AMIR JAMIA Vs. DESHARATH RAJ

JUDGEMENT

(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 notice 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 not 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 not concerned. In the circumstances, therefore, 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 not created by any statute and which did not exercise any statutory powers and, therefore, it was not 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 otherwise an autonomous body. By a notification dated 19-6-1962 issued by the Government of India under Section 3(f) 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(f) of the Act. 'Under Section 18 of the Act, it was the duty of the University Grants Commission to promote 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(1) 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(2) debars any other 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 not 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(1) 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 other 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 other authorities. From a perusal of Article 12 and 226(1), 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 not to be construed ejasdem generis with the words preceding it, as the preceding words do not 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, therefore, 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, therefore, concerned with such a person or authority, which exercises power over others, that is to say, over other 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 not 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 others ? 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, therefore, 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 otherwise 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 not 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 other 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 Defence 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 not 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 not surprising, therefore, 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, foot note 35). On the principle stated above however, it is the derivation of the power from the State and its exercise over other 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 other persons.