K.M.College Of Edu.Muriya ... vs Union Of India Throu Secy. ...

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved.
 
(1) Case :- MISC. SINGLE No. - 4643 of 2013
 

 
Petitioner :- K.M.College Of Edu.Muriya Ghatampur Kanpur            
 
                     Nagar & Anr.
 
Respondent :- Union Of India Throu Secy. Minority Welfare 
 
                        And Ors.
 
Counsel for Petitioner :- Akshat Srivastava
 
Counsel for Respondent :- C.S.C.,A.S.G.,Raj Kumar Singh, 
 
                                              Saghir Hasan Khan
 

 
(2) Case :- MISC. SINGLE No. - 4644 of 2013
 

 
Petitioner :- Abhinawa Sewa Sansthan Mahavidyalaya Kanpur 
 
                     Thr.Secy.& Anr.
 
Respondent :- Union Of India Throu Secy. Minority Welfare 
 
                         And Ors.
 
Counsel for Petitioner :-     Shashank Bhasin
 
Counsel for Respondent :- C.S.C.,A.S.G., Raj Kumar Singh, 
 
                                             Saghir Hasan Khan
 

 
(3) Case :- MISC. SINGLE No. - 7307 of 2014
 

 
Petitioner :- Ambika Ram Devi Degree College Thru. Its 
 
                      Secretary
 
Respondent :- Union Of India Thru. Secretary Minority 
 
                         Welfare & 3 Others
 
Counsel for Petitioner :- Akshat Srivastava,Stuti Mittal
 
Counsel for Respondent :- C.S.C.,A.S.G.,I H Faruqui, Ikhlaq 
 
                              Hussain Farooqui,Rahul Shukla,S.B.Pandey
 

 
Hon'ble Rajan Roy,J.

Heard Sri Prashant Chandra, learned Senior Advocate assisted by Sri Akshat Srivastava, learned counsel for the petitioner, Sri I.H. Faruqui, appearing on behalf of opposite party no. 2, National Minority Commission, Sri Z. Jilani, learned Additional Advocate General for the State, Sri Mansoor Ahmad, Chief Standing Counsel for the State, Sri Rahul Shukla, learned Standing Counsel for the State in writ petition no. 7307/2014 and Sri S.B. Pandey for Union of India along with Sri Raj Kumar Singh.

All these writ petitions involve common question of facts and law, therefore, they have been heard and are being decided together by a common judgment.

Writ Petition No. 4643 (MS) of 2013 has been heard as a leading writ petition.

By means of these writ petitions, the petitioners, who are educational institutions claiming minority status have challenged the order passed by the National Commission for Minority Educational Institutions (hereinafter referred to as 'the Commission') by which the application submitted by them for granting No Objection Certificate for establishing a minority educational institution and for declaration of their status as a minority has been rejected. The petitioners in W.P. No. 4643 (MS) of 2013 and 4644(MS) of 2013 are also assailing the Government order dated 19.08.2014 passed by the State Government during pendency of this writ petition on an application having been filed by them in pursuance to interim directions of this Court, whereby it has been held that the authority competent to give said declaration is the Commission and not the State Government. The petitioners are also seeking a declaration that they are deemed minority educational institutions under Section 10(3) of the National Commission for Minority Educational Institutions Act, 2004 (hereinafter referred to as 'the Act, 2004).

The facts of the case, in brief, are as under:-

Out of seven (7) founding members of petitioner no.1, in Writ Petition No. 4643(MS) of 2013 five (5) embraced Buddhism on 08.08.2008. Certificates issued by Bhartiya Budh Samiti, Budh Vihar, Risaldar Park, Lucknow stating that said founding members had adopted Buddhism in place of their earlier religion i.e. Hinduism voluntarily and had been administered Baudh Diksha and are followers of Budhism, are on record. On 04.10.2008 the society of petitioners was registered, which runs the institution in question. On 20.08.2009 the NCTE granted recognition for 100 seats of B.Ed course for academic session 2009-10. The institution was established in the year 2009. On 16.06.2010 affiliation was granted to the institution in question under Section 37(2) of the Act, 1973 w.e.f. 01.07.2010 for B.Ed. Application was submitted before the Commission for grant of No Objection Certificate for establishing a minority educational institution on 26.12.2012. On 13.03.2013 the Tehsildar issued certificates to the founding member of the Institution to the effect that they belong to a minority community i.e. Buddhists.

Likewise, out of eighteen (18) founding members of petitioner no.2 twelve (12) embraced Buddhism on 15.06.2003/04.05.2004. The institutions were established in the year 2006 as mentioned in the application submitted before the Commission. On 09.09.2006 the NCTE granted recognition to the said institution for 100 seats of B.Ed course w.e.f. 2006-07. On 22.11.2007, the requisite affiliation was granted by the State Government for the said B.Ed course. The society which at present runs the institution was surprisingly registered subsequently on 24.04.2009 as is evident from Annexure no.9 to the writ petition. The application for grant of no objection certificate was submitted on 26.12.2012. On 13.03.2013 the certificates were issued by the Tehsildar in respect of twelve (12) founding members that they belong to a minority community i.e. Buddhists.

It is not in dispute that Buddhists have been declared as minority community both by the State Government and Central Government vide notification dated 07.10.1994 and 27.03.1994 respectively.

It is alleged that petitioners approached the State Cell of Minority Commission established under the National Commission for Minorities Act, 1992 but it did not accept their applications for grant of No Objection Certificate and declaration of their minority status, therefore, in these compelling circumstances, they were compelled to approach the Commission directly, by submitting an application on 26.12.2012 before it. These applications, were rejected by means of orders dated 05.06.2013 and 06.06.2013 etc. which have been challenged in these writ petition and on 25.07.2014 an interim order was passed taking note of the fact that the competent authority had not been appointed by the State Government under Section 10 of the Act 2004 thereby, inter-alia, restraining the State Government from giving permission to establish minority institutions as there was no competent authority to decide this issue. The court permitted the petitioner to move an application alleging discrimination before the Secretary, Minority Welfare, Government of U.P. with a direction to the State Officer to pass a reasoned and speaking order thereon. In pursuance to this, the Government order dated 19.08.2014, was passed by the concerned Principal Secretary, Government of U.P. Lucknow which is also impugned herein.

During pendency of writ petition i.e. on 05.01.2015 the Principal Secretary Higher Education, Government of U.P. was appointed as competent authority by the State Government under Section 10 read with Section (2)(ca) of the Act, 2004. Thereafter the petitioners claim to have submitted applications on 23/28.01.2015 before the said competent authority under Section 10 of the Act, 2004 but no decision had been taken thereon within ninety (90) days, therefore, it is being claimed that they be treated as deemed minority educational institutions under Section 10(3).

The writ petitions do not disclose whether the Central Government has appointed the competent authority under Section 10 or not, neither do the counter affidavits.

The opposite party no.1 Union of India filed a common counter affidavit along with opposite party no.2 in the matter. Subsequently time was taken for filing supplementary counter affidavit including an affidavit by an officer of the Human Resources Ministry but inspite of ample opportunity having been granted and inspite of the statement of learned counsel for opposite party no.1, as recorded in the orders dated 14.07.2014 and 23.07.2014 as also the stop orders dated 20.08.2014 and 28.08.2014, no such supplementary counter affidavit was filed.

As far as territorial jurisdiction is concerned, one of the orders under challenge in Writ Petition No. 4643 (MS) of 2013 and Writ Petition No. 4644 (MS) of 2014 has been passed by the Government of U.P. at Lucknow on 19.08.2014 declining to consider the application of petitioner for No Objection Certificate therefore, part of cause of action for preferring these writ petitions arises at Lucknow, hence the writ petitions are maintainable before the Lucknow Bench of this Court and the earlier apprehension expressed in this regard is no longer tenable.

In Writ Petition No. 7307 (MS) of 2014 the educational institutions are situated at Lucknow. They submitted an application under Section 10 before the competent authority appointed by the State in January 2015 at Lucknow and are claiming deemed minority status under Section 10(3) on account of inaction of the said 'Competent Authority' at Lucknow apart from challenging the order of Commission, therefore, in respect to this petition also part of cause of action has occurred at Lucknow.

The contention of Sri Prashant Chandra, learned Senior Advocate appearing for petitioners firstly is that the supplementary affidavit filed on behalf of opposite party no.2 is by an incompetent authority and not in accordance with law. The second submission is that the petitioners had to approach the Commission under compulsion as the State Government was not considering the application for permission to establish minority educational institutions nor had it appointed any competent authority under Section 10 thereof. Having said so, he further submitted that in fact, the Commission had no original powers to grant such permission or declare the minority status of an institution. It had only appellate powers under the Act, 2004. The original powers are vested in the authorities referred to under Section 10 and 12-B of the Act, 2004. In the event of refusal or rejection by the said authority, an appeal lies before the Commission under Section 12-A or 12-B of the said Act. In this regard he placed reliance upon the Division Bench of Bombay High Court in the case of State of Maharashtra vs. Mehmuda Shikshan and Mahila Gramin Vikas Babuudheshiya Sanstha, in Writ Petition No. 5478 of 2007 decided on 15.07.2009 and also a Division Bench judgment of Delhi High Court in the case of M. Atyab Siddiqui vs. Government of NCT of Delhi, in Writ Petition No. 5092 of 2013 decided on 19.03.2014.

In this context he also referred the pronouncement made by the Supreme Court in the case of case of T.M.A. Pai Foundation vs. State of Karnataka (2002) 8 SCC 481, as subsequently explained in the cases of P.A. Inamdar Vs. State of Maharashtra reported in (2005) 6 SCC 537. Based thereon he submitted that minority status has to be declared by the State.

He further submitted that the State Government and Central Government have already declared Buddhists to be a religious minority. Founding members of the petitioner institutions having declared themselves to be Buddhists and having annexed certificates issued by Boudh Samities and the certificates issued by the Tehsildar, the State Government was required to perform only a ministerial act of granting the No Objection Certificate and declaring the minority status of the petitioners' institutions. In this regard he relied upon the decision of the Supreme Court in the case of N. Ahmad vs. Manager, Emjay High School and others reported in (1998) 6 SCC 674.

He further submitted that in any case, the reasons given by the Commission for rejecting the petitioners application are not germane in the eyes of law as there is no requirement of renouncing the earlier religion while adopting another either in law or in Buddhism. Reasoning given by the Commission is based on Islamic traditions. Buddhism and Jainism are quintessential extracts of Hinduism, Hinduism being the general religion and common faith, whereas, Buddhism is a special religion formed on the basis of quintessence of Hinduism. In this regard he relied upon the pronouncement of Supreme Court in the case of Bal Patil and another vs. Union of India and others reported in (2005) 6 SCC 690, Committee of Management Kanya Junior High School Bal Vidya Mandir Etah, U.P. vs. Sachiv U.P. Basic Shiksha Parisahd Allahabad U.P. And others reported in (2006) 11 SCC 92, Sondur Gopal vs. Sondur Rajini, reported in (2013) 7 SCC, 426, Sastri Yagnapurushdasji vs. Muldas Bhundardas Vaishya reported in (1996) 3 SCR 242, and Punjabrao vs. Dr. D.P. Meshram reported in (1965) 1 SCR 849.

He referred to Article 25 explanation 2 of the Constitution in this regard and submitted that the impugned orders passed by the Commission generally offended Article 25 to 30 of the Constitution.

He also submitted that the petitioner should be deemed to be a minority institution in view of the failure of the competent authority appointed under section 10 to take a decision on their applications submitted on 23/28.1.2015, within the period stipulated under Section 10 of the Act, 2004, in view of sub section 3 thereof.

He submitted that there was sufficient material on record to establish the minority status of the educational institutions. The matter need not be relegated to any forum or court as this court was competent to take a call on the status of the petitioners.

Sri Z. Jilani leaned Additional Advocate General appearing for State and its authorities submitted that in view of the Division Bench Judgment of this Court in Special Appeal No. 903 of 2006, the State Government did not appoint the competent authority under Section 10 nor considered the applications seeking permission for establishing a minority educational institutions specially as the Special Leave Petition filed by the State Government against the said judgment was dismissed albeit on the ground of delay but he also informed the Court that Special Leave Petition of private institutions in respect of the said proceedings is still pending. He said that the Division Bench judgment was binding upon the State. He further contended that the petitioners had approached the Commission on their own and not on the suggestion of the State Government as alleged by them. He submitted that the Commission was competent to decide the minority status of the educational institutions. He relied upon the decision of Supreme Court rendered in the Civil Appeal No. 3070 of 2004, Governing Body of P.A.E.M. College and another vs. State of Jharkhand and others as also the authority in the case of Sindhi Education Society and another vs. Chief Secretary, Government of NCT of Delhi and others reported in (2010) 8 SCC 49.

He also submitted that considering the course for which the permission is being sought i.e. B.Ed recognition is required by NCTE which is not under the State Government, thus, the appropriate Government in the matter was the Central Government in view of section 2(aa) read with section 2(ca) of the Act, 2004, therefore, the applications submitted before the State Government were of no consequence.

He also submitted that the definition of Hindu as contained in Article 25(2) of the Constitution is confined for the purpose of the said Article and had no application to the subject matter in issue which relates to Article 30 of the Constitution. In this regard he relied upon the authorities reported in AIR 1965 SC 1179, 1986 PLJR 568 (Patna H.C).

He further submitted that the two pre-requisites for declaration of minority status were that the institution ought to have been established by minority community and it should be administered by a notified minority community, The burden of proof, in this regard lay upon the petitioners. He also relied upon the judgment of the Supreme Court in the case of S. Azeez Basha and another vs. Union of India reported in 1968 (1) SCR 83.

Sri Jilani fairly submitted that there is no such requirement of renunciation of the earlier religion while adopting another though he added that a person cannot follow two religions at the same time. He also submitted that the religious status of a person could not be declared by any court.

Sri Mansoor Ahmad, learned Chief Standing Counsel also appearing for the State submitted that Section 10 of the Act, 2004 will not apply to an already existing institution. The provision applicable to such institutions is Section 12-B. He unequivocally submitted that the Commission does not have original jurisdiction to declare the minority status of an educational institution. The founding members should have approached the authority under Sections 10 and 12-B of the Act, 2004, as the case may be, at the first instance instead of approaching the Commission directly.

Sri I.H. Farooqui, learned counsel appearing for opposite party no.2 submitted his arguments based on the counter affidavit filed on its behalf. He emphasized that once the issue had been decided by the the Commission the scope of judicial review is very limited. He submitted that the Commission had the power to declare such status in view of section 11(f) of the Act, 2004, as held in a recent judgment of Supreme Court in the Civil Misc. Appeal No. 3070 of 2004 decided on 06.12.2012. He relied upon the judgment dated 13.10.2011 rendered by the Supreme Court in the case of T. Varghese George Vs. Kora K. George and others reported in 2011 AIR SCW 6149. He also referred to the written submissions filed by him earlier. He submitted that the institutions had failed to prove that they had been established and administered by a notified minority Community. The Commission is a quasi judicial Tribunal and it has has been vested with the powers of a Court. The High Court could not sit in appeal over the decision of Commission.

He further submitted that the member of societies/institutions in question are Hindus who filed the applications before the Commission declaring themselves as Buddhists thereby abusing and misusing the fundamental right as enshrined under Article 30(1) of the Constitution of India, which cannot be permitted by the Commission. Ever since the National Council for Teachers Education banned the opening of new institutions imparting B.Ed courses, except by minority, many of them from U.P. are claiming minority status with certificates to back their claim which is clearly an abuse of the constitutional provisions. The conversion of the members from Hinduism to Buddhism is a distortion of religion. No religion permits deliberate distortion of religion. The Commission does not have a mandate to declare the religious status of an individual, as the same is the function of the civil court. If members of petitioners institution want to be declared as Buddhists, they may approach the Civil Court for such declaration. He also relied upon the judgment passed in Special Appeal No. 903 of 2006 wherein it has been held that the State Government does not have the power to grant minority status to a minority institution.

He submitted that Section 10 of the Act, 2004, was amended in the year 2006 and thereafter in 2010. The amendment cannot be made applicable for establishment of all minority institutions except professional colleges, engineering colleges etc. for which No Objection Certificate is required by the State Government. In this regard he referred to the opening line of Section 10 of the Act, 2004, "Subject to the provisions contained in any other law for the time being in force'.

He also submitted that as regards requirement of renunciation of Hinduism no authority is required for substantiating this proposition. Hinduism and Buddhism are two distinct religions. Conversion requires renunciation of earlier religion. The certificates issued by the Tehsildar have no evidentiary value.

Sri Surya Bhan Pandey, learned Assistant Solicitor General of India appearing for Union of India defended the vires of the Act, 2004, however, the petitioners had already not pressed relief no.1 challenging the vires of Act, 2004 and the statement of the learned counsel for the petitioner to this effect is recorded in the order dated 07.07.2014, therefore, the vires is not in issue herein.

Heard learned counsel for the parties and perused the records.

The first and foremost question for consideration is as to whether the Commission has "original jurisdiction"to grant no objection certificate for establishment of a minority educational institution, which necessarily involves declaration of its minority status, and to decide questions relating to status of such institutions under Section 11(f) of the Act, 2004 or not?

But before considering this question another question which is required to be considered is whether, the petitioners themselves having approached the Commission are entitled to assail the order of the Commission on the ground that it does not have original jurisdiction in this regard?

Indisputably at the relevant time, the competent authority under Section 10 had not been appointed by the State Government. Indisputably, the State Government was not accepting any application for grant of No Objection Certificate and declaration of minority status for establishing an institution under the Act 2004 or otherwise in view of the Division Bench judgment in Special Appeal No. 903 of 2006. The State Government had issued a Government Order dated 14.07.2010 to the effect that only those institutions which had been declared as having been established by a minority community by the Commission should be treated as such and no such declaration could be made by it. Faced with this factual scenario the petitioners ought to have approached this Court under Article 226 of the Constitution of India for appointment of a competent authority, instead, they straightway approached the Commission which not only entertained the application but also pronounced its decision thereon under a belief that it was empowered to do so. It is trite that jurisdiction cannot be conferred nor assumed even by consent. If the Act 2004 does not confer original jurisdiction upon the Commission it could not have assumed the same nor the petitioners by their action could have conferred it upon the Commission, therefore, they cannot be precluded from raising this jurisdictional issue nor is this Court prevented from considering the same as it goes to the root of the matter. In fact no objection was raised by the opposite parties on this count.

The Act of 2004 (Act No. 2 of 2005) was promulgated on 06.01.2005 but under Section 1 (3) it is deemed to have come into force on the 11th day of November, 2004 i.e. the date of the ordinance preceding it. The statement of object and reasons relating to the said Act 2004 reveals that it was brought into existence for achieving twin purposes; (i) to provide direct affiliation for minority institutions to central universities of their choice ignoring the territorial jurisdiction of such universities and (ii) to provide an effective forum of dispute resolutions in the form of statutory commission regarding matters of affiliation between a minority educational institution and a scheduled university whose decision would be final and binding on the parties.

Now I examine the scheme of the Act with a view to find an answer to the question framed hereinabove.

The provisions of the Act, 2004 relevant to the issues involved herein are Sections 2, 10 to 12-C and 22(1) of the Act, 2004.

Originally Section 10 of Act 2004 dealt with the right of a minority educational institution to seek affiliation to a scheduled university, which read as under:--

"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 situate and views of such Government shall be taken into consideration before granting affiliation."

It was subsequently amended/substituted by Act No. 18 of 2006 with effect from 23.01.2006 and instead of the restricted provision applicable to affiliation of a minority educational institution (hereinafter referred to as the "institution") to a scheduled university a provision was made that 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. The substituted provision read as under:--

"(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".

Thereafter the said provision was further amended/substituted by the existing provision by Act No. 20 of 2010 with effect from 01.09.2010 and it now reads as under:--

"10. Right to establish a Minority Educational Institution.--

(1) Subject to the provisions contained in any 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;

(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 Education Institution in accordance with the rules and regulations, as the case may be, laid down by or under any law for the time being in force.

Explanation. -- For the purposes of this section,--

(a) "applicant" means any person who makes an application under 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."

Section 10A of the Act 2004 relates to the right of an institution "to seek affiliation".

Section 11 deals with the functions of the Commission which reads as under:--

"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) 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."

In the present case we are only concerned with Section 11(f) and not with Section 11(a) to (e) and (g) and (h).

Section 12(1) refers to the powers of the Commission and provides that 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. Section 12(2) vests with the Commission all the powers of the civil court trying a suit and in particular in respect of the matters mentioned in the said sub-section for the purpose of discharging its functions. Section 12 reads as under:--

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 Cod (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).

Section 12A was inserted in the Act 2004 by Act No. 18 of 2006 with effect from 23.01.2006 and it provides for an appeal against an order of refusal by the competent authority under Section 10 (2) to grant No Objection Certificate for establishing an institution, before the Commission. It reads as under:--

"12A. Appeal against orders of the Competent authority.-- (1) Any person aggrieved by the order of refusal to grant no objection certificate under sub-section (2) of section 10 by the Competent authority for establishing a Minority Educational Institution, may prefer an appeal against such order to the Commission.

(2) An appeal under sub-section (1) shall be filed within thirty days from the date of the order referred to in sub-section (1) 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.
 

 
 	Section 12B provides the powers of the Commission to decide on the minority status of an educational institution. It reads as under:--
 

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 order communicated to the applicant:

Provided that the Commission may entertain an appeal from 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 purpose 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.

Sub-section (1) of Section 12B provides that without prejudice to the provisions contained in the National Commission for Minorities Act, 1992 (hereinafter referred to as the Act 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. Sub-section (4) provides that while exercising the appellate powers under Section 12B the Commission may decide on the minority status of the educational institution and shall proceed to give such directions as it may deem fit and all such directions shall be binding on the parties. The explanation to section 12-B defines "authority" to mean 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.

Section 12C provides the powers of the Commission to cancel the minority status granted by an authority or commission to an educational institution under the circumstances mentioned therein.

Section 22 of the Act 2004 gives it overriding effect over other laws or instruments having effect by virtue of any law in the event of any inconsistency.

The statement of object and reasons, the scheme of the Act and the provisions contained therein when read harmoniously lead to the irresistible conclusion that the original power to grant No Objection for establishing a minority educational institution which necessarily involves a declaration of the minority status of such educational institution is vested with the "competent authority" under Section 10 and the "authority" mentioned under Section 12B as is evident from the clear and unambiguous language used therein.

Under Section 10, 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. The term 'competent authority' used in Section 10(1) has been defined in Section 2(ca). Thus, the original jurisdiction to grant 'No Objection Certificate' for establishment of a minority educational institution is vested in the 'competent authority' under Section 10.

As per Section 12-A, any person aggrieved by the order of refusal to grant 'No Objection Certificate' under sub section (2) of Section 10 by the 'competent authority' for establishing a minority educational institution, may prefer an appeal against such order to the Commission. Thus, the Commission has been vested with appellate jurisdiction under Section 12-A.

The consideration under Section 10 for grant of No Objection Certificate for establishing a minority Educational Institution is for the purposes of the determination of minority status of such institutions. It presupposes an enquiry for ascertaining the said status. The application under Section 10 is not for establishing merely an educational institution but a "minority" educational institution. The Act, 2004 is for the purposes of minority educational institutions and not for any educational institution having non minority character, therefore, the No Objection Certificate required under section 10 has necessarily to be as regards the minority status of the institution proposed to be established, otherwise, there was no need to appoint a separate authority for grant of such No Objection Certificate, as, such authorities are already available under other laws/enactments, whether of the State or Centre appointed for such purpose. In this regard relevant extract of a Division Bench Judgment of Bombay High Court in Rekha Lakhi Totlani vs. Sindh Brahma Sikhya Sammelan and others reported in 2007(1) Mh.L.J. 225 is quoted below:-

"We may now refer to the provisions of The National Commission for Minority Educational Institutions Act, 2004 and The National Commission for ordinance, certain definitions have been included like section 2(ca). That defines competent authority to be appointed by the appropriate Government to grant no objection certificate for the establishment of any educational institution of the choice of the minority. It would be clear, therefore, that under the ordinance, an authority has been created which is designated as a competent authority which has to grant a no objection for the establishment of Educational Institution. The no objection is for determination as to which institution is a minority institution. It presupposes, therefore, that the competent authority before granting the application will have to consider whether applicant before it is either a religious or linguistic minority. The only debatable question which arises is whether the said definition will apply to an institution which has already been established and functioning. In our opinion, for the present, it is not necessary to decide the controversy considering the peculiar circumstances."

Reference may also be made in this regard to the judgment of the Delhi High Court in the case of Medical Council of India vs. AL Karim Educational Trust and another reported in (2011) 180 DLT 268 the relevant extract of which is reproduced below:-

"15. The nature of the NOC under Section 10 of Minorities Act is further apparent from Explanation (b) to Section 10 where the said NOC has been defined as meaning a certificate stating that the Competent Authority has no objection for the establishment of a Minority Educational Institution. Thus, the only enquiry preceding issuance of such certificate, contemplated is, whether the proposed Institution is being established by a community which is in minority in the State/Region and entitled to tag of a Minority Educational Institution and to be dealt with accordingly. Refusal of the State Government/Union Territory to grant such certificate is appealable under Section 12A(1) before the National Commission. However, if the State Government/Union Territory neither grants such certificate nor refuses, the deeming provision under Section 10(3) comes into play and the NOC is deemed to have been granted. However, such NOC, whether granted or deemed to be granted will only mean that the Educational Institution qualifies as a Minority Educational Institution and State Government/Union Territory has no objection to its establishment. The Division Bench of the Bombay High Court also in Rekha Lakhi Totlani vs. Sind Brahma Sikhya Sammelan, 2006(6) BomCR 626 held that the NOC under Section 10 (supra) is for determination as to which Institution is a Minority Institution."

This is also evident from the consequences following the grant of no objection certificate under Section 10(2) or the legal fiction under sub section 3 containing the deeming clause, as enumerated in sub section (4) of Section 10 which entitles such persons to commence and proceed with the establishment of a minority educational institution "in accordance with the rules and regulations laid down by or under any law for the time being in force" which necessarily refers to law other than the Act, 2004, which may be applicable to establishment of such educational institutions. This is further clarified from the definition of No Objection Certificate in the explanation to Section 10. As per the explanation No Objection Certificate means a certificate stating that the competent authority has no objection for the establishment of a minority educational institution. Thus, for fulfillment of other requirements for establishing an educational institution the rules and regulations laid down under such law as may applicable are to be adhered.

The opening lines of Section 10(1) 'subject to provisions contained in such other law for the time being in force' are also indicative of such requirement. Sub section 4 read with opening line of sub section 1 of Section 10 enjoins upon the applicant to act in accordance with the Rules and Regulations, laid down by or under any law for the time being in force, which necessarily refers to any other law governing the establishment and functioning of such educational institution. The 'No Objection Certificate' under Section 10, thus, relates only to the declaration of minority status of such educational institution and nothing more. The ' No Objection Certificate' under Section 10 is in addition to any other 'no objection/approval etc. required under any other law. Reference may be made in this regard once again to the pronouncement of the Delhi High Court in the case of Al Karim Educational Trust (supra, relevant extract of which are quoted herein below:-

"16. There is nothing in Section 10 of the Minorities Act to suggest that the NOC required therein is the NOC/permission/approval required by an Educational Institution under any other legislation. Had it been so, nothing prevented the law makers to have provided so. While the NOC under Section 10 concerns only the character as a "minority", the NOC/approval/permission under other legislation including the Regulations aforesaid, concern the character as an "Educational Institution" and having necessary infrastructure and capacity to impart education in a course or subject. There is nothing in the Minorities Act to suggest that the NOC under Section 10 is intended in supersession of NOC/approval/permission required for setting up an Educational Institution or for imparting education in a course or subject. Rather Section 10(4) provides that on grant/deemed grant of NOC, the applicant shall be entitled to proceed with the establishment of 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"; recognizing thereby that grant of NOC does not obviate compliance with other laws/rules/regulations for establishment of an Educational Institution."

"18. I may add that Section 10(1) has since been amended further vide amendment Act, 2010 w.e.f 1st September, 2010. The same as it stands is as under:

"(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."

"19. In my opinion, the insertion of the words "subject to the provisions contained in any other law for the time being in force" prefacing Section 10(1) further places the matter beyond any pale of controversy. The application for NOC under Section 10(1) cannot be said to be in supersession of any other law prescribing NOC/approval/permission for setting up of an Educational Institution.' "20. ..... .... .... ....

"21. I am unable to agree. The other Acts Rules/Regulations prescribing NOC/approval/permission for establishment of Educational Institution cannot be said to be inconsistent with Section 10 (supra) providing for NOC. As aforesaid, while the NOC under Section 10 is concerned only with the minority character, the approval / permissions / NOC under other Acts/Rules/Regulations are concerned with the very existence as an Educational Institution. Without qualifying as an "Educational Institution" there can be no tag of "minorities" by way of issuance of NOC under Section 10. It is not as if the Regulations aforesaid requiring Essentiality Certificate from the State Government/Union Territory come in the way of issuance of the NOC under Section 10. Without inconsistency, Section 22, relied upon by the senior counsel for respondent no.1 Trust, is not attracted.

"22. The NOC under Section 10 of the Minorities Act cannot take the place of Essentiality Certificate. While issuing NOC under Section 10 of the Act, as aforesaid, the Central/State Government is required to primarily test the Minority Character of the proposed Institution, while issuing the Essentiality Certificate the Government is required to assess the desirability and feasibility of the proposed Medical College at the proposed location and the adequacy of the clinical material available.

Thus, the grant of 'No Objection Certificate' by the 'competent authority' under Section 10 is with respect to determination of the minority character of the such institution.

The 'Heading' of Section 12B refers to "Power of Commission to decide on the minority status of an educational institution" which may suggest original powers of the Commission but the contents of Section 12B especially sub section (4) leaves no room of doubt that this power is part of its appellate and not original jurisdiction.

Section 12-B refers to 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. Thus, it refers to the original jurisdiction vested in such "authority" and not the Commission. The explanation to Section 12-B defines 'authority' to mean, any authority or officer or commission which is established under any law for the time being in force or under any order of 'appropriate Government' for the purpose of granting a certificate of minority status to an educational institution.

The term 'Commission' used in explanation to Section 12-B refers to a 'Commission' established under any other law or order of the appropriate Government but not the "National Minority Commission". The term 'Commission' used in the explanation is in contradistinction to the term 'Commission' used in the heading of Section 12-B as also proviso to sub section (2), sub section (3) and (4) of Section 12-B. The word 'Commission' used in the latter provisions refers to the 'National Commission for Minority Educational Institution' constituted under Section 3 of the Act, 2004 as defined in sub section 2(c) thereof. The two words have to be understood in the context they have been used. They cannot mean the same, as, against the the order of the Commission referred in the explanation to Section 12-B rejecting the application for grant of minority status, the aggrieved person has been provided the remedy of appeal before the "National Minority Commission" i.e. the Commission mentioned in other parts of Section 12B.

Even against the orders of such 'authority' as mentioned in Section 12B the appeal lies to the Commission. This is in addition to the appeal under Section 12-A against the order of 'competent authority' under Section 10.

From the above discussion it is evident that, both, the 'Competent Authority' under Section 10 and the "authority" mentioned in Section 12B exercise original jurisdiction regarding declaration of minority status of an educational institution and the Commission exercises appellate jurisdiction in respect to both i.e. vide Section 12A and 12B respectively. .

No doubt the Commission while exercising the appellate powers under Section 12-A and 12-B is empowered to decide minority status of an educational institution. The provisions of Section 11(f) which provide that notwithstanding anything contained in any other law for the time being in force, the Commission shall decide all questions relating to status of an institution as a minority educational institution and declare its status as such, have to be read in juxtaposition with Sections 10, 12-A and 12-B of the Act, 2004 and not in isolation. The overriding effect given to Section 11 is with respect to any other law and not other provisions of the Act, 2004. Likewise, the opening line of Section 10(1) makes the said provision subject to any other law and not other provisions of the Act, 2004. A conjoint reading of the said provisions leads to the irresistible conclusion that the function of the Commission under Section 11(f) is with reference to the exercise of its appellate jurisdiction exercise-able under Section 12-A and 12-B and not otherwise.

The words in Section 11(f) "decide all questions relating to the status of any institution as a Minority Educational Institution" have to be read conjunctively with succeeding words "declare its status as such" as they are joined by the conjunction "and".

Moreover when the specific function/power has been conferred under Section 10 upon a specific authority constituted for the said purpose the same cannot be performed by any other authority under the same Act, not even the appellate authority.

Any other reading, understanding and interpretation of Section 11(f) conferring original jurisdiction upon the Commission regarding grant of no objection certificate for 'establishing a Minority Educational Institution and declaration of its minority status will amount to negativing the provisions of Section 10, 112-A and 12-B and rendering them otiose which is certainly not the intention of the legislature. Had it been so, the legislature would have specifically and categorically conferred original jurisdiction upon the Commission, which it has not. The statement of reasons and objects of the Act, 2004, also refers to the need to provide dispute resolution mechanism which has been provided in the form of the Commission.

It is trite that no provision of a statute nor any word used therein is without any meaning or purpose. A reading and interpretation of a provision rendering any other provision of the Act as otiose is impermissible. The provisions of an Act have to be read and understood harmoniously with the other provisions of the same Act keeping in mind the scheme of such Act. Reference may be made in this regard to the decisions of the Supreme Court reported in (1976) 4 SCC 830 [Municipal Corporation of City of Hubli v. Sobha Rao Hanumatharao Prayag and others], AIR 1970 SC 703 [Argan Singh and another vs. State of Punjab and others], (2010) 5 SCC 196 [Pallawi Resources Ltd. Vs. Protos Engineering Co. (P) Ltd,], (2014) 11 SCC 672 [P.S. Sathappan (dead) by Lrs. vs. Andhra Bank Ltd. & others], (1997) 1 SCC 373 [Sultana Begum v. Prem Chand Jain] and (2001) 8 SCC 540 [ Anwar Hasan Khan vs. Mohd. Shafi and others].

In view of the above, Section 11(f) has to be read and understood in harmony with Sections 10, 12A and 12B.

In this context reference may also be made to a Division Bench judgment of Bombay High Court in the case State of Maharashtra Vs. Mehmuda Sikshan and Mahila Gramin Vikas Bahuudheshiya Sansthan reported in 2009 (5) Mh. L.J 874, wherein an order passed by the Commission directing the State of Maharashtra to grant permission to the respondent therein to impart education in certain streams was challenged on the ground that the Commission did not have the power to issue such directions to the State Government or University. The Division Bench considered the provisions of the Act 2004 and in paras 10, 11l 12 and 13 of its judgment dated 15.07.2009 held as under:--

"10. The scheme of the legislation leaves no manner of doubt as to the authority empowered to grant a No Objection Certificate for the proposal of any person desiring to establish a minority educational institution. That power is conferred by Section 10 on the Competent authority set up by the appropriate Government, in this case, the State Government.

It is, however, clear that the respondent no.1 has in this case not presented any petition regarding deprivation or violation of a right to establish and administer minority educational institution. It had presented an application for grant of permission to start a college and, the only power with the Commission was to report its findings to the appropriate Government for its implementation.

12. There is also no merits in the submission that since the Commission is invested with the appellate powers under Section 12 (a) of the Act, in spite of orders of refusal to grant No objection Certificate by the competent authority, the order of the Commission is within jurisdiction. There is a well known distinction in law between the exercise of original powers and appellate powers. The exercise of these powers can only be by the authorities who are constituted for the purpose. To say that an ::: Downloaded on - 09/06/2013 14:47:08 ::: 17 appellate authority can in the first place decide the original application because it has appellate powers in that regard, would set at naught the scheme of many a legislation. The Apex Court in State if Punjab Vs. Hari Kisan, reported in AIR 1966 SC 1078, has observed in Para 12 as follows. "12.The question which we have to decide in the present appeal lies within a very narrow compass. What appellant No.1 has done is to require the licensing authority to forward to it all applications received for grant of licenses, and it has assumed power and authority to deal with the said applications on the merits for itself in the first instance. Is appellant no.1 justified in assuming jurisdiction which has been conferred on the licensing authority by S. 5(1) and (2) of the Act? It is plain that S. 5(1) and (2) have conferred jurisdiction on the licensing authority to deal with applications for licences and either grant them or reject them. In other words, the scheme of the statute is that when an application for license is made, it has to be considered by the licensing authority and dealt with under S.5(1) and (2) of the Act. Section 5 (3) provides for an appeal to appellant No.1 where the licensing ::: Downloaded on - 09/06/2013 14:47:08 ::: 18 authority has refused to grant a license, and this provision clearly shows that appellant No.1 is constituted into an appellate authority in cases where an application for licence is rejected by the licensing authority. The course adopted by appellant No.1 in requiring all applications for licences to be forwarded to it for disposal, has really converted the appellate authority into the original authority itself, because S. 5(3) clearly allows an appeal to be preferred by a person who is aggrieved by the rejection of his application for a licence by the licensing authority." 13. In this view of the matter, we have no hesitation in coming to the conclusion that the impugned order of the Commission, directing the petitioner and the respondent no.2 University to grant permission to Respondent no.1 to start minority educational institution, is without jurisdiction. Smt. Dangre, learned Additional Government Pleader has stated that there is a Competent authority constituted. We make it clear that Respondent no.1 shall be entitled to make a ::: Downloaded on - 09/06/2013 14:47:08 ::: 19 fresh application in regard to its earlier proposal before such competent authority in accordance with law." The above Division Bench of Bombay High Court clearly opined that the Commission did not have original powers but has only appellate powers in respect to grant of No Objection Certificate for establishing a Minority Educational Institution. The original powers could only be exercised by the authorities who are constituted for the purpose under the Act but so far as the appellate authority is concerned it cannot decide the original application because it has appellate powers in that regard and by doing so it would set at naught the scheme of the legislation. It placed reliance on the apex Court judgment in the case of State of Punjab Vs. Hari Kisan, reported in AIR 1966 SC 1078, and quashed the order of the Commission.

The Division Bench also took note of the fact that the application presented by the respondent before the Commission was not regarding deprivation or violation of a right to establish and administer a minority educational institution. It had presented an application for grant of permission to start a college and the only power with the Commission under Section 11 was to report its finding to the appropriate Government for its implementation. The Act did not permit the Commission to entertain a specific application for permission to start a minority educational institution and to direct that such a permission be granted. It was also a case where at the relevant time no competent authority was functioning, as in the present case, therefore, against this background the Division Bench made the observation that the Commission could report its finding to appropriate Government for its implementation but the Commission itself cannot grant any such permission nor can it direct the State Government or University to do so.

In the case at hand also the petitioners herein did not petition the Commission alleging deprivation or violation of educational rights of the minorities on the ground of non appointment of competent authority or refusal to consider their application by the State. The application of Section 11 (a) to (e), (g) & (h) is not at all involved. The issue is regarding the functions of the Commission under Section 11 (f) and its powers read in the light of Sections 10, 12A and 12B.

Likewise reference may also be made to another Division Bench judgment dated 19.03.2014 of Delhi High Court rendered in Writ Petition (C) 5092 of 2013 M. Atyab Siddiqui Vs. Government of NCT of Delhi wherein the question of appointment of competent authority by the Government of NCT Delhi in terms of Section 2 (ca) of the Act 2004 came up for consideration. The stand of one of the parties was that the Chairman of the Commission as contemplated under Section 3 of the Act 2004 was the competent authority. The Division Bench of Delhi High Court categorically held that if the Chairman of the Commission is regarded as the competent authority it would run counter to the particular provision of appeal provided under the said Act. It accordingly rejected the contention and issued a direction for appointment of a competent authority as contemplated under the Act who would obviously be a person who is not a member of the Commission because it is the Commission which is the appellate authority.

Section 12C of Act 2004 is also required to be considered as it empowers the Commission to cancel the minority status granted by an authority or Commission. The term "authority" used therein means as defined in the explanation to Section 12B as is evident from a bare reading of the said explanation. The use of the word "commission" therein could suggest original powers of granting minority status having been vested with it but on a closure scrutiny in the light of the discussion made hereinabove it is not found to be so, as, the determination of minority status is implicit in the consideration by the 'Competent Authority' under Section 10 and the consideration for grant of such status by the authority mentioned under Section 12B, both of whom exercise original jurisdiction in this regard, whereas, the Commission exercises appellate jurisdiction in the matter under Section 12A and 12B. The reference to "Commission" in Section 12C has to be understood as a reference to exercise of such power of grant of minority status by the Commission at the appellate stage, as, the Commission can also grant minority status to an institution while exercising appellate power under Section 12A and 12B and not at the first instance.

As far as the Division Bench judgment in Special Appeal No. 903 of 2006 is concerned, in the said case the institution in question had been running since 1947 as a non minority institution but in 2004 the State Government sough to confer minority status on the schools. Against this back ground the Division Bench observed "It is not for any State Government to grant any minority status to any institution not even the Parliament or State Legislature can do so. A minority institution has to grow by itself. Only a competent court of law can declare such status." It further observed "The order of the State Government shows a complete misunderstanding of Article 30 of the Constitution. It appears to have constituted a committee and on the basis of the report of the committee, it took upon itself the power and authority to grant minority status with immediate effect."

First of all this judgment does not consider the provisions of the Act 2004 which specifically confer such powers upon the authorities and the commission mentioned therein. Further, in Jharkhand case (supra) the Supreme Court, after considering the provisions of the Act 2004, has clearly held that the authorities referred therein as also the commission are vested with such powers, therefore, the Division Bench judgment can no longer be said to be an impediment for the competent authority in considering the applications under section 10 nor for any authority appointed by the State under any other law as mentioned in section 12 B.

Moreover, the observations contained in the said judgment need to be read in the correct perspective. The institution in question was already running since 1947 as a non minority institution but it was sought to be declared as a minority institution by the State Government in 2004 "with immediate effect" which was clearly impermissible, as, the institution was required to be established in the first place by the minority community so as to claim protection of Article 30 and it should have been administered by it. As it was not, the State Government could not so to say, "confer" minority status subsequently. It is well settled that such status cannot be "conferred" but it can only be declared if it already exists. It is a declaration of an already existing fact. Reference may be made in this regard to the pronouncement of the Supreme Court in N. Ahmad (supra).

The minority character of an educational institution has to factually exist at the time of establishment. It cannot be acquired or conferred subsequently. Therefore, the observations made by the Division Bench are to be read and understood in the light of the factual and legal position explained hereinabove and they do not pose any hurdle, except to the extent, may be, where it has observed "only a competent court of law can declare such status". But here again the intent appears to be that such status cannot be conferred but has to be proved/declared on the basis of evidence before a court. In any case, for the reasons aforesaid, specially the provisions of the Act 2004 and the dictum of the Supreme Court in Jharkhand case (supra) the impediment, if any, does not exist any more.

The judgment in Special Appeal No. 903 of 2006 has also been considered by this Court in Rafi Memorial Girls Case 2010 (81) ALR 408 and it has been held that it does not impose a bar on the State in exercising its powers under the Act, 2004.

Now coming to the Jharkhand case (supra) the observations and the ratio contained therein has to be understood in the light of the factual scenario existing in the said case, the issues involved therein, the arguments advanced, the issues considered, discussed and decided and not in ignorance thereof. Reference may be made in this regard to a Full Bench decision of this Court in the case of Tuples Educational Society and another Vs. State of U.P. and another reported in 2008 (26 LCD 687 (paragraphs 128) wherein their Lordships have discussed the law in this regard and have observed as under:--

"128. While interpreting the P.A. Inamdar and other judgment and considering the arguments advanced by the learned counsel fore the private respondents, we should not close our eyes to the settle proposition of law that an issue which has not been considered by the Court while delivering a judgment, cannot be said to be a binding. The decision of the Court takes its colour from the question involved in the case in which it is rendered and while applying it to a later case, the Court must carefully try to ascertain the true principles laid down by the decision of the court. The Court should not place a reliance upon a decision without discussing as to how the factual situation fits in with a fact situation of the decision on which reliance is placed and it has to be ascertained by analyzing all material facts and issues involved in the case and argued on both sides. The judgment has to be read with reference to and in context with a particular statutory provisions interpreted by the Court as the court has to examine as to what principle of law has been decided and the decision cannot be relied upon in support of the proposition that it did not decide ...".

In Delhi Administrator vs. Manohar Lal reported in (2002) 7 SCC 222 the Supreme Court observed as under:-

"The High Court and all other courts in the country were no doubt ordained to follow and apply the law declared by this Court, but that does not absolve them of the obligation and responsibility to find out the ratio of the decision and ascertain the law, if any, so declared from a careful reading of the decision concerned and only thereafter proceed to apply it appropriately, to the cases before them".

In the Jharkhand case (supra) the Government of Jharkhand had rejected the claim of the college in question for being declared a minority institution. Being aggrieved, the college filed a writ petition under Article 226 of the Constitution of India before Jharkhand High Court which dismissed it and upheld the decision of the State Government. The college challenged the judgment of the High Court by filing special leave petition before the Supreme Court. During the course of hearing before the Supreme Court the provisions of the Act 2004, specially Section 11(f) and 12-B were referred. Based thereon it was observed by the Supreme Court while deciding the SLP that "It is clear that the Commission has power to decide all questions relating to the status of any institution as minority educational institution and declare its status as such. Moreover, under Section 12-B 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" Both the provisions were held to be wholesome provisions for deciding such issues. Accordingly it ordered the college to approach the Commission for declaration of its status with a direction to the Commission to decide the same uninfluenced by the judgment of the High Court. Thus, in Jharkhand case (supra) the Government had already taken a decision refusing minority status to the college against which an appeal lay under Section 12-B before the Commission. As there was a remedy available before the Commission under Section 12-B read with Section 11 (f) against the order of refusal of the State Government, therefore, the Supreme court relegated the appellant before the Commission. It is in this light that the observations and ratio contained therein is to be understood. The Supreme Court did not hold that the Commission had "original jurisdiction" to grant no objection certificate under section 10 and declare the minority status to the educational institution. It referred Section 11(f) as also 12-B conferring appellate powers on it and relegated the college to the Commission to decide the issue uninfluenced by the judgment of the High Court. The question as to whether the Commission had original vis a vis appellate jurisdiction in this regard was neither raised nor argued nor considered or discussed nor decided in the said case. There is no dispute that the Commission has such powers/functions under Section 11(f) but not "original powers" as the same are vested with the competent authority specifically constituted for the said purpose under Section 10 and the authority mentioned in Section 12-B of the Act 2004. It exercises the function under section11(f) while exercising appellate jurisdiction under Section 12A and 12B. The provisions of Section 11(f) have to be read and understood in juxtaposition with Section 10, 12A and 12B of the Act, 2004 as has already been mentioned in the earlier part of the judgment. For the aforesaid reasons reliance placed by the learned counsel for the opposite parties on Jharkhand's case is misplaced.

In Rafi Memorial Case the question of jurisdiction of the Commission, whether it had original jurisdiction regarding issuance of No Objection Certificate for establishing a minority Educational Institution was not directly and substantially in issue and it was neither raised nor argued nor considered and decided, therefore, the observations contained in the last paragraph of the said judgment have to be understood accordingly. It does not lay down any binding precedent on this issue.

In view of the above discussion this Court has no hesitation to hold that the Commission does not have original powers/jurisdiction to consider the grant of No Objection Certificate to a Minority Educational Institution and declare its minority status at the first instance and the said powers are vested with the 'competent authority' appointed for the said purpose under Section 10 and the 'authority' referred in Section 12B thereof. The Commission exercises only appellate powers in this regard.

In a given fact situation such as the present case where no competent authority had been appointed by the State under Section 10 of the Act 2004, the Commission, if it is approached, can at best refer the matter to the appropriate Government for necessary action but it cannot exercise original powers to consider grant of No Objection Certificate for establishing an Educational Institution and decide its minority status.

Considering the fact that the Commission is the appellate authority and its observations in the impugned orders are bound to influence the authorities mentioned in the Act 2004 and even otherwise, as, the Commission has passed the order on merits it is deemed necessary to consider the validity of the same on merits also.

A perusal of the orders passed by the commission reveals that it has rejected the claim of the petitioners mainly on the ground that the founding members of the institution while filing their affidavits before the Commission had nowhere stated that they had renounced their earlier religion i.e. Hindu religion by adopting Budhism on 09.08.2008, therefore, it has disbelieved these affidavits which according to it did not prove renouncement of Hindu religion by them while adopting the new religion. According to the Commission the members were required to prove that on 09.08.2008 they had renounced Hinduism before embracing Budhism.

For this reason it has also disbelieved and rejected the certificates issued by the Tehsildar Kanpur Sadar and Bhartiya Bodh Samiti, Budh Vihar, Lucknow. According to the Commission these certificates only certify that the persons mentioned therein had received "Diksha" but they did not prove renouncement of Hindu religion.

The Commission has further stated that one may adore prophets/saints of other religions or inculcate their teachings but that by itself does not prove 'renouncement' of one's original religion. According to it, admittedly, prior to 09.08.2008 the founding members of the society were Hindus. According to the Commission a person once proved to be Hindu by religion is presumed to continue as such until rebutted. According to it this is a general presumption founded on the experience of human affairs that a person's state of mind or things once proved to have existed previously or subsequently in a particular state are understood as persisting in continuity in that state unless it is established by evidence to the contrary. According to it adoption of a new religion is a distortion. No religion permits deliberate distortion. It has further stated that in absence of any evidence proving renouncement of Hindu religion before embracing Budhism it is to be presumed that all the founding members of the society are Hindus by religion.

Thereafter, it has recorded that if these members want to prove that they had renounced Hinduism and embraced Budhism they must approach civil court of competent jurisdiction for such a declaration.

According to it, the Commission did not have a mandate to decide the religious status of a person. It has further observed that it is shrouded in mystery as to what actually compelled the aforesaid persons to suddenly change their religion on 09.08.2008.

With due respect to the Commission, this Court does not find any constitutional or legal requirement for specifically renouncing the earlier religion while adopting a new one. The adoption of a new religion cannot be disbelieved merely because the founding members of the society while filing affidavits to the effect that they had embraced Budhism on 09.08.2008 did not categorically state that they had "renounced" their earlier religion i.e. Hinduism.

The Commission has not mentioned any such mandatory tenets, traditions or practices in either of the two religions which could support the reasoning given by it for declining the claim of the petitioners. To say that adoption of a new religion is a distortion of religion and no religion permits deliberate distortion is a rather sweeping and generalized statement which does not have any constitutional or legal basis nor any basis in Hinduism or Budhism and none has been mentioned by it.

Gautam Budh was himself born in a Hindu family. He renounced worldly pleasures and embarked on a search for truth. He propounded certain principles and tenets of "Dharma' which came to be known as 'Buddhism', therefore, to say that adoption of a new religion is a distortion of religion, veritably amounts to putting 'Buddhism' itself under a cloud, which is not only unacceptable but also impermissible in view of Article 25 of the Constitution of India. The observations of the Commission in this regard are unwarranted. If accepted, they would put a question mark on all the relatively new religions such as Buddhism, Jainism etc. which have evolved or emerged subsequently in point of time vis-a-vis other older religions, so to say, as their followers may have professed some other religion earlier. I find force in the submission of Sri Prashant Chandra on this issue.

Hinduism is a way of life. It is a generic religion from which several religions have evolved based on its quintessence. Though Buddhism and Jainism evolved as a protest against 'ritualism etc' in Hinduism but they have incorporated various tenets, principles and practices of 'Dharma' which are common to Hinduism as well as Buddhism and Jainism, some of them being Non-violence, Tolerance , adoption of middle path i.e. quintessence of extremes etc. These religions as observed in Bal Patil (supra) have evolved from the quintessence of Hinduism and are its quintessential extracts in many ways, therefore, to say that a person should renounce Hinduism while adopting Buddhism is an unwarranted transgression by the Commission.

Having said so there is no gain saying that for the purposes of Article 30 Buddhism is a distinct and separate religion and its followers constitute a religious minority and have been declared as such. The definition of Hindu in the explanation II to Article 25 is confined for the purposes of the said Article.

Reference may be made in this regard to Division Bench judgment of Patna High Court in the case of Vishwa Budh Parishad and another Vs. University of Ranchi and others, 1986 PLJR 568. Budh Parishad and another Vs. University of Ranchi and others, 1986 PLJR 568 and the decision of Supreme Court in the case of Punjab Rao (supra).

Article 25 of the Constitution of India confers a fundamental right upon all persons equally to freedom of conscience and the right to freely profess, practice and propagate religion, subject only to public order, morality and health and to the other provisions of Part III of the Constitution of India. The right of freedom of conscience and the right to freely profess, practice and propagate religion includes the right to adopt another religion voluntarily without coercion. Adoption of another religion, if voluntary and not hit by any of the conditions mentioned in Article 25, is permissible under the Constitution.

The founding members of the society in question had filed their affidavits stating that they had embraced Budhism on 09.08.2008. They also annexed certificates issued by the Tehsildar Kanpur Sadar and Bhartiya Bodh Samiti, Budh Vihar, Lucknow which stated that they had received 'Baudh Diksha' and had adopted Buddhism as per norms and were its followers. Though the Commission did not have original jurisdiction in the matter, yet, as, it had embarked upon a consideration of the issue, if it had any doubts about the genuineness of their claim and that of the minority status of the institution it had ample powers vested in it under Section 12 of the Act 2004 to enquire, examine and decide all questions relating to the status of any institution as it has been vested with all the powers of a civil court trying a suit generally and in particular in respect of the matters enumerated in Section 12(2) (a) to (f) for the purpose of discharging its functions under the Act 2004, one of which includes deciding all questions relating to the status of an institution and to declare its status as such vide Section 11(f). Therefore, to say that the founding members should approach the civil court of competent jurisdiction for a declaration is misconceived and contrary to the scheme of the Act 2004. It verily negates the very constitution of the Commission and the 'competent authority' for the purpose of the Act, 2004.

No doubt, the genuineness of the claim for protection under Article 30 (1) of the Constitution of India is to be inquired and ascertained as has also been held by the Supreme Court in the cases of A.P. Kochi ...Society etc. Vs. Government of A.P. 1986 (2) SCR 749, (Para) AIR 1992 SC 1630, St. Stephens College Vs. University of Delhi (para 29), AIR 1999 All. 356 (para 21) but it does not mean that the No Objection Certificate and the claim of minority status can be declined by the Commission or the authorities merely on conjectures and surmises. The Commission as also the authorities mentioned in the Act 2004 can certainly lift the veil to ascertain the genuineness of the claim in the light of the aforesaid decisions but they cannot reject them merely based on their ipse dixit.

The competent authority under Section 10 who is empowered to consider the grant of no objection certificate can hold such enquiry or examination and exercise all such incidental and ancillary powers necessary for an effective exercise of the substantive power under Section 10. Reference may again be made in this regard to the case of Smt. Sheela Devi (supra) wherein their Lordships held as under:-

"The principle which we have laid down in the earlier part of the judgment is founded on the basis of position that when an authority has a power to carry out a public act on the existence of certain circumstances, it has n implied power to make an inquiry in regard to the existence of those circumstances. This is a power which flows out of the basic power which is conferred upon the authority and is incidental to or ancillary for the purpose of effectuating the purpose of the conferment of the power. This principle has been recognized in a judgment of a Division Bench of this Court in Committee of Management, Sri Gandhi Inter College V. Deputy Director of Education (1998) UPLBEC 1057, where it was held as follows:

"...It is a settled law that when an authority is given power to do certain act on existence of certain circumstances, there is an implied power to make an inquiry as to whether those circumstances exists or not. The inquiry in regard to the existence of those circumstances is included in the grant of power. In other words, the power of making inquiry in regard to the existence of those circumstances flows as necessary means to accomplish the end. In fact, the inquiry is some thing essential for proper and effectual performance of duty assigned..."

In fact, it is the minority status of the institution which is to be considered and decided. In doing so, certainly, it is to be seen as to whether the institution has been founded by the members of the minority community or not. As far as the certificates issued by Tehsildar and Bhartiya Baudh Samiti are concerned their veracity, reliability and admissibility could have been enquired and examined by the Commission by exercising all the powers which the civil court would exercise in such a situation, but it was not open for the Commission to disbelieve the certificates as also the affidavits of the founding members merely on the ground that the said affidavits do not contain a specific recital that they had renounced Hindu religion nor on the ground that the Commission did not have the mandate to decide such issues. In fact it does have such powers under Section 12 read with Section 11(f), albeit while exercising appellate jurisdiction.

Under Section 12 (2) the Commission has been vested with all the powers of a civil court trying a suit. The first part of sub-section (2) is a general and an all encompassing provision. The second part which starts with the words "and in particular" does not in any manner limit or restrict such powers but only specifies the same in respect to certain matters. In particular the Commission can summon and enforce the attendance of any person from any part of India and examine him on oath.

In this case if the Commission had any doubt it could have confronted the applicants/founding members, and asked them to produce the members of the Baudh Samiti who had issued the certificate or their affidavits. It could have summoned and examined the founding members about their understanding and commitment towards the adopted religion and its principles, tenets as also the concerned Tehsildar and the members of the Bhartiya Bodh Samiti which had issued the certificates declaring them to be Budhist. It could have examined the matter by enquiring as to what were the requirements for adopting Budhism and whether the same had been followed. No such enquiry or examination was done by the Commission. The Commission also has the powers to require discovery and production of any document or any public record etc., issuing commission for examination of witnesses or documents but none of these powers were exercised for a proper enquiry in the matter.

In view of the above discussion the reasons mentioned in the impugned orders passed by the Commission cannot be sustained.

Another question which falls for consideration is as to whether section 10 would apply to an already existing institution as it contains the words "any person who desires to establish a minority Educational Institution." The intention of the legislature is very clear by the use of the said words which require a person to apply to the competent authority for grant of No Objection Certificate "to establish a minority educational institution". The use of the word "any person who desires" coupled with the words, "to establish" leaves no doubt that such application has to be filed prior to establishing such an institution. This is also evident from sub section 4 of Section 10 which entitles a person, on the satisfaction of the conditions mentioned in Section 10(2) and 10(3), to "commence and proceed" to establish a minority educational institution.

Minority character of an institution has to exist at the time of its establishment. It has to be a pre-existing fact. It cannot be acquired subsequently, therefore, prior No Objection Certificate is required under Section 10 which is in consonance with the constitutional requirements under Article 30 of the Constitution of India, Section 2(g) of the Act, 2004 and the dictum of the Supreme Court in Azeez Basha (supra) wherein the twin tests requiring such institutions to be established by a minority Commission and of being administered by it were laid down.

As the words used in Section 10 are unambiguous, clear and explicit there is no need to take recourse to any interpretation, as held by the Supreme Court in Arul Nadar vs. Authorized Officer Land Reforms (1998) 7 SCC 158, relevant extract of which is quoted hereunder:-

"We may notice at this stage the contentions advanced by the learned counsel appearing for the respondent that the object of the Act being to further reduce the ceiling area. Section 21-A, if is made application to the pending proceeding, then the said object would be frustrated. We are afraid that this contention cannot be sustained inasmuch as when the language of a statute is unambiguous, in interpreting the provisions thereof, it is not necessary to look into the legislative intent or the object of the Act. As has been stated by this Court in the case of U.P. V. Dr. Vijay Anand Maharaj reported in (1963) 1 SCR 1:-

"When the language is plain and unambiguous and admits the only one meaning, no question of construction of a statute arises, for the Act speaks for itself."

Further in the case of Nasiruddin v. Sita Ram reported in (2003) 2 SCC 577 the Supreme Court held as under:-

"The court's jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in a given case the court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of the provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot rewrite or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well settled that the real intention of the legislation must be gathered from the language used."

In the case of State of Kerala and others vs. Dr. S.G. Sarvothama Prabhu reported in (1999) 2 SCC 622, their Lordships held as under:-

"But it cannot be lost sight of that the function of the court is to interpret law according to the intention of the legislature and apply to facts of the case before it. And the intention of the legislature has to be ascertained from the language of the statute. If the words are unambiguous, clear and explicit, there need be no recourse to any rules of interpretation."

In the case of State of Arun Kumar and others v. Union of India and others reported in (2007)1 SCC 732, their Lordships held as under:-

"But it is equally well settled that if the provision of law is explicitly clear, language unambiguous and interpretation leaves no room for more than one construction, it has to be read as it is. In that case, the provision of law has to be tested on the touchstone of the relevant provisions of law or of the Constitution and it is not open to court to invoke the doctrine of doctrine of "reading down" with a view to save the statute from declaring it ultra vires by carrying it to the point of "perverting the purposes of the statute".

In view of the above the Court can neither provide a causus omissus by adding words nor read down the provision in a manner so as to make it applicable to institutions which have already been established and are running. It would be against the well settled principles of interpretation. Reference may be made in this regard to the case of Smt. Sheela Devi and others vs. State of U.P. And others reported in 2015(2) UPLBEC 1176 (FB) wherein it has been held as under:-

"As a matter of statutory interpretation, the duty of the Court while interpreting legislation, first and foremost is to give effect to the plain and ordinary meaning of the language contained in the statute. The legislative intent is best reflected in the words used by the legislature in enacting legislation. Hence the Court will not readily supply a casus omissus except when there is a clear necessity to do so and that too within the four corners of a statute. At the same time, where a literal construction of the words which have been used by the legislature give rise to an absurdity or a manifestly erroneous result, it is open to the Court to adopt a purposive interpretation which will give true effect to the legislative object and scheme."

Reference may also be made in this regard to the pronouncement of the Supreme Court in the case of Bharthidasan University and another vs. All India Council for Technical Education and others reported in (2001) 8 SCC 676 wherein their lordships of the Supreme Court held as under:-

"8. ........ When the legislative intent finds specific mention and expression in the provisions of the Act itself, the same cannot be whittled down or curtailed and rendered nugatory by giving undue importance to the so-called object underlying the Act or the purpose of creation of a body to supervise the implementation of the provisions of the Act, particularly when the AICTE Act does not contain any evidence of an intention to be little and destroy the authority or autonomy of other statutory bodies, having their own assigned roles to perform. Merely activated by some assumed objects or desirability, the courts cannot adorn the mantle of the legislature. ......".

"13. ...... When the language is specific, unambiguous and positive, the same cannot be overlooked to give an expansive meaning under the pretext of a purposive construction to perpetuate an ideological object and aim, which also, having regard to the statement of Objects and Reasons for the AICTE Act, are not warranted or justified. ....."

Thus, on a plain and simple reading of the provisions of Section 10 of the Act, 2004 the institutions which are already established do not fall in its ambit.

However, such institutions may apply under any other law under which an authority may have been established by the Central Government or any State Government for grant of minority status to an educational institution as has been referred in Section 12B of the Act, 2004, if it permits consideration of cases of institutions already established or if there is no such provision, it may seek a declaration of its 'minority status' by filing a suit before a Civil Court of competent jurisdiction and, if granted, based thereon, seek the protection as available under Article 30 of the Constitution of India from the authorities.

Now it is to be seen whether the application of the petitioners submitted before the Commission on 26.12.2012 or 27.12.2012 or in January 2015 as the case may be, fell within the purview of Section 10 or not.

The petitioner no.1 in W.P. No. 4643 (MS) of 2013 has admitted in its application dated 26.12.2012 that it was established in 2009. It appears after recognition by NCTE on 20.08.2009 for 100 seats of B. Ed and affiliation for this course under the U.P. State University Act 1973 the petitioner applied for No Objection Certificate and declaration of its minority status on 26.12.2012 for getting the protection available for making admission etc. to B.Ed course to minority institutions as per direction of the Supreme Court in T.M.A. Pai, Islamic Academy and P.A. Inamdar. There is nothing on record to show any such application having been submitted earlier though the institution was established in 2006. The Act, 2004 was preceded by an Ordinance and it is deemed to have come into force on 11.11.2004.

There is nothing on record to suggest that petitioner no.1 in W.P. No. 4643 (MS) of 2013 wanted to open a separate institution for B. Ed course. In fact its statement that the institution had already been established in 2009 and also that they were running other courses such as B.Tech, B.A. B.Sc. Etc. as stated in para 39 and other paragraphs of the writ petition goes to show that they were either conducting the B.Ed courses in the same institution as part of it or wanted to conduct it as part of the same institution, therefore, in view of the proposition laid down in the earlier part of the judgment regarding applicability of Section 10, it has to be held that it does not apply to petitioner no.1. Likewise petitioner no.2 of the said institution was established in 2006 as stated in its application dated 26.12.2012. All other facts relevant to this issue in relation to petitioner no.2 are same as in respect of petitioner no.1, therefore, Section 10 does not apply in its case also.

The petitioner institution in Writ Petition No. 4644 (MS) of 2013 is also similarly situated as petitioners of W.P. No. 4643(MS) of 2013 in this regard, as is evident from paragraphs 35 and 36 and 33 of the writ petition. The institution has been running since 2003, though surprisingly the application dated 27.12.2012 says it is yet to start. Recognition by NCTE for B.Ed course is of 08.07.2003, affiliation under the Act, 1973 is of 30.09.2004, surprisingly the society has been registered on 18.08.2009, the certificate of Baudh Samiti regarding adoption of Buddhism are of 2012 and 2013 ie.. after establishment of the institution, therefore, clearly Section 10 does not apply to it.

As far as petitioner in W.P. No. 7307 (MS) of 2014 is concerned, the pleadings in the writ petition are woefully silent regarding facts pertaining to the date of establishment etc. It only says that the founding members embraced Buddhism on 01.06.2008, 08.06.2008 and 09.07.2008. There is no mention of the courses being run by it. The application form submitted before the Commission, a copy of which is annexed as Annexure No. 5 to the writ petition states the institution has been established in 2012. The date of submission of application has not been disclosed. The case no mentioned in the impugned order passed by the Commission is F.No. 1158 of 2013.

In view of the above, the court has no doubt that these institutions had already been established before submission of the application for grant of No Objection Certificate, before the Commission, therefore, Section 10 of the Act 2004 is not attracted in their case also.

During the course of hearing reference was made to U.P. Private Professional Educational Institution (Regulation of Admission and Fixation of Fee) Act, 2006 which is applicable to "Professional Courses" as notified by the State Government under section 3(j) thereof. Section 3(g) of the Act, 2006 defines 'minority' as defined in Section 2 of the Act, 2004. Section 3(h) defines 'minority' institution to mean an institution, established and administered by minority and notified as such by the State Government.

There is another aspect of the matter which needs consideration. Section 10 of Act 2004 refers to a No Objection Certificate to be issued by the competent authority for the purpose of establishment of a minority educational institution. The term "competent authority" has been defined in Section 2 (ca) of Act 2004. Competent Authority is to be appointed by the appropriate Government. The term "appropriate Government" has been defined in Section 2(aa) of Act 2004 to mean in relation to an educational institution recognized for conducting its programmes of studies under any Act of Parliament, "the Central Government" and 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". Thus, on a conjoint reading of Section 2(ca) and 2(aa), the competent authority may either be as appointed by the State Government or by the Central Government depending on the fact whether for the programme of study being conducted recognition is required under a Central or State enactment. The No Objection would be required from either, depending on the aforesaid fact or in a given fact situation from both, such as, in the case of a college imparting various courses, some of which require recognition under an Act of Parliament while other courses require recognition under a State Act, as in the present case. In Writ Petition No. 4643 (MS) of 2013 and 4644(MS) of 2013 where the recognition in question for B.Ed course is required under the Central Act i.e. NCTE, Act, but the institution is also running other graduation courses for which recognition is required under the State Act i.e. U.P. State Universities Act, 1973.

There is nothing on record to show that the petitioners approached the competent authority appointed by the Central Government at any stage.

The petitioners have also claimed that they should be deemed to be a minority educational institution under section 10(3) of the Act, 2004 as their applications submitted before the competent authority under Section 10 in the month of January 2015 were not decided within 90 days nor any such decision was communicated to them. This contention cannot be accepted as in the earlier part of the judgment it has already been held that Section 10 of the Act, 2004 is not applicable to the petitioners. Assuming section 10 was applicable, even then, as the matter was sub judice before this court and the legal position with regard to the issues involved was uncertain, the competent authority could not be faulted for not having taken a decision especially in view of the interim order dated 24.07.2014 operating in this writ petition restraining him from doing so, moreover, they never approached the competent authority appointed by the Central Government.

The propositions laid down hereinabove are summarized as under:-

The Commission does not have original jurisdiction in the matter of grant of No Objection Certificate for establishing a minority educational institution under the Act, 2004, such jurisdiction is vested with the competent authority under section 10 of the said Act. The Commission has only appellate jurisdiction in this regard under Section 12A.

(1) The exercise envisaged under section 10 of the Act, 2004 by the "Competent Authority" is only for the purpose of ascertaining the minority status of the institution proposed to be established. In addition to such No Objection Certificate under section 10, other requirements laid down in any other law are required to be adhered to separately.

(2) Section 12B of the Act, 2004 also vests appellate power in the Commission against refusal of an authority appointed under any law or by an order of the appropriate Government, for grant of minority status and includes the power to grant such minority status in exercise of such power, but not at the first instance.

(3) Section 10 of the Act 2004 applies only in a case where a minority educational institution is 'proposed' to be established. It does not apply to such institutions which have already been established and are already functioning. Such an institution, may, if permissible, apply before any other authority appointed under any other law as mentioned in Section 12B for declaration of minority status or may seek a declaration, in this regard by Civil court of competent jurisdiction.

(4) The No Objection Certificate under section 10 is to be applied before the concerned 'competent authority', keeping in mind the definition contained in Section 2(ca) read with 2(aa) and the programme of study proposed to be conducted by the institution.

(5) The competent authority under Section 10 at the first instance and the Commission while exercising appellate jurisdiction under Section 12A and 12B read with Section 11 (f) and 12 have ample power to inquire examine and determine the minority status of the proposed institution and hold such inquiry in this regard as may be necessary. They should lift the veil to ascertain the genuine-ness of such claims so as to unmask the masked phantoms claiming protection available under Article 30 of the Constitution, but they cannot reject a claim purely on ipse dixit.

(6) There is no such constitutional or legal requirement of renouncing Hinduism or any other religion while embracing Buddhism.

(7) Adoption of another religion voluntarily and without coercion is part of the Right to Freedom of religion under Article 25 of the Constitution of India.

Order In view of the above discussion it is ordered as under:-

(i) The orders dated 05.06.2013, 06.06.2013 and 04.04.2013 passed by the Commission are quashed.

(ii) The orders of the State Government declining to consider such application for grant of no objection certificate and declaration of minority status of an institution for want of authority are declared a nullity.

(iii) The competent authority appointed under section 10 including the one appointed by the State Government is free to consider the applications filed under section 10 of the Act, 2004 as per law. The restraint orders passed by this Court are vacated.

(iv) The applications filed by the petitioners for grant of No Objection Certificate under Section 10 of the Act, 2004 are held to be not maintainable as the institution had already been established and were functioning prior to submission of the said applications on 26.12.2012, 27.12.2012 etc. and also the applications submitted in January, 2015

(v) The petitioners cannot be deemed to be Minority Educational Institutions under Section 10(3).

(vi) It shall be open to the petitioners to approach any authority established under any law as referred to in Section 12B of the Act, 2004 for grant of minority status, if such law permits the consideration of the cases of institutions which are already established. It may consider their claim unaffected by the order of the Commission, but, keeping in mind the observations made hereinabove including the satisfaction of the twin tests for declaring such status and the need to lift the veil to find out the masked phantoms and ascertaining the guine-ness of their claim. It shall also be open to them to approach the Civil Court seeking a declaration of their minority status.

(vii) Matters regarding grant of No Objection Certificate and declaration of minority status which have already attained finality shall not be reopened merely on the basis of this judgment.

All the writ petitions are disposed of in the aforesaid terms.

Dated: July 29, 2015.

VKS.