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Amir-jamia and ors. Vs. Desharath Raj - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 33 of 1968
Judge
Reported inILR1969Delhi202
ActsConstitution of India - Article 226
AppellantAmir-jamia and ors.
RespondentDesharath Raj
Advocates: V.D. Misra and; V.P. Joshi, Advs
Cases ReferredThomson v. University of London.
Excerpt:
.....persons or people at large. the exercise of such power in relation to public makes the authority a public authority. it is difficult to conceive of an authority in the above sense, which would nto be a public authority. if the authority exercises powers over the public, it is ordinarily bound to be regarded as a public authority. a body of persons may become a public authority either because in its inception it is created by a statute or because the governmental authority is conferred upon it later either by statute or even by executive action. the governmental authority to confer degrees on its students was the right derived by the jamia millia from a ntoification issued by the government under the university grants commission act, though jamia millia had existed before the ntoification..........persons or people at large. the exercise of such power in relation to public makes the authority a public authority. it is difficult to conceive of an authority in the above sense, which would nto be a public authority, if authority exercises powers over the public, it is ordinarily bound to be regarded as a public authority. how does an authority gets the power which it exercises over tohers the primary source of all authority is the state or the government itself. in india, we are used to written constitutions and codified laws. the derivation of the power by an authority from the government is, thereforee, usually through the channel of legislation. this is how every public authority is usually thought to be a statutory authority. in the rajasthan state electricity board's caset( ),.....
Judgment:

Inder Dev Dua, J.

(1) By his judgment under appeal, dated 10th April, 1968 in Cw 217 of 1968, Hardy J. quashed the order dated 14th December, 1967 passed by the appellants, who are the relevant office bearers of Jamia Milla Islamia, an Educational Institution deemed to be University under the University Grants Commission Act, 1966, expelling the respondent who was a student of M. A. (Pre) class and debarred him from entering the Campus of the Jamia Millia, mainly on the ground that no show cause ntoice or an opportunity of submitting a written representation or any oral hearing was given to the respondent before the order of expulstion was made against him. Since then, we were informed at the Bar that the respondent was allowed to appear for the M. A. previous examination and he has passed the same. The learned counsel for the respondent made it clear that the appellants do nto now contend that the respondent should be again put back into the M.A. previous class. Indeed, he is said to have been again expelled now from the M.A. final class, but with that we are nto concerned. In the circumstances, thereforee, the sole ground, on which the learned counsel for the appellants thought it fit to challenge the judgment under appeal, was that the Jamia Millia was a private educational institution, which was nto created by any statute and which did nto exercise any statutory powers and, thereforee, it was nto amenable to the supervisory jurisdiction of this Court under Article 226 of the Constitution. The precise legal status of Jamia Millia is that it is a Society registered under the Societies Registration Act. It started receiving substantial grant-in-aid from the Government of India from 1953-54, but is toherwise an autonomous body. By a ntoification dated 19-6-1962 issued by the Government of India under Section 3 of the University Grants Commission Act, 1956, Jamia Millia was deemed to be a University for the purpose of the Act and thereupon all the provisions of the Act applied to it as if it were a University within the meaning of Section 2 of the Act. 'Under Section 18 of the Act, it was the duty of the University Grants Commission to promtoe and coordinate University education to enquire into financial needs of Universities and to allocate and disburse grants-in-aid to them. The Commission was also to require a University to furnish it with such information as may be needed relating to the financial position of the University or the studies undertaken by it together with all the rules and regulations relating to the standards of teaching and examination. Under Section 13, the Commission was entitled to inspect the finance and standards of teaching, examination and research of the Universities. Under Section 14, the Commission is entitled to stop grants to any University which fails to comply with any recommendation made by it under Section 12 or 13. Under Section 20, the Commission was to beguided in the discharge of its functions by directions on questions of policy relating to national purposes as may be given by the Central Government. Section 22 gives the right of conferring degrees only to Universities authorised by law or to an institution deemed to be a University under Section 3 of the Act. Section 22 debars any toher person or authority from conferring degrees or hold in out as being entitled to confer any degree.

(2) The question whether an institution of the above mentioned legal status is amenable to the writ jurisdiction of this Court does nto seem to have been decided in any reported decision and in that sense is a question of first impression, which requires a thorough examination. Article 226 of the Constitution empowers every High Court to issue 'to any person or authority' including in appropriate cases any Government, directons, orders or writs in the nature of the well known prerogative writs or any of them for the enforcement of any of the rights conferred by Part Iii and for any toher purpose. The fundamental Rights embodied in Part Iii of the Constitution are enforceable against 'the State', which is defined in Article 12 to include the Government, the Legislatures and all local or toher authorities. From a perusal of Article 12 and 226, it would appear that the scope of Article 226 is wider than that of Article 12. For, while Article 12 defines the State as including Governments, Legislatures and authorities. Article 226 defines 'any person or authority' including in appropriate cases any Government. For, the word 'authority' used in Article 12 takes its colour from the words 'Governments, Legislatures and local Authorities' preceding it, though it is nto to be construed ejasdem generis with the words preceding it, as the preceding words do nto constitute a genus or category as pointed out by the Supreme Court in Rajasthan State Electricity Board v. Mohan Lal ( ). On the contrary, the powers of the High Court under Article 226 are available against 'any person or authority'. The width of the meaning of these words is indicated by the fact that in appropriate cases, these words may include any Government. Essentially, thereforee, the words 'any person or authority' are much wider than the word 'Government'.

(3) The dictionary meaning of the word 'authority' is a person or body exercising power or having a legal right to command and be obeyed. Article 226 is, thereforee, concerned with such a person or authority, which exercises power over tohers, that is to say, over toher persons or people at large. The exercise of such power in relation to public makes the authority a public authority. It is difficult to conceive of an authority in the above sense, which would nto be a public authority, If authority exercises powers over the public, it is ordinarily bound to be regarded as a public authority. How does an authority gets the power which it exercises over tohers The primary source of all authority is the State or the Government itself. In India, we are used to written Constitutions and codified laws. The derivation of the power by an authority from the Government is, thereforee, usually through the channel of legislation. This is how every public authority is usually thought to be a statutory authority. In the Rajasthan State Electricity Board's caset( ), the Supreme Court was concerned to show that the Board being a statutory authority was included in the definition of 'the State' in Article 12, even though it carried trade or business. The Court had no occasion to consider if a public authority could derive its power from the State toherwise than by the channel of Legislation. In actual life, however, certain powers of the State could be conferred on a body without Legislation. A body exercising such powers, it would appear, be a public authority, even if it is nto created by Legislation. For instance, the Government sometimes makes what are called executive resolutions, which is a method of exercising its executive power. By such an executive act, the Government can form a body to perform public functions including exercise of Governmental powers over toher previous or instance, the Rajasthan Canal Authority was created by such an executive resolution for the construction and development of the Rajasthan Canal and the surrounding areas. The Ministry of defense had also formed a Board which used to consider and pay exgratia, claims for compensation for harm caused by military personnel to the civilians. Such bodies though non-statutory, were analogous to Government departments, inasmuch as they derived powers from the State and acted as part of the Government. It could nto be doubted that they were amenable to the High Court jurisdiction under Article 226 in the same way as a regular Government Department was amenable. It was nto surprising, thereforee, that the Criminal Injuries Compensation Board appointed by the British Government to consider claims of and pay compensation to victims of Criminal offences was held to be amenable to a writ of certiorari in Regime v. Criminal Injuries Compensation Board ( ), a decision relied upon in the judgment under appeal; A learned British author has observed that this is believed to be the first reported case (in U.K.) in which it has been held that certiorari will issue to quash the proceedings of a tribunal neither created by statute nor exercising jurisdiction conferred by statute (S.A. de Smith Judicial Review of Administrative Action, 2nd Edition (1968) 391, foto ntoe 35). On the principle stated above however, it is the derivation of the power from the State and its exercise over toher person which constitutes a public authority contemplated by Article 226. While normally such a public authority is created by a statute, it may come into existence without Legislation provided that it derives the power from the State and exercises it over toher persons.

(4) Examples of such public authorities, which would fall under Article 226 and yet are nto created by Statute are nto lacking. In Modam Mohan Sen Gupta v. State of West Bengal ( ), it was held that a cooperative society, though formed by volition of its members, yet registered according to legal requirements and enjoying powers under the Bengal Cooperative Societies Act and subject to control of the Government there under was a public authority, particularly, because it was nto a profit making body. A Division Bench of this Court in Mohinder Singh v. Union of India ( ), considered that the Society registered under the Societies Registration Act for the management of the Government owned Lawrance Schools at Sanawar could be regarded as an authority created under a statute on which some powers are conferred by law. In C. D. Sakkilar v. R. Krishnamoorthy ( ), Subba Rao, J. as he then was, held that the principal of a private educational institution maintained from the funds of a public trust and affiliated to a University and governed by the Rules of the University and the Schemes framed by the High Court, is a person holding a quasi-public office and, thereforee, amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution. In Sohan Lal v. Union of India( ) the Supreme Court observed in paragraph (7) as follows :-

'NORMALLY,a writ of mandamus does nto issue to or an order in the nature of mandamus is nto made against a private individual. Such an order is made against a person directing him to do some particular tiling, specified in the order, which appertains to his office and is in the nature of a public duty. If It had been proved that the Union of India and the appellant had colluded, and the transaction between them was merely colourable, entered into with a view to deprive Jagan Nath of this rights, jurisdiction to issue a writ to or make an order in the nature of mandamus against the appellant might be said to exist in a Court.'

This observation illustrates the fact that the essence of a public office or authority is the derivation of power by it from the State. Even a private person who derives such power from the State might become amenable to a writ under Article 226. In State of Assam v. Ajit Kumar Sarma (7) Supreme Court considered the question whether a writ could be issued against the governing body of a private college aided by the State. The Court left the question open with the following observations in paragraphs (13) :

'THENwe come to the question whether a writ could have been issued against the Governing Body of the College We find however that there is no appeal by the College against the order of the High Court issuing a writ against it. In these circumstances we do nto think that we can interfere with the order of the High Court insofar as it is against the Governing Body of the College. At the same time we should like to make it clear that we should nto be taken to have approved of the order of the High Court against the Governing Body of the College in circumstances like the present and that matter may have to be considered in a case where it properly arises.'

(5) In considering what is an 'authority' for the purposes of Article 226, it is useful to bear in mind that such an authority may have a legal personality or existence separate from that of the Government. thereforee, those decisions which were concerned with the question whether an employee of an authority having a legal existence or personality separate from that of the Government can be considered an employee of the Government for the purposes of Article 309, 310 and 311 of the Constitution are nto relevant.

(6) In the present case, we are considering the question whether the Jamia Millia is a public authority amenable to issue of directions in the nature of certiorari. The classic statement of the requirements for the issue of certiorari and prohibition are stated in R v. Electricity Commissioner( ) in the following words :

'WHEREVERany body of persons having legal authority to determine questions affecting the rights of subjects having the duty to act judicially.'

acts in excess of their legal authority the writ may issue. Firstly, Jamia Millia is a body of persons which was originally registered as a Society under the Societies Registration Act. The second question is whether it enjoys legal authority. It is well known that it has a large number of students on its roll. Article 41 of the Constitution directs the State, within the limits of its economic capacity, to take effective provision for securing the right to education. It is because education of people is primarily function of the State that every School and College in this country is entitled to grants-in-aid from the State. To this extent Jamia Millia is discharging a State function. In doing so, it cannto be regarded as a private institution. For, it is discharging a public function. It is, thereforee, subject to public duties and rights. For instance, under Article 28 of the Constitution, it is prohibited from compelling a student to attend religious worship. Under Article 29 it is prohibited from denying admission to a student on grounds of religion, race, caste or any of them. Article 30 prohibits the State from discriminating against an institution like the Jamia Millia on the ground that it is under the management of a minority whether based on religion or language. This institution is, thereforee, subject to Constitutional provisions of a public nature. Under the University Grants Commission Act, 1956, it is also subject to the Control of the Commission in various matters already referred to above. It may be useful to repeat, however, that the Jamia Millia is deemed to be a University under Section 3 of the Act. The very concept of a University is universality. A University cannto be a private institution in the sense that it is nto subject to the provisions of the Constitution or the provisions of law, particularly when it receives large grants-in-aid from the State. Under Section 22 of the Act, the Jamia Millia is given the authority to confer degrees. Section 22 makes it clear that the Jamia Millia would have no authority to confer or grant any degree if it had nto been ntoified by the Government to be deemed to be a University. Section 22 specifically uses the words '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'. The words 'person or authority' are the same as used in Article 226. The power to confer a degree is a statutory power of Governmental nature. Jamia Millia is, thereforee, a person or authority enjoying this power of Governmental nature expressly conferred st the Jamia Millia by the students even on the basis of a contract. But, the right to education is nto a merely contractual right. It finds a place in the Constitution and the State is directed to provide for the securing of such a right of the students. The grave prejudice caused to a student by expulsion is obvious. The Jamia Millia has, thereforee, the authority to determine questions affecting the rights of subjects. Lastly, the nature of the action to expel a student is such that the authority exercisingsuch a power must act judicially. After the decision of the House of Lords in Ridge v. Baldwin, ( ) expressly approved by the Supreme Court in Associated Cement Ltd. v. P. N. Sharma, ( ) and Bhagwan v. Ramchander( ) it is established law that the duty to act judicially is to be inferred from the nature of the power to be exercised and does nto have to be expressly imposed on the authority exercising the power. A student is expelled when it is alleged that he is guilty of indiscipline and after the authority applies its mind to the question whether he committed the act of indiscipline alleged against him. This is in the nature of an adjudication. It is necessary, thereforee, that a student against whom such a serious action is proposed to be taken must be given a reasonable opportunity of being heard against the proposed action. It is thus clear that all the requirements of the amenability to Article 226 are satisfied in the present case in regard to Jamia Millia.

(7) To sum up, a body of persons may become a public authority either because in its inceptional it is created by a statute or because the Governmental authority is conferred upon it later either by statute or even by executive action. The Governmental authority to confer degrees on its students was the right derived by the Jamia Millia from a ntoification issued by the Government under the University Grants Commission Act, though Jamia Millia had existed before the ntoification as a privately formed institution. From the moment the power to confer degrees was given to Jamia Millia under a statute which expressly called it an 'authority' there can be little doubt that it was an authority of a public nature and as such amenable to the jurisdiction of this Court under Article 226. Our decision to regard it as a public authority is, thereforee, fully covered by the principle underlying Article 226 and Article 12 of the Constitution, though we may be adding a new example of the principle. The novelty is concerned only with the fact that the Jamia Millia became a public authority nto because it was created by a statute, but because it was recognised as a University and given the power to confer degrees under the statute.

(8) If the newness of this example of a public authority requires any justification, it may be pointed out that in all the common law jurisdictions the scope of the powers of the High Courts to issue writs and directions in the nature of certiorari has been constantly expanding to meet 'the felt necessities of the times'. The latest example of such expansion in India is the decision of the Supreme Court in the Rajasthan Electricity Board case referred to above, which overruled construction of Article contained in the decisions of the Madras, Mysore, and Punjab High Courts in the University of Madras v. Shanta Rai( ), B. W. Devdas v. Selection Committee for Admission of students to the Karnatak Engineering College ( ) and Kishan Gopal Ramchand Sharma v. Punjab University ( ) which had thought that the Universities and the private Colleges were autonomous bodies and nto in the nature of Government authorities. In England the rule that a lis between two parties to be decided by a public authority was essential before the authority could be held to act quasi-judicially was modified by the Courts, who held that the existence of such a lis was nto necessary in all cases and the authority may sometimes act directly against a party without such a party being opposed by antoher. The second step is widening the scope of the Court's power was taken by the House of Lords in Ridge v. Baldwin, (1964) Ac 40, holding that the duty to act judicially is imposed on a public authority by the very nature of the power which it exercises and nto necessarily by the express words of a statute. In the United States the terminal part of Section 1 of Amendment Xiv of the Constitution stated that the State shall nto deprive any person of life, liberty or property without due process of law nor deny to any person the equal prtoection of the laws. The anxiety of the U. S. Supreme Court and toher Federal Courts to prevent discrimination against coloured persons by the State necessitated a gradual expansion of the concept of State action. The result was that the State action included nto only the action of the Government proper, but the action of all agencies and instrumentalities of the Government. An institution discharging public functions and deriving authority from the State was prevented from discriminating against coloured persons on the ground that it amounted to action by the State contrary to the terminal part of Section I of Amendment Xiv of the U. S. Constitution.

(9) Before closing, we would like to make it clear that as a rule we think that the educational institutions like the Jamia Millia should have the exclusive jurisdiction to deal with their students as an internal matter of discipline. The rule was laid down early in Thomson v. University of London.( ) In Principal, Patna College, v. K. S. Raman ( ) the Supreme Court observed that where the question involved was one of interpreting regulations framed by the academic council of a University, the High Court should ordinarily be reluctant to issue a writ of certiorari where it is plain that the regulation in question is capable of two constructions and it would generally nto be expedient for the High Court to reverse a decision of the educational authorities on the ground that the construction placed by them appears to the High Court less reasonable than the alternative construction which it is pleased to accept.

(10) The educational institutions, no less than toher public authorities, are, however, bound to observe rules of natural justice before exercising the drastic powers of expulsion against their own students. If they failed to do so, this Court would be constrained to intervene, though reluctantly, as the learned single Judge did in this case.

(11) For the above reasons, we are satisfied that the directions issued by the learned single Judge in the judgment under appeal were amply justified. We, thereforee, dismiss the appeal with costs.


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