Madhya Pradesh High Court
Dr. Umrao Singh Choudhary vs State Of M.P. And Anr. on 22 February, 1994
Equivalent citations: AIR1995MP75, AIR 1995 MADHYA PRADESH 75
JUDGMENT V.D. Gyani, J.
1. Judicial review of Stale action by way of certiorari has been invoked by none else than the Vice-Chancellor of Devi Ahilya Vishwavidhalaya, Indore. This Court is faced with a dispute in which academic administrative law, delegated legislation involving Constitutional law, natural justice all come together on a high level of legal principles, veering ground the "autonomy of a University" established under the M. P. Vishwa Vidyalaya Adhiniyam 1973 (for short 'Adhiniyam').
2. A fax message Anx. P2 from the State Capital, has prompted the petitioner to rush to this Court for seeking relief-including interim one which was granted by order 22-1-94 as it was contended before us that no notification as contemplated by Section 52 of the Adhiniyam was issued by the State Govt. and published in the Govt. Gazzette.
3. The State action was dubbed and denounced as an act of procedural impropriety, violative of elementary rules of natural justice. The challenge undoubtedly was not frivolous. Even if a few including the petitioner, might have thought it to be well founded and fewer still might have been resolute enough to defy, at any rate, attempt to defy the interim orders passed by this Court on 22-1-94 and 25-1-94 at the preliminary stage of hearing. It was possibly this order which led to filing of the Nptification did. 21-1-94 issued by the Respondent State Govt., represented by Shri G. M. Chaphekar, Sr. Advocate with Shri S. Kulshrestha, learned Addl. Advocate General, Although the petition was yet to be admitted, Shri A. M. Mathur, Sr. Advocate, appearing for the petitioner with Shri P. Mathur moved an application for production of complete record pertaining to the issuance of publication of Notification Under Section 52 of the Adhiniyam. The respondents were directed to keep the record ready for Court's inspection; since the State entered appearance and placed Notification on record, even at preliminary stage of admission of the petition, it was virtually finally heard on merits.
4. Learned counsel appearing for the petitioner, highlighting academic distinction and achievements of the petitioner, urged that there was absolutely no justification for the State Govt. for taking action Under Section 52 of the Adhiniyam; more so, in violation of rules of natural justice, affording no opportunity whatsoever to the petitioner to put forth his case, according to him it was an administrative action absolutely lacking any reason and fairness.
5. Shri Chaphekar, Sr. Advocate appearing for the State on the other hand, argued that action taken Under Section 52 of the Adhiniyam is in exercise of power of legislation delegated to the executives which rules out the question of affording an opportunity of being heard. Referring to the petition, it was submitted that the petition itself is iil-conceived. Action taken Under Section 52 is not attracted against any individual but it is a power conferred on the State and so long such power is exercised strictly within its ambit and scope, for the purposes of better administration of university, on grounds as enumerated under Sub-section (1) of Section 52 of the Adhiniyam it cannot be called in question. Explaining the distinction, an action taken under Sub-section (3) of Section 14 (provides condition of service of Kulpati) and Section 52 of the Adhiniyam, learned Counsel submitted that the question of giving an opportunity of being heard against the proposed actions of calling upon the Kulpati to relinquish his office arises as envisaged by Sub-section (3) of Section 14, which provides that no order under Sub-section (3) can be passed unless particulars of the grounds on which such action is proposed to be taken, are communicated to the Kulpati and he is given a reasonable opportunity of showing cause against the proposed order. Such is not the intent and purpose of Section 52 of the Adhiniyam which is essentially legislative in nature -- a power delegated to the Executive. Sub-section (4) of Section 52 enumerates the consequences ensuing from the action taken under Sub-section 1 of Section 52 which reads as follows :
"S. 52(1) : Power of State Govt. to apply Act in modified form with a view to provide for better administration of University in certain circumstances; (1) If the State Govt. on receipt of a report or otherwise, is satisfied that situation has arisen in which the administration of the University cannot be carried out in accordance with the provisions of the Act, without detriment to the interest of the University, and it is expedient in the interest of the University so to do, it may by notification for reasons to be mentioned therein direct that the provision of Sections 13, 14, 20 to 25, 40, 47, 54 and 68 shall, as from the date specified in the notification (hereinafter in this section referred to as the appointed date), apply to the University subject to the modification specified in the Third Schedule."
Section 52(4) reads as follows :--
"Section 52(4) as from the appointed date, the following consequences shall ensue namely:
(i) during the period of operation of the notification this Act shall have effect subject to the modifications specified in the Third Schedule;
(ii) the Kulpati, holding office immediately before the appointed date, shall notwithstanding that his term of office has not expired, vacate his office;
(iii) every person holding office as a member of the Court, the Executive Council or the Academic Council, as the case may be, immediately before the appointed date shall cease to hold that office;
(iv) the student representatives of the University on the student consultative committee under Clause (i) of Sub-section (i) of Section 54 immediately before the appointed date shall cease to be members of the said committee;
(v) until the Court, Executive Council or academic Council, as the case may be, is reconstituted in accordance with the provisions as modified the Kulpati appointed Under Sections 13 and 14 as modified shall exercise the powers and perform the duties conferred or imposed by or under this Act, on the Court, the Executive Council or Academic Council."
Reading these consequences in juxta-position with the modifications as specified in Third Schedule, Sections 13 and 14 of the Adhiniyam stand substituted as reproduced below:
"Section 13. (1) The Kuipati shall be appointed by the Kuladhipati from a panel of not less than three persons recommended by the committee constituted under Sub-section (2) or Sub-section (6);
(2) The Kuladhipati shall appoint a committee consisting of the following persons; namely;
(i) one person elected by the Executive Council;
(ii) the Chief justice of Madhya Pradesh High Court or a Judge of the Madhya Pradesh High Court nominated by him;
(iii) one person nominated by the Kuladhipati.
The Kuladhipati shall appoint one of the three persons to be the Chairman of the Committee.
(3) For constituting the committee under Sub-section (2) the Kuladhipati shall, six months before the expiry of the term of the Kulpati, call upon the Executive Council and the Chief Justice of the M. P. High Court to choose their nominees and in the case of the fatter to indicate if he would himself be willing to work on the committee and if any or both of them fail to do so within one month of the receipt of the Kuladhipati's communication in this regard, the Kuladhipati may nominate any one or both the persons, as the case may be, and the person or persons so nominated shall be deemed to be the person elected or nominated by the Executive Council or the Chief Justice, as the case may be.
(4) No person who is connected with the University or any college shall be elected or nominated on the committee under Sub-section (2).
(5) The committee shall submit the panel within six weeks from the date of its constitution or such further time not exceeding four weeks as may be extended by the Kuladhipati.
(6) If for any reasons the committee constituted under Sub-section (2) fails to submit the panel within the period specified in Sub-section (5), the Kuladhipati shall constitute another committee consisting of three persons, not connected with the University or any colllege one of whom shall be designated as the Chairman. The committee so constituted shall submit a panel of three persons within a period of six weeks or such shorter period as may be specified, from the date of its constitution.
(7) If the committee constituted under Sub-section (6) fails to submit the panel within the period specified therein the Kuladhipati may appoint any person whom he deems fit, to be the Kulpati.
Section 14 (1) The Kulpati shall be a whole-time salaried officer of the University and his emoluments and other terms and conditions of service shall be prescribed by the statutes (2) the Kulpati shall hold office for a term of four years and shall not be eligible for appointment for more than two terms;
Provided that he shall cease to hold office on attaining the age of 65;
Provided further that notwithstanding the expiry of his term he shall continue to hold office until his successor is appointed and enters upon his office but this period shall not in any case exceed six months.
(2-a) The person holding office of the Kulpati in any University immediately before the commencement of the Madhya Pradesh Vishwavidyala (Sanshodhan) Adhiniyam 1988, shall continue to hold his office till the expiry of his term of office notwithstanding anything contained in the first proviso to Sub-section (2).
(3) If at any time upon representation made or otherwise and after making such enquiries as may be deemed necessary, it appears to the Kuladhipati that the Kulpati:
(i) has made default in performing any duty imposed on him by or under this Act, or
(ii) has acted in a manner prejudicial to the interests of the. University; or
(iii) is incapable of managing the affairs of the University the Kuladhipati may, notwithstanding the fact that the terms of office of the Kulapati has not expired, by an order in writing stating the reasons therein, require the Kulapati to relinquish his office as from such date as may be specified in the order.
(4) No order under Sub-section (3) shall be passed unless the particulars of the grounds on which such action is proposed to be taken are communicated to the Kulpati and he is given a reasonable opportunity of showing cause against the proposed order.
(5) As from the date specified in the order under Sub-section (3), the Kulapati shall be deemed to have relinquished the office and the office of the Kulapati shall fall vacant.
(6) In the event of the occurrence of any vacancy in the office of the Kulapati by any reasons, the Rector and if no Rector has been appointed or if the Rector is not available, a Dean of the faculty nominated by the Kuladhipaii for that purpose shall act as Kulapati until the date on which a new Kulapati appointed under Sub-section (1) or Sub-section (7) of Section 13 to fill such vacancy enters upon his office;
Provided that the arrangement contemplated in this sub-section shall not continue for the period of more than six months,
6. Sub-clause (ii) of Sub-sections (3) of Section 14 merely provides that "notwithstanding the fact that the terms of office of the Kulpati has not expired, by an order in writing stating the reasons therein, require the Kutpati to relinquish his office as from such date as may be specified in the order" and that too after reasonable opportunity of showing cause against the proposed order as provided by Sub-section (4) of Section 14. The Kutpati under Clause (ii) of Sub-section (4) of Section 52, as a result of State Government's action taken under Sub-section (1) of Section 52, shall vacate his office notwithstanding the fact that his term of office has not expired. It is not only the Kulapati; but even members of the other bodies of University such as Executive Council and Academic Council shall also cease to hold their respective offices. The question of affording a reasonable opportunity of being heard does not arise in discharging legislative function. Sub-section (1) of Section 52 clearly provides that provisions of Secs. 13, 14, 20 to 25, 40, 47, 54 and 68 as result of notification issued by the State Government Under Section 52(1) stands modified as specified in the Third Schedule. It is on this ground that the learned counsel distinguishing the authorities relied upon by the petitioner's counsel as they are all cases relating to the administrative action whereas the instant case is one of exercise of legislative power Under Section 52 of the Adhiniyam.
7. Learned counsel for the petitioner, placing reliance on following judgment of the Supreme Court and this Court: (1) Baldev Singh v. State of H. P., AIR 1987 SC 1239; (2) S.L. Kapoor v. Jagmohan, AIR 1981 SC 136; (3) Suresh Seth v. State of M. P., 1969 MPLJ 327 : (AIR 1970 MP 154); (4) Rajamallaiah v. Anil Kishore, AIR 1980 SC 1503; (1980 Tax LR 2338); (5) S. N. Mukherjee v. Union of India, AIR 1990 SC 1984 : (1990 Cri LJ 2148), urged that when an authority or a body is given power by statute, to determine question affecting rights of individual, the very nature of power implies a duty to act fairly and to observe the rules of natural justice. It was submitted that in the instant case the petitioner has been denied any opportunity of being heard. The impugned orders, notification have been issued without affording any opportunity of being heard to the petitioner, and no reasons are assigned for passing order Anx. P-3.
8. Placing reliance on AIR 1980 SC 1503 :
(1980 Tax LR 2338) (supra); it was contended that the impugned notification is bad in law for want of reasons. It was argued by the learned counsel for the petitioner that the impugned notification has been issued by the Respondent State on non-existent ground. The notification reads as follows:
"NOTIFICATION"
No. 1/1/VC/UAII1/94/GS/45- : Whereas the State Government in Higher Education Department have issued a notification No. 110/2605/93/C-3/38D/-21-1-1994 with regard to Devi Ahilya Vishwavidyalaya, Indore under Section 52(1) of the Madhya Pradesh Vishwavidyalaya Adhiniyam 1973 (No. 22 of 1973), effective from 21st Jan., 1994, Now, therefore, I Mohd. Shafi Qureshi, Kuladhi-pati of Devi Ahilya Vishwavidyalaya, Indore in exercise of powers conferred under modified Sections 13 and 14 read with Section 52(3) of the Madhya Pradesh Vishwavidyalaya Adhiniyam 1973, and in consultation with State Government, hereby appoint- Dr. Surendra Singh Chandel, Principal, Govt. Articles and Commerce College, Indore as the Kulpati of said Vishwavidyalaya with immediate effect until further orders.
Sd/- Mohd Shafi Qureshi Kuladhipati Devi Ahilya Vishwavidyalaya, Indore.
9. To sustain an action Under Section 52(1) the following conditions must be fulfilled:
(a) Satisfaction of the State Govt. either on report or otherwise.
(b) Existence of a situation in which the administration of the University cannot be carried out in accordance with the provisions of the Adhiniyam without detriment to the interests of University and it is expedient in the interest of the University to issue a notification and the reasons to be mentioned thereunder.
10. Applying this test it would be seen that the conditions laid down for invoking Sub-section (1) of Section 52 are fully reflected in the impugned notification. It was argued that the grounds are non-existent and the State action to that extent is without jurisdiction.
11. Shri G. M. Chaphekar, Sr. Advocate, appearing for the respondents pointed out that the impugned notification has not been challenged on the ground of being ultra vires and to contend that the notification is bad in law issued on the basis of non-existent grounds is nothing short of contending that the respondents State has transgressed its limits of exercise of power conferred by Sub-section (1) of Section 52 of the Adhiniyam. This virtually amounts to challenging the vires of the notification.
12. 'Ultra vires' means beyond the powers. The power of the State Govt. is not in dispute. What is disputed is that it has been exercised without any existence of relevant grounds. It may be added and emphasised here that merely because this Court as a reviewing Court considers a decision to be wrong on merits, that is to say, matters within the limits of a statutory powers does not render it 'ultra vires.'
13. Shri Chaphekar, Sr. Advocate, distinguishing authorities relied upon by the petitioners submitted that the actions challenged in these cases were purely executive; whereas the case at hand involves subordinate legislation and the function entrusted to the executive, wherein it is not permissible in such a case to read natural justice. Learned counsel further submitted that the legislative action plenary or subordinate, is not subject to rules of natural justice, as has been laid down by the Supreme Court in Union of India v. Cyna-mide India Ltd., AIR 1987 SC 1802 as under at page 1806 :
"The second observation we wish to make is legislative action, plenary or subordinate, is not subject to rules of natural justice. In the case of Parliamentary legislation, the proposition is self-evident. In the case of subordinate legislation, it may happen that Parliament may itself provide for a notice and for a hearing there are several instances of the legislature requiring the subordinate legislating authority to give public notice and a public hearing before say, for example, levying a municipal rate in which the case the substantial non-observance of the statutorily prescribed mode of observing natural justice may have the effect of invalidating the subordinate legislation. The right here given to rate payers or others is in the nature of a concession which is not to detract from the character of the activity as legislative and not quasi-judicial, but where the legislature has not chosen to provide for any notice or hearing, no one can insist upon it and it will not be permissible to read natural justice into such legislative activity.
Occasionally the legislature directs the subordinate legislating body to make 'such enquiry as it thinks fit' before making the subordinate legislation. In such a situation, while such enquiry by the subordinate legislating body as it deems fit is a condition precedent to the subordinate legislation, the nature and the extent of the enquiry is in the discretion of the subordinate legislating body and the subordinate legislation is not open to question on the ground that the enquiry was not as full as it might have been. The provision for 'such enquiry as it thinks fit' is generally on enabling provision, intended to facilitate the subordinate legislating body to obtain relevant information from all and whatever source and not intended to vest any right in anyone other than the subordinate legislating body. It is the sort of enquiry which the legislature itself may cause to be made before legislating, an enquiry which will not confer any right on anyone."
14. So far as the question of assigning reasons is concerned, learned counsel invited attention to a decision of the Supreme Court in State of Gujarat v. Jamnadas, AIR 1974 SC 2233 a case dealing with the dissolution of Panchayats under Section 303-A of the Gujarat Panchayats Act, 1962. The Supreme Court held as follows at page 2238 :
"Nor would the Court sit in appeal over the opinion of the State Government as to the "inexpediency of holding elections." The statute has made that matter the sole preserve of the Government. All that the Court could enquire was, whether the condition precedent, which is an objective fact to the exercise of this power, existed. By no stretch of imagination could it be said that the power Under Section 303-A is exercisable only after the completion of preparatory steps preliminary to the holding of an election. The statute places no such fetter on the discretion of the Government to the exercise of the power. We, therefore, negative the contentions canvassed by Mr. Nanawati.
Since No. 303-A has been designed to enable the Government to get over a difficult situation surcharged with dangerous potentialities, the Court must construe the aforesaid phrases in keeping with the context and object of this provision, in their widest amplitude. Under the provision the Legislature has given to the Government a discretionary power to meet the challenge of an extraordinary situation arising out of the disturbances. The Court therefore would eschew an interpretation which attenuates that power or impairs its efficacy."
Referring to Minerva Mill's case, AIR 1980 SC 1789, which deals with proclamation of emergency by the president under Article 353(1) of the Constitution, learned counsel submitted that the Court cannot go into the question of correctness or adequacy of the fact and circumstances of which the satisfaction of the Government is based.
15. Whenever the legislature in its wisdom thinks it proper to confer power on some outside authority so make subordinate legislation or pass any order, no doubt, it is implicit that the power conferred by the enabling Act is to be exercised in accordance with the provisions of the Act and the Constitution, as rightly contended by the learned counsel for the petitioner. The power to make subordinate legislation which is derived from enabling the Adhiniyam itself postulates that the power is exercised within the limits of authority, but the opinion of the authority making subordinate legislation or order so long as it seeks to achieve the particular object for which it is conferred must be respected as has been held by the Supreme Court in Vice-Chancellor v. Jammu University v. Dushinad Kumar Rampal, AIR 1977 SC 1146 : (1977 Lab IC 710), the impugned notifications fully stands this test.
16. The only point that remains to be considered is that of malice. It was urged on behalf of the petitioner that in the wake of change in the political power of the State, the impugned order has been passed by the State Govt. making him a scape goat. Referring to and relying upon a decision of the Supreme Court reported in Bangalore Medical Trust v. B.S. Muuddanna, AIR 1991 SC 1902 : (1991 AIR SCW 2082), it was contended that the administrative action must be tested on anvil of rule of law, fairness and justice.
17. As already discussed above, the action taken by the respondents cannot be said to be administrative action. It is a function of subordinate legislation and secondly the case turns on its own facts as is evident from para 49 of the Supreme Court judgment in Bangalore Medical's case (supra). As noted by the Supreme Court in this case the manner in which the power was exercised fall below even the minimum requirement of taking action on relevant considerations.
18. A case of malice in law was sought to be made out by the petitioner. Acting in a legally extraneous or obviously misconceived ground of action is a case of malice in law but malice in law is not to be easily presumed more so in a case of legislative action a party alleging this must satisfy the Court that there are such facts and circumstances on which malice could legitimately be presumed.
19. For the foregoing discussion, this petition fails and is accordingly dismissed with no order as to costs.
DEO, J.:-- 20. I have the advantage of perusing the opinion prepared by my learned brother. The facts have been fully stated therein. I respectfully agree with the conclusion reached by my learned brother but I would like to make a short note of myself.
21. The quintescence of the problem centres Section 52 of the M. P. Vishwa Vidyalaya Adhiniyam, 1973. Firstly as argued for the respondent-State the legal effect of the notification issued under Section 52(1) of the Adhiniyam is not "executive" in character but is of a legislative nature. It was rightly argued that the effect of issuance of this notification is to virtually amend the Adhiniyam in relation to Sections 13, 14, 22 to 25, 40, 47, 50 and, 68 in the modified form specified to the Third Schedule of the Adhiniyam. Thus as a direct consequence of the notification, the Vishwa Vidyalaya Adhiniyam stands amended in terms of modified form. This is clearly a legislative activity. Reliance was rightly placed on the case of Union of India v. Cybaside India Ltd., AIR 1987 SC 1802 to argue that the legislative action, plenary or subordinate is not subject to rules of natural justice. Consequently the present notification being in the nature of a subordinate legislation having the direct effect of amending the statute is not subject to the rules of natural justice and as such is not amenable to challenge on that ground.
22. It seems clear to me that the appointment of a Kulpati under Section 52(3) has to be simultaneously made with the notification under Section 52(1) of the Adhiniyam and consequently the only interpretation that can be put on Section 52(4) is that the Kulpati was held in office before the issuance of notification shall vacate at once. The issuance of notification under Section 52(1) and the appointment of the Kulpati under Section 52(3) are to take effect simultaneously resulting in the aforesaid consequences. Consequently I respectfully agree with my learned brother that the petition must fail and should be accordingly dismissed with no order as to costs.