TaxTMI 
TaxTMI 
1967 (10) TMI 65
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.... referred to as the Aligarh University) was established by the Muslim minority and therefore the Muslims had the right to administer it and in so far as the Acts of 1951 and 1965 take away or abridge any part of that right they are ultra vires Art. 30(1). Besides this principal attack, the two Acts are also subsidiarily attacked for violating the fundamental rights guanteed under Articles 14, 19, 25, 26, 29 and 31 of the Constitution. It is unnecessary to set out the nature of the attack under these Articles for that will appear when we deal with the matter in detail later. suffice it to say that all the petitions do not make the attack, under ill these Articles, but the sum total of the subsidiary attack in all these petitions takes in its sweep all these six Articles. The petitions have been opposed on behalf of the Union of India and its main contention is that the Aligarh University was established in 1920 by the Aligarh Muslim University Act, No. XL of 1920, (hereinafter referred to as the 1920- Act) and that this Establishment was not by the Muslim minority but by the Government of India by virtue of a statute namely the 1920-Act and, therefore the Muslim minority could not c....
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....ereinafter referred to as the M.A.0. College) was established thereafter and was, it is said, a flourishing institution by the time Sir Syed Ahmad Khan died in 1898. It is said that thereafter the idea of establishing a Muslim University gathered strength from year to year at the turn of the century and by 1911 some funds Were collected and a Muslim University Association was established for the purpose of establishing a teaching University at Algarh. Long negotiations took place between the Associationland the Government of India, which eventually resulted in the- establishment of the Aligarh University in 1920 by the 1920- Act. It may be mentioned that before that a largo sum of money was collected by the Association for the University as the Government of India had made it a condition that rupees thirty lakhs must be collected for the University before it could be established. Further it seems, that the existing M.A.0. College was made the basis of the University and was made over to the authorities established by the 920-Act for the administration of the University along with the properties and funds attached to the college, the major part of which had been contributed by Musl....
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....ommittee were transferred to the University, which was made responsible for discharging and satisfying them. All references in any enactment to either of the societies or to the said Committee were to be construed' as references to the University. It was further provided that any will, deed or other documents, whether made or executed before or after the commencement of the 1920Act, which contained any bequest, gift or trust in favour of any of the said societies or of the said Committee would, on the com- mencement of the 1920-Act be construed as if the University had been named therein instead of such society or Committee. The effect of this provision was that the Properties endowed for the purpose of the M.A.0. College were to be used for the Aligarh University after it came into existence. These provisions will show that the three previous bodies legally came to an end and everything that they were possessed of was vested in the University as established by the 1920-Act. Section 5 provides for the powers of the University including the power to hold examinations and to grant and confer degrees and other academic distinctions. Section 6 is important. It laid down that "....
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....y explanation furnished or representation made by the Court and the Court was bound to comply with such directions. These provisions clearly bring out that the final control in the matter was with the Lord Rector who was the Governor-General of India. Then comes s. 14 which is again an important provision, which provided for the Visiting Board of the University, which consisted of the Governor, the members of the Executive Council, the Ministers, one member nominated by the Governor and one member nominated by the Minister in charge of Education. The Visiting Board had the power to inspect' the University and to satisfy itself that the proceedings of the University were in conformity with the Act, Statutes and Ordinances, after giving notice to the University of its intention to do so. The Visiting Board was also given the power, by order in writing, to annul any proceedings not in conformity with the Act, Statutes and Ordinances, provided that before making such an order, the Board had to call upon the University to show cause why such an order should not be made, and to consider such cause if shown within reasonable time. This provision, though not so all-pervasive as the pro....
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....cademic Council and s. 26 with other authorities of the University. Section 27 laid down what the Statutes might provide. Section 28 dealt with the question of the first Statutes and how they were to be amended, repealed and addled to. There is an important provision in s. 28 which laid down that "no new Statute or amendment or repeal of an existing Statute shall have any validity, until it his been submitted through the Visiting Board (which may record its opinion thereon) to the Governor General in Council, and has been approved by the latter, who may sanction, disallow or remit it for further consideration." This provision clearly shows that the final power over the administration of the University rested with the Governor General in Council. Section 29 dealt with Ordinances and what they could provide and S. 30 provided which authorities of the University could, make Ordinances. Section 30(2) provided that "the first Ordinances shall be framed as directed by the Governor General in Council." and sub-s. (3) thereof lald down that "no new Ordinance, or amendment or repeal of an existing Ordinance shall have any validity until it has been submitted though ....
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....mbers". Section 40 is important and laid down that "if any difficulty arises with respect to the establishment of the University or any authority of the Uni- versity or in connection with the first meeting of any authority of the University, the Governor General in Council may by order make any appointment or do anything which appears to him necessary or expedient for the proper establishment of the University or any authority thereof or for the firs meeting of any authority of the University." This again shows the power of the Governor General in Council in the matter of establishment of the University. This brings us to the end of the sections of the 1920-Act. There is nothing anywhere in any section of the Act which vests the administration of the University in the Muslim community. The fact that in the proviso to s. 23(1) it is provided that the Court of the University shall consist only of Muslims does not necessarily mean that the administration of the University was vested or was intended, to be vested in the Muslim minority. If anything, some of the important provisions to which we have already referred show that the final power in almost every matter of impo....
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....therein, as a teacher or student, or to hold any office therein, or to graduate thereat, or to enjoy or exercise any privilege thereof, except in respect of any particular benefaction accepted by the University, where such test is made a condition thereof by my testamentary or other instrument creating such benefaction". The new S. 8 had also a proviso laying down that "nothing in this section shall be deemed to prevent religious instruction being given in the manner prescribed by the Ordinances to those who have consented to receive it". Clearly section 9 was deleted and S. 8 was amended in this manner to bring the law into conformity with the provisions of the Constitution and for the benefit of the University so that it could continue to receive aid from the Government. Some amendment was also made in s. 13 in view of the changed constitutional set-up and in place of the Lord Rector, the University was to have a Visitor. Section 14 was also amended and the power of the Visiting Board was conferred on the Visitor by addition of a new sub- s. (6). The next substantial change was that the proviso to s. 23(1) which required that all members of the Court would only be....
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....s were also amended and many of the powers of the Court were transferred by the amendment to the Executive Council. Further the constitution of the Court was drastically changed by the amendment of the 8th Statute and it practically became a body nominated by the Visitor except for the Chancellor, the ProChancellor, the members of the Executive Council who were ex officio members and three members of Parliament, two to be nominated by the Speaker of the House of the People and one by the Chairman of the Council of States. Changes were also made in the constitution of the Executive Council. Finally the 1965-Act provided that "every person holding office as a member of the Court or the Executive Council, as the case may be, immediately before the 20th day of May, 1965 (on which date Ordinance No. 11 of 1965 wais promulgated) shall on and from the said date cease to hold office as such". It was also provided that until the Court or the Executive Council was reconstituted, the Visitor might by general or special order direct any officer of the University to exercise the powers and perform the duties conferred or imposed by or under the 1920-Act as amended by the 1965-Act on t....
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....ed after the Constitution came into force. That argument wag turned down by this Court for the obvious reason that if that interpretation was given to Art. 30(1) it would be robbed of much of its content. But that case in our opinion did not lay down that the words "establish, and administer" in Art 30(1) should be read disjunctively, so that, though a minority might not have established an educational institution it had the right to administer it. It is true that at p. 1062 the Court spoke of Art. 30(1) giving two rights to a minority i.e. (i) to establish and (ii) to administer. But that was said only in the context of meeting he argument that educational institutions established by minorities before the Constitution came into force did not have the protection of Art. 30(1). We are or opinion that nothing in that case justifies the contention raised of behalf of the petitioners that the minorities would have the right to administer an educational institution even though the institution may not have been established, by them. The two words in Art 30(1) must be read together and No read the Article gives this right to the minority to administer institutions established by....
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....hat distinguishes a University from any other educational institution is that a university grants degrees of its own while other educational institutions cannot. It is this granting of degrees by a university which dis- tinguishes it from the ordinary run of educational institutions. See St. David's College, Lampeter v. Ministry of Education(1). Thus in law in India there was no prohibition against establishment of universities by private individuals or bodies and if any university was so established it must of necessity be granting deges before it could be called a university. But though such a university might be granting degrees it did not follow that the Government of the country was bound to recognise those degrees. is a matter of fact as the law stood up to the time the Constitution time into force, the Government was not bound to recognise agrees of universities established by private individuals or bodies and gene-rally speaking the Government only recognised degrees universities established by it by law. of private individual or body could before 1950 insist that the degrees of any university established by him or it must be recognised by government. Such recognition d....
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....es granted by such a university should be recognised by Government. Therefore when the Aligarh university was established in 1920 and by s. 6 its degrees were recognised by Government, an institution was brought into existence which could not be brought into existence by any private individual or body for such individual or body could not insist upon the recognition of the degrees conferred by any university established, by it. The enactment of s.6 in the 1920-Act is a very important circumstance which shows that the Aligarh University when it came to be established in 1920 was not established by the Muslim minority, for the minority could not insist on the recognition by Government of the degrees conferred by any university established by it. It is true, as is clear from the 1920-Act, that the nucleus of the Aligarh University was the M.A.O College, which was till then a teaching institution under the Allahabad University. The conversion of that college (if we may use that expression) into a university was however not by the Muslim minority; it took place by virtue of the 1920-Act which was passed by the Central legislature. There was no Aligarh University existing till the 1920Ac....
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....e Court of the United States of America which depended upon the provisions of the Constitution of that country which Prohibits im- pairment of contracts. It is profitless to refer to the cases cited in that behalf for our Constitution has no such fundamental right. Further we cannot under any circumstance read the 1920-Act as a kind of contrast. What does the word "establish" used- in Art. 30(1) mean? In Bouvier's Law Dictionary, Third Edition, Vol. I, it has been said that the word "establish" occurs frequently in the, Constitution of the United States and it is there used in different meanings; and five such meanings have been given, namely (1) to settle firm , to fix unalterably, as to establish justice; (2) to make or form: as, to establish a uniform rule of naturalization; (3) to found, to create, to regulate-, as, Congress shall have power to establish post offices; (4) to found, recognize, confirm or admit: as, Congress shall make no law respecting an establishment of religion; (5) to create, to ratify, or confirm, as We, the people, etc., do ordain and establish this constitution. Thus it cannot be said that the only meaning of the word "establ....
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....sity Association and the Muslim University Foundation Committee were institutions established by the Muslim minority and two of them were administered. by Societies registered under the Societies Registration Act, (No. 21 of 1860). But if the M.A.0. College was to be converted into a university of the kind whose degrees were bound to be recognised by Government, it would not be possible for those who were in- charge of the M.A.0. College to do so. That is why the three institutions to which we have already referred approached the Government to bring into existence a uni- versity whose degrees would be recognised by Government. The 1920-Act was then passed by the Central Legislature and the university of the type that was established thereunder, namely, one whose degrees would be recognised by Government, came to be established. It was clearly brought into existence by the 1920-Act for it could not have been brought into existence otherwise. It was thus the Central Legislature which brought into existence the Aligarh University and must be held to have established it. It would not be possible for the Muslim minority to establish a university of the kind whose degrees were bound to b....
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....her bodies like the Executive Council and the Academic Council which were concerned with the admi- nistration of the Aligarh University and there was no provision in the constitution of these bodies which confined their members only to Muslims. It will thus be seen that besides the fact that the members of the Court had to be all Muslims, there was nothing in the Act to suggest that the administration of the Aligarh University was in the Muslim minority as such. Besides the above, we have already referred to s. 13 which showed how the Lord Rector, namely, the Governor General had overriding powers over all matters relating to the administration of the University. Then there was s. 14 which gave certain over-riding powers to the Visiting Board. The Lord Rector was then the Viceroy and the Visiting Board consisted of the Governor of the United Provinces, the members of his Executive Council, the Ministers, one member nominated by the Governor and one member nominated by the Minister in charge of Education. These people were not necessarily Muslims and they had over- riding powers over the administration of the University. Then reference may be made to s. 28(2) (c) which laid down tha....
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....rity may for present purposes be assumed to be a religious denomination within the 'meaning of Art. 26-to establish and maintain institutions for religious and, charitable purposes. What we have said with respect to Art. 30(1) which gives right to minorities to establish and administer educational institu- tions of their choice applies equally to cl. (a) of Art. 26 and therefore we are of opinion that the words, "establish and maintain" must be read conjunctively and it is only institutions which a religious denomination establishes which 'it can claim to maintain.' It is not necessary to go into all the' implications of the word "maintain"; it is enough for present purposes to say that the right to maintain institutions for religious 1 and charitable purposes would include the right to administer them. But the right under el. (a) of Art. 26 will only arise where the institution is established by a religious denomination and it is in that event only that it can claim to maintain it. As we have already held, the Aligarh University was not established by the Muslim minority and therefore no question arises of its right to maintain it within the mea....
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....and how the amendments made by the 1965-Act in the 1920-Act in any way interfere with the right of the Muslim minority to conserve any distinct language, script or culture which they might have. Here again we may add that no serious argument was raised before us on the basis of Art. 29. The next Article of the Constitution on which reliance is ,placed is Art. 14. Here again we are not able to appreciate what the discrimination is which has been brought about by the amendments of the 1965-Act. It seems that the charge of discrimination is based on the provisions of the Benaras Hindu University Act, which University is established' by an Act of its own. We do not think that Art. 14 requires that the provisions in every, University Act must always be the same. Each University has problems of its own and it seems to us that it is for the legislature to decide ,what kind of constitution should be conferred on a particular university established by it. There can be no question of discrimination on the ground that some other University Acts provide for some different set up. Each university must be taken to be a class by itself and the legislature has a right to make such provision f....
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.... property vested in a corporate body like the university. All that it provides is that all citizens have the right to acquire, hold and dispose of property of their own. There is nothing in the 1965Act which in any way takes away the right of the Muslims of this country to acquire, hold and dispose of property of their own Lastly reliance is placed on Art.31(1) which provides that "no person shall be deprived of his property save by authority, of law." We may assume that the "Muslim: minority" is a person for purposes of Art. 31(1) and the petitioners have a right to file these writs on its behalf. It is urged Oat the Muslim minority has been deprived, of their property, namely. the property vested in the Aligarh University, by the 1965-Act inasmuch as the Court now is a very different body from the Court as it was, under, the 1920-Act. It is difficult to understand this argument. It is clear from the history which we have set out above and from the provisions of the 1920-Act that the two societies which were registered under the Societies Registration Act, 1860, namely, the M.A.O. College and the Muslim University Association, voluntary surrendered whatever pro....