Bombay High Court
The State Of Maharashtra vs Mehmuda Shikshan And Mahila on 15 July, 2009
Author: S.A.Bobde
Bench: S.A.Bobde
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH ; NAGPUR.
WRIT PETITION NO. 5478 OF 2007
PETITIONER: The State of Maharashtra,
Through Principal Secretary,
Department of Higher Technical
Education, Mantralaya,
Mumbai-32
ig VERSUS
RESPONDENTS: 1. Mehmuda Shikshan and Mahila
Gramin Vikas Bahuudheshiya
Sanstha Bearing Registration No.
Mah/247/2004 (F 16547), having
office at 690/691, Golechha Marg,
Sadar,Nagpur, through its Secretary,
Mrs. Asma Anees.
2. The Registrar,
Nagpur University,
Nagpur.
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Mrs.Bharti Dangre, Addl.Govt. Pleader, for the Petitioner,
Mr. F.T.Mirza, Advcoate, for Respondent No.1
None for Respondent No.2
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2
CORAM : S.A.BOBDE AND
F.M.REIS, JJ
DATED : 15th JULY, 2009
ORAL JUDGMENT (per Bobde J.)
1. Rule. Returnable forthwith. Heard finally by consent of parties.
2. This petition is filed by the State of Maharashtra against the order dated 23rd August, 2006, passed by the National Commission for Minority Educational Institutions, New Delhi, (hereinafter referred to as 'Commission'), directing the State of Maharashtra to grant permission to Respondent No.1 to impart education in the streams of Arts, Commerce and Science (Bio-technology and Microbiology) for the academic session 2006-07.
This order was passed on an application made by ::: Downloaded on - 09/06/2013 14:47:08 ::: 3 Respondent No.1 for permission to start the proposed institution to impart education in the above subjects.
3. Respondent No.1 made a complaint under Section 10 of the National Commission for Minority Educational Institutions Act, 2004, (hereinafter referred to as 'Act') praying, inter-alia for permission to start an institution for imparting education in the streams of Arts, Commerce and Science (Bio Technology and Microbiology). This application was made under Section 10 of the Act, which enables any person desiring to establish a Minority Educational Institution to approach the competent authority for grant of No Objection Certificate for the said purpose. Admittedly, when the application was made on 31.08.2005, no competent authority was functioning.
::: Downloaded on - 09/06/2013 14:47:08 ::: 44. The Commission issued notices to the Nagpur University and the Principal Secretary, Department of Higher Technical Education, State of Maharashtra, and after hearing the matter, came to the conclusion that the respondent has been wrongly denied the right to establish and administer the institution of its choice under Article 30(1) of the Constitution of India. According to the Commission, the stand of the Respondent No.2 -
Nagpur University that the proposal is contrary to the perspective plan prepared by the University, was unsustainable. The Principal Secretary, Department of Higher Technical Education, State of Maharashtra
- Petitioner, appeared before the Commission and submitted that the proposal of respondent no.1 society for starting an educational institution has ::: Downloaded on - 09/06/2013 14:47:08 ::: 5 been recommended to the All India Council for Technical Education for issuing viability letter for the year 2004-05, subject to the production of No Objection Certificate from the concerned University.
However, on the basis that a proposal to start an educational institution under Article 30(1) can not be made subservient to the perspective plan of the Respondent No.2 University, and further taking the view that the demand of No Objection Certificate for establishment of an educational institution of their choice amounts to an impairment of the right under Article 30, the Commission thought fit & appropriate to issue a direction to the petitioner -
State of Maharashtra and Respondent No. 2 -
Nagpur University to grant permission to Respondent No.1 to impart education in the streams of Arts, Commerce and Science (Bio-technology and Microbiology).
::: Downloaded on - 09/06/2013 14:47:08 ::: 65. Smt. Dangre, learned Additional Government Pleader, for the petitioner, submitted that the Commission had no power to issue any direction to the petitioner and the University to grant permission for an institution for imparting education. According to her, such powers, in respect of a minority educational institution, are vested in the Competent Authority under the Act, which is the authority appointed by the State Government to grant No Objection Certificate for establishment of any educational institution of their choice.
6. Shri Mirza, learned counsel for Respondent No.1 submitted that the view of the Commission that the requirement of No Objection Certificate for starting an educational institution is to constitute ::: Downloaded on - 09/06/2013 14:47:08 ::: 7 an impairment of the rights of minorities under Article 30, is according to law and that the Commission has power to give such a direction to the appropriate authorities to grant permission.
According to the learned counsel, this power was clearly exercisable by the Commission since the Competent Authority had not been constituted by the State Government on the date of the application and the Competent Authority having been constituted on 5.2.2007.
7. It is, therefore, necessary to consider the only point raised on behalf of the petitioner i.e. whether the National Commission for Minority Educational Institution has any power to direct the State Government or the University to grant permission for opening a college for imparting education.
::: Downloaded on - 09/06/2013 14:47:08 ::: 88. Relevant to the matter in hand, two authorities are established by the National Commission for Minority Educational Institutions Act, 2004. Firstly, the Competent Authority for grant of No Objection Certificate for establishing a minority educational institution (Read Section 10) and secondly, a Commission for carrying out the functions specified in Section 11 and to hear the appeals from the orders of the Competent Authority (Read Section 12(a).
9. Section 10 of the National Commission for Minority Educational Institutions Act, 2004, reads as follows.
10. Right to establish a Minority Educational Institution. -
(1) Any person who desires to establish a Minority ::: Downloaded on - 09/06/2013 14:47:08 ::: 9 Educational Institution may apply to the Competent Authority for the grant of no objection certificate for the said purpose.
(2) The Competent authority shall, --
(a) on perusal of documents, affidavits or other evidence, if any; and
(b) after giving an opportunity of being heard to the applicant, decide every application filed under sub-section (1) as expeditiously as possible and grant or reject the application, as the came may be:
Provided that where an application is rejected,the Competent Authority shall communicate the same to the applicant.
(3) Where within a period of ninety days from the receipt of the application under sub-section (1) for grant of no objection certificate, --
(a) the Competent authority does not grant such certificate; or
(b) where an application has been rejected and the same has not been communicated to the person who has applied for the grant of such certificate, it shall be deemed that the Competent Authority has granted a no objection certificate to the applicant.
(4) The applicant shall, on the grant of a no ::: Downloaded on - 09/06/2013 14:47:08 ::: 10 objection certificate or where the Competent authority has deemed to have granted the no objection certificate, be entitled to commence and proceed with the establishment of a Minority Educational Institution in accordance with the rules and regulations, as the case may be, laid down by or under any law for the time being in force.
Explanation . - For the purpose of this section, --
(a) "applicant" means any person who makes an application under sub-section (1) for establishment of a Minority Educational Institution;
(b) "no objection certificate" means a certificate stating therein, that the Competent authority has no objection for the establishment of a Minority Educational Institution.
Section 11, which specifies the functioning of the Commission reads as follows.
11. Functions of Commission. --
Notwithstanding anything contained in any other law for the time being in force, the Commission shall --
(a) advise the Central Government or any State Government on any question relating to the ::: Downloaded on - 09/06/2013 14:47:08 ::: 11 education of minorities that may be referred to it;
(b) enquire, suo motu, or on a petition presented to it by any Minority Educational Institution, or any person on its behalf into complaints regarding deprivation or violation of rights of minorities to establish and administer educational institutions of their choice and any dispute relating to affiliation to a University and report its finding to the appropriate Government for its implementation;
(c) intervene in any proceeding involving any deprivation or violation of the educational rights of the minorities before a court with the leave of such court;
(d) review the safeguards provided by or under the Constitution, or any law for the time being in force, for the protection of educational rights of the minorities and recommend measures for their effective implementation;
(e) specify measures to promote and preserve the minority status and character of institutions of their choice established by minorities;
(f) decide all questions relating to the status of any institution as a Minority Educational Institution and declare its status as such;
(g) make recommendations to the appropriate ::: Downloaded on - 09/06/2013 14:47:08 ::: 12 Government for the effective, implementation of programmes and schemes relating to the Minority Educational Institutions; and
(h) do such other acts and things as may be necessary, incidental or conductive to the attainment of all or any of the objections of the Commission.
And, Section 12A which confers power of appeal reads as follows.
12A. Appeal against orders of the Competent authority. --
(1) Any person aggrieved by the order of refusal to grant no objection certificate under sub-
section (2) of section 10 by the Competent authority for establishing a Minority Educational Institution, may prefer an appeal against such order to the Commission.
(2) An appeal under sub-section (1) shall be filed within thirty days from the date of the order referred to in sub-section (1) communicated to the applicant:
Provided that the Commission may entertain an appeal after the expiry of the said period of thirty days, if it is satisfied that there was sufficient cause for not filing it within that period.::: Downloaded on - 09/06/2013 14:47:08 ::: 13
(3) An appeal to the Commission shall be made in such form as may be prescribed and shall be accompanied by a copy of the order against which the appeal has been filed.
(4) The Commission, after hearing the parties, shall pass an order as soon as may be practicable, and give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice.
(5) An order may by the Commission under sub-
section (4) shall be executable by the Commission as a decree of a civil court and the provisions of the Code of Civil Procedure, 1908, so far as may be, shall apply as they apply in respect of a decree of a civil court.
10. The scheme of the legislation leaves no manner of doubt as to the authority empowered to grant a No Objection Certificate for the proposal of any person desiring to establish a minority educational institution. That power is conferred by Section 10 on the Competent authority set up by the appropriate Government, in this case, the State Government. Competent authority is defined by ::: Downloaded on - 09/06/2013 14:47:08 ::: 14 Section 2 (ca) of the Act, which reads as follow:-
"(ca) 'Competent authority" means the authority appointed by the appropriate Government to grant no objection certificate for the establishment of any educational institution of their choice by the minorities.
11. In the present case, though the application appears to have been properly drafted under Section 10, it came to be addressed to the Commission, which decided it. Shri Mirza, learned counsel for Respondent No.1 submitted that the Commission is empowered by reasons of Section 11(b) (supra) to direct the petitioner - State Government to give permission to a person desiring to set up a minority educational institution. According to the learned counsel for respondent No.1, the order of the Commission must be read as, 'having reached the conclusion that in this case there was deprivation or violation of the rights of minority to establish an educational institution of their choice' within the ::: Downloaded on - 09/06/2013 14:47:08 ::: 15 meaning of Section 11 (b) and therefore, the Commission clearly had the powers to direct that such permission be given. We have no doubt that the Commission has a power to enquire, suo motu or otherwise into the question relating to deprivation or violation of a right of the minority to establish and administer educational institutions of their choice.
It is, however, clear that the respondent no.1 has in this case not presented any petition regarding deprivation or violation of a right to establish and administer minority educational institution. It had presented an application for grant of permission to start a college and, the only power with the Commission was to report its findings to the appropriate Government for its implementation.
Section 12(b) of the Act does not confer any power on the Commission to entertain a specific case of permission to start a minority educational ::: Downloaded on - 09/06/2013 14:47:08 ::: 16 institution and to direct that such a permission be granted. The subject matter of Section 12(b) can not be said to include the consideration of application for permission to start a minority educational institution, particularly when a specific power for this purpose is conferred on the Competent authority under Section 10 of the Act.
12. There is also no merits in the submission that since the Commission is invested with the appellate powers under Section 12(a) of the Act, in spite of orders of refusal to grant No objection Certificate by the competent authority, the order of the Commission is within jurisdiction. There is a well known distinction in law between the exercise of original powers and appellate powers. The exercise of these powers can only be by the authorities who are constituted for the purpose. To say that an ::: Downloaded on - 09/06/2013 14:47:08 ::: 17 appellate authority can in the first place decide the original application because it has appellate powers in that regard, would set at naught the scheme of many a legislation. The Apex Court in State of Punjab vs. Hari Kisan, reported in AIR 1966 SC 1078, has observed in Para 12 as follows.
"12.The question which we have to decide in the present appeal lies within a very narrow compass. What appellant No.1 has done is to require the licensing authority to forward to it all applications received for grant of licenses, and it has assumed power and authority to deal with the said applications on the merits for itself in the first instance. Is appellant no.1 justified in assuming jurisdiction which has been conferred on the licensing authority by S. 5(1) and (2) of the Act? It is plain that S. 5(1) and (2) have conferred jurisdiction on the licensing authority to deal with applications for licences and either grant them or reject them. In other words, the scheme of the statute is that when an application for license is made, it has to be considered by the licensing authority and dealt with under S.5(1) and (2) of the Act. Section 5(3) provides for an appeal to appellant No.1 where the licensing ::: Downloaded on - 09/06/2013 14:47:08 ::: 18 authority has refused to grant a license, and this provision clearly shows that appellant No.1 is constituted into an appellate authority in cases where an application for licence is rejected by the licensing authority. The course adopted by appellant No.1 in requiring all applications for licences to be forwarded to it for disposal, has really converted the appellate authority into the original authority itself, because S. 5(3) clearly allows an appeal to be preferred by a person who is aggrieved by the rejection of his application for a licence by the licensing authority."
13. In this view of the matter, we have no hesitation in coming to the conclusion that the impugned order of the Commission, directing the petitioner and the respondent no.2 University to grant permission to Respondent no.1 to start minority educational institution, is without jurisdiction. Smt. Dangre, learned Additional Government Pleader has stated that there is a Competent authority constituted. We make it clear that Respondent no.1 shall be entitled to make a ::: Downloaded on - 09/06/2013 14:47:08 ::: 19 fresh application in regard to its earlier proposal before such competent authority in accordance with law.
13. Rule is made absolute in above terms.
There shall be no order as to costs.
ig JUDGE JUDGE
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