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Dayanand Anglo-vedic College Managing Committee New Delhi and ors. Vs. the State of Punjab and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 2058 of 1971
Judge
Reported inAIR1972P& H170
ActsEast Punjab University Act, 1947 - Sections 3, 4, 4(2), 4(3), 5, 7, 26, 27 and 39; Punjab University Amendment Act, 1960 - Sections 26; Guru Nanak University, Amritsar, Act, 1969 - Sections 5(3); Punjab Reorganization Act, 1966 - Sections 13, 72 and 72(1); Punjab University Act, 1947; Punjab Agricultural University Act, 1961; Sikh Gurdwaras Act, 1925; Multi-Unit Co-operative Societies Act, 1942 - Sections 5D and 70; East Punjab University Ordinance, 1947; Constitution of India - Articles 2, 3, 4, 4(1), 14, 19(1), 26, 29(1), 30(1), 170, 170(1), 171, 171(1), 245, 246, 333 and 368
AppellantDayanand Anglo-vedic College Managing Committee New Delhi and ors.
RespondentThe State of Punjab and ors.
Cases ReferredMangal Singh v. Union of India
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....b.r. tuli, j. 1. the punjab university was incorporated under the east punjab university act 7 of 1947 (hereinafter referred to as the act). this act replaced the east punjab university ordinance, 1947. the seat of the university was stated to be simla or such other place as may be determined by the government. to begin with, the university worked from solan and with the establishment of chandigarh, its headquarters were shifted to that place. an amendment was made in section 3(b) of the act so as to provide that 'the seat of the university shall be at chandigarh'. the necessity to establish this university arose because the punjab university at lahore became a university of foreign country on the partition of the country and it fell within pakistan and could not have any jurisdiction.....
Judgment:

B.R. Tuli, J.

1. The Punjab University was incorporated under the East Punjab University Act 7 of 1947 (hereinafter referred to as the Act). This Act replaced the East Punjab University Ordinance, 1947. The seat of the University was stated to be Simla or such other place as may be determined by the Government. To begin with, the University worked from Solan and with the establishment of Chandigarh, its headquarters were shifted to that place. An amendment was made in Section 3(b) of the Act so as to provide that 'the seat of the University shall be at Chandigarh'. The necessity to establish this University arose because the Punjab University at Lahore became a University of foreign country on the partition of the country and it fell within Pakistan and could not have any jurisdiction over the colleges situated in India. Section 26 of the Act gave the list of colleges which were affiliated to it under the Act. This list shows that various colleges situate in Delhi, East Punjab and East Punjab States were affiliated to this University because they were previously affiliated to the Punjab University at Lahore. By the Punjab University Amendment Act, 1960, Section 26 was substituted by the following:--

'The colleges affiliated to the University of Punjab, Lahore, on or before the 27th September, 1947, and located in India, shall be deemed to be affiliated to the University and shall be subject to all the provisions of this Act.'

Section 27 of the Act authorises the University to accord affiliation to other colleges. Section 30 provides for disaffiliation of coR.No.16lleges and S. 39 provides-

'The Government may by notification define the territorial limits within which, and specify the colleges in respect of which, any powers conferred by this Act shall be exercised.'

It has been stated on behalf of the petitioner and the Punjab University that the Government never issued any notification defining the territorial limits within which the University was to function or exercise its powers with the result that the power of the University only extends to the colleges affiliated with it from time to time. There are 14 colleges in the districts of Gurdaspur, Amritsar, Jullundar and Kapurthala, managed and run by the Dayanand Anglo Vedic College Managing Committee, and all these colleges were affiliated to the Punjab University and were disaffiliated by virtue of Section 5(3) of the Guru Nanak University, Amritsar, Act, 1969 and the notification issued thereunder with effect from June 30, 1970. These 14 colleges filed writ petitions in the Supreme Court of India challenging the constitutional validity of Sections 4, 4(2), 4(3) and 5 of the said Act as being violative of Arts. 14, 19(1) (c) and (f), 26, 29(1) and 30(1) of the Constitution of India: A prayer was also made to quash the notification dated March 16, 1970, issued by the Governor of Punjab under sub-sections (1) and (3) of S. 5 of the Guru Nanak University, Amritsar, Act, specifying the districts of Gurdaspur, Amritsar, Jullundar and Kapurthala in the State of Punjab as the area in which the Guru Nanak University, Amritsar, shall exercise its power and discharge its duties' and notified '30th day of June, 1970, as the date for the purposes of sub-section (1) in respect of the educational institutions situated within the limits of the aforesaid area.' Their Lordships came to the conclusion that the various provisions of the Guru Nanak University Act and the impugned notification did not involve the contravention of any fundamental rights of the petitioner-colleges and, therefore, held them to be valid. The petitioners had also challenged the legislative competency of the Punjab Legislature to make a provision in Section 5(3) of the Guru Nanak University Act, for the disaffiliation of the colleges already affiliated to the Punjab University but their Lordships did not determine that question as it did not relate to the fundamental rights of the petitioners before them. The result is that the petitioner-society has challenged Section 5(3) of the Guru Nanak University, Amritsar, Act, and the notification dated March 16, 1970, referred to above, in this petition on various grounds relating to the legislative competence of the Punjab Legislature to pass any law for the disaffiliation of any colleges which were formerly affiliated to the Punjab University.

2. The petition has been contested by the State of Punjab and the Guru Nanak University and has been supported by the Punjab University. The Union of India which has been made a respondent to the petition, has not cared to put in either a return or appearance at the hearing.

3. The learned counsel for the petitioner has mainly argued that Section 72 of the Punjab Reorganization Act, 1966, bars the jurisdiction of the Punjab Legislature to pass any law in respect of the Punjab University and, therefore, Section 5(3) of the Guru Nanak University, Amritsar, Act in so far as it provides for the disaffiliation of the colleges situate in the districts of Gurdaspur, Amritsar. Jullundar and Kapurthala, from the Punjab University, is ultra vires the Constitution. His arguments can be summarized under three heads:--

1. Section 72 of the Punjab Reorganization Act effectuates an amendment of Arts. 245 and 246 and Entry 11 in List II of the Seventh Schedule to the Constitution with regard to the Punjab University;

2. On a fair construction of Section 72 of the Punjab Reorganization Act, Parliament alone has the power to make the law in respect of the Punjab University;

3 (a) Section 5 (3) of the Guru Nanak University, Amritsar, Act is not a law in respect of the Punjab University;

(b) if it is such a law, it is void for lack of territorial nexus.

I shall first deal with point No. 2 as the decision on this point shall make the decision on point No.1 very easy.

4. Section 72 of the Punjab Reorganization Act, runs as under:--

'72. General provisions as to statutory corporations-

(1) Save as otherwise expressly provided by the foregoing provisions of this Part, where any body corporate constituted under a Central Act, State Act, or Provincial Act for the existing State of Punjab or any part thereof serves the needs of the successor States or has, by virtue of the provisions of Part II, become an inter-State body corporate, then the body corporate shall, on and from the appointed day, continue to function and operate in those areas in respect of which it was functioning and operating immediately before that day, subject to such directions as may from time to time be issued by the Central Government, until other provision is made by law in respect of the said body corporate.

(2) Any direction issued by the Central Government under sub-section (1) in respect of any such body corporate may include a direction that any law by which the said body corporate is governed shall, in its application to that body corporate, have effect, subject to such exceptions and modifications as may be specified in the direction.

(3) For the removal of doubt it is hereby declared that the provisions of this section shall apply also to the Punjab University constituted under the Punjab University Act, 1947 (East Punjab Act 7 of 1947), the Punjab Agricultural University constituted under the Punjab Agricultural University Act, 1961 (Punjab Act 32 of 1961), and the Board constituted under the provisions of Part III of the Sikh Gurdwaras Act, 1925 (Punjab Act 8 of 1925).

(4) For the purpose of giving effect to the provisions of this Section in so far as it relates to the Punjab University and the Punjab Agricultural University referred to in sub-section (3) the successor States shall make such grants as the Central Government may, from time to time, by order determine.'

This section appears in Part VII of the Punjab Reorganization Act which makes provisions with regard to certain corporations. Section 67 relates to the State Electricity Board and the State Warehousing Corporation with regard to which the provision is that they would continue to function, on or from the appointed day, in those areas in respect of which they were functioning immediately before that day subject to the provisions of the section and such directions as may from time to time issued by the Central Government. The State Government were given one year's time to establish their own Electricity Boards and Warehousing Corporations and it was provided that these two Corporations would be deemed to be dissolved on the first day of November, 1967. Section 69 made a provision with regard to the Punjab State Financial Corporation. This Corporation was to be reorganised in the manner stated in the Section into the Financial Corporations set up in the successor States. Section 70 related to Multi-Unit Co-operative Societies and added Section 5D to the Multi-Unit Co-operative Societies Act, 1942 in order to enact transitional provisions relating to certain Multi-Unit Co-operative Societies which were formerly working in the State of Punjab and were necessarily to be split up after the reorganization of that State amongst the co-operative societies of the successor States. Section 71 related to co-operative banks and Section 73 made provision for certain State owned Corporations. Section 77 made provision of continuance of facilities in certain State institutions mentioned in Schedule Sixteen to the Punjab Reorganization Act. It is thus evident that Section 72 was enacted to make general provisions for such bodies corporate or which no provision had been made in other parts of the Act and the Punjab University was stated to be body corporate of that kind. As I have said above, this University had power or jurisdiction only over certain colleges which were affiliated to it as no area of its operations had been notified under Section 39 of the Act. On the appointed day and immediately before that various colleges were affiliated to that University which were situate in the successor States of Punjab and Haryana. Union Territory of Chandigarh and the Union Territory of Himachal Pradesh, to which certain areas of the Punjab had been transferred. It was, therefore, provided in Section 72 that the Punjab University was to continue to function and operate in those areas in respect of which it was functioning and operating immediately before the appointed day in order not to deprive the successor State of the educational; facilities immediately on the re-organization of the erstwhile State of Punjab. The continuity of the Punjab University was desirable in the interest of the successor States but the Punjab University was to serve those successor States only till they made any other provision for appropriate education in their own territories under Entry 11 in List II in the Seventh Schedule to the Constitution. Till any successor State took action by law in this behalf, the Punjab University was to continue its functions and operations subject to the directions issued by the Central Government. The power of the Central Government to issue directions was for a limited period, that is, till other provision was made by law in respect of the Punjab University. If the successor States desired the Punjab University to continue as before in their territories, there was no necessity for them to make any provision by enacting a law on the subject but in order to avoid conflict amongst the successor States over the functioning of the Punjab University, the power to issue directions with regard to the said University was rightly given to the Central Government, so that the University should continue to function and operate fairly and justly in the areas in which it was operating and functioning before the appointed day. In my view, if it was intended that other provision by law was also to be made by the Central Government, the Parliament would have clearly stated so in Section 72 instead of saying 'until other provision is made by law in respect of the said body corporate'. For the issuance of the directions the authority is expressly mentioned as the Central Government but the Parliament has not been mentioned as the Legislature to enact the law making other provision. While interpreting Section 72, we have not to confine ourselves only to the Act but to all such bodies corporate which were intra State prior to the appointed day and because of the re-organization of the erstwhile State of Punjab became inter State bodies corporate on and after the appointed day. The first part of sub-section (1) of S. 72 clearly points out that the Parliament was making the provision in Section 72 with regard to the bodies corporate which had been constituted under the Central Act, State Act or Provincial Act and that is why the legislative authority for making a law in respect of these bodies corporate was not satisfied. It may be for the reason that with regard to the bodies corporate constituted under a Central Act, the Parliament was the appropriate Legislature to make the law while with regard to the Corporations constituted under any State Act or a Provincial Act, the State Legislature was to be the appropriate Legislature. Education including Universities is a State subject as per Entry 11 in List II of the Seventh Schedule to the Constitution and the Punjab University was incorporated under a Punjab Act. Till the re-organization of the erstwhile State of Punjab, it continued to function according to the provisions of the said Act. It cannot be imagined that with regard to all inter State bodies corporate which were constituted under any State or Provincial Act, the jurisdiction to make any other provision by law was taken over by the Parliament itself. These bodies corporate were and are to function and operate for the people of a particular State and have to cater to their needs. Their needs are expressed by their elected representatives and, therefore, it cannot be assumed that the Parliament wanted to deprive the successor States of an important field of their legislation with regard to education which is absolutely necessary for the development and progress of any State. No intention can be attributed to the Parliament to discriminate between One State and another forming part of the Indian Union. The States have been given the same pattern of administration excepting a very few because of their peculiar circumstances and problems like Jammu and Kashmir and Nagaland. The Constitution was given to themselves by the people of India in 1950 by enacting it through a Constituent Assembly and this Constitution provided the form of Government and the area and extent of the respective States with regard to the governance of their territories on a uniform pattern. It will be highly unreasonable to think that as far as Punjab and Haryana were concerned, the Parliament was depriving them of the right to legislate with regard to education and universities while every other State was free to do so. An illustration will make my point clear. I have pointed out above that no territorial area has been fixed for the functioning of the Punjab University although any college situate anywhere in India or even abroad can apply to it for affiliation and can be affiliated. Supposing some colleges in other States like Uttar Pradesh or Maharashtra of Tamil Nadu had been affiliated to the Punjab University before the appointed day, can it be said that after the appointed day, those States could not pass any law providing that the colleges situated in their own States would thenceforth be affiliated to a University within that State and be disaffiliated from the Punjab University? It would mean an encroachment on the power of legislation of those States which cannot be countenanced. Every State can make laws with regard to education and Universities within its State and control and regulate their functions and operations therein irrespective of the location of the seat of the University. What has to be seen is that the subject-matter of the legislation falls within the jurisdiction of the State Legislature and if that be so, it can affect all persons and institutions within the State to which it may be applied. In my opinion, therefore, the mere fact that the Punjab University is located in Chandigarh, which is outside the territory of the Punjab State, does not debar the Punjab State Legislature from enacting a law affecting the functions and operations of the Punjab University within its own territory. For this reason, the provision in Section 5(3) of the Guru Nanak University. Amritsar, Act, disaffiliating the colleges situate in the districts of Gurdaspur, Amritsar. Jullundar and Kapurthala, and affiliating them to the Guru Nanak University is constitutionally valid.

5. The learned counsel for the petitioner very vehemently argued that the object of the Parliament in enacting Section 72 of the Punjab Re-organization Act was to keep the Punjab University intact as it existed prior to November 1, 1966, as it was intended that no successor State should be able to deprive it of its operation and function in the areas of which it was functioning prior thereto. If that had been the intention, the Central Government itself would not have taken away the districts of Patiala, Sangrur, Bhatinda and Ropar, in the State of Punjab, from the Punjab University by a notification dated September 12, 1969, and the whole territory of Himachal Pradesh subsequently. As a result of these notifications, the Punjab University had ceased to operate and function in those four districts of the State of Punjab and the entire State of Himachal Pradesh. There is thus no merit in the submission made by the learned counsel for the petitioner.

6. In view of the decision on point No. 2, referred to above, point No. 1 really does not call for any decision, but in fairness to the learned counsel who have argued the case on both sides, I proceed to briefly deal with this point. It has been submitted that the Punjab Re-organization Act is a law under Art. 3 of the Constitution and while enacting that law, the Parliament was entitled to make such supplemental, incidental and consequential provisions as it deemed necessary, as has been provided in Article 4 of the Constitution. If such a provision meant the amendment of the Constitution, it could be made. It is therefore submitted that while enacting Section 72 of the Punjab Re-organization Act, the Parliament intended to amend Entry 11 in List II of the Seventh Schedule to the Constitution by taking Punjab University out of the said List and to vest the power of legislation with regard thereto in the Parliament, thereby impliedly amending Arts. 245 and 246 of the Constitution. In view of what I have said above, this submission has no force. The Parliament did not specify the law as meaning the law made by it. All that it said was 'until other provision is made by law in respect of the body corporate.' I have interpreted the word 'law' in that sentence to mean law made by the appropriate Legislature, that is, with regard to the bodies corporate constitutes under any Central Act or qua which legislation is to be made on a subject enumerated in List I of the Seventh Schedule to the Constitution, the law has to be made by the Parliament, but in respect of a body corporate constituted under a State or a Provincial Act, wherein the subject of legislation was to be found in List II of the Seventh Schedule to the Constitution, the appropriate Legislature to make the law is to be the State Legislature. Art. 4(1) of the Constitution is in two parts, the first part relates to the amendment of the First and Fourth Schedules to the Constitution about which the mandate of the Constitution is that a provision amending those Schedules shall be made in the law under Arts. 2 and 3 of the Constitution. In addition thereto, such a law may contain any supplemental, incidental and consequential provisions as the Parliament may deem fit but those provisions are to be made in order to effectuate the object of the Act so made. The purpose and object of the Punjab Re-organization Act was to break up the entity of that State and to split it up into four units in response to a very strong demand made by a very vocal and powerful section of the Punjabis particularly the Sikhs in the present State of Punjab to have a Punjabi speaking State. The people of Haryana clamoured for a Hindi speaking Haryana State. The division of Punjab was made on unilingual basis; that is why the hilly portion of the State of Punjab was transferred to Himachal Pradesh. The Punjab State has been established as a Punjabi speaking State and Punjabi has been declared to be the official language by an Act of the State Legislature. In most of the offices of the Government within the State, the entire work is being done in Punjabi language written in Gurmukhi script. In view of this historic background, it cannot be said that a provision keeping the Punjab University out of control of the Punjab State Legislature in so far as its operations and functions within its territories were concerned was either supplemental, incidental and consequential to the re-organization. All that can be said was that a provision was being made for a transitional period, that is, until other provision was made by law by the State Legislature. It was observed by their Lordships of the Supreme Court in Mangal Singh v. Union of India, AIR 1967 SC 944:--

'But the Constitution also contemplates by Art. 4 that in the enactment of laws for giving effect to the admission, establishment or formation of new States, or alteration of areas and the boundaries of those States, power to modify provisions of the Constitution in order to tide over a temporary difficulty may be exercised by the Parliament. The High Court was, therefore, right in holding that Section 13(1) was not invalid merely because it departed from the minimum prescribed as the total membership of the Legislative Assembly for a State.'

The facts of that case were that when Haryana State was created on November 1, 1966, its Legislative Assembly consisted of 54 members instead of the minimum of 60 prescribed in Art. 170 of the Constitution. In that context, it was held that the provision was valid although it did not comply with the mandatory provisions of Art. 170(1) of the Constitution. The provision was made for a transitional period and was incidental and consequential to the formation of the Haryana State. The power to issue directions with regard to the Punjab Universities which was given to the Central Government by Section 72 was essentially for a limited period, that is, till the Legislature of the appropriate State made a provision with regard to the functioning and operation of the Punjab University within its own area. It cannot, therefore, be said that Section 72 of the Punjab Re-organization Act effectuated an amendment of Arts. 245 and 246 and Entry 11 in List II of the Seventh Schedule to the Constitution with regard to the Punjab University. It is not only the Punjab University that is governed by Section 72 of the Punjab Re-organization Act, but many other bodies corporate constituted under any Central, State or Provincial Act, which were intra State in operation before the appointed day and became inter-State bodies corporate because of the re organization.

7. The third argument of the learned counsel for the petitioner is that Section 5(3) of the Guru Nanak University, Amritsar, Act is not a law in respect of the Punjab University, which I confess is difficult to understand. It is conceded by the learned counsel for the petitioner that it was within the power of the State Legislature to incorporate a new University and that the incorporation of the Guru Nanak University at Amritsar was within its jurisdiction. That the State Legislature could affiliate colleges within the area reserved for the Guru Nanak University to it is also not disputed. What is disputed is the provision that the colleges in the four districts reserved for the Guru Nanak University, which were formerly affiliated to the Punjab University, could not be disaffiliated from that University and it is this portion of Section 5(3) which is challenged as ultra vires the powers of State Legislature. This provision directly hits the operation and functioning of the Punjab University with regard to the colleges in those four districts now reserved for Guru Nanak University and is, therefore, a direct legislation touching that University. It cannot be said that this legislation is not in respect of the Punjab University. It was necessary for the State Legislature first to enact a law disaffiliating the colleges situated in the districts reserved for Guru Nanak University from the Punjab University and then, by a separate enactment to affiliate them to the Guru Nanak University. This very object has been achieved by enacting Section 5(3) of the Guru Nanak University, Amritsar, Act and so it is a law in respect of the Punjab University within the meaning of Section 72 of the Punjab Re-organization Act.

8. The last argument of the learned counsel for the petitioner is that if Section 5(3) of the Guru Nanak University Act is a law in respect of the Punjab University, it is void because of lack of territorial nexus. The basis of the argument is that the location of the Punjab University is at Chandigarh which is outside the territorial limits of the Punjab State. In the Act also, it is mentioned that the seat of the University shall be at Chandigarh. It is, therefore, submitted that only the Legislature having jurisdiction over Chandigarh can make any law in respect of the Punjab University. I regret my inability to agree to this submission. Entry 11 in List II of the Seventh Schedule to the Constitution is not confined to the universities incorporated by the particular State by which a law is made. Every State is empowered to make law with regard to the educational universities within its territories irrespective of the fact that their seat is somewhere else. It is their functioning and operation within the territorial limits of the State enacting the law which is affected by the said law and it cannot be said that by enacting such a law the State Legislature is acting extra-territorially by disaffiliating colleges situated in four districts of the State of Punjab which were formerly affiliated to the Punjab University. The said law has only affected the operation and functioning of the Punjab University in those four districts and has not in any way interfered with its activities elsewhere nor has it passed any law affecting its power or varied functions like the prescribing of syllabi, holding of examinations, making provisions for teaching, the Constitution of its managing bodies like the Senate and the Syndicate, or its officers or any other essential function of the University. The only effect of Section 5(3) is to take out of the jurisdiction of the Punjab University some of the colleges situate in the State of Punjab, which only means a reduction in the number of colleges that remain affiliated to it. It has not in any other way affected the Punjab University. In my opinion, it was within the jurisdiction of the Punjab State to disaffiliate the college situate within any part of its territory from the Punjab University.

9. For the reasons given above, this petition has no merit and is dismissed but without any order as to costs.

Gurdeo Singh, J.

10. I am in complete agreement with my learned brother. I would, however, like to add a few words. In interpreting a law framed under Art. 4 for the purposes stated in Arts. 2 and 3 of the Constitution, amendment of other provisions of the Constitution in absence of express provision is not readily to be inferred unless the language used leaves no doubt that it was intended. Part XX containing Art. 368 of the Constitution specifically deals with the question of amendment of the Constitution and lays down the procedure for the same. A law made under Arts. 2 and 3 is, however, taken out of the ambit of Art. 368 of the Constitution by the specific provision in Art. 4(2) that no such law shall be deemed to be an amendment of the Constitution for the purpose of Art. 368. Thus being in the nature of an exception it has to be strictly construed.

11. The nature and scope of the law that has to be enacted under Arts. 2 and 3 of the Constitution while admitting or establishing new States or forming new States and altering the areas or boundaries of the existing States is laid down in Art. 4(1), which when split up, reads thus:--

'Any law referred to in Art. 2 and 3 shall contain--such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law, and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary.'

12. It will be seen that the amendment of the First and the Fourth Schedule of the Constitution referred to in the first part is imperative. This is so because the First Schedule contains the names of the States and the Fourth Schedule embodies the table allocating seats in the Council of States. As soon as a new State is formed or admitted into the Union, its name has to be incorporated in the list of States that form the Union of India.

13. The second part of Art. 4(1) makes no specific mention of power to amend any other provision of the Constitution, but authorises the Parliament to make such 'supplemental, incidental and consequential provisions' as it may deem necessary. It was in dealing with this power that their Lordships of the Supreme Court made the following observations in AIR 1967 SC 944:--

'The law so made may also make supplemental, incidental and consequential provisions which would include provisions relating to the setting up of the legislative, executive and judicial organ of the State essential to the effective State administration under the Constitution, expenditure and distribution of venue apportionment of assets and liabilities, provisions as to services, application and adaptation of laws, transfer of proceedings and other related matters.

.................. Power with which the Parliament is invested by Arts. 2 and 3 is power to admit, establish or form new States which conform to the democratic pattern envisaged by the Constitution and the power which the Parliament may exercise by law is supplemental, incidental or consequential to admission, establishment or formation of a State as contemplated by the Constitution, and is not power to override the constitutional scheme. No State can, therefore, be formed, admitted or set up by law under Art. 4 by the Parliament which has not effective legislative, executive and judicial organs.'

14. It is true that in that case, though there were no express words amending Art. 170(1) of the Constitution and yet their Lordships held that this provision stood amended and the Parliament had the authority to make amendment, but the intention to amend this provision was evident from the fact that in Section 13 of the Punjab Re-organization Act, 1966, with which their Lordships were dealing, it was specifically provided that the number of seats allocated to Haryana in its Legislative Assembly shall be 54, notwithstanding that in Article 170 it had been laid down that subject to provisions of Art. 333, the Legislative Assembly of each State shall consist of not less than sixty members chosen by direct election from territorial constituencies in the State. In holding that this provision in Section 13 of the Punjab Re-organization Act was valid, Shah, J., speaking for the Court said:--

'Power of the Parliament to make amendments in the Constitution by express enactment so as to reduce the number of members of a Legislative Assembly below the minimum prescribed having regard to the exigency of a special case may not be denied. But the Constitution also contemplates by Art. 4 that in the enactment of laws giving effect to the admission, establishment or formation of new States, or alteration of areas and the boundaries of those States, power to modify provisions of the Constitution in order to tide over a temporary difficulty may be exercised by the Parliament. The High Court was, therefore, was right in holding that Section 13(1) was not invalid merely because it departed from the minimum prescribed as the total membership of the Legislative Assembly for a State.'

Earlier, his Lordship had observed:

'Power to reduce the total number of members of a Legislative Assembly below the minimum prescribed by Article 170(1) is, in our judgment, implicit in the authority to make laws under Article 4. Such a provision is undoubtedly an amendment of the Constitution, but by the express provision contained in Clause (2) of Art. 4, no such law which amends the First and Fourth Schedule or which makes supplemental, incidental and consequential provisions is to be deemed an amendment of the Constitution for the purpose of Art. 368.'

15. From the clear language of Art. 4 of the Constitution, it follows that apart from the amendments of Schedules I and II of the Constitution, which are imperative, while enacting a law for the purposes of Arts. 2 and 3 of the Constitution, Parliament can amend any other provision of the Constitution only if it is necessary to achieve the purpose of the legislation and to the extent it is required for making 'supplemental, incidental and consequential provisions'; but as observed by their Lordships in Mangal Singh's case, AIR 1967 SC 944 (supra), Art. 4 does not contemplate that in exercise of this power the Parliament in forming new States can override the constitutional scheme.

16. The distribution of legislative powers between the States and the Union is one of the corner stones of our Constitution. Under List II of Sch. VII 'Education including Universities' is a State subject, in respect of which by virtue of Art. 246 the State Legislature has the exclusive power to make a law for such State or any part thereof. Reading Section 72 of the Punjab Re-organization Act, 1966, in the light of what has been said above, I do not find anything to support Mr. Kaushal's contention that the Punjab Legislature had no power to make any law with regard to the functioning of the Punjab University in the State of Punjab. The authority conferred on the Central Government under Section 72(1) of the Punjab Re-organization Act, 1966, to issue necessary directions from time to time regarding functioning of inter-State Corporations is to ensure only till 'other provision is made by law in respect of the said body corporate'. The word 'law' occurring in this provision as held by my learned brother Tuli, J., must mean the law made by competent Legislature and cannot be confined to a law made by the Parliament. Had the intention of the Legislature been that the Parliament alone would be competent to make such a law, it could have easily qualified the word 'law' by adding the words 'enacted by the Parliament', especially when it had earlier specified that the authority competent to issue directions with regard to functioning of such Corporations would be the Central Government. For these and other reasons, recorded by my brother Tuli, J., the petition must fail.

R.S. Narula, J.

17. I entirely agree with the conclusion arrived at by my learned brother Tuli, J. on all the points argued before us and also with everyone of the reasons given in support thereof. Section 5(3) of the Guru Nanak University Amritsar Act, regarding which the whole controversy has been raised and under which provision the impugned notification was issued is in the following terms:--

'Notwithstanding anything contained in any other law for the time being in force, any educational institution situated within the limits of the area specified under sub-section (1) shall, with effect from such date as may be notified in this behalf of the State Government, be deemed to be associated with and admitted to the privileges of the University and shall cease to be associated in any way with, or be admitted to any privileges of the Punjab University; and different dates may be appointed for different institutions:

Provided that-

(a) any student of any such institution affiliated to the Punjab University before the said date, who was studying for any degree and diploma examination of the said University shall be permitted to complete his course in preparation therefor and the University shall hold for such students examinations in accordance with the curricula of study in force in Punjab University for such period as may be prescribed by the Statutes or Ordinances or Regulations; and

(b) any such student may, until such examination is held by the University, be admitted to the examination of the Punjab University and be conferred the degree, diploma or any other privileges of that University for which he qualifies on the result of such examination.'

It expressly provides for automatic disaffiliation from Punjab University of all such educational institutions as are situated within the limits of the area in which Guru Nanak University is required to exercise its powers and perform its duties by virtue of sub-section (1) of S. 5. As soon as the notification, dated March 16, 1970, specifying the four named districts in the State of Punjab as the area in which the Guru Nanak University was to exercise its powers and perform its duties was issued and the relevant date under sub-section (3) of S. 5 was notified, the institutions situate within the limits of the said four districts stood disaffiliated form the Punjab University with effect from that date. Section 5(3), therefore directly cuts an inroad into Section 26 (as amended up to 1960) of the Punjab University Act. It really amounts to enactment of a proviso to Section 26. In as much as Section 26 provides that colleges affiliated to the University of Punjab, Lahore, on or before September 27, 1947, located in India shall be deemed to be affiliated to the Punjab University. Section 5(3) of the Guru Nanak University Act clearly carves out an exception to the rule contained in Section 26 of the Punjab University Act. A competent Legislature can amend a statute in respect of its operation in the territories for which it can legislate either by passing an amending Act or by providing to that effect in a separate piece of legislation. The latter course appears to have been adopted by the Punjab Legislature while enacting Section 5(3) of the Guru Nanak University Act which carves out an exception to Section 26 of the Punjab University Act. I think there cannot be any greater fallacy than arguing in this situation that Section 5(3) is not 'a law in respect of the Punjab University' within the meaning of that expression as extracted (subject to relevant modification) from Section 72 of the Punjab Re-organization Act. The Punjab University and the colleges which remained affiliated to it could indeed have no grievance if the impugned law was not passed in respect of that University. I, therefore, fully endorse the finding of Tuli, J., that Section 5(3) of the 1969 Act is a law enacted by the Punjab Legislature in respect of the Punjab University. The question of the Punjab Legislature having exceeded its territorial limits while enacting the said provision cannot possibly arise as the operation of Section 5(3) is confined only to those four districts which are admittedly within its territorial jurisdiction. The mere fact that a law passed by a competent Legislature on a subject within its exclusive legislative field adversely affects some institution outside the State in its activity within the State has never been held to invalidate such law on that ground alone.

18. The word 'law' in the sentence 'until other provision is made by law in respect of the said body corporate' in the closing part of sub-section (1) of S. 72 of the Punjab Re-organization Act merely means law passed by the appropriate competent Legislature. The context in which the expression occurs does not permit its meaning to be restricted to a law enacted by the Parliament alone. Inflexible rules relating to distribution of legislative powers between the States and the Centre are contained in Chapter I of Part XI of the Constitution. The territorial extent of the jurisdiction of the Parliament on the one hand and the State Legislatures on the other is defined in Art. 245. Clause (3) of Art. 246 vests in the Legislature of every State in India the exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in the State List in the Seventh Schedule. That exclusive power is subject only to what is stated in Cls. (1) and (2) of Art. 246 in respect of the exclusive power of the Parliament to make laws on matters enumerated in the Union List and of the Parliament and the State Legislatures to make laws on matters enumerated in the Concurrent List. It is not disputed that Entry 11 in the State List vests in the State Legislature the power to make laws in respect of 'education including Universities'. Law passed by the Punjab Legislature in respect of the Punjab University contained in the Guru Nanak University Act admittedly does not fall within any of the exceptions to the State Legislative power enumerated in Entry 11. There appears to be no warrant for imputing to the Parliament the unexpressed intention of having used the word 'law' (so far as the legislative enactment is concerned) in a sense different from that in which the word is used in Article 246 of the Constitution. Section 72 of the Punjab Reorganization Act is almost a verbatim copy of Section 109 of the States Reorganization Act, 1956. It cannot be argued with any success that the power of all the States in India which came into existence as a result of their reorganization in 1956 to legislate in respect of inter-State corporations was taken away by the Parliament for all times to come with regard to the respective territorial limits of the State Legislatures. A further indication in this respect is available form the scheme of Section 72. Though the Section was enacted for all the inter State statutory corporations which had not been covered by the earlier provisions of Part VII of the Act, the Punjab University and two other institutions were named specifically to be covered by the Section merely for the removal of doubt. The object of the revision does not appear to give some kind of suzerainty or power of governance to the inter-state corporations, but to make their services available to the successor States till such States could make their own arrangements, if they so wanted. It is significant that what the University was expected to continue to do, subject to Central Government's directions, till a law was made by the appropriate Legislature was to 'serve the needs of the successor States'. If the successor States at any time did not want to avail of the services of any of the inter-state corporations referred to in Section 72, their 'services' could be foisted on the successor States for all times to come. This is particularly so in respect of education. This is one of the most important subjects in State Legislative field in relation to linguistic division of States. Sub-section 4 of Section 72 points in the same direction. The amount or proportion of grants to be made by the successor States to the Punjab University were not fixed by the Act, but was left to be determined by the Central Government 'from time to time'. This clearly envisages that it is open to the Central Government to fix the amount or proportion of grants payable at different rates by the successor States from time to time. The only possible reason for making a provision for changing the amount of grants for different States from time to time could be the possible reduction of the area of the concerned successor States in which the University was expected to continue to serve. Mr. Kaushal conceded that the Punjab Government could, by a notification under Section 5(3) of the Punjabi University Act, disaffiliate all the educational institutions in the remaining districts of Punjab, and he could have no objection to the same as the Punjabi University Act was enacted prior to the reorganization of the State. If that had happened or if the State of Haryana had disaffiliated them to the Kurukshetra University under the Kurukshetra University Act, the concerned State could have been justified to ask the Central Government to exonerate that State from liability to make any grant at all to the Punjab University. Section 88 of the Punjab Reorganization Act also gives an indication in the same direction. the laws in force in the erstwhile State of Punjab were directed to remain in force in the successor States unaffected by the reorganization 'until otherwise provided by a competent Legislature' or other competent authority. Even the power of adaptation conferred by Section 89 of that Act was limited to a period of two years where after any desired adaptation or modification could be made only by law made by a competent Legislature or other competent authority. With these observations I record my complete agreement with the finding of Tuli, J., that the Punjab Legislature was competent to enact Section 5(3) of the Guru Nanak University Act for purposes of Section 72(1) of the Punjab Reorganization Act.

19. Though it is indeed not necessary to travel into controversy relating to the extent to which Parliament is authorised by the second part of Article 4(1) of the Constitution to amend the Constitution in the view taken by us on the question of true scope and proper construction of Section 72 of the Punjab Reorganization Act. I wish to record my own conclusions on the subject since the matter was debated by the learned counsel for the parties at quite some length:--

(i) the amendments which can be made to the various provisions of the Constitution (other than those contained in Part III) in the course of enacting a Reorganization Act under Article 2 or 3 of the Constitution by virtue of the power vested in the Parliament to make provisions which are 'supplemental, incidental and consequential' to the law of reorganization must be within the scope, scheme and framework of the Constitution and not contrary thereto;

(ii) only such provisions can be made in exercise of the above-mentioned power as are essential to the effective administration of the State or States to be created by the new law and as may be necessary to give effect to the other provisions of the Reorganization Act;

(iii) the amendments to the Constitution which can be made in exercise of the above-mentioned power are not restricted to the amendment of the First Schedule and the Fourth Schedule to the Constitution, but are nevertheless to be germane to the question of reorganization of the State or States with which the enactment deals;

(iv) only such amendments of any part of the Constitution (other than the First and Fourth Schedules) can be made by way of 'supplemental, incidental and consequential' provisions which are (a) necessary for the purpose of tiding over some temporary difficulty, or (b) necessary to remove some unsurmountable hurdle which would not allow the desired reorganization of the State to take place effectively unless such amendments are made, or (c) necessary to ensure a smooth continuity of the stream of life, law and order in the successor States. Such amendments must be those which are deemed by the Parliament in it wisdom to be necessary to give effect to the provisions of the relevant law of reorganization. The constituent power of the Parliament under Article 4 is, from this point of view, not as wide as the power vested in it under Article 368.

20. For the foregoing reasons and other reasons recorded by my learned brother Tuli, J. I would hold that:--

(i) Section 72 of the 1966 Act has not effectuated any amendment of any part of Article 245, Article 246, or the State List;

(ii) Section 72 of the Act is not capable of being construed in such a manner as to indicate that Parliament has thereby taken over the power of Punjab State Legislature under Entry 11 of the State List in respect of the Punjab University;

(iii) Section 5(3) of the 1969 Act is a law in respect of the Punjab University within the meaning of the relevant expression used in Section 72; and

(iv) Section 5(3) of the 1969 Act is not void for want of territorial nexus; and would accordingly dismiss the petition, though without any order as to costs.

20. Petition dismissed.


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