OPEN INTERNATIONAL UNIVERSITY OF ALTERNATIVE MEDICAL SCIENCE CHARTER OF: COUNCIL OF ALTERNATIVE MEDICAL SCIENCE

Conducted by Oecumenical of Alternative Medical Science

 Registered under The West Bengal Societies Registration Act. XXVI of 1961 & S.H.G. Trust duly Regd. by the Govt. of West Bengal, Kolkata

Established Council of Alternative Medical Science in a writ proceeding in the court of law vide C.O. No. 13577 (W) 1996,

Legality, Validity, Utility and International Recognition.

Registered under Department of Labour, Govt. of NCT of Delhi  and Ministry of M. S. M. E. Govt. of India, New Delhi

Empanelled under Planning Commission converted on NITI Aayog   Govt. of India, New Delhi,

Registration No. WB/2022/0311662. 

 

 

We established to be deemed to be a University as per following order:

 

AIR 19984 SUPREME COURT 981 = 1984 Cri. L.J. 668 (From Delhi)

S. MURTAZA FAZAL ALI, A. VAARADARAJAN AND RANGA NATH MISRA, JJ.

Criminal Appeals Nos. 253-254 of 1972, D/ - 13-2-184

Prem Chand Jain and another, Appellants v. R.K.Chhabra, Respondent.

 

1. University Grands commission Act (3 of 1956), Sections 2 (f) and 23 – “University” – Institution incorporated under General Stature is not included into definition “University” or for purpose of Section 23.

The definition of University and the provisions in Section 23 of the Act refer to Acts of the Central, Provincial or the State Legislatures by which one or more universities are established or incorporated and not institutions incorporated under a general statute providing for incorporation. (1957) 1 All ER 49 (HL) and AIR 1940 PC 82,, Foll. (Para 7).

Thus Commercial University Limited which was incorporated under Companies Act cou7ld not be said to have satisfied the definition o “University” as also the provisions of Section 23. (Para 7).

2. University Grants Commission Act (3 of 1956), Sections 2 (f) and 23 –

Definition of University given in Section 2 (f) or prohibition in section 23 – are not ultra -

________________________________________________________________________

Criminal Appeals Nos. 103 and 104 of 1971, D/- 6-1-1972 (Delhi)

________________________________________________________________________BB/CB/B29/84/JJS

_______________________________________________________________________ vires the Parliament on ground that such provisions are beyond its legislative competence. (Constitution of India, Sch; VII List 1 Entry 66).

 

   The definition of university given in Section 2 (f) or the prohibition in Section 23 of the Act are not ultra vires the Parliament on the ground that such provisions are beyond its legislative competence. (Para 8)

   The Act essentially intended to make provisions for the co-ordination determination of standards in Universities and that is squarely covered under entry 66 of List I. While legislating for a purpose germane to the subject covered by that entry and establishing University Grants commission, Parliament consider it necessary, as a regulatory measure, to prohibit unauthorized conferment of degrees and diplomas as also use of the word “University”  by institution which had not been either established or incorporated by special legislation. Parliament could not be said to have entrenched upon legislative power reserved for the State legislature. If an enactment substantially fails within the powers expressly conferred by the constitution upon the legislature enacting it, it cannot be held to be invalid merely because it incidentally encroaches on matters assigned to another legislature. Case law discussed.  (Para 8)

3. University Grants Commission Act (3 of 1956), Section 23, 24 – Prohibition of the use of the word “University” in certain cases  - Educational institution incorporated under Companies Act  - Continuing to use word “University” under bona fide impression that the Company satisfied requirements of Act – Held, Conviction of  accused persons connected with Company under Section 24 was liable to be set aside. Criminal Appeals Nos. 103 and 104 of 1971, D/ - 6-1-1972 (Delhi), Reversed.  (Para 10)

 

Case Referred : Chronlogical Paras

AIR  1980  SC  286    : (1980)  1  SCR  769   8

AIR 1978   SC  215    : (1978)   1 SCR   641  8

AIR  1976  SC  1031  : (1976)  1  SCR  552   8

AIR  1971  SC  792    : (1971)  2  SCR  817   : 1971  Tax  LR  4   8

AIR  1970  SC  1453    : (1970)  1  SCR  479   8

AIR  1968  SC  662    : (1968)  1  SCR  833   6,   9

AIR  1958  SC  560    : 1959         SCR  769   8

(1957)    1 All   ER  49  : (1957)  2   WLR      1

(HL)  A. G.  v. H. R. H.  Augustus      7

AIR  1955  SC  252    : (1952)  1  SCR   889   8

AIR  1947  PC  60    : (1947)  1  FCR  28   8

AIR  1941  FC  47    : (1940)  1  FCR  188   8

AIR  1940  PC  82       7

 

M/s. Shanti Bhushan, R. K. Gary and Shiv Dayal, Senior Advocates Mr. S K. Bagga, Advocate with them for Appellants Mr. harbansial, Sr. Advocate,  M/s. R. N. Poddar, M/s Halida Khatun & Mr. C. V. Subba Rao, Advocates with him for Respondent.

 

RANGANATH  MISRA,  J. : - Both these appeals are by special leave and challenge is to the conviction and sentence of fine imposed under Section  24 of the university Grants Commission Act, 1956 (III of 1956), (‘Act’ for short) by the learned Additional Sections judge and upheld by the Delhi High Court in appeal.

2.    Commercial University Limited (‘CUL’ for short) was incorporated under the companies Act, 1913  (VII  of 1913) with objects, inter alia, to promote commercial education, encourage and impart commercial education by opening institutes, colleges and schools and provide, prescribe and maintain various standards of studies and examinations in the study of commercial subjects and to ascertain by means of examinations and / or otherwise the persons who acquire the prescribed standards and to confer on such persons any academic diplomas, degrees, etc. It has a Board of Governors and the Registrar of the university is one of the Ex-Officio governors. This institution claims to have expanded its activities and regular convocations have been held for awarding degrees and diplomas. The Act came into force in 1956 and for the first time provided restrictions under Sections 2 and 23 of the Act to the following effect:

   “Section 22. The right to confer degrees:

1. The right of conferring or granting degrees shall be exercised only by a University established or incorporated by or under a Central Act, a Provincial Act or a State Act or an institution deemed to be a University under Section 3 or an institution specially empowered by an Act of parliament to confer or grant degrees.
2. Save as provided in sub-section (1) no person or authority shall confer, or grant, or hold himself or itself out as entitled to confer or grant, any degree.
3. For the purpose of this section, ‘degree’ means any such degree as may, with the previous approval of the Central Government be specified in this behalf by the commission by notification in the official gazette”.

“Section 23.   No institution, whether a corporate body or not, other than a corporate body or not, other than a University established or incorporated by or under a Central Act, a Provincial Act or a

State Act shall be entitled to have the word ‘University’ associated with its name in any manner whatsoever:

   Provided that nothing in this section shall, for a period of two years from the commencement of this Act, apply to an institution which, immediately before such commencement, had the word “University” associated with its name.

Penalties for contravening the provisions of Sections 22 and 23 were provided in Section 24 and whoever contravened those provisions became punishable with fine which would extend to rupees one thousand and if the person contravening was an association or other body of individuals, every member of such association or other body who knowingly or willingly authorized or permitted the contravention was punishable with fine which would also extend to one thousand rupees.

3. The appellants came to be prosecuted for the offence under Section 24 of the Act as CUL continued to bear the description of University even after the period indicated in the proviso to Section 23 of the Act was over.
4. Before coming into force of the Act, there was no legislation in India which prohibited individual or body from establishing a University and such University was free to confer degrees and diplomas. Section 22 prohibited privately established Universities from conferring degrees and restricted such conferment to Universities established by Acts passed by State legislatures or Parliament or institutions which were deemed to be Universities in the manner provided by the Act. Similarly, before the Act came into force there was no law which restricted the use of the word ‘University’ and all institutions were free to associate the word with their names if they liked. Section 23, however, imposed the restriction in absolute term and the proviso allowed a period of two years within which adjustments to the new situation brought about by law had to be made.
5. Originally there were five accused persons. One of them died and in respect of another the prosecution was withdrawn as he resigned from CUL. The prosecution continued against the prosecution continued against the remaining three – Shri P. C. Jain and Smt. Sushila Sohni who are appellants in Criminal Appeal No. 253 of 1972 and Shri L. N. Mehra who is appellant in the connected criminal appeal.

6. Mr. Shanti Bhushan appearing for the appellants advanced four contentions:                    (I) CUL had been incorporated under the companies Act of 1913 and is deemed to be a Companies Act, 1956; the prosecution was misconceived as the prohibition in Section 23 was not attracted.  (II) The restriction imposed under Section 23 of the Act was ultra vires because entry II which read as “Education including Universities” was in lost II of Schedule VII of the Constitution and was a State subject but the Act in question was  passed by Parliament. The long title of the Act reads as “an Act to make provision for the coordination and determination of standards in Universities and for that purpose to establish a university Grants Commission and is cover by entry 66 of List I of the Seventh Schedule. The restriction provided by Section 23 as such does not appear to be a

matte squarely within the ambit of the entry and therefore such a provision is ultra vires the constitution.  (III)  This court observed in S. Azeez Basha   v.  Union of India (1968) 1  SCR  833  :  (AIR   1968  SC  662 at Pp. 670-71) as per Wanchoo, C. J. : -   

 “ …….. We should like to say that the words ‘educational institution’ are of very wide import and would include a University also. This was not disputed on behalf of the Union of India and therefore it may be accepted that a religious minority had the right to establish a university under Article 30 (1).

The position with respect to the establishment of universities before the constitution came into force in 1950 was this. There was no law in India which prohibited any private individual or body to establish a university ………. Thus, in law in India there was no prohibition against establishment of Universities by private individuals or bodies and if any University was so established it must of necessity be granting degrees before it could be called a University. But though such a University might be granting degrees it did not follow that the Government of the country was bound to recognize those degrees ……….”

  It was urged by Mr. Shanti Bhushan that since Article 30 guaranteed the right to establish a University to the minority communities, the restrictions imposed by the Act would not be operative and to that extent the provision would be ultra vires the Constitution: (IV) All the three accused appellants had severed their connection with CUL Smt. Sohni resigned in August 1962; Shri Mehra in December 1965, and Shri Jain in 1970. On the same analogy which led to withdrawal of the prosecution against Shri Anand Singh, the present prosecution should not have been pursued against the appellants.

7. The word ‘University’ has been defined in Section 2 (f) of the Act to mean: “a university established or incorporated by or under a central Act, a provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recognized by the commission in accordance with the regulations made in this behalf under this Act.” Section 23 of the imposing the prohibition for use of the word ‘university’ also provides that way. Undoubtedly under the companies Act when a company is duly registered, it gets incorporated and such incorporation brings into existence an independent legal entity different from the share-holders constituting it. Yet we are not prepared to agree with Mr. Shanti Bhushan that the Act intended to admit a company incorporated under the companies Act into the definition or for the purpose of Section 23. The words “established” or “incorporated” referred to Acts under which Universities are established or incorporated. Several Universities in this country have been either established or incorporated under special statutes, such as Delhi University Act, the Banaras Hindu University Act, the Allahabad University Act etc. In these cases, there is a special Act either of the Central or the Provincial or the State legislatures establishing and incorporating the particular universities. There is also another pattern –  where under one compendious Act several universities are either established or incorporated for instance, the Madhya Pradesh universities Act, 1973. The definition of university and the provisions in Sec. 23 of the Act refer to Acts of the Central provincial or the State legislatures by which one or more Universities are established or incorporated and not institutions incorporated under a general statute providing for incorporation. We do not accept the contention of Mr. Shanti Bhushan that CUL when incorporated under the companies Act satisfied the definition as also the provision of Section 23 of the Act and, therefore with the observation of Lord Somervell to the effect:

“ The mischief against which the statute is directed and, perhaps though to an undefined extent, the surrounding circumstances can be considered”, in ascertaining the true legislative intention  (A. G.  v.  H. R. H.  Augustus (1957) 1 All  ER 49 (HL). Lord Porter also spoke to the same effect while speaking for the Board in the following word:

“ A right construction of the Act can only be attained if its whole scope and object together with an analysis of its working and the circumstances in which it is enacted are taken into consideration”.

Bhagwan Baksh Singh  v.  Secretary of State, AIR 1940 PC 82. Several institutions styling themselves as ‘Universities’ had started awarding degrees and diplomas which had no basis and could not accepted. Keeping in view the mischief which was sought to be eradicated and the consideration which weighed with Parliament to introduce the prohibition in the Act, it must be held that the Act recognises only those institutions established or incorporated under special statutes of sovereign legislatures.

8. ‘Education including Universities was a State subject until by the 42^nd Amendment of the Constitution in 1976, that entry was omitted from the State list and was taken into entry 25 of the concurrent list. But as already pointed out the Act essentially intended to make provisions for the coordination and determination of standards in Universities and that, as already indicated, it squarely covered under entry 66 of list I. While legislating for a purpose germane to the subject cover by the entry and establishing a University Grants Commission, Parliament considered it necessary, as a regulatory measure, to prohibit unauthorized conferment of degrees and diplomas as also use of the word ‘University’ by institution which had not been either established or incorporated by special legislation. We  are not inclined to agree with the submission advanced on behalf of the appellants that in doing so Parliament entrenched upon legislative power reserved for the State legislature. The legal position is well settled that the entries incorporated in the lists covered by Schedule VII are not powers of legislation but ‘fields’ of legislation. (harakchand  v. Union of India, (1970) 1 Mscr 479 at  p.  489:  (AIR 1970 SC  1453 at  p. 1458). In State of Bihar  v.  Kameswar, 1952  SCR  889:  (AIR 1952 SC 252) This
   Court has indicated that such entries are mere legislative heads and are of an enabling character. This Court has clearly ruled that the language of the entries should be given the widest scope amplitude. Navinchandra  v.  CIT  (1955)  1 SCR  829 AT  P.  836 :  (AIR 1955  SC  58  at  p. 61). Each general word has been asked to be extended to all ancillary or subsidiary matters which can fairly and reasonably be comprehended. (See State of Madras  v. Gannon Dunkerley, 1959  SCR 379  at  p. 391:  (AIR 1958  SC  560  at  p. 564). It has also been held by this Court in The Check Post Officer  v. K.P Abdulla Bros.  (1971)  2  SCR  817, that an entry confers powers upon the legislature to legislate for matters ancillary or incidental, including provision for avoiding the law. As long as the legislation is within the permissible field in pith and substance, objection would not be entertained merely on the ground that while enacting legislation, provision has been made for a matter which though germane for the purpose for which competent legislation is made it covers an aspect beyond if. In a series of decisions this Court has opined that if an enactment substantially falls within the powers expressly conferred by the Constitution upon the legislature enacting it, it cannot be held to be invalid merely because it incidentally encroaches on matters assigned to another legislature. (See State of Karnatake  v. Ranganatha,  (1978)  1 SCR  641  at p. 661: (AIR  1978  SC  215  at p.  230);  K.S.E. Board  v. Indian Aluminium,  (1976  1  SCR  552:  (AIR 1976  SC  1031); Subramanyam Chettiar  v. Mutuswami;  1940  FCR  188:  (AIR  1941  FC  47): Prafulla kumar Mukherjee  v. Bank of Commerce,  1947  FCR  28 : 

(AIR  1947  PC  60); Ganga Sugar Co   v. U.P State,  (1980)  1 SCR  769  at  p. 782:  (AIR  1980  SC  286 at  [p.  294).  We, therefore, do not accept the submission the definition of University given in Section   2 (1) or the prohibition in Sec.23 of the Act are ultra vires the Parliament on the ground that such provisions are beyond, its legislative competence.

9.  In the decision of this Court in the case of Azeez Basha,  9AIR 1968  SC  662), The             observations relied upon were with reference to the rights of the minority community to             establish a  University in exercise  of its right guaranteed under Article  30 of the constitution. Admittedly, CUL is not an institution belonging to any minority community.

            We do not think it is appropriate to allow arguments to be canvassed in this case on

            the basis of what had been observed with reference to an institution belonging to the

            minority community. Nor is it appropriate that the vires of the Act should be

            examined with reference to what does not arise for consideration in the appeals before

            us.

10. There is no dispute that prosecution against Shri Anand Singh was withdrawn as he had resigned from CUL after the case was launched. The claim of Mr. Shanty Bhushan that the three accused persons have resigned between 1962 to 1970 as already indicated has not been disputed. Though the proviso to Section 23 had specified a period of two years within which the word ‘University’ had to be omitted by the institution not entitled to its use, yet there is scope for the submission of Mr. shanty Bhushan that being incorporated under a Central Act, the people connected with CUL worked under the bona fide impression that such incorporation satisfied the requirements of the Act. In such circumstances, we think it appropriate to accept the submission advanced on behalf of the appellants to a limited extent and allow to appeals and set aside the conviction of the appellants under Section 24 of the Act. They are acquitted of offence and fines if already realized be refunded.
11. Before we part with the matter, we think it appropriate to deal with another aspect. Under Section 3 of the Act provision has been made that the Central government may on the advice of the Commission declare by notification in official gazette any institution for higher education other than a University to be deemed to be a University for the purposes of the Act and when such declaration is made, all the provisions of the Act would apply to such an institution as if it were a University within the definition of the term in section 2 (f). CUL may make an application to the Central Government for such recognition and on the advice of the University grants Commission, the Central Government should dispose of the same in accordance with law. We have been told that the institution has been working very satisfactorily and has, to its credit, a long history of service in the field of education. We are hopeful that taking all aspects into consideration both the commission as also the Central Government would consider the request of the institution to be recognized under Section 3 of the Act. If it is so recognized the institution would be able to confer degrees as provided in Sec. 22 of the Act.
12. It is for the Central Government next to consider whether an institution covered by Section 3 of the Act would not satisfy the provisions of Section 23 of the Act and if in the opinion of the Central Government such an institution in not covered, whether an appropriate amendment to S. 23 should not be made so as to exclude recognized institutions under Section 3 of the Act from the field of prohibition covered by section 23 of the Act. CUL should make the application within one month from now and the Central government should examine the matter appropriately and pass proper orders or directions within six months thereafter. At any rate the institution should have reasonable time – until end of 1984 – to take such appropriate steps as it may be advised, to avoid further prosecution under the Act.

                                                                                                     Appeals allowed.