SARDAR GYAN SINGH PUREWAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioners have filed this application under Article 226 of the Constitution of India challenging the validity of the Bihar Medical Educational Institutions (Regulation and Control) Ordinance, 1972 the official Hindi version of which has been annexed as annexure '3' to this writ application. It may be stated here that this Ordinance was subsequently extended with all the provisions thereof remaining the same by the Bihar Ordinance No. 16 of 1973 whose life was further extended by a subsequent ordinance being Bihar Ordinance No. 94 of 1973, the latest being known as Bihar Medical Educational Institutions (Regulation and Control) (Second) Ordinance, 1973. This last mentioned Ordinance is in force on the present day. It was stated at the Bar that in reality though challenge was made in regard to the validity of the Ordinance of 1972 (Annexure '3' to the writ application), in substance, the challenge is directed against both the subsequent ordinances by which the 1972 Ordinance was kept alive. The other prayer made by the petitioners is to quash annexures '9', '10' and '11' to this writ application. Annexure '9' is a notice of the Government of Bihar by which it was notified to all concerned that the State Govt., in exercise of the powers conferred by Section 10 of the Bihar Medical Educational Institutions (Regulation and Control) Ordinance, 1973 (Bihar Ordinance 16 of 1973) have rejected permission to run the Guru Govind Singh Medical College and have asked the sponsors of the college to close down the college and refund to the students proportionate fee, donation and other charges for the unexpired period, failing which the sponsors of the College would be liable to be prosecuted singly and jointly under Section 9 of the said Ordinance. It was further notified by the said Annexure '9' that on humanitarian ground 'the State Government had decided to afford facilities, as far as possible, to the students of the abovementioned college for admission to the other medical colleges of the State subject to the suitability of the students concerned in accordance with the regulations of the Medical Council of India and the University concerned. Annexure '9' was issued by a memo dated the 20th April, 1973 a copy of which was served on the Principal of the Guru Govind Singh Medical College. On the same date i.e. on the 20th April, 1973 by memo No. 1380 (I) the Government of Bihar in the Health Department issued an order to the effect that under the aforesaid Ordinance by virtue of powers conferred under Section 12 thereof the State Government had authorised the Subdivisional Officer, Patna Sadar, to enter into the premises of the aforesaid college and to lock the same and collect all materials belonging to the college in one room in order to lock and seal them. A copy of the aforesaid order is Annexure '10' to this application. On the same date again i.e. on the 20th April, 1973 by memo No. 1391 (I) addressed to the Secretary of the aforesaid medical college, the State Government in the Health Department forwarded an order to the effect that the application on behalf of the college for sanction had been rejected and that the medical educational institution known as Guru Govind Singh Medical College should be closed within a period of three months from the date of the order and there was a further direction contained in the aforesaid order that the fee for the unexpired period, donation and other things charged from the students in their proportionate ratio should be refunded to all the students concerned failure of which will attract the penal provisions of the Ordinance contained in Section 9 thereof both jointly and separately against the sponsors of the college. A copy of this last mentioned order of the Government has been marked an-nexure '11' to this application. This, in substance, is the prayer of the petitioners in this case.

(2.) Before setting out the points involved for determination in this application I think it advisable to give the facts shortly, which are not much in dispute. There was a Guru Govind Singh Vidya Sewik Society registered in the year 1971 under the Societies Registration Act, 1860. In April, 1971 a medical educational institution known as Guru Govind Singh Medical College was started and applications were invited from the intending students for admission into this institution. On the 24th May, 1971, however, the Governor of Bihar promulgated an Ordinance making certain amendments to the Universities Act whereby restrictions were put upon the powers of the Universities to affiliate medical colleges to the effect that no such affiliation could fee accorded without the requisite sanction of the State Government. From the 1st of September, 1971 the classes in the aforesaid college were duly started and one of the terms of admission of the students to the classes was payment of a fixed donation as well as a consolidated fees apart from certain other charges and in the prospectus of the college it was mentioned (vide annexure '1') that the donations and the fees, inter alia, shall not be liable to be refunded once students were admitted into the college. In pursuance of the provisions of the Ordinance of 24th May, 1971 the college aforesaid applied to the State Government in November, 1971 (vide annexure '2') for sanction for its being affiliated to the Magadh University. All the requisite formalities, including payment of a fee of Rs. 500 were observ-' ed by the college while filing the aforesaid application. Subsequently, in February, 1972 the college filed a separate application to the Magadh University for its affiliation (vide annexure '2/a') but the Magadh University returned the aforesaid application evidently because it could not deal with the matter in the absence of any sanction from the State Government. Thereafter the Bihar Medical Educational Institutions (Regulation & Control) Ordiance, 1972 (hereinafter referred to as 'the 1972 Ordinance') was promulgated by the Governor of Bihar to the specific provisions of which I shall refer in some detail at an appropriate place. Suffice it to say here that under the provisions of the aforesaid Ordinance it was incumbent on any private college or any private medical institution intending to start imparting education in medical subjects to have prior sanction of the Government. It was also contemplated that the institutions which were already in existence should also apply for necessary sanction within a period of one month from the date of the coming into force of the Ordinance. In pursuance thereof, on 7th June, 1972 (vide annexure '4') another application was made to the State Government on behalf of the sponsors of the Guru Govind Singh Medical College and in this fresh application under the provisions of the Ordinance reference was made to the earlier application already filed. Thereafter, in 1973, the Guru Govind Singh Medical College was taken over by Guru Govind Singh Vidya Sewik Society mentioned above and in turn, on 24th January, 19'73 the Guru Govind Singh Vidya Sewik Society Trust was created in which all the properties, assets and liabilities of the Vidya Sewik Society were transferred to the Board of Trustees created for the Trust, Thus the Trust aforesaid came to take over the Guru Govind Singh Medical College also with effect from 24th January, 1973. The petitioner No. 1 is one of the trustees of the aforesaid Trust and the Secretary thereof whereas the petitioner No. 2 is the Trust itself. In response to the application made by the sponsors of the Medical College in question under annexure '4' in continuation of the application made in November, 1971 (Annexure '2') the ultimate orders and directions of the Government were communicated to the sponsors of the college including the petitioners under annexures '9', '10' and '11' already mentioned above.

(3.) The main question for determination in this writ application is as to whether the 1972 Ordinance and the two subsequent Ordinance of 1973, the latest being Bihar Ordinance 94 of 1973, or any of the provisions thereof can be declared to be ultra vires; if not, as to whether annexures '9', '10' and '11' impugned in the present writ application are in conformity with the provisions of the Ordinance referred to above. Before dealing with and in order to appreciate the respective contentions put forward by Mr. Basudeo Prasad, learned counsel for the petitioners and the learned Advocate-General for the respondents it is necessary to set out in some detail the relevant provisions of the Ordinance in question which are mutatis mutandis the same in all the three ordinances. Since much stress has been laid upon the Statement of Objects and Reasons and the Preamble to the Ordinance in question, I think it advisable to set out fully the preamble and the objects which run as follows. (Since there is no official version of the Ordinance in question which are all in Hindi, English rendering has been made by us with due assistance of counsel of the parties):--