REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.    3945             OF 2018 (ARISING OUT OF SLP (C) NO.35786 OF 2016)

SISTERS OF ST. JOSEPH OF CLUNY          …APPELLANT

VERSUS

THE STATE OF WEST BENGAL & ORS. ...RESPONDENTS

CIVIL APPEAL NO.  3946             OF 2018 (ARISING OUT OF SLP (C) NO.34894 OF 2016)

NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS          …APPELLANT

VERSUS

BAISAKHI BANERJEE & ORS. ...RESPONDENTS

CIVIL APPEAL NO.    3947          OF 2018 (ARISING OUT OF SLP (C) NO.34900 OF 2016)

NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS          …APPELLANT

VERSUS

MILLI AL-AMEEN COLLEGE & ORS. ...RESPONDENTS

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CIVIL APPEAL NO.   3949          OF 2018 (ARISING OUT OF SLP (C) NO.35026 OF 2016)

NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS          …APPELLANT

VERSUS

PRAVEEN KAUR MAROLIA & ORS. ...RESPONDENTS

CIVIL APPEAL NO.   3948         OF 2018 (ARISING OUT OF SLP (C) NO.34933 OF 2016)

NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS          …APPELLANT

VERSUS

DR. ZARINA KHATOON & ORS. ...RESPONDENTS

CIVIL APPEAL NO.   3950         OF 2018 (ARISING OUT OF SLP (C) NO.1836 OF 2017)

NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS          …APPELLANT

VERSUS

STATE OF WEST BENGAL  & ORS. ...RESPONDENTS

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J U D G M E N T  

R.F. Nariman, J.

1. Leave granted.

2. In order to decide the present batch of appeals, for the sake of

convenience,  the  facts  from  the  civil  appeal  arising  out  of

Special  Leave  Petition  (Civil)  No.35786  of  2016  have  been

taken. The Sisters of St. Joseph of Cluny is a society registered

under the West Bengal Societies Registration Act, 1961, being

founded  on  26.3.1973.  Clause  3(b)  of  the  Memorandum  of

Association of the petitioner-society states:

“To acquire, take over, rent, provide, establish, aid, maintain,  administer  and/or  run colleges,  schools, institutions, hostels, houses, associations, libraries, reading rooms, or any other activity with education for its purpose for all persons, primarily for Catholics but  also  for  all  other  persons,  irrespective  of religion, race, caste, community or social status.”

3. The  society,  in  a  letter  dated  16.12.1997  addressed  to  the

Inspector of  Colleges,  North Bengal University, made it  clear

that it did not seek minority status or special concessions – it

wished to establish a college on secular lines. On 10.1.1998,

the Inspector of  Colleges, North Bengal University, submitted

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his inspection report, in which he mentioned that originally the

society  did  desire  to  have  minority  status  for  the  proposed

college. However, they subsequently changed their mind. As a

result,  the  Deputy  Secretary,  Higher  Education  Department,

Government  of  West  Bengal,  by  its  letter  dated  21.7.1998,

approved the proposal for the establishment of Cluny Women’s

College, on the footing that it would be a non-minority secular

institution. On this basis, the first governing body of the college

was constituted in accordance with Statute 1 of  the Statutes

relating to the Governing Bodies of Colleges of North Bengal

University.  On  13.9.2004,  the  University  granted  permanent

affiliation to Cluny Women’s College from the academic year

2003-2004.  

4. Following  yet  another  change of  heart,  the  society  issued a

letter  to  the  Chairman,  National  Commission  for  Minority

Educational Institutions (hereinafter referred to as the NCMEI),

dated 27.6.2007, seeking the issuance of a status certificate of

a minority educational  institution for  Cluny Women’s College.

The  NCMEI  passed  an  ex-parte  order  declaring  the  said

women’s  college  as  a  minority  educational  institution  on

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23.10.2007. Pursuant to this order, on 25.10.2007, the NCMEI

issued a minority status certificate.  On 5.9.2008, the Registrar,

University of North Bengal, filed an application for cancellation

of the said certificate.  This was dismissed by the NCMEI on

5.11.2009.

5. These events led to the society filing a writ petition, being W. P.

No. 4406 of 2010, praying:

“A.    A declaration  that  statute  1  of  the  statutes relating to governing bodies of colleges of University of North Bengal is ultra vires and unconstitutional;

B.    A writ of mandamus or any other writ, direction or  order  restraining  the  3rd respondent  from exercising  the  functions of  the  governing  body of Cluny Women’s College and to restrain them from interfering with the functions of the governing body of  Cluny  Women’s  College  constituted  by  the petitioner society.”

6. Likewise,  the  Governing  Body,  Cluny  Women’s  College

(respondent No.3 herein), which was the governing body set up

under  the  statute  of  the  University, also  filed  a  writ  petition,

being W. P. No. 5002(W) of 2010,  in which it prayed for:

“(a) A writ of and/or in the nature of mandamus do issue  directing  the  respondent  authorities  to forthwith cancel and/or rescind and/or withdraw the purported  declaration  being  F.  No.  506  of  2007 dated 25th October, 2007 issued by the respondent no.3.

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(b) A writ of and/or in the nature of mandamus do issue  directing  the  respondents,  particularly  the respondent nos. 4, 5 and 6, to forbear from acting and/or further acting and/or taking any steps and/or claiming  any  right  on  the  basis  of  the  purported declaration  being  F. No.  506  of  2007  dated  25th October, 2007 issued by the respondent no.3 in any manner whatsoever.

(c)  A  declaration  do  issue  declaring  that  the respondent no.2 does not have any jurisdiction to declare  an existing educational  institution to be a minority educational institution.  

(d) A writ of and/or in the nature of mandamus do issue directing the respondents to forthwith cancel and/or rescind and/or withdraw the purported letter dated 20th February, 2010 issued by the respondent no.9.

(e) A writ of and/or in the nature of mandamus do issue  directing  the  respondents,  particularly  the respondent no.9, to allow the petitioner to operate the bank account being S.B. Account No. 3936 0201 000  3495  maintained  with  Union  Bank  of  India, Kalimpong  Branch,  District-Darjeeling  as  per  the Resolution of the petitioner adopted on 29 th January, 2010.

(f) A writ of and/or in the nature of certiorari do issue commanding the respondents to transmit the entire records of the case to this Hon’ble Court forming the basis of the purported declaration being F. No. 506 of  2007  dated  25th October,  2007  issued  by  the respondent no.3 and the purported letter dated 20th February, 2010 issued by the respondent no.9 and on  being  so  certified  quash  the  same  so  that conscionable justice may be rendered.”

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7. A  learned  single  Judge  disposed  of  both  the  writ  petitions

holding that the NCMEI had no original jurisdiction to declare

the minority status of Cluny Women’s College, as a result  of

which  the  order  dated  23.10.2007  and  the  consequent

certificate  issued  thereupon  were  declared  as  invalid.   An

appeal to the Division Bench met with the same result.  

8. Shri  Sanjay R.  Hegde,  learned senior  counsel  appearing  on

behalf  of  the  NCMEI,  has  argued  before  us  that  on  a  true

construction of Sections 10(1) and Section 11(f) of the National

Commission  for  Minority  Education  Institutions  Act,  2004

(hereinafter referred to as the 2004 Act),  an institution which

seeks a declaration as a minority educational institution has the

option to  apply either  to  the competent  authority established

under the 2004 Act, or apply directly to the NCMEI. According

to the learned senior counsel, the power to decide an original

application, which is contained in Section 11(f), is separate and

distinct  from  the  power  contained  in  Section  12A and  12B,

which is an appellate power of the NCMEI.  According to the

learned senior counsel, the 2004 Act must thus be construed to

be  an  Act  which  confers  concurrent  power  on  three  sets  of

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authorities,  namely,  the  competent  authority  set  up  by  the

statute,  authorities  set  up  by  the  Central  or  the  State

Government for this purpose, as well as the NCMEI. According

to him, therefore, the judgment was wrong in law and should be

set aside.   

9. Shri Chander Uday Singh, learned senior counsel appearing on

behalf of the petitioner-society, was at pains to point out that

even under the impugned judgment, it was clear that there was

no competent authority set up under the statute for the society

to  apply  to,  to  establish  a  new  college  at  the  time  such

application was made by the society. Consequently, according

to the learned senior counsel,  it  is  clear that  it  was only the

NCMEI  which  the  society  could  have  approached.  Further,

according to the learned senior counsel, the institution, being a

minority institution which had already been established prior to

the  coming  into  force  of  the  2004  Act,  could  only  go  under

Section  11(f)  to  have  its  status  declared  as  a  minority

educational institution. Section 10(1), according to the learned

senior counsel, is only for the limited purpose of establishing a

new minority institution for which alone one would have to go to

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the competent authority set up under the 2004 Act.  According

to  the  learned  senior  counsel,  the  impugned  judgment,

therefore, deserves to be set aside.  

10. Shri Rajeev Dhavan, learned senior counsel appearing on

behalf  of  respondent  No.3,  referred  us  to  the  National

Commission  for  Minorities  Act,  1992  and  also  referred  to

various provisions of the 2004 Act in some detail.  He pointed

out, however, that the 2004 Act was amended in 2006 and then

in 2010, leading to the position that Section 10 would only deal

with  the  grant  of  a  certificate  to  a  person  who  desires  to

establish  a  minority  educational  institution  for  the  first  time.

Otherwise,  the  functions  of  the  NCMEI  under  Section  11(f)

would  be  wide  enough  to  include  the  power  to  declare  the

status  of  minority  educational  institutions,  which  were

established  before  the  commencement  of  the  2004  Act.

According to the learned senior counsel, it was clear that Cluny

Women’s College had been set up as a secular college and it

was only in 2007 that a volte-face was taken by the society to

get it declared as a minority educational institution.  As none of

the orders passed by the NCMEI have looked in detail into the

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aspect  of  whether  such  a  college  can  be  declared  to  be  a

minority educational institution, after it has opted to be a secular

institution,  this  is  a  case  which  should  be  remanded  to  the

NCMEI to decide.

11. We have  heard  learned  counsel  appearing  for  all  the

parties.   

12. The 2004 Act was set up with the initial idea of providing

direct  affiliation for  minority educational  institutions to  central

universities.   It  was subsequently amended twice in order  to

further  broad base and expand the functions as well  as  the

quasi-judicial powers of the NCMEI.  The sections relevant for

our discussion are set out hereinbelow:

“2.  Definitions.—  In  this  Act,  unless  the  context otherwise requires,—  

(aa) “appropriate Government” means,—  

(i) in relation to an educational institution recognized for conducting its programmes of studies under any Act of Parliament, the Central Government; and  

(ii)  in  relation  to  any  other  educational  institution recognized  for  conducting  its  programmes  of studies under any State Act, a State Government in whose jurisdiction such institution is established  

xxx xxx xxx

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(c) “Commission” means the National Commission for  Minority  Educational  Institutions  constituted under section 3;  

(ca)  “Competent  authority”  means  the  authority appointed by the appropriate Government to grant no objection certificate for the establishment of any educational  institution  of  their  choice  by  the minorities;

Section  10  has  been  amended  in  three  stages  since  the

enactment of the 2004 Act as follows:

“  Stage I (as enacted in 2004)

10. Right of a Minority Educational Institution to seek affiliation to a Scheduled University: (1) Notwithstanding anything contained in any other law  for  the  time  being  in  force,  a  Minority Educational Institution may seek recognition as an affiliated  college  of  a  Scheduled  University  of  its choice. (2)  The  Scheduled  University  shall  consult  the Government  of  the  State  in  which  the  minority educational  institution  seeking  affiliation  under sub-section  (1)  is  situated  and  views  of  such Government  shall  be  taken  into  consideration before granting affiliation.

Stage II (as amended in 2006)

10.  Right  to  establish  a  Minority  Educational Institution: (1) Any person who desires to establish a Minority Educational Institution may apply to the Competent authority for the grant of no objection certificate for the said purpose.

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(2)  The Competent authority shall,- (a)  on  perusal  of  documents,  affidavits  or  other evidence, if any; and  (b) after giving an opportunity of being heard to the applicant,  decide  every  application  filed  under sub-section  (1)  as  expeditiously  as  possible  and grant or reject the application, as the case may be: Provided that where an application is rejected, the Competent authority shall communicate the same to the applicant. (3) Where within a period of ninety days from the receipt of the application under sub-section (1) for the grant of no objection certificate- (a)  the  Competent  authority  does  not  grant  such certificate; or (b) where an application has been rejected and the same has  not  been communicated  to  the  person who has applied for the grant of such certificate,  it shall be deemed that the Competent authority has granted a no objection certificate to the applicant. (4)  The  applicant  shall,  on  the  grant  of  a no-objection  certificate  or  where  the  Competent authority  has  deemed  to  have  granted  the  no objection certificate, be entitled to commence and proceed  with  the  establishment  of  a  Minority Educational Institution in accordance with the rules and regulations, as the case may be, laid down by or under any law for the time being in force. Explanation.- For the purpose of this section,- (a)  “applicant”  means  of  person  who  makes  an application under sub-section (1) for establishment of a Minority Educational Institution; (b)  “no  objection  certificate”  means  a  certificate stating therein, that the Competent authority has no objection  for  the  establishment  of  a  Minority Educational Institution.  

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Stage III (as amended in 2010) 10.  Right  to  establish  a  Minority  Educational Institution.—  (1) Subject to the provisions contained in any other law for  the  time being  in  force,  any person,  who desires  to  establish  a  Minority  Educational Institution may apply to the competent authority for the  grant  of  no  objection  certificate  for  the  said purpose. (2) The Competent authority shall,—  (a)  on  perusal  of  documents,  affidavits  or  other evidence, if any; and  (b) after giving an opportunity of being heard to the applicant,  decide  every  application  filed  under sub-section  (1)  as  expeditiously  as  possible  and grant or reject the application, as the case may be:  Provided that where an application is rejected, the Competent authority shall communicate the same to the applicant.  (3) Where within a period of ninety days from the receipt of the application under sub-section (1) for the grant of no objection certificate,—  (a)  the  Competent  authority  does  not  grant  such certificate; or  (b) where an application has been rejected and the same has  not  been communicated  to  the  person who has applied for the grant of such certificate,  it shall be deemed that the Competent authority has granted a no objection certificate to the applicant. (4)  The  applicant  shall,  on  the  grant  of  a  no objection  certificate  or  where  the  Competent authority  has  deemed  to  have  granted  the  no objection certificate, be entitled to commence and proceed  with  the  establishment  of  a  Minority Educational Institution in accordance with the rules

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and regulations, as the case may be, laid down by or under any law for the time being in force.  Explanation.—For the purposes of this section,—  (a)  “applicant”  means any person  who  makes  an application under  subsection (1)  for  establishment of a Minority Educational Institution;  (b)  “no  objection  certificate”  means  a  certificate stating therein, that the Competent authority has no objection  for  the  establishment  of  a  Minority Educational Institution.”

Section 11 has been amended since the enactment of the 2004

Act as follows: “Section 11 (as enacted in 2004)

11.  Functions  of  Commission.—Notwithstanding anything  contained  in  any  other  law for  the  time being in force, the Commission shall- (a)  advise  the  Central  Government  or  any  State Government  on  any  question  relating  to  the education of minorities that may be referred to it; (b)  look  into  specific  complaints  regarding deprivation  or  violation  of  rights  of  minorities  to establish and administer educational institutions of their choice and any dispute relating affiliation to a Scheduled University and report its findings to the Central Government for its implementation; and (c)  to  do  such  other  acts  and  things  as  may be necessary, incidental or conducive to the attainment of all or any of the objects of the Commission.

Section 11 (as amended in 2006)

11. Functions of Commission.—  Notwithstanding anything  contained  in  any  other  law for  the  time being in force, the Commission shall—  

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(a)  advise  the  Central  Government  or  any  State Government  on  any  question  relating  to  the education of minorities that may be referred to it; (b) enquire, suo motu, or on a petition presented to it  by  any  Minority  Educational  Institution,  or  any person  on  its  behalf  into  complaints  regarding deprivation  or  violation  of  rights  of  minorities  to establish and administer educational institutions of their choice and any dispute relating to affiliation to a University and report its finding to the appropriate Government for its implementation; (c)  intervene  in  any  proceeding  involving  any deprivation or violation of the educational rights of the minorities before a court with the leave of such court;  (d) review the safeguards provided by or under the Constitution, or any law for the time being in force, for  the  protection  of  educational  rights  of  the minorities  and  recommend  measures  for  their effective implementation;  (e) specify measures to promote and preserve the minority status and character of institutions of their choice established by minorities;  (f) decide all questions relating to the status of any institution as a Minority Educational Institution and declare its status as such;  (g)  make  recommendations  to  the  appropriate Government  for  the  effective,  implementation  of programmes and schemes relating to the Minority Educational Institutions; and  (h)  do  such  other  acts  and  things  as  may  be necessary, incidental or conducive to the attainment of all or any of the objects of the Commission.”

Section 12, 12A, 12B, 12C, 12F and Section 22 are as follows:

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“12. Powers of Commission.—  (1)  If  any  dispute  arises  between  a  minority educational institution and a University relating to its affiliation  to  such  University,  the  decision  of  the Commission thereon shall be final.  (2)  The  Commission  shall,  for  the  purposes  of discharging its functions under this Act, have all the powers of a civil court trying a suit and in particular, in respect of the following matters, namely:—  (a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;  (b)  requiring  the  discovery and production of  any document;  (c) receiving evidence on affidavits;  (d) subject to the provisions of sections 123 and 124 of  the  Indian  Evidence  Act,  1872,  (1  of  1872) requisitioning  any  public  record  or  document  or copy of such record or document from any office;  (e)  issuing  commissions  for  the  examination  of witnesses or documents; and  (f) any other matter which may be prescribed.  3)  Every proceeding before the Commission shall be deemed to be a judicial  proceeding within the meaning  of  sections  193  and  228,  and  for  the purposes of section 196, of the Indian Penal Code (45 of 1860) and the Commission shall be deemed to be a civil court for the purposes of section 195 and  Chapter  XXVI  of  the  Code  of  Criminal Procedure, 1973 (2 of 1974).].  12A.  Appeal  against  orders  of  the  Competent authority.—  (1) Any person aggrieved by the order of refusal to grant no objection certificate under sub-section (2) of  section  10  by  the  Competent  authority  for establishing a Minority Educational Institution, may

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prefer  an  appeal  against  such  order  to  the Commission.  (2)  An  appeal  under  sub-section  (I)  shall  be  filed within thirty days from the date of the order referred to in sub-section (I) communicated to the applicant:  Provided  that  the  Commission  may  entertain  an appeal after the expiry of the said period of thirty days, if it is satisfied that there was sufficient cause for not filing it within that period.  (3) An appeal to the Commission shall be made in such  form  as  may  be  prescribed  and  shall  be accompanied by a copy of the order against which the appeal has been filed.  (4) The Commission, after hearing the parties, shall pass an order as soon as may be practicable, and give  such  directions  as  may  be  necessary  or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice. (5)  An  order  made  by  the  Commission  under sub-section  (4)  shall  be  executable  by  the Commission  as  a  decree of  a  civil  court  and the provisions of the Code of Civil Procedure, 1908 (5 of 1908), so far as may be, shall apply as they apply in respect of a decree of a civil court.  12B.  Power  of  Commission  to  decide  on  the minority status of an educational institution.— (1) Without prejudice to the provisions contained in the  National  Commission  for  Minorities  Act,  1992 (19 of 1992), where an authority established by the Central Government or any State Government, as the case may be, for grant of minority status to any educational institution rejects the application for the grant  of  such  status,  the  aggrieved  person  may appeal  against  such  order  of  the  authority  to  the Commission.  (2)  An  appeal  under  sub-section  (1)  shall  be preferred  within  thirty  days  from  the  date  of  the

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order communicated to the applicant: Provided that the Commission may entertain an appeal after the expiry  of  the  said  period  of  thirty  days,  if  it  is satisfied that there was sufficient cause for not filing it within that period.  (3) An appeal to the Commission shall be made in such  form  as  may  be  prescribed  and  shall  be accompanied by a copy of the order against which the appeal has been filed.  (4) On receipt of the appeal under sub-section (3), the Commission may, after giving the parties to the appeal an opportunity of being heard, decide on the minority  status  of  the  educational  institution  and shall proceed to give such direction as it may deem fit  and, all  such directions shall be binding on the parties.  Explanation.— For the purposes of this section and section  12C,  “authority  ”  means  any  authority  or officer  or  commission  which  is  established  under any law for  the time being in  force or  under  any order  of  the  appropriate  Government,  for  the purpose of granting a certificate of minority status to an educational institution.  

12C. Power to cancel.—

The  Commission  may,  after  giving  a  reasonable opportunity of being heard to a Minority Educational Institution to which minority status has been granted by an authority or Commission, as the case may be, cancel  such  status  under  the  following circumstances, namely:-  (a)  if  the  constitution,  aims  and  objects  of  the educational  institution,  which  has  enabled  it  to obtain  minority  status  has  subsequently  been amended in such a way that it no longer reflects the purpose  or  character  of  a  Minority  Educational Institution;  

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(b)  if,  on  verification  of  the  records  during  the inspection  or  investigation,  it  is  found  that  the Minority Educational  Institution has failed to admit students belonging to the minority community in the institution as per rules and prescribed percentage governing admissions during any academic year.  xxx xxx xxx

12F. Bar  of  jurisdiction.— No  court  (except  the Supreme  Court  and  a  High  Court  exercising jurisdiction  under  articles  226  and  227  of  the Constitution) shall entertain any suit, application or other  proceedings  in  respect  of  any  order  made under this Chapter.

xxx xxx xxx

22. Act to have overriding effect.—

The  provisions  of  this  Act  shall  have  effect notwithstanding  anything  inconsistent  therewith contained  in  any  other  law for  the  time  being  in force or in any instrument having effect by virtue of any law other than this Act.”

13. The  National  Commission  for  Minority  Educational

Institutions Act, as it originally stood in 2004, by Section 10 only

concerned  itself  with  the  recognition  of  minority  educational

institutions to an affiliated college of a scheduled university of

its  choice.   At  this  stage,  the  functions  of  the  NCMEI  were

limited to only three things, namely, an advisory function under

sub  clause  (a);  looking  into  specific  complaints  relating  to

deprivation or violation of rights of minorities to establish and 19

administer  educational  institutions  of  their  choice  and  any

disputes relating to  affiliation to  scheduled universities  under

sub-clause (b); and a residuary clause to do all such other acts

as may be necessary to the attainment of the objects of the

NCMEI under sub-clause (c).  A sea change came about by the

Amendment Act of 2006.  By this amendment, a person who

desires to establish a minority educational institution is to apply

to the competent authority for a no objection certificate for the

said purpose under Section 10. Concomitantly, under Section

11,  the  functions  and  powers  of  the  NCMEI  were  expanded

beyond  the  original  sub-clauses  (a)  to  (c)  referred  to

hereinabove, to include, under sub-clause (f), decisions as to all

questions relating to the status of any institution as a minority

educational  institution  and  declaration  of  its  status  as  such.

The same Amendment Act  of 2006 also conferred powers of

appeal against orders of the competent authority to the NCMEI

under  Section  12A  as  well  as  over  authorities  that  were

established by the Central or State Government, who rejected

applications for the grant of minority status to an educational

institution, under Section 12B.  A power of cancellation was also

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vested in the NCMEI to cancel a certificate granted either by an

authority or the NCMEI under certain circumstances.  

14. The  Amendment  Act  of  2010  added  the  expression

“subject to the provisions contained in any other law for the time

being in force…” to Section 10(1) of the 2004 Act.

15. At first blush, it does appear that there is a clash between

the provisions of Section 10(1) and Section 11(f) of the 2004

Act.  Harmoniously construed, however, it would be clear that

the NCMEI’s powers under Section 11(f) are to be exercised,

notwithstanding anything contained in any other law for the time

being in force.  On the other hand, the competent authority who

grants a no objection certificate under Section 10 can only do

so subject to the provisions contained in any other law for the

time being in force.  

16. Secondly,  Section  11(f)  is  a  very  wide  provision  which

empowers the NCMEI  to  decide  all  questions relating to the

status of an institution as a minority educational institution and

to declare its status as such.  The expression “all questions” as

well  as the expression “relating to”,  which are words of wide

import, clothe the NCMEI with the power to decide any question

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that  may  arise,  which  may  relate  directly  or  indirectly,  with

respect to the status of an institution as a minority education

institution. Looked at by itself, Section 11(f) would include the

declaration  of  the  status  of  an  institution  as  a  minority

educational institution at all stages. Article 30 of the Constitution

of  India  grants  a  fundamental  right  to  all  minorities,  whether

based  on  religion  or  language,  to  establish  and  administer

educational  institutions  of  their  choice.   The  power  under

Section 11(f), read by itself, would clothe the NCMEI with the

power to decide any question that may arise with regard to the

right to establish and/or administer educational institutions by a

minority.  The power does not stop there.  It also includes the

power  to  declare  such  institution  as  a  minority  educational

institution, which is established and administered as such, so

that  it  can  avail  of  the  fundamental  right  guaranteed  under

Article 30 of the Constitution.  

17. However,  Section  10(1),  which  was  introduced  at  the

same time as Section 11(f)  by the Amendment  Act  of  2006,

carves  out  one  facet  of  the  aforesaid  power  contained  in

Section 11(f), namely the grant of a no objection certificate to a

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minority  educational  institution  at  its  inception.   Thus,  any

person  who  desires  to  establish  a  minority  educational

institution after  the Amendment Act  of  2006 came into force,

must apply only to the competent authority for the grant of a no

objection certificate for the said purpose.  It is a little difficult to

subscribe to Shri Hegde’s argument that the said powers are

concurrent.  Harmoniously  read,  all  applications  for  the

establishment  of  a  minority  educational  institution  after  the

Amendment  Act  of  2006  must  go  only  to  the  competent

authority set up under the statute.  On the other hand, for the

declaration of its status as a minority educational institution at

any  stage  post  establishment,  the  NCMEI  would  have  the

power  to  decide  the  question  and  declare  such  institution’s

minority status.   

18. We find that various High Courts have taken conflicting

views on the reach of these provisions.  The Calcutta, Bombay

and Punjab High Courts have taken the view that an appellate

power  cannot  be  confused  with  an  original  power  and  that,

therefore,  Section 11(f)  cannot  be pressed into service at  all

when it comes to declare of the status of a minority institution.

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This  view,  apart  from  stultifying  Section  11(f),  also  ignores

Section 12(2) of the Act, which confers certain powers of a Civil

Court, which powers refer only to a Court of first instance.  On

the other hand, the Allahabad High Court has taken the view

that Section 10 and 11(f) operate in different fields: Section 10

being the power to grant a no objection certificate to establish

an institution and Section 11(f) relating to the determination of

all questions relating to the status of an institution.  

19. This Court has touched upon the subject without directly

answering the question posed before us.  Thus, in Governing

Body OF P.A.E.M. College v. State of Jharkhand, decided on

6.12.2012, this Court, after referring to Section 11(f) and 12B of

the 2004 Act, held: “From the  above  provisions,  it  is  clear  that  the Commission has the power to decide all questions relating to the status of any institution as minority educational  institution  and  declare  its  status  as such.  More  over  under  Section  12B,  where  an authority established by the Central  Government or  any  State  Government  has  rejected  the application  for  grant  of  minority  status  to  any educational institution, the aggrieved person may appeal against such order of the authority to the Commission. The provisions contained in Section 11(f)  of  2004  Act  and  Section  12B  of  the Amendment Act are, thus, wholesome provisions for deciding all questions relating to the status of

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any  institution  as  minority  educational  institution and for declaration of such status.”

20. In  Corporate Educational  Agency v. James Mathew,

(2017) 15 SCC 595 (at 600-601), a Division Bench of this Court

dealt with a judgment of the High Court, which in turn dealt with

the appointment of teachers in minority educational institutions.

This  Court,  after  noticing  that  the  appellant  was  already  an

existing minority educational institution, went on to hold:

“9. Chapter  III  deals  with  rights  of  minority educational  institutions.  Under  Section  10, whosoever  desires  to  establish  a  minority educational  institution,  has  to  apply  to  the competent authority for a “no-objection certificate”. The “competent authority” is defined under Section 2(ca) of the Act to mean, the authority appointed by the appropriate Government to grant “no-objection certificate” for the establishment of any educational institution of their choice by the minorities. xxx xxx xxx  11.  Therefore, after the introduction of the National Commission  for  Minority  Educational  Institutions Act,  2004,  it  is  also  within  the  jurisdiction  and mandate of the National Commission to issue the certificate  regarding  the  status  of  a  minority educational  institution.  Once the Commission thus issues a certificate, it is a declaration of an existing status.”

21. This  judgment  unequivocally  holds  that,  insofar  as

existing minority institutions are concerned, Section 11(f) clearly 25

confers  jurisdiction  on  the  NCMEI  to  issue  a  certificate

regarding the status of the minority educational institution.  We

respectfully concur with the aforesaid view.  

22. Shri  Dhavan,  however,  exhorted  us  to  send  back  the matter to the NCMEI for a hearing de novo on merits.  We may

mention that the fact that the college was begun as a secular

institution  and  wished  to  change  into  a  minority  educational

institution midstream, which was not permissible according to

Shri Dhavan, is not a plea taken up before the learned single

Judge.  This  plea,  however,  was  raised  before  the  Division

Bench  and  answered  by  both  Judges  stating  that  the

fundamental  right  under  Article  30 cannot  be waived.   While

agreeing with this view, it is necessary to point out, on the facts

of the case, that the University of North Bengal has accepted

the NCMEI’s order dated 5.11.2009, in which the NCMEI went

into the aforesaid question.  It would not, therefore, be in the

fitness of things to send back this matter to be decided afresh

at the behest of a governing body which can no longer claim to

govern  the  college  set  up  by  the  society.  It  needs  only  be

pointed out  that,  by a  letter  dated 4.5.2009,  the Principal  of

Cluny Women’s College requested the Vice-Chancellor of the

University  to  extend  the  term of  the  governing  body  set  up

under the statutes of the University only until the constitution of

a new governing body. As the new governing body has been

constituted  on  the  footing  that  Cluny  Women’s  College  is  a

minority  educational  institution,  we  are  of  the  view  that  the 26

parallel governing body, which claims to continue as such, has

no legs to stand after the formation of a new governing body.

This  being the case,  we are not  inclined to send the matter

back  to  the  NCMEI  for  a  de novo hearing  on  merits  at  the

behest of Shri Dhavan’s client.  

23. The appeal is, accordingly, allowed and the judgment of

the  Calcutta  High  Court  is  set  aside.   The  order  dated

23.10.2007 and the certificate dated 25.10.2007 are declared to

be valid in law.

24. In  view of  the  above,  the  present  batch  of  appeals  is

disposed of in accordance with this judgment.

…………………………..J. (Adarsh Kumar Goel)

…………………………..J. (R.F. Nariman)

New Delhi; April 18, 2018.  

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