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VERSUS
VERSUS
Digitally signed by
VERSUS
MAHABIR SINGH
Date: 2018.04.18
16:03:07 IST
Reason:
MILLI AL-AMEEN COLLEGE & ORS. ...RESPONDENTS
1
CIVIL APPEAL NO. 3948 OF 2018
(ARISING OUT OF SLP (C) NO.35026 OF 2016)
VERSUS
VERSUS
VERSUS
2
JUDGMENT
R.F. Nariman, J.
1. Leave granted.
3
his inspection report, in which he mentioned that originally the
2003-2004.
4
23.10.2007. Pursuant to this order, on 25.10.2007, the NCMEI
5.11.2009.
6
7. A learned single Judge disposed of both the writ petitions
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authorities, namely, the competent authority set up by the
set aside.
even under the impugned judgment, it was clear that there was
the coming into force of the 2004 Act, could only go under
8
the competent authority set up under the 2004 Act. According
out, however, that the 2004 Act was amended in 2006 and then
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
NCMEI to decide.
parties.
12. The 2004 Act was set up with the initial idea of providing
10
(c) “Commission” means the National Commission
for Minority Educational Institutions constituted
under section 3;
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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.”
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 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.
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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
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vested in the NCMEI to cancel a certificate granted either by an
“subject to the provisions contained in any other law for the time
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
Section 11(f), read by itself, would clothe the NCMEI with the
power to decide any question that may arise with regard to the
minority. The power does not stop there. It also includes the
22
minority educational institution at its inception. Thus, any
authority set up under the statute. On the other hand, for the
minority status.
and Punjab High Courts have taken the view that an appellate
23
This view, apart from stultifying Section 11(f), also ignores
the other hand, the Allahabad High Court has taken the view
19. This Court has touched upon the subject without directly
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any institution as minority educational institution
and for declaration of such status.”
dealt with a judgment of the High Court, which in turn dealt with
be valid in law.
…………………………..J.
(Adarsh Kumar Goel)
…………………………..J.
(R.F. Nariman)
New Delhi;
April 18, 2018.
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