SISTERS OF ST. JOSEPH OF CLUNYversusTHE STATE OF WEST BENGAL & ORS.

                        [2018] 3 S.C.R. 1033                              1033


                SISTERS OF ST. JOSEPH OF CLUNY                            A
                                   v.
               THE STATE OF WEST BENGAL & ORS.
                    (Civil Appeal No. 3945 of 2018)
                            APRIL 18, 2018
                                                                          B
     [ADARSH KUMAR GOEL AND R. F. NARIMAN, JJ.]
       National Commission for Minority Educational Institutions
Act, 2004:
       ss.10(1) and 11(f) – Declaration of minority status to
educational institution – Appellant-Society established the College
                                                                          C
in question as a secular institution – Thereafter, sought minority
status to the College – National Commission for Minority Educational
Institutions (NCMEI) declared the College as minority educational
institution and issued minority status certificate – The Society as
well as Governing Body of the College filed writ petition – High
Court held the declaration and consequent issuance of the certificate     D
as invalid on the ground that NCMEI had no original jurisdiction
to make such declaration – On appeal, held: Section 11(f) is a wide
provision which empowers NCMEI to decide all questions relating
to the status of an institution as a minority institution and declare
its status as such – After Amendment Act, 2006, Competent Authority
                                                                          E
has 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, in
the present case, s. 11(f) confers jurisdiction on NCMEI to issue
certificate regarding minority status to the institution in question –
Therefore the orders by NCMEI are valid – Constitution of India –         F
Art. 30.
       Disposing of the appeals, the Court
       HELD: 1. Article 30 of the Constitution of India grants a
fundamental right to all minorities, whether based on religion or
language, to establish and administer educational institutions of         G
their choice. Section 11(f) empowers the National Commission
for Minority Educational Institutions to decide all questions
relating to the status of an institution as a minority educational
institution and to declare its status as such. The expression “all
questions” as well as the expression “relating to”, which are
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                                 1033
1034            SUPREME COURT REPORTS                      [2018] 3 S.C.R.


 A     words of wide import, clothe the NCMEI with the power to decide
       any question that may arise, which may relate directly or indirectly,
       with respect to the status of an institution as a minority education
       institution. The power under Section 11(f), read by itself, would
       clothe the NCMEI with the power to decide any question that
       may arise with regard to the right to establish and/or administer
 B
       educational institutions by a minority. It also includes the power
       to declare such institution as a minority educational institution,
       which is established and administered as such, so that it can avail
       of the fundamental right guaranteed under Article 30 of the
       Constitution. [Para 16][1048-D-F]
 C            2. However, Section 10(1), which was introduced at the
       same time as Section 11(f) by the Amendment Act of 2006, carves
       out one facet of the aforesaid power contained in Section 11(f),
       namely the grant of a no objection certificate to a minority
       educational institution at its inception. Thus, any person who
 D     desires to establish a minority educational institution after the
       Amendment Act of 2006 came into force, must apply only to the
       competent authority for the grant of a no objection certificate for
       the said purpose. It cannot be said that the said powers are
       concurrent. Harmoniously read, all applications for the
       establishment of a minority educational institution after the
 E     Amendment Act of 2006 must go only to the competent authority
       set up under the statute. On the other hand, for the declaration
       of its status as a minority educational institution at any stage post
       establishment, the NCMEI would have the power to decide the
       question and declare such institution’s minority status. [Para
 F     17][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 order
       dated 5.11.2009 in which the NCMEI had gone into the question
       of the college’s minority status. It would not, therefore, be in the
       fitness of things to send back this matter to be decided afresh at
 G     the behest of a governing body which can no longer claim to govern
       the college set up by the society. As the new governing body has
       been constituted on the footing that the College is a minority
       educational institution, the parallel governing body, which claims
       to continue as such, has no legs to stand after the formation of a
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 SISTERS OF ST. JOSEPH OF CLUNY v. THE STATE OF WEST                        1035
                       BENGAL

new governing body. This being the case, the matter need not                A
be 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 issue
a certificate regarding the status of the minority educational              B
institution. The order dated 23.10.2007 and the certificate dated
25.10.2007 are declared to be valid in law. [Paras 21, 23][1050-
E; 1051-C]
       Governing Body OF P.A.E.M. College v. State of
       Jharkhand decided by Supreme Court on 6.12.2012;
       Corporate Educational Agency v. James Mathew (2017)                  C
       15 SCC 595 – relied on.
                         Case Law Reference
       (2017) 15 SCC 595                 relied on       Para 20
       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3945
                                                                            D
of 2018.
       From the Judgment and Order dated 13.07.2016 of the High Court
of Calcutta, in FMA No. 3579 of 2013.
                                 WITH
       C. A. Nos. 3946, 3947, 3948, 3949 and 3950 of 2018.                  E
       Sanjay Hegde, Shri Chander Udai Singh, Salman Khurshid,
Dr. Rajeev Dhawan, Sr. Advs., Fuzail Ahmad Ayyubi, Abdul Qadir, Ibad
Mushtaq, 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, Arunabh              F
Chowdhury, Karma Dorjee, Ms. Shruti Choudhry, Anupam Lal Das,
Harsh Hiroo Gursahani, Ms. Astha Sharma, Amit Varma, M/s. PLR
Chambers and Co., T. V. George, Dushyant Kumar, Rakesh Taneja,
Pijush K. Roy, Mrs. Kakali Roy, Rajan K. Chourasia, Advs. for the
appearing parties.                                                          G
      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 of
convenience, the facts from the civil appeal arising out of Special Leave
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1036             SUPREME COURT REPORTS                           [2018] 3 S.C.R.


 A     Petition (Civil) No.35786 of 2016 have been taken. The Sisters of St.
       Joseph of Cluny is a society registered under the West Bengal Societies
       Registration Act, 1961, being founded on 26.3.1973. Clause 3(b) of the
       Memorandum of Association of the petitioner-society states:
             “To acquire, take over, rent, provide, establish, aid, maintain,
 B           administer and/or run colleges, schools, institutions, hostels, houses,
             associations, libraries, reading rooms, or any other activity with
             education for its purpose for all persons, primarily for Catholics
             but also for all other persons, irrespective of religion, race, caste,
             community or social status.”
 C             3. The society, in a letter dated 16.12.1997 addressed to the
       Inspector of Colleges, North Bengal University, made it clear that it did
       not seek minority status or special concessions – it wished to establish a
       college on secular lines. On 10.1.1998, the Inspector of Colleges, North
       Bengal University, submitted his inspection report, in which he mentioned
       that originally the society did desire to have minority status for the
 D     proposed college. However, they subsequently changed their mind. As a
       result, the Deputy Secretary, Higher Education Department, Government
       of West Bengal, by its letter dated 21.7.1998, approved the proposal for
       the establishment of Cluny Women’s College, on the footing that it would
       be a non-minority secular institution. On this basis, the first governing
 E     body of the college was constituted in accordance with Statute 1 of the
       Statutes relating to the Governing Bodies of Colleges of North Bengal
       University. On 13.9.2004, the University granted permanent affiliation
       to Cluny Women’s College from the academic year 2003-2004.
               4. Following yet another change of heart, the society issued a
 F     letter to the Chairman, National Commission for Minority Educational
       Institutions (hereinafter referred to as the NCMEI), dated 27.6.2007,
       seeking the issuance of a status certificate of a minority educational
       institution for Cluny Women’s College. The NCMEI passed an ex-parte
       order declaring the said women’s college as a minority educational
       institution on 23.10.2007. Pursuant to this order, on 25.10.2007, the NCMEI
 G     issued a minority status certificate. On 5.9.2008, the Registrar, University
       of North Bengal, filed an application for cancellation of the said
       certificate. 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:
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 SISTERS OF ST. JOSEPH OF CLUNY v. THE STATE OF WEST                             1037
               BENGAL [R. F. NARIMAN, J.]

      “A. A declaration that statute 1 of the statutes relating to governing     A
      bodies of colleges of University of North Bengal is ultra vires and
      unconstitutional;
      B. A writ of mandamus or any other writ, direction or order
      restraining the 3rd respondent from exercising the functions of the
      governing body of Cluny Women’s College and to restrain them               B
      from interfering with the functions of the governing body of Cluny
      Women’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 under
the statute of the University, also filed a writ petition, being W. P. No.       C
5002(W) of 2010, in which it prayed for:
      “(a) A writ of and/or in the nature of mandamus do issue directing
      the respondent authorities to forthwith cancel and/or rescind and/
      or withdraw the purported declaration being F. No. 506 of 2007
      dated 25th October, 2007 issued by the respondent no.3.                    D
      (b) A writ of and/or in the nature of mandamus do issue directing
      the respondents, particularly the respondent nos. 4, 5 and 6, to
      forbear from acting and/or further acting and/or taking any steps
      and/or claiming any right on the basis of the purported declaration
      being F. No. 506 of 2007 dated 25th October, 2007 issued by the            E
      respondent no.3 in any manner whatsoever.
      (c) A declaration do issue declaring that the respondent no.2 does
      not have any jurisdiction to declare an existing educational institution
      to be a minority educational institution.
      (d) A writ of and/or in the nature of mandamus do issue directing          F
      the respondents to forthwith cancel and/or rescind and/or withdraw
      the purported letter dated 20th February, 2010 issued by the
      respondent no.9.
      (e) A writ of and/or in the nature of mandamus do issue directing
      the respondents, particularly the respondent no.9, to allow the            G
      petitioner 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 of
      the petitioner adopted on 29th January, 2010.
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1038             SUPREME COURT REPORTS                           [2018] 3 S.C.R.


 A           (f) A writ of and/or in the nature of certiorari do issue commanding
             the respondents to transmit the entire records of the case to this
             Hon’ble Court forming the basis of the purported declaration being
             F. No. 506 of 2007 dated 25 th October, 2007 issued by the
             respondent no.3 and the purported letter dated 20th February, 2010
             issued by the respondent no.9 and on being so certified quash the
 B
             same so that conscionable justice may be rendered.”
              7. A learned single Judge disposed of both the writ petitions holding
       that the NCMEI had no original jurisdiction to declare the minority status
       of Cluny Women’s College, as a result of which the order dated
       23.10.2007 and the consequent certificate issued thereupon were declared
 C     as invalid. An appeal to the Division Bench met with the same result.
              8. Shri Sanjay R. Hegde, learned senior counsel appearing on
       behalf of the NCMEI, has argued before us that on a true construction
       of Sections 10(1) and Section 11(f) of the National Commission for
       Minority Education Institutions Act, 2004 (hereinafter referred to as the
 D     2004 Act), an institution which seeks a declaration as a minority
       educational institution has the option to apply either to the competent
       authority established under the 2004 Act, or apply directly to the NCMEI.
       According to the learned senior counsel, the power to decide an original
       application, which is contained in Section 11(f), is separate and distinct
 E     from the power contained in Section 12A and 12B, which is an appellate
       power of the NCMEI. According to the learned senior counsel, the 2004
       Act must thus be construed to be an Act which confers concurrent
       power on three sets of authorities, namely, the competent authority set
       up by the statute, authorities set up by the Central or the State Government
       for this purpose, as well as the NCMEI. According to him, therefore, the
 F     judgment was wrong in law and should be set aside.
              9. Shri Chander Uday Singh, learned senior counsel appearing on
       behalf of the petitioner-society, was at pains to point out that even under
       the impugned judgment, it was clear that there was no competent authority
       set up under the statute for the society to apply to, to establish a new
 G     college at the time such application was made by the society.
       Consequently, according to the learned senior counsel, it is clear that it
       was only the NCMEI which the society could have approached. Further,
       according to the learned senior counsel, the institution, being a minority
       institution which had already been established prior to the coming into
 H     force of the 2004 Act, could only go under Section 11(f) to have its
 SISTERS OF ST. JOSEPH OF CLUNY v. THE STATE OF WEST                                1039
               BENGAL [R. F. NARIMAN, J.]

status declared as a minority educational institution. Section 10(1),               A
according to the learned senior counsel, is only for the limited purpose of
establishing a new minority institution for which alone one would have to
go to the competent authority set up under the 2004 Act. According to
the learned senior counsel, the impugned judgment, therefore, deserves
to be set aside.
                                                                                    B
       10. Shri Rajeev Dhavan, learned senior counsel appearing on behalf
of respondent No.3, referred us to the National Commission for Minorities
Act, 1992 and also referred to various provisions of the 2004 Act in
some detail. He pointed out, however, that the 2004 Act was amended
in 2006 and then in 2010, leading to the position that Section 10 would
only deal with the grant of a certificate to a person who desires to establish      C
a minority educational institution for the first time. Otherwise, the
functions of the NCMEI under Section 11(f) would be wide enough to
include 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’s            D
College had been set up as a secular college and it was only in 2007 that
a volte-face was taken by the society to get it declared as a minority
educational institution. As none of the orders passed by the NCMEI
have looked in detail into the aspect of whether such a college can be
declared to be a minority educational institution, after it has opted to be
a secular institution, this is a case which should be remanded to the               E
NCMEI 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 providing
direct affiliation for minority educational institutions to central universities.   F
It was subsequently amended twice in order to further broad base and
expand 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 otherwise
       requires,—                                                                   G
       (aa) “appropriate Government” means,—
       (i) in relation to an educational institution recognized for conducting
       its programmes of studies under any Act of Parliament, the Central
       Government; and
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1040            SUPREME COURT REPORTS                            [2018] 3 S.C.R.


 A           (ii) in relation to any other educational institution recognized for
             conducting its programmes of studies under any State Act, a State
             Government in whose jurisdiction such institution is established
             xxx xxx xxx
             (c) “Commission” means the National Commission for Minority
 B           Educational Institutions constituted under section 3;
             (ca) “Competent authority” means the authority appointed by the
             appropriate Government to grant no objection certificate for the
             establishment of any educational institution of their choice by the
             minorities;
 C
              Section 10 has been amended in three stages since the enactment
       of the 2004 Act as follows:
                            “Stage I (as enacted in 2004)
             10. Right of a Minority Educational Institution to seek
 D           affiliation to a Scheduled University:
             (1) Notwithstanding anything contained in any other law for the
             time being in force, a Minority Educational Institution may seek
             recognition as an affiliated college of a Scheduled University of
             its choice.
 E           (2) The Scheduled University shall consult the Government of the
             State in which the minority educational institution seeking affiliation
             under sub-section (1) is situated and views of such Government
             shall be taken into consideration before granting affiliation.
                            Stage II (as amended in 2006)
 F
             10. Right to establish a Minority Educational Institution:
             (1) Any person who desires to establish a Minority Educational
             Institution may apply to the Competent authority for the grant of
             no objection certificate for the said purpose.
             (2) The Competent authority shall,-
 G
             (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 expeditiously
             as possible and grant or reject the application, as the case may be:
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SISTERS OF ST. JOSEPH OF CLUNY v. THE STATE OF WEST                       1041
              BENGAL [R. F. NARIMAN, J.]

   Provided that where an application is rejected, the Competent          A
   authority shall communicate the same to the applicant.
   (3) Where within a period of ninety days from the receipt of the
   application under sub-section (1) for the grant of no objection
   certificate-
                                                                          B
   (a) the Competent authority does not grant such certificate; or
   (b) where an application has been rejected and the same has not
   been communicated to the person who has applied for the grant
   of such certificate,
   it shall be deemed that the Competent authority has granted a no       C
   objection certificate to the applicant.
   (4) The applicant shall, on the grant of a no-objection certificate
   or where the Competent authority has deemed to have granted
   the no objection certificate, be entitled to commence and proceed
   with the establishment of a Minority Educational Institution in        D
   accordance 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 under         E
   sub-section (1) for establishment of a Minority Educational
   Institution;
   (b) “no objection certificate” means a certificate stating therein,
   that the Competent authority has no objection for the establishment
   of a Minority Educational Institution.                                 F
                 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 the
   time being in force, any person, who desires to establish a Minority   G
   Educational Institution may apply to the competent authority for
   the grant of no objection certificate for the said purpose.
   (2) The Competent authority shall,—

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1042           SUPREME COURT REPORTS                           [2018] 3 S.C.R.


 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 expeditiously
            as possible and grant or reject the application, as the case may be:
 B          Provided that where an application is rejected, the Competent
            authority shall communicate the same to the applicant.
            (3) Where within a period of ninety days from the receipt of the
            application under sub-section (1) for the grant of no objection
            certificate,—
 C
            (a) the Competent authority does not grant such certificate; or
            (b) where an application has been rejected and the same has not
            been communicated to the person who has applied for the grant
            of such certificate,
 D          it shall be deemed that the Competent authority has granted a no
            objection certificate to the applicant.
            (4) The applicant shall, on the grant of a no objection certificate
            or where the Competent authority has deemed to have granted
            the no objection certificate, be entitled to commence and proceed
 E          with the establishment of a Minority Educational Institution in
            accordance 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 under
 F          subsection (1) for establishment of a Minority Educational
            Institution;
            (b) “no objection certificate” means a certificate stating therein,
            that the Competent authority has no objection for the establishment
            of a Minority Educational Institution.”
 G
             Section 11 has been amended since the enactment of the 2004
       Act as follows:
                         “Section 11 (as enacted in 2004)
            11. Functions of Commission.—Notwithstanding anything
 H
SISTERS OF ST. JOSEPH OF CLUNY v. THE STATE OF WEST                         1043
              BENGAL [R. F. NARIMAN, J.]

   contained in any other law for the time being in force, the              A
   Commission shall-
   (a) advise the Central Government or any State Government on
   any question relating to the education of minorities that may be
   referred to it;
   (b) look into specific complaints regarding deprivation or violation     B
   of rights of minorities to establish and administer educational
   institutions of their choice and any dispute relating affiliation to a
   Scheduled University and report its findings to the Central
   Government for its implementation; and
   (c) to do such other acts and things as may be necessary, incidental     C
   or conducive to the attainment of all or any of the objects of the
   Commission.
                Section 11 (as amended in 2006)
   11. Functions of Commission.— Notwithstanding anything                   D
   contained in any other law for the time being in force, the
   Commission shall—
   (a) advise the Central Government or any State Government on
   any question relating to the education of minorities that may be
   referred to it;
                                                                            E
   (b) enquire, suo motu, or on a petition presented to it by any
   Minority Educational Institution, or any person on its behalf into
   complaints regarding deprivation or violation of rights of minorities
   to establish and administer educational institutions of their choice
   and any dispute relating to affiliation to a University and report its
                                                                            F
   finding to the appropriate Government for its implementation;
   (c) intervene in any proceeding involving any deprivation or violation
   of the educational rights of the minorities before a court with the
   leave of such court;
   (d) review the safeguards provided by or under the Constitution,         G
   or any law for the time being in force, for the protection of
   educational rights of the minorities and recommend measures for
   their effective implementation;
   (e) specify measures to promote and preserve the minority status
                                                                            H
1044            SUPREME COURT REPORTS                            [2018] 3 S.C.R.


 A           and character of institutions of their choice established by
             minorities;
             (f) decide all questions relating to the status of any institution as a
             Minority Educational Institution and declare its status as such;
             (g) make recommendations to the appropriate Government for
 B           the effective, implementation of programmes and schemes relating
             to the Minority Educational Institutions; and
             (h) do such other acts and things as may be necessary, incidental
             or conducive to the attainment of all or any of the objects of the
             Commission.”
 C
       Section 12, 12A, 12B, 12C, 12F and Section 22 are as follows:
             “12. Powers of Commission.—
             (1) If any dispute arises between a minority educational institution
             and a University relating to its affiliation to such University, the
 D           decision of the Commission thereon shall be final.
             (2) The Commission shall, for the purposes of discharging its
             functions under this Act, have all the powers of a civil court trying
             a suit and in particular, in respect of the following matters, namely:—
             (a) summoning and enforcing the attendance of any person from
 E
             any 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 Indian
 F           Evidence Act, 1872, (1 of 1872) requisitioning any public record
             or document or copy of such record or document from any office;
             (e) issuing commissions for the examination of witnesses or
             documents; and
             (f) any other matter which may be prescribed.
 G
             3) Every proceeding before the Commission shall be deemed to
             be a judicial proceeding within the meaning of sections 193 and
             228, and for the purposes of section 196, of the Indian Penal Code
             (45 of 1860) and the Commission shall be deemed to be a civil
             court for the purposes of section 195 and Chapter XXVI of the
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SISTERS OF ST. JOSEPH OF CLUNY v. THE STATE OF WEST                          1045
              BENGAL [R. F. NARIMAN, J.]

   Code of Criminal Procedure, 1973 (2 of 1974).].                           A
   12A. Appeal against orders of the Competent authority.—
   (1) Any person aggrieved by the order of refusal to grant no
   objection certificate under sub-section (2) of section 10 by the
   Competent authority for establishing a Minority Educational
   Institution, may prefer an appeal against such order to the               B
   Commission.
   (2) An appeal under sub-section (I) shall be filed within thirty
   days from the date of the order referred to in sub-section (I)
   communicated to the applicant:
                                                                             C
   Provided that the Commission may entertain an appeal after the
   expiry of the said period of thirty days, if it is satisfied that there
   was sufficient cause for not filing it within that period.
   (3) An appeal to the Commission shall be made in such form as
   may be prescribed and shall be accompanied by a copy of the               D
   order against which the appeal has been filed.
   (4) The Commission, after hearing the parties, shall pass an order
   as soon as may be practicable, and give such directions as may
   be necessary or expedient to give effect to its orders or to prevent
   abuse of its process or to secure the ends of justice.
                                                                             E
   (5) An order made by the Commission under sub-section (4) shall
   be executable by the Commission as a decree of a civil court and
   the 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 decree
   of a civil court.
                                                                             F
   12B. Power of Commission to decide on the minority status
   of an educational institution.—
   (1) Without prejudice to the provisions contained in the National
   Commission for Minorities Act, 1992 (19 of 1992), where an
   authority established by the Central Government or any State              G
   Government, as the case may be, for grant of minority status to
   any educational institution rejects the application for the grant of
   such status, the aggrieved person may appeal against such order
   of the authority to the Commission.

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1046      SUPREME COURT REPORTS                              [2018] 3 S.C.R.


 A     (2) An appeal under sub-section (1) shall be preferred within thirty
       days from the date of the order communicated to the applicant:
       Provided that the Commission may entertain an appeal after the
       expiry of the said period of thirty days, if it is satisfied that there
       was sufficient cause for not filing it within that period.
 B     (3) An appeal to the Commission shall be made in such form as
       may be prescribed and shall be accompanied by a copy of the
       order against which the appeal has been filed.
       (4) On receipt of the appeal under sub-section (3), the Commission
       may, after giving the parties to the appeal an opportunity of being
 C     heard, decide on the minority status of the educational institution
       and shall proceed to give such direction as it may deem fit and, all
       such 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 which
 D     is established under any law for the time being in force or under
       any order of the appropriate Government, for the purpose of
       granting a certificate of minority status to an educational institution.
       12C. Power to cancel.—
       The Commission may, after giving a reasonable opportunity of
 E     being heard to a Minority Educational Institution to which minority
       status has been granted by an authority or Commission, as the
       case may be, cancel such status under the following circumstances,
       namely:-
       (a) if the constitution, aims and objects of the educational institution,
 F     which has enabled it to obtain minority status has subsequently
       been amended in such a way that it no longer reflects the purpose
       or character of a Minority Educational Institution;
       (b) if, on verification of the records during the inspection or
       investigation, it is found that the Minority Educational Institution
 G     has failed to admit students belonging to the minority community
       in the institution as per rules and prescribed percentage governing
       admissions during any academic year.
       xxx xxx xxx
       12F. Bar of jurisdiction.— No court (except the Supreme Court
 H
 SISTERS OF ST. JOSEPH OF CLUNY v. THE STATE OF WEST                            1047
               BENGAL [R. F. NARIMAN, J.]

      and a High Court exercising jurisdiction under articles 226 and           A
      227 of the Constitution) shall entertain any suit, application or other
      proceedings in respect of any order made under this Chapter.
      xxx xxx xxx
      22. Act to have overriding effect.—
                                                                                B
      The provisions of this Act shall have effect notwithstanding
      anything inconsistent therewith contained in any other law for the
      time being in force or in any instrument having effect by virtue of
      any law other than this Act.”
        13. The National Commission for Minority Educational Institutions       C
Act, as it originally stood in 2004, by Section 10 only concerned itself
with the recognition of minority educational institutions to an affiliated
college of a scheduled university of its choice. At this stage, the functions
of the NCMEI were limited to only three things, namely, an advisory
function under sub clause (a); looking into specific complaints relating to
deprivation or violation of rights of minorities to establish and administer    D
educational institutions of their choice and any disputes relating to
affiliation to scheduled universities under sub-clause (b); and a residuary
clause to do all such other acts as may be necessary to the attainment of
the objects of the NCMEI under sub-clause (c). A sea change came
about by the Amendment Act of 2006. By this amendment, a person                 E
who desires to establish a minority educational institution is to apply to
the competent authority for a no objection certificate for the said purpose
under Section 10. Concomitantly, under Section 11, the functions and
powers 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 a    F
minority educational institution and declaration of its status as such. The
same Amendment Act of 2006 also conferred powers of appeal against
orders of the competent authority to the NCMEI under Section 12A as
well as over authorities that were established by the Central or State
Government, who rejected applications for the grant of minority status          G
to an educational institution, under Section 12B. A power of cancellation
was also vested in the NCMEI to cancel a certificate granted either by
an authority or the NCMEI under certain circumstances.
       14. The Amendment Act of 2010 added the expression “subject
to the provisions contained in any other law for the time being in force…”
                                                                                H
1048             SUPREME COURT REPORTS                              [2018] 3 S.C.R.


 A     to Section 10(1) of the 2004 Act.
              15. At first blush, it does appear that there is a clash between the
       provisions of Section 10(1) and Section 11(f) of the 2004 Act.
       Harmoniously construed, however, it would be clear that the NCMEI’s
       powers under Section 11(f) are to be exercised, notwithstanding anything
 B     contained in any other law for the time being in force. On the other
       hand, the competent authority who grants a no objection certificate under
       Section 10 can only do so subject to the provisions contained in any
       other law for the time being in force.
               16. Secondly, Section 11(f) is a very wide provision which
 C     empowers the NCMEI to decide all questions relating to the status of an
       institution as a minority educational institution and to declare its status as
       such. The expression “all questions” as well as the expression “relating
       to”, which are words of wide import, clothe the NCMEI with the power
       to decide any question that may arise, which may relate directly or
       indirectly, with respect to the status of an institution as a minority education
 D     institution. Looked at by itself, Section 11(f) would include the declaration
       of the status of an institution as a minority educational institution at all
       stages. Article 30 of the Constitution of India grants a fundamental right
       to all minorities, whether based on religion or language, to establish and
       administer educational institutions of their choice. The power under
 E     Section 11(f), read by itself, would clothe the NCMEI with the power to
       decide any question that may arise with regard to the right to establish
       and/or administer educational institutions by a minority. The power does
       not stop there. It also includes the power to declare such institution as a
       minority educational institution, which is established and administered as
       such, so that it can avail of the fundamental right guaranteed under Article
 F     30 of the Constitution.
              17. However, Section 10(1), which was introduced at the same
       time as Section 11(f) by the Amendment Act of 2006, carves out one
       facet of the aforesaid power contained in Section 11(f), namely the grant
       of a no objection certificate to a minority educational institution at its
 G     inception. Thus, any person who desires to establish a minority educational
       institution after the Amendment Act of 2006 came into force, must apply
       only to the competent authority for the grant of a no objection certificate
       for the said purpose. It is a little difficult to subscribe to Shri Hegde’s
       argument that the said powers are concurrent. Harmoniously read, all
 H     applications for the establishment of a minority educational institution
 SISTERS OF ST. JOSEPH OF CLUNY v. THE STATE OF WEST                            1049
               BENGAL [R. F. NARIMAN, J.]

after the Amendment Act of 2006 must go only to the competent authority         A
set up under the statute. On the other hand, for the declaration of its
status as a minority educational institution at any stage post establishment,
the NCMEI would have the power to decide the question and declare
such institution’s minority status.
        18. We find that various High Courts have taken conflicting views       B
on the reach of these provisions. The Calcutta, Bombay and Punjab
High Courts have taken the view that an appellate power cannot be
confused with an original power and that, therefore, Section 11(f) cannot
be pressed into service at all when it comes to declare of the status of a
minority institution. This view, apart from stultifying Section 11(f), also
ignores Section 12(2) of the Act, which confers certain powers of a             C
Civil Court, which powers refer only to a Court of first instance. On the
other hand, the Allahabad High Court has taken the view that Section 10
and 11(f) operate in different fields: Section 10 being the power to grant
a no objection certificate to establish an institution and Section 11(f)
relating to the determination of all questions relating to the status of an     D
institution.
       19. This Court has touched upon the subject without directly
answering the question posed before us. Thus, in Governing Body
OF 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:     E
      “From the above provisions, it is clear that the Commission has
      the power to decide all questions relating to the status of any
      institution as minority educational institution and declare its status
      as such. More over under Section 12B, where an authority
      established by the Central Government or any State Government             F
      has rejected the application for grant of minority status to any
      educational institution, the aggrieved person may appeal against
      such order of the authority to the Commission. The provisions
      contained in Section 11(f) of 2004 Act and Section 12B of the
      Amendment Act are, thus, wholesome provisions for deciding all
      questions relating to the status of any institution as minority           G
      educational 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 dealt
with a judgment of the High Court, which in turn dealt with the appointment
                                                                                H
1050             SUPREME COURT REPORTS                            [2018] 3 S.C.R.


 A     of teachers in minority educational institutions. This Court, after noticing
       that 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 minority
 B           educational institution, has to apply to the competent authority for
             a “no-objection certificate”. The “competent authority” is defined
             under Section 2(ca) of the Act to mean, the authority appointed
             by the appropriate Government to grant “no-objection certificate”
             for the establishment of any educational institution of their choice
             by the minorities.
 C
             xxx xxx xxx
             11. Therefore, after the introduction of the National Commission
             for Minority Educational Institutions Act, 2004, it is also within the
             jurisdiction and mandate of the National Commission to issue the
 D           certificate regarding the status of a minority educational institution.
             Once the Commission thus issues a certificate, it is a declaration
             of an existing status.”
              21. This judgment unequivocally holds that, insofar as existing
       minority institutions are concerned, Section 11(f) clearly confers
 E     jurisdiction on the NCMEI to issue a certificate regarding the status of
       the minority educational institution. We respectfully concur with the
       aforesaid view.
              22. Shri Dhavan, however, exhorted us to send back the matter to
       the NCMEI for a hearing de novo on merits. We may mention that the
 F     fact that the college was begun as a secular institution and wished to
       change into a minority educational institution midstream, which was not
       permissible according to Shri Dhavan, is not a plea taken up before the
       learned single Judge. This plea, however, was raised before the Division
       Bench and answered by both Judges stating that the fundamental right
       under Article 30 cannot be waived. While agreeing with this view, it is
 G     necessary to point out, on the facts of the case, that the University of
       North Bengal has accepted the NCMEI’s order dated 5.11.2009, in which
       the NCMEI went into the aforesaid question. It would not, therefore, be
       in the fitness of things to send back this matter to be decided afresh at
       the behest of a governing body which can no longer claim to govern the
       college set up by the society. It needs only be pointed out that, by a letter
 H
 SISTERS OF ST. JOSEPH OF CLUNY v. THE STATE OF WEST                              1051
               BENGAL [R. F. NARIMAN, J.]

dated 4.5.2009, the Principal of Cluny Women’s College requested the              A
Vice-Chancellor of the University to extend the term of the governing
body set up under the statutes of the University only until the constitution
of a new governing body. As the new governing body has been constituted
on the footing that Cluny Women’s College is a minority educational
institution, we are of the view that the parallel governing body, which
                                                                                  B
claims to continue as such, has no legs to stand after the formation of a
new governing body. This being the case, we are not inclined to send
the matter back to the NCMEI for a de novo hearing on merits at the
behest of Shri Dhavan’s client.
       23. The appeal is, accordingly, allowed and the judgment of the
Calcutta High Court is set aside. The order dated 23.10.2007 and the              C
certificate dated 25.10.2007 are declared to be valid in law.
       24. In view of the above, the present batch of appeals is disposed
of in accordance with this judgment.
                                                                                  D
Kalpana K. Tripathy                                        Appeals disposed of.




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