IndiaStudyCenter.com - Supreme Court judgement on Private Universities of Chhattisgarh

New Delhi
11-February-2005

Here is the complete text from the official website of Supreme court in regard to the sensational judgement on Private Universities in Chhattisgarh.

Prof. Yashpal & Anr. Vs. State of Chhattisgarh & Ors.
Coram: CJI ,G. P. Mathur , P.K. Balasubramanyan 11/ 02/ 2005

CASE NO.:
Writ Petition (civil) 19 of 2004

PETITIONER:
Prof. Yashpal & Anr.

RESPONDENT:
State of Chhattisgarh & Ors.

DATE OF JUDGMENT: 11/02/2005

BENCH:
CJI,G. P. Mathur & P.K. Balasubramanyan

JUDGMENT:
JUDGMENT
With Writ Petition (Civil) Nos.295, 299, 346 and 525 of 2004, Writ
Petition (Civil) Nos.565 of 2003, Civil Appeal Nos.5146, 5161, 5171, 5172,
5174, 5175, 5180, 5184, 5185, 5188, 5189, 5190, 5191, 5197 and 5198 of
2004.

G.P. MATHUR, J.

1. Professor Yashpal, an eminent Scientist and former Chairman of University Grants Commission, has filed Writ Petition No.19 of 2004 under Article 32 of the Constitution by way of public interest litigation for declaring certain provisions of The Chhattisgarh Niji Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002 as ultra vires and for quashing of the notifications issued by State of Chhattisgarh in the purported exercise of power conferred by Section 5 of the said Adhiniyam for establishing various universities.. The other petitioner who has joined in the petition, is a resident of Chhattisgarh and is concerned with the quality of education in his State. The respondent no.1 to the petition is the State of Chhattisgarh, respondent no.2 is the University Grants Commission and respondent nos.3 to 94 are the private universities which have been established by the State of Chhattisgarh under the aforesaid Adhiniyam.

2. The Chhattisgarh Legislature enacted the Chhattisgarh Niji Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002 (for short 'the Act') which was published in the Gazette on 4.2.2002 to establish self- financed private universities for higher education. Under Section 5 of the Act the State has been empowered to incorporate and establish a university by issuing a notification in the Gazette and Section 6 permits such university to affiliate any college or other institution or to set up more than one campus with the prior approval of the State Government. The main averments in
the petition are that after coming into force of the Act, the State Government
has been, simply by issuing notifications in the Gazette, establishing universities in an indiscriminate and mechanical manner without having slightest regard to the availability of any infrastructure, teaching facility or their financial resources. In a short span of about one year as many as 112 universities were established and many of them had absolutely no buildings or campus and were running from one room tenements. There was absolutely no regulation or supervision over them. The legislation has been
enacted in a manner which has completely done away with any kind of control of University Grants Commission (for short 'UGC') over these private universities. The guidelines issued by UGC on the courses being taught and award of academic degrees has been given a complete go-by. The universities issued brochures for award of all kinds of degrees like "Member of the International Institute of Medical Sciences", "Fellow of the International Institute of Medical Sciences" and many other similar degrees.
The universities are wholly incapable of imparting any education much less
a quality education in absence of basic infrastructure like classrooms, libraries, laboratories or campus. Nevertheless by conferment of a legal status of a university, they have been empowered to award degrees. The private universities are running professional courses without taking prior permission from regulatory bodies such as All India Council of Technical Education (AICTE), Medical Council of India (MCI), Dental Council of India (DCI), etc. The requirement of obtaining prior permission from the regulatory bodies has not been followed and the universities are not under the control of any authority and are at liberty to grant degrees, diplomas and certificates to gullible students. The State Government has not done any verification or checking of universities after issuance of notification in the Gazette, whether they fulfill any norms laid down by the statutory bodies, which is essential for recognition of the degrees, diplomas and certificates awarded by such universities. In absence of requisite permission from the statutory bodies, the degrees and certificates awarded by such universities would not be recognized by the professional organizations, as a result
whereof the students studying in such universities and obtaining the degrees therefrom would suffer immense loss, both in terms of money and also the time spent in completing the courses. It is further averred that the University Grants Commission Act is made nugatory as private universities are offering courses without subscribing to the standards laid down by the UGC and there being no homogeneity of the course content, the degree awarded may not be of any value. The private universities are offering unheard of courses and degrees which are not part of schedule to the UGC Act, which is in clear violation of Section 22 of the aforesaid Act and the Schedule appended
thereto. The minimum requirement of teaching staff as laid down in the
guidelines of UGC had also been given a complete go-by. Young students
are being misled in enrolling themselves in courses which do not have any
substantive content and the degrees offered by such private universities
would affect the standard of education at large which in turn will jeopardize
the educational system of the whole country and not that of State of
Chhattisgarh alone.

3. Some photographs have also been filed which show that a signboard
mentioning the name of the University is put over small room or shop on
first or second floor in some congested market area. That they are
functioning from small premises which are sometimes a single small room in
a commercial complex or a small tenement on the first or second floor of a
building or an ordinary flat or MIG house is evident from their address and a
few of them are being reproduced below by way of illustration :

Respondent No.3 : Thamath University, Raipur
Room No.201, IInd Floor
Raipur Commercial Complex
Jairam Complex, Raipur.

Respondent No.13 : I.I.L.M. University
Mishr Bhawan, 1st Floor
Tatyapara, Raipur.

Respondent No.36 : Supreme University
M.I.G. 6, Sector 3
Shankar Nagar, Raipur.

Respondent No.37 : E.M.P.I. University
C-9-12, 1st Floor
Ekatam Prishar
Rajbandha Maidan, Raipur.

Respondent No.42 : Jaipuria University, Raipur
1st Floor, Mishr Bhawan, Raipur.

Several such universities are functioning outside the State of Chhattisgarh, and their addresses as given below demonstrate the said fact :

Respondent No.7 : N.I.I.L.M. University
11/66, Shershah Suri Marg
Mohan Co-operative Industrial Estate,
New Delhi.

Respondent No.9 : Lovely University
Lovely Auto Complex
Dr. Ambedkar Chowk
Jalandhar City.

Respondent No.10 : Babu Banarasi Dass University
Babu Banarasi Dass Northern Indian Foundation
Upper Ground Floor, 338-384, S- Block
New Rajinder Nagar, New Delhi.

Respondent No.12 : Dr. Zakir Hussain National University
Unopcharik av Anvrat Shikshan Sansthan
Satellite Centre, Balley Road
Patna.

Respondent No.45 : Bio-Informatics, Bio-Tech. and Life Science
University, Raipur
Bio-Informatic Institute of India
B-5, Sector 3
Noida.

Respondent No.46 : Institute of Business Administration
(N.C.D. Office) Ground Floor
E-382, Greater Kailash Part II
New Delhi.

Respondent No.53 : Adarsh University of Science & Technology,
Chhattisgarh,
N.I.C.I. Society, 54, Todarmal Road
Bengali Market
New Delhi.

4. Writ Petition (Civil) No. 565 of 2003 has been filed by Gopal Ji Agarwal with the same prayer, namely, that the Chhattisgarh Niji Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam 2002 be declared as ultra vires being violative of Constitution of India, and also contrary to the provisions of University Grants Commission Act, 1956, Indian Medical Council Act, 1956, All India Council for Technical Education Act, 1987 and Bar Council of India Act, 1956. A further prayer has been made that a writ
of prohibition may be issued restraining the private universities incorporated
under the aforesaid Act from imparting any education and conferring any
degrees or diplomas. The averments made in the writ petition are
substantially the same as made in the writ petition filed by Prof. Yash Pal,
that a large number of universities have been incorporated by merely issuing
gazette notifications though they do not have any kind of infrastructure or
teaching facility and are functioning from one room tenement in a second or
third floor in a residential or commercial building and without any teaching
staff. The universities have been established merely to confer degrees and
they have on their own created a large number of degrees and diplomas
which are totally unheard of. The universities had issued advertisements for
opening up study centres in different parts of the country for award of any
number of degrees and diplomas. By way of illustration, copies of
advertisements issued by some of the universities have been filed. One of
such university, namely, the Indian University, issued an advertisement
inviting applications for Nodal Service Centres/University Centres for
awarding the following kind of degrees and diplomas:

? Master of Biotechnology Administration (MBA) - 2 Yrs.
? Master of Insurance Management (MIM) - 2 Yrs.
? M. Tech in Bioinformatics - 2 Yrs.
? M. Tech VLSI (Very Large Scale Intg. Circuits) - 2 Yrs.
? M. Tech Elect. Mechanics & Power Semi
Conductor Drive - 2 Yrs.
? M. Tech Energy Management Systems - 2 Yrs.
? M.Sc. Cheminformatics (Intg)/Bioinformatics(Intg) - 5 Yrs.
? M.Sc. Biotechnology (Intg.) - 5 Yrs.
? M.Sc. Bioinformatics/Biotechnology - 2 Yrs.
? B.Sc. with Bioinformatics/Microbiology/
Biotechnology - 3 Yrs.
? B.Sc. with Automobiles Science - 3 Yrs.
? PGD in Biotech Marketing - 1 Yr.
? PGD in Imaging (CT Scan) & (MRI) - 2 Yrs.
? PGD in Bioinformatics - 1.5 Yrs.
? PG Diploma in Cheminformatics - 1 Yr.
? PG Diploma in Mobile Technology - 1 Yr.
? PG Diploma in Energy Audit and Conservation - 1 Yr.
? PG Diploma in Acturial/Sciences in Bioinformatics- 1 Yr.

The writ petitioner, not knowing the correct facts, responded for
opening up a study centre and he was asked to deposit Rs. 50,000/- which
he did by two Demand Drafts. On enquiry regarding prior permission from
Medical Council of India, the Registrar of the Indian University issued a
certificate which reads as under:

" Certified that following PARA MEDICAL COURSES
are approved by INDIAN UNIVERSITY, RAIPUR.

1) B P T - 2 Year
2) Bachelor of Ophthalmology - 2 Year
3) B M L T - 4 Year
4) PG Diploma in Imaging (MRI) 1 Year

It is further certified that for Para Medical Course MCI
approval is not required and it is not covered by MCI
also."

It is further averred that the Indian University, Raipur also issued an
advertisement inviting applications for admission to certain types of
technical courses in its alleged campus at Graduate School of Business &
Administration, Greater Noida, which is in the district of Gautam Budh
Nagar, in the State of UP and it was mentioned therein that the candidates
may apply to the Registrar by sending a Bank Draft of Rs. 800/-. A
photocopy of the advertisement has been filed. It has thus been submitted
that though the private universities have no infrastructure for imparting any
kind of education, they were alluring people all over the country to open
study centres for which they were charging huge amount and also befooling
students to apply for admission to wholly unknown and unheard of
technical, medical and other professional courses which are not recognized
by any statutory authority, and thereby a substantial amount of money has
been collected.

5. In a stereotyped manner Gazette notifications were issued notifying a
University and by way of illustration one such notification is being
reproduced below :
"Raipur, the 11th October, 2002

No. F. 679//02. In exercise of the powers
conferred by sub-Section (1) of Section 5 of the Chhattisgarh
Niji Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman),
Adhiniyam, 2002 (No. 2 of 2002) for extension of
Higher/Technical Education in Chhattisgarh, hereby,
establishes a University known as "Indian University, Raipur"
with effect from the date of publication of this notification in
the Chhattisgarh Gazette and the jurisdiction of the University
shall extend over whole of Chhattisgarh.

2. The Head Office of the University shall be at Raipur.

3. The State Government, hereby authorizes "Indian
University, Raipur" to conduct the syllabus and to grant
degree or diplomas for which it shall be recognized or
authorized as may be required under any other law for
the time being in force."

6. Several legal issues have also been raised in the writ petitions and the
principal being that the manner in which these private universities are
functioning would result in creating a complete chaos in the system of
higher education in the country and the expert bodies created by the Central
Government like, University Grants Commission, Medical Council of India,
All India Council for Technical Education etc. for coordination and
determination of standards in their own respective fields would not be able
to perform their statutory duty and would make their functioning not only
difficult but almost impossible.

7. The State of Chhattisgarh has filed brief but almost identical counter
affidavits in both the writ petitions. The main plea taken therein is that in
view of Entry 32 List II of Seventh Schedule to the Constitution, the State
has the legislative competence to make an enactment regarding
incorporation of a University. The impugned Act had been passed to
facilitate establishment of private Universities with a view to create
supplementary resources for assisting the State Government in providing
quality higher education. The notifications establishing the Universities
were issued on the basis of the representations made by the sponsoring
bodies as set out in their project reports. The State Government expected
that the Universities would make the requisite infrastructure including
campus, building, etc. and recruit qualified staff so as to provide higher
education in order to achieve the object for which the Universities were
established. However, the functioning of the Universities post notification
was dismal and completely belied the expectations which the State
Government had in that behalf, raising serious concern about the academic
interests of the students seeking admission therein. The State Legislature,
accordingly, enacted the Chhattisgarh Niji Kshetra Vishwavidyalaya
(Sthapana Aur Viniyaman) Sansodhan Adhiniyam, 2004. After expiry of
the time limit fixed in the aforesaid amending Act, 59 Universities were de-
notified on account of their failure to comply with the amended provisions.
It is further averred that after the Act had been amended in the year 2004,
the petitioners' grievance has been completely met and consequently the
writ petitions deserve to be dismissed.

8. Before we advert to the principal submission of learned counsel for
the parties regarding the vires of Section 5 and 6 of the Act, it is necessary
to take note of the relevant constitutional provisions dealing with education
and Universities, both under Government of India Act, 1935, and the
Constitution.

SEVENTH SCHEDULE OF GOVERNMENT OF INDIA ACT, 1935

LIST 1 FEDERAL LEGISLATIVE LIST

12. Federal agencies and institutes for the following purposes, that is
to say, for research, for professional or technical training, or for the
promotion of special studies.

13. The Banaras Hindu University and the Aligarh Muslim University.

LIST II PROVINCIAL LEGISLATIVE LIST
17. Education including Universities other than specified in paragraph
13 of List I.

33. The incorporation, regulation, and winding up corporations (not
being Corporations specified in List I or Universities);
unincorporated trading, literary, scientific, religious and other
societies and associations; co-operative societies.

SEVENTH SCHEDULE TO THE CONSTITUTION OF INDIA
LIST I UNION LIST
63. The institutions known at the commencement of this Constitution
as the Banaras Hindu University, the Aligarh Muslim University
and the Delhi University; the University established in pursuance
of article 371E; any other institution declared by Parliament by law
to be an institution of national importance.

64. Institutions for scientific or technical education financed by the
Government of India wholly or in part and declared by Parliament
by law to be institutions of national importance.

65. Union agencies and institutions for
(a) professional, vocational or technical training, including the
training of police officers; or

(b) the promotion of special studies or research; or
(c) scientific or technical assistance in the investigation or
detection of crime.

66. Co-ordination and determination of standards in institutions for
higher education or research and scientific and technical education.

LIST II STATE LIST
11. Education including universities, subject to the provisions of
Entries 63, 64, 65 and 66 of List I and Entry 25 of List III.

(This Entry was deleted by Forty-second Amendment Act)
32. Incorporation, regulation and winding up of corporation, other than
those specified in List I, and universities; unincorporated trading,
literary, scientific, religious and other societies and associations;
co-operative societies.

LIST III CONCURRENT LIST
25. Education, including technical education, medical education and
universities, subject to the provisions of entries 63, 64, 65 and 66
of List I; vocational and technical training of labour.

The Constitution (Forty-second Amendment) Act, 1976 which came
into force on 3.1.1977 omitted Entry 11 from List II and transferred that
subject to be combined with Entry 25 of List III.

9. The foundation for a federal set up for the nation was laid in the
Government of India Act, 1935. Though in every respect the distribution of
legislative power between the Union and the States as envisaged in the 1935
Act has not been adopted in the Constitution but the basic framework is
same. It will be seen that Entry 17 in List II of Seventh Schedule in
Government of India Act specifically provided for Universities and the same
is now part of Entry 32 in List II of the Seventh Schedule of the
Constitution. Entries 17 and 33 of List II of Government of India Act have
been combined and made one composite entry (Entry 32) in List II of the
Seventh Schedule of the Constitution.

10. How the word "Universities" occurring as a legislative head in the
Seventh Schedule should be interpreted, one has to look to the legislative
practice regarding interpretation of Constitutional entries. For this purpose,
it will be useful to refer to some well-known decisions.

In South Carolina v. United States, (1905) 199 US 437, the principle
was stated as under :

"To determine the extent of the grants of power,
we must, therefore, place ourselves in the position of the
men who framed and adopted the Constitution, and
inquire what they must have understood to be the
meaning and scope of those grants."

In Ex parte Grossman, (1925) 267 US 87, the U.S. Supreme Court
observed that the language of the Constitution cannot be interpreted safely
except by reference to the common law and to British institutions as they
were when the instrument was framed and adopted. In Croft v. Dunphy,
1933 AC 156, it was held as under :
"When a power is conferred to legislate on a
particular topic it is important, in determining the scope
of the power, to have regard to what is ordinarily treated
as embraced within that topic in legislative practice and
particularly in the legislative practice of the State which
has conferred the power. Thus in considering what might
be appropriately and legitimately enacted in relation to
"bankruptcy and insolvency" it was considered relevant
to discuss the usual contents of bankruptcy statutes."

Similarly, in Wallace Brothers and Co. Ltd. v. Commissioner of
Income-tax, Bombay, AIR 1948 PC 118, the Judicial Committee observed
that where Parliament has conferred a power to legislate on a particular topic
it is permissible and important in determining the scope and meaning of the
power to have regard to what is ordinarily treated as embraced within that
topic in the legislative practice of the United Kingdom. The object is to
ascertain the general conception involved in the words in the enabling Act.

11. In Constitutional Law of India by Seervai, the learned author has said
in para 2.12 (3rd ed.) that the golden rule of interpretation is that words
should be read in their ordinary, natural and grammatical meaning subject to
the rider that in construing words in a Constitution conferring legislative
power the most liberal construction should be put upon the words so that
they may have effect in their widest amplitude. This is subject to certain
exceptions and a restricted meaning may be given to words if it is necessary
to prevent a conflict between two exclusive entries.

12. The framers of the Constitution having adopted (with some
modification) the legislative entries on Universities from the Government of
India Act, 1935 made by the British Parliament, the full content and
amplitude of the entry can be comprehended by examining how a University
is understood and what is its concept in U.K. and U.S.A. whose pattern was
followed in several matters and which the founding fathers had in their
mind.

13. In Volume 15 Halsbury's Laws of England (Fourth ed. Reissue) what
is a University and how it is incorporated is described as under :

Para 256. General. A university is the whole body of teachers and
scholars engaged, at a particular place, in giving and
receiving instruction in the higher branches of learning;
such persons associated together as a society or corporate
body, with definite organization and acknowledged
powers and privileges (especially that of conferring
degrees), and forming an institution for the promotion of
education in the higher or more important branches of
learning; also, the colleges, buildings and other property
belonging to such a body. Although the institutions to
which it refers are readily identifiable, precise and
accurate definition is difficult. The essential feature of a
university seems to be that it was incorporated as such by
the sovereign power.

Other attributes of a university appear to be the
admission of students from all parts of the world, a
plurality of masters, the teaching of one at least of the
higher faculties, namely theology, law or philosophy
(which in some definitions are regarded as identical) and
medicine, provision for residence and the right to confer
degrees, but possession of these attributes will not make
an institution a university in the absence of any express
intention of the sovereign power to make it one. A
university involves the relation of tutor and pupil; it is
charged with the supervision and upbringing of the pupil
under tuition. Incorporation was anciently effected by
papal grant or charter, and later by royal charter or Act of
Parliament.

The practice adopted in the case of the most recent
foundations is to incorporate the university by royal
charter, to which there is annexed a schedule containing
the original statutes of the university, and thereafter to
obtain the passing of a local Act of Parliament vesting in
the university the property and liabilities of any
institution which it replaces and making other necessary
provisions.

A copy of any application for a charter for the
foundation of any college or university which is referred
by the Queen in Council for the report of a committee of
the Privy Council must be laid before Parliament,
together with a copy of the draft charter, for not less than
30 days before the committee reports upon it.

In 15A American Jurisprudence 2d "University" has been defined as
under :
Para 1. Definitions.
Properly speaking, a "university" is an aggregation
or union of colleges. It is an institution in which the
education imparted is universal, embracing many
branches, such as the arts, sciences, and all manner of
higher learning, and which possesses the power to confer
degrees indicating proficiency in the branches taught.

The word "college" has been said to be employed
in the United States to indicate an institution of learning,
having corporate powers, and possessing the right to
confer degrees, and which, with reference to its
educational work, consists of the trustees, teachers, and
scholars, all of whom make up the membership of the
college and represent its active work. The term "college"
may also be used to indicate a building, or group of
buildings, in which scholars are housed, fed, instructed,
and governed while qualifying for university degrees,
whether the university includes a number of colleges or a
single college. In a broad sense, the terms "college" and
"university" convey the same idea, differing only in
grade, with each indicating an institution of learning
consisting of trustees, teachers, and scholars as making
up its membership and representing its active work, or an
institution engaged in imparting knowledge to resident
students and possessing the right to confer degrees.

In the footnote to this paragraph reference is made to a decision which
has some kind of similarity with the case in hand and the footnote reads as
under :

A school offering correspondence courses in
professional and other educational subjects, sending
students textbooks and lessons to study, giving
examinations based thereon, and awarding diplomas or
degrees, but having no entrance requirements, resident
students, library, laboratory, or faculty, is not a
university. Branch v Federal Trade Com. (CA7) 141 F2d
31)

In the New Encyclopedia Britannica (15th ed) "University" has been
described as under :

(Page 165) University, institution of higher education, usually
comprising a liberal arts and sciences college and
graduate and professional schools and having the
authority to confer degrees in various fields of study.

(Page 186) Universities and students looked toward ways of
creating opportunities for a satisfying career outside
traditional roles for graduates in scholarship, teaching,
and the professions. The university's basic traditional
functions remain unchanged enabling students to
learn from their cultural heritage, helping them to
realize their intellectual and creative abilities, and
encouraging them to become humane and responsible
people. The university expands knowledge across the
entire spectrum of disciplines, and it can add to the
understanding and enjoyment of life. It continues to
be needed for imaginative solutions to the problems of
society.

14. Shortly after independence on 4.11.1948 the Government of India
constituted a Commission known as "University Education Commission" of
which Dr. S. Radhakrishnan was the Chairman. Dr. Tara Chand, former
Vice-Chancellor, Allahabad University, Dr. Zakir Hussain, Vice-Chancellor,
Aligarh Muslim University, Dr. A. Lakshmanaswami Mudaliar, Vice-
Chancellor, Madras University, Dr. Meghnad Saha, Dean, Faculty of
Science, Calcutta University and 5 other eminent personalities in the field of
education were its members. The Commission gave a very long and
exhaustive report. Chapter II of the report deals with the aims of University
education and Para 2 of Part I is illustrative and the same is being
reproduced below :

"2. Universities as the Organs of Civilization He
indeed must be blind who does not see that, mighty as are
the political changes, far deeper are the fundamental
questions which will be decided by what happens in the
universities. Everything is being brought to the test of
reason, venerable theologies, ancient political
institutions, time-honoured social arrangements, a
thousand things which a generation ago looked as fixed
as the hills. If India is to confront the confusion of our
time, she must turn for guidance, not to those who are
lost in the mere exigencies of the passing hour, but to her
men of letters, and men of science, to her poets and
artists, to her discoverers and inventors. These
intellectual pioneers of civilization are to be found and
trained in the universities, which are the sanctuaries of
the inner life of the nation."

In the introductory paragraph of Chapter IV dealing with standards of
teaching, the Commission recorded its views in the following words :
The need for High Standards.
Introduction - It is the primary duty of a university to
maintain the highest standards of its teaching and
examinations. A university is a place of higher education
where the personality and capacities of the students are
developed to the utmost by teachers who should
themselves be at work at the frontiers of knowledge in
their respective fields. The success of a university is to
be judged as much by the type of graduate it turns out as
by the amount and quality of research contributed by its
teachers and research students. It must be clearly
recognized that there is no conflict involved between the
twofold function of a university to educate its members
and to advance the frontiers of knowledge the two
functions are, in fact, complementary. Unless high
standards of teaching and examinations are maintained,
research will suffer, since research can continue
uninterruptedly only if there is a regular supply of
graduates well prepared by general education for
specialized research work. On the other hand, if research
is neglected by teachers, their teaching will lack vitality
and will rapidly become stale. A degree must always be
what a university makes it by the kind of teaching it
imparts and the type of intellectual and social life it
provides for its members. If our universities are to be the
makers of future leaders of thought and action in the
country, as they should be, our degrees must connote a
high standard of scholarly achievement in our graduates.

The Commission noted that many of the Universities did not compare
favourably with the best of British and American universities in respect of
their teaching and examination standards. Unless highest standards of
teaching in the Universities are ensured, the degree given by them will not
command recognition and respect. The Commission observed :

"Our universities should maintain the academic
character of their work on a level recognized as adequate
by the universities of other countries. Universities are
our national institutions, and to keep up our national
prestige, our degrees must be such as to command
international recognition"

15. The Government of India constituted a Committee in December, 1961
to consider broadly the organizational structure of the Universities in India
and to prepare the outline of a "Model Act" suited to their role and functions
of which Dr. D.S. Kothari, Chairman, UGC was the Chairman and several
other persons who were either Vice-Chancellors of Universities or were
connected with the field of education were members. In the concluding
part of the First Chapter, the Committee noted as under :

" The function of the university is not only to
preserve, disseminate and advance knowledge but also to
furnish intellectual leadership and moral tone to society.
No less important is the role of universities in promoting
national integration and a common culture, and in
bringing about the social transformation that is desired.
Finally, universities have also to provide trained
personnel to advance the country's prosperity by making
full use of modern knowledge. The organizational
pattern must enable the universities to achieve these
objectives."

These reports prepared by most learned and eminent educationists in
post independence era highlight the primary function of the Universities viz.
teaching and research and to provide trained and qualified personnel for the
progress of the nation.

16. Though incorporation of a University as a legislative head is a State
subject (Entry 32 List II) but basically University is an institution for higher
education and research. Entry 66 of List I is coordination and determination
of standards in institutions for higher education or research and scientific
and technical institutions. There can thus be a clash between the powers of
the State and that of the Union. The interplay of various entries in this
regard in the three lists of the Seventh Schedule and the real import of Entry
66 of List I have been examined in several decisions of this Court. In
Gujarat University v. Shri Krishna AIR 1963 SC 703, a decision by a
Constitution Bench rendered prior to Forty-second Amendment when Entry
11 of List II was in existence, it was held that Item No.63 to 66 of List I are
carved out of the subject of education and in respect of these items the
power to legislate is vested exclusively in the Parliament. The use of the
expression "subject to" in item 11 of List II of the Seventh Schedule clearly
indicates that the legislation in respect of excluded matters cannot be
undertaken by the State Legislatures. In para 23, the Court held as under :

" Power of the State to legislate in
respect of education including Universities must to the
extent to which it is entrusted to the Union Parliament,
whether such power is exercised or not, be deemed to
be restricted. If a subject of legislation is covered by
items 63 to 66 even if it otherwise falls within the larger
field of "education including Universities" power to
legislate on that subject must lie with the Parliament.

. Item 11 of List II and item 66 of
List I must be harmoniously construed. The two entries
undoubtedly overlap; but to the extent of overlapping,
the power conferred by item 66 List I must prevail over
the power of the State under item 11 of List II. It is
manifest that the excluded heads deal primarily with
education in institutions of national or special
importance and institutions of higher education
including research, sciences, technology and vocational
training of labour.

The following observations in paras 24 and 25 highlight the
supremacy of legislation made by the Parliament with reference to Entry 66:
"24. The validity of the State legislation
on University education and as regards the education in
technical and scientific institutions not falling within
Entry 64 of List I would have to be judged having regard
to whether it impinges on the field reserved for the Union
under Entry 66. In other words, the validity of State
legislation would depend upon whether it prejudicially
affects co-ordination and determination of standards, but
not upon the existence of some definite Union legislation
directed to achieve that purpose. If there be Union
legislation in respect of co-ordination and determination
of standards, that would have paramountcy over the State
law by virtue of the first part of Ar.254(1); even if that
power be not exercised by the Union Parliament the
relevant legislative entries being in the exclusive lists, a
State law trenching upon the Union field would still be
invalid.

25. Item No.66 is a legislative head
and in interpreting it, unless it is expressly or of necessity
found conditioned by the words used therein, a narrow or
restricted interpretation will not be put upon the
generality of the words. Power to legislate on a subject
should normally be held to extend to all ancillary or
subsidiary matters which can fairly and reasonably be
said to be comprehended in that subject. Again there is
nothing either in item 66 or elsewhere in the Constitution
which supports the submission 'that the expression "co-
ordination" must mean in the context in which it is used
merely evaluation, co-ordination in its normal
connotation means harmonising or bringing into proper
relation in which all the things co-ordinated participate in
a common pattern of action. The power to co-ordinate,
therefore, is not merely power to evaluate, it is a power to
harmonise or secure relationship for concerted action.
The power conferred by item 66 List I is not conditioned
by the existence of a state of emergency or unequal
standards calling for the exercise of the power."

17. The same question was also examined in considerable detail in State
of Tamil Nadu & Anr. v. Adhiyaman Educational and Research Institute
1995 (4) SCC 104 and the conclusions drawn were summarized in para 41 of
the reports and sub-paras (i) and (ii) thereof are being reproduced below :

(i) The expression 'coordination' used in Entry 66 of the
Union List of the Seventh Schedule to the
Constitution does not merely mean evaluation. It
means harmonisation with a view to forge a uniform
pattern for a concerted action according to a certain
design, scheme or plan of development. It, therefore,
includes action not only for removal of disparities in
standards but also for preventing the occurrence of
such disparities. It would, therefore, also include
power to do all things which are necessary to prevent
what would make 'coordination' either impossible or
difficult. This power is absolute and unconditional
and in the absence of the valid compelling reasons, it
must be given its full effect according to its plain and
express intention.

(ii) To the extent that the State legislation is in conflict
with the Central legislation though the former is
purported to have been made under Entry 25 of the
Concurrent List but in effect encroaches upon
legislation including subordinate legislation made by
the Centre under Entry 25 of the Concurrent List or to
give effect to Entry 66 of the Union List, it would be
void and inoperative.

18. In Osmania University Teachers Association v. State of Andhra
Pradesh & Anr. 1987 (4) SCC 671, the Court reiterated that it was the
exclusive responsibility of the Central Government to determine the
standards for higher education and the same should not be lowered at the
hands of any particular State as it was of great importance to national
progress. After referring to the Constitution Bench decision in Kerala State
Electricity Board v. Indian Aluminium Co. 1976 (1) SCC 466, where it was
held that when an entry is in general terms in List II and part of that entry is
in specific terms in List I, the entry in List I takes effect notwithstanding the
entry in List II, the Court held as under in para 14 of the reports :

"14. Entry 25 List III relating to education including
technical education, medical education and universities has
been made subject to the power of Parliament to legislate
under Entries 63 to 66 of List I. Entry 66 List I and Entry
25 List III should, therefore, be read together. Entry 66
gives power to Union to see that a required standard of
higher education in the country is maintained. The
standard of Higher Education including scientific and
technical should not be lowered at the hands of any
particular State or States. Secondly, it is the exclusive
responsibility of the Central Government to coordinate
and determine the standards for higher education. That
power includes the power to evaluate, harmonise and
secure proper relationship to any project of national
importance. It is needless to state that such a co-ordinate
action in higher education with proper standards, is of
paramount importance to national progress. It is in this
national interest, the legislative field in regard to
'education' has been distributed between List I and List III
of the Seventh Schedule."

19. The interplay of Entry 66 List I and Entry 25 List III was again
examined by a Constitution Bench in Dr. Preeti Srivastava & Anr. v. State of
M.P. & Ors. 1999 (7) SCC 120 in the context of lowering of standards by
the State for admission to a Post Graduate course in a Medical College and it
was held that the State cannot while controlling education in the State
impinge on standards in institutions for higher education because this is
exclusively within the purview of the Union Government. While
considering the question whether norms for admission have any connection
with the standards of education and that they are only covered by Entry 25
of List III, it was observed that any lowering of the norms of admission does
have an adverse effect on the standards of education in the institutions of
higher education. The standard of education in an institution depends on
various factors like, (i) the caliber of teaching staff; (ii) a proper syllabus
designed to achieve high level of education in a given span of time; (iii) the
student-teacher ratio; (iv) equipment and laboratory facilities; (v) caliber of
the students admitted; (vi) adequate accommodation in the institution; (vii)
the standard of examinations held including the manner in which the papers
are set and examined; and (viii) the evaluation of practical examinations
done. It was pointed out that education involves a continuous interaction
between the teachers and the students. The base of teaching, the level to
which teaching can rise and the benefit which the students ultimately receive
depends as much on the caliber of the students as on the caliber of the
teachers and the availability of adequate infrastructural facilities.

20. The consistent and settled view of this Court, therefore, is that in spite
of incorporation of Universities as a legislative head being in the State List,
the whole gamut of the University which will include teaching, quality of
education being imparted, curriculum, standard of examination and
evaluation and also research activity being carried on will not come within
the purview of the State legislature on account of a specific Entry on co-
ordination and determination of standards in institutions for higher education
or research and scientific and technical education being in the Union List
for which the Parliament alone is competent. It is the responsibility of the
Parliament to ensure that proper standards are maintained in institutions for
higher education or research throughout the country and also uniformity in
standards is maintained.

21. In order to achieve the aforesaid purpose, the Parliament has enacted
the University Grants Commission Act. First para of the Statement of
Objects and Reasons of the University Grants Commission Act, 1956 (for
short "UGC Act") is illustrative and consequently it is being reproduced
below :

"The Constitution of India vests Parliament with
exclusive authority in regard to 'co-ordination and
determination of standards in institutions for higher
education or research and scientific and technical
institutions'. It is obvious that neither co-ordination nor
determination of standards is possible unless the Central
Government has some voice in the determination of
standards of teaching and examination in Universities,
both old and new. It is also necessary to ensure that the
available resources are utilized to the best possible effect.
The problem has become more acute recently on account
of the tendency to multiply Universities. The need for a
properly constituted Commission for determining and
allocating to Universities funds made available by the
Central Government has also become more urgent on this
account.

In the second para it is said that the Commission will also have the
power to recommend to any University the measures necessary for the
reform and improvement of University education and to advise the
University concerned upon the action to be taken for the purpose of
implementing such recommendation. The Commission will act as an expert
body to advise the Central Government on problems connected with the co-
ordination of facilities and maintenance of standards in Universities.

22. The preamble of the UGC Act says - an Act to make provision for the
coordination and determination of standards in Universities and for that
purpose to establish a University Grants Commission. Section 2(f) of this
Act defines a University and it means a University established or
incorporated by or under a Central Act, a Provincial Act or a State Act, and
includes any such institution as may, in consultation with the University
concerned, be recognized by the Commission in accordance with the
regulations made in this behalf under this Act. Clause 12 provides that it
shall be the general duty of the Commission to take, in consultation with the
Universities or other bodies concerned, all such steps as it may think fit for
the promotion and co-ordination of University education and determination
and maintenance of standards of teaching, examination and research in
Universities, and for the purpose of its functions under the Act, the
Commission may do all such acts enumerated in sub-sections (a) to (j)
thereof. Sections 22 and 23 are important and are being reproduced below :

22. Right to confer degrees - (1) The right of conferring or
granting degree shall be exercised only by a University
established or incorporated by or under a Central Act, a
Provincial Act or a State Act or an institution deemed to be a
University under section 3 or an institution specially
empowered by an Act of Parliament to confer or grant
degrees.

(2) Save as provided in sub-section (1), no person or authority
shall confer, or grant, or hold himself or itself out as entitled
to confer or grant any degree.

(3) For the purpose of this section, "degree' means any such
degree as may, with the previous approval of the Central
Government, be specified in this behalf by the Commission
by notification in the Official Gazette."

23. Prohibition of the use of the word "University" in certain
cases. No institution, whether a corporate body or not,
other than a University established or incorporated by or
under a Central Act, a Provincial Act or a State Act shall be
entitled to have the word "University" associated with its
name in any manner whatsoever:

Provided that nothing in this section shall, for a period
of two years from the commencement of this Act, apply to
an institution which immediately before such
commencement, had the word "University" associated with
its name.

23. It is important to note that in view of Section 22 of UGC Act, the right
of conferring or granting degree can be exercised only by University or an
institution deemed to be University under Section 3 of the aforesaid Act or
institution especially empowered by an Act of Parliament to confer or grant
degrees. What is a "degree" and what it connotes is not given in the UGC
Act but the meaning of the word as given in dictionaries and standard books
is as under :

Webster's Third New : A title conferred upon students by a college,
International Dictionary university, or professional school upon
completion of a unified programme of
study carrying a specified minimum of
credits, passing of certain examinations,
and often completion of a thesis or other
independent research project.

2. A grade or class of membership attained in
a ritualistic order or society denoting a
stage of proficiency often after a set ordeal
or examination.

Wharton's Law Lexicon : The state of a person, as to be a barrister-at-law,
or to be a Bachelor or Master of Arts of a
University.

Chambers's Twentieth : A mark of distinction conferred by universities,
Century Dictionary whether earned by examination or granted as a
mark of honour.

P. Ramanatha Aiyar : A mark of distinction conferred upon a student
Law Lexicon (2nd Ed) for proficiency in some art or science; University
diploma of specified proficiency.

Encyclopedia Americana
"DEGREE" - the title conferred by a college or
university, signifying that a certain step or grade has been
attained in an area of learning. The award of a diploma
conferring the bachelor's degree marks completion of
undergraduate study. The master's and doctor's degrees
reward graduate study. Other degrees constitute
evidence of preparation for professional work the M.D.
(doctor of medicine) for example.

In the 20th century, however, the M.A. is granted in
American universities and in those of England and the
Commonwealth of Nations (apart from Oxford and
Cambridge) on the basis of study beyond the B.A. and
the presentation (usually) of a thesis. An exception is
Scotland, where the M.A. has been the first degree
conferred in all six universities ever since their founding.
The bachelor of philosophy and bachelor of letters
degrees are given for work beyond the M.A.

The New Encyclopedia Britannica
"Degree" in education, any of several titles
conferred by colleges and universities to indicate the
extent of academic achievement. The hierarchy of
degrees, dating from the 13th century, once resembled the
medieval guild system. In the United States and Great
Britain, the modern gradation of academic degrees is
usually bachelor (or baccalaureate), master, and doctor.
With some exceptions, intermediate degrees, such as
those of bachelor and master, have been abandoned in the
universities of continental Europe.

A degree conferred by a University is a proof of the fact that a person
has studied a course of a particular higher level and has successfully passed
the examination certifying his proficiency in the said subject of study to such
level. In the case of a Doctorate degree, it certifies that the holder of the
degree has attained a high level of knowledge and study in the concerned
subject by doing some original research work. A University degree confers
a kind of a status upon a person like a graduate or a post-graduate. Those
who have done research work and have obtained a Ph.D., D.Lit., or D.Sc.
degree become entitled to write the word "Doctor" before their name and
command certain amount of respect in society as educated and
knowledgeable persons. That apart the principal advantage of holding a
University degree is in the matter of employment, where a minimum
qualification like a graduate, post-graduate or a professional degree from a
recognized institute is prescribed. Even for those who do not want to take
up a job and want to remain in private profession like a doctor or lawyer,
registration with Medical Council or Bar Council is necessary for which
purpose a degree in medicine or law, as the case may be, from an institution
recognized by the said bodies is essential. An academic degree is, therefore,
of great significance and value for the holder thereof and goes a long way in
shaping his future. The interest of society also requires that the holder of an
academic degree must possess the requisite proficiency and expertise in the
subject which the degree certifies.

24. Mere conferment of degree is not enough. What is necessary is that
the degree should be recognized. It is for this purpose that the right to
confer degree has been given under Section 22 of UGC Act only to a
University established or incorporated by or under a Central Act, Provincial
Act or State Act or an institution deemed to be a University under Section 3
or an institution specially empowered by an Act of Parliament to confer or
grant degrees. Sub-section (3) of this Section provides that "degree" means
any such degree as may, with the previous approval of the Central
Government, be specified in this behalf by the Commission by notification
in the Official Gazette. The value and importance of such degrees which are
recognized by Government was pointed out by a Constitution Bench in
Azeez Basha v. Union of India AIR 1968 SC 662.

25. Having seen what is the concept of a University and what is the value
of a degree awarded by it, the Scheme and the provisions of the impugned
Act may now be examined. The Preamble of the Act says that it is an Act
to provide for establishment of self financed private Universities for
imparting Higher Education and to regulate their functions and for matters
connected therewith or incidental thereto. Some of the provisions of the
Act which have a bearing on the controversy involved are being reproduced
below :

Section 2. In this Adhiniyam, unless the context otherwise requires -

(a) "Ordinance" means an Ordinance of the
University;

(b) "Sponsoring Body" in relation to a University means-
(i) a Society registered under the Madhya Pradesh
Societies Registrikaran Adhiniyam, 1973 (No. 44 of
1973)
(ii) any Public Trust; or
(iii) a Company registered under Section 25 of the
Companies Act, 1956 (No. 1 of 1956);

(d) "University" means a University established under sub-
section (1) of Section 5.

3. The objects of the University shall be -

1. to provide instructions, teaching and training in Higher
Education and make provisions for research,
advancement and dissemination of knowledge;
2. to create higher levels of intellectual abilities;
3. to establish state of the art facilities for education and
training;
4. to carry out teaching and research and offer continuing
education programmes;
5. to create centres of excellence for research and
development and for sharing knowledge and its
application;
6. to provide consultancy to the industry and public
organizations;
7. to establish main campus in Chhattisgarh and to have
study centres at different places in India and other
countries;
8. to establish examination centres;
9. to institute degrees, diplomas, certificates and other
academic distinctions on the basis of examination, or any
other method of evaluation;
10. to pursue any other objective as may be approved by the
State Government;
11. to ensure that the standard of the degrees, diplomas,
certificates and other academic distinctions are not lower
than those laid down by AICTE/NCTE/UGC/MCI and
Pharmacy Council etc;

4. (1) An application containing the Project Report to establish
A University for carrying out any or all of the objects
enumerated in section 3 of this Adhiniyam shall be made
to the State Government by the Sponsoring Body along
with such fee as may be prescribed.

(2) The Project Report shall contain the following
particulars, namely --
(a) the objects of the University along with the details
of the Sponsoring Body;
(b) the extent and the status of the University and the
availability of land;
(c) the nature and the type of programmes of study
and research to be undertaken in the University
during a period not less than the next five years;
(d) the nature of faculties, courses of study and
research proposed to be started;
(e) the campus development such as building,
equipment and structural amenities;
(f) the phased outlays of capital expenditure for a
period not less than the next five years;
(g) the item-wise recurring expenditure, sources of
finance and estimated expenditure for each
student;
(h) the scheme for mobilizing resources and the cost
of capital thereto and the manner of repayments to
the Sponsoring Body and other sources;
(i) the scheme for the generation of funds internally
through the recovery of fee from students,
revenues anticipated from consultancy and other
activities relating to the objects of the University,
and other anticipated incomes;
(j) the details of expenditure on unit cost and the
extent of concessions or rebates in fee or freeship
and scholarship for students belonging to the
Scheduled Tribes and Scheduled Castes, belonging
to economically weaker sections, in lieu of land
grants if any, from the State Government, subject
to the condition that the number of students getting
concessions and freeships or scholarships shall not
be less than twenty two and one half percent of the
total number of seats. The proposed fee structure
shall also indicate the rationale for the varying
rates of fee that would be levied on non resident
Indians and students of other nationalities;
(k) the years of experience and expertise in the
concerned disciplines at the command of the
Sponsoring Body as well as the financial
resources;
(l) the system to select students for admission to the
courses of study at the University;
(m) such other details as may be prescribed by rules
framed under this Adhiniyam.

(3) The State Government, on receipt of the Project Report
shall make such enquiry as it may deem necessary within forty
five days from the date of submission of the Project Report.

(4) If the State Government is satisfied with the proposal to
establish the University, it may, subject to such conditions as
may be specified, accord the sanction for the same.

5. (1) The State Government may by notification in the Gazette
establish a University by such name and with such
jurisdiction and location of campus as may be specified
therein having regard to -
(a) the desirability to establish a University;
(b) recognition or authorization as may be required
under any other law for the time being in force to
conduct the syllabus and to grant degrees or
diplomas or awards.

(2) Every notification issued under sub-section (1) shall be
laid on the table of the Legislative Assembly.

6. (1) Every University established under sub-section (1) of
section 5 shall be a body corporate by the name notified
under the said section having perpetual succession and a
common seal, and may sue and be sued by the said name.

(2) the University established under sub-section (1) of
section 5 may, with the prior approval of the State
Government, affiliate any College or other institution or
set up more than one campus."

Section 9 provides that the University shall not be entitled to receive
any grant or other financial assistance from the Central Government, State
Government or any other authority except for meeting any amount towards
the fee payable by students belonging to socially disadvantaged or weaker
sections of society or for conducting any study for research purposes, etc.

26. Section 3 of the Act enumerates the objects of the University. Sub-
section (1) of Section 4 provides that an application containing the Project
Report to establish a University for carrying out any or all of the objects
enumerated in Section 3 of the Act shall be made to the State Government
by the sponsoring body. Sub-section (2) of Section 4 provides that the
Project Report shall contain the particulars which have been enumerated
from clauses (a) to (m) in the said Sub-section. The Project Report is to
merely indicate the availability of the land and also the details of the Scheme
for mobilization of resources and generation of funds. The Project Report is
in the nature of a proposal where some details have to be furnished
regarding the type of courses of study and research to be undertaken in the
University during the period not less than next five years, the nature of
faculty and courses of study proposed to be started, the campus development
such as building, equipment and structural amenities proposed to be made
and phased outlays of the capital expenditure for a period not less than next
five years. Sub-section (3) says that the State Government on receipt of the
Project Report shall make such enquiry as it may deem necessary within 45
days from the date of submission of the Project Report. Sub-section (4)
says that if the State Government is satisfied with the proposal to establish
the University, it may, subject to such conditions as may be specified, accord
sanction for the same. Therefore, the requirement of Section 4 is
submission of an application containing Project Report which will merely
indicate availability of land and some proposals and schemes for generation
of funds and mobilization of resources and also proposal for development of
building etc. and courses of study proposed to be started. It is this Project
Report which merely contains some proposals and schemes for future
implementation which is accorded sanction by the State Government.
Thereafter comes Section 5 which says that the State Government may by
notification in the Gazette establish a University by such name and with
such jurisdiction and location of campus, as may be specified therein having
regard to the desirability to establish a University. The effect of these
provisions is that a Project Report on paper only, which will merely be a
proposal or a scheme for doing something in future, will be notified as a
University by issuing a notification to that effect in the Gazette. Sub-
section (1) of Section 6 confers some kind of a juristic personality on the
University so created by notification in the Gazette which in substance and
reality is a Project Report by saying that the University so established shall
be a body corporate by the name notified having perpetual succession and a
common seal and may sue and be sued by the said name. Sub-section (2)
of Section 6 confers a very wide power on the University so created to
affiliate any college or other institutions or set up more than one campus
with the approval of the State Government.

27. The State Legislature is undoubtedly empowered to legislate and
make an enactment for incorporation and establishment of Universities in
view of Entry 32 of List II and Entry 25 of List III. The "University" as a
topic of legislation has not been introduced for the first time in the Seventh
Schedule of the Constitution but was already there in the Government of
India Act, where Entry 13 of List I related to Banaras Hindu University and
Aligarh Muslim University and Entry 17 of List II was education including
Universities other than those specified in Entry 13 of List I. The framers of
the Constitution had the same concept of "University" in their mind as was
there in the Government of India Act when they made the relevant entries in
the Seventh Schedule of the Constitution. Keeping in view the principles of
legislative practice, the word "University" should be given the same
meaning as it was generally understood at the relevant time having due
regard to what is ordinarily treated as embraced within that topic or subject.

28. As shown earlier, University is a whole body of teachers and scholars
engaged at a particular place in giving and receiving instructions in higher
branches of learning; and as such persons associated together as a society or
corporate body, with definite organization and acknowledged powers and
privileges and forming an institution for promotion of education in higher or
more important branches of learning and also the colleges, building and
other property belonging to such body. Other necessary attributes of
University are plurality of teachers teaching more than one higher faculties
and other facilities for imparting instructions and research, provision for
residence and must have certain standard of instructions providing for
graduate and post-graduate levels of study. It pre-supposes existence of a
campus, classrooms, lecture theatres, libraries, laboratories, offices, besides
some playgrounds and also sport facility for overall development of
personality of the students. However, under the provisions of the impugned
Act, a proposal which is on paper and merely gives some kind of a plan or
scheme to be done in future is notified as a University. When the
Constitution has conferred power on the State to legislate on incorporation
of University, any Act providing for establishment of the University must
make such provisions that only an institution in the sense of University as it
is generally understood with all the infrastructural facilities, where teaching
and research on wide range of subjects and of a particular level are actually
done, acquires the status of a University. The impugned Act does not at all
establish a University, yet by issuing a notification conferring the legal
status of a University to a Project Report (which is on paper only) bestows
upon it a right to confer a degree, which right it gets by virtue of Section 22
of the UGC Act. The manner in which a University is notified by issuance
of a Gazette notification under Section 5 and conferment of a juristic
personality under Section 6 of the Act is clearly contrary to the
constitutional scheme and is not contemplated by Article 246 of the
Constitution.

29. The State Legislature can make an enactment providing for
incorporation of Universities under Entry 32 of List II and also generally for
Universities under Entry 25 of List III. The subject "University" as a
legislative head must be interpreted in the same manner as it is generally or
commonly understood, namely, with proper facilities for teaching of higher
level and continuing research activity. An enactment which simply clothes
a proposal submitted by a sponsoring body or the sponsoring body itself
with the juristic personality of a University so as to take advantage of
Section 22 of UGC Act and thereby acquires the right of conferring or
granting academic degrees but without having any infrastructure or teaching
facility for higher studies or facility for research is not contemplated by
either of these Entries. Sections 5 and 6 of the impugned enactment are,
therefore, wholly ultra vires being a fraud on the Constitution.

30. Entry 66 which deals with co-ordination and determination of
standard in institutions for higher education or research and scientific and
technical institutions is in Union List and the Parliament alone has the
legislative competence to legislate on the said topic. The University Grants
Commission Act has been made with reference to Entry 66 (See Prem
Chand Jain v. R.K. Chhabra 1984 (2) SCR 883 and Osmania University
Teachers Association v. State of Andhra Pradesh 1987 (4) SCC 671). The
Act has been enacted to ensure that there is co-ordination and determination
of standards in Universities, which are institutions of higher learning, by a
body created by the Central Government. It is the duty and responsibility
of the University Grants Commission, which is established by Section 4 of
the UGC Act, to determine and coordinate the standard of teaching
curriculum and also level of examination in various Universities in the
country. In order to achieve the aforesaid objectives, the role of UGC
comes at the threshold. The course of study, its nature and volume, has to
be ascertained and determined before the commencement of academic
session. Proper standard of teaching cannot be achieved unless there are
adequate infrastructural facilities in the campus like classrooms, libraries,
laboratories, well-equipped teaching staff of requisite caliber and a proper
student-teacher ratio. For this purpose, the Central Government has made a
number of Rules in exercise of powers conferred by Section 25 of UGC Act
and the Commission has also made Regulations in exercise of power
conferred by Section 26 of the UGC Act and to mention a few, UGC
Inspection of Universities Rules, 1960, UGC Regulations 1985 regarding the
Minimum Standards of Instructions for the Grant of the First Degree, UGC
Regulations, 1991 regarding Minimum Qualifications for Appointment of
Teachers in Universities and Colleges, etc. The UGC with the approval of
the Central Government and exercising power under Section 22(3) of the
UGC Act has issued a schedule of degrees which may be awarded by the
Universities. The impugned Act which enables a proposal on paper only to
be notified as a University and thereby conferring the power upon such
University under Section 22 of the UGC Act to confer degrees has the effect
of completely stultifying the functioning of the University Grants
Commission in so far as these Universities are concerned. Such
incorporation of a University makes it impossible for the UGC to perform its
duties and responsibilities of ensuring co-ordination and determination of
standards. In absence of any campus and other infrastructural facilities, the
UGC cannot take any measures whatsoever to ensure a proper syllabus, level
of teaching, standard of examination and evaluation of academic
achievement of the students or even to ensure that the students have
undergone the course of study for the prescribed period before the degree is
awarded to them.

31. The inter se evaluation of merit of candidates is often required to be
done while making selection for some higher or specialized course of study
or in the matter of employment. One of the important functions to be
performed by the UGC is co-ordination and determination of standards in
institutions for higher education so that some kind of uniformity is
maintained in level of teaching and examination and also award of degrees
by various Universities. The impugned enactment, however, enables a
sponsoring body, without having any kind of teaching facility to award
degrees. In view of clauses (8) and (9) of Section 3 of the Act, a University
can be established only to establish examination centres or just to institute
degrees, diplomas, certificates and other academic distinctions on the basis
of examination or any other method of evaluation anywhere and without any
pre-determined standards. The possibility that such Universities which
award degrees without having any teaching facility and without imparting
any education will do so only for the purpose of making money is writ large.
The fact that the amendments made in the Act in 2004 (referred to later in
paragraph 34 of the judgment) making it mandatory to create an endowment
fund of Rs.2 crores and having provision of 15 acres of land have been
challenged by many Universities speaks volumes of their intention.
Preparing a Project Report on paper is not a difficult job and any number of
sponsoring bodies can be created or formed in order to take advantage of the
easy opportunity made available by the impugned Act. Persons with
absolutely no knowledge in the subject may be awarded high degrees or
other distinctions like a Ph.D., D.Lit., or D.Sc. This is bound to create
havoc with the system of higher education in the country and would result in
nullifying the main object for which University Grants Commission has
been established and would render many provisions of the UGC Act
unworkable and otiose.

32. Any State legislation which stultifies or sets at naught an enactment
validly made by Parliament would be wholly ultra vires. We are fortified in
our view by a Constitution Bench decision in R. Chitralekha v. State of
Mysore AIR 1964 SC 1823 where power of the State under Entry 11 List II
(as it then existed), and Entry 25 List III qua Entry 66 List I came up for
consideration. Subba Rao, J. after quoting the following passage from
Gujarat University vs. Shri Krishna AIR 1963 SC 703 :

"The State has the power to prescribe the syllabi
and courses of study in the institutions named in Entry 66
(but not falling within entries 63 to 65) and as an incident
thereof it has the power to indicate the medium in which
instruction should be imparted. But the Union
Parliament has an overriding legislative power to ensure
that the syllabi and courses of study prescribed and the
medium selected do not impair standards of education or
render the coordination of such standards either on an All
India or other basis impossible or even difficult"

enunciated the following principle defining the contours of the legislative
powers of States vis-`-vis Union so as to steer clear of any overlap or
collision:

"This and similar other passages indicate that if the law
made by the State by virtue of entry 11 of List II of the
Seventh Schedule to the Constitution makes impossible
or difficult the exercise of the legislative power of the
Parliament under the entry "Co-ordination and
determination of standards in institutions for higher
education or research and scientific and technical
institutions" reserved to the Union, the State law may be
bad. This cannot obviously be decided on speculative
and hypothetical reasoning. If the import of the State law
providing for such standards on entry 66 of List I is so
heavy or devastating as to wipe out or appreciably
abridge the central field, it may be struck down. But that
is a question of fact to be ascertained in each
case.."

The whole scheme of the impugned Act, especially the effect of
Sections 4, 5, 6 thereof and the result which it has led to in notifying as
many as 112 Universities within a short span of one year on the basis of
proposals made on paper with many or most of them having almost zero
infrastructural facilities clearly shows that the relevant provisions of the Act
have completely stultified the power of the Parliament under Entry 66 to
make provision for co-ordination and determination of standards in
institutions for higher education like Universities, the provisions of the UGC
Act and also the functioning of University Grants Commission. Sections 5
and 6 of the impugned Act are, therefore, wholly ultra vires the Constitution
of India and are liable to be struck down.

33. Dr. Dhawan, learned senior counsel for the petitioners in Writ Petition
No.19 of 2004, has also pointed out certain other infirmities in the impugned
Act. Section 4 provides that a University may be established for carrying
out "any or all" of the objectives enumerated in Section 3 of the Adhiniyam.
The objectives mentioned in clauses (1) to (5) are the normal objectives of a
University. However, a University cannot be established only to provide
consultancy to the industry and public organizations [clause (6)] or to
establish examination centres [clause (8)] or to institute degrees, diplomas,
certificates and other academic distinctions on the basis of examination or
any other method of evaluation [clause (9)]. Since sub-section (1) of
Section 4 uses the expression "for carrying out any or all of the objects", it is
obvious that a University can be established only for any one of the
aforesaid objectives. This is clearly a colourable piece of legislation being
beyond the legislative competence of the State legislature as the relevant
entries in List II and List III of Seventh Schedule of the Constitution do not
contemplate creation or establishment of such kind of a University.

34. The Act was amended by the Chhattisgarh Niji Kshetra
Vishwavidyalaya (Sthapana Aur Viniyaman) Sansodhan Adhiniyam, 2004
(hereinafter called "the amending Act"), which was published in the Gazette
on 17.3.2004. By this amending Act some provisions were substituted and
some new provisions were added. Clauses (e) and (j) inserted in Section 2
read as under :
(e) "main campus" means the campus of the
university where main office of the university is situated
and where the Vice-Chancellor and Registrar reside and
where not less than three University Teaching
Departments/Schools of studies are located.

(j) "Regulatory Commission" means the Regulatory
Commission established under the Adhiniyam."

Sections 4, 5, 9 and 10 of the amending Act read as under :

"4. For Sub-sections (10) and (11) of Section 3 of the
Principal Adhiniyam, the following Sub-sections shall be
substituted; namely:-

"(10) To ensure that the standard of degrees,
diplomas, certificates and other academic
distinctions are not lower than those laid down by
AICTE, NCTE, UGC, MCI, Pharmacy Council,
and such agency/agencies established by the
Central Government for regulation of education
and the Regulatory Commission; and

(11) To pursue any other objective as may be
approved by the Regulatory Commission."

5. For Sub-section (1) of Section 4 of the Principal
Adhiniyam, the following Sub-sections shall be
substituted; namely :-

"(1) (a) An application containing the Project Report
to establish a university for carrying out any or all
the objectives enumerated in Section 3 of the
Adhiniyam shall be made to the Regulatory
Commission by Sponsoring Body alongwith fee
and such form as may be prescribed , at least one
year before the date from which it intends to start
the university.

(b) The Sponsoring Body shall submit
alongwith its application as per (a) above,

(i) Proof of having established an Endowment
Fund of Rs.2 crore;

(ii) Proof of being in possession of 15 acres of
land, in case the main campus is proposed to
be established
within the Municipal Corporation Limits of
Raipur; or 25 acres of land in case the main
campus is proposed to be established
elsewhere in the State and in addition, if the
land has been obtained on lease, the period
of lease should be at least 30 years. In case,
the Sponsoring Body does not possess the
required land, it shall furnish proof of
having deposited an additional sum of Rs.2
crore in the manner prescribed.
Withdrawals out of this additional fund shall
be permitted by the Regulatory Commission
for the purchase of land for the use of the
University.

Provided that where the main campus of the
University is proposed to be established in a
Scheduled Area of the State, only fifty percent of
the amounts in (i) and (ii) above need to be
deposited.

(c) The Endowment Fund shall be used as
security deposit to ensure that the University
complies with the provisions of the Adhiniyam
and functions as per the provision of the
Adhiniyam, the Statues and the Act. The
Regulatory Commission shall have the power to
forfeit a part of whole of the Endowment Fund, in
case of non-compliance in the manner as may be
prescribed.

(d) The Endowment Fund shall be invested in
the manner as may be prescribed.

(e) The Sponsoring Body shall be permitted to
use income from the Endowment Fund for the
development of the University.

(1-A) A University already established in the State
under the provisions of the Adhiniyam, shall
comply with the provisions of clauses (b) to (e)
of Sub-section (1) of Section 4 above by 30th
June, 2004 or else the Notification issued by the
Government under Sub-section (1) of Section 5
of the Adhiniyam shall be liable to be cancelled
on the recommendations of the Regulatory
Commission. In the event of such de-notification
of the University, completion of courses, conduct
of examinations, award of the degrees to the
students of the University may be assigned to
another University in such a manner that the
interests of the students are not affected.
Expenditure made in this behalf shall be made
good from the General Fund of the University
concerned."

9. For Sub-section (1) of Section 5 of the Principal
Adhiniyam, the following shall be substituted; namely

(1) (a) The State Government on receipt of the advice of
the Regulatory Commission under Sub-section
(4) of Section 4 of the Adhiniyam, may declare,
by notification in official gazette, that the
university is established by such name and with
such jurisdiction and location of main campus,
from such date as may be mentioned in the
notification.

(b) All such notification issued under Sub-section (1)
of Section 5 of the Adhiniyam prior to coming
into force of the Chhattisgarh Niji Kshetra
Vishwavidyalaya (Sthapana Aur Viniyaman)
Sansodhan Adhiniyam 2004, shall be included as
Schedule I of the Adhiniyam and hereafter,
notification issued regarding establishment of a
University under the provisions of this
Adhiniyam , shall form part of the said Schedule
I in chronological order.

10. After Sub-section (2) of Section 6 of the Principal
Adhiniyam, the following shall be substituted; namely:-

"(2) On its notification under Sub-section (1) of Section
5, the University shall establish its main campus in
the State of Chhattisgarh on the land referred to in
Sub-section (1) of Section 4 and for that purpose
shall create a built up area of at least 25,000 Sq.ft.
in the form of buildings and ancillary structures
within a period of 2 years from the date of such
notification. In the case of Universities which
have already been notified before this Sansodhan
Adhiniyam, the period of 2 years shall be reckoned
from the date of coming in force of this Sansodhan
Adhiniyam.

(3) All disputes arising as a result of the provisions
made in this Adhiniym shall be settled by a court
of law located in the State of Chhattisgarh."

Section 24 of the principal Act was also substituted by a new
provision which provides for setting up of a Regulatory Commission for the
purpose of ensuring appropriate standards of teaching, examinations,
research, protection of the interests of the students and ensuring reasonable
service conditions of employees while University has full freedom to
function. The Regulatory Commission shall function under the general
control of the Visitor and shall consist of a Chairman, two full time and not
exceeding two part-time members to be appointed by the Visitor. Sub-
section (9) of Section 24 provides that it shall be the duty of the Regulatory
Commission to take in consultation with the University and other bodies
concerned with regulatory functions of the higher education system in the
country such as UGC, AICTE, NCTE, MCI, Pharmacy Council and such
agency/agencies established by the Central Government for regulation of
education, or such steps, as it considers necessary for determination and
maintenance of standards of teaching, examination and research in the
University.

35. The amending Act of 2004 does not make any appreciable change in
the matter of issuing a notification for establishment of a University. Under
the amending Act, Regulatory Commission is to be established by the
Visitor (Governor). The application containing the Project Report shall be
made to the Regulatory Commission one year before the date from which it
intends to start the University along with proof of having established an
endowment fund of Rs.2 crores which shall be used as security deposit to
ensure that the University complies with the provisions and functions as per
the provisions of the Act. In addition proof of being in possession of 15
acres of land in case the main campus is proposed to be established within
the municipal corporation limits of Raipur otherwise 25 acres of land has to
be furnished. Where the land has been obtained on lease, the period of lease
should be at least 30 years. It further provides that if the sponsoring body
does not possess the required land, it shall furnish proof of having deposited
an additional sum of Rs.2 crores in the manner prescribed. The Regulatory
Commission on receipt of the Project Report, proof of creation of the
endowment fund and possession of land or in lieu thereof proof of deposit of
additional fund and if satisfied with the proposal to establish the University,
may advise the State Government to issue a notification. Section 5 provides
that the State Government on receipt of the advice of the Regulatory
Commission may declare by notification in Official Gazette that the
University is established. Here again, without any infrastructure and without
the teaching facilities having been provided, the proposal on paper is
notified as a University. Section 4(1)(b)(ii) mentions "possession of land"
and not "ownership". It is not difficult to speculate whether the heavy
expenditure involved in making construction of buildings (classrooms,
lecture halls, offices and hostels, etc.), libraries and laboratories would at all
be undertaken on land which has been taken on lease for a short period of 30
years. Thus, the amended Sections 5 and 6 suffer from the same vice as the
unamended provisions and are liable to be struck down as being ultra vires.

36. In exercise of power conferred by Section 26 of the UGC Act, the
University Grants Commission has made the UGC (Establishment of and
Maintenance of Standards in Private Universities) Regulations, 2003. The
Regulations have been made with the object of providing for a regulatory
mechanism for establishment and operation of private Universities and for
safeguarding the interests of the student community with adequate emphasis
on the quality of education and to avoid commercialization of higher
education and also to maintain standards of teaching, research and
examination. Regulation 1.2 provides that the same shall apply to every
private University established by or incorporated under a State Act, before
or after the commencement of these Regulations. Regulation 1.5 provides
that any private University which has started functioning before the
commencement of these Regulations shall ensure adherence to these
Regulations within a period of three months from the notification thereof
and failure to comply with this requirement shall render any degree/diploma
awarded by a private University as unspecified in terms of Section 22 (3) of
the UGC Act and shall invite penalty under Section 24 of the said Act.
Regulations 3.1, 3.2, 3.6 and 3.7 are important and they are being
reproduced below :

3.1 Each private University shall be established by a separate
State Act and shall conform to the relevant provisions of
the UGC Act, 1956, as amended from time to time.

3.2 A private university shall be a unitary university having
adequate facilities for teaching, research, examination
and extension services.

3.6 The programmes of study leading to a degree and/or a
post-graduate degree/diploma offered by a private
university shall conform to the relevant
regulations/norms of the UGC or the concerned statutory
body as amended from time to time.

3.7 A private university shall provide all the relevant
information relating to the first degree and post-graduate
degree/diploma programme(s) including the curriculum
structure, contents , teaching and learning process,
examination and evaluation system and the eligibility
criteria for admission of students, to the UGC on a
proforma prescribed by the UGC prior to starting of these
programmes.

37. Regulation 3.3 puts restriction on establishment of a University
outside the State. Regulation 5 provides consequences of violation and lays
down that if the Commission is satisfied that a private University has, even
after getting an opportunity to do so, failed to comply with the provisions of
any of the Regulations, the Commission may pass orders prohibiting the
private University from offering any course for award of the degree or
diploma. Similarly, the UGC is empowered to take action against a private
University awarding first degree and/or a post-graduate degree/diploma,
which is not specified by the UGC and any private University continuing
such programme and awarding unspecified degree shall be liable for penalty
under Section 24 of the UGC Act.

38. Shri Amarendra Sharan, learned Additional Solicitor General
appearing for UGC, has submitted that Section 5(1) of the impugned Act
which permits establishment of a University merely by an executive action
of issuing a notification in the Gazette is illegal. The University Grants
Commission Act, a law made by Parliament with reference to Entry 66 List
I, having empowered the UGC to make Regulations, any provision of an
enactment made by the State Legislature concerning higher education which
is in conflict with the Regulations, would be ultra vires, as held in sub-para
(ii) of para 41 of State of Tamil Nadu v. Adhiyaman Educational and
Research Institute (supra). He has referred to Regulation 3.1 of University
Grants Commission (Establishment of and Maintenance of Standards in
Private Universities) Regulation, 2003 which lays down that each private
University shall be established by a separate State Act and shall conform to
the relevant provisions of the UGC Act, 1956 as amended from time to time.
He has also submitted that this Court had clearly ruled in Prem Chand Jain v.
R.K. Chhabra 1984 (2) SCR 883, that a University established by special
legislation alone can have the right to confer degrees, where while referring
to Section 2(f) and 23 of the UGC Act it was said as under :
".. The word "established" or "incorporated"
referred to Acts under which universities are established
or incorporated. Several universities in this country
have been either established or incorporated under
special statutes, such as the Delhi University Act, the
Banaras Hindu University Act, the Allahabad University
Act etc. In these cases, there is a special Act either of
the Central or the Provincial or the State legislature
establishing and incorporating the particular universities.
There is also another pattern where under one
compendious Act several universities are either
established or incorporated for instance, the Madhya
Pradesh Universities Act, 1973. The definition of
university and provisions in S.23 of the Act refer to Acts
of the Central, Provincial or the State legislatures by
which one or more universities are established or
incorporated and not to institutions incorporated under a
general statute providing for incorporation.
...
'Education including universities' was a State
subject until by the 42nd Amendment of the Constitution
in 1976, that entry was omitted from the State list and,
was taken into entry 25 of the concurrent list. But as
already pointed out the Act essentially intended to make
provisions for the coordination and determination of
standards in universities and that, as already indicated, is
squarely covered under entry 66 of list I. While
legislating for a purpose germane to the subject covered
by that entry and establishing a University Grants
Commission, Parliament considered it necessary, as a
regulatory measure, to prohibit unauthorized conferment
of degrees and diplomas as also use of the word
'university' by institution which had not been either
established or incorporated by special legislation.
."

In view of Regulation 3.1, a private University can only be established
either by a separate Act or by one compendious Act where the legislature
specifically provides for establishment of the said University. Though an
attempt has been made in Section 5(1)(b) of the amended Act in this regard,
but the same does not conform to the Regulations inasmuch as the initial
notification notifying in the Official Gazette that the University is
established, is done by the executive order and not by any Act of legislature.

39. Shri Rakesh Dwivedi, learned senior counsel, who appeared amicus
curiae, has rightly submitted that though Entry 32 in List II is in general
terms dealing with "incorporation, regulation and winding up of
corporations other than those specified in List I and Universities", but
incorporation of a company is entirely different from incorporation of a
University and they are conceptually different. Sections 3, 3(1)(i), 12, 13,
26, 33 and 34 of the Companies Act relate to incorporation of a Company.
It need not have a prior business and a mere statement of a lawful purpose in
the Memorandum of Association is enough. If a Company is unable to
achieve its objective and is unable to carry on business, the shareholders
may suffer some financial loss, but there is absolutely no impact on society
at large. However, a University once incorporated gets a right to confer
degrees. A University having no infrastructure or teaching facility of any
kind would still be in a position to confer degrees and thereby create a
complete chaos in the matter of co-ordination and maintenance of standards
in higher studies which would be highly detrimental for the whole nation.
A University may, therefore, be established either by the State in exercise of
its sovereign power which would obviously be through a legislative
enactment. In the case of a private University it is necessary that it should
be a pre-established institution for higher education with all the
infrastructural facilities and qualities which may justify its claim for being
conferred with the status of a University and only such an institution can be
conferred the legal status and a juristic personality of a University.

40. Shri Rakesh Dwivedi has also submitted that insofar as private
Universities are concerned, the word "or" occurring in the expression
"established or incorporated" in Sections 2 (f), 22 and 23 of the UGC Act
should be read as "and". He has submitted that the normal meaning of the
word "established" is to bring into existence and in order to avoid the
situation which has been created by the impugned enactment where over 112
Universities have come into existence within a short period of one year of
which many do not have any kind of infrastructure or teaching facility, it
will be in consonance with the constitutional scheme that only after
establishment of the basic requisites of a University (classrooms, library,
laboratory, offices and hostel facility etc.) that it should be incorporated and
conferred a juristic personality. The word "or" is normally disjunctive and
"and" is normally conjunctive but at times they are read vice-versa to give
effect to the manifest intentions of the legislature, as disclosed from the
context. If literal reading of the word produces an unintelligible or absurd
result "and" may be read for "or" and "or" may be read for "and". (See
Principles of Statutory Interpretation by G.P. Singh 7th ed. Page 339, and
also State of Bombay v. RMD Chamarbaugwala AIR 1957 SC 699 at 709
and Mazagaon Dock v. CIT AIR 1958 SC 861). We are of the opinion that
having regard to the Constitutional scheme and in order to ensure that the
enactment made by the Parliament, namely University Grants Commission
Act is able to achieve the objective for which it has been made and the UGC
is able to perform its duties and responsibilities, and further that the State
enactment does not come in conflict with the central legislation and create
any hindrance or obstacle in the working of the later, it is necessary to read
the expression "established or incorporated" as "established and
incorporated" insofar as the private Universities are concerned.

41. Dr. Dhawan has also drawn the attention of the Court to certain other
provisions of the Act which have effect outside the State of Chhattisgarh and
thereby give the State enactment an extra territorial operation. Section 2(f)
of the amended Act defines 'off-campus centre' which means a centre of the
University established by it outside the main campus (within or outside the
State) operated and maintained as its constituent unit having the university's
complement of facilities, faculty and staff. Section 2(g) defines "off-shore
campus" and it means a campus of the university established by it outside
the country, operated and maintained as its constituent unit, having the
university's complement of facilities, faculty and staff. Section 3(7) says
that the object of the University shall be to establish main campus in
Chhattisgarh and to have the study centres at different places in India and
other countries. In view of Article 245 (1) of the Constitution, Parliament
alone is competent to make laws for the whole or any part of the territory of
India and the legislature of a State may make laws for the whole or any part
of the State. The impugned Act which specifically makes a provision
enabling a University to have an off-campus centre outside the State is
clearly beyond the legislative competence of the Chhattisgarh legislature.

42. The amending Act of 2004 came into force on 17.3.2004. Section
4(1-A) which was inserted by this amendment provided that a University
already established in the State under the provisions of the Adhiniyam shall
comply with the provisions of clauses (b) to (e) of sub-section (1) of Section
4 by 30th June, 2004 or else the notification issued by the Government under
sub-section (1) of Section 5 of the Adhiniyam shall be liable to be cancelled
on the recommendations of the Regulatory Commission. These provisions
related to creation of an endowment fund of Rs.2 crores and requirement of
land. It appears that as many as 59 Universities were denotified as they did
not comply with the requirements of the aforesaid provision. Learned State
counsel made a statement that one more University was proposed to be
denotified but the same could not be done on account of an interim order of
Court. Many of the private Universities have filed writ petitions in this
Court and also in the High Court of Chhattisgarh (which were later on
transferred to this Court) challenging the provisions of the amending Act.
The main challenge is regarding proof of being in possession of 15 acres of
land in case the main campus is proposed to be established within the
municipal corporation limits of Raipur or otherwise 25 acres of land and to
the establishment of an endowment fund of Rs.2 crores. The principal
ground raised by Shri Ravindra Srivastava and other learned counsel for the
Universities is that the provisions are arbitrary, the conditions imposed
therein are very onerous and further such conditions could not be imposed
on already existing Universities. It is also urged that the amending Act has a
retrospective operation. In our opinion, the challenge raised has hardly any
substance. In order to establish a University, there must be adequate land on
which the campus may be made and necessary infrastructural facilities
provided. No University can come into existence without a proper campus
which requires land. Similarly, for those who want to establish a
University, a sum of Rs.2 crores is a very small amount. It will be seen that
Section 4(1)(c) provides that endowment fund shall be used as security
deposit to ensure that the University complies with and functions as per the
Act. In Azeez Basha v. Union of India (supra), the history of establishment
of Aligarh Muslim University has been given. Though in the year 1877 the
Viceroy laid the foundation stone for the establishment of Muhammadan
Ango-Oriental College, Aligarh, which over a period of time became a
flourishing institution, yet, when a demand was made to establish a
University, the Government of India made a condition that at least Rs.30
lakhs must be collected and thereafter the University was established by the
1920 Act. It is extremely difficult to visualize the real value and purchasing
power of Rs.30 lakhs of the year 1920 at the present juncture. For those
who want to establish a University, a sum of Rs.2 crores is just a pittance.
The fact that many of the private Universities have challenged the provisions
of the amending Act itself shows their intention and purpose that they do not
want to create any infrastructure but want to have the right of conferring
degrees and earn money thereby. However, it is not necessary to examine
the challenge raised to the amending Act in detail, as we have already held
that Sections 5 and 6 are wholly ultra vires and all notifications issued
thereunder notifying the Universities being invalid are liable to be struck
down.

43. Shri Ravi Shankar Prashad, learned senior counsel for the State of
Chhattisgarh, has submitted that the impugned Act was passed in order to
attract private capital as the State does not have enough funds to establish
educational institutions and Universities. The Policy of Government of
India has undergone a change since 1991 and emphasis is on privatization.
The Act was enacted so that facility for higher education in the State of
Chhattisgarh may be improved and a large volume of students may get
opportunity to pursue higher studies. He has also submitted that the UGC
itself has made regulations governing admission and fee in private non-aided
professional institutions which makes reference to joint venture between a
private trust or society and the State Government. The enactment, it has
been urged, is an experiment in the changing world scenario where the trend
is towards globalization. Learned counsel has further submitted that the
amending Act makes it mandatory that the main campus of the University
should be situated in the State of Chhattisgarh and the Regulatory
Commission has been established which will ensure a foolproof monitoring
of all the private Universities. He has urged that Regulation 3.3.1 of the
UGC Regulations which requires that off-campus centres or study centres
shall be set up with the prior approval of UGC and that of the State
Government where the centre is proposed to be opened, is ultra vires.

44. There is hardly any merit in the submission raised. The impugned
Act which enables only a proposal of a sponsoring body to be notified as a
University is not likely to attract private capital and a University so notified
cannot provide education of any kind much less of good quality to a large
body of students. What is necessary is actual establishment of institutions
having all the infrastructural facilities and qualified teachers to teach there.
Only such colleges or institutions which impart quality education allure the
best students. Until such institutions are established which provide high
level of teaching and other facilities like well equipped libraries and
laboratories and a good academic atmosphere, good students would not be
attracted. In the current scenario, students are prepared to go to any corner
of the country for getting good education. What is necessary is a large
number of good colleges and institutions and not Universities without any
teaching facility but having the authority to confer degrees. If good
institutions are established for providing higher education, they can be
conferred the status of a deemed University by the Central Government in
accordance with Section 3 of UGC Act or they can be affiliated to the
already existing Universities. The impugned Act has neither achieved nor is
capable of achieving the object sought to be projected by the learned counsel
as it enables a proposal alone being notified as a University.

45. As a consequence of the discussion made and the findings recorded
that the provisions of Sections 5 and 6 of the Act are ultra vires and the
Gazette Notifications notifying the Universities are liable to be quashed, all
such Universities shall cease to exist. Shri Amarendra Sharan, learned
Additional Solicitor General has submitted that the UGC had conducted an
inquiry and it was found that most of the Universities were non-existent, but
the report was not placed before the Court as the complete exercise had not
been done. Learned counsel for the Universities have seriously disputed
this fact and have submitted that the Universities are functioning. We have
not gone into this question as it is purely factual. In order to protect the
interests of the students who may be actually studying in the institutions
established by such private Universities, it is directed that the State
Government may take appropriate measures to have such institutions
affiliated to the already existing State Universities in Chhattisgarh. We are
issuing this direction keeping in mind the interest of the students and also
Sections 33 and 34 of the Act, which contemplate dissolution of the
sponsoring body and liquidation of a University whereunder responsibility
has to be assumed by the State Government. It is, however, made clear that
the benefit of affiliation of an institution shall be extended only if it fulfills
the requisite norms and standards laid down for such purpose and not to
every kind of institution. Regarding technical, medical or dental colleges,
etc. affiliation may be accorded if they have been established after fulfilling
the prescribed criteria laid down by the All India Council of Technical
Education, Medical Council of India, Dental Council of India or any other
statutory authority and with their approval or sanction as prescribed by law.

46. In view of the discussions made above, Writ Petition (C) No.19 of
2004 (Prof. Yashpal & Ors. v. State of Chhattisgarh & Ors.) and Writ
Petition (C) No.565 of 2003 (Gopalji Agarwal Vs. Union of India & Ors.)
are allowed and provisions of Section 5 and 6 of the Chhattisgarh Niji
Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002 are
declared to be ultra vires and are struck down. As a consequence of such
declaration, all notifications issued by the State Government in the Gazette
in the purported exercise of power under Section 5 of the aforesaid Act
notifying the Universities (including respondent nos.3 to 94) are quashed
and such Universities shall cease to exist. If any institutions have been
established by such Universities, steps may be taken for their affiliation to
already existing State Universities in accordance with the direction
contained in paragraph 45 above. Parties would be at liberty to approach
the High Court if any dispute arises in implementation of this direction. All
Writ Petitions, Civil Appeals and Transferred Cases filed by the private
Universities are dismissed.

47 Before parting with the case, we would like to place on record our
appreciation of the valuable assistance rendered by Shri Rakesh Dwivedi,
who appeared on the Court's request as an amicus curiae.