SISTERS OF ST. JOSEPH OF CLUNY versus THE STATE OF WEST BENGAL & ORS. on 18 April 2018

[2018] 3 S.C.R. 1033

SISTERS OF ST. JOSEPH OF CLUNY

v.

THE STATE OF WEST BENGAL & ORS.

(Civil Appeal No. 3945 of 2018)

APRIL 18, 2018

[ADARSH KUMAR GOEL AND R. F. NARIMAN, JJ.]

National Commission for Minority Educational InstitutionsAct, 2004:

ss.10(1) and 11(f) – Declaration of minority status toeducational institution – Appellant-Society established the Collegein question as a secular institution – Thereafter, sought minoritystatus to the College – National Commission for Minority EducationalInstitutions (NCMEI) declared the College as minority educationalinstitution and issued minority status certificate – The Society aswell as Governing Body of the College filed writ petition – HighCourt held the declaration and consequent issuance of the certificateas invalid on the ground that NCMEI had no original jurisdictionto make such declaration – On appeal, held: Section 11(f) is a wideprovision which empowers NCMEI to decide all questions relatingto the status of an institution as a minority institution and declareits status as such – After Amendment Act, 2006, Competent Authorityhas the power for establishing a minority educational institution –However, for declaration of minority status to educational institution,at any stage, post establishment, NCMEI has the power – Thus, inthe present case, s. 11(f) confers jurisdiction on NCMEI to issuecertificate regarding minority status to the institution in question –Therefore the orders by NCMEI are valid – Constitution of India –Art. 30.

Disposing of the appeals, the Court

HELD: 1. Article 30 of the Constitution of India grants afundamental right to all minorities, whether based on religion orlanguage, to establish and administer educational institutions oftheir choice. Section 11(f) empowers the National Commissionfor Minority Educational Institutions to decide all questionsrelating to the status of an institution as a minority educationalinstitution and to declare its status as such. The expression “allquestions” as well as the expression “relating to”, which are

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Awords of wide import, clothe the NCMEI with the power to decideany question that may arise, which may relate directly or indirectly,with respect to the status of an institution as a minority educationinstitution. The power under Section 11(f), read by itself, wouldclothe the NCMEI with the power to decide any question thatmay arise with regard to the right to establish and/or administerBeducational institutions by a minority. It also includes the powerto declare such institution as a minority educational institution,which is established and administered as such, so that it can availof the fundamental right guaranteed under Article 30 of theConstitution. [Para 16][1048-D-F]

C2. However, Section 10(1), which was introduced at thesame time as Section 11(f) by the Amendment Act of 2006, carvesout one facet of the aforesaid power contained in Section 11(f),namely the grant of a no objection certificate to a minorityeducational institution at its inception. Thus, any person whoDdesires to establish a minority educational institution after theAmendment Act of 2006 came into force, must apply only to thecompetent authority for the grant of a no objection certificate forthe said purpose. It cannot be said that the said powers areconcurrent. Harmoniously read, all applications for theestablishment of a minority educational institution after theEAmendment Act of 2006 must go only to the competent authorityset up under the statute. On the other hand, for the declarationof its status as a minority educational institution at any stage postestablishment, the NCMEI would have the power to decide thequestion and declare such institution’s minority status. [ParaF17][1048-G-H; 1049-A]

3. The fundamental right under Article 30 cannot be waived.The University of North Bengal has accepted the NCMEI’s orderdated 5.11.2009 in which the NCMEI had gone into the questionof the college’s minority status. It would not, therefore, be in thefitness of things to send back this matter to be decided afresh atGthe behest of a governing body which can no longer claim to governthe college set up by the society. As the new governing body hasbeen constituted on the footing that the College is a minorityeducational institution, the parallel governing body, which claimsto continue as such, has no legs to stand after the formation of a H

new governing body. This being the case, the matter need notbe sent back to the NCMEI for a de novo hearing on merits.[Para 22][1050-G-H; 1051-B]

4. Insofar as existing minority institutions are concerned,Section 11(f) clearly confers jurisdiction on the NCMEI to issuea certificate regarding the status of the minority educationalinstitution. The order dated 23.10.2007 and the certificate dated25.10.2007 are declared to be valid in law. [Paras 21, 23][1050-E; 1051-C]

Governing Body OF P.A.E.M. College v. State ofJharkhand decided by Supreme Court on 6.12.2012;Corporate Educational Agency v. James Mathew (2017)15 SCC 595 – relied on.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3945of 2018.

From the Judgment and Order dated 13.07.2016 of the High Courtof Calcutta, in FMA No. 3579 of 2013.

WITH

C. A. Nos. 3946, 3947, 3948, 3949 and 3950 of 2018.

Sanjay Hegde, Shri Chander Udai Singh, Salman Khurshid,Dr. Rajeev Dhawan, Sr. Advs., Fuzail Ahmad Ayyubi, Abdul Qadir, IbadMushtaq, Ms. Aditi Gutpa, Pranjal Kishore, Romy Chacko, Varun Mudgal,Chandan Kumar Mandal, Imtiaz Ahmed, Mrs. Naghma Imtiaz, Mohd.Farhan Khan, Ahmed Zargham, Ms. Amra Moosavi, Ms. Gitanjali Kapur,M. Roshni Anand, Ms. Amna, M/s. Equity Lex Associates, ArunabhChowdhury, Karma Dorjee, Ms. Shruti Choudhry, Anupam Lal Das,Harsh Hiroo Gursahani, Ms. Astha Sharma, Amit Varma, M/s. PLRChambers and Co., T. V. George, Dushyant Kumar, Rakesh Taneja,Pijush K. Roy, Mrs. Kakali Roy, Rajan K. Chourasia, Advs. for theappearing parties.

The Judgment of the Court was delivered by

R. F. NARIMAN, J. 1. Leave granted.

2. In order to decide the present batch of appeals, for the sake ofconvenience, the facts from the civil appeal arising out of Special Leave A

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APetition (Civil) No.35786 of 2016 have been taken. The Sisters of St.Joseph of Cluny is a society registered under the West Bengal SocietiesRegistration Act, 1961, being founded on 26.3.1973. Clause 3(b) of theMemorandum of Association of the petitioner-society states:

“To acquire, take over, rent, provide, establish, aid, maintain,Badminister and/or run colleges, schools, institutions, hostels, houses,associations, libraries, reading rooms, or any other activity witheducation for its purpose for all persons, primarily for Catholicsbut also for all other persons, irrespective of religion, race, caste,community or social status.”

C3. The society, in a letter dated 16.12.1997 addressed to theInspector of Colleges, North Bengal University, made it clear that it didnot seek minority status or special concessions – it wished to establish acollege on secular lines. On 10.1.1998, the Inspector of Colleges, NorthBengal University, submitted his inspection report, in which he mentionedthat originally the society did desire to have minority status for theDproposed college. However, they subsequently changed their mind. As aresult, the Deputy Secretary, Higher Education Department, Governmentof West Bengal, by its letter dated 21.7.1998, approved the proposal forthe establishment of Cluny Women’s College, on the footing that it wouldbe a non-minority secular institution. On this basis, the first governingEbody of the college was constituted in accordance with Statute 1 of theStatutes relating to the Governing Bodies of Colleges of North BengalUniversity. On 13.9.2004, the University granted permanent affiliationto Cluny Women’s College from the academic year 2003-2004.

4. Following yet another change of heart, the society issued aFletter to the Chairman, National Commission for Minority EducationalInstitutions (hereinafter referred to as the NCMEI), dated 27.6.2007,seeking the issuance of a status certificate of a minority educationalinstitution for Cluny Women’s College. The NCMEI passed an ex-parteorder declaring the said women’s college as a minority educationalinstitution on 23.10.2007. Pursuant to this order, on 25.10.2007, the NCMEIGissued a minority status certificate. On 5.9.2008, the Registrar, Universityof North Bengal, filed an application for cancellation of the saidcertificate. This was dismissed by the NCMEI on 5.11.2009.

5. These events led to the society filing a writ petition, being W. P.No. 4406 of 2010, praying:H

“A. A declaration that statute 1 of the statutes relating to governingbodies of colleges of University of North Bengal is ultra vires andunconstitutional;

B. A writ of mandamus or any other writ, direction or orderrestraining the 3[rd] respondent from exercising the functions of thegoverning body of Cluny Women’s College and to restrain themfrom interfering with the functions of the governing body of ClunyWomen’s College constituted by the petitioner society.”

6. Likewise, the Governing Body, Cluny Women’s College(respondent No.3 herein), which was the governing body set up underthe statute of the University, also filed a writ petition, being W. P. No.5002(W) of 2010, in which it prayed for:

“(a) A writ of and/or in the nature of mandamus do issue directingthe respondent authorities to forthwith cancel and/or rescind and/or withdraw the purported declaration being F. No. 506 of 2007dated 25[th] October, 2007 issued by the respondent no.3.

(b) A writ of and/or in the nature of mandamus do issue directingthe respondents, particularly the respondent nos. 4, 5 and 6, toforbear from acting and/or further acting and/or taking any stepsand/or claiming any right on the basis of the purported declarationbeing F. No. 506 of 2007 dated 25[th] October, 2007 issued by therespondent no.3 in any manner whatsoever.

(c) A declaration do issue declaring that the respondent no.2 doesnot have any jurisdiction to declare an existing educational institutionto be a minority educational institution.

(d) A writ of and/or in the nature of mandamus do issue directingthe respondents to forthwith cancel and/or rescind and/or withdrawthe purported letter dated 20[th] February, 2010 issued by therespondent no.9.

(e) A writ of and/or in the nature of mandamus do issue directingthe respondents, particularly the respondent no.9, to allow thepetitioner to operate the bank account being S.B. Account No.3936 0201 000 3495 maintained with Union Bank of India,Kalimpong Branch, District-Darjeeling as per the Resolution ofthe petitioner adopted on 29[th] January, 2010.

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A(f) A writ of and/or in the nature of certiorari do issue commandingthe respondents to transmit the entire records of the case to thisHon’ble Court forming the basis of the purported declaration beingF. No. 506 of 2007 dated 25[th] October, 2007 issued by therespondent no.3 and the purported letter dated 20[th] February, 2010issued by the respondent no.9 and on being so certified quash theBsame so that conscionable justice may be rendered.”

7. A learned single Judge disposed of both the writ petitions holdingthat the NCMEI had no original jurisdiction to declare the minority statusof Cluny Women’s College, as a result of which the order dated23.10.2007 and the consequent certificate issued thereupon were declaredCas invalid. An appeal to the Division Bench met with the same result.

8. Shri Sanjay R. Hegde, learned senior counsel appearing onbehalf of the NCMEI, has argued before us that on a true constructionof Sections 10(1) and Section 11(f) of the National Commission forMinority Education Institutions Act, 2004 (hereinafter referred to as theD2004 Act), an institution which seeks a declaration as a minorityeducational institution has the option to apply either to the competentauthority established under the 2004 Act, or apply directly to the NCMEI.According to the learned senior counsel, the power to decide an originalapplication, which is contained in Section 11(f), is separate and distinctEfrom the power contained in Section 12A and 12B, which is an appellatepower of the NCMEI. According to the learned senior counsel, the 2004Act must thus be construed to be an Act which confers concurrentpower on three sets of authorities, namely, the competent authority setup by the statute, authorities set up by the Central or the State Governmentfor this purpose, as well as the NCMEI. According to him, therefore, theFjudgment was wrong in law and should be set aside.

9. Shri Chander Uday Singh, learned senior counsel appearing onbehalf of the petitioner-society, was at pains to point out that even underthe impugned judgment, it was clear that there was no competent authorityset up under the statute for the society to apply to, to establish a newGcollege at the time such application was made by the society.Consequently, according to the learned senior counsel, it is clear that itwas only the NCMEI which the society could have approached. Further,according to the learned senior counsel, the institution, being a minorityinstitution which had already been established prior to the coming intoHforce of the 2004 Act, could only go under Section 11(f) to have its status declared as a minority educational institution. Section 10(1),according to the learned senior counsel, is only for the limited purpose ofestablishing a new minority institution for which alone one would have togo to the competent authority set up under the 2004 Act. According tothe learned senior counsel, the impugned judgment, therefore, deservesto be set aside.

10. Shri Rajeev Dhavan, learned senior counsel appearing on behalfof respondent No.3, referred us to the National Commission for MinoritiesAct, 1992 and also referred to various provisions of the 2004 Act insome detail. He pointed out, however, that the 2004 Act was amendedin 2006 and then in 2010, leading to the position that Section 10 wouldonly deal with the grant of a certificate to a person who desires to establisha minority educational institution for the first time. Otherwise, thefunctions of the NCMEI under Section 11(f) would be wide enough toinclude the power to declare the status of minority educational institutions,which were established before the commencement of the 2004 Act.According to the learned senior counsel, it was clear that Cluny Women’sCollege had been set up as a secular college and it was only in 2007 thata volte-face was taken by the society to get it declared as a minorityeducational institution. As none of the orders passed by the NCMEIhave looked in detail into the aspect of whether such a college can bedeclared to be a minority educational institution, after it has opted to bea secular institution, this is a case which should be remanded to theNCMEI to decide.

11. We have heard learned counsel appearing for all the parties.

12. The 2004 Act was set up with the initial idea of providingdirect affiliation for minority educational institutions to central universities.It was subsequently amended twice in order to further broad base andexpand the functions as well as the quasi-judicial powers of the NCMEI.The sections relevant for our discussion are set out hereinbelow:

“2. Definitions.— In this Act, unless the context otherwiserequires,—

(aa) “appropriate Government” means,—

(i) in relation to an educational institution recognized for conductingits programmes of studies under any Act of Parliament, the CentralGovernment; and

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A(ii) in relation to any other educational institution recognized forconducting its programmes of studies under any State Act, a StateGovernment in whose jurisdiction such institution is established xxx xxx xxx

(c) “Commission” means the National Commission for MinorityBEducational Institutions constituted under section 3; (ca) “Competent authority” means the authority appointed by theappropriate Government to grant no objection certificate for theestablishment of any educational institution of their choice by theminorities; C

Section 10 has been amended in three stages since the enactmentof the 2004 Act as follows:

“Stage I (as enacted in 2004)

10. Right of a Minority Educational Institution to seekDaffiliation to a Scheduled University:

(1) Notwithstanding anything contained in any other law for thetime being in force, a Minority Educational Institution may seekrecognition as an affiliated college of a Scheduled University ofits choice.

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(2) The Scheduled University shall consult the Government of theState in which the minority educational institution seeking affiliationunder sub-section (1) is situated and views of such Governmentshall be taken into consideration before granting affiliation.

Stage II (as amended in 2006)

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10. Right to establish a Minority Educational Institution:

(1) Any person who desires to establish a Minority EducationalInstitution may apply to the Competent authority for the grant ofno objection certificate for the said purpose.

(2) The Competent authority shall,-

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(a) on perusal of documents, affidavits or other evidence, if any;and

(b) after giving an opportunity of being heard to the applicant,decide every application filed under sub-section (1) as expeditiouslyas possible and grant or reject the application, as the case may be:H

Provided that where an application is rejected, the Competentauthority shall communicate the same to the applicant.

(3) Where within a period of ninety days from the receipt of theapplication under sub-section (1) for the grant of no objectioncertificate- (a) the Competent authority does not grant such certificate; or (b) where an application has been rejected and the same has notbeen communicated to the person who has applied for the grantof such certificate, it shall be deemed that the Competent authority has granted a noobjection certificate to the applicant.

(4) The applicant shall, on the grant of a no-objection certificateor where the Competent authority has deemed to have grantedthe no objection certificate, be entitled to commence and proceedwith the establishment of a Minority Educational Institution inaccordance with the rules and regulations, as the case may be,laid down by or under any law for the time being in force.

Explanation.- For the purpose of this section,- (a) “applicant” means of person who makes an application undersub-section (1) for establishment of a Minority EducationalInstitution; (b) “no objection certificate” means a certificate stating therein,that the Competent authority has no objection for the establishmentof a Minority Educational Institution.

Stage III (as amended in 2010)

—10. Right to establish a Minority Educational Institution.

(1) Subject to the provisions contained in any other law for thetime being in force, any person, who desires to establish a MinorityEducational Institution may apply to the competent authority forthe grant of no objection certificate for the said purpose.

(2) The Competent authority shall,—

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A(a) on perusal of documents, affidavits or other evidence, if any;and (b) after giving an opportunity of being heard to the applicant,decide every application filed under sub-section (1) as expeditiouslyas possible and grant or reject the application, as the case may be:

BProvided that where an application is rejected, the Competentauthority shall communicate the same to the applicant.

(3) Where within a period of ninety days from the receipt of theapplication under sub-section (1) for the grant of no objectioncertificate,—C

(a) the Competent authority does not grant such certificate; or (b) where an application has been rejected and the same has notbeen communicated to the person who has applied for the grantof such certificate, Dit shall be deemed that the Competent authority has granted a noobjection certificate to the applicant.

(4) The applicant shall, on the grant of a no objection certificateor where the Competent authority has deemed to have grantedthe no objection certificate, be entitled to commence and proceedEwith the establishment of a Minority Educational Institution inaccordance with the rules and regulations, as the case may be,laid down by or under any law for the time being in force.

Explanation.—For the purposes of this section,—

(a) “applicant” means any person who makes an application underFsubsection (1) for establishment of a Minority EducationalInstitution; (b) “no objection certificate” means a certificate stating therein,that the Competent authority has no objection for the establishmentof a Minority Educational Institution.”GSection 11 has been amended since the enactment of the 2004Act as follows:

“Section 11 (as enacted in 2004)

11. Functions of Commission.—Notwithstanding anything H

contained in any other law for the time being in force, theCommission shall- (a) advise the Central Government or any State Government onany question relating to the education of minorities that may bereferred to it; (b) look into specific complaints regarding deprivation or violationof rights of minorities to establish and administer educationalinstitutions of their choice and any dispute relating affiliation to aScheduled University and report its findings to the CentralGovernment for its implementation; and

(c) to do such other acts and things as may be necessary, incidentalor conducive to the attainment of all or any of the objects of theCommission.

Section 11 (as amended in 2006)

11. Functions of Commission.— Notwithstanding anythingcontained in any other law for the time being in force, theCommission shall—

(a) advise the Central Government or any State Government onany question relating to the education of minorities that may bereferred to it; (b) enquire, suo motu, or on a petition presented to it by anyMinority Educational Institution, or any person on its behalf intocomplaints regarding deprivation or violation of rights of minoritiesto establish and administer educational institutions of their choiceand any dispute relating to affiliation to a University and report itsfinding to the appropriate Government for its implementation;

(c) intervene in any proceeding involving any deprivation or violationof the educational rights of the minorities before a court with theleave of such court; (d) review the safeguards provided by or under the Constitution,or any law for the time being in force, for the protection ofeducational rights of the minorities and recommend measures fortheir effective implementation; (e) specify measures to promote and preserve the minority status A

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1044SUPREME COURT REPORTS

[2018] 3 S.C.R.

Aand character of institutions of their choice established byminorities; (f) decide all questions relating to the status of any institution as aMinority Educational Institution and declare its status as such; (g) make recommendations to the appropriate Government forBthe effective, implementation of programmes and schemes relatingto the Minority Educational Institutions; and (h) do such other acts and things as may be necessary, incidentalor conducive to the attainment of all or any of the objects of theCommission.”

CSection 12, 12A, 12B, 12C, 12F and Section 22 are as follows:

“12. Powers of Commission.—

(1) If any dispute arises between a minority educational institutionand a University relating to its affiliation to such University, theDdecision of the Commission thereon shall be final.

(2) The Commission shall, for the purposes of discharging itsfunctions under this Act, have all the powers of a civil court tryinga suit and in particular, in respect of the following matters, namely:—

(a) summoning and enforcing the attendance of any person fromEany part of India and examining him on oath; (b) requiring the discovery and production of any document;

(c) receiving evidence on affidavits;

(d) subject to the provisions of sections 123 and 124 of the IndianFEvidence Act, 1872, (1 of 1872) requisitioning any public recordor document or copy of such record or document from any office; (e) issuing commissions for the examination of witnesses ordocuments; and (f) any other matter which may be prescribed.

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3) Every proceeding before the Commission shall be deemed tobe a judicial proceeding within the meaning of sections 193 and228, and for the purposes of section 196, of the Indian Penal Code(45 of 1860) and the Commission shall be deemed to be a civilcourt for the purposes of section 195 and Chapter XXVI of theH

Code of Criminal Procedure, 1973 (2 of 1974).].

—12A. Appeal against orders of the Competent authority.

(1) Any person aggrieved by the order of refusal to grant noobjection certificate under sub-section (2) of section 10 by theCompetent authority for establishing a Minority EducationalInstitution, may prefer an appeal against such order to theCommission.

(2) An appeal under sub-section (I) shall be filed within thirtydays from the date of the order referred to in sub-section (I)communicated to the applicant:

Provided that the Commission may entertain an appeal after theexpiry of the said period of thirty days, if it is satisfied that therewas sufficient cause for not filing it within that period.

(3) An appeal to the Commission shall be made in such form asmay be prescribed and shall be accompanied by a copy of theorder against which the appeal has been filed.

(4) The Commission, after hearing the parties, shall pass an orderas soon as may be practicable, and give such directions as maybe necessary or expedient to give effect to its orders or to preventabuse of its process or to secure the ends of justice.

(5) An order made by the Commission under sub-section (4) shallbe executable by the Commission as a decree of a civil court andthe provisions of the Code of Civil Procedure, 1908 (5 of 1908),so far as may be, shall apply as they apply in respect of a decreeof a civil court.

12B. Power of Commission to decide on the minority statusof an educational institution.—

(1) Without prejudice to the provisions contained in the NationalCommission for Minorities Act, 1992 (19 of 1992), where anauthority established by the Central Government or any StateGovernment, as the case may be, for grant of minority status toany educational institution rejects the application for the grant ofsuch status, the aggrieved person may appeal against such orderof the authority to the Commission.

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(2) An appeal under sub-section (1) shall be preferred within thirtydays from the date of the order communicated to the applicant:Provided that the Commission may entertain an appeal after theexpiry of the said period of thirty days, if it is satisfied that therewas sufficient cause for not filing it within that period.

B(3) An appeal to the Commission shall be made in such form asmay be prescribed and shall be accompanied by a copy of theorder against which the appeal has been filed.

(4) On receipt of the appeal under sub-section (3), the Commissionmay, after giving the parties to the appeal an opportunity of beingCheard, decide on the minority status of the educational institutionand shall proceed to give such direction as it may deem fit and, allsuch directions shall be binding on the parties.

Explanation.— For the purposes of this section and section 12C,“authority “ means any authority or officer or commission whichDis established under any law for the time being in force or underany order of the appropriate Government, for the purpose ofgranting a certificate of minority status to an educational institution.

12C. Power to cancel.—

The Commission may, after giving a reasonable opportunity ofEbeing heard to a Minority Educational Institution to which minoritystatus has been granted by an authority or Commission, as thecase may be, cancel such status under the following circumstances,namely:- (a) if the constitution, aims and objects of the educational institution,Fwhich has enabled it to obtain minority status has subsequentlybeen amended in such a way that it no longer reflects the purposeor character of a Minority Educational Institution; (b) if, on verification of the records during the inspection orinvestigation, it is found that the Minority Educational InstitutionGhas failed to admit students belonging to the minority communityin the institution as per rules and prescribed percentage governingadmissions during any academic year.

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12F. Bar of jurisdiction.— No court (except the Supreme Court H

and a High Court exercising jurisdiction under articles 226 and227 of the Constitution) shall entertain any suit, application or otherproceedings in respect of any order made under this Chapter.

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—22. Act to have overriding effect.

The provisions of this Act shall have effect notwithstandinganything inconsistent therewith contained in any other law for thetime being in force or in any instrument having effect by virtue ofany law other than this Act.”

13. The National Commission for Minority Educational InstitutionsAct, as it originally stood in 2004, by Section 10 only concerned itselfwith the recognition of minority educational institutions to an affiliatedcollege of a scheduled university of its choice. At this stage, the functionsof the NCMEI were limited to only three things, namely, an advisoryfunction under sub clause (a); looking into specific complaints relating todeprivation or violation of rights of minorities to establish and administereducational institutions of their choice and any disputes relating toaffiliation to scheduled universities under sub-clause (b); and a residuaryclause to do all such other acts as may be necessary to the attainment ofthe objects of the NCMEI under sub-clause (c). A sea change cameabout by the Amendment Act of 2006. By this amendment, a personwho desires to establish a minority educational institution is to apply tothe competent authority for a no objection certificate for the said purposeunder Section 10. Concomitantly, under Section 11, the functions andpowers of the NCMEI were expanded beyond the original sub-clauses(a) to (c) referred to hereinabove, to include, under sub-clause (f),decisions as to all questions relating to the status of any institution as aminority educational institution and declaration of its status as such. Thesame Amendment Act of 2006 also conferred powers of appeal againstorders of the competent authority to the NCMEI under Section 12A aswell as over authorities that were established by the Central or StateGovernment, who rejected applications for the grant of minority statusto an educational institution, under Section 12B. A power of cancellationwas also vested in the NCMEI to cancel a certificate granted either byan authority or the NCMEI under certain circumstances.

14. The Amendment Act of 2010 added the expression “subjectto the provisions contained in any other law for the time being in force…”

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Ato Section 10(1) of the 2004 Act.

15. At first blush, it does appear that there is a clash between theprovisions of Section 10(1) and Section 11(f) of the 2004 Act.Harmoniously construed, however, it would be clear that the NCMEI’spowers under Section 11(f) are to be exercised, notwithstanding anythingBcontained in any other law for the time being in force. On the otherhand, the competent authority who grants a no objection certificate underSection 10 can only do so subject to the provisions contained in anyother law for the time being in force.

16. Secondly, Section 11(f) is a very wide provision whichCempowers the NCMEI to decide all questions relating tothe status of aninstitution as a minority educational institution and to declare its status assuch. The expression “all questions” as well as the expression “relatingto”, which are words of wide import, clothe the NCMEI with the powerto decide any question that may arise, which may relate directly orindirectly, with respect to the status of an institution as a minority educationDinstitution. Looked at by itself, Section 11(f) would include the declarationof the status of an institution as a minority educational institution at allstages. Article 30 of the Constitution of India grants a fundamental rightto all minorities, whether based on religion or language, to establish andadminister educational institutions of their choice. The power underESection 11(f), read by itself, would clothe the NCMEI with the power todecide any question that may arise with regard to the right to establishand/or administer educational institutions by a minority. The power doesnot stop there. It also includes the power to declare such institution as aminority educational institution, which is established and administered assuch, so that it can avail of the fundamental right guaranteed under ArticleF30 of the Constitution.

17. However, Section 10(1), which was introduced at the sametime as Section 11(f) by the Amendment Act of 2006, carves out onefacet of the aforesaid power contained in Section 11(f), namely the grantof a no objection certificate to a minority educational institution at itsGinception. Thus, any person who desires to establish a minority educationalinstitution after the Amendment Act of 2006 came into force, must applyonly to the competent authority for the grant of a no objection certificatefor the said purpose. It is a little difficult to subscribe to Shri Hegde’sargument that the said powers are concurrent. Harmoniously read, allHapplications for the establishment of a minority educational institution after the Amendment Act of 2006 must go only to the competent authorityset up under the statute. On the other hand, for the declaration of itsstatus as a minority educational institution at any stage post establishment,the NCMEI would have the power to decide the question and declaresuch institution’s minority status.

18. We find that various High Courts have taken conflicting viewson the reach of these provisions. The Calcutta, Bombay and PunjabHigh Courts have taken the view that an appellate power cannot beconfused with an original power and that, therefore, Section 11(f) cannotbe pressed into service at all when it comes to declare of the status of aminority institution. This view, apart from stultifying Section 11(f), alsoignores Section 12(2) of the Act, which confers certain powers of aCivil Court, which powers refer only to a Court of first instance. On theother hand, the Allahabad High Court has taken the view that Section 10and 11(f) operate in different fields: Section 10 being the power to granta no objection certificate to establish an institution and Section 11(f)relating to the determination of all questions relating to the status of aninstitution.

19. This Court has touched upon the subject without directlyanswering the question posed before us. Thus, in Governing BodyOF P.A.E.M. College v. State of Jharkhand, decided on 6.12.2012,this Court, after referring to Section 11(f) and 12B of the 2004 Act, held:

“From the above provisions, it is clear that the Commission hasthe power to decide all questions relating to the status of anyinstitution as minority educational institution and declare its statusas such. More over under Section 12B, where an authorityestablished by the Central Government or any State Governmenthas rejected the application for grant of minority status to anyeducational institution, the aggrieved person may appeal againstsuch order of the authority to the Commission. The provisionscontained in Section 11(f) of 2004 Act and Section 12B of theAmendment Act are, thus, wholesome provisions for deciding allquestions relating to the status of any institution as minorityeducational institution and for declaration of such status.”

20. In Corporate Educational Agency v. James Mathew,(2017) 15 SCC 595 (at 600-601), a Division Bench of this Court dealtwith a judgment of the High Court, which in turn dealt with the appointment

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Aof teachers in minority educational institutions. This Court, after noticingthat the appellant was already an existing minority educational institution,went on to hold:

“9. Chapter III deals with rights of minority educational institutions.Under Section 10, whosoever desires to establish a minorityBeducational institution, has to apply to the competent authority fora “no-objection certificate”. The “competent authority” is definedunder Section 2(ca) of the Act to mean, the authority appointedby the appropriate Government to grant “no-objection certificate”for the establishment of any educational institution of their choiceby the minorities.C

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11. Therefore, after the introduction of the National Commissionfor Minority Educational Institutions Act, 2004, it is also within thejurisdiction and mandate of the National Commission to issue theDcertificate regarding the status of a minority educational institution.Once the Commission thus issues a certificate, it is a declarationof an existing status.”

21. This judgment unequivocally holds that, insofar as existingminority institutions are concerned, Section 11(f) clearly confersEjurisdiction on the NCMEI to issue a certificate regarding the status ofthe minority educational institution. We respectfully concur with theaforesaid view.

22. Shri Dhavan, however, exhorted us to send back the matter tothe NCMEI for a hearing de novo on merits. We may mention that thefact that the college was begun as a secular institution and wished toFchange into a minority educational institution midstream, which was notpermissible according to Shri Dhavan, is not a plea taken up before thelearned single Judge. This plea, however, was raised before the DivisionBench and answered by both Judges stating that the fundamental rightunder Article 30 cannot be waived. While agreeing with this view, it isGnecessary to point out, on the facts of the case, that the University ofNorth Bengal has accepted the NCMEI’s order dated 5.11.2009, in whichthe NCMEI went into the aforesaid question. It would not, therefore, bein the fitness of things to send back this matter to be decided afresh atthe behest of a governing body which can no longer claim to govern thecollege set up by the society. It needs only be pointed out that, by a letterH

dated 4.5.2009, the Principal of Cluny Women’s College requested theVice-Chancellor of the University to extend the term of the governingbody set up under the statutes of the University only until the constitutionof a new governing body. As the new governing body has been constitutedon the footing that Cluny Women’s College is a minority educationalinstitution, we are of the view that the parallel governing body, whichclaims to continue as such, has no legs to stand after the formation of anew governing body. This being the case, we are not inclined to sendthe matter back to the NCMEI for a de novo hearing on merits at thebehest of Shri Dhavan’s client.

23. The appeal is, accordingly, allowed and the judgment of theCalcutta High Court is set aside. The order dated 23.10.2007 and thecertificate dated 25.10.2007 are declared to be valid in law.

24. In view of the above, the present batch of appeals is disposedof in accordance with this judgment.

Kalpana K. Tripathy

Appeals disposed of.

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