982) 3 SCC 235 [LQ/SC/1982/137] : (AIR 1982 SC 1473 [LQ/SC/1982/137] : 1982 Lab IC 1646) it was laid down that public interest litigation could be initiated not only by filing formal petitions in the High Court but even by sending letters and telegrams so as to provide easy access to Court. On the right to approach the Court in the realm of public interest litigation. In Bangalore Medical Trust v. B. S. Muddappa (1991) 4 SCC 54 [LQ/SC/1991/322] : (1991 AIR SCW 2082 : AIR 1991 SC 1902 [LQ/SC/1991/322] ) the Court held that the restricted meaning of aggrieved person and the narrow outlook of a specific injury has yielded in favour of a broad and wide construction in the wake of public interest litigation. The Court further observed that public spirited citizens having faith in the rule of law are rendering great social and legal service by espousing causes of publc nature. They cannot be ignored or overlooked on a technical or conservative yardstick of the rule of locus standi of the absence of personal loss or injury. There has, thus, been a spectacular expansion of the concept of locus standi. The concept is much wider and it takes in its stride anyone who is not a mere busybody."

In the light of the expanded concept of the locus standi and also in view of the finding of the Division Bench of the High Court that the order of the Excise Commissioner was passed in violation of law, we do not wish to nip the motion out solely on the ground of locus standi. If the Excise Commissioner has no authority to permit a liquor shop owner to move out of the range (for which auction was held) and have his business in another range it would be improper to allow such an order to remain alive and operative on the sole ground that the person who filed the writ petition has strictly no locus standi. So we proceed to consider the contentions on merits.

(emphasis supplied)

Again, in Sai Chalchitra v. Commr., (2005) 3 SCC 683 [LQ/SC/2005/208 ;] ">(2005) 3 SCC 683 [LQ/SC/2005/208 ;] [LQ/SC/2005/208 ;] ), the Supreme Court held:-

.Learned Single Judge, before whom the writ petition came up for hearing, dismissed the writ petition on the locus standi of the appellant to file the writ petition without going into the other questions of law. It was observed that the appellant could not raise a grievance against his rival in the trade particularly when the rival in trade, as in the instant case, was exhibiting cinematograph films much before the appellant was granted the licence. It was held that the appellant had not been denied or deprived of its legal right to exhibit the films and, therefore, he had not sustained any legally protected interest. It was also observed that the order of the Commissioner did not operate as a decision against the appellant as the appellant had not suffered any legal wrong. The writ petition filed by the appellant was held not to be maintainable.

After hearing the counsel for the parties, we are of the opinion that the High Court clearly erred in dismissing the writ petition filed by the appellant on the ground of locus standi. The appellant being in the same trade as Respondent 3 has a right to seek the cancellation of the licence granted to Respondent 3 being in violation of the Act and the Rules.. (emphasis supplied)

After referring to the judgments of the Supreme Court in Nagar Rice and Flour Mills (supra); Union of India v. Allied International Products Ltd., (1971] 41 Comp Cas 127 (SC); State of Orissa v. R.C. Indrakumar Pvt. Ltd., (1973) 3 SCC 739 [LQ/SC/1972/198] = AIR 1972 SC 2112 [LQ/SC/1972/198] ); Dr. Satyanarayna Sinha v. M/s. S.Lai and Co (P) Ltd., AIR 1973 SC 2720 [LQ/SC/1973/270] ); Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed (1976) 1 SCC 671 [LQ/SC/1975/540] : AIR 1976 SC 578 [LQ/SC/1975/540] ); Rajappa Kawati v. G. Hanumantha Rao (1995 (3) ALT 878 [LQ/TelHC/1995/795] ); and P. Nazeer Ahmed v. Joint Transport Commissioner and Secretary (1999 (5) ALT 408 [LQ/TelHC/1999/582] ); and relying on M.S. Jayaraj (Supra), this Court, in Vishwanatha Ravi Kumar v. Government of A.P (2002(2) ALD 29), held that the rigid view of locus standi which was hitherto applied had, over the years, undergone a pragmatic shift, a shift the contours of which were recorded in a number of decisions on and from S.P. Gupta (supra); the licensee-writ petitioners, who had been issued licences, had a legitimate and legal interest in claiming that no licences be issued except in accordance with the provisions of the Act and the Rules, more so when such unlawful grant of licences would adversely impact the viability or profitability of their business; when such writ petitioners are seen to urge a specific plea, that the grant of licences is unlawful and ultra vires the provisions of the Act, they cannot be thrown out nor their plea, of unlawful State conduct, declined to be examined on the jejune plea that they lack locus standi to question the State action.

As the Supreme Court, in M.S. Jayaraj (supra), has declared the law relating to locus standi, after considering its earlier judgments in Nagar Rice and Flour Mills (supra) and Jasbhai Motibhai Desai (supra), it is not open for this Court to entertain, much less examine, the contention, urged on behalf of the applicant Colleges, that the law declared by the Supreme Court in M.S. Jayaraj (supra) is contrary to its earlier judgments in Nagar Rice and Flour Mills (supra) and Jasbhai Motibhai Desai (supra), or that this Court should ignore the law declared in M.S. Jayaraj (supra) and, instead, apply the law laid down in Nagar Rice and Flour Mills (supra) to the facts of the present case. Where the earlier judgments of the Supreme Court have been considered in its subsequent judgment, it is the law declared by the subsequent judgment of the Supreme Court which would bind the High Court. (Sakinala Hari Nath v. State of A.P. (1993 (3) ALT 471 [LQ/TelHC/1993/445] = 1993 (6) SLR 1 (APHC-FB). Consequently this Court is bound by the law declared by the Supreme Court in M.S. Jayaraj (supra).

In view of the expanded rule of standing in M.S. Jayaraj (supra), I see no reason to non-suit the petitioners on the specious plea that they lack the locus standi to file these writ petitions. The distinction sought to be made on behalf of the applicant Colleges, between public interest litigation and other writ petitions, does not also merit acceptance as the jurisdiction exercised by this Court, under Article 226 of the Constitution of India, is only in furtherance of larger public interest be it in a public interest litigation Writ Petition or otherwise. (Master Marine Services Pvt. Ltd v. Metcalfe and Hodgkinson Pvt Ltd (2005) 6 SCC 138 [LQ/SC/2005/514] ); Air India Ltd. v. Cochin International Airport Ltd. (2000) 1 SCR 505 [LQ/SC/2000/214] ).

(b). NO STATUTORY RIGHT IS CONFERRED ON THE PETITIONER TO CLAIM THAT PERMISSION SHOULD NOT BE GRANTED FOR NEW INSTITUTIONS TO BE ESTABLISHED:

It is contended, on behalf of the applicant institutions, that no right is created under the Act, in favour of the existing colleges, to object to the establishment of new degree colleges; the petitioners have not even pleaded infringement of a statutory or a constitutional right or any fundamental right guaranteed to them under the Constitution; the petitioners must have a legal right for issuance of a mandamus to compel the performance of a statutory duty; no role is envisaged for an existing Institution/College/ Individual under Section 20 of the Act to assess the educational needs of a locality; and, as the decision of the competent authority is supported by statutory provisions, this Court would not examine disputed questions of fact in proceedings under Article 226 of the Constitution of India.

While the opinion under Rule 4(2) of the Rules, whether or not the opening a new institution is likely to create unhealthy and undesirable competition with another institution, is that of the competent authority, it is open to the existing educational institutions to show that the formation of such an opinion, by the competent authority, is not in accordance with the Act and the Rules. Formation of opinion must be preceded by application of mind as regards consideration of relevant factors and rejection of irrelevant ones. (Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai (2005) 7 SCC 627 [LQ/SC/2005/944] ); Devinder Singh v. State of Punjab (2008)1 SCC 728) [LQ/SC/1993/258] . The competent authority is required to form an opinion from circumstances suggesting what is set out in Section 20 of the Act and Rule 4(2) of the Rules. While the formation of opinion is subjective, existence of circumstances relevant to the inference, as the sine qua non for action, must be demonstrable. (Barium Chemicals Ltd. v. Company Law Board (AIR 1967 S.C. 295); Swadeshi Cotton Mills v. Union of India (1981) 1 SCC 664 [LQ/SC/1981/26] ). In the formation of opinion regard must be had to the factors enumerated in Section 20 of the Act and Rule 4(2) of the Rules, together with all other factors relevant for the exercise of that power. Formation of opinion must be based on objective considerations. (India Cement Ltd. v. Union of India (1990)4 SCC 356) [LQ/SC/1979/35] , Rajesh Kumar v. Dy. CIT (2007)2 SCC 181) [LQ/SC/1989/200] .There must exist circumstances which, in the opinion of the competent authority, suggest what has been set out in Section 20 of the Act and Rule 4(2) of the Rules. Existence of such circumstances is a condition precedent for the formation of the requisite opinion and, if the existence of those conditions is challenged, Courts are entitled to examine whether those circumstances existed when the order was made. (Rohtas Industries Ltd v. S.D. Agarwal (AIR 1969 SC 707 [LQ/SC/1968/398] ).If it is shown that the circumstances do not exist, or that they are such that it is impossible for any one to form an opinion therefrom, the opinion can be challenged on the ground of non-application of mind or perversity or on the ground that it was formed on collateral grounds and was beyond the scope of the Statute. (Barium Chemicals Ltd. (Supra). If the satisfaction, regarding the existence of any of the conditions stipulated in Section 20 of the Act and Rule 4(2) of the Rules, is based on no evidence or irrelevant and extraneous considerations, the Court will be justified in quashing such an illegal order.(Swadeshi Cotton Mills (supra).

A writ of mandamus can be granted where a statutory duty is imposed upon the officer concerned, and there is failure on his part to discharge the statutory obligation. The chief function of a writ of mandamus is to compel performance of public duties prescribed by the statute and to keep officers exercising public functions within the limit of their jurisdiction. In order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. (Oriental Bank of Commerce v. Sunder Lal Jain (2008) 2 SCC 280 [LQ/SC/2008/31] ); Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh (AIR 1977 SC 2149 [LQ/SC/1977/260] ); Lekhraj Satramdas Lalvani v. Deputy Custodian-cum-Managing officer (AIR 1966 SC 334 [LQ/SC/1965/159] ); Dr. Rai Shivendra Bahadur v. The governing Body of the Nalanda College (AIR 1962 SC 1210 [LQ/SC/1961/401] ) and Dr. Umakant Saran v. State of Bihar (AIR 1973 SC 964 [LQ/SC/1972/504] ).

A complaint under Rule 4(2) of the Rules, regarding unhealthy and undesirable competition arising as a result of new educational institutions being established in the locality, can be made by an existing educational institution of the locality as it is they who would be affected thereby. As a mandamus can be issued for violation of a statutory provision plenary or subordinate - a Writ Petition would lie at the behest of an existing educational institution which would have the locus standi to question a notification issued by the APSCHE, inviting applications for establishing new educational institutions in the locality, if Section 20 of the Act or Rule 4(2) of the Rules are violated thereby. An existing educational institution is also entitled to invoke the jurisdiction of this Court if the satisfaction of the authority, or the formation of its opinion, regarding compliance of the statutory requirements of Section 20 of the Act and Rule 4(2) of the Rules is not based on relevant material or has been arrived at without an objective consideration thereof.

II. SURVEY NOT CONDUCTED PROPERLY:

It is contended, on behalf of the petitioners, that the survey report submitted by the expert committee is illegal; from the letters addressed by the APSCHE to the respective Universities, after the writ petitions were filed, it is evident that the APSCHE did not have information of either the admitted or the sanctioned strength of the existing degree colleges when the survey was conducted; an accurate determination, of the number of new degree colleges required to be established, could not be made; in the absence of relevant data, the APSCHE could not have come to a reasonable conclusion of the need in a particular locality; and the impugned notification dated 16.01.2013, issued on the basis of a survey which was not conducted as per Section 20 of the Act, is invalid.

On the other hand Sri C. Sudesh Anand, Learned Standing Counsel for the APSCHE, would submit that the expression time to time is an ongoing process and is, deliberately, left open to enable collection of necessary material; it is without reference to the notification; the enquiry, and the evaluation, of the need of the locality may be prior to, or after, the notification; after conducting a scientific survey, the Committee constituted by the APSCHE determined the need; the impugned notification was issued on the recommendations of the expert Committee, and on its having identified several mandals wherein new degree colleges were to be established; this Court would not take upon itself the task of re-assessing the need for establishing degree colleges in the subject mandals; the factual data obtained by the APSCHE, the survey conducted by the competent authority in December, 2012, and the subsequent events reveal the critical need to grant permission for new un-aided degree colleges to be established in the subject mandals; the survey report of the expert committee dated 22.12.2012 is neither vitiated in fact nor in law; failure of the Board of Intermediate Education, and the sixteen Universities in the State of A.P, to provide information regarding one of the components is not, by itself, fatal and does not vitiate the entire exercise undertaken by the expert committee in identifying the needy mandals; the lacuna, if any, has been cured as the information now obtained, before granting permission for new degree colleges to be established in the subject mandals, reflects the need to establish such colleges as on date; and the very fact that the petitioners have sought permission, to start new/additional courses at the undergraduate level, itself demonstrates the need in the said locality (mandal).

It is contended on behalf of the applicant Colleges that, in view of the material showing application of mind in the form of a survey, judicial review should be confined to the decision making process i.e., the need to establish degree colleges as per the survey report; there is no allegation of mala fides in conducting the survey; this Court will not, ordinarily, examine the data or evaluate the need as arrived at by the competent authority; the petitioners cannot seek a roving enquiry, and agitate on the merits of the survey report; the report is bonafide, reasonable and within the parameters of Section 20 of the Act; procedural deviations, if any, would not vitiate the entire exercise; the student in-take or the admitted strength alone cannot be the sole determinative factor for not sanctioning new colleges; and geographical factors, infrastructural facilities, number of pass outs etc. are equally important and relevant for the purpose of assessing the need for establishing new degree colleges.

Section 20 of the Act relates to permission for establishment of educational institutions and, under sub-section (1) thereof, the competent authority shall, from time to time, conduct a survey to identify the educational needs of the locality under its jurisdiction, and notify in the prescribed manner through the local newspapers calling for applications from educational agencies desirous of establishing educational institutions. Strouds Judicial Dictionary 5th edition defines the words from time to time to mean:-

. The words from time to time are words which are constantly introduced where it is intended to protect a person who is empowered to act from the risk of having completely discharged his duty when he has once acted, and therefore not being able to act again in the same direction. The meaning of the words from time to time is that after acting the donee of the power may act again; and either independently of, or by adding to, or taking from or reversing altogether, his previous act (per Lord Penzance, ILawrie v. Lees, 7 App. Cas. 19, See further Re Sutton Coldfield Grammar School, 7 App. Cas. 91; Boettcher v. Boettcher, (1948) 8 St. R. Qd. 74).. (emphasis supplied)

While a survey, to identify the educational needs of the locality, is a condition precedent for a notification to be issued, the words from time to time in Section 20(1) make it clear that the competent authority is not obligated to conduct a survey each and every time a notification is proposed to be issued. It is open to the competent authority to issue one or more notifications based on a survey conducted earlier to assess the educational needs of the locality. The validity of the notification dated 16.01.2013, issued under Section 20(1) of the Act, would depend on the validity or otherwise of the survey, conducted prior thereto, identifying the educational needs of the locality. A post- notification identification of the educational needs of the locality, or a post-notification survey, is not contemplated under Section 20(1) of the Act.

The educational needs of the subject mandals was identified by the APSCHE after a survey was conducted to ascertain the need. The criteria prescribed by the expert committee, constituted by the APSCHE for conducting the survey, were (1) the number of intermediate pass-outs; (2) the sanctioned strength in each degree college; and (3) the admitted strength in each degree college. It is on the basis of these criteria that the committee is said to have determined the need to establish educational institutions in the locality. The recommendations of the expert committee were three fold ie., (i) in the case of mandals with only one junior college, their geographical location relative to each other may be taken into consideration; if two or three such mandals are adjacent, one may consider establishing a degree college in one of them; (ii) in the case of mandals/areas, where one or more degree colleges already exist, the following criterion may be followed for the sanction of new degree colleges where the total number of admitted students is far in excess of the total sanctioned intake; however one has to also consider that the total number of intermediate pass-outs is not far below the total sanctioned intake; and (iii) if, before a notification is issued, a request is made to start a new private unaided degree college in mandals, where the required number of degree colleges already exist, the APSCHE may, while identifying such mandals for new private un-aided degree colleges to be established thereat, consider the performance of existing degree colleges for the last four consecutive years after obtaining information from the concerned affiliating Universities. The impugned notification dated 16.01.2013 was issued on the basis of the recommendations of the expert committee that there was a need to establish degree colleges in the subject mandals.

The need of the locality cannot always be with reference to a particular mandal. Merely because there is a college in a mandal, it cannot be said, as a thumb rule, that another college is not viable. These are matters for the APSCHE to decide having regard to so many "imponderables and inferences" which are non-justiciable issues before this Court. (General Secretary, Affiliated LP. Junior College (Supra). This Court, in the exercise of its jurisdiction under Article 226 of the Constitution of India, would not sit in judgment over the assessment of the competent authority regarding the need for providing educational facilities to people in the locality. When an expert body submits a report, that there is a feasibility for starting another degree college, this Court would not, ordinarily, sit in appeal over its recommendations. It is not for an educational society to say that the educational needs of the student community in the area in question are already met by their college and, therefore, starting of another college would create unhealthy competition. (Sri Teja Educational Society v. A.P. State Council of Higher Education, Hyderabd (2002(2) ALT 426 (D.B)). On matters requiring technical expertise, this Court would leave the matter for the decision of those who are qualified to address the issues. Unless the action is inconsistent with the Constitution and the laws or is arbitrary or irrational, the Court will not interfere. (Federation of Rly. Officers Assn. v. Union of India (2003) 4 SCC 289 [LQ/SC/2003/380] ); Society of St.Anns v. Secretary to Government (1993 (2) ALT 610 (FB).

This Court would not take upon itself the task of assessing the educational needs of the locality or enquire into the feasibility of establishing new degree colleges in the subject mandals, as these are all matters to be examined and determined by the APSCHE. It would be wholly inappropriate for this Court to conduct a microscopic examination of the deficiencies in the survey, or the errors in the survey report, which are sought to be highlighted by the petitioners-Institutions. The scope of judicial review is limited to an examination whether the criteria prescribed by the expert committee, for conducting the survey, has been adhered to by it or not; whether the recommendations of the expert committee is based on the material gathered by it during the course of the survey; and whether the provisions of Section 20 of the Act and Rule 4(2) of the Rules have been adhered to by the APSCHE in issuing the impugned notification.

As noted hereinabove, assessment of the educational needs of the locality, by the expert committee constituted by the APSCHE, is based, among others, on the criterion of the admitted strength of students in each existing degree college. Likewise the recommendations of the expert committee for sanction of new degree colleges, in mandals/areas where one or more degree colleges already exist, is that the total number of admitted students in the existing degree college is far in excess of the total sanctioned intake. The report of the expert Committee notes, under the head need assessment, that, for the purpose of the survey and to make an assessment of the existing situation, they had sought data corresponding to the number of students who passed out in the year 2012 from each Junior College (II Year) in the State; the sanctioned strength; and the number of students admitted, in the year 2012, in each degree college in the State. It is evident, therefore, that the Committee had itself prescribed the number of students admitted in the year 2012, in each degree college in the State, as a relevant criterion for assessing the need for establishing educational institutions in different mandals of the State. The mandals, where degree colleges were to established, were identified by the expert committee without having information regarding the number of students admitted in degree colleges in the year 2012. The impugned notification was issued on 16.01.2013 more than one month before the APSCHE had, by its letter dated 22.02.2013, sought information in this regard from sixteen Universities in the State, and much prior to such information being furnished by the said Universities in March, 2013 though assessment of the need, for establishing degree colleges in a locality, is a pre-notification exercise to be undertaken by the APSCHE.

It is the admitted case of the APSCHE, in its counter-affidavit, that they had requested the Board of Intermediate Education, vide letter dated 03.10.2012, to give data of the number of student pass-outs in the year 2011-12, in the attached proforma, for the purpose of the survey; the Board of Intermediate Education had submitted a soft copy to them; they had requested all the concerned universities, by their letter dated 03.10.2012, to provide data - mandal wise; another reminder, vide letter dated 01.11.2012, was sent requesting all the sixteen universities in the State of A.P. to furnish data, for the purpose of the survey, as per the proforma attached; in reply thereto both Sri Venkateswara University, Tirupati and Satavahana University, Karimnagar had, by their letters dated 20.11.2012 and 06.11.2012 respectively, provided data of the number of degree colleges - affiliated to the university-mandal wise; they did not, however, provide information as per the enclosed proforma; though Sri Krishnadevaraya University had furnished some data, the complete data as sought by the expert committee was not furnished by them; the expert committee submitted its survey report, in the month of December, 2012, to the APSCHE identifying the mandals where there was a need to start new un-aided private degree colleges; thereafter the notification dated 16.01.2013 was issued and societies, which desired to start new private unaided degree colleges, submitted their applications; a joint inspection committee was constituted, thereafter, to physically verify the instructional and infrastructural facilities provided by the prospective colleges in the said mandals; this exercise has been completed and the JIC reports, of all the prospective colleges in the mandals, have been submitted to the APSCHE; the APSCHE had requested various Universities, by their letter dated 22.02.2013, to furnish details of the admission and infrastructural facilities in existing private un-aided degree colleges located in the subject Mandals, in the prescribed proforma, for taking necessary action as the notifications had been challenged in the High Court of Andhra Pradesh, and interim directions had been passed directing the APSCHE not to process the applications; the proforma, specified in the said letter dated 22.02.2013, required the Universities to furnish information, among others, regarding the sanctioned intake and the admitted strength of the existing degree colleges; in reply thereto that the affiliating Universities furnished the information, sought for by the APSCHE, in March, 2013; the information provided by the affiliating universities in March, 2013, in accordance with the proforma data sought by the APSCHE, demonstrates that there is a need to grant permission for new colleges in the said mandals; though data was sought by the APSCHE, in the prescribed proforma, prior to the survey being undertaken, various authorities such as the Board of Intermediate Education, and the 16 Universities in the State of A.P, did not, for reasons best known to them, provide information regarding one of the components i.e., the admitted strength of students in the existent degree colleges.

It is evident that the APSCHE had secured information, regarding the admitted strength of the existing degree colleges in the subject Mandals, from the affiliating Universities only in March, 2013, more than a month after the notification was issued on 16.01.2013. The expert committee, constituted to conduct the survey, failed to take into consideration one of the three essential criteria stipulated by it as the basis for determining the educational needs of each locality - Mandal-wise, i.e., the total number of admitted students in the existing degree colleges, as information relating thereto was not available with them when the survey was conducted. The expert committee, constituted by the APSCHE, must be rigorously held to the standards by which it professes its actions to be judged, and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. This rule, though supportable also as emanating from Article 14, does not rest merely on that Article. It has an independent existence apart from Article 14. It is a rule of administrative law which has been judicially evolved as a check against exercise of arbitrary power. (Ramana Dayaram Shetty v. International Air Port Authority of India (1979) 3 SCC 489 [LQ/SC/1979/277] ); Viteralli v. Seton (359 U.S. 535: 3 L.Ed. 1012); A.S. Ahluwalia v. Punjab (1975) I LLJ 228 (SC): and Sukhdev v. Bhagatram (1975) ILLJ 399 (SC); and H.W.R. Wade: Administrative Law 4th edition). The State, its instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. (Air India (supra).

The APSCHE had, on its own accord, decided to conduct a survey to identify the educational needs of the locality before issuing a notification inviting applications from educational agencies desirous of establishing educational institutions. It is only on the basis of the report submitted by the expert Committee, identifying certain mandals in the State for establishing degree colleges thereat, was the notification issued on 16.01.2013 inviting applications. As the expert Committee had conducted the survey, without information being made available to them regarding the admitted strength of the existing degree colleges in the State for the year 2012, which the said Committee had itself prescribed as a relevant criterion, the survey report, identifying the educational needs of the locality, is vitiated. As the statutory mandate of Section 20(1) of the Act is to identify the educational needs of the locality before a notification is issued, the discretion exercised by the APSCHE in issuing the impugned notification, based on a wholly improper exercise of identification of the educational needs of the locality, is also rendered illegal thereby.

The question, whether or not the requirements of Section 20 of the Act and Rule 4 of the Rules are satisfied, relates to the validity of the exercise of statutory power to issue a notification inviting applications for establishing new degree colleges. Exercise of power by the competent authority would be rendered illegal if it is ultra vires Section 20 of the Act or Rule 4(2) of the Rules. On this Court being satisfied that the exercise of power is ultravires the Act and the Rules, it would not be necessary for it to undertake a further examination whether such exercise of power is bona fide or mala fide. It is no doubt true that Section 20 of the Act does not, per se, stipulate the factors to be taken into consideration, by the competent authority, in assessing the educational needs of a locality. It is for the competent authority, or the expert committee constituted by it, to prescribe factors which it considers relevant. This Court, in proceedings under Article 226 of the Constitution of India, would not examine the relevance of the factors, taken into consideration either by the competent authority or the expert committee constituted by it, as long as no Constitutional or statutory provisions are violated thereby.

The question which arises for consideration, in this batch of writ petitions, is not whether the expert committee, constituted by the APSCHE, has taken into consideration factors which are relevant, but whether the survey report submitted by it, which resulted in the impugned notification dated 16.01.2013 being issued, was based on the data collected with respect to the criteria or factors which it had itself prescribed as relevant. As noted hereinabove among the criteria stipulated by the expert committee, for conducting the pre-notification survey, is the admitted strength/in-take of students by the existing degree colleges in the year 2012. The relevance or otherwise of this criterion is not in issue in this batch of writ petitions, and all that is under examination is the validity or otherwise of the survey report (submitted by the expert committee without obtaining data in relation to a criterion which it had itself stipulated as amongst the relevant criteria for assessing the educational needs of the locality) which preceded the notification dated 16.01.2013 issued under Section 20(1) of the Act. The submission urged on behalf of the petitioners, that the survey report is vitiated, merits acceptance.

III. ABSENCE OF A PLEA:

It is contended, on behalf of the applicant Colleges, that there is no plea in the writ affidavits regarding the validity or otherwise of the survey report; the petitioners case in the writ petition rested solely on the specious plea that no survey was conducted by the APSCHE in identifying the educational needs of the locality; the APSCHE had, along with their counter affidavit, filed the survey report as proof of having conducted a survey; in the absence of the basic foundational facts being pleaded, the contentions regarding the validity of the survey report cannot be urged for the first time during arguments; the claim of the petitioners, that grant of permission to establish new colleges would kill the existing institutions, is based on the erroneous premise that the APSCHE has issued the impugned notification without conducting a survey, and without assessing the need for establishing new colleges.

It is contended on behalf of the petitioners that the challenge in the writ petitions, to the notification dated 16.01.2013, was under the bonafide belief that no survey was conducted by the competent authority prior to the impugned notification; the prayer in the Writ Petition, and the averments in the writ affidavit, amply demonstrate that the impugned notification is contrary to the provisions of Section 20 of the Act, and Rule 4(2) of the Rules; the petitioners came to know of the alleged survey report only from the counter affidavit filed by the APSCHE; the petitioners, thereafter, filed their reply affidavit wherein they averred that an essential criterion, which ought to have been followed while conducting the survey, was not adhered to; as the petitioners were able to point out the absence of one of the essential components of the survey, and as this has not been controverted by the respondents, it is for the competent authority to show how it reached the conclusion of the need to establish degree colleges in the subject mandals; and the respondents cannot ask the petitioners to establish the negative.

It is no doubt true that foundational facts are required to be pleaded enabling the Court to scrutinize the nature and content of the right alleged to have been violated by the authority (Raj Kumar Soni v. State of U.P. (2007) 10 SCC 635 [LQ/SC/2007/438] ); a plea, not raised in the writ application, cannot be urged during the hearing before the Court (Chimajirao Kanhojirao Shirke v. Oriental Fire & General Insurance Co. Ltd. (2000) 6 SCC 622 [LQ/SC/2000/1093] ); B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. (2006) 11 SCC 548 [LQ/SC/2006/1018] ); in the absence of a plea in the original petition, no contention can be urged at a later (appellate) stage on the basis of observations made by the Court (National Buildings Construction Corporation v. S. Raghunathan (1998) 7 SCC 66 [LQ/SC/1998/861] ); U.P.Gram Panchayat Adhikari Sangh v. Daya Ram Saroj (2007) 2 SCC 138 [LQ/SC/2006/1262] ); once a stand in fact is taken, that fact cannot be controverted by any legal proposition; and an issue cannot be decided through legal inferences dehors of, and without adverting to, the facts on record. (Chimajirao Kanhojirao Shirke (supra).

In the affidavit, filed in support of the Writ Petition, no plea was taken by the petitioners regarding the validity of the survey report, and the contention urged therein was that a survey did not precede the impugned notification. In its counter-affidavit the APSCHE stated that a survey had been conducted, and the contents of the survey report was referred to therein. The petitioners have, thereafter, filed a reply affidavit assailing the validity of the survey report. The fact that a survey was conducted was only in the knowledge of the APSCHE and, in the absence of the survey report being made available prior to the filing of the writ petition, the petitioners cannot be faulted for the absence of a plea, regarding the validity of the survey report, in the affidavits filed in support of the writ petitions.

It must also be borne in mind that pleadings should be liberally construed and relief should not be denied to the petitioner on mere technicalities (Radhy Shyam v. State of U.P (2011) 5 SCC 553 [LQ/SC/2011/573] ); if contentions regarding glaring irregularities, not specifically raised in the pleadings of a writ petition, is raised in a given case, the High Court can take notice of such fact when it is self evident on the face of the record, and proceed to decide the dispute before it (Jeet and Jeet Glass and Chem. P. Ltd v. The State of Assam (Man: IV (2011) BC 325); and the failure of the State or its instrumentalities to produce evidence of facts especially within the knowledge of its officials, taken together with the attendant facts and circumstances, can result in the petitioners having been said to have discharged their burden. (Narayan Govind Gavate v. State of Maharashtra (1977) 1 SCC 133 [LQ/SC/1976/368] ). As the contentions in the reply affidavit, regarding the validity of the survey report, is based solely on the averments in the counter-affidavit filed by the APSCHE, and the material placed by them on record, there are no factual disputes which necessitate adjudication and the validity of the survey report can be examined on the basis of the material on record.

The Court, in the interest of justice, can grant/mould the relief in a given situation even in the absence of specific pleadings. (Charanjit Lal Chowdhury v Union of India (AIR 1951 SC 41 [LQ/SC/1950/51] ); B.R. Ramabhadraiah v. Secretary, Food and Agriculture Departments Andhra Pradesh and Mandira Singh v. State of (1981) 3 SCC 528 [LQ/SC/1981/320] ) Assam; Jeet and Jeet Glass and Chem. P. Ltd (supra). As far as possible the anxiety and endeavour of the Court should be to remedy an injustice when it is brought to its notice rather than deny relief to an aggrieved party on purely technical and narrow procedural grounds. (B.R. Ramabhadraiah (supra). I see no reason, therefore, to non-suit the petitioners on the technical plea that their failure to question the validity of the survey report, in the affidavits filed in support of the writ petitions, would disable them from questioning its validity at a subsequent stage of the proceedings.

IV. THE IMPUGNED NOTIFICATION DOES NOT SATISFY THE REQUIREMENTS OF THE ACT AND THE RULES.

It is contended, on behalf of the petitioners, that the notification dated 16.01.2013, issued by the APSCHE, does not satisfy the requirements of Section 20 of the Act and the Rules; absence of one of the essential components of the survey resulted in a vague notification being issued; when the material relied upon is so insufficient, that no ordinary man could have reasonably reached such a conclusion, the opinion or satisfaction, based on irrelevant and insufficient material, cannot be sustained and is liable to be set aside; failure to consider aspects, which are relevant for establishing degree colleges, would create unhealthy and undesirable competition which the Act and the Rules intend to prevent; even in the notification, the APSCHE did not specify the number of degree colleges which can be established in each locality or a mandal; and, as the notification is not based on a proper assessment of the need, it is liable to be set aside.

On the other hand Sri C. Sudesh Anand, Learned Standing Counsel for the APSCHE, would submit that authentic information had been obtained from the concerned universities, to which these colleges were affiliated, regarding the deficiencies in the existing colleges; there is a need for new degree colleges being established in these mandals as has, rightly, been identified under the notification dated 16.01.2013; if the authorities have, broadly, come to the conclusion that there is a need which need may not, necessarily, be in numbers only, there is compliance with Section 20 of the Act; Section 20 does not require the APSCHE to ensure that the existing educational institutions are not rendered economically unviable; and there is sufficient compliance with Section 20 if a survey is undertaken and there is material to show application of mind with regards the need of the locality.

The competent authority is statutorily mandated to assess the educational needs of the locality and determine the number of degree colleges which need to be established thereat. The process of identifying the educational needs of the locality does not end merely with the need being ascertained, and would extend to a determination of the number of colleges to be established/courses to be offered in the locality to meet its educational needs. It is only after ascertaining the specific needs of the locality, in terms of the number of colleges which are required to be established thereat, should the notification be issued inviting applications for establishing the ascertained number of degree colleges in the said locality. Neither the survey report nor the impugned notification disclose any exercise having been made by the APSCHE to identify the precise number of new degree colleges required to be established in each of the mandals to meet its educational needs. The submission made on behalf of the petitioners that the notification is vague cannot, therefore, be brushed aside. The impugned notification, inviting applications for establishing an indeterminate number of degree colleges, does not satisfy the requirements of Section 20 of the Act.

V. VIOLATION OF FUNDAMENTAL RIGHTS

Sri P. Sriraghuram, Learned Senior Counsel appearing on behalf of some of the applicant colleges, would submit that the right to establish and maintain educational institutions is traceable to occupation under Article 19(1)(g), and to Article 26(a) of the Constitution of India with reference to a charitable purpose; this right is sought to be regulated by a law, under Article 19(6) of the Constitution of India, in the form of Section 20 of the Act; the Act has received the assent of the President; Section 20 has, therefore, the character of an Article 19(6) legislation; in the absence of Section 20 of the Act, a citizen can establish an educational institution as a matter of right; all regulatory measures, i.e., the statute in the form of Section 20 of the Act and subordinate legislation in the Rules have been made only to regulate the applicants right to establish new educational institutions; the petitioners seek to curtail the fundamental and statutory rights of the applicant colleges resorting to avoidable litigation; Section 20 does not confer any right on a third party (existing colleges) to prevent new colleges being established since the Act is a regulatory enactment under Article 19(6) of the Constitution of India; conversely, a right is given to educational agencies to make an application for starting a new college or institution; any grievance, regarding non-compliance of Section 20 of the Act, can only be made by a person whose fundamental right is regulated; for instance, if an application is not entertained on the ground that there is no need, a writ can be maintained by such a person contending that no survey was conducted as is required by law; a writ of mandamus can then be issued directing the competent authority to conduct a survey, and to ascertain whether there is a need for establishing new colleges, and thereby enable the applicant to exercise their fundamental right; and this right is, however, not available to an existing educational agency which cannot have any grievance.

It is the duty of the State, under the directive principles of state policy enshrined in Article 41 of the Constitution, not only to establish educational institutions but also to effectively secure the right to education. The State is, admittedly, in no position to perform its sovereign function of imparting education. Such functions are, necessarily, required to be performed by private actors. As it is not in a position to establish colleges with its financial resources, it has evolved a policy to encourage setting up of private degree colleges. (Sri Teja Educational Society v. A.P. State Council of Higher Education, Hyderabad (supra); Election Commission of India v. St. Mary School (2008) 2 SCC 390 [LQ/SC/2007/1489] ); Brown v. Board of Education (98 L Ed 873: 347 US 483 1954). Private education is one of the most dynamic and fastest-growing segments of post-secondary education at the turn of the twenty-first century. A combination of unprecedented demand for access to higher education, and the inability or unwillingness of the Government to provide the necessary support, has brought private higher education to the forefront. The right to establish and administer educational institutions broadly comprises the following rights: (a) to admit students; (b) to set up a reasonable fee structure; (c) to constitute a governing body; (d) to appoint staff (teaching and non-teaching); and (e) to take action if there is dereliction of duty on the part of any employees. (Society for Unaided Private Schools of Rajasthan v. Union of India (2012) 6 SCC 1 [LQ/SC/2012/365] ); T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481 [LQ/SC/2002/1144] )].

The activity undertaken by private institutions to establish and administer educational institutions supplements the primary obligation of the State. The State can regulate, by law, the activities of private institutions by imposing reasonable restrictions under Article 19(6). (Society for Unaided Private Schools of Rajasthan (supra). The expression reasonable restrictions signifies that the limitation imposed on a person in the enjoyment of that right should not be arbitrary or excessive. The word reasonable implies intelligent care and deliberation, that is, the choice of a course which reason dictates. (Pathumma v. State of Kerala (1978) 2 SCC 1 [LQ/SC/1978/12] ); Chintaman Rao v. State of Madhya Pradesh(AIR 1951 SC 118 [LQ/SC/1950/36] ); and State of Maharashtra v. Himmatbhai Narbheram Rao (1969) 2 SCR 392 [LQ/SC/1968/315] ). Restrictions can by no means be said to be unreasonable, if it is only regulatory and not prohibitory. (P.P. Enterprises v. Union of India(1982) 2 SCC 3). While all citizens have a right to establish and administer educational institutions under Articles 19(1)(g) and 26, that right is subject to the provisions of Articles 19(6) and 26(a). (Society for Unaided Private Schools of Rajasthan (supra); T.M.A. Pai Foundation(supra); and P.A. Inamdar v. State of Maharashtra (2006(2) ALT 432 (DB).

Section 2(16) of the Act defines education to mean general education, medical education, technical education, physical education, teacher education, special education, oriental education, adult education (including non-formal) and any other branch of education which the Government may, by notification, specify. Section 2(17) defines educational agency to include any private educational institution, any body of persons entrusted with the establishment, management and maintenance of such a private educational institution. Section 2(18) defines educational institutions to mean a recognized school, college including a medical college, special institution or other institution (including an orphanage or boarding home or hostel attached to it) by whatever name called, the management of which carries on (either exclusively or among other activities) the activity of imparting education therein, and includes every premises attached thereto, but does not include a tutorial institution. Section 2(19) defines general education to mean every branch of education including special education but does not include medical education or technical education. Chapter VI of the Act relates to establishment of educational institutions, their administration and control. Section 18, thereunder, enables the Government, for the purpose of implementing the provisions of the Act, to provide adequate facilities for imparting general education, technical education, special education and teacher education in the State by (a) establishing and maintaining educational institutions and (b) permitting any local authority or a private body of persons to establish educational institutions and maintain them according to such specifications as may be prescribed. Section 19 classifies educational institutions into three categories including (a) the educational institutions established or maintained and administered by the Government; and (c) private institutions, i.e. educational institutions established or maintained and administered by any body of persons registered in the manner prescribed.

The provisions of the Act and the Rules are regulatory in character, and are in the nature of a legislation under Article 19(6) of the Constitution. The statutorily prescribed regulatory mechanism necessitates strict compliance and a complaint, of violation of the statutory requirements of Section 20 of the Act and Rule 4 of the Rules, cannot be thrown out merely on the ground that the fundamental rights of the applicant colleges, under Article 19(1)(g), would be effected thereby. Fetters are placed on the fundamental rights of the applicant educational agencies not only by the requirement that the institutions, which they seek to establish, must be for a charitable purpose but also that such institutions are established in strict compliance with the conditions stipulated under Section 20 of the Act and Rule 4(2) of the Rules. The submission, urged on behalf of the applicant colleges, that it is only they who can complain of violation of the Act and the Rules, and not the petitioners (who are existing educational institutions in the locality), does not, therefore, merit acceptance.

VI. APPLICANT INSTITUTIONS CAN SATISFY THE AUTHORITIES OF THE NEED TO ESTABLISH NEW DEGREE COLLEGES:

Sri C. Sudesh Anand, Learned Standing Counsel for the APSCHE, would submit that some of the applicant societies, which have sought permission to start a new degree college in the subject mandals, have provided data regarding the need to start a new degree college in the said mandals, thereby complying with Section 20(3) of the Act; and, even if there was any minor lacuna in the survey report in identifying the subject mandals, in so far as need of the locality is concerned, the same is now cured. It is contended, on behalf of the applicant colleges, that merely because a notification was issued does not automatically mean that sanction would be accorded for starting a new degree college; even in the absence of a notification being issued by the competent authority, under Section 20(1) of the Act, educational agencies can submit their application, and satisfy the concerned authority of the need for establishing a new college or institution; Section 20 of the Act, which creates a right in an educational agency to establish a College, also casts an obligation on them to satisfy the concerned authority of the need to establish educational institutions in the locality at the stage of enquiry under Section 20(3); and the Writ Petitions, as filed, are premature as no decision has, as yet, been taken for establishing new degree colleges in the subject mandals.

It is contended, on behalf of the petitioner-institutions, that Section 20(3) (a) of the Act has no application as all the applicants have responded to the impugned notification, and have submitted their application to the APSCHE; only in cases where an educational agency has directly and independently approached the State Government, and not the competent authority, can the State Government, in the exercise of its powers under Section 18 of the Act, grant permission; none of the applicant-educational institutions have pleaded that they have approached the State Government directly, and not the Competent Authority; and, on the contrary, it is their case that, in view of the interim orders passed by this Court, their applications are not being processed by the Competent Authority which had issued the notification.

Section 20(2) of the Act enables any educational agency intending to establish an institution imparting education or open new courses, in pursuance of the notification issued under sub-section (1), to make an application, within such period, in such manner, and to such authority as may be notified, for the grant of permission therefor. The statutory right of an educational agency to make an application under Section 20(2) of the Act is pursuant to a notification issued under Section 20(1) of the Act. Such a notification can be issued only after the educational needs of the locality has been identified on the basis of a survey conducted, by the competent authority, from time to time.

When an application is made by an educational agency, for the grant of permission for establishing an educational institution, the principles underlying Sub-section (3) of Section 20 of the Act may be followed in considering the application for the grant of permission though the provisions of Sub-section (3) of Section 20, strictly speaking, does not apply for such consideration, and they apply only where an application is made to the concerned authority pursuant to a notification issued calling for applications from educational agencies desirous of establishing educational institutions. When such applications are considered, it can take into account not only the need for providing educational facilities to the people in the locality, but also the educational needs of the entire State can be taken into account if it is considered necessary for the purpose of implementing the provisions of the Act. (Society of St. Anns (supra); Integrated Rural Health Women & Child Education Development Society v. Government of A.P (2006(2) ALT 432 (DB).

Section 20(3)(a)(i) of the Act requires the educational agency applying for permission under Section 20(2), before permission is granted, to satisfy the authority concerned that there is a need for providing educational facilities to the people in the locality. By the use of the word satisfied in Section 20(3), the legislature has placed fetters on the exercise of power by the concerned authority to grant permission, under Section 20(3) and (4) of the Act r/w. Rule 4(2) of the Rules, to establish an educational institution. The words is satisfied must be intended to serve, in some sense, as a condition limiting the exercise of an otherwise arbitrary power. If the question whether the condition has been satisfied is to be conclusively decided by the person who wields the power, the value of the intended restraint is in effect nothing. The words is satisfied must be read as imposing a condition that there must, in fact, exist such reasonable grounds, known to the person, before he can validly exercise the power. (Attorney-General and Saint Christopher, Nevis and Anguilla v. Reynolds (1979) 3 ALL ER 129). The satisfaction of the authority must be arrived at on an objective consideration of the material on record as to whether or not there is a need for providing educational facilities to the people in a particular locality.

After the educational needs of the locality have been identified, and applications have been invited on a notification being issued by the competent authority after conducting a survey, what is the underlying purpose, of Section 20(3)(a)(i) of the Act, in requiring the applicant educational agency to once again satisfy the concerned authority of the need for providing educational facilities to the people in the locality On a harmonious construction, of Section 20(1) and Section 20(3)(a)(i) of the Act, it is clear that the applicant educational agency is entitled to satisfy the competent authority that there is a greater need, for providing educational facilities to the people in the locality, than what has been identified by the competent authority pursuant to a survey conducted by it earlier. If, for instance, the competent authority, on the basis of a survey conducted by it, identifies the educational needs of a particular locality as requiring one new degree college to be established thereat and if, pursuant to the notification, several educational agencies submit their applications, it is always open to them to satisfy the concerned authority that the actual need of the locality is for establishing two or more degree colleges thereat. Conversely if the competent authority, under Section 20(1) of the Act, has identified the educational needs of the locality as requiring two or more new degree colleges being established, it is open to any one of the applicant educational agencies to satisfy the competent authority that it would suffice, to meet the educational needs of the locality, if one degree college is established instead of the two or more degree colleges for which a notification was issued. Section 20(3)(a)(i) of the Act does not enable any of the existing degree colleges to satisfy the authority that there is no need to establish a degree college, and the educational needs of the locality are adequately served by the existing degree colleges, as such an opportunity is statutorily provided only to the applicant educational agencies which are seeking permission, under Section 20(2) of the Act, to establish educational institutions in the locality.

Rule 1(2) of the Rules makes the Rules applicable to all educational institutions (both Government and private) imparting degree courses in the State of Andhra Pradesh. Rule 2(b) of the Rules defines educational agency to mean the educational committee/Society/Trust/Association, sponsoring/managing/ running the educational institution both government and private unless otherwise specifically mentioned. Rule 2(d) defines competent authority to mean the authority which is competent to grant permission/recognition/ affiliation as the case may be to the educational institutions. Rule 2(e) defines institution to mean the educational institution indicated under Rule 1(2) and sponsored/managed/run by the educational agency. Rule 3 stipulates that the competent authority, for granting or withdrawing permission for the establishment of all classes/categories of educational institutions mentioned in sub-rule (2) of Rule 1, shall be the Commissionerate. Rule 4 of the Rules prescribes conditions for grant of permission and, under sub-rule (1) thereof, permission for the establishment of any of the educational institutions under sub-rule (2) of Rule 1 shall be granted only if the conditions laid down in Section 20 of the Act are satisfied and after obtaining prior approval of the Commissioner under sub-section (2) of Section 11 of the Andhra Pradesh Commissionerate of Higher Education Act, 1986. Section 11 of the A.P. State Council of Higher Education Act, 1988 prescribes the powers and functions of the Council, which includes formulation of principles as per the guidelines of the Government, and to approve and sanction new educational institutions by according permission keeping in view the various norms and requirements to be fulfilled.

Rule 4(2) of the Rules stipulates that no permission shall be granted if the educational needs of the locality are adequately served already and, in the opinion of the competent authority, the opening of a new institution is likely to create unhealthy and undesirable competition with another institution of the same class/category in the area. Thus no permission need be granted to establish new colleges if the educational needs of the locality are adequately served by the existing colleges. Rule 4(2) envisages a situation where an application is made for establishing an educational institution in the locality even in the absence of a notification being issued under Section 20(1) of the Act for, if an application to establish an educational institution can only be made pursuant to a notification issued under Section 20(1) of the Act, such an application would only be on the basis of the educational needs of the locality having been identified by the competent authority pursuant to a survey being conducted from time to time. If the educational needs of a locality have already been identified, and on the basis of such identification applications are invited, the question of the competent authority refusing permission thereafter on the ground that the educational needs of the locality are adequately served already would not arise. Even if the competent authority has not issued any notification, calling for applications for establishing educational institutions, as contemplated under Sub-section (1) of Section 20, it would still be open to an educational agency to apply for grant of permission for establishing an educational institution. In such a case, it is for the competent authority to pass appropriate orders on the application submitted to it, on the basis of the principles underlying Sub-section (3) of Section 20, and having regard to the relevant criteria. (Society of St. Anns (supra); Integrated Rural Health Women & Child Education Development Society (supra).

The right to establish and administer an educational institution is a fundamental right within the meaning of Article 19(1)(g) as long as the activity remains charitable in nature. Education is a recognized head of "charity". If an educational institution goes beyond "charity" into commercialization, it would not be entitled to the protection of Article 19(1)(g). (Society for Unaided Private Schools of Rajasthan (supra); T.M.A. Pai Foundation (supra). The Court must be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms. (Minister of Home Affairs v. Fisher(1979) 3 All ER 21). The guarantees embodied in Part III of the Constitution are to be interpreted liberally, and not in any pedantic or narrow sense. (A.I.B.E. Assocn. v. N.I. Tribunal (AIR 1962 SC 171 [LQ/SC/1961/292] = (1962) 3 SCR 269 [LQ/SC/1961/292] ). What is fundamental is the freedom, not the exception. (Maneka Gandhi v. Union of India AIR (1978 SC 597 [LQ/SC/1978/27] ); State of Madras v. V.G. Row (1952 SCR 597). If the provisions of the statute are reasonably capable of a construction which does not involve the infringement of any fundamental right, that construction must be preferred though it may reasonably be possible to adopt another construction which leads to the infringement of the said fundamental right. (Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan AIR (1963 SC 1638 [LQ/SC/1963/8] ). A court of law would interpret a provision which would help in sustaining the validity of the law by applying the doctrine of reasonable construction than accepting the interpretation which may render such provision unsustainable and ultra vires the Constitution, (Olga Tellis v. Bombay Municipal Corpn. (1985) 3 SCC 545 [LQ/SC/1985/219] ); Japani Sahoo v. Chandra Sekhar Mohanty (2007) 7 SCC 394 [LQ/SC/2007/945] : (2007) 3 SCC (Cri) 388); and Uttar Pradesh Power Corporation Limited v. Ayodhya Prasad Mishra (2008) 10 SCC 139 [LQ/SC/2008/1863] ), as the legislature is presumed to have enacted a reasonable statute. (Bharat Petroleum Corporation Ltd. V. Maddula Ratnavalli (2007) 6 SCC 81 [LQ/SC/2007/578] ); Breyer, Stephen (2005): Active Liberty: Interpreting our Democratic Constitution, Knoph (Chapter on Statutory Interpretation, page 99 for Reasonable Legislator Presumption).

While the petitioners interpretation of Section 20(3)(a)(i) of the Act, that the opportunity to an educational agency to satisfy the authority of the need for providing educational facilities to the people in the locality is available only to an educational agency applying for permission under Section 20(2) of the Act, is a possible construction, Section 20(3)(a)(i) of the Act, when read in conjunction with Rule 4(2) of the Rules and bearing in mind that the right to establish an educational institution is a fundamental right under Article 19(1)(g) of the Constitution of India, is also capable of a construction that any educational agency desirous of establishing an educational institution can independently, and even in the absence of a notification under Section 20(2), satisfy the concerned authority of the need for providing educational facilities to the people in the locality and, if the concerned authority is so satisfied, it is open to it to grant permission to the applicant educational agency to establish an educational institution in the locality.

The consequence of the survey report of the expert committee, constituted by the APSCHE, being declared illegal on the ground that relevant criteria, which it had itself prescribed, was not taken into consideration in assessing the educational needs of the locality; and the notification dated 16.01.2013 issued by the APSCHE, under Section 20(2) of the Act, being held to be vitiated on the ground that it is vague and the pre-notification survey for identifying the educational needs of the locality is illegal; would only mean that a notification, in compliance with the requirements of Section 20(1) of the Act, has not been issued. As a result the applications submitted by the educational agencies seeking grant of permission to establish educational institutions in the locality, pursuant to the notification dated 16.01.2013, would be the applications submitted directly to the competent authority. It would, therefore, still be open to the applicant educational institutions to satisfy the concerned authority, under Section 20(3)(a)(i) of the Act, that there is a need for providing educational facilities to the people in the locality.

VII. OTHER CONTENTIONS:

(a). DEFICIENCIES IN THE PETITIONER COLLEGES:

Sri C. Sudesh Anand, Learned Standing Counsel for the APSCHE, would submit that the inspection reports reveal that the petitioner colleges are being run with several infrastructural and instructional deficiencies; some of the petitioners are not even running their colleges; some of the colleges are being run in leased premises in violation of the rules; apart from other deficiencies, pointed out by the concerned affiliating Universities, many of these colleges have admitted students over and above the sanctioned strength; the needs of the locality, as identified under Section 20(1) of the Act, must be viewed in the context of the conduct of the petitioner colleges; these writ petitions have been filed with the sole intention of monopolising the field of education in the said mandals; and it is the petitioners who are creating an unhealthy and undesirable atmosphere.

It is contended, on behalf of the applicant Colleges, that the petitioners, having admitted students in excess of the sanctioned strength, are estopped from contending that there are no takers for the courses, and the seats remain unfilled; having failed to provide the minimum required facilities, they cannot challenge the notification or complain of not having the adequate in-take; a large number of seats are lying vacant only in non-demand courses; having failed to provide adequate infrastructure or the prescribed faculty, the petitioners do not want new institutions, which are sought to be established with the pious intention of providing quality education to students, to come up in the area; and establishment of more colleges would provide an opportunity to students to choose a college or institution which provides better infrastructural and educational facilities, rather than study in a college or institution out of sheer compulsion.

The challenge, in these writ petitions, is to the validity of the impugned notification dated 16.01.2013 whereby applications were invited from eligible educational agencies for establishing degree colleges in various mandals in the State of Andhra Pradesh. The question whether, and what, action should be taken against the petitioners for the deficiencies in their respective colleges is beyond the scope of enquiry in these writ proceedings. It would be wholly inappropriate for this Court, therefore, to delve into these aspects at the behest of either the APSCHE or the applicant educational institutions. Suffice it to hold that it is always open to the competent authorities to take action against those errant educational institutions, for the instructional and infrastructural deficiencies in their institutions, in accordance with the provisions of the Act and the Rules. This Court cannot also delve into the petitioners mind and adjudicate upon their intention in invoking the jurisdiction of this Court, or examine whether they are motivated by the greed of monopolising the field of education or whether their complaint, that establishing new educational institutions in the locality would result in undesirable and unhealthy competition, is bonafide. Factual aspects, regarding the reasons for the seats in existing degree colleges remaining unfilled, is also beyond the scope of these writ petitions.

(b). LACK OF BONAFIDES:

Relying on K.D. Sharma v. SAIL (2008) 12 SCC 481 [LQ/SC/2008/1382] ); The Divisional Forest Officer, Eluru v. District Judge, West Godavari, Eluru (2011 (2) ALD 147 (DB); and Sri Teja Educational Society (supra), Learned Senior Counsel and Counsel appearing on behalf of the applicant educational institutions, would contend that the petitioners lack bona fides as the facts stated by them are incomplete and incorrect; the lis, instituted by the petitioners, is actuated by the oblique motive of furthering their personal interests much against larger public interest; personal aggrandizement should give way to larger public interest; the bona fides of the petitioners is suspect; the figures furnished by the APSCHE, in their counter-affidavit, demonstrate that some of the petitioner colleges have admitted students far in excess of their sanctioned strength, and most of them have not provided the minimum required facilities; these facts were within the knowledge of the petitioners when the writ petition was filed; their failure to place these facts before the Court amounts to suppression of material facts; a person who approaches the Court with unclean hands, by making false statements, is not entitled to be heard on merits, and the writ petitions are liable to be dismissed at the threshold.

The allegations levelled by the applicant colleges against the petitioners, of their having misrepresented facts, their bonafides being suspect, and their having approached this Court with unclean hands, is based on their plea that most of the petitioner colleges have not provided the minimum required infrastructural and instructional facilities, they had admitted students far in excess of the sanctioned strength, and they had deliberately chosen not to place these facts before this Court. This Court would neither take upon itself the task of examining factual disputes as to whether or not the existing educational institutions have provided the necessary infrastructural and instructional facilities, and whether or not there is a need to establish new degree colleges in the subject Mandals nor would it be justified in refusing to entertain the Writ Petitions accepting these assertions, by the applicant colleges, as gospel truth.

VIII. CONCLUSION:

It cannot be lost sight of that, though several mandals were notified in the impugned notification dated 16.01.2013, these Writ Petitions relate only to four mandals i.e., Huzurabad and Jagityal of Karimnagar District, Kadiri in Anantapur District, and Madanapalli in Chittoor District. The impugned notification, in so far it relates to other mandals in the State of Andhra Pradesh, has not been subjected to challenge and, consequently, the entire exercise, culminating in the grant of permission to establish such colleges in mandals, other than the four aforementioned, has been completed. It would be wholly inappropriate, therefore, for this Court to set aside the notification dated 16.01.2013 in its entirety.

The impugned notification dated 16.01.2013 in so far as it relates to the four mandals, which are the subject matter of this batch of Writ Petitions, is set aside. It is made clear that this order shall not preclude the competent authority from examining the applications submitted by the applicant - colleges and, on their satisfying the competent authority of the need to establish new degree colleges in the locality, from granting permission in accordance with the provisions of the Act and the Rules made thereunder.

These Writ Petitions are, accordingly, disposed of. The Miscellaneous petitions pending, if any, shall also stand disposed of. However, in the circumstances, without costs.