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It is, therefore, in exercise of the powers conferred by clause I of Article 213 of the Constitution of India, that the Governor promulgates the following Ordinance.
2. No person shall, in contravention of the provisions of this Ordinance-
(i) organise, protect, manage or convert any institution for undertaking, running, making provisions for imparting education in the branches of medical science and other branches connected therewith in the form of medical education;
(ii) admit or propose admission in such a course of a University regulated by a Central or State Government law, which lead to degree, diploma and certificate or examination in the branches of medical science or the connected branches of the modern medical science;

4. Mr. Basudeo Prasad, learned counsel for the petitioners urged that Sections 8, 9 and 10 of the mougned Ordinances should be struck down as ultra vires and unconstitutional on account of their being in violation of Article 20 of the Constitution in so far as the offences have been created under the impugned Statute with retrospective or retroactive operation. Learned counsel further challenged the vires of the impugned Statute on the ground that Section 10 thereof was further in contravention of the provisions contained in Article 213 read with Article 254 of the Constitution of India. Learned counsel has further urged that in any event, the provisions contained in Sections 8, 9 and 10 of the impugned Ordinance were wholly arbitrary and unreasonable and were, therefore, violative of the provisions of Article 19 (1) (f) of the Constitution. At the initial stage of the hearing, learned counsel had also challenged the vires of the Ordinance on the ground that it offended the provisions of Article 30 of the Constitution. Subsequently, however, Mr. Basudeo Prasad withdrew the submissions with regard to challenging the vires in so far as Article 30 was concerned. Learned counsel laid great stress on that particular phrase in Section 8 whereby it has been laid down "they shall be deemed to have been established in contravention of the provisions of this Ordinance". Laying great stress upon that phrase in Section 8 learned counsel advanced an argument that under the provisions of Section 9 any person contravening any of the provisions of the Ordinance was to be held liable to a maximum fine of Rupees 10,000 and also with rigorous imprisonment for a maximum period of three years. The argument was that if it be held, as has been laid down in Section 8, that the college of the petitioners shall be deemed to have been established in contravention of the provisions of this Ordinance, then the penal provisions incorporated in Section 9 would at once be attracted against the petitioners as well as the other sponsors of the college for having violated the provisions of the Ordinance at a time when in fact this law was not in force; and the offence under Section 9 had also been made non-bailable and cognizable. Learned Advocate General while countenancing this submission of learned counsel for the petitioners submitted that there was nothing in Section 9 which could give an indication of its having created any action penal either retrospectively or retroactively. According to learned Advocate General Section 8 has nothing to do with any penalty provided in the Ordinance elsewhere and Section 9 could not be so correlated with Section 8 as to impute the retrospective clause in Section 8 itself as introducing the penal clause in Section 9 into Section 8. I think there is much force in the contention of learned Advocate General. Section 8 by itself does not hold any action to be penal although under Section 8 the petitioners may be said to have established the college in contravention of the provisions of this Ordinance at the time when the college was started. It does not follow therefrom that by virtue of the express language of Section 9 they shall be liable for any acts of omissions and commissions which they might have committed at a time when this Ordinance had not come into force or at a time when the required permission had not been refused. Section 9 clearly provides that any person contravening any provision of the Ordinance shall incur the penal vicissitude and the infraction of any provisions of the Ordinance and Section 9 must be held, in my view, to have a prospective operation. The only way in which Section 9 can be reconciled with that portion of Section 8 which says that it shall be deemed to have been established in contravention of the provisions of the Ordinance is that although further continuance of any such college - which has been started before coming into force of the Ordinance in question may be barred by refusal of requisite sanction by the State Government, the contravention of the provisions of the Ordinance for the purpose of attracting the penal clause in Section 9 would start on and with effect from the date of the State Government refusing to accord sanction or the end of the period which has been granted by the State Government for such closure. That being the view that I take of Section 9 read with Section 8 there is no question of any retroactive or retrospective operation of any penal clause in the Ordinance so as to attract the provisions of Article 20 (1) of the Constitution nor are the authorities in M/s. West Ramnad Electric Distribution Company Limited v. The State of Madras, AIR 196,2 SC 1753 and Muhammad Qamar v. Balwant Rai Choudhary, 1958 BLJR 142 of any avail to learned counsel for the petitioners. There can thus be no question of any invalidity on the ground of infraction of Article 20 of the Constitution; nor can it be said that there is any unreasonable restriction incorporated in the provisions of Sections 8 and 9 aforesaid so as to attract even the provisions of Article 19 (1) of the Constitution. The nexus between the object of the Ordinance which is to prevent mushroom and indiscriminate growth of private medical institutions and the restrictions imposed by the provisions of Sections 8 and 9 thereof is quite rational and cannot in any way be said to be not interrelated or connected.

5. In so far as the challenge of Section 10 or for that matter Section 8 read with Section 10 on the ground of any contravention of the provisions of Article 213 read with Article 254 of the Constitution is concerned, that also, in my opinion, has no substance. Learned Advocate General has rightly contended that there is absolutely no question of invoking the provisions of Article 213 and Article 254 of the Constitution in so far as the Ordinance in question is not supposed either to traverse or cover any occupied field which may be the subject-matter for the Union Legislature (Parliament) either in the Union list or in the concurrent list. The argument of Mr. Basudeo Prasad that the provisions of Sections 8 and 10 directly affected the occupied fields of the Law of Contract which was a Central subject has no force for the simple reason that none of the provisions of the Ordinance is dealing directly with the Law of Contract. The legislation in question, as has been rightly argued by reamed Advocate General falls within entry 6 and entry 11 of the second list of the seventh Schedule to the Constitution. Entry 6 of the second list relates to matters of public health and sanitation; hospitals and dispensaries whereas entry 11 thereof relates to education including Universities subject to certain provisions. Evidently the legislation in question is a legislation relating to education in Universities with special reference to the imparting of medical education which is the primary concern in so far as public health and sanitation, hospitals and dispensaries are concerned. That being so the provisions of Section 10 with regard to refund of any capitation fee or donation fee cannot be said to affect the field covered by the Law of Contract but is merely incidental to the carrying into effect the healthy imparting of medical education in the State covered by entries 6 and 11 mentioned above. The doctrine of pith and substance has rightly been pressed into service by learned Advocate General and the principles enunciated in the case of Bhauri Lal Jain v. Sub-Divisional Officer of Jamtara, AIR 1973 Pat 1 (FB) apply with full force to the facts of the present case. In that case although the legislation was directly in respect of land tenancy, incidentally the question of the period of limitation had also been incorporated in the impugned legislation, namely, the Santhal Parganas Tenancy (Supplementary Provisions) Act (14 of 1949) read with Regulation 1 of 1969 and it was held that any incidental touching of a covered field for the furtherance of the main object which was within the legislative competence of the State Legislature would at once attract the doctrine of pith and substance and will not attract the principles laid down in the cases of Attorney-General of Alberta v. Attorney-General of Canada, AIR 1943 PC 76 and the Attorney-General of Saskatchewan v. The Attorney-General of Canada, AIR 1949 PC 190. Thus, there is no substance in any of the contentions put forward by Mr. Basudeo Prasad, learned counsel for the petitioners challenging the vires of the Act on any of the grounds mentioned above.