APHC010355992023

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

WRIT APPEAL NO: 829 of 2023

Bench

[3446]

Sr. No:-SL-1

Sri Trikoteswara Swamy Educational Society and

Others

...Appellant(s)

Vs.

The State Of Andhra Pradesh and Others ...Respondent(s)

**********

D Krishna Murthy, Advocate for Petitioners.

GP for Higher Education, Advocate for Respondents.

CORAM : THE CHIEF JUSTICE DHIRAJ SINGH THAKUR

SRI JUSTICE R RAGHUNANDAN RAO

DATE : 3

rd

May, 2024.

PER DHIRAJ SINGH THAKUR, CJ :

The present writ appeal under clause 15 of the Letters Patent has

been preferred against the judgment and order dated 03.04.2023 passed

in W.P.No.29072 of 2017.

Brief facts of the case:

2. The petitioners/appellants herein filed W.P.No.29072 of 2017

challenging the Government Order bearing number G.O.Ms.No.17 Higher

Education (CE) Department dated 30.03.2017, whereby the assets and

management of Sri Trikoteswara Swamy Educational Society were ordered

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to be taken over by the Government. The G.O. was challenged inter alia on

the ground of violation of principles of natural justice as also the procedure

prescribed under Section 60 of the Andhra Pradesh Education Act, 1982

(hereinafter referred to as “Act of 1982”).

3. Sri Trikoteswara Swamy Educational Society/appellant No.1 herein

is a society registered under Societies Registration Act, 1860. The said

society started a degree college known as Nandamuri Basavatarakam and

Nallapati Venkateswarulu Cho udary Degree College,

Narasaropet/appellant No.2 herein, with effect from December, 1984.

According to the petitioners, the college was being run very well to the

satisfaction of the students studying therein. The petitioners alleged that

the Speaker of the Andhra Pradesh Legislative Assembly started

interfering with the management of the college and succeeded in dividing

the managing body into two groups. Several cases were filed against the

management of the college, which finally ended in favour of the

management of the college. Several enquiries were set up which also

ended in favour of the management of the college.

4. The claims made in the writ petition with regard to the successful

running of the college by the management of the petitioner, however, do

not find support from the writ court inasmuch as a Division Bench of the

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erstwhile High Court of Andhra Pradesh, vide its order dated 12.12.1996

passed in W.A.No.1112 of 1996, directed that the charge of Secretary and

Correspondentship of the college, run by the society, be handed over to

the District Collector, Guntur District. The genesis of the aforesaid order lay

in the allegations of omission, commission and mismanagement levelled

against the management of the college in question. The order passed by

the Division Bench was challenged before the Apex Court but was

confirmed by virtue of the judgment and order dated 05.05.2007, passed in

Civil Appeal No.1431 of 1997. The Collector, Guntur, appears to have run

the affairs of the college from 1996 to 2004.

5. From 2005 onwards, the college came under the Secretary and

Correspondentship of Mr. N. Ramachandra Prasad, during whose time it

was alleged that the functioning of the college deteriorated to the extent

that the Nagarjuna University, to which the petitioner college was affiliated,

disaffiliated it after an inquiry. On a surprise visit and inquiry into the

allegations made by the public regarding mismanagement and misuse of

assets, the Regional Joint Director, Guntur, submitted a report stating that

there were only eleven unaided teaching staff and two aided teaching staff

in the college and there were no admissions during the academic year

2014-15.

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6. The Government then ordered the appointment of a three-member

committee through its order dated 09.10.2014 for the submission of a

detailed report on the functioning of the college, which report was furnished

to the Commissioner of Collegiate Education. The committee

recommended the takeover of the college by the management.

7. A show cause notice dated 01.09.2015 was then issued to the

petitioner college, represented by its Secretary, N. Ramachandra Prasad,

as to why action be not taken as per the recommendations of the

committee under Section 60 of the Act of 1982. An explanation was

tendered vide letter dated 14.12.2015, in which a stand was taken that at

the time when the management was handed over to the Special Officer

i.e., the District Collector, Guntur, in the year 1996, there were 1300

students and when handed back in 2005, the strength had fallen to 860

and that the decrease of the students’ strength was because of the

management of the Special Officer. Further, the Director of Collegiate

Education had deployed the aided teaching and non-teaching staff except

the Principal, one attender and one watchman, subject to the condition that

as and when the college received proper strength, the staff would be

repatriated. The petitioner college rendered a detailed explanation running

over ten pages.

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8. Subsequently, another show cause notice dated 11.02.2016 was

issued by the Joint Secretary to Government, Higher Education

Department, directing the petitioner to furnish a final explanation of the

management, failing which the petitioner was informed that action would

be initiated on the material available as per the records. To this show

cause notice also an explanation was rendered by the petitioner college on

19.03.2016.

9. Pursuant to the above show cause notices, the Government issued

G.O.Rt.No.214 Higher Education (CE) Department dated 23.09.2016,

holding as under:

“6. It is observed that the Secretary & Correspondent of

NBT&NVC College, Narasaraopet, Guntur district has not put forth

any material record in his defence except blaming his political

rivals, which is unbecoming. In addition he himself agreed that

during the tenure of the District Collector, as incharge, MPLADS

and UGC funds were utilized for the construction of buildings of

the college. He has further requested a chance to bring back to

the college its old name and fame.

7. After careful examination of the entire matter, the

Government hereby order that the management of the NBT&NVC

College be taken over along with infrastructure, records,

computers, buildings etc. with immediate effect, in terms of A.P.

Education Act, 1982.

8. The Commissioner of Collegiate Education, Andhra Pradesh,

Hyderabad shall take further action accordingly.”

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10. The aforesaid Government Order dated 23.09.2016 was challenged

in W.P.No.32811 of 2016, the operation whereof was stayed initially by an

interim order dated 26.09.2016 and subsequently, by order dated

04.01.2017 the writ petition was disposed of for enabling the Government

to withdraw the said Government Order and pass appropriate orders.

Needless to say that the Government perhaps realized that the

Government Order in the ultimate analysis would not be sustainable in law

and sought to withdraw the Government Order. Finally, the G.O.Ms.No.217

Higher Education (CE) Department, dated 30.03.2017 was issued.

11. On a perusal of the G.O.Ms.No.217 dated 30.03.2017, it can be

seen that the explanation rendered by the petitioners “was not found

convincing and satisfactory” and considering the material on record, the

Government proceeded to order that the management and assets of the

college be taken over in public interest. For facility of reference,

paragraphs 16, 20 and 21 of the G.O.Ms.No.217 are reproduced

hereunder:

“16. The Secretary and Correspondent of the college has been

given ample time and opportunity for offering his explanation. He

has been given every document as requested by him to place his

defence. He was allowed sufficient time since 20-07-2015.

However, the explanation submitted by him through fourth and

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sixth read above is not convincing and therefore found not

satisfactory.

...

...

20. Accordingly, in cancellation of the orders issued in the

seventh read above, the Government hereby order to take over

the Management and the assets of NBT and NVC College,

Narasaraopet, Guntur district, by the Government in Public

Interest.

21. The Commissioner of Collegiate Education, Andhra Pradesh,

Vijayawada, shall take further action in the matter.”

12. The G.O.Ms.No.17, dated 30.03.2017, thus came to be challenged

before the learned single Judge, principally on two grounds. Firstly, that the

explanation tendered by the petitioner had not been considered in the

proper perspective and that the same was disregarded summarily by

saying that the explanation was not convincing and satisfactory without

assigning any reason whatsoever. Secondly, that the order impugned

ordering the takeover of the management and the assets of the college by

the Government in public interest was contrary to Section 60(1) of the Act

of 1982 which envisages as under:

“60.Taking over of management of educational institutions in

public interest –

(1) Where the Government are of opinion that the management of

any educational institution should either in the public interest or

in order to secure the proper management of the said

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educational institution be taken over, they may, after giving one

month's notice to the management of such educational

institution to make any representation, direct by notification,

that the management of the said educational institution shall

with effect on and from the date specified therein vest in the

Government until the said educational institution is acquired:

Provided that no private institution under the management of a

religious institution, endowment or a wakf shall be taken over

without the prior consent of such management.”

13. Notification has been defined under Section 2(31) of the Act of 1982

as follows:

“ (31) "Notification" means a notification published in the Andhra

Pradesh Gazette and the word “notified” shall be construed

accordingly;”

Apart from this, the Government, in exercise of its powers conferred

under Sections 60 to 69 read with Section 99 of the Act of 1982 has

framed the A.P. Educational Institutions (Taking Over Management,

Requisitioning and Acquisition) Rules, 1983, (hereinafter referred to as

“Rules of 1983”) which was published in the A.P. Gazette on 25.08.1983.

14. According to Rule 3(1), a notice for taking over the management of

any educational institution under Sub-Section 1 of Section 60 has to be

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given to the manager of the institution or the educational agency, if any, in

Form-1.

15. Rule 3(3) of the Rules of 1983 further envisage that where the

Government is of the opinion that the management of the educational

institution shall be taken over either in public interest or to secure proper

management, they may by notification in Form-II, direct that on and from

the date specified therein, the management of the institution shall vest in

the Government.

16. Not only this, sub-rule (4) of Rule 3 further envisages that the

notification under sub-rule (3) of Rule 3 shall also specify the Special

Officer for the purpose of carrying on the management of the institution

and to whom the possession of the educational institution and properties

attached thereto, shall be delivered. A copy of the notification is then to be

delivered in person or sent by registered post as also to be affixed on the

notice board or at a conspicuous place within the institution, as per Rule

3(5) of the Rules of 1983. For facility of reference, Rule 3 is reproduced

hereunder:

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“3. Taking over of Management of Education Institutions:-

(1) A notice for taking over management of any educational

Institution under sub-section (1) of Section 60, shall be given to

the manager of the institution or the educational agency, if any, in

Form 1.

(2) The representation, if any received from the manager or the

educational agency in response to the notice, shall be considered

by the Government and if they are satisfied that there is no

necessity to take over the management of the educational

institution, the Government may drop further proceedings in this

regard.

(3) Where the Government are of the opinion that the

management of the educational institution should be taken over

either in the public interest or in order to secure the proper

management, they may by notification in Form 11, direct that on

and from the date specified therein the management of the

institution shall vest in the Government.

(4) The notification under sub-rule (3) of this rule shall also specify

the Special Officer for the purpose of carrying on the management

of the institution and to whom the possession of educational

institution and the properties attached thereto, shall be delivered.

(5) A copy of the notification shall be delivered in person or sent by

registered post addressed to the manager of the educational

agency, and shall also be affixed on the notice board or at a

conspicuous place within the institution.”

17. Apart from the above, Rule 4 of the Rules of 1983 further envisaged

that immediately after service of the notification, the manager of the

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educational agency shall prepare a detailed inventory in duplicate of all

property, movable and immovable which shall be attested by the Manager

of the educational agency and a copy has to be delivered to the Special

Officer, the manager of the educational agency is to be held personally

responsible for the correctness of the inventory so made.

18. Rule 6 of the Rules of 1983 envisages payment of compensation

after the issuance of notification under Section 60(1).

19. In the backdrop of the aforementioned provisions of the Act and the

Rules, the case of the petitioners is that apart from the violation of

principles of natural justice, provisions of Section 60(1) of the Act of 1982

as also the Rules framed thereon had been violated inasmuch as no

notification under Section 60(1) was published in Form-II which required a

specified date with effect wherefrom the properties of the institution were to

vest in the Government till the acquisition of the said institution. The said

Form-II also envisages the appointment of a Special Officer for purposes of

carrying on the management of the institution on behalf of the Government.

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20. It may be worthwhile to reproduce herein the requirement of Form-II

which is required to be notified for purposes of fulfilling the requirement of

Section 60 of the Act of 1982 and the Rules framed thereunder:

SCHEDULE

(Reasons for taking over the management)

FORM II

[See Rule 3 (3)]

(Notification under sub-section (1) of Section 60)

Whereas, The Government are of the opinion that in public interest

and in order - to secure the proper management

of....................in..................... village................taluk................District the

management of the said institution shall be taken over;

Now, therefore, in exercise of the powers conferred by sub-section (1)

of Section 60 of the Andhra Pradesh Education Act, 1982 the

Government of Andhra Pradesh hereby notifies that the management of

the said institution and all the properties attached thereto shall vest in

the Government on and from.........(date) until the said institution is

acquired.

Under sub-section (6) of Section 60 of the said Act the Governor of

Andhra Pradesh hereby appoints............................as Special Officer for

the purpose of carrying on the management of the said institution for

and on behalf of the Government.

Hyderabad.

Date. Secretary to Government.

21. Admittedly, there has been no notification published in the

Government Gazette in terms of Section 60 of the Act. Not only this, the

impugned order does not appoint a Special Officer for purposes of carrying

on the management of the said institution, as is otherwise the requirement

of the Act and Rules. All that the impugned order states is that “the

Government hereby order to take over the management and the assets of

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NB and NVC Degree College, Narsaropet, Guntur District in public

interest”. The compliance of Section 60 to the extent of notification in the

Government Gazette and the appointment of a Special Officer was a

prerequisite for giving effect to the provisions of Section 60 for taking over

the management of an educational institution.

22. In the present case, however, it can be seen that it was the

Commissioner of Collegiate Education of Andhra Pradesh that had

appointed the District Collector, Guntur, as the Special Officer for purposes

of management of the institution, which, in our opinion, is impermissible as

the Special Officer had to be appointed by the Government through a

notification published in the Gazette.

23. Apart from this, the order impugned to us clearly is a non-speaking

order, no reasons at all had been given as to why the explanation

rendered, which runs over ten pages in the explanation dated 14.12.2015

and over two to three pages in the explanation dated 19.03.2016, is not

found satisfactory.

24. It is settled law that a judicial, quasi-judicial, or executive authority,

while passing an order that has the effect of visiting a person with civil

consequences, must record reasons in support of its conclusions, as

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recording reasons operates as a restraint on the arbitrary exercise of

power, be it judicial, quasi-judicial, or administrative. Absence of reasons

could reflect arbitrariness, whereas recording reasons would reflect

whether the concerned authority had applied itself in the correct

perspective, in accordance with law, and therefore facilitate the process of

judicial review by superior Courts.

25. In Mahabir Prasad Santosh Kumar vs. State of U.P.

1

, the

Supreme Court was dealing with the cancellation of licenses of wholesale

distributors of sugar. It was held:

“5. The case discloses a disturbing state of affairs. The authorities

have disclosed by their conduct a reckless disregard of the rights of

the appellants. The order passed by the District Magistrate cancelling

the licences was quasi-judicial: it could be made only on a

consideration of the charges and the explanation given by the

appellants. That necessarily implied that the District Magistrate had

to give some reasons why he held the charges proved, and the

explanation unacceptable....”

26. The Supreme Court in Kranti Associates Private Limited vs.

Masood Ahmed Khan

2

held that recording of reasons emanates from the

broad doctrine of fairness and decision making and that the said

1

(1970) 1 SCC 764

2

(2010) 9 SCC 496

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requirement was virtually a component of human rights and was

considered a part of Strasbourg jurisprudence.

27. In the present case, while the explanation rendered by the

appellants was held to be not satisfactory, no reasons are given as to why

it is held to be unacceptable or non-satisfactory. What is recorded in the

order impugned with regard to the explanation tendered is only a

conclusion and does not reflect the reasons.

28. The learned single Judge, by virtue of judgment and order

impugned, dismissed the writ petition on the ground that the public interest

demanded that the college management and assets be taken over by the

Government and that the allegation that the impugned order was not

properly served on the petitioner could not be countenanced, as no

prejudice was caused to the petitioner in not properly serving the impugned

order and that the same was not in breach of the provisions of Section 60

of the Act of 1982.

29. In our opinion, the judgment and order impugned dated 03.04.2023

is unsustainable in law inasmuch as the learned single Judge had not

considered in the correct perspective the G.O.Ms.No.17 dated 30.03.2017,

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on the touchstone of either the requirement of Section 60(1) of the Act of

1982 and the Rules framed thereunder, or from the perspective of the

requirement to pass a reasoned order in regard to the explanation

tendered by the appellant college. For that reason, the impugned judgment

and order is set aside along with the G.O. impugned in W.P.No.29072 of

2017 and the writ appeal is allowed without costs.

30. The necessary consequence of setting aside the order impugned

dated 30.03.2017 would in the ordinary circumstances result in handing

over of the management of the institute back to the petitioner, however, we

are informed that, after the Government has taken over the college,

currently certain courses are being run for the benefit of the students on

the college premises. Any order passed by us directing the handing over of

the premises to the petitioner would therefore severely prejudice the

running of the said courses.

31. We, therefore, direct the official respondents to consider the

explanation rendered by the appellants and pass a speaking order

thereupon. In case the explanation is acceptable, the necessary

consequences would follow, and in case the same is not acceptable, the

notification as required to be published in accordance with Form-II of the

Rules, be published in the Andhra Pradesh Government Gazette by

specifically mentioning the date with effect from and by specifying the

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Special Officer for the purpose of carrying on the management of the

institution. A copy of the said notification would also be served upon the

appellants. The needful shall be done within a period of three months.

Pending miscellaneous applications, if any, shall stand closed.

DHIRAJ SINGH THAKUR , CJ. R. RAGHUNANDAN RAO , J.

SSN