GOVT. OF A.P. AND ANR.versusJ.B. EDUCATIONAL SOCIETY AND ANR. ETC.

A                           GOVT. OF A.P. AND ANR.
                                         v.
                  J.B. EDUCATIONAL SOCIETY AJl.fl) ANR. ETC.

                              FEBRUARY _23, 2005

B            [K.G. BALAKRISHNAN AND B.N. SRIKRISHNA, JJ.j
                        '         .                    .
         Education:

         Andhra Pradesh Education Act, 1982 :
c
          Section 20-All India Council uf Technical Education Act, 1'~87-Section
    10-Establishment oftechnical institution-Approval granted by AlCTE Council
    but State Government declined permission under S.20 of the A.P. Education
    Act-Competence of .the State Government to refuse permission-Held, the
D   State alone would be competent to say whether an 'institution should be
    established in an area to serve the educational needs, of that /oca/ity-
    Constitution of India, 1950-Article 41-List I, Entries 63 to 66 and Listi/I,
    Entry 25.

         S.20(3)(a)(i)-Held, is not repugnant to S. l 0 of the AICTE Act-It is ·
E constitutionally valid-All India Council of Technical Education Act, 1987-       \

    Section JO.

          Constitution.of India, 1950-Articles 245 and 246-Repugnancy between
    Parliamentary legislation and State legislation~Discussed

F         Private educational institutions wanting to establish engineering
    colleges in the State of Andhra Pradesh applied to authorities under the
    All India Council of Technical Education Act, 1987 (AICTE Act) and were
    granted approval by the AICTE Council. They applied under Section 20
    of theA.P. Education Act, 1982 for permission to establish the institution.
    The permission was declined on the ground that it was sought in places
G   where already there were number of colleges and that the State
    Government was not satisfied about the educational needs of that locality.

          Writ Petitions were filed challenging the same. High Court held that
    Section 20(3)(a)(i) of the A.P. Education Act, 1982 is void and inoperative

H                                       302
                       GOVT. OF A.P. v. J.B. EDUCATIONAL SOCIETY               303
     and the State Government had no legislative competence to pass such a            A
     legislation as the State provision was in the field already occupied by the
     enactment made by the Parliament, namely, AICTE Act.
••
            In appeal to this Court, State contended that Section 20 of the A.P..
     Ed.ucation Act and Section 10 of the AICTE Act operate in different fields,
     and are not repugnant to each other; that the State Legislature has. B
     legislative ~ompetence to pass the said enactment and that, in view of Entry
     25 of the Concurrent List, the State alone would be competent to say
     whether an institution should be established in an area to serve the
     educational needs of that locality.

           Allowing the appeals, the Court                                            .C

             HELD : 1.1. The provisions of the AICTE Act are intended to
     improve the technical education and the various authorities under the Act
     have been given exclusive responsibility to coordinate and determine the
     standards of higher education. It is a general power given to evaluate, D
     harmonise and secure proper relationship to any project of national
     importance. Such a coordinate action in higher education with proper
     standard is of paramount importance to national progress. Section 20 of
     the A.P.Education Act does not in any way encroach upon the powers of
     the authorities under the Central Act. Section 20 says that the competent
     authority shall, from time to time, conduct a survey to identify the E
     educational needs of the locality under its jurisdiction notified through the
     local newspapers calling for applications from the educational agen'!ies.
     Section 20(3)(a)(i) says that before permission is granted, the authority
     concerned must be satisfied that there is need for providing educational
     facilities to the people in the locality. The State authorities alone can decide F
     about the educational facilities and needs of the locality. If there are more
     colleges in a particular area, the State would not be justified in granting
     permission to one more college in that locality. (312-E-H)

           1.2. Entry 25 of the Concurrent List gives power to the State
     Legislature to make laws regarding education, including technical                G
     education. Of course, this is subject to the provisions of Entry 63, 64, 65
     and 66 of List I. Entry 66 of List I to which the legislative source is traced
     for the AICTE Act deals with the general power of the Parliament for
     coordination, determination of standards in institutions for higher
     education or research and scientific and technical educational institutions
     and Entry 65 deals with the union agencies and institutions for                  H
    304                   SUPREME COURT REPORTS                   [2005] 2 S.C.R.

A professional, vocational and technical training, including the training of
    police officers, etc. The State has certainly the legislative competence to
                                                                                    -
    pass the legislation in respect of education including technical education
    and Section 20 of the A.P. Education Act is intended for general welfare
    of the citizens of the State and also in discharge of the constitutional duty
    enumerated under Article 41 of the Constitution. (313-A-CI
B
          Unni Krishnan v. State of AP, (199311 SCC 645, referred to.

          3. The general survey in various fields of technical education
    contemplated under Section lO(l)(a) of the AICTE Act is not pertaining
    to the educational needs of any particular area in a State. It is a general
C   supervisory survey to be conducted by the AICTE Council, for example,
    if any HT is to be established in a particular region, a general survey could
    be conducted and the Council can very much conduct a survey regarding
    the location of that institution and collect data of all related matters. But
    as regards whether a particular educational institution is to be established
D   in a particular area in a State, the State alone would be competent to say
    as to where that institution should be established. Section 20 of the A.P.
    Education Act and Section 10 of the AICTE Act operate in different fields
    and there· is no repugnancy between the two provisions. (313-D-EI

        M. Karunanidhi v. Union of India, (197913 SCC 431; Deep Chandv.
E State of UP., (19591Supp2 SCR 8; Megh Raj v. Allah Rakhia, AIR (1942)             \   -
  FC 27; T.S. Baliah v. T.S. Rangachari, (19691 3 SCR 65; Kanaka Gruha
  Nirmana Sahakar Sangha v. Narayanamma, (200311 SCC 228; T.M.A. Pai
  Foundation v. State of Karnataka (20021 8 SCC 481; Islamic Academy of
  Education v. State of Karnataka, (200316 SCC 697; Jaya Gokul Educational·
F Trust v. Commissioner-cum-Secrelary Higher Education and Ors., (20001 5
  SCC 231 and Govermnenl of A.P. and Anr. v. Medwin Educational Society
  and Ors;, (200411 SCC 86, referred to.

        4. The educational needs of the locality are to be ascertained and
  determined by the State. Having regard to the regulations framed under
G the AICTE Act, the representatives of the State have to be included in
  the ultimate decision making process and having regard to the provisions
  of the Act, the Writ Petitioners before High Court would not in any way
  be prejudiced by such provisions in the A.P. Act. Moreover, the decision,
  if any, taken by the State authorities under Section 20(3)(a)(i) would be
  subject to judicial review and one cannot think that the State could make
H any irrational decision about granting permission. Hence, Section
          GOVT. OF A.P. v. J.B. EDUCATIONAL SOCIETY [BALAKRISHNAN, J:]       305
20(3)(a)(i) is not in any way repugnant to Section 10 of AICTE Act and is           A
constitutionally valid. 1316-F-Gl

        CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 976-978 of
1999.

     From the Judgment and Order dated 28.4.98 of the Andhra Pradesh                B
High Court in W.A. Nos. 1571/97, 84 and 85 of 1998.

                                     WITH

        C.A. No. 3026 of 1999.

        T.V. Ratnam and K.Subba Rao for the Appellant.
                                                                                    c
      B. Kanta Rao, Y. Raja Gopala Rao, D. Mahesh Babu, E.C. Vidya
Sagar, Ms. Rekha Pandey, Chava Badri Nath Babu and Bimal Roy Jad for the
Respondent.
                                                                                    D
        The Judgment of the Court was delivered by

        K.G. BALAKRISHNAN, J. These appeals are filed by the State of
Andhra Pradesh challenging the decision of the Division Bench of the High
Court of Andhra Pradesh in Writ Appeal Nos. 1571of1997; 84of1998; and
85 of 1998. By the impugned Judgment, the Division Bench partly confirm~d           E
the judgment of the learned Single Judge and held that Section 20(3)(a)(i) of
the Andhra Pradesh Education Act, 1982 (in short "the A.P. Act") is void a~d
inoperative and the State Government had no legislative competence to pass
such a legislation as the State provision was in the field already occupied by
the enactment made by the Parliament, namely, All India Council of Technical
Education Act, 1987 (hereinafter being referred to "AICTE Act"). It was held        F
that in view of Section I 0 of the AICTE Act with regard to establishment of
technical institutions in general, the said special enactment legislated by the
Parliament would prevail over the A.P. Act to the extent of its repugnaf)cy.

       The Writ Petitioners are the private educational institutions. They wanted   G
to establish engineering colleges in the State of Andhra Pradesh. They applied
to the authorities under the AICTE Act and approval was granted to them for
the academic year 1997-98 by the AICTE Council. These Writ Petitioners
made applications under Section 20 of the Act for permission to establish the
institution. The permission was rejected on the ground that the Writ Petitioners
had been seeking permission to establish colleges in the places where already       H
    306                     SUPREME COURT REPORTS                       [2005] 2 S.C.R.

A there were number of colleges and that the State Government was not satisfied
    about the educational needs of that locality. In that view of the matter,
    permission was declined. Aggrieved by the same, the Writ Petitions were
    filed.

          A.P. Act is a consolidating and amending Act made by the State
B Legislature with the object ofrefonning, organising and developing educational
    system in the State and to provide for matters connected therewith or incidental
    thereto. This legislation had received the assent of the President. Under Section
    19 of the A.P. Act, educational institutions are classified into three categories,
    namely, State institutions, local Authority institutions and Private institutions
C   and granting of permission for the establishment of educational institutions
    is governed by Section 20. This Section was amended by Act No. 27 of l 987
    wherein it was provided that no educational institutions shall be established
    except in accordance with the provisions of the Act. The State Government
    is authorised to appoint by notification a competent authority for such area
    as may be specified in the notification. Sub-Section (f) of Section 20 provides
D   that the competent authority appointed by the State Government shall from
    time to time, conduct a survey for the purpose of identifying the educational
    needs of the locality under its jurisdiction and thereafter it shall issue
    notification through the local newspapers calling for applications from the
    educational agencies desirous of establishing educational institutions.
E   Educational agency means any body of persons including that of religious or
    linguistic minority entrusted with the establishment and maintenance of a
    private educational institution of a minority educational institution, as the
    case may be. Any educational agency applying for such permission shall
    satisfy the concerned authority that there is need for providing educational
    facilities to the people in the locality. There are some other requirements
F   mentioned in sub-Section (3) of Section 20 and those conditions have to be
    fulfilled by the educational agency for applying ofpennission for establishing
    an educational institution. Section 20 of the A.P. Act reads as follows :-

            "PERMISSION FOR ESTABLISttMENT OF EDUCATIONAL
            INSTITUTIONS :
G
            (I) The competent authority shall, from time to time, conduct a survey
            as to identify the educational needs of the locality under its jurisdiction,
            and notify in the prescribed manner through local news papers calling
            for applications from the educational agencies desirous of establishing
            educational institutions.
H
        GOVT. OF _A.P. ,._J.B. EDUCATIONAL SOCIETY [BALAKRISHNAN, J.)       307
       (2) (a) In pursuance of the notification under sub-section (1) any          A
       educational agency including local authority or registered body Qr
       persons intending to -

       (a)   establish an institution imparting education;

       (b) xxxxxxxxxxxxxxxx
                                                                                   B
       (c)   xxxxxxxxxxxxxxxx

       (d) xxxxxxxxxxxxxxxx

       (3) Any educational agency applying for permission under sub-sectioh
       (2) shall -
                                                                                   c
       (a)   before the permission is granted, satisfy the authority concerned,-

             (i) that there is need for providing educational facilities to the
                 people in the locality;

             (ii) & (iii) (b) & (c) xxxxxxxxxxxxxxxxxxxxx
                                                                                   D
       (4) On and from the commencement of the Andhra Pradesh Education
       (Amendment) Act, 1987 no educational institution shall be established
       except in accordance with the provisions of the Act."

     The source of legisl-ation of the A.P. Act is traced to Entry 25 of the
Concurrent List which is to the following effect :-                                E
       "Education, including technical education, medical education and
       universities, subject to the provisions of Entries 63, 64, 65 and 66 Qf
       List I; vocational and technical training of labour."

      AICTE Act was enacted by the Parliament by vi_rtue of the powers             F
under Entry 66 of the Union List wherein exclusive power is vested with the
Central Government with regard to technical education. AICTE Act w~s
enacted with the object of regulating and coordinating the development cif
technical education throughout the country and also for establishment of
proper and uniform norms and standard of technical education in India. Under       G
Section 3, the Central Government shall appoint a Council called All India
Council of Technical Education and under Section 10 of the Act, the Council
has the following powers and functions :-

       "I 0 (I) it shall be the duty of the Council to take all such steps as it
       may think fit ensuring coordinated and integrated development of            H
    308                   SUPREME COURT REPORTS                    [2005] 2 S.C.R.

A         te.chnical education and maintenance of standards and for the purpose
          of performing its functions under this Act, the council may -

          (a) undertake survey in the various fields of technical education,
          collect data on all related matters and make forecast of the needed
          growth and development in technical education;
B
          (b) coordinate the development of technical education, collect data
          on all related matters and make forecast of the needed growth and
          development in technical education;

          (c) allocate and disburse out of the Fund of the Council such grants
c         on such terms and conditions as it may think fit to

               i.    technical institutions and

               ii.   universities impa.rting technical education in coordination
                     with the commission;

D         (d) promote innovations research and development in established and
          new technologies, generation, adoption and adaptation of new
          technologies to meet developmental requirements and for overall
          improvement of educational processes. ·

          (e) create schemes for promoting technical education for women,
E         handicapped and weaker sections of the society.

          (t) promote an effective link between technical education system and
          other relevant systems including research and development
          organizations industry and the community;

p         (g) evolve suitable performance appraisal systems for technical
          institutions and universities imparting technical education,
          incorporating norms and mechanisms for enforcing accountability;

          (h) formulate schemes for the initial and in service training of teachers
          and identify institutions or centres and set up new centres for offering
G         staff development programmes including continuing education of
          teachers;

          (i) Jay down norms and standards for courses, curricula, physical and
          instructional facilities, staff pattern, staff qualifications, quality
          instructions, assessment and examinations;
H
GOVT. OF A.P. v. J.B. EDUCATIONAL SOCIETY [BALAKRISHNAN, J.]        3Q9

(j) fix norms and guidelines for charging tuitions and other fees;          A
(k) grant approval for starting new technical institutions and for
introduction of new courses or programmes in consultation with the
agencies concerned;

(I) advice the central government in respect of grant of character to       B
any professional body or institution in the field of technical education'
conferring powers, rights and privileges on it for the promotion of
such profession in its field including conduct of examination and
awarding of membership certificates;

(m) lay down norms for granting autonomy to technical institutions; C

(n) take all necessary steps to prevent commercialisation of technical
education;

(o) provide guidelines for admission of students to technical institutions
and universities imparting education;                                      D
(p) inspect or cause to inspect any technical institutions;

(q) withhold or discontinue grants in respect of courses, programmes
to such technical institutions which fails to comply with the directions
given by the council within the stipulated period of time and take
such other steps as may be necessary for ensuring compliance of the E
directions of the council;

(r) take steps to strengthen the existing organizations, and to set up
new organizations to ensure effective discharge of the council's
responsibilities and to create positions of professional, technical and
supporting staff based on requirements;                                     F
(s) declare technical institutions at various levels and types offering
course in technical education fit to receive grants;

(t) advise the commission for declaring any institution imparting
technical education as a deemed university;                                 0
(u) set up a Nations Board of Accreditation to periodically conduct
evaluation of technical institutions or programmes on the basis of
guidelines, norms and standards specified by it and to make
recommendation to it, or to the council or to the commission or to
other bodies regarding recognition or de-recognition of the institution H
    310                    SUPREME COURT REPORTS                   [2005) 2 S.C.R.

A           or the programme;

            (v) perfonn such other functions as may be prescribed.

          From the provisions of the Act, it is clear that the purpose of the
   enactment was proper planning and coordinated development of technical
B education system throughout the country and promotion of qualitative
   improvement of such education and other allied matters .. In Unni Krishnan v.
   State of AP, (1993] I SCC 645, this Court emphasized the importance of
   such a central Council for the promotion of qualitative improvement of
   technical education. By virtue of Section 23 of the AICTE Act, the Council
   is competent to frame regulations and the regulations are called "All India
C Council for Technical Education (Grant of Approval) for starting new technical
   institutions, introduction of courses or programmes, approval of intake capacity
   of seats for the courses or programme Regulations, 1994." Under Regulation
   9, several committees are formed, namely, Expert Committee, State Level
 . Committee, Central Task Force, etc. While the Expert Committee is constituted
D by the Council in consultation with the Chairman of the Regional Committee
   and consists of other representatives of the State Level Committee, the State
   Level Committee constituted under sub-regulation 4 of Regulation 9 considers
   the recommendations of the State Government and others mentioned in Sub-
   Regulation 4 and submits its recommendations to the Central Task force,
   constituted under sub-regulation 5 of Regulation 9. lfthere is any disagreement
E between the recommendations made by the State Government, University or
   Regional Committee, the Central Task Force shall invite representatives of
   the respective agencies for further consultations before making final
   recommendations.

F           The petitioners in the Writ Petitions contended that in view of Section
     I 0 of the AICTE Act, no permission of the State Government under Section
    20 of the Act was required as the field is completely covered by the AlCTE
    Act. I,t was argued that once the approval was granted by the Council, the
    State Government cannot refuse permission on the ground that the proposed
    educational institution may not subserve the educational needs of the locality.
G   The learned Counsel for the State, on the other hand, contended that Section
    20 of the AP Act and Section IO of the AICTE Act operate in different fields,
    there is no conflict between these provisions and that they are not repugnant
    to each other and the decision of the Division Bench is erroneous. It was also
    contended by the appellant's Counsel that the State Legislature has legislative
    competence to pass the enactment and that, in view of Entry 25 of the
H   Concurrent List, the State alone would be competent to say whether an
        GOVT. OF A.P. v. J.B. EDUCATIONAL SOCIETY [BALAKRISHNAN, J]      311

institution should be established in an area to serve the educational needs of A
that locality.

      The legislative powers of the Parliament and the State Legislatures are
governed by Article 246 to 255 of Part II of the Constitution. Article 246
reads as follows :-
                                                                                B
       "Subject-matter of laws made by Parliament and by the
       Legislature of States. - (I) Notwithstanding anything in clauses (2)
       and (3), Parliament has exclusive power to make laws with respect to
       any of the matters enumerated in List I in the Seventh Schedule (in
       this Constitution referred to as the "Union List").
                                                                                c
        (2) Notwithstanding anything in clause (3), Parliament, and, subject
        to clause (I), the Legislature of any state also, have power to make
        laws with respect to any of the matters enumerated in List III in the
        Seventh Schedule (in this Constitution referred to as the "Concurrent
        List").
                                                                                D
        (3) Subject to clauses (1) and (2), the Legislature of any State has
       exclusive power to make laws for such State or any part thereof with
       respect to any of the matters enumerated in List II in the Seventh
       Schedule (in this Constitution referred to as the "State List").

        (4) Parliament has power to make laws with respect to any matter for    E
        any part of the territory of India not included [in a State]
        notwithstanding that such matter is a matter enumerated in the State
        List. "

       The Parliament has exclusive power to legislate with respect to any of
the matters enumerated in List I, notwithstanding anything contained in clauses F
(2) and (3) of Article 246. The non-obstante clause under Article 246(1)
indicates the predominance or supremacy of the law made by the Union
legislature in the event of an overlap of the law made by Parliament with
respect to a matter enumerated in List I and a law made by the State legislature
with respect to a matter enumerated in List II of the Seventh Schedule.          G
      There is no doubt that both Parliament and the State legislature are
supreme in their respective assigned fields. It is the duty of the Court to
interpret the legislations made by the Parliament and the State legislature in
such a manner as to avoid any conflict. However, if the conflict is unavoidable,
and the two enactments are irreconcilable, then by the force of the non- H
    312                     SUPREME COURT REPORTS                      (2005] 2 S.C.R.

A   onbstante clause in Clause (I) of Article 246, the Parliamentary legislation
    would prevail notwithstanding the exclusive power of the State legislature to
    make a law with respect to a matter enumt::rated in the State List.

           With respect to matters enumerated in the List Ill (Concurrent List),
    both the Parliament and the State legislature have equal competence to legislate.
B   Here again, the courts are charged with the duty of interpreting the enactments
    of Parliament and the State legislature in such manner as to avoid a conflict.
    If the conflict becomes unavoidable, then Article 245 indicates the manner of
    resolution of such a conflict.

C         Thus, the question of repugnancy between the Parliamentary legislation
    and the State legislation can arise in two ways. First, where the legislations,
    though enacted with respect to matters in their allotted sphere, overlap and
    conflict. Second, where the two legislations are with respect to matters in
    Concurrent List and there is a conflict. In both the situations, Parliamentary
    legislation will predominate, in the first, by virtue of the non-obstante clause
D   in Article 246(1 ), in the second, by reason of Article 245(1 ). Clause (2) of
    Article 245 deals with a situation where the State legislation having been
    reserved and having obtained President's ascent prevails in that State; this
    again is subject to the proviso that the Parliament can again bring a legislation
    to override even such State legislation.

          ,It is in this background that the provisions contained in the two legislative
    enactments have to be scrutinised. The provisions of the AICTE Act are
    intended to improve the technical education and the various authorities under
    the Act have been given exclusive responsibility to coordinate and determine
    the standards of higher education. It is a general power given to evaluate,
F   harmonise and secure proper relationship to any project of national importance.
    Such a coordinate action in higher education with proper standard is of
    paramount importance to national progress. Section 20 of the AP Act does
    not in any way encroach upon the powers of the authorities under the Central
    Act. Section 20 says that the competent authority shall, from time to time,
    conduct a survey to identify the educational needs of the locality under its
G   jurisdiction notified through the local newspapers calling for applications
    from the educational agenci~s. Section 20(3)(a)(i) says that before permission
    is granted, the authority concerned must be satisfied that there is need for
    providing educational facilities to the people in the locality. The State
    authorities alone can 'decide about the educational facilities and needs of the
H   locality. If there are more colleges in a particular area, the State would not
        GOVT. OF A.I'. 1·. J.B. EDUCATIONAL SOCIETY [BALAKRISHNAN, .I.]   3 J3

be justified in granting permission to one more college in that locality. Entry A
25 of the Concurrent List gives power to the State Legislature to make laws
regarding education, including technical education. Of course, this is subject
to the provisions of Entry 63, 64, 65 and 66 of List I. Entry 66 of List I to
which the legislative source is traced for the AICTE Act deals with the
general power of the Parliament for coordination, determination of standards
in institutions for higher education or research and scientific and technical B
educational institutions and Entry 65 deals with the union agencies and
institutions for professional, vocational and technical training, including the
training of police officers, etc. The State has certainly the legislative
competence to pass the legislation in respect of education including technical
education and Section 20 of the Act is intended for general welfare of the C
citizens of the State and also in discharge of the constitutional duty enumerated
under Article 4 I of the Constitution.

       The general survey in various fields of technical education contemplated.
under Section I0(1 )(a) of the AICTE Act is not pertaining to the educational
needs of any particular area in a State. It is a general supervisory survey to D
be conducted by the AICTE Council, for example, if any IIT is to be
established in a particular region, a general survey could be conducted and
the Council can very much conduct a survey regarding the location of that
institution and collect data of all related matters. But as regards whether a
particular educational institution is to be established in a particular area in a
State, the State alone would be competent to say as to where that institution E
should be established. Section 20 of the AP Act and Section lO of the Central
Act operate in different fields and we do not see any repugnancy between the
two provisions.

     This Court in M Karunanidhi v. Union of India, [1979] 3 SCC 431 at          p
page 499 held thus :

       "It is well settled that the presumption is always in favour of the
       constitutionality of a Statute and the onus lies on the person assailing
       the Act to prove that it is unconstitutional Prima facie, there does not
       appear to us to be any inconsistency between the State Act and the G
       Central Acts. Before any repugnancy can arise, the following
       conditions must be satisfied :

            I.   That there is a clear and direct inconsistency between the
                 Central Act and the State Act.
                                                                                 H
    314                    SUPREME COURT REPORTS                     [2005] 2 S.C.R.

A                2.   That such and inconsistency is absolutely irreconcilable.

                 3.   That the inconsistency between the provisions of the two
                      Acts is of such a nature as to bring the two Acts into direct
                      collision with each other and a situation is reached where .it
                      is impossible to obey the o~e without disobeying the other."
B
           This Court also referred to the earlier decisions including Deep Chand
    v. State of U.P., [1959] Supp 2 SCR 8, at p. 43, wherein various tests to
    ascertain the question of repugnancy between the two statutes were indicated
    and, inter alia, it was held that repugnancy between two statutes may be
    ascertained by considering, whether Parliament intended to lay down an
C   exhaustive code in respect of the subject matter replacing the Act of the State
    Legislature. Reference was made to Megh Raj v. Allah Rakhia, AIR (1942)
    FC 27, wherein it was observed that if the paramount legislation does not
    purport to be exhaustive. or unqualified, there is no inconsistency and it
    cannot be said that any qualification or. restriction introduced by another law
D   is repugnant to the provision in the main or paramoun·t law. This court also
    referred to T.S. Baliah v. T.S. Rangachari, [1969] 3 SCR 65 wherein it was,
    inter alia, observed that before coming to the conclusion that there .is a repeal
    by implication, the court must be satisfied that the two enactments are so
    inconsistent that it becomes impossible for them to stand together.

E        In Kanaka,·yruha Nirmana Sahakar Sangha v. Narayanamma, [2003]
    l SCC 228, this court after quoting Article 254 held :

         .'"The language of the aforesaid article is crystal clear and it inter alia
    provides [subject to the provisions of clause (2)] that

F           9. (a) if any provisions of law made by the legislature of a State is
            repugnant to any provision of a law made by Parliament, which
            Parliament is competent to enact, then the law made by Parliament
            whether passed before or after the law made by the legislature of the
            State shall, to the extent of repugnancy, be void;or

G           (b) if any provision of a law made by the legislature of a state is
            repugnant to any provision of an existing law with respect to one of
            the matters enumerated in the Concurrent List, then the existing law
            shall prevail and the law made by the legislature of the State shall,
            to the extent of repugnancy, be void."

H           I 0. "There cannot be any doubt that the article gives supre1nacy to
        GOVT. OF A.P. I'. J.B. EDUCATIONAL SOCIETY [BALAKRISHNAN, J]          315

       the law made by the Parliament, which Parliament is competent to               A
       enact, but for application of this article, firstly, there must be
       repugnancy between the State law and the law made by Parliament.
       Secondly, if there is repugnancy, the State legislation would be void
       only to the extent of repugnancy. If there is no repugnancy between
       the two laws, there is no question of application of Article 254 (I)           B
       and both Acts would prevail."

      In TM.A. Pai Foundation v. State of Karnataka, [2002] 8 SCC 481,
Justice Khare, as he than was, on the question of transposition of subject
"Education" from List II to List Ill and its effects, held :

           "ft may be remembe~ed that various entries in three lists of the           C
       Sevt:nth Schedule are not powers of legislation but field of legislation.
       These entries are mere legislative heads and demarcate the area over
       which the appropriate legislatures are empowered to enact law. The
       power to legislate is given to the appropriate legislatures by Article
       246 and other articles ........ Thus the function of entries in three lists    D
       of the Seventh Schedule is to demarcate the area over which the
       appropriate legislatures can enact laws but does not confer power
       either on Parliament or the State Legislatures to enact laws. It may be
       remembered, by transfer of the entries; the character of the entries is
       not lost or destroyed."
                                                                                      E
     Justice B.N. Kirpal, the then Chief Justice of India, on the question of
admissions in private unaided professional colleges held that :

             " .... It must be borne in mind that unaided professional institutions
        are entitled to autonomy in their administration while, at the same
        time, they do not forego or discard the principle of merit. It would,         F
        therefore, be pennissible for the university or the Government at the
        time of granting recognition, to require a private unaided institution
        to provide for merit-based selection while, at the same time, giving
        the management sufficient discretion in admitting students. This can
        be done through various methods. For instance, a certain percentage
        of the seats can be reserved for admission by the management out of
                                                                                      G.
       .-those students who have passed the common entrance test held by
        itself or by the State/university and have applied to the college
        concerned for admission, while the rest of the seats may be filled up
        on the basis of counseling by State agency. This will incidentally take
        care of poorer and backward sections of the society. The prescription         H
     316                     SUPREME COURT REPORTS                     [2005] 2 S.C.R.

A            of percentage of this purpose has to be done by the Government
             according to the local needs and different percentages can be fixed
             for minority unaided and non-minority aided and professional colleges.
             The same principles may be applied to other non-professional but
             unaided educational institutions viz. graduation· and postgraduation
B          · non-professional colleges or institutions."
           In Islamic Academy of Education v. State of Karnataka, [2003] 6 SCC
     697 at 770, it was held as under :

              "Local Needs would vary from State to State. Even development of
              a backward area may be a local need. The absence of a good
c             educational institution in a particular area may be a local need. State
              may, in pursuit of its policy for the development of the people, consider
              it expedient to encourage entrepreneurs for establishing educational
              institutions in remote and backward areas for the benefit of the local
              people. Local needs, therefore, cannot be defined only with reference
D             to the State as a unit. For good reasons the State may not like to
              establish professional colleges or institutions on!y in their capitals."

           In Jaya Gokul Educational Trust v. Commissioner-cum-Secretary
     Higher Education and Ors., [2000] 5 ~CC 231 and in Government of A.P.
     and Anr. v. Medwin Educational Society and Ors., [2004] 1 SCC 86, similar
·E   views were expressed by this Court.

            The educational needs of the locality are to be ascertained and determined
     by the State. Having regard to the regulations framed under the AICTE Act,
     the representatives of the State have to be included in the ultimate decision
     making process and having regard to the provisions of the Act, the Writ
F    Petitioners would not in any way be prejudiced by such provisions in the
     A.P. Act. Moreover, the decision, if any, taken by the State authorities under
     Section 20(3)(a)(i) would be subject to judicial review and we do not think
     that the State could make any irrational decision about granting permission.
     Hence, we hold that Section 20(3)(a)(i) is not in any way repugnant to Section
G    10 of AICTE Act and it is constitutionally valid.

          In th~ result, we set aside the judgment of the Division Bench and the
     appeals are allqwed accordingly. There will be no order as to costs.

     B.B.B.                                                         Appeals allowed.