PROF. YASHPAL AND ANR. v. STATE OF CHHATTISGARH AND ORS.

26Copy pinpoint26. Section 3 of the Act enumerates the objects of the University. Sub- section (I) of Section 4 provides that an application containing the Project Report to establish a University for carrying out ar.y 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 Jess 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 G 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 (I) 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 H

66 SUPREME COURT REPORTS [2005] 2 S.C.R.

A 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.

27Copy pinpoint27. 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 C 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 bf 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.

28Copy pinpoint28. 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 rese.arch, 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, G 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 H sense of University as it is generally understood with all the infrastructural

PROF, YASHPAL v. STATE [G.P. MATHUR . .I.] 67 facilities, where teaching and research on wide range of subjects and of a 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.

29Copy pinpoint29. The State Legislature can make an enactment providing for incorporation of Universities under Entry 32 of List II anc\ 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 E a fraud on the Constitution.

30Copy pinpoint30. 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 F 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 G 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 H

68 SUPREME COURT REPORTS (2005] 2 S.C.R.

., A 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 B 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. C 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 fa~ilities, 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.

31Copy pinpoint31. 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 er 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

PROF. YASHPAL v. STATE [G.P. MATHUR. J.) 69 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.

32Copy pinpoint32. 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 D II (as it then existed), and Entry 25 List III qua Entry 66 List I came up for J consideration. Subba Rao, J. after quoting the following passage from Gujarat University v. 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-a-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 G 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, H

70 SUPREME COURT REPORTS [2005] 2 S.C.R.

A 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 .... " B The whole scheme of the impugned Act, especially the effect of Sections 4, 5, 6 thereof and the result which it h~s 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.

33Copy pinpoint33. 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 E Adhiniyam. The objectives mentioned in clauses (I) 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 Ill of Seventh Schedule of the Constitution do not contemplate creation or establishment of such kind of a University.

34Copy pinpoint34. 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 ori 17.3.2004. By this amending Act some provisions ·were substituted and H

PROF. YASHPAL v. STATE [G.P. MATHUR, J.) 71 some new provisions were added. Clauses (e) and (j) inserted in Section 2 A read as under :

(e) "main campus" means the c~mpus 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 sttidies _are located. B G) "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 (IO) and (l l) of Section 3 of the Principal c Adhiniyam, the following Sub-sections shall be substituted; namely :-

"(I 0) To ensure that the standard of degrees, diplomas, certificates and other academic distinctions are not lower than these laid down by AICTE, NCTE, UGC, MCI, Pharmacy Council, and such agency/ D 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." E

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

"( l) (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 F 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~W~~ G (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 H

72 SUPREME COURT REPORTS f2005] 2 S.C.R.

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

(I-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, F 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 G 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." H

PROF. YASHPAL v. STA TE [G.P. MATHUR, .I.] 73

9. For Sub-section (I) of Section 5 of the Principal Adhiniyam, the following shall be substituted; namely (l) (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 (I) of Section 5 of the Adhiniyam prior to coming into force of the Chhattisgarh Niji Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman) C 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. D (c) All the provisions of the Adhiniyam shall apply to Universities . included in .Schedule - I.

10. Aft~r Sub-section (2) of Section 6 of the Principal Adhiniyam, the following shall be substituted; nainely :- "(2) On its notification under Sub-section (I) of Section 5, the E 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 F the case of Universities which have already been notified before this Sansodhan Adhiniyam, the period of2 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 G 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, H

74 SUPREME COURT REPORTS [2005J 2 S.C.R.

A protection of the interests of the students and ensuririg. 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 B provides t.hat it shall be the duty of the Regulatory Commission to take in consultat'ion 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. ~­

35Copy pinpoint35. 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 .D 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 proofofbeing in possession of 15 acres E 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 F 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 G Commission may declare by notification in Official Gatette 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 H and hostels, etc.), libraries and laboratories would at all be undertaken on

PROF. YASHPAL v. STATE [G.P. MATHUR. J.] 75

land which has been taken on lease for a short period of 30 years. Thus, the A · 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.

36Copy pinpoint36. In exercise of power conferred by Section 26 of the UGC Act, the University Grants Commission has m;ide the UGC (Establishment of and B - Maintenance of Standards in Private Universities) Regulations, 2003. The Regulations have been made with the object of providing for a regulat?ry 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 l.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 C

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 D 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. l. Each private University shall be established by a separate State E 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. F 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 G 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 H

76 SUPREME COURT REPORTS [2005) 2 S.C.R.

A programmes.

37Copy pinpoint37. 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 B 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 c and awarding unspec.ified degree shall be liable for penalty .under ·Section 24 of the UGC Act. . .

38Copy pinpoint38. Shri Amarendra Sharan, learned Additional Solicitor General appearing for UGC, has submitted that Section 5( I) of the impugned Act D which permits establishment of a U~iversity 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 E (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 H State legislature establishing and incorporating the particular

PROF. YASHPALv. STATE[G.P.MATHUR,J.] 77 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 univ,ersities' 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 detennination of standards in universities and that, as already indicated, is squarely covered under entry 66 of list I. While legislating for a purpose gennane to the subject covered by that entry and establishing a University Grants Commission, Parliament' considered it necessary, as a regulatory measure, to prohibit unauthorized confennent 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 B 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 r~gard, but the same does not confonn 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. F

39Copy pinpoint39. Shri Rakesh Dwivedi, learned senior counsel, who appeared amicus curiae, has rightly submitted that though Entry 32 in List II is in general tenns dea.ling 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 G -l conceptually different. Sections 3, 3{l)(i), 12, 13, 26, 33 and 34 of the Companies Act re lat~ to incorporation of a Company. It need not have a prior business and a mere statement.of a lawful Pl!rpose 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 H

78 SUPREME COURT REPORTS 12005] 2 S.C.R.

A University oilce 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 B 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. c

40Copy pinpoint40. 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 (t), 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 D 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 .....' E and hostel facility etc.) that it should be incorporated and conferred a juristic personality. The word "or" is nonnally 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 F "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.

PROF. YASHPAL v. STATE [G.P. MATHUR. J.]

41Copy pinpoint41. 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 an9 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 B

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 (l) 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 c

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 D of the Chhattisgarh legislature.

42Copy pinpoint42. 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 com"ply with the provisions of clauses (b) to (e) of sub-section (l) of Section E 4 by 30th June, 2004 or else the notification issued by the Government under sub-section (l) of Section 5 of the Adhiniyam shall be liable to be cancelled on the recommendations of the Regulatory Commission. These provi:,;ons related to creation of an endowment fund of Rs. 2 crores and requirement of land. lt appears that as many as 59 Universities were denotified as they did not comply with the requirements of the aforesaid provision. Learned State F 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 G 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 ottier learned counsel for the Universities is that the provisions are arbitrary, the conditions imposed therein are very onerous and further H

80 SUPREME COURT REPORTS (2005} 2 S.C.R.

A 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 D 1920 Act. It is extremely difficult to visualize the real value and purchasing power of Rs. 30 lakhs of the year 1920 at the pr~sentjuncture. 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 i~tention and purpose that they do not want to create any infrastructure but. want to have the right of conferring E degrees and earn ~oney thereby. However, it is not necessary to e~amine 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. ·

43Copy pinpoint43. Shri Ravi Shankar Prashad, learned ·senior counsel for the State of F 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 G 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 · H experiment in the changing world scenario where the trend is towards globalization. Learned counsel has further submitted that the amending Act

PROF. YASHPAL v. STATE [G.P. MATHUR. J.] 81

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 ce~tres or study centres. shall be set up with the prior approval ofUGC and that of the State Government where the centre is proposed to be opened, is ultra vires.

44Copy pinpoint44. 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 Univ~rsity is not likely to attract private capital and a University so notified cannot provide educat.ion of any kind much Jess 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 D the current scenario, students are prepared to go to any comer 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 E 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. F

45Copy pinpoint45. 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 G 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 H

82 SUPREME COURT REPORTS [2005) 2 S.C.R.

A 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 B 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 C 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.

46Copy pinpoint46. In view of the discussions made above, Writ Petition (C) No .. 19 of 2004 (Prof Yashpal and Ors. v. State of Chhattisgarh and Ors.,) and Writ D Petition (C) No. 565 of 2003 (Gopalji Agarwal v. Union of India an.d 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 <lismissed.

47Copy pinpoint47. Before parting with the case, we would like to pla~e on .record our appreciation of the valuable assistance rendered by Shri Rakesh Dwivedi, who appeared on the Court'~ request as an amicus curiae.

G.N. Petitions Appeals dismissed.